6–17–08 Tuesday Vol. 73 No. 117 June 17, 2008

Pages 34175–34604

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Contents Federal Register Vol. 73, No. 117

Tuesday, June 17, 2008

Agricultural Marketing Service Drug Enforcement Administration RULES NOTICES Dairy Product Mandatory Reporting, 34175–34184 Application Denial: NOTICES Craig H. Bammer, D.O., 34327–34329 Peanut Standards Board; Nominations, 34248 Dismissal of Proceeding: Benjamin Levine, M.D., 34329–34330 Agriculture Department William W. Nucklos, M.D., 34330 See Agricultural Marketing Service See Animal and Plant Health Inspection Service Education Department See Forest Service NOTICES NOTICES Disability and Rehabilitation Research Projects and Centers Agency Information Collection Activities; Proposals, Program: Submissions, and Approvals, 34246–34248 Rehabilitation Engineering Research Centers; Accessible Public Transportation, 34272–34280 Animal and Plant Health Inspection Service Revision of the Federal Need Analysis Methodology for the PROPOSED RULES 2009-2010 Award Year: Revision of the Hawaiian and Territorial Fruits and Federal Pell Grant et al.; Correction, 34363 Vegetables Regulations, 34202–34224 Employment Standards Administration Antitrust Division NOTICES NOTICES Agency Information Collection Activities; Proposals, National Cooperative Research and Production Act Submissions, and Approvals, 34333–34334 (1993), 34327 Cable Television Laboratories, Inc., 34327 Energy Department Pursuant to the National Cooperative Research and See Federal Energy Regulatory Commission Production Act (1993): Institute of Electrical and Electronics Engineers, 34327 Environmental Protection Agency Arts and Humanities, National Foundation NOTICES Agency Information Collection Activities; Proposals, See National Foundation on the Arts and the Humanities Submissions, and Approvals, 34292–34294 Availability for Lead National Ambient Air Quality Coast Guard Standard Review, 34294–34295 RULES Clean Water Act Section 303(d): Availability of List Implementation of Vessel Security Officer Training, Decisions, 34295–34296 Certification Requirements: Draft National Pollutant Discharge Elimination System International Convention on Standards of Training, etc.; General Permits for Discharges Incidental to the Amended, 34190–34191 Normal Operation of a Vessel, 34296–34304 Regulated Navigation Areas, Safety Zones, Security Zones, Public Water System Supervision Program Revisions for the and Deepwater Port Facilities: State of West Virginia; Public Hearing, 34304 Navigable Waters of the Boston Captain of the Port Zone, 34191–34195 Safety Zone: Executive Office of the President Milwaukee Harbor, Milwaukee, WI, 34195 See Management and Budget Office Safety Zone; New River, Jacksonville, NC, 34195–34197 See Presidential Documents See Trade Representative, Office of United States Commerce Department See Industry and Security Bureau Federal Aviation Administration See International Trade Administration PROPOSED RULES See National Oceanic and Atmospheric Administration Airworthiness Directives: NOTICES Airbus Model A300, A310, and A300-600 Series Agency Information Collection Activities; Proposals, Airplanes, 34224–34228 Submissions, and Approvals, 34248–34249 Airbus Model A330 Airplanes; and Model A340-200 and -300 Airplanes, 34228–34233 Defense Department Boeing Model 767-200 and -300 Series Airplanes, 34233– PROPOSED RULES 34237 Federal Acquisition Regulation: FAR Case 2007017; Service Contractor Employee Federal Communications Commission Personal Conflicts of Interest, 34600 RULES NOTICES Promotion of Spectrum Efficient Technologies on Certain Arms Sales Notification, 34268–34272 Part 90 Frequencies, 34201

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Federal Energy Regulatory Commission See U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Industry and Security Bureau Submissions, and Approvals, 34280–34281 NOTICES Applications: Action Affecting Export Privileges: Nevada Irrigation District, 34281–34282 Galaxy Aviation Trade Co. Ltd. et al., 34249–34250 Pacific Gas and Electric Co., 34282–34285 Agency Information Collection Activities; Proposals, Combined Notice of Filings, 34285–34289 Submissions, and Approvals, 34250–34251 Environmental Impact Statements; Availability, etc.: Northern Border Pipeline Co., 34289–34290 Interior Department Filings: See Fish and Wildlife Service Kroboth, Michael E., 34290 See Land Management Bureau Volk, Stephen R., 34291 See National Park Service Meetings: Review of Wholesale Electricity Markets, 34291 Internal Revenue Service Southwest Power Pool Independent Coordinator of RULES Transmission Stakeholders’ Policy Committee, 34292 Alternative Simplified Credit under Section 41(c)(5), 34185–34190 Federal Maritime Commission PROPOSED RULES NOTICES Alternative Simplified Credit under Section 41(c)(5), Filing of Complaint and Assignment: 34237–34239 Maher Terminal, LLC v. The Port Authority of New York Tax Return Preparer Penalties, 34560–34597 and New Jersey, 34304–34305 NOTICES Agency Information Collection Activities; Proposals, Fish and Wildlife Service Submissions, and Approvals, 34358–34362 NOTICES Endangered and Threatened Species Permit Applications, International Trade Administration 34312 NOTICES Endangered Wildlife and Plants; Permits, 34312–34313 Final Results and Partial Rescission of the 12th Technical Agency Draft Recovery Plan; Availability: Administrative Review: Puerto Rican Parrot, 34313–34314 Fresh Garlic from the People’s Republic of China, 34251– 34253 Food and Drug Administration Market Development Cooperator Program (MDCP), 34253– RULES 34254 New Animal Drugs for Use in Animal Feeds; Tylosin, 34184–34185 International Trade Commission Oral Dosage Form New Animal Drugs; Ivermectin Paste, NOTICES 34184 Investigations: Non-Malleable Cast Iron Pipe Fittings From China, Forest Service 34325–34326 PROPOSED RULES Request for Comment; Availability: Justice Department Regulatory Flexibility Act Assessment; Locatable See Antitrust Division Minerals Operations, 34239–34240 See Drug Enforcement Administration See National Institute of Corrections General Services Administration PROPOSED RULES PROPOSED RULES Nondiscrimination on the Basis of Disability by Public Acquisition Regulation: Accommodations and in Commercial Facilities, 34508– GSAR Case 2006G502; Rewrite of GSAR Part 501; General 34557 Services Administration Acquisition Regulation Nondiscrimination on the Basis of Disability in State and System, 34240–34242 Local Government Services, 34466–34508 Federal Acquisition Regulation: NOTICES FAR Case 2007017; Service Contractor Employee Lodging of Settlement Agreement: Personal Conflicts of Interest, 34600 The Comprehensive Environmental Response, Compensation, and Liability Act, 34326 Health and Human Services Department Proposed Settlement Agreement: See Food and Drug Administration The Park System Resource Protection Act, 34326 See National Institutes of Health NOTICES Labor Department National Institute for Occupational Safety and Health: See Employment Standards Administration Decision to Evaluate a Petition to Designate a Class of NOTICES Employees for General Steel Industries, Granite City, Agency Information Collection Activities; Proposals, IL, etc., 34305 Submissions, and Approvals, 34332–34333

Homeland Security Department Land Management Bureau See Coast Guard NOTICES See Transportation Security Administration Intent to Amend the Three Rivers Resource Management See U.S. Citizenship and Immigration Services Plan and Conduct Public Scoping, 34314–34315

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Proposed Reinstatement of Terminated Oil and Gas Lease Rochester Museum & Science Center, Rochester, NY, (NDM 95212), 34315 34319 Rochester Museum & Science Center, Rochester, NY, Management and Budget Office 34318–34319 NOTICES Slater Museum of Natural History, University of Puget Public Availability of Fiscal Year 2007 Agency Inventories Sound, Tacoma, WA, 34319–34321 Under the Federal Activities Inventory Reform Act, U.S. Department of Agriculture, Forest Service, Los 34349–34350 Padres National Forest, Goleta, CA, et al., 34321– 34322 National Aeronautics and Space Administration U.S. Department of Defense, Army Corps of Engineers, PROPOSED RULES Portland District, Portland, OR, et al., 34323–34324 Federal Acquisition Regulation: U.S. Department of the Interior, Bureau of Land FAR Case 2007017; Service Contractor Employee Management, Alaska State Office, Anchorage, AK, et Personal Conflicts of Interest, 34600 al., 34324–34325

National Archives and Records Administration National Prison Rape Elimination Commission RULES NOTICES Presidential Library Facilities, 34197–34201 NPREC Draft Standards, 34334–34335

National Credit Union Administration Nuclear Regulatory Commission PROPOSED RULES NOTICES Organization and Operations of Federal Credit Unions, Application for the Renewal of Operating License: 34366–34464 Nuclear Management Company, LLC, 34335–34337 Biweekly Notice; Applications and Amendments to Facility National Foundation on the Arts and the Humanities Operating Licenses, 34337–34347 NOTICES Final Interim Staff Guidance: Meetings: Probabilistic Risk Assessment Information to Support Arts Advisory Panel, 34334 Design Certification and Combined License Applications, 34347 National Highway Traffic Safety Administration Meetings; Sunshine Act, 34347–34348 PROPOSED RULES Order Imposing Procedures for Access to Sensitive Proposed Decisions to Grant Exemptions: Unclassified Non-Safeguards Information etc.; Hearing: Average Fuel Economy Standards; Passenger Automobile Duke Energy Carolinas, LLC; Correction, 34348 Average Fuel Economy Standards, 34242–34245 Receipt and Availability of Application: National Institute of Corrections Yucca Mountain, 34348–34349 NOTICES Withdrawal of Application for Amendment to Facility Solicitation for a Cooperative Agreement: Inmate Behavior Operating License: Management: Entergy Nuclear Operations, Inc., 34349 Inmate Behavior Management: Implementation and Evaluation, 34330–34332 Office of Management and Budget See Management and Budget Office National Institutes of Health NOTICES Office of United States Trade Representative Meetings: See Trade Representative, Office of United States Center for Scientific Review, 34305–34306 National Institute of Mental Health, 34306–34307 Personnel Management Office National Institute on Aging, 34306 NOTICES Agency Information Collection Activities; Proposals, National Oceanic and Atmospheric Administration Submissions, and Approvals, 34352–34353 NOTICES Small Takes of Marine Mammals Incidental to Specified Presidential Documents Activities: PROCLAMATIONS Seismic Survey in the Beaufort Sea, AK; (Summer 2008), Special observances: 34254–34268 Father’s Day (Proc. 8270), 34601–34604

National Park Service Securities and Exchange Commission NOTICES NOTICES Intent to Repatriate Cultural Items: Self-Regulatory Organizations; Proposed Rule Changes: Cleveland Museum of Natural History, Cleveland, OH, NASDAQ Stock Market LLC, 34353–34355 34315–34316 Inventory Completion: Small Business Administration Field Museum of Natural History, Chicago, IL, 34316– NOTICES 34317 Disaster Declaration: Museum of Anthropology, Washington State University, Mississippi, 34355 Pullman, WA, 34317–34318 Seeking Exemption Under Section 312 of the Small Raymond M. Alf Museum of Paleontology, Claremont, Business Investment Act, Conflicts of Interest: CA, 34318 Telegraph Hill Partners SBIC, L.P., 34355–34356

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State Department U.S. Customs and Border Protection NOTICES NOTICES Agency Information Collection Activities; Proposals, Issuance of Final Determination Concerning Photocopying Submissions, and Approvals, 34356 Machines, 34309–34311 Foreign Terrorist Organization pursuant to Section 219 of the Immigration and Nationality Act Designation: Lashkar i Jhangvi, 34356 Separate Parts In This Issue Surface Transportation Board NOTICES Abandonment Exemption: Part II Illinois Central Railroad Co.; Ballard County, KY, 34357 National Credit Union Administration, 34366–34464 Abandonment Exemptions: Union Pacific Railroad Company, Maricopa County, AZ, Part III 34357–34358 Justice Department, 34466–34557 Trade Representative, Office of United States NOTICES Part IV WTO Dispute Settlement Proceeding: Treasury Department, Internal Revenue Service, 34560– European Communities; Tariff Treatment of Certain 34597 Information Technology Products, 34350–34351 Measures Related to Zeroing and Sunset Reviews, 34351– Part V 34352 Defense Department; General Services Administration; Transportation Department National Aeronautics and Space Administration, 34600 See Federal Aviation Administration See National Highway Traffic Safety Administration Part VI See Surface Transportation Board Executive Office of the President, Presidential Documents, 34601–34604 Transportation Security Administration NOTICES Transportation Worker Identification Credential (TWIC); Enrollment Dates: Reader Aids Ports of Little Rock, AR and Camden, NJ, 34307 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, Treasury Department and notice of recently enacted public laws. See Internal Revenue Service To subscribe to the Federal Register Table of Contents U.S. Citizenship and Immigration Services LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency Information Collection Activities; Proposals, archives, FEDREGTOC-L, Join or leave the list (or change Submissions, and Approvals, 34307–34308 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.

3 CFR Proclamations: 8270...... 34603 7 CFR 1170...... 34175 Proposed Rules: 305...... 34202 318...... 34202 12 CFR Proposed Rules: 701...... 34366 14 CFR Proposed Rules: 39 (3 documents) ...... 34224, 34228, 34233 21 CFR 520...... 34184 558...... 34184 26 CFR 1...... 34185 Proposed Rules: 1 (2 documents) ...... 34237, 34560 20...... 34560 25...... 34560 26...... 34560 31...... 34560 40...... 34560 41...... 34560 44...... 34560 53...... 34560 54...... 34560 55...... 34560 56...... 34560 156...... 34560 157...... 34560 301...... 34560 28 CFR Proposed Rules: 35...... 34466 36...... 34466 33 CFR 104...... 34190 150...... 34191 165 (3 documents) ...... 34191, 34195 36 CFR 1281...... 34197 Proposed Rules: 223...... 34239 228...... 34239 261...... 34239 292...... 34329 293...... 34239 47 CFR 90...... 34201 48 CFR Proposed Rules: 3...... 34600 9...... 34600 52...... 34600 501...... 34240 49 CFR Proposed Rules: 531...... 34242

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Rules and Regulations Federal Register Vol. 73, No. 117

Tuesday, June 17, 2008

This section of the FEDERAL REGISTER November 22, 2000, by Public Law 106– is now collected and published on a contains regulatory documents having general 532, 114 Stat. 2541, and further monthly basis. applicability and legal effect, most of which amended May 13, 2002, by Public Law The Act, as amended, provides USDA are keyed to and codified in the Code of 107–171, 116 Stat. 207. The Agricultural Federal Regulations, which is published under with the authority needed to make the 50 titles pursuant to 44 U.S.C. 1510. Marketing Act of 1946 and its reporting of dairy product price and amendments are hereinafter referred to stock information mandatory. No as the ‘‘Act.’’ The Code of Federal Regulations is sold by additional commodities are included the Superintendent of Documents. Prices of The provisions of the interim final under this rule. The Act also provides new books are listed in the first FEDERAL rule were published in the Federal REGISTER issue of each week. that USDA shall take such actions as it Register on July 3, 2007 (72 FR 36341), considers necessary to verify the and became effective on August 2, 2007. accuracy of the information submitted DEPARTMENT OF AGRICULTURE The interim final rule states that or reported. With more complete and comments were to be submitted on or accurate information, USDA and the Agricultural Marketing Service before September 4, 2007. On November dairy industry can be confident that 2, 2007, a Federal Register notice was reported dairy product prices and issued to reopen the comment period 7 CFR Part 1170 inventories are more precise indicators whereby comments were to be of supply and demand conditions. RIN 0581–AC66 submitted on or before December 3, [Doc. #AMS–DA–07–0047; DA–06–07] 2007 (72 FR 62105). The U.S. The Agricultural Marketing Service Department of Agriculture (USDA) has (AMS) has implemented a plan to verify Dairy Product Mandatory Reporting reviewed and considered all of the the price information submitted by comments submitted in a timely manner reporting entities to NASS. Each AGENCY: Agricultural Marketing Service, for this final rule. reporting entity may report for a single USDA. dairy plant or it may report for more ACTION: Final rule. Background: The Act provides for and accordingly, the interim final rule than one dairy plant, depending upon SUMMARY: This final rule adopts established, a Dairy Product Mandatory how the business is structured. During amendments to the Dairy Product Reporting Program that: (1) Requires the first year of verification, AMS Mandatory Reporting Program that was persons engaged in manufacturing dairy planned to visit all of the reporting established on August 2, 2007 on an products to provide to USDA certain entities eligible to file reports at least interim final basis. The Dairy Market information including the price, once. AMS visited all of the reporting Enhancement Act of 2000, and certain quantity, and moisture content, where entities within the first five months of provisions of the Farm Security and applicable, of dairy products sold by the implementation. In subsequent years, Rural Investment Act of 2002, amended manufacturer; and (2) requires AMS plans to visit larger entities that the Agricultural Marketing Act of 1946 manufacturers and other persons storing account for 80 percent of the yearly to provide for timely, accurate, and dairy products to report to USDA reported product volume of each reliable market information to facilitate information on the quantity of dairy specified dairy product at least once more informed marketing decisions and products stored. Under the interim final annually. AMS plans to visit one-half of promote competition in the dairy rule, the National Agricultural Statistics entities that account for the remaining product manufacturing industry. Service (NASS) collects such 20 percent each year, visiting each such DATES: Effective Date: June 22, 2008. information. This final rule, in entity at least once every other year. accordance with the Act, maintains FOR FURTHER INFORMATION CONTACT: For During each visit, AMS will review these requirements. Any manufacturer information relevant to this final rule: applicable sales transactions records for that processes and markets less than 1 (a) Concerning dairy product price data at least the four most recent weeks. In million pounds of the applicable dairy collection, reporting and verification some cases AMS may review sales contact John R. Mengel, Chief products per calendar year is exempt from these reporting requirements as records for longer periods of up to 2 Economist, USDA/AMS/Dairy years. AMS will verify that sales Programs, Office of the Chief Economist, specified in (1) of this paragraph. transactions agree with information STOP 0229–Room 2753, 1400 NASS began publishing cheddar reported to NASS and that there are no Independence Ave., SW., Washington, cheese price data in 1997. It began applicable sales transactions that are not DC 20250–0229, (202) 720–4664; (b) publishing butter, nonfat dry milk reported to NASS. This final rule concerning dairy products storage data (NFDM), and dry whey price data in includes noncompliance, appeals, and collection and reporting contact Dan 1998. Currently, NASS publishes enforcement procedures. These Kerestes, Chief, Livestock Branch, cheddar cheese, butter, dry whey, and procedures are carried out by AMS. USDA/NASS, STOP 2053–Room 6435, NFDM prices on a weekly basis. USDA 1400 Independence Ave., SW., has collected and reported stock data on AMS requested comments on all Washington, DC 20250–2053, (202) 720– a voluntary basis for butter and cheese aspects of the reporting requirements, 3570. since 1916, for NFDM since 1930, and the reporting specifications, and the SUPPLEMENTARY INFORMATION: This final for dry whey since 1975. Stock verification program. AMS has reviewed rule is a statutory requirement pursuant information on specific cheeses, salted all timely comments received and has to the Agricultural Marketing Act of and unsalted butter, anhydrous milkfat, considered these comments in 1946 [7 U.S.C. 1621 et seq.], as amended butter oil, nonfat dry milk and dry whey developing this final rule.

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Executive Order 12866: Regulatory established by the SBA. Those The monthly Dairy Products Planning and Review manufacturers that process and market questionnaire is mailed each month to This final rule has been determined less than 1 million pounds of the manufacturers of dairy products. not to be ‘‘significant’’ for purposes of applicable dairy products annually are Manufacturers report to NASS the Executive Order 12866 and therefore exempted from price reporting by this name, address, production, stocks, and has not been reviewed by the Office of final rule, and most of the entities that shipments data for a wide variety of Management and Budget. A cost benefit would be subject to mandatory reporting dairy products, including nonfat dry analysis prepared for the interim final already report this information to NASS. milk and dry whey. Reporting entities rule is available at http:// The annual cost to manufacturers report to NASS by facsimile, phone, or www.ams.usda.gov/dairy/. reporting product prices is estimated at mail. $381 per plant. As discussed in the The monthly Cold Storage Executive Order 12988: Civil Justice Paperwork Reduction Act section questionnaire is mailed each month to Reform below, AMS believes the records that manufacturers and other entities storing This final rule has been reviewed would be required to be maintained stocks of a wide variety of refrigerated under Executive Order 12988, Civil under this final rule are already being agricultural commodities, including Justice Reform. This rule is not intended maintained for at least 2 years as part of butter, cheese, and similar products. to have a retroactive effect. This rule the normal course of business. Thus, Manufacturers and other entities report will not preempt any State or local laws, there would be no additional burden or to NASS the name, address, and stocks regulations, or policies unless they cost associated with the maintenance of on hand at the end of the month. present an irreconcilable conflict with these records. Therefore, the final rule Reporting entities report to NASS by this rule. There are no administrative will not have a significant economic facsimile, phone, mail, or electronic procedures which must be exhausted impact on a substantial number of small data reporting. prior to any judicial challenge to the entities. This final rule continues provisions of this rule. implementation of recordkeeping Paperwork Reduction Act requirements established under the Regulatory Flexibility Act In accordance with the Paperwork interim final rule and authorized by the Pursuant to requirements set forth in Reduction Act (44 U.S.C. Chapter 35), Act. Under this regulation, each person the Regulatory Flexibility Act (RFA) (5 reporting and recordkeeping required to report information to USDA U.S.C. 601–612), AMS considered the requirements that are utilized to collect shall maintain, and make available to economic impact of this final rule on the information required by the Act USDA, on request, original contracts, small entities and determined that the have been approved by the Office of agreements, receipts, and other records associated with the sale or storage of rule would not have a significant Management and Budget (OMB). The any dairy products during the 2-year economic impact on a substantial OMB control number for the Dairy period beginning on the date of the number of small entities. The purpose of Products Prices questionnaire and the creation of the records. AMS has the RFA is to fit regulatory actions to the Dairy Products questionnaire is 0535– consulted with several entities that are scale of businesses subject to such 0020. The OMB control number for the required to maintain records under this actions in order that small businesses Cold Storage questionnaire is 0535– rule. According to the entities will not be unduly or disproportionately 0001. burdened. consulted, the necessary records are Small businesses in the dairy product The primary function of NASS is to already being maintained for at least 2 manufacturing 1 industry have been provide timely, accurate, and useful years as part of the normal course of defined by the Small Business statistics in service to U.S. agriculture. business. Therefore, there would be no Administration (SBA) as those Estimates of milk production, additional burden or cost associated processors employing not more than 500 production and storage of manufactured with the maintenance of these records. employees. For purposes of determining dairy products, and prices of milk and The reliability of prices announced by a processor’s size, if the plant is part of dairy products are integral parts of this NASS is dependent on the accuracy of a larger company operating multiple function. Milk and dairy statistics are the reports submitted by manufacturers. plants that collectively exceed the 500- used by USDA to help administer To verify that the data submitted to employee limit, the plant will be Federal programs and are used by the NASS for the Dairy Products Prices considered a large business even if the dairy industry in planning, pricing, and report is accurate, all manufacturers local plant has fewer than 500 projecting supplies of milk and milk required to submit questionnaires will employees. There are approximately 98 products. be subject to a verification procedure dairy product manufacturers and 110 Neither the interim final rule nor this conducted by AMS. Failure on the part manufacturers and other persons storing final rule changes the current method of manufacturers or other entities to dairy products that would be subject to and frequency of data collection utilized comply with the data collection and the provisions of this rule. According to by NASS. Data collection of Dairy recordkeeping requirements could lead U.S. Census Bureau Statistics of U.S. Products Prices is conducted weekly to to enforcement action, including the Businesses, there were 1,110 dairy collect sales transactions data for the levying of civil penalties provided manufacturing firms in the United previous week. Manufacturers are under section 273 of the Act, as States in 2004. Of these businesses, provided a supply of report forms for amended [7 U.S.C. 1637b], against the 1,017 firms had fewer than 500 the products they are to report. The violating person or entity. employees and 93 firms had greater than dairy product manufacturer completes Except as otherwise directed by the 500 employees. the forms with information, including Secretary of Agriculture or the U.S. Therefore, few of the manufacturers the manufacturer’s name, address, plant Attorney General for enforcement and persons affected by this final rule location, quantities sold, and prices (or purposes, no officer, employee, or agent are small businesses under the criteria dollars received) for cheddar cheese, of the United States shall make available butter, dry whey, and NFDM. to the public information, statistics, or 1 North American Industry Classification System Manufacturers report to NASS by documents obtained from or submitted (NAICS) code 3115. facsimile or electronic data reporting. by any person under the Act other than

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in a manner that ensures confidentiality ‘‘shipped out’’ from a storage facility. In association, and 4 from individuals. is preserved regarding the identity of calculating the total dollars received or USDA has reviewed and considered all persons, including parties to a contract dollars per pound, the reporting entity of the comments submitted in a timely and proprietary business information. shall neither add transportation charges manner for this final rule. All report forms include a statement incurred at the time the product is The following discussion is based that individual reports are kept ‘‘shipped out’’ or after the product is upon USDA consideration of all confidential. ‘‘shipped out’’ nor deduct transportation comments received concerning the With respect to the application of the charges incurred before the product is interim final rule and other Privacy Act of 1974 (5 U.S.C. 552a) to ‘‘shipped out.’’ considerations. The discussion concerns the maintenance of records required by (6) The interim final rule excludes reporting requirements and the Act, the Dairy Products Prices clearing charges in the reporting specifications for the Dairy Products survey population consists of specifications. The final rule specifies Prices survey. agribusinesses. Data collected by this that in calculating the total dollars survey relates to agribusinesses’ received or dollars per pound, the 1. Forward-Priced Contracts dealings and not those of individuals. reporting entity shall not deduct Under the interim final rule, forward Records maintained at business sites for brokerage fees or clearing charges paid pricing sales (sales in which the selling verification of information reported to by the manufacturer. price was set [not adjusted] 30 or more NASS include contracts, agreements, (7) This final rule specifies that the days before the transaction was receipts and other material related to verification and noncompliance completed) are excluded from reporting sales of specific dairy products. No procedures are pursuant to section specifications. records about individuals are 273(b)(1)(A)(i) of the Act. The issue of forward-priced contracts maintained by NASS for this survey, (8) This final rule specifies the time is the issue discussed at greatest length and AMS believes that none would be by which dairy product manufacturers and by the greatest number of part of these maintained business must report on all dairy products sold. commenters. All comments concerning papers. Manufacturers must report by noon on the issue focus upon sales of nonfat dry Wednesday on all products sold during milk (NFDM). None of the commenters Summary of Changes in the Final Rule the seven days ending with the previous argues for including forward-priced From the Interim Final Rule Saturday. contracts in the reporting specifications All substantive changes in this final (9) Changes have been made in the for the other dairy products. rule from the interim final rule concern organization or content of some sections Positions taken by commenters on the reporting requirements and for greater clarity. issue are essentially as follows: specifications pertaining to the Dairy Discussion of Comments a. Include forward-priced contracts Products Prices report. Changes are as for NFDM. follows: The interim final rule solicited b. Include contracts for export sales of (1) Products that are produced under comments to be submitted to USDA on NFDM that are shipped within 90 days faith-based close supervision and are or before September 4, 2007. During this of contract execution. marketed at a higher price than the initial 60-day comment period, 19 c. Include contracts for domestic or manufacturer’s wholesale market price comment submissions were received: 6 export sales of NFDM that are shipped for the basic commodity (for example, from dairy cooperative associations, 4 within 90 days of contract execution. kosher products produced with a rabbi from federations of dairy cooperative d. Make no changes. on site who is actively involved in associations, 3 from producer e. In addition to excluding forward- supervision of the production process) associations, 3 from proprietary dairy priced contracts for which the selling are excluded in the reporting manufacturers, 1 from a dairy price is set 30 or more days before the specifications. manufacturer association, and 2 from transaction was completed from (2) With the interim final rule, dairy individuals. After reviewing comments reporting specifications, also exclude products sold under the Dairy Export received, USDA determined that contracts that reference a defined prices Incentive Program (DEIP) were included additional information from interested series, plus or minus a basis, entered in the reporting specifications. DEIP parties would be helpful. On November into more than 30 days before delivery. sales or other premium-assisted sales 2, 2007, a Federal Register notice was Supporters of including forward- are excluded in reporting specifications issued to reopen the comment period for priced contracts in NFDM price with this final rule. an additional 30 days. USDA reporting argue that the current (3) Products certified as organic by specifically solicited comments exclusion of forward-priced contracts USDA-accredited certifying agents are concerning the issues of product discourages exports because almost all excluded in the reporting specifications specifications, minimum transaction NFDM exports are through contracts with this final rule. volumes, kosher dairy products, and with shipments more than 30 days after (4) With the interim final rule the products produced from cows not execution. Therefore, the vast majority grade requirements stated that each treated with recombinant bovine of export sales are excluded from NASS product to be reported was to be of a somatotropin (rBST). USDA was reporting. DairyAmerica, Inc., states, certain grade. The final rule indicates concerned that for the initial comment ‘‘The proposed NASS sample that leaves that each product to be reported must period some commenters may have out critical supply and demand for milk only meet certain grade standards. limited their comments to the issues of represented by the export market raises (5) The interim final rule indicates forward-priced contracts and the question of ‘unbiasedness’. *** ’’ that transportation charges are to be verification. During the extended 30-day DairyAmerica contends that if fixed- excluded from the reported price for comment period, 10 comment priced contracts were included in the each commodity. The final rule clarifies submissions were received: 2 from dairy reporting requirements, Class IV milk that each sale shall be reported either cooperative associations, 2 from prices would more closely align with f.o.b. plant if the product is ‘‘shipped federations of dairy cooperative the majority of sales of NFDM. It claims out’’ from the plant or f.o.b. storage associations, 1 from a producer that this would reduce risks for NFDM facility location if the product is association, 1 from a dairy manufacturer producers. It points out that there is no

