12–3–08 Wednesday Vol. 73 No. 233 Dec. 3, 2008

Pages 73545–73760

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The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.federalregister.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases on GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal Register www.gpoaccess.gov/ nara, available through GPO Access, is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. For more information about GPO Access, contact the GPO Access User Support Team, call toll free 1-888-293-6498; DC area 202- 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. The Support Team is available between 7:00 a.m. and 9:00 p.m. Eastern Time, Monday–Friday, except official holidays. The annual subscription price for the Federal Register paper edition is $749 plus postage, or $808, plus postage, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $165, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Printing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1- 866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 73 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

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Contents Federal Register Vol. 73, No. 233

Wednesday, December 3, 2008

Agriculture Department Performance Specification and Quality Assurance See Commodity Credit Corporation Requirements for Continuous Parameter Monitoring See Rural Housing Service Systems and Amendments to Standards of Performance, 73629–73630 Centers for Medicare & Medicaid Services Pesticide Tolerances: RULES Chlorothalonil, 73632–73637 Medicaid Program: NOTICES State Flexibility for Medicaid Benefit Packages, 73694– Filings: 73727 Pesticide Petitions for Residues of Pesticide Chemicals in NOTICES or on Various Commodities, 73640–73652 Medicare Program: Meetings: Hospital Inpatient Prospective Payment Systems and Exposure Modeling, 73652 Fiscal Year 2009 Rates; Fiscal Year 2009 Wage Index Pesticide Products; Registration Applications, 73652–73653 Changes etc., 73656–73659 Terminate Uses; Amendments: Malathion, 73653–73655 Commerce Department See Industry and Security Bureau Export-Import Bank See International Trade Administration NOTICES See National Oceanic and Atmospheric Administration Meetings; Sunshine Act, 73655

Commodity Credit Corporation Federal Aviation Administration PROPOSED RULES RULES Technical Assistance for Specialty Crops, 73617–73618 Airworthiness Directives: McDonnell Douglas Model DC-9-10, DC-9-20, DC-9-30, Defense Department DC 9-40, and DC 9-50 Series Airplanes, etc., 73545– See Navy Department 73547 PROPOSED RULES PROPOSED RULES National Security Personnel System, 73606–73617 Airworthiness Directives: NOTICES Viking Air Limited Models DHC-6-1, DHC-6-100, DHC-6- Agency Information Collection Activities; Proposals, 200, and DHC-6-300 Airplanes, 73618–73620 Submissions, and Approvals: NOTICES Federal Acquisition Regulation; Organization and Agency Information Collection Activities; Proposals, Direction of Work, 73639 Submissions, and Approvals: Federal Acquisition Regulation; Overtime, 73638–73639 Agricultural Aircraft Operator Certificate Application, Federal Acquisition Regulations; Material and 73687–73688 Workmanship, 73639–73640 Air Carriers Listing of Leading Outsource Maintenance Providers, 73688 Drug Enforcement Administration Washington, DC Metropolitan Area Special Flight Rules, RULES 73688–73689 Import and Production Quotas for Certain List I Chemicals, Quitclaim Deed Agreements: 73549–73556 Kay Larkin Field, Palatka Municipal Airport, Palatka, FL, 73689 Employment and Training Administration Waiver of Aeronautical Land-Use Assurances, 73689 NOTICES State Unified Plans and Unified Plan Modifications, 73730– Federal Emergency Management Agency 73759 NOTICES Agency Information Collection Activities; Proposals, Energy Department Submissions, and Approvals, 73660–73661 See Federal Energy Regulatory Commission Federal Energy Regulatory Commission Environmental Protection Agency NOTICES RULES Supplemental Notice that Initial Market-Based Rate Filing Approvals and Promulgations of Implementation Plans: Includes Request for Blanket Section 204 Texas, 73562–73580 Authorization: Pesticide Tolerances: LANXESS Energy, LLC, 73640 Chlorothalonil, 73580–73586 Glyphosate, 73586–73592 Federal Maritime Commission PROPOSED RULES NOTICES Formaldehyde Emissions from Pressed Wood Products, Filing of Complaint and Assignment: 73620–73629 Western Holding Group, Inc., et al. v. Mayaguez Port National Emission Standards for Halogenated Solvent Commission and Holland Group Port Investment Cleaning, 73631–73632 (Mayaguez), Inc., 73655–73656

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Filings: International Trade Administration APM Terminals Pacific Ltd., California United Terminals, NOTICES Inc., et al., 73656 Extension of Time Limit for the Preliminary Results of the New Shipper Reviews: Federal Motor Carrier Safety Administration Fresh Garlic from the People’s Republic of China, 73638 NOTICES Meetings: Meetings: Manufacturing Council; Teleconference, 73638 Medical Review Board (MRB), [Editorial Note: This document appearing at 73 FR 73381-73382 in the Justice Department Federal Register of December 2, 2008, was placed See Drug Enforcement Administration under the wrong agency in that issue’s Table of Contents.] Labor Department See Employment and Training Administration Federal Railroad Administration NOTICES National Aeronautics and Space Administration Safety Advisory (2008-02), 73689–73690 NOTICES Agency Information Collection Activities; Proposals, Fish and Wildlife Service Submissions, and Approvals: RULES Federal Acquisition Regulation; Organization and Papahanaumokuakea Marine National Monument Direction of Work, 73639 Proclamation Provisions, 73592–73605 Federal Acquisition Regulation; Overtime, 73638–73639 NOTICES Federal Acquisition Regulations; Material and Availability; Final Comprehensive Conservation Plans and Workmanship, 73639–73640 Environmental Impact Statements: Lake Umbagog National Wildlife Refuge, Coos County, National Institutes of Health NH, and Oxford County, ME, 73661–73662 NOTICES Meetings: Food and Drug Administration National Institute of General Medical Sciences, 73660 NOTICES Submission of Patent Information for Certain Old National Oceanic and Atmospheric Administration Antibiotics; Draft Guidance for Industry, 73659–73660 RULES Papahanaumokuakea Marine National Monument Foreign Assets Control Office Proclamation Provisions, 73592–73605 NOTICES Additional Designations Pursuant to Executive Order 13469 National Park Service of July 25, 2008: NOTICES ‘‘Blocking Property of Additional Persons Undermining Environmental Impact Statements; Availability, etc.: Democratic Processes or Institutions in Zimbabwe’’ Pipestone National Monument, MN, 73662–73663 (the ‘‘Order’’), 73690–73691 Navy Department General Services Administration RULES NOTICES Certifications and Exemptions Under the International Agency Information Collection Activities; Proposals, Regulations for Preventing Collisions at Sea (1972), Submissions, and Approvals: 73556–73558 Federal Acquisition Regulation; Organization and Direction of Work, 73639 Nuclear Regulatory Commission Federal Acquisition Regulation; Overtime, 73638–73639 NOTICES Federal Acquisition Regulations; Material and Facility Operating Licenses, etc.: Workmanship, 73639–73640 Duke Energy Carolinas, LLC, 73663–73664

Health and Human Services Department Personnel Management Office See Centers for Medicare & Medicaid Services PROPOSED RULES See Food and Drug Administration National Security Personnel System, 73606–73617 See National Institutes of Health Postal Regulatory Commission Homeland Security Department NOTICES See Federal Emergency Management Agency Postal Service Plan for Service Performance Measurement, 73664–73679 Industry and Security Bureau RULES Rural Housing Service Clarification of Export Control Jurisdiction for Civil Aircraft NOTICES Equipment under the Export Administration Meetings: Regulations, 73547–73549 USDA Section 538 Guaranteed Rural Rental Housing Program 2009 Industry Forums, [Editorial Note: This Interior Department document appearing at 73 FR 72444 in the Federal See Fish and Wildlife Service Register of November 28, 2008, was placed under the See National Park Service wrong agency in that issue’s Table of Contents.]

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Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Separate Parts In This Issue New York Stock Exchange LLC, 73679–73681 NYSE Alternext US LLC, 73681–73687 Part II Thrift Supervision Office Health and Human Services Department, Centers for NOTICES Medicare & Medicaid Services, 73694–73727 Appointment of Receiver: PFF Bank & Trust; Pomona, CA, 73692 Part III Labor Department, Employment and Training Transportation Department Administration, 73730–73759 See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration Reader Aids Consult the Reader Aids section at the end of this issue for Treasury Department phone numbers, online resources, finding aids, reminders, See Foreign Assets Control Office and notice of recently enacted public laws. See Thrift Supervision Office To subscribe to the Federal Register Table of Contents Veterans Affairs Department LISTSERV electronic mailing list, go to http:// RULES listserv.access.gpo.gov and select Online mailing list Assistance to States in Hiring and Retaining Nurses at State archives, FEDREGTOC-L, Join or leave the list (or change Veterans Homes, 73558–73562 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.

5 CFR Proposed Rules: 9901 (2 documents) ...... 73606 7 CFR Proposed Rules: 1487...... 73617 14 CFR 39...... 73545 Proposed Rules: 39...... 73618 15 CFR 770...... 73547 774...... 73547 21 CFR 1300...... 73549 1315...... 73549 1316...... 73549 32 CFR 706 (2 documents) ...... 73556, 73557 38 CFR 53...... 73558 40 CFR 52...... 73562 180 (2 documents) ...... 73580, 73586 Proposed Rules: Ch. I ...... 73620 60...... 73629 61...... 73629 63 (2 documents) ...... 73629, 73631 180...... 73632 42 CFR 440...... 73694 50 CFR 404 (2 documents) ...... 73592

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Rules and Regulations Federal Register Vol. 73, No. 233

Wednesday, December 3, 2008

This section of the FEDERAL REGISTER 9 a.m. and 5 p.m., Monday through those operators who have already contains regulatory documents having general Friday, except Federal holidays. The AD complied with the intent of the AD or applicability and legal effect, most of which docket contains this AD, the regulatory who will comply very quickly after are keyed to and codified in the Code of evaluation, any comments received, and issuance of the AD. NWA states that it Federal Regulations, which is published under other information. The address for the would be helpful if this was stated. 50 titles pursuant to 44 U.S.C. 1510. Docket Office (telephone 800–647–5527) We agree with NWA’s request for The Code of Federal Regulations is sold by is the Document Management Facility, clarification. Our intent was for the the Superintendent of Documents. Prices of U.S. Department of Transportation, operator to start and complete the tail new books are listed in the first FEDERAL Docket Operations, M–30, West cone modification and fly a minimum of REGISTER issue of each week. Building Ground Floor, Room W12–140, 150 flight cycles before the additional 1200 New Jersey Avenue, SE., tail cone deployment test, accomplished Washington, DC 20590. within 24 months after the effective date DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Ken of the AD. When there are multiple Federal Aviation Administration Sujishi, Aerospace Engineer, Cabin airplanes, the 150 flight cycles apply to Safety Branch, ANM–150L, FAA, Los each individual airplane, and start after 14 CFR Part 39 Angeles Aircraft Certification Office, the modification is done to each 3960 Paramount Boulevard, Lakewood, airplane individually. [Docket No. FAA–2007–28881; Directorate California 90712–4137; telephone (562) Scenario: An operator completes the Identifier 2006–NM–263–AD; Amendment 627–5353; fax (562) 627–5210. modification on the first airplane, and 39–15663; AD 2008–18–06] SUPPLEMENTARY INFORMATION: then completes the minimum 150 flight RIN 2120–AA64 Discussion cycles two months after the modification. After the operator Airworthiness Directives; McDonnell We issued a notice of proposed successfully performs the tail cone slide Douglas Model DC–9–10, DC–9–20, rulemaking (NPRM) to amend 14 CFR deployment test on the first airplane, DC–9–30, DC–9–40, and DC–9–50 part 39 to include an airworthiness the second airplane is modified a week Series Airplanes, Equipped With a Tail directive (AD) that would apply to later. The second airplane will also be Cone Evacuation Slide Container McDonnell Douglas Model DC–9–10, required to fly a minimum of 150 flight Installed in Accordance With DC–9–20, DC–9–30, DC–9–40, and DC– cycles before the deployment test of the Supplemental Type Certificate (STC) 9–50 series airplanes, equipped with tail cone slide. If the operator has 100 ST735SO certain tail cone evacuation slide airplanes, then the operator must containers. That NPRM was published demonstrate a successful deployment AGENCY: Federal Aviation in the Federal Register on August 6, test on 10 percent (ten) of the modified Administration (FAA), DOT. 2007 (72 FR 43578). That NPRM airplanes as terminating action for the ACTION: Final rule. proposed to require modifying the tail AD. cone slide. That NPRM also proposed to We agree that the proposed 150-day SUMMARY: We are adopting a new require additional tail cone drops and compliance time specified in paragraph airworthiness directive (AD) for slide deployments, and repair if (g) of the NPRM needs not only to be McDonnell Douglas Model DC–9–10, necessary. DC–9–20, DC–9–30, DC–9–40, and DC– clarified, but also revised. The 150-day 9–50 series airplanes, equipped with tail Comments requirement could impose a schedule cone evacuation slide containers as We gave the public the opportunity to hardship for some operators who might specified above. This AD requires participate in developing this AD. We need more time to complete the modifying the tail cone slide. This AD considered the comments received from modification. Our intent was to allow also requires additional tail cone drops the one commenter. the operator time to modify the tail cone and slide deployments, and repair if slide cover and to perform the necessary. This AD results from several Request To Clarify Paragraph (g) of the deployment test after a minimum of 150 reports of inadvertent tail cone NPRM flight cycles after modification, and no deployments in which the tail cone Northwest Airlines (NWA) requests later than 24 months after the effective slide failed to deploy. We are issuing that we clarify whether the 150-flight- date of this AD. this AD to ensure that the tail cone cycle compliance time specified in For all these reasons, we have revised evacuation slide deploys correctly. paragraph (g) of the NPRM starts after paragraph (g) and added a new Failure of the slide to deploy during an the first airplane is modified or after the paragraph (h) to the AD to clarify the emergency evacuation could result in last airplane is modified. Unless the compliance time. The new paragraph (g) injury to flightcrew and passengers. FAA intends to have operators perform begins as follows: ‘‘* * * no earlier DATES: This AD is effective January 7, slide deployments while the fleet is still than 150 flight cycles after doing the 2009. being modified, NWA recommends that modification required by paragraph (f) the 150-flight-cycle clock start after the of this AD, and no later than 24 months Examining the AD Docket modification, or within 24 months after after the effective date of this AD. You may examine the AD docket on the effective date of the AD, whichever * * *’’ The new paragraph (h) states the Internet at http:// occurs first. NWA also states that it that operators should contact the www.regulations.gov; or in person at the assumes the 150-day compliance clock Manager, Los Angeles Aircraft Docket Management Facility between in that same paragraph is intended for Certification Office (ACO), FAA, if the

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repeat deployment cannot be performed Costs of Compliance Adoption of the Amendment as required by paragraph (g) of this AD. There are about 400 airplanes of the ■ Accordingly, under the authority Request for Exemption From Proposed affected design in the worldwide fleet. delegated to me by the Administrator, Requirements This AD affects about 300 airplanes of the FAA amends 14 CFR part 39 as U.S. registry. The tail cone drops/slide follows: NWA also requests exemption from deployments take about 16 work hours the proposed requirements of paragraph per airplane, at an average labor rate of PART 39—AIRWORTHINESS (g) of the NPRM. NWA states that while $80 per work hour. Required parts cost DIRECTIVES performing testing to obtain about $1,300 per airplane. Based on ■ 1. The authority citation for part 39 Supplemental Type Certificate (STC) these figures, the estimated cost of the continues to read as follows: ST01967CH, it successfully performed 5 AD for U.S. operators is $774,000, or tail cone drops and slide deployments $2,580 per airplane. Authority: 49 U.S.C. 106(g), 40113, 44701. with the new design slide installation. Authority for This Rulemaking NWA believes that the requirement to § 39.13 [Amended] perform additional slide deployments is Title 49 of the United States Code ■ 2. The FAA amends § 39.13 by adding arbitrary, and that the 5 tail cone drops specifies the FAA’s authority to issue the following new AD: performed as part of the STC approval rules on aviation safety. Subtitle I, 2008–18–06 McDonnell Douglas: are sufficient to prove the design section 106, describes the authority of Amendment 39–15663. Docket No. reliability of its airplanes. the FAA Administrator. ‘‘Subtitle VII: FAA–2007–28881; Directorate Identifier 2006–NM–263–AD. We disagree with the request for Aviation Programs’’ describes in more exemption. The 5 tail cone drops and detail the scope of the Agency’s Effective Date slide deployments that NWA did during authority. (a) This airworthiness directive (AD) is the STC approval process did not We are issuing this rulemaking under effective January 7, 2009. the authority described in ‘‘Subtitle VII, represent the severity of the actual Affected ADs Part A, Subpart III, Section 44701: operating environment for the tail cone, (b) None. including temperature and high takeoff General requirements.’’ Under that and landing loads, nor did they section, Congress charges the FAA with Applicability promoting safe flight of civil aircraft in represent repeated flight cycles with (c) This AD applies to McDonnell Douglas air commerce by prescribing regulations various types of contamination such as Model DC–9–11, DC–9–12, DC–9–13, DC–9– for practices, methods, and procedures 14, DC–9–15, DC–9–15F, DC–9–21, DC–9–31, dirt and fuel. Tail cone slides must be the Administrator finds necessary for DC–9–32, DC–9–32 (VC–9C), DC–9–32F, DC– overhauled, repacked and re-rigged safety in air commerce. This regulation 9–33F, DC–9–34, DC–9–34F, DC–9–32F (C– every 3 years and have no other is within the scope of that authority 9A, C–9B), DC–9–41, and DC–9–51 airplanes, maintenance requirements in order to certificated in any category, equipped with a because it addresses an unsafe condition tail cone evacuation slide container installed verify successful deployment. We have that is likely to exist or develop on not changed the AD in this regard. in accordance with supplemental type products identified in this rulemaking certificate (STC) ST735SO. action. Explanation of Change to Paragraph (f) Unsafe Condition and Removal of Note 1 of the NPRM Regulatory Findings (d) This AD results from several reports of We have revised paragraph (f) of this This AD will not have federalism inadvertent tail cone deployments in which AD, and have removed Note 1 of this the tail cone slide failed to deploy. We are implications under Executive Order issuing this AD to ensure that the tail cone AD, to remove reference to Northwest 13132. This AD will not have a evacuation slide deploys correctly. Failure of Airlines STC ST01967CH and substantial direct effect on the States, on the slide to deploy during an emergency Northwest Airlines Drawing 9B25– the relationship between the national evacuation could result in injury to 41477, Revision B, dated September 14, government and the States, or on the flightcrew and passengers. 2006; and Northwest Airlines Drawing distribution of power and Compliance responsibilities among the various 9B25–90399, Revision D, dated (e) You are responsible for having the December 21, 2006. However, we have levels of government. actions required by this AD performed within approved Northwest Airlines STC For the reasons discussed above, I the compliance times specified, unless the ST01967CH as a method for modifying certify that this AD: actions have already been done. the tail cone slide. Operators may (1) Is not a ‘‘significant regulatory Initial Actions to Address Slide Deployment contact the Manager, Los Angeles ACO, action’’ under Executive Order 12866, Failures for information regarding Northwest (2) Is not a ‘‘significant rule’’ under (f) Within 24 months after the effective Airlines STC ST01967CH for modifying DOT Regulatory Policies and Procedures date of this AD: Modify the tail cone slide in the tail cone slide, as required by (44 FR 11034, February 26, 1979), and accordance with a method approved by the paragraph (f) of this AD. (3) Will not have a significant Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Conclusion economic impact, positive or negative, on a substantial number of small entities Repeat Deployment and Terminating Action We reviewed the relevant data, under the criteria of the Regulatory (g) Except as provided by paragraph (h) of considered the comment received, and Flexibility Act. this AD, no earlier than 150 flight cycles after determined that air safety and the You can find our regulatory doing the modification required by paragraph public interest require adopting the AD evaluation and the estimated costs of (f) of this AD, and no later than 24 months with the changes described previously. compliance in the AD Docket. after the effective date of this AD: Do additional tail cone drops and slide We also determined that these changes List of Subjects in 14 CFR Part 39 deployments on a minimum of 10 percent of will not increase the economic burden an operator’s fleet of affected airplanes (if on any operator or increase the scope of Air transportation, Aircraft, Aviation fewer than 10 airplanes in the fleet: at least the AD. safety, Safety. one airplane).

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(1) If the tailcone and slide deployments SUMMARY: This final rule amends the Background are successful according to the applicable Export Administration Regulations Amendments to the ITAR To Clarify McDonnell Douglas DC–9 airplane (EAR) to clarify how Section 17(c) of the Application of Section 17(c) of the EAA maintenance manual, no further action is Export Administration Act of 1979 required by this AD. On April 11, 2008 (73 FR 19778), the (2) If any tailcone and slide deployment is (EAA) is implemented in the EAR in accordance with the Department of Department of State published the unsuccessful according to the applicable proposed rule, ‘‘Amendments to the McDonnell Douglas DC–9 airplane Commerce’s authority under the EAA. maintenance manual, before further flight, On August 14, 2008, the Department of International Traffic in Arms repair in accordance with a method approved State published a final rule amending Regulations: The United States by the Manager, Los Angeles ACO, FAA. Part 121 of the International Traffic in Munitions List’’. That proposed rule Arms Regulations (ITAR) to clarify how noted that there have been an increasing Exception to Compliance Time for Repeat number of Commodity Jurisdiction (CJ) Deployment Section 17(c) of the EAA is requests submitted to the Department of (h) For any airplane on which the repeat implemented in relation to the ITAR (73 FR 47523). State for certain parts and components tail cone drop deployment cannot be that have a long history of use on both performed within 24 months after the This final rule provides guidance to effective date of this AD as required by assist the regulated public in civil and military aircraft. To provide paragraph (g) of this AD: Repeat the determining what civil aircraft guidance to the public regarding the deployment as approved by the Manager, Los equipment (including parts, accessories, proper export control jurisdiction for Angeles ACO, FAA, in accordance with the attachments, and components) is subject these parts and components, State procedures specified in paragraph (i) of this to the EAR based upon the statutory proposed in that rule to amend the AD. criteria of the EAA. ITAR, Part 121, to add language clarifying how the criteria of Section Alternative Methods of Compliance DATES: This rule is effective: December (AMOCs) 3, 2008. Although there is no formal 17(c) of the EAA are implemented in accordance with the Department of (i)(1) The Manager, Los Angeles ACO, comment period, public comments on State’s authority under the Arms Export FAA, ATTN: Ken Sujishi, Aerospace this regulation are welcome on a Control Act (AECA). The State Engineer, Cabin Safety Branch, ANM–150L, continuing basis. Department adopted the proposed rule, 3960 Paramount Boulevard, Lakewood, ADDRESSES: You may submit comments, California 90712–4137; telephone (562) 627– which was published, with minor edits, 5353; fax (562) 627–5210; has the authority identified by RIN 0694–AE31, by any of as a final rule on August 14, 2008 (73 to approve AMOCs for this AD, if requested the following methods: FR 47523). using the procedures found in 14 CFR 39.19. E-mail: [email protected]. The State Department final rule added (2) To request a different method of Include ‘‘RIN 0694–AE31’’ in the subject a new Note after Category VIII(h) to compliance or a different compliance time line of the message. clarify that any part or component that for this AD, follow the procedures in 14 CFR Fax: (202) 482–3355. Please alert the (a) is standard equipment; (b) is covered 39.19. Before using any approved AMOC on Regulatory Policy Division, by calling by a civil aircraft type certificate any airplane to which the AMOC applies, (202) 482–2440, if you are faxing (including amended type certificates notify your appropriate principal inspector comments. (PI) in the FAA Flight Standards District and supplemental type certificates) Mail or Hand Delivery/Courier: issued by the Federal Aviation Office (FSDO), or lacking a PI, your local Timothy Mooney, U.S. Department of FSDO. Administration for civil, non-military Commerce, Bureau of Industry and aircraft (which expressly excludes Material Incorporated by Reference Security, Regulatory Policy Division, military aircraft certified as restricted (j) None. 14th St. & Pennsylvania Avenue, NW., and any type certification of Military Issued in Renton, Washington, on Room 2705, Washington, DC 20230, Commercial Derivative Aircraft, defined November 16, 2008. Attn: RIN 0694–AE31. by FAA Order 8110.101 effective date Send comments regarding the Stephen P. Boyd, September 7, 2007 as ‘‘civil aircraft collection of information associated procured or acquired by the military’’); Assistant Manager, Transport Airplane with this rule, including suggestions for Directorate, Aircraft Certification Service. and (c) is an integral part of such civil reducing the burden, to Jasmeet Seehra, aircraft, is subject to the EAR. [FR Doc. E8–27937 Filed 12–2–08; 8:45 am] Office of Management and Budget BILLING CODE 4910–13–P Pursuant to the Note to Category (OMB), by e-mail to VIII(h) of the ITAR, exporters may [email protected], or by fax to (202) generally determine whether an item 395–7285; and to the U.S. Department of meets the 17(c) criteria. However, where DEPARTMENT OF COMMERCE Commerce, Bureau of Industry and a part or component would fall under a Security, Regulatory Policy Division, paragraph within ITAR Category VIII Bureau of Industry and Security 14th St. & Pennsylvania Avenue, NW., designated as Significant Military Room 2705, Washington, DC 20230. Equipment (SME) or any other USML 15 CFR Parts 770 and 774 Comments on this collection of category designated as Significant information should be submitted [Docket No. 080305374–81467–01] Military Equipment (SME), were such separately from comments on the final item to be found subject to the ITAR, the RIN 0694–AE31 rule (i.e. RIN 0694–AE31)—all exporter is required to submit a CJ comments on the latter should be request to determine whether the 17(c) Clarification of Export Control submitted by one of the three methods criteria are met, except where an SME Jurisdiction for Civil Aircraft outlined above. part or component was integral to civil Equipment Under the Export FOR FURTHER INFORMATION CONTACT: aircraft prior to August 14, 2008. The Administration Regulations Gene Christiansen, Senior Engineer/ Department of Commerce, based on its Licensing Officer, Office of National AGENCY: Bureau of Industry and licensing authority under the EAA, will Security, Commerce. Security and Technology Transfer participate in the review of CJ requests Controls, telephone: (202) 482–2984. under established interagency ACTION: Final rule. SUPPLEMENTARY INFORMATION: procedures. In the course of its review

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of a CJ request, the Department of of ECCN 9A991 to conform this ■ Accordingly, parts 770 and 774 of the Commerce will apply the criteria of paragraph to Section 121.3 of the ITAR. Export Administration Regulations (15 Section 17(c) in its review and Although the Export Administration CFR parts 730–774) are amended as recommendation, including an Act expired on August 20, 2001, the follows: assessment of whether a part or President, through Executive Order component meets the definition of 13222 of August 17, 2001, 3 CFR, 2001 PART 770—[AMENDED] Comp., p. 783 (2002), as extended by the ‘‘standard equipment’’ included in the ■ 1. The authority citation for 15 CFR Notice of July 23, 2008, 73 FR 43603 Note to Category VIII(h) of the ITAR. part 770 is revised to read as follows: ‘‘Standard equipment’’ includes parts (July 25, 2008), has continued the and components that are manufactured Export Administration Regulations in Authority: 50 U.S.C. app. 2401 et seq.; 50 in compliance with an established and effect under the International U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, Emergency Economic Powers Act. 3 CFR, 2001 Comp., p. 783; Notice of July 23, published industry specification or an 2008, 73 FR 43603 (July 25, 2008). established and published government Rulemaking Requirements specification (e.g., AN, MS, NAS, or ■ 2. Section 770.2 is amended by SAE). Parts and components that are 1. This final rule has been determined revising paragraph (i), to read as manufactured and tested to established to be not significant for purposes of E.O. follows: but unpublished (e.g., proprietary) civil 12866. 2. Notwithstanding any other § 770.2 Item interpretations. aviation industry specifications and provision of law, no person is required standards are also ‘‘standard * * * * * to respond to, nor shall any person be equipment,’’ e.g., pumps, actuators, and (i) Interpretation 9: Civil aircraft and subject to a penalty for failure to comply generators. Civil aircraft equipment (including with a collection of information, subject parts, accessories, attachments, Purpose of This EAR Rule To Clarify to the requirements of the Paperwork components, and related training Application of Section 17(c) of the EAA Reduction Act, unless that collection of equipment). Aircraft and related information displays a currently valid The purpose of this final rule training equipment, parts, accessories, Office of Management and Budget and components defined in Categories amending the EAR is to clarify what Control Number. This rule involves a parts and components meet the criteria VIII and IX of the Munitions List are collection of information subject to the under the export licensing authority of of Section 17(c). Those that meet the Paperwork Reduction Act of 1980 (44 Section 17(c) criteria are subject to the the U.S. Department of State (22 CFR U.S.C. 3501 et seq.). This collection has parts 120 through 130). All other jurisdiction of the EAR. been approved by the Office of Section 17(c) provides that aircraft, parts, accessories and Management and Budget under control components are subject to the EAR and notwithstanding any other provision of number 0694–0088, ‘‘Multi-Purpose law, any product (1) which is standard under the export licensing authority of Application,’’ which carries a burden the U.S. Department of Commerce, as equipment, certified by the Federal hour estimate of 58 minutes for a Aviation Administration (‘‘FAA’’), in follows: manual or electronic submission. (1) Aircraft and related training civil aircraft and is an integral part of 3. This rule does not contain policies equipment. (i) Aircraft not specifically such aircraft, and (2) which is to be with Federalism implications as that designed, modified or equipped for exported to a country other than a term is defined under E.O. 13132. military purposes, and controlled country, shall be subject to 4. The provisions of the (ii) The following aircraft, so long as export controls exclusively under the Administrative Procedure Act (5 U.S.C. they have not been specifically EAA. Since its passage, the Departments 553) requiring notice of proposed equipped, re-equipped, or modified for of State and Commerce have rulemaking, the opportunity for public military operations: implemented Section 17(c) through participation, and a delay in effective (A) Cargo aircraft bearing ‘‘C’’ various regulatory amendments and date, are inapplicable because this designations and numbered C–45 notices consistent with the aims of the regulation involves a military and through C–118 inclusive, C–121 through EAA and the AECA. foreign affairs function of the United C–125 inclusive, and C–131, using Amendments to the EAR To Clarify States (5 U.S.C. 553(a)(1)). Further, no reciprocating engines only. Application of Section 17(c) of the EAA other law requires that a notice of (B) Trainer aircraft bearing ‘‘T’’ proposed rulemaking and an designations and using reciprocating In Section 770.2 (Item opportunity for public comment be engines or turboprop engines with less Interpretations), this rule revises given for this final rule. Because a than 600 horsepower (s.h.p.). paragraph (i) (Interpretation 9: aircraft, notice of proposed rulemaking and an (C) Utility aircraft bearing ‘‘U’’ parts, accessories and components) to opportunity for public comment are not designations and using reciprocating provide jurisdictional guidance for required to be given for this rule under engines only. aircraft, parts, accessories and the Administrative Procedure Act or by (D) All liaison aircraft bearing an ‘‘L’’ components, as follows: any other law, the analytical designation. This revised interpretation clarifies requirements of the Regulatory (E) All observation aircraft bearing what (1) aircraft and related training Flexibility Act (5 U.S.C. 601 et seq.) are ‘‘O’’ designations and using equipment, (2) aircraft engines, and (3) not applicable. Therefore, this reciprocating engines. components, parts, accessories, regulation is issued in final form. (2) Engines. (i) All reciprocating attachments, and associated equipment List of Subjects engines, and are subject to the jurisdiction of the (ii) All other aircraft engines not Department of Commerce. 15 CFR Part 770 specifically designed or modified for In Supplement No. 1 to Part 774 Exports. military aircraft, except those defined in (Commerce Control List), this rule also category VIII(f) of 22 CFR part 121. makes a conforming change to 15 CFR Part 774 (3) Components, parts, accessories, paragraph (a) of the ‘‘Items’’ paragraph Exports, Reporting and recordkeeping attachments, and associated equipment. in the List of Items Controlled Section requirements. Any aircraft tires as well as any

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components, parts, accessories, Dated: November 26, 2008. while deterring the diversion of attachments and associated equipment Matthew S. Borman, controlled substances to illegal that are not specifically designed or Deputy Assistant Secretary for Export purposes. The CSA mandates that DEA modified for aircraft on the Munitions Administration. establish a closed system of control for List and all components and parts not [FR Doc. E8–28654 Filed 12–2–08; 8:45 am] manufacturing, distributing, and on the Munitions List by virtue of the BILLING CODE 3510–33–P dispensing, importing, and exporting criteria set forth in the note to Category controlled substances. Any person who VIII(h) of 22 CFR part 121. manufactures, distributes, dispenses, imports, exports, or conducts research * * * * * DEPARTMENT OF JUSTICE or chemical analysis with controlled PART 774—[AMENDED] Drug Enforcement Administration substances must register with DEA (unless exempt) and comply with the ■ 3. The authority citation for 15 CFR 21 CFR Parts 1300, 1315, and 1316 applicable requirements for the activity. part 774 continues to read as follows: The CSA as amended also requires DEA [Docket No. DEA–293F] to regulate the manufacture, Authority: 50 U.S.C. app. 2401 et seq.; 50 distribution, import, and export of RIN 1117–AB08 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. chemicals that may be used to 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et Import and Production Quotas for manufacture controlled substances seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); Certain List I Chemicals illegally. Listed chemicals that are 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. classified as List I chemicals are 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; AGENCY: Drug Enforcement important to the manufacture of 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. Administration (DEA), Justice. controlled substances. Those classified 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. ACTION: Final rule. as List II chemicals may be used to 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 manufacture controlled substances. Comp., p. 783; Notice of July 23, 2008, 73 FR SUMMARY: On March 9, 2006, the On March 9, 2006, the President 43603 (July 25, 2008). President signed the Combat signed the Combat Methamphetamine Methamphetamine Epidemic Act of Epidemic Act of 2005 (CMEA), which is ■ 4. In Supplement No. 1 to part 774 2005, which mandates that DEA Title VII of the USA PATRIOT (the Commerce Control List), Category establish total annual requirements, and Improvement and Reauthorization Act 9—Propulsion Systems, Space Vehicles individual import, manufacturing, and of 2005 (Pub. L. 109–177). The Act and Related Equipment, Export Control procurement quotas for ephedrine, amends the CSA by adding new Classification Number (ECCN) 9A991 is pseudoephedrine, and provisions related to the importation, amended by revising paragraph (a) of phenylpropanolamine. DEA issued an production, and sale of ephedrine, the ‘‘Items’’ paragraph in the List of Interim Final Rule establishing pseudoephedrine, and Items Controlled section, to read as procedures for applying for individual phenylpropanolamine, their salts, follows: import, manufacturing, and optical isomers, and salts of optical Supplement No. 1 to Part 774—The procurement quotas. DEA is finalizing isomers, and products that contain any Commerce Control List the rule with one change, to extend the of the three chemicals. authority to sign certifications to * * * * * Combat Methamphetamine Epidemic persons granted power of attorney to do Act of 2005 9A991 ‘‘Aircraft’’, n.e.s., and gas turbine so by the registrant. engines not controlled by 9A001 or The Combat Methamphetamine DATES: Effective Date: December 3, 2008. 9A101 and parts and components, n.e.s. Epidemic Act of 2005 (CMEA) amends FOR FURTHER INFORMATION CONTACT: * * * * * the CSA to tighten controls on the Christine A. Sannerud, Ph.D., Chief, manufacture, distribution, import, List of Items Controlled Drug and Chemical Evaluation Section, export, and retail sale of three List I Unit: *** Office of Diversion Control, Drug chemicals—ephedrine, Related Controls: *** Enforcement Administration, 8701 pseudoephedrine, and Related Definitions: *** Morrissette Drive, Springfield, VA phenylpropanolamine, and drug Items: 22152; at (202) 307–7183. products containing them. CMEA a. Military aircraft, demilitarized (not SUPPLEMENTARY INFORMATION: imposes the following changes: specifically equipped or modified for • Sales limits apply to retail sales of DEA’s Legal Authority military operation), as follows: nonprescription (over-the-counter) a.1 Cargo aircraft bearing ‘‘C’’ designations DEA implements the Comprehensive (OTC) products, which the CMEA and numbered C–45 through C–118 Drug Abuse Prevention and Control Act defined as ‘‘scheduled listed chemical inclusive, C–121 through C–125 inclusive, of 1970, often referred to as the products.’’ Regulated sellers are and C–131, using reciprocating engines only. Controlled Substances Act (CSA) and required to store the products behind a.2 Trainer aircraft bearing ‘‘T’’ the Controlled Substances Import and the counter or in locked cabinets and designations and using reciprocating engines Export Act (21 U.S.C. 801–971), as maintain records on each sale, including or turboprop engines with less than 600 amended. DEA publishes the verifying the name of the purchaser horsepower (s.h.p.). implementing regulations for these against an approved form of a.3 Utility aircraft bearing ‘‘U’’ statutes in Title 21 of the Code of identification supplied by the designations and using reciprocating engines Federal Regulations (CFR), Parts 1300 to purchaser. The exemption for blister only. 1399. These regulations are designed to packs has been removed. Thus, all a.4 All liaison aircraft bearing an ‘‘L’’ ensure that there is a sufficient supply products sold at retail are regulated designation. of controlled substances for legitimate under the CSA. (The law contained an a.5 All observation aircraft bearing ‘‘O’’ medical, scientific, research, and exception from recordkeeping designations and using reciprocating engines. industrial purposes, for lawful exports, requirements for individual sales * * * * * and for maintenance of reserve stocks, transactions consisting of a single

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package of pseudoephedrine where the additional factors the applicant finds pseudoephedrine, and package contains not more than 60 relevant to fixing the quota. phenylpropanolamine may not, in and milligrams.) The above requirements are consistent of itself, prevent an applicant from • DEA must establish an assessment with existing requirements for obtaining quota. DEA has significant of the annual needs for the estimated controlled substances quotas found in experience regarding the processing of medical, scientific, research, and 21 CFR Part 1303. quota applications for which incomplete industrial needs of the United States, for Each manufacturer that purchases the information is present at the initial lawful exports, and for maintenance of chemicals in bulk or in dosage forms is establishment of quota (e.g., a new reserve stocks, for the three chemicals. required to obtain a procurement quota formulation of a controlled substance). That assessment establishes an upper to obtain the bulk chemicals or dosage DEA will work with quota applicants to limit on the quantity of the chemicals forms. A separate procurement quota is obtain information that could be used in and products containing the chemicals required for each chemical. A the processing of the applicant’s initial that can be produced in or imported manufacturer must be registered as a application. into the United States. manufacturer to handle the chemical for Import Quotas • Bulk manufacturers must obtain a which a quota is applied. A To track and control the quantity of manufacturing quota to produce any of manufacturer must complete and file a each of the chemicals and drug products the three chemicals. DEA Form 250 on or before April 1 of containing the chemicals, DEA must • Manufacturers who purchase the each year for the following calendar limit imports to a quantity consistent bulk chemicals to produce products year. The applicant must provide the with the national needs. CMEA must obtain a procurement quota. following information: amended 21 U.S.C. 952(a) to state that • • A statement about the purpose(s) of Importers must obtain a quota to ‘‘It shall be unlawful to import * * * the requested chemical and the quantity import the chemicals in bulk or in drug ephedrine, pseudoephedrine, and which will be used for each purpose products. phenylpropanolamine * * * except that • during the next calendar year. The Importers, exporters, brokers, and such amounts of * * * ephedrine, applicant should provide information traders must provide additional pseudoephedrine, and about the quantities used (acquired, information on the persons to whom phenylpropanolamine as the Attorney they intend to sell the chemicals prior distributed, and inventory) for the General [DEA by delegation] finds to the sale. They must also provide a current and preceding two calendar necessary to provide for the medical, return declaration, providing actual years. • scientific, or other legitimate purposes information regarding the import, If the purpose is to manufacture * * *.’’ Importers are required to obtain export, or international transaction. dosage forms, the applicant must state an import quota for each chemical the official name, common or usual Interim Final Rule covering both bulk chemicals and name, chemical name, or brand name of dosage forms. An importer must be On July 10, 2007, DEA published an that dosage form, and must include the registered as an importer of the Interim Final Rule to establish the strength. chemical for which a quota is applied. • The applicant must state the type of procedures for manufacturers to apply An importer must complete and file a activity intended: Product development, for manufacturing and procurement DEA Form 488 on or before April 1 of repackaging, relabeling, manufacturing quotas and for importers to apply for each year for the following calendar OTC finished product, or manufacturing import quotas, as required under CMEA year. The applicant must provide the (72 FR 37439). The Interim Final Rule prescription finished product. • following information: created a new part 1315, which parallels If the purpose is to manufacture a • The type of product (bulk chemical the existing part 1303, which covers the controlled substance listed in Schedule or finished forms to be transferred to a same processes for controlled I or II or another List I chemical, the manufacturer or product to be sold for substances. The Interim Final Rule applicant must state the quantity of the distribution). established the following requirements: other substance or chemical that the • The quantity of each type of applicant has applied to manufacture Production Quotas product. under § 1303.22 and the quantity of the • For the previous two calendar Bulk manufacturers of the three first chemical needed to manufacture a years, the name, address, and DEA chemicals are required to obtain annual specified unit of the second chemical. registration number (if applicable) of manufacturing quotas. A separate quota The above requirements are consistent each customer and the amount sold; is required for each chemical. A bulk with existing requirements for inventory as of December 31 for each manufacturer must be registered as a controlled substances quotas found in form of the product (i.e., bulk chemical, manufacturer to handle the chemical for 21 CFR Part 1303. in-process material, or finished dosage which a quota is applied. A bulk DEA recognizes that applicants may form); and acquisitions (imports). manufacturer must complete and file a not have complete data on inventories DEA recognizes that importers DEA Form 189 on or before May 1 of and records for previous years because handling prescription products may not each year for the following calendar DEA has not required registrants to keep have historical records for their initial year, as discussed further below. The these records. Most manufacturers of filings. If an importer is handling applicant must provide the following OTC products should have the prescription drug products, it is possible information on the form: information in the records they that some of its customers may not be • For the current and preceding two maintain on regulated transactions. DEA registrants. DEA notes that the calendar years, the actual quantity Applicants who manufacture provision of incomplete information as manufactured, actual net disposals, and prescription products may not have full part of an application for quota in the actual inventory as of December 31. records for the initial filings. DEA notes initial year of implementation of quotas • For the next year, the desired quota, that the provision of incomplete for ephedrine, pseudoephedrine, and the name and registration number of information as part of an application for phenylpropanolamine may not, in and each customer and the amount quota in the initial year of of itself, prevent an applicant from estimated to be sold to each, and any implementation of quotas for ephedrine, obtaining quota. As noted above, DEA

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has significant experience regarding the estimated disposal, inventory, and other and DEA may approve the application if processing of quota applications for requirements for the calendar year; DEA DEA determines that the increase is which incomplete information is also considers the manufacturer’s needed to meet medical, scientific, or present at the initial establishment of current rate of disposal, the trend of the other legitimate purposes (21 CFR quota (e.g., a new formulation of a national disposal rate during the 1315.36). For changes in the import controlled substance). DEA will work preceding calendar year, the quota, DEA will approve or deny the with quota applicants to obtain manufacturer’s production cycle and application within 60 days of receiving information that could be used in the inventory position, the economic the application; if DEA does not reach processing of the applicant’s initial availability of raw materials, yield and a decision within the 60 days, the application. stability problems, emergencies such as application is considered to be Depending on the activities that a firm strikes and fires, and other factors (21 approved until DEA notifies the engages in, a firm may have to apply for U.S.C. 826(c); 21 CFR 1315.23). DEA applicant in writing that the approval is multiple quotas. For example, a firm notes that the rule being finalized today terminated (21 U.S.C. 952(d); 21 CFR that imports ephedrine to bulk does not establish the assessment or 1315.36(c)). manufacture pseudoephedrine would individual quotas; today’s rule simply DEA may hold hearings, at the need to obtain an import quota and a finalizes the establishment of Administrator’s sole discretion, to procurement quota for ephedrine and a procedures for collecting information obtain factual evidence regarding the manufacturing quota for from manufacturers and importers. determination or adjustment of any pseudoephedrine. A manufacturer that The assessment of annual needs assessment of annual national needs (21 imports bulk ephedrine and establishes a ceiling on domestic CFR 1315.52(a)). Applicants or quota pseudoephedrine to produce dosage manufacturing and importation of these holders may request hearings on the units of drugs containing the chemicals chemicals. DEA may, at its discretion, issuance, adjustment, suspension, or would need to obtain separate import seek additional information from denial of a quota (21 CFR 1315.52(b)). In and procurement quotas for each applicants if needed to determine an hearings on the assessment of annual chemical. appropriate level for the annual national needs, each interested party DEA uses the information filed in assessment ceiling. For example, has the burden of proving any support of the quota applications as one because repackagers and relabelers propositions of fact or law that the party factor in the determination of an initial handle products that are covered by asserts (21 CFR 1315.58(a)). At hearings assessment of annual needs for each of other procurement or import quotas, on the issuance, adjustment, the chemicals to ensure that the United DEA may need more details on suspension, or denial of an individual States has sufficient quantities to meet customers from those seeking quota, DEA has the burden of proving medical, scientific, research, industrial, procurement quotas to ensure that it is that the requirements for issuance, exportation, and reserve stock needs. not double counting quantities. This adjustment, suspension, or denial of an The criteria to be considered in setting issue may arise particularly in reference individual quota are met (21 CFR quotas are set forth in the CSA. to OTC products, where a manufacturer 1315.58(b)). Specifically, the CSA requires the may produce dosage units that are Attorney General, DEA by delegation, to repackaged or relabeled to be sold under Discussion of Comments establish production quotas, referred to multiple store brand labels. DEA received five comments on the here as the assessment of annual DEA adopted the same process for Interim Final Rule. Commenters national needs for the List I chemicals manufacturing and procurement quotas included an association representing ephedrine, pseudoephedrine, and for the three chemicals as was already distributors of drug products containing phenylpropanolamine, in terms of in place for manufacturing and ephedrine, pseudoephedrine, and quantities of the listed chemical and not procurement quotas for controlled phenylpropanolamine; two in terms of individual dosage forms (21 substances. Manufacturers may apply manufacturers; one distributor; and an U.S.C. 826(a); 21 CFR 1315.11). The for increases in their manufacturing association representing manufacturers actual setting of the annual assessment quotas (21 CFR 1315.25); DEA may and distributors of OTC products. is done after considering the factors in reduce individual manufacturing quotas 21 CFR 1315.11, publishing a proposed to prevent the total amount produced General Comments annual assessment, and giving the from exceeding the assessment of One commenter supported the rule as regulated community an opportunity to annual needs (21 CFR 1315.26). written, three commenters requested comment before finalizing the annual Manufacturers may abandon their quota clarification of certain aspects of the assessment (21 CFR 1315.13). DEA by notifying DEA (21 CFR 1315.27). rule, and one commenter raised published the initial established Manufacturers holding a procurement objections to the rule, although its assessment of annual needs for 2008 on quota may apply for adjustment of the comments actually addressed issues that December 27, 2007 (72 FR 73361), quota by applying to DEA with a were not the subject of the Interim Final proposed revisions and accepted statement indicating the need for an Rule. comments thereto (73 FR 35410, June adjustment (21 CFR 1315.32(g)). Any Three of the commenters raised issues 23, 2008), and published the final 2008 manufacturer who holds a procurement about the actual assessment of annual assessment of annual national needs (73 quota must, before giving an order to needs for the List I chemicals ephedrine, FR 63732, October 27, 2008). DEA must another manufacturer or importer pseudoephedrine, and limit or reduce individual production requiring the distribution of a covered phenylpropanolamine rather than the quotas to the extent necessary to prevent chemical, certify in writing that the process manufacturers and importers the aggregate of all individual quotas quantity being ordered does not exceed will use to apply for a quota, which is from exceeding the assessment of the unused portion of the person’s the subject of this rulemaking. One annual national needs (21 U.S.C. procurement quota for the year (21 CFR distributor stated that DEA had failed to 826(b)). In establishing individual 1315.32(h)). prove that convenience stores are a manufacturing quotas based on the As specified in the CMEA amendment ‘‘gray market’’ for these products. assessment of annual national needs, to section 952 of the CSA, importers DEA Response: The issues raised DEA considers the manufacturer’s may apply for an increase in their quota about the assessment of annual needs

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are beyond the scope of this Final Rule, DEA’s review of quota applications unlike controlled substances, where which deals only with the procedures where the manufacturer’s products are imports are allowed only if domestic for applying for and obtaining quotas in sold through conventional and manufacturers cannot meet the need, general. Any comments on the nonconventional outlets. with these chemicals most of the establishment or revision of the annual DEA Response: DEA appreciates the chemicals are imported. The commenter assessment and the methodology used support for this rulemaking expressed stated that providing inventory to develop it should be submitted in by the association. DEA emphasizes that allowances only to bulk manufacturers response to notices DEA may publish each quota application will be reviewed would place other manufacturers that regarding the assessment of annual on its own merits. DEA recognizes that rely on imports for the chemical at a needs. This rule includes only the many products are sold through both disadvantage. The commenter suggested general approach for establishing and conventional and nonconventional that both manufacturers and importers issuing the proposed and final outlets. As the 2002 Economic Census of be given a 20 percent inventory assessments of annual needs and the Retail Trade, Product Line, data allowance. individual quotas and contains only the indicate, nonconventional outlets DEA Response: DEA agrees with the statutory criteria. The issues related to handle only about three percent of sales commenter that the inventory allowance the sale of products containing the three of OTC medications. Products sold is an issue. Congress clearly intended List I chemicals at nonconventional through both types of retail outlets, that these chemicals should be closely outlets are also beyond the scope of this therefore, will be mainly sold through regulated. In its Interim Final Rule rule, which does not regulate conventional outlets. As DEA stated in establishing the procedures to distributors or retailers. Therefore, these the Interim Final Rule, its concern with implement individual procurement comments are not addressed in this products sold through nonconventional quotas, DEA established a 50 percent Final Rule. outlets is with a limited number of high- inventory allowance, the same dosage-unit products, sold almost allowance permitted for manufacturers Obtaining a Procurement Quota exclusively through these outlets and of controlled substances. DEA believes One pharmaceutical manufacturer the Internet. These high-dosage-unit that the 50 percent inventory allowance asked DEA to revise the requirement products are generally not the may be too great in some circumstances. that the certification that an order is bronchodilators used for asthma that Because this issue was not raised in the within the manufacturer’s procurement commenters cited as a concern. Interim Final Rule, however, DEA plans quota be signed by a person eligible to to address it in a separate rulemaking to Assessment of Annual Needs sign a registration. The commenter give regulated entities an opportunity to noted that for controlled substances, the One manufacturer raised concerns comment. certification may be signed by a person about the consideration of data in the Regarding the commenter’s suggestion who is eligible to sign the DEA Form assessment of annual needs. The for an inventory allowance for importers 222 ‘‘U.S. Official Order Form for commenter stated that the trends in and manufacturers obtaining Schedule I and II Controlled demand for ephedrine and procurement quotas, as noted Substances’’, which may be a person pseudoephedrine appear to be changing previously, all importation of granted signing authority through a as customers find the substitutes ephedrine, pseudoephedrine, and power of attorney. inadequate. The commenter asked that phenylpropanolamine is prohibited DEA Response: DEA agrees with the DEA consider both present and past except such amounts as the Attorney commenter and is revising 21 CFR trends. General finds to be necessary to provide 1315.32(h) to permit the signature of a DEA Response: DEA agrees with the for the medical, scientific, and other certification for procurement quota to be commenter that changing trends in use legitimate needs of the United States (21 by an individual authorized to sign the need to be considered when establishing U.S.C. 952(a)). Further, CMEA registration, or a person granted power the assessment of annual needs for specifically amended the CSA to require of attorney to sign the certification. DEA ephedrine, pseudoephedrine, and that importers specify, as part of the is also amending the regulations to add phenylpropanolamine. DEA notes that import declaration for all listed 21 CFR 1315.33, which establishes a manufacturers and importers had an chemicals, the name of the transferee process for granting and revoking power opportunity to comment on the (‘‘downstream customer’’) of the of attorney delegations. This process proposed 2008 assessment of annual chemicals and the quantity of the parallels the process in existence for needs (72 FR 53911, September 20, chemicals to be transferred (21 U.S.C. controlled substance orders under part 2007), and to submit additional 971(d)). Thus, as importers must 1305. information on demand to assist DEA in provide, prior to importation, the name ensuring that the initial established of the transferee to whom the chemicals Distinction Among Types of Outlets assessment (72 FR 73361, December 27, are to be transferred, there should be One association representing 2007) met the legitimate medical, limited need for the importer to manufacturers and distributors of OTC scientific, research, and industrial needs maintain an inventory of these drug products supported the rule and of the United States, for lawful exports, chemicals. DEA’s tripartite distinction among and for maintenance of reserve stocks. Petition for Repeal manufacturers and importers: Those As required, DEA will revise the that handle prescription drugs, those assessment of annual needs and will One distributor stated that the Interim that produce products sold mainly again seek comment from importers and Final Rule will cause harm to the through conventional outlets, and those manufacturers (21 CFR 1315.13). national economy through loss of jobs at that sell certain high dosage unit convenience stores due to loss of sales products almost exclusively through Inventory Allowances of ephedrine-based products. The nonconventional outlets. The One manufacturer raised issues commenter also claimed that the Interim commenter noted some inconsistencies related to the inventory allowance for Final Rule would cause harm to rural in the references to these groups that the bulk manufacturers and asked that communities which would not be able commenter stated could be confusing. A importers also be given inventory to obtain the products and that DEA had manufacturer also raised concerns about allowances. The commenter stated that underestimated the cost of the rule. The

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commenter asked DEA to stay the Final chemicals and products containing them, to clandestine laboratories. Since Rule until DEA has ruled on its petition those chemicals. the states and, in 2006, DEA, imposed for repeal. The commenter also claimed In regard to the commenter’s sales limits on these products, the that the Interim Final Rule quota was discussion of the economic impact of number of clandestine laboratory based on incomplete data and was, the Interim Final Rule, the comments seizures in the United States has fallen therefore, arbitrary and capricious and a regarding the actual availability of those dramatically, indicating that the violation of the Administrative List I chemicals, the establishment of Congressionally mandated actions have Procedure Act. The commenter stated the assessment of annual national been effective in limiting diversion of that DEA should have used notice and needs, and the issuance of individual products to clandestine laboratories in comment rulemaking for the Interim import, manufacturing, and the United States. International sources Final Rule. Finally, the commenter procurement quotas, are beyond the of methamphetamine are addressed by stated that the rule would not affect scope of the Interim Final Rule. The other parts of CMEA. diversion and methamphetamine abuse. comments apply to the assessment of DEA Response: The commenter annual needs, not the application Technical Corrections appears to have misunderstood the procedures; there are no provisions in While drafting this Final Rule, DEA nature of this rulemaking. The Interim this procedural rule that affect the noted that it had inadvertently required Final Rule addressed only the supply or distribution of these bulk manufacturers to complete and file procedures that importers and chemicals or that impose significant DEA Form 189, Application for manufacturers must follow to apply for costs on applicants. DEA notes that this Individual Manufacturing Quota for a import, manufacturing, and commenter provided almost identical Basic Class of Controlled Substance and procurement quotas for ephedrine, comments to this Interim Final Rule as for Ephedrine, Pseudoephedrine, and pseudoephedrine, and it did to DEA’s notice ‘‘Assessment of Phenylpropanolamine, on or before phenylpropanolamine. The rule did not Annual Needs for the List I Chemicals April 1 of each year for the following establish the assessment of annual Ephedrine, Pseudoephedrine, and calendar year (21 CFR 1315.22). This needs for ephedrine, pseudoephedrine, Phenylpropanolamine for 2008: differs from the requirement for and phenylpropanolamine or individual Proposed’’ [Docket No. DEA–306] (72 controlled substances; DEA Form 189 to quotas, nor did it address the FR 53911, September 20, 2007).1 DEA request manufacturing quota for any subsequent distribution of scheduled provided an extensive response to the basic class of controlled substance in listed chemical products. The Interim commenter’s economic arguments to Schedules I and II must be completed Final Rule had no impact on the that notice in its notice ‘‘Established and filed on or before May 1 of each convenience store industry, nor on the Assessment of Annual Needs for the List year for the following calendar year (21 availability of scheduled listed chemical I Chemicals Ephedrine, CFR 1303.22). To alleviate potential products at retail—either in urban or Pseudoephedrine, and confusion and ensure that the systems rural communities. Phenylpropanolamine for 2008’’ [Docket for controlled substances and Regarding the cost of the Interim Final No. DEA–306] (72 FR 73361, December ephedrine, pseudoephedrine, and Rule, as DEA discussed in that rule, the 27, 2007). phenylpropanolamine are as similar as only cost associated with this The commenter claimed that DEA had possible, DEA is revising 21 CFR rulemaking is the cost of applying for not assessed the impact on small 1315.22 to require applicants for import, manufacturing, or procurement entities. DEA, however, did precisely manufacturing quota for ephedrine, quota. DEA estimates that the cost of that even though it was not required to pseudoephedrine, and applying for a quota is about $96 for do so. The Regulatory Flexibility Act phenylpropanolamine to complete and importers and $113 for manufacturers, (RFA) applies only to rules that have file DEA Form 189 on or before May 1 which includes data collection and been proposed; it does not apply to of the year preceding the calendar year mailing. Interim Final Rules. Nonetheless, DEA for which the manufacturing quota is Regarding the commenter’s claim that did consider the issue. The Interim being applied. DEA notes that only one the Interim Final Rule was arbitrary and Final Rule simply sets out the process registrant has applied for manufacturing capricious, and that DEA should have by which importers and manufacturers quota. Therefore, DEA believes that this used notice and comment rulemaking to may apply for quotas. The costs of the change will not significantly impact any implement the provisions of CMEA, application process are very low and do registrant and will benefit the one DEA believes that it had good cause not impose a significant economic registrant that currently utilizes this under the Administrative Procedure Act impact on small entities. DEA notes that form. to publish the rule as an Interim Final distributors, such as the commenter, are Further, DEA noted that it had Rule. As DEA explained in the Interim not subject to this rule. DEA included inadvertently not revised 21 CFR Final Rule, it published this procedural the wholesale sector in its economic 1316.41, the section discussing the rule as an Interim Final Rule to ensure analysis in the Interim Final Rule scope of the subpart related to that it would have a process in place for because that is where importers are administrative hearings, to include in importers and manufacturers to apply usually classified under the North the listing of CFR sections in which for quotas. Without publication of the American Industry Classification specific procedures regarding Interim Final Rule, DEA would not be System. administrative hearings can be found able to issue quotas, but the rule does Finally, the commenter stated that the sections 1315.50–1315.62. Therefore, for not set quotas. Given that Congress rule would not affect diversion and clarity, DEA is adding these sections to mandated that these chemicals and methamphetamine abuse. Congress the listing of sections in which specific products containing these chemicals mandated these rules as part of a series procedures regarding administrative could only be imported and of actions to prevent diversion of hearings are found in 21 CFR 1316.41. manufactured if the importer or scheduled listed chemical products, and Adoption as Final Rule manufacturer had obtained a quota from the chemicals used to manufacture DEA, delaying the implementation of The Interim Final Rule amending the procedural steps for seeking quotas 1 All comments to both dockets may be found at Parts 1300 and 1315 of Title 21, Code would have cut off the supply of the http://www.regulations.gov. of Federal Regulations, which was

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published in the Federal Register on estimates that the cost of applying for a applicants by sector. Registrants must July 10, 2007 at 72 FR 37439, is hereby quota is about $96 for importers and apply for quotas for each registered adopted as a Final Rule as published, $113 for manufacturers, which includes location rather than by firm. with one change. DEA is revising the data collection and mailing. These costs Consequently, the number of provision in 21 CFR 1315.32(h) do not represent a significant economic manufacturing locations applying may regarding who may sign the required impact even on the smallest repackagers be higher than listed if the firms handle certification that an order is within the whose average revenues are above the product at multiple locations. The ordering company’s quota. This revision $54,000. The average revenues of the importers are, in some cases, also provides a benefit to registrants, smallest firms in sectors subject to the manufacturers, so that the total number permitting the signature of a rule for which the 2002 Economic of affected firms may be reduced. The certification for procurement quota to be Census has data are shown in Table 1. total number of importer registrants by an individual authorized to sign the includes firms with multiple registered registration, or a person granted power TABLE 1—AVERAGE REVENUES OF locations. of attorney to sign the certification. To SMALLEST FIRMS BY AFFECTED SEC- accomplish this, DEA is also adding a TOR TABLE 2—POTENTIAL QUOTA new 21 CFR 1315.33 to establish a APPLICANTS BY SECTOR process for granting and revoking power Average of attorney status; this section parallels Sector revenue of Type Number the provisions of 21 CFR 1305.05. smallest firms All Manufacturers ...... 240 Regulatory Certifications Small Manufacturers ...... 211 Packaging and labeling ...... $54,271 Importer Registered Locations 91 Administrative Procedure Act (5 U.S.C. Drug wholesalers ...... 127,367 Small Importer Firms ...... 42 553) Chemical wholesalers ...... 718,697 Pharmaceutical manufacturers 824,268 An agency may find good cause to Costs. As detailed in the Regulatory exempt a rule from certain provisions of Flexibility Act section, there is some the Administrative Procedure Act (5 Executive Order 12866 burden associated with applying for U.S.C. 553), including making the rule The Acting Administrator further quotas. DEA estimates that the total cost effective upon the date of publication. certifies that this rulemaking has been of the quota application process is about DEA finds good cause to make this rule drafted in accordance with the $35,880 a year. effective upon publication, as this Final principles in Executive Order 12866 Benefits. Congress, in CMEA, imposed Rule provides a benefit or relieves a Section 1(b). It has been determined that a set of requirements on the restriction by permitting the signature of this is ‘‘a significant regulatory action.’’ manufacture, import, and sale of the a certification for procurement quota to Therefore, this action has been reviewed three chemicals. These requirements, be by an individual authorized to sign by the Office of Management and taken together, are intended to limit the registration, or a person granted Budget. production and sales of these chemicals power of attorney to sign the Regulated Entities. The firms subject to that needed for legitimate purposes. certification. To accomplish this, DEA is to this rule are manufacturers and Reduction in the number of clandestine adding a new 21 CFR 1315.33 to importers. At present, only one firm in methamphetamine laboratories reduces establish a process for granting and the United States manufactures any of costs to Federal, State, and local revoking power of attorney status. The these chemicals in bulk and, therefore, governments of raiding these rest of this Final Rule merely confirms only that firm will have to apply for a clandestine operations and cleaning up existing regulatory requirements manufacturing quota. DEA reviewed a pollution at clandestine implemented as part of the Interim Final list of pseudoephedrine OTC and methamphetamine laboratory sites. As Rule published July 10, 2007 at 72 FR prescription products and ephedrine DEA detailed in its Interim Final Rule 37439. prescription products and identified implementing the retail sales provisions about 240 firms based on their labeler of CMEA (specifically 71 FR 56020, Regulatory Flexibility Act codes. Each of these firms, plus any September 26, 2006), DEA, the States, The Acting Administrator hereby firms that repackage or relabel, will and local governments spent more than certifies that this rulemaking has been need to obtain procurement quotas. $17 million in clean up costs in FY drafted in accordance with the Based on 2005 DEA data, DEA estimates 2005. This cost covers only the removal Regulatory Flexibility Act (RFA) (5 that about 69 firms with 91 locations are of chemicals that could be reused from U.S.C. 601–612). Because this rule is currently registered to import the clandestine laboratory sites; the cost of codifying statutory provisions, DEA has chemicals; these firms will need to cleaning up soil or property determined that public notice and obtain import quotas if they are actually contamination is paid by the land comment are not necessary. importing the chemicals. Although 91 owner, but if the owner cannot pay the Consequently, the RFA does not apply. locations are registered to import these cost, local governments bear the burden DEA has nonetheless considered the chemicals, import notices indicate that or the contamination remains. The costs impact of the rule on small entities. As many of these locations do not handle also do not cover the time State and discussed below, DEA estimates that the chemicals. If other firms import local governments spend investigating, about 310 firms in the manufacturing prescription drug products that contain arresting, and trying clandestine and wholesale sectors may be affected the chemicals they will also have to laboratory operators or the social costs by this rule. About 250 of these may be obtain import quotas. Based on these related to children and others exposed small entities under the Small Business data, DEA estimates that 332 locations to hazardous chemicals at these Administration definitions of small may apply for quotas if the demand for laboratories. entities. For most of these firms the the chemicals and drug products impact of the rule is very small; they are remains the same (1 bulk manufacturer, Paperwork Reduction Act required to file an annual request for 240 manufacturers, and 91 importers). This Final Rule does not change import or procurement quotas. DEA Table 2 presents the number of potential existing requirements. Therefore, the

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approved information collections that PART 1315—IMPORTATION AND phenylpropanolamine for two years were published with the Interim Final PRODUCTION QUOTAS FOR from the date of the certification. Rule are not being revised. EPHEDRINE, PSEUDOEPHEDRINE, Registrants must not fill an order from AND PHENYLPROPANOLAMINE persons required to apply for a Executive Order 12988 procurement quota under paragraph (b) ■ 1. The authority citation for part 1315 of this section unless the order is This regulation meets the applicable continues to read as follows: standards set forth in §§ 3(a) and 3(b)(2) accompanied by a certification as Authority: 21 U.S.C. 802, 821, 826, 871(b), required under this section. of Executive Order 12988, Civil Justice 952. Reform. * * * * * ■ 2. The introductory text of § 1315.22 ■ 4. Section 1315.33 is added to read as Executive Order 13132 is revised to read as follows: follows: This rulemaking does not preempt or § 1315.22 Procedure for applying for § 1315.33 Power of attorney. modify any provision of State law; nor individual manufacturing quotas. (a) A registrant may authorize one or does it impose enforcement Any person who is registered to more individuals, whether or not responsibilities on any State; nor does it manufacture ephedrine, located at his registered location, to sign diminish the power of any State to pseudoephedrine, or certifications required under enforce its own laws. Accordingly, this phenylpropanolamine and who desires § 1315.32(h) on the registrant’s behalf by rulemaking does not have federalism to manufacture a quantity of the executing a power of attorney for each implications warranting the application chemical must apply on DEA Form 189 such individual. The registrant shall of Executive Order 13132. for a manufacturing quota for the retain the power of attorney in the files, quantity of the chemical. Copies of DEA with certifications required by Unfunded Mandates Reform Act of 1995 Form 189 may be obtained from the § 1315.32(h), for the same period as any This rule will not result in the Office of Diversion Control Web site, certification bearing the signature of the expenditure by State, local, and tribal and must be filed (on or before May 1 attorney. The power of attorney must be governments, in the aggregate, or by the of the year preceding the calendar year available for inspection together with private sector, of $120,000,000 or more for which the manufacturing quota is other certification records. (adjusted for inflation) in any one year, being applied) with the Drug & (b) A registrant may revoke any power and will not significantly or uniquely Chemical Evaluation Section, Drug of attorney at any time by executing a affect small governments. Therefore, no Enforcement Administration, notice of revocation. (c) The power of attorney and notice actions were deemed necessary under Department of Justice, Washington, DC of revocation must be similar to the the provisions of the Unfunded 20537. A separate application must be following format: Mandates Reform Act of 1995. made for each chemical desired to be manufactured. The applicant must state Power of Attorney for certifications of Congressional Review Act the following: quota for procurement of ephedrine, pseudoephedrine, and * * * * * This rule is not a major rule as phenylpropanolamine defined by section 804 of the Small ■ 3. Section 1315.32(h) is revised to llllll (Name of registrant) Business Regulatory Enforcement read as follows: llllll (Address of registrant) Fairness Act of 1996 (Congressional llllll Review Act). This rule will not result in § 1315.32 Obtaining a procurement quota. (DEA registration number) an annual effect on the economy of * * * * * I, llllll (name of person $100,000,000 or more; a major increase (h) Any person to whom a granting power), the undersigned, who in costs or prices; or significant adverse procurement quota has been issued, am authorized to sign the current effects on competition, employment, authorizing that person to procure and application for registration of the above- investment, productivity, innovation, or use a quantity of ephedrine, named registrant under the Controlled on the ability of United States-based pseudoephedrine, or Substances Act or Controlled companies to compete with foreign- phenylpropanolamine during the Substances Import and Export Act, have based companies in domestic and current calendar year, must, at or before made, constituted, and appointed, and export markets. the time of placing an order with by these presents, do make, constitute, another manufacturer or importer and appoint llllll (name of List of Subjects requiring the distribution of a quantity attorney-in-fact), my true and lawful of the chemical, certify in writing to the attorney for me in my name, place, and 21 CFR Part 1315 other registrant that the quantity of stead, to sign certifications of quota for Administrative practice and ephedrine, pseudoephedrine, or procurement of ephedrine, procedure, Chemicals, Drug traffic phenylpropanolamine ordered does not pseudoephedrine, and control, Imports, Reporting and exceed the person’s unused and phenylpropanolamine in accordance recordkeeping requirements. available procurement quota of the with Part 1315 of Title 21 of the Code chemical for the current calendar year. of Federal Regulations. I hereby ratify 21 CFR Part 1316 The written certification must be and confirm all that said attorney must executed by a person authorized to sign lawfully do or cause to be done by Administrative practice and the registration application pursuant to virtue hereof. procedure, Authority delegations § 1301.13 or § 1309.32(g) of this chapter lllllllllllllllllll (Government agencies), Drug traffic or by a person granted power of attorney (Signature of person granting power) control, Research, Seizures and under § 1315.33 to sign the I, llllll (name of attorney-in- forfeitures. certifications. A copy of such fact), hereby affirm that I am the person ■ For the reasons set out above, 21 CFR certification must be retained by the named herein as attorney-in-fact and parts 1315 and 1316 are amended as person procuring the quantity of that the signature affixed hereto is my follows: ephedrine, pseudoephedrine, or signature.

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(Signature of attorney-in-fact) (set forth in §§ 1301.51–1301.57, General (Admiralty and Maritime Law) Witnesses: §§ 1303.31–1303.37, §§ 1308.41– of the Navy, under authority delegated 1. llllll 1308.51, §§ 1311.51–1311.53, by the Secretary of the Navy, has 2. llllll §§ 1312.41–1312.47, §§ 1313.51– certified that USS DALLAS (SSN 700) is 1313.57, or §§ 1315.50–1315.62) apply. a vessel of the Navy which, due to its Signed and dated on the ll day of l, special construction and purpose, (year), at llllll. Dated: November 26, 2008. Michele M. Leonhart, cannot comply fully with the following Notice of Revocation Acting Administrator. specific provisions of 72 COLREGS without interfering with its special The foregoing power of attorney is [FR Doc. E8–28651 Filed 12–2–08; 8:45 am] function as a naval ship: Rule 21(a) hereby revoked by the undersigned, BILLING CODE 4410–09–P who is authorized to sign the current pertaining to the location of the application for registration of the above- masthead lights over the fore and aft centerline of the ship. The Deputy named registrant under the Controlled DEPARTMENT OF DEFENSE Substances Act or the Controlled Assistant Judge Advocate General Substances Import and Export Act. Department of the Navy (Admiralty and Maritime Law) has also Written notice of this revocation has certified that the lights involved are been given to the attorney-in-fact 32 CFR Part 706 located in closest possible compliance llllll this same day. with the applicable 72 COLREGS lllllllllllllllllll Certifications and Exemptions Under requirements. (Signature of person revoking power) the International Regulations for Moreover, it has been determined, in Preventing Collisions at Sea, 1972 Witnesses: accordance with 32 CFR Parts 296 and 701, that publication of this amendment llllll AGENCY: Department of the Navy, DoD. 1. for public comment prior to adoption is llllll ACTION: 2. Final rule. impracticable, unnecessary, and ll l Signed and dated on the day of , contrary to public interest since it is (year), at llllll. SUMMARY: The Department of the Navy is amending its certifications and based on technical findings that the (d) A power of attorney must be exemptions under the International placement of lights on this vessel in a executed by the person who signed the Regulations for Preventing Collisions at manner differently from that prescribed most recent application for DEA Sea, 1972 (72 COLREGS), to reflect that herein will adversely affect the vessel’s registration or reregistration; the person the Deputy Assistant Judge Advocate ability to perform its military functions. to whom the power of attorney is being General (Admiralty and Maritime Law) List of Subjects in 32 CFR Part 706 granted; and two witnesses. of the Navy has determined that USS (e) A power of attorney must be DALLAS (SSN 700) is a vessel of the Marine safety, Navigation (Water), revoked by the person who signed the Navy which, due to its special and Vessels. most recent application for DEA construction and purpose, cannot ■ For the reasons set forth in the registration or reregistration, and two comply fully with certain provisions of preamble, amend Part 706 of title 32 of witnesses. the 72 COLREGS without interfering the Code of Federal Regulations as with its special function as a naval ship. follows: PART 1316—ADMINISTRATIVE The intended effect of this rule is to FUNCTIONS, PRACTICES, AND warn mariners in waters where 72 PART 706—CERTIFICATIONS AND PROCEDURES COLREGS apply. EXEMPTIONS UNDER THE DATES: This rule is effective December 3, ■ 5. The authority citation for subpart D INTERNATIONAL REGULATIONS FOR 2008, and is applicable beginning 19 of part 1316 continues to read as PREVENTING COLLISIONS AT SEA, November 2008. follows: 1972 FOR FURTHER INFORMATION CONTACT: Authority: 21 U.S.C. 811, 812, 871(b), 875, Commander M. Robb Hyde, JAGC, U.S. ■ 1. The authority citation for 32 CFR 958(d), 965. Navy, Deputy Assistant Judge Advocate Part 706 continues to read as follows: ■ 6. Section 1316.41 is revised to read General (Admiralty and Maritime Law), Authority: 33 U.S.C. 1605. as follows: Office of the Judge Advocate General, Department of the Navy, 1322 Patterson ■ 2. Section 706.2 is amended as § 1316.41 Scope of subpart D. Ave., S.E, Suite 3000, Washington Navy follows: Procedures in any administrative Yard, DC 20374–5066, telephone ■ A. In Table Two by adding, in hearing held under the Act are governed number: 202–685–5040 numerical order, the following entry for generally by the rule making and/or SUPPLEMENTARY INFORMATION: Pursuant USS DALLAS (SSN 700): adjudication procedures set forth in the to the authority granted in 33 U.S.C. Administrative Procedure Act (5 U.S.C. 1605, the Department of the Navy § 706.2 Certifications of the Secretary of 551–559) and specifically by the amends 32 CFR Part 706. the Navy under Executive Order 11964 and procedures set forth in this subpart, This amendment provides notice that 33 U.S.C. 1605. except where more specific regulations the Deputy Assistant Judge Advocate * * * * *

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TABLE TWO *******

AFT anchor Side lights, Masthead Forward light, Side lights, distance Side lights, lights, anchor light, Forward distance AFT anchor distance forward of distance distance to distance anchor light, below flight light, below flight forward inboard of Vessel Number stbd of keel below flight number of; dk in me- number of; dk in masthead ship’s sides in meters; dk in me- Rule ters; Rule Rule meters; light in me- in meters; Rule 21(a) ters; § 2(K), 30(a)(i) 21(e), Rule 30(a)(ii) § 2(g), ters; § 3(b), § 3(b), Annex I 30(a)(ii) Annex I Annex I Annex I

******* USS DALLAS ...... SSN 700 .... 0.41 ......

* * * * * rule is to warn mariners in waters where Moreover, it has been determined, in Approved: November 19, 2008. 72 COLREGS apply. accordance with 32 CFR Parts 296 and M. Robb Hyde, DATES: This rule is effective December 3, 701, that publication of this amendment for public comment prior to adoption is Commander, JAGC, U.S. Navy, Deputy 2008 and is applicable beginning 4 Assistant Judge Advocate General (Admiralty November 2008. impracticable, unnecessary, and and Maritime Law). FOR FURTHER INFORMATION CONTACT: contrary to public interest since it is Dated: November 25, 2008. Commander M. Robb Hyde, JAGC, U.S. based on technical findings that the T.M. Cruz, Navy, Deputy Assistant Judge Advocate placement of lights on this vessel in a manner differently from that prescribed Lieutenant Commander, Office of the Judge General (Admiralty and Maritime Law), Advocate General, U.S. Navy, Federal Office of the Judge Advocate General, herein will adversely affect the vessel’s Register Liaison Officer. Department of the Navy, 1322 Patterson ability to perform its military functions. [FR Doc. E8–28647 Filed 12–2–08; 8:45 am] Ave., SE., Suite 3000, Washington Navy List of Subjects in 32 CFR Part 706 BILLING CODE 3810–FF–P Yard, DC 20374–5066, telephone number: 202–685–5040. Marine Safety, Navigation (Water), SUPPLEMENTARY INFORMATION: Pursuant and Vessels. DEPARTMENT OF DEFENSE to the authority granted in 33 U.S.C. ■ 1605, the Department of the Navy For the reasons set forth in the Department of the Navy amends 32 CFR Part 706. preamble, amend part 706 of title 32 of The Secretary of the Navy previously the Code of Federal Regulations as 32 CFR Part 706 certified that USS DWIGHT D. follows: EISENHOWER (CVN 69) is a vessel of PART 706—CERTIFICATIONS AND Certifications and Exemptions Under the Navy which, due to its special the International Regulations for construction and purpose, cannot fully EXEMPTIONS UNDER THE Preventing Collisions at Sea, 1972 comply with 72 COLREGS. This INTERNATIONAL REGULATIONS FOR amendment provides notice that the PREVENTING COLLISIONS AT SEA, AGENCY: Department of the Navy, DoD. 1972 ACTION: Final rule. Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) ■ 1. The authority citation for 32 CFR SUMMARY: The Department of the Navy of the Navy, under authority delegated is amending its certifications and by the Secretary of the Navy, has Part 706 continues to read as follows: exemptions under the International amended that certification to reflect that Authority: 33 U.S.C. 1605. Regulations for Preventing Collisions at certain anchor lights on USS DWIGHT Sea, 1972 (72 COLREGS), to reflect that D. EISENHOWER (CVN 69), previously ■ 2. Section 706.2 is amended as the Deputy Assistant Judge Advocate certified as not in compliance with 72 follows: General (Admiralty and Maritime Law) COLREGS, now comply with the ■ A. In Table Two by revising, in of the Navy has determined that USS applicable 72 COLREGS requirements, numerical order, the following entry for DWIGHT D. EISENHOWER (CVN 69) is to wit: The two aft anchor lights located USS DWIGHT D. EISENHOWER (CVN a vessel of the Navy which, due to its below the flight deck were removed and 69): special construction and purpose, replaced by a single new aft anchor light cannot comply fully with certain above the hull and near ship’s fore-aft § 706.2 Certifications of the Secretary of provisions of the 72 COLREGS without centerline, as required by Rules 21(e), the Navy under Executive Order 11964 and interfering with its special function as a 30(a)(i) and 30(a)(ii). The side lights 33 U.S.C. 1605. naval ship. The intended effect of this were also raised closer to compliance. * * * * *

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TABLE TWO *******

AFT anchor Side lights, Masthead Forward an- light, dis- Side lights, distance for- Side lights, lights, dis- chor light, Forward an- tance below AFT anchor distance ward of for- distance in- tance to distance chor light, flight dk in light, num- below flight ward mast- board of Vessel Number stbd of keel below flight number of; meters; ber of; Rule dk in me- head light in ship’s sides in meters; dk in me- Rule Rule 21(e), 30(a)(ii) ters; § 2(g), meters; in meters; Rule 21(a) ters; § 2(K), 30(a)(i) Rule Annex I § 3(b), § 3(b), Annex I 30(a)(ii) Annex I Annex I

******* USS DWIGHT D. EISEN- CVN–69 ..... 31.0 ...... 0.2 ...... HOWER.

* * * * * 2008, we proposed to establish a new 38 shall ‘‘take into consideration the need Approved: November 4, 2008. CFR part 53 consisting of regulations for flexibility and innovation.’’ They M. Robb Hyde, captioned ‘‘PAYMENTS TO STATES asserted that the proposed definition of FOR PROGRAMS TO PROMOTE THE nurse should be changed to remove its Commander, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General (Admiralty HIRING AND RETENTION OF NURSES restriction to those who are bedside care and Maritime Law). AT STATE VETERANS HOMES’’ givers at least a majority of the time, and Dated: November 25, 2008. (referred to below as the proposed should not generally exclude such regulations). This document adopts as a individuals as those acting in the T.M. Cruz, final rule, with changes discussed capacity of an advance practice nurse, Lieutenant Commander, Office of the Judge below, those proposed regulations. This an administrative nurse, or a director of Advocate General, U.S. Navy, Federal final rule sets forth a mechanism and nursing. We made no changes based on Register Liaison Officer. criteria for a State to obtain payments these comments. [FR Doc. E8–28646 Filed 12–2–08; 8:45 am] from VA to assist a State Veterans Home Even if the statute and its legislative BILLING CODE 3810–FF–P (SVH) in the hiring and retention of history are viewed as permitting VA to nurses for the purpose of reducing establish a more expansive definition of nursing shortages at that home. The the term ‘‘nurse’’ than we proposed, we DEPARTMENT OF VETERANS final rule establishes regulations do not agree with the commenters’ AFFAIRS concerning provisions in section 201 of argument that the proposed definition is the Veterans Health Programs not a permissible one under the statute. 38 CFR Part 53 Improvement Act of 2004 (Pub. L. 108– The provisions of 38 U.S.C. 1744(c) and RIN 2900–AM26 422), which are codified at 38 U.S.C. (j) authorize VA to establish criteria for 1744. the award of payments and we believe Assistance to States in Hiring and We provided a 60-day comment that VA therefore has authority for the Retaining Nurses at State Veterans period that ended June 10, 2008. We provisions in the proposed rule that, Homes received four submissions containing a through the definition of ‘‘nurse,’’ limit number of comments that are all the nurses for whom VA assistance may AGENCY: Department of Veterans Affairs. discussed below. be provided. The greatest need for ACTION: Final rule. nurses is for those who are bedside care Definition of Nurse SUMMARY: The Department of Veterans givers at least a majority of the time and The proposed regulations at § 53.02 Affairs (VA) hereby establishes a final we have determined that we can best defined the term ‘‘nurse’’ to include rule setting forth a mechanism for States use the available funding for recruiting only those who are bedside care givers to obtain payments from VA to assist a and retaining such nurses. In at least a majority of the time. State veterans home in the hiring and establishing criteria for programs to be Consequently, the proposed regulations retention of nurses for the purpose of awarded payments, the need for would allow payments only to promote reducing nursing shortages at the home. flexibility and innovation is not the only the hiring and retention of those nurses This rule implements provisions of the permissible consideration. Our licensed or certified, as described in the consideration of the need for flexibility Veterans Health Programs Improvement proposed definition, and who are Act of 2004. and innovation has been reflected in the bedside care givers at least a majority of preambles and text of the proposed rule DATES: Effective Date: This final rule is the time. In support of this definition, and of this final rule. effective January 2, 2009. the proposed rule noted that the FOR FURTHER INFORMATION CONTACT: applicable legislative history (H. Rep. Credible Evidence Jacquelyn Bean, Chief, State Veterans No. 108–538 at 5 (2004)) indicates that The provisions of proposed Home Per Diem Program, at (202) 461– the statutory provisions were intended § 53.11(a)(3) would require, as a 6771, or Christa M. Hojlo, PhD, Director, to assist State homes ‘‘in hiring nurses condition of receiving assistance, that State Veterans Home Clinical and to care for veterans.’’ Two commenters the State applicant document by Survey Oversight, at (202) 461–6779; asserted that VA has misinterpreted 38 credible evidence that an individual Veterans Health Administration (114), U.S.C. 1744 and its legislative history. SVH has a nursing shortage. One Department of Veterans Affairs, 810 With respect to the statute, the commenter raised a number of issues Vermont Avenue, NW., Washington, DC comments specifically discussed regarding the submission of such 20420. (These are not toll-free numbers.) paragraphs (a) and (b), and the final evidence. SUPPLEMENTARY INFORMATION: In a sentence of paragraph (c), which states The commenter questioned whether a document published in the Federal that when prescribing criteria for State applicant would necessarily have Register (73 FR 19785) on April 11, programs to be funded, the Secretary to provide an application for each

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individual SVH within the State or would also use similar experiences with years is not feasible.’’ We made no whether general documentation could other programs and apply our expertise changes based on this comment. We be used for groups of SVHs within the to analyze such programs in note that this was not an absolute since State. We made no changes based on determining whether they are likely to the text included the language ‘‘insofar this comment. The provisions of 38 be effective. as possible.’’ It certainly may not always U.S.C. 1744(e) require that be possible to eliminate a nursing Existing Projects documentation be provided for each shortage within this 3-year period, but SVH (‘‘Any such application shall One commenter interpreted the term we believe that such plans should, describe the nursing shortage at the ‘‘improvements to working conditions’’ insofar as possible, be designed in State home. * * *’’) in proposed § 53.11(b) to permit an accordance with this 3-year target. The commenter asserted that general employee incentive project to improve criteria that set thresholds for defining ‘‘working areas.’’ The commenter asked Student Forgiveness Programs a nursing shortage would be preferable whether a project to improve working The proposed regulations at § 53.11(b) to the proposed rule’s provisions in areas could qualify under a State home stated that VA intends to allow § 53.11 for documentation of a nursing construction grant and also qualify for flexibility and innovation in shortage, and that any SVH meeting the payment under the hiring and retention determining the types of employee criteria should be able to submit an program. The commenter also asked incentive programs at SVHs eligible for application. We made no changes based whether such projects would be payments. This paragraph further stated on this comment as each SVH could reviewed in a manner similar to that that programs could include such things have a distinct factual scenario that used for SVH construction grants. The as the provision of short-term would be subjected to specific criteria in statutory authority for the nurse hiring scholarships for continuing nursing § 53.11. and retention program does not education, sign-on bonuses for nurses, The commenter asked, what is the contemplate providing funds for and improvements to working acceptable standard for ‘‘credible construction projects. In addition, VA conditions. One commenter asserted evidence;’’ and further questioned already has separate statutory authority that the regulations should specifically whether the States would need to hire that permits funding projects to remodel state that the regulations allow student an independent consultant to prepare or alter working areas, under 38 U.S.C. forgiveness programs. We agree that the their submission. We made no changes 8131–8137. We interpret these statutory student forgiveness programs could based on these comments. The proposed authorities to require that State effectively help eliminate nursing regulations at § 53.11(a)(3) provided a applications for VA funding of all such shortages and in the final rule we are list of types of evidence that could be construction projects be submitted adding it to the list of examples. submitted to establish a nursing under the State home construction grant Application Submissions shortage, i.e., ‘‘including but not limited program. Based on this comment, the to SVH records showing nursing final rule makes changes from the Under the provisions of proposed vacancies, SVH records showing nurse proposed regulation in § 53.11(a) by § 53.20(a), applications must be overtime use, and reports documenting adding a new paragraph, § 53.11(a)(10), submitted during the first quarter of the that nurses are difficult to hire in the to provide that payments will not be fiscal year in which VA payments are local area and difficult to retain as made for projects that involve sought. One commenter asserted that employees at the SVH.’’ A State could constructing, acquiring, expanding, the application window should be certainly choose to utilize consultants to remodeling, or altering State homes. changed to the last quarter of the gain information, but this is not a preceding Federal Fiscal Year (FFY) so requirement. Funding Projects that approved expenditures can begin One commenter asserted that ‘‘the with the start of the FFY in which funds Programs With No Experience proposed program is looking at a three- are to be expended. We agree with the The provisions of proposed year window for an incentive program suggested change and the rationale for § 53.11(a)(5) would require, as a to be successful with funding coming on the change. In the final rule, we changed condition of receiving assistance, that an annual basis’’ and suggested that VA the provisions of § 53.20(a), and a the SVH submit documentation provide assurance that, if appropriations related reference to that quarter in establishing that it has an employee are made by Congress, VA would not for § 53.20(c), accordingly. We have also incentive program that (i) is likely to be other reasons refrain from continuing to added ‘‘Federal’’ in this section and effective in promoting the hiring and fund a program that would take 3 years elsewhere to clarify references to ‘‘fiscal retention of nurses for the purpose of to complete. We made no changes based year’’. reducing nursing shortages at that home, on this comment. VA needs to be able Insufficient Information and (ii) is in operation or ready for consider other factors in addition to immediate implementation upon receipt appropriations in determining whether Under the provisions of proposed of payments. One commenter asked to again fund a particular program. § 53.20(c), if an application does not what evidence would be necessary to contain sufficient information, VA show likely effectiveness of a new Eliminating Nurse Shortages Within 3 would notify the State representative in program for which there is no Years writing that the State has 30 calendar experience upon which to document Under the provisions of proposed days from the date of the notice to success. We made no changes based on § 53.11(a)(7), as a condition of receiving submit such additional information or this comment. To determine whether assistance the SVH program must no further action would be taken. These this condition has been satisfied, we ‘‘insofar as possible’’ be designed to provisions also contain a mechanism for would review all relevant information eliminate any nursing shortage at the extending the 30-day period based on provided, including information about SVH within a 3-year period from the good cause. One commenter asserted the program’s design and the applicant’s initiation of VA payments. One that the time might be sufficient if the description of how the program would commenter asserted that ‘‘the notice was provided electronically but it eliminate the nursing shortage, as well requirement to put a plan in place that may not be sufficient if provided by as how long it would take to do so. We will eliminate all nursing shortages in 3 mail. We are making a change in the

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final rule in § 53.20(c) to specify that in a rule that may: (1) Have an annual displaying OMB control number 2900– such notice be given ‘‘in writing effect on the economy of $100 million 0709. (electronically and by mail).’’ We agree or more or adversely affect in a material Regulatory Flexibility Act with the commenter that it would be way the economy, a sector of the appropriate to provide electronic notice economy, productivity, competition, The Secretary hereby certifies that and that this would enable the SVH to jobs, the environment, public health or this rule would not have a significant have more time to reply. We agree for safety, or State, local, or tribal economic impact on a substantial the reason stated by the commenter and governments or communities; (2) create number of small entities as they are have made appropriate changes to a serious inconsistency or otherwise defined in the Regulatory Flexibility § 53.20(c). The commenter also asserted interfere with an action taken or Act, 5 U.S.C. 601–612. The funding for that there should be provision to allow planned by another agency; (3) this program would be made by the an extension beyond the 30 days if the materially alter the budgetary impact of Federal government. The amount information required by VA will take entitlements, grants, user fees, or loan contributed by a SVH to fund an longer than 30 days to obtain and programs or the rights and obligations of incentive program would be an submit. We made no changes based on recipients thereof; or (4) raise novel insignificant amount of the costs for this comment. The proposed regulations legal or policy issues arising out of legal operating the SVH. Therefore, pursuant at § 53.20(c) already would provide for mandates, the President’s priorities, or to 5 U.S.C. 605(b), this rule is exempt extensions based on good cause. the principles set forth in the Executive from the initial and final regulatory Nurse Training Costs; Nurses From Order. flexibility analysis requirements of Other Countries The economic, interagency, sections 603 and 604. budgetary, legal, and policy One commenter asked why we are Catalog of Federal Domestic Assistance implications of this rule have been ‘‘allowing the situation with the very examined and it has been determined to high tuition for nursing school to go The Catalog of Federal Domestic be a significant regulatory action under unchanged’’ and asserted that if nurses Assistance numbers and titles for the Executive Order 12866. were trained on the job at hospitals the programs affected by this document are market could be flooded with nurses. Unfunded Mandates 64.005, Grants to States for Construction The commenter also indicated her of State Home Facilities; 64.007, Blind The Unfunded Mandates Reform Act opposition to ‘‘importing nurses from Rehabilitation Centers; 64.008, Veterans requires, at 2 U.S.C. 1532, that agencies other countries.’’ We made no changes Domiciliary Care; 64.009, Veterans prepare an assessment of anticipated based on this comment. The substance Medical Care Benefits; 64.010, Veterans costs and benefits before issuing any of the comment is outside the scope of Nursing Home Care; 64.011, Veterans rule that may result in expenditure by our authority for this rulemaking Dental Care; 64.012, Veterans State, local, or tribal governments, in the proceeding. However, we note that the Prescription Service; 64.013, Veterans aggregate, or by the private sector, of final rule does make a change to list Prosthetic Appliances; 64.014, Veterans $100 million or more (adjusted annually student forgiveness programs as one of State Domiciliary Care; 64.015, Veterans for inflation) in any given year. This the types of incentives permitted. State Nursing Home Care; 64.016, The final rule also differs from the rule would have no such effect on State, Veterans State Hospital Care; 64.018, proposed rule by adding parentheticals local, or tribal governments, or on the Sharing Specialized Medical Resources; displaying the information collection private sector. 64.019, Veterans Rehabilitation— control number assigned by the Office of Paperwork Reduction Act of 1995 Alcohol and Drug Dependence; 64.022, Management and Budget (OMB) Veterans Home Based Primary Care; and following the sections that contain OMB assigns a control number for 64.026, Veterans State Adult Day Health information collection provisions. In each collection of information it Care. approves. Except for emergency addition, the final rule differs from the List of Subjects in 38 CFR Part 53 proposed rule due by making approvals under 44 U.S.C. 3507(j), VA nonsubstantive clarifying or technical may not conduct or sponsor, and a Administrative practice and changes. person is not required to respond to, a procedure, Adult day health care, Based on the rationale in the collection of information unless it Alcohol abuse, Alcoholism, Claims, Day proposed rule and in this document, the displays a currently valid OMB control care, Dental health, Drug abuse, Foreign provisions of the proposed rule are number. relations, Government contracts, Grant adopted as a final rule with changes In the proposed rule, we stated that programs—health, Grant programs— discussed in this preamble. proposed §§ 53.11, 53.20, 53.31, and veterans, Health care, Health facilities, 53.40 contain collection of information Health professions, Health records, Executive Order 12866 provisions under the Paperwork Homeless, Medical and Dental schools, Executive Order 12866 directs Reduction Act of 1995 (44 U.S.C. 3501– Medical devices, Medical research, agencies to assess all costs and benefits 3521), and that we had requested public Mental health programs, Nursing of available regulatory alternatives, and comment on those provisions in notices homes, Philippines, Reporting and when regulation is necessary, to select published in the Federal Register. recordkeeping requirements, regulatory approaches that maximize Those notices were published on April Scholarships and fellowships, Travel net benefits (including potential 2, 2007 (72 FR 15763), and June 27, and transportation expenses, Veterans. economic, environmental, public health 2007 (72 FR 35303). We did not receive Approved: September 9, 2008. and safety, and other advantages; any comments on the proposed Gordon H. Mansfield, distributive impacts; and equity). The collections of information, which OMB Executive Order classifies a regulatory has approved through February 28, Deputy Secretary of Veterans. action as a ‘‘significant regulatory 2011, under control number 2900–0709. ■ For the reasons set forth in the action,’’ requiring review by OMB Following each of those sections in this preamble, the Department of Veterans unless OMB waives such review, if it is final rule, we set out an information Affairs amends 38 CFR chapter I by a regulatory action that is likely to result collection approval parenthetical adding part 53 to read as follows:

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PART 53—PAYMENTS TO STATES § 53.10 Decision makers, notifications, and (8) The SVH, if it received payments FOR PROGRAMS TO PROMOTE THE additional information. under this part during a previous HIRING AND RETENTION OF NURSES The Chief Consultant, Geriatrics and Federal fiscal year, has met the AT STATE VETERANS HOMES Extended Care, will make all reporting requirements of § 53.31(a) determinations regarding payments regarding such payments; Sec. under this part, and will provide written (9) The SVH credits to its employee 53.1 Purpose and scope. notice to affected State representatives incentive program any funds refunded 53.2 Definitions. of approvals, denials, or requests for to the SVH by an employee because the 53.10 Decision makers, notifications, and additional information under this part. employee was in breach of an agreement additional information. for employee assistance funded with 53.11 General requirements for payments. (Authority: 38 U.S.C. 101, 501, 1744) 53.20 Application requirements. payments made under this part and the 53.30 Payments. § 53.11 General requirements for SVH credits the amount returned as a 53.31 Annual report. payments. non-Federal funding source; and 53.32 Recapture provisions. (a) VA will make payment under this (10) The project does not involve the 53.40 Submissions of information and part to a State for an employee incentive construction, acquisition, expansion, documents. program to reduce the shortage of nurses remodeling or alteration of the SVH. 53.41 Notification of funding decision. at the SVH, when the following (b) VA intends to allow flexibility and innovation in determining the types of Authority: 38 U.S.C. 101, 501, 1744. conditions are met: employee incentive programs at SVHs (1) The State representative applies § 53.1 Purpose and scope. eligible for payments. Programs could for payment in accordance with the include such things as the provision of provisions of § 53.20; In accordance with the provisions of short-term scholarships for continuing (2) The SVH receives per diem 38 U.S.C. 1744, this part sets forth the nursing education, sign-on bonuses for payments from VA under the provisions mechanism for a State to obtain nurses, student loan forgiveness of 38 U.S.C. 1741 for one or more of the payments to assist a State Veterans programs, and improvements to working following: Adult day health care, Home (SVH) in the hiring and retention conditions. In determining whether an of nurses for the purpose of reducing domiciliary care, hospital care, or employee incentive program is likely to nursing shortages at that SVH. nursing home care; be effective, VA will consider any (Authority: 38 U.S.C. 101, 501, 1744) (3) The SVH has a nursing shortage information available, including past that is documented by credible performance of the SVH’s program § 53.2 Definitions. evidence, including but not limited to funded by payments made under this SVH records showing nursing For the purpose of this part: part. vacancies, SVH records showing nurse Nurse means an individual who is a overtime use, and reports documenting (Authority: 38 U.S.C. 101, 501, 1744) registered nurse, a licensed practical that nurses are difficult to hire in the (The Office of Management and Budget has nurse, a licensed vocational nurse, or a local area and difficult to retain as approved the information collection nursing assistant certified in the State in employees at the SVH; provisions in this section under control which payment is made and who is a (4) The SVH does not use payments number 2900–0709.) bedside caregiver at least a majority of under this part to pay for all or part of § 53.20 Application requirements. the time (e.g., this would generally not a nurse’s standard employee benefits, (a) To apply for payments during a include an individual acting in the such as salary, health insurance, or Federal fiscal year, a State capacity of an advance practice nurse, retirement plan; representative must submit to VA, in an administrative nurse, or a director of (5) The SVH provides to the Chief accordance with § 53.40, a completed nursing) (the terms nurses and nursing Consultant, Geriatrics and Extended VA Form 10–0430 and documentation shall be construed consistent with this Care, documentation establishing that it specified by the form (VA Form 10– definition). has an employee incentive program that: 0430 is available at VA medical centers State means each of the several States, (i) Is likely to be effective in and on the Internet at http:// Territories, and possessions of the promoting the hiring and retention of www1.va.gov/geriatricsshg/ or may be United States, the District of Columbia, nurses for the purpose of reducing obtained by contacting the Geriatrics and the Commonwealth of Puerto Rico. nursing shortages at that home, and and Extended Care Office (114) at 202– State representative means the official (ii) Is in operation or ready for 461–6750, VHA Headquarters, 810 designated in accordance with State immediate implementation if VA Vermont Avenue, NW., Washington, DC authority with responsibility for matters payments are made under this part; 20420). The submission for payments relating to payments under this part. (6) The payment amount applied for for a fiscal year must be received by VA by the State is no more than 50 percent during the last quarter (July 1– State Veterans Home (SVH) means a of the funding for the employee September 30) of the preceding fiscal home approved by the Department of incentive program during the Federal year. The State must submit a new Veterans Affairs (VA) which a State fiscal year; application for each fiscal year that the established primarily for veterans (7) The SVH employee incentive State seeks payments for an incentive disabled by age, disease, or otherwise, program includes a mechanism to program. who by reason of such disability are ensure that an individual receiving (b) As part of the application, the incapable of earning a living. A SVH benefits under the program works at the State representative must submit to VA may provide domiciliary care, nursing SVH as a nurse for a period evidence that the State has sufficient home care, adult day health care, and commensurate with the benefits funding, when combined with the VA hospital care. Hospital care may be provided, and, insofar as possible, the payments, to fully operate its employee provided only when the SVH also program is designed to eliminate any incentive program through the end of provides domiciliary and/or nursing nursing shortage at the SVH within a 3- the fiscal year. To meet this home care. year period from the initiation of VA requirement, the State representative (Authority: 38 U.S.C. 101, 501, 1744) payments; must provide to VA a letter from an

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authorized State official certifying that, § 53.31 Annual report. ENVIRONMENTAL PROTECTION if VA were to approve payments under (a) A State receiving payment under AGENCY this part, the non-VA share of the funds this part shall provide to VA a report for the program would be by a date or 40 CFR Part 52 setting forth in detail the use of the dates specified in the certification, funds, including a descriptive analysis [EPA–R06–OAR–2007–0523; FRL–8747–6] available for the employee incentive of how effective the employee incentive program without further State action to Approval and Promulgation of make such funds available. If the program has been in improving nurse staffing in the SVH. The report shall be Implementation Plans; Texas; Control certification is based on a State law of Emissions of Nitrogen Oxides (NO ) provided to VA within 60 days of the X authorizing funds for the employee From Stationary Sources incentive program, a copy of the State close of the Federal fiscal year law must be submitted with the (September 30) in which payment was AGENCY: Environmental Protection certification. made and shall be subject to audit by Agency (EPA). (c) If an application does not contain VA. ACTION: Final rule. sufficient information for a (b) A State receiving payment under SUMMARY: determination under this part, the State this part shall also prepare audit reports The EPA is finalizing approval of rules for the control of NO representative will be notified in writing as required by the Single Audit Act of X emissions into the Texas State (electronically and by mail) of any 1984 (see 38 CFR part 41) and submit Implementation Plan (SIP). Texas additional submission required and that them to VA. the State has 30 calendar days from the submitted this SIP revision to us on May date of the notice to submit such (Authority: 38 U.S.C. 101, 501, 1744) 30, 2007 (May 30, 2007 SIP revision), additional information or no further (The Office of Management and Budget has and we proposed approval of the May action will be taken. If the State approved the information collection 30, 2007 SIP revision on July 11, 2008. representative does not submit all of the provisions in this section under control The May 30, 2007 SIP revision to the required information or demonstrate number 2900–0709.) Texas SIP is a substantive and non- that he or she has good cause for failing substantive recodification and § 53.32 Recapture provisions. to provide the information within 30 reformatting of the NOX rules currently calendar days of the notice (which may If a State fails to use the funds approved in the Texas SIP, and also includes a part of the Nitrogen Oxides extend beyond the last quarter of the provided under this part for the purpose (NO ) reductions needed for the Dallas/ preceding Federal fiscal year), then the for which payment was made or X Forth Worth (D/FW) area to attain the State applicant will be notified in receives more than is allowed under this writing that the application for VA Federal 8-hour ozone National Ambient part, the United States shall be entitled Air Quality Standard (NAAQS). Today’s assistance will be deemed withdrawn to recover from the State the amount not and no further action will be taken. final rulemaking covers four separate used for such purpose or the excess actions. First, we are approving the (Authority: 38 U.S.C. 101, 501, 1744) amount received. repeal, from the Texas SIP, of the (The Office of Management and Budget has (Authority: 38 U.S.C. 101, 501, 1744) current Chapter 117 rules that approved the information collection correspond to the re-codified new rules provisions in this section under control § 53.40 Submissions of information and and the revised and reformatted rules number 2900–0709.) documents. because the reformatted revision will § 53.30 Payments. All submissions of information and better accommodate future additions/ revisions to the rules. Second, we are (a) The amount of payments awarded documents required to be presented to VA must be made to the Chief approving revisions to the Texas SIP under this part during a Federal fiscal that add new controls for the D/FW year will be the amount requested by Consultant, Geriatrics and Extended major NOX point sources. We are not, the State and approved by VA in Care (114), VHA Headquarters, 810 Vermont Avenue, NW., Washington, DC however, taking action on the Texas accordance with this part. Payments rules for cement plants in this 20420. may not exceed 50 percent of the cost document. We proposed approval of the of the employee incentive program for (Authority: 38 U.S.C. 101, 501, 1744) rules for cement plants in a separate that fiscal year and may not exceed 2 Federal Register document. Third, we percent of the amount of the total per (The Office of Management and Budget has are approving revisions to the Texas SIP diem payments estimated by VA to be approved the information collection that add new controls for D/FW minor made under 38 U.S.C. 1741 to the State provisions in this section under control NOX sources. Fourth, we are approving for that SVH during that fiscal year for number 2900–0709.) revisions to the Texas SIP that add new adult day health care, domiciliary care, controls for combustion sources in East hospital care, and nursing home care. § 53.41 Notification of funding decision. Texas. These NOX reductions will assist (b) Payments will be made by lump If the Chief Consultant, Geriatrics and the D/FW area to attain the 8-hour sum or installment as deemed Extended Care, determines that a ozone NAAQS. We are approving all of appropriate by the Chief Consultant, submission from a State fails to meet the these actions as meeting the Geriatrics and Extended Care. requirements of this part for funding, requirements of section 110 and part D (c) Payments will be made to the State the Chief Consultant shall provide of the Federal Clean Air Act (the Act). or, if designated by the State written notice of the decision and the DATES: This rule will be effective on representative, the SVH conducting the reasons for the decision. January 2, 2009. employee incentive program. (Authority: 38 U.S.C. 101, 501, 1744) ADDRESSES: The EPA has established a (d) Payments made under this part for [FR Doc. E8–28542 Filed 12–2–08; 8:45 am] docket for this action under Docket ID a specific employee incentive program No. EPA–R06–OAR–2007–0523. All shall be used solely for that purpose. BILLING CODE 8320–01–P documents in the docket are listed on (Authority: 38 U.S.C. 101, 501, 1744) the www.regulations.gov Web site.

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Although listed in the index, some engines in the D/FW area that we are Texas SIP, a new reformatted Chapter information is not publicly available, approving? 117. We are approving the repeal of the e.g., Confidential Business Information M. What are the NOX emissions current Chapter 117, and the specifications for minor sources of NOX or other information whose disclosure is in the D/FW area that we are approving? recodification and reformatting of restricted by statute. Certain other N. What are the NOX emissions Chapter 117 because the reformatted material, such as copyrighted material, requirements for stationary reciprocating revision will better accommodate future is not placed on the Internet and will be internal combustion engines (RICE) in additions/revisions to the rules and will publicly available only in hard copy East Texas that we are approving? maintain consistency between the State form. Publicly available docket O. What are the NOX emissions requirements for state-wide water rules and Federal SIP. We are approving materials are available either all of the non-substantive reformatted, electronically through heaters, small boilers, and process heaters that we are approving? restructured, renumbered, reorganized, www.regulations.gov or in hard copy at P. What are the compliance schedules for and administrative revisions to the the Air Planning Section (6PD–L), NOX emissions sources that we are wording of Chapter 117 into Texas SIP. Environmental Protection Agency, 1445 approving? In our proposal, we clarified that the Ross Avenue, Suite 700, Dallas, Texas II. Final Action 75202–2733. The file will be made III. Statutory and Executive Order Reviews specifically identified rules do not make any changes to the substance of the available by appointment for public I. Background inspection in the Region 6 FOIA Review rules that we previously approved into Room between the hours of 8:30 a.m. A. What actions are we approving? the Texas SIP, Chapter 117. By and 4:30 p.m. weekdays except for legal On May 30, 2007, TCEQ submitted approving the repeal of the current holidays. Contact the person listed in rule revisions to 30 TAC, Chapter 117, Chapter 117 from the Texas SIP, and the FOR FURTHER INFORMATION CONTACT ‘‘Control of Air Pollution from Nitrogen approving the new Chapter 117’s rules paragraph below to make an Compounds,’’ as a revision to the Texas into the Texas SIP, we are making it clear that the new rules replace the appointment. If possible, please make SIP for point sources of NOX (May 30, the appointment at least two working 2007 SIP revision). The State of Texas previous rules in their entirety. We are days in advance of your visit. There will submitted the May 30, 2007 SIP revision approving these non-substantive be a 15 cent per page fee for making to us, to, among other things, provide a reformatted, restructured, renumbered, photocopies of documents. On the day portion of the NOX reductions needed reorganized, and administrative of the visit, please check in at the EPA for the D/FW area to attain the Federal revisions to the wording of Chapter 117 Region 6 reception area at 1445 Ross 8-hour ozone NAAQS. under section 110 and part D of the Act. Avenue, Suite 700, Dallas, Texas. On July 11, 2008 (73 FR 39900) we For a full list of affected sections see FOR FURTHER INFORMATION CONTACT: Mr. proposed approval of the May 30, 2007 section C of this document. Alan Shar, Air Planning Section (6PD– SIP revision. The public comment Second, we are approving revisions to period for our proposal expired on L), Environmental Protection Agency, the D/FW NO major point source rules. Region 6, 1445 Ross Avenue, Suite 700, August 11, 2008. X Sections 117.410(a), 117.410(b) and Dallas, Texas 75202–2733, telephone We received relevant comments from 117.310(b) contain substantive changes (214) 665–6691, fax (214) 665–7263, e- TCEQ on our July 11, 2008 (73 FR mail address [email protected]. 39900) publication, correcting or in the reformatted Chapter 117 rules that result in additional NO SUPPLEMENTARY INFORMATION: clarifying some of the citations used in X reductions. These reductions were not Throughout this document ‘‘we,’’ ‘‘us,’’ our proposed approval document. We and ‘‘our’’ refer to EPA. appreciate the State’s input, and have previously a part of EPA-approved accordingly corrected those citations in Texas SIP, Chapter 117. Table of Contents today’s final document. See our Third, we are approving revisions to I. Background Technical Support Document (TSD) the D/FW minor source rules for the A. What actions are we approving? prepared in conjunction with today’s control of NOX. Section 117.2110(a) B. What is the relationship between the final action for more information. contains substantive changes in the May 30, 2007 SIP revision and the ozone We received no other comments on attainment demonstration plan for the D/ reformatted Chapter 117 rules that result our proposed approval of the May 30, in additional NO reductions which FW area? 2007 SIP revision. Therefore, we are X will help the D/FW area to attain the C. What sections of the May 30, 2007, SIP finalizing our July 11, 2008 proposal (73 revision will become part of Texas SIP? 1997 8-hour ozone standard. These D. What sections of the May 30, 2007, SIP FR 39900), except section 117.9810, rulemaking action, today. We will act on reductions were not previously a part of revision will not become part of Texas EPA-approved Texas SIP, Chapter 117. SIP? section 117.9810 in a separate E. What sections of the May 30, 2007, SIP rulemaking action in future 1. We are Fourth, we are proposing to approve revision are we reviewing in another taking four separate actions in today’s revisions to the rules for the control of Federal Register action? final action. NOX emissions from combustion F. What Counties in the D/FW area will the First, we are approving revisions sources in East Texas. Section May 30, 2007, SIP revision affect? which involve repealing the current G. What Counties in East and Central Texas 117.3310(a) contains substantive will the May 30, 2007, SIP revision Chapter 117 rules from Texas SIP, and changes in the reformatted Chapter 117 affect? simultaneously approving into the rules that result in significant NOX H. What are NOX? emissions reductions. These reductions I. What is Ozone, and why do we regulate 1 It came to our attention after publication of the were not previously a part of EPA- proposal that we never took action on 30 TAC it? approved Texas SIP, Chapter 117. J. What is a SIP? 117.571 that TCEQ repealed, and replaced with a K. What are the NO emissions new 30 TAC 117.9810. Therefore, there is no Sections F through P of this document X previously approved rule in the Texas SIP. We will requirements for point sources in the D/ need to evaluate the new rule 30 TAC 117.9810 for contain more information concerning FW area that we are approving? substance, and determine if it is approvable as a SIP each of these four actions. L. What are the NOX emission revision. Our action will be taken in a separate requirements for stationary diesel Federal Register rulemaking.

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B. What is the relationship between the Denton, Tarrant, Ellis, Johnson, C. What sections of the May 30, 2007, May 30, 2007 SIP revision and the ozone Kaufman, Parker, and Rockwall SIP revision will become part of Texas attainment demonstration plan for the Counties) is designated nonattainment, SIP? D/FW area? and classified as a moderate 8-hour non- Table 1 below contains a summary list The resulting emissions reductions of attainment area for ozone. See 69 FR of the sections of 30 TAC, Chapter 117 NOX, an ozone precursor, from this SIP 23857 published on April 30, 2004. We revision will assist in bringing the D/FW proposed approval of the D/FW 8-hour that we proposed for approval, in our area into attainment with the 1997 8- ozone attainment demonstration plan in July 11, 2008 (73 FR 39900) rulemaking hour ozone NAAQS, and help with the a separate rulemaking action, and will action, for point sources of NOX to maintenance of the 1997 ozone NAAQS consider relevant written comments become part of the Texas SIP. Table 1 in the East and Central parts of the received on the D/FW 8-hour ozone below includes both the sections with State. The D/FW 8-hour ozone attainment demonstration plan in a substantive changes and the nonattainment area (Collin, Dallas, separate Federal Register publication. nonsubstantive changes.

TABLE 1—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 BEING APPROVED INTO TEXAS SIP

Section No. Description

Section 117.10 ...... Definitions. Section 117.100 ...... Applicability. Section 117.103 ...... Exemptions. Section 117.105 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.110 ...... Emission Specifications for Attainment Demonstration. Section 117.115 ...... Alternative Plant-Wide Emission Specifications. Section 117.123 ...... Source Cap. Section 117.130 ...... Operating Requirements. Section 117.135 ...... Initial Demonstration of Compliance. Section 117.140 ...... Continuous Demonstration of Compliance. Section 117.145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.150 ...... Initial Control Plan Procedures. Section 117.152 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.154 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.156 ...... Revision of Final Control Plan. Section 117.200 ...... Applicability. Section 117.203 ...... Exemptions. Section 117.205 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.210 ...... Emission Specifications for Attainment Demonstration. Section 117.215 ...... Alternative Plant-Wide Emission Specifications. Section 117.223 ...... Source Cap. Section 117.230 ...... Operating Requirements. Section 117.235 ...... Initial Demonstration of Compliance. Section 117.240 ...... Continuous Demonstration of Compliance. Section 117.245 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.252 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.254 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.256 ...... Revision of Final Control Plan. Section 117.300 ...... Applicability. Section 117.303 ...... Exemptions. Section 117.305 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.310 ...... Emission Specifications for Attainment Demonstration. Section 117.315 ...... Alternative Plant-Wide Emission Specifications. Section 117.320 ...... System Cap. Section 117.323 ...... Source Cap. Section 117.330 ...... Operating Requirements. Section 117.335 ...... Initial Demonstration of Compliance. Section 117.340 ...... Continuous Demonstration of Compliance. Section 117.345 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.350 ...... Initial Control Plan Procedures. Section 117.352 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.354 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.356 ...... Revision of Final Control Plan. Section 117.400 ...... Applicability. Section 117.403 ...... Exemptions. Section 117.410 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.423 ...... Source Cap. Section 117.430 ...... Operating Requirements. Section 117.435 ...... Initial Demonstration of Compliance. Section 117.440 ...... Continuous Demonstration of Compliance. Section 117.445 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.450 ...... Initial Control Plan Procedures. Section 117.454 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.456 ...... Revision of Final Control Plan. Section 117.1000 ...... Applicability.

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TABLE 1—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 BEING APPROVED INTO TEXAS SIP—Continued

Section No. Description

Section 117.1003 ...... Exemptions. Section 117.1005 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1010 ...... Emission Specifications for Attainment Demonstration. Section 117.1015 ...... Alternative System-Wide Emission Specifications. Section 117.1020 ...... System Cap. Section 117.1035 ...... Initial Demonstration of Compliance. Section 117.1040 ...... Continuous Demonstration of Compliance. Section 117.1045 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1052 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1054 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1056 ...... Revision of Final Control Plan. Section 117.1100 ...... Applicability. Section 117.1103 ...... Exemptions. Section 117.1105 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1110 ...... Emission Specifications for Attainment Demonstration. Section 117.1115 ...... Alternative System-Wide Emission Specifications. Section 117.1120 ...... System Cap. Section 117.1135 ...... Initial Demonstration of Compliance. Section 117.1140 ...... Continuous Demonstration of Compliance. Section 117.1145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1152 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1154 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1156 ...... Revision of Final Control Plan. Section 117.1200 ...... Applicability. Section 117.1203 ...... Exemptions. Section 117.1205 ...... Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1210 ...... Emission Specifications for Attainment Demonstration. Section 117.1215 ...... Alternative System-Wide Emission Specifications. Section 117.1220 ...... System Cap. Section 117.1235 ...... Initial Demonstration of Compliance. Section 117.1240 ...... Continuous Demonstration of Compliance. Section 117.1245 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1252 ...... Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1254 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1256 ...... Revision of Final Control Plan. Section 117.1300 ...... Applicability. Section 117.1303 ...... Exemptions. Section 117.1310 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.1335 ...... Initial Demonstration of Compliance. Section 117.1340 ...... Continuous Demonstration of Compliance. Section 117.1345 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.1350 ...... Initial Control Plan Procedures. Section 117.1354 ...... Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1356 ...... Revision of Final Control Plan. Section 117.2000 ...... Applicability. Section 117.2003 ...... Exemptions. Section 117.2010 ...... Emission Specifications. Section 117.2030 ...... Operating Requirements. Section 117.2035 ...... Monitoring and Testing Requirements. Section 117.2045 ...... Recordkeeping and Reporting Requirements. Section 117.2100 ...... Applicability. Section 117.2103 ...... Exemptions. Section 117.2110 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.2130 ...... Operating Requirements. Section 117.2135 ...... Monitoring, Notification, and Testing Requirements. Section 117.2145 ...... Recordkeeping and Reporting Requirements. Section 117.3000 ...... Applicability. Section 117.3003 ...... Exemptions. Section 117.3005 ...... Gas-Fired Steam Generation. Section 117.3010 ...... Emission Specifications. Section 117.3020 ...... System Cap. Section 117.3035 ...... Initial Demonstration of Compliance. Section 117.3040 ...... Continuous Demonstration of Compliance. Section 117.3045 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.3054 ...... Final Control Plan Procedures. Section 117.3056 ...... Revision of Final Control Plan. Section 117.3200 ...... Applicability. Section 117.3201 ...... Definitions. Section 117.3203 ...... Exemptions. Section 117.3205 ...... Emission Specifications. Section 117.3210 ...... Certification Requirements.

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TABLE 1—SECTION NUMBERS AND SECTION DESCRIPTIONS OF 30 TAC, CHAPTER 117 BEING APPROVED INTO TEXAS SIP—Continued

Section No. Description

Section 117.3215 ...... Notification and Labeling Requirements. Section 117.3300 ...... Applicability. Section 117.3303 ...... Exemptions. Section 117.3310 ...... Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.3330 ...... Operating Requirements. Section 117.3335 ...... Monitoring, Notification, and Testing Requirements. Section 117.3345 ...... Recordkeeping and Reporting Requirements. Section 117.4000 ...... Applicability. Section 117.4005 ...... Emission Specifications. Section 117.4025 ...... Alternative Case Specific Specifications. Section 117.4035 ...... Initial Demonstration of Compliance. Section 117.4040 ...... Continuous Demonstration of Compliance. Section 117.4045 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.4050 ...... Control Plan Procedures. Section 117.4100 ...... Applicability. Section 117.4105 ...... Emission Specifications. Section 117.4125 ...... Alternative Case Specific Specifications. Section 117.4135 ...... Initial Demonstration of Compliance. Section 117.4140 ...... Continuous Demonstration of Compliance. Section 117.4145 ...... Notification, Recordkeeping, and Reporting Requirements. Section 117.4150 ...... Control Plan Procedures. Section 117.4200 ...... Applicability. Section 117.4205 ...... Emission Specifications. Section 117.4210 ...... Applicability of Federal New Source Performance Standards. Section 117.8000 ...... Stack Testing Requirements. Section 117.8010 ...... Compliance Stack Test Reports. Section 117.8100...... Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources. Section 117.8110 ...... Emission Monitoring System Requirements for Utility Electric Generation Sources. Section 117.8120 ...... Carbon Monoxide (CO) Monitoring. Section 117.8130 ...... Ammonia Monitoring. Section 117.8140 ...... Emission Monitoring for Engines. Section 117.9000 ...... Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources. Section 117.9010 ...... Compliance Schedule for Dallas-Fort Worth Ozone Nonattainment Area Major Sources. Section 117.9020...... Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources. Section 117.9030 ...... Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources. Section 117.9100 ...... Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9110 ...... Compliance Schedule for Dallas-Fort Worth Ozone Nonattainment Area Utility Electric Genera- tion Sources. Section 117.9120 ...... Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Elec- tric Generation Sources. Section 117.9130 ...... Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Elec- tric Generation Sources. Section 117.9200...... Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources. Section 117.9210 ...... Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources. Section 117.9300 ...... Compliance Schedule for Utility Electric Generation in East and Central Texas. Section 117.9340 ...... Compliance Schedule for East Texas Combustion. Section 117.9500 ...... Compliance Schedule for Nitric Acid and Adipic Acid Manufacturing Sources. Section 117.9800 ...... Use of Emission Credits for Compliance.

Although we proposed approval of for readers to generally understand http://www.tceq.state.tx.us/rules/ the new section 117.9810 concerning which affected sources are likely to be indxpdf.html#117. Use of Emission Reductions Generated required to comply with the NOX Our TSD prepared for the July 11, from the Texas Emissions Reduction control requirements in conjunction 2008 (73 FR 39900) proposal contained Plan (TERP) in our July 11, 2008 with today’s rulemaking action. To detailed discussion of each of the above publication, we are taking no action determine whether or how your facility changes, and why EPA believed they upon 117.9810 today. We will take would be affected by this particular should be approved into Texas SIP. We rulemaking action on 117.9810 in a action, you should refer to the actual are approving the above sections of separate publication in future. text of 30 TAC Chapter 117, and the Table 1 into Texas SIP. Please keep in mind that the tables in June 8, 2007 issue of the Texas Register this document are not intended to be (32 TexReg 3206). You can find the exhaustive, but rather to provide a guide entire TCEQ Chapter 117 rules at:

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D. What sections of the May 30, 2007, May 30, 2007, SIP revision will not precursors and therefore, these rules are SIP revision will not become part of become a part of the EPA-approved not necessary components of the Texas Texas SIP? Texas SIP. As stated in our proposal SIP. The rules listed in Table 2 are not these rules mainly pertain to the control already in the current Texas SIP and Per TCEQ’s request the following of ammonia or carbon monoxide EPA continues to agree with Texas that sections, listed in Table 2 below, of the emissions which are not ozone these rules can remain outside the SIP.

TABLE 2—SECTIONS OF CHAPTER 117 NOT IN EPA-APPROVED TEXAS SIP

Section No. Explanation

117.110(c), 117.125, 117.210(c), 117.225, 117.310(c), 117.325, 117.410(d), 117.425, Not a part of EPA-approved Texas SIP, and 117.1010(b), 117.1025, 117.1110(b), 117.1125, 117.1210(b), 117.1225, 117.1310(b), TCEQ continues to ask that these rules re- 117.1325, 117.2010(i), 117.2025, 117.2110(h), 117.2125, 117.3010(2), 117.3025, main outside the SIP. 117.3123(f), 117.3125, 117.3310(e), and 117.3325.

Although the above sections of 30 on 117.9810 in a separate publication in revision that we are not finalizing in TAC Chapter 117 will not become a part future. today’s action. We will review and act of the Texas SIP, they will continue to E. What sections of the May 30, 2007, upon the cement kiln related sections of remain enforceable at the State level. As SIP revision are we reviewing in another the May 30, 2007 SIP revision in a stated elsewhere in this document, we Federal Register action? separate rulemaking action. are taking no action upon 117.9810 today. We will take rulemaking action Table 3 below contains a listing of sections of the May 30, 2007, SIP

TABLE 3—SECTIONS OF CHAPTER 117 NOT BEING EVALUATED IN THIS RULEMAKING

Section No. Explanation

117.3100, 117.3101, 117.3103, 117.3110, 117.3120, 117.3123, 117.3125, 117.3140, 117.3142, Cement kiln related provisions, not finalized in and 117.3145. this rulemaking action.

F. What Counties in the D/FW area will the May 30, 2007, SIP revision affect? Table 4 below lists the Counties in the D/FW 8-hour Ozne nonattainment area that will be affected by today’s action.

TABLE 4—TEXAS COUNTIES IN THE D/FW 8-HOUR OZONE NONATTAINMENT AREA

D/FW Counties Explanation

Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant ...... See section 117.10(2)(C).

G. What Counties in East and Central Texas will the May 30, 2007, SIP revision affect? Table 5 below lists the Counties in the East and Central Texas that will be affected by today’s action.

TABLE 5—COUNTIES PART OF THE EAST AND CENTRAL TEXAS PROVISION OF CHAPTER 117

East and central Texas counties Explanation

Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Har- See section 117.3300. rison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Titus, Upshur, Van Zandt, and Wood.

H. What are NOX? with volatile organic compounds (VOC) I. What is Ozone and why do we Nitrogen oxides belong to the group of to form ozone or smog, and are also regulate it? major components of acid rain. For criteria air pollutants. NOX are Ozone is a gas composed of three produced from burning fuels, including more information on NOX see http:// oxygen atoms. Ground level ozone is gasoline and coal. Nitrogen oxides react www.epa.gov/air/urbanair/nox/. generally not emitted directly from a

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vehicle’s exhaust or an industrial including aggravated asthma, reduced into the Federally-enforceable SIP. Each smokestack, but is created by a chemical lung capacity, and increased Federally-approved SIP protects air reaction between NOX and VOCs in the susceptibility to respiratory illnesses quality primarily by addressing air presence of sunlight and high ambient like pneumonia and bronchitis. It can pollution at its point of origin. temperatures. Thus, ozone is known also have detrimental effects on plants K. What are the NO emissions primarily as a summertime air pollutant. and ecosystems. X requirements for point sources in the D/ NO and VOCs are precursors of ozone. X J. What is a SIP? FW area that we are approving? Motor vehicle exhaust and industrial The SIP is a set of air pollution emissions, gasoline vapors, chemical We approved NOX emissions solvents and natural sources emit NO regulations, control strategies, other X means or techniques and technical specifications for stationary sources in and VOCs. Urban areas tend to have analyses developed by the state, to 66 FR 15195 published March 16, 2001. high concentrations of ground-level ensure that the state meets the NAAQS. In addition to requiring NOX emissions ozone, but areas without significant The SIP is required by section 110 and control requirements for those sources, industrial activity and with relatively other provisions of the Act. These SIPs we are approving the following NOX low vehicular traffic are also subject to can be extensive, containing state emissions requirements for the increased ozone levels because wind regulations or other enforceable following affected sources with carries ozone and its precursors documents and supporting information emissions greater than 50 Tons Per Year hundreds of miles from their sources. such as emissions inventories, (TPY) in the D/FW 8-hour ozone Repeated exposure to ozone pollution monitoring networks, and modeling nonattainment area. We have included may cause lung damage. Even at very demonstrations. Each state must submit the Chapter 117 citation for each source low concentrations, ground-level ozone these regulations and control strategies category in the Table 6 below for triggers a variety of health problems to EPA for approval and incorporation convenience purposes.

TABLE 6—NOX EMISSIONS SPECIFICATIONS FOR THE D/FW 8-HOUR OZONE NONATTAINMENT AREA

NOX emission speci- Source fication Additional information Citation

Reciprocating Internal Combustion Engines ... 2.0 g/hp-hr ...... Natural gas, rich burn, capacity ≥300 hp, be- 117.410(a)(1)(B)(i). fore January 1, 2000, also a 3.0 g/hp-hr limit of CO. Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Natural gas, rich burn, capacity ≥300 hp, on 117.410(a)(9)(B)(ii). or after January 1, 2000, also a 3.0 g/hp- hr limit of CO. Reciprocating Internal Combustion Engines ... 0.60 g/hp-hr ...... Gas-fired, rich burn, landfill gas ...... 117.410(b)(4)(A)(i). Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Gas-fired, rich burn, not using landfill gas .... 117.410(b)(4)(A)(ii). Reciprocating Internal Combustion Engines ... 0.70 g/hp-hr ...... Gas-fired, lean burn, before June 1, 2007, 117.410(b)(4)(B)(i). not modified afterwards. Reciprocating Internal Combustion Engines ... 0.60 g/hp-hr ...... Gas-fired, lean burn, landfill gas, on or after 117.410(b)(4)(B)(ii)(I). June 1, 2007. Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Gas-fired, lean burn, not using landfill gas, 117.410(b)(4)(B)(ii)(I). and on or after June 1, 2007. Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Dual-fuel ...... 117.410(b)(4)(B)(ii)(II). Duct Burners ...... 0.032 lb/MMBtu ...... Used in turbine exhausts, rated ≥10 MW ..... 117.410(b)(6). Duct Burners ...... 0.15 lb/MMBtu ...... Used in turbine exhausts, 1.0 rated <10 MW 117.410(b)(6). Duct Burners ...... 0.26 lb/MMBtu ...... Used in turbine exhausts, rated ≥1.0 MW .... 117.410(b)(6). Lime Kilns ...... 3.7 lb/ton of CaO ...... Individual kiln basis ...... 117.410(b)(7)(A)(i). Lime Kilns ...... 3.7 lb/ton of CaO ...... Site-wide basis ...... 117.410(b)(7)(A)(ii). Ceramic and Brick Kilns ...... 40% NOX reduction ... Using daily 2000 calendar year EI ...... 117.410(b)(7)(B)(i). Brick Kilns ...... 0.175 lb/ton of prod- As option ...... 117.410(b)(7)(B)(ii). uct. Ceramic Kilns ...... 0.27 lb/ton of product As option ...... 117.410(b)(7)(B)(iii). Metallurgical Furnaces ...... 0.087 lb/MMBtu ...... Heat Furnace, March 1–October 31 any 117.410(b)(8)(A). year. Metallurgical Furnaces ...... 0.10 lb/MMBtu ...... Reheat Furnace, March 1–October 31 any 117.410(b)(8)(B). year. Metallurgical Furnaces ...... 0.45 lb/MMBtu ...... Lead smelting blast cupola and reverbera- 117.410(b)(8)(C). tory. Incinerators ...... 80% NOX reduction ... Using real emissions of 2000 EI ...... 117.410(b)(9)(A). Incinerators ...... 0.030 lb/MMBtu ...... As option ...... 117.410(b)(9)(B). Container Glass Furnaces ...... 4.0 lb/ton of glass Melting furnace, within 25% of permitted 117.410(b)(10)(A)(i), or pulled. production capacity, or MAER of permit 117.410(b)(10)(A)(ii). issued before June 1, 2007. Fiberglass Furnaces ...... 4.0 lb/ton product Mineral wool, cold-top electric ...... 117.410(b)(10)(B). pulled. Fiberglass Furnaces ...... 1.45 lb/ton product Mineral wool, regenerative ...... 117.410(b)(10)(C). pulled. Fiberglass Furnaces ...... 3.1 lb/ton product Mineral wool, non-regenerative ...... 117.410(b)(10)(D). pulled. Curing Ovens ...... 0.036 lb/MMBtu ...... Gas fired, used in mineral wool-type or tex- 117.410(b)(11). tile-type fiberglass. Ovens and Heaters ...... 0.036 lb/MMBtu ...... Natural gas-fired ...... 117.410(b)(12).

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TABLE 6—NOX EMISSIONS SPECIFICATIONS FOR THE D/FW 8-HOUR OZONE NONATTAINMENT AREA—Continued

NOX emission speci- Source fication Additional information Citation

Dryers ...... 0.036 lb/MMBtu ...... Natural gas-fired, used in organic solvent, 117.410(b)(13)(A). printing ink, clay, brick, ceramic tile, calcining, and vitrifying processes. Spray Dryers ...... 0.15 lb/MMBtu ...... Natural gas-fired, used in ceramic tile manu- 117.410(b)(13)(B). facturing processes.

We are approving these NOX Therefore, we are approving these engines in the D/FW area. The following emissions specifications under Part D of requirements into the Texas SIP. Table 7 contains a summary of the NOX the Act because their resulting emission specifications for stationary L. What are the NOX emission emissions reductions will assist Texas requirements for stationary diesel diesel engines in the D/FW area. We in demonstrating attainment of the 1997 engines in the D/FW area that we are have included the Chapter 117 citation 8-hour ozone standard in the D/FW 8- approving? for each source category in the Table 7 hour ozone nonattainment area. below for convenience purposes. This SIP revision requires reductions of NOX emissions from stationary diesel

TABLE 7—NOX EMISSION REQUIREMENTS STATIONARY DIESEL ENGINES FOR THE D/FW 8-HOUR OZONE NONATTAINMENT AREA

Source NOX Emission Specification Citation

Diesel engines in service before March 1, 2009: not modified, reconstructed, 11.0 gram/hp-hr ...... 117.410(b)(4)(D). or relocated on or after March 1, 2009. Rated less than 50 hp: modified, installed reconstructed, or relocated on or 5.0 gram/hp-hr ...... 117.410(b)(4)(E)(i). after March 1, 2009. Rated 50 hp or more, but less than 100 hp: modified, installed, recon- 3.3 gram/hp-hr ...... 117.410(b)(4)(E)(ii). structed, or relocated on or after March 1, 2009. Rated 100 hp or more, but less than 750 hp: installed, modified, recon- 2.8 gram/hp-hr ...... 117.410(b)(4)(E)(iii). structed, or relocated on or after March 1, 2009. Rated 750 hp or more: installed, modified, reconstructed, or relocated on or 4.5 gram/hp-hr ...... 117.410(b)(4)(E)(iv). after March 1, 2009.

Also see section 117.2110(a)(3) Diesel Engines.’’ In addition, the above- M. What are the NOX emissions concerning stationary diesel engines at listed NOX emission requirements for specifications for minor sources of NOX minor sources within the D/FW 8-Hour diesel engines are consistent with those in the D/FW area that we are approving? Ozone Nonattainment Area. we approved for similar units at Table As stated in our July 11, 2008 (73 FR VI of 66 FR 57230 published on These minor sources include 39900) proposal, we are approving the November 14, 2001. We are therefore stationary reciprocating internal above-listed NOX emission requirements approving these NOX emission combustion engines that are not a major for diesel engines because they are in requirements into the Texas SIP under source of NOX (emit, when agreement with those found in 40 CFR Part D of the Act because their resulting uncontrolled, less than 50 Tons Per Year 89.112, and EPA’s Document Number emissions reductions will assist Texas (TPY) of NOX). See sections 117.2100 420–R–98–016 dated August 1998, titled in demonstrating attainment of the 8- and 117.2103 for more information. ‘‘Final Regulatory Impact Analysis: hour ozone standard within the D/FW 8- Control of Emissions from Nonroad hour ozone nonattainment area.

TABLE 8—NOX EMISSIONS REQUIREMENTS FOR MINOR SOURCES IN THE D/FW AREA

NOX emission speci- Source fication Additional information Citation

Reciprocating Internal Combustion Engines ... 0.60 g/hp-hr ...... Stationary, rich-burn, using landfill gas-fired 117.2110(a)(1)(A)(i). Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Stationary, rich-burn, not landfill gas-fired .... 117.2110(a)(1)(A)(ii). Reciprocating Internal Combustion Engines ... 0.70 g/hp-hr ...... Stationary, lean-burn, in service before June 117.2010(a)(1)(B)(i). 1, 2007. Reciprocating Internal Combustion Engines ... 0.60 g/hp-hr ...... Stationary, lean-burn, in service on or after 117.2010(a)(1)(B)(i)(I). June 1, 2007, using landfill gas. Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Stationary, lean-burn, in service on or after 117.2010(a)(1)(B)(i)(II). June 1, 2007, not using landfill gas. Reciprocating Internal Combustion Engines ... 5.83 g/hp-hr ...... Stationary, dual-fuel ...... 117.2010(a)(2). Reciprocating Internal Combustion Engines ... The lower of 11.0 g/ Stationary, diesel, in service before March 1, 117.2110(a)(3)(A). hp-hr or an estab- 2009; and not modified, reconstructed, or lished emission rate. relocated on or after March 1, 2009.

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TABLE 8—NOX EMISSIONS REQUIREMENTS FOR MINOR SOURCES IN THE D/FW AREA—Continued

NOX emission speci- Source fication Additional information Citation

Reciprocating Internal Combustion Engines ... 3.3 g/hp-hr ...... Stationary, diesel, rated 50 hp or more but 117.2110(a)(3)(B)(i). less than 100 hp; and installed, modified, reconstructed, or relocated on or after March 1, 2009. Reciprocating Internal Combustion Engines ... 2.8 g/hp-hr ...... Stationary, diesel, rated 100 hp or more but 117.2110(a)(3)(B)(ii). less than 750 hp; and installed, modified, reconstructed, or relocated on or after March 1, 2009. Reciprocating Internal Combustion Engines ... 4.5 g/hp-hr ...... Stationary, diesel, rated 750 or more; and 117.2110(a)(3)(B)(iii). installed, modified, reconstructed, or relo- cated on or after March 1, 2009.

As an alternative, a minor source from N. What are the NOX emissions 9 contains NOX emissions requirements the Table 8 above located within the D/ requirements for stationary and related information for these FW area and having an annual capacity reciprocating internal combustion affected units. factor of 0.0383 or less may choose engines (RICE) in East Texas that we are On July 19, 2007 TCEQ announced emissions specification of 0.060 lb/ approving? implementation of Texas Senate Bill MMBtu, instead. See 117.2110(a)(4). The gas-fired stationary reciprocating 2000, passed in 2007 by the 80th Texas Legislative Session. The Bill directs the The NOX emissions requirements for internal combustion engines located in Anderson, Brazos, Burleson, Camp, TCEQ to develop an incentive grant the above-listed minor sources of NOX and their resulting emissions reductions Cass, Cherokee, Franklin, Freestone, program for the partial reimbursement will assist in demonstrating attainment Gregg, Grimes, Harrison, Henderson, of capital costs for installing Hill, Hopkins, Hunt, Lee, Leon, nonselective catalytic reduction (NSCR) of the 8-hour ozone NAAQS within the Limestone, Madison, Marion, Morris, systems to reduce emissions of NO D/FW 8-hour ozone nonattainment area. X Nacogdoches, Navarro, Panola, Rains, from existing stationary gas-fired rich- Therefore, we are approving these Robertson, Rusk, Shelby, Smith, burn compressor engines. For more requirements into the Texas SIP. Upshur, Van Zandt, or Wood Texas information see http:// Counties are subject to these www.tceq.state.tx.us/implementation/ requirements. See section 117.3300 for air/rules/sb2003.html (URL dating July more information. The following Table 20, 2007).

TABLE 9—NOX EMISSIONS REQUIREMENTS FOR STATIONARY RECIPROCATING INTERNAL COMBUSTION ENGINES IN EAST TEXAS

NOX emission speci- Source fication Additional information Citation

Reciprocating Internal Combustion Engines ... 1.00 g/hp-hr ...... Rich burn, gas-fired, capacity < 500 hp ...... 117.3310(a)(1). Reciprocating Internal Combustion Engines ... 0.60 g/hp-hr ...... Rich burn, landfill gas-fired, capacity ≥ 500 117.3310(a)(2)(A). hp. Reciprocating Internal Combustion Engines ... 0.50 g/hp-hr ...... Rich burn, not landfill gas-fired, capacity ≥ 117.3310(a)(2)(B). 500 hp.

The NOX emissions requirements for into the Texas SIP under part D, and following Tables 10 and 11 contain type the stationary reciprocating internal sections 110 and 116 of the Act, and size categories, and NOX emissions combustion engines in East and Central respectively. requirements for these affected units. Texas and their resulting emissions O. What are the NO emissions reductions will assist in demonstrating X requirements for state-wide water TABLE 10—WATER HEATER SIZE attainment of the 8-hour ozone NAAQS heaters, small boilers, and process CLASSIFICATIONS within the Houston-Galveston-Brazoria, heaters that we are approving? D/FW, and Beaumont/Port Arthur areas. Maximum rated capacity (Btu/Hr) Type Furthermore, these reductions will The water heaters, small boilers, and contribute to the continued process heaters that use natural gas and Capacity [ 75,000 ...... 0 maintenance of the standard in the have a rated capacity of 2 million Btu 400,000 [ Capacity > 75,000 ...... 1 eastern half of the State of Texas, and per hour or less are subject to these 2,000,000 < Capacity > 400,000 ...... 2 they enhance the Texas SIP. Therefore, requirements. See 117.3200 and we are approving these requirements 117.3203 for more information. The

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TABLE 11—CHAPTER 117 STATE-WIDE NOX REQUIREMENTS FOR WATER HEATERS, SMALL BOILERS, AND PROCESS HEATERS

Type Date NOX emission specification Citation

0 ...... Manufactured on or after July 1, 2002, but no later than December 40 ng/joule of heat output ...... 117.3205(a)(1)(A). 31, 2004. 0 ...... Manufactured on or after July 1, 2002, but no later than December 55 ppmv at 3% oxygen dry basis 117.3205(a)(1)(B). 31, 2004. 0 ...... Manufactured on or after January 1, 2005 ...... 10 ng/joule of heat output ...... 117.3205(a)(2)(A). 0 ...... Manufactured on or after January 1, 2005 ...... 15 ppmv at 3% oxygen dry basis 117.3205(a)(2)(B). 1 ...... Manufactured on or after July 1, 2002 ...... 40 ng/joule of heat output ...... 117.3205(a)(3)(A). 1 ...... Manufactured on or after July 1, 2002 ...... 55 ppmv at 3% oxygen dry basis 117.3205(a)(3)(B). 2 ...... Manufactured on or after July 1, 2002 ...... 30 ppmv at 3% oxygen dry basis 117.3205(a)(4)(A). 2 ...... Manufactured on or after July 1, 2002 ...... 0.037 lb/MMBtu/hr of heat input .. 117.3205(a)(4)(B). 0 ...... Manufactured on or after July 1, 2002 ...... 40 ng/joule of heat output ...... 117.3205(b)(1)(A). 0 ...... Manufactured on or after July 1, 2002 ...... 55 ppmv at 3% oxygen dry basis 117.3205(b)(1)(B). 1 ...... Manufactured on or after July 1, 2002 ...... 40 ng/joule of heat output ...... 117.3205(b)(2)(A). 1 ...... Manufactured on or after July 1, 2002 ...... 55 ppmv at 3% oxygen dry basis 117.3205(b)(2)(B). 2 ...... Manufactured on or after July 1, 2002 ...... 30 ppmv at 3% oxygen dry basis 117.3205(b)(3)(A). 2 ...... Manufactured on or after July 1, 2002 ...... 0.037 lb/MMBtu/hr of heat input .. 117.3205(b)(3)(B).

The size categories and NOX revised state-wide residential water P. What are the compliance schedules emissions requirements for these heater NOX emission requirements meet for NOX emissions sources that we are affected units are similar to those in section 110(l) of the Act. Thus, we are approving? place in other parts of the country. In approving the state-wide NOX emission The following Table 12 contains a our proposal and the corresponding requirements for water heaters, small summary of the NOX-related compliance TSD we explained how the revised boilers, and process heaters into the schedules for major sources, utility state-wide residential water heater NOX Texas SIP. generating units, and minor sources emission requirements meet the affected by the May 30, 2007 SIP requirements of section 110(l) of the revision. See sections 117.9000 through Act. Therefore, we are finding that the 117.9500 for more information.

TABLE 12—NOX COMPLIANCE SCHEDULES FOR POINT SOURCES UNDER CHAPTER 117

Source Compliance date Additional information Citation

Major, D/FW ... Install all NOX abatement equipment by no later Increment of Progress (IOP) requirement ...... 117.9030(a)(1). than May 30, 2007. Major, D/FW ... Submit initial control plan per 117.450 by no later 8-hour attainment demonstration requirement 117.9030(b). than June 1, 2008. Comply with emissions requirements by no later than March 1, 2009 when source subject to 117.410(b)(1), (2), (4), (5), (6), (7)(A), (10), and (14).. Diesel and dual-fuel engines comply with testing and hours of operation for testing and mainte- nance by no later than March 1, 2009. Gas turbines or IC engines claiming run time ex- emption comply with the run time requirements by no later than March 1, 2009. D/FW ...... Submit initial control plan per 117.1350 by no later Utility electric generation sources ...... 117.9130(a)(1) and (2). than June 1, 2008. Comply with all other requirements by no later than March 1, 2009. Minor, D/FW ... Rich-burn, gas-fired stationary RICE comply with RICE fired with different fuel types ...... 117.9210 NOX requirements by no later than March 1, 2009. Lean-burn, gas-fired stationary RICE comply with NOX requirements by no later than March 1, 2010. Diesel-fired and dual-fuel stationary RICE comply with NOX requirements by no later than March 1, 2009. East Texas ..... Stationary RICE comply with NOX requirements by East Texas combustion sources ...... 117.9340(a). no later than March 1, 2010.