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effective futures market for NFDM at in the domestic market place would not implement electronic reporting for dairy this time. Other supporters of including necessarily be in alignment with the products. forward-priced contracts in NFDM price Class IV price or Class II price. With IDFA also asserts that AMS should be reporting include California Dairies, respect to NFDM futures markets, responsible for data collection and that Inc., and the Alliance of Western Milk Leprino Foods Company states, the data should be collected Producers. ‘‘Although there are likely additional electronically. IDFA contends that if Fonterra Co-operative Group Limited factors, we believe that the historic AMS were to collect the data provides a discussion of contracts used practice of certain nonfat manufacturers electronically at a national level, for the international dairy market. of including long-term contracts in timeliness of reporting would be Fonterra points out that due to prices reported and used in establishing improved and conflicting information certification procedures, regulatory the underlying milk prices have from NASS offices in different States requirements, etc., a seller in the substantially limited the establishment would be eliminated. Dairylea international market does not have of viable nonfat dry milk futures.’’ Other Cooperative also advocates that AMS complete control of the timeframe for supporters of the current regulation collect the data electronically. delivery. Fonterra describes spot, include Nestle´ USA and an individual This rule makes no changes with medium-term, and long-term export commenter. respect to responsibilities or methods contracts. An export contract for Dairy Producers of New Mexico for data collection. The Secretary of ‘‘immediate’’ delivery can take 1 to 2 (DPNM) advocates the current 30-day Agriculture has delegated NASS, an months to complete. A medium-term limit reporting exclusion and also the agency with data collection as its contract typically covers 3 months but exclusion of forward contracts that primary mission, as the USDA agency usually takes about 5 months from the reference a defined price series plus or with price reporting responsibilities for time of contract to the time of the last minus a basis. It contends that inclusion the Mandatory Dairy Product Reporting invoice date. A long-term contract is of such contracts in reporting leads to Program. typically for 6 months but may be as circularity in pricing and does not long as 12 months. provide accurate information 3. More Frequent Verification National Milk Producers Federation concerning spot prices for dairy New York Farm Bureau is concerned (NMPF) advocates extending the time products. that the frequency of verification visits period of reporting NFDM sales from 30 This final rule maintains the current days to 90 days in recognition of growth reporting exclusion for forward pricing in the proposed rule may not be of NFDM exports and the requirements sales (sales in which the selling price sufficient to guarantee accurate and for export sales. NMPF notes that was set [not adjusted] 30 or more days timely verification. It does not propose effective and liquid futures contracts before the transaction was completed). a specific time period for the frequency exist for Class III milk (which are often IDFA’s argument has merit: ‘‘The of visits. IDFA supports the AMS plan used as hedge instruments for cheese inclusion of sales in which the price to visit all of the entities eligible to file prices) and butter. However, the same is was set more than 30 days in advance reports at least once during the first not the case for NFDM. The extension of the actual transaction would mean year. However, it urges AMS to follow of the time period as proposed by NMPF including survey data based on up with quarterly visits to any entities would only apply to export contracts. expectations of today’s market that have been found to have reported NMPF states that limiting the reporting environment, not the actual current incorrectly. time period to 90 days will ensure that market environment itself.’’ AMS planned to visit all entities forward-priced export contracts do not This final rule does not exclude from eligible to report in the first year at least have a disproportionate effect on reporting specifications forward once. AMS visited all of the reporting Federal order pricing. Land O’Lakes, contracts that reference a defined price entities within the first five months of Inc., (LOL) and Dairylea Cooperative, series plus or minus a basis. Information the Mandatory Dairy Product Reporting Inc., support NMPF’s position. Western is not readily available to indicate that Program implementation. Some United Dairymen also proposes there is any significant problem with reporting entities have been visited extending the time of reporting from 30 bias caused by circularity in the more than once. AMS plans to visit to 90 days, but it does not specify that reporting of such forward contracts. large entities that account for 80 percent the extension would apply to exports of the yearly reported product volume of 2. Electronic Data Collection by AMS only. each specified dairy product at least Supporters of the current 30-day limit NMPF lists reasons as to why AMS, once annually. AMS plans to visit one- assert that the current policy better rather than NASS, should have full half of the remaining entities each year, reflects the current market price. responsibility for mandatory dairy visiting each such entity at least once International Dairy Foods Association product reporting. According to NMPF, every other year. This does not preclude (IDFA) states, ‘‘The inclusion of sales in AMS is better suited for regulatory additional visits if necessary. which the price was set more than 30 enforcement, and AMS staff is better 4. Organic Product Exclusion days in advance of the actual equipped to collect and verify transaction would mean including consistent data from milk plants. NMPF IDFA, NMPF, and Dean Foods survey data based on expectations of states that AMS staff employees propose that organic products be today’s market environment, not the generally have more dairy expertise and excluded from the surveys because they actual current market environment usually have longer tenure than NASS receive higher wholesale market prices itself.’’ Dean Foods contends that employees. NMPF believes that reflecting additional costs that are not including forward-priced contracts coordination of the data collection and representative of the products in the could result in a market distortion the verification would be improved if broader market. Dean Foods is more related to Class II products. According AMS handled both functions. Since specific than IDFA or NMPF, stating to Dean Foods, at times it may be AMS has experience with electronic that ‘‘Certified Organic’’ products advantageous to manufacture Class II reporting through its mandatory should be excluded. No comments were products from NFDM rather than from livestock reporting program, NMPF received advocating the inclusion of Class II milk since the spot NFDM price asserts that AMS is better suited to organic products in price reporting.

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This final rule excludes products of 30,000 pounds for each product be the same as for any other dairy certified as organic by USDA-accredited included in the survey. products that meet the reporting certifying agents in the reporting USDA has not included transaction- specifications. It asserts the same specifications because such products size thresholds in this final rule. An rationale as for other sales: DEIP sales command higher prices, reflecting objective of the survey is to obtain a for which the sale price was established consumers’ perception that such broad measure of basic dairy commodity greater than 30 days prior to ship date products are of higher value than prices across the U.S. There is concern may not be reflective of current market similar products. that a significant number of plants may conditions. be excluded from reporting if thresholds With this final rule, all DEIP sales or 5. Coordination of Price Reporting With are established. Also, there is concern, other premium-assisted sales, such as the California Department of Food and as expressed by NMPF, that some export assistance sales through the CWT Agriculture (CDFA) reporting entities could ‘‘reorganize program, are excluded from the Both NMPF and DairyAmerica distribution to evade reporting.’’ reporting specifications. Before encourage USDA to take steps to align Furthermore, adding transaction-size mandatory reporting became effective, price data, methodology, and timing thresholds to the reporting DEIP sales were included in reporting with that of CDFA. While NMPF specifications could add an unnecessary specifications to encourage voluntary encourages broad cooperation with reporting burden for some reporting reporting by manufacturers that wanted CDFA concerning alignment of all class entities due to the necessity of keeping DEIP sales to be included. Since prices, DairyAmerica’s comments are separate sales totals for transactions that reporting is now mandatory, this is no limited to considerations of NFDM price meet thresholds and those that do not. longer a consideration. As pointed out by Leprino, DEIP contracts entered into reporting. 7. High-Heat and Fortified NFDM DairyAmerica’s submission of more than 30 days before date of According to LOL, the costs and comments includes testimony from a shipment may not be reflective of pricing arrangements for high-heat recent CDFA hearing concerning NFDM current market conditions. Furthermore, NFDM closely resemble those of low- price reporting. CDFA conducted a DEIP sales or other premium-assisted heat and medium-heat NFDM. LOL public hearing on August 28, 2007, to sales include bonuses paid by third asserts that including high-heat NFDM consider revisions to weekly and parties. Export bonuses are frequently in the reporting specifications would monthly NFDM price reporting for the based upon market averages of domestic result in greater alignment with the California Weighted Average Price and international commodity prices that CWAP. DairyAmerica also proposes (CWAP). On October 17, 2007, CDFA may or may not be reflective of the including high-heat NFDM in the issued a final decision regarding the actual needs of the two parties to reach reporting specifications and also would CWAP (http://www.cdfa.ca.gov/dairy/ a sales agreement. _ _ _ include fortified NFDM. dairy hear finalresults Aug07.html). This final rule continues exclusions 9. Commodity Credit Corporation (CCC) The decision became effective on for high-heat and fortified NFDM in the Purchases Under the Milk Price Support October 26, 2007. reporting specifications. Observation of Program and Related Programs AMS has reviewed testimony from the prices reported in USDA Dairy Market DairyAmerica asserts that CCC sales CDFA hearing in its deliberations for News indicates that prices for high-heat must continue to be reportable in order this final rule. As DairyAmerica NFDM are generally higher than those to avoid the risk that Federal order acknowledges, ‘‘* * * AMS cannot for low and medium-heat NFDM. minimum prices would fall below simply agree to operate its system based Adding value to NFDM through support levels. upon California.’’ USDA must make fortification also would result in a CCC purchases under the Milk Price decisions based upon its own program higher price generally than that of the Support Program and related programs objectives, consideration and judgment basic commodity. continue to be included in the reporting of the issues, and comments. specifications under this final rule. 8. Dairy Export Incentive Program Including CCC purchases provides a 6. Transaction-Size Thresholds (DEIP) or Other Premium-Assisted Sales broader survey that more accurately The typical sales unit for dairy DairyAmerica claims that DEIP sales reflects market conditions. products included in the Dairy Products should continue to be reported, Prices survey is 40,000 pounds. IDFA asserting that excluding DEIP sales in 10. Intra-Company Sales recommends setting a transaction-size the reporting specifications would be in Reporting specifications exclude threshold of 40,000 pounds for products conflict with the policy decision of intra-company sales. DairyAmerica to be reported for the Dairy Products Congress to support exports with supports this policy in general because Prices survey. It points out that dairy taxpayer dollars. DairyAmerica claims such sales may not represent a true contracts for the Chicago Mercantile that if DEIP sales were to be excluded market price. However, DairyAmerica Exchange (CME) are based upon this from the reporting specifications, prices asserts that its sales, as a federation of typical size unit. Similarly, NMPF paid for milk through the Federal order dairy cooperatives, between a member proposes that USDA set transaction-size system would not be reflective of the and that member’s wholly-owned thresholds for reporting sales, claiming commodity prices of products sold subsidiary should be reportable. It that products distributed in smaller lots through DEIP. This situation increases argues that these sales are arms-length have added value and cost. However, the risk that the manufacturers engaged transactions. DairyAmerica states that NMPF states that any decision to in DEIP sales will suffer loss. For the its corporate structure requires it to establish transaction thresholds should same reasons, DairyAmerica asserts that maximize revenue for its members and be considered very carefully to ensure export assistance sales through the that it cannot favor one member of the that no important product volumes are voluntary industry program, federation over another. omitted from reporting and to avoid Cooperatives Working Together (CWT) This final rule continues the efforts by manufacturers ‘‘to reorganize program, should be reported. exclusion of intra-company sales, even distribution to evade reporting.’’ NMPF Leprino asserts that the timeliness if those sales are to wholly-owned suggests that USDA consider a threshold criteria for reporting DEIP sales should subsidiaries through a federation of

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dairy cooperatives. Although a LOL urges AMS to exclude products neither too broad nor too narrow. federation of dairy cooperatives may labeled as sourced from cows not Excluding all products meeting the least have rules that all sales will be at treated with rBST in the reporting stringent kosher standards would be too market prices, it may not be possible to specifications. LOL claims that broad since such products are verify through the federation and producers who discontinue using rBST commonplace and the added market manufacturer books and records that have a significant drop in milk value is insignificant. This final rule such intra-company sales are arms- production, and it claims that the only excludes products manufactured length transactions. opportunity costs of discontinuing use under close rabbinical supervision and of rBST are $1.00 to $1.50 per marketed at a higher price than the 11. Enforcement hundredweight. Therefore, LOL asserts manufacturer’s wholesale market price DPNM asserts that manufacturers who that these producers should receive for the basic commodity. misreport to NASS should have greater premiums. Excluding such products It is possible that reporting issues will liability than stated in the interim final would in part help to share these arise concerning dairy products that are rule. DPNM proposes that a handler that premiums with only those producers manufactured to meet certain faith- misreports prices be held responsible to who forego the benefits of using rBST. based standards other than kosher account to various producer settlement In the future, if products labeled as requirements. For example, Islamic funds for any shortfalls that occur due sourced from cows not treated with Halal has certain production to the misreporting. Dairylea proposes rBST become more common, LOL requirements for dairy products. For that USDA be held responsible for would support including such products this reason, this final rule excludes any shortfalls in dairy producer income that in the surveys. dairy products produced under any result from misreporting of prices. IDFA urges USDA to exclude faith-based close supervision that are The Act is clear concerning the civil products labeled or contracted as marketed at a higher price than the penalty for noncompliance with a cease sourced from cows not treated with manufacturer’s wholesale market price and desist order relative to specified rBST, claiming that such products are for the basic commodity. unlawful acts. The Act states, ‘‘If the value-added products rather than [district] court finds that the person commodity products. 14. Cost Add-Ons violated the order, the person shall be The final rule does not exclude Dairylea proposes that ‘‘AMS allow subject to a civil penalty of not more products labeled or contracted as for dairy product manufacturing cost of than $10,000 for each offense.’’ Since sourced from cows not treated with production surcharges—determined the Act does not provide for the redress rBST. Further, USDA does not have through a regulated process—to be proposed by either DPNM or Dairylea, information to indicate that there are reported in the pricing survey. These this final rule does not include the substantial price premiums for such USDA determined cost increases should enforcement proposals by DPNM or products, and the sales volumes of such be allowed to be passed on from a Dairylea. products are unknown. manufacturer to the marketplace, without it impacting the Federal Order 12. Products Labeled or Contracted as 13. Kosher Products Sourced From Cows Not Treated With class prices.’’ NMPF points out that nearly all butter Consideration of Dairylea’s cost add- Recombinant Bovine Somatotropin and nonfat dry milk, and most dry whey ons proposal in this informal (rBST): production is kosher, by some standard. rulemaking is not appropriate. Dairylea NMPF lists reasons that it believes The same can be said for a substantial provided the same proposal in its products sourced from milk from cows amount of cheese. NMPF asserts that testimony at a hearing concerning Class not treated with rBST should be there are many kosher standards and III and IV prices (Federal milk included in reporting specifications. that it would be improper for USDA to marketing order hearing; Indianapolis, According to USDA Animal and Plant rule based upon those standards. LOL Indiana; April 11, 2007, Tr. page 1966; Health Inspection Service, only 15 and two individual commenters support exhibit 53). USDA is considering percent of dairy herds include cows including all kosher products in the Dairylea’s proposal in formal treated with rBST. Many products are reporting specifications. rulemaking with respect to that hearing. made from such milk even if not DairyAmerica advocates a very marketed as such. Marketing of such narrow exclusion of only a specially 15. Expansion of the Scope of Data products is increasing, and NMPF supervised form of kosher designated as Collection and Reporting asserts that excluding them would ‘‘Cholov Yisroel,’’ a kosher designation DPNM proposes that the Dairy compromise the survey. Manufacturers that requires close rabbinical Product Mandatory Reporting Program may have mixed sales (some from cows supervision from the farm through the be expanded to include the volume of treated with rBST and some with cows dairy product manufacturing process. It milk and milk components acquired by not treated with rBST), complicating states that this type of kosher product the plant, the prices paid for milk and reporting and verification. Furthermore, should not be reportable, or the extra milk components acquired by the plant, NMPF claims that it would be cost element for this type of kosher the volume of milk products produced inappropriate for USDA to define, designation should be deducted. IDFA at the plant, the value of the milk categorize, and verify labeling of such urges USDA to exclude kosher products products produced at the plant, and, products. from the reporting specifications if the alternatively, the costs and yields Three individuals submitted contract requires the products to be associated with making reported comments in support of including certified as kosher under direct products. products labeled or contracted as rabbinical supervision. DPNM proposes that these items be sourced from cows not treated with Since the final rule is concerned with collected and reported in order to help rBST in the reporting specifications. capturing prices for basic commodities, USDA make better decisions with Two of the individuals assert that it attempts to exclude value-added respect to make allowances and yield excluding such products would products from the price surveys. For factors. DPNM notes that the Act uses undervalue milk prices paid to dairy kosher products, care is taken in the the phrase ‘‘information concerning the farmers. final rule to use a standard that is price, quantity, and moisture content of

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dairy products’’ in the description of 17. Grade A Dry Whey people. They could also take the form of information to be obtained. Using a Leprino states that Grade A dry whey fees paid to third parties, such as broad perspective of the word should continue to be excluded because brokerage fees, clearing charges, etc. To ‘‘concerning,’’ DPNM asserts that USDA it is a premium product. This final rule maintain consistency, none of the has authority to collect the additional agrees and continues the exclusion for marketing expenses, whether internal information proposed. Grade A dry whey. expenses or fees paid to third parties, This final rule does not add data should be deducted from the prices collection as proposed by DPNM. 18. Inclusion of Products That Are Not reported to NASS. While the interim Collection of such information is Graded final rule excluded clearing charges beyond the scope of the Act. Questions have arisen concerning the from the reporting specifications for reporting of products that are not graded each product, this final rule specifies 16. Product f.o.b. Points by authorities stated in the reporting that in calculating the total dollars The interim final rule states that sales specifications but that meet grade received or dollars per pound, the shall be reported f.o.b. processing plant standards. Most dairy products for the reporting entity shall not deduct or storage location. Leprino claims that Dairy Products Prices survey are not brokerage fees or clearing charges paid pricing f.o.b. storage center is actually graded but meet the grade by the manufacturer. standards of authorities designated in inappropriate because such pricing Effective Date results in a price with a different the reporting specifications. For greater location value than that of the plant. It clarification the wording of the final The availability of accurate market further claims that costs to ship rule has been changed to clarify that data for all market participants is products to storage centers are not products that meet grade standards, as extremely important. Buyers and seller included in Federal order make determined by the manufacturer, are to of the basic dairy commodities, and allowance calculations; therefore, such be reported. indeed, the buyers and sellers of all dairy products depend on the accuracy costs should not be included in the 19. Exemptions survey prices. It proposes that the price of the prices affected by this final rule reported should be reduced by the cost One individual submitted comments to provide them a sense of the current of transporting products to storage proposing that mandatory reporting supply and demand conditions in the centers. regulations not be ‘‘implemented except dairy sector. Improvements in the With this final rule, AMS continues as they would apply to truly industrial quality of price information of the basic the policy of requiring sales to be level dairy production.’’ The commenter dairy commodities—butter, cheddar, reported f.o.b. reporting plant or storage does not define a level of production to cheese, nonfat dry milk, and dry whey— be considered as ‘‘truly industrial.’’ center without adjustment for were made by the interim final rule. Stating concerns about compliance transportation to storage facilities prior This final rule makes certain costs, the individual proposes that a to sale. While pricing f.o.b. storage amendments which further enhance the cost-benefit analysis be performed for center may reflect a location value that quality of such price information. For different levels of production for is different than that which exists at the this reason, good cause is found that manufacturers before the regulation is manufacturing plant, reducing the price this rule will be effective the Sunday implemented. by some unspecified transportation cost, after publication in the Federal According to the cost-benefit analysis, Register. which may or may not be consistent the annual cost to manufacturers with the product value, is inappropriate. reporting product prices is estimated at List of Subjects in 7 CFR Part 1170 The pricing at f.o.b. storage facility $381 per plant. Even for a small plant, Dairy products, Reporting and would presumably be competitive with such reporting costs would not be recordkeeping requirements, Cheese, prices of competitors in the surrounding expected to be prohibitive. Concerning Butter, Whey, Nonfat dry milk. area. Reporting a price reduced by the the maintaining of records, AMS has I transporting of the product to the For the reasons set forth in the consulted with several reporting entities preamble, Title 7, subtitle B, chapter X storage center may understate the and has found that manufacturers wholesale value of the product at that is amended by revising part 1170, to already maintain records for at least 2 read as follows: location and time. years as required by the final rule. With The interim final rule indicates that the interim final rule, AMS invited PART 1170—DAIRY PRODUCT transportation charges are to be comments on whether all entities MANDATORY REPORTING excluded from the reported price for subject to the rule maintain the each commodity. This exclusion is not necessary records for at least 2 years. No Sec. intended to apply to transportation costs such comments were received. 1170.1 Secretary. from the manufacturer to a storage Under this final rule, manufacturers 1170.2 Act. 1170.3 Person. facility before the product is sold. The who process and market less than 1 final rule clarifies that each sale shall be 1170.4 Dairy products. million pounds of the applicable dairy 1170.5 Manufacturer. reported either f.o.b. plant if the product products per year are exempt from price 1170.6 Store. is ‘‘shipped out’’ from the plant or f.o.b. reporting requirements. storage facility location if the product is Dairy Product Reporting Programs ‘‘shipped out’’ from a storage facility. In 20. Brokerage Fees and Clearing 1170.7 Reporting requirements. calculating the total dollars received or Charges 1170.8 Price reporting specifications. dollars per pound, the reporting entity Practically all firms that buy or sell 1170.9 Price reporting exemptions. shall neither add transportation charges products have marketing expenses. 1170.10 Storage reporting specifications. incurred at the time the product is These marketing expenses are figured 1170.11 Records. 1170.12 Confidential information. ‘‘shipped out’’ or after the product is into the selling prices negotiated ‘‘shipped out’’ nor deduct transportation between buyers and sellers. These Verification and Enforcement charges incurred before the product is expenses often take the form of internal 1170.13 Verification of reports. ‘‘shipped out.’’ expenses, such as salaries paid to sales 1170.14 Noncompliance procedures.

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1170.15 Appeals. If a Federal holiday falls on a Tuesday (ii) 500-pound barrels: Product meets 1170.16 Enforcement. or Wednesday, NASS will contact Wisconsin State Brand or USDA Extra Authority: 7 U.S.C. 1637–1637b, as manufacturers via e-mail or phone Grade or better standards. amended by Pub. L. 106–532, 114 Stat. 2541 concerning the applicable report (6) Color: and Pub. L. 107–171, 116 Stat. 207. deadline. The report is to be submitted (i) 40-pound blocks: colored and on the appropriate forms supplied by within the color range of 6–8 on the § 1170.1 Secretary. NASS and shall indicate the name, National Cheese Institute color chart. Secretary means the Secretary of address, plant location(s), quantities (ii) 500-pound barrels: white. Agriculture of the United States or any sold, total sales dollars or dollars per (7) Packaging: other officer or employee of USDA to pound for the applicable products, and (i) 40-pound blocks: Price should whom authority has been delegated. the moisture content where applicable. reflect cheese wrapped in a sealed, airtight package in corrugated or solid § 1170.2 Act. Each sale shall be reported for the time period when the transaction is fiberboard containers with a reinforcing Act means the Agricultural Marketing inner liner or sleeve. Exclude all other Act of 1946, 7 U.S.C. 1621 et seq., as completed, i.e. the product is ‘‘shipped out’’ and title transfer occurs. Each sale packaging costs from the reported price. amended by the Dairy Market (ii) 500-pound barrels: Exclude all Enhancement Act of 2000, Public Law shall be reported either f.o.b. plant if the product is ‘‘shipped out’’ from the plant packaging costs from the reported price. 106–532, 114 Stat. 2541, and the Farm (8) Exclude: Intra-company sales, Security and Rural Investment Act of or f.o.b. storage facility location if the product is ‘‘shipped out’’ from a storage resales of purchased cheese, forward 2002, Public Law 107–171, 116 Stat. pricing sales (sales in which the selling 207. facility. In calculating the total dollars received or dollars per pound, the price was set [not adjusted] 30 or more § 1170.3 Person. reporting entity shall neither add days before the transaction was Person means an individual, transportation charges incurred at the completed), cheese produced under partnership, corporation, association, or time the product is ‘‘shipped out’’ or faith-based close supervision and any other business unit. after the product is ‘‘shipped out’’ nor marketed at a higher price than the deduct transportation charges incurred manufacturer’s wholesale market price § 1170.4 Dairy products. before the product is ‘‘shipped out.’’ In for the basic commodity (for example, Dairy Products means: calculating the total dollars received or kosher cheese produced with a rabbi on (a) Manufactured dairy products that dollars per pound, the reporting entity site who is actively involved in are used by the Secretary to establish shall not deduct brokerage fees or supervision of the production process), minimum prices for Class III and Class clearing charges paid by the sales under the Dairy Export Incentive IV milk under a Federal milk marketing manufacturer. Program or other premium-assisted sales (for example, export assistance sales order issued under section 8c of the (b) Manufacturers or other persons through the Cooperatives Working Agricultural Adjustment Act (7 U.S.C. storing dairy products are required to Together program), and cheese certified 608c), reenacted with amendments by report, on a monthly basis, stocks of as organic by a USDA-accredited the Agricultural Marketing Agreement dairy products (as defined in § 1170.4) certifying agent. Act of 1937; and on hand, on the appropriate forms (b) Substantially identical products (b) Specifications for Butter Prices: supplied by the NASS. The report shall designated by the Secretary in this Part. (1) Variety: 80 percent butterfat, indicate the name, address, and stocks salted, fresh or storage. § 1170.5 Manufacturer. on hand at the end of the month for (2) Grade: Product meets USDA Grade Manufacturer means any person each storage location. AA standards. engaged in the business of buying milk § 1170.8 Price reporting specifications. (3) Packaging: 25-kilogram and 68- in commerce for the purpose of pound box sales. manufacturing dairy products in one or The following are the reporting (4) Exclude: Unsalted and Grade A more locations. specifications for each dairy product: butter, intra-company sales, resales of (a) Specifications for Cheddar Cheese purchased butter, forward pricing sales § 1170.6 Store. Prices: (sales in which the selling price was set (a) Store means to place cheese or (1) Variety: Cheddar cheese. [not adjusted] 30 or more days before butter in a warehouse or facility which (2) Style: 40-pound blocks or 500- the transaction was completed), butter is artificially cooled to a temperature of pound barrels. produced under faith-based close 50 degrees Fahrenheit or lower and hold (3) Moisture Content: supervision and marketed at a higher these dairy products for 30 days or price than the manufacturer’s wholesale more; or (i) 40-pound blocks: Moisture content is not reported. Exclude cheese that will market price for the basic commodity (b) Store means to place nonfat dry (for example, kosher butter produced milk or dry whey in a manufacturing be aged. (ii) 500-pound barrels: Report with a rabbi on site who is actively plant, packaging plant, distribution involved in supervision of the point, or shipment in transit. weighted average moisture content of cheese sold. NASS will adjust price to production process), sales under the Dairy Product Reporting Programs a benchmark of 38.0 percent based on Dairy Export Incentive Program or other standard moisture adjustment formulas. premium-assisted sales (for example, § 1170.7 Reporting requirements. export assistance sales through the CWT (a) All dairy product manufacturers, Exclude cheese with moisture content exceeding 37.7 percent. program), and butter certified as organic with the exception of those who are by a USDA-accredited certifying agent. exempt as described in § 1170.9, shall (4) Age: Not less than 4 days or more (c) Specifications for Dry Whey submit a report to National Agricultural than 30 days on date of sale. Prices: Statistics Service (NASS) by noon on (5) Grade: (1) Variety: Edible nonhygroscopic. Wednesday of all products sold as (i) 40-pound blocks: Product meets (2) Age: No more than 180 days. specified in § 1170.8 during the seven Wisconsin State Brand or USDA Grade (3) Grade: Product meets USDA Extra days ending with the previous Saturday. A or better standards. Grade standards.