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Including these compliance dates, Executive Order 12866 (58 FR 51735, required information to the U.S. Senate, summarized in Table 12 above, in the October 4, 1993); the U.S. House of Representatives, and rule provides for enforceability and • Does not impose an information the Comptroller General of the United practicability of the NOX rule, and collection burden under the provisions States prior to publication of the rule in enhances the Texas SIP; therefore, we of the Paperwork Reduction Act (44 the Federal Register. A major rule are approving them into the Texas SIP. U.S.C. 3501 et seq.); cannot take effect until 60 days after it • Is certified as not having a is published in the Federal Register. II. Final Action significant economic impact on a This action is not a ‘‘major rule’’ as Today, we are finalizing approval of substantial number of small entities defined by 5 U.S.C. 804(2). revisions to the 30 TAC Chapter 117 under the Regulatory Flexibility Act (5 Under section 307(b)(1) of the Clean into the Texas SIP. This rulemaking U.S.C. 601 et seq.); Air Act, petitions for judicial review of • covers four separate actions. First, we Does not contain any unfunded this action must be filed in the United are approving the repeal of all non- mandate or significantly or uniquely States Court of Appeals for the substantive changes to the SIP’s Chapter affect small governments, as described appropriate circuit by February 2, 2009. 117 rules and the reformatting of current in the Unfunded Mandates Reform Act Filing a petition for reconsideration by of 1995 (Pub. L. 104–4); Chapter 117 because the reformatted • the Administrator of this final rule does revision will better accommodate future Does not have Federalism not affect the finality of this action for additions/revisions to the rules. Second, implications as specified in Executive the purposes of judicial review nor does we are approving substantive revisions Order 13132 (64 FR 43255, August 10, it extend the time within which a 1999); to the current NOX SIP’s Chapter 117 petition for judicial review may be filed, • Is not an economically significant rules for D/FW NOX major point and shall not postpone the effectiveness regulatory action based on health or sources. Third, we are approving of such rule or action. This action may safety risks subject to Executive Order substantive revisions to the current not be challenged later in proceedings to 13045 (62 FR 19885, April 23, 1997); Texas SIP’s Chapter 117 rules for D/FW enforce its requirements. (See section • Is not a significant regulatory action minor sources of NOX . Fourth, we are 307(b)(2).) subject to Executive Order 13211 (66 FR approving substantive revisions to the 28355, May 22, 2001); List of Subjects in 40 CFR Part 52 current Texas SIP’s Chapter 117 rules • Is not subject to requirements of for combustion sources in East Texas. Section 12(d) of the National Environmental protection, Air These NOX reductions will assist the D/ Technology Transfer and Advancement pollution control, Hydrocarbons, FW area in attaining the 1997 8-hour Act of 1995 (15 U.S.C. 272 note) because Incorporation by reference, ozone NAAQS. Today, we are not taking application of those requirements would Intergovernmental relations, Nitrogen action on the cement kiln related be inconsistent with the Clean Air Act; oxide, Reporting and recordkeeping provisions of Chapter 117, see sections • Does not provide EPA with the requirements, Volatile organic E and D of this document. We are also discretionary authority to address, as compounds. not taking action on new section appropriate, disproportionate human Dated: November 25, 2008. 117.9810, see section C of this health or environmental effects, using Richard E. Greene, document. practicable and legally permissible Regional Administrator, Region 6. methods, under Executive Order 12898 III. Statutory and Executive Order ■ Part 52, chapter I, title 40 of the Code Reviews (59 FR 7629, February 16, 1994); and • Does not have tribal implications as of Federal Regulations is amended as Under the Clean Air Act, the specified by Executive Order 13175 (65 follows: Administrator is required to approve a FR 67249, November 9, 2000), because PART 52—[AMENDED] SIP submission that complies with the the SIP is not approved to apply in provisions of the Act and applicable Indian country located in the state, and ■ 1. The authority citation for Part 52 Federal regulations. 42 U.S.C. 7410(k); EPA notes that it will not impose continues to read as follows: 40 CFR 52.02(a). Thus, in reviewing SIP substantial direct costs on tribal Authority: 42 U.S.C. 7401 et seq. submissions, EPA’s role is to approve governments or preempt tribal law. state choices, provided that they meet The Congressional Review Act, 5 Subpart SS—Texas the criteria of the Clean Air Act. U.S.C. 801 et seq., as added by the Small Accordingly, this action merely Business Regulatory Enforcement ■ 2. In § 52.2270 the entry for Chapter approves state law as meeting Federal Fairness Act of 1996, generally provides 117 (Reg 7)—Control of Air Pollution requirements and does not impose that before a rule may take effect, the from Nitrogen Compounds in the table additional requirements beyond those agency promulgating the rule must in paragraph (c) is revised to read as imposed by state law. For that reason, submit a rule report, which includes a follows: this action: copy of the rule, to each House of the • Is not a ‘‘significant regulatory Congress and to the Comptroller General § 52.2270 Identification of plan. action’’ subject to review by the Office of the United States. EPA will submit a * * * * * of Management and Budget under report containing this action and other (c) * * *

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP

State State citation Title/subject approval/ EPA approval date Explanation submittal date

*******

Chapter 117—Control of Air Pollution From Nitrogen Compounds

Subchapter A—Definitions

Section 117.10 ...... Definitions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Subchapter B—Combustion Control at Major Industrial, Commercial, and Institutional Sources in Ozone Nonattainment Areas

Division 1—Beaumont-Port Arthur Ozone Nonattainment Area Major Sources

Section 117.100 ..... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.103 ..... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.105..... Emission Specifications for Reason- 5/30/2007 12/3/2008 [Insert FR page number ably Available Control Technology where document begins]. (RACT). Section 117.110 ..... Emission Specifications for Attainment 5/30/2007 12/3/2008 [Insert FR page number 117.110(c) not in SIP. Demonstration. where document begins]. Section 117.115 ..... Alternative Plant-Wide Emission Speci- 5/30/2007 12/3/2008 [Insert FR page number fications. where document begins]. Section 117.123 ..... Source Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.130 ..... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.135 ..... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.140 ..... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.145..... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.150 ..... Initial Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.152 ..... Final Control Plan Procedures for Rea- 5/30/2007 12/3/2008 [Insert FR page number sonably Available Control Tech- where document begins]. nology. Section 117.154 ..... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.156 ..... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 2—Dallas-Fort Worth Ozone Nonattainment Area Major Sources

Section 117.200 ..... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.203 ..... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.205..... Emission Specifications for Reason- 5/30/2007 12/3/2008 [Insert FR page number ably Available Control Technology where document begins]. (RACT). Section 117.210 ..... Emission Specifications for Attainment 5/30/2007 12/3/2008 [Insert FR page number 117.210(c) not in SIP. Demonstration. where document begins]. Section 117.215 ..... Alternative Plant-Wide Emission Speci- 5/30/2007 12/3/2008 [Insert FR page number fications. where document begins]. Section 117.223 ..... Source Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.230 ..... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.235 ..... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.240 ..... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.245..... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins].

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State State citation Title/subject approval/ EPA approval date Explanation submittal date

Section 117.252 ..... Final Control Plan Procedures for Rea- 5/30/2007 12/3/2008 [Insert FR page number sonably Available Control Tech- where document begins]. nology. Section 117.254 ..... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.256 ..... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 3—Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources

Section 117.300 ..... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.303 ..... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.305..... Emission Specifications for Reason- 5/30/2007 12/3/2008 [Insert FR page number ably Available Control Technology where document begins]. (RACT). Section 117.310 ..... Emission Specifications for Attainment 5/30/2007 12/3/2008 [Insert FR page number 117.310(c) not in SIP. Demonstration. where document begins]. Section 117.315 ..... Alternative Plant-Wide Emission Speci- 5/30/2007 12/3/2008 [Insert FR page number fications. where document begins]. Section 117.320 ..... System Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.223 ..... Source Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.330 ..... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.335 ..... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.340 ..... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.345..... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.350 ..... Initial Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.352 ..... Final Control Plan Procedures for Rea- 5/30/2007 12/3/2008 [Insert FR page number sonably Available Control Tech- where document begins]. nology. Section 117.354 ..... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.356 ..... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 4—Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources

Section 117.400 ..... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.403 ..... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.410 ..... Emission Specifications for Eight-Hour 5/30/2007 12/3/2008 [Insert FR page number 117.410(d) not in SIP. Attainment Demonstration. where document begins]. Section 117.423 ..... Source Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.430 ..... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.435 ..... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.440 ..... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.445..... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.450 ..... Initial Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.454 ..... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications.

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State State citation Title/subject approval/ EPA approval date Explanation submittal date

Section 117.456 ..... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Subchapter C—Combustion Control at Major Utility Electric Generation Sources in Ozone Nonattainment Areas

Division 1—Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources

Section 117.1000 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1003 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1005... Emission Specifications for Reason- 5/30/2007 12/3/2008 [Insert FR page number ably Available Control Technology where document begins]. (RACT). Section 117.1010 ... Emission Specifications for Attainment 5/30/2007 12/3/2008 [Insert FR page number 117.1010(b) not in Demonstration. where document begins]. SIP. Section 117.1015... Alternative System-Wide Emission 5/30/2007 12/3/2008 [Insert FR page number Specifications. where document begins]. Section 117.1020 ... System Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1035 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1040 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.1045... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.1052 ... Final Control Plan Procedures for Rea- 5/30/2007 12/3/2008 [Insert FR page number sonably Available Control Tech- where document begins]. nology. Section 117.1054 ... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.1056 ... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 2—Dallas-Fort Worth Ozone Nonattainment Area Utility Electric Generation Sources

Section 117.1100 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1103 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1105... Emission Specifications for Reason- 5/30/2007 12/3/2008 [Insert FR page number ably Available Control Technology where document begins]. (RACT). Section 117.1110 ... Emission Specifications for Attainment 5/30/2007 12/3/2008 [Insert FR page number Demonstration. where document begins]. Section 117.1115... Alternative System-Wide Emission 5/30/2007 12/3/2008 [Insert FR page number Specifications. where document begins]. Section 117.1120 ... System Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1135 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1140 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.1145... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.1152 ... Final Control Plan Procedures for Rea- 5/30/2007 12/3/2008 [Insert FR page number sonably Available Control Tech- where document begins]. nology. Section 117.1154 ... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.1156 ... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 3—Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources

Section 117.1200 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State State citation Title/subject approval/ EPA approval date Explanation submittal date

Section 117.1203 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1205... Emission Specifications for Reason- 5/30/2007 12/3/2008 [Insert FR page number 117.1210(b) not in ably Available Control Technology where document begins]. SIP. (RACT). Section 117.1210 ... Emission Specifications for Attainment 5/30/2007 12/3/2008 [Insert FR page number Demonstration. where document begins]. Section 117.1215... Alternative System-Wide Emission 5/30/2007 12/3/2008 [Insert FR page number Specifications. where document begins]. Section 117.1220 ... System Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1235 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1240 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.1245... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.1252 ... Final Control Plan Procedures for Rea- 5/30/2007 12/3/2008 [Insert FR page number sonably Available Control Tech- where document begins]. nology. Section 117.1254 ... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.1256 ... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 4—Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources

Section 117.1300 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1303 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1310 ... Emission Specifications for Eight-Hour 5/30/2007 12/3/2008 [Insert FR page number 117.1310(b) not in Attainment Demonstration. where document begins]. SIP. Section 117.1335 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1340 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.1345... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.1350 ... Initial Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.1354 ... Final Control Plan Procedures for At- 5/30/2007 12/3/2008 [Insert FR page number tainment Demonstration Emission where document begins]. Specifications. Section 117.1356 ... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Subchapter D—Combustion Control at Minor Sources in Ozone Nonattainment Areas

Division 1—Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources

Section 117.2000 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2003 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2010 ... Emission Specification ...... 5/30/2007 12/3/2008 [Insert FR page number 117.2010(i) not in where document begins]. SIP. Section 117.2030 ... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2035 ... Monitoring and Testing Requirements 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2045 ... Recordkeeping and Reporting Require- 5/30/2007 12/3/2008 [Insert FR page number ments. where document begins].

Division 2—Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources

Section 117.2100 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State State citation Title/subject approval/ EPA approval date Explanation submittal date

Section 117.2103 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2110 ... Emission Specifications for Eight-Hour 5/30/2007 12/3/2008 [Insert FR page number 117.2110(h) not in Attainment Demonstrations. where document begins]. SIP. Section 117.2130 ... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2135 ... Monitoring and Testing Requirements 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.2145 ... Recordkeeping and Reporting Require- 5/30/2007 12/3/2008 [Insert FR page number ments. where document begins].

Subchapter E—Multi-Region Combustion Control

Division 1—Utility Electric Generation in East and Central Texas

Section 117.3000 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3003 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3005 ... Gas-Fired Steam Generation ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3010 ... Emission Specifications ...... 5/30/2007 12/3/2008 [Insert FR page number 117.3010(2) not in where document begins]. SIP. Section 117.3020 ... System Cap ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3035 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3040 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.3045... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.3054 ... Final Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3056 ... Revision of Final Control Plan ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 2—Cement Kilns

Section 117.260 ..... Cement Kiln Definitions ...... 04/19/00, 03/26/04, 69 FR 15686 ...... Also finalizes 65 FR 03/05/03 64914. Section 117.261 ..... Applicability ...... 04/19/00 03/26/04, 69 FR 15686. Section 117.265 ..... Emission Specifications ...... 04/19/00, 03/26/04, 69 FR 15686 ...... Also finalizes 65 FR 03/05/03 64914. Section 117.273 ..... Continuous Demonstration of Compli- 04/19/00 03/26/04, 69 FR 15686. ance. Section 117.279..... Notification, Recordkeeping, and Re- 04/19/00, 03/26/04, 69 FR 15686. porting Requirements. 03/05/03 Section 117.283 ..... Source Cap ...... 04/19/00, 03/26/04, 69 FR 15686. 03/05/03 Section 117.524 ..... Compliance Schedule for Cement Kilns 04/19/00, 03/26/04, 69 FR 15686. 03/05/03

Division 3—Water Heaters, Small Boilers, and Process Heaters

Section 117.3200 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3201 ... Definitions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3203 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3205 ... Emission Specifications ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3210 ... Certification requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3215 ... Notification and Labeling Requirements 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 4—East Texas Combustion

Section 117.3300 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State State citation Title/subject approval/ EPA approval date Explanation submittal date

Section 117.3303 ... Exemptions ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3310 ... Emission Specifications for Eight-Hour 5/30/2007 12/3/2008 [Insert FR page number 117.3310(e) not in Attainment Demonstration. where document begins]. SIP. Section 117.3330 ... Operating Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.3335... Monitoring, Notification, and Testing 5/30/2007 12/3/2008 [Insert FR page number Requirements. where document begins]. Section 117.3345 ... Recordkeeping and Reporting Require- 5/30/2007 12/3/2008 [Insert FR page number ments. where document begins].

Subchapter F—Acid Manufacturing

Division 1—Adipic Acid Manufacturing

Section 117.4000 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4005 ... Emission Specifications ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4025... Alternative Case Specific Specifica- 5/30/2007 12/3/2008 [Insert FR page number tions. where document begins]. Section 117.4035 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4040 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.4045... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.4050 ... Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 2—Nitric Acid Manufacturing—Ozone Nonattainment Areas

Section 117.4100 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4105 ... Emission Specifications ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4125... Alternative Case Specific Specifica- 5/30/2007 12/3/2008 [Insert FR page number tions. where document begins]. Section 117.4135 ... Initial Demonstration of Compliance .... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4140 ... Continuous Demonstration of Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins]. Section 117.4145... Notification, Recordkeeping, and Re- 5/30/2007 12/3/2008 [Insert FR page number porting Requirements. where document begins]. Section 117.4150 ... Control Plan Procedures ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 2—Nitric Acid Manufacturing—Ozone Nonattainment Areas

Section 117.4200 ... Applicability ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4205 ... Emission Specifications ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.4210... Applicability of Federal New Source 5/30/2007 12/3/2008 [Insert FR page number Performance Standards. where document begins].

Subchapter G—General Monitoring and Testing Requirements

Division 1—Compliance Stack Testing and Report Requirements

Section 117.8000 ... Stack Testing Requirements ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.8010 ... Compliance Stack Test Reports ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Division 2—Emission Monitoring

Section 117.8100 ... Emission Monitoring System Require- 5/30/2007 12/3/2008 [Insert FR page number ments for Industrial, Commercial, where document begins]. and Institutional Sources.

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EPA-APPROVED REGULATIONS IN THE TEXAS SIP—Continued

State State citation Title/subject approval/ EPA approval date Explanation submittal date

Section 117.8110 ... Emission Monitoring System Require- 5/30/2007 12/3/2008 [Insert FR page number ments for Utility Electric Generation where document begins]. Sources. Section 117.8120 ... Carbon Monoxide (CO) Monitoring ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.8130 ... Ammonia Monitoring ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins]. Section 117.8140 ... Emission Monitoring for Engines ...... 5/30/2007 12/3/2008 [Insert FR page number where document begins].

Subchapter H—Administrative Provisions

Division 1—Compliance Schedules

Section 117.9000... Compliance Schedule for Beaumont- 5/30/2007 12/3/2008 [Insert FR page number Port Arthur Ozone Nonattainment where document begins]. Area Major Sources. Section 117.9010... Compliance Schedule for Dallas-Fort 5/30/2007 12/3/2008 [Insert FR page number Worth Ozone Nonattainment Area where document begins]. Major Sources. Section 117.9020 ... Compliance Schedule for Houston-Gal- 5/30/2007 12/3/2008 [Insert FR page number veston-Brazoria Ozone Nonattain- where document begins]. ment Area Major Sources. Section 117.9030... Compliance Schedule for Dallas-Fort 5/30/2007 12/3/2008 [Insert FR page number Worth Eight-Hour Ozone Nonattain- where document begins]. ment Area Major Sources. Section 117.9100... Compliance Schedule for Beaumont- 5/30/2007 12/3/2008 [Insert FR page number Port Arthur Ozone Nonattainment where document begins]. Area Utility Electric Generation Sources. Section 117.9110... Compliance Schedule for Dallas-Fort 5/30/2007 12/3/2008 [Insert FR page number Worth Ozone Nonattainment Area where document begins]. Utility Electric Generation Sources. Section 117.9120 ... Compliance Schedule for Houston-Gal- 5/30/2007 12/3/2008 [Insert FR page number veston-Brazoria Ozone Nonattain- where document begins]. ment Area Utility Electric Generation Sources. Section 117.9130... Compliance Schedule for Dallas-Fort 5/30/2007 12/3/2008 [Insert FR page number Worth Eight-Hour Ozone Nonattain- where document begins]. ment Area Utility Electric Generation Sources. Section 117.9200 ... Compliance Schedule for Houston-Gal- 5/30/2007 12/3/2008 [Insert FR page number veston-Brazoria Ozone Nonattain- where document begins]. ment Area Minor Sources. Section 117.9210... Compliance Schedule for Dallas-Fort 5/30/2007 12/3/2008 [Insert FR page number Worth Eight-Hour Ozone Nonattain- where document begins]. ment Area Minor Sources. Section 117.9300 ... Compliance Schedule for Utility Elec- 5/30/2007 12/3/2008 [Insert FR page number tric Generation in East and Central where document begins]. Texas. Section 117.9340 ... Compliance Schedule for East Texas 5/30/2007 12/3/2008 [Insert FR page number Combustion. where document begins]. Section 117.9500... Compliance Schedule for Nitric Acid 5/30/2007 12/3/2008 [Insert FR page number and Adipic Acid Manufacturing where document begins]. Sources.

Subchapter H—Administrative Provisions

Division 2—Compliance Flexibility

Section 117.9800... Use of Emission Credits for Compli- 5/30/2007 12/3/2008 [Insert FR page number ance. where document begins].

*******

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[FR Doc. E8–28681 Filed 12–2–08; 8:45 am] available in the electronic docket at C. Can I File an Objection or Hearing BILLING CODE 6560–50–P http://www.regulations.gov, or, if only Request? available in hard copy, at the OPP Under section 408(g) of FFDCA, 21 Regulatory Public Docket in Rm. S– U.S.C. 346a, any person may file an ENVIRONMENTAL PROTECTION 4400, One Potomac Yard (South Bldg.), objection to any aspect of this regulation AGENCY 2777 S. Crystal Dr., Arlington, VA. The and may also request a hearing on those Docket Facility is open from 8:30 a.m. 40 CFR Part 180 objections. You must file your objection to 4 p.m., Monday through Friday, or request a hearing on this regulation [EPA–HQ–OPP–2007–1106; FRL–8387–9] excluding legal holidays. The Docket in accordance with the instructions Facility telephone number is (703) 305– provided in 40 CFR part 178. To ensure Chlorothalonil; Pesticide Tolerances 5805. proper receipt by EPA, you must FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection identify docket ID number EPA–HQ– Agency (EPA). Susan Stanton, Registration Division OPP–2007–1106 in the subject line on (7505P), Office of Pesticide Programs, the first page of your submission. All ACTION: Final rule. Environmental Protection Agency, 1200 requests must be in writing, and must be SUMMARY: This regulation establishes Pennsylvania Ave., NW., Washington, mailed or delivered to the Hearing Clerk tolerances for combined residues of DC 20460–0001; telephone number: as required by 40 CFR part 178 on or chlorothalonil and its 4-hydroxy (703) 305–5218; e-mail address: before February 2, 2009. metabolite in or on Brassica, head and [email protected]. In addition to filing an objection or stem, subgroup 5A; ginseng; SUPPLEMENTARY INFORMATION: hearing request with the Hearing Clerk horseradish; lentil; okra; rhubarb; as described in 40 CFR part 178, please vegetable, cucurbit, group 9; vegetable, I. General Information submit a copy of the filing that does not fruiting, group 8, except tomato; and A. Does this Action Apply to Me? contain any CBI for inclusion in the yam, true. It also establishes a tolerance public docket that is described in You may be potentially affected by with regional registration for combined ADDRESSES. Information not marked this action if you are an agricultural residues of chlorothalonil and its confidential pursuant to 40 CFR part 2 producer, food manufacturer, or metabolite on persimmon and removes may be disclosed publicly by EPA pesticide manufacturer. Potentially existing tolerances for combined without prior notice. Submit this copy, affected entities may include, but are residues of chlorothalonil and its identified by docket ID number EPA– not limited to those engaged in the metabolite on broccoli, brussels sprouts, HQ–OPP–2007–1106, by one of the following activities: cabbage, cauliflower, cucumber, melon, following methods: • Crop production (NAICS code 111). • Federal eRulemaking Portal: http:// non-bell pepper, pumpkin, summer • squash, and winter squash; as well as Animal production (NAICS code www.regulations.gov. Follow the on-line the time-limited tolerance on ginseng. 112). instructions for submitting comments. • • These tolerances are no longer needed, Food manufacturing (NAICS code Mail: Office of Pesticide Programs 311). (OPP) Regulatory Public Docket (7502P), since they are superseded by the new • tolerances on Brassica, cucurbit and Pesticide manufacturing (NAICS Environmental Protection Agency, 1200 fruiting vegetables and the permanent code 32532). Pennsylvania Ave., NW., Washington, tolerance on ginseng. Interregional This listing is not intended to be DC 20460–0001. • Research Project Number 4 (IR–4) exhaustive, but rather to provide a guide Delivery: OPP Regulatory Public requested these tolerances under the for readers regarding entities likely to be Docket (7502P), Environmental Federal Food, Drug, and Cosmetic Act affected by this action. Other types of Protection Agency, Rm. S–4400, One (FFDCA). entities not listed in this unit could also Potomac Yard (South Bldg.), 2777 S. be affected. The North American Crystal Dr., Arlington, VA. Deliveries DATES: This regulation is effective Industrial Classification System are only accepted during the Docket December 3, 2008. Objections and (NAICS) codes have been provided to Facility’s normal hours of operation requests for hearings must be received assist you and others in determining (8:30 a.m. to 4 p.m., Monday through on or before February 2, 2009, and must whether this action might apply to Friday, excluding legal holidays). be filed in accordance with the certain entities. If you have any Special arrangements should be made instructions provided in 40 CFR part questions regarding the applicability of for deliveries of boxed information. The 178 (see also Unit I.C. of the this action to a particular entity, consult Docket Facility telephone number is SUPPLEMENTARY INFORMATION). the person listed under FOR FURTHER (703) 305–5805. ADDRESSES: EPA has established a INFORMATION CONTACT. docket for this action under docket II. Petition for Tolerance identification (ID) number EPA–HQ– B. How Can I Access Electronic Copies In the Federal Register of January 23, OPP–2007–1106. All documents in the of this Document? 2008 (73 FR 3964) (FRL–8345–7), EPA docket are listed in the docket index In addition to accessing electronically issued a notice pursuant to section available at http://www.regulations.gov. available documents at http:// 408(d)(3) of FFDCA, 21 U.S.C. Although listed in the index, some www.regulations.gov, you may access 346a(d)(3), announcing the filing of a information is not publicly available, this Federal Register document pesticide petition (PP 7E7270) by e.g., Confidential Business Information electronically through the EPA Internet Interregional Research Project Number 4 (CBI) or other information whose under the ‘‘Federal Register’’ listings at (IR–4), 500 College Road East, Suite disclosure is restricted by statute. http://www.epa.gov/fedrgstr. You may 201W, Princeton, NJ 08540. The petition Certain other material, such as also access a frequently updated requested that 40 CFR 180.275 be copyrighted material, is not placed on electronic version of EPA’s tolerance amended by establishing tolerances for the Internet and will be publicly regulations at 40 CFR part 180 through combined residues of the fungicide available only in hard copy form. the Government Printing Office’s e-CFR chlorothalonil, Publicly available docket materials are site at http://www.gpoaccess.gov/ecfr. tetrachloroisophthalonitrile, and its

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metabolite, 4-hydroxy-2,5,6- subgroup 5A at 5.0 ppm; ginseng at 4.0 forestomach were observed in both trichloroisophthalonitrile, in or on ppm; horseradish at 4.0 ppm; lentil at sexes of rats and mice with the older vegetables, fruiting, group 8 at 5.0 parts 0.10 ppm; okra at 6.0 ppm; persimmon data set. The new carcinogenicity study per million (ppm); okra at 5.0 ppm; at 1.5 ppm; rhubarb at 4.0 ppm; in mice also demonstrates that persimmon at 1.9 ppm; horseradish at vegetable, cucurbit, group 9 at 5.0 ppm; chlorothalonil produces similar 4.0 ppm; rhubarb at 5.0 ppm; ginseng at vegetable, fruiting, group 8, except papillomas of the forestomach. Based on 3.0 ppm; yam at 5.0 ppm; lupine at 0.1 tomato at 6.0 ppm; and yam, true at 0.10 the increased incidence of renal ppm; lentil at 0.1 ppm; vegetable, ppm. EPA’s assessment of exposures adenomas and carcinomas observed in cucurbit, group 9 at 5.0 ppm; and and risks associated with establishing both sexes of rats and mice, the rarity Brassica, head and stem, subgroup 5A at tolerances follows. of the tumor response in the kidney, and 5.0 ppm. That notice referenced a the increased incidence of papillomas A. Toxicological Profile summary of the petition prepared by GB and/or carcinomas of the forestomach in Biosciences Corporation, the registrant, EPA has evaluated the available rats and mice, EPA classified on behalf of IR-4, which is available to toxicity data and considered its validity, chlorothalonil as a ‘‘likely’’ human the public in the docket, http:// completeness, and reliability as well as carcinogen by all routes of exposure. www.regulations.gov. There were no the relationship of the results of the Several studies are available that comments received in response to the studies to human risk. EPA has also address the mechanism of notice of filing. considered available information carcinogenicity of chlorothalonil. Based Based upon review of the data concerning the variability of the on the mechanistic data submitted for supporting the petition, EPA has revised sensitivities of major identifiable the kidney tumor response the tolerance levels for ginseng, okra, subgroups of consumers, including demonstrating a toxic response of the persimmon, rhubarb, and yam. EPA has infants and children. kidney and forestomach to repeated also determined that a tolerance is not Chlorothalonil has low-acute toxicity dietary administration of chlorothalonil, needed for lupine and that the proposed by the oral and dermal routes of the mode of action for tumor induction tolerance for vegetable, fruiting, group 8 exposure and is moderately toxic by the of chlorothalonil is likely to be non- should exclude tomato and be set inhalation route. It is severely irritating linear. With regard to the forestomach slightly higher than proposed. The to the eye and moderately irritating to tumors, data submitted by the registrant reasons for these changes are explained the skin but is not a skin sensitizer. showing cell proliferation and non- in Unit IV.C. Chlorothalonil causes gastric irritation neoplastic pathology at doses near those upon ingestion. In a subchronic dog producing a tumorigenic response also III. Aggregate Risk Assessment and study, both males and females exhibited support a non-linear mode of action for Determination of Safety decreased body weights, body-weight chlorothalonil. Based on the weight of Section 408(b)(2)(A)(i) of FFDCA gains and food consumption. In a the evidence presented to the Agency, allows EPA to establish a tolerance (the chronic dog study, there was one death EPA has concluded that a non-linear legal limit for a pesticide chemical (female), decreased body-weight gain risk assessment using a Margin of residue in or on a food) only if EPA and food consumption, macroscopic Exposure (MOE) approach is determines that the tolerance is ‘‘safe.’’ and microscopic pathological findings appropriate for chlorothalonil. Section 408(b)(2)(A)(ii) of FFDCA in the stomach (including thickened No developmental toxicity was defines ‘‘safe’’ to mean that ‘‘there is a appearance of the stomach and intra- observed in two rat developmental reasonable certainty that no harm will epithelial nuclear pyknosis in the toxicity studies or in one of the two result from aggregate exposure to the mucosal epithelium of the antrum of the rabbit developmental toxicity studies pesticide chemical residue, including stomach) and a very slight hypertrophy available for chlorothalonil. In the other all anticipated dietary exposures and all of the cells in the zona fasciculata of the rabbit study, there was an increased other exposures for which there is adrenal glands. In a second chronic dog incidence of thirteen ribs and reduced reliable information.’’ This includes study, vacuolated epithelium of the sternebrae in the absence of maternal exposure through drinking water and in kidney was observed. In a subchronic toxicity. There was no evidence of residential settings, but does not include mouse study, chlorothalonil produced reproductive toxicity in either rat occupational exposure. Section hyperplasia and hyperkeratosis of the reproduction study available for 408(b)(2)(C) of FFDCA requires EPA to squamous epithelium of the stomach. In chlorothalonil. give special consideration to exposure a subchronic rat study, chlorothalonil There is no evidence that of infants and children to the pesticide increased relative kidney weights and chlorothalonil causes neurotoxicity. chemical residue in establishing a produced dilated renal medullary There was no evidence of tolerance and to ‘‘ensure that there is a tubules as well as hyperplasia and neuropathology, and there were no reasonable certainty that no harm will hyperkeratosis of the non-glandular area central nervous system (CNS) result to infants and children from of the stomach. In rodent chronic malformations, effects on brain weights, aggregate exposure to the pesticide toxicity studies, there was an increased abnormal behavior or effects on chemical residue....’’ incidence of epithelial hyperplasia of offspring sexual maturation observed in Consistent with section 408(b)(2)(D) the limiting ridge and non-glandular the toxicity studies available for of FFDCA, and the factors specified in region of the stomach in rats and mice. chlorothalonil, including a subchronic section 408(b)(2)(D) of FFDCA, EPA has There are two toxicology data sets, neurotoxicity study in rats. reviewed the available scientific data submitted by different basic registrants, In a 90–day oral toxicity study in rats, and other relevant information in available for chlorothalonil. There was a slight decrease in thymus weight was support of this action. EPA has no indication of a carcinogenic response observed at the highest dose tested, a sufficient data to assess the hazards of in the rat chronic toxicity/ possible indication of immunotoxicity. and to make a determination on carcinogenicity study from the newer However, since there were no aggregate exposure for the petitioned-for data set; however, an increased histopathological findings noted in the tolerances for combined residues of incidence of renal adenomas and thymus and no effects on the thymus chlorothalonil and its 4-hydroxy carcinomas and an increased incidence observed in other subchronic or metabolite on Brassica, head and stem, of papillomas and/or carcinomas of the chronic/carcinogenicity studies in rats,

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EPA has concluded that the slight effect chronic population adjusted dose Subgroup 5A, Cucurbit Vegetable Group on thymus weight seen in this study is (cPAD). The aPAD and cPAD are 9, Fruiting Vegetable Group 8, Ginseng, a spurious effect and not indicative of calculated by dividing the POD by all Horseradish, Lentil, Lupin, Okra, immunotoxicity. applicable UFs. Aggregate short-term, Persimmon, Rhubarb, Yam, Lychee, and 4-hydroxy-2,5,6- intermediate-term, and chronic-term Starfruit. Human-Health Risk trichloroisophthalonitrile is a major risks are evaluated by comparing food, Assessment at page 36 in docket ID metabolite of chlorothalonil in plants water, and residential exposure to the number EPA–HQ–OPP–2007–1106. and the predominant residue in POD to ensure that the MOE called for C. Exposure Assessment animals. Toxicology data available for by the product of all applicable UFs is this metabolite include acute oral and not exceeded. This latter value is 1. Dietary exposure from food and subchronic toxicity studies in rats, referred to as the Level of Concern feed uses. In evaluating dietary developmental toxicity studies in rats (LOC). exposure to chlorothalonil and its 4- and rabbits, a reproduction toxicity For non-threshold risks, the Agency hydroxy metabolite, EPA considered study in rats, a chronic toxicity study in assumes that any amount of exposure exposure under the petitioned-for dogs and chronic/carcinogenicity will lead to some degree of risk. Thus, tolerances as well as all existing studies in rats and mice. The results of the Agency estimates risk in terms of the chlorothalonil tolerances in 40 CFR these studies indicate that the toxicity of probability of an occurrence of the 180.275. EPA assessed dietary the 4-hydroxy metabolite is similar to adverse effect greater than that expected exposures from chlorothalonil and its that of parent chlorothalonil. Based on in a lifetime. For more information on metabolite in food as follows: this determination, EPA has concluded the general principles EPA uses in risk i. Acute exposure. Quantitative acute that the chlorothalonil risk assessment characterization and a complete dietary exposure and risk assessments adequately accounts for potential description of the risk assessment are performed for a food-use pesticide, toxicity resulting from exposure to 4- process, see http://www.epa.gov/ if a toxicological study has indicated the hydroxy chlorothalonil, and a separate pesticides/factsheets/riskassess.htm. possibility of an effect of concern risk assessment is not needed. The endpoint used to establish the occurring as a result of a 1–day or single Specific information on the studies cPAD for chlorothalonil has changed exposure. No such effects were received and the nature of the adverse since EPA conducted its previous risk identified in the toxicological studies effects caused by chlorothalonil and 4- assessment, described in the Federal for chlorothalonil; therefore, a hydroxy chlorothalonil, as well as the Register of July 27, 2007 (72 FR 41224) quantitative acute dietary exposure no-observed-adverse-effect-level (FRL–8127–9). Previously, the cPAD assessment is unnecessary. (NOAEL) and the lowest-observed- was based on forestomach lesions ii. Chronic exposure. In conducting adverse-effect-level (LOAEL) from the observed in the mouse carcinogenicity the chronic dietary exposure assessment toxicity studies can be found at http:// study. EPA has reconsidered this EPA used the food consumption data www.regulations.gov in the document endpoint and concluded that it is not from the United States Department of Chlorothalonil. Petition For Tolerances appropriate for use in human risk Agriculutre (USDA) 1994–1996 and on Brassica Head and Stem Subgroup assessment because of differences in the 1998 Nationwide Continuing Surveys of 5A, Cucurbit Vegetable Group 9, physiological characteristics of the Food Intakes by Individuals (CSFII). As Fruiting Vegetable Group 8, Ginseng, forestomach in rodents compared to to residue levels in food, EPA assumed Horseradish, Lentil, Lupin, Okra, other species, including humans. 100% crop treated (CT), tolerance-level Persimmon, Rhubarb, Yam, Lychee, and Therefore, EPA has selected another residues and default processing factors Starfruit. Human-Health Risk endpoint (kidney lesions observed in for all foods except tomatoes (average Assessment at page 15 in docket ID the rat chronic toxicity/carcinogenicity field-trial residues and empirical number EPA–HQ–OPP–2007–1106. study) as the basis for the cPAD. processing factors used), peppers The dose used to assess risk from (average field-trial residues used), and B. Toxicological Endpoints short-term and intermediate-term snap beans (average field-trial residues For hazards that have a threshold incidental oral exposure to used). below which there is no appreciable chlorothalonil has also changed. iii. Cancer. Because chlorothalonil’s risk, a toxicological point of departure Previously, EPA assessed incidental oral cancer effects are the result of chronic (POD) is identified as the basis for exposures based on forestomach and exposure, EPA is using the chronic derivation of reference values for risk kidney effects observed in the 2– exposure assessment to assess assessment. The POD may be defined as generation reproduction study (LOAEL chlorothalonil’s cancer risk. the NOAEL in the toxicology study = 30.8 milligrams/kilograms/day (mg/ iv. Anticipated residue information. identified as appropriate for use in risk kg/day)). EPA is now assessing Section 408(b)(2)(E) of FFDCA assessment. However, if a NOAEL incidental oral exposures to authorizes EPA to use available data and cannot be determined, the LOAEL or a chlorothalonil based on kidney effects information on the anticipated residue Benchmark Dose (BMD) approach is observed in a different study, the 90– levels of pesticide residues in food and sometimes used for risk assessment. day rat feeding study (LOAEL = 10 mg/ the actual levels of pesticide residues Uncertainty/safety factors (UFs) are kg/day). This study provides the lowest that have been measured in food. If EPA used in conjunction with the POD to NOAEL (3.0 mg/kg/day) and LOAEL in relies on such information, EPA must take into account uncertainties inherent the database for short-term/ require pursuant to FFDCA section in the extrapolation from laboratory intermediate-term exposures, and the 408(f)(1) that data be provided 5 years animal data to humans and in the study length is the most appropriate to after the tolerance is established, variations in sensitivity among members assess exposures of these durations. modified, or left in effect, demonstrating of the human population as well as A summary of the toxicological that the levels in food are not above the other unknowns. Safety is assessed for endpoints for chlorothalonil used for levels anticipated. For the present acute and chronic dietary risks by human risk assessment can be found at action, EPA will issue such data call-ins comparing aggregate food and water http://www.regulations.gov in the as are required by FFDCA section exposure to the pesticide to the acute document Chlorothalonil. Petition For 408(b)(2)(E) and authorized under population adjusted dose (aPAD) and Tolerances on Brassica Head and Stem FFDCA section 408(f)(1). Data will be

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required to be submitted no later than inhalation exposures to chlorothalonil based on reliable data that a different 5 years from the date of issuance of on treated golf courses and in buildings margin of safety will be safe for infants these tolerances. from treated paint are expected to be and children. This additional margin of 2. Dietary exposure from drinking negligible, and the Agency has not safety is commonly referred to as the water. The residues of concern in identified a hazard of concern for short- FQPA safety factor (SF). In applying this drinking water include parent term or intermediate-term dermal provision, EPA either retains the default chlorothalonil and its 4-hydroxy exposures; therefore, EPA assessed only value of 10X, or uses a different metabolite. The Agency used screening short-term and intermediate-term additional safety factor when reliable level water exposure models in the inhalation exposures of handlers using data available to EPA support the choice dietary exposure analysis and risk chlorothalonil-treated paints and of a different factor. assessment for chlorothalonil and 4- episodic postapplication incidental oral 2. Prenatal and postnatal sensitivity. hydroxy chlorothalonil in drinking exposures of children from the use of The pre- and postnatal toxicity database water. These simulation models take chlorothalonil-treated paints in for chlorothalonil includes rat and into account data on the physical, residential buildings. rabbit developmental toxicity studies chemical, and fate/transport 4. Cumulative effects from substances (two of each) and two reproduction characteristics of chlorothalonil and 4- with a common mechanism of toxicity. toxicity studies in rats, as well as a hydroxy chlorothalonil. Further Section 408(b)(2)(D)(v) of FFDCA subchronic neurotoxicity study in rats. information regarding EPA drinking requires that, when considering whether In addition, there are developmental water models used in pesticide to establish, modify, or revoke a toxicity studies in rats and rabbits and exposure assessment can be found at tolerance, the Agency consider reproduction toxicity studies in rats http://www.epa.gov/oppefed1/models/ ‘‘available information’’ concerning the available for the 4-hydroxy metabolite water/index.htm. cumulative effects of a particular as well as the major soil degradate, Based on the Pesticide Root Zone pesticide’s residues and ‘‘other SDS–46851. Model/Exposure Analysis Modeling substances that have a common There was no evidence of increased System (PRZM/EXAMS) and Screening mechanism of toxicity.’’ qualitative or quantitative susceptibility Concentration in Ground Water (SCI- Chlorothalonil is a polychlorinated of fetuses or offspring in any of the GROW) models, the estimated drinking fungicide. Other members of this class submitted developmental or water concentrations (EDWCs) of include hexachlorobenzene (HCB), reproduction studies for chlorothalonil chlorothalonil and its 4-hydroxy pentachlorophenol (PCP), and or its metabolites, except in one of the metabolite for chronic exposures are pentachloronitrobenzene (PCNB). This chlorothalonil developmental toxicity estimated to be 68.2 parts per billion is a very loose classification of studies in rabbits. In the newer of the (ppb) for surface water and 3.2 ppb for compounds related only in being two rabbit studies, there was a slight ground water. polychlorinated and acting as increase in the incidence of two Modeled estimates of drinking water fungicides. Available data do not variations (13th rib and reduced concentrations were directly entered support a finding for a common sternebrae) in fetuses in the high-dose into the dietary exposure model. For mechanism of toxicity for chlorothalonil group. No maternal effects occurred at chronic dietary risk assessment, the and the other pesticides in the any dose in this study. EPA’s concern water concentration of value 68.2 ppb polychlorinated fungicide class. for this equivocal evidence of was used to assess the contribution from Chlorothalonil produces renal (kidney) quantitative susceptibility is low, and drinking water. tubular adenomas and carcinomas and there are no residual uncertainties with 3. From non-dietary exposure. The papillomas of the stomach in rats. regard to prenatal and postnatal term ‘‘residential exposure’’ is used in Chlorothalonil also produces gastric susceptability, for the following reasons: this document to refer to non- lesions and kidney toxicity due to The variations were only observed in occupational, non-dietary exposure perturbation of mitochondrial one of the two developmental toxicity (e.g., for lawn and garden pest control, respiration. The other pesticides in the studies conducted in the same strain of indoor pest control, termiticides, and class do not have the same toxic effects rabbit at the same dose levels; these flea and tick control on pets). and do not have the same mode of variations are known to occur Chlorothalonil is currently registered action. For the purposes of this spontaneously within this strain (New for the following uses that could result tolerance action, therefore, EPA has Zealand White) of rabbit, as evidenced in residential exposures: As a fungicide assumed that chlorothalonil does not by the fact that the concurrent controls on golf courses and as a preservative in have a common mechanism of toxicity had high incidences of both variations; paints. EPA assessed residential with other substances. For information and there is a well-defined NOAEL for exposure using the following regarding EPA’s efforts to determine the study that is protective of these assumptions: There is potential for which chemicals have a common effects. short-term or intermediate-term dermal mechanism of toxicity and to evaluate 3. Conclusion. EPA has determined exposure of adults and children on golf the cumulative effects of such that reliable data show the safety of courses that have been treated with chemicals, see EPA’s website at http:// infants and children would be chlorothalonil. There is also potential www.epa.gov/pesticides/cumulative. adequately protected if the FQPA SF for short-term/intermediate-term dermal were reduced to 1X. That decision is and inhalation exposure of handlers of D. Safety Factor for Infants and based on the following findings: paints containing chlorothalonil and Children i. The toxicity database for potential for short-term/intermediate- 1. In general. Section 408(b)(2)(c) of chlorothalonil is complete, except for term postapplication dermal exposure of FFDCA provides that EPA shall apply acute neurotoxicity and immunotoxicity adults, as well as short-term/ an additional tenfold (10X) margin of studies, and EPA has determined that an intermediate-term postapplication safety for infants and children in the additional uncertainty factor (UF) is not dermal and episodic incidental oral case of threshold effects to account for required to account for potential exposures of children from the use of prenatal and postnatal toxicity and the neurotoxicity or immunotoxicity. The chlorothalonil-treated paints in completeness of the database on toxicity reasons for this determination are residential buildings. Postapplication and exposure unless EPA determines explained below:

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a. EPA began requiring functional underestimate the exposure and risks intermediate-term exposures, EPA has immunotoxicity testing of all food and posed by chlorothalonil. concluded the combined short-term/ non-food use pesticides on December intermediate-term food, water, and E. Aggregate Risks and Determination of 26, 2007. Since this requirement went residential exposures aggregated result Safety into effect after the tolerance petition in an aggregate MOE of 270 for adults. was submitted, these studies are not yet EPA determines whether acute and The MOE for adults includes food, available for chlorothalonil. In the chronic pesticide exposures are safe by drinking water, and short-term/ absence of specific immunotoxicity comparing aggregate exposure estimates intermediate-term inhalation exposure studies, EPA has evaluated the available to the aPAD and cPAD. The aPAD and of individuals mixing, loading, and chlorothalonil toxicity data to determine cPAD represent the highest safe applying chlorothalonil-treated paint whether an additional database UF is exposures, taking into account all with an airless sprayer, the handler needed to account for potential appropriate SFs. EPA calculates the exposure scenario resulting in the immunotoxicity. In a 90–day oral aPAD and cPAD by dividing the POD by highest estimated exposure to toxicity study in rats, a slight decrease all applicable UFs. For linear cancer chlorothalonil. in thymus weight was observed at the risks, EPA calculates the probability of As discussed in this unit, EPA also highest dose tested, a possible additional cancer cases given the assessed incidental oral exposure of indication of immunotoxicity. However, estimated aggregate exposure. Short- children from ingestion of paint chips since there were no histopathological term, intermediate-term, and chronic- containing chlorothalonil. The findings noted in the thymus and no term risks are evaluated by comparing estimated incidental oral MOE for effects on the thymus observed in other the estimated aggregate food, water, and children is 1,200. Ingestion of paint subchronic or chronic/carcinogenicity residential exposure to the POD to chips is considered to be an episodic, studies in rats, EPA has concluded that ensure that the MOE called for by the rather than a routine behavior; therefore, the slight effect on thymus weight seen product of all applicable UFs is not EPA has determined that it is not in this study is a spurious effect and not exceeded. appropriate to aggregate incidental oral 1. Acute risk. An acute aggregate risk indicative of immunotoxicity. Due to exposures with chronic exposures from assessment takes into account exposure the lack of evidence of immunotoxicity food and drinking water. estimates from acute dietary for chlorothalonil, EPA does not believe 4. Aggregate cancer risk for U.S. consumption of food and drinking that conducting immunotoxicity testing population. As discussed in unit III.A., water. No adverse effect resulting from will result in a NOAEL less than the EPA classified chlorothalonil as a a single-oral exposure was identified NOAEL of 2 mg/kg/day already ‘‘likely’’ human carcinogen by all routes and no acute dietary endpoint was established for chlorothalonil, and an of exposure, based on the increased selected. Therefore, chlorothalonil is not additional factor (UFDB) for database incidence of renal adenomas and expected to pose an acute risk. carcinomas observed in both sexes of uncertainties is not needed to account 2. Chronic risk. Using the exposure rats and mice, the rarity of the tumor for potential immunotoxicity. assumptions described in this unit for response in the kidney, and the b. Acute neurotoxicity testing is also chronic exposure, EPA has concluded increased incidence of papillomas and/ required as a result of changes made to that chronic exposure to chlorothalonil or carcinomas of the forestomach in rats the pesticide data requirements in from food and water will utilize 94% of and mice. EPA has determined that the December of 2007. Although an acute the cPAD for children, 1 to 2 years old, mechanism of carcinogenicity of study has not yet been submitted, there the population group receiving the chlorothalonil is non-linear (i.e., not a is no evidence of neurotoxicity in any greatest exposure. Based on the non-threshold effect) and that the point study in the toxicity database for explanation in Unit III.C.3., regarding of departure used in calculating the chlorothalonil, including a subchronic residential use patterns, chronic cPAD is protective of the cancer effects. neurotoxicity study. Therefore, EPA has residential exposure to residues of Since there are no uses of chlorothalonil concluded that an additional UF is not chlorothalonil is not expected. expected to result in chronic residential needed to account for the lack of these 3. Short-term/intermediate-term risk. exposure, and since chronic dietary data. Short-term or intermediate-term exposure for the overall U.S. population ii. Although there was equivocal aggregate exposure takes into account is less than the cPAD (43% of the evidence of increased quantitative short-term or intermediate-term cPAD), EPA concludes that aggregate susceptibility of fetuses to residential exposure plus chronic cancer risk from exposure to chlorothalonil exposure in one of two exposure from food and water chlorothalonil is below the LOC. rabbit developmental toxicity studies, (considered to be a background 5. Determination of safety. Based on the Agency did not identify any residual exposure level). uncertainties after establishing toxicity Chlorothalonil is currently registered these risk assessments, EPA concludes endpoints and traditional UFs to be for uses that could result in short-term that there is a reasonable certainty that used in the risk assessment. and intermediate-term residential no harm will result to the general iii. There are no residual uncertainties exposure and the Agency has population, or to infants and children identified in the exposure databases. determined that it is appropriate to from aggregate exposure to The dietary food exposure assessments aggregate chronic exposure through food chlorothalonil residues. utilized tolerances or anticipated and water with short-term and IV. Other Considerations residues that are based on reliable field intermediate-term residential exposures trial data. EPA made conservative to chlorothalonil. Since the doses and A. Analytical Enforcement Methodology (protective) assumptions in the ground endpoints selected for chlorothalonil to Adequate enforcement methodology and surface water modeling used to assess short-term and intermediate-term (gas chromatography (GC) method with assess exposure to chlorothalonil in exposure are identical, the short-term electron-capture detection (ECD)) is drinking water. EPA used similarly and intermediate-term risk estimates for available to enforce the tolerance conservative assumptions to assess chlorothalonil are the same. expression. The method may be postapplication incidental oral exposure Using the exposure assumptions requested from: Chief, Analytical of toddlers. These assessments will not described in this unit for short-term/ Chemistry Branch, Environmental

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Science Center, 701 Mapes Rd., Ft. 5.0 ppm; ginseng at 4.0 ppm; entitled Consultation and Coordination Meade, MD 20755–5350; telephone horseradish at 4.0 ppm; lentil at 0.10 with Indian Tribal Governments (65 FR number: (410) 305–2905; e-mail address: ppm; okra at 6.0 ppm; persimmon at 1.5 67249, November 9, 2000) do not apply [email protected]. ppm; rhubarb at 4.0 ppm; vegetable, to this final rule. In addition, this final cucurbit, group 9 at 5.0 ppm; vegetable, rule does not impose any enforceable B. International Residue Limits fruiting, group 8, except tomato at 6.0 duty or contain any unfunded mandate The Codex Alimentarius Commission ppm; and yam, true at 0.10 ppm. as described under Title II of the has established maximum residue limits Unfunded Mandates Reform Act of 1995 (MRLs) for chlorothalonil per se on VI. Statutory and Executive Order Reviews (UMRA) (Public Law 104–4). several commodities associated with This action does not involve any this petition: 7 ppm for sweet pepper; 5 This final rule establishes tolerances technical standards that would require ppm each for broccoli, brussels sprouts, under section 408(d) of FFDCA in Agency consideration of voluntary cucumber, and squash (summer and response to a petition submitted to the consensus standards pursuant to section winter); 2 ppm for melons (except Agency. The Office of Management and 12(d) of the National Technology watermelon); and 1 ppm each for Budget (OMB) has exempted these types Transfer and Advancement Act of 1995 cabbage, heads and cauliflower. Some of of actions from review under Executive (NTTAA), Public Law 104–113, section these MRLs are set at the same nominal Order 12866, entitled Regulatory 12(d) (15 U.S.C. 272 note). value as the U.S. tolerances (broccoli Planning and Review (58 FR 51735, and brussels sprouts from the Brassica October 4, 1993). Because this final rule VII. Congressional Review Act group; cucumber and squash from the has been exempted from review under The Congressional Review Act, 5 cucurbit group). However, since the U.S. Executive Order 12866, this final rule is U.S.C. 801 et seq., generally provides tolerance definition includes the 4- not subject to Executive Order 13211, that before a rule may take effect, the hydroxy metabolite, harmonization with entitled Actions Concerning Regulations agency promulgating the rule must CODEX is not possible at this time. That Significantly Affect Energy Supply, submit a rule report to each House of Distribution, or Use (66 FR 28355, May C. Revisions to Petitioned-For the Congress and to the Comptroller 22, 2001) or Executive Order 13045, Tolerances General of the United States. EPA will entitled Protection of Children from submit a report containing this rule and Based upon review of the data Environmental Health Risks and Safety other required information to the U.S. supporting the petition, EPA has revised Risks (62 FR 19885, April 23, 1997). Senate, the U.S. House of the tolerance levels for ginseng, okra, This final rule does not contain any Representatives, and the Comptroller persimmon, rhubarb, and yam. EPA has information collections subject to OMB General of the United States prior to also determined that a tolerance is not approval under the Paperwork publication of this final rule in the needed for lupine and that the proposed Reduction Act (PRA), 44 U.S.C. 3501 et Federal Register. This final rule is not tolerance for fruiting vegetable group 8 seq., nor does it require any special a ‘‘major rule’’ as defined by 5 U.S.C. should exclude tomato and be set considerations under Executive Order 804(2). slightly higher than proposed. EPA 12898, entitled Federal Actions to revised the tolerance levels for ginseng Address Environmental Justice in List of Subjects in 40 CFR Part 180 from 3.0 to 4.0 ppm, rhubarb from 5.0 Minority Populations and Low-Income to 4.0 ppm, persimmon from 1.9 to 1.5 Populations (59 FR 7629, February 16, Environmental protection, ppm, and vegetable, fruiting, group 8 1994). Administrative practice and procedure, and okra from 5.0 to 6.0 ppm, based on Since tolerances and exemptions that Agricultural commodities, Pesticides analyses of the residue field trial data are established on the basis of a petition and pests, Reporting and recordkeeping using the Agency’s Tolerance under section 408(d) of FFDCA, such as requirements. Spreadsheet in accordance with the the tolerance in this final rule, do not Dated: November 13, 2008. Agency’s Guidance for Setting Pesticide require the issuance of a proposed rule, Tolerances Based on Field Trial Data. the requirements of the Regulatory Lois Rossi, The Agency determined that a tolerance Flexibility Act (RFA) (5 U.S.C. 601 et Director, Registration Division, Office of is not needed for lupine, since residues seq.) do not apply. Pesticide Programs. on lupine are covered by the existing This final rule directly regulates ■ Therefore, 40 CFR chapter I is tolerance on dry bean seed. Tomato was growers, food processors, food handlers, amended as follows: excluded from fruiting vegetable group and food retailers, not States or tribes, 8 based on differences in the use pattern nor does this action alter the PART 180—[AMENDED] relationships or distribution of power for tomatoes and the other members of ■ 1. The authority citation for part 180 and responsibilities established by this group. The tolerance for yam was continues to read as follows: reduced from 5.0 to 0.1 ppm, based on Congress in the preemption provisions data translated from potato. The 5.0 of section 408(n)(4) of FFDCA. As such, Authority: 21 U.S.C. 321(q), 346a and 371. ppm level proposed by the petitioner the Agency has determined that this ■ 2. Section 180.275 is amended by: appears to have been a typographical action will not have a substantial direct ■ i. Removing the entries for Broccoli; error in the petition, since the 0.1 ppm effect on States or tribal governments, Brussels sprouts; Cabbage; Cauliflower; level was discussed elsewhere in the on the relationship between the national Cucumber; Melon; Pepper, nonbell (and text of the petition. government and the States or tribal its associated footnote); Pumpkin; governments, or on the distribution of Squash, summer; and Squash, winter V. Conclusion power and responsibilities among the from the table in paragraph (a)(1). Therefore, tolerances are established various levels of government or between ■ ii. Alphabetically adding commodities for combined residues of chlorothalonil, the Federal Government and Indian to the table in paragraph (a)(1). tetrachloroisophthalonitrile, and its tribes. Thus, the Agency has determined ■ iii. Revising paragraph (b). metabolite, 4-hydroxy-2,5,6- that Executive Order 13132, entitled ■ iv. Alphabetically adding trichloroisophthalonitrile, in or on Federalism (64 FR 43255, August 10, commodities to the table in paragraph Brassica, head and stem, subgroup 5A at 1999) and Executive Order 13175, (c) to read as follows:

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§ 180.275 Chlorothalonil; tolerances for ADDRESSES: EPA has established a B. How Can I Access Electronic Copies residues. docket for this action under docket of this Document? (a) * * * identification (ID) number EPA–HQ– In addition to accessing electronically (1) * * * OPP–2007–0147. All documents in the available documents at http:/ / docket are listed in the docket index Commodity Parts per million www.regulations.gov, you may access available at http://www.regulations.gov. this Federal Register document Although listed in the index, some ***** electronically through the EPA Internet Brassica, head and information is not publicly available, under the ‘‘Federal Register’’ listings at stem, subgroup 5A 5.0 e.g., Confidential Business Information http://www.epa.gov/fedrgstr. You may ***** (CBI) or other information whose also access a frequently updated Ginseng ...... 4.0 disclosure is restricted by statute. electronic version of EPA’s tolerance Horseradish ...... 4.0 Certain other material, such as regulations at 40 CFR part 180 through Lentil ...... 0.10 copyrighted material, is not placed on ***** the Government Printing Office’s pilot the Internet and will be publicly e-CFR site at http://www.gpoaccess.gov/ Okra ...... 6.0 available only in hard copy form. ***** ecfr. Rhubarb ...... 4.0 Publicly available docket materials are ***** available in the electronic docket at C. Can I File an Objection or Hearing Vegetable, cucurbit, http:/ /www.regulations.gov, or, if only Request? group 9 ...... 5.0 available in hard copy, at the OPP Under section 408(g) of FFDCA, 21 Vegetable, fruiting, group Regulatory Public Docket in Rm. S– U.S.C. 346a, any person may file an 8, except tomato ...... 6.0 4400, One Potomac Yard (South Bldg.), objection to any aspect of this regulation Yam, true ...... 0.10 2777 S. Crystal Dr., Arlington, VA. The and may also request a hearing on those Docket Facility is open from 8:30 a.m. objections. You must file your objection * * * * * to 4 p.m., Monday through Friday, or request a hearing on this regulation (b) Section 18 emergency exemptions. excluding legal holidays. The Docket in accordance with the instructions [Reserved] Facility telephone number is (703) 305– (c) * * * provided in 40 CFR part 178. To ensure 5805. proper receipt by EPA, you must Commodity Parts per million FOR FURTHER INFORMATION CONTACT: identify docket ID number EPA–HQ– Vickie Walters, Registration Division OPP–2007–0147 in the subject line on ***** (7505P), Office of Pesticide Programs, the first page of your submission. All Persimmon ...... 1.5 Environmental Protection Agency, 1200 requests must be in writing, and must be Pennsylvania Ave., NW., Washington, mailed or delivered to the Hearing Clerk * * * * * DC 20460–0001; telephone number: as required by 40 CFR part 178 on or [FR Doc. E8–28597 Filed 12–2–08; 8:45 am] 703–305–5704; e-mail address: before February 2, 2009. BILLING CODE 6560–50–S [email protected]. In addition to filing an objection or hearing request with the Hearing Clerk SUPPLEMENTARY INFORMATION: as described in 40 CFR part 178, please ENVIRONMENTAL PROTECTION I. General Information submit a copy of the filing that does not AGENCY contain any CBI for inclusion in the A. Does this Action Apply to Me? public docket that is described in 40 CFR Part 180 You may be potentially affected by ADDRESSES. Information not marked [EPA–HQ–OPP–2007–0147; FRL–8385–7] this action if you are an agricultural confidential pursuant to 40 CFR part 2 producer, food manufacturer, or may be disclosed publicly by EPA Glyphosate; Pesticide Tolerances pesticide manufacturer. Potentially without prior notice. Submit this copy, affected entities may include, but are identified by docket ID number EPA– AGENCY: Environmental Protection not limited to those engaged in the HQ–OPP–2007–0147, by one of the Agency (EPA). following activities: following methods: ACTION: Final rule. • Crop production (NAICS code 111). Federal eRulemaking Portal: http:// • Animal production (NAICS code www.regulations.gov. Follow the oN- SUMMARY: This regulation establishes 112). line instructions for submitting new tolerances for certain plant • Food manufacturing (NAICS code comments. commodities and all animal 311). Mail: Office of Pesticide Programs commodities, and revises other • Pesticide manufacturing (NAICS (OPP) Regulatory Public Docket (7502P), tolerances for glyphosate and its code 32532). Environmental Protection Agency, 1200 metabolite N-acetyl-glyphosate This listing is not intended to be Pennsylvania Ave., NW., Washington, (expressed as glyphosate). These exhaustive, but rather to provide a guide DC 20460–0001. changes are detailed in Unit II of this for readers regarding entities likely to be Delivery: OPP Regulatory Public document. E.I. DuPont de Nemours and affected by this action. Other types of Docket (7502P), Environmental Company requested these tolerances entities not listed in this unit could also Protection Agency, Rm. S–4400, One under the Federal Food, Drug, and be affected. The North American Potomac Yard (South Bldg.), 2777 Cosmetic Act (FFDCA). Industrial Classification System Crystal Dr., Arlington, VA. Deliveries DATES: This regulation is effective (NAICS) codes have been provided to are only accepted during the Docket December 3, 2008. Objections and assist you and others in determining Facility’s normal hours of operation requests for hearings must be received whether this action might apply to (8:30 a.m. to 4 p.m., Monday through on or before February 2, 2009, and must certain entities. If you have any Friday, excluding legal holidays). be filed in accordance with the questions regarding the applicability of Special arrangements should be made instructions provided in 40 CFR part this action to a particular entity, consult for deliveries of boxed information. The 178 (see also Unit I.C. of the the person listed under FOR FURTHER Docket Facility telephone number is SUPPLEMENTARY INFORMATION). INFORMATION CONTACT. (703) 305–5805.

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II. Petition for Tolerance residues of glyphosate increased to 310 ppm and 120 ppm, In the Federal Register of May 9, 2007 (N(phosphonomethyl)glycine). To respectively. Currently established (72 FR 26372) (FRL–8121– 5), EPA address that N-acetyl-glyphosate was tolerance levels for all other issued a notice pursuant to section the major residue in mature commodities in this rule are supported TM TM 408(d)(3) of FFDCA, 21 U.S.C. Optimum GAT soybean forage, hay, by available data. 346a(d)(3), announcing the filing of a and seed, the Agency concluded that it is necessary to include this compound III. Aggregate Risk Assessment and pesticide petition (PP 6F7146) by E.I. Determination of Safety DuPont de Nemours and Company, in the tolerance expression. EPA is DuPont Crop Protection, Laurel Run splitting current § 180.364(a) into Section 408(b)(2)(A)(i) of FFDCA Plaza, P.O. Box 80, Newark, DE 19714– paragraphs (a)(1) and (a)(2). Paragraph allows EPA to establish a tolerance (the 0030. The petition requested that 40 (a)(1) will include all of the legal limit for a pesticide chemical CFR 180.364 be amended by commodities currently in paragraph (a), residue in or on a food) only if EPA establishing tolerances for combined except for the animal commodities and determines that the tolerance is ‘‘safe.’’ the commodities grain, aspirated residues of the herbicide glyphosate, N- Section 408(b)(2)(A)(ii) of FFDCA fractions; soybean, forage; soybean, hay; (phosphonomethyl)glycine and its defines ‘‘safe’’ to mean that ‘‘there is a soybean, hulls; and soybean, seed, metabolite N-acetyl-glyphosate, N- reasonable certainty that no harm will which EPA is transferring to new acetyl-N-(phosphonomethyl)glycine result from aggregate exposure to the paragraph (a)(2). The tolerances in resulting from the application of pesticide chemical residue, including paragraph (a)(2) will cover application glyphosate, the isopropylamine salt of all anticipated dietary exposures and all of glyphosate to non-genetically glyphosate, the ethanolamine salt of other exposures for which there is modified soybeans, genetically-modified glyphosate, the ammonium salt of reliable information.’’ This includes soybeans currently in use, and glyphosate, and the potassium salt of exposure through drinking water and in OptimumTMGATTM soybeans. Note that TM TM residential settings, but does not include glyphosate to Optimum GAT based on the submitted residue data on soybeans in or on the food commodities: occupational exposure. Section application of glyphosate to 408(b)(2)(C) of FFDCA requires EPA to Cattle, kidney; cattle, liver; egg, goat, OptimumTMGATTM soybeans, the kidney; goat, liver; hog, kidney; hog, give special consideration to exposure numerical value of the current soybean of infants and children to the pesticide liver; horse, kidney; horse, liver; and livestock tolerances do not need to poultry, meat; poultry, meat byproducts; chemical residue in establishing a be changed (only the tolerance tolerance and to ‘‘ensure that there is a sheep, kidney; sheep, liver; soybean, expression is changing). Combined forage; soybean, hay; soybean, hulls; reasonable certainty that no harm will residues of glyphosate and N-acetyl- result to infants and children from and soybean, aspirated grain fractions at glyphosate in soybean commodities levels already established for glyphosate aggregate exposure to the pesticide derived from glyphosate-treated chemical residue....’’ alone. That notice referenced a OptimumTMGATTM soybeans and Consistent with section 408(b)(2)(D) summary of the petition prepared by E.I. livestock commodities from animals of FFDCA, and the factors specified in DuPont de Nemours and Company, the which consume only glyphosate-treated registrant, which is available to the OptimumTMGATTM soybeans will not section 408(b)(2)(D) of FFDCA, EPA has public in the docket, http:// exceed the existing tolerance level. reviewed the available scientific data www.regulations.gov. Comments were Additionally, the change in tolerance and other relevant information in received on the notice of filing. EPA’s expression will not affect the support of this action. EPA has response to these comments is application of the tolerance to soybean sufficient data to assess the hazards of discussed in Unit IV.C. commodities derived from glyphosate- and to make a determination on DuPont has requested a Section 3 treated non-genetically modified aggregate exposure for the petitioned-for registration under the Federal soybean and livestock commodities tolerances for the combined residues of Insecticide, Fungicide, and Rodenticide from animals which consumed only glyphosate, N- Act (‘‘FIFRA’’) for the preplant glyphosate-treated non-genetically (phosphonomethyl)glycine and its application of the herbicides glyphosate modified soybean because these metabolite N-acetyl-glyphosate and pyrithiobac sodium to glyphosate– commodities will have only glyphosate (expressed as glyphosate) resulting from tolerant soybean. The petitioner is also per se residues, and not N-acetyl- the application of glyphosate, the working to commercialize a genetically glyphosate residues. isopropylamine salt of glyphosate, the modified soybean designated as In the Federal Register of May 2, 2007 ethanolamine salt of glyphosate, the OptimumTMGATTM soybeans. N-acetyl- (72 FR 24188)(FRL–8122–8), the Agency dimethylamine salt of glyphosate, the glyphosate is produced when published a final rule revising the ammonium salt of glyphosate, and the glyphosate is applied to tolerance expression for glyphosate to potassium salt of glyphosate on the food OptimumTMGATTM soybeans. As a include the dimethylamine salt of commodities cattle, meat byproducts at result the petitioner is requesting that glyphosate. Because there is a potential 5.0 ppm; egg at 0.05 ppm; goat, meat the glyphosate tolerance expression be for soybeans to be treated with product byproducts at 5.0 ppm; grain, aspirated modified from glyphosate per se to the containing the dimethylamine salt of fractions at 310 ppm; hog, meat combined residues of glyphosate and N- glyphosate the Agency has determined byproducts at 5.0 ppm; horse, meat acetyl-glyphosate. This petition was that the dimethylamine salt of byproducts at 5.0 ppm; poultry, meat, at filed in conjunction with Dupont’s this glyphosate should be added to the 4.0 ppm; poultry, meat byproducts at requested change to its FIFRA tolerance expression for paragraph 1.0 ppm; sheep, meat byproducts at 5.0 registration. (a)(2). ppm; soybean, seed at 20.0 ppm; Based upon review of the data Based upon review of the soybean soybean, forage at 100.0 ppm; soybean, submitted in support of the petition, processing studies submitted supporting hay at 200.0 ppm, and soybean, hulls at EPA has determined that the residues of the petition, EPA has determined that 120 ppm and soybean, seed at 20.0 ppm. concern in these commodities are the currently established tolerances for EPA’s assessment of exposures and risk glyphosate and N-acetyl-glyphosate. The the commodities grain, aspirated associated with establishing tolerances current tolerance expression specifies fractions and soybean, hulls need to be follows.

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A. Toxicological Profile iii. N-acetyl-glyphosate was negative probability, N-acetyl-glyphosate is of EPA has evaluated the available for mutagenicity in a bacterial reverse lower toxicity than glyphosate. For toxicity data and considered its validity, mutation assay (Ames test), an in vitro example, subchronic toxicity testing completeness, and reliability as well as chromosomal aberration assay in with glyphosate showed no systemic the relationship of the results of the Chinese Hamster Ovary (CHO) cells, an toxicity in male and female rats at doses studies to human risk. EPA has also in vitro Mammalian Cell Gene Mutation up to 400 mg/kg/day in males and considered available information Assay in CHO cells and an in vivo females. Subchronic testing with N- concerning the variability of the cytogenetics (bone marrow) in mice, and acetyl-glyphosate showed no systemic sensitivities of major identifiable a metabolism and pharmacokinetics toxicity in male and female rats at doses up to 1157/1446 mg/kg/day in males/ subgroups of consumers, including study. 2. N-acetyl aminomethylphosphonic females, respectively. infants and children. Specific acid (N-acetyl-AMPA) was detected as The toxicity of N-acetyl-AMPA is information on the studies received and one of the metabolites formed following considered low and of limited concern the nature of the adverse effects caused oral administration of N-acetyl- based on the available data described by glyphosate and its metabolite N- glyphosate. It is not expected to be above, and lack of any structural alerts. acetyl-glyphosate as well as the no- absorbed quickly from the Amendment of the glyphosate observed-adverse-effect-level (NOAEL) gastrointestinal tract since it is a soybean and meat and milk tolerances and the lowest-observed-adverse-effect- charged molecule at the physiological to include N-acetyl-glyphosate in the level (LOAEL) from the toxicity studies pH. N-acetyl-AMPA is expected to be tolerance expression does not result in can be found at http:// less toxic than N-acetyl-glyphosate. Data changes in the exposure or risk www.regulations.gov in the document submitted in support of this metabolite estimates reported in the previous risk entitled Petition: 6F7146. Glyphosate- included the following: assessments for the reasons listed below Isopropylammonium and Pyrithiobac i. An acute oral toxicity study with an and fully discussed in the risk Sodium. Human Health Risk LD50 of greater than 8,300 mg/kg. assessment referenced earlier in this Assessment for Application to ii. A bacterial reverse mutation assay section. Glyphosate Tolerant Soybean; pages 7– (Ames test), in which N-acetyl-AMPA i. The Agency has determined that N- 10 in docket ID number EPA– HQ–OPP– was not mutagenic when tested up to acetyl-glyphosate has no greater toxicity 2007–0147 and identified as document 5,000 microgram (µg)/plate in presence than glyphosate and probably is of EPA–HQ–OPP–2007– 0147–0007. and absence of activation in S. lower toxicity. The toxicological profile of glyphosate typhimurium strains of TA98, TA 100, ii. The numerical value of all but two is discussed in the risk assessment TA1535, TA1537, and in Escheria coli food tolerances will remain the same. referenced earlier in this section and in strain WP2uvrA. iii. The most recent dietary analysis the risk assessment referenced in the iii. An in vitro Mammalian assumed tolerance level residues and, final rule published in the Federal Chromosome Aberration Test in Human 100% crop treated. Register of December 20, 2006 (71 FR Perpherral Blood Lymphocytes, in iv. The estimate of glyphosate levels 76180) (FRL–8105–9) which establishes which N-acetyl-AMPA was negative for in drinking water is based on a tolerances for residues of glyphosate in the induction of structural and glyphosate use involving direct or on noni at 0.20 ppm; pea, dry at 8.0 numerical chromosome aberrations in application to water at 3.75 pounds ppm; safflower at 85 ppm; sunflower at both the non-activated and the S9- active ingredient per acre. Use of 85 ppm; and vegetable, legume group 6 activated test systems when tested up to glyphosate on glyphosate-resistant except soybean and pea, dry at 5.0 ppm. 15.30 milligrams/milliliter (mg/ml). soybeans will not result in higher levels Toxicological endpoints and current iv. An in vitro Mammalian Cell Gene in drinking water. risk assessments for glyphosate are Mutation Test (CHO/HPRT) Test, in v. Previously calculated dietary discussed in the risk assessment which N-acetyl-AMPA was not burdens to poultry were based on alfalfa referred to in the final rule published in mutagenic at the HGPRT locus in meal (400 ppm tolerance) and soybeans the Federal Register of December 20, Chinese hamster ovary cells tested up to hulls (100 ppm tolerance) as significant 2006 (71 FR 76180) (FRL–8105–9) 1,531 µg/ml in the presence and absence contributors to the diet. Based on the which establishes tolerances for of metabolic activation. latest guidance, although soybean seed, residues of glyphosate in or on noni at v. An in vivo Mouse Bone Marrow meal, and hulls are feed to poultry, 0.20 ppm; pea, dry at 8.0 ppm; safflower Micronucleus Test, in which N-acetyl- soybean hulls are is no longer at 85 ppm; sunflower at 85 ppm; and AMPA resulted in no detections of considered a significant contributor to vegetable, legume group 6 except chromosomal aberrations were detected poultry diets. The previously calculated soybean and pea, dry at 5.0 ppm. in male and female mice at doses up to dietary burdens to hog were based on 1. A summary of the data submitted 2,000 mg/kg. alfalfa meal and barley grain (20 ppm in support of the metabolite N-acetyl- 3. For the purpose of assessing the tolerance) being significant contributors glyphosate is listed below. Refer to the aggregate risk from glyphosate to the diet. Soybean seed and meal are risk assessment available in the public tolerances, EPA has assumed that N- fed to hogs; however, the current action docket for this rule and identified above acetyl-glyphosate is equally toxic to does not require an increase in tolerance as document EPA–HQ–OPP–2007– glyphosate. This conservative for soybean seed or meal. Based on 0147–0007 for more information. assumption is based on the structural these complications, the Agency i. An acute oral toxicity study in rats similarity of N-acetyl-glyphosate with concludes that the application of TM TM with an Acute Oral LD50 greater than glyphosate; a structure activity glyphosate to Optimum GAT 5,000 milligrams/kilogram (mg/kg). relationships (SAR) analysis of N-acetyl- soybean will not result in combined ii. A 90–day subchronic oral (feeding) glyphosate with a lack or structural residues of glyphosate and N-acetyl- study, in which no systemic toxicity alerts for carcinogenicity, mutagenicity glyphosate (expressed as glyphosate) in was observed in male and female rats at and endocrine effects; and toxicity data poultry or hog commodities greater than doses up to 18,000 ppm (equal to 1157/ for N-acetyl-glyphosate showing low the residues of glyphosate that result 1461 mg/kg/day in males/females, acute toxicity, low subchronic toxicity under the currently established respectively). and lack of mutagenicity, In all glyphosate per se tolerances.

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vi. Previously calculated dietary Canadian or Mexican MRLs, due to the Relationship (SAR). The available acute burdens to dairy or beef cattle were inclusion of N-acetyl-glyphosate in the toxicity study with N-acetyl-glyphosate based on alfalfa hay (400 ppm tolerance) expression. Additionally, the EPA and glyphosate indicate low toxicity being the significant contributor to the tolerances differ from the CODEX and (Acute Oral LD50 was greater than 5,000 diet. The Agency concludes that the Canadian MRLs in that the EPA mg/kg bw). Both N-acetyl-glyphosate consumption of glyphosate tolerances do not include AMPA in and glyphosate are placed in acute Tox OptimumTMGATTM soybean will not tolerance expression. At this time, Category IV. There was evidence of result in combined residues of harmonization between the U.S. some mortality in an acute oral study glyphosate and N-acetyl-glyphosate tolerances and the CODEX, Canadian or with N-acetyl-glyphosate but not with (expressed as glyphosate) in or on beef/ Mexican MRLs can not be achieved glyphosate. However, the evidence from dairy cattle commodities greater than because of the inclusion of N-acetyl- very high doses in this acute oral LD50 the currently established glyphosate per glyphosate in the EPA tolerances is test suggesting that N-acetyl-glyphosate se tolerances for the reasons below. necessary to support use patterns in the might be more toxic than glyphosate is a. The high tolerance value for alfalfa United States and EPA has concluded outweighed by the results of subchronic hay (400 ppm) and alfalfa hay occupies that AMPA should not be included in tests with the two compounds. There 40% of the total beef/dairy cattle diet. the tolerance expression because it is was no evidence of systemic toxicity in b. The soybean hull tolerance is only not toxicologically significant. The 90–day dietary toxicity studying rats increasing from 100 to 120 ppm and petitioner is seeking registration and with N-acetyl-glyphosate conducted at soybean hulls will occupy at most 20% amendment of the tolerance well above the limit dose (18,000 PPM of the beef/dairy cattle dietary burdens. expressionin other countries. This may equal to 1,157/1,461 mg/kg/day in males c. Aspirated grain fractions occupy at lead to harmonization between the U.S. and females, respectively). In a 90–day most 5% of the beef cattle dietary tolerances and the CODEX, Canadian or dietary toxicity study in rats with burden and are not feed to dairy cattle. Mexican MRLs. glyphosate at 0, 1,000, 5,000 or 20,000 Accordingly, based on the risk C. Response to Comments ppm (equivalent to 0, 63, 317, or 1,267 assessments discussed in the notice mg/kg/day in males and 0, 84, 404, or referenced above, EPA concludes that Three commenters submitted 1,623 mg/kg/day in females), glyphosate no harm will result to the general comments in response to the notice of caused increased serum phosphorus and population and to infants and children filing. A summary of the comments and potassium at all doses treated in both EPA’s response follows. from aggregate exposure to the sexes and occurrence of high dose 1. Comment. One commenter does not combined residues of glyphosate and its pancreatic lesions in males (effect was believe that DuPont has submitted metabolite N-acetyl-glyphosate sufficient toxicological data to not evaluated at lower doses). Based on (expressed as glyphosate). demonstrate that N-acetyl-glyphosate is these findings systemic toxicity NOAEL IV. Other Considerations not of toxicological concern and that for glyphosate can be considered as less submitted data did not support the than 1,000 ppm (equivalent to <63 mg/ A. Analytical Enforcement Methodology claim of equivalent toxicity between kg/day). Thus the subchronic study with Adequate enforcement methodology glyphosate and N-acetyl-glyphosate. The N-acetyl glyphosate clearly indicates (high performance liquid commenter argued that the single acute that it is less toxic than glyphosate. The chromatography (HPLC) with tandem toxicity EPA relied on actually suggests available adequate battery of mass spectrometry (MS/MS)) is that N-acetyl-glyphosate is more toxic mutagenicity studies with N-acetyl available to enforce the tolerance than glyphosate. This commenter also glyphosate and glyphosate indicate that expression. The method may be believes that reproductive, they are not mutagenic. The metabolism requested from: Chief, Analytical developmental, and chronic and of N-acetyl glyphosate and glyphosate is Chemistry Branch, Environmental carcinogenicity data on N-acetyl- well studied in rats. These studies Science Center, 701 Mapes Rd., Ft. glyphosate should be generated and indicate that both compounds are Meade, MD 20755–5350; telephone analyzed. rapidly absorbed and excreted from the number: (410) 305–2905; e-mail address: Another commenter expressed body and are not biosequestered. In fact, [email protected]. concern that sufficient data may not nearly all of the orally administered N- have been submitted on the metabolite acetyl-glyphosate was excreted B. International Residue Limits N-acetyl-glyphosate to satisfy the unchanged in the urine and feces. There There are Codex Maximum Residue requirements for EPA to establish is extensive database available on Levels (MRL) established for glyphosate tolerances or to support the glyphosate, which indicate that (sum of glyphosate and AMPA, establishment of MRLs by other glyphosate is not mutagenic, not a expressed as glyphosate) on soybean, countries. The first commenter carcinogen, and not a developmental or dry at 20 ppm; edible offal (mammalian) expressed a similar concern that reproductive toxicant. Based on its at 5 ppm; eggs at 0.05 ppm; poultry submitted data failed to meet structural similarities with glyphosate meat at 0.05 ppm and poultry, edible requirements of international authorities and available data, it is reasonable to offal of at 0.5 ppm. Canadian MRLs are such as Joint FAO/WHO Meeting in conclude that the N-acetyl-glyphosate is established for glyphosate including the Pesticide Residues (JMPR), particularly not likely to be more toxic than the metabolite aminomethylphosphonic when compared to the extensive data parent. The Agency evaluated available acid (AMPA) on soybean seed at 20 bases required for other metabolites information and data and concluded ppm, kidney of cattle, goats, hogs, such as AMPA and N-acetyl-glufosinate. that additional data on N-acetyl- poultry and sheep at 2.0 ppm; and liver Response. EPA does not agree with glyphosate was not needed based on the of cattle, goats, hogs, poultry, and sheep the contention that N-acetyl-glyphosate weight of evidence described above. In at 0.2 ppm. A Mexican MRL of 6 ppm is more toxic than glyphosate. The addition, Agency has accepted bridging is established for glyphosate. The Agency concluded that N-acetyl- data where evidence is clear in order to glyphosate tolerances EPA is glyphosate is not likely to be more toxic reduce the animal usage. establishing in this action differ from than glyphosate based on the available EPA also disagrees with the claim that the tolerance expression for the CODEX, toxicity studies and Structure Activity EPA has insufficient data on N-acetyl-

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glyphosate. EPA did review larger data tolerances), and the previously revised tolerance is conferred via modification sets on the metabolites AMPA and N- guidance concerning the construction of of the endogenous ALS gene such that acetyl-glufosinate but these larger data livestock diets (changes to the percent the plant is no longer sensitive (i.e. the sets were submitted voluntarily by each food feedstuff contributes to a tolerance is not conveyed via pesticide registrants; EPA did not livestock diet, livestock diets are now metabolism of the herbicide), the require these data to be submitted. constructed taking in to consideration Agency’s current view is that the EPA’s decision to review all data that nutritional requirements), it was nature/magnitude of residues submitted was submitted whether required or not concluded that higher livestock in support of registration of ALS- (which is something the Agency does tolerances are not necessary. Note that inhibiting herbicides to nontransgenic routinely) can not be converted into an the dietary analysis assumed tolerance soybean are applicable for application of EPA determination that such data level residue for the livestock these compounds to OptimumTMGATTM would be required to make a safety commodities (i.e. assumes all of the soybean. finding for a similar pesticide commodities feed to livestock have 5. Comment. One commenter metabolite. For the reasons expressed tolerance level residues and all livestock expressed a concern that the analytical above, EPA concludes it has sufficient commodities consumed by humans method submitted may not enable data on N-acetyl-glyphosate. For similar have tolerance level residues). simultaneous quantification of the reasons, EPA also disagrees with the 3. Comment. One commenter combination of glyphosate, N-acetyl- commenter’s suggestion that because the expressed concern that the petitioner glyphosate and Joint FAO/WHO Meeting in Pesticide had stated its intent to increase aminomethylphosphonic acid (AMPA), Residues (JMPR) reviewed larger data glyphosate spray rates or change spray all of which could be present in sets on AMPA and N-acetyl-glufosinate, timing and that residue data had not be exported soybeans. EPA’s data set on N-acetyl-glyphosate submitted to reflect levels of N-acetyl- Response. Available information must be deficient. The JMPR does not glyphosate under actual use conditions. including Agency method trial confirms have any regulatory authority to require Response. The petitioner submitted that proposed analytical method (high data and the commenters do not claim several OptimumTMGATTM soybean performance liquid chromatography that JMPR defined the toxicological data magnitude-of-the-residue studies which (HPLC) with tandem mass spectrometry needed to make the toxicity monitored for residues of glyphosate (MS/MS)) quantifies residues of determinations with regard to AMPA and N-acetyl-glyphosate in forage and glyphosate, N-acetyl-glyphosate, and and N-acetyl-glufosinate. The JMPR hay and soybean seed. (See document AMPA in crops and animal reviewed the data voluntarily cited earlier in this unit for detailed commodities. submitted; it did not make a discussion of these data). The Agency 6. Comment. One commenter opposed recommendation on the data necessary concluded that this data was acceptable the way the tolerance expression was to make the needed toxicity evaluation. and supported the proposed use pattern. written in the notice of filing and the 2. Comment. One commenter argues The Agency also concluded that fact that a new paragraph was being that the higher residues of N-acetyl- additional field trial data were not added to the tolerance expression glyphosate may be absorbed at a higher necessary and that the proposed allowing for duplicate listings of the rate than glyphosate. Taking into tolerance levels discussed in Unit II of same commodities dependent on consideration the increased absorption this document were acceptable. The genetic makeup. for N-acetyl-glyphosate compared to Agency has not received an application Response. Based on the submitted glyphosate are likely in meat, milk, requesting increased application rates or comments and the available information poultry, and eggs due to the high values changes in application timing at this the Agency has decided that 40 CFR of N-acetyl-glyphosate that are likely in time. The Agency will reevaluate the 180.364(a) will be redesignated as plants and the higher absorption in need for additional magnitude-of-the- paragraph (a)(1) and that the current animals of N-acetyl-glyphosate (when residue data if and when an application listings from newly redesignated compared to glyphosate). The of this type is received. paragraph (a)(1) for soybean and animal commenter notes that 4. Comment. A concern expressed by commodities will be transferred to new OptimumTMGATTM soybeans were two of the three commenters was the paragraph (a)(2). The revised tolerance specifically engineered to convert N- possible amendment of FIFRA expression deletes any reference to acetyl-glyphosate and thus is likely to registration to allow higher application genetic make up. See Unit II of this result in significant amounts of N- rates on soybeans of ALS inhibitor document for discussion. acetyl-glyphosate in soybeans. As to the herbicides such as sulfonylureas already 7. Comment. One commenter higher absorption in animals, the registered on soybeans or new uses of expressed a concern that current EPA commenter references a rat metabolism ALS inhibitor herbicides on soybeans. label policy allowing the use of general study and argues that indicates that Such amended uses or new uses, the terminology such as ‘‘glyphosate higher absorption would occur in commenter urged, should be tolerant soybeans’’ would permit use of poultry and livestock that ingest conditioned on the submission of any soybean seed that satisfies the residues of N-acetyl-glyphosate in feed additional residue data or consideration general ‘‘glyphosate tolerant’’ criteria if and that the higher absorption would of possible effects to non-target plants crop seed such as OptimumTMGATTM likely result in higher residues in meat, and endangered species. soybean seed were commercially milk, and eggs when compared with Response. The Agency has not available, even if appropriate data have glyphosate. received requests for increased use or not been reviewed and tolerances Response. As the commenter stated, new uses of ALS inhibitor pesticides on granted. the rat metabolism studies indicate that OptimumTMGATTM soybean seed to Response. The EPA label policy is N-acetyl-glyphosate may be absorbed at additional herbicides at this time. The intended to allow the use of glyphosate a higher rate than glyphosate. Taking pre-plant use of pyrithiobac sodium in on any approved glyphosate tolerant into consideration the increased soybeans remained unchanged for this seed. The Agency does not regulate or absorption for N-acetyl-glyphosate, the action. However, as discussed on page approve the glyphosate tolerant seed, previously calculated livestock diets 3 of the risk assessment referenced in only the use of glyphosate on the crops (driven by 400 ppm alfalfa hay/meal Section III of this document, since ALS grown from the glyphosate tolerant

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seed. The approval of the seed itself is ability to use additional amino acids as registration in various countries. The handled by the United States substrates under specific in vitro Agency expects that the various Department of Agriculture (USDA) conditions. The study conducted with countries will come to similar Animal and Plant Health Inspection GAT4601 demonstrated the kinetic conclusion as the United States for Service (APHIS). Information on parameters could only be established for OptimumTMGATTM soybean and amend approval of the OptimumTMGATTM aspartate and glutamate. Additional their tolerance expressions which will soybean seed is available in a notice information concerning this conclusion alleviate the potential trade issue. The published in the Federal Register of can be found in the APHIS public current analytical method would detect July 24, 2008 (73 FR 43203) which docket referenced earlier in this unit. glyphosate, AMPA and N-acetyl advised the public of their 9. Comment. One commenter glyphosate allowing enforcement of the determination that a soybean line expressed concern that sufficient data tolerances in other countries. Growers developed by Pioneer HI-Bred may not have been submitted on the in the United States have the option of International, Inc., designated as metabolite N-acetyl-glyphosate to satisfy growing conventional soybeans or other transformation event 356043, which has the requirements for EPA to establish varieties of glyphosate tolerant seed been genetically engineered for tolerances or to support the until any trade issues in other countries tolerance to glyphosate and acetolactate establishment of MRLs by other with OptimumTMGATTM soybeans are synthase-inhibiting herbicides, is no countries and Agencies. A second resolved. longer considered a regulated article commenter expressed a similar concern 11. Comment. Several comments were under their regulations governing the that submitted data failed to meet received from a private citizen objecting introduction of certain genetically requirements of international authorities to establishment of tolerances. engineered organisms, and the public such as Joint FAO/WHO Meeting in Response. The Agency has received docket established for that action by Pesticide Residues (JMPR), particularity similar comments from this commenter USDA/APHIS, which is available at when compared to the extensive on numerous previous occasions. Refer http://www.regulations.gov and is databases required for other metabolites to the Federal Register of March 14, identified as docket identification such as AMPA and N-acetyl-glufosinate. 2007 (72 FR 11784; FRL–8117–2) for the number APHIS–2007–019. Response. The Agency has Agency’s response to these objections. 8. Comment. One commenter determined that the submitted data In addition the commenter noted that expressed a concern that discussed above and in the referenced bees and turkey vultures are dying. OptimumTMGATTM soybeans are plants risk assessments provided sufficient These comments are not relevant to that have high levels of a new abnormal information for the Agency to make the human safety determination which is enzyme that creates new untested required human safety determination the sole focus of tolerance actions under metabolites. The commenter referenced required in the FFDCA and satisfy data section 408 of the FFDCA. For an article (Science, 21 May 2004, vol. 34 requirements for establishment of informational purposes, EPA would pp 1151–1154) which shows that the tolerances and registration in the United note that pesticide effects on wildlife new ‘‘shuffled enzyme’’ (N-acetylate) States. are addressed in the FIFRA registration can react with common amino acids L- 10. Comment. One commenter process. In a honey bee contact test with aspartate, L-serine, phosphor-L-serine, expressed concern that the proposed glyphosate, mortality was low in all L-threonine, L-glutamate, L-aspargine, unilateral change to the glyphosate treatment levels. The results indicate and L-cysteine to form new N-acetylated residue definition to include the new that glyphosate is classified as versions of these common amino acids. metabolite N-acetyl-glyphosate has practically nontoxic to honeybees. The commenter stated that toxicology significant potential to disrupt the Although the Agency does not require data may be necessary to address the international trade of soybeans for U.S. testing on turkey buzzards specifically, safety of these N-acetylated metabolites. growers until the glyphosate residue the potential for avian mortality to Response. This issue concerns definition is implemented globally. The glyphosate has been assessed using TM TM componets of the Optimum GAT commenter further noted that the data bobwhite quail acute oral LD50 study soybean and not residues of the submitted to EPA may not be sufficient and bobwhite quail and mallard duck 8– pesticide glyphosate and is not relevant for other countries to modify their day dietary LC50 studies. These data to EPA’s determination of safety under tolerance expressions. indicate that glyphosate is practically section 408 of the FFDCA. However, Response. The petitioner submitted a nontoxic to avian species on an acute similar comments were received and summary of a metabolism study oral basis and no more than slightly addressed by APHIS during the course conducted with OptimumTMGATTM toxic on a subacute dietary basis. The of their review of the soybean. This study indicated that both potential effects to avian growth and OptimumTMGATTM soybean seed which glyphosate and N-acetyl-glyphosate reproduction from glyphosate have been is fully discussed in the Federal were significant residues in/on assessed using avian reproduction Register notice of July 24, 2008 and the OptimumTMGATTM soybean forage and studies with mallard duck and bobwhite APHIS public docket referenced earlier straw. For mature OptimumTMGATTM quail. These data indicate that in this unit. In summary APHIS soybean seed, only N-acetyl-glyphosate glyphosate is not expected to cause reviewed available information toxicity was a significant residue (glyphosate reproductive impairment. The data available for both the 356043 represented a minor component of the commenter did not submit any soybean seed and N-acetyl-L-aspartic total residue). Since N-acetyl-glyphosate information to support a revision of acid (NAA) and determine that was the major residue in mature Agency conclusions. additional toxicological assessment was OptimumTMGATTM soybean forage, hay, unwarranted. APHIS determined that and seed, EPA concluded that it is V. Conclusion quantification of other acetylated amino necessary to include this compound in Therefore, tolerances are established acids did not need to be measured based the tolerance expression. for combined residues of glyphosate, N- on the fact that the GAT4601 enzyme EPA believes that the new metabolite (phosphonomethyl)glycine and its has different kinetic and specificity N-acetyl glyphosate is not likely to metabolite N-acetyl-glyphosate properties than the native enzymes from disrupt international trade of soybean (expressed as glyphosate) resulting from Bacillus licheniformis which have the for U.S. growers. DuPont is seeking the application of glyphosate, the

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isopropylamine salt of glyphosate, the effect on States or tribal governments, ■ a. By removing the entries cattle, meat ethanolamine salt of glyphosate, the on the relationship between the national byproducts; egg; goat, meat byproducts; dimethylamine salt of glyphosate, the government and the States or tribal grain, aspirated fractions; hog, meat ammonium salt of glyphosate, and the governments, or on the distribution of byproducts; horse, meat byproducts; potassium salt of glyphosate on the food power and responsibilities among the poultry, meat; poultry, meat byproducts; commodities cattle, meat byproducts at various levels of government or between sheep, meat byproducts; soybean, 5.0 ppm; egg at 0.05 ppm; goat, meat the Federal Government and Indian forage; soybean, hay; soybean, hulls; byproducts at 5.0 ppm; grain, aspirated tribes. Thus, the Agency has determined and soybean, seed from the table in fractions at 310 ppm; hog, meat that Executive Order 13132, entitled paragraph (a). byproducts at 5.0 ppm; horse, meat Federalism (64 FR 43255, August 10, ■ b. By redesignating paragraph (a) byproducts at 5.0 ppm; poultry, meat, at 1999) and Executive Order 13175, introductory text and the remainder of 4.0 ppm; poultry, meat byproducts at entitled Consultation and Coordination the table as paragraph (a)(1) and by 1.0 ppm; sheep, meat byproducts at 5.0 with Indian Tribal Governments (65 FR adding paragraph (a)(2) to read as ppm; soybean, seed at 20.0 ppm; 67249, November 9, 2000) do not apply follows: soybean, forage at 100.0 ppm; soybean, to this final rule. In addition, this final hay at 200.0 ppm, and soybean, hulls at § 180.364 Glyphosate, Tolerance for rule does not impose any enforceable residue. 120 ppm as discussed in Unit II of this duty or contain any unfunded mandate document. as described under Title II of the (a) * * * (1) * * * (2) Tolerances are established for Unfunded Mandates Reform Act of 1995 VI. Statutory and Executive Order combined residues of glyphosate, N- (UMRA) (Public Law 104–4). Reviews (phosphonomethyl)glycine and its This action does not involve any metabolite N-acetyl-glyphosate This final rule establishes tolerances technical standards that would require under section 408(d) of FFDCA in (expressed as glyphosate) resulting from Agency consideration of voluntary response to a petition submitted to the the application of glyphosate, the consensus standards pursuant to section Agency. The Office of Management and isopropylamine salt of glyphosate, the 12(d) of the National Technology Budget (OMB) has exempted these types ethanolamine salt of glyphosate, the Transfer and Advancement Act of 1995 of actions from review under Executive dimethylamine salt of glyphosate, the (NTTAA), Public Law 104–113, section Order 12866, entitled Regulatory ammonium salt of glyphosate, and the 12(d) (15 U.S.C. 272 note). Planning and Review (58 FR 51735, potassium salt of glyphosate on the food October 4, 1993). Because this final rule VII. Congressional Review Act commodities: has been exempted from review under The Congressional Review Act, 5 Executive Order 12866, this final rule is Commodity Parts per Million U.S.C. 801 et seq., generally provides not subject to Executive Order 13211, that before a rule may take effect, the Cattle, meat byproducts ... 5.0 entitled Actions Concerning Regulations agency promulgating the rule must Egg ...... 0.05 That Significantly Affect Energy Supply, submit a rule report to each House of Goat, meat byproducts ..... 5.0 Distribution, or Use (66 FR 28355, May Grain aspirated fractions .. 310.0 22, 2001) or Executive Order 13045, the Congress and to the Comptroller General of the United States. EPA will Hog, meat byproducts ...... 5.0 entitled Protection of Children from Horse, meat byproducts ... 5.0 submit a report containing this rule and Environmental Health Risks and Safety Poultry, meat ...... 4.0 Risks (62 FR 19885, April 23, 1997). other required information to the U.S. Poultry, meat byproducts .. 1.0 This final rule does not contain any Senate, the U.S. House of Sheep, meat byproducts .. 5.0 information collections subject to OMB Representatives, and the Comptroller Soybean, forage ...... 100.0 approval under the Paperwork General of the United States prior to Soybean, hay ...... 200.0 Reduction Act (PRA), 44 U.S.C. 3501 et publication of this final rule in the Soybean, hulls ...... 120.0 Soybean, seed ...... 20.0 seq., nor does it require any special Federal Register. This final rule is not considerations under Executive Order a ‘‘major rule as defined by 5 U.S.C. * * * * * 12898, entitled Federal Actions to 804(2). [FR Doc. E8–28571 Filed 12–2–08; 8:45 am] Address Environmental Justice in List of Subjects in 40 CFR Part 180 Minority Populations and Low-Income BILLING CODE 6560–50–S Populations (59 FR 7629, February 16, Environmental protection, 1994). Administrative practice and procedure, Since tolerances and exemptions that Agricultural commodities, Pesticides DEPARTMENT OF COMMERCE are established on the basis of a petition and pests, Reporting and recordkeeping under section 408(d) of FFDCA, such as requirements. National Oceanic and Atmospheric the tolerance in this final rule, do not Administration Dated: November 19, 2008. require the issuance of a proposed rule, the requirements of the Regulatory Donald R. Stubbs, DEPARTMENT OF THE INTERIOR Flexibility Act (RFA) (5 U.S.C. 601 et Director, Registration Division, Office of seq.) do not apply. Pesticide Programs. Fish and Wildlife Service This final rule directly regulates ■ Therefore, 40 CFR chapter I is growers, food processors, food handlers, amended as follows: 50 CFR Part 404 and food retailers, not States or tribes, [Docket No. 080227317–81455–02] nor does this action alter the PART 180—[AMENDED] RIN 0648–AW44 relationships or distribution of power ■ 1. The authority citation for part 180 and responsibilities established by continues to read as follows: Papahanaumokuakea Marine National Congress in the preemption provisions Monument Proclamation Provisions of section 408(n)(4) of FFDCA. As such, Authority: 21 U.S.C. 321(q), 346a and 371. the Agency has determined that this ■ 2. Section 180.364 is amended as AGENCIES: National Oceanic and action will not have a substantial direct follows: Atmospheric Administration (NOAA),

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Department of Commerce (DOC); United National Wildlife Refuge. The furtherance of the purposes of the States Fish and Wildlife Service Monument was renamed the Proclamation and consistent with (USFWS), Department of the Interior Papahanaumokuakea Marine National applicable regional and multilateral (DOI). Monument by Proclamation 8112 (72 FR arrangements for the protection and ACTION: Final rule. 10029, February 28, 2007). management of special marine areas. The Proclamation provides that the In April 2007 and in accordance with SUMMARY: NOAA and the USFWS are Secretary of Commerce, through NOAA, the Proclamation, the United States publishing final regulations to establish has primary responsibility regarding the proposed to the International Maritime a ship reporting system for the management of the marine areas of the Organization (IMO), a specialized Papahanaumokuakea Marine National Monument, in consultation with the agency of the United Nations, that the Monument. This action implements Secretary of the Interior. The Secretary Monument be designated as a measures adopted by the International of the Interior, through the USFWS, has Particularly Sensitive Sea Area (PSSA) Maritime Organization requiring sole responsibility for management of to protect the attributes of the fragile notification by ships passing through the areas of the Monument that overlay and integrated coral reef ecosystem from the Monument without interruption. the Midway Atoll National Wildlife potential hazards associated with DATES: This rule is effective January 2, Refuge, the Battle of Midway National international shipping activities. The 2009. Memorial, and the Hawaiian Islands U.S. noted in its proposal that the ADDRESSES: For copies of the National Wildlife Refuge, in burden on international shipping by the environmental assessment or other consultation with the Secretary of proposed PSSA and its associated related documents, please write to: T. Commerce. Further, the Proclamation protective measures would be minimal Aulani Wilhelm, Monument provides that nothing in the while its objectives—increased maritime Superintendent (NOAA); 6600 Proclamation diminishes or enlarges the safety, protection of the fragile Kalanianaole Highway, 300, Honolulu, jurisdiction of the State of Hawaii. The environment, preservation of cultural HI 96825. Written comments regarding Monument includes state waters, resources and areas of cultural the burden-hour estimates or other including the Northwestern Hawaiian importance significant to Native aspects of the collection-of-information Islands State Marine Refuge and State Hawaiians, as well as facilitation of the requirements contained in this final rule Seabird Sanctuary at Kure Atoll. The ability to respond to developing may be submitted to (enter office name) State currently holds the submerged and maritime emergencies—would be ceded lands of the NWHI in trust. This significantly furthered. PSSA and by e-mail to public trust is overseen by the Office of designation had been granted previously [email protected], or fax to Hawaiian Affairs through an to only ten marine areas globally, (202) 395–7285. Copies of the final environmental amendment to the Constitution of the including the marine areas around the assessment may be viewed and State of Hawaii. The State of Hawaii has Florida Keys, the Great Barrier Reef, and primary responsibility for managing the the Galapagos. downloaded at http:// State waters of the Monument. On April 3, 2008, the IMO designated hawaiireef.noaa.gov/. In 2006 NOAA and USFWS published the Monument as a PSSA. As part of the FOR FURTHER INFORMATION CONTACT: T. joint regulations codifying the PSSA designation process, the IMO Aulani Wilhelm, Monument provisions of the Proclamation (71 FR adopted U.S. proposals for associated Superintendent (NOAA); 6600 51134, August 29, 2006). With certain protective measures consisting of (1) Kalanianaole Highway, 300, Honolulu, exceptions, the Proclamation and the expanding and consolidating the six HI 96825; (808) 397–2657. joint regulations restrict access to the existing recommendatory Areas To Be SUPPLEMENTARY INFORMATION: Monument to persons who have been Avoided (ATBAs) in the Monument into I. Statutory and Regulatory Background issued Monument permits. Vessels that four larger areas and enlarging the class do not have permits cannot enter the of vessels to which they apply; and (2) On June 15, 2006, President Bush Monument except for uninterrupted establishing a ship reporting system for established the Northwestern Hawaiian passage through the Monument and vessels transiting the Monument, which Islands Marine National Monument notice must be provided to NOAA by is mandatory for ships 300 gross tons or (Monument) by issuing Presidential telephone, fax, or e-mail not less than 72 greater that are entering or departing a Proclamation 8031 (Proclamation); (71 hours and not more than one month U.S. port or place and recommended for FR 36443, June 26, 2006) under the prior to passing through the Monument. other ships. The system requires that authority of the Antiquities Act (Act) Notice must also be provided not more ships notify the U.S. shore-based (16 U.S.C. 431). The Proclamation than twelve hours after the vessel has authority (i.e., the U.S. Coast Guard; reserves all lands and interests in lands exited the Monument. All of the terms NOAA will be receiving all messages owned or controlled by the Government of the Proclamation and the regulations associated with this program on behalf of the United States in the Northwestern are applied in accordance with of the Coast Guard) at the time they Hawaiian Islands (NWHI), including international law. begin transiting the reporting area and emergent and submerged lands and The Proclamation directed the again when they exit. Notification is waters, out to a distance of Secretary of State, in consultation with made by e-mail through the Inmarsat-C approximately 50 nautical miles (nmi) the Secretaries of Commerce and the system or other satellite communication from the islands. The outer boundary of Interior, to take appropriate action to system. It is estimated that almost all the Monument is approximately 100 enter into negotiations with other commercial vessel traffic will be able to nmi wide and extends approximately governments to make necessary report via Inmarsat-C. 1200 nmi around coral islands, arrangements for the protection of the The PSSA and associated protective seamounts, banks, and shoals. The area Monument and to promote the purposes measures were adopted to provide includes the Northwestern Hawaiian for which it was established. The additional protection to the exceptional Islands Coral Reef Ecosystem Reserve, proclamation further directed the natural, cultural and historic resources the Midway Atoll National Wildlife Secretary of State to seek the in the Monument. Requiring vessels to Refuge/Battle of Midway National cooperation of other governments and notify NOAA upon entering the Memorial, and the Hawaiian Islands international organizations in reporting area will help make the

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operators of these vessels aware that and that is to be sent in a reporting ‘‘Areas to be avoided’’; ‘‘Categories of they are traveling through a fragile area format that is consistent with the hazardous cargoes’’; ‘‘IMO’’; and with potential navigational hazards reporting system adopted by IMO; ‘‘Reporting area.’’ The definitions to such as the extensive coral reefs found (5) Allow for vessels that do not have these terms are contained in the text of in many shallow areas of the e-mail capability to continue to comply the regulations. Monument. The PSSA is now in effect, with the current prior notification and the IMO has provided for an requirements; B. Reporting Area (6) Recommend voluntary effective date for the associated The regulations create a reporting area protective measures of May 1, 2008. participation in the reporting system for NOAA and USFWS are establishing all other vessels that are not required to extending ten miles out and entirely the infrastructure that will be required notify NOAA; and around the Monument boundary. The to maintain an international ship (7) Publish the revised boundaries of coordinates of the area are set forth in reporting system and to ensure that the four voluntary ATBAs. Appendix D of the regulations and are information regarding PSSA designation Each of these elements is described the same as the coordinates that were will be incorporated into nautical charts below. adopted by IMO when it accepted the PSSA in principle and adopted the and other information sources. This rule A. Modification of Existing Notification associated protective measures for the implements the mandatory ship Requirements reporting system as adopted by IMO, PSSA in 2007. Certain categories of establishes the reporting area using the Monument regulations at 50 CFR vessels (described below) that intend to IMO boundary coordinates, and 404.4 prohibit entry into the Monument pass through the Monument without publishes the coordinates of the four except in certain situations. One of the interruption are required to e-mail ATBAs. exceptions is for vessels passing through certain information at the time they the Monument without interruption. cross the reporting area boundary and II. Vessel Reporting Requirements Those vessels, however, are currently again when they exit the reporting area These regulations apply to vessels required to provide notice prior to after having passed through the that do not have permits to enter the entering and after leaving the Monument. Monument and that pass through the Monument. Notification of entry must The reporting area does not include Monument without interruption. These be provided at least 72 hours, but no regulations do not change the longer than 1 month, prior to the entry the ATBAs within the Monument. As exemptions at 50 CFR 404.8 (activities date. Notification of departure from the such, vessels that pass through an necessary to respond to emergencies or Monument must be provided within 12 ATBA while passing through the necessary for law enforcement hours of leaving. Notification may be Monument must notify NOAA at the purposes) and 404.9 (activities and made by e-mail, telephone, or fax and time they exit the reporting area and exercises of the Armed Forces, must include the following information: enter the ATBA, and again when they including those of the United States Position when making the report; vessel exit the ATBA and re-enter the reporting Coast Guard) and, therefore, do not name and IMO identification number; area. apply to vessels covered by those name, address, and telephone number of There are three large areas of the exemptions. As explained further, owner and operator; United States Coast Monument (within the reporting area) below, these regulations also do not Guard documentation, state license, or that are not within the IMO-designated apply to sovereign immune vessels. registration number; home port; ATBAs. These breaks between the four The regulations accomplish the intended and actual route through the ATBAs allow for primarily north-south Monument; general categories of any following actions: passage through the Monument. From hazardous cargo on board; and length of (1) Modify the current notification west to east, these areas are in the vessel and propulsion type (e.g., motor requirements (at 50 CFR 404.4) for following locations and are shown in or sail). passing through the Monument without Figure 1: Between the ATBAs extending interruption and add several new These changes to the regulations around Pearl and Hermes Atoll and associated terms and definitions (at Sec. replace the current notification Lisianski Island; between the ATBAs 404.3); requirements for vessels that have e- (2) Establish a reporting area around mail capability. Vessels without e-mail around Maro Reef and Gardner the Monument, extending outward ten capability will continue to provide Pinnacles; and between the ATBAs nautical miles from the Monument notification in advance and upon around Mokumanamana (Necker Island) boundary but excluding the ATBAs exiting the Monument as described and Nihoa Island. It is anticipated that within the Monument; previously but the type of information vessels will navigate through the (3) Describe the categories of vessels to be provided is modified by these Monument via these areas. Vessels that are subject to the reporting regulations as indicated below. passing through the Monument in these requirement; The following terms are being added areas are only required to send e-mail (4) Specify the type of information to the definitions at 50 CFR 404.3 to notification upon entering the reporting regarding the vessel, its location, etc. facilitate implementation of the area and again upon leaving it. that is required in the e-mail to NOAA proposed ship reporting requirements: BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C

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C. Vessels That Are Required To Provide the regulations that state the E. Specific Information and Reporting Notification Proclamation shall be applied in Format Required for Entry and Exit All vessels of the United States— accordance with international law. No Notifications by Vessels Without regardless of size—are subject to the restrictions shall apply to or be enforced Onboard E-mail Capability proposed reporting requirements. All against a person who is not a citizen, Vessels of the United States less than foreign vessels greater than 300 gross national, or resident alien of the United tons and that are either going to or States (including foreign flag vessels) 300 gross tons that do not have onboard coming from a U.S. port or place are unless in accordance with international e-mail capability are required to submit required to participate in the ship law. the following information not less than reporting system. Foreign vessels of any 72 hours but not more than one month size that are heading to or coming from D. Specific Information and Reporting prior to entering the Monument for a U.S. port or place are also required to Format Required for Entry and Exit uninterrupted passage: Vessel provide e-mail notification if they Notifications by Vessels With E-mail identification information (e.g., name, experience an emergency while crossing Capability call sign, flag, IMO identification number); date and time of entry; through the reporting area. Although e- The information that each vessel must position (as applicable); destination and mail capability is now routine on submit and the format in which it must vessels greater than 300 gross tons and estimated time of arrival; intended route be submitted are shown in Appendix E is also widely used by many smaller through the Monument and the to the regulations. The information to be vessels, vessels of the United States less reporting area; vessel draft; categories of provided upon entering the reporting than 300 gross tons that do not have e- hazardous cargoes on board (as area and the reporting format are based mail capability remain subject to the applicable); any vessel defects or on and consistent with the reporting advanced notice reporting requirements deficiencies that restrict requirements adopted by IMO and currently in effect. These vessels will maneuverability or impair normal include: Vessel identification continue to be required to follow the navigation; contact information for the information (i.e., name, call sign, flag, current reporting process: Provide vessel’s agent or owner; vessel size IMO identification number); date and notice by telephone, fax, or e-mail not (length overall, gross tonnage) and type; time of entry; position; true course; less than 72 hours but not more than and total number of persons on board. speed in knots and tenths; destination one month prior to entering the Upon exiting the Monument these and estimated time of arrival; intended Monument for uninterrupted passage vessels must provide the following and to provide notification of departing route through the reporting area; vessel information within 12 hours of leaving: the Monument within 12 hours of draft; categories of hazardous cargoes on Vessel identification information (e.g., leaving. board; any vessel defects or deficiencies name, call sign, flag, IMO identification Vessels are not required to provide that restrict maneuverability or impair number); date and time of exit; position; notification if they operate in the normal navigation; any pollution and any pollution incident or goods lost reporting area but remain outside of the incident or goods lost overboard within overboard within the Monument, Monument, such as fishing vessels the Monument, reporting area, or the reporting area, or the U.S. EEZ. This fishing outside the Monument U.S. EEZ; contact information for the information may be submitted by boundary. However, if the operator of a vessel’s agent or owner; vessel size nonvessel-based e-mail (e.g., from home vessel within the reporting area decides (length overall, gross tonnage) and type; or office), fax, or telephone. Once a to cross uninterrupted through the and total number of persons on board. Monument all of the notification vessel is equipped with an onboard e- Information required when the vessel requirements will then apply. In no case mail system, however, it must comply leaves the reporting area includes: may the vessel lawfully pass through with the requirements for vessels with Vessel identification information (i.e., the Monument until notification had that capability, including the reporting name, call sign, flag, IMO identification been provided, consistent with these format shown in Appendix E to the number); date and time of exit; position; regulations. regulations. The reporting requirements do not and any pollution incident or goods lost apply to vessels of the Armed Forces overboard within the Monument, F. Voluntary Participation in the Ship and the United States Coast Guard reporting area, or the U.S. EEZ. Reporting System by All Other Vessels because the prohibitions in the The system that is being established Vessels that are not required to Proclamation and the regulations do not to receive the notifications is based on participate in the ship reporting system apply to their activities and exercises Inmarsat-C and NOAA will assume the are nevertheless strongly urged to (50 CFR 404.9(a)). In addition, the ship cost associated with Inmarsat-C reporting system adopted by the IMO participate on a voluntary basis. transmissions to the e-mail address Participation will help make the specifically exempts all sovereign provided under this program. This rule immune vessels from the reporting operators of these vessels aware that does not require a vessel to install or use they are traveling through a fragile area requirement and, therefore, the Inmarsat-C, but NOAA will not assume regulations published today do not with potential navigational hazards costs associated with e-mail apply to these vessels. Vessel sovereign such as the extensive coral reefs found transmissions sent through other immunity is interpreted in light of in many shallow areas of the satellite communications systems. relevant provisions of international Monument. Voluntary participation will instruments, such as the IMO-adopted Vessel owners who receive an Inmarsat- increase maritime safety, protection of ship reporting system, Article 36 of the C charge for any e-mail sent to NOAA the fragile environment, preservation of United Nations Convention on the Law pursuant to these regulations will be cultural resources and areas of cultural of the Sea, and Chapter 5, Regulation 1 reimbursed upon invoicing NOAA with importance significant to Native of the International Convention for the a copy of the charges. Hawaiians. Participation will also Safety of Life at Sea. This is consistent facilitate the ability to respond to with provisions of the Proclamation and developing maritime emergencies.

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G. Modification of the Areas To Be (including those carried out by the reporting of emergencies in the Avoided (ATBAs) United States Coast Guard) that are Monument. The scope of such a rule An ATBA is an area within which consistent with applicable laws. The could apply to a broader category of either navigation is particularly Armed Forces exemptions in the vessels than those simply passing hazardous or it is exceptionally Proclamation and at 50 CFR 404.9 are through the Monument without important to avoid casualties. As such, not affected by these regulations. interruption and could include vessels Comment 2: Clarify that the ATBAs should be avoided by all ships, entering the Monument pursuant to regulations do not affect international or certain classes of ships. While ATBAs permits. Such a rule would also be legal principles governing freedom of applied in accordance with can be mandatory (i.e., vessels are navigation for sovereign immune vessels international law. required by applicable law to avoid and in international waters, such as foreign Comment 5: Include in the ship operate outside of the area) most are warships, and law-enforcement craft. reporting system a return message voluntary and vessels may travel Response: Language has been added describing why special precautions are through them. The IMO adopted six to section 404.4(c) to clarify that the needed in the area, the Areas To Be voluntary ATBAs in the Northwestern regulations do not apply to sovereign Avoided, other relevant protection Hawaiian Islands in 1980. Part of the immune vessels in international waters. measures and appropriate information action taken in 2008 by the IMO was to The ship reporting system adopted by (e.g., permit requirements for any enlarge the six original ATBAs so that the IMO specifically exempts all activity other than uninterrupted they now connect in certain places sovereign immune vessels from the passage through the Monument). resulting in four larger ATBAs. This rule reporting requirement and, therefore, Response: A return message will be publishes the coordinates of these four the regulations published today do not sent back to vessels that provide e-mail ATBAs. The coordinates are attached to apply to these vessels. This is consistent notification and will include relevant the regulations as Appendix C. The with provisions of the Proclamation and information such as precautions while ATBAs are not part of the reporting area the regulations that state the in the Monument and other matters. and vessels that enter any ATBA while Proclamation shall be applied in IV. Classification passing through the Monument without accordance with international law. No interruption must provide an exit restrictions shall apply to or be enforced A. National Environmental Policy Act notification upon entering the ATBA, an against a person who is not a citizen, An environmental assessment has entry notification again upon reentering national, or resident alien of the United been prepared to evaluate the proposed the reporting area, and a second exit States (including foreign flag vessels) revisions to the reporting requirements notification when the vessel departed unless in accordance with international and resulted in a Finding of No the reporting area and the Monument on law. Significant Impact (FONSI). Copies are the other side. Thus, transiting through Comment 3: The ATBAs are available at the address and Web site the Monument via an ATBA requires recommendatory and ships should not listed in the ADDRESSES section of this four reports as compared with the two be required to report their entry into or rule. reports required for transiting the exit from Monument ATBAs. Monument between the ATBAs. Response: The regulations do not B. Executive Order 12866: Regulatory require vessels to report when they Impact III. Response to Comments enter or exit ATBAs. They do, however, This rule has been determined to be Comments on the proposed rule and require vessels to notify the U.S. shore- not significant within the meaning of the draft environmental assessment based authority (NOAA, on behalf of the Executive Order 12866. were received from the following: The U.S. Coast Guard) whenever they enter Department of the Navy; the United or exit the Reporting Area. As adopted C. Executive Order 13132: Federalism States Coast Guard; the Missile Defense by the IMO and implemented by these Assessment Agency; and the Marine Mammal regulations, the ATBAs are outside of NOAA has concluded this regulatory Commission. The comments did not the Reporting Area. A vessel entering an action does not have federalism result in any changes to the proposed ATBA is required to notify NOAA implications sufficient to warrant regulations but additional discussion because it is exiting the Reporting Area preparation of a federalism assessment has been added to the preamble of this and it must send another e-mail when under Executive Order 13132. The State final rule to clarify that the reporting it reenters the Reporting Area from an of Hawaii was consulted during the requirements do not apply to activities ATBA or anywhere else that is outside promulgation of this rule. and exercises of the Armed Forces of the Reporting Area. (including those carried out by the Comment 4: Modify the reporting D. Paperwork Reduction Act United States Coast Guard) or to requirements to: (a) Ensure that all This rule contains a collection-of- sovereign immune vessels of foreign vessels in the reporting area or information requirement subject to the nations. The comments are summarized Monument immediately report any Paperwork Reduction Act (PRA) and below together with responses from emergencies; (b) clarify that emergencies which has been approved by OMB NOAA and FWS. include any accidents, pollution under control number 0648–0548. Comment 1: It should be clear that the incidents, or losses of cargo that could Public reporting burden for entry and Armed Forces exception in 50 CFR pose a risk to natural and cultural exit notification is expected to average 404.9 applies to the new ship reporting resources; and (c) identify the types of 15 minutes per response, including the regulations. information to be reported in cases of time for reviewing instructions, Response: The reporting regulations emergencies. searching existing data sources, do not affect the Armed Forces Response: At this time, NOAA and gathering and maintaining the data exception to the prohibitions set forth in FWS are maintaining the regulations as needed, and completing and reviewing the Proclamation and in the regulations proposed to implement the measures the collection of information. In the at 50 CFR 404.9. The reporting recommended by the IMO, but will proposed rule, NOAA and FWS regulations do not apply to activities consider a separate rule making to requested public comment regarding and exercises of the Armed Forces, address whether and how to require the this collection of information and

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burden estimate. No comments were length of the message but is estimated cargoes,’’ ‘‘IMO,’’ and ‘‘Reporting area’’ received. to be approximately $1.75 per entry are added alphabetically as follows: report e-mail sent via Inmarsat-C. The E. Regulatory Flexibility Act exit report should cost approximately § 404.3 Definitions. The Chief Counsel for Regulation of $0.50. It will take approximately 15 * * * * * the Department of Commerce certified minutes or less to send each e-mail. Areas to be avoided means the four to the Chief Counsel for Advocacy of the Because NOAA is paying for the designated areas that should be avoided Small Business Administration (SBA) monetary cost of e-mail transmissions by vessels that are conducting passage that this rule would not have a using the Inmarsat-C system, this cost through the Monument without interruption. Appendix C sets forth the significant economic impact on a will not be accrued by any small coordinates of these areas. substantial number of small entities. entities. Entities using other e-mail The factual basis for this certification systems, however, will bear the * * * * * is as follows: monetary cost of e-mail transmission in Categories of hazardous cargoes The regulations establish a ship addition to the time cost. For those means goods classified in the reporting system for the Monument. vessels without on-board e-mail International Maritime Dangerous When transiting the Monument, all U.S. Goods (IMDG) Code; substances vessels, all foreign-flag vessels 300 gross capability, cost of compliance for notification prior to entry is expected to classified in chapter 17 of the tons or greater that are going to or International Code for the Construction coming from a U.S. port or place, and be the cost of a standard fax or e-mail charge, or will be free if the information and Equipment of Ships Carrying all foreign-flag vessels of any size Dangerous Chemicals in Bulk (IBC coming from a U.S. port or place and is provided by telephone using the 1– 800 number listed in the regulations. An Code) and chapter 19 of the experiencing an emergency while International Code for the Construction exit notification made within 12 hours crossing through the reporting area are and Equipment of Ships Carrying will require the use of a satellite required to participate in the reporting Liquefied Gases in Bulk (IGC Code); oils telephone, the cost of which will be system. Specific information is required as defined in MARPOL Annex I; subject to rate variables. However, the to be transmitted via e-mail to NOAA noxious liquid substances as defined in content to be conveyed is relatively brief upon entry into and exit from the MARPOL Annex II; harmful substances and can be provided in approximately reporting area. Vessels without onboard as defined in MARPOL Annex III; and one minute. e-mail capability will continue to radioactive materials specified in the provide notification as originally Given the minimal cost of compliance Code for the Safe Carriage of the required by the Monument regulations with this rulemaking, the impact of this Irradiated Nuclear Fuel, Plutonium and at 50 CFR part 404, and the information rule is not expected to be significant. As High-Level Radioactive Wastes in Flasks provided is essentially the same as a result, a regulatory flexibility analysis on Board Ships (INF Code). required previously. is not required and none has been prepared. * * * * * The SBA establishes size standards IMO means the International Maritime for determining whether a U.S. entity is List of Subjects in 50 CFR Part 404 Organization. a small business. The size standards relevant to this proposed rulemaking Administrative practice and * * * * * Reporting area means the area within are: finfish fishing (NAICS Code procedure, Coastal zone, Fish, Fisheries, the coordinates set forth in Appendix D. 114111): Average annual receipts of $4.0 Historic preservation, Intergovernmental million or less; and deep sea freight relations, Marine resources, Monuments * * * * * transport (NAICS Code 483111): average and memorials, Natural resources, ■ 3. Revise § 404.4 to read as follows: Reporting and recordkeeping employment of 500 employees or less. § 404.4 Access to Monument. Approximately 120 U.S. fishing vessels requirements, Wildlife, Wildlife refuges. (a) Entering the Monument is are expected to be impacted by this Dated: November 21, 2008. prohibited and thus unlawful except: rulemaking, and all are considered to be Jane C. Luxton, (1) As provided in §§ 404.8 and 404.9; small entities. U.S. freight transport General Counsel, National Oceanic and (2) Pursuant to a permit issued under vessels are expected to be affected by Atmospheric Administration. §§ 404.10 or 404.11; or this rulemaking, though none are Dated: November 20, 2008. (3) When conducting passage without considered to be small entities. All Lyle Laverty, interruption in accordance with vessels without e-mail capability are paragraphs (b) through (f) of this considered to be small entities. Assistant Secretary for Fish and Wildlife and Parks. section. The cost of the regulation is not (b) Any person passing through the expected to be significant. It is expected ■ Accordingly, for the reasons set forth Monument without interruption is that vessels transiting the Monument in the preamble, NOAA and USFWS subject to the prohibitions in §§ 404.5, will remain outside of the designated amend part 404, title 50 of the Code of 404.6, and 404.7. ATBA’s to avoid navigational hazards in Federal Regulations as follows: (c) The following vessels, except the ATBA’s. For these vessels, two e- vessels entitled to sovereign immunity PART 404—[AMENDED] mails will be required for compliance under international law, passing with the proposed rule: One upon ■ 1. The authority citation for part 404 through the Monument without entering the reporting area and one continues to read as follows: interruption must participate in the ship upon exiting the reporting area. For reporting system as provided in those vessels that cross into the ATBA’s, Authority: 16 U.S.C. 431 et seq.; 16 U.S.C. paragraphs (d) and (e) of this section: four e-mails will be necessary. Because 460k–3; 16 U.S.C. 1801 et seq.; 16 U.S.C. (1) Vessels of the United States, 742f, 16 U.S.C. 742l, and 16 U.S.C. 668dd– the ATBA’s are not part of the reporting ee; 16 U.S.C. 1361 et seq.; 16 U.S.C. 1531 et except as provided in paragraph (f) of system, the vessel will enter and exit the seq., Public Law 106–513, Sec. 6(g) (2000). this section; reporting area twice. The cost of sending (2) All other ships 300 gross tonnage an e-mail varies depending on the type ■ 2. In § 404.3, definitions for ‘‘Areas to or greater, entering or departing a of service, the provider rates and the be avoided,’’ ‘‘Categories of Hazardous United States port or place; and

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(3) All other ships in the event of an information described in paragraph (e) TABLE C–1—KURE ATOLL, MIDWAY emergency, entering or departing a of this section must be provided within ATOLL, AND PEARL AND HERMES United States port or place. 12 hours of leaving. Notification under ATOLL—Continued (d) Immediately upon entering the this paragraph may be made by e-mail, reporting area, the vessels described in telephone, or fax, by contacting: (i) E- Point Latitude (N) Longitude paragraph (c) of this section must mail: [email protected]; (W) provide the following information by (ii) Telephone: 1–866–478–NWHI e-mail sent to (6944); 27 ...... 28°25′.81 179°16′.56 28 ...... 28°28′.35 179°16′.44 [email protected] in the IMO (iii) Fax: 1–808–397–2662. ° ′ ° ′ (2) The information must be provided 29 ...... 28 31 .49 179 16 .10 standard reporting format and data 30 ...... 28°34′.61 179°15′.54 syntax shown in Appendix E: in the IMO standard reporting format 31 ...... 28°37′.69 179°14′.75 (1) Vessel name, call sign or ship and data syntax shown in Appendix E. 32 ...... 28°40′.71 179°13′.74 station identity, flag, and IMO (g) All vessels passing through the 33 ...... 28°43′.68 179°12′.54 identification number if applicable, and Monument without interruption other 34 ...... 28°46′.58 179°11′.13 either Federal documentation or State than those described in paragraphs 35 ...... 28°49′.39 179°09′.52 ° ′ ° ′ registration number if applicable. (c)(1) through (3) of this section should 36 ...... 28 52 .11 179 07 .70 participate in the ship reporting system 37 ...... 28°54′.72 179°05′.70 (2) Date, time (UTC) and month of ° ′ ° ′ set forth in paragraphs (d) and (e) of this 38 ...... 28 57 .21 179 03 .51 entry. 39 ...... 28°59′.58 179°01′.15 (3) Position. section. 40 ...... 29°01′.81 178°58′.62 (4) True course. ■ 4. Add Appendix C to Part 404 to read 41 ...... 29°03′.90 178°55′.93 (5) Speed in knots and tenths. as follows: 42 ...... 29°05′.83 178°53′.10 (6) Destination and estimated time of 43 ...... 29°07′.60 178°50′.13 arrival. Appendix C to Part 404—Boundary 44 ...... 29°09′.21 178°47′.04 (7) Intended route through the Coordinated for Papaha¯naumokua¯kea 45 ...... 29°10′.64 178°43′.84 Marine National Monument Areas To 46 ...... 29°11′.89 178°40′.54 Monument and the reporting area. ° ′ ° ′ (8) Vessel draft (in meters). Be Avoided 47 ...... 29 12 .95 178 37 .16 48 ...... 29°13′.82 178°33′.71 (9) Categories of hazardous cargoes on Appendix C—Geographical 49 ...... 29°14′.50 178°30′.21 board. Coordinates 50 ...... 29°14′.99 178°26′.66 (10) Any vessel defects or deficiencies ° ′ ° ′ Areas To Be Avoided 51 ...... 29 15 .28 178 23 .08 that restrict maneuverability or impair 52 ...... 29°15′.36 178°19′.49 normal navigation. Papahanaumokuakea Marine National 53 ...... 29°15′.25 178°15′.90 (11) Any pollution incident or goods Monument 54 ...... 29°14′.94 178°12′.32 ° ′ ° ′ lost overboard within the Monument, Reference chart: United States 540, 2008 55 ...... 29 14 .43 178 08 .78 ° ′ ° ′ edition; 19016, 2008 edition; 19019, 2008 56 ...... 29 03 .47 177 12 .07 the reporting area, or the U.S. EEZ. ° ′ ° ′ edition; 19022, 2008 edition. 57 ...... 29 02 .55 177 07 .29 (12) Contact information for the ° ′ ° ′ These charts are based on World Geodetic 58 ...... 28 38 .96 175 35 .47 vessel’s agent or owner. 59 ...... 28°38′.67 175°34′.35 (13) Vessel size (length overall, gross System 1984 Datum (WGS–84) and ° ′ ° ′ astronomic datum. 60 ...... 28 34 .91 175 19 .74 tonnage) and type. 61 ...... 28°26′.24 175°10′.65 (14) Total number of persons on 62 ...... 28°24′.61 175°08′.95 board. TABLE C–1—KURE ATOLL, MIDWAY 63 ...... 28°24′.53 175°09′.04 (e) Immediately upon leaving the ATOLL, AND PEARL AND HERMES 64 ...... 28°20′.09 175°04′.91 reporting area, the vessels described in ATOLL 65 ...... 28°16′.05 175°01′.92 ° ′ ° ′ paragraph (c) must provide the 66 ...... 28 11 .78 174 59 .33 67 ...... 28°07′.29 174°57′.23 following information by e-mail sent to Longitude Point Latitude (N) (W) 68 ...... 28°02′.63 174°55′.68 [email protected] in the IMO 69 ...... 27°57′.84 174°54′.62 standard reporting format and data 1 ...... 27°14′.76 176°29′.87 70 ...... 27°53′.01 174°54′.05 syntax shown in Appendix E: 2 ...... 27°24′.95 177°33′.31 71 ...... 27°48′.12 174°54′.05 (1) Vessel name, call sign or ship 3 ...... 27°35′.87 178°29′.90 72 ...... 27°43′.28 174°54′.62 station identity, flag, and IMO 4 ...... 27°36′.64 178°33′.93 73 ...... 27°38′.48 174°55′.71 identification number if applicable, and 5 ...... 27°37′.53 178°37′.32 74 ...... 27°33′.81 174°57′.32 6 ...... 27°38′.60 178°40′.65 75 ...... 27°29′.30 174°59′.43 either Federal documentation or State ° ′ ° ′ 7 ...... 27°39′.85 178°43′.90 76 ...... 27 25 .00 175 02 .03 registration number if applicable. ° ′ ° ′ 8 ...... 27°41′.28 178°47′.05 77 ...... 27 20 .93 175 05 .07 (2) Date, time (UTC) and month of ° ′ ° ′ 9 ...... 27°42′.89 178°50′.10 78 ...... 27 17 .18 175 08 .59 exit. ° ′ ° ′ 10 ...... 27°44′.66 178°53′.03 79 ...... 27 13 .73 175 12 .47 (3) Position. ° ′ ° ′ 80 ...... 27°10′.59 175°16′.67 11 ...... 27 46 .59 178 55 .83 ° ′ ° ′ (4) Any pollution incident or goods 12 ...... 27°48′.67 178°58′.49 81 ...... 27 07 .88 175 21 .25 lost overboard within the Monument, ° ′ ° ′ 82 ...... 27°05′.57 175°26′.09 13 ...... 27 50 .89 179 01 .00 ° ′ ° ′ the reporting area, or the U.S. EEZ. 14 ...... 27°53′.22 179°03′.39 83 ...... 27 03 .66 175 31 .15 ° ′ ° ′ 84 ...... 27°02′.22 175°36′.40 (f)(1) Vessels of the United States less 15 ...... 27 55 .69 179 05 .61 ° ′ ° ′ ° ′ ° ′ 85 ...... 27 01 .29 175 41 .78 than 300 gross tonnage that are not 16 ...... 27 58 .29 179 07 .61 ° ′ ° ′ ° ′ ° ′ 86 ...... 27 00 .73 175 47 .22 equipped with onboard e-mail 17 ...... 28 01 .01 179 09 .47 ° ′ ° ′ ° ′ ° ′ 87 ...... 27 00 .68 175 52 .74 capability must provide notification of 18 ...... 28 03 .81 179 11 .10 ° ′ ° ′ ° ′ ° ′ 88 ...... 27 01 .09 175 58 .16 19 ...... 28 06 .71 179 12 .53 ° ′ ° ′ entry and the information described in ° ′ ° ′ 89 ...... 27 01 .99 176 03 .53 20 ...... 28 09 .67 179 13 .75 90 ...... 27°03′.34 176°08′.81 paragraphs (d)(1), (2), (3) as applicable, 21 ...... 28°12′.70 179°14′.75 (6), (7), (8), (9) as applicable, (10), (12), 91 ...... 27°05′.12 176°13′.91 22 ...... 28°15′.78 179°15′.54 ° ′ ° ′ (13), and (14) of this section at least 72 ° ′ ° ′ 92 ...... 27 07 .37 176 18 .79 23 ...... 28 18 .91 179 16 .11 93 ...... 27°09′.98 176°23′.40 hours, but no longer than 1 month, prior 24 ...... 28°22′.04 179°16′.45 ° ′ ° ′ ° ′ ° ′ 94 ...... 27 13 .02 176 27 .74 to the entry date. Notification of 25 ...... 28 24 .72 179 16 .56 95 ...... 27°13′.77 176°28′.70 departure from the Monument and the 26 ...... 28°25′.20 179°16′.57

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TABLE C–2—LISIANSKI ISLAND, TABLE C–2—LISIANSKI ISLAND, TABLE C–3—GARDNER PINNACLES, LAYSAN ISLAND, MARO REEF, AND LAYSAN ISLAND, MARO REEF, AND FRENCH FRIGATE SHOALS, AND RAITA BANK RAITA BANK—Continued NECKER ISLAND—Continued

Point Latitude (N) Longitude Longitude Longitude (W) Point Latitude (N) (W) Point Latitude (N) (W)

1 ...... 26°50′.89 173°30′.79 70 ...... 26°53′.74 174°00′.98 53 ...... 24°12′.88 168°22′.78 2 ...... 26°36′.00 171°37′.70 71 ...... 26°53′.74 173°55′.48 54 ...... 24°16′.05 168°27′.28 3 ...... 26°35′.49 171°33′.84 72 ...... 26°53′.29 173°50′.02 55 ...... 24°19′.15 168°31′.66 4 ...... 26°35′.10 171°30′.84 73 ...... 26°52′.56 173°44′.58 56 ...... 24°22′.27 168°35′.95 5 ...... 26°34′.07 171°27′.50 74 ...... 26°51′.85 173°39′.14 57 ...... 24°25′.71 168°39′.94 6 ...... 26°33′.35 171°25′.16 75 ...... 26°51′.13 173°33′.69 58 ...... 24°29′.51 168°43′.55 7 ...... 26°14′.26 170°23′.04 76 ...... 26°50′.75 173°30′.87 59 ...... 24°33′.67 168°46′.63 8 ...... 26°08′.69 169°48′.96 60 ...... 24°38′.06 168°49′.29 9 ...... 26°08′.36 169°49′.03 61 ...... 24°42′.68 168°51′.46 10 ...... 26°07′.62 169°45′.83 TABLE C–3—GARDNER PINNACLES, 62 ...... 24°47′.45 168°53′.12 11 ...... 26°06′.03 169°40′.57 FRENCH FRIGATE SHOALS, AND 63 ...... 24°52′.34 168°54′.28 ° ′ ° ′ ° ′ ° ′ 12 ...... 26 03 .97 169 35 .64 NECKER ISLAND 64 ...... 24 57 .32 168 54 .82 13 ...... 26°01′.51 169°30′.91 65 ...... 25°02′.32 168°54′.95 14 ...... 25°58′.65 169°26′.45 66 ...... 25°07′.30 168°54′.43 ° ′ ° ′ Longitude ° ′ ° ′ 15 ...... 25 55 .32 169 22 .34 Point Latitude (N) (W) 67 ...... 25 12 .19 168 53 .32 16 ...... 25°51′.67 169°18′.60 68 ...... 25°16′.99 168°51′.76 ° ′ ° ′ ° ′ ° ′ 17 ...... 25 47 .78 169 15 .19 1 ...... 25°49′.64 167°52′.66 69 ...... 25 21 .57 168 49 .60 ° ′ ° ′ ° ′ ° ′ 18 ...... 25 43 .54 169 12 .34 2 ...... 25°49′.70 167°52′.65 70 ...... 25 25 .94 168 46 .93 ° ′ ° ′ ° ′ ° ′ 19 ...... 25 39 .05 169 09 .93 3 ...... 25°48′.99 167°48′.35 71 ...... 25 30 .09 168 43 .86 ° ′ ° ′ ° ′ ° ′ 20 ...... 25 34 .37 169 08 .08 4 ...... 25°47′.09 167°36′.72 72 ...... 25 33 .89 168 40 .42 ° ′ ° ′ ° ′ ° ′ 21 ...... 25 29 .54 169 06 .76 5 ...... 25°39′.84 167°26′.48 73 ...... 25 37 .37 168 36 .52 ° ′ ° ′ ° ′ ° ′ 22 ...... 25 24 .61 169 05 .93 6 ...... 25°35′.10 167°19′.79 74 ...... 25 40 .49 168 32 .24 23 ...... 25°19′.63 169°05′.64 ° ′ ° ′ 7 ...... 25°10′.43 166°45′.00 75 ...... 25 43 .24 168 27 .68 24 ...... 25°14′.65 169°05′.93 ° ′ ° ′ 8 ...... 24°40′.91 166°03′.36 76 ...... 25 45 .57 168 22 .82 25 ...... 25°09′.69 169°06′.66 ° ′ ° ′ 9 ...... 24°35′.64 165°34′.99 77 ...... 25 47 .43 168 17 .76 26 ...... 25°04′.85 169°08′.02 ° ′ ° ′ 10 ...... 24°23′.78 164°31′.12 78 ...... 25 48 .79 168 12 .47 27 ...... 25°00′.17 169°09′.96 ° ′ ° ′ 11 ...... 24°23′.59 164°31′.14 79 ...... 25 49 .72 168 07 .09 28 ...... 24°55′.66 169°12′.35 ° ′ ° ′ 12 ...... 24°23′.31 164°29′.74 80 ...... 25 50 .11 168 01 .62 29 ...... 24°51′.35 169°15′.14 ° ′ ° ′ 13 ...... 24°21′.85 164°24′.52 81 ...... 25 50 .18 168 00 .09 30 ...... 24°47′.37 169°18′.48 14 ...... 24°20′.10 164°19′.39 31 ...... 24°43′.69 169°22′.22 15 ...... 24°17′.75 164°14′.56 32 ...... 24°40′.34 169°26′.31 TABLE C–4—NIHOA ISLAND ° ′ ° ′ 16 ...... 24°14′.99 164°09′.97 33 ...... 24 37 .42 169 30 .78 ° ′ ° ′ 34 ...... 24°35′.00 169°35′.64 17 ...... 24 11 .86 164 05 .69 ° ′ ° ′ Point Latitude (N) Longitude 35 ...... 24°33′.02 169°40′.66 18 ...... 24 08 .30 164 01 .80 (W) ° ′ ° ′ 19 ...... 24°04′.48 163°58′.23 36 ...... 24 31 .34 169 45 .88 ° ′ ° ′ ° ′ ° ′ 20 ...... 24 00 .27 163 55 .22 1 ...... 23°52′.82 161°44′.54 37 ...... 24 30 .31 169 51 .08 ° ′ ° ′ ° ′ ° ′ 21 ...... 23 55 .85 163 52 .59 2 ...... 23°52′.10 161°41′.20 38 ...... 24 29 .68 169 56 .53 ° ′ ° ′ ° ′ ° ′ 22 ...... 23 51 .17 163 50 .56 3 ...... 23°51′.18 161°37′.92 39 ...... 24 29 .56 170 01 .81 ° ′ ° ′ 40 ...... 24°29′.61 170°04′.57 23 ...... 23 46 .33 163 48 .98 4 ...... 23°50′.08 161°34′.71 ° ′ ° ′ 41 ...... 24°35′.77 170°44′.39 24 ...... 23 41 .37 163 47 .99 5 ...... 23°48′.79 161°31′.58 ° ′ ° ′ 42 ...... 24°36′.29 170°47′.58 25 ...... 23 36 .34 163 47 .56 6 ...... 23°47′.33 161°28′.55 ° ′ ° ′ 43 ...... 24°37′.18 170°50′.37 26 ...... 23 31 .27 163 47 .60 7 ...... 23°45′.69 161°25′.62 ° ′ ° ′ 44 ...... 24°37′.76 170°52′.17 27 ...... 23 26 .27 163 48 .28 8 ...... 23°43′.88 161°22′.81 ° ′ ° ′ 45 ...... 24°56′.23 171°50′.19 28 ...... 23 21 .34 163 49 .50 9 ...... 23°41′.92 161°20′.13 ° ′ ° ′ 46 ...... 25°16′.61 174°24′.84 29 ...... 23 16 .53 163 51 .14 10 ...... 23°39′.80 161°17′.60 ° ′ ° ′ 47 ...... 25°29′.56 174°38′.45 30 ...... 23 11 .96 163 53 .47 11 ...... 23°37′.54 161°15′.21 ° ′ ° ′ 48 ...... 25°33′.28 174°42′.03 31 ...... 23 07 .54 163 56 .15 12 ...... 23°35′.14 161°12′.99 ° ′ ° ′ 49 ...... 25°37′.33 174°45′.20 32 ...... 23 03 .46 163 59 .38 13 ...... 23°32′.62 161°10′.93 50 ...... 25°41′.68 174°47′.84 33 ...... 22°59′.65 164°03′.01 14 ...... 23°29′.99 161°09′.05 51 ...... 25°46′.23 174°50′.05 34 ...... 22°56′.27 164°07′.10 15 ...... 23°27′.25 161°07′.35 52 ...... 25°50′.93 174°51′.77 35 ...... 22°53′.22 164°11′.49 16 ...... 23°24′.42 161°05′.85 53 ...... 25°55′.80 174°52′.91 36 ...... 22°50′.60 164°16′.18 17 ...... 23°21′.51 161°04′.54 54 ...... 26°00′.71 174°53′.47 37 ...... 22°48′.48 164°21′.16 18 ...... 23°18′.52 161°03′.43 55 ...... 26°05′.67 174°53′.61 38 ...... 22°46′.73 164°26′.28 19 ...... 23°15′.48 161°02′.53 56 ...... 26°10′.59 174°53′.07 39 ...... 22°45′.49 164°31′.60 20 ...... 23°12′.39 161°01′.84 57 ...... 26°15′.46 174°52′.08 40 ...... 22°44′.83 164°37′.03 21 ...... 23°09′.27 161°01′.35 58 ...... 26°20′.20 174°50′.57 41 ...... 22°44′.65 164°42′.51 22 ...... 23°06′.13 161°01′.09 59 ...... 26°24′.75 174°48′.44 42 ...... 22°44′.92 164°47′.99 23 ...... 23°02′.97 161°01′.03 60 ...... 26°29′.15 174°45′.94 43 ...... 22°45′.11 164°49′.52 24 ...... 22°59′.82 161°01′.19 61 ...... 26°33′.26 174°42′.96 44 ...... 22°45′.39 164°51′.48 25 ...... 22°56′.69 161°01′.57 62 ...... 26°37′.11 174°39′.49 45 ...... 22°45′.17 164°51′.53 26 ...... 22°53′.58 161°02′.15 63 ...... 26°40′.60 174°35′.63 46 ...... 22°50′.26 165°34′.99 27 ...... 22°50′.51 161°02′.95 64 ...... 26°43′.75 174°31′.43 47 ...... 22°55′.50 166°19′.63 28 ...... 22°47′.50 161°03′.95 65 ...... 26°46′.49 174°26′.87 48 ...... 22°55′.93 166°23′.32 29 ...... 22°44′.55 161°05′.15 66 ...... 26°48′.90 174°22′.09 49 ...... 22°57′.41 166°36′.00 30 ...... 22°41′.67 161°06′.54 67 ...... 26°50′.79 174°17′.03 50 ...... 23°03′.75 166°45′.00 31 ...... 22°38′.88 161°08′.13 68 ...... 26°52′.20 174°11′.79 51 ...... 23°05′.48 166°47′.45 32 ...... 22°36′.19 161°09′.90 69 ...... 26°53′.21 174°06′.43 52 ...... 24°12′.70 168°22′.86 33 ...... 22°33′.61 161°11′.85

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TABLE C–4—NIHOA ISLAND— These charts are based on World Geodetic TABLE D–1—OUTER BOUNDARY— Continued System 1984 Datum (WGS–84) and Continued astronomic datum.

Point Latitude (N) Longitude Longitude (W) TABLE D–1—OUTER BOUNDARY Point Latitude (N) (W) ° ′ ° ′ ° ′ ° ′ 34 ...... 22 31 .14 161 13 .97 Point Latitude (N) Longitude 68 ...... 27 40 .90 179 05 .60 35 ...... 22°28′.81 161°16′.25 (W) 69 ...... 27°44′.17 179°09′.41 36 ...... 22°26′.61 161°18′.69 70 ...... 27°47′.74 179°12′.85 37 ...... 22°24′.56 161°21′.26 1 ...... 29°25′.47 178°16′.97 71 ...... 27°51′.45 179°16′.00 38 ...... 22°22′.66 161°23′.97 2 ...... 28°43′.73 175°13′.84 72 ...... 27°55′.32 179°18′.82 39 ...... 22°20′.92 161°26′.80 3 ...... 27°00′.77 173°25′.78 73 ...... 27°59′.33 179°21′.13 40 ...... 22°19′.35 161°29′.74 4 ...... 26°44′.91 171°28′.07 74 ...... 28°03′.49 179°23′.15 41 ...... 22°17′.95 161°32′.78 5 ...... 26°24′.23 170°20′.59 75 ...... 28°07′.82 179°24′.76 42 ...... 22°16′.73 161°35′.90 6 ...... 25°56′.43 167°32′.10 76 ...... 28°12′.31 179°26′.18 43 ...... 22°15′.70 161°39′.10 7 ...... 24°50′.20 165°58′.69 77 ...... 28°16′.95 179°27′.05 ° ′ ° ′ 44 ...... 22°14′.85 161°42′.37 8 ...... 24 05 .52 161 56 .86 78 ...... 28°21′.61 179°27′.63 ° ′ ° ′ 45 ...... 22°14′.20 161°45′.68 9 ...... 24 05 .29 161 56 .62 79 ...... 28°26′.18 179°27′.77 ° ′ ° ′ 46 ...... 22°13′.73 161°49′.03 10 ...... 24 04 .37 161 51 .53 80 ...... 28°30′.87 179°27′.48 ° ′ ° ′ 47 ...... 22°13′.47 161°52′.41 11 ...... 24 03 .44 161 46 .45 81 ...... 28°35′.61 179°26′.95 ° ′ ° ′ 48 ...... 22°13′.40 161°55′.80 12 ...... 24 02 .41 161 41 .39 82 ...... 28°40′.09 179°25′.75 ° ′ ° ′ ° ′ ° ′ 49 ...... 22 13 .53 161 59 .18 13 ...... 24 01 .31 161 36 .35 83 ...... 28°44′.46 179°24′.31 ° ′ ° ′ ° ′ ° ′ 50 ...... 22 13 .85 162 02 .55 14 ...... 23 59 .68 161 31 .55 84 ...... 28°48′.70 179°22′.50 ° ′ ° ′ ° ′ ° ′ 51 ...... 22 14 .31 162 05 .45 15 ...... 23 57 .85 161 26 .85 85 ...... 28°52′.81 179°20′.43 ° ′ ° ′ ° ′ ° ′ 52 ...... 22 14 .37 162 05 .89 16 ...... 23 55 .54 161 22 .31 86 ...... 28°56′.71 179°17′.77 53 ...... 22°14′.59 162°06′.88 17 ...... 23°52′.96 161°17′.92 ° ′ ° ′ ° ′ ° ′ ° ′ ° ′ 87 ...... 29 00 .58 179 14 .92 54 ...... 22 15 .87 162 12 .18 18 ...... 23 50 .12 161 13 .72 88 ...... 29°04′.18 179°11′.69 55 ...... 22°17′.70 162°17′.31 19 ...... 23°46′.94 161°10′.08 ° ′ ° ′ ° ′ ° ′ ° ′ ° ′ 89 ...... 29 07 .62 179 08 .20 56 ...... 22 19 .97 162 22 .20 20 ...... 23 43 .49 161 06 .47 90 ...... 29°10′.86 179°04′.37 57 ...... 22°22′.73 162°26′.84 ° ′ ° ′ 21 ...... 23 39 .71 161 03 .09 91 ...... 29°13′.76 179°00′.21 58 ...... 22°25′.88 162°31′.15 ° ′ ° ′ 22 ...... 23 35 .72 161 00 .14 92 ...... 29°16′.24 178°55′.78 59 ...... 22°29′.41 162°35′.09 ° ′ ° ′ 23 ...... 23 31 .59 160 57 .46 93 ...... 29°18′.51 178°51′.26 60 ...... 22°33′.28 162°38′.61 24 ...... 23°27′.32 160°55′.23 94 ...... 29°20′.45 178°46′.50 61 ...... 22°37′.47 162°41′.72 25 ...... 23°22′.74 160°53′.71 95 ...... 29°22′.26 178°41′.67 62 ...... 22°41′.93 162°44′.34 26 ...... 23°18′.29 160°52′.17 96 ...... 29°23′.52 178°36′.64 63 ...... 22°46′.63 162°46′.47 27 ...... 23°13′.57 160°51′.04 97 ...... 29°24′.53 178°31′.54 64 ...... 22°51′.48 162°48′.05 28 ...... 23°08′.68 160°50′.46 98 ...... 29°25′.16 178°26′.31 65 ...... 22°56′.46 162°49′.09 29 ...... 23°03′.70 160°50′.17 99 ...... 29°25′.42 178°20′.92 66 ...... 23°01′.50 162°49′.58 30 ...... 22°58′.67 160°50′.35 100 ...... 29°25′.29 178°16′.70 67 ...... 23°06′.58 162°49′.49 31 ...... 22°53′.84 160°51′.04 68 ...... 23°11′.61 162°48′.89 32 ...... 22°49′.11 160°52′.20 69 ...... 23°16′.57 162°47′.70 ° ′ ° ′ 33 ...... 22 44 .46 160 53 .56 TABLE D–2—INNER BOUNDARY 70 ...... 23°21′.36 162°45′.98 34 ...... 22°40′.03 160°55′.52 71 ...... 23°26′.02 162°43′.75 35 ...... 22°35′.73 160°57′.68 AROUND KURE ATOLL, MIDWAY 72 ...... 23°30′.40 162°41′.01 36 ...... 22°31′.54 161°00′.25 ATOLL, AND PEARL AND HERMES ° ′ ° ′ 73 ...... 23 34 .51 162 37 .83 37 ...... 22°27′.57 161°03′.23 TOLL ° ′ ° ′ A 74 ...... 23 38 .26 162 34 .18 38 ...... 22°23′.76 161°06′.64 ° ′ ° ′ 75 ...... 23 41 .69 162 30 .18 39 ...... 22°20′.24 161°10′.23 ° ′ ° ′ Longitude 76 ...... 23 44 .72 162 25 .79 40 ...... 22°17′.02 161°14′.13 Point Latitude (N) (W) 77 ...... 23°47′.36 162°21′.11 ° ′ ° ′ ° ′ ° ′ 41 ...... 22 14 .04 161 18 .34 78 ...... 23 49 .55 162 16 .16 ° ′ ° ′ 1 ...... 27°14′.76 176°29′.87 ° ′ ° ′ 42 ...... 22 11 .35 161 22 .80 79 ...... 23 51 .24 162 10 .99 ° ′ ° ′ 2 ...... 27°24′.95 177°33′.31 ° ′ ° ′ 43 ...... 22 09 .19 161 27 .45 80 ...... 23 52 .44 162 05 .63 ° ′ ° ′ 3 ...... 27°35′.87 178°29′.90 ° ′ ° ′ 44 ...... 22 07 .29 161 32 .11 81 ...... 23 53 .14 162 00 .25 45 ...... 22°05′.87 161°36′.94 4 ...... 27°36′.64 178°33′.93 82 ...... 23°53′.36 161°54′.75 ° ′ ° ′ ° ′ ° ′ ° ′ ° ′ 46 ...... 22 04 .62 161 41 .89 5 ...... 27 37 .53 178 37 .32 83 ...... 23 53 .09 161 49 .28 47 ...... 22°03′.94 161°47′.09 6 ...... 27°38′.60 178°40′.65 84 ...... 23°52′.82 161°47′.09 48 ...... 22°03′.41 161°52′.36 7 ...... 27°39′.85 178°43′.90 85 ...... 23°52′.39 161°44′.67 49 ...... 22°03′.41 161°57′.51 8 ...... 27°41′.28 178°47′.05 50 ...... 22°03′.82 162°02′.83 9 ...... 27°42′.89 178°50′.10 ■ 5. Add Appendix D to Part 404 to read 51 ...... 22°04′.49 162°08′.04 10 ...... 27°44′.66 178°53′.03 as follows: 52 ...... 22°05′.43 162°13′.12 11 ...... 27°46′.59 178°55′.83 53 ...... 22°05′.97 162°16′.41 12 ...... 27°48′.67 178°58′.49 Appendix D to Part 404—Boundary 54 ...... 22°06′.29 162°16′.85 13 ...... 27°50′.89 179°01′.00 Coordinates for Papaha¯naumokua¯kea 55 ...... 22°34′.57 164°47′.27 14 ...... 27°53′.22 179°03′.39 Marine National Monument Ship 56 ...... 22°47′.60 166°38′.23 15 ...... 27°55′.69 179°05′.61 Reporting Area 57 ...... 24°03′.82 168°27′.91 16 ...... 27°58′.29 179°07′.61 58 ...... 24°25′.76 170°45′.39 17 ...... 28°01′.01 179°09′.47 Appendix D—Geographical 59 ...... 24°46′.54 171°53′.03 18 ...... 28°03′.81 179°11′.10 Coordinates 60 ...... 25°07′.60 174°28′.71 19 ...... 28°06′.71 179°12′.53 Ship Reporting Area 61 ...... 27°05′.82 176°35′.51 20 ...... 28°09′.67 179°13′.75 62 ...... 27°27′.32 178°38′.66 21 ...... 28°12′.70 179°14′.75 Papaha¯ naumokua¯ kea Marine National 63 ...... 27°28′.93 178°43′.56 22 ...... 28°15′.78 179°15′.54 Monument 64 ...... 27°30′.64 178°48′.40 23 ...... 28°18′.91 179°16′.11 Reference chart: United States 540, 2008 65 ...... 27°32′.74 178°52′.96 24 ...... 28°22′.04 179°16′.45 edition; 19016, 2008 edition; 19019, 2008 66 ...... 27°35′.06 178°57′.30 25 ...... 28°24′.72 179°16′.56 edition; 19022, 2008 edition. 67 ...... 27°37′.89 179°01′.49 26 ...... 28°25′.20 179°16′.57

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TABLE D–2—INNER BOUNDARY TABLE D–2—INNER BOUNDARY TABLE D–3—INNER BOUNDARY AROUND KURE ATOLL, MIDWAY AROUND KURE ATOLL, MIDWAY AROUND LISIANSKI ISLAND, LAYSAN ATOLL, AND PEARL AND HERMES ATOLL, AND PEARL AND HERMES ISLAND, MARO REEF, AND RAITA ATOLL—Continued ATOLL—Continued BANK—Continued

Longitude Longitude Longitude Point Latitude (N) (W) Point Latitude (N) (W) Point Latitude (N) (W)

27 ...... 28°25′.81 179°16′.56 94 ...... 27°13′.02 176°27′.74 56 ...... 26°10′.59 174°53′.07 28 ...... 28°28′.35 179°16′.44 95 ...... 27°13′.77 176°28′.70 57 ...... 26°15′.46 174°52′.08 29 ...... 28°31′.49 179°16′.10 58 ...... 26°20′.20 174°50′.57 30 ...... 28°34′.61 179°15′.54 59 ...... 26°24′.75 174°48′.44 31 ...... 28°37′.69 179°14′.75 TABLE D–3—INNER BOUNDARY 60 ...... 26°29′.15 174°45′.94 32 ...... 28°40′.71 179°13′.74 AROUND LISIANSKI ISLAND, LAYSAN 61 ...... 26°33′.26 174°42′.96 ° ′ ° ′ ° ′ ° ′ 33 ...... 28 43 .68 179 12 .54 ISLAND, MARO REEF, AND RAITA 62 ...... 26 37 .11 174 39 .49 34 ...... 28°46′.58 179°11′.13 63 ...... 26°40′.60 174°35′.63 ANK 35 ...... 28°49′.39 179°09′.52 B 64 ...... 26°43′.75 174°31′.43 36 ...... 28°52′.11 179°07′.70 65 ...... 26°46′.49 174°26′.87 37 ...... 28°54′.72 179°05′.70 Longitude 66 ...... 26°48′.90 174°22′.09 Point Latitude (N) (W) 38 ...... 28°57′.21 179°03′.51 67 ...... 26°50′.79 174°17′.03 ° ′ ° ′ 68 ...... 26°52′.20 174°11′.79 39 ...... 28 59 .58 179 01 .15 1 ...... 26°50′.89 173°30′.79 ° ′ ° ′ 69 ...... 26°53′.21 174°06′.43 40 ...... 29 01 .81 178 58 .62 2 ...... 26°36′.00 171°37′.70 ° ′ ° ′ 70 ...... 26°53′.74 174°00′.98 41 ...... 29 03 .90 178 55 .93 3 ...... 26°35′.49 171°33′.84 ° ′ ° ′ 71 ...... 26°53′.74 173°55′.48 42 ...... 29 05 .83 178 53 .10 4 ...... 26°35′.10 171°30′.84 ° ′ ° ′ 72 ...... 26°53′.29 173°50′.02 43 ...... 29 07 .60 178 50 .13 5 ...... 26°34′.07 171°27′.50 ° ′ ° ′ 73 ...... 26°52′.56 173°44′.58 44 ...... 29 09 .21 178 47 .04 6 ...... 26°33′.35 171°25′.16 ° ′ ° ′ 74 ...... 26°51′.85 173°39′.14 45 ...... 29 10 .64 178 43 .84 7 ...... 26°14′.26 170°23′.04 ° ′ ° ′ 75 ...... 26°51′.13 173°33′.69 46 ...... 29 11 .89 178 40 .54 8 ...... 26°08′.69 169°48′.96 ° ′ ° ′ 76 ...... 26°50′.75 173°30′.87 47 ...... 29 12 .95 178 37 .16 9 ...... 26°08′.36 169°49′.03 ° ′ ° ′ 48 ...... 29 13 .82 178 33 .71 10 ...... 26°07′.62 169°45′.83 ° ′ ° ′ 49 ...... 29 14 .50 178 30 .21 11 ...... 26°06′.03 169°40′.57 ° ′ ° ′ TABLE D–4—INNER BOUNDARY 50 ...... 29 14 .99 178 26 .66 12 ...... 26°03′.97 169°35′.64 ° ′ ° ′ 51 ...... 29 15 .28 178 23 .08 13 ...... 26°01′.51 169°30′.91 AROUND GARDNER PINNACLES, ° ′ ° ′ 52 ...... 29 15 .36 178 19 .49 14 ...... 25°58′.65 169°26′.45 FRENCH FRIGATE SHOALS, AND ° ′ ° ′ 53 ...... 29 15 .25 178 15 .90 15 ...... 25°55′.32 169°22′.34 ECKER SLAND ° ′ ° ′ N I 54 ...... 29 14 .94 178 12 .32 16 ...... 25°51′.67 169°18′.60 55 ...... 29°14′.43 178°08′.78 17 ...... 25°47′.78 169°15′.19 ° ′ ° ′ Longitude 56 ...... 29 03 .47 177 12 .07 18 ...... 25°43′.54 169°12′.34 Point Latitude (N) (W) 57 ...... 29°02′.55 177°07′.29 19 ...... 25°39′.05 169°09′.93 58 ...... 28°38′.96 175°35′.47 20 ...... 25°34′.37 169°08′.08 1 ...... 25°49′.64 167°52′.66 59 ...... 28°38′.67 175°34′.35 21 ...... 25°29′.54 169°06′.76 2 ...... 25°49′.70 167°52′.65 60 ...... 28°34′.91 175°19′.74 22 ...... 25°24′.61 169°05′.93 3 ...... 25°48′.99 167°48′.35 61 ...... 28°26′.24 175°10′.65 23 ...... 25°19′.63 169°05′.64 4 ...... 25°47′.09 167°36′.72 62 ...... 28°24′.61 175°08′.95 24 ...... 25°14′.65 169°05′.93 5 ...... 25°39′.84 167°26′.48 63 ...... 28°24′.53 175°09′.04 25 ...... 25°09′.69 169°06′.66 6 ...... 25°35′.10 167°19′.79 64 ...... 28°20′.09 175°04′.91 26 ...... 25°04′.85 169°08′.02 7 ...... 25°10′.43 166°45′.00 65 ...... 28°16′.05 175°01′.92 27 ...... 25°00′.17 169°09′.96 8 ...... 24°40′.91 166°03′.36 66 ...... 28°11′.78 174°59′.33 28 ...... 24°55′.66 169°12′.35 9 ...... 24°35′.64 165°34′.99 67 ...... 28°07′.29 174°57′.23 29 ...... 24°51′.35 169°15′.14 10 ...... 24°23′.78 164°31′.12 68 ...... 28°02′.63 174°55′.68 30 ...... 24°47′.37 169°18′.48 11 ...... 24°23′.59 164°31′.14 69 ...... 27°57′.84 174°54′.62 31 ...... 24°43′.69 169°22′.22 12 ...... 24°23′.31 164°29′.74 70 ...... 27°53′.01 174°54′.05 32 ...... 24°40′.34 169°26′.31 13 ...... 24°21′.85 164°24′.52 71 ...... 27°48′.12 174°54′.05 33 ...... 24°37′.42 169°30′.78 14 ...... 24°20′.10 164°19′.39 72 ...... 27°43′.28 174°54′.62 34 ...... 24°35′.00 169°35′.64 15 ...... 24°17′.75 164°14′.56 73 ...... 27°38′.48 174°55′.71 35 ...... 24°33′.02 169°40′.66 16 ...... 24°14′.99 164°09′.97 74 ...... 27°33′.81 174°57′.32 36 ...... 24°31′.34 169°45′.88 17 ...... 24°11′.86 164°05′.69 75 ...... 27°29′.30 174°59′.43 37 ...... 24°30′.31 169°51′.08 18 ...... 24°08′.30 164°01′.80 76 ...... 27°25′.00 175°02′.03 38 ...... 24°29′.68 169°56′.53 19 ...... 24°04′.48 163°58′.23 77 ...... 27°20′.93 175°05′.07 39 ...... 24°29′.56 170°01′.81 20 ...... 24°00′.27 163°55′.22 78 ...... 27°17′.18 175°08′.59 40 ...... 24°29′.61 170°04′.57 21 ...... 23°55′.85 163°52′.59 79 ...... 27°13′.73 175°12′.47 41 ...... 24°35′.77 170°44′.39 22 ...... 23°51′.17 163°50′.56 80 ...... 27°10′.59 175°16′.67 42 ...... 24°36′.29 170°47′.58 23 ...... 23°46′.33 163°48′.98 81 ...... 27°07′.88 175°21′.25 43 ...... 24°37′.18 170°50′.37 24 ...... 23°41′.37 163°47′.99 82 ...... 27°05′.57 175°26′.09 44 ...... 24°37′.76 170°52′.17 25 ...... 23°36′.34 163°47′.56 83 ...... 27°03′.66 175°31′.15 45 ...... 24°56′.23 171°50′.19 26 ...... 23°31′.27 163°47′.60 84 ...... 27°02′.22 175°36′.40 46 ...... 25°16′.61 174°24′.84 27 ...... 23°26′.27 163°48′.28 85 ...... 27°01′.29 175°41′.78 47 ...... 25°29′.56 174°38′.45 28 ...... 23°21′.34 163°49′.50 86 ...... 27°00′.73 175°47′.22 48 ...... 25°33′.28 174°42′.03 29 ...... 23°16′.53 163°51′.14 87 ...... 27°00′.68 175°52′.74 49 ...... 25°37′.33 174°45′.20 30 ...... 23°11′.96 163°53′.47 88 ...... 27°01′.09 175°58′.16 50 ...... 25°41′.68 174°47′.84 31 ...... 23°07′.54 163°56′.15 89 ...... 27°01′.99 176°03′.53 51 ...... 25°46′.23 174°50′.05 32 ...... 23°03′.46 163°59′.38 90 ...... 27°03′.34 176°08′.81 52 ...... 25°50′.93 174°51′.77 33 ...... 22°59′.65 164°03′.01 91 ...... 27°05′.12 176°13′.91 53 ...... 25°55′.80 174°52′.91 34 ...... 22°56′.27 164°07′.10 92 ...... 27°07′.37 176°18′.79 54 ...... 26°00′.71 174°53′.47 35 ...... 22°53′.22 164°11′.49 93 ...... 27°09′.98 176°23′.40 55 ...... 26°05′.67 174°53′.61 36 ...... 22°50′.60 164°16′.18

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TABLE D–4—INNER BOUNDARY TABLE D–5—INNER BOUNDARY TABLE D–5—INNER BOUNDARY AROUND GARDNER PINNACLES, AROUND NIHOA ISLAND AROUND NIHOA ISLAND—Continued FRENCH FRIGATE SHOALS, AND NECKER ISLAND—Continued Point Latitude (N) Longitude Longitude (W) Point Latitude (N) (W)

Point Latitude (N) Longitude 1 ...... 23°52′.82 161°44′.54 57 ...... 22°22′.73 162°26′.84 (W) 2 ...... 23°52′.10 161°41′.20 58 ...... 22°25′.88 162°31′.15 ° ′ ° ′ ° ′ ° ′ ° ′ ° ′ 3 ...... 23 51 .18 161 37 .92 59 ...... 22 29 .41 162 35 .09 37 ...... 22 48 .48 164 21 .16 4 ...... 23°50′.08 161°34′.71 ° ′ ° ′ ° ′ ° ′ 60 ...... 22 33 .28 162 38 .61 38 ...... 22 46 .73 164 26 .28 5 ...... 23°48′.79 161°31′.58 61 ...... 22°37′.47 162°41′.72 ° ′ ° ′ 39 ...... 22 45 .49 164 31 .60 6 ...... 23°47′.33 161°28′.55 62 ...... 22°41′.93 162°44′.34 40 ...... 22°44′.83 164°37′.03 7 ...... 23°45′.69 161°25′.62 63 ...... 22°46′.63 162°46′.47 41 ...... 22°44′.65 164°42′.51 8 ...... 23°43′.88 161°22′.81 64 ...... 22°51′.48 162°48′.05 42 ...... 22°44′.92 164°47′.99 9 ...... 23°41′.92 161°20′.13 65 ...... 22°56′.46 162°49′.09 ° ′ ° ′ 43 ...... 22°45′.11 164°49′.52 10 ...... 23 39 .80 161 17 .60 66 ...... 23°01′.50 162°49′.58 ° ′ ° ′ ° ′ ° ′ 11 ...... 23 37 .54 161 15 .21 67 ...... 23°06′.58 162°49′.49 44 ...... 22 45 .39 164 51 .48 ° ′ ° ′ ° ′ ° ′ 12 ...... 23 35 .14 161 12 .99 68 ...... 23°11′.61 162°48′.89 45 ...... 22 45 .17 164 51 .53 13 ...... 23°32′.62 161°10′.93 ° ′ ° ′ 69 ...... 23°16′.57 162°47′.70 46 ...... 22 50 .26 165 34 .99 14 ...... 23°29′.99 161°09′.05 ° ′ ° ′ 70 ...... 23°21′.36 162°45′.98 47 ...... 22 55 .50 166 19 .63 15 ...... 23°27′.25 161°07′.35 ° ′ ° ′ ° ′ ° ′ 71 ...... 23 26 .02 162 43 .75 48 ...... 22 55 .93 166 23 .32 16 ...... 23°24′.42 161°05′.85 ° ′ ° ′ ° ′ ° ′ ° ′ ° ′ 72 ...... 23 30 .40 162 41 .01 49 ...... 22 57 .41 166 36 .00 17 ...... 23 21 .51 161 04 .54 73 ...... 23°34′.51 162°37′.83 ° ′ ° ′ ° ′ ° ′ 50 ...... 23 03 .75 166 45 .00 18 ...... 23 18 .52 161 03 .43 74 ...... 23°38′.26 162°34′.18 19 ...... 23°15′.48 161°02′.53 51 ...... 23°05′.48 166°47′.45 75 ...... 23°41′.69 162°30′.18 20 ...... 23°12′.39 161°01′.84 52 ...... 24°12′.70 168°22′.86 76 ...... 23°44′.72 162°25′.79 21 ...... 23°09′.27 161°01′.35 53 ...... 24°12′.88 168°22′.78 77 ...... 23°47′.36 162°21′.11 22 ...... 23°06′.13 161°01′.09 ° ′ ° ′ 78 ...... 23°49′.55 162°16′.16 54 ...... 24 16 .05 168 27 .28 23 ...... 23°02′.97 161°01′.03 ° ′ ° ′ ° ′ ° ′ 55 ...... 24 19 .15 168 31 .66 24 ...... 22°59′.82 161°01′.19 79 ...... 23 51 .24 162 10 .99 56 ...... 24°22′.27 168°35′.95 ° ′ ° ′ 80 ...... 23°52′.44 162°05′.63 25 ...... 22 56 .69 161 01 .57 ° ′ ° ′ 57 ...... 24°25′.71 168°39′.94 ° ′ ° ′ 81 ...... 23 53 .14 162 00 .25 26 ...... 22 53 .58 161 02 .15 ° ′ ° ′ 58 ...... 24°29′.51 168°43′.55 27 ...... 22°50′.51 161°02′.95 82 ...... 23 53 .36 161 54 .75 83 ...... 23°53′.09 161°49′.28 59 ...... 24°33′.67 168°46′.63 28 ...... 22°47′.50 161°03′.95 84 ...... 23°52′.82 161°47′.09 60 ...... 24°38′.06 168°49′.29 29 ...... 22°44′.55 161°05′.15 ° ′ ° ′ 85 ...... 23°52′.39 161°44′.67 61 ...... 24°42′.68 168°51′.46 30 ...... 22 41 .67 161 06 .54 ° ′ ° ′ ° ′ ° ′ 31 ...... 22 38 .88 161 08 .13 62 ...... 24 47 .45 168 53 .12 ° ′ ° ′ ° ′ ° ′ 32 ...... 22 36 .19 161 09 .90 ■ 6. Add Appendix E to Part 404 to read 63 ...... 24 52 .34 168 54 .28 33 ...... 22°33′.61 161°11′.85 ° ′ ° ′ as follows: 64 ...... 24 57 .32 168 54 .82 34 ...... 22°31′.14 161°13′.97 ° ′ ° ′ 65 ...... 25 02 .32 168 54 .95 35 ...... 22°28′.81 161°16′.25 Appendix E to Part 404—Content and ° ′ ° ′ 66 ...... 25 07 .30 168 54 .43 36 ...... 22°26′.61 161°18′.69 Syntax for Papaha¯naumokua¯kea Ship ° ′ ° ′ ° ′ ° ′ 67 ...... 25 12 .19 168 53 .32 37 ...... 22 24 .56 161 21 .26 Reporting System 68 ...... 25°16′.99 168°51′.76 38 ...... 22°22′.66 161°23′.97 69 ...... 25°21′.57 168°49′.60 39 ...... 22°20′.92 161°26′.80 Immediately upon crossing the reporting ° ′ ° ′ 70 ...... 25°25′.94 168°46′.93 40 ...... 22 19 .35 161 29 .74 area boundary, notification should be sent as ° ′ ° ′ 41 ...... 22°17′.95 161°32′.78 a direct e-mail to 71 ...... 25 30 .09 168 43 .86 ° ′ ° ′ ° ′ ° ′ 42 ...... 22 16 .73 161 35 .90 [email protected] in the 72 ...... 25 33 .89 168 40 .42 ° ′ ° ′ ° ′ ° ′ 43 ...... 22 15 .70 161 39 .10 prescribed format and data syntax shown. 73 ...... 25 37 .37 168 36 .52 44 ...... 22°14′.85 161°42′.37 Use of batch message routing services which ° ′ ° ′ 74 ...... 25 40 .49 168 32 .24 45 ...... 22°14′.20 161°45′.68 may delay receipt of a report should not be ° ′ ° ′ 75 ...... 25 43 .24 168 27 .68 46 ...... 22°13′.73 161°49′.03 used. Failure to follow the exact format (e.g., 76 ...... 25°45′.57 168°22′.82 47 ...... 22°13′.47 161°52′.41 extra information, extraneous characters, or 77 ...... 25°47′.43 168°17′.76 48 ...... 22°13′.40 161°55′.80 double spacing) may cause the automated 78 ...... 25°48′.79 168°12′.47 49 ...... 22°13′.53 161°59′.18 computer system to reject your report. Note: 79 ...... 25°49′.72 168°07′.09 50 ...... 22°13′.85 162°02′.55 Report transmission costs via INMARSAT–C ° ′ ° ′ 80 ...... 25°50′.11 168°01′.62 51 ...... 22 14 .31 162 05 .45 will be assumed by NOAA. ° ′ ° ′ 81 ...... 25°50′.18 168°00′.09 52 ...... 22 14 .37 162 05 .89 53 ...... 22°14′.59 162°06′.88 E.1 Entry Notification Format 54 ...... 22°15′.87 162°12′.18 Immediately upon entering the Reporting 55 ...... 22°17′.70 162°17′.31 Area, vessels required to participate must 56 ...... 22°19′.97 162°22′.20 provide the following information.

TABLE E.1—INFORMATION REQUIRED FOR ENTRY NOTIFICATION

Function Information required Example field text Telegraphy System identifier CORAL SHIPREP // CORAL SHIPREP //

A ...... Ship ...... Vessel name/call sign/flag/IMO number/Federal documenta- A/OCEAN VOYAGER/C5FU8/BAHAMAS/ tion or State registration number if applicable //. IMO 9359165// B ...... Date, time (UTC), A 6-digit group giving day of month (first two digits), hours B/271107Z DEC// and month of and minutes (last four digits) in coordinated universal time, entry. suffixed by the letter Z (indicating time in UTC), and three letters indicating month //.

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TABLE E.1—INFORMATION REQUIRED FOR ENTRY NOTIFICATION—Continued

Function Information required Example field text Telegraphy System identifier CORAL SHIPREP // CORAL SHIPREP //

C ...... Position ...... A 4-digit group giving latitude in degrees and minutes, C/2728N/17356W// suffixed with the letter N (indicating north), followed by a single /, and a five-digit group giving longitude in degrees and minutes, suffixed with the letter W (indicating west) // [Report in the World Geodetic System 1984 Datum (WGS– 84)]. E ...... True course ...... 3-digit number indicating true course // ...... E/180// F ...... Speed in knots and 3-digit group indicating knots decimal tenths // ...... F/20.5// tenths. I ...... Destination and esti- Name of port city/country/estimated arrival date and time I/SEATTLE/USA/311230Z DEC// mated time of ar- group expressed as in (B) //. rival. L ...... Intended route Route information should be reported as a direct rhumbline L/RL/215/20.5// through the re- (RL) course through the reporting area and intended speed -OR- porting area. (expressed as in E and F) or a series of waypoints (WP). L/WP/2734N/17352W/20.5// Each waypoint entry should be reported as latitude and L/WP/2641N/17413W/20.5// longitude, expressed as in (C), and intended speed be- L/WP/2605N/17530W/20.5// tween waypoints (as in F) // (Note: As many ‘‘L’’ lines as needed may be used to describe the vessel’s intended route.). O ...... Vessel draft in me- Maximum present static draft reported in meters decimal cen- O/11.50// ters. timeters //. P ...... Categories of Haz- Classification Code (e.g. IMDG, IBC, IGC, INF) / and all cor- P/IMDG/1.4G,2.1,2.2,2.3,3,4.1,6.1,8,9// ardous Cargoes*. responding Categories of Hazardous Cargoes (delimited by commas) // Note: If necessary, use a separate ‘‘P’’ line for each type of Classification Code. Q ...... Defects or Brief details of defects, damage, deficiencies or limitations Q/Include details as required// deficiencies**. that restrict maneuverability or impair normal navigation // (If none, enter the number zero.). R ...... Pollution incident or Description of pollution incident or goods lost overboard with- R/0// goods lost in the Monument, the Reporting Area, or the U.S. Exclusive overboard**. Economic Zone//(If none, enter the number zero.). T ...... Contact information Name/address/and phone number of ship’s agent or owner // T/JOHN DOE/GENERIC SHIPPING of ship’s agent or COMPANY INC, 6101 ACME ROAD, owner. ROOM 123, CITY, STATE, COUNTRY 12345/123–123–1234// U ...... Ship size (length Length overall reported in meters decimal centimeters/num- U/294.14/54592/CONTAINER SHIP// overall and gross ber of gross tons/type of ship (e.g. bulk carrier, chemical tonnage) and type. tanker, oil tanker, gas tanker, container, general cargo, fishing vessel, research, passenger, OBO, RORO) //. W ...... Persons ...... Total number of persons on board // ...... W/15//

TABLE E.1 NOTES *Categories of hazardous cargoes means goods classified in the International Maritime Dangerous Goods (IMDG) Code; substances classified in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) and chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code); oils as defined in MARPOL Annex I; noxious liquid substances as defined in MARPOL Annex II; harmful substances as defined in MARPOL Annex III; and ra- dioactive materials specified in the Code for the Safe Carriage of the Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships (INF Code). **In accordance with the provisions of the MARPOL Convention, ships must report information relating to defects, damage, deficiencies or other limitations as well as, if necessary, information relating to pollution incidents or loss of cargo. Safety related reports must be provided to CORAL SHIPREP without delay should a ship suffer damage, failure or breakdown affecting the safety of the ship (Item Q), or if a ship makes a marked deviation from a route, course or speed previously advised (Item L). Pollution or cargo lost overboard must be reported without delay (Item R).

E.2 Prior Notification of Entry Format TABLE E.2—INFORMATION REQUIRED the United States less than 300 gross tonnage Vessels of the United States less than 300 FOR PRIOR NOTIFICATION that are not equipped with onboard e-mail gross tonnage that are not equipped with capability must provide the following Exit onboard e-mail capability must provide the System PRIOR NOTICE //. Notification information within 12 hrs of following notification of entry at least 72 hrs, identifier. leaving the Reporting Area. Notification may but no longer than 1 month, prior to entry Items ...... A, B, C (as applicable), I, L, O, be made via the following communication date, utilizing the data syntax described P (as applicable), Q, T, U, W. methods, listed in order of preference: E-mail above. Notification may be made via the [[email protected]]; fax [1–808– following communication methods, listed in order of preference: E-mail E.3 Exit Notification Format 397–2662]; telephone [1–866–478–NWHI [[email protected]]; fax [1–808– Immediately upon leaving the Reporting (6944), 1–808–395–NWHI (6944)]. 397–2662]; telephone [1–866–478–NWHI Area, vessels required to participate must (6944), 1–808–395–NWHI (6944)]. provide the following information. Vessels of

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TABLE E.3—INFORMATION REQUIRED FOR EXIT NOTIFICATION

Function Information required Example field text Telegraphy System identifier CORAL SHIPREP // CORAL SHIPREP//

A ...... Ship ...... Vessel name / call sign / flag / IMO number / Federal docu- A/OCEAN VOYAGER/C5FU8/BAHAMAS/ mentation or State registration number if applicable //. IMO9359165// B ...... Date, time (UTC), A 6-digit group giving day of month (first two digits), hours B/271657Z DEC// and month of exit. and minutes (last four digits), suffixed by the letter Z indi- cating time in UTC, and three letters indicating month//. C ...... Position ...... A 4-digit group giving latitude in degrees and minutes, C/2605N/17530W// suffixed with the letter N (indicating north), followed by a single //, and a five digit group giving longitude in degrees and minutes, suffixed with the letter W (indicating west) // [Report in the World Geodetic System 1984 Datum (WGS– 84)]. R ...... Pollution incident or Description of pollution incident or goods lost overboard with- R/0// goods lost over- in the Monument, the Reporting Area, or the U.S. Exclusive board. Economic Zone // (If none, enter the number zero).

E.4 Example Entry Report O/10.90// E.5 Example Exit Report CORAL SHIPREP// P/IMDG/3,4.1,6.1,8,9// CORAL SHIPREP// A/SEA ROVER/WFSU/USA/IMO 8674208/ Q/0// A/SEA ROVER/WFSU/USA/IMO 8674208/ DOC 602011// R/0// DOC 602011// B/010915Z JUN// T/JOHN DOE/CONTAINER SHIPPERS INC, B/011515Z JUN// C/2636N/17600W// 500 PORT ROAD, ROOM 123, LOS C/2747N/17416W// E/050// ANGELES, CA, USA 90050/213–123– R/0// F/20.0// 1234// I/LOS ANGELES/USA/081215Z JUN// U/199.90/27227/CONTAINER SHIP// [FR Doc. E8–28245 Filed 12–2–08; 8:45 am] L/RL/050/20.0// W/15// BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 73, No. 233

Wednesday, December 3, 2008

This section of the FEDERAL REGISTER • Alternative Method for Comments: pertaining to the National Security contains notices to the public of the proposed If unable to access the Federal Personnel System (NSPS or ‘‘the issuance of rules and regulations. The Rulemaking Portal, comments may be System’’), a human resources (HR) purpose of these notices is to give interested mailed to the following address: DOD/ management system for DoD under 5 persons an opportunity to participate in the OPM/NSPS Public Comments, PO Box rule making prior to the adoption of the final U.S.C. 9902, as enacted by section 1101 rules. 14474, Washington, DC 20044. of the National Defense Authorization Instructions: All submissions must Act for Fiscal Year 2004 (Pub. L. 108– include the agency name and docket 136, November 24, 2003), amended by DEPARTMENT OF DEFENSE number or RIN for this rulemaking. section 1106 of the National Defense Mailed comments must be in paper Authorization Act for Fiscal Year 2008 OFFICE OF PERSONNEL form. No mailed comments in electronic (Pub. L. 110–181, January 28, 2008), and MANAGEMENT form (CDs, floppy disk, or other media) by section 1106 of the Duncan Hunter will be accepted. The Federal National Defense Authorization Act for 5 CFR Part 9901 Rulemaking Portal, http:// Fiscal Year 2009 (Pub. L. 110–417, www.regulations.gov, will contain any October 14, 2008). The following RIN 3206–AL75 public comments as received, without information is intended to provide change, unless the comment contains interested parties with relevant National Security Personnel System security-sensitive material, confidential background material about, and a business information, or other description of the staffing and AGENCY: Department of Defense; Office information for which public disclosure employment subpart of the regulation. of Personnel Management. is restricted by statute. If such material ACTION: Proposed rule. is received, we will provide a reference Significant Changes to the Original Law to that material in the version of the The original NSPS statute was SUMMARY: The Department of Defense comment that is placed in the docket. (DoD) and the Office of Personnel enacted on November 24, 2003, and The docket system is an ‘‘anonymous provided the Secretary of Defense, in Management (OPM) are issuing a access’’ system, which means that DoD proposed regulation adding Subpart E, regulations jointly prescribed with the and OPM will not know your identity, Director of OPM, the authority to Staffing and Employment, to the e-mail address, or other contact National Security Personnel System establish a flexible and contemporary information unless you provide it in the civilian personnel system called the (NSPS) regulation published in the body of your comment. Unless a Federal Register on September 26, 2008. National Security Personnel System. comment is submitted anonymously, NSPS provided DoD with authority to NSPS is a human resources management the names of all commenters will be system for DoD, originally authorized by deviate from Governmentwide public information. regulations in the areas of labor the National Defense Authorization Act Please ensure your comments are relations, adverse actions and appeals, for Fiscal Year 2004, amended by the submitted within the specified open reduction in force, classification, National Defense Authorization Act for comment period. Comments received compensation, staffing, and Fiscal Year 2008, and the Duncan after the close of the comment period performance management. This new Hunter National Defense Authorization will be marked ‘‘late,’’ and DoD and civilian personnel system was intended Act for Fiscal Year 2009. The proposed OPM are not required to consider them to cover most of the approximately regulation governs staffing and in formulating a final decision. employment under NSPS. Before acting on this proposal, DoD 700,000 DoD civilian employees. DATES: Comments must be received on and OPM will consider all comments The original statute provided or before January 2, 2009. we receive on or before the closing date authority to the Secretary of Defense, ADDRESSES: You may submit comments for comments. Comments filed late will notwithstanding 5 U.S.C. chapters 31, identified by docket number NSPS– be considered only if it is possible to do 33 and 35, to establish qualifications OPM–2008–0139 and/or Regulatory so without incurring expense or delay. requirements for, recruit for and make Information Number (RIN) 3206–AL75. Changes to this proposal may be made appointments to NSPS positions; to Please arrange and identify your in light of the comments we receive. establish methods of assigning, comments on the regulatory text by FOR FURTHER INFORMATION CONTACT: For reassigning, detailing, transferring, or section number; if your comments relate DoD, Bradley B. Bunn, (703) 696–5604; promoting employees; and to establish to the supplementary information, for OPM, Charles D. Grimes III, (202) workforce shaping procedures that please refer to the heading and page 606–8079 reduce disruption and place greater number. There are two methods for SUPPLEMENTARY INFORMATION: The emphasis on performance as a factor in submitting comments. Please submit Department of Defense (DoD or ‘‘the retention. These authorities enabled only one set of comments via one of the Department’’) and the Office of flexible processes to assign new or methods described. Personnel Management (OPM) are different work and to streamline hiring • Preferred Method for Comments: proposing to add staffing and processes. The preferred method for submitting employment provisions to the Public Law 110–181 amended title 5, comments is through the Federal regulation published in the Federal United States Code, retaining authority Rulemaking Portal: http:// Register on September 26, 2008 for performance-based pay and www.regulations.gov. Follow the (Volume 73, Number 188) [Rules and classification and compensation instructions for submitting comments. Regulations] [Pages 56344–56420] flexibilities, but substantially modifying

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other NSPS authorities. The law, among In order to meet its critical mission Appointing Authorities other things— requirements worldwide and respond to • Governmentwide Appointing Brings NSPS under a dynamic national security Authorities. Under the proposed Governmentwide rules for labor- environment, the Department needs regulations, the Department will management relations, disciplinary greater flexibility to attract, recruit, continue to use excepted and actions and employee appeals of assign and retain a high quality competitive appointing authorities adverse actions, and workforce shaping workforce. Although the current General under chapters 31 and 33 of title 5, U.S. (reduction in force, furlough, and Schedule personnel management system Code, Governmentwide regulations, or transfer of function). is based on important core principles, • Requires that this rule be Executive orders, as well as other the General Schedule does not embody statutes. Individuals hired under those considered a major rule for the purposes the flexibility needed by DoD to meet of section 801 of title 5, United States authorities will be designated as career, mission requirements. While preserving career conditional, term, temporary, or Code, with advance Congressional merit principles and veterans’ notification for OPM/DoD jointly- time-limited employees, as appropriate. preference requirements, subpart E of Additional NSPS Appointing prescribed NSPS regulations. the proposed regulations helps to • Gives these rules the status of Authorities. Under the proposed streamline hiring and placement regulations, the Secretary and the Governmentwide rules for the purpose processes and provides DoD with an of collective bargaining under chapter Director may additionally establish new expanded set of flexible hiring tools to excepted and competitive appointing 71 when these rules are uniformly respond effectively to continuing applicable to all organizational or authorities for positions covered by mission changes and priorities. Under NSPS. For any appointing authority that functional units included in NSPS. the proposed regulations, DoD managers • Revised the staffing and may result in entry into the competitive will have greater flexibility in acquiring, employment authorities authorized by service, including excepted service advancing, and assigning a workforce NDAA 2004. appointments that may lead to a On October 14, 2008, section 1106 of tailored to the Department’s needs. The subsequent noncompetitive the Duncan Hunter National Defense new staffing flexibilities, in conjunction appointment to the competitive service, Authorization Act for Fiscal Year 2009 with the NSPS compensation and DoD and OPM will jointly publish was enacted, which addressed staffing classification flexibilities, provide DoD advance notice, and request comment, and employment authorities. Pursuant managers with a greater range of options in the Federal Register whenever it to this law, the following NSPS staffing to adapt their recruitment and hiring establishes such an authority. In and employment authorities have been strategies to meet changing mission and addition, DoD and OPM may establish retained under NSPS: Authority for the organizational needs, including excepted appointing authorities for Secretary of Defense to waive 5 U.S.C. consideration of the nature and duration positions that are not in the competitive chapter 33 for the purpose of regulating of work. The proposed regulations also service without specific notice in the methods of establishing qualification address the need to compete for the best Federal Register. The proposed requirements for, recruitment for, and talent available by providing the authority to establish new appointing appointments to NSPS positions, as well Department with the ability to authorities provides flexibility to tailor as the methods of assigning, reassigning, streamline and accelerate the appointments to the many unique DoD detailing, transferring, or promoting recruitment process. missions and employment employees. In so doing, the Secretary Definitions requirements. The proposed regulations must comply with the provisions of 5 require DoD to publish annually a list of U.S.C. 2302(b)(11), regarding veterans’ The proposed regulations adopt, for appointing authorities created under preference requirements and 5 U.S.C. staffing and employment purposes, the this authority which remain in effect. chapter 71. definitions for the terms ‘‘promotion’’ DoD will prescribe appropriate and ‘‘reassignment’’ defined in implementing issuances to administer a Staffing and Employment—5 CFR 9901 regulations published in the Federal new authority. Subpart E Register on September 26, 2008 Direct Hire Authority. The proposed This subpart provides DoD with (Volume 73, Number 188) [Rules and regulations authorize DoD to exercise authority, pursuant to 5 U.S.C. 9902(i), Regulations] [pages 56391—56392], to direct hire authority, subject to existing to modify and replace certain provisions fit the NSPS pay banding environment. legal and regulatory standards without of title 5 pertaining to methods for In addition, the regulations adopt the approval by OPM. The removal of this recruitment for, and appointments to, term ‘‘reduction in band’’ as defined in additional time consuming step enables NSPS positions and the methods for the the above referenced regulations. This DoD to streamline this hiring process assignment, reassignment, detail, term replaces ‘‘change to lower grade’’ while retaining the same legal and transfer, and promotion of employees which does not reflect the current NSPS regulatory standards that exist under the into and within NSPS. This subpart has classification architecture. Under pay General Schedule. been revised to (1) Reflect changes in banding, the GS grade structure is Non-permanent Appointing the NSPS as a result of the amendments collapsed into fewer, broader salary Authorities. DoD may continue to use to 5 U.S.C. 9902 by the National Defense ranges. Employees progress through existing temporary, term, and time- Authorization Act for Fiscal Year 2008 those ranges based primarily on limited appointing authorities; however, (Pub. L. 110–181) as further amended by performance and job duties. Under the proposed regulations provide for the Duncan Hunter National Defense NSPS, employees can also receive modified duration of such appointments Authorization Act for Fiscal Year 2009; increased pay as a result of a as well as modified advertising (2) provide specificity to the regulation reassignment within or to a comparable requirements, examining procedures, based on existing implementation; (3) pay band, reduction to a lower pay and the appropriate uses of time-limited reflect changes in subparts A through D band, or promotion to a higher pay employees. Most significantly, non- of the regulation as published on band, as provided in subpart C of the permanent appointments under NSPS September 26, 2008, and (4) make regulations published on September 26, may be extended for longer time periods technical changes and improvements. 2008. providing flexibility and tools to

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respond to a larger variety of DoD processes by extending examining procedures; (3) establishment of specific missions requirements and authority to DoD, to be exercised in rules on initial and supervisory environments. The use of non- accordance with chapters 31 and 33 of probationary periods, crediting service permanent employees in DoD assures title 5, U.S. Code. To exercise this and termination processes; (4) continuity of operations in response to authority, DoD will develop and establishment of specific rules temporary surges in workload, extended coordinate examining procedures which describing the competitive examining absences due to military or civilian will remain subject to OPM oversight. process; (5) establishment of specific deployment, Base Realignment and Examining procedures will adhere to rules for internal placement (including Closure (BRAC) actions, and the the core values of merit system the NSPS Merit Promotion Program); mission-driven activities at Defense principles in 5 U.S.C. 2301 and and, (6) establishment of a career installations worldwide. The continuing veterans’ preference requirements set conditional appointment and dynamic employment and national forth in 5 U.S.C. 3309 through 3320, as redefinition of career appointments security environment within DoD applicable, and will be available in under NSPS to reflect coverage of NSPS requires that DoD meet mission writing for applicants to review. employees under Governmentwide requirements using DoD civilian Altenative Promotion Procedures workforce shaping rules as a result of employees when an active duty service Public Law 110–181. member or contractor is not the best fit The proposed regulations establish Modifications to this subpart reflect by providing more agile non-permanent and provide authority to use several changes in law and regulation while hiring authority. These proposed alternative forms of competition for continuing to reflect the Department’s regulations further streamline hiring merit promotion purposes. These commitment to provide constructive practices and enhance flexibility by alternative promotion procedures and effective ways to attract, recruit, establishing criteria under which term continue to require an analysis of the and retain employees; enhance and temporary employees who were job to be filled to identify knowledges, management’s flexibilities to respond hired via the competitive examining skills, abilities, and/or competencies process may be converted without required. The alternative promotion more competitively to changing labor further competition to a career or career procedures also require notification to markets; facilitate movement into and conditional appointment in the potential candidates; an evaluation to within NSPS; and provide the flexibility competitive service. determine highly qualified candidates; the Department needs to streamline the Recruitment and Competitive and consideration of registrants in the hiring process and adapt quickly to Examining. In order to increase the DoD Priority Placement Program or critical and changing mission needs and efficiency of the recruiting and hiring Reemployment Priority List. However, priorities while preserving merit system process without compromising merit these promotion procedures do not principles and veterans’ preference in principles, the proposed regulations require advertisement via the standard every aspect of the system’s design. DoD allow DoD to target its recruiting vacancy announcement procedures. managers will have greater flexibility in strategy. DoD will provide public notice These alternative forms of competition acquiring and advancing a workforce for all vacancies in the competitive include the use of assessment boards, tailored to the Department’s needs. The service and accept applications from all alternate certification procedures, and flexibilities provide DoD managers with sources; however, if there are sufficient selection for promotion from among a greater range of options to adapt their qualified candidates in the local qualified employees with exceptional recruitment and hiring strategies to meet commuting area and other targeted (i.e., role model) performance ratings. changing mission and organizational sources, consideration may be limited to The alternative promotion procedures needs including consideration of the those applicants. If there are insufficient help to streamline internal recruitment nature and duration of work. Finally, qualified candidates in the local processes thereby reducing the time the proposed regulations also address commuting area, DoD may consider period a position remains vacant. the need to compete for the best talent applicants from outside that area. Additional key changes to this available and reduce the period of time Permitting limited consideration under subpart include (1) Adding detailed a position remains vacant by providing competitive examining to qualified rules regarding non-permanent the Department with the ability to applicants in a commuting area instead appointing authorities for competitive streamline and accelerate the of considering potentially hundreds or and excepted service positions recruitment process. thousands of applications from across (including periods of time for which The following table lists, by specific the country, facilitates mission appointments may be made or extended regulatory section, a brief description of accomplishment by streamlining the and other conditions); (2) establishment each significant change to subpart E of hiring process and significantly of time limits on initial and supervisory section 9901 of the rule published in the reducing the amount of time a position probationary periods to align with time Federal Register dated November 1, remains vacant. The proposed periods governing application of 2005 (Volume 70, Number 210) [Pages regulations further streamlines hiring Governmentwide adverse action 66201–66203].

Description of proposed change

§ 9901.502 ...... Scope of authority. This section specifies the provisions of Federal statute waived under the staffing and employment rules for NSPS. This section has been modified to reflect coverage of 5 U.S.C. 3321(a)(2) with respect to this subpart and to delete reference to waiver of 5 U.S.C. 5112(a) pertaining to the general authority of the Office of Personnel Management concerning position classification and the development of qualification requirements for a po- sition. This latter provision has already been waived via waiver of 5 U.S.C. chapter 51 under § 9901.203 and provisions for identification and establishment of qualification requirements are outlined in § 9901.212(d).

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Description of proposed change

§ 9901.504 ...... Definitions. This section provides definitions of terms specific to subpart E. This revision adds definitions for the terms detail, initial probationary period, local commuting area, and super- visory probationary period. The definition for a career employee is modified and a definition for a career conditional employee is added. Also added is the term competencies with a cross reference to § 9901.103 where the term is defined. The revised regulation slightly modifies the definition of temporary employee to clarify application to both the competitive and excepted service and to add a cross reference. Additionally, the definition of term em- ployee is revised to pertain to an employee in the competitive service and the definition of time-limited employee is also revised to pertain to an employee in the excepted service. § 9901.511(c) ...... Paragraph (c), Severe shortage/critical need hiring authority of this section of the rule pub- lished in the Federal Register dated November 1, 2005 (Volume 70, Number 210) [Pages 66201–66203] is modified. Specifically, paragraph (c)(1) is modified to provide that the Sec- retary must make the determination that a severe shortage/critical hiring need exists and may make this determination on his/her own or in response to a written request from the Head of a DoD Component. Adds a new paragraph (c)(3) to this section authorizing the Secretary to extend a direct hire authority which is due to expire when he/she determines that there is or will continue to be severe shortage/critical hiring need. Renumbers paragraphs (c)(3) and (c)(4) as (c)(4) and (c)(5), respectively. § 9901.511(d)(1) ...... Non-permanent appointing authorities. This paragraph retains the Secretary’s authority to pre- scribe a duration of appointment for temporary, term, and time-limited appointments that is different than that prescribed in Governmentwide rules. However, this paragraph of the rule published in the Federal Register dated November 1, 2005 (Volume 70, Number 210) [Pages 66201–66203] is modified to specify the procedures for appointing employees under temporary, term, and time-limited appointments in the competitive and excepted service. § 9901.511(d)(1)(i) ...... Temporary appointments. A new paragraph is added describing the purpose of temporary ap- pointments, establishing specific time limits for temporary appointments, and providing for reassigning employees on temporary appointments to another temporary position provided the total combined service does not exceed the maximum 3-year limitation. New paragraphs (d)(1)(i)(A) and (d)(1)(i)(B) are added to this section to clarify that temporary appointments may be made to both competitive and excepted service positions using appli- cable appointment procedures. § 9901.511(d)(1)(ii) ...... Term appointments in the competitive service. A new paragraph (d)(1)(ii)(A) is added to speci- fy procedures for the use of term appointments. These procedures describe the purpose of term appointments, establish time limits for term appointments, and provide for the ability to promote, reassign, or reduce in band employees on term appointments. These procedures preclude the use of employees on term appointments in positions that should be filled on a permanent basis except when necessary to accomplish permanent work in circumstances where the position cannot be filled permanently. A new paragraph (d)(1)(ii)(B) is added to specify that these appointments may be made com- petitively or noncompetitively using applicable procedures. § 9901.511(d)(1)(iii) ...... Time-limited appointments in the excepted service. A new paragraph is added to authorize non-permanent appointments in the excepted service for more than 1 year, but does not place a limit on the duration of the appointment, consistent with these types of appointments under OPM regulations. The new paragraph specifies that these appointments may be made using procedures at 5 CFR part 302 and provides for reassigning these employees to other time-limited positions in the excepted service as long as the employee meets the qual- ification requirements for the position. § 9901.511(d)(2)(iv) ...... Conversion to career conditional or career appointment. Adds a new paragraph to specify a non-permanent employee may be noncompetitively converted to a career conditional or ca- reer appointment provided that the position he or she is converted to is in the same pay schedule and band for which hired on the non-permanent appointment. § 9901.511(e) ...... Tenure group. Adds new paragraph specifying that assignment of tenure group codes for re- duction in force purposes is based on tenure group definitions in 5 CFR 351.501(b) for com- petitive service and 5 CFR 351.502(b) for excepted service. § 9901.512 ...... Probationary periods. Revises language formerly found in § 9901.512 of the rule published in the Federal Register dated November 1, 2005 (Volume 70, Number 210) [Pages 66201– 66203] to prescribe conditions of probationary periods to include types of probationary peri- ods, creditable service, failure to complete a probationary period, conditions for termination of probationers, appeal rights, and relationship of probationary periods to other actions. § 9901.512(a)(1)–(a)(3) ...... Initial probationary period. Revises paragraph (a) of this section in the rule published in the Federal Register dated November 1, 2005 (Volume 70, Number 210) [Pages 66201–66203] to state employment situations that require an initial probationary period and identifies appli- cable time limits. § 9901.512(a)(4) ...... Crediting service. Adds new paragraph to describe how time served under an appointment is credited toward completion of the initial probationary period. § 9901.512(a)(5) ...... Termination of probationers for unsatisfactory performance and/or conduct. Adds new para- graph to require termination of employees during an initial probationary period for perform- ance and/or conduct to follow Governmentwide regulations at 5 CFR 315.804. § 9901.512(a)(6) ...... Termination of probationers for conditions arising before appointment. Adds a new paragraph to require termination of employees during an initial probationary period for reasons based in whole or in part on conditions arising before the employee’s appointment to follow Gov- ernmentwide regulations at 5 CFR 315.805.

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Description of proposed change

§ 9901.512(a)(7) ...... Appeals. Adds a new paragraph to afford competitive service employees who are terminated during the initial probationary period limited appeal rights to the Merit Systems Protection Board in accordance with 5 CFR 315.806. § 9901.512(b) and (b)(1) ...... Supervisory probationary period. Revises paragraph (b) of this section of the rule published in the Federal Register dated November 1, 2005 (Volume 70, Number 210) [Pages 66201– 66203] to establish a supervisory probationary period and limits such periods to 1 year. Adds paragraph (b)(1) to this section describing how service is credited toward completion of the supervisory probationary period. § 9901.512(b)(2) ...... Failure to complete the supervisory probationary period. Adds new paragraph to include and expand language at § 9901.512(b) to explain placement options for employees who fail the supervisory probationary period. Adds paragraph (b)(iii) requiring that an employee be notified in writing when reassigned for failure to complete the supervisory probationary period. § 9901.512(b)(2)(iv) ...... Appeals. Adds new paragraph (A) to state that an employee who is placed in a non- supervisory position for failure to successfully complete a supervisory probationary period has no appeal right. Adds new paragraph (B) to permit employee alleging partisan political affiliation or marital sta- tus as the reason for failure of the supervisory probationary period to appeal to the Merit Systems Protection Board under 5 CFR 315.908(b). § 9901.512(b)(2)(v) ...... Relationship to other actions. Adds two new paragraphs. Paragraph (A) requires that when an initial probationary period and a supervisory probationary period are served concurrently, the former takes precedence. Paragraph (B) requires application of 5 CFR 752 when an employee is demoted to a lower pay band than the one he/she left to accept the supervisory position if demoted for other than supervisory performance. § 9901.513 ...... Removes material formerly found in this section addressing Qualification standards. Authority for establishing NSPS-unique qualification standards or modifying OPM qualification stand- ards for NSPS positions is found at §§ 9901.211 and 9901.212. § 9901.514 ...... Non-citizen hiring. Revises paragraph to specify that non-citizens may be hired to permanent, temporary, or time-limited appointments in the excepted service when an absence of quali- fied U.S. citizens is demonstrated. New language also prevents movement to other positions unless a qualified U.S. citizen is unavailable. § 9901.515(a)(1) ...... Competitive examining procedures. Revises paragraph (a) and (a)(1) to state that competitive examining procedures may be used to make career, career conditional, term, and temporary appointments in the competitive service. Includes language authorizing the use of numerical rating and ranking or category ranking and selection procedures, but specifies that the deci- sion on which method to use must be made prior to issuing a vacancy announcement. § 9901.515(a)(2) ...... New language provides that the Secretary will issue uniform policies, procedures, and guid- ance for competitive examining consistent with Governmentwide procedures prescribed in 5 CFR part 332 and provides that the authority to conduct competitive examining for NSPS positions may be delegated in writing. § 9901.515(b) ...... Public notice. Replaces material in paragraph (b) with information previously found in § 9901.515(a)(1), (2), (3), and (4). This new language specifies area of consideration and public announcement for positions filled using competitive examining procedures. § 9901.515(c) ...... Numerical rating and ranking procedures. Revises paragraph to specify procedures to be used when filling positions using numerical rating and ranking approach and to clarify that pref- erence eligible applicants may not be passed over to select a non-preference eligible, un- less procedures for passing over a preference eligible are followed. § 9901.515(d) ...... Alternative rating and selection procedures (category rating). Replaces material at paragraph (c) to specify procedures to be used when filling positions using the category rating and se- lection method of competitive examining. § 9901.515(e) ...... Passing over preference eligibles. Adds new paragraph confirming OPM retains authority to grant or deny a request to pass over a preference eligible with a compensable service-con- nected disability of 30% or more and to make medical qualifications determinations per- taining to preference eligibles. § 9901.516 ...... Internal placement. This section is revised to codify current application of NSPS regulations with regard to internal placement. § 9901.516(a) ...... Determining levels of work and movement within and across career groups. Adds paragraph to state that the definitions found in § 9901.103 for the terms promotion, reassignment, and re- duction in band must be applied when determining whether an action does or does not re- quire competition and in applying pay administration procedures. § 9901.516(b) ...... Eligibility for promotion to full performance band. Adds paragraph to require rating of record at Level 3 or above (or determination by authorized management official that performance meets this level) before an employee in a career ladder position may be promoted to the full performance band. § 9901.516(c) ...... Time after competitive appointment restriction. Adds paragraph that indicates that the restric- tions on movement of an employee immediately after initial appointment are not applicable to NSPS positions. § 9901.516(d) ...... Details. Adds paragraph to prescribe that details may be made without a time limit and that an official personnel action is only required in certain situations.

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Description of proposed change

§ 9901.516(e) ...... NSPS Merit Promotion Program. Adds paragraphs (e)(1) through (e)(5) that, in conjunction with requirements at 5 CFR part 335, establish the NSPS Merit Promotion Program. Pre- scribes that all actions must be taken in accordance with merit system principles. Requires employees who are absent for legitimate reasons to receive consideration for vacancies. Requires applicants to meet minimum qualification standards. Requires a job analysis to identify the basic duties and responsibilities of the position to be filled and the knowledge, skills, and abilities and/or competencies necessary to successfully perform the work of the position. Prescribes management’s right to select or not select from among any group of highly qualified candidates and from appropriate sources of candidates. Requires mainte- nance of records for a specified period documenting how each competitive service position is filled through internal competitive procedures to allow reconstruction of the placement ac- tion if necessary. § 9901.516(e)(6) ...... Competitive actions. Adds paragraph to specify which promotion actions require the applica- tion of competitive procedures (e.g., promotion to a higher pay band, temporary promotion or temporary detail to a higher pay band for more than 180 days, et al.). § 9901.516(e)(7) ...... Exceptions to competition. Adds paragraph to specify which promotion actions do not require competitive procedures (e.g., promotion to a full performance band when competition pre- viously occurred, promotion when position is reclassified as a result of the issuance of a new classification standard, promotion when position is reclassified because of additional duties and responsibilities, et al.). § 9901.516(e)(8) ...... Alternative promotion procedures. Adds new paragraph describing alternative forms of com- petition that do not require a vacancy announcement, to include assessment boards, alter- native certification, and exceptional performance promotion. Employees must be made aware that these flexibilities may be used; notice may be given via newsletters, bulletin boards, Web sites, or other common methods of employee communication. § 9901.516(e)(9) ...... Grievances. Adds new paragraph providing for employee right to file a complaint relating to a promotion action via appropriate grievance procedures. Although there is no right of appeal to OPM, OPM may conduct investigations of substantial violations of OPM requirements.

Next Steps retain a high-performing workforce effects on existing Federal law or focused on effective and efficient regulation; provides clear legal The National Defense Authorization mission accomplishment. A standards; has no retroactive effects; Act for Fiscal Year 2008 requires that performance-based pay system that this rule be considered a major rule for specifies procedures for administrative rewards excellent performance will the purpose of section 801 of title 5, and court actions; defines key terms; result in a more qualified and proficient United States Code. As such, before it and is drafted clearly. workforce and will generate a greater can take effect, the Department will return on investment in terms of E.O. 13132, Federalism submit to each House of the Congress productivity and effectiveness. Taken as and to the Comptroller General a report DoD and OPM have determined these a whole, the changes included in these containing the rule, a general statement proposed regulations would not have proposed regulations will improve upon relating to the rule, and the proposed the original NSPS regulations and result Federalism implications because they effective date of the rule. The rule may in a contemporary, merit-based HR would apply only to Federal agencies not be effective until the date occurring system that focuses on performance, and employees. The proposed 60 days after the later of (1) generates respect and trust, and regulations would not have financial or Congressional receipt of the report, or supports the primary mission of DoD. other effects on States, the relationship (2) the date the rule is published in the This rule has been reviewed by the between the Federal Government and Federal Register. Congress has the Office of Management and Budget in the States, or the distribution of power opportunity to delay implementation of accordance with E.O. 12866. and responsibilities among the various the rule based on the procedures set levels of government. forth in 5 U.S.C. 801–808. Regulatory Flexibility Act Unfunded Mandates E.O. 12866, Regulatory Review DoD and OPM have determined that these regulations would not have a DoD and OPM have determined that These proposed regulations would not significant economic impact on a result in the expenditure by State, local, this action is a significant regulatory substantial number of small entities action within the meaning of Executive or tribal governments of more than $100 because they would apply only to million annually. Thus, no written Order 12866 because there is significant Federal agencies and employees. public interest in the National Security assessment of unfunded mandates is Personnel System. DoD and OPM have Paperwork Reduction Act of 1995 (44 required. U.S.C. Chapter 35) analyzed the expected costs and benefits List of Subjects in 5 CFR Part 9901 of the revised HR system, and that This proposed regulatory action will analysis was presented in the not impose any additional reporting or Administrative practice and supplementary information published recordkeeping requirements under the procedure, Government employees, with the rule on September 26, 2008 Paperwork Reduction Act. Labor management relations, Labor (Volume 73, Number 188) on page unions, Reporting and recordkeeping E.O. 12988, Civil Justice Reform 56389. requirements, Wages. The primary benefit to the public of This proposed regulation is consistent NSPS resides in the HR flexibilities that with the requirements of E.O. 12988. will enable DoD to attract, build, and The regulation clearly specifies the

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Office of Personnel Management. otherwise specified in this subpart. In Reassignment has the meaning given Michael W. Hager, accordance with § 9901.101, the that term in § 9901.103. For the purpose Acting Director, Office of Personnel Secretary may prescribe implementing of part 351 of this title, an official Management. issuances to carry out the provisions of position does not include a position to Department of Defense. this subpart. which an employee is reassigned on a temporary or time-limited basis. Gordon England, § 9901.503 Coverage. Deputy Secretary of Defense. Reduction in band has the meaning (a) This subpart applies to eligible given that term in § 9901.103. Accordingly, under the authority of DoD employees and positions in the Supervisory probationary period section 9902 of title 5, United States categories listed in paragraph (b) of this means the first year of service Code, the Department of Defense and section, subject to a determination by immediately following an employee’s the Office of Personnel Management are the Secretary under § 9901.102(b). initial appointment or placement in a proposing to add subpart E to part 9901 (b) The following employees and supervisory position, as provided in 5 of title 5, Code of Federal Regulations to positions in DoD organizational and U.S.C. 3321(a)(2), during which an read as follows: functional units are eligible for coverage authorized management official under this subpart: determines whether the employee PART 9901—DEPARTMENT OF (1) Employees and positions who fulfills the requirements of the position DEFENSE NATIONAL SECURITY would otherwise be covered by 5 U.S.C. to which assigned. PERSONNEL SYSTEM (NSPS) chapter 33 (excluding members of the Temporary employee means an Senior Executive Service); and Subpart E—Staffing and Employment (2) Such others designated by the individual in the competitive or Secretary as authorized under 5 U.S.C. excepted service who is employed for a Sec. 9902. limited period of time not to exceed 1 General year. The individual’s appointment may § 9901.504 Definitions. be extended, up to a maximum 9901.501 Purpose. 9901.502 Scope of authority. In this subpart— established under § 9901.511(d), to 9901.503 Coverage. Career conditional employee means perform the work of a position that does 9901.504 Definitions. an individual appointed without time not require an additional permanent limit to a competitive service position in employee. External Recruitment and Internal NSPS who does not meet the definition Term employee means an individual Placement of a career employee. in the competitive service who is 9901.511 Appointing authorities. Career employee means an individual employed for a period of more than 1 9901.512 Probationary periods. appointed without time limit to a year up to a maximum established 9901.513 [Reserved] competitive service position in NSPS 9901.514 Non-citizen hiring. under § 9901.511(d). 9901.515 Competitive examining who has served 3 years of substantially Time-limited employee means an procedures. continuous service as described in 5 individual in the excepted service who 9901.516 Internal placement. CFR 315.201(b). is employed for a period of more than Competencies has the meaning given Authority: 5 U.S.C. 9902. 1 year up to a maximum established that term in § 9901.103. under § 9901.511(d). Detail means the temporary Subpart E—Staffing and Employment assignment, other than temporary External Recruitment and Internal General reassignment or temporary promotion, Placement of an employee to another position with § 9901.511 Appointing authorities. § 9901.501 Purpose. the expectation that the employee will (a) This subpart sets forth policies and return to the permanent position of (a) Competitive and excepted procedures for the recruitment for, and record upon expiration of the appointing authorities. The Secretary appointment to, positions; and assignment. For pay and benefit may continue to use excepted and assignment, reassignment, detail, purposes, an employee continues to competitive appointing authorities transfer, or promotion of employees, encumber the position from which the under chapter 33 of title 5, U.S. Code, consistent with 5 U.S.C. 9902(a) and (i). employee was detailed. Governmentwide regulations, or (b) The Secretary will comply with Initial probationary period means the Executive orders, as well as other merit principles set forth in 5 U.S.C. initial period of service immediately statutes, and those individuals 2301 and with 5 U.S.C. 2302 (dealing following an employee’s appointment to appointed under these authorities will with prohibited personnel practices). the competitive or excepted service, as be given career, career conditional, term (c) The Secretary will adhere to specified in § 9901.512, during which or temporary appointments in the veterans’ preference principles set forth an authorized management official competitive service or permanent, time- in 5 U.S.C. 2302(b)(11), consistent with determines whether the employee limited, or temporary appointments in 5 U.S.C. 9902(i). fulfills the requirements of the position the excepted service, as appropriate. to which assigned. The competitive appointing authorities § 9901.502 Scope of authority. Local commuting area is the under this paragraph are subject to the When a specified category of geographic area that usually constitutes procedures in part 330 of this title, employees, applicants, and positions is one area for employment purposes. It except for 5 CFR 330.208 and 330.501. covered by the system established under includes any population center (or two (b) Additional appointing authorities. this subpart, the provisions of 5 U.S.C. or more neighboring ones) and the (1) The Secretary and the Director may 3301, 3302, 3304, 3317(a), 3318 and surrounding localities in which people enter into written agreements providing 3319 (except with respect to veterans’ live and can reasonably be expected to for new excepted and competitive preference), 3321 (except 3321(a)(2)), travel back and forth daily to their usual appointing authorities for positions 3324, 3325, 3327, 3330, and 3341 are place of employment. covered by the National Security modified or waived and replaced with Promotion has the meaning given that Personnel System, including respect to that category except as term in § 9901.103. noncompetitive appointments, and

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excepted appointments that may lead to (i) Temporary appointments. 6 years. The circumstances under which a subsequent noncompetitive Temporary appointments are for a a term appointment is appropriate appointment to the competitive service. specified period not to exceed 1 year include, but are not limited to, project (2) DoD and OPM will jointly publish and may be made in either the work, extraordinary workload, a notice, and request comments, in the competitive or the excepted service. A uncertainty of future funding, scheduled Federal Register when establishing a temporary appointment may be contracting out or abolishment of a new competitive appointing authority or extended for 2 additional years, in function, the need to maintain a new excepted appointing authority increments not to exceed 1 year, to a permanent positions for placement of that may lead to a subsequent maximum of 3 years. Temporary potential surplus employees, or when noncompetitive appointment to a appointments may be made and the incumbent will be out of the competitive service position. extended to positions involving position for a significant period of time, (3) The Secretary will prescribe intermittent or seasonal work without but is expected to return. A term appropriate implementing issuances to regard to the maximum time limits. The employee may be promoted, reassigned administer a new appointing authority circumstances under which a temporary or reduced in band to another term established under paragraph (b) of this appointment is appropriate include, but position provided the total combined section. are not limited to: Filling a position to service under the term appointment (4) At least annually, a consolidated address a temporary workload peak or does not exceed the maximum six-year list of all appointing authorities to complete a project; meeting a staffing time limitation and the employee meets established under this section and need that is anticipated not to exceed a the qualification requirements of the currently in effect will be published in one-year timeframe for reasons such as position. the Federal Register. abolishment, reorganization, or (B) Term appointments may be made (c) Severe shortage/critical need contracting out of a function; using competitive procedures under hiring authority. (1) The Secretary will anticipated reduction in funding; filling § 9901.515, using the severe shortage/ determine when a severe shortage of positions temporarily because the critical need hiring authorities candidates or a critical hiring need positions are expected to be needed for described in § 9901.511(c), or by using exists, as defined in 5 CFR part 337, placement of permanent employees who direct hire procedures under 5 CFR part subpart B, for particular occupations, would otherwise be displaced; or when 337, as appropriate. Term appointments pay bands, career groups, and/or the incumbent will be out of the also may be made noncompetitively geographic locations. The Secretary may position for a temporary period of time, consistent with 5 CFR part 316 or by decide that such a shortage or critical but is expected to return. A temporary any noncompetitive appointing need exists, or may make this decision employee may be reassigned to another authorities granted to or by the in response to a written request from the temporary position provided the total Secretary. (iii) Time-limited appointments in the Head of a DoD Component. These combined service under the temporary excepted service. Time-limited authorities may be used without regard appointment does not exceed the appointments are in the excepted to competitive examination maximum three-year time limitation, the employee meets the qualification service and will be for a period of more requirements described in § 9901.515. requirements of the position, and than 1 year. Time-limited appointments Public notice will be provided in provided the conditions specific to the to positions in the excepted service are accordance with 5 U.S.C. 3304(a)(3)(A). employee’s appointing authority are made under the procedures prescribed (2) For each specific authority, the met. Temporary appointments are made in 5 CFR part 302. A time-limited Secretary will document the basis for as follows: employee may be reassigned to another the severe shortage or critical hiring (A) Competitive service. Temporary time-limited position in the excepted need, consistent with 5 CFR 337.204(b) appointments to positions in the service provided the employee meets or 337.205(b), as applicable. competitive service may be made using the qualification requirements of the (3) The Secretary may extend a direct competitive procedures under position and the conditions specific to hire authority if the Secretary § 9901.515, using the severe shortage/ the appointing authority applicable to determines there is or will continue to critical need hiring authorities the employee. be a severe shortage of candidates or a described in § 9901.511(c), or by using (2) Conversion to career conditional critical hiring need for a particular direct hire procedures under 5 CFR part or career appointment. A non- position(s) as of the date the authority 337, as appropriate. Temporary permanent employee serving in a is due to expire. appointments to positions in the competitive service position may be (4) The Secretary will terminate or competitive service also may be made converted without further competition modify a specific authority to make noncompetitively consistent with 5 CFR to a permanent position (i.e., career or appointments under this section when it part 316, or by any noncompetitive career-conditional) if— is determined that the severe shortage or appointing authorities granted to or by (i) The vacancy announcement met critical need upon which the authority the Secretary. the requirements of § 9901.515(a) and was based no longer exists. (B) Excepted service. Temporary included the possibility of (5) The Secretary will notify OPM of appointments to positions in the noncompetitive conversion to a determinations made under this excepted service are made under the permanent position (i.e., career or paragraph (c). procedures prescribed in 5 CFR part career-conditional) at a later date; (d) Non-permanent appointing 302. (ii) The individual was appointed authorities. (1) The Secretary may (ii) Term appointments in the using the competitive examining authorize appointments with time limits competitive service. (A) Term procedures set forth in § 9901.515(b) in the competitive or excepted service, appointments are in the competitive and (c); as appropriate, when the need for an service and will be for a period of more (iii) The employee completed at least employee’s services is not permanent. than 1 year, but not to exceed 5 years. 2 years of continuous service at Level 3 These appointments will be either The term appointment may be extended (Valued Performer) or better; and temporary, term, or time-limited as by an authorized management official (iv) The employee is converted to a defined below: for 1 additional year to a maximum of career conditional or career position in

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the same pay schedule and band for or conduct does not count toward i.e., the supervisory probationary period which hired. completion of probation required under does not start over. (e) Tenure group. For reduction in a subsequent NSPS appointment. (1) Crediting service toward force purposes, NSPS employees (iii) The probationary period for part- completion of the supervisory appointed to the competitive service are time employees is computed on the probationary period. (i) An employee placed in one of the tenure groups basis of calendar time, in the same who is reassigned, transferred, defined in 5 CFR 351.501(b) or, if manner as for full-time employees. For promoted or reduced in band from one appointed to the excepted service, one intermittent employees, i.e., those who supervisory position to another while of the tenure groups defined in 5 CFR do not have regularly scheduled tours of serving a supervisory probationary 351.502(b). duty, each day or part of a day in pay period is subject to the probationary status counts as one day of credit period prescribed for the new position. § 9901.512 Probationary periods. toward the 260 days (actual ‘‘work Service in the former position is (a) Initial probationary period. (1) An days’’ in a year, excluding weekends) credited toward completion of the employee who is given a career, career needed to complete the 1-year probationary period in the new position. conditional, or term appointment in the probationary period. The probationary (ii) Temporary service in a competitive service or a permanent or period may not be completed in less supervisory position prior to the time-limited appointment in the than 1 year calendar time. supervisory probation when there is no excepted service under this part is (iv) Absence (whether on or off the break in service is creditable toward required to complete a probationary rolls) due to compensable injury or completion of a supervisory period when the employee: military duty is creditable in full upon probationary period. This includes (i) Is appointed from a competitive list restoration under part 353 of this title to service on temporary promotion or of eligibles established under Federal service. An employee serving a reassignment to another supervisory § 9901.515, using the severe shortage/ probationary period who leaves Federal position while serving a supervisory critical need hiring authorities service to become a volunteer with the probation. Service in a nonsupervisory described in § 9901.511(c), or by using Peace Corps or the Corporation for position is not creditable. National and Community Services direct hire procedures under 5 CFR part (iii) Time spent in a non-pay status in serves the remainder of the probationary 337; or excess of one workday during the (ii) Is appointed to the competitive period upon reinstatement provided the supervisory probationary period will service either by special authority or by employee is reinstated within 90 days of extend the probationary period by an conversion under subparts F or G of 5 termination of service as a volunteer or equal amount of time. CFR part 315, unless specifically training for such service. (iv) Service during a supervisory exempt from probation by the authority (5) Termination of probationers for probationary period from which an itself; or unsatisfactory performance and/or (iii) Is reinstated, unless, during any conduct. When an authorized employee was separated or demoted for period of service which affords a current management official proposes to performance and/or conduct does not basis for reinstatement, the employee terminate an employee during his or her count toward completion of a completed an initial probationary initial probationary period because his supervisory probationary period period; or or her performance and/or conduct required under a subsequent (iv) Is appointed to a position in the during this period fails to demonstrate appointment. excepted service under the procedures his or her fitness or qualifications for (v) Absence (whether on or off the prescribed in part 302 of this title. continued employment, the official will rolls) due to compensable injury or (2) An employee serving an initial follow procedures at 5 CFR 315.804. military duty is creditable in full toward probationary period at the time his or (6) Termination of probationers for completion of a supervisory her permanent position is converted conditions arising before appointment. probationary period upon restoration to into NSPS, or at the time he or she is When an authorized management Federal service under part 353 of this assigned from a non-NSPS position to official proposes to terminate an title. an NSPS position, or at the time he or employee during his or her initial (2) Failure to complete the she is reappointed through the DoD probationary or trial period for reasons supervisory probationary period. (i) Priority Placement Program or based in whole or in part on conditions Except as described in paragraph Reemployment Priority List established arising before the employee’s (b)(2)(ii) of this section, an employee under part 330 of this title after being appointment, the official will follow who, for reasons of supervisory involuntarily separated through no fault procedures at 5 CFR 315.805. performance, does not satisfactorily of the employee, will continue the (7) Appeals. Under NSPS, a complete the probationary period is probationary period, i.e., the competitive service employee who is entitled to be assigned to a position at probationary period does not start over. terminated during the initial a grade or pay band and pay no lower (3) The probationary period required probationary period will have limited than that held before assignment to the by § 9901.512(a) is as follows: appeal rights to the Merit Systems supervisory position. (i) Competitive service—1 year. Protection Board (MSPB) under 5 CFR (ii) A nonsupervisory employee who (ii) Excepted service—2 years, except 315.806. is reduced in band into a position which for preference eligibles who have appeal (b) Supervisory probationary period. requires a supervisory probationary rights after 1 year under 5 CFR part 752. Under NSPS, an employee is required to period and who, for reasons of (4) Crediting Service. (i) Time spent in serve a probationary period upon initial supervisory performance, does not a non-pay status in excess of one appointment to a supervisory position. satisfactorily complete the probationary workday during the initial probationary The supervisory probationary period is period is entitled to be reassigned to a period will extend the probationary 1 year. An employee serving a grade or pay band no lower than that period by an equal amount of time. supervisory probationary period at the held when serving the supervisory (ii) Service during an initial time his or her permanent position is probation. The employee is eligible for probationary period from which an converted into NSPS will continue the repromotion in accordance with NSPS employee is separated for performance probationary period in the new position; promotion rules under § 9901.516.

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(iii) The agency must notify the and guidance will be consistent with § 9901.516 Internal placement. employee in writing that he or she is part 332, subparts A and C, of this title. (a) Determining levels of work and being assigned for failure to complete (b) Public notice. (1) Components will movement within and across career the supervisory probationary period. accept applications from all U.S. groups. The determination of when an (iv) Appeals. (A) An employee, who, citizens, to include current Federal action is a promotion, reassignment, or in accordance with the provisions of employees, and at a minimum, will reduction in band for competitive or this section, is assigned to a consider applicants from the local noncompetitive movement and related nonsupervisory position, has no appeal commuting area. Components may pay administration purposes, either right, except as provided in paragraph concurrently consider applicants from between NSPS positions or to an NSPS position from a non-NSPS position, (b)(2)(iv)(B) of this section. other targeted recruitment sources, as must be made by applying the (B) An employee who alleges that a specified in the vacancy announcement. definitions of those terms at § 9901.103. Component action under this section If there are insufficient qualified was based on partisan political (b) Eligibility for promotion to full candidates in both the local commuting performance band. An employee with a affiliation or marital status may appeal area and targeted recruitment sources, to the MSPB under 5 CFR 315.908(b). rating of record of Level 1 or Level 2 is Components may consider applicants not eligible for promotion to the full (v) Relationship to other actions. (A) from outside that area. If an employee is required to performance band of the position until concurrently serve both a supervisory (2) When limiting consideration, the such time as the employee attains a and an initial probationary period, the vacancy announcement will clearly rating of record of Level 3 or above. An latter takes precedence. state that consideration will be limited employee who does not have an NSPS (B) An action that demotes an if sufficient qualified candidates are rating of record may be promoted to the employee to a pay band lower than the received from the local commuting area full performance band of the position if one the employee left to accept the and other targeted recruitment sources. an authorized management official supervisory position, for reasons other If sufficient candidates are not received conducts a performance assessment and than supervisory performance, is from the local commuting area and determines that the employee is governed by part 752 of this title. other targeted recruitment sources, performing at the equivalent of Level 3 consideration will be expanded to all or above. § 9901.513 [Reserved] applicants; i.e., the area of consideration (c) Time after competitive will not be expanded incrementally. appointment restriction. Restrictions on § 9901.514 Non-citizen hiring. the movement of an employee The Secretary may establish (3) No minimum announcement immediately after the employee’s initial procedures for appointing non-citizens opening period is required. The open appointment to Federal service as to permanent, temporary, or time- period will be based on the type of described in 5 CFR part 330, subpart E, limited positions in the excepted position being filled and the availability are not applicable to NSPS positions. service, provided there is a of qualified candidates in the labor (d) Details. There is no time limit on demonstrated absence of qualified U.S. market. details or any requirement to extend citizens and applicable immigration and (c) Numerical rating and ranking them incrementally. An official security requirements are met. Non- procedures. When filling positions personnel action is not required to citizens may not be promoted, using numerical rating and ranking, the document a detail unless the detail reassigned, or reduced in band, except procedures issued by the Secretary will exceeds one year, crosses Component in situations where a qualified U.S. be followed. All qualified applicants and/or Agency lines or assigns an citizen is once again unavailable. may be referred and selection may be employee from NSPS to another pay made from among any referred system within the Component, e.g., § 9901.515 Competitive examining NSPS to General Schedule, or procedures. applicants except that a preference eligible will not be passed over to select documents developmental rotational (a)(1) Under NSPS, competitive a non-preference eligible, unless assignments or deployment. examining is authorized to appoint procedures under 5 U.S.C. 3318 for (e) NSPS Merit Promotion Program. In applicants to career, career conditional, passing over a preference eligible are accordance with the Secretary’s term, and temporary appointments in followed. authority to prescribe regulations for the the competitive service. In recruiting assignment, reassignment, applicants from outside the civil service (d) Alternative ranking and selection reinstatement, detail, transfer, and for competitive appointments to procedures (category rating). When promotion of individuals or employees competitive service positions in NSPS, filling positions using category rating, into or within NSPS, the procedures Components with examining authority procedures issued by the Secretary will below, in conjunction with the merit may use either numerical rating and be followed in lieu of the procedures in promotion requirements in part 335 of ranking or alternative ranking and part 337, subpart C, except for this title constitute the NSPS Merit selection procedures (i.e., category § 337.304, of this title. Promotion Program. Internal placement rating). Components must decide which (e) Passing over preference eligibles. actions may be made on a permanent or procedures to use prior to issuing a OPM retains the authority to grant or temporary basis using competitive and vacancy announcement and include this deny a pass over request of a preference noncompetitive procedures. information in the vacancy eligible with a compensable service- (1) All actions taken under the NSPS announcement. connected disability of 30 percent or Merit Promotion Program, whether (2) The Secretary will issue uniform more and to make medical involving the identification, policies, procedures, and guidance qualifications determinations pertaining qualification, evaluation, or selection of concerning competitive examining for to preference eligibles. The Secretary candidates, will be made without regard NSPS within the Department and may has the authority to grant or deny a pass to race, color, religion, age, gender, delegate in writing authority for over request of a preference eligible national origin, political affiliation, competitive examining for NSPS with a compensable service-connected disability, sexual orientation, marital or positions. These policies, procedures, disability of less than 30 percent. family status or other prohibited criteria

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and will be based solely on job-related OPM (whichever occurs first) if the time documented potential to a higher pay factors. limit for grievance has lapsed and band; (2) Vacancy announcements will destruction would otherwise be (D) Temporary promotion or detail to identify areas of consideration that are consistent with the Department’s a higher pay band or a position with sufficiently broad to ensure the Priority Placement Program known promotion potential for 180 days availability of high quality candidates, requirements. or less; taking into account the nature and level (6) Competitive actions. (i) Except as (E) Promotion to a higher pay band of the positions covered. Employees provided in paragraph (e)(7) of this previously held on a permanent or term within the area of consideration who are section, competitive procedures apply basis in the competitive service from absent for legitimate reason, e.g., on to promotion of an employee to a higher which an employee was separated or detail, on leave, at training courses, in pay band (i.e., a higher level of work) demoted for other than performance or the military service, or serving in public and to the following actions: conduct reasons; international organizations or on (A) Temporary promotion or detail to (F) Promotion, reassignment, Intergovernmental Personnel Act a higher pay band for more than 180 reduction in band, transfer, or assignments, must receive appropriate days. Prior service during the preceding reinstatement to a position having consideration for promotion if they 12 months under noncompetitive promotion potential no greater than the apply for a vacant position; i.e., they temporary promotions or details to potential of a position an employee cannot be excluded from consideration higher pay-banded positions counts currently holds or previously held on a because they are absent. Employees who toward the 180-day total. A temporary permanent basis in the competitive are unable to apply for vacant positions promotion may be made permanent service (or in another merit system with while they are away may also make without further competition, provided which OPM has an approved other appropriate arrangements for the temporary promotion was originally interchange agreement) and did not lose consideration. made under competitive procedures and because of performance or conduct (3) To be eligible for promotion or the fact that the temporary promotion reasons; placement, candidates must meet the might lead to a permanent promotion (G) Consideration of a candidate not minimum qualification standards was made known to all potential given proper consideration in a prescribed by either OPM or the candidates; competitive promotion action; Department, as appropriate. Prior to the (H) Placement resulting from (B) Reassignment or reduction in band recruitment process, authorized reduction in force procedures under 5 to a position with more promotion management officials will identify CFR part 351; and potential than a position previously through job analysis the job-related (I) The appointment of career SES held on a permanent basis in the criteria that will be used to evaluate and appointees with competitive service competitive service (except as permitted determine the best qualified candidates reinstatement eligibility to any position by reduction in force regulations at 5 for referral. The job analysis will for which they qualify in the CFR part 351); identify the basic duties and competitive service at any salary level, responsibilities of the position being (C) Transfer to a position at a higher consistent with 5 CFR part 317, subpart filled; the knowledge, skills, abilities, pay band or with more promotion G. and/or competencies required to potential than a position previously (ii) When determining whether the perform the duties and responsibilities; held on a permanent basis in the promotion potential of a General and the factors that are important in competitive service; and Schedule position is lower than that of evaluating candidates. The job analysis (D) Reinstatement to a permanent, the promotion potential of the NSPS may cover a single position or group of term, or temporary position at a higher position to which an employee moves, positions, or an occupation or group of pay band or with more promotion the definitions of higher, lower, and occupations, having common potential than a position previously comparable levels of work under characteristics. Candidate evaluation held on a permanent basis in the § 9901.103 will be applied. will give due weight to performance competitive service. (8) Alternative promotion procedures. appraisals and incentive awards. When (ii) When determining whether the The Secretary may authorize the use of evaluating a candidate’s performance promotion potential of a General the following alternative procedures to appraisals, consideration may be given Schedule position is lower than that of fill NSPS positions. Use of these to the differences in performance the promotion potential of the NSPS alternative procedures does not require appraisal systems. Job analysis position to which an employee moves, the posting of vacancy announcements; requirements will conform to the the definitions of higher, lower, and however, employees must be made Uniform Guidelines on Employee comparable levels of work under aware that these processes may be Selection Procedures in 29 CFR part § 9901.103 will be applied. utilized via newsletters, bulletin boards, 1607, and 5 CFR part 300, subpart A. (7) Exceptions to competition. (i) Web sites, or other common methods of (4) Management has the right to select Competitive procedures do not apply to: employee communication. Use of these or not select from among a group of (A) Promotion resulting from the alternative procedures is subject to the highly qualified candidates and to select upgrading of a position to a higher pay requirements of the DoD Priority from appropriate sources of candidates. band level without significant change in Placement Program and the (5) Components will maintain a the duties and responsibilities due to Reemployment Priority List. temporary record of each promotion to the issuance of a new NSPS (i) Assessment boards. (A) Boards a competitive service position filled classification standard or the correction may convene to assess internal through internal competitive procedures of an initial classification error; candidates for current and future to allow reconstruction of the placement (B) Promotion resulting from an advancement opportunities based on action, including documentation on employee’s position being classified at a pre-established criteria. Pre-established how candidates were rated, ranked, and higher pay band level because of criteria may include experience, referred. These records may be additional duties and responsibilities; training, awards, education, destroyed after 2 years or after the (C) Promotion resulting from previous performance evaluation scores (ratings program has been formally evaluated by competitive selection for a position with of record) or other appropriate

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information consistent with merit DEPARTMENT OF AGRICULTURE proposals from $250,000 to $500,000 system principles and the ‘‘Uniformed per year. Second, it increases the Guidelines on Employee Selection Commodity Credit Corporation maximum duration of an activity from Procedures.’’ 3 years to 5 years. Finally, it increases 7 CFR Part 1487 (B) Boards will categorize employees the number of approved projects from three to five that a TASC participant can into specific levels of candidates to RIN 0551–AA71 have underway at any given time. These generate referral lists of ranked Technical Assistance for Specialty changes are consistent with the candidates for occupational groups. Crops Administration’s position regarding the These referral lists are valid for one year TASC program. from the date generated. Selection from AGENCY: Foreign Agricultural Service the referral list should be further and Commodity Credit Corporation, Executive Order 12866 justified based on specific job-related USDA. This proposed rule is issued in factors unique to the actual vacancy. ACTION: Proposed rule. conformance with Executive Order (C) Boards, which should be 12866. It has been determined to be not SUMMARY: This proposed rule would significant for the purposes of Executive comprised of senior level managers amend the regulations used to (subject matter experts for each Order 12866 and was reviewed by the administer the Technical Assistance for Office of Management and Budget particular occupational group), may be Specialty Crops (TASC) program by convened on an ad hoc basis or may be (OMB). A cost-benefit assessment of this increasing the amount of funding per rule was not completed. held annually in conjunction with the proposal to $500,000 in a given year, performance evaluation process. extending the allowable length of an Executive Order 12988 (ii) Alternate certification. A selecting activity to 5 years; and by allowing up This rule has been reviewed in official may make a by-name request for to five approved projects for any one accordance with Executive Order 12988. an individual from any appropriate TASC participant at any given time. This rule would preempt State laws to source of Department or Component DATES: Comments concerning this the extent such laws are inconsistent employees. The employee may be proposed rule must be received by with it. This rule would not be selected if ranked within the highest January 2, 2009 to be assured retroactive. consideration. quality group as determined by rating Executive Order 12372 factors established for the position. ADDRESSES: Comments may be This program is not subject to (iii) Exceptional performance submitted by any of the following methods: Executive Order 12372, which requires promotion. (A) An employee whose • intergovernmental consultation with most recent rating of record is a Level Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the State and local officials. See the notice 5 performance rating may be promoted online instructions for submitting related to 7 CFR part 3015, subpart V, to a vacant position in a higher pay comments. published at 48 FR 29115 (June 24, band when the vacant position has the • E-Mail: [email protected]. 1983). same occupational series (or related • Fax: (202) 720–9361. Regulatory Flexibility Act interdisciplinary/interoccupational • Hand Delivery or Courier: U.S. series) and similar function as the Department of Agriculture, Foreign The Regulatory Flexibility Act does position the employee held at the time Agricultural Service, Program Policy not apply to this rule because FAS is not he or she received the Level 5 rating. Staff, Portals Office Building, Suite 400, required by 5 U.S.C. 553 or any other law to publish a notice of proposed (B) Selecting officials must determine 1250 Maryland Ave., SW., Washington, rulemaking with respect to the subject and document the area of consideration, DC 20024. • matter of this rule. and must consider all employees in the U.S. Postal Delivery: U.S. area of consideration whose current Department of Agriculture, Foreign Environmental Assessment Level 5 rating was based on Agricultural Service, Program Policy Staff, Stop 1023, 1400 Independence FAS has determined that this performance in the same occupational Ave., SW., Washington, DC 20250–1042. proposed rule does not constitute a series and similar function as the Comments may be inspected in Suite major State or Federal action that would vacancy being filled. 400, Portals Building, 1250 Maryland significantly affect the human or natural (9) Grievances. Employees have the Avenue, SW., Washington, DC, between environment consistent with the right to file a complaint relating to a 8 a.m. and 4:30 p.m., Monday through National Environmental Policy Act promotion action. Such complaints will Friday, except holidays. A copy of this (NEPA), 40 CFR part 1502.4, Major be resolved under appropriate grievance proposed rule is available through the Federal actions requiring the procedures. The standards for FAS home page at http:// preparation of Environmental Impact adjudicating complaints are set forth in www.fas.usda.gov/mos/programs/ Statements, and Compliance with NEPA implementing the regulations of the 5 CFR part 300, subpart A. There is no TASC.asp. Council on Environmental Quality, 40 right of appeal to OPM, but OPM may FOR FURTHER INFORMATION CONTACT: CFR parts 1500–1508. Therefore, no conduct investigations of substantial Mark Slupek at (202) 720–4327, fax at environmental assessment or violations of OPM requirements. (202) 720–9361, or by e-mail at: environmental impact statement will be [FR Doc. E8–28672 Filed 12–2–08; 8:45 am] [email protected]. prepared. SUPPLEMENTARY INFORMATION: BILLING CODE 6325–39–P Unfunded Mandates Background Although CCC is publishing this as a This proposed rule changes three proposed rule, Title II of the Unfunded existing TASC limitations. First, it Mandates Reform Act of 1995 (UMRA) increases the funding cap on individual does not apply to this rule. CCC is not

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required by 5 U.S.C. 553 or any other single countries or reasonable regional DEPARTMENT OF TRANSPORTATION law to publish a notice of proposed groupings of countries. Federal Aviation Administration rulemaking for the subject of this rule. (d) Multiple proposals. Applicants Further, this rule contains no unfunded may submit multiple proposals, but no 14 CFR Part 39 mandates as defined in sections 202 and TASC participant may have more than 205 of UMRA. Nor does this rule five approved projects underway at any [Docket No. FAA–2008–1267; Directorate potentially affect small governments or given time. Identifier 2008–CE–069–AD] contain significant Federal intergovernmental mandates. 3. Amend § 1487.6 by revising RIN 2120–AA64 paragraph (b) to read as follows: Paperwork Reduction Act of 1995 Airworthiness Directives; Viking Air Limited Models DHC–6–1, DHC–6–100, In accordance with the Paperwork § 1487.6 What are the criteria for evaluating proposals? DHC–6–200, and DHC–6–300 Airplanes Reduction Act of 1995, FAS has previously received approval from the * * * * * AGENCY: Federal Aviation Office of Management and Budget (b) Evaluation process. FAS will Administration (FAA), Department of (OMB) with respect to the information review all proposals for eligibility and Transportation (DOT). collection required to support this completeness, and will evaluate each ACTION: Notice of proposed rulemaking program. The information collection is proposal against the factors described in (NPRM). described below: paragraph (a) of this section. The Title: Technical Assistance for purpose of this review is to identify SUMMARY: We propose to adopt a new Specialty Crops. meritorious proposals, recommend an airworthiness directive (AD) for the OMB Control Number: 0551–0038. appropriate funding level for each products listed above that would supersede an existing AD. This proposal, and submit the proposals and E-Government Act Compliance proposed AD results from mandatory funding recommendations to FAS is committed to complying with continuing airworthiness information appropriate officials within FAS for the E-Government Act, to promote the (MCAI) originated by an aviation use of the Internet and other decision. FAS may, when appropriate to authority of another country to identify information technologies to provide the subject matter of the proposal, and correct an unsafe condition on an increased opportunities for citizen request the assistance of other U.S. aviation product. The MCAI describes access to Government information and government experts in evaluating the the unsafe condition as: merits of a proposal. services, and for other purposes. The There have been reports of inter-rivet forms, regulations, and other 4. Amend § 1487.8 by revising cracking on several wing front spar adapter information collection activities paragraph (a)(4) to read as follows: assemblies (P/N C6WM1027–1) on the required to be utilized by a person horizontal and vertical flanges. It was subject to this rule are available at § 1487.8 How are payments made? determined that the cracking was caused by http://www.fas.usda.gov. stress corrosion in the short transverse grain (a) * * * initiated by local riveting induced stresses. List of Subjects in 7 CFR Part 1487 (4) Participants shall maintain all The proposed AD would require actions Agricultural commodities, Exports, records and documents relating to TASC that are intended to address the unsafe Specialty crops. projects, including the original condition described in the MCAI. documentation which supports DATES: We must receive comments on For the reasons set out in the reimbursement claims, for a period of this proposed AD by January 2, 2009. preamble, under the authority of 5 three calendar years following the U.S.C. 553; 15 U.S.C. 714b and 714c, 7 ADDRESSES: expiration or termination date of the You may send comments by CFR part 1487 is proposed to be any of the following methods: program agreement. Such records and amended as follows: • Federal eRulemaking Portal: Go to documents will be subject to http://www.regulations.gov. Follow the PART 1487—TECHNICAL verification by FAS and shall be made instructions for submitting comments. ASSISTANCE FOR SPECIALTY CROPS available upon request to authorized • Fax: (202) 493–2251. officials of the U.S. Government. FAS • Mail: U.S. Department of 1. The authority citation for part 1487 may deny a claim for reimbursement if continues to read as follows: Transportation, Docket Operations, M– the claim is not supported by acceptable 30, West Building Ground Floor, Room Authority: Section 3205 of Public Law documentation. W12–140, 1200 New Jersey Avenue, SE., 107–171. * * * * * Washington, DC 20590. • Hand Delivery: U.S. Department of 2. Revise § 1487.4 to read as follows: Dated: November 19, 2008. Transportation, Docket Operations, M– § 1487.4 Are there any limits on the scope Michael W. Yost, 30, West Building Ground Floor, Room of proposals? Executive Vice President, Commodity Credit W12–140, 1200 New Jersey Avenue, SE., (a) Funding cap. TASC proposals Corporation, and Administrator, Foreign Washington, DC 20590, between 9 a.m. which request more than $500,000 of Agricultural Service. and 5 p.m., Monday through Friday, CCC funding in a given year will not be [FR Doc. E8–28613 Filed 12–2–08; 8:45 am] except Federal holidays. considered. BILLING CODE 3410–10–P (b) Length of activities. Funding will Examining the AD Docket not be provided for projects that have You may examine the AD docket on received TASC funding for five years. the Internet at http:// The five years do not need to be www.regulations.gov; or in person at the consecutive. Docket Management Facility between 9 (c) Target countries. Proposals may a.m. and 5 p.m., Monday through target all export markets, including Friday, except Federal holidays. The AD

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docket contains this proposed AD, the country, and is approved for operation safety in air commerce. This regulation regulatory evaluation, any comments in the United States. Pursuant to our is within the scope of that authority received, and other information. The bilateral agreement with this State of because it addresses an unsafe condition street address for the Docket Office Design Authority, they have notified us that is likely to exist or develop on (telephone (800) 647–5527) is in the of the unsafe condition described in the products identified in this rulemaking ADDRESSES section. Comments will be MCAI and service information action. available in the AD docket shortly after referenced above. We are proposing this Regulatory Findings receipt. AD because we evaluated all FOR FURTHER INFORMATION CONTACT: information and determined the unsafe We determined that this proposed AD Pong Lee, Aerospace Engineer, FAA, condition exists and is likely to exist or would not have federalism implications New York Aircraft Certification Office, develop on other products of the same under Executive Order 13132. This ANE–171, 1600 Stewart Avenue, Suite type design. proposed AD would not have a 410, Westbury, New York 11590; substantial direct effect on the States, on Differences Between This Proposed AD telephone: (516) 228–7324; fax: (516) the relationship between the national and the MCAI or Service Information 794–5531. Government and the States, or on the SUPPLEMENTARY INFORMATION: We have reviewed the MCAI and distribution of power and related service information and, in responsibilities among the various Comments Invited general, agree with their substance. But levels of government. We invite you to send any written we might have found it necessary to use For the reasons discussed above, I relevant data, views, or arguments about different words from those in the MCAI certify this proposed regulation: this proposed AD. Send your comments to ensure the AD is clear for U.S. 1. Is not a ‘‘significant regulatory to an address listed under the operators and is enforceable. In making action’’ under Executive Order 12866; ADDRESSES section. Include ‘‘Docket No. these changes, we do not intend to differ 2. Is not a ‘‘significant rule’’ under the FAA–2008–1267; Directorate Identifier substantively from the information DOT Regulatory Policies and Procedures 2008–CE–069–AD’’ at the beginning of provided in the MCAI and related (44 FR 11034, February 26, 1979); and your comments. We specifically invite service information. 3. Will not have a significant comments on the overall regulatory, We might also have proposed economic impact, positive or negative, economic, environmental, and energy different actions in this AD from those on a substantial number of small entities aspects of this proposed AD. We will in the MCAI in order to follow FAA under the criteria of the Regulatory consider all comments received by the policies. Any such differences are Flexibility Act. closing date and may amend this highlighted in a NOTE within the We prepared a regulatory evaluation proposed AD because of those proposed AD. of the estimated costs to comply with comments. Costs of Compliance this proposed AD and placed it in the We will post all comments we AD docket. receive, without change, to http:// We estimate that this AD will affect List of Subjects in 14 CFR Part 39 www.regulations.gov, including any 157 products of U.S. registry. We also personal information you provide. We estimate that it will take about 18 work- Air transportation, Aircraft, Aviation will also post a report summarizing each hours per product to comply with the safety, Incorporation by reference, substantive verbal contact we receive basic requirements of this AD. The Safety. about this proposed AD. average labor rate is $80 per work-hour. Based on these figures, we estimate The Proposed Amendment Discussion the cost of this AD on U.S. operators to Accordingly, under the authority On May 15, 2008, we issued AD be $226,080 or $1,440 per product. delegated to me by the Administrator, 2008–11–10, Amendment 39–15532 (73 In addition, we estimate that any the FAA proposes to amend 14 CFR part FR 37353; July 1, 2008). That AD necessary follow-on actions will take 39 as follows: required actions intended to address an about 200 work-hours and require parts unsafe condition on the products listed costing $3,696 for a cost of $19,696 per PART 39—AIRWORTHINESS above. product. We have no way of DIRECTIVES Since we issued AD 2008–11–10, a determining the number of products 1. The authority citation for part 39 complete list of affected part numbers that may need these actions. continues to read as follows: has been issued. Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. Relevant Service Information Title 49 of the United States Code Viking Air Limited has issued Viking specifies the FAA’s authority to issue § 39.13 [Amended] DHC–6 Twin Otter Service Bulletins No. rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by V6/540, dated October 1, 2007; No. V6/ section 106, describes the authority of removing Amendment 39–15532 (73 FR 541, dated October 1, 2007; and No. V6/ the FAA Administrator. ‘‘Subtitle VII: 37353; July 1, 2008), and adding the 542, dated October 1, 2007; and R.W. Aviation Programs,’’ describes in more following new AD: Martin, Inc. Service Bulletin No. 00160/ detail the scope of the Agency’s Viking Air Limited: Docket No. FAA–2008– 2, Revision A, dated November 15, authority. 1267; Directorate Identifier 2008–CE– 2007. The actions described in this We are issuing this rulemaking under 069–AD. the authority described in ‘‘Subtitle VII, service information are intended to Comments Due Date correct the unsafe condition identified Part A, Subpart III, Section 44701: (a) We must receive comments by January in the MCAI. General requirements.’’ Under that section, Congress charges the FAA with 2, 2009. FAA’s Determination and Requirements promoting safe flight of civil aircraft in Affected ADs of the Proposed AD air commerce by prescribing regulations (b) This AD supersedes AD 2008–11–10, This product has been approved by for practices, methods, and procedures Amendment 39–15532 (73 FR 37353; July 1, the aviation authority of another the Administrator finds necessary for 2008).

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Applicability (ii) For wing box P/Ns WR6–1002–59 or (3) Reporting Requirements: For any (c) This AD applies to the following WR6–1002–61, inspect following R.W. reporting requirement in this AD, under the Models DHC–6–1, DHC–6–100, DHC–6–200, Martin, Inc. Service Bulletin No. 00160/2, provisions of the Paperwork Reduction Act and DHC–6–300 airplanes, all serial Revision A, dated November 15, 2007. (44 U.S.C. 3501 et seq.), the Office of numbers, that are certificated in any category: (4) For Group 1 and 2 airplanes, before Management and Budget (OMB) has (1) Group 1: Equipped with wing boxes, further flight after doing any inspection approved the information collection part numbers (P/Ns) C6W1002–1, C6W1002– required in paragraph (f)(3) of this AD where requirements and has assigned OMB Control 3, WR6–1002–59 or WR6–1002–61 that cracks are found, replace the cracked front Number 2120–0056. spar adapter assembly with a front spar incorporate a P/N C6WM1027–1 front spar Related Information adapter assembly with 10 or more years of adapter assembly, P/N C6WM1027–3. Do the service; and replacement following Viking DHC–6 Twin (h) Refer to MCAI Transport Canada AD (2) Group 2: Equipped with wing boxes, P/ Otter Service Bulletin Number V6/542, dated No. CF–2007–31, dated December 17, 2007; Ns C6W1002–5, C6W1002–7, C6W1002–9, October 1, 2007. This replacement terminates Viking DHC–6 Twin Otter Service Bulletins C6W1002–11, C6W1002–13, C6W1002–15, the repetitive inspections required in No. V6/540, dated October 1, 2007; No. V6/ C6W1002–17, C6W1002–19, C6W1002–21, paragraph (f)(3) of this AD for the replaced 541, dated October 1, 2007; and No. V6/542, C6W1002–23, C6W1002–51, C6W1002–53, front spar adapter assembly. dated October 1, 2007; and R.W. Martin, Inc. C6W1002–55, C6W1002–57 and C6W1002– (5) As a terminating action for the Service Bulletin No. 00160/2, Revision A, 61 that incorporate a P/N C6WM1027–1 front repetitive inspections required in paragraph dated November 15, 2007, for related spar adapter assembly with 10 or more years (f)(3) of this AD, at any time after the initial information. of service. inspection required in paragraph (f)(3) of this Issued in Kansas City, Missouri, on AD, you may replace P/N C6WM1027–1 with November 26, 2008. Subject P/N C6WM1027–3, except it must be Kim Smith, (d) Air Transport Association of America replaced prior to further flight as required by (ATA) Code 57: Wings. paragraph (f)(4) of this AD. Manager, Small Airplane Directorate, Aircraft Certification Service. FAA AD Differences Reason [FR Doc. E8–28645 Filed 12–2–08; 8:45 am] (e) The mandatory continuing Note: This AD differs from the MCAI and/ BILLING CODE 4910–13–P airworthiness information (MCAI) states: or service information as follows: MCAI There have been reports of inter-rivet Transport Canada AD No. CF–2007–31, dated December 17, 2007, is applicable to airplane cracking on several wing front spar adapter ENVIRONMENTAL PROTECTION assemblies (P/N C6WM1027–1) on the models with front spar adapter assembly horizontal and vertical flanges. It was P/N C6WM1027–3 that incorporate task C57– AGENCY determined that the cracking was caused by 10–18 of the DHC–6 Corrosion Prevention stress corrosion in the short transverse grain and Control Manual (CPCM), PSM 1–6–5. 40 CFR Chapter I initiated by local riveting induced stresses. The applicability of this proposed AD does [EPA–HQ–OPPT–2008–0627; FRL–8386–3] This directive mandates modification and not include airplane models with front spar inspection of the wing front spar adapter adapter assembly P/N C6WM1027–3 that RIN 2070–AJ44 fitting and replacement of cracked fittings. incorporate task C57–10–18 of the DHC–6 CPCM, PSM 1–6–5, which is required in the Formaldehyde Emissions From Actions and Compliance Transport Canada ADs No. CF–94–12R1, Pressed Wood Products (f) Unless already done, do the following dated April 13, 1999, and AD No. CF–99–11, actions: dated May 28, 1999. We have addressed the AGENCY: Environmental Protection (1) For Group 1 airplanes, within the next Corrosion Prevention and Control Program in Agency (EPA). 180 days after August 5, 2008 (the effective AD 2008–13–11 (73 FR 37355, July 1, 2008), ACTION: Advance notice of proposed date of AD 2008–11–10), install inspection which identifies specific areas that must be rulemaking and notice of public holes in the left-hand (LH) and right-hand inspected to ensure the structural integrity of meetings. (RH) lower wing skins following Viking the DHC–6 fleet. DHC–6 Twin Otter Service Bulletin Number SUMMARY: Other FAA AD Provisions On March 24, 2008, EPA V6/541, dated October 1, 2007. received a Toxic Substances Control Act (2) For Group 2 airplanes, within the next (g) The following provisions also apply to (TSCA) section 21 petition from 180 days after the effective date of this AD, this AD: install inspection holes in the LH and RH (1) Alternative Methods of Compliance numerous organizations and individuals lower wing skins following Viking DHC–6 (AMOCs): The Manager, New York Aircraft concerned about risks to human health Twin Otter Service Bulletin Number V6/541, Certification Office, FAA, has the authority to and the environment from exposure to dated October 1, 2007. approve AMOCs for this AD, if requested formaldehyde in composite wood (3) For Group 1 and Group 2 airplanes, using the procedures found in 14 CFR 39.19. products, specifically hardwood before further flight after installing the Send information to ATTN: Pong Lee, plywood, particleboard, and medium inspection holes required in paragraph (f)(1) Aerospace Engineer, FAA, New York Aircraft density fiberboard. In response to that or (f)(2) of this AD, initially inspect the LH Certification Office, ANE–171, 1600 Stewart petition, EPA decided to initiate a and RH front spar adapter assemblies for Avenue, Suite 410, Westbury, New York proceeding to investigate whether and cracks, and repetitively thereafter inspect all 11590; telephone: (516) 228–7324; fax: (516) affected wing box P/Ns at intervals not to 794–5531. Before using any approved AMOC what type of regulatory or other action exceed 1,200 hours time-in-service or 12 on any airplane to which the AMOC applies, might be appropriate to protect against months, whichever occurs first, until the notify your appropriate principal inspector risks posed by formaldehyde emitted replacement required in paragraph (f)(4) of (PI) in the FAA Flight Standards District from these and other pressed wood this AD is done. Office (FSDO), or lacking a PI, your local products. This document commences (i) For wing box P/Ns C6W1002–1, FSDO. that proceeding by describing EPA’s C6W1002–3, C6W1002–5, C6W1002–7, (2) Airworthy Product: For any initial steps in that investigation and C6W1002–9, C6W1002–11, C6W1002–13, requirement in this AD to obtain corrective requesting comment, information, and C6W1002–15, C6W1002–17, C6W1002–19, actions from a manufacturer or other source, data relating to formaldehyde emissions C6W1002–21, C6W1002–23, C6W1002–51, use these actions if they are FAA-approved. C6W1002–53, C6W1002–55, C6W1002–57, Corrective actions are considered FAA- from pressed wood products. This C6W1002–59, and C6W1002–61, inspect approved if they are approved by the State document also announces five public following Viking DHC–6 Twin Otter Service of Design Authority (or their delegated meetings that EPA has scheduled in Bulletin Number V6/540, dated October 1, agent). You are required to assure the product order to obtain additional stakeholder 2007. is airworthy before it is returned to service. input.

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DATES: Comments must be received on about EPA’s public docket, visit the EPA • Manufactured home (mobile home) or before February 2, 2009. For public Docket Center homepage at http:// manufacturing (NAICS code 321991). meeting information, see Unit III.A. www.epa.gov/epahome/dockets.htm. • Prefabricated wood building ADDRESSES: Submit your comments, Docket: All documents in the docket manufacturing (NAICS code 321992). • identified by docket identification (ID) are listed in the docket index available All other basic organic chemical number EPA–HQ–OPPT–2008–0627, by at http://www.regulations.gov. Although manufacturing (NAICS code 325199), listed in the index, some information is e.g., formaldehyde manufacturing. one of the following methods: • • Federal eRulemaking Portal: http:// not publicly available, e.g., CBI or other Furniture and related product information whose disclosure is manufacturing (NAICS code 337). www.regulations.gov. Follow the on-line • instructions for submitting comments. restricted by statute. Certain other Furniture merchant wholesalers • material, such as copyrighted material, (NAICS code 42321). Mail: Document Control Office • (7407M), Office of Pollution Prevention is not placed on the Internet and will be Lumber, plywood, millwork, and and Toxics (OPPT), Environmental publicly available only in hard copy wood panel merchant wholesalers Protection Agency, 1200 Pennsylvania form. Publicly available docket (NAICS code 42331). • Other construction material Ave., NW., Washington, DC 20460– materials are available either in the merchant wholesalers (NAICS code 0001. electronic docket at http:// 423390), e.g., merchant wholesale • Hand Delivery: OPPT Document www.regulations.gov, or, if only distributors of manufactured homes Control Office (DCO), EPA East Bldg., available in hard copy, at the OPPT Docket. The OPPT Docket is located in (i.e., mobile homes) and/or Rm. 6428, 1201 Constitution Ave., NW., the EPA Docket Center (EPA/DC) at Rm. prefabricated buildings. Washington, DC. Attention: Docket ID 3334, EPA West Bldg., 1301 • Furniture stores (NAICS code 4421). Number EPA–HQ–OPPT–2008–0627. Constitution Ave., NW., Washington, • Building material and supplies The DCO is open from 8 a.m. to 4 p.m., DC. The EPA/DC Public Reading Room dealers (NAICS code 4441). Monday through Friday, excluding legal hours of operation are 8:30 a.m. to 4:30 • Manufactured (mobile) home dealers holidays. The telephone number for the p.m., Monday through Friday, excluding (NAICS code 45393). DCO is (202) 564–8930. Such deliveries Federal holidays. The telephone number • Motor home manufacturing (NAICS are only accepted during the DCO’s of the EPA/DC Public Reading Room is code 336213). normal hours of operation, and special (202) 566–1744, and the telephone • Travel trailer and camper arrangements should be made for number for the OPPT Docket is (202) manufacturing (NAICS code 336214). deliveries of boxed information. 566–0280. Docket visitors are required • Recreational vehicle (RV) dealers Instructions: Direct your comments to to show photographic identification, (NAICS code 441210). docket ID number EPA–HQ–OPPT– pass through a metal detector, and sign • Recreational vehicle merchant 2008–0627. EPA’s policy is that all the EPA visitor log. All visitor bags are wholesalers (NAICS code 423110). • comments received will be included in processed through an X-ray machine Plastics material and resin the docket without change and may be and subject to search. Visitors will be manufacturing (NAICS code 325211). made available on-line at http:// provided an EPA/DC badge that must be This listing is not intended to be www.regulations.gov, including any visible at all times in the building and exhaustive, but rather provides a guide personal information provided, unless returned upon departure. for readers regarding entities likely to be the comment includes information affected by this action. Other types of FOR FURTHER INFORMATION CONTACT: For claimed to be Confidential Business entities not listed in this unit could also Information (CBI) or other information general information contact: Colby Linter, Regulatory Coordinator, be affected. The North American whose disclosure is restricted by statute. Industrial Classification System Do not submit information that you Environmental Assistance Division (7408M), Office of Pollution Prevention (NAICS) codes have been provided to consider to be CBI or otherwise assist you and others in determining protected through regulations.gov or e- and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., whether this action might apply to mail. The regulations.gov website is an certain entities. If you have any ‘‘anonymous access’’ system, which Washington, DC 20460–0001; telephone number: (202) 554–1404; e-mail address: questions regarding the applicability of means EPA will not know your identity this action to a particular entity, consult or contact information unless you [email protected]. For technical information contact: the technical person listed under FOR provide it in the body of your comment. Cindy Wheeler, National Program FURTHER INFORMATION CONTACT. If you send an e-mail comment directly Chemicals Division, Office of Pollution to EPA without going through B. What Should I Consider as I Prepare Prevention and Toxics, Environmental regulations.gov, your e-mail address My Comments for EPA? Protection Agency, 1200 Pennsylvania will be automatically captured and 1. Submitting CBI. Do not submit this Ave., NW., Washington, DC 20460– included as part of the comment that is information to EPA through 0001; telephone number: (202) 566– placed in the docket and made available regulations.gov or e-mail. Clearly mark 0484; e-mail address: on the Internet. If you submit an the part or all of the information that [email protected]. electronic comment, EPA recommends you claim to be CBI. For CBI that you include your name and other SUPPLEMENTARY INFORMATION: information in a disk or CD-ROM that contact information in the body of your I. General Information you mail to EPA, mark the outside of the comment and with any disk or CD-ROM disk or CD-ROM as CBI and then you submit. If EPA cannot read your A. Does this Action Apply to Me? identify electronically within the disk or comment due to technical difficulties This document is directed to the CD-ROM the specific information that is and cannot contact you for clarification, public in general. However, this claimed as CBI. In addition to one EPA may not be able to consider your document may be of particular interest complete version of the comment that comment. Electronic files should avoid to the following entities: includes information claimed as CBI, a the use of special characters, any form • Veneer, plywood, and engineered copy of the comment that does not of encryption, and be free of any defects wood product manufacturing (NAICS contain the information claimed as CBI or viruses. For additional information code 3212). must be submitted for inclusion in the

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public docket. Information so marked plywood paneling (used for decorative formaldehyde. This assessment will be will not be disclosed except in wall covering and used in cabinets and expedited and prepared separately from accordance with procedures set forth in furniture); and medium density the formaldehyde IRIS cancer 40 CFR part 2. fiberboard (used for drawer fronts, reassessment. If the jointly-developed 2. Tips for preparing your comments. cabinets, and furniture tops). Medium non-cancer assessment is peer-reviewed When submitting comments, remember density fiberboard contains a higher and completed in a timely manner, to: resin-to-wood ratio than any other UF OPPTS will use it to inform its decision- i. Identify the document by docket ID pressed wood product and is generally making as part of a rulemaking under number and other identifying recognized as being the highest TSCA. The Agency’s assessment process information (subject heading, Federal formaldehyde-emitting pressed wood will include the appropriate external Register date and page number). product. Other pressed wood products peer review, which will offer ii. Follow directions. The Agency may include waferboard, oriented opportunities for public comment on ask you to respond to specific questions strandboard, hardboard, laminated the underlying science. or organize comments by referencing a veneer lumber, and parallel strand EPA also intends to commission the Code of Federal Regulations (CFR) part lumber. National Academy of Sciences to or section number. Formaldehyde is both an irritant and conduct a comprehensive review of the iii. Explain why you agree or disagree; a probable human carcinogen. available scientific data on suggest alternatives and substitute Depending on concentration, it is well formaldehyde. The Agency believes that language for your requested changes. recognized that formaldehyde can be an this additional analysis and advice will iv. Describe any assumptions and eye, nose, and throat irritant, even when further strengthen the scientific basis of provide any technical information and/ exposure is of relatively short duration. its understanding of formaldehyde risks. or data that you used. In the indoor environment, sensory Formaldehyde is also one of 187 v. If you estimate potential costs or reactions and various symptoms as a compounds listed under section burdens, explain how you arrived at result of mucous membrane irritation 112(b)(1) of the Clean Air Act (CAA) as your estimate in sufficient detail to are potential effects, and, while there a hazardous air pollutant (HAP). The allow for it to be reproduced. are large individual differences in the CAA requires EPA to regulate emissions vi. Provide specific examples to general population, the differences may of HAPs from a published list of illustrate your concerns and suggest be even greater when sensitive people industrial source categories. The EPA alternatives. are included in an analysis (Ref. 1). EPA has developed lists of major and area vii. Explain your views as clearly as acknowledges that there are source categories that must meet control possible, avoiding the use of profanity uncertainties relating to irritation technology requirements for HAPs and or personal threats. response levels in humans. As noted in has developed (or is developing) viii. Make sure to submit your Unit IV.C. of the June 27, 2008 Federal standards for these source categories. comments by the comment period Register notice discussed in Unit II.B.2. The plywood and composite wood deadline identified. of this document, EPA is currently products (PCWP) National Emission conducting an irritation hazard Standards for Hazardous Air Pollutants II. Background characterization that could be used to (NESHAP) is one of these standards A. Basic Information evaluate possible regulatory and other (Ref. 4). The PCWP NESHAP controls actions to address formaldehyde emissions of formaldehyde and other Formaldehyde is a colorless, strong- emissions from pressed wood products HAPs from various process units (e.g., smelling gas. Commonly used as a (Ref. 2). dryers and presses) at PWCP facilities. preservative in medical laboratories and In 1991, EPA classified formaldehyde B. The Section 21 Petition mortuaries, formaldehyde is also found as a probable human carcinogen, ‘‘based in other products such as chemicals, on limited evidence in humans, and On March 24, 2008, 25 organizations pressed wood products (e.g., sufficient evidence in animals,’’ and and approximately 5,000 individuals particleboard, fiberboard, and plywood), derived an inhalation unit risk factor for petitioned EPA under section 21 of household products, glues, permanent assessing formaldehyde cancer risk (Ref. TSCA to use section 6 of TSCA to adopt press fabrics, and paper product 3). As discussed in the June 27, 2008 a recently-promulgated California coatings. Formaldehyde is widely used Federal Register notice, the assessment regulation concerning emissions of as a fungicide, germicide, and and modeling procedure used to formaldehyde from three types of disinfectant. It is also a by-product of develop EPA’s cancer risk assessment is products California described as combustion and certain other natural not based on the most current composite wood products: Hardwood processes. information. EPA’s Office of Research plywood, particleboard, and medium Although there may be many sources and Development (ORD) is currently density fiberboard (Ref. 5). The of formaldehyde in air inside homes, engaged in a reassessment of the petitioners asked EPA to assess and including various household products, potential cancer and non-cancer risks of reduce the risks posed by formaldehyde cigarette smoke, and un-vented, fuel- formaldehyde through the ORD emitted from these products by burning appliances (gas stoves, kerosene Integrated Risk Information System exercising its authority under TSCA space heaters), the most significant (IRIS) program. As a result of the IRIS section 6 to adopt and apply nationally sources of formaldehyde are likely to be reassessment process, EPA may the California formaldehyde emissions pressed wood products made using determine that the appropriate cancer regulation for these composite wood adhesives that contain urea- unit risk is higher or lower than the products. In addition, petitioners formaldehyde (UF) and other 1991 value after considering the requested EPA to extend this regulation formaldehyde-based resins. Pressed currently available scientific to include composite wood products wood products typically made with information, including human data. used in manufactured homes. such resins for indoor use include, but ORD and OPPTS are collaborating on 1. The California Air Resource are not limited to: Particleboard (used as developing an EPA IRIS assessment for Board’s Airborne Toxics Control sub-flooring and shelving and in non-cancer effects, including an Measure. In 2007, the California Air cabinetry and furniture); hardwood irritation hazard characterization, of Resource Board (CARB) approved an

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Airborne Toxics Control Measure with either NAF or ULEF resins. The EPA plans to take as part of this (ATCM) for formaldehyde emissions ATCM also imposes recordkeeping investigation, including opportunities from hardwood plywood, particleboard, requirements on manufacturers to for public participation, and to request and medium density fiberboard (Ref. 6). document compliance. comment and data in particular areas The ATCM was approved on April 18, The ATCM requires distributors, where available information is lacking. 2008 by the California Office of importers, fabricators, and retailers to Administrative Law and the first purchase and sell panels and finished III. Public Participation emission standards will take effect on goods that comply with applicable With this document, EPA is January 1, 2009. The ATCM requires formaldehyde emission standards. They announcing its plans to involve manufacturers to meet formaldehyde must take precautions, such as stakeholders in gathering information to emission standards for any of these communicating with their suppliers, to inform EPA’s determination of the scope products that are sold, offered for sale, ensure that the products they purchase of the problem and EPA’s decision on supplied, or manufactured for use in are in compliance with applicable the best ways to address risks that may California. The ATCM also requires that emission standards. Distributors and be posed by formaldehyde emissions compliant products be used in finished importers must maintain records from pressed wood products. EPA is goods sold, offered for sale, supplied or documenting compliance and beginning the public participation manufactured for sale in California. The fabricators must also label their finished process by soliciting stakeholder ATCM does not apply to hardwood goods as compliant with the applicable assistance in obtaining a better plywood and particleboard materials standards. understanding of the available control when installed in manufactured homes 2. EPA’s response to the petition. technologies and approaches, current subject to regulations promulgated by Although a substantial amount of and future industry practices, and the United States Department of information was submitted by reference implementation of the CARB ATCM. Housing and Urban Development with the petition or otherwise available This document contains numerous (HUD). Seventeen percent of new to the Agency, EPA determined that the specific requests for comment, construction and eight percent of available information was not sufficient information, and data on topics of existing manufactured housing are built to support an evaluation of whether current interest to EPA. Stakeholders are according to HUD’s regulations (Ref. 7). formaldehyde emitted from hardwood encouraged to respond to these requests The ATCM’s ‘‘Phase 1’’ emission plywood, particleboard, and medium and to provide comment on any other standards for hardwood plywood, density fiberboard presents or will matters pertaining to the content of this particleboard, and medium density present an unreasonable risk to human document. fiberboard will take effect on January 1, health (including cancer and non-cancer In addition, EPA is planning to hold 2009. More stringent ‘‘Phase 2’’ endpoints) under TSCA section 6. As five half-day public meetings in January standards will be phased in between discussed in detail in the Federal of 2009. The purpose of these meetings 2010 and 2012. The ATCM does not Register notice announcing EPA’s is to receive stakeholder comments on allow manufacturers to meet these response to the petition, EPA’s the issue of formaldehyde emissions emission standards using barrier evaluation of the data provided by the from pressed wood products, including methods. CARB anticipates that petitioners revealed significant the questions described in this manufacturers will meet the ‘‘Phase 1’’ information gaps that would need to be document, and on future opportunities standards by using resin technologies filled to support an evaluation of for public participation on this issue. that are similar to those commonly in whether use of formaldehyde in these use today. To meet the ‘‘Phase 2’’ products presents or will present an A. Meeting Dates and Locations standards, CARB believes that unreasonable risk under TSCA section 6 The meetings will be held as follows: manufacturers will likely use modified (Ref. 2). 1. In Research Triangle Park, NC on current day urea-formaldehyde (UF), no- Nevertheless, after considering the January 8, 2009, from 1 p.m. to 5 p.m. added formaldehyde (NAF), or ultra- information presented by the petitioners The meeting will be held at the low-emitting formaldehyde (ULEF) resin (including information in the California Environmental Protection Agency, Main systems. administrative record), information Campus Auditorium (C111B/C), 109 TW The ATCM requires manufacturers of submitted by commenters, and other Alexander Drive, Research Triangle covered products to demonstrate available information, EPA decided to Park, North Carolina 27711. compliance with the emission standards initiate a proceeding to investigate 2. In Portland, OR on January 13, by being certified by an independent whether and what type of regulatory or 2009, from 1 p.m. to 5 p.m. The meeting party known as a ‘‘third party certifier.’’ other action might be appropriate to will be held at the State Public Health Third party certifiers must be approved protect against risks posed by Building, 800 NE Oregon St., Room 1B, by CARB and must follow specified formaldehyde emitted from the products Portland, Oregon 97232. requirements to verify that a covered by the CARB ATCM as well as 3. In Chicago, IL on January 15, 2009, manufacturer’s production meets other pressed wood products. At the from 8:30 a.m. to 12:30 p.m. The applicable formaldehyde emission conclusion of this investigation, EPA meeting will be held at the Ralph standards. Once their product has been anticipates determining whether EPA Metcalfe Federal Building, Room 328, approved by CARB, manufacturers who should take action, which may include 77 West Jackson Blvd., Chicago, IL use NAF or some ULEF resin systems regulatory action under TSCA section 60604. are exempt from ongoing testing 6(a), action under TSCA section 6(b), 4. In Dallas, TX on January 26, 2009, requirements. Manufacturers who use voluntary or regulatory (e.g., under from 1 p.m. to 5 p.m. The meeting will other ULEF resin systems may be TSCA section 6) application of a be held at the Environmental Protection granted a reduction in frequency for voluntary consensus standard, or other Agency, 1445 Ross Avenue, 12th Floor, ongoing testing. Manufacturers would approaches. While evaluating options, Dallas,Texas 75202. also be required to label their covered EPA intends to engage the public in this 5. In Washington, DC on January 29, products to identify them as meeting process and coordinate efforts with 2009, from 1 p.m. to 5 p.m. The meeting either the ‘‘Phase 1’’ or ‘‘Phase 2’’ other interested agencies. The purpose will be held at the Environmental emission standards, or as being made of this document is to outline the steps Protection Agency, EPA East, Room

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1153, 1201 Constitution Ave., support development of the PCWP formaldehyde (PF) resin, melamine- Washington, DC 20460. NESHAP (Refs. 8, 9, 10, 11), EPA formaldehyde (MF) resin, melamine- requests that commenters note such urea-formaldehyde (MUF) resin, B. Meeting Procedures reports and whether the reports remain isocyanate resin, polydiphenylmethane For additional information on the accurate with respect to new diisocyanate (pMDI) resin, polyvinyl scheduled meetings, contact the developments or changes that have acetate (PVA), and soy-based resin. Less technical person listed under FOR occurred over time. EPA is particularly commonly-used resins include: FURTHER INFORMATION CONTACT. The interested in responses to the following Ammonia urea formaldehyde (AUF), meetings will be open to the public. questions: phenol resorcinol formaldehyde (PRF), Oral presentations or statements by a. Pressed wood products. EPA has phenol urea formaldehyde (PUF), interested parties will be limited to 10 identified the following categories of phenol urea formaldehyde tannin minutes. Interested parties are pressed wood products that may be (PUFT), and resorcinol formaldehyde encouraged to contact the technical manufactured using urea-formaldehyde (RF). person at least 10 days prior to the (UF) resin and other formaldehyde- i. What types of resins, whether meeting to schedule presentations. based resins: Particleboard, medium formaldehyde-based or not, are or may Since seating for outside observers may density fiberboard, hardwood and be used in the manufacture of each type be limited, those wishing to attend the softwood plywood, waferboard, oriented of pressed wood product listed in Unit meetings as observers are also strandboard, hardboard, parallel strand IV.A.1.a? encouraged to contact the technical lumber, laminated veneer lumber, ii. What are the typical concentrations person at the earliest possible date, but prefabricated I-joists, and glued of free formaldehyde in each no later than 10 days before the meeting, laminated beams (Ref. 12). formaldehyde-based resin type and in to ensure adequate seating i. Are there other pressed wood each type of pressed wood product? arrangements. products that may contain (The term ‘‘free formaldehyde’’ refers to To request accommodation of a formaldehyde-based resins? What are unreacted formaldehyde and disability, please contact the technical these products? formaldehyde that may become person listed under FOR FURTHER ii. The CARB ATCM covers only three available from depolymerization of the INFORMATON CONTACT, preferably at least types of pressed wood products: resin.) EPA is also interested in 10 days prior to the meeting, to give Particleboard, medium density information on the total quantity and EPA as much time as possible to process fiberboard, and hardwood plywood. Are typical mole ratio of the components of your request. there other specific pressed wood each type of resin used for each type of products or categories of pressed wood pressed wood product. IV. Investigation Overview and Specific products that have been demonstrated c. Evaluation of manufacturing Requests for Comment, Information, to result in comparable or higher processes. EPA is seeking detailed and Data formaldehyde emissions? What information on the manufacturing The first part of this Unit describes emission levels have been reported and processes for each type of pressed wood the elements of EPA’s investigation and what percentages of these products have product, including the operating includes specific requests for comments, or may have such emissions? What parameters and conditions, unit information, and data that may pertain companies produce or import such operations, and equipment. to each investigation element. The products? What are the applications for i. EPA is interested in descriptions of second part of this Unit describes each these products? all of the factors, including the of the various tools that EPA may use iii. What are the end-uses and composition of raw materials and unit to address risks that may be posed by quantities for each type of pressed wood operating parameters, at each step in the formaldehyde emissions from pressed product? In particular, EPA would like manufacturing process that may affect wood products, along with requests for to receive information on the the formaldehyde content of finished comment on these and other regulatory production volume (expressed as square pressed wood products. EPA requests and voluntary approaches. feet or some comparable value) for each descriptions of the methods, including type of pressed wood product that is unit operations and operating A. Investigation Elements and used in each end-use market, such as procedures, used for controlling the Associated Requests for Comment, the amount of hardwood plywood used content of formaldehyde in pressed Information, and Data in cabinetry, furniture, paneling, door wood products. 1. Industry profile. EPA seeks to panels/skins, etc. ii. EPA requests any available obtain a better understanding of the iv. To what degree are domestic and information on the overall mass balance available technologies to control imported products interchangeable? and the formaldehyde mass balance per formaldehyde emissions from pressed b. Resins used in manufacturing unit operation. wood products, industry practices, and pressed wood products. Formaldehyde- iii. EPA is interested in any available implementation of the CARB ATCM. based resins may be used in the information on optimization studies of EPA is planning an industry survey to manufacture of pressed wood products. the factors affecting the formaldehyde supplement the information that EPA is The resins may serve to bind together content of finished pressed wood requesting in this document. EPA raw wood materials, such as wood products. In general, an optimization requests commenters on this notice to shavings, flakes, wafers, chips, particles, study is a study of the means to improve provide information or data they may veneers, fibers, strands, or sawdust, to the economic, environmental, health or have regarding the pressed wood form the pressed wood product. There safety performance of a chemical product industry. To the extent that the are several types of formaldehyde-based process. Improvements in one or more requested information was already resins. Additionally, there are specific performance areas may have submitted in response to EPA’s request alternative resins that are not adverse impacts on other performance for comment on the TSCA section 21 formaldehyde-based. The types of resins areas. In this context, EPA is requesting petition, or is already publicly available commonly used in pressed wood information on studies on the means of and summarized in prior reports, such products include the following: Urea- altering the process used to manufacture as those prepared in the late 1990s to formaldehyde (UF) resin, phenol- pressed wood products for the purpose

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of reducing emissions of formaldehyde • Urea, polymer with formaldehyde California)? Do you intend to sell a from such products. EPA is interested in and phenol (CASRN: 25104-55-6) single set of products (inside and any such information, including the • Hexanedioic acid, polymer with N1- outside of California) that comply with results from bench scale experimental (2-aminoethyl)-1,2-ethanediamine and the CARB ATCM’s Phase 2 standards? studies and engineering design studies 2-(chloromethyl)oxirane (CASRN: What factors are influential in making with pilot plant or commercial 25212-19-5) this decision (e.g., where your company production test run data. • Urea, polymer with formaldehyde, is located, where your clients are iv. What are the quality control phenol and 1,3,5-triazine-2,4,6-triamine located or sell their products, how large measures for the control of (CASRN: 25212-25-3) your company is)? formaldehyde emissions from pressed • Urea, polymer with formaldehyde ii. If you intend on manufacturing wood products undertaken at and methanol (CASRN: 37999-54-5) hardwood plywood, particleboard, or manufacturing facilities? How often, to • Poly[oxy(methyl-1,2-ethanediyl)], a- medium density fiberboard products what extent, and why do these measures hydro-ω-hydroxy-, ether with 2-ethyl-2- that comply with the CARB ATCM’s fail? (hydroxymethyl)-1,3-propanediol (3:1), Phase 2 standards, what resin system(s), d. Product alternatives. EPA requests polymer with 1,1’-methylenebis[4- additives, process modifications, or comment, data, and information on the isocyanatobenzene] (CASRN: 57596-50- post-treatment did you previously use potential alternatives that would reduce 6) and what do you anticipate using in formaldehyde emissions from pressed • Tannins, polymers with order to comply with the CARB ATCM? wood products. EPA is also interested in formaldehyde and phenol (CASRN: iii. If you do not intend on selling the performance characteristics of, and 68910-49-6) products that comply with the CARB • the costs associated with using, PureBond (Identity has been ATCM’s Phase 2 standards, why not? alternative chemicals and processes to claimed confidential, but it is known to What factors influence your decision of manufacture products that meet the be soy-based) whether or not to sell products that CARB ATCM standards. v. What testing has been done to comply with the CARB ATCM’s Phase i. What low- or no- formaldehyde determine the effectiveness of the 2 standards? emitting substitutes exist? What different barrier technologies (e.g., iv. If you do not intend on selling percentage of the pressed wood market melamine sheets, paper coatings, products that comply with the CARB uses them? What percentage of the varnish or paint treatments, films, foils) ATCM’s Phase 2 standards, what level national pressed wood market, at lowering formaldehyde emissions of formaldehyde emissions do you exclusive of California, is expected to over the lifetime of the coated pressed anticipate that your products will have? use them after 2012 (when the CARB wood product? What are the results of For example, will they meet the CARB ATCM’s Phase 2 emission limits have that testing? The Agency is aware that ATCM’s Phase 1 standards? become effective), and in which some barrier methods need additional v. What are the key factors in products are they expected to be used? treatment of the remaining uncoated determining the cost of complying with ii. If a pressed wood products surfaces of the pressed wood products the CARB ATCM, and how do these manufacturer were interested in (i.e., edge treatments with scavenger vary across plants? For example, key reducing formaldehyde emissions, coatings) to work effectively. Has the factors may include whether the would the manufacturer substitute use of barrier treatment or combination forming line in a pressed wood plant another resin (or resins) or modify the treatment eliminated the potential for uses cauls or is caulless, or whether the resins currently used? Which resins? formaldehyde emissions or simply presses are single opening, multi- Why? deferred the release of formaldehyde, opening, or continuous. iii. Do control technologies exist to perhaps until the end of the wood vi. Are data available on whether or reduce the levels of free formaldehyde products’ life cycle? Are data available how formaldehyde emission rates or in existing resin types? If so, what is the to show that the efficient use of compliance with the CARB ATCM may estimated effectiveness of each control scavenger chemicals is effective in differ between domestic and imported technology? What is the basis for the permanently reducing formaldehyde products? effectiveness estimate? emissions? 2. Exposure assessment. EPA has also iv. EPA has begun evaluating various vi. What product substitutes exist for initiated development of an exposure resin formulations that have been the products covered by the CARB assessment for formaldehyde emissions manufactured to improve or eliminate ATCM, and what product substitutes from pressed wood products. Exposure formaldehyde emissions. EPA seeks exist for other pressed wood products? assessments identify the pathways by information, including resin For example, oriented strandboard which toxic substances may reach formulation, human health hazard, might be used in place of particleboard, individuals, estimate how much of a process, product performance, and cost or solid lumber might be used in place substance an individual is likely to be information, from manufacturers who of fiberboard. What are the performance exposed to (including the frequency and use or intend to use resins identified in characteristics of and the costs duration of exposure), estimate time- the following list, manufacturers who associated with using product activity patterns, and estimate the use or intend to use other resins, and substitutes? number of individuals likely to be manufacturers who use or intend to use e. Reaction to the CARB ATCM. For exposed. While this exposure other methods to meet the CARB companies that manufacture, import, assessment will primarily focus on ATCM’s Phase 1 and Phase 2 standards: fabricate, wholesale, or retail hardwood consumer exposures, including • Ethenol homopolymer (CASRN: plywood, particleboard, or medium children’s exposures, EPA also plans to 9002-89-5) density fiberboard for sale outside of evaluate occupational exposures and • Isocyanic acid, California: exposures to emissions from polymethylenepolyphenylene ester i. Do you intend on distributing two manufacturing operations to assess (CASRN: 9016-87-9) sets of products, one that is compliant benefits of any action developed to • Urea, polymer with formaldehyde with the CARB ATCM (for sale in reduce consumer exposures to and 1,3,5-triazine-2,4,6-triamine California) and another that is not formaldehyde emissions from pressed (CASRN: 25036-13-9) CARB-compliant (for sale outside of wood products. EPA is reviewing the

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available data for this purpose, renovations (where all countertops and mitigate the environmental release of including the data submitted by cabinets are replaced)? Are there other formaldehyde associated with the reference with the TSCA section 21 renovation projects that typically manufacture of pressed wood products, petition. Commenters are requested to involve a significant amount of pressed including estimates of the effectiveness submit any available information or data wood product? Which ones? of each control technology and the basis they may have that pertains to iv. Are there any studies that have for each effectiveness estimate. formaldehyde exposures and pressed measured the formaldehyde exposure of e. Occupational exposure. During wood products. EPA is particularly occupants to furniture and/or cabinets manufacturing of pressed wood interested in the following: containing pressed wood products? Are products, occupational exposure to a. Product emissions. i. What are the there any models available to estimate formaldehyde may occur to workers emissions profiles (e.g., mass of exposures from such who are in contact with, or in proximity formaldehyde emitted over time, decay microenvironments? Are there any data to, the manufacturing or fabricating rate over time, and measurement available on time-activity pattern data or process, raw materials, or pressed wood method and parameters) of pressed air exchange rates specific for this products. EPA plans to evaluate wood-products containing scenario? occupational exposures to assess formaldehyde-based resins on a national d. Emissions from manufacturing benefits of any action developed to level? To the extent such information is operations. The manufacture of pressed reduce consumer exposures to available, EPA is interested in emissions wood products may release formaldehyde emissions from pressed profiles for each of the various types of formaldehyde into the environment. wood products. EPA is particularly resins, pressed wood products, and Formaldehyde points of release may interested in the potential for alternative consumer goods. include, but are not limited to, the chemicals and processes to reduce ii. What data are available on the following: Fugitive and point source air occupational exposures to formaldehyde emissions profiles of the pressed wood emissions from refining, preheating, during pressed wood product products that could be used as humidifying and/or drying of the wood manufacture, processing, and substitutes? materials; pressing and/or cooling of the distribution. EPA requests information b. Children’s furniture. i. What is the wood product after adhesive on all worker activities in pressed wood surface area (square feet) of pressed application; finishing operations (aging, manufacturing and fabricating that may wood product per unit of furniture that trimming, sanding, sorting, and storing); result in occupational exposure to is used by children, such as baby cribs, container residue from containers used formaldehyde. changing tables, and toddler beds? What to transport resins and/or adhesives; i. For each worker activity, EPA is type of pressed wood product is used equipment cleanup wastes; combustion interested in the duration of exposure (e.g., UF-bonded hardwood plywood, of formaldehyde-containing wood per day and the frequency of the activity soy-bonded hardwood plywood, UF scraps, such as for energy recovery; and in days per year. For example, in a fiberboard, MDI fiberboard) in other handling of process or product particular company’s manufacturing children’s furniture? What part of the wastes that contain formaldehyde. EPA process, two workers may empty furniture unit contains the pressed requests information or data that containers of formaldehyde-containing wood product? On a national level, how commenters may have on emissions resin into an applicator. For this many units of children’s furniture from pressed wood product company, this activity may take two containing pressed wood product are manufacturing operations. To the extent hours per day and occur 250 days per sold? that the requested information is already year. ii. Are there any studies that have publicly available and summarized in ii. EPA requests any recent measured the formaldehyde exposure of prior reports, such as those prepared in information (i.e., from the past 5 years), children sleeping on furniture the late 1990s to support development including studies, on worker exposures containing pressed wood products? of the PCWP NESHAP (Refs. 6, 7, 8, 9), to formaldehyde during pressed wood What are the results? Are there any EPA requests that commenters note product manufacturing processes, as models available to estimate exposures such reports and comment on whether well as any information on control from such microenvironments? Are the reports remain accurate with respect technologies and/or personal protective there any data available on time-activity to new developments or changes that equipment (PPE) that are used to pattern data or air exchange rates have occurred over time. EPA plans to mitigate occupational exposures of specific for this scenario? evaluate exposures to emissions from formaldehyde. c. Other items. i. What are the current manufacturing operations to assess iii. EPA also requests comparable pressed wood characterizations and benefits of any action developed to information on exposure to chemicals emission profiles of other pressed wood reduce consumer exposures to (e.g., regulated by EPA or the items, such as kitchen cabinets, formaldehyde emissions from pressed Occupational Safety and Health entertainment centers, office furniture, wood products. Administration) that are used in etc.? i. EPA is requesting information and alternative resins or that are present as ii. What amount of pressed wood data on all points of formaldehyde unreacted monomers in alternative product goes into the construction of releases, including the quantity of such resins (such as methylene diisocyanate these types of products? How much of releases and the media to which (MDI), vinyl acetate monomer (VAM), it is pressed wood product made with formaldehyde is released, during the and epichlorohydrin)). UF or other formaldehyde-based resins? manufacture of each type of pressed f. Emissions measurement and Do imported cabinets and other wood product. modeling. EPA is interested in furniture contain more or less pressed ii. EPA is interested in information on information on measuring formaldehyde wood than similar domestic products? any control technologies, such as on-site emissions from pressed wood products iii. What amount (square feet) of wastewater treatment, filtration systems, and modeling exposures to these pressed wood product will be installed or air pollution control devices (e.g., emissions. into a kitchen during both minor regenerative thermal oxidizers, i. What are the state of the art renovations (refacing kitchen biofilters, steam separation, scrubbers, methods for measuring formaldehyde countertops and cabinets) and extensive ionic liquid technology), used to releases from pressed wood products?