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(4) Packaging or container: 25- from reporting dry whey sales as Verification and Enforcement kilogram bag, 50-pound bag, tote, or specified in § 1170.8(c). § 1170.13 Verification of reports. tanker. (d) Any manufacturer that processes (5) Exclude: Sales of Grade A dry and markets less than 1 million pounds For the purpose of assuring whey, intra-company sales, resales of of nonfat dry milk per calendar year is compliance and verification, records purchased dry whey, forward pricing exempt from reporting nonfat dry milk and reports required to be filed by sales (sales in which the selling price sales as specified in § 1170.8(d). manufacturers or other persons was set [not adjusted] 30 or more days pursuant to section 273(b)(1)(A)(i) of the before the transaction was completed), § 1170.10 Storage reporting specifications. Act, the Agricultural Marketing Service, dry whey produced under faith-based (a) Cold Storage Report: through its duly authorized agents, shall have access to any premises where close supervision and marketed at a (1) Reporting universe: All applicable records are maintained, higher price than the manufacturer’s warehouses or facilities, artificially where dairy products are produced or wholesale market price for the basic cooled to a temperature of 50 degrees stored, and at any time during commodity (for example, kosher dry Fahrenheit or lower, where dairy reasonable business hours shall be whey produced with a rabbi on site who products generally are placed and held permitted to inspect such manufacturer is actively involved in supervision of for 30 days or more. Excluded are stocks or person, and any original contracts, the production process), premium- in refrigerated space maintained by agreements, receipts, and other records assisted sales, and dry whey certified as wholesalers, jobbers, distributors, and associated with the sale of any dairy organic by a USDA-accredited certifying chain stores; locker plants containing products. agent. individual lockers; and frozen food (d) Specifications for the Nonfat Dry processors whose inventories are turned § 1170.14 Noncompliance procedures. Milk Prices: over more than once a month. (a) When the Secretary becomes aware (1) Variety: Non-fortified. (2) Products required to be reported: (2) Age: No more than 180 days. that a manufacturer or person may have (3) Grade: Product meets USDA Extra (i) Natural cheese, domestic and willfully delayed reporting of, or failed Grade or USPH2 Grade A standards. foreign made, including barrel and or refused to provide, accurate (4) Packaging or container: 25- cheese to be processed; American type information pursuant to section kilogram bag, 50-pound bag, tote, or cheeses, (cheddar, Monterey, Colby, 273(b)(1)(A)(i) of the Act, the Secretary tanker. etc.), including government owned may issue a cease and desist order. (5) Exclude: Nonfat dry milk stocks; Swiss; other natural cheese types (b) Prior to the issuance of a cease and manufactured using high heat process, (brick, mozzarella, Muenster, Parmesan, desist order, the Secretary shall provide sales of instant nonfat dry milk, sales of etc.). Exclude processed cheese. notice and an opportunity for an dry buttermilk products, intra-company (ii) Salted and unsalted butter, informal hearing regarding the matter to sales, resales of purchased nonfat dry anhydrous milkfat (AMF), butter oil, the manufacturer or person involved. milk, forward pricing sales (sales in including government owned stocks. (c) The notice shall contain the which the selling price was set [not (b) Dairy Products Report: following information: (1) That the issuance of a cease and adjusted] 30 or more days before the (1) Reporting universe: All desist order is being considered; transaction was completed), nonfat dry manufacturing plants. (2) That the reasons for the proposed milk produced under faith-based close (2) Products required to be reported: cease and desist order in terms supervision and marketed at a higher (i) Nonfat dry milk. sufficient to put the person on notice of price than the manufacturer’s wholesale (ii) Dry whey. the conduct or lack thereof upon which market price for the basic commodity the notice is based; (for example, kosher nonfat dry milk § 1170.11 Records. (3) That within 30 days after receipt produced with a rabbi on site who is Each person required to report of the notice, the manufacturer or actively involved in supervision of the information to the Secretary shall person may submit, in person, in production process), sales under the maintain, and make available to the writing, or through a representative, Dairy Export Incentive Program or other Secretary, on request, original contracts, information and argument in opposition premium-assisted sales, and nonfat dry agreements, receipts, and other records to the proposed cease and desist order; milk certified as organic by a USDA- associated with the sale or storage of and accredited certifying agent. any dairy products during the 2-year (4) That if no response to the notice § 1170.9 Price reporting exemptions. period beginning on the date of the is received within the 30 days after (a) Any manufacturer that processes creation of the records. receipt of the notice, that a cease and desist order may be issued immediately. and markets less than 1 million pounds § 1170.12 Confidential information. of cheddar cheese per calendar year is (d) If a manufacturer or person Except as otherwise directed by the exempt from reporting cheddar cheese requests a hearing, the hearing should Secretary or the Attorney General for sales as specified in § 1170.8(a). be held at a location and time that is enforcement purposes, no officer, (b) Any manufacturer that processes convenient to the parties concerned, if employee, or agent of the United States and markets less than 1 million pounds possible. The hearing will be held shall make available to the public of butter per calendar year is exempt before the Deputy Administrator, Dairy information, statistics, or documents from reporting butter sales as specified Programs, Agricultural Marketing obtained from or submitted by any in § 1170.8(b). Service, or a designee. The person in compliance with the Dairy (c) Any manufacturer that processes manufacturer or person may be Product Mandatory Reporting program and markets less than 1 million pounds represented. Witnesses may be called by other than in a manner that ensures that of dry whey per calendar year is exempt either party. confidentiality is preserved regarding (e) The Deputy Administrator, Dairy 2 USPH refers to the US Department of Health and the identity of person, including parties Programs, Agricultural Marketing Human Services—Public Health Service/Food and to a contract, and proprietary business Service, or a designee will make a Drug Administration. information. decision on the basis of all the

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information in the administrative SUMMARY: The Food and Drug PART 520—ORAL DOSAGE FORM record, including any submission made Administration (FDA) is amending the NEW ANIMAL DRUGS by the manufacturer or person. The animal drug regulations to reflect decision of whether a cease and desist approval of a supplemental abbreviated I 1. The authority citation for 21 CFR order should be issued shall be made new animal drug application (ANADA) part 520 continues to read as follows: within 30 days after receipt of any filed by Cross Vetpharm Group Ltd. The Authority: 21 U.S.C. 360b. information and argument submitted by supplemental ANADA adds I 2. In § 520.1192, remove paragraphs the manufacturer or person. The cease effectiveness claims against various (b)(4) and (e)(1)(ii)(C) and revise and desist order shall be final unless the species of internal parasites when paragraph (b)(3) to read as follows: affected manufacturer or person horses are treated with ivermectin paste. requests a reconsideration of the order § 520.1192 Ivermectin paste. to the Administrator, Agricultural DATES: This rule is effective June 17, * * * * * Marketing Service, within 30 days after 2008. (b) * * * the date of the issuance of the order. (3) Nos. 051311, 054925, and 061623 FOR FURTHER INFORMATION CONTACT: John for use of a 1.87 percent paste for use § 1170.15 Appeals. K. Harshman, Center for Veterinary as in paragraphs (e)(1)(i), (e)(1)(ii)(A), If the cease and desist order is Medicine (HFV–104), Food and Drug and (e)(1)(iii) of this section. confirmed by the Administrator, Administration, 7500 Standish Pl., Agricultural Marketing Service, the Rockville, MD 20855, 240–276–8197, e- * * * * * manufacturer or person may appeal the mail: [email protected]. Dated: June 9, 2008. order in the appropriate United States Bernadette Dunham, SUPPLEMENTARY INFORMATION: Cross District Court not later than 30 days Vetpharm Group Ltd., Broomhill Rd., Director, Center for Veterinary Medicine. after the date of the confirmation of the [FR Doc. E8–13607 Filed 6–16–08; 8:45 am] order. Tallaght, Dublin 24, Ireland, filed a supplement to ANADA 200–326 for BILLING CODE 4160–01–S § 1170.16 Enforcement. BIMECTIN (ivermectin) Paste 1.87% adding effectiveness claims against (a) If a person subject to the Dairy DEPARTMENT OF HEALTH AND various species of internal parasites of Product Mandatory Reporting program HUMAN SERVICES fails to obey a cease and desist order horses. The supplemental ANADA is after the order has become final and approved as of May 23, 2008, and 21 Food and Drug Administration unappealable, or after the appropriate CFR 520.1192 is amended to reflect the United States district court has entered approval. 21 CFR Part 558 a final judgment in favor of the In accordance with the freedom of Administrator, Agricultural Marketing information provisions of 21 CFR part New Animal Drugs For Use in Animal Service, the United States may apply to 20 and 21 CFR 514.11(e)(2)(ii), a Feeds; Tylosin the appropriate United States district summary of safety and effectiveness AGENCY: Food and Drug Administration, court for enforcement of the order. data and information submitted to (b) If the court determines that the HHS. support approval of this application cease and desist order was lawfully ACTION: Final rule. may be seen in the Division of Dockets made and duly served and that the Management (HFA–305), Food and Drug SUMMARY: manufacturer or person violated the The Food and Drug Administration, 5630 Fishers Lane, rm. order, the court shall enforce the order. Administration (FDA) is amending the (c) If the court finds that the 1061, Rockville, MD 20852, between 9 animal drug regulations to reflect manufacturer or person violated the a.m. and 4 p.m., Monday through approval of a supplemental new animal cease and desist order, the manufacturer Friday. drug application (NADA) filed by or person shall be subject to a civil The agency has determined under 21 Elanco Animal Health, A Division of Eli penalty of not more than $10,000 for CFR 25.33(a)(1) that this action is of a Lilly & Co. The supplemental NADA each offense. type that does not individually or provides for revision of an effectiveness cumulatively have a significant effect on claim and pathogen nomenclature for a Dated: June 10, 2008. tylosin phosphate and sulfamethazine Lloyd C. Day, the human environment. Therefore, neither an environmental assessment Type A medicated article used to Administrator, Agricultural Marketing manufacture medicated swine feeds. Service. nor an environmental impact statement is required. DATES: This rule is effective June 17, [FR Doc. E8–13550 Filed 6–16–08; 8:45 am] 2008. BILLING CODE 3410–02–P This rule does not meet the definition of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because FOR FURTHER INFORMATION CONTACT: it is a rule of ‘‘particular applicability.’’ Timothy Schell, Center for Veterinary DEPARTMENT OF HEALTH AND Therefore, it is not subject to the Medicine (HFV–128), Food and Drug HUMAN SERVICES congressional review requirements in 5 Administration, 7500 Standish Pl., U.S.C. 801–808. Rockville, MD 20855, 240–276–8116, e- Food and Drug Administration mail: [email protected]. List of Subjects in 21 CFR Part 520 SUPPLEMENTARY INFORMATION: Elanco 21 CFR Part 520 Animal drugs. Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Oral Dosage Form New Animal Drugs; I Therefore, under the Federal Food, Indianapolis, IN 46285, filed a Ivermectin Paste Drug, and Cosmetic Act and under supplement to NADA 41–275 that AGENCY: Food and Drug Administration, authority delegated to the Commissioner provides for use of TYLAN 40 SULFA– HHS. of Food and Drugs and redelegated to G (tylosin phosphate and the Center for Veterinary Medicine, 21 sulfamethazine) Elliptical Pellets, a ACTION: Final rule. CFR part 520 is amended as follows: Type A medicated article. The

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supplement provides for revision of an use as in paragraph (e)(2)(ii) of this DEPARTMENT OF THE TREASURY effectiveness claim and pathogen section. Internal Revenue Service nomenclature. The supplemental NADA (6) No. 000986: 40 grams per pound is approved as of May 8, 2008, and the each for use as in paragraph (e)(2)(iii) of 26 CFR Part 1 regulations in 21 CFR 558.630 are this section. amended to reflect the approval. [TD 9401] Approval of this supplemental NADA (c) Special considerations. Labeling did not require review of additional shall bear the statement: ‘‘Do not use in RIN 1545–BH33 safety or effectiveness data or medicated feeds containing in excess of Alternative Simplified Credit Under information. Therefore, a freedom of 2% bentonite.’’ Section 41(c)(5) information summary is not required. (d) Related tolerances. See §§ 556.670 FDA has determined under 21 CFR and 556.740 of this chapter. AGENCY: Internal Revenue Service (IRS), 25.33(a)(1) that this action is of a type (e) Conditions of use. It is used in feed Treasury. that does not individually or for swine as follows: ACTION: Final and temporary cumulatively have a significant effect on regulations. the human environment. Therefore, (1) Amount per ton. 100 grams tylosin neither an environmental assessment and 100 grams sulfamethazine. SUMMARY: This document contains final nor an environmental impact statement (2) Indications for use–(i) Maintaining and temporary regulations relating to is required. weight gains and feed efficiency in the the election and calculation of the This rule does not meet the definition presence of atrophic rhinitis; lowering alternative simplified credit under of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because the incidence and severity of Bordetella section 41(c)(5) of the Internal Revenue Code. The final and temporary it is a rule of ‘‘particular applicability.’’ bronchiseptica rhinitis; prevention of regulations implement changes to the Therefore, it is not subject to the swine dysentery (vibrionic); control of congressional review requirements in 5 credit for increasing research activities swine pneumonias caused by bacterial U.S.C. 801–808. under section 41 made by the Tax Relief pathogens (Pasteurella multocida and/ and Health Care Act of 2006. The final List of Subjects in 21 CFR Part 558 or Corynebacterium pyogenes); for and temporary regulations will affect Animal drugs, Animal feeds. reducing the incidence of cervical certain taxpayers claiming credit under lymphadenitis (jowl abscesses) caused I Therefore, under the Federal Food, section 41. The text of these temporary by Group E Streptococci. Only the Drug, and Cosmetic Act and under regulations also serves as the text of the authority delegated to the Commissioner sulfamethazine portion of this proposed regulations (REG–149405–07) of Food and Drugs and redelegated to combination is active in controlling jowl published in the Proposed Rules section the Center for Veterinary Medicine, 21 abscesses. in this issue of the Federal Register. CFR part 558 is amended as follows: (ii) Maintaining weight gains and feed DATES: Effective Date: These regulations efficiency in the presence of atrophic are effective on June 17, 2008. PART 558—NEW ANIMAL DRUGS FOR rhinitis; lowering the incidence and Applicability Date: For dates of USE IN ANIMAL FEEDS severity of Bordetella bronchiseptica applicability, see §§ 1.41–6T(j), 1.41– rhinitis; prevention of swine dysentery 8T(b)(5), and 1.41–9T(d). I 1. The authority citation for 21 CFR (vibrionic); control of swine FOR FURTHER INFORMATION CONTACT: part 558 continues to read as follows: pneumonias caused by bacterial David A. Selig (202) 622–3040 (not a Authority: 21 U.S.C. 360b, 371. pathogens (Pasteurella multocida and/ toll-free number). I 2. Revise § 558.630 to read as follows: or Corynebacterium pyogenes). SUPPLEMENTARY INFORMATION: § 558.630 Tylosin and sulfamethazine. (iii) For maintaining weight gains and Background feed efficiency in the presence of (a) Specifications. Type A medicated This document amends 26 CFR part 1 articles containing equal amounts of atrophic rhinitis; lowering the incidence to provide rules relating to the tylosin phosphate and sulfamethazine, and severity of Bordetella alternative simplified credit (ASC), available in concentrations of 4, 5, 10, bronchiseptica rhinitis; prevention of which may be elected under section 20, or 40 grams each, per pound. swine dysentery associated with 41(c)(5) of the Internal Revenue Code (b) Approvals. See sponsor numbers Brachyspira hyodysenteriae; and control (Code). in § 510.600(c) of this chapter for use as of swine pneumonias caused by in paragraph (e) of this section. bacterial pathogens (Pasteurella General Overview (1) No. 000986: 10 or 40 grams per multocida and/or Arcanobacterium Section 41(a) provides an incremental pound each for use as in paragraph pyogenes). tax credit for increasing research (e)(2)(i) of this section. (3) Limitations. Withdraw 15 days activities (research credit), and is based (2) No. 021930: 2 grams per pound before swine are slaughtered. on a percentage of a taxpayer’s qualified each for use as in paragraph (e)(2)(i) of research expenses (QREs) above a base this section. Dated: June 9, 2008. amount. The Tax Relief and Health Care (3) No. 051311: 40 grams per pound Bernadette Dunham, Act of 2006 (Pub. L. 109–432, 120 Stat. each for use as in paragraph (e)(2)(ii) of Director, Center for Veterinary Medicine. 2922, December 20, 2006) (the Act) this section. [FR Doc. E8–13606 Filed 6–16–08; 8:45 am] made certain changes to the research (4) No. 017139: 4, 10, or 20 grams per BILLING CODE 4160–01–S credit, including the addition of another pound each for use as in paragraph method of computation that taxpayers (e)(2)(ii) of this section. may elect to use in computing the (5) Nos. 000986, 010439, 016968, amount of the research credit. The 021930, 024174, 030841, 034936, relevant Act provisions are effective 035098, 046573, 046987, and 051359: 5, generally for tax years after December 10, 20, or 40 grams per pound each for 31, 2006, but provide certain

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transitional rules for fiscal year also differences, such as the formula designated member by satisfying the taxpayers. calculation for the ASC, the ASC rules requirements described above. The Prior to the Act changes, there were are provided in a new § 1.41–9T. These election or revocation by the designated two ways a taxpayer could determine final and temporary regulations also member is binding on all the members the research credit under section 41(a). make conforming and clarifying changes of the group for the credit year to which One way, commonly referred to as the to §§ 1.41–1, 1.41–6, and 1.41–8. the election or revocation relates. If the regular credit, is determined by Section 1.41–9T provides that, at the designated member fails to timely make following the rules and percentages election of the taxpayer, the credit or revoke an election, each member of stated under section 41(a)(1). Under the determined under section 41(a)(1) the group must compute the group regular credit, the base amount is equals the amount determined under credit using the method used to generally determined with reference to the ASC under section 41(c)(5). compute the group credit for the the gross receipts of the taxpayer for the Generally, a taxpayer may elect the ASC immediately preceding credit year. four prior taxable years preceding the for any taxable year of the taxpayer The term designated member means taxable year in which credit is being ending after December 31, 2006. that member of the group that is determined (credit year) and the QREs However, for certain transitional rules, allocated the greatest amount of the and gross receipts over the five-year see Division A, section 104(b)(3), (c)(2), group credit under § 1.41–6(c) based on base period from 1984–1988. The base and (c)(4) of the Act. Because the the amount of credit reported on the amount cannot be less than 50 percent transitional rules are of limited duration original timely-filed Federal income tax of the taxpayer’s QREs for the credit and have already been described and return (even if that member year. Special rules are provided for implemented in the 2006 version of subsequently is determined not to be the certain start-up companies. Form 6765, ‘‘Credit for Increasing designated member). If the members of The second way a taxpayer could Research Activities,’’ these regulations a group compute the group credit using compute the research credit prior to the do not address the transitional rules. different methods (the method Act was to elect, in lieu of the regular The temporary regulations generally described in section 41(a), the AIRC credit, the alternative incremental credit provide the same rules related to method, or the ASC method) and at least (AIRC) under section 41(c)(4). Under the elections and revocations as those two members of the group qualify as the AIRC, the base amount is determined provided for the AIRC in § 1.41–8 in the designated member, then the term with reference to the gross receipts of current regulations. If a taxpayer makes designated member means that member the taxpayer for the four prior taxable an ASC election under section 41(c)(5), that computes the group credit using the years. the election applies to the taxable year method that yields the greatest group The Act added a third way, the ASC, for which made and all subsequent credit. under section 41(c)(5), which a taxpayer taxable years unless revoked. An ASC The temporary regulations provide may elect to compute the research election under section 41(c)(5) is made several special rules. Section 1.41–9T(c) credit. Section 41(c)(5)(A) provides the by completing the portion of Form 6765, provides that unless a taxpayer has general rule that, at the election of the ‘‘Credit for Increasing Research QREs in each of the three taxable years taxpayer, the credit determined under Activities,’’ (or successor form) relating preceding the taxable year for which the section 41(a)(1) shall be equal to 12 to the election of the ASC, and attaching credit is being determined, the credit percent of so much of the QREs for the the completed form to the taxpayer’s equals the percentage of the QREs for taxable year as exceeds 50 percent of the timely filed (including extensions) the taxable year provided by section average QREs for the three taxable years original return for the taxable year to 41(c)(5)(B)(ii). preceding the taxable year for which the which the election applies. The election The temporary regulations also credit is being determined. Section may not be revoked except with the provide special rules relating to 41(c)(5)(B) provides a special rule that consent of the Commissioner. A consistency and short taxable years. The the credit shall be equal to 6 percent of taxpayer is deemed to have requested, temporary regulations provide that in the QREs for the taxable year if the and to have been granted, the consent of computing the credit, QREs for the three taxpayer does not have QREs in each of the Commissioner to revoke the election taxable years preceding the credit year the three taxable years preceding the if the taxpayer completes the portion of must be determined on a basis year for which credit is being Form 6765 (or successor form) relating consistent with the definition of QREs determined. to the credit determined under section for the credit year, without regard to the Section 41(c)(5)(C) provides that an 41(a)(1) or the AIRC and attaches the law in effect for the three taxable years ASC election under section 41(c)(5) completed form to the taxpayer’s timely preceding the credit year. This shall apply to the taxable year for which filed (including extensions) original consistency requirement applies even if made and all succeeding taxable years return for the year to which the the period for filing a claim for credit or unless revoked with the consent of the revocation applies. As is the case with refund has expired for any of the three Secretary. It further provides that an a revocation of an AIRC election under taxable years preceding the credit year. ASC election under section 41(c)(5) may § 1.41–8, an election under section The regulations also provide special not be made for any taxable year to 41(c)(5) may not be made or revoked on rules similar to the rules in § 1.41–3(b) which an AIRC election under section an amended return. Accordingly, for of the existing regulations for taxpayers 41(c)(4) applies. purposes of further clarification, the that have a short taxable year. If one or temporary regulations also provide that more of the three taxable years Explanation of Provisions an extension of time to make or revoke preceding the credit year is a short The primary objective of these an election under section 41(c)(5) (and taxable year, then the QREs for such temporary regulations is to provide similarly, under section 41(c)(4)) will year are deemed to be equal to the QREs guidance on the ASC under section not be granted under § 301.9100–3. actually paid or incurred in that year 41(c)(5). The temporary regulations In the case of a controlled group of multiplied by 12 and divided by the provide rules for the ASC similar to corporations, all the members of which number of months in that year. some of the rules relating to the AIRC are not included on a single Additionally, the temporary regulations as contained in § 1.41–8 of the current consolidated return, an election or provide that if a credit year is a short regulations. However, because there are revocation must be made by the taxable year, then the average QREs for

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the three taxable years preceding the rulemaking published in the Proposed (b) * * * credit year are modified by multiplying Rules section in this issue of the Federal (5) Effective/applicability dates. that amount by the number of months Register. Pursuant to section 7805(f) of § 1.41–9 Alternative simplified credit. in the short taxable year and dividing the Code, these regulations have been the result by 12. submitted to the Chief Counsel for [Reserved]. For further guidance, see The regulations also clarify that the Advocacy of the Small Business the entries for § 1.41–9T in § 1.41–0T. average QREs for the three taxable years Administration for comment on their I Par. 3. Section 1.41–0T is added to preceding the taxable year for which impact on small business. read as follows: credit is being determined will be considered the base amount for Drafting Information § 1.41–0T Table of contents (temporary). purposes of the computation under The principal author of these This section lists the table of contents section 41(h)(2). Therefore, if the regulations is David Selig, Office of the for §§ 1.41–6T, 1.41–8T, and 1.41–9T. research credit expires during the credit Associate Chief Counsel (Passthroughs § 1.41–6T Aggregation of expenditures year, the average QREs for the three and Special Industries). However, other (temporary). taxable years preceding the credit are personnel from the IRS and Treasury (a) [Reserved]. For further guidance, multiplied by the ratio of the number of Department participated in their see the entry for § 1.41–6(a) in § 1.41–0. days for which the research credit is development. (b) Computation of the group credit. effective to the total number of days in List of Subjects in 26 CFR Part 1 (1) In general. the credit year. (2) [Reserved]. For further guidance, Income taxes, Reporting and The Treasury Department and the IRS see the entry for § 1.41–6(b)(2) in § 1.41– recordkeeping requirements. note that the rules generally applicable 0. under section 6001 provide sufficient Amendments to the Regulations (c) Allocation of the group credit. detail about required documentary (1) [Reserved]. For further guidance, I substantiation for purposes of the Accordingly, 26 CFR part 1 is see the entry for § 1.41–6(c)(1) in § 1.41– research credit. Section 1.6001–1 amended as follows: 0. requires the keeping of records PART 1—INCOME TAXES (2) Stand-alone entity credit. ‘‘sufficient to establish the amount of (d) [Reserved]. For further guidance, ***** required to be shown* * *.’’ I Paragraph 1. The authority citation see the entry for § 1.41–6(d) in § 1.41– The IRS may deny the credit for failure for part 1 is amended by adding entries 0. to provide sufficient records in numerical order to read in part as (e) Example. substantiating the claimed credit for any follows: (f) through (i) [Reserved]. For further method used in determining the guidance, see the entries for § 1.41–6(f) Authority: 26 U.S.C. 7805* * * research credit. Section 1.41–8T also issued under 26 through (i) in § 1.41–0. (j) Effective/applicability dates. Effective/Applicability Date U.S.C. 41(c)(4)(B); Section 1.41–9T also issued under 26 * * * * * Sections 1.41–6T(j), 1.41–8T(b)(5), U.S.C. 41(c)(5)(C); * * * and 1.41–9T(d) of these regulations § 1.41–8T Alternative incremental credit apply to taxable years ending after § 1.41–0 [Amended] (temporary). December 31, 2006, the effective date of I Par. 2. Section 1.41–0 is amended by: (a) [Reserved]. For further guidance, section 41(c)(5), and terminate on or I 1. Revising the introductory text. see the entry for § 1.41–8(a) in § 1.41–0. before June 13, 2011. (b) Election. For certain transitional rules under § 1.41–6 [Amended] (1) In general. section 41, see Division A, sections I 2. Revising the paragraph heading for (2) Time and manner of election. 104(b)(3), (c)(2), (c)(4), and 123(a) of the § 1.41–6(j) and adding entries for (3) Revocation. Act. paragraphs (j)(1), (j)(2), and (j)(3). (4) Special rules for controlled groups. The IRS and Treasury Department are (i) In general. § 1.41–8 [Amended] committed to providing appropriate (ii) Designated member. I relief to taxpayers that have used 3. Revising the section heading for (5) Effective/applicability dates. methodologies inconsistent with the § 1.41–8 and entries for paragraphs (a) and (b)(5). § 1.41–9T Alternative simplified credit short taxable year rules provided in I (temporary). these regulations on tax returns filed 4. Adding § 1.41–9. The additions and revisions read as (a) Determination of credit. after the effective date of section 41(c)(5) follows: (b) Election. and prior to the publication of these (1) In general. regulations. § 1.41–0 Table of contents. (2) Time and manner of election. Special Analyses This section lists the table of contents (3) Revocation. for §§ 1.41–1 through 1.41–9. (4) Special rules for controlled groups. It has been determined that this * * * * * (i) In general. Treasury decision is not a significant (ii) Designated member. regulatory action as defined in § 1.41–6 Aggregation of expenditures. (c) Special rules. Executive Order 12866. Therefore, a * * * * * (d) Effective/applicability dates. regulatory assessment is not required. It (j) Effective/applicability date. (e) Expiration date. also has been determined that section (1) In general. I Par. 4. Section 1.41–1 is amended by 553(b) of the Administrative Procedure (2) Consolidated group rule. adding a sentence to the end of Act (5 U.S.C. chapter 5) does not apply (3) Taxable years ending on or before paragraph (a) to read as follows: to these regulations. For the December 31, 2006. applicability of the Regulatory * * * * * § 1.41–1 Credit for increasing research Flexibility Act, refer to the Special activities. Analyses section of the preamble to the § 1.41–8 Alternative incremental credit. (a) * * * For taxable years ending cross-referenced notice of proposed (a) Determination of credit. after December 31, 2006, and at the

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election of the taxpayer, the portion of ending after December 31, 2006, see Each member’s stand-alone entity credit the credit determined under section § 1.41–6T. for any credit year must be computed 41(a)(1) may be calculated using either I Par. 6. Section 1.41–6T is added to under whichever method (the method the alternative incremental credit set read as follows: described in section 41(a), the method forth in section 41(c)(4), or the described in section 41(c)(4), or the alternative simplified credit set forth in § 1.41–6T Aggregation of expenditures method described in section 41(c)(5)) section 41(c)(5). (temporary). results in the greatest stand-alone entity * * * * * (a) [Reserved]. For further guidance, credit for that member, without regard I see § 1.41–6(a). to the method used to compute the Par. 5. Section 1.41–6 is amended by: (b) Computation of the group credit— I 1. Revising paragraph (e) introductory group credit. (1) In general. All members of a text and the paragraph heading for controlled group are treated as a single (d) [Reserved]. For further guidance paragraph (j). see § 1.41–6(d). I 2. Adding paragraph (j)(3). taxpayer for purposes of computing the The revision and addition reads as research credit. The group credit is (e) Example. Group alternative simplified follows: computed by applying all of the section credit. The following example illustrates a 41 computational rules on an aggregate group computation in a year for which the § 1.41–6 Aggregation of expenditures. basis. All members of a controlled group ASC method under section 41(c)(5) is in * * * * * must use the same method of effect. No members of the controlled group (e) Examples. The following examples computation, either the method are members of a consolidated group and no illustrate the provisions of this section. described in section 41(a)(1), the member of the group made any basic research Unless otherwise stated, no members of alternative incremental credit (AIRC) payments or paid or incurred any amounts to a controlled group are members of a an energy research consortium. method described in section 41(c)(4), or Example. (i) Facts. Q, R, and S, all of consolidated group, no member of the the alternative simplified credit (ASC) which are calendar-year taxpayers, are group made any basic research method described in section 41(c)(5), in members of a controlled group. The research payments or paid or incurred any computing the group credit for a credit credit under section 41(a)(1) is not allowable amounts to an energy research year. to the group for the 2008 taxable year (the consortium, and the group has not made (2) [Reserved]. For further guidance, credit year) because the group’s aggregate an AIRC election (except as provided in see § 1.41–6(b)(2). QREs for the credit year are less than the Example 6) or an ASC election. For an (c) Allocation of the group credit. (1) group’s base amount. The group does not use example illustrating the calculation of [Reserved]. For further guidance, see the AIRC method of section 41(c)(4) because the alternative simplified credit under § 1.41–6(c)(1). its aggregate QREs for the credit year do not section 41(c)(5), which is applicable for (2) Stand-alone entity credit. The term exceed 1 percent of the average annual gross taxable years ending after December 31, stand-alone entity credit means the receipts for the four years preceding the 2006, see § 1.41–6T(e). research credit (if any) that would be credit year. The group credit is computed using the ASC rules of section 41(c)(5). * * * * * allowable to a member of a controlled (j) Effective/applicability dates. *** group if the credit were computed as if Assume that each member of the (3) Taxable years ending on or before section 41(f)(1) did not apply, except group had QREs in each of the three December 31, 2006. Paragraphs (b)(1) that the member must apply the rules years preceding the credit year. For and (c)(2) of this section are applicable provided in § 1.41–6(d)(1) (relating to purposes of computing the group credit for taxable years ending on or before consolidated groups) and § 1.41–6(i) for the credit year, Q, R, and S had the December 31, 2006. For taxable years (relating to intra-group transactions). following:

Group Q R S aggregate

Credit Year QREs ...... $0x $20x $30x $50x Average QREs for 3 Years Preceding the Credit Year ...... 10x 20x 10x 40x

(ii) Computation of the group credit. the stand-alone entity credit for each stand-alone entity credits of the The research credit allowable to the member of the group must be computed members of the group is $4.2x. Because group is computed as if Q, R, and S are using the method that results in the the group credit of $3.6x is less than the one taxpayer. The group credit is equal greatest stand-alone entity credit for that sum of the stand-alone entity credits of to 12 percent of so much of the QREs member. The stand-alone entity credit all the members of the group ($4.2x), the for the credit year as exceeds 50 percent for Q is zero under all three methods. group credit is allocated among the of the average QREs for the three taxable Assume that the stand-alone entity members of the group based on the ratio years preceding the credit year. The credit for each of R ($1.2x) and S ($3x) that each member’s stand-alone entity group credit is 0.12 x ($50x¥(0.5 x is greatest using the ASC method. credit bears to the sum of the stand- $40x)), which equals $3.6x. Therefore, the stand-alone entity credits alone entity credits of all the members (iii) Allocation of the group credit. for each of R and S must be computed of the group. The $3.6x group credit is Under paragraph (c)(2) of this section, using the ASC method. The sum of the allocated as follows:

Q R S Total

Stand-Alone Entity Credit ...... $0x $1.2x $3x $4.2x Allocation Ratio (Stand-Alone Entity Credit/Sum of Stand-Alone Entity Credits) ...... 0/4.2 1.2/4.2 3/4.2 Multiplied by: Group Credit ...... $3.6x $3.6x $3.6x Equals: Credit Allocated to Member ...... $0x $1.03x $2.57x $3.6x

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(f) through (i) [Reserved]. For further alternative simplified credit (ASC) and taxable years ending on or before guidance see § 1.41–6(f) through (i). attaches the completed form to the December 31, 2006, see § 1.41–8. (j) Effective/applicability dates. This taxpayer’s timely filed (including (6) Expiration date. This applicability section is applicable for taxable years extensions) original return for the year of this section expires on or before June ending after December 31, 2006. For to which the revocation applies. An 13, 2011. taxable years ending on or before election under section 41(c)(4) may not I Par. 9. Sections 1.41–9 and 1.41–9T December 31, 2006, see § 1.41–6. be revoked on an amended return. An are added to read as follows: (k) Expiration date. The applicability extension of time to revoke an election of this section will expire on or before under section 41(c)(4) will not be § 1.41–9 Alternative simplified credit. June 13, 2011. granted under § 301.9100–3 of this [Reserved]. For further guidance, see I Par. 7. Section 1.41–8 is amended by: chapter. § 1.41–9T. I 1. Revising the section heading and (4) Special rules for controlled § 1.41–9T Alternative simplified credit the heading of paragraph (a). groups—(i) [Reserved]. For further (temporary). I 2. Removing the language ‘‘paragraph guidance, see § 1.41–8(b)(4)(i). (a) Determination of credit. At the (c) of this section’’ from the first (ii) Designated member. For purposes sentence of paragraph (b)(4)(ii) and election of the taxpayer, the credit of this paragraph (b)(4), for any credit determined under section 41(a)(1) adding ‘‘§ 1.41–6(c)’’ in its place. year, the term designated member I 3. Revising the paragraph heading and equals the amount determined under means that member of the group that is section 41(c)(5). adding two sentences at the end of allocated the greatest amount of the paragraph (b)(5). (b) Election—(1) In general. A group credit under § 1.41–6(c) based on taxpayer may elect to apply the The revisions and additions read as the amount of credit reported on the follows: provisions of the alternative simplified original timely-filed Federal income tax credit (ASC) in section 41(c)(5) for any § 1.41–8 Alternative incremental credit. return (even if that member taxable year of the taxpayer ending after (a) Determination of credit. *** subsequently is determined not to be the December 31, 2006. If a taxpayer makes (b) * * * designated member). If the members of an election under section 41(c)(5), the (5) Effective/applicability dates. a group compute the group credit using election applies to the taxable year for * * * Paragraphs (b)(3) and (b)(4)(ii) of different methods (the method which made and all subsequent taxable this section are applicable for taxable described in section 41(a)(1), the AIRC years unless revoked in the manner years ending on or before December 31, method of section 41(c)(4), or the ASC prescribed in paragraph (b)(3) of this 2006. For taxable years ending after method of section 41(c)(5)) and at least section. December 31, 2006, see § 1.41–8T. two members of the group qualify as the (2) Time and manner of election. An designated member, then the term I Par. 8. Section 1.41–8T is added to election under section 41(c)(5) is made designated member means that member read as follows: by completing the portion of Form 6765, that computes the group credit using the ‘‘Credit for Increasing Research § 1.41–8T Alternative incremental credit method that yields the greatest group Activities,’’ (or successor form) relating (temporary). credit. For example, A, B, C, and D are to the election of the ASC, and attaching (a) [Reserved]. For further guidance, members of a controlled group but are the completed form to the taxpayer’s see § 1.41–8(a). not members of a consolidated group. timely filed (including extensions) (b) Election—(1) [Reserved]. For For the 2008 taxable year (the credit original return for the taxable year to further guidance, see § 1.41–8(b)(1). year), the group credit using the method which the election applies. An election (2) Time and manner of election. An described in section 41(a)(1) is $10x. under section 41(c)(5) may not be made election under section 41(c)(4) is made Under this method, A would be on an amended return. An extension of by completing the portion of Form 6765, allocated $5x of the group credit, which time to make an election under section ‘‘Credit for Increasing Research would be the largest share of the group 41(c)(5) will not be granted under Activities,’’ (or successor form) relating credit under this method. For the credit § 301.9100–3 of this chapter. to the election of the AIRC, and year, the group credit using the AIRC (3) Revocation. An election under this attaching the completed form to the method is $15x. Under the AIRC section may not be revoked except with taxpayer’s timely filed (including method, B would be allocated $5x of the the consent of the Commissioner. A extensions) original return for the group credit, which is the largest share taxpayer is deemed to have requested, taxable year to which the election of the group credit computed using the and to have been granted, the consent of applies. An election under section AIRC method. For the credit year, the the Commissioner to revoke an election 41(c)(4) may not be made on an group credit using the ASC method is under section 41(c)(5) if the taxpayer amended return. An extension of time to $10x. Under the ASC method, C would completes the portion of Form 6765 (or make an election under section 41(c)(4) be allocated $5x of the group credit, successor form) relating to the credit will not be granted under § 301.9100–3 which is the largest share of the group determined under section 41(a)(1) (the of this chapter. credit computed using the ASC method. regular credit) or the alternative (3) Revocation. An election under this Because the group credit is greatest incremental credit (AIRC) and attaches section may not be revoked except with using the AIRC method and B is the completed form to the taxpayer’s the consent of the Commissioner. A allocated the greatest amount of credit timely filed (including extensions) taxpayer is deemed to have requested, under that method, B is the designated original return for the year to which the and to have been granted, the consent of member. Therefore, if B makes a section revocation applies. An election under the Commissioner to revoke an election 41(c)(4) election on its original timely- section 41(c)(5) may not be revoked on under section 41(c)(4) if the taxpayer filed return for the credit year, that an amended return. An extension of completes the portion of Form 6765, election is binding on all members of time to revoke an election under section ‘‘Credit For Increasing Research the group for the credit year. 41(c)(5) will not be granted under Activities,’’ (or successor form) relating (5) Effective/applicability dates. This § 301.9100–3 of this chapter. to the amount determined under section section is applicable for taxable years (4) Special rules for controlled 41(a)(1) (the regular credit) or the ending after December 31, 2006. For groups—(i) In general. In the case of a

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controlled group of corporations, all the election is binding on all members of Dated: June 6, 2008. members of which are not included on the group for the credit year. Steven T. Miller, a single consolidated return, an election (c) Special rules—(1) Qualified Acting Deputy Commissioner for Services and (or revocation) must be made by the research expenses (QREs) required in all Enforcement. designated member by satisfying the years. Unless a taxpayer has QREs in Eric Solomon, requirements of paragraph (b)(2) or each of the three taxable years preceding Assistant Secretary of the Treasury (Tax (b)(3) of this section (whichever the taxable year for which the credit is Policy). applies), and such election (or being determined, the credit equals that [FR Doc. 08–1362 Filed 6–13–08; 11:51am] revocation) by the designated member percentage of the QREs for the taxable BILLING CODE 4830–01–P shall be binding on all the members of year provided by section 41(c)(5)(B)(ii). the group for the credit year to which the election (or revocation) relates. If the (2) Section 41(c)(6) applicability. DEPARTMENT OF HOMELAND designated member fails to timely make QREs for the three taxable years SECURITY (or revoke) an election, each member of preceding the credit year must be determined on a basis consistent with the group must compute the group Coast Guard credit using the method used to the definition of QREs for the credit year, without regard to the law in effect compute the group credit for the 33 CFR Part 104 immediately preceding credit year. for the three taxable years preceding the credit year. This consistency [Docket No. USCG–2008–0028] (ii) Designated member. For purposes requirement applies even if the period of this paragraph (b)(4), for any credit for filing a claim for credit or refund has RIN 1625–AB26 year, the term designated member expired for any of the three taxable means that member of the group that is years preceding the credit year. Implementation of Vessel Security allocated the greatest amount of the Officer Training and Certification group credit under § 1.41–6(c) based on (3) Section 41(h)(2) applicability. Solely for purposes of the computation Requirements—International the amount of credit reported on the Convention on Standards of Training, original timely-filed Federal income tax under section 41(h)(2), the average QREs for the three taxable years preceding the Certification and Watchkeeping for return (even if that member Seafarers, 1978, as Amended subsequently is determined not to be the taxable year for which the credit is designated member). If the members of being determined shall be treated as the AGENCY: Coast Guard, DHS. base amount. a group compute the group credit using ACTION: Interim rule; correction. different methods (the method (4) Short taxable years. If one or more described in section 41(a), the AIRC of the three taxable years preceding the SUMMARY: On May 20, 2008, the Coast method of section 41(c)(4), or the ASC credit year is a short taxable year, then Guard published in the Federal Register method of section 41(c)(5)) and at least the QREs for such year are deemed to an interim rule with request for two members of the group qualify as the be equal to the QREs actually paid or comments to amend its regulations to designated member, then the term incurred in that year multiplied by 12 implement the vessel security officer designated member means that member and divided by the number of months training and certification amendments that computes the group credit using the in that year. If a credit year is a short to the International Convention on method that yields the greatest group taxable year, then the average QREs for Standards of Training, Certification and credit. For example, A, B, C, and D are the three taxable years preceding the Watchkeeping for Seafarers, 1978, as members of a controlled group but are credit year are modified by multiplying amended, and the Seafarers’ Training, not members of a consolidated group. that amount by the number of months Certification and Watchkeeping Code. In For the 2008 taxable year (the credit in the short taxable year and dividing the interim rule a clerical error was year), the group credit using the method the result by 12. made stating as an option that to qualify for a VSO endorsement, a person must described in section 41(a)(1) is $10x. (5) Controlled groups. For purposes of Under this method, A would be ‘‘have approved sea service of not less computing the group credit under than 90 days on any vessel subject to allocated $5x of the group credit, which § 1.41–6, a controlled group must apply would be the largest share of the group section 104.215 of this part * * *.’’ the rules of this paragraph (c) on an Instead, the option should have stated credit under this method. For the credit aggregate basis. For example, if the year, the group credit using the AIRC that a person must have not less than six controlled group has QREs in each of months to qualify for a VSO method is $10x. Under the AIRC the three taxable years preceding the method, B would be allocated $5x of the endorsement, not 90 days. This taxable year for which the credit is document corrects that error. group credit, which is the largest share being determined, the controlled group of the group credit computed using the DATES: This interim rule is effective applies the credit computation provided June 19, 2008. AIRC method. For the credit year, the by section 41(c)(5)(A) rather than FOR FURTHER INFORMATION CONTACT: If group credit using the ASC method is section 41(c)(5)(B)(ii). $15x. Under the ASC method, C would you have questions on this interim rule, be allocated $5x of the group credit, (d) Effective/applicability dates. This contact Ms. Mayte Medina, Maritime which is the largest share of the group section is applicable for taxable years Personnel Qualifications Division, Coast credit computed using the ASC method. ending after December 31, 2006. For Guard, by telephone 202–372–1406 or Because the group credit is greatest certain transitional rules, see Division by e-mail at [email protected]. If using the ASC method and C is A, section 104(b)(3), (c)(2), and (c)(4) of you have questions on viewing or allocated the greatest amount of credit the Tax Relief and Health Care Act of submitting material to the docket, under that method, C is the designated 2006 (Pub. L. 109–432, 120 Stat. 2922). contact Ms. Renee V. Wright, Program member. Therefore, if C makes a section (e) Expiration date. The applicability Manager, Docket Operations, telephone 41(c)(5) election on its original timely- of this section expires on or before June 202–366–9826. filed return for the credit year, that 13, 2011. SUPPLEMENTARY INFORMATION:

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Need for Correction DEPARTMENT OF HOMELAND and 5 p.m., Monday through Friday, SECURITY except Federal holidays; and Coast On May 20, 2008, the Coast Guard Guard Sector Boston, 427 Commercial published in the Federal Register an Coast Guard Street, Boston, MA 02109 between 7 interim rule with request for comments a.m. and 3 p.m., Monday through to amend its regulations to implement 33 CFR Part 150 and 165 Friday, except Federal holidays. the vessel security officer training and [Docket No. USCG–2007–0087] FOR FURTHER INFORMATION CONTACT: If certification amendments to the you have questions on this rule, call International Convention on Standards RIN 1625, RIN 1625–AA00, 1625–AA11, and LCDR Heather Morrison at 617–223– 1625–AA87 of Training, Certification and 3028. If you have questions on viewing Watchkeeping for Seafarers, 1978, as Regulated Navigation Areas, Safety the docket, call Renee V. Wright, amended, and the Seafarers’ Training, Zones, Security Zones, and Deepwater Program Manager, Docket Operations, Certification and Watchkeeping Code. In Port Facilities; Navigable Waters of the telephone 202–366–9826. 33 CFR 104.215(d)(1)(v)(B), a Boston Captain of the Port Zone SUPPLEMENTARY INFORMATION: typographical error was made stating as an option that to qualify for a VSO AGENCY: Coast Guard, DHS. Regulatory Information endorsement, a person must ‘‘have ACTION: Final rule. On April 11, 2008, we published a approved sea service of not less than 90 notice of proposed rulemaking (NPRM) SUMMARY: The Coast Guard is entitled ‘‘Regulated Navigation Areas, days on any vessel subject to section establishing regulated navigation areas Safety Zones, Security Zones, and 104.215 of this part * * *.’’ Instead, the around a recently constructed Deepwater Port Facilities; Navigable option should have stated that a person deepwater port facility in the waters of Waters of the Boston Captain of the Port must have not less than six months to the Atlantic Ocean near the entrance to Zone’’ in the Federal Register (73 FR qualify for a VSO endorsement, not 90 Boston Harbor as well as safety and 71). We received no comments on the days. In the preamble section of the security zones around liquefied natural proposed rule. No public meeting was Interim Rule section, the discussion of gas carriers (LNGCs) calling on these requested, and none was held. 33 CFR 104.215 states that ‘‘The sea deepwater port facilities. The purpose of service requirements in § 104.215 will these regulated navigation areas, as well Background and Purpose provide two options: (1.) 12 months; or as safety and security zones, is to On May 14, 2007, the Maritime (2.) 6 months with knowledge of ship protect vessels and mariners from the Administration (MARAD), in operations.’’ The paragraph further potential safety hazards associated with accordance with the Deepwater Port Act discusses the requirements to qualify deepwater port operations and to of 1974, as amended, issued a license to under the six-month option. This shows protect the LNGCs and deepwater port Excelerate Energy to own, construct, the intent of the Coast Guard to provide infrastructure from security threats or and operate a natural gas deepwater an option of sea service of not less than other subversive acts. All vessels, with port, ‘‘Northeast Gateway.’’ Northeast 6 months in § 104.215(d)(v)(B). Since the exception of LNGCs and deepwater Gateway Deepwater Port (NEGDWP) is this error would be misleading and port support vessels, are prohibited located in the Atlantic Ocean, cause confusion, this document corrects from anchoring or otherwise deploying approximately 13 nautical miles south- the typographical error found in equipment which could become southeast of the City of Gloucester, amendatory instruction 2. entangled in submerged infrastructure Massachusetts, in Federal waters. The within 1000 meters of the submerged coordinates for its two submerged turret Correction of Publication turret loading (STL) buoys associated loading (STL) buoys are: STL Buoy A, with the deepwater port, and are Latitude 42°23′38″ N, Longitude I In rule FR Doc. E8–11225 published prohibited from entering waters within 070°35′31″ W and STL Buoy B, Latitude on May 20, 2008, (73 FR 29060) make 500 meters of the deepwater port STL 42°23′56″ N, Longitude 070°37′00″ W. the following correction. buoys or the LNGCs using them. The NEGDWP can accommodate the Additionally, this rule makes minor § 104.215 [Corrected] mooring, connecting, and offloading of amendments to the existing LNG two liquefied natural gas carriers I 1. On page 29070, in the second security regulations for the Boston (LGNCs) at a time. The NDGDWP column, revise § 104.215(d)(1)(v)(B) by Captain of the Port (COTP) Zone to operator plans to offload LNGCs by removing the words ‘‘90 days’’ and reflect multi-agency enforcement of regasifying the liquefied natural gas adding the words ‘‘6 months’’ in their those regulations. (LNG) on board the vessels. The place. DATES: This rule is effective July 17, regasified natural gas is then transferred 2008. Dated: June 9, 2008. through two submerged turret loading ADDRESSES: Comments and material buoys, via a flexible riser leading to a David L. Nichols, received from the public, as well as seabed pipeline that ties into the Acting Chief, Regulations and Administrative documents mentioned in this preamble Algonquin Gas Transmission Pipeline Law, United States Coast Guard. as being available in the docket, are part for transfer to shore. [FR Doc. E8–13552 Filed 6–16–08; 8:45 am] of docket USCG–2007–0087 and are In order to protect mariners from the BILLING CODE 4910–15–P available online at http:// hazards associated with submerged www.regulations.gov. This material is deepwater port infrastructure and to also available for inspection or copying ensure safety and security at and around at two locations: the Docket LNGCs engaged in regasification and Management Facility (M–30), U.S. transfer operations at deepwater ports, Department of Transportation, West the Coast Guard is exercising its Building Ground Floor, Room W12–140, authority under the Ports and Waterway 1200 New Jersey Avenue, SE., Safety Act (33 U.S.C. 1221, et seq.) to Washington, DC 20590, between 9 a.m. establish regulated navigation areas

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(RNAs) around the primary components in 33 CFR 2.3.6(a) (i.e., out to 12 that are being concurrently established of NEGDWP. The RNAs will prohibit nautical miles from the territorial sea with, but separate and apart from, this vessels from anchoring or otherwise baseline). Without these changes, the rulemaking in consultation with the deploying equipment that could become security zone around a transiting LNGC International Maritime Organization. entangled in submerged infrastructure would cease to exist once the vessel Finally, this rule alters the existing within 1000 meters of the STL buoys moored to NEGDWP. This rule language of the regulations for LNGCs associated with NEGDWP facilities. eliminates that potential gap in security operating in the Boston COTP Zone to Specifically, in addition to anchoring, coverage. reflect the fact that federal, state, and vessels will be precluded from engaging This rule also adds definitions to local law enforcement personnel may in commercial fishing in the RNAs make the regulations more clear, while enforce such zones within their using nets, dredges or traps. eliminating the definition of ‘‘navigable respective jurisdictions on behalf of the Under the authority of the Port and waters of the United States’’ currently COTP. Waterways Safety Act (33 U.S.C. 1226) found at 33 CFR 165.110(a) as that and the Magnuson Act (50 U.S.C. 191), paragraph is duplicative of the standard Regulatory Analyses the Coast Guard is also placing safety definition found at 33 CFR 2.36(a). We developed this rule after and security zones within the Finally, this rule amends the language considering numerous statutes and corresponding RNAs that will prohibit describing who may enforce the safety executive orders related to rulemaking. vessels from entering all waters within and security zones surrounding LNGCs Below we summarize our analyses a 500-meter radius of the same STL in the Boston COTP Zone to better based on 13 of these statutes or buoys. The Coast Guard considers the reflect recently executed Memoranda of executive orders. RNAs that are being established by this Agreement between the Coast Guard Regulatory Planning and Review rule as meeting the requirement and and the Commonwealth of intent of the Deepwater Port Act of Massachusetts, the City of Boston, and This rule is not a significant 1974, as amended, and as codified at 33 other local municipalities. Under the regulatory action under section 3(f) of U.S.C. 1509(d). Accordingly, in addition terms of these agreements, State and Executive Order 12866, Regulatory to amending 33 CFR part 165 (Regulated local law enforcement officers may Planning and Review, and does not Navigation Areas and Limited Access enforce, on behalf of the Coast Guard, require an assessment of potential costs Area), this rulemaking also amends a maritime safety and security zones and benefits under section 6(a)(3) of that corresponding section in 33 CFR part implemented by the Coast Guard under Order. The Office of Management and 150 (Deepwater Ports: Operations). The the authority of the Magnuson Act and Budget has not reviewed it under that amendments to 33 CFR part 150 include the Port and Waterways Safety Act Order. amending that part to reflect ships’ when falling within their respective The USCG and MARAD are routing measures—‘‘an area to be jurisdiction. Copies of these agreements responsible for processing license avoided’’ (ATBA) and two ‘‘no are available in the public docket for applications to own, construct, and anchoring areas’’ (NAA)—that are being this rule where indicated in the operate deepwater ports. To meet the concurrently established in consultation ADDRESSES section above. requirements of the National with the International Maritime Environmental Policy Act of 1969 Organization. The ATBA and NAAs will Discussion of Comments and Changes (NEPQ), the Coast Guard, in cooperation be reflected on nautical charts of the No comments or changes were with MARAD, prepared an affected area along with the regulated suggested to the proposed rule. None Environmental Impact Statement (EIS) navigation areas described herein. have been made. in conjunction with reviewing the This rule also promotes safety and NEGDWP licensing application. Among security of LNG transfer operations by Discussion of Rule other things, the EIS assessed the amending the existing regulations The Coast Guard is establishing potential economic impacts associated regarding LNGCs in the Boston Captain regulated navigation areas (RNAs) in with the construction and operation of of the Port (COTP) Zone, to place safety which vessels may not anchor within NEGDWP, including the no anchoring and security zones around LNGCs while 1000 meters of the STL buoys for and limited access areas that would be they are anchored, moored, or otherwise NEGDWP as described above. implemented by this rule. That EIS is engaged in regasification and transfer Additionally, safety and security zones available in the public docket for the procedures with deepwater ports within within the RNAs are hereby established licensing application (USCG–2005– the navigable waters of the United to prohibit vessels, other than LNGCs 22219) at http://www.regulations.gov. States in the Boston COTP Zone. and support vessels as defined in 33 Regulations already exist which CFR 148.5, from entering waters within Small Entities provide for safety and security zones 500 meters of the aforementioned STL Under the Regulatory Flexibility Act around LNGCs while transiting, buoys. (5 U.S.C. 601–612), we have considered anchored, or moored in other portions The Coast Guard is also establishing whether this rule would have a of the Boston COTP Zone. These safety and security zones encompassing significant economic impact on a regulations can be found at 33 CFR all waters within a 500-meter radius of substantial number of small entities. 165.110. The current regulations vessels carrying LNG while they are The term ‘‘small entities’’ comprises provide for safety and security zones for anchored, moored, or attached to or small businesses, not-for-profit LNGCs transiting the Boston COTP otherwise engaged in regasification or organizations that are independently Zone, anchored in the Broad Sound, or transfer procedures with deepwater owned and operated and are not moored at the Distrigas LNG facility in ports. dominant in their fields, and Everett, Massachusetts. This rule Additionally, the Coast Guard is governmental jurisdictions with amends those regulations to add safety amending 33 CFR Part 150 to reflect one populations of less than 50,000. and security zones around vessels recommendatory ships’ routing The Coast Guard certifies under 5 calling at deepwater ports in the Boston measure—an ‘‘area to be avoided’’—and U.S.C. 605(b) that this rule will not have COTP Zone and within the navigable two mandatory ships’ routing a significant economic impact on a waters of the United States, as defined measures—two ‘‘no anchoring areas’’— substantial number of small entities.

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This rule will affect the following Unfunded Mandates Reform Act has not designated it as a significant entities, some of which may be small The Unfunded Mandates Reform Act energy action. Therefore, it does not entities: the owners or operators of of 1995 (2 U.S.C. 1531–1538) requires require a Statement of Energy Effects vessels intending to transit or fish Federal agencies to assess the effects of under Executive Order 13211. within 1000 meters of the STL Buoys for their discretionary regulatory actions. In Technical Standards NEGDWP. The impact on small entities particular, the Act addresses actions is expected to be minimal because that may result in the expenditure by a The National Technology Transfer vessels wishing to transit the Atlantic State, local, or tribal government, in the and Advancement Act (NTTAA) (15 Ocean in the vicinity of the deepwater aggregate, or by the private sector of U.S.C. 272 note) directs agencies to use port may do so, provided they remain $100,000,000 or more in any one year. voluntary consensus standards in their more than 500 meters from NEGDWP’s Though this rule will not result in such regulatory activities unless the agency STL Buoys and any LNGC vessels an expenditure, we do discuss the provides Congress, through the Office of calling on the deepwater port, and effects of this rule elsewhere in this Management and Budget, with an provided they refrain from anchoring or preamble. explanation of why using these standards would be inconsistent with deploying nets, dredges, or traps within Taking of Private Property 1000 meters of the STL Buoys. Vessels applicable law or otherwise impractical. wishing to fish in the area may do so in This rule will not effect a taking of Voluntary consensus standards are nearby and adjoining areas when private property or otherwise have technical standards (e.g., specifications otherwise permitted by applicable taking implications under Executive of materials, performance, design, or fisheries regulations. Order 12630, Governmental Actions and operation; test methods; sampling Interference with Constitutionally procedures; and related management Assistance for Small Entities Protected Property Rights. systems practices) that are developed or Civil Justice Reform adopted by voluntary consensus Under section 213(a) of the Small standards bodies. Business Regulatory Enforcement This rule meets applicable standards This rule does not use technical Fairness Act of 1996 (Pub. L. 104–121), in sections 3(a) and 3(b)(2) of Executive standards. Therefore, we did not in the NPRM we offered to assist small Order 12988, Civil Justice Reform, to consider the use of voluntary consensus entities in understanding the rule so minimize litigation, eliminate standards. that they could better evaluate its effects ambiguity, and reduce burden. on them and participate in the Environment Protection of Children rulemaking process. We have analyzed this rule under We have analyzed this rule under Small businesses may send comments Executive Order 13045, Protection of Commandant Instruction M16475.lD on the actions of Federal employees Children from Environmental Health and Department of Homeland Security who enforce, or otherwise determine Risks and Safety Risks. This rule is not Management Directive 5100.1, which compliance with, Federal regulations to an economically significant rule and guide the Coast Guard in complying the Small Business and Agriculture does not create an environmental risk to with the National Environmental Policy Regulatory Enforcement Ombudsman health or risk to safety that may Act of 1969 (NEPA)(42 U.S.C. 4321– and the Regional Small Business disproportionately affect children. No 4370f), and have concluded that there Regulatory Fairness Boards. The comments were received as a part of this are no factors in this case that would Ombudsman evaluates these actions rulemaking. limit the use of a categorical exclusion annually and rates each agency’s under section 2.B.2 of the Instruction. responsiveness to small business. If you Indian Tribal Governments Therefore, this rule is categorically wish to comment on actions by This rule does not have tribal excluded, under figure 2–1, paragraph employees of the Coast Guard, call 1– implications under Executive Order (34)(g), of the Instruction, from further 888–REG–FAIR (1–888–734–3247). The 13175, Consultation and Coordination environmental documentation. The Coast Guard will not retaliate against with Indian Tribal Governments, reason it falls under this exception is small entities that question or complain because it does not have a substantial that it is a regulation establishing a about this rule or any policy or action direct effect on one or more Indian Regulated Navigation Area, security of the Coast Guard. tribes, on the relationship between the zone, and a safety zone. Federal Government and Indian tribes, A final environmental analysis Collection of Information or on the distribution of power and checklist and a final categorical This rule calls for no new collection responsibilities between the Federal exclusion determination are available in of information under the Paperwork Government and Indian tribes. the docket where indicated under Reduction Act of 1995 (44 U.S.C. 3501– Energy Effects ADDRESSES. 3520). We have analyzed this rule under List of Subjects Federalism Executive Order 13211, Actions 33 CFR Part 150 Concerning Regulations That A rule has implications for federalism Significantly Affect Energy Supply, Harbors, Marine safety, Navigation under Executive Order 13132, Distribution, or Use. We have (water), Occupational safety and health, Federalism, if it has a substantial direct determined that it is not a ‘‘significant Oil pollution, and Reporting and effect on State or local governments and energy action’’ under that order because recordkeeping requirements. would either preempt State law or it is not a ‘‘significant regulatory action’’ 33 CFR Part 165 impose a substantial direct cost of under Executive Order 12866 and is not compliance on them. We have analyzed likely to have a significant adverse effect Harbors, Marine safety, Navigation this rule under that Order and have on the supply, distribution, or use of (water), Reporting and recordkeeping determined that it does not have energy. The Administrator of the Office requirements, Security measures, and implications for federalism. of Information and Regulatory Affairs Waterways.