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For each method, EPA requests formaldehyde emissions from pressed section 6(a), TSCA section 6(c) requires information on method detection limits, wood products; the extent to which the Administrator to consider: sample preparation, and product substitute technologies are drop-in • The effects of such substance or representation. EPA is interested in the technologies (i.e., can be used with mixture on health and the magnitude of advantages and disadvantages of each existing equipment in a plant or require the exposure of human beings to such method as compared to other available modifications to existing equipment); substance or mixture. methods. the supply and demand elasticities for • The effects of such substance or ii. Are there any air monitoring data, markets potentially affected by action mixture on the environment and the other measured results, calculations, or on formaldehyde in pressed wood magnitude of the exposure of the verified/validated models that can be products, including the markets for environment to such substance or used for real life (in-home) exposure pressed wood, fabricated goods made mixture. analysis? EPA is also interested in from pressed wood (such as furniture, • The benefits of such substance or details as to the methods and doors, kitchen cabinets, etc.), and resins mixture for various uses and the approaches used in such studies. or adhesives used in pressed wood; and availability of substitutes for such uses. • g. Building-specific exposure information needed to assess the The reasonably ascertainable information. EPA is interested in benefits of controlling exposures to economic consequences of the rule, after exposure information that may be formaldehyde from pressed wood consideration of the effect on the specific to formaldehyde emissions from products (such as the magnitude of national economy, small business, pressed wood products installed in exposure, the dollar value of the health technological innovation, the various types of buildings, especially effects resulting from such exposures, environment, and public health. manufactured buildings or structures and the dollar value of any benefits not If EPA finds that there is a reasonable not regulated by HUD, such as park related to health endpoints, such as basis to conclude that one or more homes or trailers, travel trailers, reduced exposure to unwanted odors). activities presents an unreasonable risk, portable classrooms, and temporary TSCA section 6(a) provides EPA with office trailers. B. Regulatory Authorities and Voluntary the authority to: i. What types and amounts of pressed Options • Prohibit or limit manufacture, wood products are used in each such The previous Unit of this notice processing, or distribution in commerce; type of building or structure? • Prohibit or limit the manufacture, describes the assessments EPA is ii. What are the occupancy rates (e.g., processing, or distribution in commerce undertaking in order to make a number of people, days per year of of the chemical above a specified determination whether regulatory and/ occupancy), exposed population, time- concentration; or voluntary action is needed to address activity patterns, and air exchange rates • Require adequate warnings and risks that may be posed by of each such type of building or instructions with respect to use, formaldehyde emissions from pressed structure? distribution, or disposal; iii. What monitoring studies or other wood products. While EPA has not yet • Require recordkeeping, monitoring, exposure information are available for made this determination, EPA and testing to ensure compliance with formaldehyde emissions from pressed recognizes that stakeholders are likely to regulations promulgated under this wood products installed in these types have valuable insights into the tools section; of buildings or structures? available to address risks. EPA also • Prohibit or regulate any manner of 3. Economic analysis. As discussed in believes that it is most useful to obtain commercial use; Unit IV.B. of this document, EPA is these insights early in the investigation • Prohibit or regulate any manner of considering whether regulatory and/or process. This Unit briefly describes two disposal; or voluntary actions are necessary to of the regulatory authorities that EPA • Require manufacturers or processors address formaldehyde emissions from could use and requests comment on to give notice of the unreasonable risk pressed wood products. One of the each. This Unit also asks whether any of injury. options EPA plans to consider is other regulatory authorities should be TSCA section 6(a) also provides that whether it is appropriate to promulgate considered and seeks input on the the control measure or measures a rule under TSCA section 6(a). In possible use of voluntary approaches adopted must be the ‘‘least burdensome promulgating any rule under TSCA alone and in connection with regulatory requirements’’ that adequately protect section 6(a) with respect to a chemical approaches. EPA is particularly against the unreasonable risk. substance, TSCA section 6(c) requires interested in comment, information, and EPA requests comment on the use of the Administrator to consider (among data on the strengths and limitations of TSCA section 6(a) to regulate the other factors), the benefits of such all of the options available to EPA. manufacture, processing, distribution in substance or mixture for various uses Additional specific requests for commerce, commercial use, or disposal and the availability of substitutes for comment on each approach are of one or more pressed wood products such uses, and the reasonably included in the description of each that contain formaldehyde. EPA is ascertainable economic consequences of approach. particularly interested in comments on the rule, after consideration of the effect 1. TSCA section 6(a). In order to the strengths and weaknesses of the on the national economy, small promulgate a rule under TSCA section control measures that could be adopted business, technological innovation, the 6(a), the Administrator must find that under this section, such as emissions environment, and public health. ‘‘there is a reasonable basis to conclude limits or warning labels on pressed These considerations may be that the manufacture, processing, wood products. informative whether or not EPA distribution in commerce, use, or 2. TSCA section 6(b). TSCA section proceeds under TSCA section 6(a). disposal of a chemical substance or 6(b) specifically addresses quality Therefore, EPA requests information mixture * * * presents or will present control issues. EPA believes that TSCA that it can use in preparing an economic an unreasonable risk of injury to health section 6(b) is an available option for analysis. Such information includes the or the environment.’’ This finding addressing formaldehyde risks because cost and performance characteristics of cannot be made considering risk alone. the information available to EPA substitute technologies to control In promulgating any rule under TSCA suggests that formaldehyde emissions

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from some pressed wood products are effective authorities available to address develop, establish, or coordinate highly dependent upon the process used risks that may be presented by voluntary consensus standards using to manufacture the products. If EPA has formaldehyde emissions from pressed agreed-upon procedures. The NTTAA a reasonable basis to conclude that a wood products would be TSCA sections also encourages agencies to consult with particular manufacturer or processor is 6(a) and 6(b). A number of the voluntary consensus standards bodies making or producing a chemical commenters on the TSCA section 21 and participate in the development of substance in such a way that it presents petition appeared to support a national such standards when compatible with an unreasonable risk of injury to human emissions limit for pressed wood agency missions, authorities, priorities health or the environment, EPA may products, yet contended that an and budget resources. order the manufacturer or processor to ‘‘unreasonable risk’’ finding under Many of the commenters on the TSCA submit a description of its relevant TSCA section 6 was unjustified. EPA section 21 petition suggested that EPA quality control procedures. If EPA requests comment on other authorities work cooperatively with the affected determines that those quality control available to EPA that could be used to industries to develop national standards procedures are inadequate to prevent an impose a national emissions limit on for formaldehyde emissions from unreasonable risk, EPA may order the these products. EPA also requests pressed wood products. EPA believes manufacturer or processor to modify its comment on other authorities that could that voluntary initiatives can be useful quality control procedures to the extent be used in other ways to address risks tools in addressing risks to human necessary to remedy the inadequacy. If that may be presented by formaldehyde health and the environment, and EPA determines that a chemical which emissions from pressed wood products. voluntary initiatives may be important presents an unreasonable risk has been The TSCA section 21 petition components of a strategy to address the distributed, EPA may order the contained a request for EPA to apply the formaldehyde emissions that are the manufacturer or processor to notify its CARB ATCM to pressed wood products subject of this document. Indeed, there customers or the general public, or to used in manufactured housing. As already are voluntary consensus replace or repurchase the chemical as discussed in the Federal Register notice standards for formaldehyde emissions, necessary to protect health or the responding to the petition, HUD has such as the standards developed under environment or any combination of standards that apply to pressed wood the auspices of the American National these. Manufacturers and processors products in manufactured housing. Standards Institute (ANSI), and subject to a requirement to replace or Many petition commenters voluntary industry compliance repurchase must be offered the option to recommended that HUD continue to programs, such as the Composite Panel replace or repurchase, and EPA may exercise jurisdiction over manufactured Association’s Grademark program, that prescribe the procedures for doing so in housing. Some suggested that EPA refer address formaldehyde emissions from each case. Orders to revise procedures, the matter to HUD under TSCA section some pressed wood products. The to notify customers or the public, or 9. HUD itself commented on the petition Composite Panel Association (CPA), in replace or repurchase chemicals must be (Ref. 13), stating that it had received a comments on the petition, observed that issued after an opportunity for a hearing proposal to lower formaldehyde the CPA is accredited by ANSI as a in accordance with section 554 of the emissions limits from certain products standards developer (Ref. 14). The CPA Administrative Procedures Act (APA), used in the construction of further stated that, on June 3, 2008, the which provides procedural manufactured homes from the CPA Board of Directors ‘‘approved the requirements in cases where an Manufactured Housing Consensus insertion of the CARB Phase 1 and adjudication is required on the record Committee (MHCC), a Congressionally- Phase 2 formaldehyde emission limits’’ after an opportunity for a hearing. established Federal Advisory into the new versions of the ANSI EPA will evaluate whether it is Committee. In addition, according to standards for Particleboard (ANSI feasible to use TSCA section 6(b) to HUD, the MHCC recently received a A208.1) and for Medium Density address risks that may be posed by new proposal from the public to adopt Fiberboard (ANSI A208.2). While a formaldehyde emissions from one or the CARB ATCM standards. HUD stated consensus committee must still approve more pressed wood products. TSCA that it will work with the MHCC to these revised standards, the CPA notes section 6(b) is targeted towards review this new proposal. EPA plans to that, when they are finalized, purveyors controlling the manufacturing processes work collaboratively with HUD to of these products would be able to of individual manufacturers or address risks that may be presented reference these standards in their processors. As such, if EPA determines from formaldehyde emissions from ‘‘commercial dealings.’’ The Hardwood that emissions from pressed wood pressed wood products used in Plywood and Veneer Association products present or will present an manufactured housing. (HPVA) likewise noted that they were in unreasonable risk, it may not be feasible 4. Voluntary approaches. The the process of revising the ANSI-HPVA or possible to use TSCA section 6(b) to National Technology Transfer and national consensus standards for address all such risks. EPA requests Advancement Act (NTTAA) (Pub. L. hardwood plywood and engineered comment on the use of TSCA section 104–113, §12(d), 110 Stat. 775, 783 hardwood flooring and they were 6(b) in this manner. In addition, if EPA (1996)) directs federal agencies to use considering including the CARB ATCM were to take action under TSCA section voluntary consensus standards in their emission requirements (Ref. 15). 6(b) with respect to domestic regulatory activities unless to do so EPA would be interested in hearing manufacturers of pressed wood would be ‘‘inconsistent with applicable more details from affected industries as products, what could EPA do to control law or otherwise impractical.’’ to how voluntary national standards formaldehyde emissions from imported Voluntary consensus standards are could be developed and implemented. pressed wood products or finished technical standards, which include EPA is specifically interested in goods made from pressed wood materials specifications, test methods, comments that address the following products, such as furniture, cabinets, sampling protocols, business practices, questions: countertops, and flooring? and management systems developed or a. How could EPA encourage 3. Other regulatory authorities. Based adopted by voluntary consensus compliance with purely voluntary on a preliminary review of the available standards bodies, both domestic and standards, whether currently-existing or authorities, EPA believes that the most international. These bodies plan, newly-developed?

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b. How successful are the existing Responses to the 1998 EPA Information to consider human health or programs at reducing formaldehyde Collection Request (MACT Survey)— environmental effects on minority or exposures? How could the existing Engineered Wood Products. January 20, low-income populations pursuant to programs be modified to improve the 2000. Executive Order 12898, entitled results? Would a new voluntary 11. EPA, OAQPS. Memorandum from ‘‘Federal Actions to Address program be more successful at reducing K. Hanks, B. Threatt, and B. Nicholson, Environmental Justice in Minority formaldehyde exposures? MRI to M. Kissell, EPA/ESD. Summary Populations and Low-Income c. How would voluntary programs of Responses to the 1998 EPA Populations’’ (59 FR 7629, February 16, address imported products? Information Collection Request (MACT 1994). The Agency will consider such d. What role could regulatory Survey)—Hardwood Plywood and comments during the development of adoption (e.g., using TSCA section 6) of Veneer. May 19, 1999. any subsequent notice of proposed voluntary consensus standards for 12. Department of Agriculture, Forest rulemaking as it takes appropriate steps formaldehyde emissions play in EPA’s Service; Forest Products Laboratory. to address any applicable requirements. oversight of this issue? How would this Wood Handbook—Wood as an approach address imported products? Engineering Material. Gen. Tech. Rep. List of Subjects FPL–GTR–113 (1999). http:// Environmental protection, Housing, V. References www.fpl.fs.fed.us/documnts/fplgtr/ Toxic substances, Wood. 1. Agency for Toxic Substances and fplgtr113/fplgtr113.pdf Disease Registry. Toxicological Profile 13. Department of Housing and Urban Dated: November 25, 2008. for Formaldehyde. 1999. http:// Development, Office of Regulatory Stephen L. Johnson, www.atsdr.cdc.gov/toxprofiles/ Affairs and Manufactured Housing. Administrator. tp111.html (May 12, 2008). [FR Doc. E8–28585 Filed 12–2–08; 8:45 am] 2. EPA. Formaldehyde Emissions 14. Composite Panel Association. BILLING CODE 6560–50–S from Composite Wood Products; (May 12, 2008). Disposition of TSCA Section 21 15. Hardwood Plywood and Veneer Petition; Notice. Federal Register (73 FR Association. (May 12, 2008). ENVIRONMENTAL PROTECTION 36504, June 27, 2008). VI. Statutory and Executive Order AGENCY 3. EPA, Office of Research and Reviews Development. Formaldehyde. Integrated 40 CFR Parts 60, 61, and 63 Risk Information System. 1991. http:// Under Executive Order 12866, www.epa.gov/iris/links.htm entitled ‘‘Regulatory Planning and [EPA–HQ–OAR–2006–0640; FRL–8748–1] Review’’ (58 FR 51735, October 4, 1993), 4. EPA. National Emission Standards RIN 2060–AJ86 for Hazardous Air Pollutants: Plywood this action was submitted to the Office and Composite Wood Products; Final of Management and Budget (OMB) for Performance Specification and Quality Rule. Federal Register (72 FR 61060, review. Any changes to the document Assurance Requirements for October 29, 2007). http://www.epa.gov/ that were made in response to OMB Continuous Parameter Monitoring ttn/atw/plypart/fr29oc07.pdf comments received by EPA during that Systems and Amendments to 5. Sierra Club, 25 other organizations, review have been documented in the Standards of Performance for New and approximately 5,000 individuals. docket as required by the Executive Stationary Sources; National Emission Letter from Tom Neltner, Sierra Club, to Order. Standards for Hazardous Air Stephen Johnson, Administrator, Since this document does not impose Pollutants; and National Emission Environmental Protection Agency. Re: or propose any requirements, and Standards for Hazardous Air Pollutants Citizen Petition to EPA Regarding instead seeks comments and suggestions for Source Categories Formaldehyde in Wood Products. for the Agency to consider in possibly March 2008. developing a subsequent proposed rule, AGENCY: Environmental Protection 6. California Environmental the various other review requirements Agency (EPA). Protection Agency Air Resources Board. that apply when an agency imposes ACTION: Notice of extension of comment Airborne Toxic Control Measure to requirements do not apply to this period. Reduce Formaldehyde Emissions from action. Composite Wood Products. Final As part of your comments on this SUMMARY: EPA is announcing that the Regulation Order. April 2008. http:// document, you may include any comment period on the proposed rule www.arb.ca.gov/regact/2007/ comments or information that you have for Performance Specification 17, compwood07/compwood07.htm regarding this action. In particular, any ‘‘Specifications and Test Procedures for 7. Note to file. July 17, 2008. comments or information that would Continuous Parameter Monitoring 8. EPA, Office of Air Quality Planning help the Agency to assess the potential Systems at Stationary Sources’’ and and Standards (OAQPS). Background impact of a rule on small entities Procedure 4, ‘‘Quality Assurance Information Document for Proposed pursuant to the Regulatory Flexibility Requirements for Continuous Parameter Plywood and Composite Wood Products Act (RFA) (5 U.S.C. 601 et seq.); to Monitoring Systems at Stationary NESHAP. September, 2000. consider voluntary consensus standards Sources’’ published on October 9, 2008, 9. EPA, OAQPS. Memorandum from pursuant to section 12(d) of the National is extended to February 5, 2009. This D. Bullock, K. Hanks, and B. Nicholson, Technology Transfer and Advancement comment period extension also applies MRI to M. Kissell, EPA/ESD. Summary Act of 1995 (NTTAA), Public Law 104– to the amendments proposed along with of Responses to the 1998 EPA 113, section 12(d) (15 U.S.C. 272 note); Performance Specification 17 and Information Collection Request (MACT to consider environmental health or Procedure 4 for continuous parameter Survey) — General Survey. April 28, safety effects on children pursuant to monitoring systems. EPA received 2000. Executive Order 13045, entitled requests for an extension to the 10. EPA, OAQPS. Memorandum from ‘‘Protection of Children from comment period from the American K. Hanks and B. Threatt, MRI to M. Environmental Health Risks and Safety Chemistry Council and the Coalition for Kissell, EPA/ESD. Summary of Risks’’ (62 FR 19885, April 23, 1997); or Responsible Waste Incineration.

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The reason given for the request for protected through www.regulations.gov 59956). If you have any questions the extension was the need for or e-mail. The www.regulations.gov Web regarding the applicability of this action additional time to review the proposed site is an ‘‘anonymous access’’ system, to a particular entity, consult either the rules and assess their impact on subject which means EPA will not know your air permit authority for the entity or sources. Since the additional time is identity or contact information unless your EPA regional representative. expected to afford commenters the you provide it in the body of your ability to prepare and submit more comment. If you send an e-mail B. What should I consider as I prepare comprehensive and detailed comments, comment directly to EPA without going my comments to EPA? EPA finds the requests for an extension through www.regulations.gov, your e- Do not submit information containing of the comment period reasonable. mail address will be automatically CBI to EPA through One commenter also requested a 60- captured and included as part of the day extension to the deadline for comment that is placed in the public www.regulations.gov or e-mail. Send or requesting a public hearing on the docket and made available on the deliver information identified as CBI proposed rule. No specific, compelling Internet. only to the following address: Roberto reason was provided for granting this If you submit an electronic comment, Morales, OAQPS Document Control request; therefore EPA finds the request EPA recommends that you include your Officer (C404–02), Office of Air Quality for extending the deadline for name and other contact information in Planning and Standards, Environmental requesting a public hearing on the the body of your comment and with any Protection Agency, Research Triangle proposal not reasonable. disk or CD–ROM you submit. If EPA Park, NC 27711, Attention Docket ID DATES: Comments: Comments on the cannot read your comment due to No. EPA–HQ–OAR–2006–0640. Clearly proposed rule must be received on or technical difficulties and cannot contact mark the part or all of the information before February 5, 2009. you for clarification, EPA may not be that you claim to be CBI. For CBI ADDRESSES: Submit your comments, able to consider your comment. information in a disk or CD–ROM that identified by Docket ID No. EPA–HQ– Electronic files should avoid the use of you mail to EPA, mark the outside of the OAR–2006–0640, by one of the special characters, any form of disk or CD–ROM as CBI and then following methods: encryption, and be free of any defects or identify electronically within the disk or • www.regulations.gov: Follow the viruses. CD–ROM the specific information that on-line instructions for submitting Docket: All documents in the docket is claimed as CBI. In addition to one comments. are listed in the www.regulations.gov complete version of the comment that • E-mail: [email protected], index. Although listed in the index, includes information claimed as CBI, a some information is not publicly Attention Docket ID No. EPA–HQ– copy of the comment that does not available, e.g., CBI or other information OAR–2006–0640. contain the information claimed as CBI whose disclosure is restricted by statute. • Fax: (202) 566–9744, Attention must be submitted for inclusion in the Docket ID No. EPA–HQ–OAR–2006– Certain other material, such as copyrighted material, will be publicly public docket. Information so marked 0640. will not be disclosed except in • Mail: Air and Radiation Docket and available only in hard copy. Publicly available docket materials are available accordance with procedures set forth in Information Center, Environmental 40 CFR part 2. Protection Agency, Mailcode: 6102T, either electronically in 1200 Pennsylvania Ave., NW., www.regulations.gov or in hard copy at C. Where can I get a copy of this Washington, DC 20460, Attention the EPA Docket Center, Performance document? Docket ID No. EPA–HQ–OAR–2006– Specification 17 and Procedure 4 for 0640. Please include a total of two Continuous Parameter Monitoring In addition to being available in the copies. Systems Docket, EPA West, Room 3334, docket, an electronic copy of this notice • Hand Delivery or Courier: EPA 1301 Constitution Ave., NW., is available on the Worldwide Web Docket Center (6102T), 1301 Washington, DC. The Public Reading (WWW) through the Technology Constitution Avenue, NW., Room 3334, Room is open from 8:30 a.m. to 4:30 Transfer Network (TTN). Following Washington, DC 20460, Attention p.m., Monday through Friday, excluding signature, a copy of this action will be Docket ID No. EPA–HQ–OAR–2006– legal holidays. The telephone number posted on the TTN’s policy and 0640. Such deliveries are only accepted for the Public Reading Room is (202) guidance page for newly proposed or during the Docket’s normal hours of 566–1744, and the telephone number for promulgated rules at http:// operation, and special arrangements the Air Docket is (202) 566–1742. www.epa.gov/ttn/oarpg. The TTN should be made for deliveries of boxed FOR FURTHER INFORMATION CONTACT: Mr. provides information and technology information. Please include a total of Barrett Parker, Sector Policies and exchange in various areas of air two copies. Programs Division, Office of Air Quality pollution control. Instructions: Direct your comments to Planning and Standards (D243–05), Docket ID No. EPA–HQ–OAR–2006– Environmental Protection Agency, Dated: November 26, 2008. 0640. EPA’s policy is that all comments Research Triangle Park, North Carolina Robert J. Meyers, received will be included in the public 27711, telephone number: (919) 541– Principal Deputy Assistant Administrator for docket without change and may be 5635; e-mail address: Air and Radiation. made available online at [email protected]. [FR Doc. E8–28677 Filed 12–2–08; 8:45 am] www.regulations.gov, including any SUPPLEMENTARY INFORMATION: BILLING CODE 6560–50–P personal information provided, unless the comment includes information A. Does this action apply to me? claimed to be Confidential Business To determine whether your facility, Information (CBI) or other information company, business, organization, etc., is whose disclosure is restricted by statute. potentially affected by this action, you Do not submit information that you should examine the proposed rule consider to be CBI or otherwise published on October 9, 2008 (73 FR

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ENVIRONMENTAL PROTECTION 0009. EPA’s policy is that all comments Policies and Programs Division, Natural AGENCY received will be included in the public Resources and Commerce Group (E143– docket without change and may be 03), U.S. Environmental Protection 40 CFR Part 63 made available on-line at http:// Agency, Research Triangle Park, NC [EPA–HQ–OAR–2002–0009; FRL–8747–9] www.regulations.gov, including any 27711; telephone number: (919) 541– personal information provided, unless 2363; fax number: (919) 541–3470; and RIN 2060–AP07 the comment includes information e-mail address: [email protected]. claimed to be Confidential Business SUPPLEMENTARY INFORMATION: National Emission Standards for Information (CBI) or other information Halogenated Solvent Cleaning I. General Information whose disclosure is restricted by statute. AGENCY: Environmental Protection Do not submit information that you A. This notice extends the public Agency (EPA) consider to be CBI or otherwise comment period on our proposed ACTION: Notice of extension of comment protected through www.regulations.gov response to a Petition for period. or e-mail. The www.regulations.gov Web Reconsideration (73 FR 62384, October site is an ‘‘anonymous access’’ system, 20, 2008) regarding a final rule we SUMMARY: The EPA is announcing an which means EPA will not know your issued under Section 112(f)(2) and extension of the public comment period identity or contact information unless 112(d)(6) of the Clean Air Act related to on our proposed response to a Petition you provide it in the body of your national emission standards for for Reconsideration regarding a final comment. If you send an e-mail halogenated solvent cleaning. As rule we issued under Section 112(f)(2) comment directly to EPA without going published in the Federal Register on and 112(d)(6) of the Clean Air Act through http://www.regulations.gov, October 20, 2008, written comments on related to national emission standards your e-mail address will be the proposed rule were to be submitted for halogenated solvent cleaning. As automatically captured and included as by December 4, 2008. On November 4, published in the Federal Register on part of the comment that is placed in the 2008, we received a request to extend October 20, 2008, written comments on public docket and made available on the the deadline for the public comment the proposed rule were to be submitted Internet. If you submit an electronic period to February 4, 2009. In response by December 4, 2008. On November 4, comment, EPA recommends that you to this request, we are extending the 2008, EPA received a timely request to include your name and other contact comment period that would end on extend the deadline for the public information in the body of your December 4, 2008 to February 4, 2009. comment period on the proposed rule to comment and with any disk or CD–ROM B. What should I consider as I prepare February 4, 2009. In response to this you submit. If EPA cannot read your my comments for EPA? 1. Submitting CBI. Do not submit CBI request, EPA is extending the comment comment due to technical difficulties information to EPA through period that would end on December 4, and cannot contact you for clarification, www.regulations.gov or e-mail. Clearly 2008, to February 4, 2009. EPA may not be able to consider your mark the part or all of the information DATES: Comments. Comments must be comment. Electronic files should avoid that you claim to be CBI. For CBI received on or before February 4, 2009. the use of special characters, any form information in a disk or CD–ROM that ADDRESSES: Submit your comments, of encryption, and be free of any defects you mail to EPA, mark the outside of the identified by Docket ID No. EPA–HQ– or viruses. For additional instructions OAR–2002–0009, by one of the disk or CD–ROM as CBI and then on submitting comments, go to the identify electronically within the disk or following methods: SUPPLEMENTARY INFORMATION section of • http://www.regulations.gov. Follow CD–ROM the specific information that this document. is claimed as CBI. In addition to one the on-line instructions for submitting Docket: All documents in the docket comments. complete version of the comment that • are listed in the www.regulations.gov includes information claimed as CBI, a E-mail: [email protected]. index. Although listed in the index, • Fax: (202) 566–1741. copy of the comment that does not • Mail: Air and Radiation Docket, some information is not publicly contain the information claimed as CBI EPA, Mailcode: 6102T, 1200 available, e.g., CBI or other information must be submitted for inclusion in the Pennsylvania Ave., NW., Washington, whose disclosure is restricted by statute. public docket. Information so marked DC 20460. Please include a duplicate Certain other material, such as will not be disclosed except in copy, if possible. We request that a copyrighted material, will be publicly accordance with procedures set forth in separate copy of each public comment available only in hard copy. Publicly 40 CFR part 2. Send or deliver also be sent to the contact person listed available docket materials are available information identified as CBI only to the either electronically in below (see FOR FURTHER INFORMATION following address: Mr. Roberto Morales, CONTACT). www.regulations.gov or in hard copy at OAQPS Document Control Officer • Hand Delivery: In person or by the EPA Docket Center, Docket ID No. (C404–02), U.S. Environmental courier, deliver comments to: EPA EPA–HQ–OAR–2002–0009, EPA West Protection Agency, Office of Air Quality Docket Center (2822T), EPA West Building, Room 3334, 1301 Constitution Planning and Standards, Research Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Triangle Park, NC 27711, Attention Ave., NW., Washington, DC 20004. Such Reading Room is open from 8:30 a.m. to Docket ID No. EPA–HQ–OAR–2002– deliveries are only accepted during the 4:30 p.m., Monday through Friday, 0009. Docket’s normal hours of operation and excluding legal holidays. The telephone 2. Tips for Preparing Your Comments. special arrangements should be made number for the Public Reading Room is When submitting comments, remember for deliveries of boxed information. We (202) 566–1744, and the telephone to: request that a separate copy of each number for the Air and Radiation • Identify the rulemaking by docket public comment also be sent to the Docket is (202) 566–1742. number and other identifying contact person listed below (see FOR FOR FURTHER INFORMATION CONTACT: For information (subject heading, Federal FURTHER INFORMATION CONTACT). questions about this proposed action, Register date and page number). Instructions: Direct your comments to contact Mr. H. Lynn Dail, Office of Air • Follow Directions—EPA may ask Docket ID No. EPA–HQ–OAR–2002– Quality Planning and Standards, Sector you to respond to specific questions or

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organize comments by referencing the Facility’s normal hours of operation FOR FURTHER INFORMATION CONTACT: relevant part or section number. (8:30 a.m. to 4 p.m., Monday through Susan Stanton, Registration Division • Explain why you agree or disagree: Friday, excluding legal holidays). (7505P), Office of Pesticide Programs, Suggest alternatives and substitute Special arrangements should be made Environmental Protection Agency, 1200 language. for deliveries of boxed information. The Pennsylvania Ave, NW., Washington, • Describe any assumptions and Docket Facility telephone number is DC 20460–0001; telephone number: provide any technical information and/ (703) 305–5805. (703) 305–5218; e-mail address: or data that you used. Instructions: Direct your comments to [email protected]. • docket ID number EPA–HQ–OPP–2007– If you estimate potential costs or SUPPLEMENTARY INFORMATION: burdens, explain how you arrived at 1106. EPA’s policy is that all comments your estimate in sufficient detail to received will be included in the docket I. General Information without change and may be made allow for it to be reproduced. A. Does this Action Apply to Me? • Provide specific examples to available on-line at http:// illustrate your concerns, and suggest www.regulations.gov, including any You may be potentially affected by alternatives. personal information provided, unless this action if you are an agricultural • Explain your views as clearly as the comment includes information producer, food manufacturer, or possible, avoiding the use of profanity claimed to be Confidential Business pesticide manufacturer. Potentially or personal threats. Information (CBI) or other information affected entities may include, but are • Make sure to submit your whose disclosure is restricted by statute. not limited to: • comments by the comment period Do not submit information that you Crop production (NAICS code 111). • deadline identified. consider to be CBI or otherwise Animal production (NAICS code protected through regulations.gov or e- 112). Dated: November 26, 2008. mail. The regulations.gov website is an • Food manufacturing (NAICS code Robert J. Meyers, ‘‘anonymous access’’ system, which 311). Principal Deputy Assistant Administrator for means EPA will not know your identity • Pesticide manufacturing (NAICS Air and Radiation. or contact information unless you code 32532). [FR Doc. E8–28675 Filed 12–2–08; 8:45 am] provide it in the body of your comment. This listing is not intended to be BILLING CODE 6560–50–P If you send an e-mail comment directly exhaustive, but rather provides a guide to EPA without going through for readers regarding entities likely to be regulations.gov, your e-mail address affected by this action. Other types of ENVIRONMENTAL PROTECTION will be automatically captured and entities not listed in this unit could also AGENCY included as part of the comment that is be affected. The North American placed in the docket and made available Industrial Classification System 40 CFR Part 180 on the Internet. If you submit an (NAICS) codes have been provided to [EPA–HQ–OPP–2007–1106; FRL–8390–1] electronic comment, EPA recommends assist you and others in determining that you include your name and other whether this action might apply to Chlorothalonil; Proposed Pesticide contact information in the body of your certain entities. If you have any Tolerance comment and with any disk or CD-ROM questions regarding the applicability of this action to a particular entity, consult AGENCY: Environmental Protection you submit. If EPA cannot read your the person listed under FOR FURTHER Agency (EPA). comment due to technical difficulties and cannot contact you for clarification, INFORMATION CONTACT. ACTION: Proposed rule. EPA may not be able to consider your B. What Should I Consider as I Prepare SUMMARY: This document proposes to comment. Electronic files should avoid My Comments for EPA? establish tolerances for combined the use of special characters, any form 1. Submitting CBI. Do not submit this residues of chlorothalonil and its 4- of encryption, and be free of any defects information to EPA through hydroxy metabolite in or on lychee and or viruses. Docket: All documents in the docket regulations.gov or e-mail. Clearly mark starfruit under the Federal Food, Drug, are listed in the docket index available the part or all of the information that and Cosmetic Act (FFDCA). at http://www.regulations.gov. Although you claim to be CBI. For CBI DATES: Comments must be received on listed in the index, some information is information in a disk or CD-ROM that or before February 2, 2009. not publicly available, e.g., CBI or other you mail to EPA, mark the outside of the ADDRESSES: Submit your comments, information whose disclosure is disk or CD-ROM as CBI and then identified by docket identification (ID) restricted by statute. Certain other identify electronically within the disk or number EPA–HQ–OPP–2007–1106, by material, such as copyrighted material, CD-ROM the specific information that is one of the following methods: is not placed on the Internet and will be claimed as CBI. In addition to one • Federal eRulemaking Portal: http:// publicly available only in hard copy complete version of the comment that www.regulations.gov. Follow the on-line form. Publicly available docket includes information claimed as CBI, a instructions for submitting comments. materials are available either in the copy of the comment that does not • Mail: Office of Pesticide Programs electronic docket at http:// contain the information claimed as CBI (OPP) Regulatory Public Docket (7502P), www.regulations.gov, or, if only must be submitted for inclusion in the Environmental Protection Agency, 1200 available in hard copy, at the OPP public docket. Information so marked Pennsylvania Ave., NW., Washington, Regulatory Public Docket in Rm. S– will not be disclosed except in DC 20460–0001. 4400, One Potomac Yard (South Bldg.), accordance with procedures set forth in • Delivery: OPP Regulatory Public 2777 S. Crystal Dr., Arlington, VA. The 40 CFR part 2. Docket (7502P), Environmental hours of operation of this Docket 2. Tips for preparing your comments. Protection Agency, Rm. S–4400, One Facility are from 8:30 a.m. to 4 p.m., When submitting comments, remember Potomac Yard (South Bldg.), 2777 S. Monday through Friday, excluding legal to: Crystal Dr., Arlington, VA. Deliveries holidays. The Docket Facility telephone i. Identify the document by docket ID are only accepted during the Docket number is (703) 305–5805. number and other identifying

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information (subject heading, Federal reasonable certainty that no harm will There are two toxicology data sets, Register date and page number). result to infants and children from submitted by different basic registrants, ii. Follow directions. The Agency may aggregate exposure to the pesticide available for chlorothalonil. There was ask you to respond to specific questions chemical residue. * * *’’ no indication of a carcinogenic response or organize comments by referencing a Consistent with section 408(b)(2)(D) in the rat chronic toxicity/ Code of Federal Regulations (CFR) part of FFDCA, and the factors specified in carcinogenicity study from the newer or section number. section 408(b)(2)(D) of FFDCA, EPA has data set; however, an increased iii. Explain why you agree or disagree; reviewed the available scientific data incidence of renal adenomas and suggest alternatives and substitute and other relevant information in carcinomas and an increased incidence language for your requested changes. support of this action. EPA has of papillomas and/or carcinomas of the iv. Describe any assumptions and sufficient data to assess the hazards of forestomach were observed in both provide any technical information and/ and to make a determination on sexes of rats and mice with the older or data that you used. aggregate exposure for tolerances for data set. The new carcinogenicity study v. If you estimate potential costs or combined residues of chlorothalonil and in mice also demonstrates that burdens, explain how you arrived at its 4-hydroxy metabolite on lychee at 15 chlorothalonil produces similar your estimate in sufficient detail to ppm and starfruit at 3.0 ppm. EPA’s papillomas of the forestomach. Based on allow for it to be reproduced. assessment of exposures and risks the increased incidence of renal vi. Provide specific examples to associated with establishing these adenomas and carcinomas observed in illustrate your concerns and suggest tolerances follows: both sexes of rats and mice, the rarity alternatives. of the tumor response in the kidney, and vii. Explain your views as clearly as A. Toxicological Profile the increased incidence of papillomas possible, avoiding the use of profanity EPA has evaluated the available and/or carcinomas of the forestomach in or personal threats. toxicity data and considered its validity, rats and mice, EPA classified viii. Make sure to submit your completeness, and reliability as well as chlorothalonil as a ‘‘likely’’ human comments by the comment period the relationship of the results of the carcinogen by all routes of exposure. deadline identified. studies to human risk. EPA has also Several studies are available that II. Background considered available information address the mechanism of EPA on its own initiative, under concerning the variability of the carcinogenicity of chlorothalonil. Based section 408(e) of FFDCA, 21 U.S.C. sensitivities of major identifiable on the mechanistic data submitted for 346a(e), is proposing to establish subgroups of consumers, including the kidney tumor response tolerances for combined residues of the infants and children. demonstrating a toxic response of the fungicide, chlorothalonil, Chlorothalonil has low acute toxicity kidney and forestomach to repeated tetrachloroisophthalonitrile, and its by the oral and dermal routes of dietary administration of chlorothalonil, metabolite, 4-hydroxy-2,5,6- exposure and is moderately toxic by the the mode of action for tumor induction trichloroisophthalonitrile, in or on inhalation route. It is severely irritating of chlorothalonil is likely to be non- lychee at 15 parts per million (ppm) and to the eye and moderately irritating to linear. With regard to the forestomach starfruit at 3.0 ppm. The United States the skin but is not a skin sensitizer. tumors, data submitted by the registrant Department of Agriculture (USDA) Chlorothalonil causes gastric irritation showing cell proliferation and non- requested that EPA establish these upon ingestion. In a subchronic dog neoplastic pathology at doses near those tolerances. Because USDA did not study, both males and females exhibited producing a tumorigenic response also submit a petition in support of decreased body weights, body-weight support a non-linear mode of action for establishing these tolerances, EPA did gains and food consumption. In a chlorothalonil. Based on the weight of not publish a Notice of Filing of a chronic dog study, there was one death the evidence presented to the Agency, petition for these tolerances. (female), decreased body-weight gain EPA has concluded that a non-linear and food consumption, macroscopic risk assessment using a Margin of III. Aggregate Risk Assessment and and microscopic pathological findings Exposure (MOE) approach is Determination of Safety in the stomach (including thickened appropriate for chlorothalonil. Section 408(b)(2)(A)(i) of FFDCA appearance of the stomach and intra- No developmental toxicity was allows EPA to establish a tolerance (the epithelial nuclear pyknosis in the observed in two rat developmental legal limit for a pesticide chemical mucosal epithelium of the antrum of the toxicity studies or in one of the two residue in or on a food) only if EPA stomach) and a very slight hypertrophy rabbit developmental toxicity studies determines that the tolerance is ‘‘safe.’’ of the cells in the zona fasciculata of the available for chlorothalonil. In the other Section 408(b)(2)(A)(ii) of FFDCA adrenal glands. In a second chronic dog rabbit study, there was an increased defines ‘‘safe’’ to mean that ‘‘there is a study, vacuolated epithelium of the incidence of thirteen ribs and reduced reasonable certainty that no harm will kidney was observed. In a subchronic sternebrae in the absence of maternal result from aggregate exposure to the mouse study, chlorothalonil produced toxicity. There was no evidence of pesticide chemical residue, including hyperplasia and hyperkeratosis of the reproductive toxicity in either rat all anticipated dietary exposures and all squamous epithelium of the stomach. In reproduction study available for other exposures for which there is a subchronic rat study, chlorothalonil chlorothalonil. reliable information.’’ This includes increased relative kidney weights and There is no evidence that exposure through drinking water and in produced dilated renal medullary chlorothalonil causes neurotoxicity. residential settings, but does not include tubules as well as hyperplasia and There was no evidence of occupational exposure. Section hyperkeratosis of the non-glandular area neuropathology, and there were no 408(b)(2)(C) of FFDCA requires EPA to of the stomach. In rodent chronic central nervous system (CNS) give special consideration to exposure toxicity studies, there was an increased malformations, effects on brain weights, of infants and children to the pesticide incidence of epithelial hyperplasia of abnormal behavior or effects on chemical residue in establishing a the limiting ridge and non-glandular offspring sexual maturation observed in tolerance and to ‘‘ensure that there is a region of the stomach in rats and mice. the toxicity studies available for

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chlorothalonil, including a subchronic used in conjunction with the POD to quantitative acute dietary exposure neurotoxicity study in rats. take into account uncertainties inherent assessment is unnecessary. In a 90–day oral toxicity study in rats, in the extrapolation from laboratory ii. Chronic exposure. In conducting a slight decrease in thymus weight was animal data to humans and in the the chronic dietary exposure assessment observed at the highest dose tested variations in sensitivity among members EPA used the food consumption data (HDT), a possible indication of of the human population as well as from the USDA 1994–1996 and 1998 immunotoxicity. However, since there other unknowns. Safety is assessed for Nationwide Continuing Surveys of Food were no histopathological findings acute and chronic dietary risks by Intakes by Individuals (CSFII). As to noted in the thymus and no effects on comparing aggregate food and water residue levels in food, EPA assumed the thymus observed in other exposure to the pesticide to the acute 100% crop treated, tolerance-level subchronic or chronic/carcinogenicity population adjusted dose (aPAD) and residues and default processing factors studies in rats, EPA has concluded that chronic population adjusted dose for all foods except tomatoes (average the slight effect on thymus weight seen (cPAD). The aPAD and cPAD are field-trial residues and empirical in this study is a spurious effect and not calculated by dividing the POD by all processing factors used), peppers indicative of immunotoxicity. applicable UFs. Aggregate short-term, (average field-trial residues used) and 4-hydroxy-2,5,6- intermediate-term, and chronic-term snap beans (average field-trial residues trichloroisophthalonitrile is a major risks are evaluated by comparing food, used). metabolite of chlorothalonil in plants water, and residential exposure to the iii. Cancer. Because chlorothalonil’s and the predominant residue in POD to ensure that the margin of cancer effects are the result of chronic animals. Toxicology data available for exposure (MOE) called for by the exposure, EPA is using the chronic this metabolite include acute oral and product of all applicable UFs is not exposure assessment to assess subchronic toxicity studies in rats, exceeded. This latter value is referred to chlorothalonil’s cancer risk. developmental toxicity studies in rats as the Level of Concern (LOC). iv. Anticipated residue information. and rabbits, a reproduction toxicity For non-threshold risks, the Agency Section 408(b)(2)(E) of FFDCA study in rats, a chronic toxicity study in assumes that any amount of exposure authorizes EPA to use available data and dogs and chronic/carcinogenicity will lead to some degree of risk. Thus, information on the anticipated residue studies in rats and mice. The results of the Agency estimates risk in terms of the levels of pesticide residues in food and these studies indicate that the toxicity of probability of an occurrence of the the actual levels of pesticide residues the 4-hydroxy metabolite is similar to adverse effect greater than that expected that have been measured in food. If EPA that of parent chlorothalonil. Based on in a lifetime. For more information on relies on such information, EPA must this determination, EPA has concluded the general principles EPA uses in risk require pursuant to FFDCA section that the chlorothalonil risk assessment characterization and a complete 408(f)(1) that data be provided 5 years adequately accounts for potential description of the risk assessment after the tolerance is established, toxicity resulting from exposure to 4- process, see http://www.epa.gov/ modified, or left in effect, demonstrating hydroxy chlorothalonil, and a separate pesticides/factsheets/riskassess.htm. that the levels in food are not above the risk assessment is not needed. A summary of the toxicological levels anticipated. For the present Specific information on the studies endpoints for chlorothalonil used for action, EPA will issue such data call-ins received and the nature of the adverse human risk assessment can be found at as are required by FFDCA section effects caused by chlorothalonil and 4- http://www.regulations.gov in the 408(b)(2)(E) and authorized under hydroxy chlorothalonil, as well as the document Chlorothalonil. Petition For FFDCA section 408(f)(1). Data will be no-observed-adverse-effect-level Tolerances on Brassica Head and Stem required to be submitted no later than (NOAEL) and the lowest-observed- Subgroup 5A, Cucurbit Vegetable Group 5 years from the date of issuance of adverse-effect-level (LOAEL) from the 9, Fruiting Vegetable Group 8, Ginseng, these tolerances. toxicity studies can be found at http:// Horseradish, Lentil, Lupin, Okra, 2. Dietary exposure from drinking www.regulations.gov in the document Persimmon, Rhubarb, Yam, Lychee, and water. The residues of concern in Chlorothalonil. Petition For Tolerances Starfruit. Human-Health Risk drinking water include parent on Brassica Head and Stem Subgroup Assessment, page 36 in docket ID chlorothalonil and its 4-hydroxy 5A, Cucurbit Vegetable Group 9, number EPA–HQ–OPP–2007–1106. metabolite. The Agency used screening Fruiting Vegetable Group 8, Ginseng, level water exposure models in the Horseradish, Lentil, Lupin, Okra, C. Exposure Assessment dietary exposure analysis and risk Persimmon, Rhubarb, Yam, Lychee, and 1. Dietary exposure from food and assessment for chlorothalonil and 4- Starfruit. Human-Health Risk feed uses. In evaluating dietary hydroxy chlorothalonil in drinking Assessment, page 15 in docket ID exposure to chlorothalonil and its 4- water. These simulation models take number EPA–HQ–OPP–2007–1106. hydroxy metabolite, EPA considered into account data on the physical, exposure under the proposed tolerances chemical, and fate/transport B. Toxicological Endpoints as well as all existing chlorothalonil characteristics of chlorothalonil and 4- For hazards that have a threshold tolerances in 40 CFR 180.275. EPA hydroxy chlorothalonil. Further below which there is no appreciable assessed dietary exposures from information regarding EPA drinking risk, a toxicological point of departure chlorothalonil and its metabolite in food water models used in pesticide (POD) is identified as the basis for as follows: exposure assessment can be found at derivation of reference values for risk i. Acute exposure. Quantitative acute http://www.epa.gov/oppefed1/models/ assessment. The POD may be defined as dietary exposure and risk assessments water/index.htm. the NOAEL in the toxicology study are performed for a food-use pesticide, Based on the Pesticide Root Zone identified as appropriate for use in risk if a toxicological study has indicated the Model/Exposure Analysis Modeling assessment. However, if a NOAEL possibility of an effect of concern System (PRZM/EXAMS) and Screening cannot be determined, the LOAEL or a occurring as a result of a 1–day or single Concentration in Ground Water (SCI- Benchmark Dose (BMD) approach is exposure. No such effects were GROW) models, the estimated drinking sometimes used for risk assessment. identified in the toxicological studies water concentrations (EDWCs) of Uncertainty/safety factors (UFs) are for chlorothalonil; therefore, a chlorothalonil and its 4-hydroxy

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metabolite for chronic exposures are is a very loose classification of studies in rabbits. In the newer of the estimated to be 68.2 parts per billion compounds related only in being two rabbit studies, there was a slight (ppb) for surface water and 3.2 ppb for polychlorinated and acting as increase in the incidence of two ground water. fungicides. Available data do not variations (13th rib and reduced Modeled estimates of drinking water support a finding for a common sternebrae) in fetuses in the high-dose concentrations were directly entered mechanism of toxicity for chlorothalonil group. No maternal effects occurred at into the dietary exposure model. For and the other pesticides in the any dose in this study. EPA’s concern chronic dietary risk assessment, the polychlorinated fungicide class. for this equivocal evidence of water concentration of value 68.2 ppb Chlorothalonil produces renal (kidney) quantitative susceptibility is low, and was used to assess the contribution from tubular adenomas and carcinomas and there are no residual uncertainties with drinking water. papillomas of the stomach in rats. regard to prenatal and postnatal 3. From non-dietary exposure. The Chlorothalonil also produces gastric susceptability, for the following reasons: term ‘‘residential exposure’’ is used in lesions and kidney toxicity due to The variations were only observed in this document to refer to non- perturbation of mitochondrial one of the two developmental toxicity occupational, non-dietary exposure respiration. The other pesticides in the studies conducted in the same strain of (e.g., for lawn and garden pest control, class do not have the same toxic effects rabbit at the same dose levels; these indoor pest control, termiticides, and and do not have the same mode of variations are known to occur flea and tick control on pets). action. For the purposes of this spontaneously within this strain (New Chlorothalonil is currently registered tolerance action, therefore, EPA has Zealand White) of rabbit, as evidenced for the following uses that could result assumed that chlorothalonil does not by the fact that the concurrent controls in residential exposures: As a fungicide have a common mechanism of toxicity had high incidences of both variations; on golf courses and as a preservative in with other substances. For information and there is a well-defined NOAEL for paints. EPA assessed residential regarding EPA’s efforts to determine the study that is protective of these exposure using the following which chemicals have a common effects. assumptions: There is potential for mechanism of toxicity and to evaluate 3. Conclusion. EPA has determined short-term or intermediate-term dermal the cumulative effects of such that reliable data show the safety of exposure of adults and children on golf chemicals, see EPA’s website at http:// infants and children would be courses that have been treated with www.epa.gov/pesticides/cumulative. adequately protected if the FQPA SF chlorothalonil. There is also potential were reduced to 1X. That decision is for short-term/intermediate-term dermal D. Safety Factor for Infants and based on the following findings: and inhalation exposure of handlers of Children i. The toxicity database for paints containing chlorothalonil and 1. In general. Section 408(b)(2)(c) of chlorothalonil is complete, except for potential for short-term/intermediate- FFDCA provides that EPA shall apply acute neurotoxicity and immunotoxicity term postapplication dermal exposure of an additional tenfold (10X) margin of studies, and EPA has determined that an adults, as well as short-/intermediate- safety for infants and children in the additional uncertainty factor is not term postapplication dermal and case of threshold effects to account for required to account for potential episodic incidental oral exposures of prenatal and postnatal toxicity and the neurotoxicity or immunotoxicity. The children from the use of chlorothalonil- completeness of the database on toxicity reasons for this determination are treated paints in residential buildings. and exposure unless EPA determines explained as follows: Postapplication inhalation exposures to based on reliable data that a different a. EPA began requiring functional chlorothalonil on treated golf courses margin of safety will be safe for infants immunotoxicity testing of all food and and in buildings from treated paint are and children. This additional margin of non-food use pesticides on December expected to be negligible, and the safety is commonly referred to as the 26, 2007. Since this requirement went Agency has not identified a hazard of FQPA safety factor (SF). In applying this into effect after the tolerance petition concern for short-term or intermediate- provision, EPA either retains the default was submitted, these studies are not yet term dermal exposures; therefore, EPA value of 10X, or uses a different available for chlorothalonil. In the assessed only short-term and additional safety factor when reliable absence of specific immunotoxicity intermediate-term inhalation exposures data available to EPA support the choice studies, EPA has evaluated the available of handlers using chlorothalonil-treated of a different factor. chlorothalonil toxicity data to determine paints and episodic postapplication 2. Prenatal and postnatal sensitivity. whether an additional database incidental oral exposures of children The prenatal and postnatal toxicity uncertainty factor is needed to account from the use of chlorothalonil-treated database for chlorothalonil includes rat for potential immunotoxicity. In a 90– paints in residential buildings. and rabbit developmental toxicity day oral toxicity study in rats, a slight 4. Cumulative effects from substances studies (two of each) and two decrease in thymus weight was with a common mechanism of toxicity. reproduction toxicity studies in rats, as observed at the HDT, a possible Section 408(b)(2)(D)(v) of FFDCA well as a subchronic neurotoxicity study indication of immunotoxicity. However, requires that, when considering whether in rats. In addition, there are since there were no histopathological to establish, modify, or revoke a developmental toxicity studies in rats findings noted in the thymus and no tolerance, the Agency consider and rabbits and reproduction toxicity effects on the thymus observed in other ‘‘available information’’ concerning the studies in rats available for the 4- subchronic or chronic/carcinogenicity cumulative effects of a particular hydroxy metabolite as well as the major studies in rats, EPA has concluded that pesticide’s residues and‘‘ other soil degradate, SDS–46851. the slight effect on thymus weight seen substances that have a common There was no evidence of increased in this study is a spurious effect and not mechanism of toxicity.’’ qualitative or quantitative susceptibility indicative of immunotoxicity. Due to Chlorothalonil is a polychlorinated of fetuses or offspring in any of the the lack of evidence of immunotoxicity fungicide. Other members of this class submitted developmental or for chlorothalonil, EPA does not believe include hexachlorobenzene (HCB), reproduction studies for chlorothalonil that conducting immunotoxicity testing pentachlorophenol (PCP) and or its metabolites, except in one of the will result in a NOAEL less than the pentachloronitrobenzene (PCNB). This chlorothalonil developmental toxicity NOAEL of 2 milligrams/kilogram/day

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(mg/kg/day) already established for and no acute dietary endpoint was The estimated incidental oral MOE for chlorothalonil, and an additional factor selected. Therefore, chlorothalonil is not children is 1,200. Ingestion of paint (UFDB) for database uncertainties is not expected to pose an acute risk. chips is considered to be an episodic, needed to account for potential 2. Chronic risk. Using the exposure rather than a routine behavior; therefore, immunotoxicity. assumptions described in this unit for EPA has determined that it is not b. Acute neurotoxicity testing is also chronic exposure, EPA has concluded appropriate to aggregate incidental oral required as a result of changes made to that chronic exposure to chlorothalonil exposures with chronic exposures from the pesticide data requirements in from food and water will utilize 94% of food and drinking water. December of 2007. Although an acute the cPAD for children, 1 to 2 years old, 4. Aggregate cancer risk for U.S. study has not yet been submitted, there the population group receiving the population. As discussed in Unit III.A., is no evidence of neurotoxicity in any greatest exposure. Based on the EPA classified chlorothalonil as a study in the toxicity database for explanation in Unit III.C.3., regarding ‘‘likely’’ human carcinogen by all routes chlorothalonil, including a subchronic residential use patterns, chronic of exposure, based on the increased neurotoxicity study. Therefore, EPA has residential exposure to residues of incidence of renal adenomas and concluded that an additional chlorothalonil is not expected. carcinomas observed in both sexes of uncertainty factor is not needed to 3. Short-term/intermediate-term risk. rats and mice, the rarity of the tumor account for the lack of these data. Short-term or intermediate-term response in the kidney, and the ii. Although there was equivocal aggregate exposure takes into account increased incidence of papillomas and/ evidence of increased quantitative short-term or intermediate-term or carcinomas of the forestomach in rats susceptibility of fetuses to residential exposure plus chronic and mice. EPA has determined that the chlorothalonil exposure in one of two exposure from food and water mechanism of carcinogenicity of rabbit developmental toxicity studies, (considered to be a background chlorothalonil is non-linear (i.e. not a the Agency did not identify any residual exposure level). non-threshold effect) and that the Point uncertainties after establishing toxicity Chlorothalonil is currently registered of Departure used in calculating the endpoints and traditional UFs to be for uses that could result in short-term cPAD is protective of the cancer effects. used in the risk assessment. and intermediate-term residential Since there are no uses of chlorothalonil iii. There are no residual uncertainties exposure and the Agency has expected to result in chronic residential identified in the exposure databases. determined that it is appropriate to exposure, and since chronic dietary The dietary food exposure assessments aggregate chronic exposure through food exposure for the overall U.S. population utilized tolerances or anticipated and water with short-term and is less than the cPAD (43% of the residues that are based on reliable field intermediate-term residential exposures cPAD), EPA concludes that aggregate trial data. EPA made conservative to chlorothalonil. Since the doses and cancer risk from exposure to (protective) assumptions in the ground endpoints selected for chlorothalonil to chlorothalonil is below the level of and surface water modeling used to assess short-term and intermediate-term concern. assess exposure to chlorothalonil in exposure are identical, the short-term 5. Determination of safety. Based on drinking water. EPA used similarly and intermediate-term risk estimates for these risk assessments, EPA concludes conservative assumptions to assess chlorothalonil are the same. that there is a reasonable certainty that postapplication incidental oral exposure Using the exposure assumptions no harm will result to the general of toddlers. These assessments will not described in this unit for short-term/ population, or to infants and children underestimate the exposure and risks intermediate-term exposures, EPA has from aggregate exposure to posed by chlorothalonil. concluded the combined short-term/ chlorothalonil residues. intermediate-term food, water, and E. Aggregate Risks and Determination of residential exposures aggregated result IV. Other Considerations Safety in an aggregate MOE of 270 for adults. A. Analytical Enforcement Methodology EPA determines whether acute and The MOE for adults includes food, Adequate enforcement methodology chronic pesticide exposures are safe by drinking water and short-/intermediate- (gas chromatography (GC) method with comparing aggregate exposure estimates term inhalation exposure of individuals electron-capture detection (ECD)) is to the aPAD and cPAD. The aPAD and mixing, loading and applying available to enforce the tolerance cPAD represent the highest safe chlorothalonil-treated paint with an expression. The method may be exposures, taking into account all airless sprayer, the handler exposure requested from: Chief, Analytical appropriate SFs. EPA calculates the scenario resulting in the highest Chemistry Branch, Environmental aPAD and cPAD by dividing the POD by estimated exposure to chlorothalonil. Science Center, 701 Mapes Rd., Ft. all applicable UFs. For linear cancer As discussed in Unit III.C.3., there is Meade, MD 20755–5350; telephone risks, EPA calculates the probability of potential for short and intermediate- number: (410) 305–2905; e-mail address: additional cancer cases given the term post-application dermal exposure [email protected]. estimated aggregate exposure. Short- of children on golf courses and in term, intermediate-term, and chronic- residential areas where chlorothalonil- B. International Residue Limits term risks are evaluated by comparing treated paints have been used; however, There are no established or proposed the estimated aggregate food, water, and EPA has not identified a toxicological Codex MRLs for residues of residential exposure to the POD to endpoint of concern for short or chlorothalonil on lychee or starfruit. ensure that the MOE called for by the intermediate-term dermal exposures. product of all applicable UFs is not Therefore, for children, the short and V. Conclusion exceeded. intermediate-term aggregate risk is the A tolerance is proposed for combined 1. Acute risk. An acute aggregate risk sum of the risk from food and water, residues of chlorothalonil, assessment takes into account exposure which does not exceed the Agency’s tetrachloroisophthalonitrile, and its estimates from acute dietary level of concern. metabolite, 4-hydroxy-2,5,6- consumption of food and drinking EPA did assess incidental oral trichloroisophthalonitrile, in or on water. No adverse effect resulting from exposures of children from ingestion of lychee at 15 ppm and starfruit at 3.0 a single-oral exposure was identified paint chips containing chlorothalonil. ppm.

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VI. Statutory and Executive Order requirement of a pesticide tolerance is, the relationship between the Federal Reviews in effect, the removal of a regulatory Government and the Indian tribes, or on restriction on pesticide residues in food the distribution of power and This proposed rule establishes a and thus such an action will not have responsibilities between the Federal tolerance under section 408(d) of any negative economic impact on any Government and Indian tribes.’’ This FFDCA in response to a petition entities, including small entities. In proposed rule will not have substantial submitted to the Agency. The Office of addition, the Agency has determined direct effects on tribal governments, on Management and Budget (OMB) has that this action will not have a the relationship between the Federal exempted these types of actions from substantial direct effect on States, on the Government and Indian tribes, or on the review under Executive Order 12866, relationship between the national distribution of power and entitled Regulatory Planning and government and the States, or on the responsibilities between the Federal Review (58 FR 51735, October 4, 1993). distribution of power and Government and Indian tribes, as Because this proposed rule has been responsibilities among the various specified in Executive Order 13175. exempted from review under Executive levels of government, as specified in Thus, Executive Order 13175 does not Order 12866 due to its lack of Executive Order 13132, entitled apply to this proposed rule. significance, this proposed rule is not Federalism (64 FR 43255, August 10, subject to Executive Order 13211, 1999). Executive Order 13132 requires List of Subjects in 40 CFR Part 180 entitled Actions Concerning Regulations EPA to develop an accountable process Environmental protection, That Significantly Affect Energy Supply, to ensure ‘‘meaningful and timely input Administrative practice and procedure, Distribution, or Use (66 FR 28355, May by State and local officials in the Agricultural commodities, Pesticides 22, 2001). This proposed rule does not development of regulatory policies that and pests, Reporting and recordkeeping contain any information collections have federalism implications.’’ ‘‘Policies requirements. subject to OMB approval under the that have federalism implications’’ is Dated: November 13, 2008. Paperwork Reduction Act (PRA), 44 defined in the Executive order to U.S.C. 3501 et seq., or impose any include regulations that have Lois Rossi, enforceable duty or contain any ‘‘substantial direct effects on the States, Director, Registration Division, Office of unfunded mandate as described under on the relationship between the national Pesticide Programs. Title II of the Unfunded Mandates government and the States, or on the Therefore, it is proposed that 40 CFR Reform Act of 1995 (UMRA) (Public distribution of power and chapter I be amended as follows: Law 104–4). Nor does it require any responsibilities among the various special considerations under Executive levels of government.’’ This proposed PART 180—[AMENDED] Order 12898, entitled Federal Actions to rule directly regulates growers, food 1. The authority citation for part 180 Address Environmental Justice in processors, food handlers, and food continues to read as follows: Minority Populations and Low-Income retailers, not States. This action does not Populations (59 FR 7629, February 16, alter the relationships or distribution of Authority: 21 U.S.C. 321(q), 346a and 371. 1994); or OMB review or any Agency power and responsibilities established 2. Section 180.275 is amended by action under Executive Order 13045, by Congress in the preemption alphabetically adding the following entitled Protection of Children from provisions of section 408(n)(4) of the commodities to the table in paragraph Environmental Health Risks and Safety FFDCA. For these same reasons, the (a)(1) to read as follows: Risks (62 FR 19885, April 23, 1997). Agency has determined that this § 180.275 Chlorothalonil; tolerances for This action does not involve any proposed rule does not have any ‘‘tribal residues. technical standards that would require implications’’ as described in Executive (a) * * * Agency consideration of voluntary Order 13175, entitled Consultation and (1) * * * consensus standards pursuant to section Coordination with Indian Tribal 12(d) of the National Technology Governments (65 FR 67249, November Commodity Parts per million Transfer and Advancement Act of 1995 9, 2000). Executive Order 13175, (NTTAA), Public Law 104–113, section requires EPA to develop an accountable ***** 12(d) (15 U.S.C. 272 note). Pursuant to process to ensure ‘‘meaningful and Lychee ...... 15 the Regulatory Flexibility Act (RFA) (5 timely input by tribal officials in the ***** U.S.C. 601 et seq.), the Agency hereby development of regulatory policies that Starfruit ...... 3.0 certifies that this proposed action will have tribal implications.’’ ‘‘Policies that ***** not have significant negative economic have tribal implications’’ is defined in impact on a substantial number of small the Executive order to include * * * * * entities. Establishing a pesticide regulations that have ‘‘substantial direct [FR Doc. E8–28593 Filed 12–2–08; 8:45 am] tolerance or an exemption from the effects on one or more Indian tribes, on BILLING CODE 6560–50–S

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Notices Federal Register Vol. 73, No. 233

Wednesday, December 3, 2008

This section of the FEDERAL REGISTER Statutory Time Limits SUMMARY: The Manufacturing Council contains documents other than rules or will hold a meeting via teleconference Section 751(a)(2)(B)(iv) of the Tariff proposed rules that are applicable to the to deliberate for approval a proposed Act of 1930, as amended (the Act), public. Notices of hearings and investigations, letter of recommendation regarding provides that the Department will issue committee meetings, agency decisions and manufacturing priorities for the rulings, delegations of authority, filing of the preliminary results of a new shipper incoming Secretary. petitions and applications and agency review of an antidumping duty order statements of organization and functions are within 180 days after the day on which DATES: December 12, 2008. examples of documents appearing in this the review was initiated. See also 19 TIME: 12 p.m. (EST). section. CFR 351.214(i)(1). The Act further FOR THE CONFERENCE CALL-IN NUMBER provides that the Department may AND FURTHER INFORMATION, CONTACT: The extend that 180-day period to 300 days DEPARTMENT OF COMMERCE Manufacturing Council Executive if it determines that the case is Secretariat, Room 4043, Washington, International Trade Administration extraordinarily complicated. See 19 CFR DC, 20230 (Phone: 202–482–1369), or 351.214 (i)(2). visit the Council’s Web site at http:// [A–570–831] Extension of Time Limit for Preliminary www.manufacturing.gov/council. Results Dated: December 1, 2008. Fresh Garlic from the People’s Kate W. Sigler, Republic of China: Extension of Time The Department determines that these Limit for the Preliminary Results of the new shipper reviews involve Deputy Director, Office of Advisory Committees. New Shipper Reviews extraordinarily complicated methodological issues, including the [FR Doc. E8–28723 Filed 12–1–08; 4:15 pm] AGENCY: Import Administration, appropriate use of input methodology, BILLING CODE 3510–DR–P International Trade Administration, potential affiliation issues, the Department of Commerce. examination of importer information, EFFECTIVE DATE: December 3, 2008. and the evaluation of the bona fide DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: Toni nature of each company’s sales. GENERAL SERVICES Page, Jun Jack Zhao, or Elfi Blum, Therefore, in accordance with section ADMINISTRATION Import Administration, International 751(a)(2)(B)(iv) of the Act and 19 CFR Trade Administration, U.S. Department 351.214(i)(2), the Department is NATIONAL AERONAUTICS AND of Commerce, 14th Street and extending the time limit for these SPACE ADMINISTRATION Constitution Avenue, NW, Washington, preliminary results by 120 days, until DC 20230; telephone: (202) 482–1398, no later than April 26, 2009. As April [OMB Control No. 9000–0065] (202) 482–1396, or (202) 482–0197, 26, 2009, falls on a Sunday, our respectively. preliminary results will be issued no Federal Acquisition Regulation; later than April 27, 2009, the next Submission for OMB Review; Overtime SUPPLEMENTARY INFORMATION: business day. The final results continue AGENCIES: Background to be due 90 days after the publication Department of Defense (DOD), of the preliminary results. General Services Administration (GSA), On July 8, 2008, the Department of We are issuing and publishing this and National Aeronautics and Space Commerce (Department) published a Administration (NASA). notice of initiation of new shipper notice in accordance with sections 751(a)(2)(B)(iv) and 777(i) of the Act. ACTION: Notice of request for public reviews of fresh garlic from the PRC for comments regarding a request for 1 six companies covering the period Dated: November 24, 2008. reinstatement of an OMB clearance and November 1, 2007 through June 9, 2008. Stephen J. Claeys, a 30-day notice for comments. See Fresh Garlic from the People’s Deputy Assistant Secretary for Antidumping Republic of China: Initiation of and Countervailing Duty Operations. SUMMARY: Under the provisions of the Antidumping Duty New Shipper [FR Doc. E8–28684 Filed 12–2–08; 8:45 am] Paperwork Reduction Act of 1995 (44 Reviews, 73 FR 38979 (July 8, 2008); see BILLING CODE 3510–DS–S U.S.C. Chapter 35), the Federal also Memorandum to File from Martha Acquisition Regulation (FAR) Douthit titled, ‘‘Expansion of the Period Secretariat has submitted to the Office of Review in the New Shipper Review DEPARTMENT OF COMMERCE of Management and Budget (OMB) a of Fresh Garlic from the People’s request to review and approve a Republic of China,’’ dated July 29, 2008. International Trade Administration reinstatement of an information The preliminary results of these new collection requirement concerning The Manufacturing Council: Meeting of shipper reviews are currently due no overtime. The Manufacturing Council later than December 27, 2008. Public comments are particularly AGENCY: International Trade invited on: Whether this collection of 1 The companies are Jinxiang Hejia Co., Ltd., Juye Administration, U.S. Department of information is necessary for the proper Homestead Fruits and Vegetables Co., Ltd., Jinxiang Commerce. performance of functions of the FAR, Tianheng Trade Co., Ltd., Weifang Chenglong and whether it will have practical Import & Export Co., Ltd., Shandong Jinxiang ACTION: Notice of an Open Meeting via utility; whether our estimate of the Zhengyang Import & Export Co., Ltd., and Chengwu Teleconference. County Yuanxiang Industry & Commerce Co., Ltd. public burden of this collection of

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information is accurate, and based on DEPARTMENT OF DEFENSE the contractor must submit to the valid assumptions and methodology; contracting officer and keep current a ways to enhance the quality, utility, and GENERAL SERVICES chart showing the general executive and clarity of the information to be ADMINISTRATION administrative organization, the collected; and ways in which we can personnel to be employed in connection minimize the burden of the collection of NATIONAL AERONAUTICS AND with the work under the contract, and information on those who are to SPACE ADMINISTRATION their respective duties. The chart is used respond, through the use of appropriate [OMB Control No. 9000–0064] in administration of the contract and as technological collection techniques or an aid in determining cost. The chart is other forms of information technology. Federal Acquisition Regulation; used by contract administration Submission for OMB Review; personnel to assure the work is being DATES: Submit comments on or before Organization and Direction of Work properly accomplished at reasonable January 2, 2009. prices. AGENCIES: Department of Defense (DOD), ADDRESSES: Submit comments regarding General Services Administration (GSA), B. Annual Reporting Burden this burden estimate or any other aspect and National Aeronautics and Space Respondents: 50. of this collection of information, Administration (NASA). Responses per Respondent: 1. including suggestions for reducing this ACTION: Notice of request for public Annual Responses: 50. burden to: FAR Desk Officer, OMB, comments regarding a request for Hours per Response: .75. Room 10102, NEOB, Washington, DC reinstatement of an OMB clearance and Total Burden Hours: 38. 20503, and a copy to the General a 30-day notice for comments. Obtaining Copies of Proposals: Services Administration, FAR Requesters may obtain a copy of the SUMMARY: Under the provisions of the Secretariat (VPR), 1800 F Street, NW., information collection documents from Paperwork Reduction Act of 1995 (44 Room 4041, Washington, DC 20405. the General Services Administration, U.S.C. Chapter 35), the Federal FAR Secretariat (VPR), Room 4041, 1800 FOR FURTHER INFORMATION CONTACT: Acquisition Regulation (FAR) F Street, NW., Washington, DC 20405, Ernest Woodson, Contract Policy Secretariat has submitted to the Office telephone (202) 501–4755. Please cite Division, GSA (202) 501–3775. of Management and Budget (OMB) a OMB Control No. 9000–0064, request to review and approve a Organization and Direction of Work, in SUPPLEMENTARY INFORMATION: reinstatement of an information all correspondence. A. Purpose collection requirement concerning organization and direction of work. Dated: November 25, 2008. Federal solicitations normally do not Public comments are particularly Jeritta Parnell, specify delivery schedules that will invited on: Whether this collection of Acting Director, Office of Acquisition Policy. require overtime at the Government’s information is necessary for the proper [FR Doc. E8–28640 Filed 12–2–08; 8:45 am] expense. However, when overtime is performance of functions of the FAR, BILLING CODE 6820–EP–P required under a contract and it exceeds and whether it will have practical utility; whether our estimate of the the dollar ceiling established during DEPARTMENT OF DEFENSE negotiations, the contractor must public burden of this collection of information is accurate, and based on request approval from the contracting valid assumptions and methodology; GENERAL SERVICES officer for overtime. With the request, ways to enhance the quality, utility, and ADMINISTRATION the contractor must provide information clarity of the information to be regarding the need for overtime. collected; and ways in which we can NATIONAL AERONAUTICS AND SPACE ADMINISTRATION B. Annual Reporting Burden minimize the burden of the collection of information on those who are to [OMB Control No. 9000–0062] Respondents: 1,270. respond, through the use of appropriate Responses per Respondent: 1. technological collection techniques or Federal Acquisition Regulation; other forms of information technology. Submission for OMB Review; Material Total Responses: 1,270. DATES: Submit comments on or before and Workmanship Hours per Response: .25. January 2, 2009. AGENCIES: Department of Defense (DOD), Total Burden Hours: 318. ADDRESSES: Submit comments regarding General Services Administration (GSA), Obtaining Copies of Proposals: this burden estimate or any other aspect and National Aeronautics and Space Requesters may obtain a copy of the of this collection of information, Administration (NASA). including suggestions for reducing this information collection documents from ACTION: Notice of request for public burden to: FAR Desk Officer, OMB, the General Services Administration, comments regarding a request for Room 10102, NEOB, Washington, DC FAR Secretariat (VPR), Room 4041, 1800 reinstatement of an OMB clearance and 20503, and a copy to the General a 30-day notice for comments. F Street, NW., Washington, DC 20405, Services Administration, FAR telephone (202) 501–4755. Please cite Secretariat (VPR), 1800 F Street, NW., SUMMARY: Under the provisions of the OMB Control No. 9000–0065, Overtime, Room 4041, Washington, DC 20405. Paperwork Reduction Act of 1995 (44 in all correspondence. FOR FURTHER INFORMATION CONTACT: U.S.C. Chapter 35), the Federal Dated: November 25, 2008. Cecelia Davis, Contract Policy Division, Acquisition Regulation (FAR) Jeritta Parnell, GSA (202) 219–0202. Secretariat has submitted to the Office Acting Director, Office of Acquisition Policy. SUPPLEMENTARY INFORMATION: of Management and Budget (OMB) a request to review and approve a [FR Doc. E8–28639 Filed 12–2–08; 8:45 am] A. Purpose reinstatement of an information BILLING CODE 6820–EP–P When the Government awards a cost- collection requirement concerning reimbursement construction contract, material and workmanship.

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Public comments are particularly OMB Control No. 9000–0062, Material The filings in the above-referenced invited on: Whether this collection of and Workmanship, in all proceeding are accessible in the information is necessary for the proper correspondence. Commission’s eLibrary system by performance of functions of the FAR, Dated: November 25, 2008. clicking on the appropriate link in the and whether it will have practical Jeritta Parnell, above list. They are also available for utility; whether our estimate of the review in the Commission’s Public Acting Director, Office of Acquisition Policy. public burden of this collection of Reference Room in Washington, DC. information is accurate, and based on [FR Doc. E8–28641 Filed 12–2–08; 8:45 am] There is an eSubscription link on the valid assumptions and methodology; BILLING CODE 6820–EP–P Web site that enables subscribers to ways to enhance the quality, utility, and receive e-mail notification when a clarity of the information to be document is added to a subscribed collected; and ways in which we can DEPARTMENT OF ENERGY dockets(s). For assistance with any minimize the burden of the collection of FERC Online service, please e-mail information on those who are to Federal Energy Regulatory [email protected]. or call respond, through the use of appropriate Commission (866) 208–3676 (toll free). For TTY, call technological collection techniques or (202) 502–8659. other forms of information technology. [Docket No. ER09–311–000] Nathaniel J. Davis, Sr., DATES: Submit comments on or before LANXESS Energy, LLC; Supplemental Deputy Secretary. January 2, 2009. Notice That Initial Market-Based Rate [FR Doc. E8–28685 Filed 12–2–08; 8:45 am] ADDRESSES: Submit comments regarding Filing Includes Request for Blanket BILLING CODE 6717–01–P this burden estimate or any other aspect Section 204 Authorization of this collection of information, including suggestions for reducing this November 26, 2008. burden to: FAR Desk Officer, OMB, This is a supplemental notice in the ENVIRONMENTAL PROTECTION Room 10102, NEOB, Washington, DC above-referenced proceeding of AGENCY 20503, and a copy to the General LANXESS Energy, LLC’s application for [EPA–HQ–OPP–2008–0046; FRL–8390–4] Services Administration, FAR market-based rate authority, with an Secretariat (VPR), 1800 F Street, NW., accompanying rate tariff, noting that Notice of Receipt of Several Pesticide Room 4041, Washington, DC 20405. such application includes a request for Petitions Filed for Residues of FOR FURTHER INFORMATION CONTACT: blanket authorization, under 18 CFR Pesticide Chemicals in or on Various Cecelia Davis, Contract Policy Division, part 34, of future issuances of securities Commodities GSA (202) 219–0202. and assumptions of liability. Any person desiring to intervene or to AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: protest should file with the Federal Agency (EPA). A. Purpose Energy Regulatory Commission, 888 ACTION: Notice. Under Federal contracts requiring that First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 SUMMARY: This notice announces the equipment (e.g., pumps, fans, Agency’s receipt of several initial filings generators, chillers, etc.) be installed in of the Commission’s Rules of Practice and Procedure (18 CFR 385.211 and of pesticide petitions proposing the a project, the Government must establishment or modification of determine that the equipment meets the 385.214). Anyone filing a motion to intervene or protest must serve a copy regulations for residues of pesticide contract requirements. Therefore, the chemicals in or on various commodities. contractor must submit sufficient data of that document on the Applicant. DATES: Comments must be received on on the particular equipment to allow the Notice is hereby given that the or before January 2, 2009. Government to analyze the item. deadline for filing protests with regard The Government uses the submitted to the applicant’s request for blanket ADDRESSES: Submit your comments, data to determine whether or not the authorization, under 18 CFR part 34, of identified by docket identification (ID) equipment meets the contract future issuances of securities and number and the pesticide petition requirements in the categories of assumptions of liability, is December 26, number (PP) of interest as shown in the performance, construction, and 2008. body of this document, by one of the durability. This data is placed in the The Commission encourages following methods: • contract file and used during the electronic submission of protests and Federal eRulemaking Portal: http:// inspection of the equipment when it interventions in lieu of paper, using the www.regulations.gov. Follow the on-line arrives on the project and when it is FERC Online links at http:// instructions for submitting comments. • made operable. www.ferc.gov. To facilitate electronic Mail: Office of Pesticide Programs service, persons with Internet access (OPP) Regulatory Public Docket (7502P), B. Annual Reporting Burden who will eFile a document and/or be Environmental Protection Agency, 1200 Respondents: 3,160. listed as a contact for an intervenor Pennsylvania Ave., NW., Washington, Responses per Respondent: 1.5. must create and validate an DC 20460–0001. Annual Responses: 4,740. eRegistration account using the • Delivery: OPP Regulatory Public Hours per Response: .25. eRegistration link. Select the eFiling Docket (7502P), Environmental Total Burden Hours: 1,185. link to log on and submit the Protection Agency, Rm. S–4400, One Obtaining Copies of Proposals: intervention or protests. Potomac Yard (South Bldg.), 2777 S. Requesters may obtain a copy of the Persons unable to file electronically Crystal Dr., Arlington, VA. Deliveries information collection documents from should submit an original and 14 copies are only accepted during the Docket the General Services Administration, of the intervention or protest to the Facility’s normal hours of operation FAR Secretariat (VPR), Room 4041, 1800 Federal Energy Regulatory Commission, (8:30 a.m. to 4 p.m., Monday through F Street, NW., Washington, DC 20405, 888 First St., NE., Washington, DC Friday, excluding legal holidays). telephone (202) 501–4755. Please cite 20426. Special arrangements should be made

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for deliveries of boxed information. The FOR FURTHER INFORMATION CONTACT: A i. Identify the document by docket ID Docket Facility telephone number is contact person, with telephone number number and other identifying (703) 305–5805. and e-mail address, is listed at the end information (subject heading, Federal Instructions: Direct your comments to of each pesticide petition summary. You Register date and page number). the docket ID number and the pesticide may also reach each contact person by ii. Follow directions. The Agency may petition number of interest as shown in mail at: Registration Division (7505P), ask you to respond to specific questions or organize comments by referencing a the body of this document. EPA’s policy Office of Pesticide Programs, Code of Federal Regulations (CFR) part is that all comments received will be Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, or section number. included in the docket without change iii. Explain why you agree or disagree; and may be made available on-line at DC 20460–0001. SUPPLEMENTARY INFORMATION: suggest alternatives and substitute http://www.regulations.gov, including language for your requested changes. any personal information provided, I. General Information iv. Describe any assumptions and unless the comment includes A. Does this Action Apply to Me? provide any technical information and/ information claimed to be Confidential or data that you used. Business Information (CBI) or other You may be potentially affected by v. If you estimate potential costs or information whose disclosure is this action if you are an agricultural burdens, explain how you arrived at restricted by statute. Do not submit producer, food manufacturer, or your estimate in sufficient detail to information that you consider to be CBI pesticide manufacturer. Potentially allow for it to be reproduced. or otherwise protected through affected entities may include, but are vi. Provide specific examples to regulations.gov or e-mail. The not limited to: illustrate your concerns and suggest regulations.gov website is an • Crop production (NAICS code 111). alternatives. ‘‘anonymous access’’ system, which • Animal production (NAICS code vii. Explain your views as clearly as means EPA will not know your identity 112). possible, avoiding the use of profanity or contact information unless you • Food manufacturing (NAICS code or personal threats. provide it in the body of your comment. 311). viii. Make sure to submit your If you send an e-mail comment directly • Pesticide manufacturing (NAICS comments by the comment period to EPA without going through code 32532). deadline identified. regulations.gov, your e-mail address This listing is not intended to be 3. Environmental justice. EPA seeks to will be automatically captured and exhaustive, but rather provides a guide achieve environmental justice, the fair included as part of the comment that is for readers regarding entities likely to be treatment and meaningful involvement placed in the docket and made available affected by this action. Other types of of any group, including minority and/or on the Internet. If you submit an entities not listed in this unit could also low-income populations, in the electronic comment, EPA recommends be affected. The North American development, implementation, and that you include your name and other Industrial Classification System enforcement of environmental laws, contact information in the body of your (NAICS) codes have been provided to regulations, and policies. To help comment and with any disk or CD-ROM assist you and others in determining address potential environmental justice you submit. If EPA cannot read your whether this action might apply to issues, the Agency seeks information on comment due to technical difficulties certain entities. If you have any any groups or segments of the and cannot contact you for clarification, questions regarding the applicability of population who, as a result of their EPA may not be able to consider your this action to a particular entity, consult location, cultural practices, or other comment. Electronic files should avoid the person listed at the end of the factors, may have atypical or the use of special characters, any form pesticide petition summary of interest. disproportionately high and adverse human health impacts or environmental of encryption, and be free of any defects B. What Should I Consider as I Prepare effects from exposure to the pesticides or viruses. My Comments for EPA? discussed in this document, compared Docket: All documents in the docket 1. Submitting CBI. Do not submit this to the general population. are listed in the docket index available information to EPA through at http://www.regulations.gov. Although regulations.gov or e-mail. Clearly mark II. What Action is the Agency Taking? listed in the index, some information is the part or all of the information that EPA is announcing its receipt of not publicly available, e.g., CBI or other you claim to be CBI. For CBI several pesticide petitions filed under information whose disclosure is information in a disk or CD-ROM that section 408 of the Federal Food, Drug, restricted by statute. Certain other you mail to EPA, mark the outside of the and Cosmetic Act (FFDCA), 21 U.S.C. material, such as copyrighted material, disk or CD-ROM as CBI and then 346a, proposing the establishment or is not placed on the Internet and will be identify electronically within the disk or modification of regulations in 40 CFR publicly available only in hard copy CD-ROM the specific information that is part 180 for residues of pesticide form. Publicly available docket claimed as CBI. In addition to one chemicals in or on various food materials are available either in the complete version of the comment that commodities. EPA has determined that electronic docket at http:// includes information claimed as CBI, a the pesticide petitions described in this www.regulations.gov, or, if only copy of the comment that does not document contain the data or available in hard copy, at the OPP contain the information claimed as CBI information prescribed in FFDCA Regulatory Public Docket in Rm. S– must be submitted for inclusion in the section 408(d)(2); however, EPA has not 4400, One Potomac Yard (South Bldg.), public docket. Information so marked fully evaluated the sufficiency of the 2777 S. Crystal Dr., Arlington, VA. The will not be disclosed except in submitted data at this time or whether hours of operation of this Docket accordance with procedures set forth in the data support granting of the Facility are from 8:30 a.m. to 4 p.m., 40 CFR part 2. pesticide petitions. Additional data may Monday through Friday, excluding legal 2. Tips for preparing your comments. be needed before EPA can make a final holidays. The Docket Facility telephone When submitting comments, remember determination on these pesticide number is (703) 305–5805. to: petitions.

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Pursuant to 40 CFR 180.7(f), a difluorobenzamide, in or on fruit, stone, (LOD) for each analyte using this summary of each of the petitions that group 12 at 8 parts per million (ppm); method is 0.01 ppm, and the limit of are the subject of this notice, prepared Brassica, leafy greens, subgroup 5B at 25 quantitation (LOQ) is 0.05 ppm. The by the petitioner, is included in a docket ppm; and turnip greens at 25 ppm. method is based on sample acid EPA has created for each rulemaking. Makhteshim-Agan of North America, hydrolysis and residue determination The docket for each of the petitions is Inc., is the manufacturer and basic using gas chromatography. Contact: available on-line at http:// registrant of novaluron. Makhteshim- John Hebert, (703) 308–7038, www.regulations.gov. Agan of North America, Inc., prepared [email protected]. As specified in FFDCA section and summarized the following 5. PP 8F7409. (EPA–HQ–OPP–2008– 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is information in support of the subject 0770). E. I. DuPont de Nemours and publishing notice of the petition so that pesticide petition for novaluron. An Company, DuPont Crop Protection, P.O. the public has an opportunity to adequate analytical method, gas Box 30, Newark, DE 19714–0030, comment on this request for the chromatography/electron capture proposes to establish a tolerance for establishment or modification of detector (GC/ECD), as published in the residues of the insecticide regulations for residues of pesticides in Federal Register of April 5, 2006 (71 FR chlorantraniliprole, 3-bromo-N-4- or on food commodities. Further 17009) (FRL–7756–8), is available for chloro-2-methyl-6- information on the petition may be enforcing tolerances of novaluron (methylcarbamoyl)phenyl]-1-(3-chloro- obtained through the petition summary residues in or on stone fruit, 2-pyridine-2-yl)-1H-pyrazole-5- referenced in this unit. bushberries, leafy Brassica and turnip carboxamide in or on nut, tree, group 14 at 0.07 parts per million (ppm); almond, New Tolerances greens. The method verification trial supports a limit of quantitation (LOQ) of hulls at 5 ppm; and pistachio at 0.07 1. PP 8E7425. (EPA–HQ–OPP–2008– 0.05 ppm, and the limit of detection ppm. Since chlorantraniliprole and its 0768). Interregional Research Project (LOD) is 0.005 ppm for the different metabolic degradates are not of No. 4 (IR-4), 500 College Road East, matrices. The limit of quantitation (LOQ toxicological concern, analytical Suite 201 W, Princeton, NJ 08540 and = 0.05 ppm) was taken as the lowest methods are not applicable. Contact: Makhteshim-Agan of North America, level validated by this method. Contact: Kable Davis, (703) 306–0415, Inc., 4515 Falls of Neuse Road, Raleigh, Laura Nollen, (703) 305–7390, [email protected]. NC 27609, proposes to establish a [email protected]. 6. PP 8F7413. (EPA–HQ–OPP–2008– tolerance for residues of the insecticide 3. PPs 8E7434 and 8E7436. (EPA– 0771). Bayer CropScience, P.O. Box novaluron, N-[[[3-chloro-4-[1,1,2- HQ–OPP–2008–0773). Interregional 12014, 2 T.W. Alexander Drive, trifluoro-2-(trifluoromethoxy)ethoxy] Research Project No. 4 (IR-4), 500 Research Triangle Park, NC 27709, phenyl]amino]carbonyl]-2,6- College Road East, Suite 201 W, proposes to establish a tolerance for difluorobenzamide, in or on bushberry, Princeton, NJ 08540, proposes to residues of the insecticide clothianidin, subgroup 13-07B at 7 parts per million establish tolerances for residues of the (E)-1-(2-chloro-1,3-thiazol-5-ylmethyl)- (ppm). Makhteshim-Agan of North herbicide prometryn, 2,4- 3-methyl-2-nitroguanidine and its America, Inc., is the manufacturer and bis(isopropylamino)-6-methylthio-s- metabolite, TMG, N-(2-chloro-5- basic registrant of novaluron. triazine (CAS Number 7287–19–6) in or thiazolylmethyl)-N-’-methylguanidine, Makhteshim-Agan of North America, on carrot at 0.7 parts per million (ppm); in or on vegetable, root, except sugar Inc., prepared and summarized the celeriac, roots at 0.05 ppm; celeriac, beet, subgroup 01B at 0.6 parts per following information in support of the tops at 0.05 ppm; cilantro, fresh at 4.0 million (ppm); vegetable, tuberous and subject pesticide petition for novaluron. ppm; cilantro, dried at 15 ppm; okra at corm, subgroup 01C at 0.2 ppm; An adequate analytical method, gas 0.05 ppm; parsley, leaves at 0.7 ppm (all vegetable, bulb, group 03 at 0.2 ppm; chromatography/electron capture the preceding in PP 8E7434); and leafy vegetables, leafy greens, except brassica, detector (GC/ECD), as published in the petiole, subgroup 4B at 0.5 ppm in (PP subgroup 04A at 1.1 ppm; vegetable, Federal Register of April 5, 2006 (71 FR 8E7436). The Pesticide Analytical Brassica, leafy, group 5 at 0.35 ppm; and 17009 )(FRL–7756–8) is available for Manual (PAM) lists a gas residues of clothianidin, (E)-1-(2-chloro- enforcing tolerances of novaluron chromatography (GC) method for 1,3-thiazol-5-ylmethyl)-3-methyl-2- residues in or on stone fruit, determining residues in or on plants nitroguanidine in vegetables, fruiting, bushberries, leafy Brassica and turnip using a microcoulometric sulfur group 08 at 0.01 ppm; vegetable, greens. The method verification trial detection system that determines cucurbit, group 09 at 0.01 ppm; grain, supports a limit of quantitation (LOQ) of residues of prometryn. No tolerances are cereal, except rice, group 15 at 0.01 0.05 ppm, and the limit of detection needed for prometryn residues in ppm, wheat, forage at 0.35 ppm, wheat, (LOD) is 0.005 ppm for the different livestock commodities; therefore, no hay at 0.07 ppm and wheat, straw at matrices. The limit of quantitation (LOQ enforcement analytical methods are 0.04 ppm. In plants and plant products, = 0.05 ppm) was taken as the lowest needed for these animal commodities. the residue of concern, parent level validated by this method. Contact: Contact: Susan Stanton, (703) 305–5218, clothianidin, can be determined using Laura Nollen, (703) 305–7390, [email protected]. high performance liquid [email protected]. 4. PP 8F7256. (EPA–HQ–OPP–2008– chromatography (HPLC) with 2. PP 8E7426. (EPA–HQ–OPP–2008– 0764). FMC Corporation, 1735 Market electrospray tandem mass spectrometry 0769). Interregional Research Project Street, Philadelphia, PA 19103, (MS/MS) detection. In an extraction No. 4 (IR–4), 500 College Road East, proposes to establish a tolerance for efficiency testing, the plant residues Suite 201 W, Princeton, NJ 08540 and residues of the insecticide carbofuran in method has also demonstrated the Makhteshim-Agan of North America, or on cotton by products including gin ability to extract aged clothianidin Inc., 4515 Falls of Neuse Road, Raleigh, trash at 2.0 parts per million (ppm). A residue. Although the plant residues NC 27609, proposes to establish a practical analytical methodology for liquid chromatography-tandem mass tolerance for residues of the insecticide detecting and measuring levels of spectrometry (LC/MS/MS) method is novaluron, N-[[[3-chloro-4-[1,1,2- carbofuran and 3-hydroxy-carbofuran in highly suitable for enforcement method, trifluoro-2-(trifluoromethoxy)ethoxy] or on raw agricultural commodities has an LC/UV (ultraviolet) method has also phenyl]amino]carbonyl]-2,6- been submitted. The limit of detection been developed which is suitable for

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enforcement (monitoring) purposes in methods are needed. Contact: Kable yl)cyclohex-1-ene-1-carboxamide-2- all relevant matrices. Contact: Kable Davis, (703) 306–0415, carboxylic acid) in or on freshwater fish Davis, (703) 306–0415, [email protected]. at 1.5 parts per million (ppm). An [email protected]. 9. PP 8F7417. (EPA–HQ–OPP–2008– analytical method for detecting 7. PP 8F7414. (EPA–HQ–OPP–2008– 0262). EPA has requested a notice of flumioxazin and its metabolites in fish 0772). Bayer CropScience, P.O. Box filing identified as a deficiency in the tissue has been submitted with this 12014, 2 T.W. Alexander Drive, submitted petition from Bayer petition. The level of quantitation (LOQ) Research Triangle Park, NC 27709, CropScience, P.O. Box 12014, 2 T.W. of flumioxazin and its metabolites in the proposes to establish a tolerance for Alexander Drive, Research Triangle analytical method for fish tissue is 0.01 residues of the insecticide imidacloprid, Park, NC 27709, to support the 30–day ppm, which will allow monitoring for 1-[(6-chloro-3-pyridinyl)methyl]-N- plant back interval for soybeans planted residues at the levels proposed for the nitro-2-imidazolidinimine and its after a potato seed piece treatment with tolerance. Contact: James M. Stone, metabolites containing the 6- clothianidin at a rate of 420 g ai/ha. (703) 305–7391, [email protected]. chloropyridinyl moiety, all expressed as Soybean rotational residue data showed 12. PP 8F7444. (EPA–HQ–OPP–2008– the parent, in or on vegetable, bulb, no residues greater than the level of 0262). Bayer CropScience, P.O. Box group 3 at 2.5 parts per million (ppm). quantitation (LOQ) of 0.01 parts per 12014, 2 T.W. Alexander Drive, The analytical method is a common million (ppm) for soybeans planted 30 Research Triangle Park, NC 27709, moiety method for imidacloprid and its days after treatment of bare soil with proposes to establish a tolerance for metabolites containing the 6- Poncho 600 FS at a rate of 420 g ai/ha. residues of the insecticide spiromesifen; chloropyridinyl moiety using a This supports a 30–day plant back butanoic acid, 3,3-dimethyl-, 2-oxo-3- permanganate oxidation, silyl interval for soybeans after potato seed (2,4,6-trimethylphenyl)-1- derivatization, and capillary gas piece treatment at the above rate. No oxaspiro[4.4]non-3-en-4-yl ester, and its chromatography/mass spectrometry rotational crop tolerances are required. enol metabolite; 4-hydroxy-3-(2,4,6- (GC/MS) selective ion monitoring. This Therefore, no further data is required in trimethylphenyl)-1-oxaspiro[4.4]non-3- method has successfully passed a this notice of filing. Contact: Kable en-2-one, calculated as parent petition method validation in EPA labs. Davis, (703) 306–0415, compound equivalents in or on tomato, There is a confirmatory method [email protected]. paste at 0.8 parts per million (ppm). specifically for imidacloprid and several 10. PP 8F7437. (EPA–HQ–OPP–2008– Adequate analytical methodology using metabolites utilizing GC/MS and high 0704). Arysta LifeScience North liquid chromatography/ tandem mass performance liquid chromatography/ America Corporation, 15401 Weston spectrometry (LC/MS/MS) detection is ultraviolet (HPLC/UV) which has been Parkway, Suite 150, Cary, NC 27513, available for enforcement purposes. validated by the EPA as well. proposes to establish a tolerance for Contact: Kable Davis, (703) 306–0415, Imidacloprid and its metabolites are residues of the fungicide fluoxastrobin [email protected]. stable for at least 24 months in the (1E)-[2-[[6-(2-chlorophenoxy)-5-fluoro-4- Amendment to Existing Tolerances commodities when frozen. Contact: pyrimydinyl]oxy]phenyl](5,6-dihydro- Kable Davis, (703) 306–0415, 1,4,2-dioxazin-3-yl)methanone O- 1. PP 8E7426. (EPA–HQ–OPP–2008– [email protected]. methyloxime, and its Z isomer, (1Z)-[2- 0769). Interregional Research Project 8. PP 8F7415. (EPA–HQ–OPP–2008– [[6-(2-chlorophenoxy)-5-fluoro-4- No. 4 (IR–4), 500 College Road 0772). Bayer CropScience, P.O. Box pyrimydinyl]oxy]phenyl](5,6-dihydro- East, Suite 201 W, Princeton, NJ 08540 12014, 2 T.W. Alexander Drive, 1,4,2-dioxazin-3-yl)methanone O- and Makhteshim–Agan of North Research Triangle Park, NC 27709, methyloxime in or on corn, field, grain America, Inc., 4515 Falls of Neuse Road, proposes to establish a tolerance for at 0.02 parts per million (ppm); corn, Raleigh, NC 27609, proposes to amend residues of the insecticide imidacloprid, field, aspirated grain fractions at 0.50 the tolerance in 40 CFR 180.598 by 1-[(6-chloro-3-pyridinyl)methyl]-N- ppm; corn, field, forage at 3.0 ppm; increasing the tolerance for residues of nitro-2-imidazolidinimine and its corn, field, fodder/stover at 4.5 ppm; the insecticide novaluron, N-[[[3-chloro- metabolites containing the 6- soybean, seed at 0.05 ppm; soybean, 4-[1,1,2-trifluoro-2- chloropyridinyl moiety, all expressed as aspirated grain fractions at 0.40 ppm; (trifluoromethoxy)ethoxy] the parent, in or on cereal, grain, group soybean, forage at 9.0 ppm; soybean, phenyl]amino]carbonyl]-2,6- 15 at 0.05 parts per million (ppm). Bayer hay at 1.2 ppm; and soybean, hulls at difluorobenzamide in or on egg from CropScience is also proposing use of the 0.40 ppm. Adequate analytical 0.05 parts per million (ppm) to 0.07 currently established tolerances for methodology using high performance ppm. Makhteshim-Agan of North residues of imidacloprid, 1-[(6-chloro-3- liquid chromatography/tandem mass America, Inc., is the manufacturer and pyridinyl)methyl]-N-nitro-2- spectrometry (HPLC/MS/MS) detection basic registrant of novaluron. imidazolidinimine and its metabolites is available for enforcement purposes. Makhteshim-Agan of North America, containing the 6-chloropyridinyl Contact: John Bazuin, (703) 305–7381, Inc., prepared and summarized the moiety, all expressed as the parent, in [email protected]. following information in support of the or on the raw agricultural commodity 11. PP 8F7438. (EPA–HQ–OPP–2008– subject pesticide petition for novaluron. vegetable, root, except sugar beet, 0781). Valent U.S.A. Corporation, 1600 An adequate analytical method, gas subgroup 01B; vegetable, tuberous and Riviera Avenue, Suite 200, Walnut chromatography/electron capture corm, subgroup 01C; vegetable, leafy Creek, CA 94596, proposes to establish detector (GC/ECD), as published in the greens, except Brassica, subgroup 04A; a tolerance for residues of the herbicide Federal Register of April 5, 2006 (71 FR vegetable, Brassica, leafy, group 05; flumioxazin, 2-[7-fluoro-3,4-dihydro-3- 17009) (FRL–7756–8), is available for vegetable, fruiting, group 08; and oxo-4-(2-propynyl)-2H-1,4-benzoxazin- enforcing tolerances of novaluron vegetable, cucurbit, group 09 to support 6-yl]-4,5,6,7-tetrahydro-1H-isoindole- residues in or on stone fruit, the use of imidacloprid as a seed 1,3(2H)-dione and its metabolites APF bushberries, leafy Brassica and turnip treatment on these crops. All required (3-oxo-4-prop-2-ynyl-6-amino-7-fluoro- greens. The method verification trial analytical methods have previously 3,4-dihydro-1,4-benzoxazin) and 482- supports a limit of quantitation (LOQ) of been submitted to the Agency and HA (N-(7-fluoro-3,4-dihydro-3-oxo-4- 0.05 ppm, and the limit of detection validated. Therefore, no additional prop-2-ynyl-2H-1,4-benzoxazin-6- (LOD) is 0.005 ppm for the different

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matrices. The limit of quantitation (LOQ Deirdre Sunderland, (703) 603–0851, ENVIRONMENTAL PROTECTION = 0.05 ppm) was taken as the lowest [email protected]. AGENCY level validated by this method. Contact: 3. PP 8E7374. (EPA–HQ–OPP–2008– [EPA–HQ–OPP–2008–0046; FRL–8386–9] Laura Nollen, (703) 305–7390, 0710). The Joint Inerts Task Force, [email protected]. Cluster Support Team 19, EPA Notice of Receipt of Several Pesticide 2. PP 7E7428. (EPA–HQ–OPP–2005– Petitions Filed for Residues of 0097). Interregional Research Project Company Number 84949, c/o CropLife America, 1156 15th Street, NW., Suite Pesticide Chemicals in or on Various No. 4 (IR–4), 500 College Road East, Commodities Suite 201 W, Princeton, NJ 08540, 400, Washington, DC 20005, proposes to proposes to amend the tolerance in 40 establish an exemption from the AGENCY: Environmental Protection CFR 180.474 by raising the existing requirement of a tolerance in 40 CFR Agency (EPA). 180.910 and 180.930 for residues of the tolerance for residues of the fungicide ACTION: Notice. tebuconazole (alpha-[2-(4- Ethylene oxide adducts of 2,4,7,9- chlorophenyl)-ethyl]-alpha-(1,1- tetramethyl-5-decynediol, the ethylene SUMMARY: This notice announces the dimethylethyl)-1H-1,2,4-triazole-1- oxide content averages 3.5, 10, or 30 Agency’s receipt of several initial filing ethanol) tebuconazole (alpha-[2-(4- moles (CAS No. 9014–85–1) when used of pesticide petitions proposing the chlorophenyl)-ethyl]-alpha-(1,1- as a pesticide inert ingredient in establishment or modification of dimethylethyl)-1H-1,2,4-triazole-1- pesticide formulations in or on all raw regulations for residues of pesticide ethanol) in or on cherry from 4.0 to 5.0 agricultural commodities. Because this chemicals in or on various commodities. parts per million (ppm). An petition is a request for an exemption DATES: Comments must be received on enforcement method for plant from the requirement of a tolerance, no or before January 2, 2009. commodities has been validated on analytical method is required. Contact: ADDRESSES: Submit your comments, various commodities. It has undergone Karen Samek, (703) 347–8825, identified by docket identification (ID) successful EPA validation and has been [email protected]. number and the pesticide petition submitted for inclusion in the (Pesticide number (PP) of interest as shown in the Analytical Manual II (PAM II). The 4. PP 8E7423. (EPA–HQ–OPP–2008– body of this document, by one of the animal method has also been approved 0739). The Joint Inerts Task Force, following methods: as an adequate enforcement method. Cluster Support Team 13, EPA • Contact: Laura Nollen, (703) 305–7390, Company Number 84949, c/o CropLife Federal eRulemaking Portal: http:// [email protected]. America, 1156 15th Street, NW., Suite www.regulations.gov. Follow the on-line instructions for submitting comments. 400, Washington, DC 20005, proposes to New Exemptions from an Inert • Mail: Office of Pesticide Programs establish an exemption from the Tolerance (OPP) Regulatory Public Docket (7502P), requirement of a tolerance in 40 CFR 1. PP 5E7003. (EPA–HQ–OPP–2005- Environmental Protection Agency, 1200 180.920 for residues of Sodium 1,4- Pennsylvania Ave., NW., Washington, 0310). Stepan Company, 951 Bankhead dialkyl sulfosuccinates pre-harvest Hwy., Winder, GA 30680, proposes to DC 20460–0001. including: Sodium 1,4-dihexyl establish an exemption from the • Delivery: OPP Regulatory Public sulfosuccinate (Butanedioic acid, sulfo, requirement of a tolerance in 40 CFR Docket (7502P), Environmental 180.920 for residues of the Alkyl (C10- 1,4-bis dihexyl ester, sodium salt) (CAS Protection Agency, Rm. S–4400, One C18) Dimethyl Amine Oxides (ADAOs) No. 3006–15–3); Sodium 1,4-diisobutyl Potomac Yard (South Bldg.), 2777 S. pre-harvest (including CAS Numbers sulfosuccinate (Butanedioic acid, sulfo, Crystal Dr., Arlington, VA. Deliveries 1643–20–5, 2571–88–2, 2605–79–0, 1,4-bis diisobutyl ester sodium salt) are only accepted during the Docket 3332–27–2, 61788–90–7, 68955–55–5, (CAS No. 127–39–9); and Sodium 1,4- Facility’s normal hours of operation 70592–80–2, 7128–91–8, 85408–48–6, dipentyl sulfosuccinate (Butanedioic (8:30 a.m. to 4 p.m., Monday through and 85408–49–7) when used as a acid, sulfo, 1,4-bis dipentyl ester Friday, excluding legal holidays). pesticide inert ingredient in pesticide sodium salt) (CAS No. 922–80–5) when Special arrangements should be made formulations in or on all raw used as a pesticide inert ingredient in for deliveries of boxed information. The agricultural commodities. Because this pesticide formulations in or on all raw Docket Facility telephone number is petition is a request for an exemption agricultural commodities. Because this (703) 305–5805. from the requirement of a tolerance, no petition is a request for an exemption Instructions: Direct your comments to analytical method is required. Contact: from the requirement of a tolerance, no the docket ID number and the pesticide Karen Samek, (703) 347–8825, analytical method is required. Contact: petition number of interest as shown in [email protected]. Karen Samek, (703) 347–8825, the body of this document. EPA’s policy 2. PP 8E7336. (EPA–HQ–OPP–2008– [email protected]. is that all comments received will be 0666). Goldschmidt Chemical included in the docket without change Corporation, Degussa, 710 South Sixth List of Subjects and may be made available on-line at Avenue, Hopewell, VA 23860, proposes http://www.regulations.gov, including Environmental protection, to establish an exemption from the any personal information provided, requirement of a tolerance in 40 CFR Agricultural commodities, Feed unless the comment includes 180.960 for residues of Castor oil, additives, Food additives, Pesticides information claimed to be Confidential ethoxylated, oleate, minimum average and pests, Reporting and recordkeeping Business Information (CBI) or other molecular weight (in amu) 2,000 (CAS requirements. information whose disclosure is No. 220037–02–05) when used as a restricted by statute. Do not submit Dated: November 25, 2008. pesticide inert ingredient in pesticide information that you consider to be CBI formulations in or on all raw Lois Rossi, or otherwise protected through agricultural commodities. Because this Director, Registration Division, Office of regulations.gov or e-mail. The petition is a request for an exemption Pesticide Programs. regulations.gov website is an from the requirement of a tolerance, no [FR Doc. E8–28666 Filed 12–2–08; 8:45 am] ‘‘anonymous access’’ system, which analytical method is required. Contact: BILLING CODE 6560–50–S means EPA will not know your identity

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or contact information unless you • Food manufacturing (NAICS code vii. Explain your views as clearly as provide it in the body of your comment. 311). possible, avoiding the use of profanity If you send an e-mail comment directly • Pesticide manufacturing (NAICS or personal threats. to EPA without going through code 32532). viii. Make sure to submit your regulations.gov, your e-mail address This listing is not intended to be comments by the comment period will be automatically captured and exhaustive, but rather provides a guide deadline identified. included as part of the comment that is for readers regarding entities likely to be 3. Environmental justice. EPA seeks to placed in the docket and made available affected by this action. Other types of achieve environmental justice, the fair on the Internet. If you submit an entities not listed in this unit could also treatment and meaningful involvement electronic comment, EPA recommends be affected. The North American of any group, including minority and/or that you include your name and other Industrial Classification System low income populations, in the contact information in the body of your (NAICS) codes have been provided to development, implementation, and comment and with any disk or CD-ROM assist you and others in determining enforcement of environmental laws, you submit. If EPA cannot read your whether this action might apply to regulations, and policies. To help comment due to technical difficulties certain entities. If you have any address potential environmental justice and cannot contact you for clarification, questions regarding the applicability of issues, the Agency seeks information on EPA may not be able to consider your this action to a particular entity, consult comment. Electronic files should avoid the person listed at the end of the any groups or segments of the the use of special characters, any form pesticide petition summary of interest. population who, as a result of their of encryption, and be free of any defects location, cultural practices, or other or viruses. B. What Should I Consider as I Prepare factors, may have atypical or Docket: All documents in the docket My Comments for EPA? disproportionately high and adverse are listed in the docket index available 1. Submitting CBI. Do not submit this human health impacts or environmental at http://www.regulations.gov. Although information to EPA through effects from exposure to the pesticides listed in the index, some information is regulations.gov or e-mail. Clearly mark discussed in this document, compared not publicly available, e.g., CBI or other the part or all of the information that to the general population. information whose disclosure is you claim to be CBI. For CBI II. What Action is the Agency Taking? restricted by statute. Certain other information in a disk or CD-ROM that material, such as copyrighted material, you mail to EPA, mark the outside of the EPA is announcing its receipt of is not placed on the Internet and will be disk or CD-ROM as CBI and then several pesticide petitions filed under publicly available only in hard copy identify electronically within the disk or section 408 of the Federal Food, Drug, form. Publicly available docket CD-ROM the specific information that is and Cosmetic Act (FFDCA), 21 U.S.C. materials are available either in the claimed as CBI. In addition to one 346a, proposing the establishment or electronic docket at http:// complete version of the comment that modification of regulations in 40 CFR www.regulations.gov, or, if only includes information claimed as CBI, a part 180 for residues of pesticide available in hard copy, at the OPP copy of the comment that does not chemicals in or on various food Regulatory Public Docket in Rm. S– contain the information claimed as CBI commodities. EPA has determined that 4400, One Potomac Yard (South Bldg.), must be submitted for inclusion in the the pesticide petitions described in this 2777 S. Crystal Dr., Arlington, VA. The public docket. Information so marked document contain the data or hours of operation of this Docket will not be disclosed except in information prescribed in FFDCA Facility are from 8:30 a.m. to 4 p.m., accordance with procedures set forth in section 408(d)(2); however, EPA has not Monday through Friday, excluding legal 40 CFR part 2. fully evaluated the sufficiency of the holidays. The Docket Facility telephone 2. Tips for preparing your comments. submitted data at this time or whether number is (703) 305–5805. When submitting comments, remember the data support granting of the FOR FURTHER INFORMATION CONTACT: A to: pesticide petitions. Additional data may contact person is listed at the end of i. Identify the document by docket ID be needed before EPA can make a final each pesticide petition summary and number and other identifying determination on these pesticide may be contacted by telephone or e- information (subject heading, Federal petitions. mail. The mailing address for each Register date and page number). Pursuant to 40 CFR 180.7(f), a contact person listed is: Registration ii. Follow directions. The Agency may summary of each of the petitions that Division (7505P), Office of Pesticide ask you to respond to specific questions are the subject of this notice, prepared Programs, Environmental Protection or organize comments by referencing a by the petitioner, is included in a docket Agency, 1200 Pennsylvania Ave., NW., Code of Federal Regulations (CFR) part EPA has created for each rulemaking. Washington, DC 20460–0001. or section number. The docket for each of the petitions is SUPPLEMENTARY INFORMATION: iii. Explain why you agree or disagree; available on-line at http:// I. General Information suggest alternatives and substitute www.regulations.gov. language for your requested changes. As specified in FFDCA section A. Does this Action Apply to Me? iv. Describe any assumptions and 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is You may be potentially affected by provide any technical information and/ publishing notice of the petition so that this action if you are an agricultural or data that you used. the public has an opportunity to producer, food manufacturer, or v. If you estimate potential costs or comment on this request for the pesticide manufacturer. Potentially burdens, explain how you arrived at establishment or modification of affected entities may include, but are your estimate in sufficient detail to regulations for residues of pesticides in not limited to: allow for it to be reproduced. or on food commodities. Further • Crop production (NAICS code 111). vi. Provide specific examples to information on the petition may be • Animal production (NAICS code illustrate your concerns and suggest obtained through the petition summary 112). alternatives. referenced in this unit.

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New Tolerances animal feed, group 18, forage at 3.5 detection (LOD) and limit of 1. PP 8E7394. (EPA–HQ–OPP–2008– ppm; nongrass animal feed, group 18, quantitation (LOQ) were calculated as 0713). BASF Corporation, PO Box hay at 8 ppm; peppermint, tops at 7 0.013 and 0.040 ppm, respectively. The 13528, Research Triangle Park, NC ppm; spearmint, tops at 7 ppm; and rice, method involves extraction, solid phase 27709, proposes to establish an import grain at 1.7 ppm; and rice, straw at 4.5 cleanup of samples with analysis by tolerance for residues of the fungicide ppm. An adequate method for purposes high performance liquid pyraclostrobin, carbamic acid, [2-[[[1-(4- of enforcement of the proposed chromatography (HPLC) with ultraviolet chlorophenyl)-1H-pyrazol-3- endothall tolerances is available. The (UV) detection or confirmatory liquid yl]oxy]methyl]phenyl]methoxy-, methyl method uses a high performance liquid chromatography/mass spectrometry ester and its metabolite methyl-N-[[[1- chromatography/mass spectrometry/ (LC/)MS). The validity is demonstrated (4-chlorophenyl) pyrazol-3-yl]oxy]o- mass spectrometry (HPLC/MS/MS) by the acceptable accuracy and tolyl] carbamate (BF 500-3); expressed system. Separation is achieved using a precision obtained on numerous as parent compound] in or on coffee, reversed phase column. The molecular procedural recovery samples bean, green at 0.5 parts per million ions formed in negative ion mode were (radiovalidation and field trial sample (ppm). The method of analysis in plants fragmented by collision with neutral sets), and by the extractability and is aqueous organic solvent extraction, gas. The method is capable of analyzing accountability obtained by the analysis column clean up and quantitation by for residues of endothall on different of weathered radioactive substrates crop matrices. Contact: Sidney Jackson, using Analytical Method AG-671A. liquid chromatography/mass (703) 305–7610, Contact: Tawanda Maignan, (703) 308– spectrometry/ mass spectrometry (LC/ [email protected]. 8050, [email protected]. MS/MS). In animals the method of 3. PP 8E7427. (EPA–HQ–OPP–2008– 5. PP 8F7385. (EPA–HQ–OPP–2008– analysis involves base hydrolysis, 0731). IR-4, 500 College Rd. East, Suite 0713). BASF Corporation, PO Box organic extraction, column clean up and 201W, Princeton, NJ, 08540, proposes to 13528, Research Triangle Park, NC quantitation by LC/MS/MS or establish a tolerance for the combined 27709, proposes to establish tolerances derivatization (methylation) followed by residues of the fungicide cyazofamid, 4- for residues of the fungicide, quantitation by gas chromatography/ chloro-2-cyano-N,N-dimethyl-5-(4- pyraclostrobin, carbamic acid, [2-[[[1-(4- mass spectrometry (GC/MS). Contact: methylphenyl)-1H-imidazole-1- chlorophenyl)-1H-pyrazol-3- John Bazuin, 703-305-7381, sulfonamide (CA) and its metabolite yl]oxy]methyl]phenyl]methoxy-, methyl [email protected]. CCIM, 4-chloro-5-(4-methylphenyl)-1H- ester and its metabolite methyl-N-[[[1- 2. PP 8E7419. (EPA–HQ–OPP–2008– imidazole-2-carbonitrile (CA), in or on (4-chlorophenyl) pyrazol-3-yl]oxy]o- 0730). Interregional Research Project fruiting vegetables group 8 and okra at tolyl] carbamate (BF 500-3); expressed No. 4 (IR-4), 500 College Rd. East, Suite 0.8 ppm; and establish a tolerance with as parent compound in or on Sorghum, 201 W, Princeton, NJ 08540 proposes to regional registration, as defined in forage at 5.0 ppm; Sorghum, grain at 0.5 establish a tolerance for the combined §180.1(n), for grapes - East of the Rocky ppm; and sorghum, stover at 0.8 ppm. residues of the herbicide, endothall, 7- Mountains at 1.5 ppm. The grape The method of analysis in plants is oxabicylo[2,2,1]heptane-2,3- tolerance will change from the current aqueous organic solvent extraction, dicarboxylic acid and its monomethyl import tolerance to a regional tolerance. column clean up and quantitation by ester in or on vegetable root, and tuber Residues of cyazofamid and CCIM were LC/MS/MS. In animals the method of group 1 at 2 parts per million (ppm); extracted from 20 grams of pepper with analysis involves base hydrolysis, vegetable, leaves of root and tuber, acetonitrile. After filtration, the extract organic extraction, column clean up and group 2 at 3.5 ppm; vegetable, bulb, was evaporated to near dryness and quantitation by LC/MS/MS or group 3-07 at 2 ppm; vegetable, leafy, reconstituted with 2% sodium sulfate. derivatization (methylation) followed by except brassica, group 4 at 3.5 ppm; The analytes were removed by quantitation by gas chromatography/ vegetable, brassica, leafy, group 5 at 0.1 partitioning with methylene chloride. mass spectrometry (GC/MS). Contact: ppm; turnip, greens at 0.1 ppm; After reconstitution in 50:50 John Bazuin, (703) 305–7381, vegetable, legume, group 6 at 3 ppm; acetonitrile: water, quantitation was [email protected]. vegetable, fruiting, group 8 at 0.05 ppm; achieved by LC/MS/MS. The method for 6. PP 8F7406. (EPA–HQ–OPP–2008– okra at 0.05 ppm; vegetable, cucurbit, grapes and tomatoes was discussed in a 0704). Arysta LifeScience North group 9 at 1.1 ppm; cilanto at 3.5ppm; previous Federal Register notice on America, LLC, 15401 Weston Parkway, fruit, citrus, group 10 at 0.05 ppm; fruit, May 7, 2003. Contact: Laura Nollen, Suite 150, Cary, NC 27513, proposes to pome, group 11 at 0.05 ppm; fruit, (703) 305–7390, [email protected]. establish a tolerance for residues of the stone, group 12 at 0.25 ppm; berry and 4. PP 8F7352. (EPA–HQ–OPP–2008– fungicide fluoxastrobin, (1E)-[2-[[6-(2- small fruit group 13-07 at 0.6 ppm; 0733). Syngenta Crop Protection, chlorophenoxy)-5-fluoro-4- small fruit vine climing subgroup, Regulatory Affairs, P.O. Box 18300, pyrimydinyl]oxy]phenyl](5,6-dihydro- except fuzzy kiwifruit, 13-07F at 0.9 Greensboro, NC 27419-8300, proposes to 1,4,2-dioxazin-3-yl)methanone O- ppm; nut, tree, group 14, at 0.05 ppm; establish a tolerance for residues of the methyloxime, and its Z isomer, (1Z)-[2- pistachio at 0.05 ppm; almond, hulls at fungicide Acibenzolar S-methyl, in or [[6-(2-chlorophenoxy)-5-fluoro-4- 10 ppm; grain, cereal, group 15 at 2.5 on vegetable, cucurbit, group 9) at 1.0 pyrimydinyl]oxy]phenyl](5,6-dihydro- ppm; grain, cereal, forage, fodder and ppm. Syngenta Analytical Method AG- 1,4,2-dioxazin-3-yl)methanone O- hay, group 16, forage at 3.5 ppm; grain, 671A is a practical and valid method for methyloxime] in or on berry, low cereal, forage, fodder and hay, group 16, the determination and confirmation of growing, subgroup 13-07G at 1.9 ppm. hay at 5 ppm; grain, cereal, forage, acibenzolar S-methyl (CGA245704) in Adequate analytical methodology using fodder and hay, group 16, stover at 11 raw agricultural commodities (RAC) and LC/MS/MS detection is available for ppm; grain, cereal, forage, fodder and processing substrates from the tobacco, enforcement purposes. Contact: John hay, group 16, straw at 6 ppm; grain, leafy (including brassica) and fruiting Bazuin, (703) 305–7381, aspirated fractions at 24 ppm; grass, vegetable crop groups at a LOQ of 0.02 [email protected]. forage, fodder, and hay, group 17, forage ppm. Based on recoveries of dry bulb 7. PP 8F7410. (EPA–HQ–OPP–2006- at 3 ppm; grass, forage, fodder and hay, onion samples fortified at the lower 0848). Bayer CropScience, 2 T.W. group 17, hay at 19 ppm; nongrass limit of method validation, the limit of Alexander Dr., Research Triangle Park,

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NC 27709, proposes to establish a LC/MS/MS. In animals the method of 1,2-ethanediyl) content is 2-60 moles. tolerance for the indirect or inadvertent analysis involves base hydrolysis, Concentration in formulated pesticide residues of the fungicide fenamidone organic extraction, column clean up and end-use products not to exceed 25% by (4H-imidazol-4-one,3,5-dihydro-5- quantitation by LC/MS/MS or weight in herbicide products and 10% methyl-2-(methylthio)-5-phenyl-3- derivatization (methylation) followed by by weight in all other pesticide (phenylamino)-,(S)-) and its metabolite quantitation by GC/MS. Contact: John products. RPA 717879 (2,4-imidazolidinedione, 5- Bazuin, (703) 305–7381, methyl-5-phenyl), in or on corn, field, [email protected]. forage at 0.50 ppm; corn, field, grain at TABLE—CAS REGISTRY NO. OF New Exemption from Tolerance 0.02 ppm; corn, stover at 0.35 ppm; ALKYL AMINE POLYETHOXYLATES corn, sweet, forage at 0.15 ppm; corn, PP 8F7401. (EPA–HQ–OPP–2006- AAP (POE) sweet, kernel plus cob with husks 0993). Dow AgroSciences LLC, 9330 removed at 0.20 ppm; soybean, forage at Zionsville Rd., Indianapolis, IN 46268, CAS RN Chemical Abstract Nomen- 0.20 ppm; soybean, hay at 0.20 ppm; proposes to establish an exemption from clature and soybean, seed at 0.02 ppm. the requirement of a tolerance for residues of the herbicide florasulam, in 61790-82-7 Amines, hydrogenated tallow Although residue levels approaching the alkyl, ethoxylated proposed tolerances are unlikely, or on turfgrass. Adequate enforcement independently validated enforcement method for the combined residues of 61791-14-8 Amines, coco alkyl, methods are available for determining florasulam is available to enforce the ethoxylated residues of fenamidone and relevant tolerance expression in or on food. The metabolites. Residues are quantified by analytical method uses capillary gas 61791-24-0 Amines, soya alkyl, HPLC with tandem mass spectrometric chromatography and mass selective ethoxylated detection. The method LOQ are 0.02 detection (GC-MSD). The LOQ of the ppm or lower for fenamidone, and its method is 0.01 ug/g for grain and 0.05 61791-26-2 Amines, tallow alkyl, metabolites, RPA 412636, RPA 412708, ug/g for forage, hay and straw. A ethoxylated and RPA 410193 in test raw agricultural suitable GC/MSD analytical method is available for measuring florasulam in 68155-39-5 Amines, C14-18 and C16- commodities and processed fractions. 18-unsaturated alkyl, Contact: Rosemary Kearns, (703) 305– small grain commodities for enforcing ethoxylated 5611, [email protected]. the above tolerances. Contact: Dianne L. Morgan, (703) 305–6217, Amendment to Existing Tolerances 68155-33-9 Amines, C14-18-alkyl, [email protected]. ethoxylated 1. PP 8E7427. (EPA–HQ–OPP–2008– New Exemption from an Inert Tolerance 0731). IR-4, 500 College Rd. East, Suite 68155-40-8 Amines, C16-18 and C18- 201W, Princeton, NJ, 08540, proposes to 1. PP 8E7422. (EPA–HQ–OPP–2008– unsaturated alkyl, delete the existing tolerance in 40 CFR 0725). The Joint Inerts Task Force, ethoxylated 180.601 for the combined residues of Cluster Support Team 24, 1156 15th St., the fungicide cyazofamid, 4-chloro-2- N.W., Suite 400, Washington, DC 20005, 288259-52-9 Amines, C16-18-alkyl, cyano-N,N-dimethyl-5-(4- proposes to establish an exemption from ethoxylated the requirement of a tolerance in 40 CFR methylphenyl)-1H-imidazole-1- 58253-49-9 Amines, oleyl derivatives, sulfonamide (CA) and its metabolite 180.910 and in 40 CFR 180.930 ii for alkyl, ethoxylated CCIM, 4-chloro-5-(4-methylphenyl)-1H- residues of Sodium N-oleoyl-N-methyl imidazole-2-carbonitrile (CA), in or on taurine (CAS No. 137–20–2) when used 61791-31-9 Amines, coco derivatives tomato at 0.2 ppm since the proposed as a pesticide inert ingredient in alkyl, ethoxylated fruiting vegetable crop group tolerance pesticide formulations in or on all raw will replace the current tomato agricultural commodities. Because this 61791-44-4 Amines, tallow derivatives tolerance under ‘‘New Tolerance’’ No. 2. petition is a request for an exemption alkyl, ethoxylated In addition, the grape tolerance will from the requirement of a tolerance, no change from the existing import analytical method is required. Contact: 25307-17-9 Amines, C18 oleyl deriva- tives alkyl, ethoxylated tolerance to a regional tolerance under Karen Samek, (703) 347–8825, ‘‘New Tolerance’’ No. 2. Contact: Laura [email protected]. 73246-96-5 Amines, soya derivatives Nollen, (703) 305–7390, 2. PP 8E7382. (EPA–HQ–OPP–2008– alkyl, ethoxylated [email protected]. 0738). The Joint Inerts Task Force (JITF), 2. PP 8F7390. (EPA–HQ–OPP–2008– Cluster Support Team Number 4 (CST 70955-14-5 Amines, C13-C15-deriva- 0713). BASF Corporation, PO Box 4), EPA Company Number 84940, c/o tives alkyl, ethoxylated 13528, Research Triangle Park, NC CropLife America, 1156 15th Street, 27709, proposes to increase the N.W., Suite 400, Washington, DC 20005, 26635-93-8 Amines, oleyl (9Z) oleyl de- tolerance in 40 CFR 180.582 for residues proposes to establish an exemption from rivatives alkyl, ethoxylated of the fungicide pyraclostrobin, the requirement of a tolerance in 40 CFR carbamic acid, [2-[[[1-(4-chlorophenyl)- 26635-92-7 Amines, C18 derivatives 180.920 for residues of Alkyl Amine alkyl, ethoxylated 1H-pyrazol-3- Polyalkoxylates (hereafter referred to as yl]oxy]methyl]phenyl]methoxy-, methyl AAP) in or on all raw agricultural 10213-78-2 Amines, C18 derivatives ester and its metabolite methyl-N-[[[1- commodities when used as a pesticide alkyl, ethoxylated (4-chlorophenyl) pyrazol-3-yl]oxy]o- inert ingredient in pesticide tolyl] carbamate (BF 500-3); expressed formulations. This tolerance expression as parent compound] in or on fruit, includes the following: stone, group 12 from 0.9 to 2.5 ppm. Section 180.920: N, N-Bis-[[alpha]- The method of analysis in plants is ethyl-[omega]-hydroxypoly(oxy-1,2- aqueous organic solvent extraction, ethanediyl)] C8-C18 saturated and column clean up and quantitation by unsaturated alkylamines; the poly(oxy-

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Section 180.920: N,N-Bis-[[alpha]- of pesticide petitions proposing the and cannot contact you for clarification, ethyl/methylethyl-[omega]- establishment or modification of EPA may not be able to consider your hydroxypoly(oxy-1,2-ethanediyl/ regulations for residues of pesticide comment. Electronic files should avoid oxy(methyl-1,2-ethanediyl))] C8-C18 chemicals in or on various commodities. the use of special characters, any form saturated and unsaturated alkylamines; DATES: Comments must be received on of encryption, and be free of any defects the poly(oxy-1,2-ethanediyl/oxy(methyl- or before January 2, 2009. or viruses. 1,2-ethanediyl)) content is 2-60 moles. ADDRESSES: Submit your comments, Docket: All documents in the docket Concentration in formulated pesticide identified by docket identification (ID) are listed in the docket index available end-use products not to exceed 25% by number and the pesticide petition at http://www.regulations.gov. Although weight in herbicide products and 10% number (PP) of interest as shown in the listed in the index, some information is by weight in all other pesticide body of this document, by one of the not publicly available, e.g., CBI or other products. following methods: information whose disclosure is • Federal eRulemaking Portal: http:// restricted by statute. Certain other TABLE—CAS REGISTRY NO. OF ALKYL www.regulations.gov. Follow the on-line material, such as copyrighted material, AMINE POLYETHOXYLATE/POLYPRO- instructions for submitting comments. is not placed on the Internet and will be • PROXYLATES AAP (POE/POP) Mail: Office of Pesticide Programs publicly available only in hard copy (OPP) Regulatory Public Docket (7502P), form. Publicly available docket Environmental Protection Agency, 1200 materials are available either in the CAS RN Chemical Abstract Nomen- clature Pennsylvania Ave., NW., Washington, electronic docket at http:// DC 20460–0001. www.regulations.gov, or, if only CAS RN Chemical Abstract Nomen- • Delivery: OPP Regulatory Public available in hard copy, at the OPP clature Docket (7502P), Environmental Regulatory Public Docket in Rm. S– 68153-97-9 Amines, soya alkyl, Protection Agency, Rm. S–4400, One 4400, One Potomac Yard (South Bldg.), ethoxylated propoxylated Potomac Yard (South Bldg.), 2777 S. 2777 S. Crystal Dr., Arlington, VA. The Crystal Dr., Arlington, VA. Deliveries hours of operation of this Docket 68213-26-3 Amines, tallow alkyl, are only accepted during the Docket Facility are from 8:30 a.m. to 4 p.m., ethoxylated propoxylated Facility’s normal hours of operation Monday through Friday, excluding legal (8:30 a.m. to 4 p.m., Monday through holidays. The Docket Facility telephone 75601-76-2 Amines, hydrogenated tallow number is (703) 305–5805. alkyl, ethoxylated Friday, excluding legal holidays). propoxylated Special arrangements should be made FOR FURTHER INFORMATION CONTACT: A for deliveries of boxed information. The contact person, with telephone number Because this petition is a request for Docket Facility telephone number is and e-mail address, is listed at the end an exemption from the requirement of a (703) 305–5805. of each pesticide petition summary. You tolerance, no analytical method is Instructions: Direct your comments to may also reach each contact person by required. Contact: Karen Samek, 703- the docket ID number and the pesticide mail at: Registration Division (7505P), 347-8825, [email protected]. petition number of interest as shown in Office of Pesticide Programs, the body of this document. EPA’s policy Environmental Protection Agency, 1200 List of Subjects is that all comments received will be Pennsylvania Ave., NW., Washington, Environmental protection, included in the docket without change DC 20460–0001. and may be made available on-line at Agricultural commodities, Feed SUPPLEMENTARY INFORMATION: additives, Food additives, Pesticides http://www.regulations.gov, including and pests, Reporting and recordkeeping any personal information provided, I. General Information requirements. unless the comment includes information claimed to be Confidential A. Does this Action Apply to Me? Dated: November 25, 2008. Business Information (CBI) or other You may be potentially affected by Lois Rossi, information whose disclosure is this action if you are an agricultural Director, Registration Division, Office of restricted by statute. Do not submit producer, food manufacturer, or Pesticide Programs. information that you consider to be CBI pesticide manufacturer. Potentially or otherwise protected through [FR Doc. E8–28667 Filed 12–2–08; 8:45 am] affected entities may include, but are regulations.gov or e-mail. The not limited to: BILLING CODE 6560–50–S regulations.gov website is an • Crop production (NAICS code 111). ‘‘anonymous access’’ system, which • means EPA will not know your identity Animal production (NAICS code ENVIRONMENTAL PROTECTION or contact information unless you 112). AGENCY • provide it in the body of your comment. Food manufacturing (NAICS code [EPA–HQ–OPP–2008–0046; FRL–8391–3] If you send an e-mail comment directly 311). to EPA without going through • Pesticide manufacturing (NAICS Notice of Receipt of Several Pesticide regulations.gov, your e-mail address code 32532). Petitions Filed for Residues of will be automatically captured and This listing is not intended to be Pesticide Chemicals in or on Various included as part of the comment that is exhaustive, but rather provides a guide Commodities placed in the docket and made available for readers regarding entities likely to be AGENCY: Environmental Protection on the Internet. If you submit an affected by this action. Other types of Agency (EPA). electronic comment, EPA recommends entities not listed in this unit could also ACTION: Notice. that you include your name and other be affected. The North American contact information in the body of your Industrial Classification System SUMMARY: This notice announces the comment and with any disk or CD-ROM (NAICS) codes have been provided to Agency’s receipt of several initial filings you submit. If EPA cannot read your assist you and others in determining comment due to technical difficulties whether this action might apply to

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certain entities. If you have any any groups or segments of the Indaceno[3,2-d]oxacyclododecin-7,15- questions regarding the applicability of population who, as a result of their dione; and Spinosyn D (Factor D; CAS this action to a particular entity, consult location, cultural practices, or other No. 131929–63–0) or 2-[(6-deoxy-2,3,4- the person listed at the end of the factors, may have atypical or tri-O-methyl-a-L-manno- pesticide petition summary of interest. disproportionately high and adverse pyranosyl)oxy]-13-[[5-(dimethyl-amino)- human health impacts or environmental tetrahydro-6-methyl-2H-pyran-2-yl]oxy]- B. What Should I Consider as I Prepare effects from exposure to the pesticides 9-ethyl- My Comments for EPA? discussed in this document, compared 2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b- 1. Submitting CBI. Do not submit this to the general population. tetradecahydro-4,14-methyl-1H-as- information to EPA through Indaceno[3,2-d]oxacyclododecin-7,15- II. What Action is the Agency Taking? regulations.gov or e-mail. Clearly mark dione in or on pomegranate at 0.3 parts the part or all of the information that EPA is announcing its receipt of per million (ppm) and date at 0.1 ppm. you claim to be CBI. For CBI several pesticide petitions filed under EPA has determined adequate analytical information in a disk or CD-ROM that section 408 of the Federal Food, Drug, methods are available for enforcement you mail to EPA, mark the outside of the and Cosmetic Act (FFDCA), 21 U.S.C. purposes for spinosad in plant and disk or CD-ROM as CBI and then 346a, proposing the establishment or animal matrices. Methods include an identify electronically within the disk or modification of regulations in 40 CFR immunoassay particle-based method CD-ROM the specific information that is part 180 for residues of pesticide 97.05 and a high performance liquid claimed as CBI. In addition to one chemicals in or on various food chromatography/ultraviolet (HPLC/UV) complete version of the comment that commodities. EPA has determined that method GRM 03.15 and a suite of includes information claimed as CBI, a the pesticide petitions described in this specific crop methods: GRM 94.02 copy of the comment that does not document contain the data or (cottonseed and related commodities), contain the information claimed as CBI information prescribed in FFDCA GRM 95.17 (leafy vegetables), GRM must be submitted for inclusion in the section 408(d)(2); however, EPA has not 96.09 (citrus), GRM 96.14 (tree nuts), public docket. Information so marked fully evaluated the sufficiency of the GRM 95.04 (fruiting vegetables), GRM will not be disclosed except in submitted data at this time or whether 94.02.S1 (cotton gin byproducts). GRM accordance with procedures set forth in the data support granting of the 94.02 has a successful independent lab 40 CFR part 2. pesticide petitions. Additional data may validation and was submitted for 2. Tips for preparing your comments. be needed before EPA can make a final inclusion in the Pesticide Analytical When submitting comments, remember determination on these pesticide Manual II (PAM II) as Method I. EPA to: petitions. recently concluded that for water, i. Identify the document by docket ID Pursuant to 40 CFR 180.7(f), a residues should be estimated using total number and other identifying summary of each of the petitions that spinosad residue method (EPA, DP # information (subject heading, Federal are the subject of this notice, prepared 316077, August 2, 2006). The Agency Register date and page number). by the petitioner, is included in a docket has concluded that spinosad are ii. Follow directions. The Agency may EPA has created for each rulemaking. considered toxicologically identical to ask you to respond to specific questions The docket for each of the petitions is another pesticide, spinetoram. This or organize comments by referencing a available on-line at http:// conclusion is based on the following: Code of Federal Regulations (CFR) part www.regulations.gov. i. Spinetoram and spinosad are large or section number. As specified in FFDCA section molecules with nearly identical iii. Explain why you agree or disagree; 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is structures; and suggest alternatives and substitute publishing notice of the petition so that ii. The toxicological profiles for each language for your requested changes. the public has an opportunity to are similar (generalized systemic iv. Describe any assumptions and comment on this request for the toxicity) with similar doses and provide any technical information and/ establishment or modification of endpoints chosen for human-health risk or data that you used. regulations for residues of pesticides in assessment. Spinosad and spinetoram v. If you estimate potential costs or or on food commodities. Further should be considered toxicologically burdens, explain how you arrived at information on the petition may be identical in the same manner that your estimate in sufficient detail to obtained through the petition summary metabolites are generally considered allow for it to be reproduced. referenced in this unit. toxicologically identical to the parent. vi. Provide specific examples to Contact: Laura Nollen, (703) 305–7390, New Tolerances illustrate your concerns and suggest [email protected]. alternatives. 1. PP 8E7445. (EPA–HQ–OPP–2008– 2. PP 8E7450. (EPA–HQ–OPP–2008– vii. Explain your views as clearly as 0810). Interregional Research Project 0805). Interregional Research Project possible, avoiding the use of profanity No. 4 (IR-4), 500 College Road East, No. 4 (IR-4), 500 College Road East, or personal threats. Suite 201 W, Princeton, NJ 08540, Suite 201 W, Princeton, NJ 08540, viii. Make sure to submit your proposes to establish a tolerance for proposes to establish a tolerance for comments by the comment period residues of the insecticide spinosad, a residues of the insecticide spinetoram, deadline identified. fermentation product of expressed as a combination of XDE-175- 3. Environmental justice. EPA seeks to Saccharopolyspora spinosa which J: 1-H-as-indaceno[3,2- achieve environmental justice, the fair consists of two related active d]oxacyclododecin-7,15-dione, 2-[(6- treatment and meaningful involvement ingredients: Spinosyn A (Factor A: CAS deoxy-3-O-ethyl-2,4-di-O-methyl-a-L- of any group, including minority and/or No. 131929–60–7) or 2-[(6-deoxy-2,3,4- mannopyranosyl)oxy]-13-[[(2R,5S,6R)-5- low-income populations, in the tri-O-methyl-a-L-manno- (dimethylamino)tetrahydro-6-methyl- development, implementation, and pyranosyl)oxy]-13-[[5-(dimethylamino)- 2H-pyran-2-yl]oxy]-9-ethyl- enforcement of environmental laws, tetrahydro-6-methyl-2H-pyran-2-yl]oxy]- 2,3,3a,4,5,5a,5b,6,9,10,11,12, regulations, and policies. To help 9-ethyl- 13,14,16a,16b-hexadecahydro1 14- address potential environmental justice 2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b- methyl-(2R,3aR,5aR,5bS,9S,13S,14R, issues, the Agency seeks information on tetradecahydro-14-methyl-1H-as- 16aS,16bR);X XDE-175-L: 1H-as-

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indaceno[3,2-d]oxacyclododecin-7,15- No. 4 (IR-4), 500 College Road East, toxicologically identical to the parent. dione, 2-[(6-deoxy-3-O-ethyl-2,4-di-O- Suite 201 W, Princeton, NJ 08540, Contact: Laura Nollen, (703) 305–7390, methyl-a-L-mannopyranosyl)oxy]-13- proposes to amend the tolerances in 40 [email protected]. [[(2R,5S,6R)-5-(dimethylamino) CFR 180.495 (a) to increase the levels of 2. PP 8E7450. (EPA–HQ–OPP–2008– tetrahydro-6-methyl-2H-pyran-2-yl]oxy]- existing tolerances for residues of the 0805). Interregional Research Project 9-ethyl-2,3,3a,5a, insecticide spinosad, a fermentation No. 4 (IR-4), 500 College Road East, 5b,6,9,10,11,12,13,14,16a,16b- product of Saccharopolyspora spinosa Suite 201 W, Princeton, NJ 08540, tetradecahydro-4,14-dimethyl-, which consists of two related active proposes to amend the tolerances in 40 (2S,3aR,5aS,5bS,9S,13S,14R, ingredients: Spinosyn A (Factor A: CAS CFR 180.635 to increase the levels of 16aS,16bS); ND-J:(2R,3aR,5aR,5bS, No. 131929–60–7) or 2-[(6-deoxy-2,3,4- existing tolerances for residues of the 9S,13S,14R,16aS,16bR)-9-ethyl-14- tri-O-methyl-a-L-manno- insecticide spinetoram, expressed as a methyl-13-[[(2S,5S,6R)-6-methyl-5- pyranosyl)oxy]-13-[[5-(dimethylamino)- combination of XDE-175-J: 1-H-as- (methylamino)tetrahydro-2H-pyran-2- tetrahydro-6-methyl-2H-pyran-2-yl]oxy]- indaceno[3,2-d]oxacyclododecin-7,15- yl]oxy]-7,15-dioxo-2,3,3a,4,5,5a,5b, 9-ethyl- dione, 2-[(6-deoxy-3-O-ethyl-2,4-di-O- 6,7,9,10,11,12,13,14,15,16a,16b- 2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b- methyl-a-L-mannopyranosyl)oxy]-13- octadecahydro-1H-as-indaceno[3,2- tetradecahydro-14-methyl-1H-as- [[(2R,5S,6R)-5- d]oxacyclododecin-2-yl 6-deoxy-3-O- Indaceno[3,2-d]oxacyclododecin-7,15- (dimethylamino)tetrahydro-6-methyl- ethyl-2,4-di-O-methyl-alpha-L- dione; and Spinosyn D (Factor D; CAS 2H-pyran-2-yl]oxy]-9-ethyl-2,3,3a, mannopyranoside; and NF-J: (2R,3S,6S)- No. 131929–63–0) or 2-[(6-deoxy-2,3,4- 4,5,5a,5b, 6,9,10,11,12,13,14,16a,16b- 6-([(2R,3aR,5aR,5bS,9S,13S,14R,16aS, tri-O-methyl-a-L-manno- hexadecahydro 14-methyl- 16bR)-2-[(6-deoxy-3-O-ethyl-2,4-di-O- pyranosyl)oxy]-13-[[5-(dimethyl-amino)- (2R,3aR,5aR,5bS,9S,13S,14R, methyl-alpha-L-mannopyranosyl) oxy]- tetrahydro-6-methyl-2H-pyran-2-yl]oxy]- 16aS,16bR); XDE-175-L: 1H-as-indaceno 9-ethyl-14-methyl-7,15-dioxo- 9-ethyl- [3,2-d]oxacyclododecin-7,15-dione, 2- 2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15, 2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b- [(6-deoxy-3-O-ethyl-2,4-di-O-methyl-a- 16a,16b-octadecahydro-1H-as- tetradecahydro-4,14-methyl-1H-as- L-mannopyranosyl)oxy]-13-[[(2R,5S,6R)- indaceno[3,2-d]oxacyclododecin-13- Indaceno[3,2-d]oxacyclododecin-7,15- 5-(dimethylamino)tetrahydro-6-methyl- yl]oxy)-2-methyltetrahydro-2H-pyran-3- dione in or on nut, tree, group 14 and 2H-pyran-2-yl]oxy]-9-ethyl- yl(methyl)formamide in or on pineapple pistachio from 0.02 to 0.08 ppm; and 2,3,3a,5a,5b,6,9, 10,11,12,13,14,16a,16b- at 0.02 ppm; pomegranate at 0.3 ppm; almond, hulls from 2.0 ppm to 9.0 ppm. tetradecahydro-4,14-dimethyl-, date at 0.1 ppm; spice, subgroup 19B, A reduction to a 1–day pre-harvest (2S,3aR,5aS,5bS,9S,13S,14R, except black pepper at 1.7 ppm; hop, interval (PHI) is supported with new 16aS,16bS); ND- dry cones at 22 ppm; and pineapple, MOR data for the increased tolerances J: process residue at 0.08 ppm. Per the in tree nuts. EPA has determined (2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR) Federal Register of October 10, 2007 (72 adequate analytical methods are -9-ethyl-14-methyl-13-[[(2S,5S,6R)-6- FR 57492) (FRL–8149–9) supported by available for enforcement purposes for methyl-5-(methylamino)tetrahydro-2H- DP # 325387, August 9, 2008, EPA has spinosad in plant and animal matrices. determined adequate analytical methods Methods include an immunoassay pyran-2-yl]oxy]-7,15-dioxo- are available for enforcement purposes particle-based method 97.05 and a high 2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15, for spinetoram in plant and animal performance liquid chromatography/ 16a,16b-octadecahydro-1H-as- matrices. The methods were noted as ultraviolet (HPLC/UV) method GRM indaceno[3,2-d]oxacyclododecin-2-yl 6- efficient and well-documented. The 03.15 and a suite of specific crop deoxy-3-O-ethyl-2,4-di-O-methyl-alpha- independent laboratory validation data methods: GRM 94.02 (cottonseed and L-mannopyranoside; and NF-J: were acceptable. Spinetoram and its related commodities), GRM 95.17 (leafy (2R,3S,6S)-6- metabolites are determined using liquid vegetables), GRM 96.09 (citrus), GRM ([(2R,3aR,5aR,5bS,9S,13S,14R,16aS, chromatography with positive-ion 96.14 (tree nuts), GRM 95.04 (fruiting 16bR)-2-[(6-deoxy-3-O-ethyl-2,4-di-O- atmospheric pressure chemical vegetables), GRM 94.02.S1 (cotton gin methyl-alpha-L-mannopyranosyl) oxy]- ionization tandem mass spectrometry byproducts). GRM 94.02 has a 9-ethyl-14-methyl-7,15-dioxo- (LC/MS/MS). The limit of detection successful independent lab validation 2,3,3a,4,5,5a,5b,6, (LOD) and limit of quantitation (LOQ) in and was submitted for inclusion in the 7,9,10,11,12,13,14,15,16a,16b- crop and animal matrices are typically Pesticide Analytical Manual II (PAM II) octadecahydro-1H-as-indaceno[3,2- 0.003 g/g and 0.01 g/g, respectively. as Method I. EPA recently concluded d]oxacyclododecin-13-yl]oxy)-2- Contact: Laura Nollen, (703) 305–7390, that for water, residues should be methyltetrahydro-2H-pyran-3- [email protected]. estimated using total spinosad residue yl(methyl)formamide in or on nut, tree, 3. PP 8F7456. (EPA–HQ–OPP–2008– method. The Agency has concluded that group 14 and pistachio from 0.04 to 0.08 0811). Syngenta Crop Protection, Inc., spinosad are considered toxicologically ppm; and almond, hulls from 2.0 ppm P.O. Box 18300, Greensboro, NC 27419, identical to another pesticide, to 9.0 ppm. A reduction to a 1–day pre- proposes to establish a tolerance for spinetoram. This conclusion is based on harvest interval (PHI) is supported with residues of the herbicide mesotrione, in the following: new MOR data for the increased or on soybeans at 0.01 ppm. Practical i. Spinetoram and spinosad are large tolerances in tree nuts. EPA has and specific analytical method RAM molecules with nearly identical determined adequate analytical methods 366/01 is available for detecting and structures; and are available for enforcement purposes measuring the level of mesotrione in or ii. The toxicological profiles for each for spinosad in plant and animal on various crop commodities. Contact: are similar (generalized systemic matrices. Methods include an James M. Stone, (703) 305–7391, toxicity) with similar doses and immunoassay particle-based method [email protected]. endpoints chosen for human-health risk 97.05 and a high performance liquid assessment. Spinosad and spinetoram chromatography/ultraviolet (HPLC/UV) Amendment to Existing Tolerances should be considered toxicologically method GRM 03.15 and a suite of 1. PP 8E7445. (EPA–HQ–OPP–2008– identical in the same manner that specific crop methods: GRM 94.02 0810). Interregional Research Project metabolites are generally considered (cottonseed and related commodities),

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GRM 95.17 (leafy vegetables), GRM Alexander Drive, Research Triangle benzotriazole (CAS No. 25973–55–1) 96.09 (citrus), GRM 96.14 (tree nuts), Park, NC 27709, proposes to reduce the when used as a pesticide inert GRM 95.04 (fruiting vegetables), GRM tolerance for residues of the herbicide ingredient in pesticide spray oil 94.02.S1 (cotton gin byproducts). GRM tembotrione, 2-[2-chloro-4- formulations at a maximum 94.02 has a successful independent lab methylsulfonyl)-3-[(2,2,2- concentration of 0.6% in or on Adzuki validation and was submitted for trifluoroethoxy)methyl]benzoyl]-1,3- beans, canola, chickpeas, cotton, faba inclusion in the Pesticide Analytical cyclohexanedione, and its metabolite beans, field peas, lentils, linola, linseed, Manual II (PAM II) as Method I. EPA (M5), 2-[2-chloro-4-(methylsulfonyl)-3- lucerne, lupins, mungbeans, navy beans, recently concluded that for water, [(2,2,2-trifluoroethoxy)methyl]benzoyl]- pigeon peas, safflower, sunflower, and 4,6-dihydroxy-1,3-cyclohexanedione in residues should be estimated using total vetch. Because this petition is a request spinosad residue method (EPA, DP # or on corn, sweet, forage at 0.09 ppm; for an exemption from the requirement 316077, August 2, 2006). The Agency corn, sweet, kernel plus cob with husks has concluded that spinosad are removed at 0.01 ppm; corn, sweet, of a tolerance, no analytical method is considered toxicologically identical to stover at 0.15 ppm. Independently required. Contact: Karen Samek, (703) another pesticide, spinetoram. This validated, analytical methods for plants, 347–8825, [email protected]. conclusion is based on the following: plant products and animal matrices, 3. PP 8E7387. (EPA–HQ–OPP–2008– i. Spinetoram and spinosad are large suitable for enforcement purposes, have 0671). Loveland Products, Inc., P.O. Box molecules with nearly identical been submitted for measuring 1286, Greeley, CO 80632–1286, structures; and tembotrione and all significant proposes to establish an exemption from ii. The toxicological profiles for each metabolites. Typically, residues are the requirement of a tolerance in 40 CFR are similar (generalized systemic extracted from plant or animal using 180.920 for residues of the choline toxicity) with similar doses and accelerated solvent extraction. chloride (CAS No. 67–48–1) when used endpoints chosen for human-health risk Following concentration, quantitation is as a pesticide inert ingredient as a assessment. Spinosad and spinetoram by liquid chromatography/mass solvent in pesticide formulations. should be considered toxicologically spectrometry/mass spectrometry (LC/ Because this petition is a request for an identical in the same manner that MS/MS) using deuterated internal exemption from the requirement of a metabolites are generally considered standards. AE 1392936 requires toxicologically identical to the parent. additional clean-up by anion exchange, tolerance, no analytical method is Contact: Laura Nollen, (703) 305–7390, solid phase extraction prior to required. Contact: Karen Samek, (703) [email protected]. quantitation. Determination of AE 347–8825, [email protected]. 3. PP 8F7454. (EPA–HQ–OPP–2008– 1417268 in ruminant samples requires a 4. PP 8E7421. (EPA–HQ–OPP–2008– 0806). Y-TEX Corporation, 1825 Big hexane wash prior to quantitation. 0794). Akzo Nobel Surface Chemistry, Horn Avenue, P.O. Box 1450, Cody, WY Contact: Michael Walsh, (703) 308– LLC, 525 West Van Buren Street, 82414, proposes to amend the tolerances 2972, [email protected]. Chicago, IL 60607–3823, proposes to in 40 CFR 180.449 by increasing the New Exemptions from an Inert establish an exemption from the combined residues of the insecticide requirement of a tolerance in 40 CFR avermectin B (a mixture of avermectins Tolerance 1 180.960 for residues of formaldehyde, containing greater than or equal to 80% 1. PP 8E7362. (EPA–HQ–OPP–2008– polymer with 2-methyloxirane and 4- avermectin B1a(5-O-demethyl 0601). Ag-Chem Consulting, 12208 nonylphenol (CAS No. 37523–33–4) avermectin A1) and less than or equal to Quinque Lane, Clifton, VA 21024 on when used as a pesticide inert 20% avermectin B1b(5-O-demethyl-25- behalf of Caltex Inc., 2 Market Street, de(1-methylpropyl)-25-(1-methylethyl) Sydney Australia, proposes to establish ingredient in pesticide formulations. avermectin A1)) and its delta-8,9-isomer an exemption from the requirement of a Akzo Nobel submitted a petition to EPA in or on cattle, fat from 0.015 ppm to tolerance in 40 CFR 180.920 for residues under the Federal Food, Drug, and 0.03 ppm and cattle, meat byproducts of the ultraviolet (UV) stabilizer Phenol, Cosmetic Act (FFDCA), as amended by from 0.02 ppm to 0.06 ppm. Avermectin 2-(2H-benzotriazol-2-yl)-6-dodecyl-4- the Food Quality Protection Act of 1996 B1 is referred to as simply abamectin methyl (CAS No. 23328–53–2) when (FQPA) requesting an exemption from throughout this document. The used as a pesticide inert ingredient in the requirements of a tolerance. This analytical method is titled pesticide spray oil formulations at a petition requests the elimination of the ‘‘Determination of Macrocyclic Lactone maximum concentration of 0.6% in or need to establish a maximum Residues in Bovine and Ovine Tissues,’’ on Adzuki beans, canola, chickpeas, permissible level for residues of referenced as Method No. AATM-R-53. cotton, faba beans, field peas, lentils, formaldehyde, polymer with 2- The method involves maceration of the linola, linseed, lucerne, lupins, methyloxirane and 4-nonylphenol in or tissue sample with acetonitrile, mungbeans, navy beans, pigeon peas, on all raw agricultural commodities. homogenization, filtration, partition, safflower, sunflower, and vetch. Because this petition is a request for an extraction and cleanup with analysis by Because this petition is a request for an exemption from the requirement of a high performance liquid exemption from the requirement of a tolerance, no analytical method is chromatography (HPLC) - fluorescence tolerance, no analytical method is required. Contact: Alganesh Debesai, detection. The method is sufficiently required. Contact: Karen Samek, (703) (703) 308–8353, sensitive to detect residues at a limit of 347–8825, [email protected]. [email protected]. detection of 0.002 ppm and a limit of 2. PP 8E7363. (EPA–HQ–OPP–2008– quantification of 0.005 ppm. Both levels 0602). Ag-Chem Consulting, 12208 List of Subjects are below the tolerances proposed. The Quinque Lane, Clifton, VA 21024 on method has undergone independent behalf of Caltex Inc., 2 Market Street, Environmental protection, laboratory validation as required by PR Sydney Australia, proposes to establish Agricultural commodities, Feed Notice 96-1. Contact: Thomas Harris, an exemption from the requirement of a additives, Food additives, Pesticides (703) 308–9423, [email protected]. tolerance in 40 CFR 180.920 for residues and pests, Reporting and recordkeeping 4. PP 8F7452. (EPA–HQ–OPP–2008– of the ultraviolet (UV) stabilizer 2-(2’- requirements. 0813). Bayer CropScience, 2 T.W. hydroxy-3’,5’-di-t-amylphenyl)-

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Dated: November 25, 2008. listed under FOR FURTHER INFORMATION List of Subjects Lois Rossi, CONTACT. Environmental protection, Modeling, Director, Registration Division, Office of B. How Can I Get Copies of this Model, Best Management Practices, Pesticide Programs. Document and Other Related Ecosystem, Pesticides. [FR Doc. E8–28668 Filed 12–2–08; 8:45 am] Information? Dated: November 11, 2008. BILLING CODE 6560–50–S 1. Docket. EPA has established a Donald J. Brady, docket for this action under docket ID Director, Environmental Fate and Effects ENVIRONMENTAL PROTECTION number EPA–HQ–OPP–2008–0102. Division, Office of Pesticide Programs. AGENCY Publicly available docket materials are [FR Doc. E8–28665 Filed 12–2–08; 8:45 am] available either in the electronic docket BILLING CODE 6560–50–S [EPA–HQ–OPP–2008–0102; FRL–8392–5] at http://www.regulations.gov, or, if only Exposure Modeling Public Meeting; available in hard copy, at the Office of ENVIRONMENTAL PROTECTION Notice of Public Meeting Pesticide Programs (OPP) Regulatory Public Docket in Rm. S–4400, One AGENCY AGENCY: Environmental Protection Potomac Yard (South Bldg.), 2777 S. [EPA–HQ–OPP–2008–0743; FRL–8385–9] Agency (EPA). Crystal Dr., Arlington, VA. The hours of ACTION: Notice. operation of this Docket Facility are Pesticide Products; Registration from 8:30 a.m. to 4 p.m., Monday Applications SUMMARY: An Exposure Modeling Public through Friday, excluding legal Meeting (EMPM) will be held for one AGENCY: holidays. The Docket Facility telephone Environmental Protection day on December 9, 2008. This notice number is (703) 305–5805. Agency (EPA). announces the location and time for the 2. Electronic access. You may access ACTION: Notice. meeting and sets forth the tentative this Federal Register document agenda topics. SUMMARY: This notice announces receipt electronically through the EPA Internet DATES: The meeting will be held on of applications to register pesticide under the ‘‘Federal Register’’ listings at products containing new active December 9, 2008 from 9:00 am to 4:00 http://www.epa.gov/fedrgstr. pm. ingredients not included in any To request accommodation of a II. Background currently registered products pursuant to the provisions of section 3(c)(4) of the disability, please contact the person On a triannual interval, an Exposure listed under FOR FURTHER INFORMATON Federal Insecticide, Fungicide, and Modeling Public Meeting will be held Rodenticide Act (FIFRA), as amended. CONTACT, preferably at least 10 days for presentation and discussion of prior to the meeting, to give EPA as DATES: Comments must be received on current issues in modeling pesticide or before February 2, 2009. much time as possible to process your fate, transport, and exposure in support ADDRESSES: Submit your comments, request. of risk assessment in a regulatory identified by docket identification (ID) ADDRESSES: The meeting will be held at context. Meeting dates and abstract number EPA–HQ–OPP–2008–0743, by Environmental Protection Agency, requests are announced through the one of the following methods: Office of Pesticide Programs (OPP), One ‘‘empmlist’’ forum on the LYRIS list • Federal eRulemaking Portal: http:// Potomac Yard (South Building), 1st server at https://lists.epa.gov/read/ www.regulations.gov. Follow the on-line Floor South Conference Room, 2777 S. all_forums/. Crystal Drive, Arlington, VA 22202. instructions for submitting comments. • FOR FURTHER INFORMATION CONTACT: III. How Can I Request to Participate in Mail: Office of Pesticide Programs Stephen Wente, Environmental Fate and this Meeting? (OPP) Regulatory Public Docket (7502P), Effects Division (7507P), Office of Environmental Protection Agency, 1200 You may submit a request to Pennsylvania Ave., NW., Washington, Pesticide Programs, Environmental participate in this meeting to the person Protection Agency, 1200 Pennsylvania DC 20460–0001. listed under FOR FURTHER INFORMATION • Delivery: OPP Regulatory Public Ave., NW., Washington, DC 20460– CONTACT. Do not submit any information Docket (7502P), Environmental 0001; telephone number: (703) 305– in your request that is considered CBI. Protection Agency, Rm. S–4400, One 0001; fax number: (703) 305–6309; e- Requests to participate in the meeting, Potomac Yard (South Bldg.), 2777 S. mail address: [email protected]. identified by docket ID number EPA– Crystal Dr., Arlington, VA. Deliveries SUPPLEMENTARY INFORMATION: HQ–OPP–2008–0102, must be received are only accepted during the Docket on or before December 18, 2008. I. General Information Facility’s normal hours of operation IV. Tentative Topics for the Meeting (8:30 a.m. to 4 p.m., Monday through A. Does this Action Apply to Me? Friday, excluding legal holidays). You may be potentially affected by General Theme: Riparian Zone Special arrangements should be made this action if you are required to Modeling and Best Management for deliveries of boxed information. The conduct testing of chemical substances Practices Docket Facility telephone number is under the Toxic Substances Control Act Specific Topics: (703) 305–5805. (TSCA), the Federal Food, Drug and Riparian Ecosystem Management Instructions: Direct your comments to Cosmetic Act (FFDCA), or the Federal Model (REMM) docket ID number EPA–HQ–OPP–2008– Insecticide, Fungicide, and Rodenticide Comparative Modeling of Soil and 0743. EPA’s policy is that all comments Act (FIFRA). Since other entities may Water Assessment Tool (SWAT) and received will be included in the docket also be interested, the Agency has not REMM without change and may be made attempted to describe all the specific REMM and Turf Modeling available on-line at http:// entities that may be affected by this Agricultural Policy EXtender (APEX) www.regulations.gov, including any action. If you have nay questions Model personal information provided, unless regarding the applicability of this action Best Management Practices (BMP) the comment includes information to a particular entity, consult the person Assessment Tools claimed to be Confidential Business

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Information (CBI) or other information affected entities may include, but are vi. Provide specific examples to whose disclosure is restricted by statute. not limited to: illustrate your concerns and suggest Do not submit information that you • Crop production (NAICS code 111). alternatives. consider to be CBI or otherwise • Animal production (NAICS code vii. Explain your views as clearly as protected through regulations.gov or e- 112). possible, avoiding the use of profanity mail. The regulations.gov website is an • Food manufacturing (NAICS code or personal threats. ‘‘anonymous access’’ system, which 311). viii. Make sure to submit your means EPA will not know your identity • Pesticide manufacturing (NAICS comments by the comment period or contact information unless you code 32532). deadline identified. provide it in the body of your comment. This listing is not intended to be II. Registration Applications If you send an e-mail comment directly exhaustive, but rather provides a guide to EPA without going through for readers regarding entities likely to be EPA received applications as follows regulations.gov, your e-mail address affected by this action. Other types of to register pesticide products containing will be automatically captured and entities not listed in this unit could also active ingredients not included in any included as part of the comment that is be affected. The North American previously registered products pursuant placed in the docket and made available Industrial Classification System to the provision of section 3(c)(4) of on the Internet. If you submit an (NAICS) codes have been provided to FIFRA. Notice of receipt of these electronic comment, EPA recommends assist you and others in determining applications does not imply a decision that you include your name and other whether this action might apply to by the Agency on the applications. contact information in the body of your certain entities. If you have any File Symbol: 71711-GN. Applicant: comment and with any disk or CD-ROM questions regarding the applicability of Nichino America, Inc., 4550 New you submit. If EPA cannot read your this action to a particular entity, consult Linden Hill Rd., Linden Park, Suite 501, comment due to technical difficulties the person listed under FOR FURTHER Wilmington, DE 19808. Product Name: and cannot contact you for clarification, INFORMATION CONTACT. Tolfenpyrad Technical 15EC. Active EPA may not be able to consider your B. What Should I Consider as I Prepare Ingredient: Tolfenpyrad PC Code: comment. Electronic files should avoid My Comments for EPA? 090111. Tolfenpyrad is a METl site 1 the use of special characters, any form (iRAC Class 21) insecticide. Use: of encryption, and be free of any defects 1. Submitting CBI. Do not submit this Tolfenpyrad PC will be used to control or viruses. information to EPA through thrips (including Western Flower), Docket: All documents in the docket regulations.gov or e-mail. Clearly mark aphids, and scales in the greenhouse on are listed in the docket index available the part or all of the information that non-food ornamentals. The product will at http://www.regulations.gov. Although you claim to be CBI. For CBI be applied as a direct spray, with a listed in the index, some information is information in a disk or CD-ROM that backpack sprayer or similar low-volume not publicly available, e.g., CBI or other you mail to EPA, mark the outside of the equipment in the greenhouse. The end- information whose disclosure is disk or CD-ROM as CBI and then use product, 71711-GR, is a 15% restricted by statute. Certain other identify electronically within the disk or emulsifiable concentrate (EC). (M. material, such as copyrighted material, CD-ROM the specific information that is Banks). is not placed on the Internet and will be claimed as CBI. In addition to one publicly available only in hard copy complete version of the comment that List of Subjects form. Publicly available docket includes information claimed as CBI, a Environmental protection, Pesticides materials are available either in the copy of the comment that does not and pests. electronic docket at http:// contain the information claimed as CBI www.regulations.gov, or, if only must be submitted for inclusion in the Dated: November 18, 2008. available in hard copy, at the OPP public docket. Information so marked Donald R. Stubbs, Regulatory Public Docket in Rm. S– will not be disclosed except in Acting Director, Registration Division, Office 4400, One Potomac Yard (South Bldg.), accordance with procedures set forth in of Pesticide Programs. 2777 S. Crystal Dr., Arlington, VA. The 40 CFR part 2. [FR Doc. E8–28595 Filed 12–2–08; 8:45 am] hours of operation of this Docket 2. Tips for preparing your comments. BILLING CODE 6560–50–S Facility are from 8:30 a.m. to 4 p.m., When submitting comments, remember Monday through Friday, excluding legal to: holidays. The Docket Facility telephone i. Identify the document by docket ID ENVIRONMENTAL PROTECTION number is (703) 305–5805. number and other identifying AGENCY information (subject heading, Federal FOR FURTHER INFORMATION CONTACT: [EPA–HQ–OPP–2007–0837; FRL–8391–2] Melody Banks, Registration Division Register date and page number). (7505P), Office of Pesticide Programs, ii. Follow directions. The Agency may Malathion; Amendments to Terminate Environmental Protection Agency, 1200 ask you to respond to specific questions Uses Pennsylvania Ave., NW., Washington, or organize comments by referencing a DC 20460–0001; telephone number: Code of Federal Regulations (CFR) part AGENCY: Environmental Protection (703) 305–5413; e-mail address: or section number. Agency (EPA). [email protected]. iii. Explain why you agree or disagree; ACTION: Notice. suggest alternatives and substitute SUPPLEMENTARY INFORMATION: language for your requested changes. SUMMARY: This notice announces EPA’s I. General Information iv. Describe any assumptions and order for the amendments to terminate provide any technical information and/ uses, voluntarily requested by the A. Does this Action Apply to Me? or data that you used. registrant and accepted by the Agency, You may be potentially affected by v. If you estimate potential costs or of products containing the pesticide this action if you are an agricultural burdens, explain how you arrived at malathion, pursuant to section 6(f)(1) of producer, food manufacturer, or your estimate in sufficient detail to the Federal Insecticide, Fungicide, and pesticide manufacturer. Potentially allow for it to be reproduced. Rodenticide Act (FIFRA), as amended.