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I For the reasons discussed in the I 2. In § 150.940, add paragraph (c) to at the following coordinates: 42°23′56″ preamble, the Coast Guard amends 33 read as follows: N, 070°37′00″ W. Each safety zone is CFR parts 150 and 165 as follows: located approximately 13 miles south- § 150.940 Safety zones for specific deepwater ports. southeast of the City of Gloucester, PART 150—DEEPWATER PORTS: Massachusetts, in Federal waters. OPERATIONS * * * * * (c) Northeast Gateway Deepwater Port (2) No anchoring areas. Two mandatory no anchoring areas for I 1. The authority citation for part 150 (NEGDWP). (1) Location. The safety zones for the NEGDWP are established for all waters continues to read as follows: NEGDWP consist of circular zones, each within circles of 1,000-meter radii Authority: 33 U.S.C. 1231, 1321(j)(1)(C), with a 500-meter radius and centered on centered on the submerged turret (j)(5), (j)(6), (m)(2); 33 U.S.C. 1509(a); E.O. each of the deepwater port’s two loading buoy positions set forth in 12777, sec. 2; E.O. 13286, sec. 34, 68 FR submerged turret loading (STL) buoys. paragraph (c)(1) of this section. 10619; Department of Homeland Security STL Buoy ‘‘A’’ is centered at the (3) Area to be avoided. An area to be Delegation No. 0170.1(70), (73), (75), (80). following coordinates: 42°23′38″ N, avoided (ATBA) for NEGDWP is as 070°35′31″ W. STL Buoy ‘‘B’’ is centered described in Table 150.940(B):

TABLE 150.940(B).—ATBA FOR NEGDWP

Longitude Plotting guidance Latitude N W

(i) Starting at ...... 42°24′17″ 070°35′16″ (ii) A rhumb line to: ...... 42°24′35″ 070°36′46″ (iii) Then an arc with a 1250 meter radius centered at point ...... 42°23′56″ 070°37′00″ (iv) To a point ...... 42°23′17″ 070°37′15″ (v) Then a rhumb line to ...... 42°22′59″ 070°35′45″ (vi) Then an arc with a 1250 meter radius centered at point ...... 42°23′38″ 070°35′31″ (vii) To the point of starting ...... 42°24′17″ 070°35′16″

(4) Regulations. (i) In accordance with PART 165—REGULATED NAVIGATION and falling within the waters of the the general regulations set forth in 33 AREAS AND LIMITED ACCESS AREAS Boston COTP Zone, as defined in 33 CFR 165.23 and elsewhere in this part, CFR 3.05–10. no person or vessel may enter the waters I 3. The authority citation for part 165 (c) * * * within the boundaries of the safety continues to read as follows: (2) No person or vessel may enter the zones described in paragraph (c)(1) of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. waters within the boundaries of the this section unless previously Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; safety and security zones described in authorized by the Captain of the Port 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. paragraph (b) of this section unless (COTP) Boston, or his/her authorized 107–295, 116 Stat. 2064; Department of previously authorized by the COTP Homeland Security Delegation No. 0170.1. representative. Boston, or his/her authorized I representative. However, LNGCs and (ii) Notwithstanding paragraph 4. In § 165.110, revise paragraphs (a), support vessels, as defined in 33 CFR (c)(4)(i) of this section, tankers and (c)(2) and (c)(3); and add paragraph 148.5, operating in the vicinity of support vessels, as defined in 33 CFR (b)(4) to read as follows: NEGDWP are authorized to enter and 148.5, operating in the vicinity of § 165.110 Safety and Security Zone; move within such zones in the normal NEGDWP are authorized to enter and Liquefied Natural Gas Carrier Transits and course of their operations following the move within such zones in the normal Anchorage Operations, Boston, Massachusetts. requirements set forth in 33 CFR course of their operations following the 150.340 and 150.345, respectively. (a) Definitions. As used in this requirements set forth in 33 CFR (3) All vessels operating within the section— 150.340 and 150.345, respectively. safety and security zones described in Authorized representative means a (iii) All other vessel operators desiring paragraph (b) of this section must Coast Guard commissioned, warrant, or to enter or operate within the safety comply with the instructions of the petty officer or a Federal, State, or local zones described in paragraph (c)(1) of COTP or his/her authorized law enforcement officer designated by representative. this section must contact the COTP or or assisting the Captain of the Port the COTP’s authorized representative to (COTP) Boston. I 5. Add § 165.117 to read as follows: obtain permission by calling the Sector Deepwater port means any facility or Boston Command Center at 617–223– structure meeting the definition of § 165.117 Regulated Navigation Areas, 5761. Vessel operators given permission deepwater port in 33 CFR 148.5. Safety and Security Zones: Deepwater to enter or operate in the safety zone Support vessel means any vessel Ports, First Coast Guard District. must comply with all directions given to meeting the definition of support vessel (a) Location. (1) Regulated navigation them by the COTP or the COTP’s in 33 CFR 148.5. areas. All waters within a 1,000 meter authorized representative. (b) * * * radius of the geographical positions set (iv) No vessel, other than a support (4) Vessels calling on a deepwater forth in paragraph (a)(3) of this section vessel or tanker calling on NEGDWP port. All waters within a 500-meter are designated as regulated navigation may anchor in the area described in radius of any LNGC engaged in areas. paragraph (c)(2) of this section. regasification or transfer, or otherwise (2) Safety and security zones. All moored, anchored, or affixed to a waters within a 500-meter radius of the deepwater port listed in 33 CFR 150.490 geographic positions set forth in

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paragraph (a)(3) of this section are paragraph (a)(2) of this section must (7) Irish Fest fireworks display on designated as safety and security zones. comply with the instructions of the August 17, 2008 from 10 p.m. through (3) Coordinates. (i) The geographic COTP or his/her authorized 11 p.m. coordinates forming the loci for the representative. All vessels must obtain permission regulated navigation areas, safety and Dated: June 6, 2008. from the Captain of the Port or his on- security zones for the Northeast scene representative to enter, move T.S. Sullivan, Gateway Deepwater Port are: 42°23′38″ within or exit the safety zone. Vessels N, 070°35′31″ W; and 42°23′56″ N, Rear Admiral, U.S. Coast Guard, Commander, and persons granted permission to enter First Coast Guard District. 070°37′00″ W (NAD 83). the safety zone shall obey all lawful (ii) [Reserved] [FR Doc. 08–1364 Filed 6–12–08; 4:01pm] orders or directions of the Captain of the (b) Definitions. As used in this BILLING CODE 4910–15–P Port or a designated representative. section— While within a safety zone, all vessels Authorized representative means a shall operate at the minimum speed DEPARTMENT OF HOMELAND Coast Guard commissioned, warrant, or necessary to maintain a safe course. SECURITY petty officer or a Federal, State, or local This notice is issued under authority law enforcement officer designated by Coast Guard of 33 CFR 165.935 Safety Zone, or assisting the Captain of the Port Milwaukee Harbor, Milwaukee, WI (72 (COTP) Boston. 33 CFR Part 165 FR 32522) and 5 U.S.C. 552(a). In Deepwater port means any facility or addition to this notice in the Federal structure meeting the definition of [Docket No. USCG–2008–0044] Register, the Coast Guard will provide deepwater port in 33 CFR 148.5. the maritime community with advance Dredge means fishing gear consisting notification of these enforcement of a mouth frame attached to a holding RIN 1625–AA00 periods via broadcast Notice to Mariners bag constructed of metal rings or mesh. Support vessel means any vessel Safety Zone; Milwaukee Harbor, or Local Notice to Mariners. The meeting the definition of support vessel Milwaukee, WI Captain of the Port will issue a in 33 CFR 148.5. Broadcast Notice to Mariners notifying AGENCY: Coast Guard, DHS. Trap means a portable, enclosed the public when enforcement of the device with one or more gates or ACTION: Notice of enforcement of final safety zone established by this section is entrances and one or more lines rule. suspended. The Captain of the Port may attached to surface floats used for be contacted via U.S. Coast Guard SUMMARY: The Coast Guard will enforce fishing. Also called a pot. Sector Lake Michigan on channel 16, (c) Applicability. This section applies the Milwaukee Harbor Safety Zone in VHF–FM. Milwaukee Harbor during June 2008. to all vessels operating in the regulated Dated: May 22, 2008. navigation areas set forth in paragraph This action is necessary to protect vessels and people from the hazards Bruce C. Jones, (a) of this section, except— Captain, U.S. Coast Guard, Captain of the (1) Those vessels conducting cargo associated with fireworks displays. This safety zone will restrict vessel traffic Port Lake Michigan. transfer operations with the deepwater [FR Doc. E8–13107 Filed 6–16–08; 8:45 am] ports whose coordinates are provided in from portions of the Captain of the Port BILLING CODE 4910–15–P paragraph (a)(3) of this section, Lake Michigan Zone. (2) Support vessels operating in DATES: Effective between June 7, 2008 conjunction therewith, and and August 17, 2008. DEPARTMENT OF HOMELAND (3) Coast Guard vessels or other law FOR FURTHER INFORMATION CONTACT: SECURITY enforcement vessels operated by or Lieutenant Commander Kimber Bannan, under the direction of an authorized Prevention Department, Coast Guard Coast Guard representative of the COTP Boston. Sector, Lake Michigan, Milwaukee, WI (d) Regulations. (1) No vessel may at (414) 747–7159. 33 CFR Part 165 anchor or engage in commercial fishing SUPPLEMENTARY INFORMATION: using nets, dredges, or traps (pots) in the The Coast [Docket No. USCG–2008–0427] Guard will enforce Safety Zones, regulated navigation areas set forth in RIN 1625–AA00 paragraph (a)(1) of this section. Milwaukee Harbor, Milwaukee, WI, 33 (2) In accordance with the general CFR 165.935 for the following events: Safety Zone; New River, Jacksonville, regulations in §§ 165.23 and 165.33 of (1) Pride Fest fireworks display on NC this part, entry into or movement within June 07, 2008 from 9 p.m. through 10 the safety and security zones designated p.m.; and AGENCY: Coast Guard, DHS. in paragraph (a)(2) of this section is (2) Polish Fest fireworks display on ACTION: Temporary final rule. prohibited unless authorized by the June 20–21, 2008 from 10 p.m. through SUMMARY: The Coast Guard will COTP Boston, or his/her authorized 11 p.m.; and establish a safety zone on the navigable representative. (3) Summerfest fireworks display on (3) Notwithstanding paragraph (d)(2) June 26, 2008 from 10 p.m. through 11 waters of the New River near Camp of this section, tankers and support p.m.; and Lejeune during a military exercise being vessels, as defined in 33 CFR 148.5, (4) Festa Italiana fireworks display on conducted by the United States Marine operating in the vicinity of NEGDWP are July 17–20, 2008 from 10 p.m. through Corps. authorized to enter and move within 11 p.m.; and DATES: This rule is effective from 6 a.m. such zones in the normal course of their (5) German Fest fireworks display on through 4 p.m. on June 23, 2008 and operations following the requirements July 27, 2008 from 10 p.m. through 11 from 6 a.m. through 4 p.m. on June 24, set forth in 33 CFR 150.340 and 150.345, p.m.; and 2008. respectively. (6) Arab World Fest fireworks display ADDRESSES: Documents indicated in this (4) All vessels operating within the on August 9, 2008 from 10 p.m. through preamble as being available in the safety and security zones described in 11 p.m.; and docket are part of docket USCG–2008–

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0427 and are available online at and equipment across the river. The substantial number of small entities http://www.regulations.gov. They are safety zone will establish an area on the because the safety zone will only be in also available for inspection or copying water to protect the participants of the place for a limited duration of time, two locations: The Docket Management military exercise and to protect any maritime advisories will be issued in Facility (M–30), U.S. Department of recreational or commercial boaters advance to allow the public to adjust Transportation, West Building Ground transiting the area. their plans accordingly, and vessel will Floor, Room W12–140, 1200 New Jersey be allowed to transit the safety zone Discussion of Rule Avenue, SE., Washington, DC 20590, with approval from the on scene Coast between 9 a.m. and 5 p.m., Monday The Coast Guard’s safety zone will Guard vessels. through Friday, except Federal holidays, prohibit persons or vessels from Assistance for Small Entities and at USCG SECTOR North Carolina, entering into, transiting through, or 2301 East Fort Macon Road, Atlantic anchoring during the days this safety Under section 213(a) of the Small Beach, NC 28512 between 9 a.m. and 4 zone is in effect. The entry into this Business Regulatory Enforcement p.m., Monday through Friday, except safety zone will be permitted when Fairness Act of 1996 (Pub. L. 104–121), Federal holidays. specifically authorized by the Captain of we offer to assist small entities in FOR FURTHER INFORMATION CONTACT: If the Port or designated representative of understanding the rule so that they can you have questions on this temporary the Captain of the Port. The purpose of better evaluate its effects on them and rule, call Lieutenant Bryan Wick, United this safety zone is to prevent any participate in the rulemaking process. Small businesses may send comments States Coast Guard Sector North collisions between military vessels and on the actions of Federal employees Carolina, Enforcement Division at (252) recreation or commercial vessels while who enforce, or otherwise determine 247–4537 or (252) 247–4537. If you have the military is conducting an exercise. compliance with, Federal regulations to questions on viewing the docket, call Regulatory Analyses the Small Business and Agriculture Renee V. Wright, Program Manager, We developed this rule after Regulatory Enforcement Ombudsman Docket Operations, telephone 202–366– considering numerous statutes and and the Regional Small Business 9826. executive orders related to rulemaking. Regulatory Fairness Boards. The SUPPLEMENTARY INFORMATION: Below we summarize our analyses Ombudsman evaluates these actions Regulatory Information based on 13 of these statutes or annually and rates each agency’s executive orders. responsiveness to small business. If you The Coast Guard is issuing this Regulatory Planning and Review wish to comment on actions by temporary final rule without prior employees of the Coast Guard, call 1– notice and opportunity to comment This rule is not a significant 888–REG–FAIR (1–888–734–3247). The pursuant to authority under section 4(a) regulatory action under section 3(f) of Coast Guard will not retaliate against of the Administrative Procedure Act Executive Order 12866, Regulatory small entities that question or complain (APA) (5 U.S.C. 553(b)). This provision Planning and Review, and does not about this rule or any policy or action authorizes an agency to issue a rule require an assessment of potential costs of the Coast Guard. without prior notice and opportunity to and benefits under section 6(a)(3) of that comment when the agency for good Order. The Office of Management and Collection of Information cause finds that those procedures are Budget has not reviewed it under that This rule calls for no new collection ‘‘impracticable, unnecessary, or contrary Order. of information under the Paperwork to the public interest.’’ Under 5 U.S.C. Although this regulation will limit Reduction Act of 1995 (44 U.S.C. 3501– 553(b)(B), the Coast Guard finds that access to the regulated area, the effect of 3520). good cause exists for not publishing a this rule will not be significant because notice of proposed rulemaking (NPRM) (i) the safety zone will be in effect for Federalism with respect to this rule because a limited duration of time, (ii) the Coast A rule has implications for federalism immediate action was necessary to Guard will make notifications via under Executive Order 13132, ensure the safety of the participants of maritime advisories so mariners can Federalism, if it has a substantial direct the military exercise and the safety of adjust their plans accordingly, and (iii) effect on State or local governments and recreational and commercial boaters in vessels will be allowed to transit would either preempt State law or the area. Since large military barges will through the safety zone when impose a substantial direct cost of be moving people and equipment across authorized by the on scene Coast Guard compliance on them. We have analyzed the river, the potential for a collision vessels. this rule under that Order and have with a recreational or commercial boat determined that it does not have Small Entities exists and it will be in the public’s implications for federalism. interest to have this regulation in effect Under the Regulatory Flexibility Act during the military exercise. The Coast (5 U.S.C. 601–612), we have considered Unfunded Mandates Reform Act Guard will issue a broadcast notice to whether this rule would have a The Unfunded Mandates Reform Act mariners to advise vessel operators of significant economic impact on a of 1995 (2 U.S.C. 1531–1538) requires navigational restrictions. Under 5 U.S.C. substantial number of small entities. Federal agencies to assess the effects of 553(d)(3), the Coast Guard finds that The term ‘‘small entities’’ comprises their discretionary regulatory actions. In good cause exists for making this rule small businesses, not-for-profit particular, the Act addresses actions effective less than 30 days after organizations that are independently that may result in the expenditure by a publication in the Federal Register. owned and operated and are not State, local, or tribal government, in the dominant in their fields, and aggregate, or by the private sector of Background and Purpose governmental jurisdictions with $100,000,000 or more in any one year. The United States Marine Corps will populations of less than 50,000. Though this rule will not result in such be conducting a military exercise on the The Coast Guard certifies under 5 an expenditure, we do discuss the New River along the shores of Camp U.S.C. 605(b) that this rule will not have effects of this rule elsewhere in this Lejeune to exercise moving personnel a significant economic impact on a preamble.

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Taking of Private Property technical standards (e.g., specifications (b) Definitions: Captain of the Port This rule will not effect a taking of of materials, performance, design, or Representative is any Coast Guard private property or otherwise have operation; test methods; sampling commissioned, warrant, or petty officer taking implications under Executive procedures; and related management who has been authorized to act on the Order 12630, Governmental Actions and systems practices) that are developed or Captain of the Port’s behalf. Interference with Constitutionally adopted by voluntary consensus (c) Regulations: (1) In accordance with Protected Property Rights. standards bodies. the general regulations in section 165.23 This rule does not use technical of this part, entry into this zone is Civil Justice Reform standards. Therefore, we did not prohibited unless authorized by the This rule meets applicable standards consider the use of voluntary consensus Captain of the Port or a Captain of the in sections 3(a) and 3(b)(2) of Executive standards. Port Representative. All vessel Order 12988, Civil Justice Reform, to movement within the safety zone is Environment minimize litigation, eliminate prohibited except as specifically ambiguity, and reduce burden. We have analyzed this rule under authorized by the Captain of the Port or Commandant Instruction M16475.lD a Captain of the Port Representative. Protection of Children and Department of Homeland Security The general requirements of section We have analyzed this rule under Management Directive 5100.1, which 165.23 also apply to this regulation. Executive Order 13045, Protection of guide the Coast Guard in complying (2) Persons or vessels requiring entry Children from Environmental Health with the National Environmental Policy into or passage through any portion of Risks and Safety Risks. This rule is not Act of 1969 (NEPA) (42 U.S.C. 4321– the safety zone must first request an economically significant rule and 4370f), and have concluded that there authorization from the Captain of the does not create an environmental risk to are no factors in this case that would Port, or authorized representative, health or risk to safety that may limit the use of a categorical exclusion unless the Captain of the Port disproportionately affect children. under section 2.B.2 of the Instruction. previously announced via Marine Safety Indian Tribal Governments Therefore, this rule is categorically Radio Broadcast on VHF Marine Band excluded, under figure 2–1, paragraph Radio channel 22 (157.1 MHz) that this This rule does not have tribal (34)(g), of the Instruction, from further regulation will not be enforced in that implications under Executive Order environmental documentation. A final portion of the safety zone. The Captain 13175, Consultation and Coordination environmental analysis checklist and a of the Port can be contacted at telephone with Indian Tribal Governments, final categorical exclusion number (252) 247–4570 or (252) 247– because it does not have a substantial determination are available in the 4546, or by radio on VHF Marine Band direct effect on one or more Indian docket where indicated under Radio, channels 13 and 16. tribes, on the relationship between the ADDRESSES. (d) The Captain of the Port will notify Federal Government and Indian tribes, the public of changes in the status of List of Subjects in 33 CFR Part 165 or on the distribution of power and this zone by Marine Safety Radio responsibilities between the Federal Harbors, Marine Safety, Navigation Broadcast on VHF Marine Band Radio, Government and Indian tribes. (waters), Reporting and recordkeeping Channel 22 (157.1 MHz). Energy Effects requirements, Security measures, and (e) Enforcement period: This rule is Waterways. We have analyzed this rule under effective from 6 a.m. (est) to 4 p.m. (est) Executive Order 13211, Actions I For the reasons discussed in the on Monday, June 23, 2008 and from 6 Concerning Regulations That preamble, the Coast Guard amends 33 a.m. (est) to 4 p.m. (est) on Tuesday, Significantly Affect Energy Supply, CFR part 165 subpart C as follows: June 24, 2008. Distribution, or Use. We have PART 165—REGULATED NAVIGATION J.E. Ryan, determined that it is not a ‘‘significant AREAS AND LIMITED ACCESS AREAS Captain, U.S. Coast Guard, Captain of the energy action’’ under that order because Port Sector North Carolina. it is not a ‘‘significant regulatory action’’ I 1. The authority citation for part 165 [FR Doc. E8–13551 Filed 6–16–08; 8:45 am] under Executive Order 12866 and is not continues to read as follows: BILLING CODE 4910–15–P likely to have a significant adverse effect Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. on the supply, distribution, or use of Chapter 701; 50 U.S.C. 191, 195; 33 CFR energy. The Administrator of the Office 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. NATIONAL ARCHIVES AND RECORDS of Information and Regulatory Affairs 107–295, 116 Stat. 2064; Department of ADMINISTRATION has not designated it as a significant Homeland Security Delegation No. 0170.1. energy action. Therefore, it does not 36 CFR Part 1281 require a Statement of Energy Effects I 2. A temporary § 165.T05–0427 is under Executive Order 13211. added to read as follows: Section [NARA–07–0005] 165.T05–0427 Safety Zone: On the Technical Standards waters of the New River, Jacksonville, RIN 3095–AA82 North Carolina. The National Technology Transfer Presidential Library Facilities and Advancement Act (NTTAA) (15 (a) Location: The following area is a U.S.C. 272 note) directs agencies to use safety zone: All waters of the New River, AGENCY: National Archives and Records voluntary consensus standards in their Jacksonville, North Carolina, located Administration. regulatory activities unless the agency along the shore of USMC Camp Lejuene ACTION: Final rule. provides Congress, through the Office of from the position of latitude 34°39′49″ Management and Budget, with an N, longitude 077°23′55″ N labeled Town SUMMARY: The National Archives and explanation of why using these Pt on the chart to latitude 34°38′09″ N, Records Administration (NARA) is standards would be inconsistent with longitude 077°20′22″ N labeled Weil Pt issuing regulations under the applicable law or otherwise impractical. on the chart. All coordinates reference Presidential Libraries Act (PLA) Voluntary consensus standards are Datum NAD 1983. amendments of 1986 (codified at 44

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U.S.C. 2112). Section 2112 requires the maximum loss criteria to 300 cubic feet Code of Federal Regulations, to read as Archivist of the United States to of records lost in a single fire event. follows: promulgate architectural and design This criteria applies to all NARA standards for Presidential libraries and archival space. PART 1281—PRESIDENTIAL LIBRARY to report to Congress before accepting The last comment by the architectural FACILITIES title to or entering into an agreement to firm concerns the recommendation for Sec. use land, a facility, and equipment as a building efficiency in the architectural 1281.1 What is the scope of this part? Presidential library. The Archivist must and design standards referred to in 1281.2 What publications are incorporated also report to Congress before accepting § 1281.4. NARA recommends a design by reference? a gift for the purpose of making any goal of at least 75% building efficiency 1281.3 What definitions apply to this part? physical or material change or addition (the ratio of usable to gross square 1281.4 What are the architectural and to an existing library. Because new design standards for Presidential footage) which is a major influence on libraries? Presidential libraries have traditionally the costs of operating and maintaining been built by private, nonprofit 1281.6 What certifications must be a facility. The firm did not believe provided to NARA? charitable foundations, either by recently constructed libraries have met 1281.8 What information must be provided themselves or in collaboration with state this recommendation and does not to NARA for its report to Congress on a and local government or universities, believe it feasible, given the functional new Presidential library facility? this rule will affect these nonfederal requirements of the width circulation 1281.10 When does a foundation consult entities. for moving items in the archival spaces with NARA before offering a gift of a physical or material change, or addition DATES: This regulation is effective July or the space required for large crowds. to an existing library? 17, 2008. The incorporation by reference The firm believes a more realistic 1281.12 What information must be of the publication listed in the rule is efficiency ratio should replace the provided to NARA for its report to approved by the Director of the Federal current recommendation. NARA Congress on a change or addition to a Register as of July 17, 2008. emphasizes that this is stated in the Presidential library facility? FOR FURTHER INFORMATION CONTACT: standards as a design recommendation, 1281.14 What type of endowment is Nancy Allard at (301) 837–1477 or not a requirement. We must report the required for a Presidential library? Laura McCarthy at (301) 837–3023. anticipated operations and maintenance 1281.16 What standard does NARA use for measuring building size? SUPPLEMENTARY INFORMATION: On costs in our report to Congress and a December 20, 2007, NARA published a building efficiency significantly lower Authority: 44 U.S.C. 2104(a), 2112. proposed rule (72 FR 72319) for a 60 than 75% will affect the estimated § 1281.1 What is the scope of this part? operations and maintenance costs. As a day comment period on new regulations (a) This part implements provisions of result, we did not change the for Presidential libraries under the the Presidential Libraries Act, codified recommended building efficiency ratio Presidential Libraries Act (PLA) at 44 U.S.C. 2112(a) and (g). The Act in response to the firm’s comment. amendments of 1986 (codified at 44 requires the Archivist of the United U.S.C. 2112). We received two This final rule contains information States to promulgate architectural and comments on the proposed rule, from an collection activities which are subject to design standards for new and existing architectural firm and a mobile shelving review and approval by the Office of Presidential libraries in order to ensure manufacturer. The commenters noted Management and Budget (OMB) under that such depositories preserve concern with requirements found in the the Paperwork Reduction Act of 1995. Presidential records subject to Chapter architectural and design standards These information collection 22 of this title and papers and other promulgated by the Archivist and requirements, contained in §§ 1281.8 historical materials accepted for deposit referenced in § 1281.4; the requirements and 1281.12 have been approved by under section 2111 of this title and are not in the proposed regulations OMB under the control number 3095– contain adequate research facilities. In themselves. 0036 with a current expiration date of addition the Archivist must submit a Both commenters questioned the June 30, 2008. written report to the Congress before ability to comply with limiting the size This final rule is not a significant accepting new libraries or certain of the archival depository to 70,000 regulatory action for the purposes of proposed physical or material changes square feet if the height of the mobile Executive Order 12866. As required by ″ or additions to an existing library; and shelving is limited to 111 , as stated in the Regulatory Flexibility Act, it is to ensure, for existing libraries subject to the referenced architectural and design hereby certified that this proposed rule the mandatory endowment requirement, standards, and noted that NARA has will not have a significant impact on that the endowment specified by 44 provided exceptions to that height in small entities. This rule is not a major U.S.C. 2112(g) has been transferred to two recent Presidential libraries. rule as defined in 5 U.S.C. Chapter 8, the National Archives Trust Fund before To address these comments, NARA Congressional Review of Agency acceptance by the Archivist. has revised the architectural and design Rulemaking. (b) This part applies to design and standards to allow for mobile shelving ″ List of Subjects in 36 CFR Part 1281 construction of new libraries that are higher than 111 if the proposed offered to NARA on or after July 17, shelving configuration (including the Archives and records, Federal 2008 and to material changes or proposed fire suppression and fire buildings and facilities, Incorporation additions to new and existing libraries detection systems) are evaluated by the by reference, Reporting and funded wholly by gift on or after that designer and approved by NARA for recordkeeping. date. conformance with NARA’s maximum loss criteria. The method of evaluation PART 1281—PRESIDENTIAL LIBRARY § 1281.2 What publications are of the proposed shelving configuration FACILITIES incorporated by reference? must be either by live fire testing (a) The materials listed in this section performed at a nationally recognized For the reasons set forth in the are incorporated by reference in the live fire testing facility or by computer preamble, add a new part 1281 in corresponding sections noted. These modeling. NARA also corrected the Subchapter G of Chapter XII, Title 36, incorporations by reference were

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approved by the Director of the Federal equipment is fundamental to the foundation upon request and is Register in accordance with 5 U.S.C. operation of the library and is normally available from the Office of Presidential 552(a) and 1 CFR part 51. These built into the facility or permanently Libraries (NL), Room 2200, 8601 materials are incorporated as they exist mounted to the structure. Adelphi Rd., College Park, MD 20740– on the date of the approval, and notice Existing library. This term means a 6001. of any change in these materials will be Presidential library that has been published in the Federal Register. The accepted by the Archivist under 44 § 1281.6 What certifications must be provided to NARA? materials are available for purchase at U.S.C. 2112(a) and established as part of the corresponding addresses noted the system of Presidential libraries (a) The foundation must provide to below. You may inspect a copy at the managed by NARA. NARA design and construction National Archives and Records Facility operations. This term means certifications specified in the Administration, 8601 Adelphi Road, those activities, including architectural and design standards. College Park, MD 20740 or at the Office administrative services, involved with (b) Any item that NARA finds is not of the Federal Register (OFR). For maintaining, operating, protecting, and in compliance with the architectural information on the availability of this improving a Presidential library. and design standards must be corrected material at the OFR, call 202–741–6030, Foundation. This term means a by the foundation or, if not corrected by or go to: http://www.archives.gov/ private organization organized under the foundation, will be corrected by federal_register/code_of_ state law to construct a new Presidential NARA with the foundation paying the federal_regulations/ibr_locations.html. library. The term usually refers to full cost of taking necessary corrective (b) The following materials are nonprofit charitable organizations that action. available for purchase from the Building meet the requirements of section § 1281.8 What information must be Owners and Managers Association 501(c)(3) of the Internal Revenue Code provided to NARA for its report to Congress (BOMA), BOMA International 1201 New (26 CFR 501(c)(3)). The term specifically on a new Presidential library facility? York Avenue, NW., Suite 300, includes ‘‘foundation’’ and ‘‘institute,’’ (a) NARA must submit a report to Washington DC, 20005, http:// as those terms are used in 44 U.S.C. Congress on a proposed new library www.boma.org. or the American 2112(a)(1)(B). pursuant to 44 U.S.C. 2112(a)(3). The Historical materials. The term National Standards Institute, (ANSI), foundation that is building the library ‘‘historical materials’’ has the meaning Inc., 11 West 42nd Street, New York, must help NARA as necessary in set forth at 44 U.S.C. 2101. NY 10036. compiling the information needed for New library. This term means a (1) ANSI/BOMA Z65.1–1996, this report. If a State, political Presidential library for a President who Standard Method for Measuring Floor subdivision, university, institution of took the oath of office as President for Areas in Office Buildings (the BOMA higher learning, or institute participates the first time on or after January 20, Standard), approved June 7, 1996; IBR in the construction of the new library 1985, that has not been accepted by the approved for §§ 1281.3, and 1281.8. (e.g., by making land available for the Archivist under 44 U.S.C. 2112(a). (2) [Reserved] facility), that party is subject to the same Presidential libraries that have been requirement. Requested information § 1281.3 What definitions apply to this accepted by the Archivist and must be sent to the Office of Presidential part? established as part of the system of Libraries (NL), Room 2200, 8601 The following definitions apply to Presidential libraries that are managed Adelphi Rd., College Park, MD 20740– this part: by NARA are ‘‘existing libraries.’’ Architectural and design standards. Physical or material change or 6001 far enough in advance of the This term refers to the document cited addition. This term means any addition anticipated date of transfer of the in § 1281.4. of square footage, as defined by the Library for NARA to compile and Archival functions. The term means BOMA Standard (incorporated by submit the report so that it may lie arranging, describing, reviewing, reference in § 1281.2) or any physical or before Congress for the minimum time preserving, reproducing, restoring, material change to the existing structure period specified in 44 U.S.C. 2112(a)(5). exhibiting, and making available of an existing library that results in a The normal lead time for submitting the Presidential and other records and significant increase in the cost of facility required information is a least six historical materials in the care and operations. months in advance of the anticipated custody of the Presidential libraries, and Presidential library. This term means date of transfer, but the submission date includes the salaries and expenses of a Presidential archival depository as is subject to negotiation between NARA NARA personnel performing those defined in 44 U.S.C. 2101. and the foundation in specific cases. functions. Presidential records. The term has the The collection of information by NARA Endowment library. This term means meaning set forth at 44 U.S.C. 2201. for these purposes has been approved a Presidential library that is subject to under the Paperwork Reduction Act by the endowment requirements of 44 § 1281.4 What are the architectural and the Office of Management and Budget U.S.C. 2112(g). The term includes the design standards for Presidential libraries? with the control number 3095–0036. existing libraries of presidents who took The Archivist is required by 44 U.S.C. (b) Paragraph (a)(3) of 44 U.S.C. 2112 the oath of office as President for the 2112(a)(2) to promulgate architectural lists the information that NARA must first time on or after January 20, 1985, and design standards for Presidential include in its report to Congress. The the proposed library of President George libraries. The standards address the foundation and NARA will agree as part W. Bush, and the libraries of presidents architectural, design, and structural of the planning process for a new library who take the oath of office as President requirements of a new Presidential on what information the foundation will for the first time on or after July 1, 2002. library and additions or renovations, provide and when. The same Equipment. As used in this part, the and they ensure that Presidential requirement applies to other entities term means operating equipment that libraries are safe and efficient to operate involved in the construction of a new must be furnished with the new library and provide adequate and secure library (e.g., a local government or and included in the calculation of the research and museum facilities. A copy university). Foundations will normally required endowment. Operating of the standards is provided to the be responsible, at a minimum, for

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providing the following information to help NARA as necessary in compiling § 1281.14 What type of endowment is NARA: the information needed for the report. required for a Presidential library? (1) A description of the land, facility, Required information must be sent to (a) Endowment requirement—new and equipment offered as a gift or to be the Office of Presidential Libraries (NL), libraries. The foundation or organization made available without transfer of title, Room 2200, 8601 Adelphi Rd., College that is offering NARA a new which must include: Park, MD 20740–6001, far enough in Presidential library must establish an (i) The legal description of the land, advance of the Archivist’s acceptance of endowment for the library, by gift or including plat, and evidence of clear the gift for NARA to compile and submit bequest, in the National Archives Trust title to the land upon which the library the report to Congress in accordance Fund before the Archivist may accept is constructed; with 44 U.S.C. 2112(a)(5). The normal the transfer of the library. The purpose (ii) Site plan, floor plans, building lead time for submitting the required of the endowment is to help NARA sections and elevations, artist’s information on physical or material defray the cost of facility operations. representation of building and grounds; changes or additions is at least nine (9) The endowment requirement for the (iii) Description of building contents, months in advance of the anticipated prospective new library of President including furniture, equipment, and date that work will begin on the George W. Bush is set forth in museum installations; and physical or material change or addition paragraphs 2 and 3 of 44 U.S.C. 2112(g). (iv) Measurement of the facility in to the library. The collection of The endowment requirements for the accordance with § 1281.16. information contained in this section new libraries of presidents taking the (2) A statement specifying the has been approved under the Paperwork oath of office from the first time on or estimated total cost of the library and Reduction Act by the Office of after July 1, 2002, are set forth in the amount of the endowment required Management and Budget with the paragraphs 2, 3, and 5 of 44 U.S.C. pursuant to 44 U.S.C. 2112(g); control number 3095–0036. 2112(g). (3) An offer or other statement setting (b) Endowment requirement—change forth the terms of the proposed (b) Paragraph (a)(4) of 44 U.S.C. 2112 or addition to an endowment library. agreement for transfer or use of the lists the information that NARA must For a proposed physical or material facility, if any; include in its report to Congress. The change or addition to an endowment (4) Copies of any proposed donor and NARA will agree as part of library that is being funded wholly by agreements between the state, other the planning process what information gift, the foundation or other political subdivision, the donating the donor will provide and when, but organization that is offering the gift group, other institutions, and the United donors will normally be responsible, at must agree, as a condition of the gift, to States which may affect ownership or a minimum, for providing the following transfer monies by gift or bequest to the operation of the library facility; information to NARA: library’s existing endowment in the (5) A statement of and copies of any (1) A description of the gift, which National Archives Trust Fund in an proposed agreements concerning the must include as appropriate: amount sufficient to satisfy the proposed support of library programs by (i) The legal description of the land, requirements of paragraphs 2, 3, and 5 non-federal sources; and including plat; of 44 U.S.C. 2112(g). The Archivist must (6) A statement on cost-saving design (ii) Site plan, floor plans, building determine that the additional features of the building. sections and elevations, artist’s endowment monies have been (7) A written certification that the transferred to the Trust Fund before he library and the equipment therein will representation of building and grounds as they will be affected by the gift; accepts the gift of the physical or comply with NARA standards. material change or addition. (iii) Description of building contents (c) Use of endowment income. The § 1281.10 When does a foundation consult that are part of the gift, including with NARA before offering a gift of a income from a library’s endowment is furniture, equipment, and museum available to cover the cost of facility physical or material change, or addition to installations; an existing library? operations, but is not available for the A foundation must consult with the (iv) For endowment libraries, a performance of archival functions. Office of Presidential Libraries before measurement of the addition or change (d) Calculating a library’s endowment. beginning the process of offering a gift to the facility in accordance with The formulas for calculating the for the purpose of making a physical or § 1281.16; and required endowment are set forth in 44 material change or addition to a new or (v) A review of all critical spaces U.S.C. 2112(g)(3)–(5). (e) Equipment costs that must be existing library. NARA will furnish the where NARA holdings will be stored, included in the endowment calculation. interested foundation the current used, or exhibited, including The cost of all operating equipment architectural and design standards as information on life-safety, provided with a new library must be specified in § 1281.4. Others may environmental, holdings storage, and included in the endowment calculation request a single copy by writing the other systems against NARA standards. pursuant to 44 U.S.C. 2112(g)(3). The Office of Presidential Libraries (NL), (2) A statement of the estimated total Archivist will provide in the Room 2200, 8601 Adelphi Road, College cost of the proposed physical or architectural and design standards, a list Park, Maryland 20740–6001. material change or addition to the of equipment guidelines, library, and, for endowment libraries, an recommendations, and minimum § 1281.12 What information must be estimate of the amount of the additional provided to NARA for its report to Congress requirements for a foundation’s use in endowment required pursuant to 44 on a change or addition to a Presidential designing and building a new library. U.S.C. 2112(g). library facility? The list is not exhaustive and (a) NARA must submit a report to (3) A statement of the purpose of the requirements may change with evolving Congress on a proposed physical or proposed change or addition. technology, program requirements, and material change or addition to an (4) A written certification that the the final library design. existing library that is being funded library and the equipment therein will (f) Formula for a shared use library wholly by gift. The foundation or other comply with NARA standards after the building. For endowment purposes, the party offering the gift to NARA must change or addition is made. construction cost of a shared use library

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building containing both NARA and SUPPLEMENTARY INFORMATION: This is a § 1.2 of the Commission’s rules, 47 CFR Foundation-controlled areas will be summary of the Federal 1.2, the Request for Clarification filed by determined using the following formula: Communications Commission’s Fourth Kenwood USA Corporation, The percentage of the usable square Memorandum Opinion and Order in Communications Sector on May 9, 2007 footage of the NARA-controlled areas to WT Docket No. 99–87 (Fourth is granted to the extent set forth herein. the usable square footage of the entire Memorandum Opinion and Order), FCC 4. Pursuant to sections 4(i) and 303(r) building multiplied by the cost of the 08–127, adopted on March 12, 2008, of the Communications Act of 1934, as entire building. That figure is then used and released on March 13, 2008. The amended, 47 U.S.C. 154(i), 303(r), and in calculating a library’s endowment as full text of this document is available for § 1.429 of the Commission’s rules, 47 specified by subsection (d) of this inspection and copying during normal CFR 1.429, the Petition for section and 44 U.S.C. 2112(g)(3)–(5). business hours in the FCC Reference Reconsideration filed by City of New Center, 445 12th Street, SW., § 1281.16 What standard does NARA use York on May 18, 2007 is granted to the for measuring building size? Washington, DC 20554. The complete extent set forth herein. text may be purchased from the For purposes of 44 U.S.C. 2112(g)(3) 5. The rule changes as set forth will Commission’s copy contractor, Best and (4), and this part, NARA has become effective July 17, 2008. Copy and Printing, Inc., 445 12th Street, adopted the BOMA Standard 6. The Commission’s Consumer and SW., Room CY–B402, Washington, DC (incorporated by reference in § 1281.2) Governmental Affairs Bureau shall send 20554. The full text may also be as the standard for measuring the size of a copy of this Fourth Memorandum the facility and the value for calculating downloaded at: http://www.fcc.gov. Opinion and Order, including the Final the endowment. The architectural and Alternative formats are available to Regulatory Flexibility Certification, to design standards contain the description persons with disabilities by sending an the Chief Counsel for Advocacy of the of the area to be measured as to obtain e-mail to [email protected] or by calling Small Business Administration. the useable square footage and the the Consumer & Governmental Affairs exclusions to the measurement. Bureau at 202–418–0530 (voice), 202– List of Subjects in 47 CFR part 90 418–0432 (tty). Communications equipment, Radio. Dated: June 5, 2008. 1. The Fourth Memorandum Opinion Allen Weinstein, and Order addresses issues raised in the Federal Communications Commission. Archivist of the United States. Third Report and Order (Third Report Marlene H. Dortch, [FR Doc. E8–13465 Filed 6–16–08; 8:45 am] and Order) at 72 FR 19387, April 18, Secretary. BILLING CODE 7515–01–P 2007, in this WT Docket No. 99–87 Rule Changes proceeding. The Commission takes the following significant actions in the I For the reasons discussed in the FEDERAL COMMUNICATIONS Fourth Memorandum Opinion and preamble, the Federal Communications COMMISSION Order: (i) clarifies that it intends to Commission amends 47 CFR part 90 as provide notice and seek comment prior follows: 47 CFR Part 90 to adopting final rules establishing a 6.25 kHz migration schedule and that PART 90—PRIVATE LAND MOBILE [WT Docket No. 99–87; RM–9332; FCC 08– RADIO SERVICES 127] licensees that have already commenced the transition to 12.5 kHz technology in I 1. The authority citation for part 90 Implementation of Sections 309(j) and order to comply with the 2013 deadline continues to read as follows: 337 of the Communications Act of 1934 should not suspend or abandon those as Amended; Promotion of Spectrum Authority: Sections 4(i), 11, 303(g), 303(r), efforts; and (ii) revises 47 CFR and 332(c)(7) of the Communications Act of Efficient Technologies on Certain Part 90.209(b)(5) of the Commission’s rules 1934, as amended, 47 U.S.C. 154(i), 161, 90 Frequencies to restore language relating to the 2013 303(g), 303(r), 332(c)(7). deadline that was inadvertently AGENCY: Federal Communications removed in an unrelated rulemaking I 2. Section 90.209 is amended by Commission. proceeding, and to revise that language revising footnote 3 to the table in ACTION: Final rule. to make it more precise. paragraph (b)(5) to read as follows: SUMMARY: In the Fourth Memorandum I. Procedural Matters § 90.209 Bandwidth limitations. Opinion and Order in WT Docket No. A. Paperwork Reduction Act Analysis * * * * * 99–87 (Fourth Memorandum Opinion (b) * * * and Order), the Federal 2. The Fourth Memorandum Opinion Communications Commission and Order does not contain any new or (5) * * * (Commission or FCC) clarifies the modified information collection 3 Operations using equipment designed to Commission’s Third Report and Order requirements subject to the Paperwork operate with a 25 kHz channel bandwidth in this docket, and takes the opportunity Reduction Act of 1995 (PRA), Public will be authorized a 20 kHz bandwidth. to correct the inadvertent deletion of Law 104–13. In addition, therefore, it Operations using equipment designed to operate with a 12.5 kHz channel bandwidth language in the rules regarding the does not contain any new or modified ‘‘information collection burden for will be authorized a 11.25 kHz bandwidth. schedule for Private Land Mobile Radio Operations using equipment designed to systems in the 150–174 MHz and 421– small business concerns with fewer than 25 employees,’’ pursuant to the Small operate with a 6.25 kHz channel bandwidth 512 MHz bands to transition to will be authorized a 6 kHz bandwidth. All narrowband kHz technology. Business Paperwork Relief Act of 2002, stations must operate on channels with a Public Law 107–198, see 44 U.S.C. DATES: Effective July 17, 2008. bandwidth of 12.5 kHz or less beginning 3506(c)(4). FOR FURTHER INFORMATION CONTACT: January 1, 2013, unless the operations meet Melvin Spann, Mobility Division, II. Ordering Clauses the efficiency standard of § 90.203(j)(3). Wireless Telecommunications Bureau, 3. Pursuant to sections 4(i) and 303(r) * * * * * at [email protected], or (202) 418– of the Communications Act of 1934, as [FR Doc. E8–13628 Filed 6–16–08; 8:45 am] 1333. amended, 47 U.S.C. 154(i), 303(r), and BILLING CODE 6712–01–P

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Proposed Rules Federal Register Vol. 73, No. 117

Tuesday, June 17, 2008

This section of the FEDERAL REGISTER regulations more consistent with our fruits, vegetables, and other products contains notices to the public of the proposed fruits and vegetables import regulations. from Hawaii, Puerto Rico, the U.S. issuance of rules and regulations. The The proposed changes would not alter Virgin Islands, and Guam to the purpose of these notices is to give interested the manner in which the risk associated continental United States to prevent the persons an opportunity to participate in the with a regulated article interstate spread of plant pests and noxious weeds rule making prior to the adoption of the final rules. movement request is evaluated, nor that occur in Hawaii and the territories. would it alter the manner in which We are proposing to revise and those risks are ultimately mitigated. reorganize those portions of the DEPARTMENT OF AGRICULTURE DATES: We will consider all comments regulations pertaining to the interstate that we receive on or before August 18, movement of fruits and vegetables to Animal and Plant Health Inspection 2008. consolidate requirements of general Service ADDRESSES: You may submit comments applicability and eliminate redundant by either of the following methods: requirements, update terms and remove 7 CFR Parts 305 and 318 • Federal eRulemaking Portal: Go to outdated requirements and references, [Docket No. APHIS–2007–0052] http://www.regulations.gov/fdmspublic/ and make various editorial and component/ nonsubstantive changes to the RIN 0579–AC70 main?main=DocketDetail&d=APHIS– regulations to make them easier to use. 2007–0052 to submit or view comments We are also proposing to make Revision of the Hawaiian and and to view supporting and related substantive changes to the regulations Territorial Fruits and Vegetables materials available electronically. including: Establishing criteria within Regulations • Postal Mail/Commercial Delivery: the regulations that, if met, would allow AGENCY: Animal and Plant Health Please send two copies of your comment us to approve certain new fruits and Inspection Service, USDA. to Docket No. APHIS–2007–0052, vegetables for interstate movement in ACTION: Proposed rule. Regulatory Analysis and Development, the United States and to acknowledge PPD, APHIS, Station 3A–03.8, 4700 pest-free areas in Hawaii and U.S. SUMMARY: We are proposing to revise River Road Unit 118, Riverdale, MD territories expeditiously; and removing and reorganize the regulations 20737–1238. Please state that your the listing in the regulations of some pertaining to the interstate movement of comment refers to Docket No. APHIS– specific commodities as regulated fruits and vegetables from Hawaii and 2007–0052. articles. These changes are intended to the territories to consolidate Reading Room: You may read any simplify and expedite our processes for requirements of general applicability comments that we receive on this approving certain regulated articles for and eliminate redundant requirements, docket in our reading room. The reading interstate movement and pest-free areas update terms and remove outdated room is located in room 1141 of the while continuing to allow for public requirements and references, and make USDA South Building, 14th Street and participation in the processes. This various editorial and nonsubstantive Independence Avenue, SW., proposal, if adopted, would not allow changes to the regulations to make them Washington, DC. Normal reading room for the interstate movement of any easier to use. We are also proposing to hours are 8 a.m. to 4:30 p.m., Monday specific new fruits or vegetables, nor make substantive changes to the through Friday, except holidays. To be would it alter the conditions for regulations including establishing sure someone is there to help you, interstate movement of currently criteria within the regulations that, if please call (202) 690–2817 before approved fruits or vegetables. These met, would allow us to approve certain coming. proposed changes would make our new fruits and vegetables for interstate Other Information: Additional domestic interstate movement movement in the United States and to information about APHIS and its regulations more consistent with our acknowledge pest-free areas in Hawaii programs is available on the Internet at fruits and vegetables import regulations. and U.S. territories expeditiously, and http://www.aphis.usda.gov. The proposed changes would not alter removing the listing in the regulations FOR FURTHER INFORMATION CONTACT: Mr. the manner in which the risk associated of some specific commodities as David Lamb, Import Specialist, with a regulated article’s interstate regulated articles. These changes are Commodity Import Analysis and movement request is evaluated, nor intended to simplify and expedite our Operations, PPQ, APHIS, 4700 River would it alter the manner in which the processes for approving certain Road Unit 133, Riverdale, MD 20737– risk is ultimately mitigated. regulated articles for interstate 1231; (301) 734–8758. The Current Regulations movement and pest-free areas while SUPPLEMENTARY INFORMATION: continuing to allow for public Currently, the regulations prohibit the participation in the processes. This Background interstate movement of fruits, proposal, if adopted, would not allow Under the regulations in 7 CFR part vegetables, and other products from for the interstate movement of any 318, ‘‘Hawaiian and Territorial Hawaii, Puerto Rico, the U.S. Virgin specific new fruits or vegetables, nor Quarantine Notices’’ (referred to below Islands, and Guam into the continental would it alter the conditions for as the regulations), the Animal and United States or any other territory or interstate movement of currently Plant Health Inspection Service (APHIS) possession of the United States unless approved fruits or vegetables. These of the U.S. Department of Agriculture the regulations specifically allow the proposed changes would make our (USDA or the Department) prohibits or interstate movement of the particular domestic interstate movement restricts the interstate movement of fruit, vegetable, or product.

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The regulations are divided into five Proposed Revisions doing so, we would consolidate the subparts: Hawaiian Fruits, Vegetables, generally applicable provisions that Reorganization of the Regulations and and Flowers (§§ 318.13 through 318.13– now appear in each subpart. We would Consolidation of Similar Provisions 17); Territorial Cotton, Cottonseed, and also explicitly include the Cottonseed Products (§§ 318.47 through The Hawaii subpart and the Puerto Commonwealth of the Northern Mariana 318.47–4); Fruits and Vegetables From Rico and U.S. Virgin Islands subpart are Islands (CNMI) within the scope of the Puerto Rico or the Virgin Islands constructed in a similar manner and, regulations and update the regulations (§§ 318.58 through 318.58–16); Sand, with the exception of commodity- to reflect administrative and procedural Soil, or Earth, with Plants From specific sections, each subpart contains processes that have been modified or Territories and Districts (§ 318.60); and the following 17 sections that can be established since we last updated the Guam (§§ 318.82 through 318.82–3). For applied to all commodities moving regulations. the purposes of this proposal, we will interstate from those areas: In some cases, we would make no focus on three of those subparts: • Notice of quarantine; changes to the content of the current Hawaiian Fruits, Vegetables, and • Definitions; sections, but simply change their • Flowers; Fruits and Vegetables From Conditions of movement; paragraph and section designations. In • Puerto Rico or the Virgin Islands; and Conditions governing the issuance other cases, we would amend the text to of certificates or limited permits; Guam. The Territorial Cotton, • make the regulations easier to Cottonseed, and Cottonseed Products Application for inspection; understand, to correct errors, or to • Container marking and identity; subpart and Sand, Soil, or Earth, with • update them to reflect current APHIS Plants From Territories and Districts Products as ships’ stores or in the operating procedures. subpart are not addressed in this possession of passengers or crew; In order to facilitate review of this • Articles and persons subject to proposal. proposal, which, if adopted, would inspection; relocate all current provisions to new Of the three subparts that are the • Inspection of means of conveyance; sections within the regulations, we have focus of this proposal, each subpart • Inspection of baggage, other prepared a cross-reference table that contains a list of regulated articles from personal effects, and cargo; each State or territory, requirements of • Disinfection of means of links the current provisions with the general applicability, as well as specific conveyance; proposed provisions. The cross- requirements regarding certain regulated • Posting of warning notice and reference document may be viewed on articles. distribution of baggage declarations; the Regulations.gov Web site (see As a condition of interstate movement • Movement by the U.S. Department ADDRESSES above for instructions for under the regulations, all approved of Agriculture; accessing Regulations.gov) and may be fruits, vegetables, and other products are • Parcel post inspection; obtained by contacting the person listed subject to some type of restriction to • Costs and charges; under FOR FURTHER INFORMATION ensure that the regulated article does • Withdrawal of certificates, transit CONTACT. The cross-reference document not act as a pathway for the permits, limited permits, or compliance may also be viewed in our reading room dissemination of plant pests or noxious agreements; and (information on the location and hours weeds within the United States. These • Transit of fruits and vegetables from of the reading room is provided under restrictions are known as phytosanitary Hawaii or the territories into or through the heading ADDRESSES at the beginning measures, and include any activities the United States. of this proposed rule). that have the effect of reducing the plant With the exception of the provisions Section-by-Section Discussion of pest risk posed by a fruit, vegetable, or regarding the posting of warning notices Additional Amendments other product. and distribution of baggage declarations, Typically, certain products may be which appear only in the Hawaii Additional proposed amendments to moved interstate if the movement is subpart, there is little to no variation the regulations are discussed below, by authorized by a limited permit or a valid between the subparts in these 17 proposed section. certificate issued on the basis of sections; any differences are more Notice of Quarantine (Proposed inspection and verification of pest editorial then substantive. Each subpart § 318.13–1) freedom or on the basis of treatment. also contains commodity-specific These requirements are considered instructions for the movement of certain Proposed § 318.13–1 describes the applicable to the interstate movement of regulated articles. As explained later in authority held by the Secretary of all commodities. A partial list of the this document, if this proposal is Agriculture to regulate the interstate movement of fruits, vegetables, and commodities that may be moved adopted, all of those sections would be 1 interstate from Hawaii and from Puerto removed from or relocated in the other regulated articles. Proposed Rico or the U.S. Virgin Islands under regulations. (See ‘‘Regulated Article- § 318.13–1 would continue to prohibit these conditions may be found in Specific Provisions’’ section later in this the interstate movement of fruits and §§ 318.13–2 and 318.58–2, respectively. document.) While the interstate vegetables and associate plants and Certain other fruits, vegetables, or movement of regulated articles from portions of plants and other regulated products must meet additional Guam is covered within the scope of the articles except as provided in the requirements to be eligible for Guam subpart, that subpart is outdated Hawaii and territorial quarantine movement, including distribution and most interstate movement regulations or elsewhere in part 318. restrictions, packing requirements, and requirements for Guam are not These proposed provisions were all other measures determined to be accurately reflected in the subpart. drawn from and are consistent with necessary to mitigate the pest risk posed We are proposing to reorganize the those found in the existing Hawaiian by the particular regulated article. regulations by combining the three and territorial subparts. Requirements for the interstate Hawaiian and territorial subparts into 1 The Secretary of Agriculture has delegated movement of these commodities can be one single subpart, ‘‘Regulated Articles authority for the formulation, direction, and found in (( 318.13–4b through 318.13– From Hawaii and the Territories’’ supervision of APHIS policies, programs, and 4j and §§ 318.58–4a through 318.58–4c. (§§ 318.13–1 through 318.13–25). In activities to the Administrator of APHIS.