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This cancellation order follows an wide range of stakeholders including TABLE 2.—REGISTRANT OF AMENDED October 8, 2008 Federal Register Notice environmental, human health, and MALATHION PRODUCTS of Receipt of Request (73 FR 58952) agricultural advocates; the chemical (FRL–8384–1) from the malathion industry; pesticide users; and members EPA Com- Company Name and registrant to voluntarily terminate uses of the public interested in the sale, pany Address of their malathion product registrations. distribution, or use of pesticides. Since Number For the affected product registrations, others also may be interested, the this cancellation order terminates 4787 Cheminova, Inc. Washington Agency has not attempted to describe all Office, 1600 Wilson Boule- malathion use in or on commercial the specific entities that may be affected vard, Suite 700, Arlington, storage/warehouse premises (excluding by this action. If you have any questions VA 22209 stored grain facilities such as silos), regarding the applicability of this action commercial transportation facilities – to a particular entity, consult the person III. Summary of Public Comments feed/food – empty, commercial listed under FOR FURTHER INFORMATION transportation facilities – nonfeed/ Received and Agency Response to CONTACT. nonfood, commercial/institutional/ Comments industrial premises/equipment (indoor), B. How Can I Get Copies of this The Agency received four comments commercial/institutional/industrial Document and Other Related during the 30–day comment period. premises/equipment (outdoor), dairies/ Information? Two comments recommended cheese processing plant equipment cancellation of all malathion uses. 1. Docket. EPA has established a (food contact), eating establishments, However, neither comment provided a food processing plants (excluding stored docket for this action under docket substantive rationale for the course of grain facilities such as silos), golf course identification (ID) number EPA–HQ– action suggested. A third comment turf, greenhouse – empty, indoor hard OPP–2007–0837. Publicly available suggested that termination of the use of surfaces, indoor premises, residential docket materials are available either in malathion in greenhouses will limit dust formulations, residential lawns the electronic docket at http:// control options for commercial growers (broadcast), residential pressurized can www.regulations.gov, or, if only formulations, and sewage systems. treating ornamental grasses for cereal available in hard copy, at the Office of leaf beetle. Prior to publication of the These are not the last malathion Pesticide Programs (OPP) Regulatory products registered for use in the United malathion reregistration eligibility Public Docket in Rm. S–4400, One decision in 2006, the technical States. In the October 8, 2008 Notice, Potomac Yard (South Bldg.), 2777 S. EPA indicated that it would issue an registrant for malathion requested that Crystal Dr., Arlington, VA. The hours of greenhouse uses be deleted from the order implementing the amendment to operation of this Docket Facility are terminate uses, unless the Agency malathion registrations. Consequently, from 8:30 a.m. to 4 p.m., Monday received substantive comments within potential risks associated with the use of through Friday, excluding legal the 30–day comment period that would malathion in greenhouses were not holidays. The Docket Facility telephone merit its further review of these evaluated during the reregistration requests, or unless the registrant number is (703) 305–5805. process. Also, the Agency has withdrew their request within this 2. Electronic access. You may access determined that there are several period. The Agency received comments this Federal Register document alternative chemicals which are suitable on the notice but none merited its electronically through the EPA Internet for control of cereal leaf beetle on further review of the requests. Further, under the ‘‘Federal Register’’ listings at ornamental grasses. The fourth the registrant did not withdraw their http://www.epa.gov/fedrgstr. comment indicated support for the request. Accordingly, EPA hereby issues continued use of malathion on in this notice a cancellation order II. What Action is the Agency Taking? mushrooms. This order does not address granting the requested amendments to This notice announces the malathion use on mushrooms. For these terminate uses. Any distribution, sale, amendments to terminate uses, as reasons, the Agency does not believe or use of the malathion products subject requested by a registrant, of certain that the comments submitted during the to this cancellation order is permitted manufacturing-use malathion products comment period merit further review or only in accordance with the terms of registered under section 3 of FIFRA. a denial of the requests for voluntary this order, including any existing stocks These registrations are listed in cancellation. provisions. sequence by registration number in DATES: The cancellations are effective IV. Cancellation Order Table 1 of this unit. December 3, 2008. Pursuant to FIFRA section 6(f), EPA FOR FURTHER INFORMATION CONTACT: Eric TABLE 1.—MALATHION PRODUCT REG- hereby approves the requested Miederhoff, Special Review and ISTRATION AMENDMENTS TO TERMI- amendments to terminate uses of Reregistration Division (7508P), Office NATE USES malathion registrations identified in of Pesticide Programs, Environmental Table 1 of Unit II. Accordingly, the Protection Agency, 1200 Pennsylvania EPA Registration Agency orders that the malathion Ave., NW., Washington, DC 20460– Number Product Name product registrations identified in Table 0001; telephone number: (703) 347– 1 of Unit II. are hereby amended to 8028; fax number: (703) 308–7070; e- 4787–5 Fyfanon Technical terminate the affected uses. Any mail address: [email protected]. distribution, sale, or use of existing SUPPLEMENTARY INFORMATION: 4787–43 Malathion Technical stocks of the products identified in I. General Information Table 1 of Unit II. in a manner Table 2 of this unit includes the name inconsistent with any of the Provisions A. Does this Action Apply to Me? and address of record for the registrant for Disposition of Existing Stocks set This action is directed to the public of the products in Table 1 of this unit forth in Unit VI. will be considered a in general, and may be of interest to a by EPA company number. violation of FIFRA.

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V. What is the Agency’s Authority for EXPORT-IMPORT BANK OF THE Complainants aver that Marine Express Taking this Action? UNITED STATES and Ferries del Caribe transport passengers, goods and vehicles between Section 6(f)(1) of FIFRA provides that Sunshine Act Meeting the Dominican Republic and Puerto a registrant of a pesticide product may Rico on said vessel. Complainants at any time request that any of its ACTION: Notice of a Partially Open Ferries del Caribe and Marine Express pesticide registrations be canceled or Meeting of the Board of Directors of the maintain that they are common carriers amended to terminate one or more uses. Export-Import Bank of the United within the meaning of the Shipping Act FIFRA further provides that, before States. of 1984, as amended (‘‘The Shipping acting on the request, EPA must publish Act’’). See 46 U.S.C. 40102(6). TIME AND PLACE: a notice of receipt of any such request Friday, December 5, Complainants assert that Respondent 2008 at 9:30 a.m. The meeting will be in the Federal Register. Thereafter, Mayagu¨ ez Port Commission is held at Ex-Im Bank in Room 1143, 811 following the public comment period, responsible for all port business within Vermont Avenue, NW., Washington, DC the Administrator may approve such a the Port of Mayagu¨ ez, and that 20571. request. Respondent Holland Group administers OPEN AGENDA ITEMS: Item No. 1: Ex-Im and operates the Mayagu¨ ez port VI. Provisions for Disposition of Bank Advisory Committee for 2009. facilities. Complainants contend that Existing Stocks PUBLIC PARTICIPATION: The meeting will Respondents Mayagu¨ ez Port be open to public participation for Item Commission and Holland Group are Existing stocks are those stocks of No. 1 only. marine terminal operators within the registered pesticide products which are meaning of The Shipping Act. See 46 FOR FURTHER INFORMATION CONTACT: For currently in the United States and U.S.C. 40102(14). which were packaged, labeled, and further information, contact: Office of Complainants allege that ownership the Secretary, 811 Vermont Avenue, released for shipment prior to the of the Port of Mayagu¨ ez was transferred NW., Washington, DC 20571 (Tele. No. effective date of the cancellation action. to Respondent Port Commission in July 202–565–3957). The cancellation order issued in this 2004, with a requirement to honor the notice includes the following existing Kamil Cook, terms of Complainant Marine Express’ stocks provisions. Deputy General Counsel. existing lease, and that this requirement [FR Doc. E8–28623 Filed 12–2–08; 8:45 am] was not honored. Complainants contend 1. The registrant may continue to sell that Respondents’ actions, including BILLING CODE 6690–01–M and distribute existing stocks of Fyfanon aforesaid action, constitute violations of Technical, EPA Reg. No. 4787–5, and The Shipping Act including unjust, Malathion Technical, EPA Reg. No. unreasonable and unlawful practices in 4787–43, with previously approved FEDERAL MARITIME COMMISSION violation of Section 41102(c), and labeling that includes uses terminated [Docket No. 08–06] unreasonable refusals to negotiate, by this cancellation order, until June 3, unreasonable discrimination and undue 2009. Western Holding Group, Inc., Marine or unreasonable prejudice and 2. Persons other than the registrant Express, Inc. and Corporacio´ n Ferries disadvantages in violation of Sections may continue to sell and/or distribute del Caribe, Inc. v. Mayagu¨ ez Port 41106(1)–(3). 46 U.S.C. 41102(c), existing stocks of Fyfanon Technical, Commission and Holland Group Port 41106(1)–(3). Complainants request that the EPA Reg. No. 4787–5, and Malathion Investment (Mayagu¨ ez), Inc.; Notice of Filing of Complaint and Assignment Commission order Respondents to: (1) Technical, EPA Reg. No. 4787–43, with Cease and desist from the violations of previously approved labeling that Notice is given that a complaint has The Shipping Act described in this includes the terminated uses until such been filed with the Federal Maritime Complaint; (2) establish and put in force stocks are exhausted. Commission (‘‘Commission’’) by such practices as the Commission 3. Persons other than the registrant Western Holding Group, Inc. (‘‘Western determines lawful and reasonable; (3) may continue to use existing stocks of Holding’’), Marine Express, Inc. pay to the Complainants reparations of Fyfanon Technical, EPA Reg. No. 4787– (‘‘Marine Express’’) and Corporacio´n $25,000,000.00 including attorney’s 5, and Malathion Technical, EPA Reg. Ferries del Caribe, Inc. (‘‘Ferries del fees, interests and costs; and (4) take any No. 4787–43, with previously approved Caribe’’), hereinafter ‘‘Complainants’’. other action or provide any other relief labeling that includes the terminated Complainants assert that they are for- as the Commission determines to be uses, provided that they are not used to profit corporations organized and warranted under the circumstances. existing pursuant to the laws of the This proceeding has been assigned to formulate products labeled for any use Commonwealth of Puerto Rico. the Office of Administrative Law Judges. described in Unit II. of this cancellation Complainants allege that Respondent Hearing in this matter, if any is held, order, until such stocks are exhausted. Mayagu¨ ez Port Commission (‘‘Port shall commence within the time List of Subjects Commission’’) is a public corporation limitations prescribed in 46 CFR 502.61, and that Respondent Holland Group and only after consideration has been Environmental protection, Pesticides Port Investment (Mayagu¨ ez), Inc. given by the parties and the presiding and pests. (‘‘Holland Group’’) is a for-profit officer to the use of alternative forms of corporation. Complainants further allege dispute resolution. The hearing shall Dated: November 25, 2008. that both Respondent corporations are include oral testimony and cross- Steven Bradbury, organized and existing pursuant to the examination in the discretion of the Director, Special Review and Reregistration laws of the Commonwealth of Puerto presiding officer only upon proper Division, Office of Pesticide Programs. Rico. showing that there are genuine issues of [FR Doc. E8–28664 Filed 12–2–08; 8:45 am] Complainants assert that Complainant material fact that cannot be resolved on BILLING CODE 6560–50–S Western Holding owns and charters the the basis of sworn statements, affidavits, vessel M/V CARIBBEAN EXPRESS. depositions, or other documents or that

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the nature of the matter in issue is such In order for the Commission to make DATES: Effective Date: The provisions of that an oral hearing and cross- a thorough evaluation of the Petition, this notice are effective on December 3, examination are necessary for the interested persons are requested to 2008, development of an adequate record. submit views or arguments in reply to Applicability Date: The final wage Pursuant to the further terms of 46 CFR the Petition no later than December 15, indices and hospital reclassifications are 502.61, the initial decision of the 2008. Replies shall consist of an original applicable for discharges beginning presiding officer in this proceeding shall and 15 copies, be directed to the October 1, 2008. be issued by November 26, 2009, and Secretary, Federal Maritime FOR FURTHER INFORMATION CONTACT: Tzvi the final decision of the Commission Commission, 800 North Capitol Street, Hefter, (410) 786–4487. shall be issued by March 26, 2010. NW., Washington, DC 20573–0001, and SUPPLEMENTARY INFORMATION: be served on Petitioner’s counsel, David Karen V. Gregory, F. Smith and Wayne R. Rohde, Sher and I. Background Secretary. Blackwell LLP, Suite 900, 1850 M On July 15, 2008 the Medicare [FR Doc. E8–28638 Filed 12–2–08; 8:45 am] Street, NW., Washington, DC 20036. A Improvement for Patients and Providers BILLING CODE 6730–01–P copy of the reply shall be submitted in Act of 2008 (MIPPA) (Pub. L. 110–275) electronic form (Microsoft Word) by e- was enacted. Section 124 of Public Law mail to [email protected]. FEDERAL MARITIME COMMISSION 110–275 extends through FY 2009 wage The Petition will be posted on the index reclassifications under section Commission’s Web site at http:// 508 of the Medicare Prescription Drug, [Petition No. P2–08] www.fmc.gov/reading/Petitions.asp. Improvement, and Modernization Act of Replies filed in response to this petition 2003 (MMA) (Pub. L. 108–173) and Petition of APM Terminals Pacific Ltd., also will be posted on the Commission’s California United Terminals, Inc.; Eagle certain special exceptions (for example, Web site at this location. those special exceptions contained in Marine Services, Ltd.; International Parties participating in this Transportation Services, Inc.; Long the final rule promulgated in the August proceeding may elect to receive service 11, 2004 Federal Register (69 FR 49105 Beach Container Terminal, Inc.; of the Commission’s issuances in this Seaside Transportation Service LLC; and 49107) and extended under section proceeding through e-mail in lieu of 117 of the Medicare, Medicaid, and Total Terminals LLC; West Basin service by U.S. mail. A party opting for Container Terminal LLC; Pacific SCHIP Extension Act of 2007 (MMSEA) electronic service shall advise the Office (Pub. L. 110–173)). Because of the Maritime Services, LLC; SSA Terminal of the Secretary in writing and provide (Long Beach), LLC Trans Pacific timing of the enactment of Public Law an e-mail address where service can be 110–275, we were not able to recompute Container Service Corporation; Yusen made. Terminals, Inc.; and SSA Terminals, the fiscal year (FY) 2009 wage index LLC, (‘‘Marine Terminal Operators’’); Karen V. Gregory, values for any hospital reclassified and Portcheck LLC; Notice of Filing Secretary. under section 508 and special exception hospitals in time for inclusion in the FY and Request for Comments [FR Doc. E8–28637 Filed 12–2–08; 8:45 am] 2009 hospital inpatient prospective This is to provide notice of filing and BILLING CODE 6730–01–P payment system final rule published in to invite comments on or before the August 19, 2008 Federal Register December 15, 2008, with regard to the (73 FR 48434) (hereinafter referred to as Petition described below. DEPARTMENT OF HEALTH AND the FY 2009 IPPS final rule). Instead, we The marine terminal operators as HUMAN SERVICES stated that we would issue the final FY listed above and PortCheck LLC, parties 2009 wage index values and other Centers for Medicare & Medicaid to FMC Agreement No. 201199, the Port related tables, in a separate Federal Services Fee Services Agreement (‘‘Petitioners’’) Register notice published subsequent to have petitioned the Commission [CMS–1390–N2] the final rule. pursuant to 46 CFR 502.69 of the In the October 3, 2008 Federal Commission’s Rules of Practice and RIN 0938–AP15 Register (73 FR 57888), we published Procedure, for a review of a staff action Medicare Program; Hospital Inpatient the FY 2009 IPPS final notice including taken concerning the effective date of Prospective Payment Systems and the final wage indices and geographic Petitioners’ agreement filed on Fiscal Year 2009 Rates: Fiscal Year reclassifications. The final notice November 3, 2008. In particular, 2009 Wage Index Changes Following reflects the reclassification withdrawal Commission staff found that the Implementation of Section 124 of the and termination decisions we made on agreement was not eligible for an Medicare Improvement for Patients behalf of hospitals in accordance with exemption from the statutory 45-day and Providers Act of 2008 special procedural rules explained in agreement waiting period under Section the FY 2009 IPPS final rule (73 FR 40304(c) of the Shipping Act of 1984 AGENCY: Centers for Medicare & 48588). (‘‘Shipping Act’’), and the Commission’s Medicaid Services (CMS), HHS. In accordance with such rules, Rules at 46 CFR 535.308(a). ACTION: Notice. hospitals had until October 20, 2008 to Certain interested parties have already notify us if they wished to revise the submitted comments on this Petition. SUMMARY: This notice contains fiscal decision that we made on their behalf. One letter, submitted by counsel on year (FY) 2009 revised final wage We received requests from 31 hospitals. behalf of licensed motor carriers Swift indices and hospital reclassifications for Of these hospitals, three hospitals were Transportation Company and Knight 27 hospitals. These revised final wage ineligible for a revision because the Transportation, Inc., indicate that they indices and hospital reclassifications hospitals were not reclassified to or have been ‘‘informed by the Ports’’ of were made according to special located in areas containing hospitals the Commission staff action thereon. procedural rules set forth in the FY 2009 whose reclassifications or special Accordingly, it appears that there may hospital inpatient prospective payment exceptions were extended by section be broad public interest. systems final rule (73 FR 48588–9). 124 of Public Law 110–275. A fourth

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hospital was ineligible because we did FY 2009 IPPS final rule (73 FR 48588) 9B of the October 3, 2008 notice. not make a decision on behalf of the and the October 3, 2008 notice (73 FR Therefore, this notice provides the hospital. 57888), we did not further recalculate revisions to those tables for the the wage indices (including any rural II. Provisions of This Notice specified providers. floors or imputed rural floors) or This notice provides the revisions to standardized amounts based on the A. Wage Index Revisions for Table 2 the final wage index values and hospital revisions for these 27 hospitals. Changes The wage data for the listed providers reclassifications for 27 hospitals based based on hospitals’ requests affect the are revised as follows: on hospitals’ requests. As stated in the data presented in Tables 2, 4J, 9A, and

TABLE 2—HOSPITAL CASE-MIX INDEXES FOR DISCHARGES OCCURRING IN FEDERAL FISCAL YEAR 2007; HOSPITAL WAGE INDEXES FOR FEDERAL FISCAL YEAR 2009; HOSPITAL AVERAGE HOURLY WAGES FOR FEDERAL FISCAL YEARS 2007 (2003 WAGE DATA), 2008 (2004 WAGE DATA), AND 2009 (2005 WAGE DATA); AND 3-YEAR AVERAGE OF HOSPITAL AVERAGE HOURLY WAGES

Average Average Average Average Case mix FY 2009 hourly hourly hourly hourly Provider No. index wage wage FY wage FY wage FY wage index 2007 2008 2009 (3 years)

050069 ...... 1.7315 1.2032 34.6353 35.3850 38.1339 36.1121 050168 ...... 1.5718 1.2032 37.9784 40.5973 40.8362 39.8630 050173 ...... 1.3439 1.2032 29.0576 31.6717 32.3265 30.9929 050193 ...... 1.2326 1.2032 33.9520 29.0623 36.7240 32.9059 050224 ...... 1.6646 1.2032 32.5010 35.7280 37.3442 35.2849 050226 ...... 1.5109 1.2032 32.4411 35.4597 36.5354 34.8258 050230 ...... 1.5465 1.2032 34.0600 35.8490 38.8901 36.2987 050348 ...... 1.7778 1.2032 31.5156 32.7107 33.5276 32.6288 050426 ...... 1.4602 1.2032 33.2031 34.9855 37.6505 35.2298 050526 ...... 1.1838 1.2032 28.1997 33.3964 35.5457 32.2794 050543 ...... 0.7528 1.2032 29.4443 24.4913 32.8367 28.6013 050548 ...... 0.7102 1.2032 39.2234 41.1075 * 40.1570 050551 ...... 1.3450 1.2032 34.0467 37.2506 37.6223 36.3787 050567 ...... 1.5114 1.2032 35.7063 37.6384 39.0114 37.5242 050570 ...... 1.5522 1.2032 34.5161 38.4373 40.6761 37.8616 050580 ...... 1.1501 1.2032 31.5806 34.1531 35.0966 33.6235 050589 ...... 1.2415 1.2032 34.5100 37.6886 37.2056 36.5102 050603 ...... 1.4514 1.2032 34.0275 35.0279 35.4809 34.9113 050609 ...... 1.3266 1.2032 41.7208 39.7397 43.4555 41.6214 050678 ...... 1.3259 1.2032 32.4473 33.7633 35.8411 34.1151 050693 ...... 1.3935 1.2032 34.5797 39.6838 42.8266 38.9562 050720 ...... 0.9629 1.2032 29.4726 30.3595 32.1173 30.5950 050744 ...... 1.7431 1.2032 * * 48.4951 48.4951 050745 ...... 1.3420 1.2032 * * 42.5523 42.5523 050746 ...... 1.8199 1.2032 * * 43.2015 43.2015 050747 ...... 1.5410 1.2032 * * 44.5887 44.5887 250078 ...... 1.5862 0.8418 22.1243 22.8430 23.9598 22.9835

B. Revisions to Table 4J following listed providers has been Beach-Glendale, CA for FY 2009; and, revised to include an asterisk to indicate therefore, are ineligible to receive an The entry in the second column titled, that the providers have been reclassified outmigration adjustment for FY 2009: ‘‘Reclassified for FY 2009’’, for the to CBSA 31084 Los Angeles-Long

TABLE 4J—OUT-MIGRATION ADJUSTMENT—FY 2009

Out- Provider No. Reclassified migration Qualifying county name County for FY 2009 adjustment code

050069 ...... * 0.0013 Orange...... 05400 050168 ...... * 0.0013 Orange...... 05400 050173 ...... * 0.0013 Orange...... 05400 050193 ...... * 0.0013 Orange...... 05400 050224 ...... * 0.0013 Orange...... 05400 050226 ...... * 0.0013 Orange...... 05400 050230 ...... * 0.0013 Orange...... 05400 050348 ...... * 0.0013 Orange...... 05400 050426 ...... * 0.0013 Orange...... 05400 050526 ...... * 0.0013 Orange...... 05400 050543 ...... * 0.0013 Orange...... 05400 050548 ...... * 0.0013 Orange...... 05400 050551 ...... * 0.0013 Orange...... 05400

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TABLE 4J—OUT-MIGRATION ADJUSTMENT—FY 2009—Continued

Out- Provider No. Reclassified migration Qualifying county name County for FY 2009 adjustment code

050567 ...... * 0.0013 Orange...... 05400 050570 ...... * 0.0013 Orange...... 05400 050580 ...... * 0.0013 Orange...... 05400 050589 ...... * 0.0013 Orange...... 05400 050603 ...... * 0.0013 Orange...... 05400 050609 ...... * 0.0013 Orange...... 05400 050678 ...... * 0.0013 Orange...... 05400 050693 ...... * 0.0013 Orange...... 05400 050720 ...... * 0.0013 Orange...... 05400 050744 ...... * 0.0013 Orange...... 05400 050745 ...... * 0.0013 Orange...... 05400 050746 ...... * 0.0013 Orange...... 05400 050747 ...... * 0.0013 Orange...... 05400

C. Revisions to Table 9A The geographic reclassification data for listed providers have been revised as specified in the following table:

TABLE 9A—HOSPITAL RECLASSIFICATIONS AND REDESIGNATIONS—FY 2009

Geographic Reclassified Provider No. CBSA CBSA LUGAR

050069 ...... 42044 31084 050168 ...... 42044 31084 050173 ...... 42044 31084 050193 ...... 42044 31084 050224 ...... 42044 31084 050226 ...... 42044 31084 050230 ...... 42044 31084 050348 ...... 42044 31084 050426 ...... 42044 31084 050526 ...... 42044 31084 050543 ...... 42044 31084 050548 ...... 42044 31084 050551 ...... 42044 31084 050567 ...... 42044 31084 050570 ...... 42044 31084 050580 ...... 42044 31084 050589 ...... 42044 31084 050603 ...... 42044 31084 050609 ...... 42044 31084 050678 ...... 42044 31084 050693 ...... 42044 31084 050720 ...... 42044 31084 050744 ...... 42044 31084 050745 ...... 42044 31084 050746 ...... 42044 31084 050747 ...... 42044 31084 250078 ...... 25620 25060

D. Revisions to Table 9B III. Regulatory Impact Statement 96–354), section 1102(b) of the Social Security Act, section 202 of the In Table 9B, entitled ‘‘Hospital We do not consider this notice to constitute a rule under 5 U.S.C. 553(b). Unfunded Mandates Reform Act of 1995 Reclassifications and Redesignations by (March 22, 1995; Pub. L. 104–4), Individual Hospital under Section 508 The notice announces wage index values and reclassifications based upon Executive Order 13132 on Federalism of Public Law 108–173 and Special (August 4, 1999) and the Congressional Exceptions Wage Index Assignments— policies already adopted in the FY 2009 IPPS final rule. Thus, we do not believe Review Act (5 U.S.C. 804(2)) are FY 2009’’, provider 25–0078 is removed that reviews under Executive Order required. Nevertheless, we have because the provider is now listed in 12866 on Regulatory Planning and examined the impact of this notice Table 9A (see section II.C. of this notice) Review (September 30, 1993, as further under the aforementioned authorities. as reclassified to CBSA 25060, Gulfport- amended), the Regulatory Flexibility Executive Order 12866 (as amended Biloxi, MS. Act (RFA) (September 19, 1980, Pub. L. by Executive Orders 13258 and 13422)

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directs agencies to assess all costs and tribal governments or on the private ADDRESSES: Submit written requests for benefits of available regulatory sector. single copies of the draft guidance to the alternatives and, if regulation is Executive Order 13132 establishes Division of Drug Information, Center for necessary, to select regulatory certain requirements that an agency Drug Evaluation and Research, Food approaches that maximize net benefits must meet when it promulgates a and Drug Administration, 10903 New (including potential economic, proposed rule (and subsequent final Hampshire Ave., Bldg. 51, rm. 2201, environmental, public health and safety rule) that imposes substantial direct Silver Spring, MD 20993–0002. Send effects, distributive impacts, and requirement costs on State and local one self-addressed adhesive label to equity). A regulatory impact analysis governments, preempts State law, or assist that office in processing your (RIA) must be prepared for major rules otherwise has Federalism implications. requests. Submit written comments on with economically significant effects Since this notice does not impose any the draft guidance to the Division of ($100 million or more in any one year). costs on State or local governments, the Dockets Management (HFA–305), Food We estimate that FY 2009 IPPS requirements of Executive Order 13132 and Drug Administration, 5630 Fishers payments will increase approximately are not applicable. Lane, rm. 1061, Rockville, MD 20852. $3 million based on the changes Authority: (Catalog of Federal Domestic Submit electronic comments to http:// included in this notice. Therefore, we Assistance Program No. 93.773, Medicare— www.regulations.gov. See the note that not only does this notice not Hospital Insurance; and Program No. 93.774, SUPPLEMENTARY INFORMATION section for constitute a substantive rule, but it also Medicare—Supplementary Medical electronic access to the draft guidance does not reach the economic threshold Insurance Program). document. and thus is not considered a major rule. Dated: November 20, 2008. FOR FURTHER INFORMATION CONTACT: The RFA requires agencies to analyze Kerry Weems, Mary Ann Holovac, Center for Drug options for regulatory relief of small Acting Administrator, Centers for Medicare Evaluation and Research (HFD–615), businesses. For purposes of the RFA, & Medicaid Services. Food and Drug Administration, 7500 small entities include small businesses, Approved: November 25, 2008. Standish Pl., Rockville, MD 20855, 240– nonprofit organizations, and small Michael O. Leavitt, 276–8971. governmental jurisdictions. Most SUPPLEMENTARY INFORMATION: hospitals and most other providers and Secretary. suppliers are small entities, either by [FR Doc. E8–28619 Filed 12–2–08; 8:45 am] I. Background BILLING CODE 4120–01–P nonprofit status or by having revenues FDA is announcing the availability of of $7.0 million to $34.5 million in any a draft guidance for industry entitled one year. Individuals and States are not DEPARTMENT OF HEALTH AND ‘‘Submission of Patent Information for included in the definition of a small HUMAN SERVICES Certain Old Antibiotics.’’ The draft entity. We are not preparing an analysis guidance provides information for the RFA because the notice is not a Food and Drug Administration regarding FDA’s current thinking on the substantive rule, and we have implementation of section 4(b)(1) of the determined, and the Secretary certifies, [Docket No. FDA–2008–D–0609] Q1 Act (Public Law 110–379). that this notice will not have a The Q1 Act amends section 505 of the significant economic impact on a Draft Guidance for Industry on the Federal Food, Drug, and Cosmetic Act substantial number of small entities. Submission of Patent Information for (the FD&C Act) (21 U.S.C. 355) by In addition, section 1102(b) of the Act Certain Old Antibiotics; Availability adding subsection (v), which requires us to prepare a regulatory establishes, among other things, certain impact analysis if a rule may have a AGENCY: Food and Drug Administration, conditions under which the patent significant impact on the operations of HHS. listing, patent certification, and a substantial number of small rural ACTION: Notice. marketing exclusivity provisions of hospitals. This analysis must conform to sections 505(c) and (j) of the FD&C Act, the provisions of section 604 of the SUMMARY: The Food and Drug and the patent term extension RFA. For purposes of section 1102(b) of Administration (FDA) is announcing the provisions of 35 U.S.C. 156 apply to the Act, we define a small rural hospital availability of a draft guidance for marketing applications for drugs that as a hospital that is located outside of industry entitled ‘‘Submission of Patent contain an antibiotic that was the a Metropolitan Statistical Area for Information for Certain Old subject of any marketing application Medicare payment regulations and has Antibiotics.’’ The draft guidance received by FDA on or before November fewer than 100 beds. We are not describes the agency’s current thinking 20, 1997 (an old antibiotic). The preparing an analysis for section 1102(b) on the implementation of certain transitional rules at section 4(b) of the of the Act because we have determined, provisions of the Q1 Program Q1 Act provide for the submission of and the Secretary certifies, that this Supplemental Funding Act (the Q1 Act) the patent information by sponsors of notice will not have a significant impact that concern old antibiotics and certain NDAs, the publication of such on the operations of a substantial addresses which sponsors of new drug patent information by FDA, and the number of small rural hospitals. applications (NDAs) must submit patent certification to such patents by Section 202 of the Unfunded information under the Q1 Act by applicants of pending abbreviated new Mandates Reform Act of 1995 also December 5, 2008. drug applications to be deemed ‘‘a first requires that agencies assess anticipated DATES: Although you can comment on applicant’’ (as defined in section costs and benefits before issuing any any guidance at any time (see 21 CFR 505(j)(5)(B)(iv) the FD&C Act), not later rule whose mandates require spending 10.115(g)(5)), to ensure that the agency than 60, 90, and 120 days after in any one year of $100 million in 1995 considers your comment on this draft enactment of the Q1 Act, respectively. dollars, updated annually for inflation. guidance before it begins work on the Specifically, section 4(b)(1) of the Q1 In 2008, that threshold is approximately final version of the guidance, submit Act requires the submission to FDA of $130 million. This notice will have no written or electronic comments on the patent information by sponsors of consequential effect on State, local, or draft guidance by February 2, 2009. certain NDAs for drugs (including

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combination drugs) containing old 314.53 have been approved under OMB Dated: November 21, 2008. antibiotics by December 5, 2008.1 The control number 0910–0513. Jennifer Spaeth, draft guidance describes FDA’s current IV. Electronic Access Director, Office of Federal Advisory thinking on the implementation of Committee Policy. section 4(b)(1) of the Q1 Act and Persons with access to the Internet [FR Doc. E8–28509 Filed 12–2–08; 8:45 am] addresses which sponsors of NDAs must may obtain the document at either BILLING CODE 4140–01–M submit patent information to the agency http://www.fda.gov/cder/guidance/ under section 4(b)(1) of the Q1 Act by index.htm or http:// December 5, 2008. www.regulations.gov. DEPARTMENT OF HOMELAND This draft guidance is being issued SECURITY consistent with FDA’s good guidance Dated: November 26, 2008. practices regulation (21 CFR 10.115). Jeffrey Shuren, Federal Emergency Management The draft guidance, when finalized, will Associate Commissioner for Policy and Agency represent the agency’s current thinking Planning. on the submission of patent information [FR Doc. E8–28657 Filed 12–2–08; 8:45 am] Agency Information Collection under section 4(b)(1) of the Q1 Act. It BILLING CODE 4160–01–S Activities: Submission for OMB does not create or confer any rights for Review; Comment Request or on any person and does not operate DEPARTMENT OF HEALTH AND AGENCY: Federal Emergency to bind FDA or the public. An Management Agency, DHS. alternative approach may be used if HUMAN SERVICES ACTION: Notice; 30-day notice and such approach satisfies the National Institutes of Health request for comments; Extension, requirements of the applicable statutes without change, of a currently approved and regulations. National Institute of General Medical collection, OMB Number 1660–0024, No II. Comments Sciences; Notice of Closed Meeting Form. Interested persons may submit to the Pursuant to section 10(d) of the SUMMARY: The Federal Emergency Division of Dockets Management (see Federal Advisory Committee Act, as Management Agency (FEMA) has ADDRESSES) written or electronic amended (5 U.S.C. Appendix 2), notice submitted the following information comments regarding this document. is hereby given of the following collection to the Office of Management Submit a single copy of electronic meeting. and Budget (OMB) for review and comments or two paper copies of any clearance in accordance with the The meeting will be closed to the mailed comments, except that requirements of the Paperwork public in accordance with the individuals may submit one paper copy. Reduction Act of 1995. The submission provisions set forth in sections Comments are to be identified with the describes the nature of the information 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., docket number found in brackets in the collection, the categories of as amended. The grant applications and heading of this document. Received respondents, the estimated burden (i.e., the discussions could disclose comments may be seen in the Division the time, effort and resources used by confidential trade secrets or commercial of Dockets Management between 9 a.m. respondents to respond) and cost, and property such as patentable material, and 4 p.m., Monday through Friday. includes the actual data collection and personal information concerning Please note that on January 15, 2008, instruments FEMA will use. the FDA Division of Dockets individuals associated with the grant Management Web site transitioned to applications, the disclosure of which Collection of Information the Federal Dockets Management would constitute a clearly unwarranted Title: Federal Assistance for Offsite System (FDMS). FDMS is a invasion of personal privacy. Radiological Emergency Planning. Government-wide, electronic docket Name of Committee: National Institute of OMB Number: 1660–0024. management system. Electronic General Medical Sciences, Special Emphasis Abstract: In accordance with comments or submissions will be Panel, Large-Scale Collaborative Project Executive Order 12657, FEMA will need accepted by FDA only through FDMS at Awards (U54). certain information from the licensee Date: December 22, 2008. http://www.regulations.gov. (the utility which has applied for or Time: 8:30 a.m. to 5 p.m. received a license from the Nuclear III. Paperwork Reduction Act of 1995 Agenda: To review and evaluate grant applications. Regulatory Commission (NRC) to This draft guidance refers to Place: National Institutes of Health, operate a nuclear power plant) in order previously approved collections of Natcher Building, 45 Center Drive, Bethesda, to form a decision, based on the advice information found in FDA regulations. MD 20892, (Virtual Meeting). of the NRC, as to whether or not a These collections of information are Contact Person: Lisa Dunbar, PhD, condition of ‘‘decline or fail’’ exists on subject to review by the Office of Scientific Review Officer, Office of Scientific the part of State or local governments Management and Budget (OMB) under Review, National Institute of General Medical (44 CFR 352.3–4). This information will the Paperwork Reduction Act of 1995 Sciences, National Institutes of Health, 45 be collected by the appropriate FEMA Center Drive, Room 3AN12, Bethesda, MD (44 U.S.C. 3501–3520). The collections Regional Office or Headquarters. 20892, 301–594–2849, [email protected]. Affected Public: Business or other for- of information in 21 CFR 314.50(h) and (Catalogue of Federal Domestic Assistance Program Nos. 93.375, Minority Biomedical profit. 1 Section 4(b)(1) of the Q1 Act requires the Research Support; 93.821, Cell Biology and Number of Respondents: 1. submission of patent information to FDA ‘‘not later Biophysics Research; 93.859, Pharmacology, Estimated Time per Respondent: 160 than sixty days after enactment of [the Q1 Act].’’ Physiology, and Biological Chemistry hours. Sixty days after enactment falls on Sunday, Research; 93.862, Genetics and Estimated Total Annual Burden December 7, 2008. Therefore, to be in compliance Hours: 160 hours. with this provision, sponsors must submit the Developmental Biology Research; 93.88, patent information on or before the weekday Minority Access to Research Careers; 93.96, Frequency of Response: Once. preceding December 7, 2008, that is, on or before Special Minority Initiatives, National Comments: Interested persons are December 5, 2008. Institutes of Health, HHS) invited to submit written comments on

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the proposed information collection to Mail: P.O. Box 240, Errol, NH 03579– land within its approved boundary, the Office of Information and Regulatory 0240. monitoring the occupancy and Affairs, Office of Management and In-Person Viewing or Pickup: Call productivity of its common loon, bald Budget. Comments should be addressed 603–482–3415, ext. 20, to make an eagle, and osprey nesting sites and to Desk Officer for the Department of appointment during regular business protecting them from human Homeland Security, Federal Emergency hours at Route 16 North, Errol, NH. disturbance, conducting baseline Management Agency, and sent via FOR FURTHER INFORMATION CONTACT: For biological inventories, and providing electronic mail to answers to questions about the refuge, public opportunities for wildlife- [email protected] or faxed contact Paul Casey, Refuge Manager, dependent recreation. to (202) 395–6974. Comments must be 603–482–3415, ext. 20, e-mail: Background submitted on or before January 2, 2009. [email protected] or, for questions FOR FURTHER INFORMATION CONTACT: about the planning process, contact The CCP Process Requests for additional information or Nancy McGarigal, Natural Resource The National Wildlife Refuge System copies of the information collection Planner, 413–253–8562, e-mail: Improvement Act of 1997 (16 U.S.C. should be made to Acting Director, [email protected]. Please 668dd–668ee; Improvement Act), which Records Management Division, 500 C remember to put ‘‘Lake Umbagog NWR amends the National Wildlife Refuge Street, SW., Washington, DC 20472, Final CCP/EIS’’ in the subject line of System Administration Act of 1966, Mail Drop Room 301, facsimile number your message. requires us to develop a CCP for each (202) 646–3347, or e-mail address SUPPLEMENTARY INFORMATION: national wildlife refuge. The purpose for [email protected]. developing CCPs is to provide refuge Introduction Lawann Johnson, managers with 15-year plans for Our publishing this notice of achieving refuge purposes, contributing Acting Director, Records Management availability facilitates the CCP process Division, Office of Management, Federal toward the mission of the National Emergency Management Agency, Department for Lake Umbagog NWR that we started Wildlife Refuge System (NWRS), and of Homeland Security. by publishing a notice of intent in the conforming to sound principles of fish [FR Doc. E8–28688 Filed 12–2–08; 8:45 am] Federal Register (67 FR 136; July 16, and wildlife management, conservation, 2002). For more about the process, see BILLING CODE 9110–21–P legal mandates, and our policies. In that notice. We released the draft CCP/ addition to outlining broad management EIS to the public and requested your direction on conserving wildlife and comments in a notice of availability in their habitats, CCPs identify wildlife- DEPARTMENT OF THE INTERIOR the Federal Register (72 FR 129; July 6, dependent recreational opportunities 2007). Fish and Wildlife Service available to the public: Hunting, fishing, We are announcing the availability of wildlife observation and photography, [FWS–R5–R–2008–N0204; 50133–1265– the final CCP/EIS for Lake Umbagog and environmental education and LKUP; S3] NWR, and our preferred actions for interpretation. We will review and managing it, in accordance with the update the CCP at least once every 15 Lake Umbagog National Wildlife National Environmental Policy Act years, also in accordance with the Refuge, Coos County, NH, and Oxford (NEPA) (40 CFR 1506.6(b)). The Improvement Act. County, ME document contains a thorough analysis of impacts on the human environment. CCP Alternatives AGENCY: Fish and Wildlife Service, Our next planning step will be to Our draft CCP/EIS (72 FR 129) and Interior. complete a Record of Decision no this final CCP/EIS fully analyze three ACTION: Notice of availability: Final sooner than 30 days after publication of alternatives for the future management comprehensive conservation plan and this notice (40 CFR 1506.10(b)(2)). of the refuge. During the planning environmental impact statement. The CCP will guide us in managing process, we identified and addressed 18 and administering the refuge for the major issues generated by several SUMMARY: We, the U.S. Fish and next 15 years. We propose that sources: the public, state or federal Wildlife Service (Service), announce the alternative B, the Service-preferred agencies, other Service programs, and availability for review of our final alternative, serve as the foundation for our planning team. Both the draft and comprehensive conservation plan (CCP) the final, stand-alone CCP. We highlight final plans identify alternative B as the and environmental impact statement the modifications we made to Service-preferred alternative. (EIS) for Lake Umbagog National alternative B between the draft and final Wildlife Refuge (NWR). This document CCP/EIS in ‘‘Comments,’’ below. Comments describes how we propose to manage Our first purchase of land for the We solicited comments on the draft the refuge for the next 15 years. refuge established it in 1992. Its CCP/EIS for Lake Umbagog refuge for a DATES: We will sign a record of decision purposes are to provide long-term 45-day period starting on July 6, 2007 no sooner than 30 days after the protection for unique wetlands, federal- (72 FR 129). In response to requests for publication of this notice. and state-listed threatened or additional time, we extended that ADDRESSES: You may view or obtain endangered species, migratory birds of comment period another 32 days, until copies of the final CCP/EIS by any of the conservation concern, and regionally September 21, 2007. We held five public following methods. You may request a significant concentrations of wildlife. hearings and two information sessions print copy or CD–ROM. This 21,650-acre refuge lies in Coos during that time, and received 14,269 Agency Web Site: Download a copy of County, New Hampshire, and Oxford responses, both oral and written. We the document(s) at http:// County, Maine. It contains widely evaluated all of the written and library.fws.gov/ccps.htm. diverse types of upland and wetland electronic correspondence and oral E-mail: [email protected]. habitats around the 8,500-acre Umbagog testimony we received, and responded Include ‘‘Lake Umbagog Final CCP/EIS’’ Lake. Since establishing the refuge, we to them in final CCP/EIS appendix O, in the subject line of your message. have focused primarily on conserving ‘‘Summary of, and the Service’s

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Response to, Public Comments Received received revealed the misunderstanding Management Plan and Environmental on the Draft Comprehensive that our implementing alternatives B Impact Statement (GMP/EIS), Pipestone Conservation Plan and Environmental and C would result in new restrictions National Monument (national Impact Statement (Draft CCP/EIS) for in our programs. That is not the case. monument), Minnesota. On September Lake Umbagog National Wildlife We now provide a better explanation, 30, the Midwest Regional Director Refuge.’’ We present here some of the and point out that we intend to approved the ROD for the project. As changes we made in our final CCP/EIS, implement the same programs on any soon as practicable, the NPS will begin which are also discussed in appendix O. newly acquired lands. to implement the preferred alternative 1. In response to concerns about local 6. We revise alternative B to allow contained in the final EIS. economic impacts, our expansion certain public uses in designated areas The NPS will implement the preferred proposal replaces some fee acquisition that we originally planned not to allow. alternative as described in the Final with easement acquisition in Maine, Those include dog sledding, horseback GMP/EIS issued on March 28, 2008. and reduces the total number of acres. riding, bicycling, and collecting certain Alternative 1, the preferred alternative, We now propose to acquire from willing berries, fiddleheads, mushrooms, and will reduce the development in the sellers 47,807 acres (formerly, 49,718 shed antlers for personal use. heart of the national monument, acres), and change the acquisition ratio 7. We modify our proposal in preserving its setting, site history, and to 56 percent in fee and 44 percent in alternatives B and C regarding boat easement. Appendix A, ‘‘Land access, by eliminating our original spiritual significance as the source of Protection Plan,’’ shows our revised proposals for a boat launch at Sturtevant pipestone. The NPS will remove the proposal. Pond and major improvements at B visitor center and parking, enabling 2. Two new maps clarify our proposal Pond. We are scaling back our proposal visitors to see the site much as it on the roads and trails we would open at B Pond to include a small parking appeared prior to 1937. The national for public use on both current refuge area near the road, away from the shore. monument will acquire a parcel of lands and refuge expansion lands. We also propose keeping the boat school district land to the northeast and Chapter 2, ‘‘Alternatives Considered, launch at the current refuge will seek a cooperative agreement with Including the Service-preferred headquarters on Route 16 North open to the U.S. Fish and Wildlife Service and Alternative,’’ clarifies them in maps 2.8 public access, instead of closing it. the Minnesota Department of Natural and 2.9. Item 6, below, describes them. Resources to coordinate management of 3. We propose to postpone our Public Availability of Documents the 100-acre Pipestone Wildlife decision on whether to manage In addition to the methods in Management Area. American Indian furbearer species, and whether that ADDRESSES, above, you can view or ceremonial use of the Three Maidens management could include trapping. obtain the documents at the following area will be unchanged. The Hiawatha We will conduct further analysis and locations. Club will continue to use the Three prepare a more detailed Furbearer • Our Web site, http://library.fws.gov/ Maidens as a backdrop for its pageant Management Plan. That change, which ccps.htm. under permit restrictions, and the area we propose in both alternatives B and • The Errol Town Library, during will be restored to prairie. Sun Dances C, is included in chapter 2, in the regular hours. will continue, but modifications of use section ‘‘Actions Common to Dated: September 24, 2008. might be made on the basis of impact Alternatives B and C Only.’’ Before and the sustainability of resources. Wendi Weber, trapping would be permitted under a Quarries will continue to be allocated Furbearer Management Plan, we will Acting Regional Director, Region 5, U.S. Fish by permit. analyze the appropriateness of this use and Wildlife Service, Hadley, MA 01035. and issue a compatibility determination, [FR Doc. E8–28649 Filed 12–2–08; 8:45 am] The GMP/EIS evaluated this course of if warranted, analyzing whether this use BILLING CODE 4310–55–P action and two other action alternatives, is compatible with the mission of the and a no action alternative. The full NWRS and refuge purposes, and under range of foreseeable environmental what conditions. DEPARTMENT OF THE INTERIOR consequences were assessed and 4. We propose to postpone our appropriate mitigating measures were decision on whether to expand our National Park Service identified. current hunt program to incorporate Notice of Availability for the Record of The ROD includes a statement of the bobcat hunting in Maine and turkey Decision on the Final General decision made, synopses of other hunting in Maine and New Hampshire. Management Plan and Environmental alternatives considered, the basis for the That action would have made our hunt Impact Statement, Pipestone National decision, a description of the program consistent with the states’ hunt Monument, MN environmentally preferable alternative, programs. However, we have a finding on impairment of park determined the need to conduct further AGENCY: National Park Service, resources and values, a listing of analysis, in conjunction with a revised Department of the Interior. measures to minimize environmental Hunt Plan and environmental ACTION: Notice of Availability for the harm, and an overview of public assessment, and include additional Record of Decision on the Final General involvement in the decisionmaking public comment. We propose that Management Plan and Environmental process. change in both alternatives B and C in Impact Statement, Pipestone National the same section of chapter 2. If our Monument, Minnesota. FOR FURTHER INFORMATION CONTACT: hunt program is expanded in the future, Superintendent Glen Livermont, 36 we will issue a new compatibility SUMMARY: Pursuant to Section 102(2)(C) Reservation Avenue, Pipestone, determination with any changes to the of the National Environmental Policy Minnesota 56164–1269, or by calling current program. Act of 1969 (42 U.S.C. 4332(C)), the 507–825–5464. Copies of the ROD are 5. The same section of chapter 2 also National Park Service (NPS) announces available upon request from the above clarifies our hunting and fishing the availability of the Record of address or may be viewed online at programs. The public comments we Decision (ROD) for the Final General http://parkplanning.nps.gov/pipe.

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Dated: September 30, 2008. NRC Web site, http://www.nrc.gov/ Those permitted to intervene become Ernest Quintana, reading-rm/doc-collections/cfr/. If a parties to the proceeding, subject to any Regional Director, Midwest Region. request for a hearing or petition for limitations in the order granting leave to [FR Doc. E8–28671 Filed 12–2–08; 8:45 am] leave to intervene is filed by the above intervene, and have the opportunity to BILLING CODE 4312–AA–P date, the Commission or a presiding participate fully in the conduct of the officer designated by the Commission or hearing. by the Chief Administrative Judge of the All documents filed in NRC adjudicatory proceedings, including a NUCLEAR REGULATORY Atomic Safety and Licensing Board request for hearing, a petition for leave COMMISSION Panel, will rule on the request and/or petition; and the Secretary or the Chief to intervene, any motion or other [Docket Nos. 50–269, 50–270, and 50–287] Administrative Judge of the Atomic document filed in the proceeding prior Safety and Licensing Board will issue a to the submission of a request for Duke Energy Carolinas, LLC; Notice of notice of a hearing or an appropriate hearing or petition to intervene, and Consideration of Issuance of order. documents filed by interested Amendment to Facility Operating As required by 10 CFR 2.309, a governmental entities participating License and Opportunity for a Hearing petition for leave to intervene shall set under 10 CFR 2.315(c), must be filed in forth with particularity the interest of accordance with the NRC E-Filing rule, The U.S. Nuclear Regulatory the petitioner/requestor in the which the NRC promulgated on August Commission (the Commission) is proceeding, and how that interest may 28, 2007 (72 FR 49139). The E-Filing considering issuance of amendments to be affected by the results of the process requires participants to submit Renewed Facility Operating License proceeding. The petition should and serve all adjudicatory documents Nos. DPR–38, DPR–47, and DPR–55, specifically explain the reasons why over the Internet, or in some cases to issued to Duke Energy Carolinas, LLC intervention should be permitted with mail copies on electronic storage media. (the licensee), for operation of Oconee particular reference to the following Participants may not submit paper Nuclear Station, Units 1, 2, and 3 general requirements: (1) The name, copies of their filings unless they seek located in Seneca, South Carolina. address and telephone number of the a waiver in accordance with the The proposed amendments would requestor or petitioner; (2) the nature of procedures described below. accommodate the replacement of the the requestor’s/petitioner’s right under To comply with the procedural current analog-based reactor protective the Act to be made a party to the requirements of E-Filing, at least ten system (RPS) and engineered safeguards proceeding; (3) the nature and extent of (10) days prior to the filing deadline, the protective system (ESPS) with a digital the requestor’s/petitioner’s property, petitioner/requestor must contact the computer-based RPS/ESPS. financial, or other interest in the Office of the Secretary by e-mail at Before issuance of the proposed proceeding; and (4) the possible effect of [email protected], or by calling license amendment, the Commission any decision or order which may be (301) 415–1677, to request (1) a digital will have made findings required by the entered in the proceeding on the ID certificate, which allows the Atomic Energy Act of 1954, as amended requestor’s/petitioner’s interest. The participant (or its counsel or (the Act), and the Commission’s petition must also identify the specific representative) to digitally sign regulations. contentions which the petitioner/ documents and access the E-Submittal The filing of requests for hearing and requestor seeks to have litigated at the server for any proceeding in which it is petitions for leave to intervene is proceeding. participating; and/or (2) creation of an discussed below. Each contention must consist of a electronic docket for the proceeding Within 60 days after the date of specific statement of the issue of law or (even in instances in which the publication of this notice, the person(s) fact to be raised or controverted. In petitioner/requestor (or its counsel or may file a request for a hearing with addition, the petitioner/requestor shall representative) already holds an NRC- respect to issuance of the amendment to provide a brief explanation of the bases issued digital ID certificate). Each the subject facility operating license and for the contention and a concise petitioner/requestor will need to any person(s) whose interest may be statement of the alleged facts or expert download the Workplace Forms affected by this proceeding and who opinion which support the contention ViewerTM to access the Electronic wishes to participate as a party in the and on which the petitioner intends to Information Exchange (EIE), a proceeding must file a written request rely in proving the contention at the component of the E-Filing system. The via electronic submission through the hearing. The petitioner must also Workplace Forms ViewerTM is free and NRC E-filing system for a hearing and a provide references to those specific is available at http://www.nrc.gov/site- petition for leave to intervene. Requests sources and documents of which the help/e-submittals/install-viewer.html. for a hearing and a petition for leave to petitioner is aware and on which the Information about applying for a digital intervene shall be filed in accordance petitioner intends to rely to establish ID certificate is available on NRC’s with the Commission’s ‘‘Rules of those facts or expert opinion. The public Web site at http://www.nrc.gov/ Practice for Domestic Licensing petition must include sufficient site-help/e-submittals/apply- Proceedings’’ in 10 CFR part 2. information to show that a genuine certificates.html. Interested person(s) should consult a dispute exists with the applicant on a Once a petitioner/requestor has current copy of 10 CFR 2.309, which is material issue of law or fact. obtained a digital ID certificate, had a available at the Commission’s PDR, Contentions shall be limited to matters docket created, and downloaded the EIE located at One White Flint North, Public within the scope of the amendment viewer, it can then submit a request for File Area O1F21, 11555 Rockville Pike under consideration. The contention hearing or petition for leave to (first floor), Rockville, Maryland. must be one which, if proven, would intervene. Submissions should be in Publicly available records will be entitle the petitioner/requestor to relief. Portable Document Format (PDF) in accessible from the Agencywide A petitioner/requestor who fails to accordance with NRC guidance Documents Access and Management satisfy these requirements with respect available on the NRC public Web site at System’s (ADAMS) Public Electronic to at least one contention will not be http://www.nrc.gov/site-help/e- Reading Room on the Internet at the permitted to participate as a party. submittals.html. A filing is considered

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complete at the time the filer submits its be granted and/or the contentions SUMMARY: This document approves most documents through EIE. To be timely, should be admitted, based on a elements of a proposed Postal Service an electronic filing must be submitted to balancing of the factors specified in 10 plan for service performance the EIE system no later than 11:59 p.m. CFR 2.309(c)(1)(i)–(viii). measurement. Both the Postal Service’s Eastern Time on the due date. Upon Documents submitted in adjudicatory plan and the Commission’s approval receipt of a transmission, the E-Filing proceedings will appear in NRC’s respond to requirements in a 2006 system time-stamps the document and electronic hearing docket which is federal law that revised and updated the sends the submitter an e-mail notice available to the public at http:// regulatory approach to postal confirming receipt of the document. The ehd.nrc.gov/ehd_proceeding/home.asp, operations. EIE system also distributes an e-mail unless excluded pursuant to an order of DATES: Postal Service response: June 1, notice that provides access to the the Commission, an Atomic Safety and 2009. document to the NRC Office of the Licensing Board, or a Presiding Officer. FOR FURTHER INFORMATION CONTACT: General Counsel and any others who Participants are requested not to include Stephen L. Sharfman, General Counsel, have advised the Office of the Secretary personal privacy information, such as 202–789–6820 and that they wish to participate in the social security numbers, home [email protected]. proceeding, so that the filer need not addresses, or home phone numbers in serve the documents on those their filings. With respect to copyrighted SUPPLEMENTARY INFORMATION: participants separately. Therefore, works, except for limited excerpts that Regulatory History applicants and other participants (or serve the purpose of the adjudicatory their counsel or representative) must filings and would constitute a Fair Use 72 FR 72395 (December 20, 2007) apply for and receive a digital ID application, participants are requested 73 FR 36136 (June 25, 2008) certificate before a hearing request/ not to include copyrighted materials in 73 FR 39996 (July 11, 2008) petition to intervene is filed so that they their submissions. I. Executive Summary can obtain access to the document via For further details with respect to this The Commission today approves a the E-Filing system. license amendment application, see the A person filing electronically may Postal Service request to employ application for amendment dated internal service measurements seek assistance through the ‘‘Contact January 31, 2008, supplemented by Us’’ link located on the NRC Web site developed from its Intelligent Mail letters dated April 3, April 29, May 15, Barcode (IMb) data to track service at http://www.nrc.gov/site-help/e- May 28, September 30, October 7, submittals.html or by calling the NRC performance of bulk letters and flats. October 16, October 23, and October 28, This data would be combined with technical help line, which is available 2008, which are available for public between 8:30 a.m. and 4:15 p.m., externally collected information to inspection at the Commission’s PDR, provide the first system measuring the Eastern Time, Monday through Friday. located at One White Flint North, Public The help line number is (800) 397–4209 speed and consistency of delivery for File Area O1 F21, 11555 Rockville Pike most types of mail. or locally, (301) 415–4737. (first floor), Rockville, Maryland. Participants who believe that they A major feature of the Postal Publicly available records will be have a good cause for not submitting Accountability and Enhancement Act of accessible electronically from the documents electronically must file a 2006 is the requirement that the Postal ADAMS Public Electronic Reading motion, in accordance with 10 CFR Service begin to measure and publicly Room on the Internet at the NRC Web 2.302(g), with their initial paper filing report on its service performance for all site, http://www.nrc.gov/reading-rm/ requesting authorization to continue to market dominant products. That law adams.html. Persons who do not have submit documents in paper format. directs that external measurement Such filings must be submitted by: (1) access to ADAMS or who encounter systems be used for this task unless First-class mail addressed to the Office problems in accessing the documents alternate systems are approved by the of the Secretary of the Commission, U.S. located in ADAMS should contact the Postal Regulatory Commission. Nuclear Regulatory Commission, NRC PDR Reference staff by telephone This order reviews a Postal Service Washington, DC 20555–0001, Attention: at 1–800–397–4209, or 301–415–4737, request to employ both external and Rulemaking and Adjudications Staff; or or by e-mail to [email protected]. internal service measurement systems, (2) courier, express mail, or expedited Dated at Rockville, Maryland, this 24th day and the public’s comments on that delivery service to the Office of the of November 2008. proposal. The Commission authorizes Secretary, Sixteenth Floor, One White For the Nuclear Regulatory Commission. most aspects of the plan. Flint North, 11555 Rockville Pike, John F. Stang, The Postal Service states that reliable Rockville, Maryland 20852, Attention: Project Manager, Plant Licensing Branch II– external measurement of all products Rulemaking and Adjudications Staff. 1, Division of Operating Reactor Licensing, would be very expensive and hard to Participants filing a document in this Office of Nuclear Reactor Regulation. implement. In particular, to be reliable, manner are responsible for serving the [FR Doc. E8–28678 Filed 12–2–08; 8:45 am] test pieces must be indistinguishable document on all other participants. BILLING CODE 7590–01–P from ‘‘real mail’’ while being Filing is considered complete by first- sufficiently physically diverse and class mail as of the time of deposit in geographically dispersed to reflect the mail, or by courier, express mail, or service performance for different types expedited delivery service upon POSTAL REGULATORY COMMISSION of mail in all parts of the country. The depositing the document with the Postal Service claims this would be very provider of the service. [Docket No. PI2008–1; Order No. 140] difficult to achieve in any affordable Non-timely requests and/or petitions fashion. and contentions will not be entertained Postal Service Plan for Service The comments agree that it is absent a determination by the Performance Measurement important to utilize reliable existing Commission or the presiding officer of AGENCY: Postal Regulatory Commission. data sources where possible, and to the Atomic Safety and Licensing Board avoid requiring costly new external ACTION: Notice. that the petition and/or request should measurement systems.

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The Postal Service proposes to II. Background continuous refinement of the Service expand its existing external system for The Postal Accountability and Performance Measurement plan. In June measuring single-piece First-Class Mail, Enhancement Act (PAEA), Public Law 2008, the Postal Service provided the and use its existing Delivery 109–435, 120 Stat. 3218 (2006), requires Commission with a second draft of its Confirmation data to measure parcel the Postal Service, in consultation with Service Performance Measurement plan service. For the majority of its volume, the Postal Regulatory Commission, to (Revised Plan). The Commission posted letter and flat-shaped mail sent in bulk establish by regulation a set of modern the June 2008 draft Service Performance by businesses, it proposes to measure service standards for market dominant Measurement document on its Web site performance with a hybrid system that products. 39 U.S.C. 3691. Initial as an attachment to Order No. 83, and would use data from its new IMb consultations between the Commission again provided interested persons an program, scheduled for implementation and the Postal Service concluded on opportunity to comment.5 The in May 2009, in combination with November 16, 2007, with the Commission received 10 sets of already available externally derived Commission providing the Postal additional comments addressing the service information. Service with comments addressing the Revised Plan. A measurement system that tracks Postal Service’s service standards III. Statutory Requirements representative, live mail from deposit to proposals.1 The Postal Service delivery would provide the most completed this task by publishing as a The Postal Service’s Revised Plan meaningful measure of service final rule Modern Service Standards for provides proposals both for performance performance. The Postal Service Market-Dominant Products, December measurement systems and for reporting believes that its planned ‘‘full service’’ 19, 2007 (Service Standards).2 data generated by the performance IMb program will meet that standard. It Having established service standards, measurement systems. Performance will allow the Postal Service to begin the Postal Service is developing systems measurement systems and reporting of measurement when it receives mail, and to measure actual service performance. data are linked, but evaluation of each track containers and individual pieces On November 29, 2007, the Postal requires consideration of different as they proceed through its processing Service provided the Commission with statutory requirements and issues and transportation networks. These data a draft of its Service Performance unique to each area. They appropriately would be combined with externally Measurement plan (Initial Plan), and may be considered separately. The focus measured data quantifying time from through a continuation of the of this Order is on the first topic, the ready-for-delivery, to actual delivery, consultation process, sought the views approaches proposed for the various providing end-to-end service of the Commission. The Commission measurement systems. measurement. posted the Initial Plan on its Web site Because the Postal Service’s Revised Assuming IMb scanning and reporting as an attachment to Order No. 48, which Plan also includes proposals for data technology can be successfully also established Docket No. PI2008–1 reporting and comments were solicited implemented, and full service IMb is for this matter and provided interested in this area, this order also describes the utilized by a representative cross- persons an opportunity to comment on Postal Service’s proposals for data section of mailers, this service the Postal Service’s service performance reporting and reviews the comments measurement program should produce measurement proposals.3 The that were submitted, with limited high quality, minimal cost results. Commission received 18 sets of Commission discussion. A Therefore, the Commission approves its comments and 9 sets of reply comments comprehensive review of the data items use, and urges the Postal Service to from the mailing community.4 required by the Commission for annual proceed quickly to deploy this system. Since November, the Postal Service determination of compliance, including The Postal Service is to provide has been consulting with its customers, more detailed reporting on a quarterly quarterly public progress reports while working with its external measurement basis, will await a rulemaking as vendors, and working through the previously suggested in Docket No. full service IMb is being tested and 6 implemented. The Commission will implementation of the Intelligent Mail RM2008–4. carefully monitor IMb implementation Barcode system. This has led to the A. Internal Versus External and usage to assure that accurate and Measurement Systems representative performance data are 1 Comments of the Postal Regulatory Commission on Modern Service Standards for Market Dominant An objective in designing service obtained. If necessary, modifications to Products, November 16, 2007. The consultations are performance standards is for the Postal the service performance measurement described as ‘‘initial’’ because of the ongoing nature Service to provide ‘‘a system of plan will be developed. A separate of consultations that are necessary to transition objective external performance public proceeding will be initiated from a set of standards to an operational measurement system encompassing performance measurements for each market- shortly to establish specific goals (see uncodified section 302(b)(1) of the PAEA) dominant product as a basis for requirements for the periodic reporting and reporting mechanisms (see 39 U.S.C. 3652). measurement of Postal Service of service achievement by type of mail. 2 72 FR 72216 (December 19, 2007) (codified at performance.’’ 39 U.S.C. 3691(b)(1)(D). 39 CFR parts 121 and 122). In one area, the Commission has However, ‘‘with the approval of the identified problems that require 3 PRC Order No. 48, Notice of Request for Comments on Service Performance Measurement Postal Regulatory Commission an immediate adjustment. The Postal Systems for Market Dominant Products, December internal measurement system may be Service proposes to combine the 4, 2008 (Order No. 48). implemented instead of an external measurements for its diverse special 4 The members of the mailing community that measurement system’’ for individual services into an index. The Commission have filed comments, reply comments, and additional comments are identified after the finds that the proposed measures fail to signature of this order. As a matter of convenience, 5 PRC Order No. 83, Second Notice of Request for reflect actual performance for several of citations to these comments will identify the party’s Comments on Service Performance Measurement the more important services, including comments as comments, reply comments, or Systems for Market Dominant Products, June 18, Delivery Confirmation and Return additional comments. For example, Pitney Bowes’ 2008 (Order No. 83). comments are cited as Pitney Bowes Comments at 6 See Docket No. RM2008–4, Notice of Proposed Receipt. More realistic measures of xx; reply comments are cited as Pitney Bowes Reply Rulemaking Prescribing Form and Content of actual performance need to be Comments at xx; and additional comments are cited Periodic Reports, August 22, 2008, at 11–12 for a developed in these areas. as Pitney Bowes Additional Comments at xx. discussion of the future rulemaking.

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products. 39 U.S.C. 3691(b)(2). The develop rules for both annual and measurement.10 The measurement Revised Plan presents the various periodic reports of service performance system uses a sampling, not a census, of measurement systems the Postal Service measurements through its authority to full service IMb-compliant mail. proposes to use to measure the (1) prescribe by regulation the content A prerequisite for mail to be measured standards presented in the Service and form (including the methodologies is the submission of electronic mailing Standards document. In the Revised used) of the annual report to the documentation by the mailer. Generally, Plan, the Postal Service proposes Commission (39 U.S.C. 3652(a)(1) and the mailer’s submission of electronic various internal, external, and hybrid (e)(1)), and (2) prescribe data reporting mailing documentation and the (containing both internal and external requirements as part of designing a documented arrival time at a postal elements) measurement systems to modern system for regulating rates and facility starts the clock of the measure the performance of its mail classes for market dominant products measurement.11 products.7 (39 U.S.C. 3622(a)). The Postal Service The hybrid measurement system The Postal Service submitted the proposals presented in its Revised Plan, measures end-to-end service Revised Plan for the Commission’s along with all comments received, will performance in two steps. In the first ‘‘review, feedback, and concurrence.’’ 8 be incorporated by reference and step, a mail processing factor is In consultations with the Commission, considered in that rulemaking docket. developed. The mail processing factor is the Postal Service indicated that it seeks the time from the start-the-clock event approval of the direction that it is taking IV. Review of the Postal Service described above to the last recorded with its measurement systems, Performance Measurement Systems mail processing scan using IMb system specifically whether the Commission Proposals data. In the second step, a delivery finds any issues that may be ‘‘show- Many service performance factor is developed. The delivery factor stoppers’’ to proceeding with the measurement issues are common to represents the time from the last various external and hybrid multiple mail products. These issues recorded mail processing scan to actual measurement systems. include the structure and reliability of a delivery of a mailpiece. In calculating This order provides the Postal Service hybrid measurement system, exclusions the delivery factor, an external with the requested feedback. Specific from measurement, and IMb adoption contractor uses the last recorded mail approvals will be subject to review as rates, among others. The Commission processing scan reported by the IMb the quality of the data produced is addresses these issues first, discussing system, and the actual delivery date evaluated. its concerns with the Postal Service’s recorded by external reporters with proposals, including where applicable, scanners capable of reading IMbs. The B. Data Reporting concerns presented by mailers. mail processing factor is combined with The Postal Service’s Revised Plan also The Commission then reviews service the delivery factor to provide an end-to- describes how it proposes to report to performance measurement issues as end measurement of service the Commission the data generated by applicable to the individual classes of performance.12 its measurement systems. The Postal mail. The review addresses specific A variety of mailers support the Service states: Commission concerns and provides hybrid measurement system approach. In accordance with § 3652 of the Postal recommendations on the approaches AMEE Comments at 2; DFS Reply Accountability and Enhancement Act, the that the Postal Service is proposing for Comments at 1; MMA Comments at 2; Postal Service is required to report measures service performance measurement NPPC Comments at 4; Pitney Bowes of the quality of service on an annual basis. systems and data reporting. It also Comments at 3; and PostCom/DMA The Postal Service’s proposal for service considers mailer comments specific to Comments at 7. measurement goes far beyond annual individual mail products. AMEE and MMA comment that the reporting and will instead provide quarterly reporting for all market-dominant products, A. Multiproduct Issues existing External First-Class (EXFC) almost entirely at a district level. infrastructure used by the hybrid system 1. The Hybrid Measurement System and external reporters will add Revised Plan at 12 39 U.S.C. 3652 credibility to the system. AMEE requires that the Postal Service include The Postal Service proposes service Comments at 2; and MMA Comments at in an annual report to the Commission performance measurement systems that 2. However, Pitney Bowes and Valpak an analysis of the quality of service ‘‘for incorporate both internal and external suggest eventually eliminating the each market-dominant product provided measurement elements to measure the external reporters to reduce costs once in such year’’ by providing ‘‘(B) performance of First-Class Mail presort IMb becomes widespread enough to measures of the quality of service letters and cards, Standard Mail non- ensure statistical validity of the system. afforded by the Postal Service in saturation letters and flats, and Package Pitney Bowes Comments at 3; and connection with such product, Services presort flats. The systems for each type of mail share similar including—(i) the level of service 10 (described in terms of speed of delivery attributes. Collectively, these Full service and basic options are available for measurement systems are referred to as IMb. Basic IMb requires mailers to use an IMb that and reliability) provided; and (ii) the includes a Barcode ID, Service Type ID, Mailer ID, degree of customer satisfaction with the the ‘‘hybrid measurement system.’’ Serial Number (does not have to be unique and can service provided.’’ The hybrid measurement system include all zeroes), and a Delivery Point ZIP Code. As noted above, the Commission hinges on successful implementation In addition to the requirements for basic service IMb, full service IMb mailpieces must include serial intends on initiating a rulemaking to and mailer adoption of the internal IMb 9 numbers that are unique for 45 days, unique Tray/ system. Only mail using the full service Container barcodes, and electronic documentation. 7 For the purposes of the statutory requirements, option of IMb will be included in the 11 The actual start-the-clock takes into the Commission will consider all hybrid systems to consideration the critical entry time (CET) for that be internal systems because of the level of control 9 The Intelligent Mail Barcode is a new data rich, type of mail. that the Postal Service exerts over the internal four-state barcode that the Postal Service is in the 12 The external reporters generate an actual stop- elements of the proposed hybrid systems. process of introducing. The IMb system includes the-clock event, which also can be used to develop 8 Letter from Thomas G. Day, Senior Vice the process and documentation requirements for an actual end-to-end measurement. At this time, it President, United States Postal Service, to Dan G. inducting mail into the postal system, and the data is unclear how this end-to-end measurement will be Blair, Chairman, Postal Regulatory Commission, system to monitor and report on mail containing incorporated into the reported service performance June 3, 2008. IMbs. measurement.

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Valpak Comments at 8–9; see also IWCO As suggested by AMEE and MMA, the Comments at 1–2. APWU contends that Additional Comments at 1. PostCom/ Commission finds that the existing excluding mail that does not meet mail DMA and DFS also suggest eliminating EXFC infrastructure and the external preparation requirements may cause the external reporters as a cost savings panel of reporters equipped with measurements that are not reflective of measure, but suggest using an devices to scan all IMb First-Class, the mail being sent. APWU Comments independent study as an internal Periodical, and Standard letters/cards at 2. PostCom/DMA adds that data delivery proxy instead. PostCom and flats delivered to their in-home excluded from service performance Comments at 7; and DFS Reply addresses will add credibility to the measurement should be provided to Comments at 3. hybrid system. The option of reducing mailers to resolve service issues and Commission analysis. The or eliminating the use of external improve mail quality. PostCom/DMA Commission supports the approach the reporters to reduce costs may be Comments at 16. Postal Service is taking to implement considered at a later date. Commission analysis. The the hybrid system for service 2. Exclusions From Measurement Commission recognizes that the full performance measurement, with the service IMb mail used in the end-to-end following caveats. Mail that is excluded from service measurement calculations may The mail sampled by the hybrid measurement may impact the ability of not be representative of the larger system must be representative of the the sampled mail to represent the total populations it seeks to represent in overall mail subject to performance of the mail subject to measurement. For making service measurement claims. measurement for the system to produce the IMb-based measurement systems, The full service IMb mail and the meaningful results. Representativeness only mail participating in full service remainder of the mail of a given class is further discussed in section VI.A.2 IMb is measured. This excludes mail may differ in terms of mail which addresses mail excluded from participating in only the basic IMb characteristics, geographical location, measurement. A representative sample service. Similar questions exist for and most importantly, service also may depend on mailers’ adoption DelTrak and Red Tag, and the Delivery performance. If these two sets of mail of the IMb system, which is further Confirmation-based systems, where a groups do indeed differ significantly in discussed in section VI.A.3. significant portion of the mail does not important characteristics, then the The Commission notes the common utilize these systems. Finally, mailers ‘‘estimated’’ measures for the full analytical and statistical practice of express concern with the exclusion from service IMb mail may be very different combining the results of more than one measurement of mail that does not meet than the service performance for the rest separate and independent analytical preparation requirements. of the mail. sample. The Postal Service proposes to Valpak expresses concern that the To assess this potential bias problem, achieve an end-to-end measurement of exclusion from measurement of the Commission recommends limited (Standard) bulk mail not using full service performance by combining the performance measurement tests be service IMb raises the possibility of bias, mail processing factor (step one conducted for mailpieces excluded from and the possibility that the estimation) with the delivery factor the primary measurement system and (step two estimation). It appears that the measurement is not representative of the used for comparison purposes. For volume of data used in the step one wider universe. It suggests that the example, the Postal Service could apply estimations will be much larger than the Postal Service provide an annual unique identifying barcode information volume used in the step two analysis. explanation of the universe from which to a random sample of mailpieces that Although independence appears to hold performance data is derived and an do not use full service IMb to obtain an between the two separate analyses for explanation of what universe this data estimate of service performance. This the two separate factors, the can be considered to represent. Where estimate could then be compared to the Commission suggests that it will be the represented universe is larger than estimate obtained from the full service important to monitor if that the performance data universe, the IMb pieces to monitor how independence is true for all components Postal Service also should explain why representative full service IMb pieces within each analyses for all classes of the data universe is representative of the are as adoption rates increase. A plan mail so as to avoid possible unintended larger universe. Valpak Comments at 4– for implementing a system for bias effects. 5; and Valpak Reply Comments at 7–8; ascertaining the representativeness of The Commission also recommends see also Research International annual compliance report (ACR) service monitoring and testing for potentially Additional Comments at 2. negative influences on measurement GCA provides an example of where performance measurements based on resulting from the type/frequency of representativeness issues may exist with IMb should be provided with the 2009 mismatched data pairs that may enter single-piece mail. It requests ACR. The Commission finds that the Postal the analyses such as a reliable start-the- clarification on the treatment of mis- or Service is taking a reasoned approach to clock with no final external reporter badly-addressed single-piece mail in the addressing the MOAA, et al. concerns of scan, or no reliable start-the-clock with measurement system. GCA Comments at determining whether to include or a reliable final external reporter scan. 1. exclude mail from measurement The methodology for incorporating (or MOAA comments that it is reasonable because of a variety of mail validation scrubbing) mismatch data pairs into the to exclude mail that does not meet mail deficiencies. See Revised Plan, measurement may bias the measurement preparation requirements, but further Appendix, para. 4. In some instances, result. Thus, the methodology must be suggests procedures are necessary to the mailer will be provided an fully understood and disclosed to assure inform mailers of any mail that is opportunity to correct the deficiencies that any bias is reasonably limited.13 excluded from measurement.14 MOAA and the mail then will be included in 13 For example, a mailpiece with a valid start-the- of service performance than what is actually the performance measurement. In all clock but without a valid stop-the-clock (due to the occurring. This is a complex issue because the mailpiece never being delivered) that is scrubbed decisions concerning atypical data typically affect verified as satisfying mail preparation requirements from the dataset will not be represented in the measurement bias. associated with applicable price categories and that overall measurement of service performance, i.e., 14 For bulk mail, the Postal Service proposes only complies with the requirements of full service IMb. the measurement system will indicate a higher level to measure end-to-end performance of mail that is Revised Plan, Appendix, para. 4.

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instances of this nature, communication mailer, types of mailing, or other factors. 4. Start-the-Clock and Critical Entry between the Postal Service and the Alternatively, Research International Times mailer is beneficial to reducing the suggests a system using seeded Most mailers concerned with a occurrence of validation issues so that mailings, including transponders, to credible service performance the mail system operates smoothly. give a more complete end-to-end measurement system comment on some 3. IMb Adoption measurement. Research International aspect of start-the-clock. MOAA Comments at 1. To the extent that the Comments at 2; MPA Comments at 2– The IMb system, used to capture Postal Service may need to supplement 3; NPPC Comments at 2–3; PostCom/ internal service performance data, is the IMb data, McGraw-Hill comments that DMA Comments at 14; Time Warner centerpiece of several of the the Postal Service should evaluate the Comments at 2–3; NPPC Additional measurement systems proposed by the costs and benefits of the Research Comments at 2–5; Valpak Comments at Postal Service. In particular, successful International approach. McGraw-Hill 5–8; and McGraw-Hill Reply Comments operation of the IMb system is necessary Reply Comments at 5. at 4–5. Generally, start-the-clock is the for implementation of the hybrid date and time that a mailpiece enters the measurement system. Thus, the rate at Commission analysis. The mailstream for the purpose of service which mailers are likely to start using Commission recognizes that mailer performance measurement.15 It is the the IMb, specifically the full service adoption of full service IMb that starting point from which performance option of IMb that is required by the provides a representative cross-section measurement systems, along with of the mail population being measured measurements are made. The issues are whether the IMb mail presented by the is critical to the success of the hybrid broad and encompass anything from adopting mailers is representative of system. It is uncertain, at this time, documenting mail arrival times to mail intended total population subject to when sufficient adoption of IMb will acceptance. They include highly measurement, must be considered. occur. In the Initial Plan, the Postal technical issues such as concerns with AMEE has an expectation of rapid Service projected presort First-Class and the need for better definitions of the adoption of IMb, but comments that letter-shaped Standard Mail adoption at electronic mailing information undefined Postal Service requirements, 25–50 percent in FY 2009 with a necessary to start-the-clock. AMEE the mailer’s own data requirements, the projected increase to 50–75 percent in Comments at 1–2; and MMA Comments Postal Service IT infrastructure, and the FY 2010. The Revised Plan does not at 2. issue of rate incentives could add give projection percentages for full In many cases, there is a CET uncertainty to its expectations. AMEE service IMb adoption. associated with start-the-clock. The Postal Service defines the CET as ‘‘the Comments at 4. NPPC comments that The Postal Service has made several latest time that a reasonable amount of the effectiveness of the hybrid system statements to the mailing community a class of mail can be received at will depend on IMb adoption rates; concerning the operational date of the designated induction points in the however, NPPC contends that it is IMb system and possibly developing postal network for it to be processed and unclear how fast IMb will mature, when differential rates specific to IMb mail. dispatched in time to meet service the Postal Service will specify business Uncertainty in the mailing community standards.’’ Revised Plan at 3. For mail requirements, and how mailers will of IMb requirements, implementation accepted before the posted CET for that convert to IMb. NPPC Comments at 4. dates, and applicable rates may lead to day, the day of entry is designated as the Pitney Bowes asserts that the hybrid delay in the adoption of the system. ‘‘start-the-clock.’’ For mail accepted measurement system is critically Additional issues that may impede after the posted CET for that day, the dependent upon mailer participation in adoption are mailer concerns over final mailpiece has a start-the-clock date of IMb, and suggests promoting adoption Postal Service requirements, mailer data the following applicable acceptance with meaningful price incentives and requirements, and Postal Service IT day. The Postal Service has established advance notice regarding the size of infrastructure. these incentives. In accord, PostCom/ national CETs for destination-entered The Commission also finds that DMA Additional Comments at 5–6. Standard Mail, and has established PostCom/DMA and Pitney Bowes tracking the representativeness of the locally-defined facility CETs for all suggest implementation of a data actual full service IMb sample is other classes of mail. A C/SA may collection process to monitor IMb important. For presort mail, the sample identify an alternate acceptance adoption. Pitney Bowes explains the of full service IMb presort mailers must window. adoption monitoring system can be used be representative of the entire Several mailers ask the Postal Service to assess the validity of the hybrid population of presort mailers. The to better define how CETs will be system. Additionally, PostCom/DMA Commission expects the Postal Service established and modified, and to assert that the Postal Service must work to develop a protocol for testing to develop a method for communicating aggressively with mailers to overcome assess whether this sample is in fact CETs and changes to CETs to the implementation barriers to IMb, and representative. mailing industry. AMEE Comments at that a monitoring system can be used to To the extent that uncertainty exists, 1–2; BAC Comments at 2; MMA explore alternate requirements or the Commission agrees with the mailers’ Comments at 2; and Public measurement systems if IMb adoption suggestions that it will be necessary to Representative Reply Comments at 5. In rates are significantly less than monitor IMb adoption rates so that addition, NPPC suggests specifying anticipated. Pitney Bowes Comments at possible solutions may be formulated to CETs in the service standards and 4; and PostCom/DMA Comments at 18– ensure reasonably representative and providing a Web-based system for 19. unbiased service performance estimates. mailers to access CET information. Research International questions The appropriate place to consider NPPC Comments at 3–4. MPA supports whether a system based on the natural periodic reporting of IMb adoption rates adoption of IMbs for bulk mail will and analysis of representativeness is the 15 Where applicable, start-the-clock takes into consideration critical entry times (CET) and produce a measurement that is upcoming rulemaking on service customer/supplier agreements (C/SA). For certain representative. It contends that adoption performance data reporting Special Services, start-the-clock is the date and time may be skewed by geography, size of requirements. when the mail service is initiated.

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a centralized system for mailers to from the Postal Service’s Revised Plan, record of attention to data security access CETs for all facilities, and also PostCom/DMA stresses the need for issues. proposes the establishment of a independent external auditing and B. Class-Specific Issues centralized process for national mailers evaluation of the service performance to negotiate C/SAs that cover all of their measurement systems, processes, and The Postal Service proposes new entry points. MPA Additional data quality/accuracy. PostCom/DMA measurement systems based on the IMb Comments at 4. Time Warner and DFS Additional Comments at 7. (the hybrid measurement systems), generally support locally established Data security. BAC, NPPC, PostCom/ Delivery Confirmation scans CETs that reflect local conditions. Time DMA, and Time Warner are concerned (predominately the parcel-shaped mail Warner Comments at 3; and DFS Reply with the security of the data generated measurement systems), DelTrak and Red Comments at 3–4. by the performance measurement Tag (the Periodicals mail measurement The Postal Service indicates that it system and contend that this issue has systems), and the International Mail ‘‘will be centrally documenting local not been adequately addressed by the Measurement System to measure the product-specific CETs on a facility-by- Postal Service. BAC Comments at 1; various types of mail. The Postal Service facility basis for the purpose of PostCom/DMA Comments at 20; also will continue use of the External responding to mailer information access PostCom/DMA Additional Comments at First-Class (EXFC) system for measuring concerns.’’ Postal Service Reply 6; Time Warner Comments at 1–2; and most single-piece First-Class Mail. The Comments at 9. NPPC Additional Comments at 5–6. DelTrak and Red Tag systems are Commission analysis. The Postal Commission analysis. The proposed as interim measurement Service is to be commended for Commission recognizes the importance solutions until IMb-based systems addressing many mailer concerns in the of each of these issues. Establishing become viable. IMb-based systems also time between submitting its Initial Plan benchmarks to track the various stages may replace the Delivery Confirmation- and its Revised Plan. Successfully of system development are essential based systems in the future. generating accurate start-the-clock times management tools that the Postal The Commission finds that these is essential to the development of a Service properly has been employing. measurement systems are likely to be credible performance measurement The Commission concludes that public representative of a significant portion of system. The Commission perceives acceptance of IMb, and the use of IMb the mail sent as First-Class Mail, start-the-clock as a detailed and difficult in service performance measurement Standard Mail, Periodicals, and Package issue, and urges the Postal Service to reporting, will be significantly enhanced Services, and have the potential of continue working with the mailing by greater transparency in this area. producing meaningful data. community in developing a working, Therefore, the Postal Service is to Notwithstanding the concerns user-friendly, information system. The provide reports at the beginning of each previously noted, and noted in the Commission supports the Postal fiscal quarter on progress toward its additional comments below, the Service’s proposal to document CETs benchmarks for implementing full Commission approves of the Postal and encourages it to develop systems to service IMb for each mail shape. In the Service’s general approach in these make this information publicly available rulemaking on reporting that will areas. in the very near future. shortly follow this order, the The Commission, however, cannot Bulk mailers that rely on CETs make Commission will suggest for public approve the approaches that the Postal several good suggestions for increasing comment specific periodic updates on Service is proposing for the majority of the visibility and the transparency of the progress toward full implementation the Special Services. More robust CETs that the Commission fully and the development of representative measurement systems capable of supports. Additionally, the Postal samples for measuring performance. generating data that is representative of Service is reminded that CETs also are External audits will protect the the services being offered must be important to low-volume and single- credibility of various internal and developed. piece mailers when entering mail at a hybrid measurement systems. Although The remainder of this section window or into a blue collection box. the Postal Service no longer describes discusses the Postal Service’s individual Easy access to CET information is such audits in its proposal, the proposals for implementing essential to informing mailers of what Commission expects to require performance measurement systems by service is to be expected. appropriate verification that reported mail class. Issues identified by the The Commission also is aware of the service performance is representative. mailing community are discussed, and potential impact that gradual small This may well involve audits of service specific recommendations by the changes to CETs could have on service achievement in various processing Commission are presented. performance. Readily transparent access streams. At this juncture, however, it 1. First-Class Mail to CET information will allow for seems premature to focus resources on monitoring of this particular situation. exploring methods for auditing systems First-Class Mail includes Single-Piece that are not yet operational. Letters/Postcards; Presorted Letters/ 5. Miscellaneous Issues Security also is an essential aspect of Postcards; Flats; Parcels; Outbound Implementation benchmarks. APWU developing any information collection Single-Piece First-Class Mail suggests the establishment of and reporting system. Mailers International; and Inbound Single-Piece benchmarks to track the development reasonably want assurances that data on First-Class Mail International. Of all and implementation of the performance their business activities will be properly domestic First-Class Mail, 38.0 percent measurement system and to ensure that safeguarded. The Postal Service may not are single-piece letters and cards, 3.3 the system accurately reflects actual have included extensive details on percent are single-piece flats, 0.4 performance. APWU Comments at 2, see security in its request as this topic is percent are single-piece parcels, 57.1 also PostCom/DMA Comments at 21; somewhat tangential to whether IMb percent are presort letters and cards, 1.0 and Valpak Reply Comments at 3. can provide robust performance data. As percent are presort flats, and 0.2 percent External audits. Noting the removal of this system is implemented, the Postal are presort parcels. Revised Plan at 13. the section describing external service Service will be expected to remain Single-piece letters, cards, and flats. performance measurement validation vigilant to preserve its long established The Postal Service proposes to continue

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measuring single-piece letters, cards, Presort flats. The Postal Service does of purchase at the retail counter starts and flats using the EXFC measurement not propose a measurement system for the clock of the measurement. For system. EXFC is an end-to-end time to presort flats. It proposes use of the EXFC presort parcels, the documented arrival delivery measurement system measurement for single-piece flats time at the Postal Service acceptance administered by an external contractor. (machine addressed only) as a proxy for facility along with the mailer provided Mail droppers employed by the external the presort flats measurement. It states electronic mailing documentation starts contractor report the date and time test that presort flats make up only 0.4 the clock of the measurement. The clock mailpieces are deposited into the mail percent of the total mailstream. The is stopped when the Postal Service system to the external contractor. The Postal Service notes the possibility of scans the Delivery Confirmation label at time and date that the mail is dropped employing the IMb measurement system delivery or attempted delivery. The starts the clock of the measurement. in the future if the volume of mailpieces difference, in calendar days, between Mail reporters employed by the external with IMbs is sufficient to provide actual the start-the-clock event and the stop- contractor record the date they receive measurements. the-clock event is reported as the service test mailpieces and report this Several mailers oppose the proposal performance measurement. information to the external contractor. to use the EXFC measurement for single- The Commission notes that use of The date the mail reporter receives the piece flats (machine addressed only) as Delivery Confirmation scan data when mailpiece stops the clock of the a proxy for the presort flats evaluating service performance for First- measurement. The difference, in measurement. They acknowledge the Class retail and presort parcels has calendar days, between the start-the- low volume of presort flats, but contend limitations that relate to the limited use clock event and the stop-the-clock event that to qualify for automation rates they of Delivery Confirmation service by is reported as the service performance will be required to adopt IMb and other First-Class presort parcel mailers. measurement.16 processes that are identical between Additionally, First-Class single-piece The Public Representative suggests letters and flats. AMEE Comments at 2; parcels using Delivery Confirmation is expanding EXFC to include a MMA Comments at 2; Pitney Bowes estimated to be only 3.9 percent. The statistically valid measurement system Comments at 3–4; Pitney Bowes Postal Service will have to analyze this for single-piece First-Class Mail letters Additional Comments at 3; and system and demonstrate that it produces and flats delivered to post office boxes. PostCom/DMA Comments at 4–5. These a representative measurement. The Public Representative Comments at 33. mailers suggest using the hybrid system Postal Service should include such an to obtain performance measurements. analysis with its annual compliance The Commission asks the Postal BAC adds that there should be enough report for fiscal year 2009. Service to consider whether it is presort flats with IMbs in the system to Inbound and outbound single-piece possible to incorporate pieces delivered measure performance without the need international letters. Inbound and to post office boxes and pieces requiring to use a proxy. BAC Comments at 4. outbound single-piece international forwarding and return into its current PostCom/DMA ponders why a letter-shaped mail will be measured EXFC design. The Postal Service should statistically valid system cannot be using the external International Mail consider both the benefits of measuring developed for presort flats when the Measurement System (IMMS). IMMS is pieces with these delivery Postal Service proposes a distinct an end-to-end system provided by an characteristics and the added costs measurement system for retail parcels external contractor based on sample involved, and inform the Commission of that comprise less mail volume. mailpieces entered into the system by its analysis by the conclusion of fiscal PostCom/DMA Comments at 4. The droppers and received by reporters. year 2009. Public Representative views the Only domestic transit time will be GCA stresses the importance of non- proposal ‘‘a request to avoid measuring measured. The system also relies on an standard aspect ratio mailpieces which directly that price category of the First- internal ID tag and/or PLANET Code currently are not being represented by Class Flats.’’ Public Representative scan (PLANET Code will be phased out EXFC. GCA Comments at 1–2. Comments at 34–35. and replaced with IMb) to signal when The Commission finds that EXFC The Commission acknowledges the the mailpiece either enters or leaves the does not include any non-machinable mailer comments opposing use of the control of the Postal Service. mail (such as square envelopes) in its EXFC single-piece flat measurement as Single-piece international flats. seeded mailings, nor will a proxy for presort flats. However, Single-piece international flats will not nonmachinable mail be captured by the because the single-piece flat mail be measured, and single-piece domestic IMb-based systems. Consequently, this measured by EXFC is all machinable flats external EXFC data will be used as mail will not be represented in the and does not include address correction, a proxy for its service measurement. performance measurement system. This these pieces are likely to be The Commission finds that single- issue eventually may require a special representative of ‘‘clean’’ mail. Presort piece domestic flats external EXFC data study to measure non-machinable mail flats are also likely to be clean. can be used as an acceptable proxy for performance. Therefore, the Commission accepts the single-piece international flats service BAC and NPPC suggest disaggregating Postal Service’s proposal to use the measurement. the service performance measurement of EXFC’s First-Class single-piece flats Single-piece international parcels. remittance mail and treating remittance measurement as a proxy for presort flats Single-piece international parcels will mail as a distinct category of First-Class with the understanding that IMb will be not be measured, and single-piece Mail. BAC Comments at 2; and NPPC used instead when it becomes possible domestic parcels internal Delivery Comments at 7. to do so. Confirmation data will be used as a Presort letters and cards. The Postal Retail and presort parcels. The Postal proxy for its service measurement. Service proposes to use the hybrid Service proposes an internal The Commission finds that single- measurement system to measure presort measurement system for retail and piece domestic parcels internal Delivery letters and cards. presort parcels. Only parcels that have Confirmation data can be used as an purchased Delivery Confirmation will acceptable proxy for single-piece 16 Non-delivery days are factored into the service be measured. For retail parcels, the international parcels service performance calculation. Delivery Confirmation scan at the time measurement.

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Miscellaneous comments. The Public parcels. Only parcels that have currently working to assure that Red Tag Representative contends that ‘‘the purchased Delivery Confirmation will and DelTrak will provide it with a forwarding (and return or wasting) of be measured. The mailer’s documented representative sample of Periodical undeliverable-as-addressed First-Class arrival time at the Postal Service publications. It should include an Mail remains a large and costly problem acceptance facility is used to start the analysis of representativeness of the for the Postal Service.’’ Public clock of the measurement. The Postal Periodicals measurements with its 2009 Representative Comments at 10. This Service’s scan of the Delivery ACR. category of First-Class Mail is not Confirmation label at delivery, or NNA suggests that there are many measured. Thus, the Public attempted delivery, stops the clock of hurdles to overcome before IMbs begin Representative, joined by Pitney Bowes, the measurement. The number of to appear on newspapers and comments suggest establishment of service calendar days from when the clock is on the many unique problems of standards for undeliverable-as- started to when it is stopped is reported representing smaller publications in the addressed, forwarded, and returned as the measure of service performance. measurement system. NNA Comments mail. Public Representative Comments 3. Periodicals at 3–6. NNA concludes that it is content at 8–12; and Pitney Bowes Reply with leaving Within County Comments at 4. The Postal Service Periodicals include Within County unmeasured for the time being. Id. at 11. should explore the cost of periodically Periodicals and Outside County The Commission recognizes the conducting studies of service Periodicals. Of all Periodicals, 1.5 opinion of Within County mailers that performance for forwarded and returned percent are letters, and 98.5 percent are it is acceptable for the time being for First-Class Mail and inform the flats. Revised Plan at 33. their mail to escape measurement. Commission of their feasibility by the As an interim solution, the Postal Nonetheless, service problems for conclusion of fiscal year 2009. Service proposes using the external Red nationally distributed pieces paying Tag and DelTrak service measurement 2. Standard Mail Within County rates have been reported, providers to measure the service and the statute does not provide an Standard Mail includes High Density performance of Periodicals. The long- exemption from measurement for this and Saturation Letters; High Density term solution is to switch to an internal significant segment of Periodicals mail. and Saturation Flats/Parcels; Carrier IMb-based system once there is a Thus, the Postal Service must strive to Route; Letters; Flats; and Not Flat- sufficient volume of Periodicals mail develop an appropriate measurement Machinables (NFMs)/Parcels. Of all using IMbs. system for Within County mail and Standard Mail, 61.1 percent are presort The Red Tag and DelTrak systems rely inform the Commission of its proposal letters and cards, 38.3 percent are on mailer reported induction times to by the conclusion of fiscal year 2010. presort flats, and 0.6 percent are presort 17 generate a start-the-clock event. A The Commission notes that an parcels. Revised Plan at 26. delivery date reported online by Saturation letters and flats. The Postal additional benefit of the Red Tag- and external reporters generates a stop-the- DelTrak-based systems will be to serve Service proposes to use a variation of clock event. The measurement of service the hybrid measurement system to as a check on the IMb-based system that performance is the number of calendar the Postal Service proposes for the measure saturation letters and flats. days from the start-the-clock event to Unique barcodes are not required on future. Both systems should be run in the stop-the-clock event. parallel at the start to make appropriate saturation mail, which presents MPA supports the use of DelTrak and comparisons. additional challenges to stopping-the- Red Tag as an interim solution until IMb clock for both mail processing and is implemented for Periodicals. MPA 4. Package Services delivery measurement. The Postal Comments at 2. Research International Package Services includes Single- Service states it will develop alternative expresses concern over the methods for external recipients to Piece Parcel Post; Inbound Surface representativeness of DelTrak and Red Parcel Post (at UPU rates); Bound identify saturation mail and to stop the Tag. It notes that mailers must pay to clock of the measurement. Printed Matter Flats; Bound Printed participate in Red Tag, Red Tag mail is Matter Parcels; and Media Mail/Library The Commission recognizes that identifiable to the Postal Service, and using the hybrid system for saturation Mail. Package Services contains both the receiving reporters are volunteers. parcel-shaped and flat-shaped mail. Of letters and flats is problematic. Service Research International Additional performance cannot be accurately the parcel-shaped mail, 14.5 percent is Comments at 4–5. considered retail and 85.5 percent is measured without a valid stop-the-clock McGraw-Hill asserts that ‘‘[a]ccurate considered presort. event. The Commission understands service performance measurement is Retail parcels. The Postal Service that the Postal Service is working to important for smaller mailers no less proposes an internal measurement develop stop-the-clock measurements than for larger mailers.’’ It questions the system for retail parcels based on and encourages it to do so eventual adoption rate of IMb by small Delivery Confirmation scans. Thus, only expeditiously. mailers and whether measurements parcels with purchased Delivery Non-saturation letters and non- from IMb Periodicals will be Confirmation will be measured. The saturation flats. The Postal Service representative of the class as a whole. It Delivery Confirmation scan at the time proposes to use the hybrid measurement suggests studying the temporary use of of purchase starts the clock of the system to measure both non-saturation seed mail. McGraw-Hill Reply service performance measurement. The letters and non-saturation flats. Comments at 4–5. The Postal Service is Miscellaneous comments concerning Postal Service scan of the Delivery flats. MOAA suggests that the Postal 17 It is unclear whether the mailer-reported Confirmation label at delivery, or Service develop tracing at the induction time is reported to the Postal Service or attempted delivery, stops the clock of destination delivery unit (DDU) for flats directly to the external service measurement the service performance measurement. entered as carrier route mail. MOAA providers. If the information flow of the mailer- The difference, in calendar days, reported induction time is not directly from the Comments at 3. mailer to the external measurement providers, the between the start-the-clock event and Parcels. The Postal Service proposes measurement system incorporates features of both the stop-the-clock event is reported as an internal measurement system for internal and external measurement systems. the service performance measurement.

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Presort parcels. The Postal Service The Commission approves of the The Public Representative notes that proposes an internal measurement separate measurement approach. the Postal Service is measuring only the system for presort parcels based on Presort flats. The Postal Service time between when delivery Delivery Confirmation scans. Thus, only proposes to use the hybrid measurement information was collected and when parcels with purchased Delivery system to measure presort flats. that information was made available to Confirmation will be measured. The The Commission looks forward to the the mailer. However, mailpieces that do documented arrival time at the Postal development of this aspect of the not receive a delivery scan event to Service acceptance facility starts the performance measurement system. Until stop-the-clock will not be measured, i.e., clock of the service performance the hybrid measurement system for flats a failed performance will not be measurement. The Postal Service scan becomes a reality, the Postal Service counted. The Public Representative of the Delivery Confirmation label at should include a discussion of its suggests that the Postal Service also delivery, or attempted delivery, stops progress toward implementing this report the ratio of the number of pieces the clock of the service performance system with every annual compliance scanned at delivery to the number of measurement. The difference, in report. such pieces scanned at acceptance. calendar days, between the start-the- Public Representative Comments at clock event and the stop-the-clock event 5. Special Services 48–52. Confirm and automated Address is reported as the service performance Special Services are services offered Correction. The Postal Service proposes measurement. by the Postal Service related to the service measurements for Confirm and delivery of mailpieces, including Publishers Clearing House comments automated Address Correction that use that industry and the Postal Service acceptance, collection, sorting, passive scans of individual IMb need to work together to overcome transportation, or other functions. mailpieces on automated mail adoption barriers to placing Delivery Services within the Ancillary Services processing equipment. For Confirm, the Confirmation barcodes on small parcels and the International Ancillary Services start-the-clock event is the time stamp of (of all classes). Publishers Clearing products can be purchased only in the mailpiece scan, and the stop-the- House Comments at 1–2. conjunction with the purchase of mail clock is the date and time when data is service. Other Special Services products made available to the subscribers. For PostCom/DMA, joined by PSA, and can be purchased on a stand-alone basis. Publishers Clearing House oppose using automated Address Correction, the start- Special Services includes Ancillary the-clock event is the date and time that Delivery Confirmation data from retail 20 Services; International Ancillary data is transmitted to the Address Package Services as a proxy to measure 21 Services; Address List Services; Caller Correction system, and the stop-the- presort Package Services. PostCom/ Service; Change-of-Address Credit Card DMA Comments at 5–6; PSA Comments clock is the date and time when data are Authentication; Confirm; International forwarded to the participants. The at 6–7; and Publishers Clearing House Reply Coupon Service; International Comments at 2. They infer that the service performance score is the Business Reply Mail Service; Money percentage of on-time information Postal Service proposes to use Delivery Orders; and Post Office Box Service. Confirmation data from retail Package availability. Delivery Confirmation, Signature The Public Representative finds Services as a proxy to measure presort Confirmation, Certified Mail, Registered deficiencies similar to what is discussed Package Services from its Initial Plan.18 Mail, electronic Return Receipt, and above with Confirm and Address PostCom/DMA asserts that the Postal Collect on Delivery. The Postal Service Correction measurements. Id. at 52. Service’s intentions for measuring proposes service measurements for PostCom/DMA makes similar comments parcel-shaped presort Package Services Delivery Confirmation, Signature in the areas of Confirm and Delivery are unclear. It contends that retail Confirmation, Certified Mail, Registered Confirmation Service. PostCom/DMA Package Services and presort Package Mail, electronic Return Receipt, and Comments at 8–9. Services have different entry and Collect on Delivery that use internally Post Office Box Service. The Postal operational characteristics, and that generated data from delivery event Service proposes a measurement for there is adequate Delivery Confirmation barcode scans to measure the time Post Office Box Service that uses data to separately measure retail and between when delivery information is internally generated scanning presort Package Services. PostCom/ collected to when the information is technology to measure the percentage of DMA Comments at 5–6. made available to the customer. The post office box sections that meet their The Commission notes that the service performance score is the up-time service standards. references implying use of a proxy do percentage of information available The Public Representative notes that not appear in the Revised Plan. The within 24 hours. this system does not prevent the Postal Revised Plan appears to indicate that Service from changing post office box retail and presort will be measured 20 Ancillary Services include Address Correction up-times, and further contends that the separately with Delivery Confirmation- Service; Applications and Mailing Permits; system lacks controls to prevent based systems.19 The Postal Service Business Reply Mail; Bulk Parcel Return Service; premature scanning of the barcode to Certified Mail; Certificate of Mailing; Collect on meet the up-time service standard. The appears to propose separate Delivery; Delivery Confirmation; Insurance; measurement systems based on Delivery Merchandise Return Service; Parcel Airlift (PAL); Public Representative proposes Confirmation scans for retail and presort Registered Mail; Return Receipt; Return Receipt for expanding EXFC coverage and using parcel-shaped Package Services mail. Merchandise; Restricted Delivery; Shipper-Paid EXFC reporters to measure post office Forwarding; Signature Confirmation; Special box up-times. Public Representative Handling; Stamped Envelopes; Stamped Cards; 18 ‘‘The existing Delivery Confirmation Premium Stamped Stationery; and Premium Comments at 52–54; see also Popkin performance reports for mail originating at postal Stamped Cards. Reply Comments at 1–2. retail units can be used in the short-term to measure 21 International Ancillary Services include Insurance Claims Processing, Postal the service performance of all Package Services International Certificate of Mailing; International Money Order Inquiry Processing, and until service measurement can be extended to Registered Mail; International Return Receipt; Presort parcels.’’ Initial Plan at 11. International Restricted Delivery; International Address List Services. For Insurance 19 See Revised Plan at 37–38, para. 7.2 (retail) and Insurance; and Customs Clearance and Delivery Claims Processing, Postal Money Order para. 7.3 (presort). Fee. Inquiry Processing, and Address List

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Services the Postal Service proposes to diversity contributes to the challenges of provided to the customer in a internally measure the percentage of designing meaningful performance reasonable period of time. However, if time that the services meet their measurement systems for each service. Delivery Confirmation fails to report any maximum processing duration Some services such as Certificate of information at all to the customer, the standards. The system for Insurance Mailing or Stamped Cards essentially measurement system will not report this Claims Processing generates a start-the- are transactions that may not merit as a failure. Failures such as not clock event when all information is much performance measurement scanning a mailpiece at delivery or received by the Customer Inquiry attention.23 Other services such as attempted delivery, or a failure of the Claims Response System, and generates Insurance and Delivery Confirmation scanning equipment itself, are failures a stop-the-clock event upon the are more complex and may warrant that will not be reported through the transmission to the customer of the development of measurement systems proposed performance measurement adjudicator’s decision to pay, deny, or specifically tailored to the services system. In this case, the measurement is close the claim. The system for Postal being provided. not representative of the service being Money Order Inquiry Processing The different levels of revenue offered. At a minimum, the Postal generates a start-the-clock event upon production for the various services also Service must incorporate into its the purchase of the service, and may provide some indication of the proposed measurement systems for generates a stop-the-clock event upon effort warranted for developing Delivery Confirmation and other similar the transmission of a response to the measurement systems. However, just electronic systems a factor for the customer. The system for Address List because a service does not produce a volume of services purchased versus the Services generates a start-the-clock large revenue stream does not mean that volume of services successfully event upon the receipt of the address the service is not important to the completed.24 list or address cards from the mailer at customer that undertakes the additional The measurement system for Return the delivery unit of the postal district effort to purchase the service. Receipt service presents additional Address Management System office, and Three services—Certified Mail, Post concerns. The Postal Service proposes generates a stop-the-clock event upon Office Boxes, and Return Receipts— to use the same measurement system as the transmission to the customer of account for nearly 70 percent of overall described for Delivery Confirmation. corrected address information. Special Services revenue. It may be However, the vast majority of Return Caller Service. The Postal Service desirable to place special emphasis on Receipt service is provided through contends that measuring Caller Service these to assure that they maintain a high delivery of the green return receipt card. is not practical because there is no one level of service performance based on It is not apparent how a delivery scan- up-time as many customers arrange for revenue production alone. based measurement system can be multiple pickups each day. It proposes For several of the services that representative of the delivery of green to address this issue through individual include a barcode scan, the Postal return receipt cards. As mentioned agreements. Service proposes to measure the time above, Return Receipt is one of the Mailers concerned with remittance from the barcode scan event to the time highest revenue producing Special mail request establishing a service this information is made available to the Services. It warrants a more robust, standard for Caller Service. MMA customer. The percentage of time that independent performance measurement Comments at 3; NPPC Comments at 7; this duration falls within the applicable system. PostCom/DMA Comments at 9; service standard is reported as the The problems discussed above are Publishers Clearing House Comments at measure of service performance. symptomatic of many of the 2; and NPPC Additional Comments at Although this measurement may measurement systems proposed for 9–11. BAC further contends that using provide some information on one Special Services. The Commission finds the single post office box up-time component of the service, that that the proposed measurement system measurement does not represent the measurement is not representative of the does not take into account the diverse needs of remittance mailers. BAC service that a customer has purchased or attributes of these individual services, Comments at 3. expects. and does not provide informative Change-of-Address. The Postal As an example, the Postal Service insight into their level of performance. Service does not propose a specific states in the Domestic Mail Manual that The Commission recommends that the measurement system for Change-of- ‘‘Delivery Confirmation service provides Postal Service determine the attributes Address service. the mailer with information about the of each service including the customer’s Noting the challenges of keeping up date and time an article was delivered reasonable expectations of what is being with the current addresses of customers, and, if delivery was attempted but not purchased, and then design BAC urges the Postal Service to successful, the date and time of the measurement systems considering these delivery attempt.’’ Thus, a typical establish standards for Change of parameters. A cost benefit analysis mailer purchasing Delivery Address Service. BAC Comments at 3. factoring in the sophistication of the Confirmation reasonably could expect to The Public Representative echoes this proposed measurement systems, the be provided with information suggestion describing change of address particular reliance a customer or group concerning the date and time of delivery requests and forwarded mail as the of customers may have on a service, and or attempted delivery. If Delivery Achilles’ heel of First-Class Mail service the revenue generated by a particular Confirmation performs as advertised (or performance. Public Representative service also may be appropriate. Before slower than advertised), the proposed Comments at 8–12. providing the Postal Service with an Commission analysis of Special measurement system will capture whether or not delivery information was Services. Special Services include 24 Arguments have been made that this cannot be approximately 35 postal services with accomplished because the Postal Service does not Ancillary Services or International Ancillary know exactly when to expect a final scan or will diverse attributes and a wide range of Services. 22 not have an actual stop-the-clock. However, revenue production levels. This 23 Similarly, some services such as Caller Service reasonable assumptions can be made that overcome may not be susceptible to any meaningful these arguments. The Postal Service will now be 22 As noted above, most of the approximately 35 measurement because of the nature of the service developing and reporting measures of time-to- individual services are components of either itself. delivery for all products.

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endorsement of its approach to these data. This also is an appropriate topic Services. The index weights and internal measurement systems, the for future rulemaking. aggregates the various Special Services. Commission awaits further development A. Postal Service Reporting Proposals 2. Quarterly Report Proposals of the systems to provide a representative measure of the service The Postal Service proposes providing First-Class Mail. The Postal Service being provided. The Postal Service two types of reports to the Commission. proposes providing data which reports either should proceed with external The first is an annual report for the First-Class Mail on-time service measurement of service performance for purpose of reviewing compliance with performance and service variances. Certified, Return Receipt, and Delivery service performance standards. Other Separate reports will be provided for Confirmation or develop an alternative reports will be provided on a quarterly domestic single-piece, domestic presort, internal measurement system by June basis and provide more detail than the and international single-piece mail. 2009. annual report. The on-time service performance Post Office Box Service provides an reports provide the same information as 1. Annual Report Proposals exception to the above comments. The provided annually, but at a proposed measurement system for post First-Class Mail. The Postal Service disaggregated level. The domestic office boxes, which measures the up- proposes reporting three national reports will be disaggregated by postal time, or the time that a day’s mail aggregate annual percentage on-time district and by overnight, 2-day, and 3- becomes available to customers, should service performance scores for single- day mail. The international reports will provide a reasonable measure of piece First-Class Mail: Overnight, 2-day, be disaggregated by postal performance. The Commission and 3-day/4-day/5-day mail.25 It administrative area level and by recommends that the measurement proposes reporting three national inbound and outbound mail. system provide for internal audits to aggregate annual percentage on-time The variance reports provide data on verify that up-times are properly service performance scores for presort the percentages of mail delivered within recorded by Postal Service personnel, First-Class Mail: Overnight, 2-day, and 1 day, 2 days, or 3 days of the applicable and that up-times are conspicuously 3-day mail. It proposes reporting a service performance standard at the available to mailers to both inform single national aggregate annual same level of disaggregation as the on- customers of when mail is available and percentage on-time service performance time service performance reports. to deter any tendency to shift up-times score for single-piece International First- Standard Mail. The Postal Service to later in the day in order to meet Class Mail. proposes providing data which reports service standards. Standard Mail. The Postal Service Standard Mail on-time service The Commission also approves the proposes reporting a single national performance and service variances. proposals for internally measuring the aggregate annual percentage on-time The on-time service performance percentage of time that Insurance claims service performance score for Standard report provides the same information as processing, Postal Money Order inquiry Mail. The score aggregates all of the 2- provided annually, but at a processing, and Address List Services through 22-day service performance disaggregated level. The report will be meet their maximum processing standard groups for letter-, flat-, and disaggregated by postal district and by duration standards. For these systems, it parcel-shaped mail. destination entry versus end-to-end appears appropriate to measure the Periodicals. The Postal Service mail.26 noted processing times instead of proposes reporting a single national The variance report provides data on attempting to develop a performance aggregate annual percentage on-time the percentages of mail delivered within measurement of the product itself. service performance score for 1 day, 2 days, or 3 days of the These systems can be enhanced in the Periodicals. The score aggregates each of aggregated service performance future if necessary. the 1- through 8-day service standard. This report also will display V. Review of the Postal Service Data performance standard groups for letter- data by postal district and by Reporting Proposals and flat-shaped mail. destination entry versus end-to-end Package Services. The Postal Service This section of the order provides a mail. proposes reporting a single national discussion of the Postal Service’s Periodicals. The Postal Service aggregate annual percentage on-time proposals for reporting data generated proposes providing data which reports service performance score for Package by its performance measurement Periodicals on-time service performance Services. The score aggregates each of systems. The discussion includes and service variances. the 2- through 20-day service consideration of the comments The on-time service performance performance standard groups for submitted by the mailing community report provides the same information as Package Services mail. with limited recommendations from the provided in the Annual Compliance Special Services. The Postal Service Commission. As mentioned previously, Report filing, but at a disaggregated proposes reporting a single national the Commission intends to level. The report will be disaggregated ‘‘index’’ representative of all Special comprehensively consider annual and by postal administrative area level. The variance report provides data on periodic data reporting issues related to 25 service performance measurement in a The business rules defining 1- through 5-day the percentages of mail delivered within domestic First-Class Mail service standards appear 1 day, 2 days, or 3 days of the separate rulemaking. The discussion at 72 FR 72225 (December 19, 2007). The Postal that follows is a first step in framing the Service proposes to aggregate the reporting of 4-day aggregated service performance issues that will be considered in that and 5-day service standard mail (predominately standard. This report also will display rulemaking. mail with an origin and/or a destination outside of data by postal administrative area level. the 48 contiguous states) with the reporting of 3-day Package Services. The Postal Service It is important to note that this section service standard mail (predominantly origin- does not discuss the additional data destination mail within the 48 contiguous states). proposes providing data which reports reporting requirements that need to be An estimated 99.7 percent of First-Class Mail pieces will have a service standard of either 1, 2, or 3 days, 26 Destination entry includes destination bulk developed to assure that the and 0.3 percent will have a service standard of mail center, destination area distribution center, measurement system provides either 4 or 5 days. Id. For brevity, 3-day/4-day/5- destination sectional center facility, and destination representative and statistically valid day mail will be referred to as 3-day mail hereafter. delivery unit.

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Package Services on-time service Reporting by shape. Several mailers Service. Generally, they request performance and service variances. request shape-based reporting. BAC reporting most statistics by 30-digit ZIP The on-time service performance Comments at 3; NPPC Comments at 6; Code pairs. AMEE Comments at 2; report provides the same information as PostCom/DMA Comments at 12–13; NPPC Comments at 5; BAC Comments provided in the Annual Compliance Time Warner Comments at 3; Publishers at 3–4; PostCom/DMA Comments at 10– Report filing, but at a disaggregated Clearing House Comments at 1; Valpak 11; PostCom/DMA Additional level. The report will be disaggregated Comments at 10; DFS Reply Comments Comments at 2–3; NPPC Additional by postal district. at 2; and NPPC Additional Comments at Comments at 6–8; Publishers Clearing The variance report provides data on 7. House Comments at 2; DFS Reply the percentages of mail delivered within MOAA extends this request to include Comments at 2–3; IWCO Additional 1 day, 2 days, or 3 days of the separately reporting Standard Mail Comments at 2; and Public aggregated service performance letters and flats, tracing flats entered as Representative Comments at 46, 48. standard. This report also will display carrier route on the basis of entry as In addition, some mailers request data by postal district. bundles or pallets, reporting by level of timely, or real time, Web-based access to Special Services. The Postal Service entry, and by rate tiers. MOAA this data. McGraw-Hill Reply Comments proposes providing a performance score Comments at 2–3. at 2–3; Pitney Bowes Comments at 5–6; which aggregates Delivery Confirmation, PSA argues that Standard Mail parcels and Time Warner Comments at 4. Other Signature Confirmation, Certified Mail, and First-Class Mail parcels are distinct mailers propose monthly interim reports Registered Mail, electronic Return products, and that the associated as opposed to the proposed quarterly Receipt, and Collection on Delivery performance measurements should be interim reports. MMA Comments at 3; reported by postal district. A quarterly reported separately from other mail and PSA Comments at 5–6. score is reported for post office boxes shapes. PSA Comments at 3–5; and PSA McGraw-Hill, MOAA, and Publishers disaggregated by postal district. The Additional Comments at 3–4. PostCom/ Clearing House argue that mailers performance scores for Confirm, DMA also opposes aggregating the should be able to obtain reports on their automated Address Correction, measurement of parcels with other own mail down to 3-digit pairs, together Insurance Claims Processing, Address shaped mail for each of the respective with the aggregate periodic reports. List Services, and Money Order Inquiry classes. PostCom/DMA Comments at 5– McGraw-Hill Reply Comments at 4, n.4; Processing each will be reported 6. MOAA Comments at 2; and Publishers separately at the national level. The Postal Service contends that the Clearing House Comments at 2. PAEA does not require the The Postal Service responds that B. Concerns of the Mailing Community establishment of standards based on although the PAEA does not require the 1. Granularity of Reporting price category or mailpiece shape to generation of customer-specific reports, satisfy the Commission’s regulatory it intends on working with the mailing Reporting by product. Pitney Bowes, responsibilities. Postal Service Reply industry in this area. It suggests that the joined by DFS, requests that the Comments at 5–6. degree of customer access to performance measurement plan reflect Shape-based reporting in general disaggregate service performance data service performance data reported by might be informative to evaluate the (in excess of that required for the product as required by 39 U.S.C. Postal Service’s mail processing regulatory process), may have the 3691(b)(1)(D). They contend that systems, since most mail processing character of an ancillary service. Postal reporting by groups of products may systems are designed around shape and Service Reply Comments at 6. make it difficult, or impossible, for a not class or product. Thus, the The Commission observes that mailer of a particular product to assess Commission finds that reporting by business needs of some mailers may performance. DFS Reply Comments at 3; shape is an appropriate issue to be vastly exceed the needs of the regulator Pitney Bowes Comments at 6–7; and considered in the previously mentioned to perform its functions. Although the Pitney Bowes Additional Comments at rulemaking on service performance data Commission may well specify reporting 7. reporting requirements. in a greater level of detail over time, it General support is expressed by Reporting by service standard day. To is not anticipated that the level of others for performance reporting by allow for adequate evaluation of service reporting will reach the provision of product. PostCom/DMA contends that performance to the non-contiguous near real time data envisioned by some ‘‘[m]easurement at the class level United States, PostCom/DMA suggests mailers. The Postal Service should be obscures actual performance at product separate reporting of 3-day and 4/5-day allowed time to explore the business levels because of volume differences by First-Class Mail which is largely needs of its customers and propose shape.’’ PostCom/DMA Additional comprised of the 3-digit pairs that information products to meet those Comments at 2–3. McGraw-Hill include the non-contiguous United needs outside the context of the supports disaggregate reporting by States. PostCom/DMA Additional regulatory requirements. product. McGraw-Hill Reply Comments Comments at 4–5. Reporting volume information. AMEE at 3. Valpak contends that saturation The Commission finds that the level and MMA suggest including reporting letters and carrier route flats are of aggregation of service standard days volumes to determine relative separate products and should be is an appropriate issue to be considered weightings of the data. AMEE measured separately. Valpak Comments in the previously mentioned rulemaking Comments at 2; and MMA Comments at at 3–4; and Valpak Additional on service performance data reporting 2. Comments at 5–7. requirements. This issue is applicable to The Commission will require the The Commission finds that all classes of mail that have specific reporting of volume data with the compliance with the requirements of 39 days to delivery standards. quarterly reports. The need to be able to U.S.C. 3691(b)(1)(D) is an appropriate Data rich reporting. Most mailers aggregate the quarterly data up to issue to be considered in the previously submitting comments are interested in annual levels was discussed during the mentioned rulemaking on service obtaining service performance consultation between the Commission performance data reporting measurement data at a higher level of and the Postal Service. This includes requirements. detail than proposed by the Postal provision of respective volumes to

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establish the necessary weighting of in particular are sensitive to the Quality of Service Performance Index data. The Postal Service has verbally consistency of delivery for planning ‘‘to review objectively the results of the agreed to providing volume information advertising to reach homes on specific service performance measurements of and a means to aggregate the data from dates. These mailers propose expanding the Postal Service.’’ The index can the quarterly reports up to the annual the variance reports to include reporting represent all postal products or groups level. on early deliveries of mail. AMEE of products. The index would reduce Separate reporting of inbound and Comments at 2; BAC Comments at 4; the variety of performance statistics to a outbound International Mail. Separate MMA Comments at 2; IWCO Additional single, or a few, numbers, and permit reporting of service performance for Comments at 2; MOAA Comments at 3; objective comparisons of service over inbound and outbound International NPPC Additional Comments at 9; and time. Public Representative Comments Mail was discussed during the Valpak Additional Comments at 2–3. at 19–32. consultation between the Commission The Commission recognizes the McGraw-Hill supports the idea of an and the Postal Service. Currently, the benefits to mailers of more detailed index to track performance over time. IMMS report is not disaggregated in this reporting of delivery variance and McGraw-Hill Reply Comments at 1–3. fashion although the data to do so consistency. The proposed NPPC calls this idea intriguing and appears to be available. The Postal measurement systems should be able to worthy of consideration. NPPC Reply Service indicated that it is possible to capture this type of data and provide the Comments at 5. PostCom/DMA does not provide separate reporting. This will be Postal Service with significant oppose development of an index for further examined in the previously actionable data to troubleshoot its each product or each group of products, mentioned rulemaking on service systems. However, the Commission is but opposes one overall index because performance data reporting not convinced that data on early such an index would mask performance requirements. delivery is required for the issues by specific products. PostCom/ Commission’s purposes. Mailers will DMA Reply Comments at 4–6. The 2. Tail-of-the-Mail still be able to work with the Postal Postal Service argues that the index is A theme expressed in many Service when specific problems are beyond the statutorily defined scope of comments is the need to expand tail-of- identified. This area is subject to re- the Commission’s regulatory oversight. the-mail reporting to obtain a more evaluation once the measurement Postal Service Reply Comments at 11. accurate picture of service performance. systems begin generating actual data The Commission finds the proposal to The variance reports proposed by the and specific problems are identified. provide indexes for the entire service Postal Service generally provide data on performance measurement system or for the percentages of mail delivered within 3. Miscellaneous Issues product groups therein noteworthy, but 1 day, 2 days, or 3 days of the applicable Consideration of customer premature. The immediate goal is to service performance standard. satisfaction. The Public Representative develop and implement a performance NPPC stresses the importance to the contends that the plan does not measurement system and begin remittance industry of a system that adequately measure or report customer reporting data. Specific indexes may be distinguishes the distribution of late satisfaction, nor does it provide a considered in the future to evaluate the delivery by days of lateness. NPPC mechanism to assess whether data once the measurement systems Additional Comments at 9. Commenters customers, especially those with become operational. generally express opposition to physical impairments, believe their Class-specific miscellaneous issues. truncating the variance reports at 3 needs are being met. Public MPA supports the revision to the Postal days. Several mailers propose Representative Comments at 12–19. Service’s original proposal to report expanding the variance reports to The Postal Service asserts that it Periodicals service measurement by include the additional days until intends to redesign its Customer performance area instead of only delivery reaches a 99 percent level. BAC Satisfaction Measurement survey to reporting a national aggregate. MPA Comments at 4; MPA Additional meet the requirements of the PAEA and Additional Comments at 2. However, it Comments at 4–5; McGraw-Hill Reply to generate customer satisfaction data on continues to suggest reporting Comments at 3–4; NPPC Comments at a product-by-product basis. Postal Periodicals by postal district once IMb 5–6; NPPC Additional Comments at 8; Service Reply Comments at 10–11. It is in place. MPA Comments at 3; and PostCom/DMA Comments at 14; notes that the survey’s respondents are MPA Additional Comments at 2. PostCom/DMA Additional Comments at randomly solicited without regard to BAC and NPPC suggest disaggregating 4; and Public Representative Comments physical impairment, and can be the service performance measurement of at 45, 47–48. expected to include the view of remittance mail and treating remittance Other approaches to expanding tail- customers with such impairments. Id. at mail as a distinct category of First-Class of-the-mail reporting include adding a 12. Mail. BAC Comments at 2; and NPPC column to the variance reports to show The Commission notes that the Postal Comments at 7. mail that is not delivered within 3 days Service is required to provide an The Commission distinguishes of the applicable standard (PSA analysis of customer satisfaction in its separate reporting of remittance mail Comments at 3), and calculating and annual report to the Commission. See 39 from treating remittance mail as a presenting the average number of days CFR 3652(a)(2)(B)(ii). The Postal distinct category of First-Class Mail. The by which all mailpieces are delivered in Service’s Revised Plan addresses Postal Service has indicated to the excess of the standard (Valpak measurement systems and data Commission in consultations that it is Comments at 11–14; and Valpak reporting. Discussion of customer considering ways to separately measure Additional Comments at 3–4). Valpak satisfaction appears beyond the scope of the performance of remittance mail, also suggests reporting tail-of-the-mail the Postal Service’s proposals and was which indicates a future potential for in the annual report in addition to what appropriately omitted until the separate reporting of remittance mail. is presented in the variance reports. Customer Satisfaction Measurement However, treating remittance mail as a Valpak Additional Comments at 4–5. Survey has been redesigned. distinct category of First-Class Mail The other side of tail-of-the-mail is Quality of service performance index. raises classification issues that are early delivery of mail. Standard mailers The Public Representative proposes a beyond the scope of this discussion.

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VI. Opportunity for Further Review supporting materials) for performance 4. The Motion of the Public The PAEA provides the Postal Service data in the Postal Service’s annual Representative for Late Acceptance of and the Commission with the flexibility report to the Commission. 39 U.S.C. Comments on United States Postal to develop a useful and beneficial 3652(e)(1). It also may prescribe the Service June 2008 Service Performance performance measurement system over methodologies used in preparing the Measurement Plan for Market-Dominant time. The Commission approves of the annual report. 39 U.S.C. 3652(a)(1). Products, filed July 10, 2008, is granted. approach that the Postal Service is Progress towards a smoothly 5. The Secretary shall arrange for taking to establish most of its functioning, broadly representative, publication of this order in the Federal measurement systems recognizing that measurement system based on full Register. these systems are in the early stage of service IMb must be monitored, and the development. Postal Service should include with its VIII. Concurring Opinion of The Commission is greatly ACR, discussions of the extent to which Commissioner Goldway appreciative of the Postal Service’s various measures are representative. In I agree with my colleagues that the efforts thus far in making the this order, the Commission identifies initial approach to service performance measurement of service standards a several potential problem areas the measurement proposed by the Postal reality. The task is complex and will Postal Service should focus on. Should Service offers the potential of a reliable, require continuing effort. it appear that progress toward reliable Inevitably, problems will arise as the measurement has ceased, or that ‘‘the low cost system. The Postal Service systems are implemented that will quality of service data has become seeks to use scans of Intelligent Mail require changes to these systems. significantly inaccurate or can be Barcodes (IMb) to gauge service Informal procedures are available for the significantly improved[,]’’ proceedings performance by measuring the Postal Service to keep the Commission may be initiated to remedy identified processing and transportation of bulk apprised of developments and to seek problems. 39 U.S.C. 3652(e)(2). letters and flats. consultation where necessary as the The effort to improve service through The Commission identifies a number measurement systems progress. Regular establishing standards and measuring of areas where the ability of this system meetings between the Postal Service and performance will be continuing. The to accurately depict actual service the Commission to provide updates on modern service standards are subject to performance will depend on whether a progress and problems are beneficial, review through the complaint process. representative mix of mail uses ‘‘full including workgroup meetings at the 39 U.S.C. 3691(d). Additionally, the service’’ IMb. For this reason, the staff level. Continuing attention is Commission may, if necessary, initiate Commission also directs the Postal necessary to keep the implementation of reporting requirements through its Service to provide quarterly progress the measurement systems on track. The obligation to establish a modern system reports on IMb implementation and to Commission supports the ideas for regulating rates and classes for include with its Annual Compliance expressed in the comments for the market dominant products. 39 U.S.C. Reports analyses of the Postal Service to share its internal 3622(a). representativeness of certain service milestones with the public, and to VII. Ordering Paragraphs performance measurement results. regularly report on progress. See APWU I write separately to clarify that, while Comments at 21; PostCom/DMA It is Ordered: the language of the order offers options Comments at 21; and Valpak Reply 1. The Commission approves of the and suggestions on how to proceed to Comment at 3. The Postal Service will approaches that the Postal Service is the Service, these analyses and reports provide such reports to the Commission taking in developing internal must be undertaken promptly and be at the beginning of each fiscal quarter. measurement systems for various Many formal avenues also are classes of mail as specified in the body complete in their scope. available by statute for reviewing and of this order. The Commission and the Postal improving the performance 2. The Commission finds the Service have been consulting on these measurement system. These methods proposed measurement systems for issues for almost two years. The may be employed as the needs of the several Special Services are inadequate Commission views accurate and Commission, the Postal Service, and the as specified in the body of this order. comprehensive service performance mailing community change over time, or Remedial action is to be proposed by measurement as a requirement of the when specific issues arise that require June 1, 2009. Postal Accountability and Enhancement closer examination. The Commission 3. The Postal Service is to provide Act. Unjustified, further delay in will shortly initiate a rulemaking to progress reports and analyses of obtaining reliable, representative service prescribe the content and form of public reliability for its measurement systems performance measurements will not be reports (and any nonpublic annex and as specified in the body of this order. acceptable.

ATTACHMENT A—COMMENTS TO SERVICE PERFORMANCE MEASUREMENT SYSTEMS FOR MARKET DOMINANT PRODUCTS

Participant Title Filing date

American Postal Workers Union, AFL–CIO Initial Comments of American Postal Workers January 18, 2008. (APWU). Union, AFL–CIO, on Service Performance Measurement Systems for Market Dominant Products. Association for Mail Electronic Enhancement Comments of the Association for Mail Electronic January 18, 2008. (AMEE). Enhancement. Association for Postal Commerce and Direct Mar- Initial Comments of the Association for Postal January 18, 2008. keting Association (PostCom/DMA). Commerce Joined by the Direct Marketing As- sociation.

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ATTACHMENT A—COMMENTS TO SERVICE PERFORMANCE MEASUREMENT SYSTEMS FOR MARKET DOMINANT PRODUCTS— Continued

Participant Title Filing date

Reply Comments of the Association for Postal February 1, 2008. Commerce Joined by the Direct Marketing As- sociation (Corrected Version). Comments of the Association for Postal Com- July 9, 2008. merce Joined by the Direct Marketing Associa- tion: Order No. 83. Bank of America Corporation (BAC) ...... Comments of the Bank of America Corporation ... January 18, 2008. Conde` Nast Publications ...... Comments of Conde` Nast Publications ...... July 8, 2008. Discover Financial Services LLC (DFS) ...... Reply Comments of DFS Services LLC in Re- February 1, 2008. sponse to Notice for Request for Comments. Greeting Card Association (GCA) ...... Comments of the Greeting Card Association ...... January 18, 2008. IWCO Direct ...... Comments of IWCO Direct ...... July 9, 2008. Magazine Publishers of America, Inc. (MPA) ...... Comments of Magazine Publishers of America, January 18, 2008. Inc. Comments of Magazine Publishers of America, July 9, 2008. Inc. Mail Order Association of America (MOAA)...... Comments of the Mail Order Association of January 17, 2008. America on the Postal Service’s ‘‘Service Per- formance Measurement’’ for Market Dominant Products. Major Mailers Association (MMA) ...... Comments of Major Mailers Association ...... January 18, 2008. McGraw-Hill Companies, Inc. (McGraw-Hill) ...... Reply Comments of The McGraw-Hill Compa- February 1, 2008. nies, Inc. National Newspaper Association (NNA) ...... Comments of National Newspaper Association on January 18, 2008. Service Performance Measurement Systems for Market Dominant Products. National Postal Policy Council (NPPC) ...... Comments of National Postal Policy Council ...... January 18, 2008. Reply Comments of National Postal Policy Coun- February 1, 2008. cil. Comments of National Postal Policy Council ...... July 9, 2008. Parcel Shippers Association (PSA) ...... Comments of the Parcel Shippers Association on January 18, 2008. Service Performance Measurement Systems for Market Dominant Products. Further Comments of the Parcel Shippers Asso- July 9, 2008. ciation on Service Performance Measurement Systems for Market Dominant Products. Pitney Bowes Inc. (Pitney Bowes) ...... Initial Comments of Pitney Bowes Inc. in Re- January 18, 2008. sponse to Notice of Request for Comments on Service Performance Measurement Systems for Market Dominant Products. Reply Comments of Pitney Bowes Inc. in Re- February 1, 2008. sponse to Notice of Request for Comments on Service Measurement Systems for Market Dominant Products. Comments of Pitney Bowes Inc. in Response to July 9, 2008. the Second Notice of Request for Comments on Service Performance Measurement Sys- tems for Market Dominant Products. David B. Popkin (Popkin) ...... Initial Comments of David B. Popkin ...... January 18, 2008. Reply Comments of David B. Popkin ...... February 1, 2008. Public Representative ...... Public Representative Initial Comments in Re- January 18, 2008. sponse to Notice of Request for Comments on Service Performance Measurement Systems for Market-Dominant Products. Public Representative Reply Comments in Re- February 1, 2008. sponse to Notice of Request for Comments on Service Performance Measurement Systems for Market-Dominant Products. Public Representative Comments on United July 10, 2008. States Postal Service June 2008 Service Per- formance Measurement Plan to Market-Domi- nant Products. Publishers Clearing House ...... Comments on Docket No. PI2008–1 Service Per- January 18, 2008. formance Measurement Systems for Market Dominant Products. Research International ...... Comments of Research International ...... January 14, 2008. Research International Second Notice of Request July 8, 2008. for Comments on Service Performance Meas- urement Systems for Market Dominant Prod- ucts.

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ATTACHMENT A—COMMENTS TO SERVICE PERFORMANCE MEASUREMENT SYSTEMS FOR MARKET DOMINANT PRODUCTS— Continued

Participant Title Filing date

Time Warner Inc. (Time Warner) ...... Comments of Time Warner Inc. in Response to January 18, 2008. Commission Order No. 48. United States Postal Service (Postal Service) ...... Reply Comments of the United States Postal February 1, 2008. Service. Valpak Direct Marketing Systems, Inc. and Valpak Valpak Direct Marketing Systems, Inc. and January 18, 2008. Dealers’ Association, Inc. (Valpak). Valpak Dealers’ Association, Inc. Comments on Service Performance Measurement Sys- tems for Market Dominant Products. Valpak Direct Marketing Systems, Inc. and February 1, 2008. Valpak Dealers’ Association, Inc. Reply Com- ments on Service Performance Measurement Systems for Market Dominant Products. Valpak Direct Marketing Systems, Inc. and July 9, 2008. Valpak Dealers’ Association, Inc. Comments on Service Performance Measurement Sys- tems for Market Dominant Products in Re- sponse to Order No. 83.

By the Commission. establish the minimum price variation Background Steven W. Williams, of $0.0001 for orders and quotations in On August 28, 2000, the Exchange Secretary. equity securities that are priced below began trading in decimals.4 At that time, [FR Doc. E8–28643 Filed 12–2–08; 8:45 am] $1.00 per share, which will enable the the Exchange amended NYSE Rule 62 to BILLING CODE 7710–FW–P Exchange to accept orders in sub-penny provide that bids and offers in securities increments for those securities. traded on the NYSE would be at a The text of the proposed rule change minimum price variation set by the SECURITIES AND EXCHANGE is available at http://www.nyse.com, NYSE.5 At the initiation of decimal COMMISSION NYSE’s principal office, and the trading, the NYSE announced that the Commission’s Public Reference Room. [Release No. 34–59025; File No. SR–NYSE– minimum price variation for all stocks 2008–123] II. Self-Regulatory Organization’s trading on the Exchange would be one Statement of the Purpose of, and cent ($.01).6 Rule 62 was subsequently Self-Regulatory Organizations; Notice Statutory Basis for, the Proposed Rule amended to establish a minimum price of Filing and Immediate Effectiveness Change variation of $.10 (ten cents) for of Proposed Rule Change by New York securities trading on the Exchange In its filing with the Commission, the Stock Exchange LLC To Establish the priced at $100,000 and above.7 self-regulatory organization included Minimum Price Variation of $0.0001 for On April 6, 2005, the SEC adopted statements concerning the purpose of, Orders and Quotations in Equity Regulation NMS, which is a series of and basis for, the proposed rule change Securities That Are Priced Below $1.00 initiatives designed to modernize and and discussed any comments it received per Share improve the national market system for on the proposed rule change. The text trading equity securities. Rule 612 of November 26, 2008. of those statements may be examined at Regulation NMS 8 permits markets to Pursuant to Section 19(b)(1) of the the places specified in Item IV below. accept, rank and display orders priced Securities Exchange Act of 1934 (the The Exchange has prepared summaries, less than $1.00 per share in a minimum 1 2 ‘‘Act’’) and Rule 19b–4 thereunder, set forth in sections A, B, and C below, pricing increment of $0.0001. notice is hereby given that on November of the most significant parts of such Currently the Exchange systems do 26, 2008, New York Stock Exchange statements. not accept orders in sub-penny LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed A. Self-Regulatory Organization’s increments for securities priced below with the Securities and Exchange Statement of the Purpose of, and the $1.00; however, Exchange systems Commission (the ‘‘Commission’’) the Statutory Basis for, the Proposed Rule recognize protected quotations with a proposed rule change as described in Change sub-penny component in its round-lot 9 Items I and II below, which Items have been prepared by the self-regulatory 1. Purpose 4 See Securities Exchange Act Release No. 42914 organization. The Commission is The Exchange seeks to amend (June 8, 2000), 65 FR 38010 (June 19, 2000). 5 publishing this notice to solicit Exchange Rule 62 (Variations) to See Securities Exchange Act Release No. 43230 comments on the proposed rule change (August 30, 2000), 65 54589 (September 8, 2000) establish the minimum price variation (SR–NYSE–00–22). from interested persons. of $0.0001 for orders and quotations in 6 Id. I. Self-Regulatory Organization’s equity securities that are priced below 7 See Securities Exchange Act Release No. 49374 Statement of the Terms of Substance of $1.00 per share, which will enable the (March 8, 2004), 69 FR 11923 (March 12, 2004) (SR– Exchange to accept orders in sub-penny NYSE–2004–10). the Proposed Rule Change 8 See Securities Exchange Act Release No. 51808 increments 3 for those securities. The Exchange proposes to amend (June 9, 2005), 70 FR 37496 (June 29, 2005) 17 CFR Exchange Rule 62 (Variations) to 242.612. 3 The Exchange is currently modifying its systems 9 The Exchange system enhancements that will to enable it to quote and trade in sub-penny enable recognition of sub-penny quotations for 1 15 U.S.C. 78s(b)(1). increments and will file a separate proposal with pricing of odd-lots in the odd-lot system are 2 17 CFR 240.19b–4. the Commission at a later date. Continued

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market and accommodate away market rule change on November 28, 2008. the protection of investors or the public executions in sub-pennies, in Commencing operation on that date will interest; (2) does not impose any compliance with SEC Rules 611 and enable the Exchange, on a traditionally significant burden on competition; and 612. moderate trading day, to ensure the (3) by its terms, does not become optimal efficiency of its software prior operative for 30 days after the date of Proposed Amendment to NYSE Rule 62 to resumption of normal trading on filing, or such shorter time as the The Exchange proposes to amend its December 1, 2008. Commission may designate if consistent Rule 62 to conform to the provisions of with the protection of investors and the SEC Rule 612 by establishing that the 2. Statutory Basis public interest, the proposed rule minimum price variation for orders and The basis under the Securities change has become effective pursuant to quotations in equity securities on the Exchange Act of 1934 (the ‘‘Act’’) 11 for Section 19(b)(3)(A) of the Act 14 and Exchange below a $1.00 will be $0.0001. this proposed rule change is the Rule 19b–4(f)(6) thereunder.15 Specifically, the Exchange proposes to requirement under Section 6(b)(5) 12 NYSE requested that the Commission amend .10 under Supplementary that an Exchange have rules that are waive the 30-day operative delay, which Material of Rule 62 to provide the designed to promote just and equitable would make the rule change operative following table: principles of trade, to foster cooperation as of November 28, 2008. The and coordination with persons engaged Commission hereby grants the Minimum in regulating, clearing, settling, Exchange’s request and believes this Price of order or interest price vari- action is consistent with the protection ation processing information with respect to, and facilitating transactions in of investors and the public interest.16 Less than $1.00 ...... $.0001 securities, to remove impediments to The Exchange’s proposed rule is based $1.00–99,999.99 ...... 01 and perfect the mechanism of a free and on that of another exchange 17 and does $100,000 and greater ...... 10 open market and a national market not appear to raise any novel or system and, in general, to protect significant issues. Accordingly, the When an order is received on the investors and the public interest. The Commission designates the proposed NYSE that contains a sub-penny proposed rule change also is designed to rule change operative as of November component, the Exchange will round support the principles of Section 28, 2008. down any bid price down to the next 11A(a)(1) 13 in that it seeks to assure At any time within 60 days of the round penny and round any offer price economically efficient execution of filing of such proposed rule change, the up to the next round penny. The order securities transactions, make it Commission may summarily abrogate will be sent to NYSE trading systems practicable for brokers to execute such rule change if it appears to the and the Consolidated Quotation investors’ orders in the best market and Commission that such action is System 10 with the rounded price. The provide an opportunity for investors’ necessary or appropriate in the public Exchange therefore proposes to replace orders to be executed without the interest, for the protection of investors, .20 under Supplementary Material with participation of a dealer. The Exchange or otherwise in furtherance of the 18 language to indicate that for securities believes that the instant proposal is in purposes of the Act. whose MPV is $.0001, the Exchange will keeping with these principles in that it IV. Solicitation of Comments round the bid price down to the next seeks to amend NYSE Rule 62 to Interested persons are invited to whole penny or round the offer price up conform to the provisions of SEC Rule submit written data, views, and to the next whole penny when 612 by establishing that the minimum arguments concerning the foregoing, transmitting the bid or offer to the price variation for securities trading on including whether the proposed rule Consolidated Quotation System. The the Exchange below a $1.00 will be change is consistent with the Act. rounded price assigned to the order or $0.0001. quotation is used for all order handling Comments may be submitted by any of purposes including routing and B. Self-Regulatory Organization’s the following methods: Statement on Burden on Competition execution. Electronic Comments The Exchange intends to initiate the The Exchange does not believe that • Use the Commission’s Internet systemic operation related to the above the proposed rule change will impose comment form (http://www.sec.gov/ any burden on competition that is not rules/sro.shtml); or contained in the technology associated with Phase necessary or appropriate in furtherance • Send an e-mail to rule- 2 implementation of the New Market Model. See of the purposes of the Act. Securities Exchange Act Release No. 58845 (October [email protected]. Please include File 24, 2008), 73 FR 64379 (October 29, 2008) (SR– C. Self-Regulatory Organization’s Number SR–NYSE–2008–123 on the NYSE–2008–46). Until the conclusion of the second subject line. Phase of implementation, which is scheduled to be Statement on Comments on the completed no longer than ten weeks after October Proposed Rule Change Received From 24, 2008, those odd-lot orders that would receive Members, Participants or Others 14 15 U.S.C. 78s(b)(3)(A). an execution price based on the NBBO as set forth 15 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– in NYSE Rule 124 will be priced at the last NBBO No written comments were solicited 4(f)(6)(iii) requires the self-regulatory organization that did not contain a sub-penny price. or received with respect to the proposed to give the Commission notice of its intent to file 10 This practice is currently done on NYSE Arca rule change. the proposed rule change, along with a brief Exchange. Commentary .04 NYSE Arca Rule 7.6(a) description and text of the proposed rule change, provides: III. Date of Effectiveness of the at least five business days prior to the date of filing The minimum price variation (‘‘MPV’’) for Proposed Rule Change and Timing for of the proposed rule change, or such shorter time as designated by the Commission. NYSE has quoting and entry of orders in equity securities Commission Action traded on the NYSE Arca Marketplace is $0.01, with satisfied this requirement. the exception of securities that are priced less than Because the foregoing proposed rule 16 For purposes only of waiving the operative $1.00 for which the MPV for order entry is $0.0001, change: (1) Does not significantly affect delay for this proposal, the Commission has provided, however, that the Corporation shall round considered the proposed rule’s impact on the bid down to the next whole penny or the offer efficiency, competition, and capital formation. See up to the next whole penny and display the 11 15 U.S.C. 78a. 15 U.S.C. 78c(f). rounded bid or offer in the consolidated quotation 12 15 U.S.C. 78f(b)(5). 17 See supra note 10. system. 13 15 U.S.C. 78k–1(a)(1). 18 15 U.S.C. 78s(b)(3)(C).

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Paper Comments SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Statement of the Purpose of, and • COMMISSION Send paper comments in triplicate Statutory Basis for, the Proposed Rule to Secretary, Securities and Exchange Change Commission, 100 F Street, NE., [Release No. 34–59027; File No. SR– NYSEALTR–2008–11] Washington, DC 20549–1090. 1. Purpose Self-Regulatory Organizations; Notice The purpose of the proposed rule All submissions should refer to File change is to amend Rule 62–NYSE of Filing and Immediate Effectiveness Number SR–NYSE–2008–123. This file Alternext Equities to conform with of Proposed Rule Change by NYSE number should be included on the amendments to NYSE Rule 62 recently subject line if e-mail is used. To help the Alternext US LLC To Establish the filed by the NYSE. Commission process and review your Minimum Price Variation of $0.0001 for comments more efficiently, please use Orders and Quotations in Equity Background only one method. The Commission will Securities that are Priced Below $1.00 As described more fully in a related post all comments on the Commission’s Per Share rule filing, NYSE Euronext acquired The Internet Web site (http://www.sec.gov/ Amex Membership Corporation November 28, 2008. rules/sro.shtml). Copies of the (‘‘AMC’’) pursuant to an Agreement and submission, all subsequent Pursuant to Section 19(b)(1) of the Plan of Merger, dated January 17, 2008 amendments, all written statements Securities Exchange Act of 1934 (the (the ‘‘Merger’’). In connection with the with respect to the proposed rule ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Merger, the Exchange’s predecessor, the change that are filed with the notice is hereby given that, on American Stock Exchange LLC (‘‘Amex’’), a subsidiary of AMC, became Commission, and all written November 26, 2008, NYSE Alternext US LLC (the ‘‘Exchange’’ or ‘‘NYSE a subsidiary of NYSE Euronext called communications relating to the 3 Alternext’’) filed with the Securities and NYSE Alternext U.S. LLC, and will proposed rule change between the continue to operate as a national Exchange Commission (the Commission and any person, other than securities exchange registered under ‘‘Commission’’) the proposed rule those that may be withheld from the Section 6 of the Act.4 The effective date public in accordance with the change as described in Items I and II of the Merger was October 1, 2008. provisions of 5 U.S.C. 552, will be below, which Items have been prepared In connection with the Merger, the available for inspection and copying in by the Exchange. The Commission is Exchange will relocate all equities the Commission’s Public Reference publishing this notice to solicit trading conducted on the Exchange Room, 100 F Street, NE., Washington, comments on the proposed rule change legacy trading systems and facilities DC 20549, on official business days from interested persons. located at 86 Trinity Place, New York, New York (the ‘‘86 Trinity Trading between the hours of 10 a.m. and 3 p.m. I. Self-Regulatory Organization’s Systems’’), to trading systems and Copies of such filing also will be Statement of the Terms of Substance of facilities located at 11 Wall Street, New available for inspection and copying at the Proposed Rule Change the principal office of the NYSE. All York, New York (the ‘‘Equities comments received will be posted The Exchange proposes to amend Relocation’’). The Exchange’s equity without change; the Commission does Rule 62–NYSE Alternext Equities to trading systems and facilities at 11 Wall not edit personal identifying conform with amendments to NYSE Street (the ‘‘NYSE Alternext Trading information from submissions. You Systems’’) will be operated by the NYSE Rule 62 recently filed by the New York 5 should submit only information that Stock Exchange LLC (‘‘NYSE’’). on behalf of the Exchange. Similarly, the Exchange will relocate you wish to make available publicly. All II. Self-Regulatory Organization’s the trading of certain debt securities submissions should refer to File Statement of the Purpose of, and currently conducted on the 86 Trinity Number SR–NYSE–2008–123 and Statutory Basis for, the Proposed Rule Trading Systems to an automated bond should be submitted on or before Change trading system (‘‘NYSE Alternext December 24, 2008. Bonds’’) that will be operated by the For the Commission, by the Division of In its filing with the Commission, the NYSE on behalf of the Exchange (the Trading and Markets, pursuant to delegated self-regulatory organization included ‘‘Bonds Relocation’’). The Exchange will authority.19 statements concerning the purpose of, also relocate all options trading Jill M. Peterson, and basis for, the proposed rule change currently conducted on the 86 Trinity Assistant Secretary. and discussed any comments it received Trading Systems to new facilities of the Exchange to be located at 11 Wall Street, [FR Doc. E8–28662 Filed 12–2–08; 8:45 am] on the proposed rule change. The text of those statements may be examined at which will use a trading system based BILLING CODE 8011–01–P the places specified in Item IV below. on the options trading system used by The Exchange has prepared summaries, NYSE Arca, Inc. (the ‘‘Options 6 set forth in sections A, B, and C below, Relocation’’). of the most significant parts of such 3 See Securities Exchange Act Release No. 58673 statements. The text of the proposed (September 29, 2008), 73 FR 57707 (October 3, rule change is available on the 2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) Exchange’s Web site, at the Exchange’s (approving the Merger). principal office, and at the 4 15 U.S.C. 78f. 5 See Securities Exchange Act Release No. 58705 Commission’s Public Reference Room. (October 1, 2008), 73 FR 58995 (October 8, 2008) (SR–Amex 2008–63) (approving the Equities Relocation). 6 See Securities Exchange Act Release No. 58833 1 15 U.S.C.78s(b)(1). (October 22, 2008), 73 FR 64642 (October 30, 2008) 19 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. Continued

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Post-Merger, all Exchange members Proposed Amendments to Rule 62– promote just and equitable principles of and member organizations that were NYSE Alternext Equities trade, to foster cooperation and authorized to trade on the Exchange The Exchange proposes to amend coordination with persons engaged in before the Merger will receive trading Rule 62–NYSE Alternext Equities to regulating, clearing, settling, processing permits (referred to as ‘‘86 Trinity conform to amendments recently filed information with respect to, and Permits’’) that authorize continued by the NYSE for its Rule 62.11 facilitating transactions in, securities, to trading on the 86 Trinity Trading The Exchange therefore proposes to remove impediments to and perfect the Systems. Holders of the 86 Trinity amend Supplementary Material .10 of mechanism of a free and open market Permits are eligible to apply for NYSE Rule 62–NYSE Alternext Equities to and a national market system, and, in Alternext equities trading licenses or include the following table of minimum general, to protect investors and the options trading permits upon the price variation (MPV) values: public interest. The proposal also Equities or Options Relocation, as supports the principles of Section applicable.7 In addition, pursuant to the Minimum 11A(a)(1) 14 of the Act in that it seeks to Merger, all NYSE Alternext members Price of order or interest price ensure the economically efficient and member organizations that apply for variation execution of securities transactions, to NYSE Alternext equities trading Less than $1.00 ...... $.0001 make it practicable for brokers to licenses are automatically waived in as $1.00–99,999.99 ...... 01 execute investors’ orders in the best NYSE members and member $100,000 and greater ...... 10 market, and to provide an opportunity organizations.8 Similarly, all NYSE for investors’ orders to be executed members and member organizations are The Exchange further proposes to without the participation of a dealer. automatically waived in as NYSE amend Supplementary Material .20 of The Exchange believes that the Alternext members and member Rule 62–NYSE Alternext Equities to proposed rule change is necessary and organizations.9 provide that, when an order for a appropriate to update the NYSE security containing a sub-penny Alternext Trading Systems in The NYSE Alternext Equities Rules component (i.e., with MPV of $.0001) is conformity with changes made to the In order to implement the Equities received by the Exchange, the Exchange NYSE trading systems on which they and Bonds Relocations, the Exchange will round any bid price down to the are based, and, specifically, to conform adopted NYSE Rules 1–1004 as the next round penny and round any offer Rule 62–NYSE Alternext Equities with NYSE Alternext Equities Rules to price up to the next round penny. The the provisions of SEC Rule 612 by govern all trading on the NYSE order will be sent to the NYSE Alternext establishing the minimum price Alternext Trading Systems and NYSE Trading Systems and the Consolidated variation for securities trading on the Alternext Bonds. Because the NYSE Quotation System with the rounded Exchange below a $1.00. Alternext Trading Systems and NYSE price, which will be used for all order B. Self-Regulatory Organization’s Alternext Bonds will be operated by the handling purposes, including routing Statement on Burden on Competition NYSE on behalf of the Exchange, the and execution. The Exchange does not believe that NYSE Alternext Equities Rules, which Operative Date will become operative as of the date of the proposed rule change will impose the Equities and Bonds Relocations, are The Exchange proposes that the any burden on competition that is not substantially identical to the current operative date of the proposed rule necessary or appropriate in furtherance NYSE Rules 1–1004, subject to such change be the date of the Equities and of the purposes of the Act. Bonds Relocations, currently scheduled changes as were necessary to apply the C. Self-Regulatory Organization’s 10 for December 1, 2008. rules to the Exchange. Statement on Comments on the 2. Statutory Basis Proposed Rule Change Received From (SR–NYSE–2008–106) and Securities Exchange Act Release No. 58839 (October 23, 2008), 73 FR 64645 The Exchange believes that its Members, Participants or Others (October 30, 2008) (SR–NYSEALTR–2008–03) proposal is consistent with Section 6(b) No written comments were solicited (together, approving the Bonds Relocation). The of the Act,12 in general, and furthers the or received with respect to the proposed Exchange will submit a separate rule filing to adopt objectives of Section 6(b)(5) of the Act,13 a new rule set to govern NYSE Alternext options rule change. trading following the Options Relocation. in particular, in that it is designed to 7 See Securities Exchange Act Release No. 58706 III. Date of Effectiveness of the (October 1, 2008), 73 FR 59019 (October 8, 2008) (formally filed November 26, 2008) (adopting Proposed Rule Change and Timing for (SR–NYSE–2008–70) (describing and approving amendments to NYSE Alternext Equities Rules to Commission Action membership rule changes related to the Merger); track changes to corresponding NYSE Rules). Securities Exchange Act Release No. 58705 (October 11 In its rule filing the NYSE proposed, in The Exchange believes that this 1, 2008), 73 FR 58995 (October 8, 2008) (SR–Amex accordance with SEC Rule 612, to establish a proposal qualifies for immediate 2008–63) (approving the Equities Relocation). minimum price variation of $0.0001 for orders and effectiveness upon filing as a non- 8 See NYSE Rules 2.10 and 2.20. NYSE Alternext quotations in equity securities that are priced below controversial rule change pursuant to members and member organizations will have a six- $1.00 per share in order to enable the NYSE to 15 month grace period within which to meet NYSE accept orders in sub-penny increments for those Section 19(b)(3)(A) of the Act and and NYSE Alternext Equities membership securities. See SR–NYSE–2008–123 (formally filed Rule 19b–4(f)(6) thereunder.16 The requirements. See NYSE Rule 300.10T and NYSE November 26, 2008). The Exchange understands Exchange asserts that the proposed rule Alternext Equities Rule 300.10T. that the NYSE is in the process of modifying its change (i) will not significantly affect 9 See NYSE Alternext Equities Rules 2.10 and .20. trading systems to, in addition to accepting sub- the protection of investors or the public 10 See Securities Exchange Act Release No. 58705 penny orders, enable quotation and trading in sub- (October 1, 2008), 73 FR 58995 (October 8, 2008) penny increments on the NYSE. These interest, (ii) will not impose any (SR–Amex 2008–63) (approving the Equities modifications to the NYSE trading systems will significant burden on competition, and Relocation); Securities Exchange Act Release No. similarly modify the NYSE Alternext Trading (iii) by its terms, will not become 58833 (October 22, 2008), 73 FR 64642 (October 30, Systems, and the Exchange will submit a operative for 30 days after the date of 2008) (SR–NYSE–2008–106) and Securities companion rule filing at the same time the NYSE Exchange Act Release No. 58839 (October 23, 2008), submits its rule filing for these system 73 FR 64645 (October 30, 2008) (SR–NYSEALTR– modifications. 14 15 U.S.C. 78k–1(a)(1). 2008–03) (together, approving the Bonds 12 15 U.S.C. 78f(b). 15 15 U.S.C. 78s(b)(3)(A). Relocation); and SR–NYSEALTR–2008–10 13 15 U.S.C. 78f(b)(5). 16 17 CFR 240.19b–4(f)(6).

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this filing, or such shorter time as the Paper Comments SECURITIES AND EXCHANGE Commission may designate, if • COMMISSION consistent with the protection of Send paper comments in triplicate investors and the public interest.17 to Secretary, Securities and Exchange Commission, 100 F Street, NE., [Release No. 34–59022; File No. SR– The Exchange has requested that the NYSEALTR–2008–10] Commission waive the 30-day operative Washington, DC 20549–1090. delay, and designate the proposal as All submissions should refer to File Self-Regulatory Organizations; NYSE operative as of December 1, 2008. NYSE Number SR–NYSEALTR–2008–11. This Alternext U.S. LLC; Notice of Filing and Alternext notes that it has previously file number should be included on the Immediate Effectiveness of Proposed announced its intention to relocate its subject line if e-mail is used. To help the Rule Change To Conform Its Rules equities and bonds trading from the 86 Commission process and review your With Those of the New York Stock Trinity Trading Systems to the NYSE Exchange Alternext Trading Systems and NYSE comments more efficiently, please use only one method. The Commission will Alternext Bonds on December 1, 2008, November 26, 2008. and has previously advised the post all comments on the Commission’s Commission staff of its intention to Internet Web site (http://www.sec.gov/ Pursuant to Section 19(b)(1) of the harmonize the rules between NYSE and rules/sro.shtml). Copies of the Securities Exchange Act of 1934 (the 1 2 NYSE Alternext in order to facilitate submission, all subsequent ‘‘Act’’) and Rule 19b–4 thereunder, this transition. Moreover, the Exchange amendments, all written statements notice is hereby given that, on believes that this filing is non- with respect to the proposed rule November 26, 2008, NYSE Alternext controversial because it is consistent change that are filed with the U.S. LLC (the ‘‘Exchange’’ or ‘‘NYSE with one that was previously submitted Commission, and all written Alternext’’) filed with the Securities and by NYSE for immediate effectiveness.18 communications relating to the Exchange Commission (the The Commission hereby grants the proposed rule change between the ‘‘Commission’’) the proposed rule Exchange’s request 19 and believes that Commission and any person, other than change as described in Items I and II waiving the 30-day operative delay is those that may be withheld from the below, which Items have been prepared consistent with the protection of public in accordance with the by the self-regulatory organization. The investors and the public interest. The provisions of 5 U.S.C. 552, will be Commission is publishing this notice to rule being adopted through this filing is available for inspection and copying in solicit comments on the proposed rule based on a previously established rule the Commission’s Public Reference change from interested persons. of NYSE, and does not appear to raise Room, on official business days between any novel or significant issues. I. Self-Regulatory Organization’s the hours of 10 a.m. and 3 p.m. Copies Statement of the Terms of Substance of Furthermore, waiving the operative of the filing also will be available for delay will facilitate the Equities the Proposed Rule Change inspection and copying at the principal Relocation, which is scheduled to occur office of the Exchange. All comments The Exchange proposes to amend on December 1, 2008. Therefore, the received will be posted without change; Commission designates the proposal certain NYSE Alternext Equities Rules operative as of December 1, 2008. the Commission does not edit personal to conform with amendments to certain identifying information from NYSE Rules filed by the New York IV. Solicitation of Comments submissions. You should submit only Stock Exchange LLC (‘‘NYSE’’), and also Interested persons are invited to information that you wish to make additional technical amendments. submit written data, views, and available publicly. All submissions II. Self-Regulatory Organization’s arguments concerning the foregoing, should refer to File Number SR– Statement of the Purpose of, and including whether the proposed rule NYSEALTR–2008–11 and should be Statutory Basis for, the Proposed Rule change is consistent with the Act. submitted on or before December 24, Change Comments may be submitted by any of 2008. the following methods: For the Commission, by the Division of In its filing with the Commission, the Electronic Comments Trading and Markets, pursuant to delegated self-regulatory organization included authority.20 statements concerning the purpose of, • Use the Commission’s Internet and basis for, the proposed rule change comment form (http://www.sec.gov/ J. Lynn Taylor, and discussed any comments it received rules/sro.shtml); or Assistant Secretary. on the proposed rule change. The text • Send an e-mail to rule- [FR Doc. E8–28679 Filed 12–2–08; 8:45 am] of those statements may be examined at [email protected]. Please include File BILLING CODE 8011–01–P Number SR–NYSEALTR–2008–11 the the places specified in Item IV below. subject line. The Exchange has prepared summaries, set forth in sections A, B, and C below, 17 In addition, Rule 19b–4(f)(6) requires a self- of the most significant parts of such regulatory organization to give the Commission statements. The text of the proposed written notice of its intent to file the proposed rule rule change is available on the change at least five business days prior to the date of filing of the proposed rule change, or such Exchange’s Web site, at the Exchange’s shorter time as designated by the Commission. The principal office, and at the Commission has determined to waive the five-day Commission’s Public Reference Room. pre-filing period in this case. 18 See Securities Exchange Act Release No. 59025 (November 26, 2008) (SR–NYSE–2008–123). 19 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, 1 15 U.S.C. 78s(b)(1). and capital formation. See 15 U.S.C. 78c(f). 20 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.

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A. Self-Regulatory Organization’s Post-Merger, all Exchange members Proposed Amendments to NYSE Statement of the Purpose of, and and member organizations that were Alternext Equities Rules Statutory Basis for, the Proposed Rule authorized to trade on the Exchange The NYSE Alternext Equities Rules Change before the Merger will receive trading will become operative as of the date of permits (referred to as ‘‘86 Trinity 1. Purpose the Equities and Bonds Relocations. In Permits’’) that authorize continued The purpose of the proposed rule the interim period since the filing and trading on the 86 Trinity Trading approval of the Equities Relocation, the changes is to amend certain NYSE Systems. Holders of the 86 Trinity Alternext Equities Rules to conform NYSE has filed rule changes to some of Permits are eligible to apply for NYSE its rules governing trading on its trading with amendments to certain NYSE Alternext equities trading licenses or Rules filed by the NYSE. systems that would also impact trading options trading permits upon the on the NYSE Alternext Trading Systems Background Equities or Options Relocation, as 7 and NYSE Alternext Bonds. The applicable. In addition, pursuant to the Exchange therefore proposes to amend As described more fully in a related Merger, all NYSE Alternext members rule filing, NYSE Euronext acquired The the NYSE Alternext Equities Rules to and member organizations that apply for conform to these rule changes, subject to Amex Membership Corporation NYSE Alternext equities trading (‘‘AMC’’) pursuant to an Agreement and such minor, technical changes as are licenses are automatically waived in as necessary to apply the amended rules to Plan of Merger, dated January 17, 2008 NYSE members and member (the ‘‘Merger’’). In connection with the 8 the Exchange. Unless specifically noted, organizations. Similarly, all NYSE NYSE Alternext is proposing no Merger, the Exchange’s predecessor, the members and member organizations are American Stock Exchange LLC substantive changes in this filing from automatically waived in as NYSE the rule text approved for NYSE by the (‘‘Amex’’), a subsidiary of AMC, became Alternext members and member a subsidiary of NYSE Euronext called Commission or adopted pursuant to an organizations.9 NYSE Alternext U.S. LLC,3 and will immediately effective filing. The continue to operate as a national The NYSE Alternext Equities Rules changes are summarized broadly below: • securities exchange registered under In order to implement the Equities Revisions and amendments to 4 Section 6 of the Act. The effective date and Bonds Relocations, the Exchange various NYSE Alternext and NYSE of the Merger was October 1, 2008. adopted NYSE Rules 1–1004 as the Alternext Equities rules necessary to In connection with the Merger, the implement the ‘‘New Market Model’’ NYSE Alternext Equities Rules to 11 Exchange will relocate all equities govern all equities trading on the NYSE adopted by the NYSE (‘‘NMM’’); • Revision of Rule 98–NYSE trading conducted on the Exchange Alternext Trading Systems and NYSE Alternext Equities and amendments to legacy trading systems and facilities Alternext Bonds. Because the NYSE related rules (including the deletion of located at 86 Trinity Place, New York, Alternext Trading Systems and NYSE Rule 102–NYSE Alternext Equities) New York (the ‘‘86 Trinity Trading Alternext Bonds will be operated by the concerning the structure and operation Systems’’), to trading systems and NYSE on behalf of the Exchange, the of member organization specialist (now facilities located at 11 Wall Street, New NYSE Alternext Equities Rules are known as ‘‘DMMs’’) units and risk York, New York (the ‘‘Equities substantially identical to the existing management; 12 Relocation’’). The Exchange’s equity NYSE Rules, subject to such changes as trading systems and facilities at 11 Wall were necessary to apply the rules to the (October 30, 2008) (SR–NYSE–2008–106) and Street (the ‘‘NYSE Alternext Trading Exchange. The NYSE Alternext Equities Systems’’) will be operated by the NYSE Securities Exchange Act Release No. 58839 (October 23, 2008), 73 FR 64645 (October 30, 2008) (SR– 5 Rules are based on the NYSE Rules in on behalf of the Exchange. their form as of July 18, 2008. NYSE NYSEALTR–2008–03) (together, approving the Similarly, the Exchange will relocate Alternext Equities Rule 86, which is the Bonds Relocation). the trading of certain debt securities 11 In adopting what it calls the ‘‘New Market principal rule governing trading on currently conducted on the 86 Trinity Model’’, the NYSE proposed a number of changes NYSE Alternext Bonds, is based on Trading Systems to an automated bond to its marketplace, including (i) Providing market NYSE Rule 86 in the form it existed as participants with additional abilities to post hidden trading system (the ‘‘Bonds Relocation’’) of October 1, 2008.10 liquidity on Exchange systems; (ii) creating a that will be operated by the NYSE on Designated Market Maker (‘‘DMM’’) and phasing behalf of the Exchange (‘‘NYSE out the NYSE specialist; and (iii) enhancing the Release No. 58839 (October 23, 2008), 73 FR 64645 speed of execution through technological Alternext Bonds’’). The Exchange will (October 30, 2008) (SR–NYSEALTR–2008–03) enhancements and a reduction in message traffic also relocate all options trading (together, approving the Bonds Relocation). The between NYSE trading systems and its DMMs. See currently conducted on the 86 Trinity Exchange will submit a separate rule filing to adopt Securities Exchange Act Release No. 58845 (October Trading Systems to new facilities of the a new rule set to govern NYSE Alternext options 24, 2008), 73 FR 64379 (October 29, 2008) (SR– trading following the Options Relocation. NYSE–2008–46) (adopting NMM). See also Exchange to be located at 11 Wall Street, 7 See Securities Exchange Act Release No. 58706 Securities Exchange Act Release No. 58971 which will use a trading system based (October 1, 2008), 73 FR 59019 (October 8, 2008) (November 17, 2008), 73 FR 71070 (November 24, on the options trading system used by (SR–NYSE–2008–70) (describing and approving 2008) (SR–NYSE–2008–115) (amendments thereto). NYSE Arca, Inc. (‘‘NYSE Arca’’) (the membership rule changes related to the Merger); With the exception of the DMM net capital Securities Exchange Act Release No. 58705 (October ‘‘Options Relocation’’).6 requirements (addressed separately in this filing), 1, 2008), 73 FR 58995 (October 8, 2008) (SR–Amex NYSE Alternext is not proposing any additional 2008–63) (approving the Equities Relocation). substantive changes in this filing different from the 3 See Securities Exchange Act Release No. 58673 8 See NYSE Rules 2.10 and 2.20. NYSE Alternext rule text approved for NYSE by the Commission or (September 29, 2008), 73 FR 57707 (October 3, members and member organizations will have a six- adopted pursuant to an immediately effective filing, 2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) month grace period within which to meet NYSE although it is including corresponding technical (approving the Merger). and NYSE Alternext Equities membership rule changes to change references to ‘‘specialists’’ 4 15 U.S.C. 78f. requirements. See NYSE Rule 300.10T and NYSE or internal cross-references that were incorrect or 5 See Securities Exchange Act Release No. 58705 Alternext Equities Rule 300.10T. not included in the original NYSE filings (see Rules (October 1, 2008), 73 FR 58995 (October 8, 2008) 9 See NYSE Alternext Equities Rules 2.10 and .20. 2A(c)–, 15(b)–, 70.25–, 92(d)–, 98(c)–, 123(g)–, (SR–Amex 2008–63) (approving the Equities 10 See Securities Exchange Act Release No. 58705 123E(f)–, 124(f)–, 325–, 431–, 440G.10– and 900– Relocation). (October 1, 2008), 73 FR 58995 (October 8, 2008) (chart of rules)–NYSE Alternext Equities). 6 See Securities Exchange Act Release No. 58833 (SR–Amex 2008–63) (approving the Equities 12 The NYSE revised the regulatory requirements (October 22, 2008), 73 FR 64642 (October 30, 2008) Relocation). See also Securities Exchange Act under its Rule 98 concerning how member (SR–NYSE–2008–106) and Securities Exchange Act Release No. 58833 (October 22, 2008), 73 FR 64642 organizations structure their DMM operations and

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• Revisions to Rules 103A–NYSE • Amendments to various member • Modification of Rule 1000–NYSE Alternext Equities and 103B–NYSE firm conduct rules that are ‘‘Common Alternext Equities to change the Alternext Equities, Non-NYSE Alternext Rules’’ shared with NYSE and the Liquidity Replenishment Point (‘‘LRP’’) Equities Rule 476A, and amendments to Financial Industry Regulatory Authority values; 18 related rules (including the deletion of (‘‘FINRA’’) to conform with changes • Amendments to Rule 431–NYSE Rule 106–NYSE Alternext Equities) made by FINRA to its versions of these Alternext Equities to codify the portfolio concerning the allocation of registered rules; 14 margin program set forth in paragraph securities to DMMs; 13 • Amendments to Rule 48–NYSE (g) regarding (i) monitoring concentrated Alternext Equities concerning extremely equity positions and (ii) timing of day manage their risks, including: (i) Redefining the volatile market conditions and closing trading margin calls; 19 persons to whom NYSE Rule 98 would apply; (ii) procedures; 15 • Adoption of an operative date of allowing DMM operations to be integrated into • Adoption of Rule 123B.30–NYSE better capitalized member organizations; (iii) March 31, 2009, for Rule 92(c)(3)– permitting a DMM unit to share nontrading-related Alternext Equities to provide for a Alternext Equities, to correspond with services with its parent member organization or standard sponsored access provision for the operative date of NYSE Rule approved persons; and (iv) providing flexibility to the Exchange; 16 92(c)(3); 20 and member organizations and their approved persons • Amendments to Rule 123D–NYSE • in how to conduct risk management of DMM Technical amendments to Rule 17– operations. In addition the NYSE also made Alternext Equities regarding the NYSE Alternext Equities.21 conforming amendments to other NYSE rules that elimination of the provision governing As noted in footnote 11, NYSE rely on NYSE Rule 98 exemptions for approved sub-penny trading halts; 17 Alternext is retaining the net capital persons. See Securities Exchange Act Release No. 58328 (August 7, 2008), 73 FR 48260 (August 18, requirements it adopted with the NYSE NYSE–2008–08). In Section VI(F) the Exchange 2008) (SR–NYSE–2008–45). Alternext Equities Rules (see current proposes to change the cross-reference to Rule 102 NYSE Alternext is proposing no substantive of the NYSE Listed Company Manual to Section 101 Rule 104.20, .23 and .24–NYSE changes in this filing from the rule text approved of the NYSE Alternext Company Guide. Alternext Equities) but it will move for NYSE by the Commission or adopted pursuant 14 The amendments made by FINRA (and NYSE) to an immediately effective filing, except to the them to new Rules 103.20 and .21– include: (i) Replacing the term ‘‘allied member’’ extent that proposed Rule 98 (Former)–NYSE NYSE Alternext Equities to track the with the newly defined category of ‘‘principal Alternext Equities is based on legacy Amex Rule executive’’; (ii) repositioning and consolidating all rule organization adopted by the NYSE. 193. At the time NYSE Alternext Equities Rules ‘‘Buy-In’’ requirements and procedures (see Rules were initially adopted, the Exchange adopted legacy 283, 285–290–NYSE Alternext Equities) into one another market center if such quote had a sub- Amex Rule 193 in place of NYSE Rules 98 and 98A. See Securities Exchange Act Release No. 58705 rule (Rule 282–NYSE Alternext Equities); (iii) penny component. To prevent its systems from (October 1, 2008), 73 FR 58995 (October 8, 2008) moving certain provisions of Common Rules to inadvertently trading through better protected (SR–Amex 2008–63). Thus, the proposed other Common Rules; (iv) deleting Common Rules quotations, the NYSE adopted Rule 123D(3), which amendments to create Rule 98 (Former)–NYSE that are obsolete or no longer applicable; (v) provided that trading would be halted in any Alternext Equities differ in form, though not in eliminating certain provisions of Common Rules security whose price was about to fall below $1.00 substance, from those proposed to create NYSE that do not have a corresponding NASD equivalent and to route any subsequent orders received for that Rule 98 (Former). and therefore are unnecessary; (vi) amendments to security to NYSE Arca, Inc. The NYSE now has the further harmonize certain NYSE and NASD Rules; technical capability to recognize protected 13 The NYSE modified its Allocation Policy to (i) (vii) deleting Common Rules that are substantively quotations with a sub-penny component in its Discontinue the use of the Specialist Performance Evaluation Questionnaire (‘‘SPEQ’’), (ii) establish a duplicative of existing NASD Rules and procedures; round-lot market and to accommodate away market single quantifiable objective measure to determine (viii) limiting application of Common Rule 345(a) executions in sub-pennies in compliance with a DMM unit’s eligibility to participate in the to securities lending representatives and Regulation NMS and so it removed Rule 123D(3). allocation process, and (iii) provide issuers with supervisors only; and (ix) making corresponding See Securities Exchange Act Release No. 58936 more choice in the selection of their DMM unit. As technical changes to other rules as needed. See (November 13, 2008), 73 FR 69704 (November 19, part of these modifications, the NYSE eliminated its Securities Exchange Act Release No. 58549 2008) (SR–NYSE–2008–117). Allocation Committee as the overseer of the (September 15, 2008), 73 FR 54444 (September 19, 18 The NYSE amended its Rule 1000 to double the allocation process and the Allocation Panel from 2008) (SR–NYSE–2008–80). current LRP ranges in order to limit the number of which the Allocation Committee members were NYSE Alternext is not proposing any substantive times that an LRP is reached and the total number selected. The NYSE also eliminated its Market changes in this filing different from the rule text of times during the trading day that automatic Performance Committee as the entity that approved for NYSE by the Commission or adopted execution is suspended as a result of an LRP being responsible for reallocating securities. See pursuant to an immediately effective filing, triggered. See Securities Exchange Act Release No. Securities Exchange Act Release No. 58857 (October although it is including corresponding technical 58629 (September 24, 2008), 73 FR 57183 (October 24, 2008), 73 FR 65435 (November 3, 2008) (SR– changes to other rules not included in the original 1, 2008) (SR–NYSE–2008–85). NYSE–2008–52). The NYSE filing specified that at FINRA filing since they are not Common Rules 19 The NYSE amended its Common Rule 431 to least three DMM units (out of six) shall be subject to FINRA’s review (see Rules 17, 22, 25, 91, conform with amendments made by FINRA to its presented for selection by issuers. Because NYSE 93, 96, 99 (Former), 104T, 105, 112, 113 (Former), version of the rule. See Securities Exchange Act Alternext has fewer DMM units (four, instead of 122–123, 123G, 304–304A, 308–309, 410A, 422, Release Nos. 58261 and 58269 (July 30, 2008), 73 six), NYSE Alternext is proposing to change the 456–460–NYSE Alternext Equities and Non-NYSE FR 46114 and 46116 (August 7, 2008) (SR–NYSE– number of DMM units presented to two. If three of Alternext Equities Rules 475–476A). In addition, 2008–65 and –66). the four firms are not eligible to receive new FINRA did not make corresponding amendments to 20 In July 2007, in connection with the on-going allocations under the Allocation rules (e.g., if they NYSE Rules 344 and 350 even though they are harmonization of NYSE Rule 92 with FINRA’s have not complied with the mandatory quoting Common Rules. NYSE Alternext has included its Manning Rule (NASD Rule 2111 and IM–2110–2), requirements for new allocations), then the version of these rules in its amendments. the NYSE amended Rule 92(c)(3) to require member remaining eligible firm shall be required to apply 15 The NYSE amended its Rule 48 to provide it firms to submit order execution reports to the for the allocation. with the ability to suspend certain requirements at NYSE’s Front End Systemic Capture (‘‘FESC’’) In addition, the Exchange proposes to modify the closing when extremely high market volatility database when executing riskless principal Sections IV(A) and VI(F) of Rule 103B–NYSE could negatively affect the ability to ensure a fair transactions. Because the rule change has required Alternext Equities to eliminate cross-references to and orderly close. See Securities Exchange Act both the NYSE and member firms to make certain other NYSE Rules that are inapplicable to NYSE Release No. 58743 (October 7, 2008), 73 FR 60742 technological changes to their trading and order Alternext. Specifically, in Section IV(A), the (October 14, 2008) (SR–NYSE–2008–102). management systems, and to provide additional Exchange removed cross-references to Rule 806.01 16 See Securities Exchange Release No. 58429 time for NYSE and FINRA to fully harmonize NYSE of the NYSE Listed Company Manual, which (August 27, 2008), 73 FR 51676 (September 4, 2008) Rule 92 and FINRA’s Manning Rule, the NYSE concerns the reallocation of a security at the issuer’s (SR–NYSE–2008–71) and Securities Exchange Act proposed delaying the operative date for request. The Exchange instead proposes to cross- Release No. 58758 (October 8, 2008), 73 FR 62352 implementation of NYSE Rule 92(c)(3) until March reference and add supplementary Rule 103B.10– (October 20, 2008) (SR–NYSE–2008–100). 31, 2009. See Securities Exchange Act Release No. NYSE Alternext Equities, which will track NYSE 17 At the time Regulation NMS was originally 57682 (April 17, 2008), 73 FR 22193 (April 24, Listed Company Manual Rule 806.01. The NYSE implemented, the NYSE’s trading systems were not 2008) (SR–NYSE–2008–29). Rule was adopted as immediately effective. See able to accommodate sub-penny executions on 21 See Securities Exchange Act Release No. 58137 Securities Exchange Act Release No. 57232 (January orders routed to better-priced protected quotations (July 10, 2008), 73 FR 41145 (July 17, 2008) (SR– 30, 2008), 73 FR 6755 (February 5, 2008) (SR– and could not recognize a quote disseminated by NYSE–2008–55).

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The Exchange is also adding provisions Alternext Equities to accommodate the 2. Statutory Basis in 103.20(a)(i) and (ii) to provide that extension and to ensure its applicability The Exchange believes that its any Structured Products that are not to Exchange members and member proposal is consistent with Section 6(b) subject to a trading halt pursuant to organizations operating under the NYSE of the Act,27 in general, and furthers the Rule 123D(4)–NYSE Alternext Equities Alternext Equities Rules after the objectives of Section 6(b)(5) of the Act,28 as of the date of the Equities Relocation Equities Relocation.24 in particular, in that it is designed to will be eligible to be allocated to a DMM The Exchange also proposes to adopt prevent fraudulent and manipulative if necessary until the security is halted a new Rule 128–NYSE Alternext acts and practices, to promote just and and traded on NYSE Arca in accordance Equities concerning clearly erroneous equitable principles of trade, to remove with that rule.22 executions, which will be operative impediments to and perfect the The Exchange is also adding until January 9, 2009. As described in mechanism of a free and open market provisions (vii) through (x) to 103.20(a)– the related rule filing, at the time the and a national market system, and, in NYSE Alternext Equities. These Exchange adopted the NYSE Alternext general, to protect investors and the provisions address DMM net capital Equities Rules, it did not import the public interest. The proposed rule issues, including the use of financing to NYSE’s rule governing clearly erroneous changes also support the principles of meet net capital requirements, the executions (NYSE Rule 128) because it Section 11A(a)(1) 29 of the Act in that requirement that a DMM meet the net was under review and was anticipated they seek to ensure the economically capital requirements without including that it would be amended prior to the efficient execution of securities an investment account and the so-called date of the Equities Relocation. transactions and fair competition among ‘‘early warning’’ requirements. These However, that has not happened and the brokers and dealers and among provisions were supposed to have been Exchange now proposes to delete the exchange markets. The Exchange included in the original NYSE Alternext current Rule 128–NYSE Alternext believes that the proposed rule changes Equities filing but were mistakenly not Equities and adopt a new Rule 128– are necessary and appropriate to reflect included.23 NYSE Alternext Equities that is based the recent changes to the NYSE In addition, the Exchange proposes to on the NYSE’s current Rule 128. In this Alternext market, the NYSE Alternext amend Rule 440H–NYSE Alternext way the two exchanges will have the Trading Systems and the member Equities concerning accumulated same clearly erroneous execution conduct rules that govern NYSE Section 31 fees held by the Exchange procedures that are operative during the Alternext members and member and its members and member same time frame.25 organizations. organizations. In May 2008, the Finally, the Exchange proposes Commission approved Amex’s (the additional technical amendments to B. Self-Regulatory Organization’s Exchange’s predecessor) adoption of Rules 51–, 55–, 61–, 72–, 79A–, 86– and Statement on Burden on Competition Commentary .01 to Rule 393, which 123D–NYSE Alternext Equities to reflect The Exchange does not believe that allows firms, on a one-time-only basis, proper internal cross-references to other the proposed rule change will impose to voluntarily remit to the Exchange NYSE Alternext Equities rules and to any burden on competition that is not historically accumulated Section 31 Rules 342.16–.19–NYSE Alternext necessary or appropriate in furtherance funds, which may be used to pay the Equities to add text inadvertently left of the purposes of the Act. Exchange’s current Section 31 fees. In out of the NYSE Alternext Equities rule C. Self-Regulatory Organization’s addition, a member or member set when it was adopted.26 Statement on Comments on the organization may designate all or part of Operative Date Proposed Rule Change Received From the accumulated fees held by the Members, Participants or Others Exchange and allocated to such member The Exchange proposes that the to be used by the Exchange in operative date of the proposed rule No written comments were solicited accordance with the Rule. To the extent changes be the date of the Equities and or received with respect to the proposed the payment of these historically Bonds Relocations, currently scheduled rule change. accumulated funds or Exchange for December 1, 2008. III. Date of Effectiveness of the accumulated funds is in excess of the Proposed Rule Change and Timing for Section 31 fees due the Commission 24 See Securities Exchange Act Release No. 58933 Commission Action from the Exchange, such surplus shall (November 12, 2008), 73 FR 69712 (November 19, be used by the Exchange to offset 2008) (SR–NYSEALT–2008–05) (proposed The Exchange believes that this extension of Commentary .01 to Rule 393 proposal qualifies for immediate regulatory costs. The Exchange recently concerning accumulated Section 31 fees). See also filed to extend the provisions of Securities Exchange Act Release No. 58108 (July 7, effectiveness upon filing as a non- Commentary .01 to Rule 393 until 2008), 73 FR 40413 (July 14, 2008) (SR–NYSE– controversial rule change pursuant to 30 January 13, 2009, and proposes 2007–64) (approving similar amendments to NYSE Section 19(b)(3)(A) of the Act and Rule 440H). Rule 19b–4(f)(6) thereunder.31 The amendments to Rule 440H–NYSE 25 See Securities Exchange Act Release No. 58705 Exchange asserts that the proposed rule (October 1, 2008), 73 FR 58995 (October 8, 2008) 22 See Securities Exchange Act Release No. 58705 (SR–Amex 2008–63) (approving the Equities change (i) Will not significantly affect (October 1, 2008), 73 FR 58995 (October 8, 2008) Relocation). The NYSE’s current version of its Rule the protection of investors or the public (SR–Amex 2008–63) (approving the Equities 128 was approved by the Commission in February interest, (ii) will not impose any Relocation). The new language included in 2008 and is operative until January 9, 2009. See significant burden on competition, and 103.20(a)(i) and (ii) was approved in the filing for Securities Exchange Act Release No. 57323 the NMM submitted by the NYSE. See Securities (February 13, 2008), 73 FR 9371 (February 20, 2008) (iii) by its terms, will not become Exchange Act Release No. 58845 (October 24, 2008), (SR–NYSE–2008–09) (adopting NYSE Rule 128); operative for 30 days after the date of 73 FR 64379 (October 29, 2008) (SR–NYSE–2008– Securities Exchange Act Release No. 58732 (October this filing, or such shorter time as the 46) (adopting NMM). 3, 2008), 73 FR 61183 (October 15, 2008) (SR– 23 See Non-NYSE Alternext Equities Rule 171, NYSE–2008–99) (extending the sunset provision of 27 15 U.S.C. 78f(b). Commentaries .01, .03, .06 and .07. These the rule). 28 provisions were filed and approved by the 26 See Securities Exchange Act Release No. 58705 15 U.S.C. 78f(b)(5). Commission. See, e.g., Securities Exchange Act (October 1, 2008), 73 FR 58995 (October 8, 2008) 29 15 U.S.C. 78k–1(a)(1). Release No. 47703 (April 18, 2003), 68 FR 22425 (SR–Amex 2008–63) (approving the Equities 30 15 U.S.C. 78s(b)(3)(A). (April 28, 2003) (SR–AMEX–2002–104). Relocation). 31 17 CFR 240.19b–4(f)(6).

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Commission may designate, if and they do not appear to raise any submitted on or before December 24, consistent with the protection of novel or significant issues. Furthermore, 2008. 32 investors and the public interest. waiving the operative delay will For the Commission, by the Division of NYSE Alternext has requested that the facilitate the Equities and Bonds Trading and Markets, pursuant to delegated Commission waive the 30-day operative Relocations, which are scheduled to authority.35 delay and designate the proposal as occur on December 1, 2008. Therefore, J. Lynn Taylor, operative as of December 1, 2008. NYSE the Commission designates the proposal Assistant Secretary. Alternext notes that it has previously operative as of December 1, 2008. announced its intention to relocate its [FR Doc. E8–28680 Filed 12–2–08; 8:45 am] equities and bonds trading from the 86 IV. Solicitation of Comments BILLING CODE 8011–01–P Trinity Trading Systems to the NYSE Interested persons are invited to Alternext Trading Systems and NYSE submit written data, views, and Alternext Bonds on December 1, 2008, arguments concerning the foregoing, DEPARTMENT OF TRANSPORTATION and has previously advised the including whether the proposed rule Federal Aviation Administration Commission staff of its intention to change is consistent with the Act. harmonize the rules between NYSE and Comments may be submitted by any of Notice of Intent To Request Revision NYSE Alternext in order to facilitate the following methods: From the Office of Management and this transition. NYSE Alternext further Electronic Comments Budget of a Currently Approved notes that relocating the trading is a Information Collection Activity, • complex operation that involves Use the Commission’s Internet Request for Comments; Agricultural numerous simultaneous actions. NYSE comment form (http://www.sec.gov/ Aircraft Operator Certificate Alternext argues that the 30-day waiting rules/sro.shtml); or Application period would make it impossible for • Send an e-mail to rule- NYSE Alternext to meet the December 1, [email protected]. Please include File AGENCY: Federal Aviation 2008 relocation deadline, which would Number SR–NYSEALTR–2008–10 on Administration (FAA), DOT. adversely affect the competitiveness of the subject line. ACTION: Notice and request for the Exchange and its members, and comments. would impair the ability of investors Paper Comments SUMMARY: and public customers of those members • Send paper comments in triplicate The FAA invites public to effectively trade their securities. to Secretary, Securities and Exchange comments about our intention to request Moreover, the Exchange believes that Commission, 100 F Street, NE., the Office of Management and Budget this filing is non-controversial because Washington, DC 20549–1090. (OMB) to approve a current information it raises no novel issues and is collection. Certain organizations may All submissions should refer to File consistent with the Commission’s prior apply to perform certification functions Number SR–NYSEALTR–2008–10. This approvals of the rule filings upon which on behalf of the FAA. Standards have file number should be included on the this filing is modeled.33 As noted above, been established for the certification of subject line if e-mail is used. To help the the proposed rule change is based on agricultural aircraft. The information Commission process and review your rule text that was previously approved collected shows applicant compliance comments more efficiently, please use by the Commission for NYSE or and eligibility for certification by FAA. only one method. The Commission will previously submitted by NYSE for DATES: Please submit comments by post all comments on the Commission’s immediate effectiveness. Except as February 2, 2009. Internet Web site (http://www.sec.gov/ specifically noted, and subject to such FOR FURTHER INFORMATION CONTACT: rules/sro.shtml). Copies of the minor technical changes as are submission, all subsequent Carla Mauney on (202) 267–9895, or by necessary to apply the rules to the amendments, all written statements e-mail at: [email protected]. Exchange, NYSE Alternext is adopting with respect to the proposed rule SUPPLEMENTARY INFORMATION: the NYSE rules in the form that they change that are filed with the were approved by the Commission for Federal Aviation Administration (FAA) Commission, and all written NYSE. Title: Agricultural Aircraft Operator communications relating to the The Commission hereby grants the Certificate Application. proposed rule change between the Exchange’s request 34 and believes that Type of Request: Extension without Commission and any person, other than waiving the 30-day operative delay is change of an approved collection. those that may be withheld from the consistent with the protection of OMB Control Number: 2120–0049. public in accordance with the investors and the public interest. The Form(s): 8710–3. provisions of 5 U.S.C. 552, will be rules being adopted through this filing Affected Public: A total of 3,980 available for inspection and copying in are based on previously established Respondents. the Commission’s Public Reference rules of NYSE (or in a few cases Amex), Frequency: The information is Room, on official business days between collected on occasion. 32 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– the hours of 10 a.m. and 3 p.m. Copies Estimated Average Burden per 4(f)(6) requires a self-regulatory organization to give of the filing also will be available for Response: Approximately 3.5 hours per the Commission written notice of its intent to file inspection and copying at the principal response. the proposed rule change at least five business days office of the Exchange. All comments Estimated Annual Burden Hours: An prior to the date of filing of the proposed rule change, or such shorter time as designated by the received will be posted without change; estimated 14,037 hours annually. Commission. The Exchange has satisfied this the Commission does not edit personal Abstract: Standards have been requirement. identifying information from established for the certification of 33 See supra footnotes 12–27 for a list of all submissions. You should submit only agricultural aircraft. The information relevant filings. information that you wish to make collected shows applicant compliance 34 For purposes only of waiving the 30-day operative delay, the Commission has considered the available publicly. All submissions and eligibility for certification by FAA. proposed rule’s impact on efficiency, competition, should refer to File Number SR– and capital formation. See 15 U.S.C. 78c(f). NYSEALTR–2008–10 and should be 35 17 CFR 200.30–3(a)(12).

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ADDRESSES: Send comments to the FAA Federal Aviation Administration (FAA) ACTION: Notice and request for at the following address: Ms. Carla Title: Air Carriers Listing of Leading comments. Mauney, Room 712, Federal Aviation Outsource Maintenance Providers. Administration, IT Enterprises Business SUMMARY: The FAA invites public Type of Request: Extension without comments about our intention to request Services Division, AES–200, 800 change of an approved collection. Independence Ave., SW., Washington, the Office of Management and Budget OMB Control Number: 2120–0708. DC 20591. (OMB) to approve a current information Form(s): There are no FAA forms Comments are invited on: Whether collection. Certain organizations may associated with this collection. apply to perform certification functions the proposed collection of information Affected Public: A total of 121 is necessary for the proper performance on behalf of the FAA. This information Respondents. collection is required for compliance of the functions of the Department, Frequency: The information is including whether the information will with the final rule that codifies special collected on occasion. flight rules and airspace and flight have practical utility; the accuracy of Estimated Average Burden per the Department’s estimates of the restrictions for certain operations in the Response: Approximately 4 hours per Washington, DC Metropolitan Area. burden of the proposed information response. DATES: Please submit comments by collection; ways to enhance the quality, Estimated Annual Burden Hours: An February 2, 2009. utility and clarity of the information to estimated 484 hours annually. be collected; and ways to minimize the Abstract: The data from this report is FOR FURTHER INFORMATION CONTACT: burden of the collection of information used to target those leading outsource Carla Mauney on (202) 267–9895, or by on respondents, including the use of maintenance providers that may have a e-mail at: [email protected]. automated collection techniques or higher risk level which in turn would SUPPLEMENTARY INFORMATION: other forms of information technology. merit an increase of FAA surveillance. Federal Aviation Administration (FAA) Issued in Washington, DC on November 24, ADDRESSES: Send comments to the FAA 2008. at the following address: Ms. Carla Title: Washington, DC Metropolitan Carla Mauney, Mauney, Room 712, Federal Aviation Area Special Flight Rules. FAA Information Collection Clearance Administration, IT Enterprises Business Type of Request: Extension without Officer, IT Enterprises Business Services Services Division, AES–200, 800 change of an approved collection. Division, AES–200. Independence Ave., SW., Washington, OMB Control Number: 2120–0706. [FR Doc. E8–28508 Filed 12–2–08; 8:45 am] DC 20591. Form(s): There are no FAA forms BILLING CODE 4910–13–M Comments are invited on: Whether associated with this collection. the proposed collection of information Affected Public: A total of 17,097 is necessary for the proper performance Respondents. DEPARTMENT OF TRANSPORTATION of the functions of the Department, Frequency: The information is Federal Aviation Administration including whether the information will collected on occasion. have practical utility; the accuracy of Estimated Average Burden per Notice of Intent To Request Revision the Department’s estimates of the Response: Approximately 2.9 hours per From the Office of Management and burden of the proposed information response. Budget of a Currently Approved collection; ways to enhance the quality, Estimated Annual Burden Hours: An Information Collection Activity, utility and clarity of the information to estimated 49,223 hours annually. Request for Comments; Air Carriers be collected; and ways to minimize the Abstract: This information collection Listing of Leading Outsource burden of the collection of information is required for compliance with the final Maintenance Providers on respondents, including the use of rule that codifies special flight rules and automated collection techniques or airspace and flight restrictions for AGENCY: Federal Aviation other forms of information technology. certain operations in the Washington, Administration (FAA), DOT. Issued in Washington, DC, on November DC Metropolitan Area. ACTION: Notice and request for 24, 2008. ADDRESSES: Send comments to the FAA comments. Carla Mauney, at the following address: Ms. Carla FAA Information Collection Clearance Mauney, Room 712, Federal Aviation SUMMARY: The FAA invites public Officer, IT Enterprises Business Services Administration, IT Enterprises Business comments about our intention to request Division, AES–200. Services Division, AES–200, 800 the Office of Management and Budget [FR Doc. E8–28507 Filed 12–2–08; 8:45 am] Independence Ave., SW., Washington, (OMB) to approve a current information BILLING CODE 4910–13–M DC 20591. collection. Certain organizations may Comments are invited on: Whether apply to perform certification functions the proposed collection of information on behalf of the FAA. The data from this DEPARTMENT OF TRANSPORTATION is necessary for the proper performance report is used to target those leading of the functions of the Department, Federal Aviation Administration outsource maintenance providers that including whether the information will may have a higher risk level which in Notice of Intent To Request Revision have practical utility; the accuracy of turn would merit an increase of FAA the Department’s estimates of the surveillance. From the Office of Management and Budget of a Currently Approved burden of the proposed information DATES: Please submit comments by Information Collection Activity, collection; ways to enhance the quality, February 2, 2009. Request for Comments; Washington, utility and clarity of the information to be collected; and ways to minimize the FOR FURTHER INFORMATION CONTACT: DC Metropolitan Area Special Flight Rules burden of the collection of information Carla Mauney on (202) 267–9895, or by on respondents, including the use of e-mail at: [email protected]. AGENCY: Federal Aviation automated collection techniques or SUPPLEMENTARY INFORMATION: Administration (FAA), DOT. other forms of information technology.

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Issued in Washington, DC, on November ADDRESSES: Documents are available for days before modifying the land-use 24, 2008. review at the City of Palatka, 201 North assurance that requires the property to Carla Mauney, 2nd Street, Palataka, FL 32117, and the be used for an aeronautical purpose. FAA Information Collection Clearance FAA Airports District Office, 5950 DATES: Comments must be received on Officer, IT Enterprises Business Services Hazeltine National Drive, Suite 400, or before January 2, 2009. Division, AES–200. Orlando, FL 32822. Written comments ADDRESSES: Documents reflecting this [FR Doc. E8–28506 Filed 12–2–08; 8:45 am] on the Sponsor’s request must be FAA action may be reviewed at 2300 BILLING CODE 4910–13–M delivered or mailed to: Richard Owen, East Devon Avenue, Des Plaines, IL Program Manager, Orlando Airports 60018, or at Randolph County Airport, District Office, 5950 Hazeltine National Winchester, Indiana. DEPARTMENT OF TRANSPORTATION Drive, Suite 400, Orlando, FL 32822– FOR FURTHER INFORMATION CONTACT: 5024. Federal Aviation Administration James G. Keefer, Manager, Chicago FOR FURTHER INFORMATION CONTACT: Airports District Office, Federal Notice of Intent To Release Certain Richard Owen, Program Manager, Aviation Administration, 2300 East Properties From all Terms, Conditions, Orlando Airports District Office, 5950 Devon Avenue, Des Plaines, Illinois Reservations and Restrictions of a Hazeltine National Drive, Suite 400, 60018. Telephone Number 847–294– Quitclaim Deed Agreement Between Orlando, FL 32822–5024. 7336/FAX Number 847–294–7046. the City of Palatka and the Federal W. Dean Stringer, SUPPLEMENTARY INFORMATION: Following Aviation Administration for the Kay Manager, Orlando Airports District Office, is a legal description of the property: A Larkin Field, Palatka Municipal Airport, Southern Region. parcel of land situated in the Southwest Palatka, FL [FR Doc. E8–28504 Filed 12–2–08; 8:45 am] Quarter of Section 24, Township 20 North, Range 14 East, White River BILLING CODE 4910–13–M AGENCY: Federal Aviation Township, Randolph County, Indiana Administration (FAA), DOT. and being a part of the 40 Acre Tract as ACTION: Request for Public Comment. DEPARTMENT OF TRANSPORTATION described in Randolph County Deed Records Volume 205, Page 49 and being SUMMARY: The FAA hereby provides more particularly described as follows: notice of intent to release certain airport Federal Aviation Administration Beginning at a brass plug at the properties (14.26 acres) at the Kay Public Notice for Waiver of northwest corner of the Southwest Larkin Field, Palatka Municipal Airport, Aeronautical Land-Use Assurance Quarter of said Section 24, said corner Palatka, FL from the conditions, being the northwest corner of the AGENCY: Federal Aviation reservations, and restrictions as aforesaid 40 acre tract; thence North Administration, DOT. contained in an Agreement between the 89°26′56″ East 1304.61 feet along the FAA and the City of Palatka, dated ACTION: Notice of intent of waiver with half section line said line also being the February 28, 1947. The release of respect to land. approximately centerline of State property will allow the City of Palatka Highway #32 to a P.K. Nail said P.K. to dispose of the property for other than SUMMARY: The Federal Aviation Administration (FAA) is considering a nail being witnessed by an iron pin aeronautical purposes. The property is South 00°10′18″ East 30 feet; Thence located in the Section 3, Township 10 proposal to change a portion of the airport from aeronautical use to non- South 00°10′18″ East 749.99 feet along South, Range 26 East, of Putnam an existing fence line to an iron pin; County. The parcel is currently aeronautical use and to authorize the sale of certain airport property. The sale thence South 71°58′12″ West 1373.66 designated as non-aeronautical use. The feet to a railroad spike on the west line property will be disposed of for the will include a perpetual navigational easement, precluding the building of of said Section 24; thence North purpose of allowing for the construction 00°1′45″ West 1162.60 feet to the point of a floating dock manufacturing any structures. The area is a 28.665-acre parcel of vacant land located east of the of beginning containing 28.665 acres, facility. The fair market value of the airport. The land was acquired via more or less, and being subject to all property has been determined by warranty deed dated November 18, legal easements and highways or record. appraisal to be $25,000 per acre 1987, recorded November 23, 1987, in ($356,500). The airport will receive fair Issued in Des Plaines, Illinois, on Randolph County, Book No. 246, Page market value for the property, which November 21, 2008. No. 490–491. There are no impacts to will be subsequently reinvested in James G. Keefer, the airport by allowing the airport to sell another eligible airport improvement Manager, Chicago Airports District Office. the property. The land is not needed for project. [FR Doc. E8–28505 Filed 12–2–08; 8:45 am] aeronautical use. Documents reflecting the Sponsor’s BILLING CODE 4910–13–M Approval does not constitute a request are available, by appointment commitment by the FAA to financially only, for inspection at the City of assist in the disposal of the subject Palatka and the FAA Airports District DEPARTMENT OF TRANSPORTATION airport property nor a determination of Office. eligibility for grant-in aid funding from Federal Railroad Administration DATES: January 2, 2009. the FAA. The disposition of the SUPPLEMENTARY INFORMATION: Section proceeds from the sale of the airport Safety Advisory 2008–02 125 of The Wendell H. Ford Aviation property will be in accordance with AGENCY: Federal Railroad Investment and Reform Act for the 21st FAA’s Policy and Procedures Administration (FRA), Department of Century (AIR–21) requires the FAA to Concerning the Use of Airport Revenue, Transportation (DOT). provide an opportunity for public notice published in the Federal Register on ACTION: Notice of Safety Advisory; and comment prior to the ‘‘waiver’’ or February 16, 1999. In accordance with Safety Appliance Securement, Potential ‘‘modification’’ of a sponsor’s Federal Section 47107(h) of Title 49, United Failure of Welded Hand Brake Supports obligation to use certain airport land for States Code, this notice is required to be on GVSR 200000 Series Flatcars. non-aeronautical purposes. published in the Federal Register 30

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SUMMARY: FRA is issuing Safety recommends that railroads and car Outreach & Implementation, Office of Advisory 2008–02 in order to provide owners operating flatcars that have a Foreign Assets Control, Department of guidance to interested parties vertical hand brake support that is the Treasury, 1500 Pennsylvania concerning the inspection and repair of welded to the carbody carefully inspect Avenue, NW. (Treasury Annex), GVSR series flatcars that have been the cars to determine the adequacy of Washington, DC 20220, Tel.: 202–622– modified to add welded vertical hand any welded securement. Any car found 2490. brake supports. FRA’s Office of Safety with a defective condition should be SUPPLEMENTARY INFORMATION: Assurance and Compliance Motive immediately handled for repair in Power and Equipment (MP&E) Division accordance with 49 U.S.C. 20303 and Electronic and Facsimile Availability has been notified of a catastrophic repaired in accordance with accepted Information about this designation failure of the welded securement of the industry practice or by using approved and additional information concerning vertical hand brake support on Flatcar fasteners as outlined in 49 CFR Section OFAC are available from OFAC’s Web GVSR 209000. The failure occurred on 231.1(a)(4)(iii). Welding, where present, site (http://www.treas.gov/ofac) or via May 29, 2008, and resulted in the must be done in accordance with facsimile through a 24-hour fax-on- fatality of a Union Pacific Railroad (UP) industry practice, as specified in demand service, Tel.: 202/622–0077. American Welding Society Standards train crewmember. Background FOR FURTHER INFORMATION CONTACT: Tom D1 and D15. FRA further recommends On July 25, 2008, the President issued Blankenship, Mechanical Engineer, that UP inspect all of the above noted Executive Order 13469 with respect to MP&E Division (RRS–14); FRA Office of series flatcars and immediately handle Zimbabwe pursuant to, inter alia, the Safety Assurance and Compliance, 1200 for repair those cars found with International Emergency Economic New Jersey Avenue, SE., Washington, defective fastening conditions. UP is Powers Act (50 U.S.C. 1701–06). In the DC 20590, telephone: (202) 493–6446. encouraged to work closely with FRA by furnishing its MP&E Division with a Order, the President took additional SUPPLEMENTARY INFORMATION: On May complete list of affected cars, any steps with respect to the national 29, 2008, at approximately 10:17 a.m. inspection findings, a list of repairs emergency declared in Executive Order (CST), a railroad employee was riding a made to the cars, and the date repairs 13288 of March 7, 2003, and relied upon cut of four cars while attempting to set were completed on the cars. for additional steps taken in Executive the hand brake on Flatcar GVSR 209000. FRA may modify this Safety Advisory Order 13391 of November 22, 2005, in During this task, the hand brake support 2008–02, issue additional safety order to address the continued political angles, which had been previously advisories, or take other appropriate repression and the undermining of welded, suddenly broke; this may have action necessary to ensure the highest democratic processes and institutions in contributed to the employee falling level of safety on the Nation’s railroads. Zimbabwe. under the rolling equipment, resulting Section 1 of the Order blocks, with in the fatality. Preliminary details of this Issued in Washington, DC, on November 26, 2008. certain exceptions, all property, and incident indicate that the welded interests in property, that are in, or vertical hand brake support angles had Jo Strang, Associate Administrator for Safety. hereafter come within, the United States an ‘‘old break’’ condition that allowed or the possession or control of United [FR Doc. E8–28652 Filed 12–2–08; 8:45 am] the remaining weld to fail when force States persons for persons determined was applied to the hand brake. Field BILLING CODE 4910–06–P by the Secretary of the Treasury, in investigation of the failed vertical hand consultation with the Secretary of State, brake support indicates that the hand to satisfy any of the criteria set forth in brake and/or brackets were improperly DEPARTMENT OF THE TREASURY subparagraphs (a)(i) through (a)(viii) of applied or not mechanically fastened. Office of Foreign Assets Control Section 1. On November 25, 2008, the See Title 49 Code of Federal Regulations Director of OFAC designated, pursuant (CFR) Sections 231.110B3, Additional Designations Pursuant to to one or more of the criteria set forth 231.1(a)(4)(iii), and 231.27(a)(4)(iii), Executive Order 13469 of July 25, 2008 in subparagraphs (a)(i) through (a)(viii) requiring hand brake housing to be ‘‘Blocking Property of Additional of Section 1 of the Order, the following securely fastened to a car. Persons Undermining Democratic twenty-one entities and four Flatcars in the GVSR 200000 series Processes or Institutions in individuals, whose names have been were built in Chicago, IL, by Thrall Zimbabwe’’ (the ‘‘Order’’) added to the list of Specially Designated Manufacturing in 1973, with a Nationals and whose property and horizontal hand brake assembly that AGENCY: Office of Foreign Assets interests in property are blocked, was later modified for vertical hand Control, Treasury. pursuant to the Order: brake operation. The flatcars that may ACTION: Notice. have been modified from horizontal Entities application to vertical application are in SUMMARY: The Treasury Department’s 1. ALPHA INTERNATIONAL the following series and are owned by Office of Foreign Assets Control (PRIVATE) LTD (a.k.a. ALPHA UP: (‘‘OFAC’’) is publishing the names of INTERNATIONAL (PRIVATE) • GVSR 209000–209002 twenty-one newly-designated entities LIMITED), Flat 1, Aileen Gardens, 51A • GVSR 202000–202034 and four individuals whose property Park Road, Camberley, Surrey GU15 • GVSR 205000–205004 and interests in property are blocked 2SP, United Kingdom [ZIMBABWE]. • GVSR 208000–208002 pursuant to the Order. 2. BRECO (ASIA PACIFIC) LTD, First • GVSR 213000–213004 DATES: The designation by the Director Floor, Falcon Cliff, Palace Road, FRA believes there may be other flatcars of OFAC of the twenty-one entities and Douglas, IM2 4LB, Man, Isle of; that have been similarly converted and four individuals identified in this Business Registration Document # that they may be subjected to the same notice, pursuant to the Order is effective M78647 (United Kingdom) type of failure. November 25, 2008. [ZIMBABWE]. Recommended Action: Recognizing FOR FURTHER INFORMATION CONTACT: 3. BRECO (EASTERN EUROPE) LTD the need to ensure safety, FRA Assistant Director, Compliance (a.k.a. BRECO (EASTERN EUROPE)

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LIMITED), Falcon Cliff, Palace Road, Sunningdale, Ascot, Berkshire SL5 0DJ, Individuals Douglas, IM99 1ZW, Man, Isle of; Hurst United Kingdom [ZIMBABWE]. 1. BREDENKAMP, John (a.k.a. Grove, Sandford Lane, Hurst, Reading, 12. KABABANKOLA MINING BREDENKAMP, John A.; a.k.a. Berkshire RG10 0SQ, United Kingdom; COMPANY (a.k.a. KMC), Nr. 1106 Business Registration Document # Avenue Lomami, Lubumbashi, Katanga, BREDENKAMP, John Arnold), Thetford FC0021189 (United Kingdom) Congo, Democratic Republic of the Farm, P.O. Box HP86, Mount Pleasant, [ZIMBABWE]. [ZIMBABWE]. Harare, Zimbabwe; 10 Montpelier Square, London SW7 1JU, United 4. BRECO (SOUTH AFRICA) LTD, 13. MASTERS INTERNATIONAL Kingdom; Hurst Grove, Sandford Lane, Cumbrae House, Market Street, Douglas LTD., New Boundary House, London IM1 2PQ, Man, Isle of; 9 Columbus Road, Sunningdale, Ascot, Berkshire Hurst, Reading, Berkshire RG10 0SQ, Centre, Pelican Drive, Road Town, SL5 0DJ, United Kingdom; Business United Kingdom; New Boundary House, Tortola, Virgin Islands, British; Business Registration Document # 2927685 London Road, Sunningdale, Ascot, Registration Document # Q1962 (United (United Kingdom) [ZIMBABWE]. Berkshire SL5 0DJ, United Kingdom; Kingdom) [ZIMBABWE]. Middleton House, Titlarks Hill Road, 14. MASTERS INTERNATIONAL, 5. BRECO (U.K.) LTD (a.k.a. BRECO Sunningdale, Ascot, Berkshire SL5 0JB, INC., 1905 S. Florida Avenue, Lakeland, (U.K.) LIMITED), New Boundary House, United Kingdom; Mapstone House, London Road, Sunningdale, Ascot, FL 33803; US FEIN 133798020 (United States) [ZIMBABWE]. Mapstone Hill, Lustleigh, Newton Berkshire SL5 0DJ, United Kingdom; Abbot, Devon TQ13 9SE, United 15. PIEDMONT (UK) LIMITED, New Business Registration Document # Kingdom; Dennerlei 30, Schoten, Boundary House, London Road, 2969104 (United Kingdom) Belgium; 62 Chester Square, London, [ZIMBABWE]. Sunningdale, Ascot, Berkshire SL5 0DJ, United Kingdom [ZIMBABWE]. United Kingdom; DOB 11 Aug 1940; 6. BRECO GROUP, Hurst Grove, citizen Netherlands; alt. citizen Sandford Lane, Hurst, Reading, 16. RACEVIEW ENTERPRISES, Suriname; alt. citizen Zimbabwe; Berkshire RG10 0SQ, United Kingdom; Zimbabwe [ZIMBABWE]. Passport ND1285143 (Netherlands); alt. Thetford Farm, P.O. Box HP86, Mount 17. RIDGEPOINT OVERSEAS Passport Z01024064 (Netherlands); alt. Pleasant, Harare, Zimbabwe; 10 DEVELOPMENTS LIMITED (a.k.a. Passport Z153612 (Netherlands); alt. Montpelier Square, London SW7 1JU, RIDGEPOINT OVERSEAS United Kingdom; Middleton House, Passport 367537C (Suriname) DEVELOPMENTS LTD), C/O: Mossack (individual) [ZIMBABWE]. Titlarks Hill Road, Sunningdale, Ascot, Fonseca & Co. BVI Ltd, Akara Building, Berkshire SL5 0JB, United Kingdom; 24 DeCastro St, Road Town, Tortola, 2. KECHIK, Mahmood Awang, New Boundary House, London Road, Virgin Islands, British; P.O. Box 3136, Ampang Puteri Specialist Hospital, 1, Sunningdale, Ascot, Berkshire SL5 0DJ, Road Town, Tortola, Virgin Islands, Jalan Mamanda 9, Selangor Darul Ehsan United Kingdom; Mapstone House, British [ZIMBABWE]. 68000, Malaysia; DOB 22 Aug 1954; Mapstone Hill, Lustleigh, Newton 18. SCOTTLEE HOLDINGS (PVT) citizen Malaysia; nationality Malaysia; Abbot, Devon TQ13 9SE, United LTD, 124 Josiah Chinamano Avenue, Dr. (individual) [ZIMBABWE]. Kingdom; Dennerlei 30, Schoten, P.O. Box CY3371, Cauaseway, Harare, 3. RAUTENBACH, Muller (a.k.a. Belgium [ZIMBABWE]. Zimbabwe; New Boundary House, RAUTENBACH, Billy; a.k.a. 7. BRECO INTERNATIONAL, 25 London Road, Sunningdale, Berkshire RAUTENBACH, Muller Conrad); DOB Broad Street, St. Helier JE2 3RR, Jersey SL5 0DJ, United Kingdom 11 Nov 1950; alt. DOB 23 Sep 1959; [ZIMBABWE]. [ZIMBABWE]. 8. BRECO NOMINEES LTD, New citizen Zimbabwe; Passport ZE26547 Boundary House, London Road, 19. SCOTTLEE RESORTS (a.k.a. (Zimbabwe) (individual) [ZIMBABWE]. Sunningdale, Ascot, Berkshire SL5 0DJ, SCOTTLEE RESORTS LIMITED), 124 4. TAVEESIN, Nalinee (a.k.a. United Kingdom; Business Registration Josiah Chinamano Avenue, P.O. Box CY TAVEESIN, Nalinee Joy; a.k.a. Document # 2799499 (United Kingdom) 3371, Causeway, Harare, Zimbabwe; TAWEESIN, NALINEE), 14th Floor of [ZIMBABWE]. New Boundary House, London Road, Modern Tower, Tower 87/110 Sunningdale, Berkshire SL5 0DJ, United 9. BRECO SERVICES LTD (a.k.a. Sukhumvit 63, Wattana, Bangkok 10110, Kingdom [ZIMBABWE]. BRECO SERVICES LIMITED), New Thailand; 33 Soi Soonvijai 4, Rama IX Boundary House, London Road, 20. TIMPANI LTD (a.k.a. TIMPANI Road, Soi 26, Success Tower, Huai Sunningdale, Ascot, Berkshire SL5 0DJ, EXPORT LTD; a.k.a. TIMPANI Khwang, Bang Kapi, Bangkok 10320, United Kingdom; Business Registration LIMITED), Mapstone House, Mapstone Thailand; 19–8 Soi Passana 3, Hill, Lustleigh, Newton Abbot, Devon Document # 2824946 (United Kingdom) Sukhumvit Road, Pakanong Nua, TQ13 9SE, United Kingdom; Falcon [ZIMBABWE]. Wattana, Bangkok 10110, Thailand; 33 Cliff, Palace Road, Douglas, Isle of Man, 10. CORYBANTES LTD, New Soi Soonwichai 4 Bangkapi, Boundary House, London Road, Man, Isle of; Moorgate House, King Street, Newton Abbot, Devon TQ12 2LG, Huaykhwang, Bangkok 10310, Thailand; Sunningdale, Ascot, Berkshire SL5 0DJ, DOB 12 Feb 1960; citizen Thailand; United Kingdom; Middleton House, United Kingdom; Business Registration nationality Thailand; Passport Z066420 Titlarks Hill Road, Sunningdale, Ascot, Document # 3547414 (United Kingdom) (Thailand); Managing Director Berkshire SL5 0JB, United Kingdom; [ZIMBABWE]. (individual) [ZIMBABWE]. Business Registration Document # 21. TREMALT LTD (a.k.a. TREMALT FC21190 (United Kingdom) LIMITED), Virgin Islands, British; Dated: November 25, 2008. [ZIMBABWE]. Thetford Farm, P.O. Box HP86, Mount Adam J. Szubin, 11. ECHO DELTA HOLDINGS LTD, Pleasant, Harare, Zimbabwe; Hurst Director, Office of Foreign Assets Control. Thetford Farm, P.O. Box HP86, Mount Grove, Sandford Lane, Hurst, Reading, [FR Doc. E8–28642 Filed 12–2–08; 8:45 am] Pleasant, Harare, Zimbabwe; Hurst Berkshire RG10 0SQ, United Kingdom; Grove, Sandford Lane, Hurst, Reading, New Boundary House, London Road, BILLING CODE 4811–42–P Berkshire RG10 0SQ, United Kingdom; Sunningdale, Ascot, Berkshire SL5 0DJ, New Boundary House, London Road, United Kingdom [ZIMBABWE].

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DEPARTMENT OF THE TREASURY 5(d)(2) of the Home Owners’ Loan Act, By the Office of Thrift Supervision. the Office of Thrift Supervision has duly Sandra E. Evans, Office of Thrift Supervision appointed the Federal Deposit Insurance Federal Register Liaison. Corporation as sole Receiver for PFF PFF Bank & Trust, Pomona, CA; Notice [FR Doc. E8–28484 Filed 12–2–08; 8:45 am] Bank & Trust, Pomona, California (OTS of Appointment of Receiver BILLING CODE 6720–01–M No. 01450). Notice is hereby given that, pursuant Dated: November 21, 2008. to the authority contained in section

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Part II

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

42 CFR Part 440 Medicaid Program; State Flexibility for Medicaid Benefit Packages; Final Rule

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DEPARTMENT OF HEALTH AND for example, for certain pregnant Benefit Packages provisions as required HUMAN SERVICES women, who could be limited to by the DRA, see the February 2008 State pregnancy-related services). Under Flexibility for Medicaid Benefit Centers for Medicare & Medicaid section 1902(a)(10)(A) of the Act, this Packages proposed rule. In the February Services standard benefit package had to include 2008 proposed rule, we proposed to add certain specific benefits identified in the a new subpart C beginning with 42 CFR Part 440 definition of ‘‘medical assistance’’ at § 440.300 as follows: section 1905(a) of the Act. These [CMS–2232–F] A. Subpart C—Benchmark Packages: identified benefits include inpatient and General Provisions Sections 440.300, RIN 0938 A048 outpatient hospital services, physician 440.305, and 440.310 Basis, Scope, services, medical and surgical services and Applicability Medicaid Program; State Flexibility for furnished by a dentist, rural health Medicaid Benefit Packages clinic services, federally qualified At proposed § 440.300 (Basis), § 440.305 (Scope), and § 440.310 AGENCY: Centers for Medicare & health center services, laboratory and X- Medicaid Services (CMS), HHS. ray services, nursing facility services, (Applicability), the regulations would early and periodic screening, diagnostic reflect the new statutory authority for ACTION: Final rule. and treatment services for individuals States to provide medical assistance to SUMMARY: This final rule will implement under age 21, family planning services recipients, within one or more groups of provisions of section 6044 of the Deficit to individuals of child-bearing age, Medicaid eligible recipients specified by Reduction Act of 2005, which amends nurse-midwife services, certified the State, through enrollment in the Social Security Act by adding a new pediatric nurse practitioner services, benchmark coverage or benchmark- section 1937 related to the coverage of and certified family nurse practitioner equivalent coverage. A State may only medical assistance under approved services. Under section 1902(a)(10)(D) of require that individuals obtain benefits State plans. It also provides States the Act, the standard benefit package is by enrolling in that coverage if they are increased flexibility under an approved also required to include home health a ‘‘full benefit eligible’’ whose eligibility State plan to define the scope of covered services. is based on an eligibility category under medical assistance by offering coverage Section 6044 of the Deficit Reduction section 1905(a) of the Act that would of benchmark or benchmark-equivalent Act of 2005 (DRA) (Pub. L. 109–171), have been covered under the State’s benefit packages to certain Medicaid enacted on February 8, 2006, amended plan on or before February 8, 2006, and recipients. In addition, this final rule the Act by adding a new section 1937 are not within exempted categories responds to public comments on the that allows States to amend their under the statute. The proposed February 22, 2008, proposed rule that Medicaid State plans to provide for the regulatory definition of full benefit pertain to the State Medicaid benefit use of benefit packages other than the eligible individuals would include package provisions. standard benefit package, namely individuals who would otherwise be benchmark benefit packages or eligible to receive the standard full DATES: Effective Date: These regulations benchmark-equivalent packages, for Medicaid benefit package under the are effective on February 2, 2009. certain populations. The statute approved Medicaid State plan, but FOR FURTHER INFORMATION CONTACT: delineates what benefit packages qualify would not include individuals who are Donna Schmidt, (410) 786–5532. as benchmark packages and what would within the statutory exemptions, who SUPPLEMENTARY INFORMATION: constitute a benchmark-equivalent are determined eligible by the State for I. Background package. The statute also specifies those medical assistance under section exempt populations that may not be 1902(a)(10)(C) of the Act or by reason of Under title XIX of the Social Security included or mandated in the benchmark section 1902(f) of the Act, or who are Act (the Act), the Secretary is coverages. To be eligible for funds under otherwise eligible based on a reduction authorized to provide funds to assist this new provision, States must submit of income based on costs incurred for States in furnishing medical assistance a State plan amendment, which must be medical or other remedial care (other to needy individuals whose income and approved by the Secretary. On March medically needy and spend-down resources are insufficient to meet the 31, 2006, we issued a State Medicaid populations). costs of necessary medical services, Director letter providing guidance on including families with dependent the implementation of section 6044 of B. Section 440.315 Exempt Individuals children and individuals who are aged, the DRA. Proposed § 440.315 would reflect blind, or disabled. To be eligible for statutory limitations on mandatory funds under this program, States must II. Provisions of the Proposed enrollment of specified categories of Regulations submit a State plan, which must be individuals. A State may not require approved by the Secretary. Programs We published a proposed rule in the enrollment in a benchmark or under title XIX are jointly financed by Federal Register on February 22, 2008 benchmark-equivalent benefit plan by Federal and State governments. Within (73 FR 9714) that implemented the the following individuals: broad Federal guidelines, each State provisions of the DRA of 2005, which • The recipient who is a pregnant determines the design of its program, amends the Act by adding a new section woman who is required to be covered eligible groups, benefit packages, 1937 related to the coverage of medical under the State plan under section payment levels for coverage and assistance under approved State plans. 1902(a)(10)(A)(i) of the Act. administrative and operating Under this new provision, States have • The recipient who qualifies for procedures. increased flexibility under an approved medical assistance under the State plan Before the passage of the Deficit State plan to define the scope of covered on the basis of being blind or disabled Reduction Act (DRA), States were medical assistance by offering coverage (or being treated as being blind or required to offer at minimum a standard of benchmark or benchmark-equivalent disabled) without regard to whether the benefit package to eligible populations benefit packages to certain Medicaid individual is eligible for SSI benefits identified in section 1902(a)(10)(A) of recipients. For a complete and full under title XVI on the basis of being the Act (with some specific exceptions, description of the States’ Medicaid blind or disabled and including an

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individual who is eligible for medical Medicaid based on the breast or cervical comparison of how they differ from the assistance on the basis of section cancer eligibility provisions. benefits available under the standard 1902(e)(3) of the Act. • The recipient who qualifies for full Medicaid program. The State would • The recipient who is entitled to medical assistance as a TB-infected document in the individual’s eligibility benefits under any part of Medicare. individual on the basis of section file that the individual was informed in • The recipient who is terminally ill 1902(a)(10)(A)(ii)(XII) of the Act. accordance with this paragraph and • and is receiving benefits for hospice The recipient who is not a qualified voluntarily chose to enroll in the care under title XIX. alien (as defined in section 431 of the benchmark or benchmark-equivalent • The recipient who is an inpatient in Personal Responsibility and Work benefit package. a hospital, nursing facility, intermediate Opportunity Reconciliation Act of 1996) At proposed § 440.325, a State would care facility for the mentally retarded, or and receives only care and services have the option to choose the other medical institution, and is necessary for the treatment of an benchmark or benchmark-equivalent required, as a condition of receiving emergency medical condition in coverage packages offered under the services in such institution under the accordance with section 1903(v) of the State’s Medicaid plan. A State may State plan, to spend for costs of medical Act. select one or all of the benchmark plans care all but a minimal amount of the C. Section 440.320 State Plan described in § 440.330 or establish individual’s income required for Requirements: Optional Enrollment for benchmark-equivalent plans described personal needs. Exempt Individuals in § 440.335, respectively. • The recipient who is medically frail At proposed § 440.320, we would E. Section 440.330 Benchmark Health or otherwise an individual with special allow States to offer exempt individuals Benefits Coverage medical needs (as described by the specified in § 440.315 the option to At proposed § 440.330, benchmark Secretary in section 440.315(f)). For enroll into a benchmark or benchmark- coverage is described as any one of the purposes of this section, we proposed equivalent benefit plan. The State plan following: that individuals with special needs would identify in its State plan the • Federal Employees Health Benefit includes those groups defined by exempt groups for which this coverage Plan Equivalent Coverage (FEHBP— Federal regulations at § 438.50(d)(1) and is available. There may be instances in Equivalent Health Insurance Coverage). § 438.50(d)(3) of the managed care which an exempt individual may A benefit plan equivalent to the regulations (that is, dual eligibles and benefit from enrolling in a benchmark or standard Blue Cross/Blue Shield certain children under age 19 who are benchmark-equivalent benefit package. preferred provider option service benefit eligible for SSI; eligible under section States would be permitted to elect in the plan that is described in and offered to 1902(e)(3) of the Act, TEFRA children; State plan to offer exempt individuals a Federal employees under 5 U.S.C. in foster care or other out of home benchmark or benchmark-equivalent 8903(1). placement; or receiving foster care or package, but States may not require • State employee coverage. A health adoption assistance). We did not them to enroll in one. For example, in benefits plan that is offered and propose a definition for medically frail some States the State employee generally available to State employees populations but we invited public benchmark coverage may be more in the State involved. comments to assist us in defining this generous than the State Medicaid plan. • Health Maintenance Organization term in the final regulation. Secretary-approved coverage may offer (HMO) plan. A health insurance plan • The recipient who qualifies based the opportunity for disabled individuals that is offered through an HMO (as on medical condition for medical to obtain integrated coverage for acute defined in section 2791(b)(3) of the assistance for long-term care services care and community-based long-term Public Health Service Act) that has the described in section 1917(c)(1)(C) of the care services. Additionally, States may largest insured commercial, non- Act. be able to better integrate disease Medicaid enrollment in the State. • The recipient who receives aid or management programs to provide better • Secretary approved coverage. Any assistance under part B of title IV for coordinated care which targets the other health benefits coverage that the children in foster care or an individual specific needs of individuals with Secretary determines, upon application with respect to whom adoption or foster special health needs. by a State, provides appropriate care assistance is made available under coverage for the population proposed to part E of title IV, without regard to age. D. Section 440.325 State Plan be provided that coverage. States • The recipient who qualifies for Requirements: Coverage and Benefits wishing to opt for Secretarial approved medical assistance on the basis of At proposed § 440.325, we set forth coverage should submit a full eligibility to receive assistance under a the conditions under which a State may description of the proposed coverage State plan funded under part A of title offer enrollment to exempt recipients and include a benefit-by-benefit IV (as in effect on or after the welfare specified in § 440.315. When a State comparison of the proposed plan to one reform effective date defined in section offers exempt recipients the option to or more of the three benchmark plans 1931(i) of the Act). This provision enroll in a benchmark or benchmark- specified above or to the State’s relates to those individuals who qualify equivalent benefit package, the State standard full Medicaid coverage for Medicaid solely on the basis of would inform the recipients that package under section 1905(a) of the qualification under the Temporary enrollment is voluntary and that the Act, as well as a full description of the Assistance for Needy Families (TANF) individual may opt out of the population that would be receiving the rules (that is, the State links Medicaid benchmark or benchmark-equivalent coverage. In addition, the State should eligibility to TANF eligibility). benefit package at any time and regain submit any other information that • The recipient who is a woman immediate eligibility for the standard would be relevant to a determination receiving medical assistance by virtue of full Medicaid program under the State that the proposed health benefits the application of sections plan. The State would inform the coverage would be appropriate for the 1902(a)(10)(ii)(XVIII) and 1902(a) of the recipient of the benefits available under proposed population. The scope of a Act. This provision relates to those the benchmark or benchmark-equivalent Secretary-approved health benefits individuals who are eligible for benefit package and provide a package will be limited to benefits

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within the scope of the categories value of the coverage for each of these H. Section 440.345 EPSDT Services available under a benchmark coverage categories of service in the benchmark- Requirement package or the standard full Medicaid equivalent coverage package must be at At § 440.345, we proposed to require coverage package under section 1905(a) least 75 percent of the actuarial value of States to make available EPSDT services of the Act. the coverage for that category of service as defined in section 1905(r) of the Act A State may select one or more in the benchmark plan used for that are medically necessary for those benchmark coverage plan options. The comparison by the State. individuals under age 19 who are State may also specify the benchmark If the benchmark coverage package covered under the State plan. We plan for any specific recipient. For does not cover one of the four categories expected that most benchmark or example, one recipient may be enrolled of services mentioned above, then the benchmark-equivalent plans will offer in the FEHBP and another may be benchmark-equivalent coverage package the majority of EPSDT services. To the enrolled into State Employee Coverage may, but is not required to, include extent that any medically necessary at the option of the State. coverage for that category of service. EPSDT services are not covered through F. Section 440.335 Benchmark- G. Section 440.340 Actuarial Report the benchmark or benchmark-equivalent Equivalent Health Benefits Coverage for Benchmark-Equivalent Health plan, States are required to supplement At proposed § 440.335, we would Benefit Coverage the benchmark or benchmark-equivalent provide that if a State designs or selects plan in order to ensure access to these a benchmark plan other than those In accordance with 1937(a)(3) of the services. Individuals mandated into a specified in § 440.330, the State must Act, at § 440.340, we proposed to benchmark or benchmark-equivalent provide coverage that is equivalent to require a State as a condition of plan and entitled to have access to benchmark coverage. Coverage that approval of benchmark-equivalent EPSDT services cannot opt out of the meets the following requirements will coverage, to provide an actuarial report, benchmark or benchmark-equivalent be considered to be benchmark- with an actuarial opinion that the plan just to receive these services. While equivalent coverage: benchmark-equivalent coverage meets individuals are required to have access • Required Coverage. Benchmark- the actuarial requirements of § 440.335. to such medically necessary services equivalent coverage includes benefits At § 440.340, we proposed to require first under the benchmark or for items and services within each of the the actuarial report to obtain approval benchmark-equivalent plan, the State following categories of basic services for benchmark-equivalent health benefit may provide wrap-around or additional and must include coverage for the coverage and to meet all the provisions coverage for medically necessary following categories of basic services: of the statute. The actuarial report must services not covered under such plan. + Inpatient and outpatient hospital state the following: Any wrap-around benefits must be services. • sufficient so that, in combination with The actuary issuing the opinion is the benchmark or benchmark-equivalent + Physicians’ surgical and medical a member of the American Academy of services. benefits package, an individual would Actuaries (AAA) (and meets Academy have coverage for his or her medically + Laboratory and x-ray services. standards for issuing an opinion). + ‘‘Well-baby’’ and ‘‘well-child’’ care, necessary services consistent with the • including age-appropriate The actuary used generally requirements under section 1905(r) of immunizations. accepted actuarial principles and the Act. The State plan would include + Other appropriate preventive methodologies of the AAA, standard a description of how wrap-around services, as designated by the Secretary. utilization and price factors and a benefits or additional services will be • Aggregate actuarial value equivalent standardized population representative provided to ensure that these recipients to benchmark coverage. Benchmark- of the population involved. have access to full EPSDT services equivalent coverage must have an • The same principles and factors under 1905(r) of the Act. aggregate actuarial value, determined in were used in analyzing the value of In addition, individuals would need accordance with proposed § 440.340 different coverage (or categories of to first seek coverage of EPSDT services that is at least equivalent to coverage services) without taking into account through the benchmark or benchmark- under one of the benchmark packages differences in coverage based on the equivalent plan before seeking coverage outlined in § 440.330. method of delivery or means of cost of such through wrap-around benefits. • Additional coverage. In addition to control or utilization used. the categories of services set forth above, I. Section 440.350 Employer • The report should also state if the Sponsored Insurance Health Plans benchmark-equivalent coverage may analysis took into account the State’s At § 440.350, we proposed that the include coverage for any additional ability to reduce benefits because of the use of benchmark or benchmark- services included in the benchmark increase in actuarial value of health equivalent benefit coverage would be at plan or described in section 1905(a) of benefits coverage offered under the State the discretion of the State and may be the Act. plan that results from the limitations on • Application of actuarial value for used in conjunction with employer cost sharing (with the exception of benchmark-equivalent coverage that sponsored health plans as a coverage premiums) under that coverage. includes prescription drugs, mental option for individuals with access to • health, vision, and hearing services. The actuary preparing the opinion private health insurance. Additionally, Where the benchmark coverage package must select and specify the standardized the use of benchmark or benchmark- used by the State as a basis for set of utilization and pricing factors as equivalent coverage may be used for comparison in establishing the aggregate well as the standardized population. individuals with access to private health actuarial value of the benchmark- • The actuary preparing the opinion insurance coverage. For example, if an equivalent package includes any or all must provide sufficient detail to explain individual has access to employer of the following four categories of the basis of the methodologies used to sponsored coverage and that coverage is services: Prescription drugs; mental estimate the actuarial value or, if determined by the State to be health services; vision services; and requested by CMS, to replicate the benchmark or benchmark-equivalent, a hearing services; then the actuarial State’s result. State may, at its option, provide

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premium payments on behalf of the which the coverage and benefits are beneficiary groups, State Medicaid recipient to purchase the employer obtained. agency senior officials, and human coverage. Additionally, a State could services agencies. In this section, we N. Section 440.375 Comparability create a benchmark or benchmark- provide a discussion of the public equivalent plan combining employer At § 440.375, we proposed that a State comments we received on the proposed sponsored insurance and wrap-around may at its option amend its State plan rule. Comments related to the impact of benefits to that employer sponsored to provide benchmark or benchmark- this rule are addressed in the insurance benefit package. The equivalent coverage to recipients ‘‘Collection of Information premium payments would be without regard to comparability. Requirements’’ section of this regulation. considered medical assistance and the O. Section 440.380 Statewideness State could require the recipient to Additionally, we published a enroll in the group health plan. At § 440.380, we proposed that a State proposed rule in the Federal Register on may at its option amend its State plan February 22, 2008 (73 FR 9727) titled, J. Section 440.355 Payment of to provide benchmark or benchmark- ‘‘Medicaid Program: Premiums and Cost Premiums equivalent coverage to recipients Sharing’’ (CMS–2244–P). Comments on At § 440.355, we proposed that without regard to statewideness. CMS–2244–P were also due March 24, 2008 similar to this rule. Some payment of premiums by the State, net P. Section 440.385 Freedom of Choice of beneficiary contributions, to obtain comments for CMS–2244–P were At § 440.385, we proposed that a State benchmark or benchmark-equivalent forwarded as comments to this rule may at its option amend its State plan benefit coverage on behalf of (CMS–2232–P). Consistent with the to provide benchmark or benchmark- beneficiaries under this section will be Administrative Procedures Act, CMS is equivalent coverage to recipients treated as medical assistance under not responding to those comments in without regard to freedom of choice. section 1905(a) of the Act. this regulation, but we addressed the States may restrict recipients to issues raised by otherwise timely K. Section 440.360 State Plan obtaining services from (or through) comments in our publication of CMS– Requirement for Providing Additional selectively procured provider plans or 2244–F. Wrap-Around Services practitioners that meet, accept, and comply with reimbursement, quality A. General Comments At § 440.360, we proposed that a State and utilization standards under the Comments: A few commenters may at its option provide additional State Plan, to the extent that the supported the rule. Some commenters wrap-around services to the benchmark restrictions imposed meet the following also requested a more restrictive or benchmark-equivalent plans. The requirements: interpretation of the statutory wrap-around services do not need to (+) Do not discriminate among classes provisions. However, most commenters include all State plan services. of providers on grounds unrelated to oppose the rule. Many commenters are However, the State plan would need to their demonstrated effectiveness and concerned that the benchmark or describe the populations covered and efficiency in providing the benchmark benchmark-equivalent benefit packages the payment methodology for assuring benefit package. are inadequate benefit packages for, those services. Such additional or wrap- (+) Do not apply in emergency among others, individuals with mental around services must be within the circumstances. illness, children with serious emotional scope of categories of services covered (+) Require that all provider plans are disturbance, the disabled and elderly, under the benchmark plan, or described paid on a timely basis in the same individuals with end-stage renal in section 1905(a) of the Act. manner as health care practitioners disease, and American Indians. Many of L. Section 440.365 Coverage of Rural must be paid under § 447.45 of the the commenters believed that to enroll Health Clinic and Federally Qualified chapter. Medicaid beneficiaries in benchmark or Health Center (FQHC) Services benchmark-equivalent benefit packages Q. Section 440.390 Assurance of without the assurance of transportation At § 440.365, we proposed that a State Transportation could lead to poorer health outcomes, that provides benchmark or benchmark- At § 440.390, we proposed that a State costlier care because individuals will be equivalent coverage to individuals must may at its option amend its State plan forced into hospital emergency rooms, assure that the individual has access, to provide benchmark or benchmark- and shifts in costs to the Emergency through that coverage or otherwise, to equivalent coverage to recipients Medical Services. rural health clinic services and FQHC without regard to the assurance of Response: We thank those services as defined in subparagraphs (B) transportation to medically necessary commenters who supported the rule. and (C) of section 1905(a)(2) of the Act. services requirement specified in Those who opposed the rule generally Payment for these services must be § 431.53. raised concerns about the underlying made in accordance with the payment wisdom of the statutory provision at provisions of section 1902(bb) of the III. Analysis of and Responses to Public section 1937 of the Act, which this final Act. Comments rule implements. CMS is charged with In response to the February 2008 M. Section 440.370 Cost Effectiveness implementing the statute as written. We proposed rule, we received over 1,100 address suggestions for restrictive At § 440.370, we proposed that timely items of correspondence. The interpretations below in the discussion benchmark or benchmark-equivalent majority of the commenters represented of specific proposed provisions. coverage and any additional benefits transportation providers, medical Comment: Several commenters must be provided in accordance with providers, and Medicaid beneficiaries, believe that the accelerated pace of this Federal upper payment limits, particularly Medicaid beneficiaries who short comment period, given the broad procurement requirements and other rely on dialysis treatments. Other implications, will lead to a short-cited, economy and efficiency principles that commenters represented State and local onerous rule that has dangerous health would otherwise be applicable to the advocacy groups, national associations impacts for the poor. This rule was services or delivery system through that represent various aspects of issued in the Federal Register on

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February 22, 2008. The deadline for programs. The commenter asserted that, design different benefit packages for submission of comments was March 24, if the rule is considered beneficial for rural and urban areas. States may also 2008. Other rulemaking has taken a recipients in eligibility categories that ‘‘tailor’’ packages for different longer period. Given the impact of the existed before February 8, 2006, it is populations, although the commenter discussion, a longer time period is logical to suppose it would also be acknowledges, certain groups are warranted. beneficial for those created after that exempt from mandatory changes to their Some commenters stated that the 30- date. Medicaid benefits package. In States day comment period was not sufficient Response: The language in section where this has already been done, for Tribes to comment on a regulation 1937(a)(1)(B) of the Act specifies that behavioral healthcare advocates report that could potentially have a significant the State may only exercise the option the changes have been unsatisfactory. impact on Tribal communities. to offer benchmark or benchmark- Several commenters believed that Other commenters noted that while equivalent coverage for an individual allowing States to ‘‘tailor’’ benefit the Department views the rule as merely eligible under an eligibility category that packages would mean that individuals formalizing its earlier policy statements had been established under the State may not have access to the services they delivered only to State Medicaid plan on or before February 8, 2006. In need. Benefit packages designed outside Directors, a 30-day public comment an effort to provide States with the important consumer protections in period is too short for meaningful public maximum flexibility, we have traditional Medicaid may fail to meet review, analysis, and comment. Some interpreted this statutory term to mean beneficiaries’ needs, and will not save commenters believe that the 30-day any eligibility category listed under money if these individuals experience comment period is discouraging of full section 1905(a) of the Act. Thus, all significant unmet needs that escalate review and consideration by States. recipients within a category covered or into problems that require treatment in One commenter requests that the potentially covered under the State’s emergency rooms. public comment period be extended 60 Medicaid plan would be eligible to One commenter mentioned that days for a total of a 90-day comment participate in a benchmark or private health plans such as those listed period. Additional time is needed to benchmark-equivalent plan at the as benchmarks under the law, provide sufficient time for stakeholders State’s option, unless specifically frequently have limited coverage of to be able to adequately assess the excluded by statute, even when the mental health services. The commenter potential effects of the proposed rule. State makes modifications to the income asserted that few cover any of the Response: We disagree with the and resource eligibility levels or intensive community services that are commenters suggesting that 30 days is methodologies, ages covered, etc., for a covered by Medicaid under the too short of a time period to respond to group or category after February 8, 2006. rehabilitation category or the home and the regulation. Section 553(c) of the community-based services option. The C. Section 440.305 Scope Administrative Procedures Act requires commenter noted that, under the DRA, that after the publication of a proposed Comment: Numerous commenters these limited mental health benefits can rule, the Agency shall give interested believed that offering benchmark and be further reduced by 25 percent of their persons an opportunity to participate in benchmark-equivalent benefit packages actuarial value. Other commenters the rulemaking. Neither the to certain Medicaid recipients will deter expressed concern that the reliance on Administrative Procedures Act nor the those individuals, including children, commercial benefit plans is Medicaid statute specify a time period from receiving appropriate care. inappropriate for Medicaid recipients. for submission of comments. For Commenters indicated that individuals Those commenters are concerned that Medicaid rules we allow 30 days or 60 with low incomes are likely to forgo many private insurance plans do not days based on the complexity and size needed treatment if all medically provide adequate mental health of the rule, or the need to publish the necessary services and transportation services. And other commenters noted final rule quickly. We elected a 30-day are not included in the benchmark that benchmark coverage is likely to comment period because of the limited program. Most commenters believed prove entirely inadequate for deviation from plain statutory that our most vulnerable populations, individuals who need mental health requirements and the interest of getting those with chronic medical needs, will services. They noted that children with guidance quickly to States on the DRA be required to choose to provide for serious mental and/or physical flexibilities contained herein. Since this their basic needs like food and shelter disorders often qualify for Medicaid on provision of the DRA was effective rather than obtain necessary medical a basis of family income and are not, for March 31, 2006 it made sense to provide health care because of the rigor created various reasons, receiving Supplemental guidance to States as quickly as by following a private health insurance Security Income (SSI) benefits or possible. model of benefits and the need to otherwise recognized as children with provide their own method of disabilities and would not be exempt B. Section 440.300 Basis transportation. from mandatory enrollment. In addition, Comment: One commenter believed Response: We have developed these they noted that many low-income that the proposed limitations on policies based on what is provided for parents on Medicaid have been found to eligibility groups who can be provided in statue. And, since the Medicaid have serious depression, which could alternative benefit packages are overly program is administered broadly by the not be adequately treated with a very restrictive. The commenter suggested States, they have the flexibility to limited mental health benefit. that the rule should allow application to determine how they will design their In a similar vein, many commenters any eligibility category the State had the programs. We do review and approve all believed that the proposed rule has the option to implement on or before the State plan amendments to assure potential to become the behavioral date of enactment of section 1937 continuity of and access to necessary healthcare Medicaid Trojan horse: it (February 8, 2006). The commenter medical health care. appears harmless but it will reverse reasoned that States are continually Comment: Other commenters hard-fought progress won over years of adding and changing eligibility indicated that the DRA does not require struggle that brought about equitable, requirements and these program that States offer the same Medicaid decent care for Medicaid recipients changes are inherent in Medicaid benefits statewide, meaning States could experiencing mental illness or who have

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a developmental disability. They improve quality and coordination of vulnerable populations and to maintain asserted that, in the end, these rules will care. growth and provide for the have costlier results and not the desired Regarding the coverage of mental sustainability of the Medicaid program economizing while also negatively health services, children and adults over the long term. Congress, in working impacting peoples’ lives, their well- with special medical needs, individuals with our Nation’s leaders, responded being and care, and our society. with HIV/AIDS, and long-term care and and enacted the DRA of 2005. Another commenter believed that it is community-based service options, In providing for benchmark benefit critical for beneficiaries with life- benchmark and benchmark-equivalent packages, several innovative ways of threatening conditions such as HIV/ plans must be appropriate to meet the providing coverage to the Medicaid AIDS to maintain access to the health care needs of the population populations have been provided to comprehensive range of medical and being served, which may mean that States. Benchmark options include support services required to effectively benchmark coverage may be more Federal Employees Health Benefits Plan manage HIV disease. The commenter generous than a State’s Medicaid plan. Equivalent coverage, State Employee stated that allowing States to ‘‘tailor’’ Benchmark coverage may offer the coverage, Health Maintenance benefit packages in ways that essentially opportunity for disabled individuals to Organization coverage, or Secretary eliminate coverage for critical health obtain integrated coverage for acute care approved coverage. States have the services places the health of Medicaid and community-based long-term care option of considering Employer beneficiaries with HIV/AIDS in serious services. Additionally, States may be Sponsored Insurance coverage as long as jeopardy. able to better integrate disease the Employer Sponsored Insurance Response: The DRA was enacted in management programs to provide better coverage meets the criteria of response to States’ desire for more coordinated care, targeting the specific benchmark coverage. States can also flexibility in modernizing their needs of individuals with special health consider benchmark-equivalent Medicaid programs and adopting benefit needs. coverage as long as the coverage programs tailored to the needs of the We also think it is important to note includes basic services consisting of varied populations they serve. This that children under the age of 19 are inpatient and outpatient hospital regulation is consistent with required to receive EPSDT services services, physicians’ surgical and Congressional intent and reflects little either as a wrap-around service or as medical services, laboratory and x-ray interpretive policy by CMS. The DRA part of the benchmark or benchmark- services, well-baby and well-child care provides that States can impose equivalent benefit plan. including age-appropriate alternative benchmark or benchmark- Moreover, certain Medicaid eligibility immunizations, and other appropriate equivalent benefit packages at their coverage groups cannot be included in preventive services, such as emergency option; that is, States are not required to a mandatory enrollment for an services. Specifically, benchmark plans implement these provisions. alternative benefit package—among can be designed to address the specific As a result, we believe that the others, pregnant women, dual eligibles, health care needs of specific concerns expressed by these terminally ill individuals receiving populations, and a State may select one commenters on the sufficiency of hospice, inpatients in institutional or more benchmark coverage options. potential alternative benefit packages settings, and individuals who are The flexibility granted to States in should be addressed to States for medically frail or have special medical considering these options provides that consideration in determining whether to needs. These individuals may be offered States can tailor benefits to better meet elect alternative benefit packages, and a choice to enroll and, in considering the needs of their low-income the scope of such packages. the choice, must be provided a populations. We disagree that benchmark and comparison of benchmark benefits Comment: One commenter stated that benchmark-equivalent programs versus the traditional Medicaid State the proposed rule, read together with necessarily lead to barriers to access and plan benefit. Their decision to enroll is other CMS rules like the citizenship care. Benchmark and benchmark- voluntary and individuals must be documentation requirement and CMS’s equivalent plans are simply tools that provided the opportunity to revert back SCHIP crowd-out directive of August States can use to contain costs and to traditional Medicaid at any time. The 17, 2007, create major barriers to access inhibit over-utilization of health care law provides that States can offer these to appropriate health care, and that the through Medicaid, particularly through alternative benefit packages and we do proposed rule has a devastating impact the emergency room, while at the same not believe this rule poses a barrier to on the low-income populations. In time providing States new opportunities accessing health care. particular, some commenters raised to provide benefit plans to meet the Comment: One commenter noted that concerns about requirements for Native appropriate health care needs of the preamble language refers to meeting Americans to prove both citizenship Medicaid populations. We believe the ‘‘* * * needs of today’s Medicaid and identity in order to obtain Medicaid States may use this flexibility to create populations and the health care services. Commenters also raised innovative Medicaid programs that environment.’’ The commenter believed concerns about the SCHIP review further strengthen and support the the preamble should describe these strategy outlined in an August 17, 2007 overall health care system. needs in some detail so that there is a letter sent to State Health Officials. And This new flexibility provides States shared understanding of the types of commenters asserted that other the tools they need to provide person- needs this new flexibility is intended to proposed rules released by CMS like the centered care to maximize health address. Rehabilitation Rule and the Targeted outcomes for individuals. These tools Response: We agree that it is Case Management Rule coupled with may be used in conjunction with other important to understand the needs of this rule will have a devastating effect Medicaid and State Children’s Health today’s Medicaid populations and the on individuals in need of transportation Insurance Program (SCHIP) authorities health care environment. States since these rules also eliminate non- to strategically align the Medicaid requested maximum flexibility in emergency medical transportation program with today’s health care designing their Medicaid programs in services. environment and expand access to order to provide appropriate health care Response: We disagree that providing affordable mainstream coverage and coverage to our Nation’s most States with benefit flexibility creates

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barriers to accessing appropriate care health care status and the health care health programs, CMS does not and instead contend that this provides status of the rest of the country. The determine those funding levels. flexibilities to States in an effort to commenter added that for AI/ANs, the Comment: Some commenters believed create benefit packages that patient should always have the option that the proposed rule did not comply appropriately meet the needs of their of the provider being an Indian Health with the Department of Health and Medicaid populations. Citizenship Service or tribal health program. Human Services’ Tribal Consultation documentation requirements, the Response: State Medicaid programs policy, since CMS did not consult with August 17 State Health Officials letter, provide health care services to many Tribes in the development of these and the Rehabilitation and Case diverse populations including AI/ANs. regulations before they were Management requirements are not part We believe that culturally competent promulgated. of this rule and we do not address them services are important for all Medicaid These commenters noted that CMS here. This regulation implements the beneficiaries and access to care and did not obtain advice and input from statutory provisions of section 1937, and facilities in remote parts of the country, the CMS Tribal Technical Advisory CMS policy discretion was very limited. where it is especially difficult to find Group (TTAG), even though the TTAG Comment: Several comments were providers who will agree to participate meets on a monthly basis through provided by organizations that have an in the Medicaid program, is paramount. conference calls and holds quarterly interest in how the benchmark and The Medicaid statute does not provide face to face meetings in Washington, benchmark-equivalent benefit packages any special protections for benefit DC. They also noted that CMS did not impact American Indians and Alaska packages applicable to AI/AN utilize the CMS TTAG Policy Natives (AI/ANs). The commenters recipients, but this does not mean that Subcommittee, which was specifically believed that alternative benefit benefit packages will be deficient. As established by CMS for the purpose of packages serve as a substantial barrier to noted above, to address the unique obtaining advice and input in the AI/AN enrollment in the Medicaid needs of the AI/AN population, we development of policy guidance and program. They noted that, because of recommend working with States to regulations. These commenters also noted that the the Federal Government’s trust ensure that alternative benefit packages proposed rule does not contain a Tribal responsibility to provide health care to recognize the unique services offered by summary impact statement describing AI/ANs, implementing benchmark and IHS and tribal providers, and the unique the extent of the tribal consultation or benchmark-equivalent benefit packages health needs of the AI/AN population. have specific tribal implications that lack thereof, nor an explanation of how Futhermore, AI/AN beneficiaries are not the concerns of Tribal officials have were not addressed in these proposed prevented from going to IHS or tribal rules. Several commenters believed that been met. Several commenters request facilities for health care as a result of that these regulations not be made AI/ANs should be exempt from this rule. mandatory enrollment in benchmark applicable to AI/AN Medicaid Comment: Another commenter stated and benchmark-equivalent benefit beneficiaries until Tribal consultation is on behalf of AI/ANs, the Indian and programs entirely. conducted, or be modified to Response: In Medicaid, there is no tribal health care system is woefully specifically require State Medicaid statutory basis to exempt AI/ANs from under-funded and tribal providers rely programs to consult with Indian Tribes Medicaid alternative benefit provisions. on Medicaid revenues to supplement before the development of any policy Section 1937 of the Act does not that meager funding. Forcing AI/ANs which would require mandatory provide for such an exemption. Section into benchmark plans, which may have enrollment of AI/ANs in benchmark or 1937 provides some specific exemptions dramatically reduced coverage or benchmark-equivalent plans. One from mandatory enrollment into payments, would thus jeopardize Indian commenter suggested that this benchmark or benchmark-equivalent health, injure tribal health systems, and consultation should be similar to the benefit packages and it is possible that thereby violate the Federal trust way in which consultation takes place some AI/ANs would fit into one of these obligation to care for the health needs of with Indian Tribes in the development exempt groups. Section 1937 does not Indian people. of waiver proposals. And, a commenter give CMS authority to identify Response: CMS does not anticipate a urged that, after appropriate tribal additional exempt groups. dramatic decrease in services furnished consultation and revision reflecting To address the unique needs of the under benchmark plans versus these and other comments, the rule be AI/AN population, we recommend traditional Medicaid benefits. In fact, to republished with a longer public working with States to ensure that date CMS has approved nine benchmark comment period. alternative benefit packages recognize benefit programs, and most offer State One Tribe commented that the the unique services offered by IHS and plan services plus additional services proposed rule does not honor treaty tribal providers, and the unique health like preventive care, personal assistance obligations for health services that are needs of the AI/AN population. services, or disease management required by the Federal Government’s Comment: One commenter contended services. Indeed, for individuals under unique legal relationship with Tribal that there are no provisions to require the age of 19, section 1937 ensures that governments. States to ensure that AI/ANs continue to all needed services will be available Response: CMS currently operates have access to culturally competent through the requirement that EPSDT under the Department of Health and health services through the Indian services must be provided either as Human Services’ Tribal Consultation Health Service (IHS) or tribally operated wrap-around to, or as part of, the Policy. The Departmental guidelines health programs. The commenter stated benchmark or benchmark-equivalent provide information as to the regulatory that the proposed rules allow States to plan. activities that rise to the level that offer coverage without regard to Moreover, section 1937 does not require consultation (include prior comparability, statewideness, freedom provide a basis to exclude IHS or tribal notification of rulemaking). We have of choice, the assurance of health providers from participation in considered the Departmental guidelines transportation to medically necessary the delivery system for alternative and believe that there was no services, and other requirements. There benefits. In terms of the assertion of requirement for consultation on this are large disparities between AI/ANs’ overall under-funding for IHS and tribal rule, since the effect on AI/AN

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recipients results from the statute itself, of the Act, there are tiered individual similar to those available in the and not this rule. The rule itself does service limits based on family income, marketplace. This protects Medicaid not have a direct effect on such and an aggregate cap of 5 percent of recipients from significant reductions in individuals, or on the relationship family income. These limits protect benefits. Benchmark options include between the Federal government and individuals in benchmark plans. Federal Employees Health Benefits Plan Tribes. Therefore, we have concluded It is important to note, first, that coverage, State Employee coverage, that this rule does not reach the alternative benefit package programs are coverage offered by a Health threshold of requiring consultation. at a State’s option. Second, numerous Maintenance Organization in the State We encourage States which decide to Medicaid eligibility categories are with the largest commercial non- implement alternative benefit packages exempt from mandatory enrollment in Medicaid population, or Secretary to consult with Tribes and notify them alternative benefit packages and can be approved coverage. States have the whenever possible on policies that will enrolled only voluntarily. Such option of considering Employer directly affect the Tribes. In terms of individuals must be provided a Sponsored Insurance coverage so long exempting AI/ANs from benchmark comparison of the benchmark option as the Employer Sponsored Insurance plans, it is important to note that this versus the State plan option before they coverage meets the criteria of rulemaking was taken directly from choose to enroll. That comparison benchmark coverage. States can also provisions of section 1937 of the Act, as would include information on the cost- consider benchmark-equivalent added by section 6044 of the DRA. sharing obligations of beneficiaries. In coverage as long as the coverage These provisions give States increased choosing the benchmark option over the includes basic services such as inpatient flexibilities in the management of their State plan option, these individuals and outpatient hospital services, Medicaid programs. This regulation would thus have made an informed physicians’ surgical and medical exempts from mandatory enrollment in choice. And if the benchmark option is services, laboratory and x-ray services, an alternative benefit package the not meeting the exempt individual’s well-baby and well-child care including groups specifically set forth in section needs, they may revert back to age-appropriate immunizations, and 1937. The statute provides no authority traditional Medicaid at any time. other appropriate preventive services. to mandate exemption of other groups. Comment: One commenter urged We have determined that other It is possible that some AI/ANs fit into CMS to add provisions to provide appropriate preventive services should one of the exempt groups. special protections for individuals with include emergency services. These regulations implement section disabilities, dual-eligibles, and persons Benchmark equivalent plans may 1937 of the Act, as enacted by Congress, with other chronic medical conditions include care management, care and do not address treaty rights of to ensure access to benchmark packages coordination, and/or home health American Indians. These regulations that are uniquely designed to address services, but it is possible that some neither diminish nor increase such physical impairments and rehabilitation plans will not include these services treaty rights. needs. and we do not believe that a Comment: Several commenters Another commenter believed CMS requirement that States include these believed that States should not have the should require State Medicaid agencies specific services would be consistent ability to create benchmarks that allow to provide access to care management with the statutory goal of increasing for increases in cost sharing. and care coordination services to State flexibility. Specifically, States can establish a Medicaid recipients who are incapable Another important protection from benchmark coverage package that of managing their benchmark plan benefit reduction is that the alternative requires copays for health care access, services. The commenter further benefit package is required to include whereby the cost sharing will actually believed that home health services the EPSDT benefit for children under be a limitation on coverage. However, if should be included in all benchmark the age of 19. If the services are not the selected benchmark plan indicates plan packages. provided as part of the benchmark or that it provides coverage for only half of Several commenters recommended benchmark-equivalent plan, these the cost of mental health services, CMS that all State programs include services must be provided by the State views that as a coinsurance requirement prevention services and promote health, as wrap-around benefits. Further, States, rather than as a limitation on coverage. wellness, and fitness. Physical at their option, can provide for Premiums and cost sharing act as a therapists are involved in prevention by additional services or wrap-around deterrent to those receiving health care promoting health, wellness and fitness, services to benchmark or benchmark- and may cause low-income populations and in performing screening activities. equivalent programs. to choose between health care and basic One commenter is concerned that the Another protection is that exempt needs such as food. The commenter managed care model is better suited for individuals have the opportunity to indicated that Native Americans and a ‘‘well’’ population as opposed to make an informed choice before other low-income groups should be children with chronic special health enrolling in benchmark or benchmark- exempt from premiums and cost-sharing care needs and adults with disabilities. equivalent plans. This includes the requirements. Response: To the extent that the requirement that States must provide Response: This rule concerns new commenter is concerned that alternative exempt individuals with a comparison flexibility for States in providing health benefit packages will result in a of the benefits included in the care coverage through alternate benefit reduction in services, we do not believe benchmark or benchmark-equivalent packages that was authorized under that will necessarily be the case. For the plan versus the benefits included in section 1937 of the Act. To the extent nine benchmark State plan amendments traditional State plan coverage. If the that these benchmark packages impose approved to date, most offer traditional benchmark or benchmark-equivalent is premiums or cost sharing, this final State plan services as well as additional not meeting the exempt individual’s regulation stipulates that any cost services like prevention and disease health care needs, the exempt sharing and premiums for recipients management. individual has the option to return to may not exceed cost-sharing limits By tying benefit flexibility to State plan coverage immediately. If the applicable under sections 1916 and benchmark plans, Congress ensured that exempt individual is in need of these 1916A of the Act. Under section 1916A alternative benefit packages will be services and they are not offered in the

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benchmark plan, the individual can In order to maintain State flexibility, to provide an exceptions process in return to the regular Medicaid benefit State plan amendments will be which beneficiaries can obtain services package. reviewed on an individual case-by-case not covered by a benchmark plan when Comment: One commenter believed basis and could provide for exceptions they are medically necessary, and to current regulations governing managed from managed care requirements when educate beneficiaries about how to care in Medicaid that describe the impractical or inconsistent with the pursue this essential safeguard. information States must provide and methods of delivering appropriate Similarly, States should also be how that information should be coverage to the targeted population. required to provide hardship provided should be incorporated in the This would mean that, if States can exemptions if beneficiaries are unable to rule governing benchmark benefit plans. meet the standard of offering benchmark meet cost-sharing requirements in The information should include a or benchmark-equivalent coverage that benchmark plans and should review comparison of features between is appropriate to meet the health care each beneficiary’s eligibility category to Medicaid and the benchmark plan, needs of the targeted population, CMS ensure they meet statutory requirements whenever they differ. would consider State program designs for assignment to benchmark plans. Other commenters urged CMS to that require flexibility in this regard. Response: CMS agrees with the allow States to deviate from the lock-in Comment: Some commenters believed commenter that States should review provisions of Medicaid managed care that CMS should require that all non- each beneficiary’s eligibility category to regulations at 42 CFR part 438. They managed care plans ensure adequate ensure they meet statutory requirements assert that, if beneficiaries covered by an access to providers that accept for assignment to benchmark plans. The alternative benefit package, rather than assignment of benefits and bill requirements for which mandatory full Medicaid benefits, can pick and benchmark plans directly. enrollment can occur are outlined in choose benefits during an enrollment Response: If States choose to offer § 440.431 and specify that only full period by plan-hopping, plans will have benchmark or benchmark-equivalent benefit eligibles can be mandatorily no way to establish cost-effective plans to Medicaid beneficiaries, States enrolled in benchmark benefit packages. premiums tied to the limited benefit must assure that access to providers and We have required in § 440.320 that package. The commenters requested that claims payment must be in compliance exempt individuals be fully informed CMS allow States providing alternate with current Federal regulations. regarding the choice for enrollment in benefit packages to offer as little as a 30- Comment: One commenter raised benchmark or benchmark-equivalent day change period after initial potential problems of billing alternate plans. We have also required that States assignment, and that differences in benefit insurers. The commenter comply with the managed care covered benefits be excluded as a believed CMS should ensure that regulations including the information justifiable cause for beneficiaries to benchmark plan options should impose requirements for enrollees and potential switch health plans after the change no additional administrative burdens on enrollees. period. participating Medicaid providers. We are not requiring that States Response: We have revised the Providers should not be depended upon provide a process for beneficiaries to regulation at § 440.305 to incorporate to refund payments and rebill plans in obtain services not covered by a compliance with managed care the event that a plan is billed for a benchmark plan when they are requirements at section 1932 of the Act Medicaid recipient who is retroactively medically necessary, because such a and at 42 CFR part 438 of Federal enrolled into a different plan. Individual process is not authorized by section regulations, except when the State plan requirements should be 1937 of the Act. Benchmark or demonstrates that such requirements are streamlined into the existing system to benchmark-equivalent plans offered to impractical in the context of, or minimize complexity to the already beneficiaries constitute the individual’s inconsistent with, methods of offering complex billing requirements. medical assistance health care coverage coverage that is appropriate to meet the Response: This rule does not address and the services provided by the needs of the targeted population. This provider billing issues because this is benchmark plan are expected to be would mean that, in providing the kind of administrative issue that is appropriate to meet the needs of the information to beneficiaries who are more properly handled on a State level. population it serves. offered managed care plans to obtain Provider billing procedures will vary It is important to note that for those alternate benefit coverage, States would among the States based on the particular who voluntarily enroll in benchmark or be required to comply with the health care delivery system in the State benchmark-equivalent plans, if requirements at § 438.10, so that States at issue. We do not anticipate that medically necessary services are needed must provide all enrollment notices, provider billing under an alternative that are not provided as part of the informational materials, and benefit program will necessarily differ benchmark program, such individuals instructional materials relating to the from the way in which providers can revert to traditional Medicaid enrollees and potential enrollees in a currently bill for Medicaid services, or coverage at any time to receive the manner and format that may be easily that providers will have to establish services. Requests for individuals to opt understood. This informational material new processes and systems to calculate, out must be acted upon promptly. must include, among other things, track, bill, and report benchmark Further, we included a requirement for information concerning enrollment services. Moreover, because most States States to have a process in place to rights and protections; any restrictions already offer managed care enrollment, ensure continuous access to services on freedom of choice among providers; they already have experience ensuring while any opt out request is being procedures for obtaining benefits coordination of provider claims among processed. See 42 CFR 440.320. including prior authorization different managed care entities. Thus, In terms of cost sharing, States are requirements; information on grievances we do not believe that the offering of required to ensure that benchmark or and fair hearings procedures; alternate benefit packages will impose benchmark-equivalent plans comply information on physicians, the amount, significant administrative burdens on with the cost-sharing requirements at duration, and scope of benefits; and the providers. sections 1916 and 1916A of the Act, process and procedures for obtaining Comment: One commenter asserted which includes the provision that emergency services. that the final rule should require States premiums and/or cost sharing not

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exceed 5 percent of the family’s income. we are requiring in § 440.305 Scope that prescription requirements, or otherwise These sections provide States with the States secure public input prior to any address or limit the coverage of, or flexibility to consider individuals who submission to CMS of a proposed State payment for, prescription drugs. These are unable to meet their cost-sharing plan amendment that would provide for issues are outside of the scope of this obligations and establish a course of an alternative benefit package. We are rule. action that will be taken in such an not requiring any specific process to Comment: One commenter instance. Exemptions for individuals in secure public input, in order to permit recommended that CMS include in its the case of undue hardship, however, States flexibility to design and use a rule an evaluation of the impact on are a state option and may not be public input process that meets State beneficiaries of the benchmark benefit available in all States. needs. packages. Comment: One commenter believed We note that there are already a Response: CMS points the commenter alternative plans should include a number of Federal requirements for to the ‘‘Regulatory Impact Analysis’’ in provision for mandatory cost sharing, States to provide public notice of, and section VI.B ‘‘Anticipated Effects’’ of where applicable, in return for seek public involvement in, Medicaid this regulation. treatment or services. Uncollected cost- program issues. CMS requires in D. Section 440.310 Applicability sharing places an unfair financial § 447.205 that States must provide burden on providers. public notice of any significant Comment: One commenter disagreed Response: States are required to proposed change in its methods and that the medically needy population ensure that benchmark or benchmark- standards for setting payment rates for should be exempt from participating in equivalent plans comply with the cost- services. There are public process benchmark plans. The commenter sharing requirements at Sections 1916 requirements for setting institutional believed the rule should permit and 1916A of the Act. These sections payment rates at section 1902(a)(13)(A) voluntary enrollment of medically provide that States can impose of the Act. We also require in needy into benchmark plans in States premiums and cost sharing on certain § 438.50(b)(4) that States offering such as Minnesota which provide full Medicaid beneficiaries, and Section benefits through a mandatory managed benefits across the board to both 1916A provides for enforcement of such care program must specify the process categorically and medically needy. premiums and cost sharing on certain the State uses to involve the public in Section 1937 of the Act only expressly Medicaid beneficiaries (certain both design and initial implementation prohibits required participation by the limitations do apply). The enforcement of the managed care program and the medically needy but is silent as to of premiums and cost sharing is at a methods it uses to ensure ongoing whether they can be voluntarily State’s option. CMS is not requiring that public involvement once the managed enrolled. It is illogical for CMS to cost sharing be mandated in return for care program has been implemented. interpret Congressional intent to permit treatment or services, since this would Additionally, States submitting a scaled back benefit coverage for the be inconsistent with the statutory section 1115 demonstration proposal categorically needy, while shielding the language provided by Congress in the must provide a written description of medically needy from scaled back DRA. the process the State will use for receipt benefit packages. Comment: One commenter mentioned of public input into the proposal. (See Response: We agree with the that because of the potential for harm to 59 FR 49249). commenter’s suggestion that medically beneficiaries, this rule should mandate Comment: One commenter suggested needy populations may be offered strong requirements for meaningful that CMS require States to include in voluntary enrollment in an alternative public input at both the Federal and Medicaid contracts with alternative benefit package. Thus, we have revised State level when States propose use of benefit packages provisions that require the rule at § 440.315 ‘‘Exempt alternative benefit packages. Only a full fair reimbursement for providers at rates Individuals’’ to indicate that benchmark open process in which all stakeholders no less than rates paid under the and benchmark-equivalent benefits can can participate will provide the traditional Medicaid program, including be offered as a voluntary option to thorough, thoughtful analysis needed to a reasonable dispensing fee for medically needy or those eligible as a determine whether specific changes will pharmacy providers. result of a reduction of countable foster genuine efficiency or threaten Further, the commenter believed that income based on costs incurred for beneficiaries’ access to appropriate care. CMS should prohibit States from medical care. These commenters noted that the procuring contracts that contain mail State plan amendment process provides order prescription requirements for E. Section 440.315 Exempt Individuals almost no meaningful opportunity for Medicaid recipients. The commenter Comment: One commenter believed public input. They complained that asserts that Medicaid recipients who are that these alternative benefit packages States can implement changes the day required to enroll in benchmark plans should provide exemptions to after publishing a notice, with no should have the option of receiving additional Medicaid coverage groups. requirement to acknowledge or address pharmacy services in a retail pharmacy Other commenters suggested that CMS comments. setting. CMS should also require that use its discretion to expand the The commenter suggested that contracts contain an assurance that categories of exempt individuals to meaningful opportunities for public allows extended quantities of include adults with serious mental comment could include well-publicized medications from retail pharmacies for illness and children with serious and easily accessible public hearings, Medicaid recipients receiving treatment emotional disturbances. ample opportunity for stakeholders to for chronic illnesses. Some commenters believed that all provide written comments, and a Response: Rate setting is a process people with mental illness should be requirement that State and Federal that States undertake with their exempt. officials provide written responses to contracted providers. It is outside the Response: The statute does not comments. scope of this rule, and was not authorize CMS to exempt additional Response: We agree that States should addressed by the provisions of section categories of individuals from alternate seek public input concerning plans to 1937 of the Act. Nor did section 1937 benefit package requirements. We have offer alternative benefit packages. Thus, address or limit the use of mail order included the medically needy with the