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Definitions (Proposed § 318.13–2) • Costs and charges; and compliance agreements for persons • Responsibility for damage arising Proposed § 318.13–2 contains wishing to move fruits and vegetables from quarantine actions or procedures. definitions of terms used in the subpart. from fruit fly-free areas, in commercial The current provisions for these All the terms and their definitions were consignments, or with inspection in the requirements are contained in §§ 318.13 drawn from the existing Hawaiian and State of origin. The compliance through 318.13–4, §§ 318.13–5 through territorial subparts; however, we are agreement would help APHIS to trace 318.13–17, §§ 318.58 through 318.58–4, proposing to make some substantive back consignments should problems §§ 318.58–5 through 318.58–16, changes, including revising, adding, and occur with the shipment as well as to § 318.82–2, and § 318.82–3. In removing certain definitions. monitor the establishment in which the consolidating those provisions into a Specifically, we are proposing to revise fruits and vegetables are grown, packed, single section, we would set out the definitions for fruits and vegetables, and otherwise processed. general requirements as follows: interstate, and person. These new Attachment of Limited Permit or definitions would clarify the meaning of Freedom From Plant Debris Verification of Certification those terms in the context of the revised Proposed § 318.13–3(a) would require Proposed § 318.13–3(e) contains regulations. that fruits and vegetables moved provisions pertaining to the attachment We are also proposing to add interstate from Hawaii, Puerto Rico, the of certification and limited permits. definitions for approved growing media, U.S. Virgin Islands, CNMI, or Guam These provisions were drawn from and lot, regulated article, and soil. We are must be free from plant debris. These are consistent with the provisions that proposing to replace the current proposed provisions are drawn from appear in the corresponding sections of definition of certificate with a definition and are consistent with those found in each of the Hawaiian and territorial for certification. As explained later in the existing Hawaiian and territorial subparts. this document under the section titled subparts. ‘‘General Requirements for All Withdrawal of Transit Permits, Limited Regulated Articles (Proposed § 318.13– Certification Permits, or Compliance Agreements 3),’’ the term certification more Proposed § 318.13–3(b) contains Proposed § 318.13–3(f) contains accurately reflects current operating provisions under which certificates or conditions under which APHIS will procedures. We are proposing to replace limited permits may be issued for the withdraw certification, transit permits, the current definition of commercial movement of regulated articles under limited permits, or compliance shipment with a definition of certain conditions. These proposed agreements. These provisions were commercial consignment in order to provisions were drawn from and are drawn from and are consistent with the eliminate confusion over what consistent with the provisions that provisions that appear in the constitutes a ‘‘shipment.’’ We are also appear in the corresponding sections of corresponding sections of each of the proposing to replace the current each of the Hawaiian and territorial Hawaiian and territorial subparts. definition of plant litter with a subparts. However, while the definition of plant debris in order to regulations refer to the issuance of Container Marking and Identity provide the most up-to-date term. All certificates, APHIS inspectors do not Proposed § 318.13–3(g) contains new and revised definitions may be issue certificates, but rather stamp provisions regarding container marking found in § 318.13–2 in the regulatory shipping boxes and/or containers or and identity. These provisions were text at the end of this document. accompanying documents with a release drawn from and are consistent with the We are proposing to remove the stamp as a verification of certification. provisions that appear in the definitions for administrative Therefore, we are proposing to amend corresponding sections of each of the instructions; cactus plants; cereals; the regulations by removing all Hawaiian and territorial subparts. cotton and cotton covers; mango seeds; references to issuing certificates, and we Refusal of Entry rice straw; seeds; State, territory, or would instead use the term certification. district of the United States; and Proposed § 318.13–3(h) explains sugarcane or parts or by-products Limited Permits conditions under which APHIS would thereof because these terms are not used Proposed § 318.13–3(c) contains refuse entry of a regulated article. in the proposed new subpart. provisions for the issuance of limited Specifically, paragraph (h) provides that permits. These proposed provisions if an inspector finds that a regulated General Requirements for All Regulated were drawn from and are consistent article is prohibited, or is not Articles (Proposed § 318.13–3) with the provisions that appear in the accompanied by required As explained earlier in this document, corresponding sections of each of the documentation, or is so infested with a we are proposing to consolidate all Hawaiian and territorial subparts. plant pest or noxious weed that, in the existing general requirements for the judgment of the inspector, it cannot be Compliance Agreements interstate movement of regulated cleaned or treated, or contains soil or articles into § 318.13–3. These Proposed § 318.13–3(d) contains other prohibited contaminants, the requirements include provisions that provisions for entering into compliance entire lot or consignment may be pertain to: agreements with APHIS. These refused movement elsewhere in the • Freedom of regulated articles from provisions were drawn from and are United States. This change would plant debris; consistent with the provisions that clearly state our existing authority in the • Certification; appear in the corresponding sections of regulations and would not affect • Limited permits; each of the Hawaiian and territorial program operations in any way. • Compliance agreements; subparts. We are also proposing to • Withdrawal of certification, transit require persons wishing to move fruits Costs and Charges for APHIS Services permits, limited permits, or compliance and vegetables interstate under certain Proposed § 318.13–3(i) contains agreements; approved notice-based measures to provisions related to costs and charges • Container marking and identity; enter into a compliance agreement with for APHIS services. These provisions • Refusal of entry; APHIS. Specifically, we would require were drawn from and are consistent

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with the provisions that appear in the approving the importation of States as a designated measure for corresponding sections of each of the commodities that, based on the findings imports. In proposed § 318.13–4 we Hawaiian and territorial subparts. of a pest risk analysis, can be safely require that the inspection take place in imported subject to one or more of the the State of first arrival, which more APHIS Not Responsible for Damage designated phytosanitary measures accurately reflects the fact that the Proposed § 318.13–3(j) contains listed in § 319.56–4(b) of the consignment is already in commerce in provisions pertaining to responsibility regulations. These measures are: the United States. In § 319.56–4, for damages to regulated articles • The fruits or vegetables are subject inspection in the country of origin by an resulting from required treatments. to inspection upon arrival in the United inspector or an official of the national These provisions were drawn from and States and comply with all applicable plant protection organization (NPPO) of are consistent with the provisions that provisions of § 319.56–3; the exporting country is listed as a appear in the corresponding sections of • The fruits or vegetables are designated measure, while this each of the Hawaiian and territorial imported from a pest-free area in the proposed rule would provide that subparts. country of origin that meets the inspection and certification take place requirements of § 319.56–5 for freedom Approval of Certain Fruits and in the State of origin by an inspector. from that pest and are accompanied by Vegetables for Interstate Movement The inspector could be a State a phytosanitary certificate stating that (Proposed § 318.13–4) agricultural inspector or an individual the fruits or vegetables originated in a authorized by APHIS or the Department Under our current process, in order pest-free area in the country of origin; of Homeland Security. Finally, • for a fruit or vegetable to be approved The fruits or vegetables are treated § 319.56–4 provides that fruits or for interstate movement from Hawaii, in accordance with 7 CFR part 305; • vegetables coming from approved pest- Puerto Rico, Guam, the U.S. Virgin The fruits or vegetables are free areas be accompanied by a Islands, the Commonwealth of Northern inspected in the country of origin by an phytosanitary certificate. States do not Mariana Islands, or any other territory inspector or an official of the national issue phytosanitary certificates, nor do or possession of the United States, plant protection organization of the they issue any comparable document; APHIS, after receiving the movement exporting country, and have been found therefore, the proposed equivalent request from a State or territory, first free of one or more specific quarantine measure would not provide for the gathers information on the fruit or pests identified by the risk analysis as issuance of additional documentation vegetable and then performs a pest risk likely to follow the import pathway; for consignments moving from pest-free analysis. The pest risk analysis usually and/or areas. The proposed designated contains two main components: (1) A • The fruits or vegetables are measures are as follows: risk assessment, to determine what pests imported as commercial consignments • Inspection in the first State of of quarantine significance are associated only. arrival and subject to other general In response to comments received on with the fruit or vegetable and which of requirements of proposed § 318.13–3. those are likely to follow the import our proposed rule that preceded the July • Origination from a pest-free area in pathway, and (2) a risk management 2007 final rule, and in order to make our the State of origin in accordance with domestic regulations consistent with analysis, to identify phytosanitary proposed § 318.13–5. measures that could be applied to the our import regulations, we are • Treatment in accordance with part fruit or vegetable and evaluate the proposing to establish a similar 305 and certification of applied potential effectiveness of those regulatory approach that would allow treatment for pest(s). measures. When the risk analysis is APHIS to approve or reject certain fruits • Commercial consignments only. complete, APHIS may then propose to and vegetables for interstate movement • Inspection and certification that the allow the interstate movement of the from Hawaii and the territories. The fruit or vegetable is pest free in the State fruit or vegetable through a proposed process, which would be codified in of origin by an inspector. rule published in the Federal Register. proposed § 318.13–4, would entail the This proposed process for approving Following its evaluation of public publication of notices in the Federal interstate movement would apply only comments on the proposal and any Register to advise the public of the to fruits and vegetables, not propagative other supporting documentation, APHIS findings of pest risk analyses and invite material or other products (i.e., cut may then issue a final rule that comment on those analyses prior to flowers, seeds, etc.) that are regulated specifically lists the fruit or vegetable, authorizing the interstate movement of under 7 CFR part 318. Further, the and any applicable phytosanitary any fruit or vegetable. The proposed proposed process would apply only to measures, in the regulations. The results measures, which are referred to as those fruits and vegetables that, based of a pest risk analysis may also reveal ‘‘designated measures’’ elsewhere in on the findings of risk analysis, we that the risks posed by a fruit or this document, would be similar, but determine can be safely moved subject vegetable cannot be sufficiently not identical to those which are located to one or more of the designated mitigated for a variety of reasons, and in § 319.56–4, given that the proposed measures. such movement continues to be designated measures have been We believe the proposed process prohibited. The current process for modified to account for the differences would measurably speed up the approving new commodities for between interstate movement and evaluation and approval or denial of interstate movement takes a significant importation. For example, in the current requests for interstate movement of period of time, ranging on average from Hawaii/territorial regulations, fruits and vegetables, while continuing 18 months to over 3 years (beginning inspectors must certify consignments to provide opportunity for public with the initial request and ending with through inspection or treatment before analysis of and comment on the the publication of a final rule). consignments may move interstate. evidence used in our evaluation of the In a final rule published on July 18, Therefore, we have included potential pest risks associated with the 2007 (72 FR 39482–39528, Docket No. certification as part of two designated fruit or vegetable. APHIS–2005–0106) and effective on measures—treatment and inspection in In addition to the phytosanitary August 17, 2007, we established a the State of origin. Also, § 319.56–4 lists measures added to the regulations for performance-based process for inspection upon arrival in the United the notice-based approach in the July

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2007 final rule, we have evaluated one the State of origin,2 we would evaluate fruit or vegetable, subject to the additional measure, limited whether the risk posed by each conditions described in the pest risk distribution, for the notice-based quarantine pest can be mitigated by one analysis, beginning on the date the process in this proposal. Limited or more of the designated measures Federal Register notice is published. distribution would be applied if the cited previously in this document.3 If In the event that commenters provide results of the pest risk analysis the designated measures alone are not APHIS with information that shows that indicated that the risk of introducing sufficient to mitigate the risk posed by changes to the pest risk analysis are specific pests of concern could be the fruit or vegetable—i.e., if additional necessary, and if the changes made affect the conclusions of the analysis mitigated by limiting the geographical risk mitigation is required beyond one or more of the designated phytosanitary (i.e., that the application of the area within which the fruit or vegetable measures—any further action on identified phytosanitary measures will could be moved interstate. For example, approving the fruit or vegetable for not be sufficient to mitigate the risk based on the quarantine pest(s) interstate would be undertaken using posed by the identified pests), APHIS identified, a pest risk analysis may the rulemaking-based process for would proceed as follows: determine that a mitigation measure authorizing new fruits and vegetables • If additional phytosanitary should be to limit distribution of the for interstate movement. However, if measures beyond the designated fruit or vegetable to Alaska because the APHIS determines in a risk management measures described earlier in this climate there would not be conducive analysis that the risk posed by each document are determined to be for the particular pest’s establishment. identified quarantine pest associated necessary to mitigate the risk posed by There are also box marking with the fruit or vegetable in the State the particular fruit or vegetable, any requirements that are associated with of origin can be mitigated by one or further action on the fruit or vegetable this measure to ensure that more of the designated measures, our would follow the rulemaking-based consignments are not misdirected. findings would be communicated using process. • Using the previous example, we would the notice-based process; APHIS would If additional risk mitigation require the shipping containers be publish in the Federal Register, for a measures beyond those evaluated in the marked as ‘‘For Distribution in Alaska public comment period of a minimum pest risk analysis are determined to be Only.’’ of 60 days, a notice announcing the necessary, but the added measures still availability of the pest risk analysis. only include one or more of the We have determined that limited Each pest risk analysis made available designated measures described earlier in distribution has a good track record of for public comment will specify which this document, APHIS may publish efficacy when used in combination with of the designated phytosanitary another notice announcing that the one or more of the other proposed measures would be required to be Administrator has determined that the designated measures. There are a applied by APHIS. application of one or more of the number of regulated articles that Under the notice-based process, designated measures will be sufficient currently move from Hawaii under APHIS would evaluate the comments to mitigate the risk that plant pests or distribution limitations (e.g., litchi and we received in response to our notice of noxious weeds could be disseminated longan may not be moved interstate into availability of the risk analysis. In the within the United States via the Florida, and avocados may only be event that we receive no comments, or interstate movement of the fruit or moved interstate to Alaska). Therefore, in the event that commenters do not vegetable. The notice would explain the we are proposing to include this provide APHIS with information that additional mitigation measures that will measure in the list of designated shows that the conclusions of the pest be required for the interstate movement measures in this proposed rule. risk analysis are incorrect and that of the fruit or vegetable to be authorized changes to the pest risk analysis are and how APHIS made its determination. The interstate movement of fruits and APHIS would begin allowing the vegetables that require additional necessary, APHIS would then publish another notice in the Federal Register interstate movement for the particular phytosanitary measures beyond one or fruit or vegetable, subject to the more of the designated measures cited announcing that the Administrator has determined that, based on the conditions described in the revised pest above would continue to be authorized risk analysis, beginning on the date through specific prior rulemaking. For information available, the application of one or more of the designated measures specified in the Federal Register notice. ease of discussion in this document, we Alternately, if APHIS believes that the described above (and as specified in a refer to the proposed streamlined revisions to the pest risk analysis are given pest risk analysis) is sufficient to process as the ‘‘notice-based process’’ substantial, and that there may be mitigate the risk that plant pests or and the existing process as the continued uncertainty as to whether the noxious weeds could be introduced into ‘‘rulemaking-based process.’’ Note that designated measures are sufficient to or disseminated within the United mitigate the risk posed by the fruit or the determination as to which process to States via the moved fruit or vegetable. vegetable, APHIS may elect to make the follow (rulemaking or the notice-based APHIS would also respond to all revised risk analysis available for public process) would be based exclusively on substantive comments received on the comment via a notice in the Federal the conclusions of a risk analysis. initial notice in this second notice. Register, or may make any further Using the proposed notice-based APHIS would begin allowing the action on approving the fruit or process, when APHIS receives a request interstate movement of the particular vegetable for interstate movement from a State Department of Agriculture subject to rulemaking. 2 Risk analyses could consider a State or territory, to allow interstate movement of an Note that APHIS does not set policy additional fruit or vegetable, it would part of a State or territory, or all or parts of several States or territories. or regulatory requirements based on gather information on the fruit or 3 If no quarantine pests are identified in the pest issues of economic competitiveness; our vegetable and conduct a pest risk risk analysis as likely to follow the pathway, a authority is tied to pest risk, and assessment. When the assessment is detailed risk management analysis would likely not therefore our decisionmaking is based complete, if quarantine pests are be performed, but the interstate movement of the commodity would still be subject to the general on an analysis of risk. While the associated with the fruit or vegetable in requirements of proposed § 318.13–3. proposed process would not preclude

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the submission of comments regarding those listed commodities that are requirements or withdraw approval of issues unrelated to risk, comments on currently approved for interstate particular commodities whose issues such as economic movement subject only to one or more movement is approved under § 318.13– competitiveness (e.g., comments that the of the designated measures described 4. Specifically, APHIS could amend proposed fruit or vegetable movement earlier in this document. Consequently, interstate movement requirements if we would result in decreased sales for we would remove the lists of determine that the currently assigned continental U.S. producers of the same commodities contained in current designated phytosanitary measures are fruit or vegetable) would not merit a §§ 318.13–2, 318.13–4b, 318.13–4f, and not sufficient to mitigate the risk posed detailed response by APHIS. This 318.58–2 and the provisions in by the particular fruit or vegetable. This proposal would allow APHIS to focus § 318.58–4b, ‘‘Irradiation treatment of could occur due to interceptions of new public discussion on the analysis of pest regulated articles from Puerto Rico and pests in moved fruits or vegetables or risk, which is the primary basis for our the U.S. Virgin Islands,’’ and § 318.13– evidence of other risks. Under this decisionmaking. We believe this policy 4c, ‘‘Administrative instructions provision, APHIS would announce that is consistent with the provisions of the approving methyl bromide fumigation it was prohibiting or further restricting Plant Protection Act. as a condition for certification of the interstate movement of the The notice-based process would tomatoes for movement from Hawaii.’’ particular fruit or vegetable by employ the use of Federal Register We recognize that removing a large publishing a notice in the Federal notices to communicate APHIS’s number of commodities from the Register. In such cases, APHIS would consideration and approval or denial of regulations may cause some confusion take immediate action as appropriate at requests that were previously only as to whether a particular fruit or ports of entry, and would follow such approved via rulemaking. As described vegetable is approved for interstate action as quickly as practicable with above, Federal Register notices would movement in the United States, and notice in the Federal Register. The be used to announce the availability of under what conditions. However, for notice would specify the amended pest risk analyses for public comment. many years, APHIS has maintained interstate movement requirements, Federal Register notices would also be Hawaii/CNMI and Puerto Rico/U.S. provide an effective date for the change, used to announce when the Virgin Islands fruits and vegetables and would invite public comment on Administrator has determined that a manuals that were designed to be a the subject. It is likely that most such particular fruit or vegetable that has hands-on reference for our inspectors. actions would be effective immediately, been subject to risk analysis and public The manuals are a complete reference in order to address newly identified comment can, based on the findings of for all fruits and vegetables approved for risks in a timely fashion; however, if pest risk analysis, be approved for interstate movement from those States there is uncertainty as to the risk posed, interstate movement in the United and may be viewed on the APHIS Web APHIS may request comment on a States. These notices would make clear site at http://www.aphis.usda.gov/ change in interstate movement _ the conditions under which such import export/plants/manuals/ports/ requirements prior to making such a movement could occur, and would state downloads/hawaii.pdf and http:// change effective. www.aphis.usda.gov/import_export/ that APHIS will immediately begin Pest-Free Areas (Proposed § 318.13–5) allowing the interstate movement of the plants/manuals/ports/downloads/ _ Currently, there are no provisions for fruit or vegetable. As described later in puerto rico.pdf. These manuals are establishing pest-free areas for Hawaii, this document, these notices would also frequently used by shippers and other Puerto Rico, Guam, the U.S. Virgin be used to make available any interested persons, in addition to APHIS Islands, or CNMI. In this document, we documentation of our consideration of personnel. Under this proposal, commodities are proposing to add a process for the potential effects of the interstate that have been authorized for interstate establishing pest-free areas and would movement of a fruit or vegetable on the movement under the provisions of provide for pest-free areas to be environment, as required under the § 318.13–4 would be added to the recognized using a notice-based National Environmental Policy Act, as manuals for their State or territory of approach. Proposed § 318.13–5, well as any other analyses determined origin, but not the regulations. paragraph (a) would provide that APHIS by APHIS to be necessary under other Furthermore, the manual would list would make a determination of an area’s Federal statutes, such as the Endangered those designated measures that apply to pest-free status based on information Species Act. each of those commodities. We also provided by the State. The information If the notice-based process is adopted plan to incorporate commodities that APHIS would use in its determination for use by APHIS, we would not list have been approved for interstate would include trapping and commodities approved under this movement into a searchable database at surveillance data, survey protocols, and approach in the regulations, though some point in the future. We are protocols for actions to be taken upon such commodities would be listed in currently developing a database for discovery of a pest. If warranted, APHIS APHIS’ Hawaii/CNMI and Puerto Rico/ commodities in our imported fruits and would publish a notice in the Federal U.S. Virgin Islands fruits and vegetables vegetables manual. The new database Register, making the information used manuals 4 and the documentation will allow interested persons to search to make the determination available to supporting their approval would be by regulated article or by country, and the public and solicit comment for 60 made available on the Internet; we also will list clearly the conditions that days. Following the comment period, if would remove from the regulations apply to each particular regulated article appropriate, APHIS would begin from a specified country. We envision allowing movement of the regulated 4 Currently, APHIS does not maintain a fruits and vegetables manual for Guam because there are no the database as a comprehensive source article from the pest-free area without regulated articles being moved from Guam (see for all types of users—inspectors, mitigations for the particular pest proposed § 318.13–17 ‘‘Regulated articles from importers, shippers, and other members because: Guam’’). If as a result of this proposed rule, it of the public. 1. No comments were received on the becomes necessary to maintain a list of fruits and vegetables from Guam outside of the regulations, We would also include in proposed notice or APHIS would list such information on the PPQ § 318.13–4 provisions that would allow 2. The comments on the notice did Internet Web site. APHIS to amend interstate movement not affect the overall conclusions of the

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notice and the Administrator’s insect-proof mesh or plastic tarpaulins disinfecting means of conveyance. determination of risk. during transit to the port and These provisions were drawn from and A comprehensive list of pest-free subsequent movement to the continental are consistent with the provisions that areas would be made available by United States. These safeguards would appear in the corresponding sections of APHIS on the Internet, but no such list provide necessary protection of each of the Hawaiian and territorial would be contained in the regulations. commodities moved interstate against subparts. Rather, the regulations would simply pest infestation while they are in transit identify the standards an area must meet through the United States and are Inspection of Baggage, Other Personal to be considered pest free, as shown in consistent with standard operating Effects, and Cargo (Proposed § 318.13– proposed § 318.13–5. procedures of all current programs for 10) In conjunction with this proposed the export of fruits or vegetables from Proposed § 318.13–10 contains change, we would also include a foreign pest-free areas. provision in proposed § 318.13–5 provisions for inspecting aircraft regarding how we would acknowledge General Requirements passengers, aircraft crew, persons the decertification of pest-free areas. Transit of Regulated Articles From traveling to Guam, persons traveling by Specifically, paragraph (d) of that Hawaii or the Territories Into or ship as well as provisions for accepting section would provide that in the event Through the Continental United States baggage and loading on aircraft, loading of pest infestation in an approved pest- (Proposed § 318.13–6) of certain cargoes, removing certain free area, APHIS will publish in the cargoes in Guam, and providing space Proposed § 318.13–6 contains and facilities for baggage and cargo Federal Register a notice announcing provisions for fruits and vegetables from that the pest-free status of the area in inspection. These provisions were Hawaii, Puerto Rico, the U.S. Virgin drawn from and are consistent with the question has been withdrawn, and that Islands, CNMI, and Guam to transit provisions that appear in the movement of host crops for the pest in through the United States en route to corresponding sections of each of the question are subject to additional another country. These provisions were Hawaiian and territorial subparts. mitigations, if any exist. If an alternative drawn from and are consistent with the mitigation for the pest is not available, provisions that appear in the Posting of Warning Notice and the interstate movement would be corresponding sections of each of the Distribution of Baggage Declarations prohibited. In order for a decertified Hawaiian and territorial subparts. (Proposed § 318.13–11) pest-free area to be reinstated, a State would have to submit new information Products as Ships’ Stores or in the Proposed § 318.13–11 contains supporting its pest-free status as Possession of Passengers or Crew provisions for distributing baggage discussed in paragraph (b) of this (Proposed § 318.13–7) declarations to passengers on aircrafts, section to be approved by APHIS. Proposed § 318.13–7 contains ships, vessels, or other surface craft Paragraph (e) would set forth general provisions for certain regulated articles moving to Guam, CNMI, or American requirements for the interstate from Hawaii, Puerto Rico, the U.S. Samoa. In addition, proposed § 318.13– movement of regulated articles from Virgin Islands, CNMI, and Guam to be 11 contains requirements for posting pest-free areas in Hawaii, Puerto Rico, moved interstate as ships’ stores or in warning notices directing attention to Guam, CNMI, or the U.S. Virgin Islands. the possession of passengers and crew the regulations in the Hawaii and Specifically, paragraph (e) would on ships. These provisions were drawn territorial subparts on docks, harbors, or provide that each box of fruits or from and are consistent with the landing fields in Hawaii, Puerto Rico, vegetables that is moved interstate from provisions that appear in the Guam, CNMI, or the U.S. Virgin Islands. a pest-free area under this subpart be corresponding sections of each of the These provisions were drawn from and labeled with the name of the orchard or Hawaiian and territorial subparts. grove or origin, or the name of the are consistent with the provisions that grower; the name of the municipality Articles and Persons Subject to appear in the corresponding section in and State or territory in which the fruits Inspection (Proposed § 318.13–8) the Hawaii subpart; except that we are or vegetables were produced; and the Proposed § 318.13–8 contains proposing to amend some of those type and amount of fruit the box provisions related to the inspection of provisions to reflect current APHIS contains. Paragraph (e) would further persons, means of conveyance, baggage, practices. Specifically, we are proposing provide that persons wishing to move cargo, and any other articles destined to amend those provisions to require fruits or vegetables from Hawaii, Puerto for movement from Hawaii, Puerto Rico, that baggage declarations be distributed Rico, Guam, CNMI, or the U.S. Virgin the U.S. Virgin Islands, CNMI, and to passengers on aircraft, ships, vessels, Islands enter into a compliance Guam to a destination elsewhere in the or other surface crafts moving to Guam, agreement with APHIS in accordance United States. These provisions were CNMI, or American Samoa. Hawaii does with the provisions for compliance drawn from and are consistent with the not distribute baggage declarations to agreements in § 318.13–3(d). Finally, provisions that appear in the passengers on all outgoing aircraft, paragraph (e) would require that fruits corresponding sections of each of the ships, vessels, or other surface crafts; or vegetables moved from a pest-free Hawaiian and territorial subparts. therefore we are also proposing to area into or through a non-free area be remove those requirements. Paragraph safeguarded during the time they are Inspection and Disinfection of Means of (b) of § 318.13–12 of the current present in a non-free area by insect- Conveyance (Proposed § 318.13–9) regulations contains instructions for proof mesh screens or plastic tarpaulins, Proposed § 318.13–9 contains posting warning notices in docks, including while in transit to the provisions for inspecting aircraft prior harbors, or landing fields in Hawaii, packinghouse and while awaiting to departure from Hawaii, Puerto Rico, which direct the passengers’ attention to packaging. Further, we would require the U.S. Virgin Islands, CNMI, and the quarantine and regulations in 7 CFR fruits or vegetables that are moved Guam; inspection of aircraft moving to part 318. We would not include through a non-free area during transit to Guam; and inspection of ships upon footnotes 5 and 6 in proposed § 318.13– a port to be packed in insect-proof arrival in the United States. Proposed 11 because the footnotes reference form cartons or containers or be covered by § 318.13–9 also contains provisions for PPQ 232, which no longer exists.

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Movement by the U.S. Department of Islands, CNMI, and Guam in proposed requirements. As explained elsewhere Agriculture (Proposed § 318.13–12) § 318.13–14. Specifically, proposed in this document, most such § 318.13–14(a) would provide that Proposed § 318.13–12 contains commodities would no longer be listed fruits, vegetables, and other products provisions under which the USDA may in the regulations under this proposal. that are processed sufficiently as to move articles whose interstate However, as also explained earlier in preclude the survival of any live pests movement is otherwise prohibited or this document, some commodities listed can be moved interstate from Hawaii, restricted to move interstate from in the current regulations are allowed Puerto Rico, the U.S. Virgin Islands, Hawaii, Puerto Rico, the U.S. Virgin interstate movement subject to CNMI, and Guam. A listing of processed additional measures beyond the Islands, CNMI, or Guam. These products that are currently approved for provisions were drawn from and are designated measures used in the notice- interstate movement from those States based process. We are proposing to list consistent with the provisions that can be found in the Hawaii/territorial appear in the corresponding sections of those commodities, and any manuals. Proposed paragraph (b) of this requirements that apply to their each of the Hawaiian and territorial section provides that consignments of subparts. interstate movement beyond the general dried fruits, vegetables, or other requirements of § 318.13–3, in proposed Movement of Frozen Fruits and products that are capable of harboring § 318.13–16. Such commodities would Vegetables (Proposed § 318.13–13) fruit flies will be subject to the same remain subject to the same restrictions interstate movement conditions that Proposed § 318.13–13 provides that currently apply to their interstate apply to the fruit or vegetable in its movement. In some cases, restrictions conditions under which frozen fruits unprocessed state. and vegetables may be certified for that apply to the movement of specific interstate movement from Hawaii, Parcel Post Inspection (Proposed fruits, vegetables, and other products Puerto Rico, the U.S. Virgin Islands, § 318.13–15) from Hawaii, Puerto Rico, the U.S. CNMI, or Guam. These provisions were Proposed § 318.13–15 provides Virgin Islands, CNMI, and Guam are drawn from and are consistent with the conditions under which inspectors are contained in each State’s respective provisions that appear in the authorized to inspect parcel post fruits and vegetables manual, but not in corresponding sections of each of the packages placed in the mail in Hawaii, the regulations. Consequently, we are Hawaiian and territorial subparts. Puerto Rico, the U.S. Virgin Islands, proposing to add some commodities to the regulations that are currently listed, Movement of Processed Fruits, CNMI, or Guam. These provisions were drawn from and are consistent with the along with applicable movement Vegetables, and Other Products restrictions, only in one of those (Proposed § 318.13–14) provisions that appear in the corresponding sections of each of the manuals. A table with those The Hawaii/territorial fruits and Hawaiian and territorial subparts. commodities and the location of their vegetables manuals currently place current interstate movement restrictions on the interstate movement Regulated Articles Allowed Interstate requirements follows. See proposed of processed fruits, vegetables, and other Movement Subject to Specific § 318.13–16 for a list of commodities products from those areas; however, Conditions (Proposed § 318.13–16) and applicable requirements. there are no corresponding requirements Currently, the regulations contain Authorization of additional in the regulations. In this document, we provisions for interstate movement of commodities subject to any of these are proposing to add general certain regulated articles from Hawaii, additional measures or measures other requirements regarding the interstate Puerto Rico, the U.S. Virgin Islands, and than the designated measures described movement of processed products from Guam to other locations in the United earlier in this document would continue Hawaii, Puerto Rico, the U.S. Virgin States subject to inspection and other to require prior specific rulemaking.