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list of exempt populations because the Response: The commenter pointed contained in section 1932(a)(2)(C) of the medically needy population is out that we mistakenly confused two Act. effectively exempted by exclusion from distinct groups in our definition of Comment: One commenter believed the definition of ‘‘full benefit eligible’’. ‘‘individuals with special needs’’ and that States may be discouraged from We note that we have allowed States included individuals eligible for pursuing the benchmark option because flexibility to define the exempt group of Medicare as a special needs population of the extra work required for ‘‘medically frail and special needs’’ when it is identified in section 1937 as determining eligibility, along with the individuals, and States could include in a separate exempt population. That was fact that potential savings may be this group, for example, children with a misreading of the statute and we have limited. The commenter asked that CMS serious emotional disturbances and deleted that reference. Section not impose any additional definition of individuals with mental illness. 1937(a)(2)(iii) of the Act exempts sub-groups that must be identified and We encourage States to broadly define individuals entitled to Medicare carved out of benchmark plans. medically frail and/or individuals with benefits (dual eligibles), regardless of Response: CMS does not believe there special medical needs to include these medical need, from mandatory is extra work involved in determining individuals. enrollment in an alternative benefit eligibility that would reduce potential Comment: One commenter requested package. There is a separate statutory savings. CMS currently has approved a definition for exempt individuals exempt category at section 1937(a)(2)(vi) nine State plan amendments offering ‘‘who qualify for Medicaid solely on the for individuals who are medically frail benchmark benefits to Medicaid basis of qualification under the State’s or have special medical needs. This beneficiaries. Some States have TANF rules.’’ The commenter noted that final regulation includes both of these converted some of their section 1115 populations into State plan populations no individual can qualify to receive groups separately. covered through benchmark benefit Medicaid benefits solely on the basis of Specifically, in the proposed rule, we packages. CMS also has several their TANF eligibility, since TANF is specified that ‘‘individuals with special benchmark State plan amendments not linked to Medicaid. needs’’ means the populations identified in § 438.50(d)(1) and pending Federal review. We would like Response: We released a State § 438.50(d)(3). The reference to to point out that this Medicaid State Medicaid Director’s letter on June 5, § 438.50(d)(1) was the erroneous plan option was modeled partly based 1998 in which CMS provided guidance reference to the dual eligible population on the success seen in separate SCHIP that Medicaid eligibility is not tied discussed above. The reference to programs as well as in section 1115 under Federal law to States’ TANF § 438.50(d)(3) was made because that demonstrations with similar flexibility. eligibility criteria. population was a pre-existing definition Additionally, CMS has identified in The impact of this exemption in the of the statutory term ‘‘children with section VI of the ‘‘Regulatory Impact context of alternative benefit packages special medical needs’’ contained at Analysis’’ of this regulation that savings would be that only individuals section 1932(a)(2)(A) of the Act. We did can accrue if States choose to adopt receiving medical assistance solely on not contain a separate definition of alternative benefit programs and that the basis of the individual’s TANF adults with special medical needs. savings will be achieved through cost eligibility can be exempt from After reviewing public comment, we avoidance of future anticipated costs by mandatory enrollment into benchmark have determined to allow States providing appropriate benefits based on or benchmark-equivalent packages. flexibility to adopt reasonable meeting a population’s health care Because we believe linking does not definitions of ‘‘individuals with special needs, achieving appropriate utilization currently occur in State Medicaid medical needs’’ as long as that of services, and through gains in programs, we believe there are no definition includes the children efficiencies through contracting. We individuals affected by this exemption. specified in § 438.50(d)(3). believe States will be able to take greater It is important to note that individuals We recognize that Congress included advantage of marketplace dynamics eligible under section 1931 of the Act special protections for American within their State, and we anticipate can be mandatorily enrolled in Indians under the managed care that a number of States will use this benchmark or benchmark-equivalent provisions at section 1932(a)(2)(C) of the flexibility to create programs that are plans and are also not affected by this Act, but we must also recognize that similar to their SCHIP programs. We exemption. those special protections were not believe that because States are no longer Comment: A commenter stated the included under section 1937. It is tied to statewideness and comparability, proposed rule defines the exempt possible that the managed care States will be able to offer individuals ‘‘special medical needs’’ group to protections were based on the fact that and families different types of plans include two of the three groups that are American Indians have access to the consistent with their health care needs also exempt from mandatory enrollment IHS and tribal health care delivery and available delivery systems. in managed care plans under section system, and there was concern about Comment: One commenter asked for 1932(a)(2) of the Act, ‘‘dual eligibles’’ mandating enrollment in a managed additional clarification of the phrase ‘‘or and certain children. However, the care plan that would not be consistent being treated as being blind or disabled’’ proposed rule does not exempt the third with that health care delivery system. in § 440.315 of this regulation. group that is exempt from mandatory While AI/ANs are not a statutory Response: This phrase needs to be enrollment in managed care plans, group that is exempt from enrollment in interpreted by each State in light of the AI/ANs. Several commenters believed an alternative benefit package, they particular eligibility conditions in that that the same compelling policy reasons remain exempt from mandatory State. For example, the phrase could for excluding AI/ANs from mandatory enrollment in managed care. As a result, refer to 209(b) States, since States with managed care support excluding them a State that operates an alternative this classification can have a more from mandatory enrollment in benefit package through managed care restrictive definition of blindness or benchmark plans, and request that we providers must provide AI/ANs with a disability. The term could also refer to revise the rule to be consistent with health care delivery system that is one of the working disabled groups, current policy described in the consistent with the special protections since one group has a categorical Medicaid managed care rule of 2002. related to managed care enrollment requirement that the person have a

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medically determinable severe Response: In the proposed rule, we equivalent benefit package at any time impairment, which does not exactly defined individuals with special and regain immediate eligibility for the match the criteria for a determination of medical needs to be consistent with standard full Medicaid program under ‘‘disabled’’. And the Territories operate § 438.50(d)(3), which implements and the State plan. We also proposed that on a different definition of blindness interprets the term ‘‘children with States must inform the recipient of the and disability than the 50 States. special medical needs’’ used in section benefits available under the benchmark Comment: Some commenters stated 1932(a)(2)(A) of the Act. This definition or benchmark-equivalent benefit that the proposed rule exempts from refers to children under age 19 who are package and provide a comparison of mandatory enrollment the ‘‘medically eligible for SSI, section 1902(e)(3) of the how the benefits differ from the benefits frail.’’ Several commenters suggested Act TEFRA children, children in foster available under the standard full this term be given specific meaning in care or receiving other out of home Medicaid program. We also required the rule. They suggested it include placement, children receiving foster that the State document in the anyone who is eligible for or is receiving care or adoption assistance or are individual’s eligibility file that the Medicare or Medicaid services for home receiving services through a community individual was informed and health, hospice, personal care, based coordinated care system. voluntarily chose to enroll in the rehabilitation or home and community- We appreciate commenters’ benchmark or benchmark-equivalent based waivers, or who is at imminent suggestions of additional populations benefit package. risk of need for these types of services. for inclusion in the definition of special After considering public concerns as Another commenter suggested this medical needs. In this final rule, we are to the importance of the informed group be defined as individuals with allowing States flexibility to adopt a choice process, we have revised the multiple medical conditions and/or a reasonable definition of the term. CMS proposed rule at § 440.320(a)(1) to chronic illness. encourages States to consider all of require that the State must ‘‘effectively’’ Response: We have not defined this these individuals for inclusion in the inform the individuals. To the extent term in this rule and, after considering definition of ‘‘individuals with special that the informed choice process public comment on the issue, have medical needs.’’ continues to raise concerns, we may determined to allow State flexibility in To maintain maximum State issue guidance as to what processes are adopting a reasonable interpretation. flexibility, we are thus not imposing a necessary to insure that the informed CMS will require that States offering Federal definition other than requiring choice process is effective. alternative benefit packages to inform that the population include at least Comment: One commenter believed CMS as to their definition of ‘‘medically those children identified in the proposed rule was silent on the frail.’’ States will be required to include § 438.50(d)(3). CMS will require that requirement that the State provide information regarding which population States offering alternative benefit information in plain language that is groups will be mandatorily enrolled in packages inform CMS as to their understood by the individual, parent, or the benchmark program and will need definition of ‘‘special medical needs.’’ guardian including clear instructions on to ensure that enrollment is optional for States will be required to ensure that how to access EPSDT services not exempt populations, including exempt populations, including provided by the benchmark plan and individuals defined by the State as individuals with ‘‘special medical how to opt out. ‘‘medically frail.’’ Additionally, CMS needs’’ are not mandatorily enrolled in Response: We agree that it is intends to interpret the required public alternative benefit packages, but are important to provide information in input process, to include informing instead offered an informed choice. plain language and individuals should interested parties of the State’s proposed Additionally, CMS intends to interpret be provided clear instructions on how to definition of ‘‘medically frail.’’ the required public input process to access EPSDT services not provided by Comment: Another commenter include informing interested parties as benchmark plans. Further, individuals suggested CMS use the existing HHS to the proposed definition of ‘‘special should also receive information on how (Maternal and Child Health Bureau) medical needs.’’ to opt out of benchmark plans. We are definition of ‘‘children with special requiring in § 440.320 that States health care needs’’: ‘‘Children who have F. Section 440.320 State Plan effectively inform exempt individuals of or are at increased risk for a chronic Requirements—Optional Enrollment for the choice, and provide sufficient physical, developmental, behavioral, or Exempt Individuals information in order to make an emotional condition and who also Comment: One commenter supported informed choice, including a require health and related services of a our regulation at § 440.320 and comparison of benefits. Exempt type or amount beyond that required by appreciated the willingness of CMS to individuals must be afforded the children generally.’’ provide for optional enrollment of opportunity to opt out of benchmark or Other commenters believed the otherwise exempt individuals. Several benchmark-equivalent coverage if it is ‘‘special medical needs individuals’’ other commenters urged CMS to require determined that the coverage is not should include adults who meet the States to provide more information and meeting their health care needs. Federal definition of an individual with assistance to exempt individuals who In addition, when alternative benefit serious mental illness and children who are given the option to enroll in packages are furnished through meet the Federal definition of children alternative coverage. managed care contractors, all managed with serious emotional disturbance, as Response: We agree with the care requirements apply, as indicated at promulgated by the Substance Abuse commenter that States should provide § 440.305(e). For managed care entities, and Mental Health Services information and assistance to exempt pursuant to § 438.10, all informational Administration (SAMHSA). The individuals who are given the option to materials and instructional materials SAMHSA definition would include enroll in alternative coverage so they relating to enrollees and potential some individuals who, for one reason or can make an informed choice. We enrollees must be provided in a manner another, are not eligible as persons with proposed in § 440.320 that States must and format that may be easily a disability, but nevertheless are inform the recipients that enrollment is understood. significantly impaired by their mental voluntary and that the individual may Comment: Some commenters stated disorder. opt out of the benchmark or benchmark- that the rules should provide for

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immediate revocation of any voluntary managed care plans, States must comply opportunity to receive State plan election at the discretion of those with the Medicaid managed care rules at services that may not be available in the excluded individuals who elect an 42 CFR part 438. Marketing benchmark plan either as wrap-around alternative plan. They urged that requirements for managed care plans are to the benchmark plan or by reverting to revocation be permitted through described in § 438.104. States must traditional Medicaid. telephone, in writing, in person, by consider these requirements in Comment: Several commenters electronic communication, or by a contracting with these entities. believed exempt individuals will be designee, so as to make revocation as At this time, we do not see a need for automatically enrolled without their simple as possible and as quick as additional oversight measures when expressed consent and wanted an possible for beneficiaries. They also alternative benefit packages are offered assurance that this will not occur. These asserted that the State should be outside of the managed care context. commenters urged CMS to safeguard required to provide immediate Comment: Other commenters exempt individuals from being enrolled notification to such individuals of the indicated that CMS should require in benchmark or benchmark-equivalent right to revoke their election if they fall strong beneficiary protections for plans without their prior informed into an excluded category. And they people, including frail older and consent by more expressly prohibiting urged that coverage and payment should disabled beneficiaries, who have the States from taking an ‘‘opt-out’’ not be interrupted during changes in opportunity to voluntary opt into approach to their enrollment. They election and marketing should not be benchmark plans. The commenters suggested that the proposed language permitted by alternate plans to excluded indicated that these protections should could allow or even encourage States to groups. include objective counseling to make adopt an opt-out approach without These commenters asked that the sure they understand the potential for further clarification, the language could disenrollment process from benchmark higher costs and make truly informed be read to allow States to initially enroll plans allow a seamless transition to and decisions, a ban on aggressive and all exempt persons who do not from the selected program and minimize coercive marketing such as door-to-door affirmatively opt out. These commenters the administrative burden on the sales, a requirement to document indicated that failure to clarify this network adequacy for additional provider while ensuring care delivery is point would be construed as approval of populations, and ongoing monitoring to not interrupted. opt-out practices and would not protect Response: We agree that coverage and ensure that these beneficiaries are against any form of automatic or payment should not be interrupted getting the care they need. Some ‘‘presumed voluntary’’ enrollment. during changes in election. It is commenters indicated that, even with important that coordination of care full information, individuals who Response: Section 1937 provides that continue during any time of transition voluntarily enroll may be likely to make exempt individuals cannot be either from one Medicaid eligibility an inappropriate election. They mandatorily enrolled in benchmark or group to another or from one benefit suggested a professional counselor benchmark-equivalent plans. We program to another. Thus, in independent of the plan be available to proposed to permit States to offer considering the commenters’ review their plan selection. exempt individuals a voluntary option suggestions, we have provided in Response: We believe a professional to enroll, based on informed choice. In § 440.320 that, for individuals who counselor or enrollment broker would order for exempt individuals not to be voluntarily enroll and later determine it be a reasonable administrative mandatorily enrolled and to have made necessary to revert to traditional protection that could be adopted by a an ‘‘informed choice’’ about enrollment, Medicaid and/or for individuals who State, but we are not requiring it. This the choice must take place before are later determined eligible for an is an operational issue that may depend enrollment in the benchmark or exempted group, opt out requests must on the circumstances of a particular benchmark-equivalent plan. We have be acted upon promptly and States must State’s program. States who contract amended the final rule to make this have a process in place to ensure with an enrollment broker can receive clear. Further, these actions should continuous access to services while opt administrative match from CMS at the occur before the receipt of services in a out requests are being processed. 50 percent match rate. To the extent that benchmark or benchmark-equivalent Comment: Some commenters the State offers alternative benefits plan. We mentioned earlier that we recommended that CMS enhance the through managed care plans, enrollment require that the individual’s file is proposed rule to include a section on brokers must operate consistently with documented to reflect that an exempt CMS oversight containing a requirement the requirements at § 438.810. And, individual is fully informed and has that CMS approve State informational consistent with the managed care rules chosen to be enrolled in a benchmark or materials that provide comparative at § 438.10, States are encouraged to benchmark-equivalent plan. CMS, in information and information on choice. provide information at least annually as response to these comments, has made Other commenters were concerned that to an individual’s enrollment choice it clear that individuals cannot be inappropriate marketing activities such under the benchmark option or the enrolled until an informed election is as those they believe are being used by traditional State plan option. This could made. some Medicare Advantage plans, may be accomplished at the point of In terms of CMS monitoring, we be adopted by benchmark plans. These redetermining eligibility for enrollees. provide in Federal regulations at commenters urged CMS to be aware of Additionally, if it becomes apparent § 430.32 for program reviews of State the potential for inappropriate that a change in eligibility status has and local administration of the marketing tactics, require States to occurred (for example, non-pregnant Medicaid program. In order to oversee marketing activities, and impose female mandatorily enrolled in the determine whether the State is limits on marketing to ensure benchmark plan becomes pregnant and complying with the Federal individuals are not enrolled under false is no longer eligible for mandatory requirements and the provisions of its pretenses. enrollment), it is incumbent upon the Medicaid plan, we may conduct reviews Response: To the extent that State to provide the individual with that include analysis of the State’s benchmark and benchmark-equivalent information about their benefit options. policies and procedures, on-site review benefit packages are provided through These individuals must have the of selected aspects of agency operation,

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and examination of individual case clearly identified individuals who are any benefits the State chooses. They records. exempt from mandatory enrollment in asserted that this failure to recognize Comment: One commenter believed benchmark or benchmark-equivalent any minimum set of required benefits in that the rule should describe the level plans. As mentioned previously, we Medicaid could limit access to critical of detail required in the State’s have revised the final rule at § 440.320 health care services. They argued that description of the difference between to require that opt out requests are acted allowing States even greater flexibility, State Plan benefits and benchmark- upon promptly and that States must by not requiring that coverage meet equivalent plan benefits because the have a process in place to ensure benchmark levels, is inappropriate and commenter believed it is important that continuous access to services while any is likely to result in more beneficiaries there be a detailed, written comparison. opt out requests are being processed. going without health care services until Response: We agree with the These State plan requirements would they become sick and require emergency commenter on the importance of the mean that if an individual becomes part treatment. benefit comparison. We have required of an exempt population for which no Another commenter agreed and stated that if the State chooses to provide mandatory enrollment can occur, it is that the proposed rule says, ‘‘Secretary benchmark or benchmark-equivalent incumbent upon the State to ensure that approved coverage is any other health benefit options, individuals exempt procedures are in place to transition benefits coverage that the Secretary from mandatory enrollment must be individuals quickly and/or to provide determines * * * provides appropriate given, prior to benchmark enrollment, a information to individuals quickly to coverage for the population proposed to comparison of traditional State plan ensure an informed choice. We believe be provided this coverage.’’ The benefits and the benefits offered in the that States should not rely on the commenter finds this statement benchmark or benchmark-equivalent individual’s ability to revert back to troublesome. This provision gives the benefit package. We believe that in Medicaid. These individuals are entitled Secretary the wide discretion to approve order for exempt individuals to make an to the full range of Medicaid benefits. a number of plans that are more flexible informed choice, the information must They must have the choice to receive than the benchmark plan requirements be fully detailed. But we have them either as part of, or as wrap- as articulated in this rule. This determined not to include specific around to, the benchmark plan or as provision would give States the option standards for these benefit crosswalks in part of the traditional Medicaid State to craft qualifying plans that include or the regulation itself because we believe plan. exclude any benefits that the State this issue is better addressed in case-by- Comment: One commenter asked for chooses. case program reviews. clarification on whether the benchmark The commenters urged CMS to Comment: Another commenter or benchmark-equivalent benefit remove this fourth option for Secretary- believed CMS should prohibit States packages would apply to ‘‘unqualified approved benchmark packages from the from implementing procedures that individuals’’ who fall under the proposed rule. make it harder for beneficiaries to stay ‘‘exempt category’’ and who could be Response: The statute provides States in the regular Medicaid program than to offered optional enrollment in a with the option of Secretary-approved enroll in benchmark benefit plans. benchmark benefit package. coverage, and we believe we have Beneficiaries should not be asked to Response: We wish to clarify that provided for sufficient protections to make a choice without being afforded a unqualified individuals (aliens who are ensure that this option will be reasonable time to evaluate the options. not lawfully admitted for permanent consistent with the statutory purpose of Response: We agree that individuals residence in the United States or meaningful health benefits coverage should be given a reasonable time to otherwise do not meet the Medicaid while also allowing State flexibility. In evaluate the options in considering eligibility requirements for aliens; for this final rule, we have articulated the traditional Medicaid benefits versus example, aliens who are residing in the general standard that Secretary- benchmark or benchmark-equivalent U.S. illegally or who have not met the approved coverage must be appropriate options. In order for individuals to make 5-year bar for lawful permanent resident coverage to meet the needs of the an informed choice, individuals must aliens) are exempt individuals that population provided that coverage. The have ample time to consider the options cannot be mandatorily enrolled in regulations also provide a number of available. Therefore, we have revised benchmark plans. documentation requirements so that the regulatory provision at Unqualified individuals are not CMS can determine that this standard § 440.320(a)(3) to require that the State entitled to Medicaid unless they are has been met. States are required to document that the individual had ample aliens eligible for Medicaid coverage in submit a full description of the time for an informed choice. We are not situations where care and services are proposed coverage. They must include a prescribing standards for what necessary for the treatment of the alien’s benefit-by-benefit comparison of the constitutes ‘‘ample time’’ because we emergency medical condition (see proposed plan to one or more of the believe this may vary based on the section 1903(v) of the Act). Thus, these three benchmark plans specified in circumstances and/or individual individuals can be enrolled in a § 440.330 or to the State’s standard full involved. benchmark or benchmark-equivalent Medicaid coverage package under Comment: Another commenter plan on a voluntary basis. The section 1905(a) of the Act, as well as a believed CMS should require States to limitations in § 440.320 and section full description of the population that institute expedited processes to 1903(v) of the Act would apply. would receive the coverage. transition out of benchmark plans those Additionally, States will be providing to individuals who become eligible for G. Section 440.330 Benchmark Health CMS any other information that would exempted categories. Benefits Coverage be relevant in making a determination Response: We agree with the Comment: A few commenters that the proposed coverage would be commenter that States should provide questioned the coverage standards of a appropriate for the proposed for transition of individuals if they Secretary-approved benefit package. population. In considering Secretary become eligible for exempt categories They contended that under this option, approved coverage, we will review and thus not required to be mandatorily CMS could approve coverage of any individual State designs on a case-by- enrolled in a benchmark plan. Congress kind, one that may include or exclude case basis. To the extent that State

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designs deviate from the other options One commenter believed that the would otherwise apply under for benchmark coverage (for example, legislation authorizes the Secretary to traditional Medicaid benefit packages. State employees coverage, etc.) or approve benchmark plans that provide The scope of coverage would still need traditional Medicaid State plan ‘‘appropriate coverage for the to be consistent with the requirements coverage, we will consider the population proposed to be provided that for the scope of coverage contained in information provided as a result of the coverage.’’ Similarly, the legislation this subpart, which are based on the public input process and any other requires benchmark-equivalent coverage statutory benchmark or benchmark- information States submit that would be to include ‘‘other appropriate preventive equivalent coverage provisions. relevant to a determination that the services, as designated by the With respect to Secretarially- proposed coverage would be Secretary.’’ Coverage offered to women approved coverage, we agree with the appropriate for the proposed of reproductive age cannot be commenters that if a benchmark benefit population. considered ‘‘appropriate’’ if it excludes plan is provided to individuals of child We believe that Secretary-approved coverage of family planning services bearing age that did not include family coverage can be appropriate to meet the and supplies. planning services, it may not be needs of the targeted population Some commenters asserted that appropriate to meet the needs of the provided that coverage. We have permitting some plans to exclude population it serves. Additionally, if a approved six Secretary-approved coverage of family planning runs benchmark or benchmark-equivalent benchmark plans. All of these six plans directly counter to three of the major benefit package does not include family include not only all regular Medicaid goals articulated by the legislation’s planning services, States have the State plan services but provide for supporters: reducing Medicaid costs, option of providing wrap-around or additional services like disease promoting personal responsibility and additional benefits to the benchmark. management and/or preventive services improving enrollees’ health. Because of the flexibility granted by the as well. Other commenters believed that DRA, States can submit innovative approximately half of all pregnancies in Comment: Some commenters believed designs for implementing Medicaid the United States are unplanned and that to allow States to establish programs to their beneficiaries. CMS there is a strong correlation between alternative health benefit programs that will review each State plan amendment unintended pregnancies and failure to do not include family planning services on a case by case basis and will consider obtain timely prenatal care. They stated is counter productive to ensuring the the merit of each design based on the that guaranteeing coverage of family standard that benchmark benefit health of Americans and maintaining planning services for women enrolled in packages ‘‘are appropriate to meet the the sustainability of the Medicaid Medicaid benchmark plans increases needs of the targeted population.’’ program. Also, a benchmark or the likelihood that these women will be Comment: Other commenters believed benchmark-equivalent plan would not under the care of a health professional that one reason States may wish to be appropriate for individuals of before pregnancy, and that when they design a plan under the option for childbearing age if it did not include do become pregnant they will obtain benchmark-equivalent or Secretary access to family planning services. The timely prenatal care as recommended by approved is to offer beneficiaries commenter believed that no health the American College of Obstetricians important services that are not benefits package would be and Gynecologists. otherwise covered by Medicaid or a ‘‘appropriate’’ for individuals of The commenters urged the standard benchmark plan. The childbearing age if it did not include Department to revise § 440.330 to clarify commenters stated that this rule does access to family planning services and that in order for Secretary-approved not permit this. CMS should allow supplies, and asked CMS to revise the coverage to be considered appropriate States to submit proposals that include proposed rule to clarify that, in order to coverage for women of reproductive age, other services and judge the overall plan be considered ‘‘appropriate,’’ a it must include family planning services proposed by the State to assess its benchmark or benchmark-equivalent and supplies. In addition, the efficiency. plan must include coverage of family commenters urged the Department to Response: Section 1937 provides that planning services and supplies. modify § 440.335 to designate family benchmark-equivalent or Secretary- The commenter also urged CMS to planning services and supplies as a approved can be offered as benchmark amend the rule to allow beneficiaries to required preventive service that must be plans, so long as basic services are disenroll from any such alternative included in all benchmark-equivalent provided as part of the benchmark- benefit plan and reenroll in traditional plans offered to women of reproductive equivalent benefits or the benefit Medicaid if the plan does not cover age. package is appropriate to meet the needs family planning services and supplies. Response: Even if one of the of the population it serves for Secretary- Several commenters noted that family statutorily-specified benchmark approved coverage. The rule is planning is basic preventive health care packages did not contain family consistent with these flexibilities. for women and that ensuring a women’s planning services, the statute Additionally, the rule provides that the freedom of choice is critical in the nonetheless permits States to base an scope of a Secretary-approved health delivery of these services. Birth control, alternative benefit package on that benefits package or any wrap-around or the main component of family planning benchmark. CMS has no authority to additional benefits will be limited to coverage, is the most effective way to: disapprove the use of a statutorily- benefits within the scope of the (1) Prevent unwanted pregnancies, (2) specified benchmark plan as the basis categories available under a benchmark safely space pregnancies in the interest for an alternative benefit package. coverage package or the standard full of the mother and child’s health, and (3) Consequently, we are revising § 440.375 Medicaid coverage under section keep women in the workforce. to update the title and revise the text of 1905(a) of the Act. This provision Furthermore, birth control enables this section to indicate that States can allows States flexibility to offer preventive behaviors and allows for the provide benchmark or benchmark- additional health care services that early detection of disease by getting equivalent coverage to recipients would not otherwise be offered. women into doctor’s offices for regular without regard to the requirements Additional services are limited to those health screenings. relating to the scope of coverage that in categories offered under a benchmark

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plan or section 1905(a) of the Act representative of the population provision, it would be important to because section 1937 of the Act did not involved; describe the basis for this standard. expressly authorize coverage beyond the • Use the same principles and factors Response: The DRA provides for this defined scope of medical assistance, and in analyzing the value of different standard. Section 1937(b)(2)(C) of the these limits ensure that additional coverage (or categories of services) Act specifies that the benchmark- services will be of the type generally without taking into account differences equivalent coverage with respect to considered as health care services. in coverage based on the method of prescription drugs, mental health In considering the benchmark delivery or means of cost control or services, vision services, and/or hearing packages that have been approved by utilization use; services must have an actuarial value CMS, States have created innovative • Indicate if the analysis took into equal to at least 75 percent of the designs that do offer additional services account the State’s ability to reduce actuarial value of the coverage of that and do provide for efficiency. benefits because of the increase in category of services in the benchmark H. Section 440.335 Benchmark- actuarial value of health benefits plan. We have maintained this standard Equivalent Health Benefits Coverage coverage offered under the State plan in the rule consistent with the statutory that results from the limitations on cost provision. Comment: One commenter urged sharing under that coverage; Comment: Another commenter CMS to clarify that plans cannot use • Select and specify the standardized pointed out that the benchmark plans actuarial methods that further reduce set of utilization and pricing factors as are allowed to provide 75 percent of the benefits because of cost-sharing limits. Another commenter noted that the well as the standardized population; actuarial value of mental health and and prescription drugs. The commenter is preamble of the proposed rule indicates • that even if the benchmark plan has 50 Provide sufficient detail to explain concerned that if the plan used as a percent coinsurance, the State would the basis of the methodologies used to benchmark does not cover mental health have to ensure that cost sharing does not estimate the actuarial value. treatment or prescription drugs, the new exceed the applicable limits in In considering the actuarial value, we Medicaid benefit package does not have Medicaid, which are substantially expect that the States and the actuaries to provide this coverage. lower. making the determination of actuarial Other commenters are concerned However, § 440.340 specifies that the equivalence will account for changes in about language indicating that a actuarial report ‘‘should also state if the cost sharing between the benchmark- benchmark-equivalent coverage package analysis took into account the State’s equivalent plan and the benchmark plan is not required to include coverage for ability to reduce benefits because of the as well as account for any differences in prescription drugs, mental health increase in actuarial value of health income and assets between Medicaid services, vision services, or hearing benefits coverage offered under the State beneficiaries and the enrollees in the services. The commenter believed all of plan that results from the limitations on benchmark plan. Cost sharing for the these services are necessary medical cost sharing * * * under that Medicaid benchmark-equivalent plan services. coverage.’’ The commenter strongly will still be subject to the limitations set Response: CMS clarifies that any and urged CMS to clarify that this language forth in this rule and in sections 1916 all services under section 1905(a) of the does not allow States to reduce mental and 1916A of the Act. The Act must meet medical necessity. health benefits below 75 percent of the determination of actuarial equivalence Prescription drugs, mental health value of the benchmark benefits because should provide an aggregate actuarial services, vision services, or hearing there are less co-payments in the value that is at least equal to the value services would meet the test of medical benchmark-equivalent plan. Congress of one of the benchmark benefit necessity, however, it is important to intended that individuals would get 75 packages, or if prescription drugs, note that these services are not percent of the value of the benefit; they mental health services, vision and/or considered mandatory services under did not intend to reduce the value of hearing services are included in the the State plan but rather are considered this benefit through cost-sharing benchmark plan, an aggregate actuarial optional services. Many States have limitations. value that is at least 75 percent of the chosen not to provide Medicaid Response: We agree that clarification actuarial value of prescription drugs, beneficiaries with optional services is needed in terms of using actuarial mental health services, vision and/or under their state’s Medicaid State plan. methods to further reduce benefits hearing services of one of the Further, it is the DRA that specifies if because of cost-sharing limits. We have benchmark benefit packages. Changes to coverage for prescription drugs, mental specified in § 440.340 that, as a the benchmark-equivalent plans, health, vision and/or hearing is condition of approval of benchmark- including changes in the cost-sharing provided in the benchmark plan, the equivalent coverage, States must structure that would result in expected benchmark-equivalent plan must provide an actuarial report with an benefit amounts less than under the provide at least 75 percent of the actuarial opinion that the benchmark- benchmark plan or less than 75 percent actuarial value of the coverage. If equivalent coverage meets the actuarial of the actuarial value of prescription coverage is not provided under the requirements for coverage specified in drugs, mental health services, vision benchmark plan, the benchmark- § 440.335. We have also specified in and/or hearing services, would not be equivalent is also not required to § 440.340 that the actuarial report allowed under this rule. provide the coverage. This would be must— Comment: Several commenters note logical since, in calculating the actuarial • Be prepared by a member of the that the standard for adopting a value of the benchmark-equivalent, the American Academy of Actuaries and benchmark-equivalent coverage package actuarial value would be calculated must meet the standards of this is set at 75 percent of the actuarial value based only on the services included in Academy; of that category of services in the the benchmark plan and not calculated • Use generally accepted actuarial benchmark plan and wants to based on services that are not included. principles and methodologies of the understand if the percentage is set in This is consistent with the statutory Academy, standard utilization and price statute. The commenters believe that if provision, and we have maintained this factors, and a standardized population this percentage is not a statutory flexibility in the rule.

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Comment: Some commenters I. Section 440.345 EPSDT Services access to specialists and necessary questioned how the State will assure the Requirement support services. Also, the benchmark aggregate actuarial value is equivalent if Comment: Some commenters provider facilitates access to there is lesser coverage in prescription supported the proposed regulation that information regarding the services to drugs, mental health, vision, and/or would require individuals to first seek which the individual is entitled and hearing services. coverage of EPSDT services through the information regarding how and when to Response: Section 1937(b)(2)(C) of the benchmark or benchmark-equivalent access such services. We believe that in accessing services first through the Act specifies that, in considering a plan before seeking coverage of services benchmark plan the provider can act as benchmark-equivalent benefit, if through wrap-around benefits. a facilitator who coordinates and prescription drugs, mental health, Commenters believed that when leverages the attributes and resources of vision, and/or hearing are provided in individuals need to access additional a complex healthcare system and the benchmark plan, the benchmark- services as a wrap-around either for advocate for the beneficiary as they children or adults, States should be equivalent must provide at least 75 navigate care options and information required to ensure they continue to be percent of the actuarial value of that available to them. As such, we believe able to receive services from the same coverage. This section specifies the the individual will be provided with provider. minimum coverage levels but does not better health care service and will Response: We agree that it is specify the maximum level. Thus, States experience better health care outcomes important for individuals to receive have the option to cover these services overall. at higher than 75 percent of the actuarial services from the same provider, Comment: One commenter believed value. To assure that the aggregate whenever possible. We believe that an that families are unlikely to realize that actuarial value is equivalent, we individual’s primary care provider is in their children have access to more required in § 440.340 that, as a the best position to ‘‘manage’’ an coverage than that provided through the condition of approval of benchmark- individual’s care. For individuals benchmark. Even if they understood, equivalent coverage, States must enrolled in a benchmark or benchmark- they may not know how to request such provide an actuarial report that equivalent benefit plan, the primary a service. The commenter suggested that provides, among other things, sufficient care provider is going to be serving the this section be strengthened by detail as to the basis of the individual under that plan. If an requiring States to explain, in detail, methodologies used to estimate the individual is entitled to additional how a family will be informed of their actuarial value of the benchmark- services, the primary care provider rights under EPSDT once they are equivalent coverage. should be responsible for providing enrolled in a benchmark plan and to and/or coordinating the individual’s explain the specific process the state Comment: Another commenter care and should be aware of any suggested that rehabilitation services will then go through to approve or additional services the individual disapprove these services. States should should be added to the list of services needs. included at § 440.335. also explain timelines for consideration Comment: Some commenters objected of EPSDT requests in emergency, urgent Response: The DRA specifies that to the provision in the proposed rule and routine cases. benchmark-equivalent coverage must that stipulates that individuals must The commenter goes on further to say include basic services; that is, inpatient first seek coverage of EPSDT services the preamble to the proposed rule and outpatient hospital services; through the benchmark plan before stated, ‘‘the State may provide wrap- physicians’ surgical and medical seeking coverage of these services around * * * under such plan.’’ The services; laboratory and x-ray services; through wrap-around benefits. These commenter urged that CMS clarify that well-baby and well-child care including commenters asserted that Congress the word ‘‘may’’ should be read ‘‘must’’ age-appropriate immunizations; and intended to allow States the option of because the word ‘‘may’’ inaccurately other appropriate preventive services. providing these benefits directly to suggested that States are not required to We have interpreted other appropriate Medicaid beneficiaries or to provide provide these services. The commenter preventive services to include services these benefits in whole or in part by the noted that, in other areas of the such as emergency services, but have benchmark provider. They indicated proposed rule, CMS correctly stated that left States with flexibility to define other that CMS provides no justification as to EPSDT services must wrap-around appropriate preventive services. We why children must first wrestle with the benchmark plans. disagree with the commenter that administrators of the benchmark benefit Response: We agree that States should additional services should be added to package before accessing EPSDT be required to inform families of their the list of services that are required services. One commenter asked that the rights under EPSDT. The commenter is services under benchmark-equivalent rule be amended to eliminate the correct that children enrolled in plans. requirement that a family first seek benchmark or benchmark-equivalent coverage of EPSDT services through the plans may be entitled to additional It is important to note, however, that benchmark plans. services. Therefore, we are clarifying States, at their option, can provide Response: It is important for that States must ensure that information additional or wrap-around services to individuals to first seek coverage of is provided to all EPSDT eligibles and/ benchmark or benchmark-equivalent EPSDT services through the benchmark or their families about the benefits of plans. Including rehabilitation services plan since we believe the benchmark preventive health care, what services are may be appropriate for some provider should serve as the ‘‘medical available under the EPSDT benefit, populations. Additional and wrap- home’’ for the individual. Thus, the where and how to access those services, around services are discussed in benchmark provider becomes the one that transportation and scheduling § 440.360 of this rule. central source of a child’s pediatric assistance are available, and that We did not receive any comments to record and can guard against services are available at no cost. This is § 440.340 Actuarial report. Therefore, duplication and gaps in services. The consistent with the requirements of § 440.340 will adopted as written in the benchmark provider ensures that care is section 1902(a)(43)(A) of the Act and proposed rule of February 22, 2008. managed and coordinated, providing current policy outlined in Section 5121

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of the State Medicaid Manual. benchmark-equivalent coverage. We amendment be made to be consistent Information must be given to have provided that States can offer with Federal laws: ‘‘(a) The State must individuals no later than 60 days of the employer sponsored insurance if the ensure access to EPSDT services, individual’s initial Medicaid eligibility insurance is considered a benchmark through benchmark * * * for any child determination, and annually thereafter plan. Additionally, we have indicated in under 19 years of age eligible under the if they have not utilized EPSDT § 440.350(b) that the State must assure State plan in a category under section services. We believe most States have that employer sponsored plans meet the 1902(a)(10)(A) of the Act.’’ booklets to inform individuals of their requirements of benchmark or Response: We agree to adopt the benefits, rights, responsibilities, etc. benchmark-equivalent coverage, language precisely as included in the This information is typically presented including the cost-effectiveness statute. We have revised the rule to to families by the eligibility worker at coverage requirements at § 440.370. By effectuate the clarification. the time of application and/or sent to requiring that employer sponsored plans I. Section 440.350 Employee- individuals as part of an enrollment meet the requirements of benchmark or Sponsored Insurance Health Plans packet from the managed care plan. benchmark-equivalent coverage and These types of documents should since benchmark or benchmark- Comment: One commenter requested clearly explain the benchmark and equivalent coverage must provide information about enrollment in wrap-around benefits available to EPSDT to children under the age of 19 commercial plans and suggested a EPSDT eligibles under the age of 19. either as part of, or as wrap-around to, discussion of how such arrangements Additionally, we agree with the the benchmark or benchmark-equivalent might actually be operationalized; that commenter that the word ‘‘may’’ was plan, we are requiring that any is, how premiums would be paid and inaccurate in the preamble to the employer sponsored insurance coverage tracked, and the level of Medicaid proposed rule. The law specifically provide EPSDT services to children contribution to such plans. requires that States are required to under the age of 19. We believe this is Response: Benchmark or benchmark- wrap-around services (if the full range clear in the regulation, so we have not equivalent benefit coverage may be of EPSDT services is not provided as revised the regulation text in this regard. offered through employer sponsored part of the benchmark or benchmark- Comment: Another commenter insurance health plans for individuals equivalent plan) to assure that all believed that limiting the mandatory with access to private health insurance. EPSDT services are available to EPSDT benefit to children under age 19 If an individual has access to employer eligibles. We are providing clarification rather than under age 21 denies 19 and sponsored coverage and that coverage is here in response to the comment; 20 years olds access to critical health determined by the State to offer a however, we are not revising the care services. The commenter stated that benchmark or benchmark-equivalent regulation text, since the language in this provision is inconsistent with the benefit package (either alone or with the § 440.345 clearly indicates that this is a title XIX definition of EPSDT. Removing addition of wrap-around services requirement, and not a choice. EPSDT for 19 and 20 years olds may covered separately under Medicaid), a Comment: One commenter stated that exacerbate existing health disparities for State may elect to provide premium the rule was silent on the requirement minority adolescents, compromise 19 payments on behalf of the recipient to that the state provide information in and 20 years olds’ ability to transition purchase the employer coverage. Non- plain language that is understood by the successfully into adulthood, and exempt individuals can be required to individual, parent or guardian including impede identification of physical and enroll in employer sponsored insurance, clear instructions on how to access mental conditions. and the premium payments would be EPSDT services not provided by the Response: We have promulgated considered medical assistance. The benchmark plan and how to opt out. language in this rule consistent with the requirement for children under the age Response: We agree that it is statutory language enacted in the DRA. of 19 to receive EPSDT either as wrap- important that individuals be provided Requiring States to extend EPSDT around or as part of the benchmark with clear instructions in plain language benefits to 19 and 20 year olds enrolled coverage would still be applicable. The on how to access EPSDT services not in benchmark plans would require a premium payments and any other cost- provided by the benchmark plan and change in law since section sharing obligations by beneficiaries how to opt out. This is already required 1937(a)(1)(A)(ii) of the Act provides would be subject to the premium and by the EPSDT outreach provisions of only that children under 19 years old cost-sharing requirements outlined in section 1902(a)(43) of the Act, which are must receive coverage of EPSDT as sections 1916 and 1916A of the Act, applicable to alternative benefit defined in section 1905(r) of the Act. including the requirement that cost packages. To the extent that alternative States are given the option to extend sharing not exceed the aggregate limit of benefit packages are delivered through EPSDT benefits in benchmark plans to 5 percent of the family’s income, as managed care plans, States must also 19 and 20 year olds. This option is applied on a monthly or quarterly basis comply with managed care rules at 42 similar to the choice States currently specified by the State. CFR part 438. According to § 438.10, have in extending Medicaid eligibility If the employer plan is cost-effective, information provided must be in an to 19 and 20 year olds; thus, extending States have the flexibility to take easily understood language and format. EPSDT to 19 and 20 year olds under the advantage of the coverage, without Comment: One commenter noted that State plan. We note that in approving requiring a uniform employer proposed § 440.350 failed to specify that nine benchmark State plan contribution. It is likely that a under the employer-sponsored amendments, most States with approved substantial employer contribution insurance plan option States must still benchmark plans have extended EPSDT would be necessary in order to meet the ensure that children have access to the coverage to 19 and 20 year olds enrolled cost-effectiveness requirement. States wrap-around EPSDT benefit. This in these plans. must identify the specific minimum section should be amended to note this Comment: One State Medicaid official contribution level that they are requirement. suggested, instead of the current requiring of participating employers. Response: The requirement to provide language in the published proposed rule We have not approved any Medicaid EPSDT benefits to children under the on (page 9727) of the Federal Register benchmark programs at this time that age of 19 applies to benchmark and regarding EPSDT, the following provide for employer sponsored

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coverage; however, we have approved required that States wishing to opt for coverage would include ‘‘qualifying section 1115 demonstrations in which Secretary-approved coverage should child benchmark dental coverage.’’ The States have provided premium submit a full description of the commenter also noted that in the assistance payments and employer proposed coverage and include a context of employer group health plans, sponsored insurance coverage to benefit-by-benefit comparison of the stand-alone dental arrangements are Medicaid beneficiaries. For these proposed plan to one or more of the very often offered as a supplemental section 1115 demonstration programs, other benchmark options listed in this coverage that is separate from medical some States have required beneficiaries section or to the State’s standard full care coverage. The commenter indicated to provide proof of premium assistance Medicaid coverage package under that this option would align Medicaid payments. Then, after such proof is section 1905(a) of the Act, as well as a more closely with private market received, the State reimburses the full description of the population that insurance options and give States more beneficiary directly. Some States use a would be receiving the coverage. In control over their Medicaid benefit voucher system in which they provide addition, the State should submit any packages. a monthly voucher directly to the other information that would be The commenter requested that CMS beneficiary for the premium payment in relevant to a determination that the provide guidance to the States with purchasing the employer sponsored proposed health benefits coverage respect to ‘‘additional benefits’’ such as insurance. We are not specifying the would be appropriate for the proposed ‘‘dental coverage.’’ The commenter way in which States operationalize population. The scope of the Secretary- recommended the rule be amended to employer sponsored insurance approved health benefits package will include an additional paragraph that benchmark plans; however, we provide be limited to benefits within the scope would provide that States have the this information for consideration. of the categories available under a option to provide additional benefits Comment: One commenter supported benchmark coverage package or the that specifically include dental benefits the inclusion of wrap-around services in standard full Medicaid coverage that may be offered as a supplement to general and wrap-around services for package under section 1905(a) of the medical care coverage. employer sponsored insurance plans as Act. Response: The House Conference an option available to States, but does To the extent that a benchmark Report 109–362 provided for the not support a requirement for additional coverage plan that is used as the language that benchmark or benchmark- wrap-around services. The commenter comparison for the Secretary-approved equivalent coverage would include requested that language be added to benchmark plan provides for market ‘‘qualifying child benchmark dental describe the permissibility of various innovations such as high deductible coverage.’’ The conference agreement types of market innovations in coverage health plans, health savings accounts, removed this reference. Thus, the final such as high deductible plans, health consumer-directed plans, and/or provisions of section 1937 of the Act savings accounts, consumer-directed wellness plans, we would consider includes no such requirement for the plans and wellness plans or that there these on a case-by-case basis as inclusion of dental coverage as wrap- be language added indicating such components included in a Secretary- around or additional services. In fact, market innovations are acceptable as approved benchmark option. It should section 1937 of the Act provides no ‘‘Secretary-approved coverage’’ through be noted that CMS has approved nine examples of wrap-around or additional a State plan amendment. benchmark programs. Of these nine, six coverage. The rule provides that Response: Section 1937(a)(1)(C) of the have been approved as Secretary- additional or wrap-around services do Act provides that wrap-around or approved programs. At least one of the not need to include all State plan additional benefits are options that can Secretary-approved plans includes such services but would be health benefits be added by the State as additional innovations as high deductible health that are of the same type as those benefits to benchmark or benchmark- plans. covered under the benchmark or equivalent coverage. Any wrap-around We did not receive any comments to considered to be health benefits under services that are added do not need to § 440.355 Payment of premiums. the Medicaid statute. include all State plan services; however, Therefore, § 440.355 will be adopted as We do agree that dental coverage wrap-around services must be within written in the proposed rule of February could be added to benchmark or the scope of categories of services 22, 2008. benchmark-equivalent benefit plans. covered under the benchmark plan, or J. Section 440.360 State Plan Further, it is possible that, because of described in section 1905(a) of the Act. the plan options that have been The only requirement for wrap- Requirement for Providing Additional Wrap-Around Services identified by Congress as benchmark around services is at section coverage, dental services may already be 1937(a)(1)(A)(ii) of the Act, which Comment: A dental provider covered services in these plans. provides that if children under the age indicated that the proposed rules give If the commenter is concerned that of 19 are receiving services in a States the ability to create new benefit children will not receive dental benchmark or benchmark-equivalent packages tailored to different coverage, we wish to point out that benefit plan, they are entitled to EPSDT populations and that States have the children under the age of 19 must services as defined in section 1905(r) of flexibility to provide ‘‘wrap-around’’ receive EPSDT services consistent with the Act and so must receive medically and ‘‘additional benefits.’’ The section 1905(r) of the Act either as part necessary services consistent with commenter noted that CMS cited in a of, or as wrap-around to, the benchmark EPSDT either as services provided in press release ‘‘dental coverage’’ as an plan. Therefore, dental coverage will be the benchmark or as wrap-around to the example of ‘‘additional benefits’’ but, in provided to children under the age of 19 benchmark plan. the actual language of the proposed rule enrolled in benchmark plans. We have further provided in § 440.330 there are no examples or reference to that Secretary-approved coverage can be ‘‘dental coverage.’’ Further, the K. Section 440.365 Coverage of Rural offered as benchmark coverage, commenter noted that the conference Health Clinic and Federally Qualified consistent with the DRA. This coverage report to the DRA includes guidance to Health Center (FQHC) Services must be appropriate to meet the needs States by explaining that both Comment: One commenter was of the targeted population. We have benchmark and benchmark-equivalent concerned that the proposed rule only

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stipulated that States with benchmark contract with an FQHC to provide such Response: The language included in plans need only assure that these services, and we encourage States to the rule allowing for States to offer individuals have access through such contract with FQHCs as providers. benchmark or benchmark-equivalent coverage and that FQHCs are to be We did not receive any comments to health care coverage without regard to reimbursed for such services as § 440.370 Cost-effectiveness. Therefore, statewideness is based on the DRA provided under the FQHC we will adopt § 440.370 as written in language providing that reimbursement requirements found in the proposed rule of February 22, 2008. ‘‘notwithstanding any other provision of section 1902(bb) of the Act. The L. Section 440.375 Comparability Title XIX’’ States can offer medical commenter indicated further concern assistance to certain Medicaid that CMS did not elaborate further on Comment: One commenter beneficiaries through benchmark or these requirements, and particularly, encouraged CMS to require benchmark equivalent benefit packages. that it did not lay out minimum steps comparability across traditional We interpreted this ‘‘notwithstanding a State must take to assure that these Medicaid and Medicaid benchmark language’’ to provide that States could patient and health center protections are alternatives. offer benchmark or benchmark- effectively implemented. The Response: The language included in equivalent coverage to certain Medicaid commenter believed it is important that the rule allowing for States to offer populations, considering different the final rule and preamble make clear benchmark or benchmark-equivalent benefit packages, and to different that there are minimum steps a State health care coverage without regard to regions within the State. This provision must take to be in compliance with comparability is based on the DRA also gives meaning to the language these FQHC statutory requirements. language providing that permitting States to offer benchmark or Specifically, the commenter asked ‘‘notwithstanding any other provision of benchmark-equivalent coverage to that it should be clear that recipients Title XIX’’ States can offer medical certain, but not all, Medicaid who are mandatorily or voluntarily assistance to certain Medicaid populations. enrolled in a benchmark plan: (1) beneficiaries through benchmark or For example, States could craft Remain eligible to receive from an benchmark-equivalent benefit packages. benchmark options that provide FQHC all of the services included in the We interpreted this ‘‘notwithstanding individuals with a benefit in an urban definition of the services of an FQHC, as language’’ to provide that States could area of the State that is different from provided in section 1902(a)(2)(C); and offer benchmark or benchmark- the benefit offered to individuals in the (2) must be informed that one or several equivalent coverage to certain specified rural area of the State. Moreover, States of the providers by whom they may Medicaid populations, considering can test new concepts in pilot areas choose to be treated under this coverage different benefit packages, and to before expanding the benchmark is (or are) an FQHC. The commenter different regions within the State. This program to the entire State. We believe asserted that, to the extent these same provision gives meaning to the statutory this provides that States can better meet individuals receive benchmark language permitting States to offer the needs of their Medicaid populations, coverage, both the State and the benchmark or benchmark-equivalent and we further believe that this is benchmark plans must be encouraged to coverage to certain, but not all, consistent with Congressional intent in contract with FQHCs as providers of Medicaid populations. establishing maximum flexibility for services to these enrolled Medicaid For example, States could craft benchmark benefit options. populations. These FQHC(s) must be benchmark options that provide N. Section 440.385 Freedom of Choice identified by name. The commenter individuals with a benefit that integrates further stated that, in the event the acute care and long term care services Comment: One commenter noted that benchmark plans identified do not and a different benefit that provides for CMS protects the free choice of contract with an FQHC, enrollees must traditional State plan services with the emergency services providers but failed be informed that they still may receive addition of disease management to do so for family planning services Medicaid covered services from FQHCs. services. We believe this provides that providers. The commenter urged CMS In the preamble and final rule, the States can better meet the needs of their to preserve the free choice of family commenter provided that CMS should Medicaid populations, and we further planning services providers by underline to the States the importance believe that this is consistent with amending the rule to include a of full compliance with the FQHC Congressional intent in establishing provision preserving the free choice of reimbursement requirements of section maximum flexibility for implementing family planning providers. The 1937(b)(4) of the Act and § 440.365. The benchmark benefit options. commenter believes that this has been a commenter added that adoption of these long standing policy of the Congress and M. Section 440.380 Statewideness recommendations is important to assure the Medicaid program. that the requirements of section Comment: One commenter is The commenter added that the 1937(b)(4) of the Act are met. concerned that States are given the proposed rules would permit States to Response: We agree with the option to amend their State plan to deny freedom of choice of a provider for commenters and we have required in provide benchmark plan coverage to managed care enrollees seeking family § 447.365 that if a State provides Medicaid recipients without regard to planning services and supplies. The benchmark or benchmark-equivalent statewideness. This proposed regulation commenter argued that this provision coverage to individuals, it must assure would likely result in health care lacks any basis in the statute and is that the individual has access, through disparities among individuals living in contrary to the clear, repeated that coverage or otherwise, to rural different parts of the State, has no basis articulated intent of Congress. health clinic services and FQHC in the statute, and should therefore be The provider asserted that provider services and that payment for these excluded from the final regulations. The freedom of choice is critical because of services must be made in accordance commenter stated that the proposed the potentially sensitive nature of the with the payment provisions of section § 440.380 should be revised to ensure service. The commenter argued that, 1902(bb) of the Act. We also agree that that beneficiaries across the State are unable to obtain confidential services individuals always have access to FQHC not subject to disparities in health care from the provider of their choice, some services, even if the State does not services. managed care enrollees may forgo

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obtaining family planning services ‘‘notwithstanding any other provision of equivalent packages consistent with the entirely. This would threaten Title XIX,’’ States can offer medical intent of the DRA while still providing beneficiaries’ access to high quality, assistance through the use of alternative that individuals continue to receive confidential reproductive health care benchmark benefits to certain Medicaid quality health care. and set a precedent of inequity between beneficiaries. We believe that Congress O. Section 440.390 Assurance of beneficiaries in fee-for-service programs intended for States to have a great Transportation and beneficiaries in managed care plans. amount of flexibility to tailor benefit The commenter noted that Congress packages appropriate to specified Comment: One commenter agreed has clearly indicated that while States groups of Medicaid recipients. We also with the interpretation of the may require Medicaid beneficiaries to believe that Congress intended that notwithstanding language to ‘‘bypass’’ enroll in managed care plans and obtain efficiency and cost-effectiveness should the assurance of transportation, care from providers affiliated with those be maintained in implementing State including the elimination of non- plans, an exception should be made for Medicaid programs. Thus, we have emergency medical transportation individuals seeking family planning. required in § 440.370 that benchmark or (NEMT). The commenter noted that the The commenter also noted that Federal benchmark-equivalent coverage must be ability of States to exclude NEMT regulations at § 431.51 state, ‘‘A provided in accordance with economy services in their benchmark benefits is recipient enrolled in a primary care case and efficiency principles. Selective evident not only from the broad management system, a Medicaid MCO, contracting of providers affords the language of the statute but also from or other similar entity will not be greatest amount of flexibility, works to Congressional intent. The commenter restricted in freedom of choice of provide beneficiaries with continuity of noted that one of the stated purposes of providers of family planning services.’’ care, and is cost-effective. section 6044 of the DRA is to allow The commenters urged the Department Comment: One commenter noted that States to offer benefit packages that to revise § 440.385 to reflect that CMS should include an ‘‘any willing mirror commercial packages. provider freedom of choice for family provider’’ provision in Medicaid Response: We agree that offering planning should be retained. contracts for alternate plans that allow benchmark or benchmark-equivalent Response: We agree. Accordingly, we Medicaid participating providers the benefit packages without regard to the have revised the regulation to ensure opportunity to continue serving those assurance of transportation is consistent that selective contracting does not apply who are required by the State to enroll with the benchmark options that to family planning services providers. in a benchmark plan. Congress specified: Federal Employees Comment: One commenter requested Response: We are not requiring States Health Benefit Plan equivalent coverage, that CMS explain the concept of to incorporate an ‘‘any willing provider’’ State employees coverage, and coverage ‘‘selective contracting’’ and provide requirement when selectively offered by an HMO in the State with the more detail as to how this would be contracting for benchmark or largest insured commercial non- operationalized under benchmark plans. benchmark-equivalent benefits. We Medicaid population. These benchmark Response: Selective contracting is a believe that the protections we have plans generally do not pay for NEMT to term usually referred to in the context incorporated into the selective and from medical providers in all of section 1915(b)(4) waiver programs. contracting provisions at § 440.385 are instances. Since section 1937 of the Act Selective contracting provides States sufficient to ensure beneficiary access to gives States the flexibility to provide with the opportunity to contract with benchmark or benchmark-equivalent benefits that are similar to commercial certain providers so long as certain benefits. And, even under the selective packages, it would appear inconsistent other criteria are maintained. contracting provisions, States have the with that flexibility to require the States Specifically, the State must ensure that option to provide that ‘‘any willing to provide NEMT that the selected in order to selectively contract with provider’’ can provide services to benchmark package do not offer. providers, the selective process does not individuals who enroll in benchmark Comment: A preponderance of restrict providers in emergency plans, so long as the provider is a commenters, however, disagreed with situations; is based on reimbursement, qualified provider that meets the criteria the provision in the rule that would quality and utilization standards under established in title XIX and in Federal allow States the option to exclude the State plan; and does not regulations as a qualified provider, and NEMT as a benefit under a benchmark discriminate among classes of providers agrees to accept the reimbursement, and benchmark-equivalent plan. on grounds unrelated to their quality, and utilization standards set Generally, these comments were demonstrated effectiveness and forth in the State plan. submitted by transportation providers, efficiency in providing benchmark This would mean that States can medical providers, and Medicaid benefit packages. Also, all providers contract with specific providers in beneficiaries, particularly Medicaid must be paid on a timely basis offering specific services; for example, beneficiaries who rely on dialysis consistent with Federal regulations at States could contract with a dental treatments. § 447.45. States previously requested managed care plan to provide Medicaid Most of the commenters believed that section 1915(b)(4) waiver authority for beneficiaries with dental services. We the goals of the Medicaid program selective contracting, but now because recognize that individuals may have would be undermined if needy of the flexibilities outlined in the DRA, concerns with the flexibility granted individuals were unable to get to and we will provide that States can herein that States can selectively from healthcare services and such an selectively contract with providers in contract with providers if certain option would create a barrier to care. offering benchmark benefit coverage conditions are met. However, over the They asserted that assurance of without requesting a 1915(b) waiver. By years States have selectively contracted transportation is a vital component of using State plan authority, the burden with providers and we believe the Medicaid program and is of for requesting waiver renewals every 2 individuals continue to receive quality particular importance to mentally and years would be eliminated. care. We believe that to allow States the physically disabled and elderly patients. We believe the authority to provide option to selectively contract with They expressed concern that vulnerable for selectively contracting is as a result providers gives States the flexibility to populations might not receive medically of the DRA language that provides that provide for benchmark or benchmark- necessary and often life sustaining

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services because of their difficulty to problems, an increase in the use of to provide NEMT will be great enough access the needed care. For example, emergency medical services, and an to increase Medicaid costs. one commenter stated that, in the case increase in long term nursing home To the extent that the commenters are of patients with ESRD, many patients admissions. A number of these correct that noncoverage of NEMT will would be unable to access dialysis commenters cited a 2006 Cost Benefit lead to higher eventual costs, we believe services. Analysis conducted by the Marketing that States will respond by ensuring Response: We disagree that Institute of Florida State University coverage for NEMT. It is a State’s choice benchmark and/or benchmark- College of Business as proof of the cost whether to include NEMT benefits equivalent plan options undermine the effectiveness of providing NEMT to when offering benchmark or intent of the Medicaid program and Medicaid beneficiaries. Another benchmark-equivalent coverage. It is create major barriers to access commenter cited several studies that certain States will consider the potential appropriate care. The benchmark and compared Medicaid recipients residing impact on costs and beneficiaries’ benchmark-equivalent plan options in States that do provide access to health care utilization and status when provide unprecedented flexibilities to NEMT. The commenter stated that these they make these decisions. States in an effort to create benefit studies found that access to non- Comment: One commenter stated that packages that appropriately meet the emergency transportation produces cost the number one reason that dentists and needs of their Medicaid populations. In savings and increased health care doctors do not wish to accept Medicaid order to provide States with maximum results. patients is that Medicaid beneficiaries flexibility, the rule provides that States One commenter indicated that CMS do not show-up for appointments or are can offer benchmark or benchmark- requires States to comply with economy late for appointments. If CMS does not equivalent coverage without regard to and efficiency principles in offering require transportation benefits, no- the assurance of transportation, which benchmark or benchmark-equivalent shows will increase and the result will will align these plans with today’s benefit packages to Medicaid be that fewer providers will participate health care environment. beneficiaries, but does not require non- in Medicaid. Response: We do not agree with the Generally, private health insurance emergency medical transportation in plans do not offer non-emergency commenter that not requiring NEMT benchmark or benchmark-equivalent medical transportation as a medical will result in fewer providers plans, when according to several studies benefit to enrollees. However, many participating in the Medicaid program. it has been proven that providing this private health plans do cover emergency Provider participation in Medicaid is service is cheaper overall and leads to ambulance transport, and in some cases, based on a number of reasons, including better health outcomes for Medicaid non-emergency ambulance transport for patient loads and reimbursement rates. beneficiaries. circumstances such as transporting To the extent that the commenters are beneficiaries between facilities. When a One commenter suggested that this correct that noncoverage of NEMT will State selects a private health plan that rule sets up a system that would limit lead to lower provider participation, we provides coverage of emergency mileage payments to drivers for non- believe that States will respond by ambulance and/or non-emergency emergency doctor visits. The commenter ensuring coverage for NEMT. It is a ambulance transport, the State is indicated that medical mileage is State’s choice whether to include NEMT required to follow the coverage policy funded in part to drivers who transport benefits when offering benchmark or for transportation that is contained in people for medical care on a non- benchmark-equivalent coverage. It is the private health plan. emergency basis. certain States will consider the potential If, however, the private health plan Response: Generally, the populations impact on provider participation when does not provide emergency that are mandated to enroll in a they make these decisions. transportation or NEMT benefits, the benchmark program are healthier and Comment: Many of the commenters State may choose to provide some or all require medical services less frequently focused on the impact that the proposed transportation assistance as a wrap- than most Medicaid eligibles. Moreover, regulation would have on dialysis around service to the benchmark plan. children who are enrolled in benchmark patients who require 3 weekly trips to To date, nine States have approved or benchmark-equivalent coverage will and from dialysis facilities in order to benchmark State plans. Of these nine continue to receive NEMT services survive. They noted that effective care States, only three do not provide NEMT because NEMT is required under of ESRD patients requires meticulous services to beneficiaries enrolled in EPSDT. The most vulnerable coordination of dialysis treatment and benchmark programs. individuals are statutorily exempt drug therapy with frequent and It is, therefore, important to recognize individuals, such as those with specialized care. Dialysis patients often that section 1937 of the Act contains disabilities or special medical needs, have multiple co-morbidities and, protections for children and exempt who cannot be mandated to enroll in a therefore, require frequent individuals. Children will continue to benchmark benefit plan but rather must transportation to multiple services. The have access to NEMT as an EPSDT be provided the choice to enroll, severity of the complications that benefit. Exempt individuals will have including a comparison of the benefits develop due to missed treatments is an informed choice to determine in the benchmark or benchmark- often life threatening. Elimination of whether enrollment in a alternative equivalent plan versus those in the transportation services would make it benefit package is advantageous, and traditional State plan package. If exempt very difficult and often impossible for may take into account the availability of individuals choose to enroll in a plan beneficiaries with ESRD to consistently NEMT in making that election. that does not cover NEMT services, access the frequent dialysis services that Comment: Several commenters noted these individuals have the right to sustain their lives. that elimination of the requirement to disenroll at any time if they find that Many commenters stated that provide transportation would actually they need transportation assistance. individuals with physical or mental drive up Medicaid costs because Because the population for which disabilities have difficulty using public medical visits would become less NEMT may not be provided could be transportation and require specialized frequent, resulting in a higher incidence very limited, we do not agree that the transportation that would otherwise not of more serious and costly medical impact of allowing States to choose not be available should State Medicaid

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programs be allowed to stop providing optimal readiness standards for and these policies make it less likely transportation. For many beneficiaries, emergency transports. Without adequate that there would be abuse on the part of the cost of frequent trips in specialized reimbursement from Medicaid for non- beneficiaries. vehicles would be unaffordable. Often emergency transports, many ambulance With regard to the comment that CMS beneficiaries live in rural areas where providers, especially those in rural implement the same ‘‘medically the only available transportation to and areas, would cease to stay in business, necessary transportation’’ guidelines for from medical appointments is provided causing a serious reduction in the the Medicaid program that already exist through the Medicaid program. Without overall availability of ambulance and govern non-emergency ambulance Medicaid transportation services, many services. Many commenters stated the transportation for Medicare patients, beneficiaries would be unable to access provision would likely cause over- because commercial insurance almost needed care and ultimately would utilization of emergency ambulance universally uses these guidelines as the require more costly services, costly services, since beneficiaries would need benchmark for reimbursement for non- emergency care, and expensive to rely more frequently on more emergency ambulance transportation, emergency ambulance services and/or expensive emergency ambulance we do not believe that it is necessary to expensive non-medical wheelchair van transport. One commenter suggested require in this regulation specific care. that CMS implement the same guidelines that are universally used by Other commenters indicated that co- ‘‘medically necessary transportation’’ commercial insurance. Due to the occurring physical health conditions guidelines for the Medicaid program benchmarking requirements, services in such as diabetes or heart disease, as well that already exist and govern non- universal use will probably be included as mental health conditions such as emergency ambulance transportation for in benchmark or benchmark-equivalent depression and anxiety affect an Medicare patients, because commercial plans. individual’s ability to drive. insurance almost universally uses these Comment: Many commenters Several commenters indicated that guidelines as the benchmark for indicated that the proposed rule would people suffering with HIV/AIDS, some reimbursement for non-emergency shift financial responsibility for in wheel chairs, others who are ambulance transportation. Medicaid non-emergency transportation extremely fragile or elderly, have One commenter noted that the GAO to non-profit and municipal fire service- monthly office visits where they are has found that the current Medicare based EMS systems, ADA paratransit assessed and treated. To remove their rates for ambulance transportation is on programs, beneficiaries, beneficiaries’ only means of free transportation will average 6 percent below the cost of families, and other segments of the take away their compliance with providing care. Medicaid rates are population who often do not have medical office treatment. currently even less. Ambulance sufficient funds to pay for trips to and Response: As we stated in a previous transportation is a vital service for from providers. The commenters response, beneficiaries with end-stage Medicaid beneficiaries, and ambulance believed that the proposed cuts in renal disease who rely on dialysis companies are currently operating transportation conflict with the treatments and beneficiaries with other under a fee schedule that does not protections afforded to the disabled physical and mental disabilities, compensate them for the cost of under the Americans with Disabilities individuals with HIV/AIDS, and those providing that care. To further reduce Act. Commenters stated the shifting of who are medically frail and elderly are the overall reimbursement to the the financial burden for Medicaid non- likely exempt populations for which ambulance providers while leaving emergency transportation to ADA mandatory enrollment in benchmark or benefits in tact for hospitals, physicians, paratransit services and local transit benchmark-equivalent plans may not and labs is unfair. Ambulance transport programs without any additional occur. If exempt individuals who is a vital link between the patient and funding constitutes an unfunded voluntarily enroll in benchmark plans these other services, and should not be mandate. determine that the plan is not meeting relegated to non-payment. Response: We continue to believe that all of their health care needs including Response: Because there are the responsibility for Medicaid NEMT NEMT, such exempt individuals must significant portions of the Medicaid will not be shifted to municipal EMS be given the opportunity to disenroll population that will still be able to systems, ADA paratransit programs, or from the benchmark program and revert receive NEMT services, even if their beneficiaries. Many beneficiaries are to traditional Medicaid at any time. State has chosen to implement the exempt from mandatory enrollment in Additionally, children under the age of benchmark plan option, we do not benchmark benefit plans and therefore 19 must be provided with EPSDT believe that the flexibility in not will continue to receive NEMT services services and thus will receive NEMT. providing NEMT to beneficiaries if they choose to remain in traditional Furthermore, the benchmark or enrolled in benchmark plans would State plan coverage. If they enroll in benchmark-equivalent plans available greatly reduce the overall availability of benchmark or benchmark-equivalent may provide NEMT services. ambulance services, nor would it coverage and determine that the Consequently, we believe that only a imperil the financial stability of coverage is not meeting their needs, very limited number of the cited ambulance services across the EMS they can revert to traditional Medicaid individuals would not be provided with community. It should also be noted that State plan coverage at any time. Also, NEMT services. Medicaid is not responsible for the children under the age of 19 will receive Comment: Many commenters stated general operation or deficit financing of NEMT because of the EPSDT that the possible elimination of public or private transportation requirements. Consistent with Federal transportation will not only decrease providers. The commenter’s assumption regulations, States are required to assure access to healthcare but would imperil that the elimination of NEMT would non-emergency transportation only the financial stability of ambulance likely cause over-utilization of when the beneficiary has no other services across the Emergency Medical emergency ambulance services is means of transportation. Services (EMS) community. EMS unfounded. States as well as private Comment: Several commenters stated providers depend on reimbursement insurers have in place policies that under section 1937 of the Act, a from non-emergency transports to stipulating when transport by benchmark-equivalent package must sustain operational costs and maintain emergency ambulance is appropriate, offer a specific range of services set forth

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in § 440.335(b)(1)–(5) of the proposed encourages use of a brokerage program, transportation provisions are regulation and that the majority of while at the same time provides contradictory. qualifying benchmark plans cover guidance on the elimination of non- Moreover, as noted below, the fact emergency ambulance services. To emergency medical transportation in that States have options to operate ensure that enrollees in benchmark- benchmark or benchmark-equivalent fiscally sound transportation programs equivalent plans receive coverage that is plans. simply indicates that the flexibility with qualitatively equivalent to benchmark Additionally, the commenter believed respect to benchmark and benchmark- plans that provide emergency that the transportation benefit currently equivalent coverage will not necessarily ambulance transportation, CMS should operates in a fiscally sound manner. As result in the elimination of needed require benchmark-equivalent plans to currently structured, the commenter transportation benefits. cover emergency ambulance asserted that the transportation benefit Comment: A few commenters stated transportation. is cost effective in most States. The that in the proposed rule CMS proposed Response: Benchmark and commenter noted that States generally to create more ‘‘flexibility’’ for States by benchmark-equivalent plans model the limit reimbursement for transportation allowing them to craft more mainstream private health insurance plans which to the least costly form of transport that packages like those found in the private frequently cover emergency medical is medically appropriate based on the health insurance market, and private transportation. Thus, there is no need to beneficiary’s condition. Moreover, health plans do not offer transportation specifically require coverage of Medicaid beneficiaries are generally as a covered benefit for enrollees. These emergency ambulance transportation. required to use free transportation commenters disagreed with this Comment: One commenter noted that resources before the program will assumption because it assumes that instead of saving money by eliminating provide reimbursement for Medicaid patients are of equal financial non-emergency transportation, CMS transportation. The commenter stated standing with enrollees of private health should do a better job of policing the that, consequently, patients who receive care plans in their ability to assume the system to reduce fraud and abuse. transportation under State Medicaid cost of transportation to and from health Another commenter indicated that programs are required, as a condition of care services and that private health coordinating transportation would coverage, to have no other means of plans do not provide non-emergency reduce the cost of providing getting to or from providers of medical ambulance transportation, when in fact transportation. care. they do. Response: Coordination and Response: CMS understands that Response: The DRA provided that monitoring of the provision of there are two separate provisions in the benchmark or benchmark-equivalent transportation services is not relevant to DRA, one providing for a brokerage plans be available to States at their this rule. We agree that the reduction of program for non-emergency medical option and States are not required to fraud and abuse by States should always transportation and the other offering implement these provisions. If States be considered by States when designing benchmark or benchmark-equivalent choose to offer benchmark or or implementing their State Medicaid benefits to certain Medicaid benchmark-equivalent benefit packages program. beneficiaries. These benchmark plans to Medicaid beneficiaries, States must Comment: One commenter believed can be offered without regard to the comply with the requirements of section that during the DRA process CMS assurance of transportation, including 1937 of the Act including EPSDT for attempted to end the Medicaid non-emergency medical transportation. children under age 19 and voluntary transportation service. This attempt was CMS understands the confusion this enrollment and informed choice to turned back by Congress with the clear may cause; however, it should be noted exempt individuals. Further, States can intention that transportation was that in adopting these transportation offer additional or wrap-around services essential for adequate access to health provisions in the DRA, Congress to beneficiaries. If NEMT and services. It is clear that the proposed provided States with additional emergency ambulance services are rule is contrary to the intent of flexibilities to redesign their Medicaid included in the benchmark or Congress. programs in order to maintain benchmark-equivalent plan the State Response: We are unaware of any sustainability. These options are has chosen to offer Medicaid attempt by CMS during this regulatory intended to be used by States to beneficiaries, these transportation process to end the requirement for improve the delivery of health care to services should be provided to the States to assure Medicaid non- Medicaid beneficiaries as well as to beneficiaries enrolled in the benchmark emergency transportation. On the reduce overall costs, including or benchmark-equivalent plan. States contrary, on August 23, 2007, CMS improving the delivery of non- also have the option of providing NEMT published a rule on the ‘‘State Option to emergency medical transportation. and/or emergency transportation Establish a Non-Emergency Medical The brokerage program option for services as a wrap-around benefit. Transportation Program.’’ When delivering non-emergency medical Comment: One commenter stated that implemented, this regulation will transportation and the benchmark or CMS did not conduct an analysis of the enhance the ability of States to provide benchmark-equivalent benefits option impact that excluding the transportation NEMT by offering the new option to that allows States to deliver benchmark benefit would have on the populations provide more cost effective non- health plans without regard to the affected or on the States. The emergency transportation as a medical assurance of transportation do not commenter also noted that in the service through a brokerage program. contravene each other as the commenter ‘‘Regulatory Impact Analysis,’’ CMS Comment: One commenter noted the suggests. These are merely options that states that they are under no obligation proposed rule on the State Option to are part of an array of improvements to assess anticipated costs and benefits Establish a Non-Emergency Medical and cost saving measures that can be of this rule, even if the rule may result Transportation Program providing selected by States. Because there is no in expenditures by the State, local, or guidance on section 6083 of the DRA requirement for a State to select either tribal governments or the private sector, and wonders how CMS on one hand is the brokerage program option or the because States are not mandated to providing guidance regarding non- benchmark or benchmark-equivalent participate in the benchmark plans. This emergency medical transportation and option we do not believe that these precludes any discussion of the shift in

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costs to other agencies that may result assumes that ‘‘to and from providers’’ information for billing or as a condition from the exclusion of transportation means non-emergency medical of prompt payment, and that benchmark benefits. The commenter stated that in transportation; however, this may not and benchmark-equivalent plans be the proposed rule CMS says that shifting always be the case. According to the required to pay for emergency the financial burden to the vulnerable commenter, transport is often required ambulance transportation at a rate not Medicaid populations is simply a matter for Medicaid patients who develop less than the State Medicaid approved of personal responsibility. The critical conditions that require rate. One commenter noted that if CMS commenter believed that the immediate care beyond the scope of the intends to make this a rationale for the elimination of transportation is a initial facility, resulting in the patient elimination of Medicaid benefits, it scenario for less effective, more being transported to another facility for should first study this issue and release expensive health care because fewer care. If States are no longer required to its findings. people will seek preventive care since ensure necessary transportation for Response: We acknowledge that many they won’t have transportation and will recipients to and from providers, the private health plans cover emergency therefore end up needing more State will likely not cover this type of medical transport and some also cover expensive medical services. transport under a benchmark or non-emergency ambulance transport. Response: We disagree with the benchmark-equivalent plan. This type of Therefore, it is highly likely that commenter. In the ‘‘Regulatory Impact transport fits the parameters of the benchmark plans will cover these Analysis,’’ we made two key regulation because it is from one services. However, we maintain that assumptions: (1) The per capita cost of provider to another, but the regulation private health plans do not generally benchmark plans relative to per capita does not make the distinction that it cover transportation to and from costs for Medicaid, and (2) the rate at must be a non-emergency transport. outpatient providers for routine which these plans will be used. Given Other commenters believed services. the amount of flexibility States have in ambulance service, whether considered In terms of contracting with designing these plans, we do not have non-emergency or emergency providers, the contracting process information that drills down into transportation, should be required in all between States and providers is a State service-level estimates. Subsequently, benchmark or benchmark-equivalent process. CMS is not intending to enter we did not specifically account for the plans. into that process as part of this rule. impact that not providing NEMT would Response: States have broad Comment: Many of the commenters have. In our opinion, the proposed rule flexibility in designing non-emergency voiced concerns that CMS has provides States with so much flexibility and emergency transportation programs overreached in its rationale for allowing it would not be possible to anticipate for the Medicaid population. Consistent States to opt-out of the transportation how many States might have benchmark with this flexibility, we believe that requirements, and that CMS did not plans that would have an impact on States are best suited to define the support its rationale. Several transportation. Furthermore, since there differences between emergency and commenters stated that CMS did not are significant portions of the Medicaid non-emergency transportation and when have the legal authority to allow States population that will still be able to and under what conditions it is to choose not to provide non-emergency receive transportation services, even if appropriate to transport beneficiaries by transportation. One commenter stated their State chooses to implement a ambulance. In determining this that § 440.390 exceeds the Department’s benchmark or benchmark-equivalent difference, we expect States to remain administrative authority, results in an plan that has limited or no consistent with the definition of impermissible legislative action by the transportation coverage, we do not transportation found in § 440.170. agency, and violates the separation of believe the impact as being significant Additionally, experience has shown powers doctrine of the Constitution. since beneficiaries have always been us that many of the States that have Generally, an executive agency’s personally responsible for seeking submitted benchmark State plan authority is limited to implementing alternative transportation before amendments have included laws and to clarifying ambiguities in requesting assistance from the Medicaid transportation as a covered benefit, even statutes passed by Congress (Chevron program. when the private plan does not provide U.S.A. v. Natural Resources Defense Comment: Several commenters noted a transportation benefit. Council, 467 U.S. 837 (1984)). the lack of definition addressing the Comment: A number of commenters A number of commenters noted that difference between emergency and non- disagreed with the assumption that non- CMS’s interpretation of the language in emergency transportation. Several other emergency transportation is not covered section 1937 of the Act is ‘‘overbroad’’ commenters requested that CMS by private health insurance. They stated because it permits CMS too much provide a universal definition of non- that many private health insurance discretion. Several commenters also emergency transportation, because plans do provide coverage for non- stated that in believing that it could without this guidance there would be emergent ambulance transportation change a long standing Medicaid policy chaos and an inability to adjudicate when medically necessary. One on the assurance of transportation, CMS issues and disputes over what is and is commenter stated that CMS is ignoring wrongly interpreted the statute and had not non-emergency transportation. the fact that many commercial plans not supported its rationale for allowing One commenter urged CMS to require have provided services to Medicaid States to waive the provider-to-provider that benchmark and benchmark- beneficiaries and are thus equipped to transportation requirement. A number equivalent plans cover emergency provide the transportation benefit. The of commenters believed that allowing ambulance transportation and do so by same commenter requested that if the States to choose not to provide clarifying that the reference to provision on non-emergency transportation was inconsistent with ‘‘emergency services’’ in proposed transportation remains in the final Medicaid’s mission of increasing access § 440.335 includes emergency regulation, CMS should require that no to healthcare. Many commenters ambulance services. Several benchmark or benchmark-equivalent indicated that exempting States from the commenters stated the regulation fails to plan be allowed to require emergency transportation requirement set forth in make a distinction between emergency ambulance services to join a network as § 431.53 ‘‘renders those provisions to and non-emergency transport and CMS a condition of obtaining necessary mere surplusage’’ and that CMS’s

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interpretation affords CMS the essential to ensuring appropriate a much higher cost. One commenter unfettered ability to make ad hoc coverage to meet the needs of the target believed that CMS should withdraw the determinations about what laws and population. regulation and allow the Coordinating regulations will apply to benchmark and Comment: Several commenters Council on Access and Mobility, which benchmark-equivalent plans. Many mentioned earlier that CMS offered a was established by Executive Order commenters stated that the definition of ‘‘special medical needs’’ 13330, to develop the benchmark policy requirements in § 431.53 exist to protect but pointed out that CMS did not offer on non-emergency transportation. beneficiaries and to ensure that they a definition of ‘‘medically frail.’’ The Response: We do not believe that this receive access to healthcare. Also, CMS commenters urged CMS, in considering rule contravenes Executive Order 13330, should not be permitted to allow States transportation, to include in any which requires coordination of to deprive Medicaid recipients of definition of ‘‘medically frail’’ a transportation among Federal agencies, necessary transportation based upon an recipient who might require medically but does not supersede program illogical interpretation of a provision of necessary ambulance transportation due coverage limitations or purposes. In the Act. to their physical or mental condition, other words, section 1937 simply does Several commenters stated that CMS illness, injury, disability, in a bed not require NEMT to be included as a is providing sufficient flexibility to confined or wheelchair confined state, benefit or administrative activity of States through the option to provide such that transportation by any means alternative benefit programs, and benchmark or benchmark-equivalent other than ambulance would likely Executive Order 13330 does not change coverage without regard to jeopardize the patient’s health or safety. that circumstance. comparability, statewideness, and Response: As stated earlier, we have Comment: One commenter, freedom of choice. The commenter did not defined ‘‘medically frail’’ because submitting on behalf of the Alaska not see how relieving the State of the CMS wishes to maintain the State Natives (ANs) Tribal Health requirement to assure transportation to flexibility; however, we encourage Consortium, wrote that in Alaska nearly and from providers offers any additional States to consider all of these examples 40 percent of the Medicaid eligible flexibility. in their definition, when considering populations are ANs. The vast majority Response: We disagree with the that these individuals may be in need of of AN villages are accessible only by commenters that believe we do not have transportation. plane, boat, snow-machine, or dog-sled. authority to allow for States to offer Comment: Several commenters stated Due to the extreme poverty found in AN benchmark or benchmark-equivalent the proposed elimination of villages, Congress authorized tribal plans without regard to the assurance of transportation was discriminatory health programs to bill the Medicare transportation. Section 1937 permits because individuals with special needs and Medicaid programs for covered States to offer benchmark or benchmark- are not able to access transportation services. Tribal health services rely equivalent coverage ‘‘notwithstanding services and will be de facto denied the heavily on Medicaid and Medicare any other provision of Title XIX.’’ We medical services that other Medicaid payments. The commenter is have interpreted this language to recipients receive. Also, the commenters profoundly concerned that the proposed provide a basis for flexibility with asserted that the ‘‘notwithstanding any rule would allow States to curtail regard to requirements related to the other provision of this title’’ will not Medicaid coverage of crucial health scope of benefits available through pass a challenge in the court system services currently provided to ANs and benchmark or benchmark-equivalent because it discriminates against would eliminate coverage of coverage to provide that such benefits disabled individuals. transportation needed by ANs to access can be offered without regard to the Response: We disagree with the medical services. requirement at § 431.53 to assure commenters that the flexibility to not Response: We understand that Alaska transportation to and from covered assure transportation is discriminatory has unique transportation needs and medical services. This regulation is thus because this requirement applies to all that the vast majority of AN villages are consistent with the statutory language, individuals enrolled in benchmark or accessible only by plane, boat, snow and the overall purpose to ensure State benchmark-equivalent plans (with machine, or dog-sled. We are also aware flexibility in offering benefits. Moreover, certain limitations). All individuals are that tribal health services provide the the assurance of transportation is not a treated equally including all exempt majority of health care to Medicaid statutory benefit, but is a regulatory individuals. Disabled individuals can eligible tribal populations. Before the requirement that should not be given only enroll in a benchmark program that passage of the DRA, Alaska provided precedence over the statutory flexibility does not include NEMT by choice. transportation through a broker under expressly provided by Congress. The Comment: Several commenters noted section 1915(b) authority. In 2006, statute itself provides that States can that Executive Order 13330 requires Alaska converted its non-emergency impose alternative benchmark or coordination for elderly and transportation waiver to the State plan benchmark-equivalent benefit packages handicapped transportation programs non-emergency medical transportation at their option, and must reasonably be among Federal agencies. Creating brokerage program option provided by read to include flexibility in the scope Federal DHHS standards for appropriate the DRA. of benefits including transportation service levels would promote this While AN beneficiaries have not been benefits. coordination effort and in the interests specifically excluded from mandatory We also note that the availability of of quality services, lower costs and enrollment in a benchmark plan, due to this flexibility does not mean that enhanced coordination, DHHS should the rural nature of the areas in which beneficiaries will necessarily lose develop parallel standards that would these beneficiaries live and the unique transportation benefits. States are not drive cost savings derived by transportation needs of ANs in Alaska, required to offer benchmark or competitive procurement instead of we do not believe that AN beneficiaries benchmark-equivalent coverage and, if denying services to those who need it are at risk of losing needed they do, they are not required to limit the most. Removing an essential transportation benefits. We do not coverage of transportation to and from element such as transportation in order believe it is in the interest of the State providers. As noted above, States may to save money will ultimately result in to eliminate such benefits, nor that it determine that such coverage is greater reliance on institutional care at would be consistent with appropriate

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coverage to meet the needs of the voluntarily enroll in a benchmark or does not apply to family planning targeted population. benchmark-equivalent plan, must providers. inform the individual of the benefits in IV. Provisions of the Final Regulations V. Collection of Information the benchmark or benchmark-equivalent Requirements For the most part, this final rule plan and provide a comparison of how incorporates the provisions of the they differ from traditional Medicaid While the following requirements are February 2008 proposed rule. Those State plan coverage, and document the subject to the PRA, they are currently provisions of this final rule that differ individual’s eligibility file that prior to approved under OMB# 0938–0993 with from the February 2008 proposed rule enrollment he was provided a an expiration date of October 31, 2009. are as follows: comparison of the benefit package, was Section 440.320 State Plan given ample time to make an informed Scope (§ 440.305) Requirements: Optional Enrollment for choice as to enrollment and voluntarily Exempt Individuals We have added a new paragraph (d) choose to enroll in the benchmark or at § 440.305 to provide for public input, benchmark-equivalent plan. Section 440.320(a) requires a State to: which states ‘‘Any state that opts to We have added a new paragraph (a)(4) (1) Inform the individuals that the offer alternative benchmark or to indicate that States must comply with enrollment is voluntary and that the benchmark-equivalent coverage to the requirements of § 440.320(a)(1), individual may opt out of the Medicaid beneficiaries must secure (a)(2), and (a)(3) within 30 days after a benchmark or benchmark-equivalent public input prior to the submission of determination is made that an coverage at any time and regain any State plan amendment to CMS.’’ individual has become part of an immediate access to standard full We have also added a new paragraph exempt group while enrolled in Medicaid coverage under the State plan; (e) at § 440.305 to indicate that in benchmark or benchmark-equivalent (2) Inform the exempt recipient of the implementing benchmark or coverage. benefits available under the benchmark benchmark-equivalent package, States or benchmark-equivalent benefit must comply with the managed care We have added a new paragraph (b)(1) package and provide a comparison of rules at section 1932 of the Act and 42 and (b)(2) to discuss the disenrollment/ how they differ from the benefits CFR part 438 if benchmark or opt out process and require that States available under the standard full benchmark-equivalent benefits are act upon opt out requests promptly for Medicaid program; and, (3) Document provided through managed care plans, those exempt individuals who choose to in the exempt recipient’s eligibility file except when the State demonstrates that opt out of benchmark or benchmark- that the recipient was informed in such requirements are impractical in the equivalent coverage and must have a accordance with this section and context of, or inconsistent with, process in place to ensure continuous voluntarily chose to enroll in the methods of offering coverage that is access to services while requests to opt benchmark or benchmark-equivalent appropriate to meet the needs of the out of benchmark or benchmark- benefit package. targeted population. equivalent coverage are being processed. Section 440.330 Benchmark Health Exempt Individuals (§ 440.315) EPSDT Services Requirement (§ 440.345) Benefits Coverage We have revised paragraph (f) to indicate that the definition of We have revised paragraph (a) in Section 440.330(d) requires States individuals who are medically frail and/ § 440.345 to be completely reflective of wishing to opt for Secretarial-approved or the definition of individuals with the statutory language, which indicates coverage to submit a full description of special medical needs will be left to that ‘‘The State must assure access to the proposed coverage and include a State discretion but the definition for early and periodic screening, diagnostic benefit-by-benefit comparison of the individuals with special medical needs and treatment (EPSDT) services through proposed plan to one or more of the must at least include those individuals benchmark or benchmark-equivalent three other benchmark plans specified. described in § 438.50(d)(3). Further, we plan benefits or as wrap-around benefits Section 440.340 Actuarial Report for deleted the reference to § 438.50(d)(1) to those plans for any child under 19 Benchmark-Equivalent Coverage for individuals entitled to Medicare years of age eligible under the State plan benefits as these individuals are already in a category under section Section 440.340 requires a State trying exempt individuals for whom voluntary 1902(a)(10)(A) of the Act.’’ to obtain approval for benchmark- equivalent health benefits coverage enrollment because of the requirement Comparability and Scope of Coverage described in 440.335 to submit, as part in section 1932(a)(2)(iii) of the Act. (§ 440.375) We have added a new paragraph (m) of its State Plan Amendment, an in § 440.315 to include medically needy We revised the title and text of this actuarial report. The report must or those eligible as a result of a section to indicate that States have the provide sufficient detail to explain the reduction of countable income based on option to amend their State plan to basis of the methodologies used to costs incurred for medical care in the provide benchmark or benchmark- estimate the actuarial value or, if list of populations for which voluntary equivalent coverage to recipients requested by CMS, to replicate the enrollment in benchmark or benchmark- without regard to comparability or State’s result. requirements relating to the scope of equivalent plans can occur. Section 440.345 Requirement To coverage other than those contained in Provide EPSDT Services Section 440.320 State Plan this subpart. Requirements: Optional Enrollment for Section 440.345(a)(2) requires a State Freedom of Choice (§ 440.385) Exempt Individuals to include a description in their State We have revised paragraphs (a)(1), We have redesignated paragraph (b)(3) Plan of how the wrap-around benefits or (a)(2), and (a)(3) to indicate that the as paragraph (b)(4) in § 440.385 of this additional services will be provided to State must effectively inform exempt regulation. In newly revised paragraph ensure that recipients receive full individuals prior to enrollment that the (b)(3), we have made clarifying changes EPSDT services. The description must individual has the opportunity to to indicate that selective contracting describe the populations covered and

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the procedures for assuring those duties) directs agencies to assess all Federal Medicaid costs were made using services. costs and benefits of available regulatory assumptions from the President’s alternatives and, if regulation is Budget 2007, including enrollment Section 440.350 Employer-Sponsored necessary, to select regulatory growth rates and per capita spending Insurance Health Plans approaches that maximize net benefits growth rates; Section 440.350(b) requires a State to (including potential economic, • The relative costs of the new plans set forth in the State plan the criteria it environmental, public health and safety allowed under this rule to current will use to identify individuals who effects, distributive impacts, and Medicaid spending were estimated would be required to enroll in an equity). A regulatory impact analysis based on reviews of Medicaid spending available group health plan to receive (RIA) must be prepared for major rules data and the plans described in this benchmark or benchmark-equivalent with economically significant effects rule. Additionally, we have assumed coverage. ($100 million or more in any 1 year). that not all States would immediately Section 440.360 State Plan We issued a State Medicaid Director’s use the options made available through Requirement for Providing Additional letter on March 31, 2006, providing this rule; therefore, we assume that State Wrap-around Services guidance on the new flexibilities use of these plans will continue to available to States as a result of the increase through 2011. We assume that This section requires States opting to enactment of the Deficit Reduction Act provide additional services to the use in 2006 will be about 10 percent of of 2005. This final rule simply codifies 2011-level of use; 40 percent in 2007; 60 benchmark-equivalent plans, to describe that guidance. States have already begun the populations covered and the percent in 2008; 80 percent in 2009; and implementing this provision well in 90 percent in 2010. payment methodology for these services advance of this final rule. As a result, These estimates assume that there in their State plan. while we anticipate that will be a negligible impact on State implementation of this flexibility will Section 440.390 Assurance of administration costs. As States already be economically significant, the Transportation have experience in dealing with significance is based on the changes At proposed § 440.390, a State may at alternative plan designs, including authorized by statute and not based on its option amend its State plan to through waivers or managed care plans, discretionary policies contained in the provide benchmark or benchmark- we have assumed States are equipped to rule itself. The impact of the rule will equivalent coverage to recipients implement these plans and will be part be limited to ensuring uniform policies without regard to the assurance of of their normal administrative spending. for States that implement the flexibility transportation to medically necessary afforded under section 1937 of the Act, These estimates are subject to a services requirement specified in as added by the DRA of 2005. The substantial amount of uncertainty and section 42 CFR 431.53. aggregate amount of Federal savings is actual experience may be significantly VI. Regulatory Impact Analysis estimated to be $2.3 billion from FY different. The range of possible 2006 through FY 2010. experience is greater than under most A. Overall Impact We have estimated the impact of this other rules for the following two We have examined the impacts of this rule by analyzing the potential Federal reasons. First, this rule provides the rule as required by Executive Order savings related to lower per capita option for States to use alternative 12866 on Regulatory Planning and spending that may be achieved if States plans; to the extent that States Review (September 30, 1993, as further choose to enroll beneficiaries in eligible participate more or less than assumed amended), the Regulatory Flexibility populations in plans that are less costly here (both the number of States that Act (RFA) (September 19, 1980, Pub. L. than projected Medicaid costs. To do participate and the extensiveness of 96–354), section 1102(b) of the Act, this, we developed estimates based on States’ use of these plans), Federal section 202 of the Unfunded Mandates the following assumptions: savings may be greater than or less than Reform Act of 1995 (Pub. L. 104–4), and • The number of eligible beneficiaries estimated. Second, this rule also Executive Order 13132 on Federalism and the Federal Medicaid costs of these provides a wide range of options for (August 4, 1999), and Congressional beneficiaries are based on 2003 States in designing these plans; to the Review Act (5 U.S.C. 804(2)). Medicaid Statistical Information System extent that States use plans that are Executive Order 12866 (as amended (MSIS) data; relatively more or less costly than by Executive Order 13258, which • Projections of the number of eligible assumed here, Federal savings may be merely reassigns responsibility of beneficiaries and their associated less than or greater than estimated.

ESTIMATED ANNUAL FEDERAL SAVINGS DISCOUNTED AT 0 PERCENT, 3 PERCENT AND 7 PERCENT—FROM FY 2006 TO FY 2010 [In millions]

Total 2006– Discount rate 2006 2007 2008 2009 2010 2010

0% ...... $70 $280 $460 $660 $810 2,280 3% ...... 68 264 421 586 699 2,038 7% ...... 65 245 375 504 578 1,767

We anticipate that States will phase in achieved through cost avoidance of appropriate utilization of services, and alternative benefit programs, and future anticipated costs by providing through gains in efficiencies through changes will not be fully realized until appropriate benefits based on a contracting. States will be able to take 2010. The majority of savings will be population’s health care needs, greater advantage of marketplace

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dynamics within their State. We also programs. Because States are no longer to offer individuals and families anticipate that a number of States will tied to statewideness and comparability different types of plans consistent with use this flexibility to create programs rules for non-disabled, non-aged, and their needs and available delivery that are more similar to their SCHIP non-blind populations, they will be able systems.

ESTIMATED ANNUAL STATE SAVINGS DISCOUNTED AT 0 PERCENT, 3 PERCENT AND 7 PERCENT—FROM FY 2006 TO FY 2010 [In millions]

Total 2006– Discount rate 2006 2007 2008 2009 2010 2010

0% ...... $50 $210 $350 $500 $610 $1,720 3% ...... 49 198 320 444 526 1,537 7% ...... 47 183 286 381 435 1,332

The RFA requires agencies to analyze Therefore, there is no mandate for the Medicaid beneficiaries including AI/AN options for regulatory relief of small State. We believe this final rule will not Medicaid beneficiaries. businesses if a rule has a significant mandate expenditures in that amount. B. Anticipated Effects impact on a substantial number of small Executive Order 13132 establishes entities. For purposes of the RFA, small certain requirements that an agency Before section 6044 of the DRA entities as that term is used in the RFA must meet when it promulgates a became effective on March 31, 2006, (include small businesses, nonprofit proposed rule (and subsequent final State Medicaid programs generally were organizations, and small governmental rule) that imposes substantial direct required to offer at minimum the same jurisdictions). The great majority of requirement costs on State and local standard benefit package to each hospitals and most other health care governments, preempts State law, or recipient, regardless of income, providers and suppliers are small otherwise has Federalism implications. eligibility category, or geographic entities, either by being nonprofit This final rule will not impose direct location. Some States offered alternative organizations or by meeting the SBA cost on States or local government or benefit packages to certain recipients definition of a small business (having preempt State law. The rule will under section 1115 demonstration revenues of less than $6.5 million to provide States the option to implement waivers approved by the Centers for $31.5 million in any 1 year.) Individuals alternative Medicaid benefits through a Medicare & Medicaid Services. This and States are not included in the Medicaid State plan amendment. provision allows for similar program definition of a small entity. We have Comment: One commenter questioned alternatives under the State plan determined, and the Secretary certifies, the validity of CMS’s Regulatory Impact without the constraints of a waiver. that this provision applies to States only Analysis, believing that the proposed Moreover, Medicaid families will gain and will not affect small entities. rule will cause additional continuity in coverage as family In addition, section 1102(b) of the Act administrative effort in order for AI/AN members move together from Medicaid requires us to prepare a regulatory beneficiaries to participate. and the State Children’s Health impact analysis if a rule may have a Response: CMS is required by Insurance Program (SCHIP) to, significant impact on the operations of Executive Order 12866 (September eventually, private coverage. Today, a substantial number of small rural 1993, Regulatory Planning and Review), because of the lack of flexibility in hospitals. This analysis must conform to the Regulatory Flexibility Act (RFA) Medicaid, one child may be receiving the provisions of section 604 of the (September 19, 1980, Pub. L. 96–354), Medicaid, another in SCHIP, and the RFA. For purposes of section 1102(b) of section 1102(b) of the Act, the parent has access to private coverage. the Act, we define a small rural hospital Unfunded Mandates Reform Act of 1995 With benefit flexibility in State as a hospital that is located outside of (Pub. L. 104–4), and Executive Order Medicaid programs, families could a metropolitan statistical area and has 13132 on Federalism, and the enroll under the same plan, with the fewer than 100 beds. We have Congressional Review Act (5 U.S.C. same providers and one set of determined, and the Secretary certifies, 804(2)) to conduct a regulatory analysis administrative rules. Administrative that this rule would not have a of the impact of any regulatory revision simplification can help families significant impact on the operations of to the Medicare, Medicaid, and/or State maintain health insurance coverage and a substantial number of small rural Children’s Health Insurance Program give them experience with private hospitals. before adoption of any rule. A insurance coverage that would become Section 202 of the Unfunded Regulatory Impact Analysis was important when their income rises Mandates Reform Act of 1995 (UMRA) completed for this rule. We believe above Medicaid and SCHIP eligibility (Pub. L. 104–4) also requires that there is negligible impact on State levels and mitigate the need for agencies assess anticipated costs and administrative costs since States already dependence. States with strong benefits before issuing any rule whose have experience in dealing with employer-based coverage may mandates require spending in any 1 year alternative plan designs, including emphasize family coverage premium of $100 million in 1995 dollars, updated through waivers or managed care plans. assistance. States may form larger pools annually for inflation. In 2008, that Thus, we have assumed States are by combining Medicaid recipients with threshold is approximately $127 equipped to implement these plans and their public employees. million. Because this rule does not that costs will be part of their normal mandate State participation in using administrative spending. We believe C. Alternatives Considered these benchmark plans, there is no this would be true for any State that This rule finalizes requirements for obligation for the State to make any chooses to offer benchmark or States to elect alternative Medicaid change to their Medicaid program. benchmark-equivalent plans to the benefit programs through the adoption

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of a Medicaid State plan amendment. demonstration waivers, 1915(b) waivers, to tailor both benefits and delivery The final requirements in this rule were 1915(c) waivers, or any combination methods to the eligible groups of designed to maximize State flexibility thereof. We have not elected this individuals being served. while assuring that beneficiaries will get alternative because it would be quality care that meets their needs. cumbersome for States, it will not be D. Accounting Statement Under this rule, we will permit States to consistent with the statutory use of As required by OMB Circular A–4 define the alternative benefit packages benchmark and benchmark-equivalent (available at http:// only by reference to the benchmark or coverage as reference points for www.whitehouse.gov/omb/circulars/ benchmark-equivalent standard (with permissible benefit packages, and it will the exception of the EPSDT wrap- not improve the clarity of the State plan. a004/a-4.pdf), in Table 15 below, we around benefits). We will also permit Another alternative might have been to have prepared an accounting statement States to combine an alternative benefit limit State flexibility under this showing the classification of the package with alternative benefit provision to variation in the amount, expenditures associated with the delivery methods, such as through duration and scope of benefits without provisions of this rule. This table managed care, employer-based coverage, providing authority for an integrated provides our best estimate of the or selective contracting. An alternative approach combining alternative benefits decrease in Medicaid payments as a might have been to require the State to with alternative benefit delivery result of the changes presented in this document any deviation from otherwise methods. We have not elected this rule. All savings are classified as applicable State plan requirements, alternative because an integrated transfers to the Federal Government, as much as is required under section 1115 approach allows greater State flexibility well as to States.

TABLE—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED SAVINGS, FROM FY 2006 TO FY 2010 [In $millions]

Category Transfers

Annualized Monetized Transfers ...... Year dollar Units discount rate Period covered

7% 3% 0%

2006 ¥$430.8 ¥$445.0 ¥$456.0 2006–2010

From Whom To Whom? ...... Federal Government to Beneficiaries, Providers

Year 2006 2007 2008 2009 2010

Annualized Monetized Transfers ...... ¥$70 ¥$280 ¥$460 ¥$660 ¥$810

From Whom to Whom? ...... Federal Government to Beneficiaries, Providers

Annualized Monetized Transfers ...... Year dollar Units discount rate Period covered

7% 3% 0%

2006 ¥$324.9 ¥$335.7 ¥$344.0 2006–2010

From Whom to Whom? ...... State Governments to Beneficiaries, Providers

Year 2006 2007 2008 2009 2010

Annualized Monetized Transfers ...... ¥$50 ¥$210 ¥$350 ¥$500 ¥$610

From Whom to Whom? ...... State Governments to Beneficiaries, Providers

Column 1: Category—Contains the monetized primary estimate represents Column 5: Period Covered—Contains description of the different impacts of the equivalent amount that, if paid the years for which the estimate was the rule; it could include monetized, (saved) each year over the period made. quantitative but not monetized, or covered, would result in the same net Rows: The rows contain the estimates qualitative but not quantitative or present value of the stream of costs associated with each specific impact monetized impacts; it also may contain (savings) estimated over the period and each discount rate used. unit of measurement (such as, dollars). covered. ‘‘From Whom to Whom?’’—In the In this case, the only impact is the Column 3: Year Dollar—Contains the case of a transfer (as opposed to a Federal annualized monetized impact of year to which dollars are normalized; change in aggregate social welfare as the rule. that is, the first year that dollars are described in the OMB Circular), this Column 2: Primary Estimate— discounted in the estimate. section describes the parties involved in Contains the quantitative or qualitative Column 4: Unit Discount Rate— the transfer of costs. In this case, the impact of the rule for the respective Contains the discount rate or rates used costs represent a reduction in Federal category of impact. Monetized amounts to estimate the annualized monetized Government spending on behalf of are generally shown in real dollar terms. impacts. In this case, three rates are beneficiaries. The table may also In this case, the federalized annualized used: 7 percent; 3 percent; 0 percent. contain minimum and maximum

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estimates and sources cited. In this case, 440.325 State plan requirements: Coverage must comply with the managed care there is only a primary estimate and and benefits. rules at section 1932 of the Act and part there are no additional sources for the 440.330 Benchmark health benefits 438 of this chapter if benchmark or coverage. estimate. 440.335 Benchmark-equivalent health benchmark-equivalent benefits are Estimated Savings—The following benefits coverage. provided through managed care plans table shows the discounted costs 440.340 Actuarial report for benchmark- unless the State demonstrates that such (savings) for each discount rate and for equivalent coverage. requirements are impractical in the each year over the period covered. 440.345 EPSDT services requirement. context of, or inconsistent with, ‘‘Total’’ represents the net present value 440.350 Employer-sponsored insurance methods of offering coverage of the impact in the year the rule takes health plans. appropriate to meet the health care effect. These numbers represent the 440.355 Payment of premiums. needs of the targeted population. anticipated annual reduction in Federal 440.360 State plan requirement for providing additional wrap-around Medicaid spending under this rule. § 440.310 Applicability. services. (a) Enrollment. The State may require E. Conclusion 440.365 Coverage of rural health clinic and federally qualified health center (FQHC) ‘‘full benefit eligible’’ recipients not We project that the use of benchmark services. excluded in § 440.315 to enroll in plans under this rule will result in $2.3 440.370 Cost-effectiveness. benchmark or benchmark-equivalent billion in Federal savings from 2006– 440.375 Comparability and Scope of coverage. 2010. These savings would arise as Coverage. (b) Full benefit eligible. A recipient is States use the plans described by this 440.380 Statewideness. a full benefit eligible if determined by rule to manage the costs of their 440.385 Freedom of choice. the State to be eligible to receive the Medicaid program by modifying plan 440.390 Assurance of Transportation. standard full Medicaid benefit package benefits for targeted beneficiaries. The Subpart C—Benchmark Benefit and under the approved State plan if not for actual savings will heavily depend on Benchmark-Equivalent Coverage the application of the option available the number of States that ultimately under this subpart. implement these plans, the number of § 440.300 Basis. § 440.315 Exempt individuals. beneficiaries States cover with these This subpart implements section 1937 plans, and the specific design and of the Act, which authorizes States to For recipients within one (or more) of selection of benchmark plans. provide for medical assistance to one or the following categories, the State plan For reasons stated above, we are not more groups of Medicaid-eligible may offer, but may not require under preparing analyses for either the RFA or recipients specified by the State under § 440.310, the opportunity to obtain section 1102(b) of the Act because we an approved State plan amendment benefits through enrollment in have determined that this rule will not through enrollment in coverage that benchmark or benchmark-equivalent have a significant economic impact on provides benchmark or benchmark- coverage: a substantial number of small entities or equivalent health care benefit coverage. (a) The recipient is a pregnant woman a significant impact on the operations of who is required to be covered under the a substantial number of small rural § 440.305 Scope. State plan under section hospitals. (a) General. This subpart sets out 1902(a)(10)(A)(i) of the Act. In accordance with the provisions of requirements for States that elect to (b) The recipient qualifies for medical Executive Order 12866, this regulation provide medical assistance to certain assistance under the State plan on the was reviewed by the Office of Medicaid eligible recipients within one basis of being blind or disabled (or being Management and Budget. or more groups of individuals specified treated as being blind or disabled) by the State, through enrollment of the without regard to whether the List of Subjects in 42 CFR Part 440 recipients in coverage, identified as individual is eligible for Supplemental Grant programs—health, Medicaid. ‘‘benchmark’’ or ‘‘benchmark- Security Income benefits under title XVI ■ For the reasons set forth in the equivalent.’’ on the basis of being blind or disabled preamble, the Centers for Medicare & (b) Limitations. A State may only and including an individual who is Medicaid Services amends 42 CFR apply the option in paragraph (a) of this eligible for medical assistance on the chapter IV as set forth below: section for an individual whose basis of section 1902(e)(3) of the Act. eligibility is based on an eligibility (c) The recipient is entitled to benefits PART 440—SERVICES: GENERAL category under section 1905(a) of the under any part of Medicare. PROVISIONS Act that would have been covered under (d) The recipient is terminally ill and is receiving benefits for hospice care ■ 1. The authority citation for part 440 the State’s plan on or before February 8, under title XIX. continues to read as follows: 2006. (c) A State may not require but may (e) The recipient is an inpatient in a Authority: Sec. 1102 of the Social Security offer enrollment in benchmark or hospital, nursing facility, intermediate Act (42 U.S.C. 1302) benchmark-equivalent coverage to the care facility for the mentally retarded, or ■ 2. A new subpart C, consisting of Medicaid eligible individuals listed in other medical institution, and is § 440.300 through § 440.390, is added to § 440.315. States allowing individuals to required, as a condition of receiving part 440 to read as follows: opt in must be in compliance with the services in that institution under the rules specified at § 440.320. State plan, to spend for costs of medical Subpart C—Benchmark Benefit and care all but a minimal amount of the Benchmark-Equivalent Coverage (d) Any State that opts to offer alternative benchmark or benchmark- individual’s income required for Sec. equivalent coverage to Medicaid personal needs. 440.300 Basis. (f) The recipient is medically frail or 440.305 Scope. beneficiaries must secure public input 440.310 Applicability. prior to the submission of any State plan otherwise an individual with special 440.315 Exempt individuals. amendment to CMS. medical needs. For these purposes, the 440.320 State plan requirements: Optional (e) In implementing benchmark or State’s definition of individuals with enrollment for exempt individuals. benchmark-equivalent package, States special needs must at least include

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those individuals described in immediate access to standard full (c) Health maintenance organization § 438.50(d)(3) of this chapter. Medicaid coverage under the State plan. (HMO) plan. A health insurance plan (g) The recipient qualifies based on (2) Prior to any enrollment in that is offered through an HMO, (as medical condition for medical benchmark or benchmark-equivalent defined in section 2791(b)(3) of the assistance for long-term care services coverage, the State must inform the Public Health Service Act) that has the described in section 1917(c)(1)(C) of the exempt recipient of the benefits largest insured commercial, non- Act. available under the benchmark or Medicaid enrollment in the State. (h) The recipient is an individual with benchmark-equivalent benefit package (d) Secretary approved coverage. Any respect to whom aid or assistance is and provide a comparison of how they other health benefits coverage that the made available under part B of title IV differ from the benefits available under Secretary determines, upon application to children in foster care and the standard full Medicaid program. by a State, provides appropriate individuals with respect to whom (3) The State must document in the coverage to meet the needs of the adoption or foster care assistance is exempt recipient’s eligibility file that population provided that coverage. made available under part E of title IV, the recipient was informed in States wishing to opt for Secretarial without regard to age. accordance with this section prior to approved coverage should submit a full (i) The recipient qualifies for medical enrollment, was given ample time to description of the proposed coverage, assistance on the basis of eligibility to arrive at an informed choice, and (including a benefit-by-benefit receive assistance under a State plan voluntarily chose to enroll in the comparison of the proposed plan to one funded under part A of title IV (as in benchmark or benchmark-equivalent or more of the three other benchmark effect on or after welfare reform effective benefit package. plans specified above or to the State’s date defined in section 1931(i) of the (4) For individuals who the State standard full Medicaid coverage Act). This provision relates to those determines have become exempt package under section 1905(a) of the individuals who qualify for Medicaid individuals while enrolled in Act), and of the population to which the solely on the basis of qualification benchmark or benchmark-equivalent coverage would be offered. In addition, under the State’s TANF rules. coverage, the State must comply with the State should submit any other (j) The recipient is a woman who is the requirements in paragraphs (a)(1) information that would be relevant to a receiving medical assistance by virtue of through (a)(3) of this section within 30 determination that the proposed health the application of sections days after such determination. benefits coverage would be appropriate 1902(a)(10)(ii)(XVIII) and 1902(a) of the (b) Disenrollment or Opt/Out Process. for the proposed population. The scope Act. (1) The State must act upon requests of a Secretary-approved health benefits (k) The recipient qualifies for medical promptly for exempt individuals who package will be limited to benefits assistance on the basis of section choose to opt out of benchmark or within the scope of the categories 1902(a)(10)(A)(ii)(XII) of the Act. benchmark-equivalent coverage. available under a benchmark coverage (l) The recipient is not a qualified (2) The State must have a process in package or the standard full Medicaid alien (as defined in section 431 of the place to ensure that exempt individuals coverage package under section 1905(a) Personal Responsibility and Work have continuous access to services of the Act. Opportunity Reconciliation Act of 1996) while opt out requests are being and receives care and services necessary processed. § 440.335 Benchmark-equivalent health for the treatment of an emergency benefits coverage. medical condition in accordance with § 440.325 State plan requirements: (a) Aggregate actuarial value. section 1903(v) of the Act. Coverage and benefits. Benchmark-equivalent coverage is (m) The recipient is determined Subject to requirements in § 440.345 health benefits coverage that has an eligible as medically needy or eligible and § 440.365, States may elect to aggregate actuarial value, as determined because of a reduction of countable provide any of the following of types of in § 440.340 that is at least actuarially income based on costs incurred for health benefits coverage: equivalent to the coverage under one of medical or other remedial care under (a) Benchmark coverage in accordance the benchmark benefit packages section 1902(f) of the Act or otherwise with § 440.330. described in § 440.330 for the identified based on incurred medical costs. (b) Benchmark-equivalent coverage in Medicaid population to which it will be accordance with § 440.335. offered. § 440.320 State plan requirements: (b) Required coverage. Benchmark- Optional enrollment for exempt individuals. § 440.330 Benchmark health benefits equivalent health benefits coverage coverage. (a) General rule. A State plan that must include coverage for the following offers exempt individuals as defined in Benchmark coverage is health benefits categories of services: § 440.315 the option to enroll in coverage that is equal to the coverage (1) Inpatient and outpatient hospital benchmark or benchmark-equivalent under one or more of the following services. coverage must identify in its State plan benefit plans: (2) Physicians’ surgical and medical the exempt groups for which this (a) Federal Employees Health Benefit services. coverage is available, and must comply Plan Equivalent Coverage (FEHBP— (3) Laboratory and x-ray services. with the following provisions: Equivalent Health Insurance Coverage). (4) Well-baby and well-child care, (1) In any case in which the State A benefit plan equivalent to the including age-appropriate offers an exempt individual the option standard Blue Cross/Blue Shield immunizations. to obtain coverage in a benchmark or preferred provider option service benefit (5) Other appropriate preventive benchmark-equivalent benefit package, plan that is described in and offered to services, such as emergency services as the State must effectively inform the Federal employees under 5 U.S.C. designated by the Secretary. individual prior to enrollment that the 8903(1). (c) Additional coverage. enrollment is voluntary and that the (b) State employee coverage. Health (1) In addition to the categories of individual may opt out of the benefits coverage that is offered and services of this section, benchmark- benchmark or benchmark-equivalent generally available to State employees equivalent coverage may include coverage at any time and regain in the State. coverage for any additional services in

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a category included in the benchmark exception of premiums) under that obtain benchmark or benchmark- plan or described in section 1905(a) of coverage. equivalent benefit coverage on behalf of the Act. (c) The actuary preparing the opinion beneficiaries under this section will be (2) If the benchmark coverage package must select and specify the standardized treated as medical assistance under used by the State for purposes of set of factors and the standardized section 1905(a) of the Act. comparison in establishing the aggregate population to be used in paragraphs (b)(3) and (b)(4) of this section. § 440.360 State plan requirement for actuarial value of the benchmark- providing additional wrap-around services. equivalent package includes any of the (d) The State must provide sufficient following four categories of services: detail to explain the basis of the If the State opts to provide additional prescription drugs; mental health methodologies used to estimate the or wrap-around coverage to individuals services; vision services; and hearing actuarial value or, if requested by CMS, enrolled in benchmark or benchmark- services; then the actuarial value of the to replicate the State’s result. equivalent plans, the State plan must describe the populations covered and coverage for each of these categories of § 440.345 EPSDT services requirement. service in the benchmark-equivalent the payment methodology for these (a) The State must assure access to services. Additional or wrap-around coverage package must be at least 75 early and periodic screening, diagnostic percent of the actuarial value of the services must be in categories that are and treatment (EPSDT) services through within the scope of the benchmark coverage for that category of service in benchmark or benchmark-equivalent the benchmark plan used for coverage, or are described in section plan benefits or as wrap-around benefits 1905(a) of the Act. comparison by the State. to those plans for any child under 19 (3) If the benchmark coverage package years of age eligible under the State plan § 440.365 Coverage of rural health clinic does not cover one of the four categories in a category under section and federally qualified health center (FQHC) of services in paragraph (c)(2) of this 1902(a)(10)(A) of the Act. services. section, then the benchmark-equivalent (1) Sufficiency: Any wrap-around If a State provides benchmark or coverage package may, but is not EPSDT benefits must be sufficient so benchmark-equivalent coverage to required to, include coverage for that that, in combination with the individuals, it must assure that the category of service. benchmark or benchmark-equivalent individual has access, through that § 440.340 Actuarial report for benchmark- benefits plan, these individuals have coverage or otherwise, to rural health equivalent coverage. access to the full EPSDT benefit. clinic services and FQHC services as (2) State Plan requirement: The State defined in subparagraphs (B) and (C) of (a) A State plan amendment that must include a description of how the would provide for benchmark- section 1905(a)(2) of the Act. Payment wrap-around benefits will be provided for these services must be made in equivalent health benefits coverage to ensure that these recipients have described in § 440.335, must include an accordance with the payment provisions access to the full EPSDT benefit. of section 1902(bb) of the Act. actuarial report. The actuarial report (b) Individuals must first seek must contain an actuarial opinion that coverage of EPSDT services through the § 440.370 Cost-effectiveness. the benchmark equivalent health benchmark or benchmark-equivalent Benchmark and benchmark- benefits coverage meets the actuarial plan before seeking coverage of such equivalent coverage and any additional requirements set forth in § 440.335. The through wrap-around benefits. report must also specify the benchmark benefits must be provided in accordance coverage used for comparison. § 440.350 Employer-sponsored insurance with Federal upper payment limits, (b) The actuarial report must state that health plans. procurement requirements and other it was prepared according to the (a) A State may provide benchmark or economy and efficiency principles that following requirements: benchmark-equivalent coverage by would otherwise be applicable to the (1) By an individual who is a member obtaining employer sponsored health services or delivery system through of the American Academy of Actuaries plans (either alone or with the addition which the coverage and benefits are (AAA). of wrap-around services covered obtained. (2) Using generally accepted actuarial separately under Medicaid) for § 440.375 Comparability and scope of principles and methodologies of the individuals with access to private health coverage. AAA. insurance. (b) The State must assure that States have the option to amend their (3) Using a standardized set of employer sponsored plans meet the State plan to provide benchmark or utilization and price factors. requirements of benchmark or benchmark-equivalent coverage to (4) Using a standardized population benchmark-equivalent coverage, recipients without regard to that is representative of the population including the cost-effectiveness comparability or requirements relating involved. requirements at § 440.370. to the scope of coverage other than those (5) Applying the same principles and (c) A State may provide benchmark or contained in this subpart. factors in comparing the value of benchmark-equivalent coverage through § 440.380 Statewideness. different coverage (or categories of a combination of employer sponsored services). health plans and additional benefit States have the option to amend their (6) Without taking into account any coverage provided by the State that State plan to provide benchmark or differences in coverage based on the wraps around the employer sponsored benchmark-equivalent coverage to method of delivery or means of cost health plan which, in the aggregate, recipients without regard to control or utilization used. results in benchmark or benchmark- statewideness. (7) Taking into account the ability of equivalent level of coverage for those § 440.385 Freedom of choice. the State to reduce benefits by taking recipients. into account the increase in actuarial (a) States have the option to amend value of health benefits coverage offered § 440.355 Payment of premiums. their State plan to provide benchmark or under the State plan that results from Payment of premiums by the State, benchmark-equivalent coverage to the limitations on cost sharing (with the net of beneficiary contributions, to recipients without regard to the

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requirements for free choice of provider (2) Do not apply in emergency (Catalog of Federal Domestic Assistance in § 431.51 of this chapter. circumstances. Program No. 93.778, Medical Assistance (3) Does not apply to family planning Program) (b) States may restrict recipients to providers. Dated: August 8, 2008. obtaining services from (or through) (4) Require that all provider plans are selectively procured provider plans or paid on a timely basis in the same Kerry Weems, practitioners that meet, accept, and manner as health care practitioners Acting Administrator, Centers for Medicare comply with reimbursement, quality must be paid under § 447.45 of this & Medicaid Services. and utilization standards under the chapter. Approved: September 29, 2008. State Plan, to the extent that the Michael O. Leavitt, restrictions imposed meet the following § 440.390 Assurance of transportation Secretary. requirements: A State may at its option amend its State plan to provide benchmark or (1) Do not discriminate among classes Editorial Note: This document was benchmark-equivalent coverage to of providers on grounds unrelated to received in the Office of the Federal Register recipients without regard to the on Monday, November 24, 2008. their demonstrated effectiveness and assurance of transportation to medically efficiency in providing the benchmark necessary services requirement [FR Doc. E8–28330 Filed 12–2–08; 8:45 am] benefit package. specified in § 431.53 of this chapter. BILLING CODE 4120–01–P

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Part III

Department of Labor Employment and Training Administration

Planning Guidance for State Unified Plans and Unified Plan Modifications Submitted Under Section 501 of the Workforce Investment Act (WIA); Notice

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DEPARTMENT OF LABOR E. Vision for Serving Youth Most In Need Stand-Alone WIA title I Plan are being F. Increased Economic and Workforce issued separately. Employment and Training Information Data Integration and Administration Analysis B. Background G. Effective Utilization of Faith-based and The State Unified Plan Planning Planning Guidance for State Unified Community Based Organizations Guidance provides a framework for the Plans and Unified Plan Modifications H. Increased Use of Flexibility Provisions in WIA collaboration of governors, local elected Submitted Under Section 501 of the I. An Integrated and Enhanced officials, businesses and other partners Workforce Investment Act (WIA) Performance Accountability System That to design and build workforce investment systems that address AGENCY: Employment and Training Provides Improved System Results customer needs; deliver integrated, user- Administration. Part III. Unified Planning Instructions A. State Vision and Priorities friendly services; and are accountable to ACTION: Notice. B. One-Stop Delivery System the customers and the public. Unified C. Plan Development and Implementation SUMMARY: Planning Guidance provisions related to The purpose of this notice is D. Needs Assessment to provide interested parties with the the SCSEP and Perkins IV have E. State and Local Governance changed. There are only minor changes planning guidance for use by states in F. Funding submitting their Unified State Plans G. Activities To Be Funded to the Unified Planning Guidance items under section 501 of the Workforce H. Coordination and Non-Duplication that relate to WIA title I and Wagner- Investment Act of 1998 as well as Plan I. Special Populations and Other Groups Peyser Act Plan. The Unified Plan modifications. The Planning Guidance J. Professional Development and System requirements for other programs remain provides a framework for the Improvement the same as those outlined in the April collaboration of governors, local elected K. Performance Accountability 12, 2005, version of this document (70 L. Data Collection Federal Register 19222). officials, businesses and other partners M. Corrective Action to continue the development of N. Waiver and Work-Flex Requests Senior Community Service Employment workforce investment systems that Part IV. Certifications and Assurances Program address customer needs, deliver Attachments On October 17, 2006, the President integrated user-friendly services, and A. ETA Regional Administrators (for signed into law the Older Americans reference only) are accountable to the customers and Act Amendments of 2006, Public Law the public. B. Unified Plan Activities and Program Checklist 109–365, which authorizes SCSEP. The FOR FURTHER INFORMATION CONTACT: Ms. C. Optional Table for WIA State purpose of SCSEP is to foster individual Gay Gilbert, Administrator, Office of Performance Indicators and Goals economic self-sufficiency and promote Workforce Investment, U.S. Department useful opportunities in community of Labor, 200 Constitution Ave., NW., State Unified Plan Planning Guidance service activities for unemployed low- Room S–4231, Washington, DC 20210. Part I. State Planning Instructions income persons who are age 55 or older, Telephone: (202) 693–3980 (voice) (this particularly persons who have poor is not a toll free number) or (202) 693– A. Statement of Purpose employment prospects, and to increase 7755 (TTY). The purpose of this document is to the number of persons who may enjoy SUPPLEMENTARY INFORMATION: provide guidance to States which the benefits of unsubsidized Planning Guidance for State Unified submit a State Unified Plan authorized employment in both the public and Plans and Unified Plan Modifications by title V, section 501 of the Workforce private sectors. The 2006 Amendments Submitted Under Section 501 of the Investment Act of 1998 (WIA). The State instituted a number of program changes. Workforce Investment Act (WIA) Unified Plan Planning Guidance The amendments increased the facilitates the development and emphasis on placements into OMB Control Number 1205–0398. submission of such a Plan, which unsubsidized employment; imposed a Expiration Date: Nov 30, 2011. addresses two or more of the programs time limit on enrollees’ program Table of Contents or activities specified at WIA section participation; restricted fringe benefits Part I. State Planning Instructions 501(b)(2). This Planning Guidance for participants; enabled grantees to A. Statement of Purpose updates the requirements for the WIA/ spend additional funds on training; and B. Background Wagner-Peyser Act and Senior mandated the adoption of core C. Section 501 Programs and Activities Community Service Employment indicators of performance aligned with D. Submission of State Unified Plans Program (SCSEP) portions of the Unified the Employment and Training E. Federal Government Review and Plan. Options for programs funded by Administration (ETA)’s common Approval of Unified Plan the U.S. Department of Education that F. How to Use ‘‘Attachment B’’ measures. The new law became effective G. Negotiated WIA and Wagner-Peyser Act are included in a Unified Plan also are July 1, 2007. Each State SCSEP grantee Performance Indicators discussed in this notice. Minor must prepare an application for funding H. Modifications to State Plan reference updates have been made for each year. This application is a I. Inquiries other programs authorized to be thorough explanation of how the project Part II. National Strategic Direction included in the Unified Plan. will operate. A State that chooses to A. Vision and Goals Related to WIA Title An approved Strategic State Plan is include the SCSEP program in a Unified I and Wagner-Peyser Act required in order for States to receive Plan must prepare a separate grant B. Demand-Driven Workforce Investment formula allotments under WIA title I application according to SCSEP program System Within a Regional Economic and the Wagner-Peyser Act. The current requirements. Development Context Plans expire June 30, 2009. States which C. System Reform and Increased Focus on choose to submit the WIA title I/ Options for Programs Funded by the Workforce Education and Training U.S. Department of Education D. Enhanced Integration Through the One- Wagner-Peyser Plan as part of a Unified Stop Delivery System with Improved Plan must comply with the With respect to the programs Service Delivery and Increased requirements of these guidelines. authorized by the Adult Education and Efficiencies Guidelines for the submission of a Family Literacy Act (AEFLA), the U.S.

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Department of Education has already October 30, 2007, that required each (phone); 202–245–7837 (fax); (E-mail: issued guidance to States that discusses eligible agency that submitted a one- [email protected]). the option of extending the existing year transition plan for the first program • Tech-Prep Education (title II of State plans with certain necessary year to submit a five-year State plan Perkins IV) Administered by revisions, and requests for extending (starting July 1, 2008), covering the Department of Education, Office of plans were due April 1, 2008. Further, remaining program years, that meet all Vocational and Adult Education. Staff the U.S. Department of Education the requirements of Perkins IV, as Contact: Dale King: 202–245–7405 anticipates that the States will have the covered in the March 2007 memo and (phone); 202–245–7837 (fax); (E-mail: option of extending their State plans guidance. See Program Memorandum [email protected]). again in April 2009, in the absence of a Submission of Five-Year State Plans • Activities authorized under title I, reauthorization of the AEFLA. This under the Carl D. Perkins Career and Workforce Investment Systems option of extending the existing plan Technical Education Act of 2006 at (Workforce Investment Activities for applies as well to any subsections of a http://www.ed.gov/policy/sectech/guid/ Youth, or WIA title I Youth) Unified State Plan that are related to cte/perkinsiv/fiveyear-stateplan.pdf. All Administered by Department of Labor, programs under AEFLA. A State’s States, including the outlying areas as Employment and Training request to extend subsections of a defined in section 3(21) of Perkins IV, Administration. Staff Contact: Gregg unified plan must be submitted directly have submitted a five-year plan, or will Weltz: 202–693–3527 (phone); 202– to the U.S. Department of Education and submit a five-year plan. No State has 693–3861 (fax); (E-mail: is due April 1, 2009, for AEFLA notified the Department of Education [email protected]). programs. See Guide for the that it plans to submit a Unified Plan • Activities authorized under title I, Development of a State Plan under the under WIA that includes Perkins IV Workforce Investment Systems Adult Education and Family Literacy requirements. These Perkins IV State (Workforce Investment Activities for Act (OMB Control Number 1830–0026). plans will remain in effect for five years Adults, and Dislocated Workers, or WIA The U.S. Department of Education once the U.S. Department of Education title I) Administered by Department of anticipates that States will choose the approves these plans (starting July 1, Labor, Employment and Training option of extending their existing 2008, or the date of approval if later). If Administration. Staff Contact: Christine subsections of the currently approved a State wishes to revise or amend its D. Ollis: 202–693–3937 (phone); 202– Unified State Plans with only the Perkins IV State plan in the future to 693–3015 (fax); (E-mail: revisions discussed in the above- make it part of its State Unified Plan, [email protected]). referenced guidance. However, any then the State would have to meet the • Activities authorized under title II State that chooses to submit new requirements for revising or amending of WIA, Adult Education and Family subsections related to AEFLA programs its State plan that are in section Literacy (Adult Education and Family in its Unified State Plan submitted in 122(a)(2) of Perkins IV and Department Literacy Programs) Administered by accordance with this notice must fully of Education Administrative Department of Education, Office of comply with all the planning, content, Regulations (EDGAR) at 34 CFR 76.140, Vocational and Adult Education. Staff and other requirements that applied as well as the Department of Labor’s Contact: Dale King: 202–245–7405 when the Unified Plan was originally requirements for amending a Unified (phone); 202–245–7837 (fax); (E-mail: developed, adopted, and submitted. State Plan. Additionally, a State would [email protected]). These requirements are summarized have to satisfy the requirements of • Food Stamp Employment and together with references to the section 501 of WIA with respect to State Training Program (FSET) Administered underlying statutory and regulatory plans, e.g. legislature approval to by USDA, Food and Nutrition Service. requirements in the second section of include secondary Perkins IV programs. this notice. Staff Contact: Micheal Atwell: 703–305– The U.S. Department of Education C. Section 501 Programs and Activities 2449 (phone); 703–305–2486 (fax); (E- Below is a listing of the programs and mail: [email protected]). issued a program memorandum and • guidance to States on March 12, 2007, activities covered in section 501 of WIA, Activities authorized under chapter regarding their options for submission along with the commonly used name. In 2 of title II of the Trade Act of 1974 of State plans under the newly this document, we generally refer to the (Trade Act Programs) Administered by authorized Carl D. Perkins Career and activities and programs by their Department of Labor, Employment and Technical Education Act of 2006 commonly used names. Should State Training Administration. Staff Contact: (Perkins IV), 20 U.S.C. 2301 et seq. as staff need information on the programs Terry Clark: 202–693–3707 (phone); amended by Public Law 109–270. States listed, a staff contact is provided here 202–693–3585 (fax); (E-mail: were given the option of submitting a also. [email protected]). one-year transitional plan (starting July • Secondary Career and Technical • Programs authorized under the 1, 2007), or a six-year full plan (starting Education programs (Perkins IV/ Wagner-Peyser Act (Employment July 1, 2007). The guidance also Secondary) Note that inclusion of this Service) Administered by Department of provided States direction for submitting program in the Unified Plan requires Labor, Employment and Training a Unified Plan under WIA. See Program prior approval of State legislature. Administration. Staff Contact: Maggie Memorandum Transmittal of the Carl D. Administered by Department of Ewell: 202–693–3160 (phone); 202–693– Perkins Career and Technical Education Education, Office of Vocational and 3787 (fax); (E-mail: Act of 2006 State Plan Guide and the Adult Education. Staff Contact: Dale [email protected]). Guide for the Submission of State Plans King: 202–245–7405 (phone); 202–245– • Programs authorized under Part B (OMB Control Number: 1830–0029) at: 7837 (fax); (E-mail: [email protected]). of title I of the Rehabilitation Act of http://www.ed.gov/policy/sectech/guid/ • Postsecondary Career and Technical 1973, other than section 112 of such Act cte/perkinsiv/stateplanmemo.pdf or Education programs (Perkins IV/ (Vocational Rehabilitation) http://www.ed.gov/policy/sectech/guid/ Postsecondary) Administered by Administered by Department of cte/perkinsiv/stateplan.doc. Department of Education, Office of Education, Rehabilitation Services The U.S. Department of Education Vocational and Adult Education. Staff Administration. Staff Contact: Jerry also issued a program memorandum on Contact: Dale King: 202–245–7405 Elliott: 202–245–7335 (phone); 202–

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245–7590 (fax); (E-mail: activities warrants special treatment in Contact’’). The Departmental Contact [email protected]). a Unified Plan. will be responsible for ensuring that • Programs authorized under chapters Accordingly, the Unified Plan affected agencies and appropriate 41 and 42 of Title 38, USC, and 20 CFR guidance provides for informal Regional Offices in that Department 1001 and 1005 (Veterans Programs, inclusion of HUD’s programs. Since receive copies of the Unified Plan. For including Veterans Employment, HUD programs are generally funded and example, if a Unified Plan contains Disabled Veterans’ Outreach Program, implemented through local plans for both the Vocational and Local Veterans’ Employment communities, and HUD’s relevant State Rehabilitation and the Adult Education Representative Program) Administered formula grant programs are not programs, both of which are by Department of Labor, Veterans’ specifically employment and training administered by different agencies Employment and Training Service. Staff programs, States that follow the Unified within the United States Department of Contact: Patrick J. Hecker: 202–693– Planning guidance will not Education, the State need only submit 4709 (phone); 202–693–4755 (fax); (E- automatically receive funding for HUD’s the Plan to the U.S. Department of mail: [email protected]). formula programs through their Unified Education once, and it should be sent to • Programs authorized under State Plans. However, to encourage States to the Departmental Contact. E-mail unemployment compensation laws think strategically about developing a addresses for the Departmental Contacts (Unemployment Insurance) comprehensive workforce investment are as follows: Administered by Department of Labor, system—including how that system Department of Labor: Employment and Training relates to the housing and workforce [email protected] Administration. Staff Contacts: Mary investment needs of the population Department of Education: Vrany: 202–693–3357 (phone); 202– receiving housing assistance—the [email protected] 693–3975 (fax); (E-mail: guidance includes references to HUD Department of Health and Human [email protected]); or Delores customers and services, as well as local Services: [email protected] Mackall: 202–693–3183 (phone); 202– housing agencies, in the overarching Department of Agriculture: 693–3975; (E-mail: questions pertaining to the Unified [email protected] [email protected]). Plan’s vision and goals, One-Stop • Department of Housing and Urban Programs authorized under part A service delivery, and needs assessment. Development: of title IV of the Social Security Act [email protected] (Temporary Assistance for Needy D. Submission of State Unified Plans Families (TANF) Administered by 1. Requirements for Submission and 2. Submission Options—Electronic, Health and Human Services, Points of Contact: CD–ROM or Hard Copy Format: Administration for Children and States have the option of submitting a States have the option to submit Families. Staff Contact: Robert M. Unified Plan to meet the requirements Unified Plans in an electronic, hard Shelbourne: 202–401–5150 (phone); for submission of a State Plan. copy, or CD–ROM format. The Federal 202–401–5554 (fax); (E-mail: a. AEFLA Extensions. A State’s Government is encouraging States to [email protected]). request to extend subsections of a submit Unified Plans in electronic • Programs authorized under title V Unified Plan related to programs under format to reduce the reporting and of the Older Americans Act of 1965 AEFLA must be submitted directly to process burden and to ensure timely (Senior Community Service the U.S. Department of Education and is receipt by each Federal agency whose Employment Program, or SCSEP) due April 1, 2009 for AEFLA programs. programs are included in the Unified Administered by Department of Labor, See Guide for the Development of a Plan. Employment and Training State Plan under the Adult Education a. Electronic Submission. States can Administration. Staff Contact: and Family Literacy Act (OMB Control submit a Unified Plan electronically Alexandra Kielty: 202–693–3730 number 1830–0026). either by posting it on an Internet Web (phone); 202–693–3587 (fax); (E-mail: b. Federal Coordinator. To reduce the site that is accessible to the Department [email protected]). reporting and processing burden, States of Labor or by transmitting it through e- • Training activities funded by the have the option of submitting their mail to the Department. Unified Plan Department of Housing and Urban Unified Plan to either certifications with electronic signatures Development under the Community [email protected] or to the are acceptable. If a State chooses not to Development Block Grants (CDBG) and designated Federal Coordinator for Plan use an electronic signature, then the Public Housing Programs. Staff Contact: Review and Approval (hereafter, Plan Signature(s) Page (Attachment B) Manuel Ochoa: 202–708–2111; Fax: ‘‘Federal Coordinator’’), depending must be submitted in hard copy. 202–708–3672; (E-mail: upon the submission option chosen by i. Posting Unified Plans on an Internet [email protected]). the State (as discussed below). The Web Site. Under this option, a State • Programs authorized under the Federal Coordinator is Janet Sten, E- should post its Plan on an Internet Web Community Services Block Grant Act mail: [email protected]; phone: 202– site; inform the Federal Coordinator (CSBG) Administered by Health and 693–3045. through electronic mail of the URL and Human Services, Administration for c. Federal Departments. States also the location of the document on the Children and Families. Staff Contact: have the option of submitting their Web site; provide contact information in Brandy RayNor: 202–205–5926 (phone); Unified Plans directly to each Federal the event of problems with accessing the 202–402–5718 (fax); (E-mail: Department whose programs are Web site; and certify that no changes [email protected]). included in the Unified Plan, except for will be made to the version of the Plan While the statute specifies that States AEFLA simple extensions, which must posted on the Web site after it has been may submit a Unified Plan that includes be submitted to the U.S. Department of submitted to the Department, unless the ‘‘training activities’’ carried out by the Education as stated above. States Federal Coordinator or Federal agency Department of Housing and Urban choosing this option are only required overseeing the portion to be changed Development (HUD), for a number of to send the Plan to the designated gives prior approval. The Federal reasons, the Federal Partners agree that Federal Departmental State Unified Plan Coordinator will ensure that Federal the unique nature of HUD’s training Contact (hereafter, ‘‘Departmental agencies whose programs are included

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in the Unified Plan, and the appropriate E. Federal Government Review and section, as well as the additional DOL Regional Office, receive the Approval of Unified Plan questions that relate to the programs relevant information. Section 501(d)(2) of WIA states that a and activities that are included in the ii. Transmitting Unified Plans by E- portion of a State Unified Plan covering State’s Unified Plan. 3. Certifications and Assurances: Mail. Any State submitting its Plan by an activity or program is to be e-mail should send it to By signing the signature page(s), you considered to be approved by the are assuring or certifying those items in [email protected]. The Federal appropriate Secretary at the end of the Coordinator will ensure that Federal the Certifications and Assurances 90-day period beginning on the day the section that apply to the programs and agencies whose programs are included appropriate Secretary receives the in the Unified Plan receive a copy. The activities you have included in the portion unless the appropriate Secretary State’s Unified Plan. Federal Coordinator will also provide a makes a written determination, during copy to the appropriate DOL Regional the 90-day period, that the portion is not G. Negotiated WIA and Wagner-Peyser Office. If a State chooses to submit its consistent with the requirements of the Act Performance Indicators Unified Plan by transmitting it through Federal statute authorizing the activity WIA allows considerable flexibility in electronic mail, the State must submit it or program or section 501(c)(3) of WIA. system design and service delivery, in in Microsoft Word or PDF format. The appropriate Secretary, or his/her exchange for both accountability for a b. Hard Copy or CD–ROM representative, will advise the State by key set of outcomes and improving Submission. States choosing to submit a letter, as soon as possible, that the those outcomes over time. To hard copy should submit one copy of portion of the Unified Plan over which accomplish this, the Secretary of Labor the Plan with an original signature to his/her agency exercises administrative and the governor of each State must Janet Sten, the Federal Coordinator for authority is approved or disapproved. If reach agreement on the State’s Plan Review and Approval, at the the Plan is not approved, the negotiated performance levels for the following address: Division of appropriate Secretary, or his/her core indicators of performance, and for Workforce System Support, representative, will advise the State by customer satisfaction indicators of Employment and Training letter that the portion of the Unified employers’ and participants’ Administration, U.S. Department of Plan over which his/her agency satisfaction. These levels of performance Labor, 200 Constitution Ave., NW, exercises administrative authority is not become the basis for sanctions for failed Room S–4231, Washington, DC 20210, consistent with the requirements of the performance and, with additional ATTN: Janet Sten. Federal statute authorizing the activity performance levels for WIA title II Adult States submitting a Unified Plan on or program, or with section 501(c)(3) of Education and Family Literacy Act CD–ROM should submit one copy of the WIA, and clearly indicate the reasons programs and Carl D. Perkins Career and Plan to Janet Sten, the Federal for disapproval and specify what Technical Education Act of 2006 Coordinator for Plan Review and additional information is required or programs, the basis for incentive grants. Approval. The Federal Coordinator will what action needs to be taken for the At a minimum, the State Plan should ensure that each Federal agency whose Unified Plan to be approved. include proposed performance goals for programs are included in the Unified WIA and Wagner-Peyser Act programs Plan, and the appropriate DOL Regional F. How To Use ‘‘Attachment B’’ for each of the performance indicators Office, receive copies of the Plan. 1. Forms for State Use: for each program year covered by the If the Plan on the CD–ROM does not In Attachment B you will find three Plan. While the State Plan is under include the signature of the governor on forms for use in submitting the State review, the ETA Regional Administrator the signature page, the State must Unified Plan. These forms are available and the State will discuss the submit separately an electronic for electronic download, along with this performance levels, and negotiate on signature or a signature page in hard entire guidance, at http:// them as appropriate. The Department copy. Plans submitted on a CD–ROM www.doleta.gov/usworkforce. expects States to enter into preliminary must be in Microsoft Word or PDF a. Unified Plan Activities and discussions with the Local Workforce format. Programs Checklist: Please provide a list Investment Boards and the ETA States submitting a hard copy of their of the section 501 programs and Regional Administrators before Plan are encouraged to provide an activities you have included in the Plan. submitting the State Plan. States are unbound copy to facilitate duplication. Use of this specific format is optional. expected to come to the negotiating 3. Table of Contents: b. Contact Information: Please table with support from their Local States are encouraged to include a provide the contact information Workforce Investment Boards for the table of contents at the beginning of the requested for each of the Section 501 proposed performance goals. Entering State Unified Plan. This will provide programs and activities that you have into preliminary discussions prior to easy reference on the Plan’s details to included in the Plan. Programs and Plan submission will maximize the time the public as well as aid the Federal activities may be combined on one form available to States, local areas, and the Government in the review of the Unified if they have the same contact Department to develop a shared set of Plan. information. Use of this specific format goals. ETA Regional Administrators will 4. Receipt Confirmation: is optional. coordinate with other DOL program The Federal Coordinator, without c. Plan Signature(s): Please provide administrators, including the Veterans’ regard to which option the State uses for the required signatures as appropriate Employment and Training Service submission, will confirm receipt of the for the programs and activities you have (VETS) Regional Administrators, to State Unified Plan within two workdays included in the State Unified Plan. Use assure comprehensive Departmental of receipt and indicate the date for the of this specific format is optional, but participation. start of the review period. When a State the wording on the signature page must States should note that the proposed submits an incomplete Plan, the period be identical to that provided here. levels of performance are subject to for review will not start until all 2. Program Descriptions: public review and comment required components of the Unified Please respond fully to the general requirements. States that have Plan have been received. questions in the program descriptions completed negotiations with ETA

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should include their agreed-upon levels designated to deliver services under the A. Vision and Goals Related to WIA of performance for each program year Wagner-Peyser Act, any change in Title I and Wagner-Peyser Act covered by the Plan for the WIA and service delivery strategy, any change in The U.S. economy and its labor Wagner-Peyser Act programs. levels of performance when markets are undergoing changes of In cases where final agreement on performance goals are not met, or any historic proportion. Globalization has performance goals is reached after the change in services delivered by State State Plan is submitted to ETA for forced change in every region in the merit-staff employees. In general, it is country and impacted every aspect of review and approval, but before ETA substantial changes to the Unified Plan approval of the State Plan, the letter our economy. While global competition that require a modification, i.e., any is typically seen as a national challenge, advising the States of approval of the change that significantly impacts the State Plan will include ETA’s approval the front lines of the battlefield are operation of the state’s workforce regional, where businesses create of the agreed-upon goals. investment system. In cases where final agreement on competitive advantage by collaborating performance goals has not been reached 2. Submitting a Modification: with researchers, entrepreneurs, and until after the State Plan has been Plan modifications must be submitted government entities. That advantage approved, the ETA Regional to the Federal Coordinator, who will stems from the ability to transform new Administrator’s letter advising the State ensure that Federal agencies whose ideas and knowledge into advanced, of the agreed-upon goals will constitute programs are included in the unified high-quality products or services—in a modification to the State Plan. For plan receive a copy, in accordance with other words, to innovate. Those regions subsequent revisions to performance the procedures of the affected agency. that will be most successful will goals during the life of the State Plan, Prior to submission of the modification connect three key elements: Talent, the ETA Regional Administrator’s letter for review and approval by the Federal infrastructure, and investment. In advising the State of the agreed upon Government, the designated State particular, they will connect workforce goals will also constitute a modification agency must circulate the modifications skills and lifelong learning strategies; to the State Plan. The State must ensure among the other State and/or local regional infrastructure and economic that the agreed-upon goals are included agencies that may be affected by the development strategies; and investment in the State’s official copy of the State changes. Inclusion of a program in the and entrepreneurship strategies. Plan, and that any published State Plan, State Unified Plan does not remove the Entrepreneurship plays a critical role in on the State’s Web site or through other statutory requirement for certain fueling innovation, as entrepreneurs forums, includes the agreed-upon goals. programs to annually review the Plan account for more than half of all technological innovation which powers ETA will incorporate these performance and submit modifications as needed. goals into the Regional and National America’s competitiveness. Modifications to the Unified Plan are Office copies of the State’s Plan. Maintaining America’s competitive subject to the same public review and position in the global economy requires H. Modifications to State Plan comment requirements that apply to the a workforce with postsecondary 1. Reasons for Modifications: development of the original Plan. States education credentials, the capacity to Modifications may be needed in any wishing to submit a State Plan work in a high-technology environment, number of areas to keep the Unified modification should follow the and the opportunity to engage in Plan a viable, living document over its submission guidelines listed in Section lifelong learning to keep pace with life span. WIA regulations permit states D ‘‘Submission of Unified Plans.’’ States change. Preparing workers to be part of to modify their Plan at any time and 20 should direct any questions about the such a workforce is the role of our CFR 652.212 and 661.230 outline the need to submit a Plan modification to system. ETA envisions that the circumstances under which the Federal Coordinator, the workforce investment system will modifications must be submitted. Departmental Contacts listed above, or operate as a talent development system; Modifications are required when: to the Regional Administrator or it is no longer defined only as a job a. Changes in Federal or State law or Regional Commissioner who exercises training system. A talent development policy substantially change the administrative authority over the system not only meets the needs of assumptions upon which the Plan is activity or program(s) impacted by the industry, but contributes to economic based. modification. prosperity by collaborating with b. There are changes in the statewide I. Inquiries economic development to identify vision, strategies, policies, performance emerging industries that it can help indicators, the methodology used to General inquiries about the State foster and grow. Its vision is an determine local allocation of funds, Unified Plan process may be directed to educated and prepared workforce that is reorganizations which change the Janet Sten, the Federal Coordinator for able to compete in the global economy. working relationship with system Plan Review and Approval. The Broadly, the ETA strategic priorities employees, changes in organizational electronic mail address for the Federal for the workforce investment system for responsibilities, changes to the Coordinator is [email protected]. The this planning cycle include: membership structure of the State Board Federal Coordinator may be contacted • or alternative entity and similar Building a demand-driven system by phone at 202–693–3045. Inquiries substantial changes to the State’s within a regional economic related to specific activities and workforce investment system. development context; c. The State has failed to meet programs can be directed to the staff • Implementing system reform, with performance goals, and must adjust contacts listed above. streamlined governance and alignment service strategies. Part II. National Strategic Direction of economic and workforce The WIA regulations, at 20 CFR development regions; 652.212, which relate to the Wagner- The purpose of Part II is to • Enhancing an integrated service Peyser Act portions of the Plan, also communicate ETA’s national direction delivery system that focuses on require modifications when there is any and strategic priorities for the workforce functions and services rather than reorganization of the State agency investment system. programs or funding streams;

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• Advancing a vision for serving and prepared workforce—on a U.S. or Such strategies may need to approach youth most in need; global standard. education and career progression • Expanding the workforce (2) Workforce investment system incrementally rather than on one information system as the foundation formula funds are transformed, continuous path to a specific degree for strategic planning and career providing significantly increased with the aim of moving the learner to guidance; opportunity for postsecondary the workplace. This is particularly • Strengthening partnerships with education for lifelong learning aligned essential for incumbent workers who community and faith-based with the region’s talent development need lifelong education to remain in organizations; strategy. economically self-sustaining jobs. • • Increasing the use of flexibility (3) The workforce investment system New education models are needed provisions in WIA to design innovative no longer operates as an array of siloed to support the development of cross- programs that fuel regional economic programs and services. disciplinary learning that matches the competitiveness and create employment (4) Workforce Investment Boards are expanding number of cross-functional opportunities for career seeker structured and operate on a regional competencies and skill sets that are customers; and basis and are composed of regional needed on the job. • Utilizing an integrated and strategic partners who drive investments States have multiple ways to drive enhanced performance accountability by aligning spending with a regional system transformation and integration system. economic vision for talent development. through policies, required practices, and (5) Economic and workforce investment of State set-aside funds, B. Demand-Driven Workforce development activities within regions among others. There are a number of Investment System Within a Regional are aligned, leading to the adoption of key areas the State may consider Economic Development Context common and innovative policies across addressing in its Strategic Plan to In today’s economy, the workforce the workforce, education, and economic respond to the current challenges of investment system has an opportunity development systems and structures maintaining a competitive advantage to play a critical role in fueling that support talent development and the and ensuring a prepared and educated competitiveness by developing talent— regional economy. workforce. These key areas may include, (6) The workforce investment system one of the three key requirements for but are not limited to, the following: is agile enough to serve the innovation • innovation. To become a dynamic Aligning economic and workforce economy, recognizing the reality that catalyst, the workforce investment development strategies and facilitating two-thirds of all new jobs are created by system must evolve beyond its current the adoption of common and innovative small businesses. configuration and status. Ideally, the policies across the workforce, (7) The workforce investment system education, and economic development system will be positioned to respond to actively collaborates with economic a variety of economic conditions with systems and structures that support development, business, and education talent development in a regional talent development strategies that range partners to gather and analyze a wide from retrofitting an economy in an area economy; array of current and real-time workforce • Reorganizing governance structures where an entire industry is being and economic data in order to create to operate on a regional basis and in a reengineered, to building new industries new knowledge about regional way that reduces administrative costs, from the ground up, to building an economies and support strategic streamlines service delivery systems, entrepreneurial culture that fosters job planning, routinely track economic and increases flexibility to address the creation. conditions, measure outcomes, and needs of State and regional economies; The challenge for the workforce benchmark economic competitiveness • Promoting the engagement of investment system is to become agile in the global marketplace. strategic partners who drive investments enough to serve an economy driven by in economic regions and align spending C. System Reform and Increased Focus innovation, recognizing the reality that within a regional economic vision for on Workforce Education and Training approximately two-thirds of all new jobs talent development; are created by small businesses. Jobs in The needs of the 21st century labor • Using State set-aside funds to today’s economy increasingly hinge on market are radically different from what respond more efficiently to economic specialized skills, as 90 percent of the we have known in the past, and for trends and shocks, enabling State and fastest growing jobs require education which most workers are currently Local Workforce Investment Boards and training past high school. trained. As a result, the American greater agility; Therefore, it is imperative that the economy is facing a shortage of skilled • Increasing use of system resources system continue its transformation as a workers which necessitates a talent for training through targeted policies catalyst in reshaping talent development development system that cultivates an such as setting a specific percentage of strategies in support of regional educated and prepared workforce WIA funding that must be devoted to economic competitiveness. While the committed to life-long learning. The training and transforming the use of workforce investment system has following strategies can help advance an WIA formula funds to postsecondary implemented a number of key strategies essential culture of life-long learning: education and lifelong learning to become increasingly demand-driven, • K–12 and alternative education opportunities aligned with the region’s new strategies are needed in the curricula must be designed to talent development strategy; workforce investment system to drive academically prepare students to • Promoting the use of Registered regional economic growth. The successfully move into postsecondary Apprenticeship as an important talent workforce system must transform to be education as well as prepare students development strategy and a critical relevant in the 21st century economy. for success in the workplace through a postsecondary education, employment Elements of transformation include: range of strategies. and training opportunity as part of the (1) The workforce investment system • Educational strategies for adult suite of options offered through the operates as a talent development learners must offer more entry and exit workforce system; system; it is no longer defined as a job points in recognition that students will • Developing statewide polices to training system. Its goal is an educated need to earn and learn simultaneously. guide the use of assessments of

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individuals to enhance service delivery E. A Vision for Serving Youth Most in Recognizing the critical need to for business and job seekers; and Need reconnect out-of-school youth with high • Developing comprehensive, user- Currently, there are nearly four quality educational opportunities, the friendly economic data and skills million youth who are not in school, do Youth Vision emphasizes the information to enable informed not have a diploma, and are not development of academically rigorous decisions by the system, and its working. Over 30 percent of our youth alternative education pathways. WIA- customers and partners. are dropping out of high school funded Youth programs should serve as nationally, and the number is closer to a catalyst for increasing both the quality D. Enhanced Integration Through the 50 percent in many urban areas. In an and quantity of alternative learning One-Stop Delivery System With attempt to address this problem, the environments and connecting out-of- Improved Service Delivery and U.S. Department of Labor has developed school youth with secondary and Increased Efficiencies a Youth Vision which proposes that the postsecondary educational public workforce investment system opportunities and high-growth The workforce investment system, as employment opportunities. A system for currently constituted, struggles to meet serve the neediest youth: youth aging out of foster care, those involved with serving out-of-school youth should the challenges of educating and training include high quality educational a workforce that is prepared to compete the juvenile justice system, children of incarcerated parents, migrant youth, programs that will meet the learning in today’s economy. This is partly due styles and needs of youth who need to to the lack of integration, which causes Native American youth, and youth with disabilities. Transforming the system to be reconnected to educational too much money to be spent on opportunities. competing bureaucracies, overhead meet this objective requires that the costs, and unnecessary infrastructure, current capacity, knowledge, and F. Increased Economic and Workforce and not enough on meaningful skills models in the workforce investment Information Data Integration and system be strengthened. Transformation training that leads to job growth and Analysis is also necessary if the system is to meet economic prosperity. The ultimate ETA reaffirms and strengthens its new performance expectations and the objective is a workforce system that message about the centrality of specific performance measures for out- eliminates duplicative costs for physical workforce information for the workforce of-school youth literacy and numeracy infrastructure, information systems, and system leaders, and their economic gains, diploma attainment, and administrative and managerial development, business, and education transition to postsecondary education. personnel; this will enable the system to Governors must continue to provide partners. To be successful in its new devote scarce resources to more strong leadership in advancing the role as a catalyst for leading talent efficiently and effectively implement vision for serving youth most in need. development, the workforce investment talent development strategies across States should expand upon existing system needs to actively collaborate multiple programs. efforts by aligning resources to address with its partners to gather and analyze In addition to infrastructure barriers and challenges and increase a wide array of current and real-time integration, integrated service delivery opportunities to access postsecondary workforce and economic data in order to remains essential to a demand-driven education. States are encouraged to compile new knowledge about regional workforce system that effectively serves expand their cross-agency partnerships economies and support strategic businesses and individuals. The to ensure the right set of agencies: planning, routinely track economic workforce investment system must • Are represented in the development conditions, measure outcomes, and benchmark economic competitiveness operate as a seamless system of a coordinated strategic plan; in the global marketplace. functionally organized around service • Build upon State-level collaborative efforts by conducting strategic planning Not only is workforce information delivery rather than an array of separate critical to support decisions of the programs with separate processes. The sessions to better understand the range of issues that impact their ability to national State and local political objective is for ‘‘customers’’ to be seen leadership, economic developers, as customers of the workforce serve the neediest youth; • business and industry, investors, and investment system, not of a particular Develop a comprehensive understanding of resources that are educators and to drive the investments program. This goal is particularly of the workforce investment system, it is important when focusing on targeted available in the State for serving the neediest youth; also a fundamental tool for guidance populations such as veterans, • counselors, students, job seekers, and individuals with disabilities, military Conduct analyses that identify where gaps in services and resource workers. The provision of workforce spouses, migrant and seasonal farm information in an economic context, workers, older workers, and others. All coordination exist; and • Develop new strategies for serving through easy-to-use electronic tools will of these populations need access to all the neediest youth through jointly empower customers in career planning of the services in a One-Stop Career funded solicitations. and lifelong learning required by today’s Center. States should also engage employers dynamic global economy. Achieving the goal of integrated and civic leaders to identify demand- Fulfilling the mandate for leadership service delivery requires strong State driven workforce solutions that address in workforce and economic information leadership to overcome administrative the unique challenges that out-of-school can only occur by embracing a wide challenges and to foster a policy youth present. This includes building array of data sources, greater integration environment conducive to the the capacity of the workforce system to of the data, more complex analysis, new integration of funding, facilities, and provide services to these youth in a strategies for making it available to service delivery. The WIA State business solutions environment by strategic partners engaged in developing planning process offers a vehicle for the identifying replicable models and regional economic agendas and talent governor and State Workforce innovative business solutions which development strategies. Accomplishing Investment Board to set forth policy connect secondary and postsecondary this requires collaboration among the expectations for integration and to help education, businesses and industry owners of the data and developing eliminate obstacles. associations, and the workforce system. methods to leverage public and private

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resources to produce the economic and advance their strategic goals. States have support the existing WIA performance workforce intelligence needed in a received waivers in multiple program measures that are required to convey regional economy. areas, during this and the previous five- full and accurate information on the year planning cycle, that have allowed performance of workforce programs to G. Effective Utilization of Faith-Based them to implement a wide range of policymakers and stakeholders. and Community Organizations innovations to transform their workforce Part III. Unified Planning Instructions In every community, including those systems. States have received waivers facing high poverty rates and other that: • Note: The statutes cited in parentheses serious challenges, there are faith-based Increase training opportunities by refer to the authorizing legislation for each and community organizations (FBCOs) permitting the use of a portion of local respective program. This Unified Planning working to improve their community. area formula funds or funds reserved for guidance only relates to planning These organizations can be valuable rapid response activities to provide requirements; it does not affect the statutory partners for the workforce investment incumbent worker training. and regulatory requirements relating to other system. The Department of Labor (DOL) • Decrease the amount that small and aspects of programs included in the Plan. encourages States to build and medium-sized businesses need to invest strengthen both monetary and non- in order to take advantage of WIA’s A. State Vision and Priorities monetary partnerships with FBCOs. provision for customized and on-the-job Describe the governor’s vision for a These partnerships can strengthen training. statewide workforce investment system. participant outcomes by expanding • Allow States to choose the most Provide a summary articulating the access to services that complement appropriate mix of youth services governor’s vision for utilizing the those provided by the One-Stop Career needed within each local and regional resources of the workforce investment Center, including job readiness and life economy. system in support of the State’s skills training and niche and specialized DOL provides technical assistance on economic development that addresses services. These partnerships can also waivers and work-flex and provides the issues and questions below. States create new ‘‘points of access’’ to the information on the waiver strategies are encouraged to attach more detailed One-Stop’s electronic tools and job States have utilized to date. documents to expand upon any aspect search assistance in many struggling I. An Integrated and Enhanced of the summary response if available. communities. Performance Accountability System (WIA § 112(a) and (b)(4)(A–C).) Two distinct activities are critical to 1. What are the State’s economic That Provides Improved System Results utilizing fully the complementary development goals for attracting, strengths of FBCOs. First, States must In an effective accountability system, retaining and growing business and ensure compliance with the DOL’s equal a clear link exists between the State’s industry within the State? (§ 112(a) and treatment regulations 29 CFR part 2, program and service delivery design and (b)(4)(A–C).) subpart D. Compliance includes taking the results achieved. Further, the 2. Given that a skilled workforce is a the administrative steps necessary to performance information should be key to the economic success of every create a ‘‘level playing field’’ for all available and easily understood by all business, what is the governor’s vision organizations willing to join with the customers, stakeholders, and operators for maximizing and leveraging the broad government in service, including faith- of the workforce investment system. array of Federal and State resources based groups and other non-traditional While great strides have been made in available for workforce investment community partners. our reporting system in recent years, the flowing through the State’s cabinet Second, States should actively accountability outcomes for the agencies and/or education agencies in cultivate FBCO partnerships to expand workforce investment system have not order to ensure a skilled workforce for the reach of the workforce investment yet reached all goals. In addition, the State’s business and industry? system and to improve outcomes for various reporting requirements for the (§ 112(a) and (b)(4)(A–C).) participants, including high-need multiple programs operated by the 3. Given the continuously changing individuals. workforce investment system impede skill needs that business and industry the integrated service delivery system have as a result of innovation and new H. Increased Use of Flexibility required for the demand-driven technology, what is the governor’s Provisions in WIA workforce systems that support regional vision for ensuring a continuum of To fuel regional economic economic competitiveness. To address education and training opportunities competitiveness and create employment this issue, DOL implemented a set of that support a skilled workforce? opportunities for workers, States should common performance measures for (§ 112(a) and (b)(4)(A–C).) exercise their authority to design and many of its workforce programs, 4. What is the governor’s vision for implement innovative strategies. States including WIA title IB, the Wagner- bringing together the key players in should take advantage of flexibility Peyser Act, and the Trade Adjustment workforce development including provisions under current legislative Assistance Act. The common measures business and industry, economic authority, including waivers and work- allow DOL to clearly state the core development, education, and the flex, to tailor service delivery and purposes of all the programs operated workforce system to continuously program design to fit the unique by the workforce investment system— identify the workforce challenges facing characteristics of their workforce areas. helping people find jobs; stay employed; the State and to develop innovative The State planning process is a and improve earnings. strategies and solutions that effectively vehicle for identifying waiver The common measures are the leverage resources to address those opportunities and formally requesting foundation of DOL’s evolving challenges? (§ 112(b)(10).) waivers, including extensions of performance accountability system. 5. What is the governor’s vision for approved waivers, in concert with DOL continues to collect from States ensuring that every youth has the overall strategic planning. States are and grantees other information on opportunity to develop and achieve strongly encouraged to think about program activities, participants, and career goals through education and flexibility in broad terms and to utilize outcomes necessary for program workforce training, including youth the flexibility provided by WIA to management, including data that most in need, such as youth who are:

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Out of school, homeless, in foster care system, and education partners (K–12, c. What actions has the State taken to or aging out of foster care, offenders, community colleges, and others) for the promote identifying One-Stop children of incarcerated parents, purpose of continuously identifying infrastructure costs and developing migrant and seasonal farmworker youth, workforce challenges and developing models or strategies for local use that have disabilities, or are other youth at solutions to targeted industries’ support integration? (§ 112(b)(14).) risk? (§ 112(a).) workforce challenges? (§ 112(b)(8).) d. How does the State use the funds 6. Given the labor shortage that will e. What State strategies are in place to reserved for statewide activities continue to increase over the next 25 ensure that sufficient system resources pursuant to §§ 129(b)(2)(B) and years, describe the governor’s vision for are being spent to support training of 134(a)(2)(B)(v) to assist in the how it will ensure that older individuals individuals in high growth/high establishment and operation of One- receive workforce training that will demand industries? (§ 112(b)(4)(A) and Stop delivery systems? (§ 112(b)(14).) prepare them to reenter the labor market 112(b)(17)(A)(i).) e. How does the State ensure the full and become a workforce solution for f. What workforce strategies does the spectrum of assets in the One-Stop employers. (§ 112(b)(17)(A)(iv).) State have to support the creation, delivery system support human capital solutions for businesses and individual B. One-Stop Delivery System sustainability, and growth of small businesses and support for the customers broadly? (§ 112(b)(14).) 1. Describe the State’s comprehensive workforce needs of small businesses as vision of an integrated service delivery C. Plan Development and part of the State’s economic strategy? Implementation system, including the role each program (§ 112(b)(4)(A) and 112(b)(17)(A)(i).) incorporated in the Unified Plan in the g. How are the funds reserved for 1. Describe the methods used for joint delivery of services through that system. statewide activities used to incent the planning and coordination of the In answering this question, if the entities that make up the State’s programs and activities included in the Unified Plan includes WIA title I and workforce investment system at the Unified Plan. (WIA § 501(c)(3)(A).) The authorizing statutes for many of Wagner-Peyser Act and/or Veterans State and local levels to achieve the the programs that may be included in a Programs: governor’s vision and address the Unified Plan require that the State Plan a. Identify how the State will use WIA national strategic direction identified in be developed in consultation with title I funds to leverage other Federal, Part I of this guidance? (§ 112(a).) various public and private entities, as State, local, and private resources in h. Describe the State’s strategies to well as members of the general public. order to maximize the effectiveness of promote collaboration between the Some statutes also require formal public such resources and to expand the workforce system, education, human hearings. Depending upon the programs participation of business, employees, services, juvenile justice, and others to that a State chooses to include in its and individuals in the statewide better serve youth that are most in need Unified Plan, it may be possible for the workforce investment system. and have significant barriers to State to satisfy many of these (§ 112(b)(10).) employment, and to successfully b. What strategies are in place to consultation requirements through a connect them to education and training address the national strategic direction single set of processes. opportunities that lead to successful discussed in Part II of this guidance, the 2. Describe the process used by the employment. (§ 112(b)(18)(A).) governor’s priorities, and the workforce State to provide an opportunity for i. Describe the State’s strategies to development issues identified through public comment and participation for identify State laws, regulations, and the analysis of the State’s economy and each of the programs covered in the policies that impede successful labor market? (§ 112(a) and Unified Plan. achievement of workforce development 112(b)(4)(D).) In addition, if the Unified Plan c. Based on the State’s economic and goals and strategies to change or modify includes: labor market analysis, what strategies them. (§ 112(b)(2).) a. WIA Title I and Wagner-Peyser Act has the State implemented or does the j. Describe how the State will take and/or Veterans Programs, describe the State plan to implement to identify and advantage of the flexibility provisions in process used by the State, consistent target industries and occupations within WIA for waivers and the option to with section 111(g) of WIA, to provide the State that are high growth, high obtain approval as a workflex State an opportunity for public comment, demand, and vital to the State’s pursuant to § 189(i) and § 192. including comments by representatives economy? (§ 112(a) and 112(b)(4)(A).) 2. Describe the actions the State has of business and representatives of labor The State may want to consider: taken to ensure an integrated One-Stop organizations, and input into • Industries projected to add a service delivery system statewide. development of the Plan, prior to substantial number of new jobs to the (§§ 112(b)(14) and 121).) submission of the Plan. economy; a. What State policies and procedures b. AEFLA, describe the process that • Industries that have a significant are in place to ensure the quality of will be used for public participation and impact on the overall economy; service delivery through One-Stop comment with respect to the AEFLA • Industries that impact the growth of Career Centers such as development of portion of the Unified Plan. other industries; minimum guidelines for operating (§ 224(b)(9).) • Industries that are being comprehensive One-Stop Career c. TANF, the State shall make transformed by technology and Centers, competencies for One-Stop available to the public a summary of any innovation that require new skill sets for Career Center staff or development of a Plan or Plan amendment submitted by workers; or certification process for One-Stop Career the State under this section. With • Industries that are new and Centers? (§ 112(b)(14).) respect to the TANF plan design, the emerging and are expected to grow. b. What policies or guidance has the State should describe how local d. What strategies are in place to State issued to support maximum governments and private sector promote and develop ongoing and integration of service delivery through organizations have been consulted sustained strategic partnerships that the One-Stop delivery system for both regarding the plan and design of welfare include business and industry, business customers and individual services in the State so that the services economic development, the workforce customers? (§ 112(b)(14).) are provided in a manner appropriate to

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local populations; and have had at least unit to such input and c. Food Stamp Employment and 45 days to submit comments on the plan recommendations) Training (E&T), explain the method and the design of such services. d. CSBG: used to: (§ 402(c).) • Low-income individuals i. Estimate the number and d. CSBG, provide evidence that the • Community organizations characteristics of the expected pool of public participation requirements were • Religious organizations work registrants during the fiscal year; • met, including documents which Representatives of low-income ii. Estimate the number of work confirm that a legislative public hearing individuals registrants the State agency intends to on the State Plan was conducted as e. TANF: exempt from E&T, along with a required by subsection 675(b) and that • Local governments discussion of the proposed exemption • the Plan was also made available for Private sector organizations criteria; public inspection and review as States must consult local governments iii. Estimate the number of required by subsection 675(d)(2). and private sector organizations placements into E&T components 3. Describe the types of activities and regarding the plan and design of during the fiscal year; outcomes that were conducted to meet services in the State so that services are iv. Estimate the number of ABAWDs the consultation requirement. provided in a manner appropriate to (able-bodied adults without dependents) Demonstrate, as appropriate, how local populations. Local governments in the State during the fiscal year; comments were considered in the Plan and private sector organizations must v. Estimate the number of ABAWDs in development process including specific have had at least 45 days to submit both waived and unwaived area of the information on how the various WIA comments on the plan and the design of State during the fiscal year; agency and program partners were such services. vi. Estimate the average monthly involved in developing the unified State D. Needs Assessment number of ABAWDs included in the Plan. State’s 15 percent exemption allowance, The following agencies, groups, or 1. Many of the programs that may be included in a Unified Plan require a along with a discussion of how the State individuals must be consulted if the intends to apply the exemption; Unified Plan includes: needs assessment. State agencies should fulfill these assessment responsibilities vii. Estimate the number of qualifying a. WIA title I, Wagner-Peyser Act, or education/training and workfare Veterans Programs: (§ 112(b)(1) and collaboratively or, at a minimum, create a planning process that promotes the opportunities for ABAWDs the State 112(b)(9)) will create during the fiscal year. • The governor of the State sharing of needs assessment information • among all agencies involved in d. Vocational Rehabilitation: State Board i. Assess the needs of individuals • Local chief elected officials preparing the Unified Plan. Sharing of with disabilities in the State, • Business community assessment data can create a framework • Labor organizations for the coordination and integration of particularly the vocational rehabilitation needs of individuals with the most The following agencies, groups and services that are to be provided through significant disabilities (including their individuals should also be consulted for the One-Stop delivery system. The State need for supported employment WIA title I, Wagner-Peyser, or Veterans may organize the presentation of services), individuals with disabilities Programs: Local Boards and Youth assessment data in its Unified Plan in a who have been unserved or under- Councils, educators, Vocational manner it deems most appropriate and served by the vocational rehabilitation Rehabilitation Agencies, service useful for planning, such as on a program, and individuals with providers, welfare agencies, faith and program-by-program basis, by disabilities served through other community-based organizations and the geographic region, or by special components of the statewide workforce State Employment Security Agency. population. investment system. In addition, describe the role of the Describe the educational and job- (§§ 101(a)(15)(A)(i)(I–III) and 625(b)(2).) State Board and Local Boards in training needs of individuals in the ii. Include State estimates of the planning and coordination in the overall State population and of relevant number of individuals in the State who Unified Plan (§ 501(c)(3).) subgroups of all the programs included in the Unified Plan. are eligible for services under title I of Note: While WIA only requires the In answering this question, if the the Rehabilitation Act, the number of involvement of State Board and Local Boards Unified Plan includes: such individuals who will receive in the planning and coordination of the services provided with funds provided programs and activities authorized under a. WIA Title I and Wagner-Peyser Act title I, the intent of the Unified Plan approach and/or Veterans Programs, identify the under part B of title I and under part B is to enable all the relevant parties in an area, types and availability of workforce of title VI (including, if the designated if they so choose, to come together more investment activities currently in the State agency uses an order of selection, readily to coordinate their activities in the State. (§ 112(b)(4)(A–D).) estimates of the number of individuals best interests of the population to be served. b. AEFLA, objectively assess the adult to be served under each priority However coordination is achieved, nothing education and literacy needs of category within the order), and the costs in the Unified Plan or in WIA itself permits individuals, including an assessment of of the services provided (including, if a Board or any other entity to alter the those most in need and hardest to serve, the designated State agency uses an decisions made by another program grantee including low income students, order of selection, the service costs for in accord with that grantee’s statutes. individuals with disabilities, single each priority category within the order.) b. AEFLA (§ 224(d)): parents, displaced homemakers, and (§ 101(a)(15)(B).) • Governor of the State (any individuals with multiple barriers to iii. Provide an assessment of the need comments made by the governor must educational enhancement (including to establish, develop, or improve be included in the Plan) individuals with limited English community rehabilitation programs c. Vocational Rehabilitation proficiency, criminal offenders in within the State. (§ 101(a)(15)(A)(ii).) (§ 101(a)(21)(A)(ii)(III.): correctional institutions and other e. HUD Employment and Training • State Rehabilitation Council (include institutionalized individuals.) Programs: Address the educational and the response of the designated State (§§ 224(b)(10) and 225).) training needs of public housing

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residents and other families receiving partner programs managed by each a. Describe the steps the State will housing assistance. agency. take to improve operational Reminder: this question is a b. In a narrative describe how the collaboration of the workforce suggestion for incorporating HUD agencies involved in the public investment activities and other related programs into the State’s Unified Plan. workforce investment system interrelate activities and programs outlined in However, following this guidance will on workforce and economic section 112(b)(8)(A), at both the State not trigger funding for HUD programs. development issues and the respective and local level (e.g., joint activities, 2. WIA Title I and Wagner-Peyser Act lines of authority. memoranda of understanding, planned Economic and Labor Market Analysis ii. State Workforce Investment Board: mergers, coordinated policies, etc.). (§ 112(b)(4)): As a foundation for this a. Describe the organization and How will the State Board and agencies Plan and to inform the strategic structure of the State Board. (§ 111.) eliminate any existing State-level investments and strategies that flow b. Include a description of the process barriers to coordination? (§§ 111(d)(2) from this Plan, provide a detailed by which State and Local Boards were and 112(b)(8)(A).) analysis of the State’s economy, the created. b. Describe the lines of labor pool, and the labor market context. c. Identify the organizations or communication established by the Elements of the analysis should include entities represented on the State Board. governor to ensure open and effective the following: If you are using an alternative entity sharing of information among the State a. What is the current makeup of the which does not contain all the members agencies responsible for implementing State’s economic base by industry? required under section 111(b)(1), the vision for the workforce system and b. What industries and occupations describe how each of the entities between the State agencies and the State are projected to grow and/or decline in required under this section will be Workforce Investment Board. c. Describe the lines of the short term and over the next decade? involved in planning and implementing communication and mechanisms c. In what industries and occupations the State’s workforce investment system established by the governor to ensure is there a demand for skilled workers as envisioned in WIA. How is the timely and effective sharing of and available jobs, both today and alternative entity achieving the State’s information between the State agencies/ projected over the next decade? WIA goals? (§§ 111(a–c), 111(e), and State Board and local workforce Estimate projected demand. 112(b)(1).) investment areas and Local Boards. d. What jobs/occupations are most d. Describe the process the State used Include types of regularly issued critical to the State’s economy? to identify the State Board members. e. What are the skill needs for the guidance and how Federal guidance is How did you select Board members, disseminated to Local Boards and One- available, critical and projected jobs? including business representatives, who f. What is the current and projected Stop Career Centers. (§ 112(b)(1).) have optimum policy-making authority demographics of the available labor pool iv. Describe any cross-cutting and who represent diverse regions of the (including the incumbent workforce) organizations or bodies at the State level State as required under WIA? Describe both now and over the next decade? designed to guide and inform an how the Board’s membership enables g. Is the State experiencing any ‘‘in integrated vision for serving youth in you to achieve the vision described migration’’ or ‘‘out migration’’ of the State within the context of above. (20 CFR 661.200) workers that impact the labor pool? workforce investment, social services, h. Based on an analysis of both the e. Describe how the Board carries out juvenile justice, and education. Describe projected demand for skills and the its functions as required in section the membership of such bodies and the available and projected labor pool, what 111(d) and 20 CFR 661.205. Include functions and responsibilities in skill gaps is the State experiencing functions the Board has assumed that establishing priorities and services for today and what skill gaps are projected are in addition to those required. youth? How is the State promoting a over the next decade? Identify any functions required in collaborative cross-agency approach for i. Based on an analysis of the section 111(d) the Board does not both policy development and service economy and the labor market, what perform and explain why. delivery at the local level for youth? workforce development issues has the f. How will the State Board ensure (§ 112(b)(18)(A).) State identified? that the public (including people with v. Describe major State policies and j. What workforce development issues disabilities) has access to Board requirements that have been established has the State prioritized as being most meetings and information regarding to direct and support the development critical to its economic health and State Board activities, including of a statewide workforce investment growth? membership and meeting minutes? (20 system not described elsewhere in this CFR 661.207).) Plan as outlined below. (§ 112(b)(2).) E. State and Local Governance g. Identify the circumstances which a. What State policies and systems are 1. What is the organization, structure, constitute a conflict of interest for any in place or planned to support common and role/function of each State and local State or Local Workforce Investment data collection and reporting processes, entity that will govern the activities of Board member or the entity that s/he information management, integrated the Unified Plan? represents, and any matter that would service delivery, and performance In answering this question, if the provide a financial benefit to that management? (§§ 111(d)(2) and Unified Plan includes: member or his or her immediate family. 112(b)(8)(B).) a. WIA Title I and Wagner-Peyser Act (§§ 111(f), 112(b)(13), and 117(g).) b. What State policies are in place that and/or Veterans Programs: h. What resources does the State promote efficient use of administrative i. Organization of State agencies: provide the Board to carry out its resources such as requiring more co- a. Provide an organizational chart that functions, e.g., staff, funding, etc.? location and fewer affiliate sites in local delineates the relationship to the iii. What is the structure/process for One-Stop systems to eliminate governor of the agencies involved in the the State agencies and State Board to duplicative facility and operational workforce investment system, including collaborate and communicate with each costs or to require a single education and economic development other and with the local workforce administrative structure at the local and the required and optional One-Stop investment system (§ 112(b)(8)(A).): level to support Local Boards and to be

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the fiscal agent for WIA funds to avoid member or his or her immediate family. with section 101(a)(2)(A). duplicative administrative costs that (§§ 111(f), 112(b)(13), and 117(g).) (§ 101(a)(2)(A).) could otherwise be used for service ix. Identify the policies and c. TANF, describe the objective delivery and training? Include any procedures to be applied by local areas criteria for the delivery of benefits and specific administrative cost controls, for determining eligibility of local level the determination of eligibility and for plans, reductions, and targets for training providers, how performance fair and equitable treatment, including reductions, if the State has established information will be used to determine an explanation of how the State will them. (§§ 111(d)(2) and 112(b)(8)(A).) continuing eligibility and the agency provide opportunities for recipients c. What State policies are in place to responsible for carrying out these who have been adversely affected to be promote universal access and activities. Describe how the State heard in a State administrative or appeal consistency of service statewide? solicited recommendations from Local process. (§ 402(a)(1)(B)(iii).) (§ 112(b)(2).) Boards and training providers and F. Funding d. What policies support a demand- interested members of the public, driven approach to workforce including representatives of business What criteria will the State use, development, as described in Part II and labor organizations, in the subject to each program’s authorizing ‘‘Demand-Driven Workforce Investment development of these policies and law, to allocate funds for each of the System within a Regional Economic procedures. programs included in the Unified Plan? Context,’’ such as training on the x. Individual Training Accounts Describe how the State will use funds economy and labor market data for (ITAs): the State receives to leverage other Local Board and One-Stop Career Center a. What policy direction has the State Federal, State, local, and private staff? (§§ 112(b)(4) and provided for ITAs? resources, in order to maximize the 112(b)(17)(A)(iv).) b. Describe innovative training effectiveness of such resources, and to e. What policies are in place to ensure strategies used by the State to fill skills expand the participation of business, that the resources available through the gaps. Include in the discussion the employees, and individuals in the Federal and/or State Registered State’s effort to broaden the scope and statewide workforce investment system. Apprenticeship programs, the Job Corps reach of ITAs through partnerships with (WIA § 112(b)(10).) and SCSEP are fully integrated with the business, education, economic In answering this question, if the State’s One-Stop delivery system? development, and industry associations Unified Plan includes: 1. WIA Title I and Wagner-Peyser Act (§§ 112)(b)(17)(A)(iv) and (b)(18)(C).) and how business and industry and/or Veterans Programs (§ 112(b)(12): involvement is used to drive this vi. Local Area Designations—Identify a. If applicable, describe the methods strategy. the State’s designated local workforce and factors (including weights assigned investment areas and the date of the c. Discuss the State’s plan for to each factor) the State will use to most recent area designation, including committing all or part of WIA title I distribute funds to local areas for the 30 whether the State is currently re- funds to training opportunities in high- percent discretionary formula Adult designating local areas. (§§ 112(b)(5).) growth, high-demand, and economically employment and training funds and Include a description of the process vital occupations. Youth funds pursuant to sections used to designate such areas. Describe d. Describe the State’s policy for 128(b)(3)(B) and 133(b)(3)(B). how the State considered the extent to limiting ITAs (e.g., dollar amount or b. Describe how the allocation which such local areas are consistent duration). methods and factors help ensure that with labor market areas: geographic e. Describe the State’s current or funds are distributed equitably areas served by local and intermediate planned use of WIA title I funds for the throughout the State and that there will education agencies, post-secondary provision of training through Registered be no significant shifts in funding levels education institutions and area Apprenticeship. to a local area on a year-to-year basis. vocational schools; and all other criteria f. Identify State policies that permit c. Describe the State’s allocation identified in section 116(a)(1) in the use of WIA title I financial formula for dislocated worker funds establishing area boundaries, to assure assistance to employ or train under 133(b)(2)(B). coordinated planning. Describe the State participants in religious activities when d. Describe how the individuals and Board’s role, including all the assistance is provided indirectly, entities on the State Board were recommendations made on local such as through an ITA. involved in the development of the designation requests pursuant to xi. Identify the criteria to be used by methods and factors, and how the State § 116(a)(4). (§§ 112(b)(5) and 116(a)(1).) Local Boards in awarding grants for consulted with Chief Elected Officials in Describe the appeals process used by Youth activities, including criteria that local areas throughout the State in the State to hear appeals of local area the governor and Local Boards will use determining such distribution. designations referred to in § 116(a)(5) to identify effective and ineffective e. Describe the procedures and criteria and 112(b)(15). Youth activities and providers of such that are in place under 20 CFR 663.600 vii. Local Workforce Investment activities. (§ 112(b)(18)(B).) for the governor and appropriate Local Boards—Identify the criteria the State xii. Describe the competitive and non- Boards to direct One-Stop operators to has established to be used by the Chief competitive processes that will be used give priority of service to public Elected Official(s) in the local areas for at the State level to award grants and assistance recipients and other low- the appointment of Local Board contracts for activities under title I of income individuals for intensive and members based on the requirements of WIA, including how potential bidders training services if funds allocated to a section 117. (§§ 112(b)(6), 117(b).) are being made aware of the availability local area for adult employment and viii. Identify the circumstances which of grants and contracts. (§ 112(b)(16).) training activities are determined to be constitute a conflict of interest for any b. Vocational Rehabilitation, limited. (§§ 112(b)(17)(A)(iv) and State or Local Workforce Investment designate a State agency as the sole 134(d)(4)(E).) Board member or the entity that s/he State agency to administer the Plan, or f. Specify how the State will use the represents, and any matter that would to supervise the administration of the 10 percent Wagner-Peyser Act funds provide a financial benefit to that Plan by a local agency, in accordance allotted to it under section 7(b) in

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accordance with the three provisions of justification for the order. surveys, transactional data from job allowable activities: performance (§ 101(a)(5)(A)–(B).) boards, and information obtained incentives; services for groups with 6. CSBG: Describe how the State directly from businesses. (§§ 111(d)(8), special needs; and extra costs of intends to use discretionary funds made 112(b)(1), and 134(d)(2)(E).) exemplary service delivery models. available from the remainder of the i. Describe how the State will (§ 112(b)(7) and 20 CFR 652.204).) grant or allotment described in section integrate workforce information into its 2. Adult Education and Family 675C(b), including a description of how planning and decision-making at the Literacy: the local entity will use the funds to State and local level, including State a. Describe how the eligible agency support innovative community and and Local Boards, One-Stop operations, will fund local activities in accordance neighborhood-based initiatives. and case manager guidance. with the considerations described in ii. Describe the approach the State section 231(e) and the other G. Activities To Be Funded will use to disseminate accurate and requirements of title II of WIA. For each of the programs in the timely workforce information to (§ 224(b).) Unified Plan, provide a general businesses, job seekers, and b. Describe the process to show that description of the activities the State employment counselors, in easy to use public notice was given of the will pursue using the relevant funding. formats that are readily accessible availability of Federal funds to eligible In answering the above question, if within One-Stop Career Centers and at recipients and the procedures for the Unified Plan includes: remote locations such as libraries, submitting applications to the State, 1. WIA Title I and Wagner-Peyser Act schools, worksites, and at home. including approximate time frames for and/or Veterans Programs: iii. Describe how the activities funded the notice and receipt of applications. Describe the approaches the State will through the Workforce Information (§ 231(c).) use to provide direction and support to grants are aligned with other workforce c. Describe how the eligible agency Local Boards and the One-Stop Career investment activities to ensure that the will use funds made available under Center delivery system on the strategic investments in core products and section 222(a)(2) for State leadership priorities to guide investments, services support the State’s overall activities. (§ 223(a).) structure business engagement, and strategic direction for workforce d. Describe the steps the eligible inform service delivery approaches for investment. agency will take to ensure direct and all customers. (§ 112(b)(17)(A).) iv. Describe how State workforce equitable access, as required in section a. One-Stop Service Delivery information products and tools are 231(c). (§ 224(b)(12).) Strategies: (§ 111(d)(2) and 112(b)(2).) coordinated with the national electronic 3. Food Stamp Employment and i. How will the services provided by workforce information tools including Training: Estimate the total cost of the each of the required and optional One- America’s Career Information Network State’s E&T program and identify the Stop partners be coordinated and made and Career Voyages. source of funds according to the format available through the One-Stop system? c. Adults and Dislocated Workers for Table 5, Planned Fiscal Year Costs, (§ 112(b)(8)(A).) i. Core Services. (§ 112(b)(17)(a)(i).) contained in the most current release of ii. How are Youth formula programs a. Describe State strategies and ‘‘The Handbook on Preparing State funded under § 128(b)(2)(A) integrated policies to ensure adults and dislocated Plans for Food Stamp Employment and in the One-Stop system? workers have universal access to the Training Programs.’’ iii. What minimum service delivery minimum required core services as 4. TANF: Indicate the name, address, requirements does the State mandate in described in § 134(d)(2). and EIN number of the TANF a comprehensive One-Stop Career b. Describe how the State will ensure administering agency and estimate for Center or an affiliate site? the three-tiered service delivery strategy each quarter of the fiscal year by iv. What tools and products has the for labor exchange services for job percentage the amount of TANF grant State developed to support service seekers and employers authorized by that it wishes to receive. delivery in all One-Stop Career Centers the Wagner-Peyser Act includes (1) self- 5. Vocational Rehabilitation: statewide? service, (2) facilitated self-help service, a. Describe how the State will utilize v. What models/templates/approaches and (3) staff-assisted service, and is funds reserved for the development and does the State recommend and/or accessible and available to all customers implementation of innovative mandate for service delivery in the One- at the local level. approaches to expand and improve the Stop Career Centers? For example, do all c. Describe how the State will provision of vocational rehabilitation One-Stop Career Centers have a uniform integrate resources provided under the services to individuals with disabilities method of organizing their service Wagner-Peyser Act and WIA title I for under the State Plan, particularly delivery to business customers? Is there adults and dislocated workers as well as individuals with the most significant a common individual assessment resources provided by required One- disabilities. (§ 101(a)(18)(B).) process utilized in every One-Stop Stop partner programs, to deliver core b. Describe the quality, scope, and Career Center? Are all One-Stop Career services. extent of supported employment Centers required to have a resource ii. Intensive Services. Describe State services authorized under the Act to be center that is open to anyone? strategies and policies to ensure adults provided to individuals who are eligible b. Workforce Information—A and dislocated workers who meet the under the Act to receive the services. fundamental component of a demand- criteria in § 134(d)(3)(A) receive (§ 625(b)(3).) driven workforce investment system is intensive services as defined. c. In the event that vocational the integration and application of the iii. Training Services. Describe the rehabilitation services cannot be best available State and local workforce governor’s vision for increasing training provided to all eligible individuals with information including, but not limited access and opportunities for individuals disabilities in the State who apply for to, economic data, labor market including the investment of WIA title I services, indicate the order to be information, Census data, private funds and the leveraging of other funds followed in selecting eligible sources of workforce information and resources. individuals to be provided vocational produced by trade associations and iv. Eligible Training Provider List. rehabilitation services and provide the others, educational data, job vacancy Describe the State’s process for

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providing broad customer access to the 2. What efforts does the Rapid guidance from the Veterans’ statewide list of eligible training Response team make to ensure that Employment and Training Service. providers and their performance rapid response services are provided, e. Youth. ETA’s strategic vision information including at every One-Stop whenever possible, prior to layoff date, identifies youth most in need, such as Career Center. (§ 112(b)(17)(A)(iii).) onsite at the company, and on company youth who are: Out-of-school, at risk, in v. On-the-Job (OJT) and Customized time? foster care or aging out of foster care, Training (§ 112(b)(17)(A)(i) and 134(b).) 3. What services are included in offenders, children of incarcerated Based on the outline below, describe the Rapid Response activities? Does the parents, homeless, and migrant and State’s major directions, policies and Rapid Response team provide seasonal farmworker youth as those requirements related to OJT and workshops or other activities in most in need of service. State programs customized training. addition to general informational and services should take a a. Describe the governor’s vision for services to affected workers? How do comprehensive approach to serving increasing training opportunities to you determine what services will be these youth, including basic skills individuals through the specific provided for a particular layoff remediation; helping youth stay in or delivery vehicles of OJT and customized (including layoffs that may be trade- return to school, employment, or training. affected)? internships; and helping youth attain a b. Describe how the State: 4. How does the State ensure a high school diploma or GED, post- 1. Identifies OJT and customized seamless transition between Rapid secondary vocational training, training opportunities; Response services and One-Stop Registered Apprenticeship, or 2. Markets OJT and customized activities for affected workers? enrollment in community and four-year training as incentives to untapped 5. Describe how Rapid Response colleges. (§ 112(b)(18).) employer pools including new business functions as a business service. Include i. Describe the State’s strategy for to the State and employer groups; whether Rapid Response partners with providing comprehensive, integrated 3. Partners with high-growth, high- economic development agencies to services to eligible youth, including demand industries and economically connect employees from companies those most in need as described above. vital industries to develop potential OJT undergoing layoffs to similar companies Include any State requirements and and customized training strategies; that are growing and need skilled activities to assist youth who have 4. Taps business partners to help workers. How does Rapid Response special needs or barriers to employment, drive the strategy through joint promote the full range of services including those who are pregnant, planning, competency and curriculum available to help companies in all stages parenting, or have disabilities. Include development; and determining of the economic cycle, not just those how the State will coordinate across appropriate lengths of training, and available during layoffs? How does the State agencies responsible for workforce 5. Leverages other resources through State promote Rapid Response as a investment, foster care, education, education, economic development and positive, proactive, business-friendly human services, juvenile justice, and industry associations to support OJT service, rather than only as a reactive other relevant resources as part of the and customized training ventures. service? strategy. (§ 112(b)(18).) vi. Veterans’ Priority of Service. What 6. What other partnerships does Rapid ii. Describe how coordination with policies and strategies does the State Response engage in to expand the range Job Corps and other youth programs will have in place to ensure that, pursuant to and quality of services available to occur. (§ 112(b)(18)(C).) the Jobs for Veterans Act (Pub. L. 107– companies and affected workers and to iii. How does the State Plan to utilize 288) (38 U.S.C. 4215), that priority of develop an effective early layoff the funds reserved for statewide service is provided to veterans and warning network? activities to support the State’s vision certain spouses who otherwise meet the 7. What systems does the Rapid for serving youth? Examples of activities eligibility requirements for all Response team use to track its activities? that would be appropriate investments employment and training programs Does the State have a comprehensive, of these funds include: funded by the U.S. Department of Labor, integrated Management Information a. Utilization of the funds to promote in accordance with the provisions of System that includes Rapid Response, cross agency collaboration; Training and Employment Guidance Trade Act programs, National b. Demonstration of cross-cutting Letter 5–03 (9/16/03)? Emergency Grants, and One-Stop models of service delivery; vii. Rapid Response. Describe how the activities? c. Development of new models of State provides Rapid Response services 8. Are Rapid Response funds used for alternative education leading to with the funds reserved under section other activities not described above; e.g., employment; or 133(a)(2). the provision of additional assistance to d. Development of demand-driven a. Identify the entity responsible for local areas that experience increased models with business and industry providing Rapid Response services. workers or unemployed individuals due working collaboratively with the Describe how Rapid Response activities to dislocation events? workforce investment system and involve Local Boards and Chief Elected d. Veterans Programs. For the grant education partners to develop strategies Officials. If Rapid Response activities period FY 2005–FY 2009, States for bringing these youth successfully are shared between the State and local submitted five year strategic plans to into the workforce pipeline with the areas, describe the functions of each and operate Disabled Veterans’ Outreach right skills. how funds are allocated to the local Programs (DVOP) and Local Veterans’ iv. Describe in general how the State areas. Employment Representative (LVER) will meet the Act’s provisions regarding b. Describe the process involved in programs under the Jobs for Veterans Youth program design. (§§ 112(b)(18) carrying out Rapid Response activities. Act. These plans may be incorporated and 129(c).) 1. What methods are involved in by reference as part of a state’s Unified f. Business Services. receiving notice of impending layoffs Plan. Modifications to these five year i. Describe how the needs of (include WARN Act notice as well as Jobs for Veterans Act plans will be employers will be determined in the other sources)? managed in accordance with policy local areas and on a statewide basis.

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ii. Describe how integrated business 4. TANF: Outline how the State f. Describe the procedures for services, including Wagner-Peyser Act intends to: assessing job aptitudes, job readiness, services, will be delivered to employers a. Conduct a program, designed to and job preferences of participants and through the One-Stop system. serve all political subdivisions in the their potential for transition into iii. How will the system streamline State (not necessarily in a uniform unsubsidized employment. administration of Federal tax credit manner), that provides assistance to g. Describe how the assessment will programs within the One-Stop system to needy families with (or expecting) be used to develop the participant’s maximize employer participation (20 children and provides parents with job Individual Employment Plan (IEP). CFR 652.3(b), § 112(b)(17)(A)(i).) preparation, work, and support services h. Describe how the participant will g. Innovative Service Delivery to enable them to leave the program and be assigned to community service Strategies. Describe innovative service become self-sufficient. including: The types of community delivery strategies the State has or is (§ 402(a)(1)(A)(i).) service activity that will be emphasized planning to undertake to maximize b. Require a parent or caretaker and how they were chosen; methods resources, increase service levels, receiving assistance under the program used to match participants with improve service quality, achieve better to engage in work (as defined by the community service training; the extent integration or meet other key State State) once the State determines the to which participants will be placed in goals. Include in the description the parent or caretaker is ready to engage in the administration of the project itself; initiative’s general design, anticipated work, or once the parent or caretaker the types of host agencies used and the outcomes, partners involved and funds has received assistance under the procedures and criteria for selecting the leveraged (e.g., title I formula, statewide program for 24 months (whether or not assignments; the average number of reserve, employer contributions, consecutive), whichever is earlier, hours in a participant’s training week; education funds, non-WIA State funds). consistent with section 407(e)(2). the average wage paid during training; (§ 112(b)(17)(A).) (§ 402(a)(1)(A)(ii).) the fringe benefits offered (if any); h. Strategies for Faith-Based and c. Ensure that parents and caretakers procedures for ensuring adequate Community Organizations receiving assistance under the program supervision. i. Describe those activities to be engage in work activities in accordance i. Describe the training that will be undertaken to: with section 407. (§ 402(a)(1)(A)(iii).) provided during community service a. Increase the opportunities for d. Take such reasonable steps as training and any other types of training participation of faith-based and deemed necessary to restrict the use and provided, including linkages with local community organizations as committed disclosure of information about One-Stop Career Centers, the Registered and active partners in the One-Stop individuals and families receiving Apprenticeship Program, and the delivery system; and assistance under the program Disability Program Navigators. b. Expand the access of faith-based attributable to funds provided by the j. Describe the supportive services and community organizations’ clients Federal government. (§ 402(a)(1)(A)(iv).) that will be offered to help participants and customers to the services offered by e. Describe the financial eligibility obtain and retain an unsubsidized job. the One-Stops in the State. criteria and corresponding benefits and k. Describe arrangements that will be ii. Outline those action steps designed services covered with State made to provide transportation to strengthen State collaboration efforts Maintenance of Effort (MOE) funds. assistance to participants. with local workforce investment areas This description applies to State MOE l. Describe the steps that will be taken in conducting outreach campaigns to funds that are used in the State’s TANF to move or place participants into educate faith-based and community program or used to fund a separate State unsubsidized employment, including organizations about the attributes and program. cooperative measures that will be taken objectives of the demand-driven 5. SCSEP: Provide a description of with the One-Stop Delivery System, and workforce investment system. iii. Indicate how these resources can each project function or activity and that support the Administration’s focus be strategically and effectively leveraged how the State will implement the on high-growth industries. Any grantee in the State’s workforce investment project. The following activities should that failed to meet at least 20 percent areas to help meet the objectives of the be discussed separately: (title V of the unsubsidized placements in program Workforce Investment Act. Older Americans Act, as amended.) year 2004 must submit a corrective (§ 112(b)(17)(i).) a. Describe how the services proposed action plan. 2. Adult Education and Literacy support the State Senior Employment m. Describe any policy for maximum Services, including workplace literacy Services Coordination Plan. duration of enrollment or maximum services: b. Describe how recruitment and time in community service. a. Describe the State’s family literacy selection of participants will be n. Describe procedures for terminating services. achieved under Training and a participant, including Individual b. Describe the State’s English literacy Employment Guidance Letter 13–04 and Employment Plan terminations and the programs. the regulations at 20 CFR 641.500 and grievance procedures that will address 3. Food Stamp Employment and 641.525. Include a description of the termination from the program. Training: new recruitment strategies that will be o. Describe the procedures for a. Describe the components of the used to reach the target population. addressing and resolving participant State’s E&T program. c. Describe how participant income complaints. b. Discuss the weekly/monthly hours will be recertified each year, including p. Describe procedures for over of participation required of each where eligibility records will be enrolling participants, including how program component. maintained. over enrollments will be balanced with c. Describe planned combinations of d. Describe the arrangements that will Equitable Distribution requirements. components to meet the statutory be made to offer physical examinations q. Describe steps that will be taken to requirement of 20 hours of participation as a required fringe benefit. ensure compliance with the per week to qualify as a work program e. Describe the orientation procedures Maintenance of Effort provision of for ABAWDS. for participants and host agencies. section 501(b)(1)(F).

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r. Describe payroll procedures and under part A of title IV of the Social a. Describe the steps the State will how workers’ compensation premiums Security Act. take to improve operational are paid. b. Secure and retain meaningful collaboration of the workforce s. Describe collaboration efforts with employment. investment activities and other related the One-Stop System and with other c. Attain an adequate education, with activities and programs outlined in partner programs under the Workforce particular attention toward improving section 112(b)(8)(A), at both the State Investment Act to maximize literacy skills of the low-income and local level (e.g., joint activities, opportunities for SCSEP participants. families in the communities involved, memoranda of understanding, planned t. Describe efforts to work with local which may include carrying out family mergers, coordinated policies, etc.). economic development offices in rural literacy initiatives. How will the State Board and agencies locations. d. Make better use of available eliminate any existing State-level u. Describe current slot imbalances income. barriers to coordination? (§§ 111(d)(2) and proposed steps to correct inequities e. Obtain and maintain adequate and 112(b)(8)(A).) to achieve equitable distribution. housing and a suitable living b. Describe the lines of v. List the cities and counties where environment. communication and mechanisms the project and subprojects will be f. Obtain emergency assistance established by the governor to ensure conducted. Include the number of through loans, grants, or other means to timely and effective sharing of SCSEP authorized positions and meet immediate and urgent family and information between the State agencies/ indicate where the positions changed individual needs. State Board and local workforce from the prior year. g. Achieve greater participation in the investment areas and Local Boards. w. Describe the organizational Include types of regularly issued affairs of the communities involved, structure of the project and how guidance and how Federal guidance is including the development of public subprojects will be managed, including disseminated to Local Boards and One- and private grassroots partnerships with assurances that adequate resources for Stop Career Centers. (§ 112(b)(1).) administrative costs will be provided. local law enforcement agencies, local c. Describe any cross-cutting Also describe the training that will be housing authorities, private foundation, organizations or bodies at the State level provided to local staff and describe how and other public and private partners. designed to guide and inform an projects will be monitored for program h. Create youth development integrated vision for serving youth in and financial compliance, including programs that support the primary role the State within the context of audit plans. of the family, give priority to the workforce investment, social services, x. Describe how the State will manage prevention of youth problems and juvenile justice, and education. Describe its providers and how it will transfer crime, and promote increased the membership of such bodies and the participants if new providers are community coordination and functions and responsibilities in selected to serve in the State. collaboration in meeting the needs of establishing priorities and services for y. Include a proposed level for each youth, and support development and youth. How is the State promoting a performance measure for each of the expansion of innovative community- collaborative cross-agency approach for program years covered by the Plan. based youth development programs that both policy development and service While the Plan is under review or have demonstrated success in delivery at the local level for youth? through a subsequent modification, the preventing or reducing youth crime. (§ 112(b)(18)(A).) State will negotiate with the Division of i. Provide supplies, services, 2. Adult Education and Family Adult Services, Older Worker Unit to set nutritious foods, and related services, as Literacy, describe how the Adult the appropriate levels for the next year. may be necessary to counteract Education and Family Literacy activities At a minimum, States must identify the conditions of starvation and that will be carried out with any funds performance indicators required under malnutrition among low-income received under AEFLA will be the Interim Final Rule for performance individuals. integrated with other adult education, accountability published on June 29, H. Coordination and Non-Duplication career development, and employment 2007, and, for each indicator, the State and training activities in the State or must develop an objective and Describe how the State will outlying area served by the eligible quantifiable performance goal for the coordinate and integrate the services agency. (§ 224(b)(11).) next year. The performance measures provided through all of the programs 3. Vocational Rehabilitation: include: Entered employment, identified in the Unified Plan in order Describe the State agency’s plans, employment retention, average earnings, to meet the needs of its customers, policies, and procedures for service level, service to most in need, ensure there is no overlap or coordination with the following and community service. duplication among the programs, and agencies or programs: z. Describe any request for an increase ensure collaboration with key partners a. Federal, State and local agencies in administrative costs consistent with and continuous improvement of the and programs, including programs section 502(c)(3) of the Older Americans workforce investment system. (States carried out by the Under Secretary for Act. are encouraged to address several Rural Development of the Department of aa. Describe plans to provide a copy coordination requirements in a single Agriculture and State use of contracting of this section to Area Agencies on narrative, if possible.) programs to the extent that such Aging consistent with section 502(d) of In answering the above question, if agencies and programs are not carrying the Older American Act. the Unified Plan includes: out activities through the statewide 6. CSBG, explain how the activities 1. WIA Title I and Wagner-Peyser Act workforce investment system. funded will: and/or Veterans Programs (§ 101(a)(11)(C).) a. Remove obstacles and solve Structure/Process for State agencies b. Education officials responsible for problems that block the achievement of and State Board to collaborate and the public education of students with self-sufficiency, including those families communicate with each other and with disabilities, including a formal and individuals who are attempting to the local workforce investment system. interagency agreement with the State transition off a State program carried out (§ 112(b)(8)(A).) educational agency. (§ 101(a)(11)(D).)

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c. Private, nonprofit vocational benefits in accordance with section and agricultural employers. How will rehabilitation service providers through 3(c)(3) of the Wagner-Peyser Act. the State ensure that migrant and the establishment of cooperative iii. Describe how the State seasonal farmworkers have equal access agreements. (§ 101(a)(24)(B).) administers the unemployment to employment opportunities through d. Other State agencies and insurance work test and how feedback the State’s One-Stop delivery system? appropriate entities to assist in the requirements (under § 7(a)(3)(F) of the Include the number of migrant and provision of supported employment Wagner-Peyser Act) for all UI claimants seasonal farmworkers the State services. (§ 625(b)(4).) are met. anticipates reaching annually through e. Other public or nonprofit agencies iv. Describe the State’s strategy for outreach to increase their ability to or organizations within the State, integrating and aligning services to access core, intensive, and training employers, natural supports, and other dislocated workers provided through services in the One-Stop Career Center entities with respect to the provision of the WIA rapid response, WIA dislocated System. extended services. (§ 625(b)(5).) worker, and Trade Adjustment b. Adult Education and Family 4. Unemployment Insurance, Assistance (TAA) programs. Does the Literacy: summarize requests for any Federal State have a policy supporting co- i. Low income students partner assistance (primarily non- enrollment for WIA and TAA? (§ 224(b)(10)(A).) financial) that would help the SWA (§ 112(b)(17)(A)(ii and iv).) ii. Individuals with disabilities v. How is the State’s workforce attain its goal. (§ 224(b)(10)(B).) investment system working 5. CSBG, describe how the State and iii. Single parents and displaced collaboratively with business and eligible entities will coordinate homemakers (§ 224(b)(10)(C).) industry and the education community programs to serve low-income residents iv. Individuals with multiple barriers to develop strategies to overcome to educational enhancement, including with other organizations, including: barriers to skill achievement and individuals with limited English a. Religious organizations. employment experienced by the proficiency (§ 224(b)(10)(D).) b. Charitable groups. populations listed above in section v. Criminal offenders in correctional c. Community organizations. (b)(i)(a.) of this section and to ensure institutions and other institutionalized they are being identified as a critical I. Special Populations and Other Groups individuals (§ 225.) pipeline of workers? 1. Describe how the State will develop vi. Describe how the State will ensure c. TAA and NAFTA–TAA, describe program strategies to target and serve that the full array of One-Stop services how rapid response and basic special populations. States may present are available to individuals with readjustment services authorized under information about their service disabilities and that the services are other Federal laws will be provided to strategies for those special populations fully accessible. trade-impacted workers. that are identified by multiple Federal vii. Describe the role LVER/DVOP d. Vocational Rehabilitation: programs as they deem most appropriate staff have in the One-Stop delivery i. Minorities with most significant and useful for planning purposes, system. How will the State ensure disabilities. (§ 21(c).) including by special population or on a adherence to the legislative e. TANF: indicate whether the State program-by-program basis. requirements for veterans’ staff? How intends to: In providing this description, if the will services under this Plan take into i. Treat families moving into the State Unified Plan includes any of the consideration the agreement reached from another State differently than other programs listed below, please address between the Secretary and the State families under the program, and if so, the following specific relevant regarding veterans’ employment how the State intends to treat such populations: programs? (§§ 112(b)(7), 322, 38 U.S.C. families under the program; a. WIA Title I and Wagner-Peyser Act Chapter 41 and 20 CFR 1001.120.) ii. Provide assistance under the and/or Veterans Programs viii. Department of Labor regulations program to individuals who are not (§ 112(b)(17)(A)(iv) and 112(b)(17)(B)): at 29 CFR 37 require all recipients of citizens of the United States, and if so, i. Describe the State’s strategies to Federal financial assistance from DOL to include an overview of such assistance ensure that the full range of provide meaningful access to LEP (§ 402(a)(1)(B) (i) and (ii)); and employment and training programs and individuals. Federal financial assistance iii. Outline how the State intends to services delivered through the State’s includes grants, training, equipment conduct a program designed to reach One-Stop delivery system are accessible usage, donations of surplus property, State and local law enforcement to and will meet the needs of dislocated and other assistance. The regulations officials, the education system, and workers, displaced homemakers, low- also apply to sub-recipients when relevant counseling services, that income individuals such as migrants Federal DOL funds are passed through provides education and training on the and seasonal farmworkers, women, from one recipient to a sub-recipient. problem of statutory rape so that teenage minorities, individuals training for non- Describe how the State will ensure pregnancy prevention programs may be traditional employment, veterans, access to services through the State’s expanded in scope to include men. public assistance recipients and One-Stop delivery system by persons (§ 401(a)(1)(A)(vi).) individuals with multiple barriers to with limited English proficiency and f. SCSEP (§ 3(a)(1).): Indicate how the employment (including older how the State will meet the State will meet the priority for serving individuals, limited English proficiency requirements of ETA Training and individuals age 65 and older and (LEP) individuals, and people with Employment Guidance Letter (TEGL) individuals disabilities). (§ 112(b)(17)(iv).) 26–02 (May 29, 2003) which provides i. with a disability; ii. Describe the reemployment guidance on methods of complying with ii. with limited English proficiency or services you will provide to the Federal rule. low literacy skills; unemployment insurance claimants and ix. Describe the State’s strategies to iii. who live in a rural area; the Worker Profiling services provided enhance and integrate service delivery iv. who are veterans; to claimants identified as most likely to through the One-Stop delivery system v. who have low employment exhaust their unemployment insurance for migrant and seasonal farmworkers prospects;

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vi. who have failed to find i. What oversight of the local planning In this section, describe how the State employment after utilizing services process is provided, including receipt measures the success of its strategies in under WIA; and review of Plans and negotiation of achieving its goals, and how the State vii. who are homeless or at risk for performance agreements? and uses these data to continuously improve homelessness. ii. How does the local plan approval the system. g. CSBG: Please address the following process ensure that local plans are i. Describe the State’s performance specific relevant populations in consistent with State performance goals accountability system, including any answering question 1: and State strategic direction? State-system measures and the State’s i. Low-income families. c. Oversight/Monitoring Process— performance goals established with ii. Families and individuals receiving Describe the monitoring and oversight local areas. Identify the performance assistance under part A of title IV of the criteria and procedures the State utilizes indicators and goals the State has Social Security Act (42 U.S.C. 601 et to move the system toward the State’s established to track its progress toward seq.). vision and achieve the goals identified meeting its strategic goals and iii. Homeless families and above, such as the use of mystery implementing its vision for the individuals. shoppers, performance agreements. workforce investment system. For each iv. Migrant or seasonal farmworkers. (§ 112(b)(14).) of the core indicators, explain how the v. Elderly low-income individuals 2. Vocational Rehabilitation, describe State worked with Local Boards to and families. the designated State agency’s policies, determine the level of the performance vi. Youth in low-income procedures and activities to establish goals. Include a discussion of how the communities. and maintain a comprehensive system levels compare with the State’s previous h. HUD Employment and Training of personnel development designed to outcomes as well as with the State- Programs: (Reminder: The following is a ensure an adequate supply of qualified adjusted levels of performance suggestion for incorporating HUD State rehabilitation professional and established for other States (if available), programs into the State’s Unified Plan. paraprofessional personnel for the taking into account differences in However, following this guidance will designated State unit pursuant to economic conditions, the characteristics not trigger funding for HUD programs): section 101(a)(7) of the Act. (§ 101(a)(7).) of participants when they entered the i. Public housing residents. program and the services to be ii. Homeless and other groups. K. Performance Accountability provided. Include a description of how 2. Identify the methods of collecting Nothing in this guidance shall relieve the levels will help the State achieve data and reporting progress on the a State of its responsibilities to comply continuous improvement over the life of special populations described in with the accountability requirements of the Plan. (§§ 112(b)(3) and 136(b)(3).) question 1 of this section. ii. Describe any targeted applicant WIA titles I and II, including, for 3. If the Plan includes Adult groups, such as TANF recipients, example, the requirements to Education and Family Literacy or Veterans, ex-offenders, and migrant and renegotiate performance levels at Vocational Rehabilitation, describe the seasonal farmworkers, under WIA title I, statutorily defined points. The steps the eligible agency will take to the Wagner-Peyser Act or Title 38 appropriate Secretary will negotiate ensure equitable access to, and equitable Chapters 41 and 42 (Veterans adjusted levels of performance with the participation in, projects or activities Employment and Training Programs) State for these programs prior to carried out with the respective funds by that the State tracks. (§§ 111(d)(2), approving the State Plan. addressing the special needs of student, 112(b)(3) and 136(b)(2)(C).) teachers, and other program 1. What are the State’s performance iii. Identify any performance beneficiaries in order to overcome methodologies, indicators and goals in outcomes or measures in addition to barriers to equitable participation, measurable, quantifiable terms for each those prescribed by WIA and what including barriers based on gender, race, program included in the Unified Plan process is the State using to track and color, national origin, disability, and and how will each program contribute report them. age. (§ 427(b) General Education to achieving these performance goals? iv. Describe the State’s common data Provisions Act.) (Performance indicators are generally system and reporting processes in place set out by each program’s statute.) to track progress. Describe what J. Professional Development and System In answering the above question, if performance information will be Improvement the Unified Plan includes: collected from the various One-Stop How will the State develop personnel a. WIA Title I and Wagner-Peyser Act partners (beyond that required by DOL), to achieve the performance indicators and/or Veterans Programs: use of quarterly wage records, and how for the programs included in the Plan? Improved performance and the statewide system will have access to In answering this question, if the accountability for customer-focused the information needed to continuously Unified Plan includes: results are central features of WIA. To improve. (§ 112(b)(8)(B).) 1. WIA Title I and Wagner-Peyser Act improve, States need not only reporting v. Describe any actions the governor and/or Veterans Programs: systems in place to collect data and and State Board will take to ensure a. Capacity of Local Boards—How track outcomes based on service collaboration with key partners and will the State build the capacity of Local delivery, but also performance continuous improvement of the Boards to develop and manage high management and accountability systems statewide workforce investment system. performing local workforce investment to analyze the information and modify (§§ 111(d)(2) and 112(b)(1).) system? (§§ 111(d)(2) and 112(b)(14).) strategies to improve performance. (See vi. How do the State and Local Boards b. Local Planning Process—Describe Training and Employment Guidance evaluate performance? What corrective the State mandated requirements for Letter (TEGL) 17–05, Common Measures actions (including sanctions and local workforce areas’ strategic Policy for the Employment and Training technical assistance) will the State take planning. What assistance does the State Administration’s (ETA) Performance if performance falls short of provide to local areas to facilitate this Accountability System and Related expectations? How will the State and process, (§ 112(b)(2) and 20 CFR Performance Issues, issued February 17, Local Boards use the review process to 661.350(a)(13)), including: 2006.) reinforce the strategic direction of the

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system? (§§ 111(d)(2), 112(b)(1), and ii. Describe the standards and b. To the extent the goals were not 112(b)(3).) procedures that the State will use to achieved, a description of the factors vii. Include a proposed level for each monitor activities carried out in that impeded that achievement. performance measure for each program furtherance of the Plan and will use to c. An assessment of the performance year covered by the Plan. While the Plan ensure long-term compliance with of the State on the standards and is under review, the State will negotiate requirements of the programs involved, indicators established pursuant to with the respective ETA Regional including the comprehensive planning section 106 of the Act. Administrator to set the appropriate requirements. (§ 91.330) (§ 101(a)(15)(E)(i).) levels for the applicable year. States 2. Has the State developed any 2. Unemployment Insurance, must identify the performance common performance goals applicable a. Explain the reason(s) for the indicators required under section 136, to multiple programs? If so, describe the measurement areas in which the State’s and, for each indicator, the State must goals and how they were developed. performance is deficient. develop an objective and quantifiable b. Include a description of the performance goal for each program year L. Data Collection actions/activities which will be covered by the Plan. States are 1. What processes does the State have undertaken to improve performance. encouraged to address how the in place to collect and validate data to c. If a Corrective Action Plan was in performance goals for local workforce track performance and hold providers/ place the previous fiscal year, provide investment areas and training providers operators/sub-grantees accountable? an explanation of why the actions contained in that Plan were not will help them attain their statewide In answering the above question, if successful in improving performance, performance goals. (§§ 112(b)(3) and the Unified Plan includes: 136).) and an explanation of why the actions a. WIA Title I and Wagner-Peyser Act now specified will be more successful. b. Adult Education and Family and/or Veterans Programs, describe the Literacy: d. Describe plans for monitoring and State’s common data system and assessing accomplishments of planned i. Include a description of how the reporting processes in place to track eligible agency will evaluate annually actions and for controlling quality after progress. Describe what data will be achieving performance goals. the effectiveness of the Adult Education collected from the various One-Stop and Family Literacy activities, such as partners (beyond that required by DOL), N. Waiver and Work-Flex Requests a comprehensive performance use of quarterly wage records, and how Will the State be requesting waivers accountability system, based on the the statewide system will have access to as a part of this Unified Plan? performance measures in section 212. the information needed to continuously In answering this question, the ii. Identify levels of performance for improve. (§ 112(b)(8)(B).) following waiver provisions apply if the the core indicators of performance b. Food Stamp Employment & Unified Plan includes: described in section 212(b)(2)(A) for the Training, describe how employment and 1. WIA Title I and Wagner-Peyser Act first three program years covered by the training data will be compiled and and/or Veterans Programs: States may Plan (§ 212(b)(3)(A)(ii).), and any where responsibility for employment submit a Workforce Flexibility (Work- additional performance indicators and training reporting is Flex) Plan under WIA section 192 and/ selected by the eligible agency. (§ 212 organizationally located at the State or a General Statutory Waiver Plan (b)(2)(B).) level. Include the department, agency, under WIA section 189(i) as part of the iii. Describe how such performance and telephone number for the person(s) WIA title I Plan. These Waiver Plans indicators or measures will be used to responsible for both financial and non- may also be submitted separately, in ensure the improvement of Adult financial employment & training (E&T) which case they must identify related Education and Family Literacy activities reporting. provisions in the State’s title I Plan. in the State or outlying area. State Waiver Plans should be developed (§ 224(b)(4).) 2. What common data elements and reporting systems are in place to in accordance with planning c. TANF, outline how the State requirements at Subpart D of 20 CFR intends to establish goals and take promote integration of Unified Plan activities? Part 661.420. action to prevent and reduce the 2. Vocational Rehabilitation: If a State incidence of out of wedlock M. Corrective Action requests a waiver of the statewide pregnancies, with special emphasis on Describe the corrective actions the requirement identified in assurance teenage pregnancies. (§ 402(a)(1)(A)(v).) number 13 for the vocational d. SCSEP: Provisions on performance State will take for each program, as applicable, if performance does not rehabilitation program in Section III of are set forth in section G.1. (g)(xxv) of this Unified Planning guidance, the these instructions. meet expectations. In answering the above question, if request must be made in accordance e. CSBG: with the provisions of 34 CFR 361.26(b). i. Describe how the State and all the Unified Plan includes: eligible entities in the State will 1. Vocational Rehabilitation, include Part IV. Certifications and Assurances participate in the Results Oriented the results of an evaluation of the The following certifications and Management and Accountability effectiveness of the vocational assurances apply to the extent that the System, a performance measure system rehabilitation program, and a report programs and activities are included in pursuant to section 678E(b) of the Act, jointly developed with the State the State Unified Plan. or an alternative system for measuring Rehabilitation Council (if the State has performance and results that meets the a Council) on the progress made in A. General Certifications and requirements of that section, and a improving effectiveness from the Assurances description of outcome measures to be previous year including: By signing the Unified Plan signature used to measure eligible entity a. An evaluation of the extent to page, you are certifying that: performance in promoting self- which program goals were achieved and 1. The methods used for joint sufficiency, family stability, and a description of the strategies that planning and coordination of the community revitalization. contributed to achieving the goals. programs and activities included in the

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Unified Plan included an opportunity Intergovernmental Review Process. promote, or deter union organizing. for the entities responsible for planning [Executive Order 12372] (§ 181(b)(7).) or administering such programs and 8. The State assures that it will D. Debarment, Drug-Free Work Place, activities to review and comment on all comply with the nondiscrimination and Lobbying Certification portions of the Unified Plan. (WIA, provisions of section 188, including an § 501(c)(3)(B).) By signing the Unified Plan signature assurance that a Methods of If you submit the Unified Plan by page, you are certifying that the Administration has been developed and posting it on an Internet Web site, you Department of Education grantee has implemented. (§ 188.) are certifying that: filed ED 80–0013. This form also applies 9. The State assures that it will collect 2. The content of the submitted Plan to AEFLA and RSA. States can print ED and maintain data necessary to show will not be changed after it is submitted. 80–0013 from http://ocfo.ed.gov/ compliance with the nondiscrimination Plan modifications must be approved by grntinfo/appforms.htm. provisions of section 188. (§ 185.) the reviewing State agency. It is the 10. The State assures that it will E. WIA Title I/Wagner-Peyser Act/ responsibility of the designated agency comply with the grant procedures Veterans Programs to circulate the modifications among the prescribed by the Secretary (pursuant to other agencies that may be affected by By signing the Unified Plan signature the authority at section 189(c) of the the changes. page, you are certifying that: Act) which are necessary to enter into 1. The State assures that it will grant agreements for the allocation and B. Non-Construction Programs establish, in accordance with section payment of funds under the Act. The By signing the Unified Plan signature 184 of the Workforce Investment Act, procedures and agreements will be page, you are certifying that the grantee fiscal control and fund accounting provided to the State by the ETA Office has filed the Government-wide standard procedures that may be necessary to of Grants and Contract Management and assurances for non-construction ensure the proper disbursement of, and will specify the required terms and programs (SF 424). States can print SF accounting for, funds paid to the State conditions and assurances and 424 from http://ocfo.ed.gov/grntinfo/ through the allotments made under certifications, including, but not limited appforms.htm. sections 127 and 132. (§ 112(b)(11).) to, the following: a. General Administrative C. EDGAR Certifications 2. The State assures that it will comply with section 184(a)(6), which Requirements: You must include the following requires the governor to, every two i. 29 CFR part 97—Uniform certifications for each of the State years, certify to the Secretary, that— Administrative Requirements for State agencies that administer one of these a. The State has implemented the and Local Governments (as amended by programs: Adult Education and Literacy uniform administrative requirements the Act). or Vocational Rehabilitation. A State referred to in section 184(a)(3); ii. 29 CFR part 96 (as amended by may satisfy the EDGAR requirement by b. The State has annually monitored OMB Circular A–133)—Single Audit having all responsible State agency local areas to ensure compliance with Act. officials sign a single set of EDGAR the uniform administrative iii. OMB Circular A–87—Cost certifications. requirements as required under section Principles (as amended by the Act). By signing the Unified Plan signature 184(a)(4); and b. Assurances and Certifications: page, you are certifying that: i. SF 424 B—Assurances for Non- c. The State has taken appropriate 1. The Plan is submitted by the State construction Programs. action to secure compliance pursuant to agency that is eligible to submit the ii. 29 CFR part 37— section 184(a)(5). (§ 184(a)(6).) Plan. [34 CFR 76.104(a)(1).] Nondiscrimination and Equal 2. The State agency has authority 3. The State assures that the Adult Opportunity Assurance (and regulation) under State law to perform the functions and Youth funds received under the 29 CFR § 37.20. of the State under the program. [34 CFR Workforce Investment Act will be iii. CFR part 93—Certification 76.104(a)(2)] distributed equitably throughout the Regarding Lobbying (and regulation). 3. The State legally may carry out State, and that no local areas will suffer iv. 29 CFR part 98—Drug Free each provision of the Plan. [34 CFR significant shifts in funding from year to Workplace and Debarment and 76.104(a)(3)] year during the period covered by this Suspension Certifications (and 4. All provisions of the Plan are Plan. (§ 112(b)(12)(B).) regulation). consistent with State law. [34 CFR 4. The State assures that veterans will c. Special Clauses/Provisions: Other 76.104(a)(4)] be afforded employment and training special assurances or provisions as may 5. A State officer, specified by title in activities authorized in section 134 of be required under Federal law or policy, the certification, has authority under the Workforce Investment Act, and the including specific appropriations State law to receive, hold, and disburse activities authorized in chapters 41 and legislation, the Workforce Investment Federal funds made available under the 42 of Title 38 U.S. code. The State Act, or subsequent Executive or Plan. [34 CFR 76.104(a)(5)] assures that it will comply with the Congressional mandates. 6. The State officer who submits the veterans priority established in the Jobs 11. The State certifies that the Plan, specified by title in the for Veterans Act. (38 U.S.C. 4215.) Wagner-Peyser Act Plan, which is part certification, has authority to submit the 5. The State assures that the governor of this document, has been certified by Plan. [34 CFR 76.104(a)(6)] shall, once every two years, certify one the State Employment Security 7. The agency that submits the Plan Local Board for each local area in the Administrator. has adopted or otherwise formally State. (§ 117(c)(2).) 12. The State certifies that veterans’ approved the Plan. [34 CFR 76.104(a)(7)] 6. The State assures that it will services provided with Wagner-Peyser 8. The Plan is the basis for State comply with the confidentiality Act funds will be in compliance with 38 operation and administration of the requirements of section 136(f)(3). U.S.C. Chapter 41 and 20 CFR part 1001. program. [34 CFR 76.104(a)(8)] 7. The State assures that no funds 13. The State certifies that Wagner- 9. A copy of the State Plan was received under the Workforce Peyser Act-funded labor exchange submitted into the State Investment Act will be used to assist, activities will be provided by merit-

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based public employees in accordance F. Adult Education and Family Literacy 4. The State will submit a quarterly with DOL regulations. By signing the Unified Plan signature E&T report, FNS–583. Reports are due 14. The State assures that it will page, you are certifying that: no later than 45 days after the end of comply with the MSFW significant 1. The eligible agency will award not each Federal fiscal quarter. The office requirements in accordance with less than one grant to an eligible information required on the FNS–583 is 20 CFR part 653. provider who offers flexible schedules listed in Exhibit 3 of the ‘‘The 15. The State certifies it has and necessary support services (such as Handbook on Preparing State Plans for developed this Plan in consultation child care and transportation) to enable Food Stamp Employment and Training with local elected officials, Local individuals, including individuals with Programs.’’ Workforce Boards, the business disabilities, or individuals with other 5. The State will submit E&T program community, labor organizations and special needs, to participate in Adult financial information on the SF–269, other partners. Education and Literacy activities, which Financial Status Report. It must include 16. As a condition to the award of eligible provider shall attempt to claims for the 100 percent Federal grant, financial assistance from the coordinate with support services that 50 percent matched funding, and Department of Labor under title I of are not provided under this subtitle participant reimbursements. The SF– WIA, the grant applicant assures that it prior to using funds for Adult Education 269 is due 30 days after the end of each will comply fully with the and Literacy activities provided under Federal fiscal quarter. nondiscrimination and equal AEFLA for support services. 6. The State will deliver each opportunity provisions of the following (§ 224(b)(5).) component of its E&T program through laws: 2. The funds received under subtitle the One-Stop delivery system, an inter- a. Section 188 of the Workforce A of title II of WIA will not be expended connected strategy for providing Investment Act of 1998 (WIA), which for any purpose other than for activities comprehensive labor market and prohibits discrimination against all under subtitle A of title II of WIA. occupational information to job seekers, individuals in the United States on the (§ 224(b)(6).) employers, core services providers, basis of race, color, religion, sex, 3. The eligible agency will expend the other workforce employment activity national origin, age, disability, political funds under subtitle A of title II of WIA providers, and providers of workforce affiliation or belief, and against only in a manner consistent with fiscal education activities. If the component is beneficiaries on the basis of either requirements in section 241. not available locally through such a citizenship/status as a lawfully admitted (§ 224(b)(8).) system, the State may use another immigrant authorized to work in the source. G. Food Stamp Employment and United States or participation in any H. Vocational Rehabilitation WIA title I financially-assisted program Training (FSET) or activity; By signing the Unified Plan signature By signing the Unified Plan signature b. Title VI of the Civil Rights Act of page, you are certifying that: page, you are certifying that: 1964, as amended, which prohibits 1. Federal funds allocated by the 1. As a condition for the receipt discrimination on the bases of race, Department of Agriculture to the State Federal funds under title I, part B of the color and national origin; under section 16(h)(1) of the Food Rehabilitation Act for the provision of c. Section 504 of the Rehabilitation Stamp Act of 1977 (the Act), or vocational rehabilitation services, the Act of 1973, as amended, which provided to the State as reimbursements designated State agency agrees to prohibits discrimination against under sections 16(h)(2) and 16(h)(3) of operate and administer the State qualified individuals with disabilities; the Act will be used only for operating Vocational Rehabilitation Services d. The Age Discrimination Act of an employment and training program Program in accordance with provisions 1975, as amended, which prohibits under section 6(d)(4) of the Act. of this title I State Plan, the Act and all discrimination on the basis of age; and 2. The State will submit to the Food applicable regulations, policies and e. Title IX of the Education and Nutrition Service (FNS) annual procedures established by the Secretary. Amendments of 1972, as amended, updates to its Employment and Training Funds made available under section 111 which prohibits discrimination on the Plan for the coming fiscal year. The of the Act are used solely for the basis of sex in educational programs. updates are due by August 15 of each provision of vocational rehabilitation f. The grant applicant also assures that year. The annual update must include services under title I and the it will comply with 29 CFR part 37 and any changes the State anticipates administration of the title I State Plan. all other regulations implementing the making in the basic structure or 2. As a condition of the receipt of laws listed above. This assurance operation of its program. At a minimum, Federal funds under title VI, part B of applies to the grant applicant’s the annual update must contain the Act for supported employment operation of the WIA title I financially- revisions to Tables 1 (Estimated services, the designated State agency assisted program or activity, and to all Participant Levels), 2 (Estimated E&T agrees to operate and administer the agreements the grant applicant makes to Placement Levels), 4 (Operating State Supported Employment Services carry out the WIA title I financially- Budget), and 5 (Funding Categories). Program in accordance with the assisted program or activity. The grant 3. If significant changes are to be provisions of the supplement to this applicant understands that the United made to its E&T program during the State Plan, the Act, and all applicable States has the right to seek judicial fiscal year, the State will submit to FNS regulations, policies, and procedures enforcement of this assurance. a request to modify its Plan. FNS must established by the Secretary. Funds 17. The State assures that funds will approve the modification request before made available under title VI, part B are be spent in accordance with the the proposed change is implemented. used solely for the provision of Workforce Investment Act and the The State may be liable for costs supported employment services and the Wagner-Peyser Act and their associated with implementation prior to administration of the supplement to the regulations, written Department of approval. See ‘‘The Handbook on title I State Plan. Labor Guidance implementing these Preparing State Plans for Food Stamp 3. The designated State agency or laws, and all other applicable Federal Employment and Training Programs’’ designated State unit is authorized to and State laws. for additional information. submit this State Plan under title I of the

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Act and its supplement under title VI, individuals and groups of individuals goals and priorities, and jointly submits part B of the Act. who are recipients of vocational annual reports of progress with the 4. The State submits only those rehabilitation services, or in appropriate Council, in accordance with the policies, procedures, or descriptions cases, the individual’s representatives; provisions of section 101(a)(15) of the required under this State Plan and its personnel working in programs that Act; regularly consults with the Council supplement that have not been provide vocational rehabilitation regarding the development, previously submitted to and approved services to individuals with disabilities; implementation, and revision of State by the Commissioner of the providers of vocational rehabilitation policies and procedures of general Rehabilitation Services Administration. services to individuals with disabilities; applicability pertaining to the provision (§ 101(a)(1)(B).) the Director of the client assistance of vocational rehabilitation services; 5. The State submits to the program; and the State Rehabilitation includes in the State Plan and in any Commissioner at such time and in such Council, if the State has such a Council. revision to the State Plan, a summary of manner as the Secretary determines to (§ 101(a)(16)(B)) input provided by the Council, be appropriate, reports containing 10. The designated State agency (or, including recommendations from the annual updates of the information as appropriate, agencies) is a State annual report of the Council described relating to the: comprehensive system of agency that is: in section 105(c)(5) of the Act, the personnel development; assessments, a.ll Primarily concerned with review and analysis of consumer estimates, goals and priorities, and vocational rehabilitation, or vocational satisfaction described in section reports of progress; innovation and and other rehabilitation, of individuals 105(c)(4), and other reports prepared by expansion activities; and requirements with disabilities; or the Council, and the response of the under title I, part B or title VI, part B b.ll not primarily concerned with designated State unit to such input and of the Act. (§ 101(a)(23).) vocational rehabilitation, or vocational recommendations, including 6. The State Plan and its supplement and other rehabilitation, of individuals explanations for rejecting any input or are in effect subject to the submission of with disabilities, and includes within recommendation; and transmits to the such modifications as the State the State agency a vocational Council all Plans, reports, and other determines to be necessary or as the rehabilitation bureau, or division, or information required under this title to Commissioner may require based on a other organizational unit that: Is be submitted to the Secretary; all change in State policy, a change in primarily concerned with vocational policies, and information on all Federal law, including regulations, an rehabilitation, or vocational and other practices and procedures, of general interpretation of the Act by a Federal rehabilitation, of individuals with applicability provided to or used by court or the highest court of the State, disabilities, and is responsible for the rehabilitation personnel in carrying out or a finding by the Commissioner of designated State agency’s vocational this title; and copies of due process State noncompliance with the rehabilitation program; has a full-time hearing decisions issued under this title, requirements of the Act, until the State director; has a staff, all or substantially which shall be transmitted in such a submits and receives approval of a new all of whom are employed full time on manner as to ensure that the identity of State Plan or Plan supplement. the rehabilitation work of the the participants in the hearings is kept (§ 101(a)(1)(C).) organizational unit; and is located at an confidential. (§ 101(a)(21).) 7. The State has an acceptable plan for organizational level and has an 12. The State provides for financial carrying out part B of title VI of the Act, organizational status within the participation, or if the State so elects, by including the use of funds under that designated State agency comparable to the State and local agencies, to provide part to supplement funds made that of other major organizational units the amount of the non-Federal share of available under part B of title I of the of the designated State agency. the cost of carrying out title I, part B of Act to pay for the cost of services (§ 101(a)(2)(B).) the Act. (§ 101(a)(3).) leading to supported employment. 11. The designated State agency (or, 13. The Plan is in effect in all political (§ 101(a)(22).) as appropriate, agencies): subdivisions of the State, except that in 8. The designated State agency, prior a.ll Is an independent commission the case of any activity that, in the to the adoption of any policies or that is responsible under State law for judgment of the Commissioner, is likely procedures governing the provision of operating, or overseeing the operation to assist in promoting the vocational vocational rehabilitation services under of, the vocational rehabilitation program rehabilitation of substantially larger the State Plan and supported in the State; is consumer-controlled by numbers of individuals with disabilities employment services under the persons who are individuals with or groups of individuals with supplement to the State Plan, including physical or mental impairments that disabilities, the Commissioner may making any amendment to such policies substantially limit major life activities; waive compliance with the requirement and procedures, conducts public and represent individuals with a broad that the Plan be in effect in all political meetings throughout the State after range of disabilities, unless the subdivisions of the State to the extent providing adequate notice of the designated State unit under the and for such period as may be provided meetings, to provide the public, direction of the commission is the State in accordance with regulations including individuals with disabilities, agency for individuals who are blind; prescribed by the Commissioner, but an opportunity to comment on the includes family members, advocates, or only if the non-Federal share of the cost policies or procedures, and actively other representatives, of individuals of the vocational rehabilitation services consults with the Director of the client with mental impairments; and involved is met from funds made assistance program, and, as appropriate, undertakes the functions set forth in available by a local agency (including Indian tribes, tribal organizations, and section 105(c)(4) of the Act; or funds contributed to such agency by a Native Hawaiian organizations on the b.ll has established a State private agency, organization, or policies or procedures. (§ 101(a)(16)(A).) Rehabilitation Council that meets the individual); and in a case in which 9. The designated State agency takes criteria set forth in section 105 of the earmarked funds are used toward the into account, in connection with matters Act and the designated State unit: non-Federal share and such funds are of general policy arising in the Jointly with the Council develops, earmarked for particular geographic administration of the Plan, the views of agrees to, and reviews annually State areas within the State, the earmarked

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funds may be used in such areas if the applicants and eligible individuals in a using appropriate modes of State notifies the Commissioner that the manner that permits the greatest communication, to assist such State cannot provide the full non- possible cross-classification of data and individuals in preparing for, securing, Federal share without such funds. ensures the confidentiality of the retaining, or regaining employment, and (§ 101(a)(4).) identity of each individual. are appropriately referred to Federal and 14. The State agency employs (§ 101(a)(10)(A) and (F).) State programs, including other methods of administration found by the 19. The designated State agency has components of the statewide workforce Commissioner to be necessary for the the authority to enter into contracts with investment system in the State. proper and efficient administration of for-profit organizations for the purpose (§ 101(a)(20).) the State Plan. (§ 101(a)(6)(A).) of providing, as vocational 26. In the event that vocational 15. The designated State agency and rehabilitation services, on-the-job rehabilitation services cannot be entities carrying out community training and related programs for provided to all eligible individuals with rehabilitation programs in the State, individuals with disabilities under part disabilities in the State who apply for who are in receipt of assistance under A of title VI of the Act, upon the the services, individuals with the most title I of the Act, take affirmative action determination by the designated State significant disabilities, in accordance to employ and advance in employment agency that such for-profit organizations with criteria established by the State for qualified individuals with disabilities are better qualified to provide such the order of selection, will be selected covered under and on the same terms vocational rehabilitation services than first for the provision of vocational and conditions as set forth in section non-profit agencies and organizations. rehabilitation services and eligible 503 of the Act. (§ 101(a)(6)(B).) (§ 101(a)(24)(A).) individuals, who do not meet the order 16. Facilities used in connection with 20. The designated State agency has of selection criteria, shall have access to the delivery of services assisted under cooperative agreements with other services provided through the the State Plan comply with the entities that are components of the information and referral system provisions of the Act entitled ‘‘An Act statewide workforce investment system implemented under section 101(a)(20) to insure that certain buildings financed of the State in accordance with section of the Act. (§ 101(a)(5)(C) and (D).) with Federal funds are so designed and 101(a)(11)(A) of the Act and replicates 27. Applicants and eligible constructed as to be accessible to the these cooperative agreements at the individuals, or, as appropriate, the physically handicapped,’’ approved on local level between individual offices of applicants’ representatives or the August 12, 1968 (commonly known as the designated State unit and local individuals’ representatives, are the ‘‘Architectural Barriers Act of entities carrying out activities through provided information and support 1968’’), with section 504 of the Act and the statewide workforce investment services to assist the applicants and with the Americans with Disabilities system. (§ 101(a)(11)(A) and (B).) eligible individuals in exercising Act of 1990. (§ 101(a)(6)(C).) 21. The designated State unit, the informed choice throughout the 17. If, under special circumstances, Statewide Independent Living Council rehabilitation process, consistent with the State Plan includes provisions for established under section 705 of the the provisions of section 102(d) of the the construction of facilities for Act, and the independent living centers Act. (§ 101(a)(19).) community rehabilitation programs— described in part C of title VII of the Act a. The Federal share of the cost of within the State have developed 28. An individualized plan for construction for the facilities for a fiscal working relationships and coordinate employment meeting the requirements year will not exceed an amount equal to their activities. (§ 101(a)(11)(E).) of section 102(b) of the Act will be 10 percent of the State’s allotment under 22. If there is a grant recipient in the developed and implemented in a timely section 110 for such year; State that receives funds under part C of manner for an individual subsequent to b. The provisions of section 306 (as in the Act, the designated State agency has the determination of the eligibility of effect on the day before the date of entered into a formal agreement that the individual for services, except that enactment of the Rehabilitation Act meets the requirements of section in a State operating under an order of Amendments of 1998) shall be 101(a)(11)(F) of the Act with each grant selection, the Plan will be developed applicable to such construction and recipient. (§ 101(a)(11)(F).) and implemented only for individuals such provisions shall be deemed to 23. Except as otherwise provided in meeting the order of selection criteria; apply to such construction; and part C of title I of the Act, the designated services under this Plan will be c. There shall be compliance with State unit provides vocational provided in accordance with the regulations the Commissioner shall rehabilitation services to American provisions of the individualized plan for prescribe designed to assure that no Indians who are individuals with employment. (§ 01(a)(9).) State will reduce its efforts in providing disabilities residing in the State to the 29. Prior to providing any vocational other vocational rehabilitation services same extent as the designated State rehabilitation services, except: (other than for the establishment of agency provides such services to other • Assessment for determining facilities for community rehabilitation significant populations of individuals eligibility and vocational rehabilitation programs) because the Plan includes with disabilities residing in the State. needs by qualified personnel, including, such provisions for construction. (§ 101(a)(13).) if appropriate, an assessment by (§ 101(a)(17).) 24. No duration of residence personnel skilled in rehabilitation 18. The designated State unit submits, requirement is imposed that excludes technology; in accordance with section 101(a)(10) of from services under the Plan any • Counseling and guidance, including the Act, reports in the form and level of individual who is present in the State. information and support services to detail and at the time required by the (§ 101(a)(12).) assist an individual in exercising Commissioner regarding applicants for 25. The designated State agency has informed choice consistent with the and eligible individuals receiving implemented an information and provisions of section 102(d) of the Act; services under the State Plan and the referral system that is adequate to • Referral and other services to secure information submitted in the reports ensure that individuals with disabilities needed services from other agencies provides a complete count, unless are provided accurate vocational through agreements developed under sampling techniques are used, of the rehabilitation information and guidance, section 101(a)(11) of the Act, if such

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services are not available under this employment setting in a community plans established under other Federal or State Plan; rehabilitation program or any other State programs. (§ 625(b)(6)(E).) • Job-related services, including job employment under section 14(c) of the 37. To the extent job skills training is search and placement assistance, job Fair Labor Standards Act (29 U.S.C. provided, the training will be provided retention services, follow-up services, 214(c)) for 2 years after the achievement on site. (§ 625(b)(6)(F).) and follow-along services; of the outcome (and annually thereafter 38. Supported employment services • Rehabilitation technology, if requested by the individual or, if will include placement in an integrated including telecommunications, sensory, appropriate, the individual’s setting for the maximum number of and other technological aids and representative), to determine the hours possible based on the unique devices; and interests, priorities, and needs of the strengths, resources, priorities, • Post-employment services individual with respect to competitive concerns, abilities, capabilities, consisting of the services listed under employment or training for competitive interests, and informed choice of subparagraphs (a) through (e), to an employment; provides for the input into individuals with the most significant eligible individual, or to members of the the review and reevaluation, and a disabilities. (§ 625(b)(G).) individual’s family, the State unit signed acknowledgment that such 39. The State will expend not more determines whether comparable review and reevaluation have been than 5 percent of the allotment of the services and benefits exist under any conducted, by the individual with a State under title VI, part B for other program and whether those disability, or, if appropriate, the administrative costs of carrying out this services and benefits are available to the individual’s representative; and makes part. (§ 625(b)(7).) individual unless the determination of maximum efforts, including the 40. The supported employment the availability of comparable services identification and provision of supplement to the title I State Plan and benefits under any other program vocational rehabilitation services, contains such other information and be would interrupt or delay: reasonable accommodations, and other submitted in such manner as the • Progress of the individual toward necessary support services, to assist Commissioner of the Rehabilitation achieving the employment outcome such individuals in engaging in Services Administration may require. identified in the individualized plan for competitive employment. (§ 101(a)(14).) (§ 625(b)(8).) employment; 32. Funds made available under title • An immediate job placement; or VI, part B of the Act will only be used I. Unemployment Insurance (UI) • Provision of such service to any to provide supported employment By signing the Unified Plan/SQSP individual who is determined to be at services to individuals who are eligible Signature Page, the State administrator extreme medical risk, based on medical under this part to receive the services. is certifying that the State will comply evidence provided by an appropriate (§ 625(b)(6)(A).) with the following assurances, and that qualified medical professional. 33. The comprehensive assessments the State will institute plans or (§ 101(a)(8)(A).) of individuals with significant measures to comply with the following 30. The governor of the State in disabilities conducted under section requirements. The assurances are consultation with the designated State 102(b)(1) of the Act and funded under identified and explained below: vocational rehabilitation agency and title I will include consideration of A. Assurance of Equal Opportunity other appropriate agencies ensures that supported employment as an (EO). As a condition to the award of there is an interagency agreement or appropriate employment outcome. financial assistance from ETA, the State other mechanism for interagency (§ 625(b)(6)(B).) must assure that the operation of its coordination that meets the 34. An individualized plan for program, and all agreements or requirements of section 101(a)(8)(B)(i)– employment, as required by section 102 arrangements to carry out the programs (iv) of the Act between any appropriate of the Act, will be developed and for which assistance is awarded, will public entity, including the State updated using funds under title I in comply with the following laws: Medicaid program, public institution of order to specify the supported • Title VI of the Civil Rights Act of higher education, and a component of employment services to be provided; 1964, as amended; the statewide workforce investment specify the expected extended services • Sections 504 and 508(f) of the system, and the designated State unit so needed; and identify the source of Rehabilitation Act of 1973, as amended; as to ensure the provision of the extended services, which may include • Age Discrimination Act (ADA) of vocational rehabilitation services natural supports, or to the extent that it 1975, as amended, identified in section 103(a) of the Act, is not possible to identify the source of • Section 188 of the Workforce other than the services identified as extended services at the time the Investment Act; and being exempt from the determination of individualized plan for employment is • Title IX of the Education the availability of comparable services developed, a statement describing the Amendments of 1972, as amended. and benefits, that are included in the basis for concluding that there is a Further, the State must assure that it individualized plan for employment of reasonable expectation that such will establish and adhere to Methods of an eligible individual, including the sources will become available. Administration that give a reasonable provision of such services during the (§ 625(b)(6)(C).) guarantee of compliance with the above pendency of any dispute that may arise 35. The State will use funds provided equal opportunity and in the implementation of the under title VI, part B only to nondiscrimination laws and regulations interagency agreement or other supplement, and not supplant, the regarding the program services it mechanism for interagency funds provided under title I, in provides and in its employment coordination. (§ 101(a)(8)(B).) providing supported employment practices. These Methods of 31. The State agency conducts an services specified in the individualized Administration must, at a minimum, annual review and reevaluation of the plan for employment. (§ 625(b)(6)(D).) include the following: status of each individual with a 36. Services provided under an 1. Designation of an Equal disability served under this State Plan individualized plan for employment Opportunity Officer. The state must who has achieved an employment will be coordinated with services designate a senior-level individual to outcome either in an extended provided under other individualized coordinate its EO responsibilities. The

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person designated must report to the top a recipient of Federal financial b. Budget Changes. Except as official on equal opportunity and assistance. specified by terms of the specific grant nondiscrimination matters and be 9. Corrective Actions and Sanctions. award, ETA, in accordance with the assigned sufficient staff and resources to The state must establish procedures for regulations, waives the requirements in ensure the capability to fulfill the taking prompt corrective action 29 CFR 97.30(c)(1)(ii) that states obtain agency’s equal opportunity and regarding any noncompliance finding prior written approval for certain types nondiscrimination obligations. relating to the administration, of budget changes. 2. Equal Opportunity Notice and management, and operation of its c. Real Property Acquired with Reed Communication. The state must take programs and activities. Act Funds. The requirements for real affirmative steps to prominently display B. Assurance of Administrative property acquired with Reed Act or the Equal Opportunity is the Law poster Requirements and Allowable Cost other non-Federal funds and amortized in all of its facilities and inform Standards. The State must comply with with UI grants are in UIPL 39–97, dated applicants for programs, participants, administrative requirements and cost September 12, 1997, 29 CFR 97.31 to the applicants for employment, and principles applicable to grants and extent amortized with UI grants; and in employees: cooperative agreements as specified in TEGL 7–04, Issues Related to Real a. that the state does not discriminate 20 CFR part 601 (Administrative Property Used for ETA Program in admission, access, treatment, or Procedure), 29 CFR part 93 (Lobbying Purposes. employment; and Prohibitions), 29 CFR part 96 and part d. Equipment Acquired with Reed Act b. of their right to file a complaint and 99 (Audit Requirements), 29 CFR part Funds. The requirements for equipment how to do so. 97 (Uniform Administrative acquired with Reed Act or other non- Other than the Equal Opportunity is Requirements for Grants and Federal funds and amortized with UI the Law poster, methods of notification Cooperative Agreements to State and grants are in UIPL 39–97, and UIPL 39– of this information may include Local Governments), and OMB Circular 97 Changes 1 and 2, and in 29 CFR placement of notices in offices and A–87 (Revised), 2 CFR 225, (Cost 97.31, to the extent amortized with UI publication of notices in newsletters, Principles for State, Local, and Indian grants. e. Real Property, Equipment, and newspapers, or magazines. Tribal Governments), and with 3. Assurances. The state must develop Supplies. administrative requirements for and implement procedures for (1) Real property, equipment, and debarment and suspension applicable to transferring nondiscrimination and EO supplies acquired under prior awards sub-grants or contracts as specified in 29 obligations in sub-contracts and sub- are transferred to this award and are CFR part 98 (Debarment and agreements. subject to the relevant regulations at 29 4. Universal Access. The state must Suspension). The state assures that state CFR part 97. take appropriate steps to ensure that staff will attend mandatory meetings (2) For computer systems and all they are providing universal access to and training sessions, or return unused associated components which were their programs. These steps should funds. installed in states for the purpose of include reasonable efforts to include States that have subawards to Regular Reports, Benefits Accuracy members of both sexes, various racial organizations covered by audit Measurement, and other UI Activities, and ethnic groups, individuals with requirements of 29 CFR Part 99 (Audit the requirements of 29 CFR part 97 disabilities and individuals in differing of States, Local Governments, and Non- apply. The National Office reserves the age groups. Profit Organizations) must (1) ensure right to transfer title and issue 5. Compliance with Section 504. The that such subrecipients meet the disposition instructions in accordance state must take the necessary measures requirements of that circular, as with paragraph (g) of Federal to ensure access to its programs and applicable, and (2) resolve audit regulations at 29 CFR 97.32. States also facilities for persons with disabilities, as findings, if any, resulting from such will certify an inventory list of system well as make certain communication audits, relating to the UI program. components which will be distributed with persons with disabilities is as The state also assures that it will annually by ETA. effective as that with others. comply with the following specific 2. Exceptions and Expansions to Cost 6. Data Collection and Recordkeeping. administrative requirements: Principles. The following exceptions or The state must collect such data and 1. Administrative Requirements. expansions to the cost principles of maintain such records in accordance a. Program Income. Program income OMB Circular No. A–87 (Revised) are with procedures prescribed by the is defined in 29 CFR 97.25 as gross applicable to states: Director of the U.S. Department of income received by a grantee or a. Employee Fringe Benefits. As an Labor’s Civil Rights Center. These subgrantee directly generated by a grant exception to OMB Circular A–87 characteristics data (e.g., race, sex, supported activity, or earned only as a (Revised) with respect to personnel national origin, age, disability) are result of the grant agreement during the benefit costs incurred on behalf of state utilized to determine whether the state grant period. States may deduct costs employees who are members of fringe and its local office are in compliance incidental to the generation of UI benefit plans which do not meet the with Federal nondiscrimination and program income from gross income to requirements of OMB Circular No. A–87 equal opportunity statutes and determine net UI program income. UI (Revised), Attachment B, item 11, the regulations. program income shall be added to the costs of employer contributions or 7. Monitoring. The state must funds committed to the grant by ETA. expenses incurred for state fringe establish a system for periodically The program income must be used only benefit plans are allowable, provided monitoring the delivery of program as necessary for the proper and efficient that: services for compliance. administration of the UI program. Any (1) For retirement plans, all covered 8. Discrimination Complaint rental income or user fees obtained from employees joined the plan before Procedures. The state must develop and real property or equipment acquired October 1, 1983; the plan is authorized follow procedures for handling with grant funds from prior awards shall by state law; the plan was previously complaints of discrimination covering be treated as program income under this approved by the Secretary; the plan is all of the regulations applicable to it as grant. insured by a private insurance carrier

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which is licensed to operate this type of major renovation of state-owned and the administration of the UI BAM, plan in the applicable state; and any buildings, but not land; BTQ, Data Validation (DV), and TPS dividends or similar credits because of (2) With respect to each acquisition or program requirements. participation in the plan are credited improvement of property, the payments E. Assurance on Use of Unobligated against the next premium falling due are accounted for as credit against Funds. The state assures that non- under the contract. equivalent amounts of Reed Act funds automation funds will be obligated by (2) For all state fringe benefit plans previously withdrawn under the December 31 of the following fiscal other than retirement plans, if the respective appropriation. year, and liquidated within 90 days Secretary granted a time extension after d. Prior Approval of Equipment thereafter. ETA may extend the October 1, 1983, to the existing approval Purchases. As provided for in OMB liquidation date upon written request. of such a plan, costs of the plan are Circular No. A–87 (Revised), Automation funds must be obligated by allowable until such time as the plan is Attachment B, item 19, the requirement the end of the 3rd fiscal year, and comparable in cost and benefits to fringe that grant recipients obtain prior liquidated within 90 days thereafter. benefit plans available to other similarly approval from the Federal grantor ETA may extend the liquidation date employed state employees. At such time agency for all purchases of equipment upon written request. Failure to comply as the cost and benefits of an approved (as defined in 29 CFR 97.3) is waived with this assurance may result in fringe benefit plan are equivalent to the and approval authority is delegated to disallowed costs from audits or review cost and benefits of plans available to the state administrator. findings. other similarly employed state e. Federal Cash Transaction Report. Note. Travel costs for state agency employees, the time extension will The state is exempt from submission of personnel are considered obligated cease and the cited requirements of the SF 272, Federal Transactions Report, when the travel is actually performed. OMB Circular A–87 (Revised) will and the SF 272A, Continuation Sheet, F. Assurance of Prohibition of apply. per 29 CFR 97.41 (c) discretion. Lobbying Costs (29 CFR Part 93). The (3) For retirement plans and all other C. Assurance of Management state assures and certifies that, in fringe benefit plans covered in (1) and Systems, Reporting, and Record accordance with the DOL (2) of this paragraph, any additional Keeping. Appropriations Act, no UI grant funds costs resulting from improvements to The state assures that: will be used to pay salaries or expenses the plans made after October 1, 1983, 1. Financial systems provide fiscal related to any activity designed to are not chargeable to UI grant funds. control and accounting procedures influence legislation or appropriations b. UI Claimant’s Court Appeals Costs. sufficient to permit timely preparation pending before the Congress of the To the extent authorized by state law, of required reports, and the tracing of United States. funds may be expended for reasonable funds to a level of expenditure adequate G. Drug-Free Workplace (29 CFR Part counsel fees and necessary court costs, to establish that funds have not been 98). The state assures and certifies that as fixed by the court, incurred by the expended improperly (29 CFR 97.20). it will comply with the requirements at claimant on appeals to the courts in the 2. The financial management system this part. (29 CFR part 93) following cases: and the program information system H. Assurance of Disaster Recovery (1) Any court appeal from an provide Federally-required reports and Capability. The state assures that it will administrative or judicial decision records that are uniform in definition, maintain a Disaster Recovery plan. favorable in whole or in part for the accessible to authorized Federal and I. Assurance of Conformity and claimant; state staff, and verifiable for monitoring, Compliance. The state assures that the (2) Any court appeal by a claimant reporting, audit, and evaluation state law will conform to, and its from a decision which reverses a prior purposes. administrative practice will decision in his/her favor; 3. It will submit reports to ETA as substantially comply with, all Federal (3) Any court appeal by a claimant required in instructions issued by ETA UI law requirements, and that it will from a decision denying or reducing and in the format ETA prescribes. adhere to DOL directives. benefits awarded under a prior 4. It will retain all financial and J. Assurance of Automated administrative or judicial decision; programmatic records, supporting Information Systems Security. The state (4) Any court appeal as a result of documents, and other required records assures that its automated information which the claimant is awarded benefits; at least three years as specified in 29 systems have security protections (5) Any court appeal by a claimant CFR 97.42(b). commensurate with the risk and from a decision by a tribunal, board of 5. The financial management system magnitude of harm. review, or court which was not provides for methods to insure K. Assurance of Confidentiality. The unanimous; compliance with the requirements state will keep confidential any business (6) Any court appeal by a claimant applicable to procurement and grants as information, as defined at 29 CFR 90.33 where the court finds that a reasonable specified in 29 CFR part 98 (Debarment and any successor provision(s), it basis exists for the appeal. and Suspension), and for obtaining the obtains or receives in the course of c. Reed Act. Payment from the state’s required certifications under 29 CFR administering the Trade Adjustment UI grant allocations, made into a state’s 98.510(b) regarding debarment, Assistance or Alternative Trade account in the Unemployment Trust suspension, ineligibility, and voluntary Adjustment Assistance programs under Fund for the purpose of reducing exclusions for lower tier covered this Agreement. The state shall not charges against Reed Act funds (section transactions. disclose such information to any person, 903(c)(2) of the Social Security Act, as D. Assurance of Program Quality. The organization, or other entity except as amended (42 U.S.C. 1103(c)(2)), are state assures that it will administer the authorized by applicable state and allowable costs provided that: UI program in a manner that ensures Federal laws. (1) The charges against Reed Act proper and efficient administration. funds were for amounts appropriated, ‘‘Proper and efficient administration’’ J. Temporary Assistance for Needy obligated, and expended for the includes performance measured by ETA Families (TANF) acquisition of automatic data processing through Core measures, Management By signing the Unified Plan signature installations or for the acquisition or Information measures, program reviews, page, you are certifying that:

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1. During the fiscal year, the State will domestic violence. (§ 402(a)(7)(A)(i), (ii), e. To obtain and maintain adequate operate a child support enforcement (iii).) housing and a suitable living program under the State Plan approved environment; K. Senior Community Service under part D. (§ 402(a)(2).) f. To obtain emergency assistance 2. During the fiscal year, the State will Employment Program (SCSEP) through loans, grants, or other means to operate a foster care and adoption By signing this Unified Plan you also meet immediate and urgent family and assistance program under the State Plan certify that the State agrees to meet the individual needs; and to achieve greater approved under part E, and that the requirements of or submit the following participation in the affairs of the State will take such actions as are documents as applicable, in addition to communities involved, including the necessary to ensure that children the general ETA requirements for development of public and private receiving assistance under such part are receipt of Federal funds: grassroots partnerships with local law eligible for medical assistance under the 1. General Administrative enforcement agencies, local housing State Plan under title XIX. (§ 402(a)(3).) Requirements: authorities, private foundations, and 3. Which State agency or agencies will a. 29 CFR part 97—Uniform other public and private partners to: administer and supervise the TANF Administrative Requirements for State g. Document best practices based on program for the fiscal year, which shall and Local Governments (as amended by successful grassroots intervention in include assurances that local the Act). urban areas, to develop methodologies governments and private sector b. 29 CFR part 96 (as amended by for widespread replication; and organizations have been consulted OMB Circular A–133)—Single Audit strengthen and improve relationships regarding the plan and design of welfare Act. with local law enforcement agencies, services in the State so that services are c. OMB Circular A–87—Cost which may include participation in provided in a manner appropriate to Principles (as amended by the Act). activities such as neighborhood or local populations; and have had at least 2. Assurances and Certifications: a. SF 424—Application for Federal community policing efforts. 45 days to submit comments on the Plan 2. The needs of youth in low-income Assistance. and the design of such services. b. SF 424A—Budget Information— communities are being met through (§ 402(a)(4).) Non-construction Programs. youth development programs that 4. That, during the fiscal year, the c. SF 424 B—Assurances for Non- support the primary role of the family, State will provide each member of an construction Programs. give priority to the prevention of youth Indian tribe, who is domiciled in the d. Hatch Act Notices must be placed problems and crime, and promote State and is not eligible for assistance in all work locations. increased community coordination and under a tribal family assistance plan e. Privacy Statement must be collaboration in meeting the needs of approved under section 412, with provided to all participants. youth, and support development and equitable access to Federally-funded f. ETA–8705—Equitable Distribution expansion of innovative community- assistance under the State’s TANF Report. based youth development programs that program (§ 402(a)(5).) have demonstrated success in 5. That the State has established and L. Community Services Block Grant preventing or reducing youth crime, is enforcing standards and procedures to (CSBG) such as— ensure against program fraud and abuse, By signing the Unified Plan signature a. Programs for the establishment of including standards and procedures page, you are certifying that: violence-free zones that would involve concerning nepotism, conflicts of 1. Funds made available through the youth development and intervention interest among individuals responsible grant or allotment will be used— models (such as models involving youth for the administration and supervision a. To support activities that are mediation, youth mentoring, life skills of the State program, kickbacks, and the designed to assist low-income families training, job creation, and use of political patronage. (§ 402(a)(6).) and individuals, including families and entrepreneurship programs); and 6. (Optional) that the State has individuals receiving assistance under b. After-school child care programs. established and is enforcing standards part A of title IV of the Social Security There is an effective use of, and to and procedures to: Act (42 U.S.C. 601 et seq. ), homeless coordinate, other programs related to a. Screen and identify individuals families and individuals, migrant or the purposes of this subtitle (including receiving assistance under this part with seasonal farmworkers, and elderly low- State welfare reform efforts). a history of domestic violence while income individuals and families, and a 3. There is an effective use of, and to maintaining the confidentiality of such description of how such activities will coordinate with, other programs related individuals; enable the families and individuals: to the purposes of this subtitle b. Refer such individuals to b. To remove obstacles and solve (including State welfare reform efforts). counseling and supportive services; and problems that block the achievement of 4. A description is provided on how c. Waive, pursuant to a determination self-sufficiency (including self- the State intends to use discretionary of good cause, other program sufficiency for families and individuals funds made available from the requirements such as time limits (for so who are attempting to transition off a remainder of the grant or allotment long as necessary) for individuals State program carried out under part A described in section 675C(b) in receiving assistance, residency of title IV of the Social Security Act); to accordance with this subtitle, including requirements, child support cooperation secure and retain meaningful a description of how the State will requirements, and family cap employment; support innovative community and provisions, in cases where compliance c. To attain an adequate education, neighborhood-based initiatives related with such requirements would make it with particular attention toward to the purposes of this subtitle. more difficult for individuals receiving improving literacy skills of the low- 5. Information is provided by eligible assistance under this part to escape income families in the communities entities in the State, containing— domestic violence or unfairly penalize involved, which may include carrying a. A description of the service such individuals who are or have been out family literacy initiatives; delivery system, for services provided or victimized by such violence, or d. To make better use of available coordinated with funds made available individuals who are at risk of further income; through grants made under section

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675C(a), targeted to low-income to review by the Secretary as provided Attachment A individuals and families in in section 678C(b). ETA REGIONAL ADMINISTRATORS communities within the State; 11. The State will require each b. A description of how linkages will eligible entity in the State to establish November 2008 be developed to fill identified gaps in procedures under which a low-income REGION 1—BOSTON the services, through the provision of individual, community organization, or Grace Kilbane, Regional Administrator, U.S. information, referrals, case management, religious organization, or representative Department of Labor/ETA, JFK Building, and follow-up consultations; of low-income individuals that Room E–350, Boston, Massachusetts 02203, c. A description of how funds made considers its organization, or low- (617) 788–0170, FAX: 617–788–0101, available through grants made under income individuals, to be inadequately [email protected]. section 675C(a) will be coordinated with represented on the board (or other REGION 2—PHILADELPHIA other public and private resources; and mechanism) of the eligible entity to Lenita Jacobs-Simmons, Regional d. A description of how the local petition for adequate representation. Administrator, U.S. Department of Labor/ entity will use the funds to support 12. The State will secure from each ETA, The Curtis Center, 170 South innovative community and eligible entity in the State, as a Independence Mall West, Suite 825 East, neighborhood-based initiatives related condition to receipt of funding by the Philadelphia, Pennsylvania 19106, (215) to the purposes of this subtitle, which entity through a community services 861–5205, FAX: 215–861–5260, Jacobs- may include fatherhood initiatives and block grant made under this subtitle for [email protected]. other initiatives with the goal of a program, a community action plan REGION 3—ATLANTA strengthening families and encouraging (which shall be submitted to the Helen N. Parker, Regional Administrator, effective parenting. Secretary, at the request of the U.S. Department of Labor/ETA, Sam Nunn 6. Eligible entities in the State will Secretary, with the State Plan) that Atlanta Federal Center Rm. 6M12, 61 provide, on an emergency basis, for the includes a community-needs assessment Forsyth Street, S.W., Atlanta, Georgia provision of such supplies and services, for the community served, which may 30303, (404) 302–5300, FAX: (404) 302– nutritious foods, and related services, as be coordinated with community-needs 5382, [email protected]. may be necessary to counteract assessments conducted for other REGION 4—DALLAS conditions of starvation and programs. Joseph C. Juarez, Regional Administrator, malnutrition among low-income 13. The State and all eligible entities U.S. Department of Labor/ETA, A. Maceo individuals. in the State will participate in the Smith Fed. Bldg, Rm317, 525 Griffin Street, 7. The State and the eligible entities Results Oriented Management and Dallas, Texas 75202, (972) 850–4600, FAX: in the State will coordinate, and Accountability System, another (972) 850–4605, [email protected]. establish linkages between, performance measure system for which REGION 5—CHICAGO governmental and other social services the Secretary facilitated development Byron Zuidema, Regional Administrator, U.S. programs to assure the effective delivery pursuant to Section 678E(b), or an Department of Labor/ETA, John Kluczynski of such services to low-income alternative system for measuring Building, 230 S. Dearborn Street, Rm. 638, individuals and to avoid duplication of performance and results that meets the Chicago, Illinois 60604, (312) 596–5400, such services, and a description of how requirements of that section, and a FAX: (312)596–5401, the State and the eligible entities will description of outcome measures to be [email protected]. coordinate the provision of employment used to measure eligible entity REGION 6—SAN FRANCISCO and training activities, as defined in performance in promoting self- Richard Trigg, Regional Administrator, U.S. section 101 of such Act, in the State and sufficiency, family stability, and Department of Labor/ETA, George W. Bush in communities with entities providing community revitalization. Federal Building, 90 7th Street, Suite 17– activities through statewide and local 14. The information describing how 300, San Francisco, California 94103, (415) workforce investment systems under the the State will carry out the assurances 625–7900, FAX: 415–625–7903, Workforce Investment Act of 1998. is described in this subsection. [email protected]. 8. The State will ensure coordination M. OMB Burden Statement Attachment B between antipoverty programs in each community in the State, and ensure, These reporting instructions have 1. Unified Plan Activities and Programs where appropriate, that emergency been approved under the Paperwork Checklist energy crisis intervention programs Reduction Act of 1995. Persons are not Under section 501 of the Workforce under title XXVI (relating to low-income required to respond to this collection of Investment Act, the following activities or home energy assistance) are conducted information unless it displays a valid programs may be included in a State’s OMB control number. Public reporting Unified Plan. From the list below, please in such community. place a check beside the programs and 9. The State will permit and cooperate burden for this collection of information activities the State or Commonwealth is with Federal investigations undertaken includes the time for reviewing including in this Unified Plan. in accordance with section 678D. instructions, searching existing data The State Unified Plan shall cover one or 10. Any eligible entity in the State sources, gathering and maintaining the more of the following programs and that received funding in the previous data needed, and completing and activities: fiscal year through a community reviewing the collection of information. ll a. Secondary vocational education services block grant made under this Submission is required by the programs (Perkins IV/Secondary). Note that subtitle will not have its funding Workforce Investment Act section inclusion of this program requires prior terminated under this subtitle, or 112(a). Send comments regarding this approval of State legislature. (Carl D. reduced below the proportional share of burden estimate or any other aspect of Perkins Career and Technical Education funding the entity received in the this collection of information, including Act of 2006 (20 U.S.C. 2301 et seq.) llb. Postsecondary vocational education previous fiscal year unless, after suggestions for reducing this burden, to programs (Perkins IV/Postsecondary). Note providing notice and an opportunity for the U.S. Department of Labor, Office of that for the purposes of what the State a hearing on the record, the State Workforce Investment, Room S–4231, Unified Plan shall cover, Perkins IV/ determines that cause exists for such 200 Constitution Ave., NW., Secondary and Perkins IV/Postsecondary termination or such reduction, subject Washington, DC 20210. count as one program. (Carl D. Perkins

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Career and Technical Education Act of State Name for Program/Activity: I further certify that, for those activities 2006 (20 U.S.C. 2301 et seq.)) lllllllllllllllllllll and programs included in this Plan that are llc. Activities authorized under title I, Name of Grant Recipient Agency for under my jurisdiction, we will operate the Workforce Investment Systems (Workforce Program/Activity: programs included in this Unified Plan in Investment Activities for Adults, lllllllllllllllllllll accordance with this Unified Plan and the Dislocated Workers and Youth, or WIA Address: llllllllllllllll applicable assurances described in Section III title I, and the Wagner-Peyser Act) Telephone Number: lllllllllll of this Unified Plan. (Workforce Investment Act of 1998 (29 Facsimile Number: llllllllllll lllllllllllllllllllll U.S.C. 2801 et seq.)) E-mail Address: lllllllllllll Typed Name, Title, and Agency of lld. Activities authorized under title II, Name of State Administrative Agency (if Responsible State Official for Career and Adult Education and Family Literacy Technical Education (Adult Education and Family Literacy different from the Grant Recipient): Signature llllllllllllllll Programs) (Workforce Investment Act of lllllllllllllllllllll 1998 (20 U.S.C. 9201 et seq.)) Address: llllllllllllllll Date llllllllllllllllll The State Unified Plan may cover one or Telephone Number: lllllllllll Responsible State Official for Eligible Agency more of the following programs and Facsimile Number: llllllllllll for Vocational Rehabilitation (if Applicable) E-mail Address: lllllllllllll activities: I certify that for the State/Commonwealth lla. Food Stamp Employment and Training Name of Signatory Official: of llllll, for those activities and Program, or FSET (7 U.S.C. 2015(d)) lllllllllllllllllllll programs included in this Plan that are under llb. Activities authorized under chapter 2 llllllllllllllll Address: my jurisdiction, the agencies and officials of title II of the Trade Act of 1974 (Trade Telephone Number: lllllllllll designated above under ‘‘Contact Act Programs) (19 U.S.C. 2271 et seq.) Facsimile Number: llllllllllll Information’’ have been duly designated to llc. Programs authorized under Part B of E-mail Address: lllllllllllll represent the State/Commonwealth in the title I of the Rehabilitation Act of 1973 (29 Name of Liaison: llllllllllll capacities indicated for the programs and U.S.C. 720 et seq.), other than section 112 Address: llllllllllllllll activities indicated. I will provide of such Act (29 U.S.C. 732) (Vocational Telephone Number: lllllllllll subsequent changes in the designation of Rehabilitation) Facsimile Number: llllllllllll lld. Activities authorized under chapters officials to the designated program or activity E-mail Address: lllllllllllll 41 & 42 of Title 38, USC, and 20 CFR 1001 contact as such changes occur. I further certify that we will operate those and 1005 (Veterans Programs, including 3. Plan Signature(s) activities and programs included in this Veterans Employment, Disabled Veterans’ Governor (if Applicable) Outreach Program, and Local Veterans’ Unified Plan that are under my jurisdiction Employment Representative Program) As the Governor, I certify that for the State/ in accordance with this Unified Plan and the lle. Programs authorized under State Commonwealth of llllll, for those assurances described in Section III of this unemployment compensation laws activities and programs included in this Plan Unified Plan. (Unemployment Insurance) (in accordance that are under my jurisdiction, the agencies lllllllllllllllllllll with applicable Federal law which is and officials designated above under Typed Name, Title, and Agency of authorized under title III, title IX and Title ‘‘Contact Information’’ have been duly Responsible State Official for Vocational XII of the Social Security Act and the designated to represent the State/ Rehabilitation Federal Unemployment Tax Act) Commonwealth in the capacities indicated Signature llllllllllllllll llf. Programs authorized under part A of for the programs and activities indicated. I Date llllllllllllllllll title IV of the Social Security Act will provide subsequent changes in the Responsible State Official for Eligible Agency (Temporary Assistance for Needy Families designation of officials to the designated for Adult Education (if applicable) (TANF)). program or activity contact as such changes llg. Programs authorized under title V of occur. I certify that for the State/Commonwealth the Older Americans Act of 1965 (Senior I further certify that, for those activities of llllll, for those activities and Community Service Employment Program and programs included in this Plan that are programs included in this Plan that are under (SCSEP).) (42 U.S.C. 3056 et seq.) under my jurisdiction, we will operate the my jurisdiction, the agencies and officials llh. Training activities funded by the workforce development programs included designated above under ‘‘Contact Department of Housing and Urban in this Unified Plan in accordance with this Information’’ have been duly designated to Development under the Community Unified Plan and the assurances described in represent the State/Commonwealth in the Development Block Grants (CDBG) and Section III of this Unified Plan. capacities indicated for the programs and Public Housing Programs). Note that lllllllllllllllllllll activities indicated. I will provide programs funded by the CDBG and Public Typed Name and Signature of Governor subsequent changes in the designation of Housing programs can only be included in Date llllllllllllllllll officials to the designated program or activity the State Unified Plan if the State is the contact as such changes occur. funds recipient, and approval of the Responsible State Official for Eligible Agency I further certify that, for those activities Unified Plan will not trigger funding for for Career and Technical Education (if and programs included in this Plan that are these programs. Applicable) under my jurisdiction, we will operate the lli. Community Development Block Grants I certify that for the State/Commonwealth programs included in this Unified Plan in llj. Public Housing of llllll, for those activities and accordance with this Unified Plan and the llk. Programs authorized under the programs included in this Plan that are under applicable assurances described in Section III Community Services Block Grant Act my jurisdiction, the agencies and officials of this Unified Plan. (Community Services Block Grant, or designated above under ‘‘Contact lllllllllllllllllllll CSBG) (42 U.S.C. 9901 et seq.) Information’’ have been duly designated to Typed Name, Title, and Agency of represent the State/Commonwealth in the Responsible State Official for Adult 2. Contact Information capacities indicated for the programs and Education Please complete one copy for EACH of the activities indicated. I will provide Signature llllllllllllllll separate activities and programs included in subsequent changes in the designation of Date llllllllllllllllll the State Unified Plan. officials to the designated program or activity Program: llllllllllllllll contact as such changes occur. Attachment C

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OPTIONAL TABLE FOR WIA STATE PERFORMANCE INDICATORS AND GOALS

Previous year Performance WIA requirement at section 136(b) performance goal

Adults: Entered Employment Rate. Employment Retention Rate. Average Six-Months Earnings. Certificate Rate. Dislocated Workers: Entered Employment Rate. Employment Retention Rate. Average Six-Months Earnings. Certificate Rate. Youth Aged 19–21: Entered Employment Rate. Employment Retention Rate. Six-Months Earnings Change. Certificate Rate. Youth 14–18: Skill Attainment Rate. Diploma or Equivalent Attainment Rate. Retention Rate. Youth Common Measures: 1 Placement in Employment or Education. Attainment of a Degree or Certificate. Literacy and Numeracy Gains. Participant Customer Satisfaction. Employer Customer Satisfaction. Additional State-Established Measures. 1 Goals are negotiated for these measures by states reporting common performance measure outcomes only.

Dated: November 24, 2008. Gay M. Gilbert, Administrator, Office of Workforce Investment, Employment and Training Administration. [FR Doc. E8–28406 Filed 12–2–08; 8:45 am] BILLING CODE 4510–FN–P

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Reader Aids Federal Register Vol. 73, No. 233 Wednesday, December 3, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

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. 4044...... 72716 Presidential Documents 3 CFR Proposed Rules: Executive orders and proclamations 741–6000 Proclamations: 1926...... 73197 The United States Government Manual 741–6000 8324...... 73149 8325...... 73151 Other Services 30 CFR Electronic and on-line services (voice) 741–6020 5 CFR 938...... 72717 741–6064 Privacy Act Compilation Proposed Rules: 32 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 9901...... 73606 TTY for the deaf-and-hard-of-hearing 741–6086 706 ...... 72725, 73556, 73557 7 CFR 33 CFR Proposed Rules: ELECTRONIC RESEARCH 1205...... 72747 Proposed Rules: World Wide Web 1487...... 73617 117...... 72752 Full text of the daily Federal Register, CFR and other publications 10 CFR 34 CFR is located at: http://www.gpoaccess.gov/nara/index.html Proposed Rules: 300...... 73006 Federal Register information and research tools, including Public 1010...... 72748 Inspection List, indexes, and links to GPO Access are located at: 37 CFR 11 CFR http://www.archives.gov/federallregister 381...... 72726 111...... 72687 E-mail 38 CFR 12 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 53...... 73558 an open e-mail service that provides subscribers with a digital 308...... 73153 form of the Federal Register Table of Contents. The digital form 327...... 73158 39 CFR 701...... 73392 of the Federal Register Table of Contents includes HTML and Proposed Rules: 702...... 72688 PDF links to the full text of each document. 3001...... 72754 704...... 72688 To join or leave, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list 14 CFR 40 CFR (or change settings); then follow the instructions. 39 ...... 73165, 73168, 73169, 52...... 73562 PENS (Public Law Electronic Notification Service) is an e-mail 73545 63...... 72727 service that notifies subscribers of recently enacted laws. 91...... 73171 180...... 73580, 73586 121...... 73171 261...... 72912 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 262...... 72912 and select Join or leave the list (or change settings); then follow 125...... 73171 Proposed Rules: the instructions. Proposed Rules: Ch. I ...... 73620 FEDREGTOC-L and PENS are mailing lists only. We cannot 23...... 73195 39...... 73618 60...... 72962, 73629 respond to specific inquiries. 61...... 73629 Reference questions. Send questions and comments about the 15 CFR 63 ...... 72756, 73629, 73631 Federal Register system to: [email protected] 770...... 73547 180...... 73632 260...... 73520 The Federal Register staff cannot interpret specific documents or 774...... 73547 261...... 73520 regulations. 18 CFR 264...... 73520 284...... 72692, 73494 265...... 73520 FEDERAL REGISTER PAGES AND DATE, DECEMBER 268...... 73520 21 CFR 270...... 73520 72687–73148...... 1 273...... 73520 73149–73544...... 2 556...... 72714 558...... 72714 73545–73760...... 3 42 CFR 1300...... 73549 1315...... 73549 440...... 73694 1316...... 73549 44 CFR 26 CFR 67...... 73182 301...... 73180 47 CFR Proposed Rules: 1...... 73197 51...... 72732 54...... 72732 28 CFR 61...... 72732 73...... 73181 69...... 72732 73...... 73192 29 CFR Proposed Rules: 4022...... 72715 73...... 73199

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48 CFR 391...... 73096 404...... 73592 Proposed Rules: Proposed Rules: 622...... 73192 536...... 73199 213...... 73078 660...... 72739, 72740 1804...... 73201 390...... 73129 Proposed Rules: 1845...... 73202 391...... 73129 17...... 73211 1852...... 73201, 73202 571...... 72758 622...... 73219 575...... 72758 679...... 73222 49 CFR 579...... 72758 192...... 72737 383...... 73096 50 CFR 384...... 73096 229...... 73032 390...... 73096 300...... 72737

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REMINDERS PERSONNEL MANAGEMENT published 11-12-08 [FR E8- Hayes Center, NE; The items in this list were OFFICE 26832] comments due by 12-8- editorially compiled as an aid Nonforeign Area Cost-of-Living ENVIRONMENTAL 08; published 11-6-08 [FR to Federal Register users. Allowance Rates; Alaska; PROTECTION AGENCY E8-26507] Inclusion or exclusion from published 11-3-08 Approval and Promulgation of Television Broadcasting this list has no legal Implementation Plans: Services; Grand Island, NE; TRANSPORTATION comments due by 12-12-08; significance. DEPARTMENT Revisions to the Nevada State Implementation published 11-12-08 [FR E8- Federal Aviation 26734] Administration Plan; Clark County; RULES GOING INTO comments due by 12-8- FEDERAL HOUSING EFFECT DECEMBER 3, Airworthiness Directives: 08; published 11-7-08 [FR FINANCING AGENCY 2008 Bombardier Model CL 600 E8-26513] Flood Insurance; comments 2C10 (Regional Jet Series Environmental Statements; due by 12-9-08; published 700 & 701) Series Notice of Intent: 10-10-08 [FR E8-24043] AGRICULTURE Airplanes and Model CL GENERAL SERVICES DEPARTMENT Coastal Nonpoint Pollution 600 2D24 (Regional Jet Control Programs; States ADMINISTRATION Food and Nutrition Service Series 900) Series and Territories— General Services Acquisition WIC Farmers’ Market Nutrition Airplanes; published 10- Florida and South Regulation: Program (FMNP): 29-08 Carolina; Open for GSAR Case 2006G510; Nondiscretionary Provisions comments until further Rewrite of GSAR Part of P.L. 108-265, the Child notice; published 2-11- 504, Administrative COMMENTS DUE NEXT Matters; comments due Nutrition and WIC WEEK 08 [FR 08-00596] Reauthorization Act by 12-8-08; published 10- National Emission Standards 9-08 [FR E8-22794] (2004); published 11-3-08 for Hazardous Air Pollutants AGRICULTURE GSAR Case 2007G507; COMMERCE DEPARTMENT From Petroleum Refineries; DEPARTMENT Describing Agency Needs; Industry and Security comments due by 12-10-08; Animal and Plant Health comments due by 12-8- Bureau published 11-10-08 [FR E8- 08; published 10-9-08 [FR Inspection Service 26403] Clarification of Export Control E8-23703] Tuberculosis in Cattle and Jurisdiction for Civil Aircraft National Emission Standards GSAR Case 2008G505; Bison; State and Zone Equipment Under the Export for Hazardous Air Pollutants Rewrite of GSAR Part Designations: Administration Regulations; and Hazardous Air 514, Sealed Bidding; published 12-3-08 Minnesota; comments due Pollutants for Source comments due by 12-9- by 12-9-08; published 10- Categories: DEFENSE DEPARTMENT 08; published 10-10-08 10-08 [FR E8-24223] Performance Specification [FR E8-22795] Navy Department AGRICULTURE and Quality Assurance HEALTH AND HUMAN Certifications and Exemptions DEPARTMENT Requirements for SERVICES DEPARTMENT Under the International Continuous Parameter Commodity Credit Food and Drug Regulations for Preventing Monitoring Systems, etc.; Corporation Administration Collisions at Sea (1972); comments due by 12-8- McGovern Dole International Over-the-Counter Sunscreen published 12-3-08 08; published 10-9-08 [FR Drug Products for Human Food for Education and E8-22674] ENVIRONMENTAL Child Nutrition Program and Use: PROTECTION AGENCY National Volatile Organic Ecamsule Eligibility for Food for Progress Program; Compound Emission Emergency Planning and Inclusion in Monograph; comments due by 12-8-08; Standards for Aerosol Community Right-to-Know Request for Safety and published 10-24-08 [FR E8- Coatings; comments due by Act: Effectiveness Data; 25186] 12-8-08; published 11-7-08 Amendments to Emergency comments due by 12-11- AGRICULTURE [FR E8-26614] 08; published 9-12-08 [FR Planning and Notification; DEPARTMENT Pesticide Tolerance Emergency Release E8-21291] Foreign Agricultural Service Nomenclature Changes; HEALTH AND HUMAN Notification and Technical Amendments; Hazardous Chemical McGovern Dole International SERVICES DEPARTMENT Food for Education and comments due by 12-9-08; Request for Information Reporting; published 11-3- published 10-10-08 [FR E8- 08 Child Nutrition Program and Regarding Sections 101 24027] through 104 of the Genetic Outer Continental Shelf Air Food for Progress Program; Pesticide Tolerances: Information Regulations Update to comments due by 12-8-08; Cymoxanil; comments due Nondiscrimination Act (of Include New Jersey State published 10-24-08 [FR E8- by 12-8-08; published 10- 2008); comments due by Requirements; published 11- 25186] 8-08 [FR E8-23864] 12-9-08; published 10-10-08 3-08 DEFENSE DEPARTMENT FEDERAL [FR E8-24194] Defense Contract Management Pesticide Tolerances: COMMUNICATIONS HOMELAND SECURITY Agency (DCMA) Privacy Glyphosate; published 12-3- COMMISSION DEPARTMENT Program; comments due by 08 Petition of South Slope for Coast Guard 12-8-08; published 10-9-08 Classification as an INTERIOR DEPARTMENT [FR E8-23999] Drawbridge Operation Fish and Wildlife Service Incumbent Local Exchange Regulations: Office of the Secretary of Carrier: Harlem River, New York, Migratory Bird Hunting; Defense and Joint Staff Hunting Methods for Oxford, Tiffin and Solon, NY; comments due by 12- Freedom of Information Act 10-08; published 11-10-08 Resident Canada Geese; Iowa Exchanges; Section Program; comments due by 251(h)(2); comments due [FR E8-26669] published 11-3-08 12-8-08; published 10-9-08 by 12-10-08; published HOMELAND SECURITY [FR E8-23998] JUSTICE DEPARTMENT 11-10-08 [FR E8-26813] DEPARTMENT Drug Enforcement ENERGY DEPARTMENT Television Broadcasting Federal Emergency Administration Advanced Technology Services: Management Agency Import and Production Quotas Vehicles Manufacturing Ann Arbor, MI; comments Management Costs; comments for Certain List I Chemicals; Incentive Program; due by 12-8-08; published due by 12-11-08; published published 12-3-08 comments due by 12-12-08; 11-6-08 [FR E8-26509] 11-24-08 [FR E8-27839]

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Proposed Flood Elevation Aircraft, and Preservation of 350T, and PA-46-500TP Determinations; comments Aircraft Wreckage, Mail, Airplanes; comments due due by 12-8-08; published Cargo, and Records; by 12-9-08; published 10- LIST OF PUBLIC LAWS 9-9-08 [FR E8-20822] comments due by 12-8-08; 10-08 [FR E8-24136] HOUSING AND URBAN published 10-7-08 [FR E8- Stemme GmbH & Co. KG This is a continuing list of DEVELOPMENT 23665] Models S10 and S10 V public bills from the current DEPARTMENT NUCLEAR REGULATORY Gliders; comments due by session of Congress which Federal Housing Enterprise COMMISSION 12-8-08; published 11-6- have become Federal laws. It Oversight Office Consideration of 08 [FR E8-26235] may be used in conjunction Flood Insurance; comments Environmental Impacts of Establishment of Class E with ‘‘P L U S’’ (Public Laws due by 12-9-08; published Temporary Storage of Spent Airspace: Update Service) on 202–741– 6043. This list is also 10-10-08 [FR E8-24043] Fuel After Cessation of Dallas, GA; comments due available online at http:// Reactor Operation; by 12-8-08; published 10- INTERIOR DEPARTMENT www.archives.gov/federal- comments due by 12-8-08; 22-08 [FR E8-25054] Fish and Wildlife Service published 10-9-08 [FR E8- register/laws.html. Endangered and Threatened 23384] Morehead, KY; comments due by 12-8-08; published Wildlife and Plants; Waste Confidence Decision The text of laws is not 10-22-08 [FR E8-25073] Designation of Critical Update; comments due by published in the Federal Habitat for the Louisiana 12-8-08; published 10-9-08 Proposed Amendment of Register but may be ordered Black Bear; comments due [FR E8-23381] Class E Airspace; Bethel, in ‘‘slip law’’ (individual by 12-12-08; published 11- AK; comments due by 12- pamphlet) form from the TRANSPORTATION 12-08 [FR E8-26733] 12-08; published 10-28-08 Superintendent of Documents, DEPARTMENT INTERIOR DEPARTMENT [FR E8-25714] U.S. Government Printing Federal Aviation Office, Washington, DC 20402 Surface Mining Reclamation Administration Proposed Establishment of Class E Airspace: (phone, 202–512–1808). The and Enforcement Office Airworthiness Directives: text will also be made Montana Regulatory Program; Boeing Model 737 100, 200, Branson, MO; comments available on the Internet from comments due by 12-10-08; 200C, 300, 400, and 500 due by 12-8-08; published GPO Access at http:// published 11-10-08 [FR E8- Series Airplanes; 10-22-08 [FR E8-25049] www.gpoaccess.gov/plaws/ 26703] comments due by 12-8- Proposed Modifications of index.html. Some laws may LABOR DEPARTMENT 08; published 10-22-08 Class E Airspace: not yet be available. Employee Benefits Security [FR E8-25048] Alamosa, CO; comments Administration DG Flugzeugbau GmbH due by 12-12-08; H.R. 5714/P.L. 110–450 Request for Information Models DG-1000S and published 10-28-08 [FR United States Army Regarding Sections 101 DG-1000T Gliders; E8-25732] Commemorative Coin Act of through 104 of the Genetic comments due by 12-8- TREASURY DEPARTMENT 2008 (Dec. 1, 2008; 122 Stat. Information 08; published 11-6-08 [FR 5017) E8-26236] Internal Revenue Service Nondiscrimination Act (of Last List November 24, 2008 2008); comments due by Hawker Beechcraft Public Approval Guidance for 12-9-08; published 10-10-08 Corporation Model 390 Tax-Exempt Bonds; [FR E8-24194] Airplanes; comments due comments due by 12-8-08; by 12-8-08; published 10- published 9-9-08 [FR E8- Selection of Annuity Providers 20771] Public Laws Electronic - Safe Harbor for Individual 9-08 [FR E8-23643] Notification Service Reportable Transaction: Account Plans; comments Hawker Beechcraft (PENS) due by 12-8-08; published Corporation Model Section 6707A and the 10-7-08 [FR E8-23427] BAe.125 Series 800A Failure to Include on any (including C 29A and U- LABOR DEPARTMENT Return or Statement any PENS is a free electronic mail 125) Airplanes, and Information Required to Occupational Safety and notification service of newly Hawker Beechcraft Model be Disclosed; comments enacted public laws. To Health Administration Hawker 800XP Airplanes; due by 12-10-08; Cranes and Derricks in subscribe, go to http:// comments due by 12-8- published 9-11-08 [FR E8- listserv.gsa.gov/archives/ Construction; comments due 08; published 10-7-08 [FR 21158] by 12-8-08; published 10-9- publaws-l.html E8-23400] Request for Information 08 [FR E8-21993] MD Helicopters, Inc. Model Regarding Sections 101 Note: This service is strictly NATIONAL 600N Helicopters; through 104 of the Genetic for E-mail notification of new TRANSPORTATION SAFETY comments due by 12-9- Information laws. The text of laws is not BOARD 08; published 10-10-08 Nondiscrimination Act (of available through this service. Notification and Reporting of [FR E8-23540] 2008); comments due by PENS cannot respond to Aircraft Accidents or Piper Aircraft, Inc. Models 12-9-08; published 10-10-08 specific inquiries sent to this Incidents and Overdue PA-46-350P, PA-46R- [FR E8-24194] address.

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