Location of current interstate State of origin Common name Botanical name movement requirements

Hawaii ...... Bananas ...... Musa spp...... Hawaii/CNMI fruits and vegetables manual (‘‘Ad- ditional fruits and vegetables approved for movement from Hawaii to Alaska only’’ table on page 6–13). Edible flowers (Pot marigold, johnny- Calendula spp...... Hawaii/CNMI fruits and vegetables manual (page jump-ups, pansies, and violets). 6–12). Pineapple ...... Ananas comosus ...... Hawaii/CNMI fruits and vegetables manual (page 6–12). Puerto Rico ...... Cactus ...... Cactaceae ...... Puerto Rico/U.S. Virgin Islands fruits and vegeta- bles manual (table 7–3–19). Okra ...... Abelmoschus Puerto Rico/U.S. Virgin Islands fruits and vegeta- escuelentus. bles manual (tables 7–3–1 and 7–3–3). Edible flowers (pot marigold, johnny- Calendula spp...... Puerto Rico/U.S. Virgin Islands fruits and vegeta- jump-ups, pansies, and violets). bles manual (table 7–3–1). U.S. Virgin Islands ..... Cactus ...... Cactaceae ...... Puerto Rico/U.S. Virgin Islands fruits and vegeta- bles manual (table 7–3–19) and § 318.58– 2(b)(3). Okra ...... Abelmoschus Puerto Rico/U.S. Virgin Islands fruits and vegeta- escuelentus. bles manual (tables 7–3–1 and 7–3–3). Edible flowers (pot marigold, johnny- Calendula spp...... Puerto Rico/U.S. Virgin Islands fruits and vegeta- jump-ups, pansies, and violets). bles manual (table 7–3–1).

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Regulated Articles From Guam relocated to proposed § 318.13–25, Executive Order 12866 and Regulatory (Proposed § 318.13–17) except that the new section would not Flexibility Act Proposed § 318.13–17 contains include a statement that vapor heat This proposed rule has been reviewed interstate movement requirements that treatment is an authorized treatment for under Executive Order 12866. The rule would apply specifically to regulated sweetpotatoes from Hawaii, as part 305 has been determined to be not articles from Guam. These provisions already lists vapor treatment as an significant for the purposes of Executive were drawn from and are consistent approved treatment. Order 12866 and, therefore, has not with the provisions that appear in the Current § 318.13–3(b)(1) contains been reviewed by the Office of Guam subpart; except that the reference conditions governing the interstate Management and Budget. to part 321 would be removed because movement of cut flowers from Hawaii We have prepared an initial part 321, ‘‘Restricted Entry Orders,’’ has except for cut blooms and leis of mauna regulatory flexibility analysis that been removed (see 62 FR 50237–50239, loa and jade vine and except for cut considers the potential economic effects Docket No. 97–010–2). blooms of gardenia not grown in of this proposed rule on small entities, Sections 318.13–18 through 318.13– accordance with § 318.13–4j, as required by the Regulatory Flexibility 20 would be reserved to provide ‘‘Administrative instructions governing Act. The economic analysis is additional space in ‘‘Subpart–Hawaiian the interstate movement of cut blooms summarized below. Copies of the full and Territorial Quarantine Notices’’ for of gardenia from Hawaii.’’ Under this analysis are available from the person future amendments, should such proposal, the cut flower-related listed under FOR FURTHER INFORMATION amendments be needed. provisions of § 318.13–3(b)(1) and the CONTACT. Please refer to Docket No. conditions for the interstate movement APHIS–2007–0052 when requesting Regulated Article-Specific Provisions of gardenia in § 318.13–4j would be copies. The full analysis is also (Proposed §§ 318.13–21 through 318.13– relocated to proposed § 318.13–23. available on the Regulations.gov Web 25) Current § 318.13–4i contains site and in our reading room Sections 318.13–4a through 318.13–4j conditions governing the interstate (instructions for accessing and §§ 318.58–4a through 318.58–4c movement of bananas from Hawaii, Regulations.gov and information on the contain restrictions on the movement of including a requirement that the fruit be location and hours of the reading room specific commodities. As explained safeguarded from fruit fly infestation are provided under the heading elsewhere in this document, a number during transit. Under this proposal, all ADDRESSES at the beginning of this of these sections will be removed if this provisions contained in current document). proposal is adopted. However, all or § 318.13–4i would be relocated to This proposed rule would revise and part of the following sections would be proposed § 318.13–22, except that the reorganize the regulations pertaining to retained under this proposal: the interstate movement of fruits and • new section would specifically provide § 318.13–4d, ‘‘Vapor heat treatment that bananas being moved interstate vegetables from Hawaii, Puerto Rico, the of sweetpotatoes from Hawaii.’’ U.S. Virgin Islands, and Guam. This • must be safeguarded from fruit fly § 318.13–4g, ‘‘Administrative infestation by being covered with insect- would be done to consolidate instructions governing movement of proof packaging, such as insect-proof requirements of general applicability avocados from Hawaii to Alaska.’’ and eliminate redundant requirements, • mesh screens or plastic tarpaulins. This § 318.13–4i, ‘‘Conditions governing change is necessary to clarify the update terms and remove outdated the movement of bananas from Hawaii.’’ requirements and references, make • safeguarding requirement in this § 318.13–4j, ‘‘Administrative section. various editorial and nonsubstantive instructions governing the interstate changes to the regulations to make them movement of cut blooms of gardenia Current § 318.58–4c contains easier to use, and expand their from Hawaii.’’ conditions governing the interstate applicability to include the CNMI and • § 318.58–4c, ‘‘Movement of movement of sweetpotatoes from Puerto all other territories and possessions of sweetpotatoes from Puerto Rico to Rico. The current regulations provide the United States. certain ports.’’ that the fields in which sweetpotatoes APHIS is also proposing to make Under this proposal, some or all of the have been grown must be treated with substantive changes to the regulations. provisions contained in the sections an approved soil insecticide and that This proposed rule would establish listed above would be relocated to new before planting in treated fields, the criteria within the regulations that, if sections of the proposed regulations, as sweetpotato draws and vine cuttings met, would allow APHIS to approve shown in the cross reference document. must be dipped in an approved certain fruits and vegetables for As would be the case with requirements insecticidal solution. Under this interstate movement and to of general applicability, we would make proposal, all provisions contained in acknowledge pest-free areas in Hawaii no changes to the content of the current § 318.58–4c would be relocated and U.S. territories without undertaking sections, but simply change paragraph to proposed § 318.13–24, except that we rulemaking. Currently, these and section designations. In other cases, would clarify that the soil insecticide commodities may only be brought into we are proposing to amend the text to and insecticidal solution must be the continental United States after make the regulations easier to approved by APHIS. completion of a pest risk analysis, risk understand, to correct errors, or to Miscellaneous Changes management document, and update them to reflect current APHIS rulemaking, if the commodities are not operating procedures. None of these In addition to the changes described currently included on the list of changes would represent a substantive elsewhere in this document, we propose regulated articles. A similar type of change in interstate movement policy. to update references to contact points notice-based procedure has been Current § 318.13–4d contains for APHIS program units as appropriate. implemented by APHIS for approving restrictions on the interstate movement We would also update, as necessary, imports. Implementing this rule would of sweetpotatoes from Hawaii. Under various references to sections of the establish a similar approach for this proposal, all provisions contained fruits and vegetables regulations located authorizing the interstate movement of in current § 318.13–4d would be elsewhere in 7 CFR chapter III. certain fruits and vegetables and other

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articles. This proposed rule would also Fruit and Vegetable Production half again as large as the revised 2004 result in certain regulated articles no The fruit and tree nut and the output of 1 million pounds and the longer being listed in the regulations. vegetable and melon sectors are vibrant highest on record for fresh tropical These changes would simplify and in the United States, for both consumers specialty fruit since records began to be expedite the APHIS processes for and producers. The United States is one published for this group. approving certain regulated articles for of the world’s leading producers and Initial Regulatory Flexibility Analysis interstate movement and pest-free areas consumers of vegetables and melons. while continuing to allow for public The Regulatory Flexibility Act The annual sale of vegetables and requires agencies to evaluate the participation in the process. melons earned farmers $17.3 billion on APHIS expects little impact on the potential effects of proposed and final average during 2001–03, more than 8 total supply of fruits and vegetables rules on small businesses, small percent of all farm cash receipts (crops available in the continental United organizations, and small governmental and livestock) and 17 percent of crop States, and little change in the jurisdictions. receipts. Similarly, the U.S. fruit and movement of fruits and vegetables from tree nuts industry is an important Description of the Rreasons Why Action Hawaii and the territories; effects on component of the U.S. farm sector. It by APHIS is Being Considered U.S. producers, marketers, and consumers are expected to be small. The generated over $12 billion in U.S. farm This proposed rule would revise and main provision of this proposed rule cash receipts annually in the early reorganize the regulations pertaining to represents a structural revision of the 2000s, averaging 6 percent of all farm the interstate movement of fruits and regulations pertaining to the movement cash receipts and 12 percent of all crop vegetables from Hawaii, Puerto Rico, the of fruits and vegetables from Hawaii, receipts. U.S. Virgin Islands, CNMI, and Guam to The typical American annually Puerto Rico, the U.S. Virgin Islands, consolidate requirements of general consumes over 280 pounds of fruit and Guam, and CNMI, and establishes a new applicability and eliminate redundant process for approving commodities for tree nuts (fresh and processed products) requirements, update terms and remove movement into the continental United each year, ranking third in per capita outdated requirements and references, States. However, those commodity consumption of major food groups, next and make various editorial and movement requests most likely to to dairy and vegetables. Annual per nonsubstantive changes to the qualify for the notice-based process are capita consumption of all vegetables regulations to make them easier to use. specialty crops having limited markets. and melons rose 4 percent from 1991– It would also establish criteria within The proposed rule would not alter the 93 to 2001–03, reaching 440 pounds as the regulations that, if met, would allow conditions that apply to currently fresh consumption increased and APHIS to approve certain fruits and approved fruits or vegetables. processed fell. Consumer expenditures vegetables for interstate movement and Of particular note with respect to the for fruit and vegetables are growing to acknowledge pest-free areas in approval process, the change would faster than for any food group other than Hawaii and U.S. territories without allow a newly approved commodity to meats. Increased domestic and world undertaking rulemaking. These changes move more quickly into commerce to supplies, rising disposable incomes, and would simplify the regulations and the benefit of consumers and Hawaiian a growing and more culturally diverse expedite the APHIS processes for and territorial producers once it has population will continue to expand approving certain regulated articles for been determined that the commodity consumer demand for fruits and interstate movement and pest-free areas can be safely moved interstate subject to vegetables in the United States over the while continuing to allow for public one or more designated risk next decade. Another important participation in the process. management measures. This proposal, stimulus is continued emphasis on Objectives of, and Legal Basis for, the itself, would not allow for the interstate health and nutrition. The fruit and Proposed Rule movement of any specific fruits or vegetable industries have been very vegetables, nor would it alter the active in promoting the health benefits By eliminating the need for specific conditions for interstate movement of of fruit and vegetable consumption. prior rulemaking for commodities for currently approved fruits or vegetables Hawaii and the U.S. territories are which the notice-based process would except as specifically described in the important sources of fresh fruits and be appropriate, considerable time proposed rule. These proposed changes vegetables for the rest of the United savings could be reaped. The current would not alter the manner in which the States. In 2002, 666 Hawaiian farms process for approving fruits and risk associated with a commodity produced more than $55 million in vegetables for interstate movement takes interstate movement request is vegetables, melons, potatoes, and sweet a notable period of time, ranging on evaluated, nor would it alter the manner potatoes, equal to about 10 percent of average from 18 months to 3 years in which those risks are ultimately total Hawaiian agricultural sales; and (beginning with the initial request and mitigated. Consumers would have 2,582 Hawaiian farms produced more ending with the publication of a final quicker access to some fruits and than $179 million in fruits, tree nuts, rule). vegetables, while risks would still be and berries, accounting for more than 33 Consumers benefit from the ability to evaluated and appropriate mitigations percent of total Hawaiian agricultural purchase fruits and vegetables from a required, as they are currently. sales. In 2002, Hawaii ranked seventh wide variety of sources. Many of the The requirements of the Regulatory among the States in the production of commodities that are likely to be Flexibility Act (5 U.S.C. 601 et seq.) for fruits, tree nuts, and berries, and 28th in covered by this rule are niche products, this rulemaking are met through the the production of vegetables, melons, unavailable or limited in availability in following analysis. The economic effects potatoes and sweet potatoes. Hawaii’s the continental United States. This rule of approving specific commodities for growers of tropical specialty fruit would allow producers in Hawaii and interstate movement using the produced and sold an estimated 1.5 the U.S. territories to more quickly meet streamlined approach would not be million pounds of fresh fruit in 2005, continental U.S. consumer demand for analyzed at the time of their approval, according to the USDA’s National those niche products. In addition, since such approval would occur Agricultural Statistics Services (NASS) climate causes most fruit and vegetable without additional rulemaking. Hawaii field office. This amount was production in the continental United

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States to be seasonal, with the largest Based on the information that is decisionmaking. Therefore this harvests occurring during the summer available, the effects of this rule should alternative was rejected. and fall. Speeding up the process of be small whether the entity affected is Future Analyses approving the interstate movement of small or large. Those commodity fruits and vegetables from Hawaii and interstate movement requests most If this proposed rule is adopted as a the U.S. territories would allow likely to qualify for the notice-based final rule, the requirements of Executive continental supplies to be more quickly process would be for specialty crops Order 12866 or the Regulatory supplemented, especially of fresh with limited markets. This proposal Flexibility Act will be met through the products during the winter; increased would merely allow certain analyses that accompany the final rule. choices for consumers and more commodities to move more quickly into The economic effects of the interstate markets for producers would occur interstate commerce to the benefit of movement of the specific commodities sooner than under the rulemaking consumers and Hawaiian and territorial that are approved using the streamlined process. producers, once it has been determined approach would not be analyzed at the The Plant Protection Act (7 U.S.C. that the commodity can be safely moved point of approval, since such approval 7701 et seq.) gives authority to the subject to one or more designated risk would occur without additional Secretary of Agriculture to prohibit or management measures. Hence, we rulemaking. restrict the importation, entry, expect little impact on the total volume Executive Order 12372 exportation, or movement in interstate of U.S. fruits and vegetables, or on U.S. commerce of any plant, plant product, producers, marketers, and consumers. This program/activity is listed in the biological control organism, noxious Nevertheless, we invite public Catalog of Federal Domestic Assistance weed, article, or means of conveyance if comment on the proposed rule, under No. 10.025 and is subject to the Secretary determines that the including any comment on the expected Executive Order 12372, which requires prohibition or restriction is necessary to impacts for small entities, and on how intergovernmental consultation with prevent the introduction of a plant pest the proposed rule could be modified to State and local officials. (See 7 CFR part or noxious weed within the United reduce expected costs or burdens for 3015, subpart V.) States. The Secretary has delegated this small entities consistent with its Executive Order 12988 authority to the APHIS Administrator. objectives. Any comment suggesting changes to the proposed criteria should This proposed rule has been reviewed Description and Estimate of the Number under Executive Order 12988, Civil of Small Entities to Which the Proposed be supported by an explanation of why the changes should be considered. Justice Reform. If this proposed rule is Rule Will Apply adopted: (1) State and local laws and Those entities most likely to be Description of the Projected Reporting, regulations will not be preempted; (2) economically affected by the rule are Recordkeeping, and Other Compliance no retroactive effect will be given to this wholesalers and producers of fruits and Requirements for Small Entities rule; and (3) administrative proceedings vegetables. The Small Business The proposed rule contains, under the will not be required before parties may Administration (SBA) has established heading ‘‘Paperwork Reduction Act,’’ a file suit in court challenging this rule. guidelines for determining which description of the information collection National Environmental Policy Act establishments are to be considered and recordkeeping requirements small. A firm primarily engaged in associated with the proposed rule. The majority of the regulatory changes wholesaling fresh fruits and vegetables proposed in this document are Duplication, Overlap, or Conflict With is considered small if it employs not nonsubstantive, and would therefore Other Federal Rules more than 100 persons. In 2002, about have no effects on the environment. 95 percent (4,044 of 4,244) of fresh fruit APHIS has not identified any However, this proposal, if adopted, and vegetable wholesalers in the United duplication, overlap, or conflict of the would allow APHIS to approve certain States were small by SBA standards.5 proposed rule with other Federal rules. new articles for interstate movement without undertaking rulemaking. All types of fruit and vegetable farms are Description of Any Significant Despite the fact that those fruits and considered small if they have annual Alternatives to the Proposed Rule receipts of $0.75 million or less. With vegetable imports would no longer be some exceptions, vegetable and melon An alternative to this rule would be contingent on the completion of farms are largely individually owned to simply continue under APHIS’ rulemaking, the requirements of the and relatively small, with two-thirds current process for authorizing the National Environmental Policy Act of harvesting fewer than 25 acres. In 2002, interstate movement of fruits and 1969 (NEPA), as amended (42 U.S.C. between 80 and 84 percent of U.S. vegetables. In this case, we would 4321 et seq.), would still apply. As such, vegetable and melon farms were continue to list all newly approved for each additional regulated article considered small. Similarly, although fruits and vegetables in the regulations approved for interstate movement, numbers have declined, fruit and tree through notice-and-comment APHIS would make available to the nut production is still dominated by rulemaking. A notice-based procedure public documentation related to our small, family, or individually run farm has been implemented by APHIS for analysis of the potential environmental operations. In 2002, between 92 and 95 approving imports and is working effects of the interstate movement of percent of all fruit and tree nut farms successfully, and we believe a similar new regulated articles. This were considered small.6 process for approving the interstate documentation would likely be made movement of certain articles would be available at the same time and via the 5 2002 Economic Census. Department of appropriate. Thus, we believe that same Federal Register notice as the risk Commerce. U.S. Bureau of the Census. North maintaining the current process for all analysis for the proposed article. American Industry Classification system (NAICS) regulated articles is unnecessary. We Category 424480; Fresh fruit & Vegetables believe that the new approach would Paperwork Reduction Act wholesalers. 6 2002 Census of Agriculture, USDA–NASS. enable us to be more responsive to In accordance with section 3507(d) of NAICS Categories–1112: Vegetable and melon interstate movement requests while the Paperwork Reduction Act of 1995 farming; 1113: Fruit and tree nut farming. maintaining transparent (44 U.S.C. 3501 et seq.), the information

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collection or recordkeeping (2) Evaluate the accuracy of our Accordingly, we propose to amend 7 requirements included in this proposed estimate of the burden of the proposed CFR parts 305 and 318 as follows: rule have been submitted for approval to information collection, including the the Office of Management and Budget validity of the methodology and PART 305–PHYTOSANITARY (OMB). Please send written comments assumptions used; TREATMENTS to the Office of Information and (3) Enhance the quality, utility, and 1. The authority citation for part 305 Regulatory Affairs, OMB, Attention: clarity of the information to be continues to read as follows: Desk Officer for APHIS, Washington, DC collected; and 20503. Please state that your comments (4) Minimize the burden of the Authority: 7 U.S.C. 7701–7772 and 7781– 7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, refer to Docket No. APHIS–2007–0052. information collection on those who are 2.80, and 371.3. Please send a copy of your comments to: to respond (such as through the use of (1) Docket No. APHIS–2007–0052, appropriate automated, electronic, 2. In § 305.17, paragraph (a) is revised Regulatory Analysis and Development, mechanical, or other technological to read as follows: PPD, APHIS, Station 3A–03.8, 4700 collection techniques or other forms of § 305.17 Authorized treatments; River Road Unit 118, Riverdale, MD information technology; e.g., permitting exceptions. 20737–1238, and (2) Clearance Officer, electronic submission of responses). (a) Quick freeze is an authorized OCIO, USDA, room 404–W, 14th Street Estimate of burden: Public reporting treatment for all fruits and vegetables and Independence Avenue, SW., burden for this collection of information imported into the United States or Washington, DC 20250. A comment to is estimated to average 0.4280 hour per moved interstate from Hawaii, Puerto OMB is best assured of having its full response. Rico, Guam, the Commonwealth of the effect if OMB receives it within 30 days Respondents: Wholesalers and Northern Mariana Islands, or the U.S. of publication of this proposed rule. producers of fruits and vegetables, State Virgin Islands, except for those fruits APHIS is proposing to revise and officials. and vegetables listed in paragraph (b) of reorganize the regulations pertaining to Estimated annual number of this section. Quick freeze for fruits and the interstate movement of fruits and respondents: 600. vegetables imported into the United vegetables to consolidate requirements Estimated annual number of States or moved interstate from Hawaii, of general applicability and eliminate responses per respondent: 33.6666. Puerto Rico, Guam, the Commonwealth redundant requirements, update terms Estimated annual number of of the Northern Mariana Islands, or the and remove outdated requirements and responses: 20,200. U.S. Virgin Islands must be conducted references, and make various editorial Estimated total annual burden on in accordance with § 319.56–12 of this and nonsubstantive changes to the respondents: 8,646 hours. (Due to subchapter for imported fruits and regulations to make them easier to use. averaging, the total annual burden hours vegetables and § 318.13–13 of this APHIS is also proposing to make may not equal the product of the annual subchapter for fruits and vegetables substantive changes to the regulations number of responses multiplied by the moved interstate. including: Establishing criteria within reporting burden per response.) * * * * * the regulations that, if met, would allow Copies of this information collection us to approve certain new fruits and can be obtained from Mrs. Celeste § 305.34 [Amended] vegetables for interstate movement in Sickles, APHIS’s Information Collection In § 305.34, paragraph (b)(2)(iii) is the United States and to acknowledge Coordinator, at (301) 851–2908. amended by removing the citation pest-free areas in Hawaii and U.S. E-Government Act Compliance ‘‘§ 318.13–4(d)’’ and adding the citation territories expeditiously; and doing ‘‘§ 318.13–3(d)’’ in its place. away with the practice of listing in the The Animal and Plant Health regulations specific commodities as Inspection Service is committed to PART 318—HAWAIIAN AND regulated articles. These changes are compliance with the E-Government Act TERRITORIAL QUARANTINE NOTICES to promote the use of the Internet and intended to simplify and expedite our 3. The authority citation for part 318 other information technologies, to processes for approving certain continues to read as follows: regulated articles for interstate provide increased opportunities for movement and pest-free areas while citizen access to Government Authority: 7 U.S.C. 7701–7772 and 7781– continuing to allow for the public information and services, and for other 7786; 7 CFR 2.22, 2.80, and 371.3. participation in the processes. purposes. For information pertinent to 4. Subpart-Hawaiian Fruits, Implementing this rule will E-Government Act compliance related Vegetables, and Flowers, consisting of necessitate the use of limited permits, to this proposed rule, please contact §§ 318.13 through 318.13–17, is transit permits, compliance agreements, Mrs. Celeste Sickles, APHIS’s removed and a new Subpart—Regulated and additional information collection Information Collection Coordinator, at Articles From Hawaii and the procedures such as inspection/ (301) 851–2908. Territories, §§ 318.13–1 through 318.13– 25, is added to read as follows: certification, labeling, and trapping Lists of Subjects surveillance. Subpart—Regulated Articles From Hawaii We are soliciting comments from the 7 CFR Part 305 and the Territories public (as well as affected agencies) Irradiation, Phytosanitary treatment, Sec. concerning our proposed information Plant diseases and pests, Quarantine, 318.13–1 Notice of quarantine. collection and recordkeeping Reporting and recordkeeping 318.13–2 Definitions. requirements. These comments will requirements. 318.13–3 General requirements for all help us: regulated articles. (1) Evaluate whether the proposed 7 CFR Part 318 318.13–4 Approval of certain fruits and vegetables for interstate movement. information collection is necessary for Cotton, Cottonseeds, Fruits, Guam, 318.13–5 Pest-free areas. the proper performance of our agency’s Hawaii, Plant diseases and pests, Puerto 318.13–6 Transit of regulated articles from functions, including whether the Rico, Quarantine, Transportation, Hawaii or the territories into or through information will have practical utility; Vegetables, Virgin Islands. the continental United States.

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318.13–7 Products as ships’ stores or in the gravel, sawdust, wood shavings, cork a compliance agreement for the possession of passengers or crew. shavings, sphagnum moss, tree fern slab interstate movement of regulated 318.13–8 Articles and persons subject to (approved only for orchids), and articles to a specified destination for: inspection. vegetable fiber (free of pulp) including (1) Consumption, limited utilization 318.13–9 Inspection and disinfection of coconut and osmunda, but excluding or processing, or treatment; or means of conveyance. (2) Movement into or through the 318.13–10 Inspection of baggage, other cotton and sugarcane. personal effects, and cargo. Certification (certified). A type of continental United States in conformity 318.13–11 Posting of warning notice and authorization, issued by an inspector, with a transit permit. distribution of baggage declarations. evidencing freedom from infestation, to Lot. A number of units of a single 318.13–12 Movement by the U.S. allow the movement of certain regulated commodity, identifiable by its Department of Agriculture. articles in accordance with the homogeneity of composition and origin, 318.13–13 Movement of frozen fruits and regulations in this subpart. ‘‘Certified’’ forming all or part of a consignment. vegetables. shall be construed accordingly. Means of conveyance. A ship, truck, 318.13–14 Movement of processed fruits, Commercial consignment. A lot of aircraft, or railcar. vegetables, and other products. fruits or vegetables that an inspector Moved (move and movement). 318.13–15 Parcel post inspection. identifies as having been produced for Shipped, offered for shipment to a 318.13–16 Regulated articles allowed common carrier, received for interstate movement subject to specified sale or distribution in mass markets. conditions. Such identification will be based on a transportation or transported by a 318.13–17 Regulated articles from Guam. variety of indicators, including, but not common carrier, or carried, transported, 318.13–18 through 318.13–20 [Reserved] limited to: Quantity of produce, type of moved, or allowed to be moved, directly 318.13–21 Avocados from Hawaii to packaging, identification of grower and or indirectly, from Hawaii, Puerto Rico, Alaska. packinghouse on the packaging, and Guam, the Commonwealth of the 318.13–22 Bananas from Hawaii. documents consigning the fruits or Northern Marina Islands, or the U.S. 318.13–23 Cut flowers from Hawaii. vegetables to a wholesaler or retailer. Virgin Islands into or through the 318.13–24 Sweetpotatoes from Puerto Rico. Compliance agreement. Any continental United States or any other 318.13–25 Sweetpotatoes from Hawaii. agreement to comply with stipulated State or territory of the United States (or Subpart—Regulated Articles From conditions as prescribed under from or into or through other places as Hawaii and the Territories § 318.13–3 or § 318.13–4 of this subpart specified in this subpart). (‘‘Move’’ and or § 305.34 of this chapter, executed by ‘‘movement’’ shall be construed § 318.13–1 Notice of quarantine. any person to facilitate the interstate accordingly.) (a) Under the authority of section 412 movement of regulated articles under Packing materials. Any plant or plant of the Plant Protection Act, the this subpart. product, soil, or other substance Secretary of Agriculture may prohibit or Continental United States. The 48 associated with or accompanying any restrict the movement in interstate contiguous States, Alaska, and the commodity or consignment to serve for commerce of any plant or plant product District of Columbia. filling, wrapping, ties, lining, mats, if the Secretary determines that the Cut flower. Any cut blooms, fresh moisture retention, protection, or any prohibition or restriction is necessary to foliage, and dried decorative plant other auxiliary purpose. The word prevent the introduction into the United material customarily used in the florist ‘‘packing,’’ as used in the expression States or the dissemination within the trade and not planting; and being the ‘‘packing materials,’’ includes the United States of a plant pest or noxious severed portion of a plant, including the presence of such materials within, in weed. inflorescence, and any parts of the plant contact with, or accompanying a (b) The Secretary has determined that attached thereto, in a fresh state. consignment. it is necessary to prohibit the interstate Disinfection (disinfect and Person. Any individual, partnership, movement of cut flowers and fruits and disinfected). The application to parts or corporation, association, joint venture, vegetables and plants and portions of all of a ship, vessel, other surface craft, or other legal entity. plants from Hawaii, Puerto Rico, the or aircraft of a treatment that may be Plant debris. Detached leaves, twigs, U.S. Virgin Islands, Guam, and the designated by the inspector as effective or other portions of plants, or plant litter Commonwealth of the Northern Mariana against such plant pests as may be or rubbish as distinguished from Islands except as provided in this present. (‘‘Disinfect’’ and ‘‘disinfected’’ approved parts of clean fruits and subpart. shall be construed accordingly.) vegetables, or other commercial articles. Fruits and vegetables. A commodity Plant pests. Any living stage of any of § 318.13–2 Definitions. class for fresh parts of plants intended the following that can directly or Administrator. The Administrator of for consumption or processing and not indirectly injure, cause damage to, or the Animal and Plant Health Inspection planting. cause disease in any plant or plant Service (APHIS), U.S. Department of Inspector. A State agricultural product: A protozoan, nonhuman Agriculture, or any other employee of inspector or any individual authorized animal, parasitic plant, bacterium, APHIS to whom authority has been by the Administrator of APHIS or the fungus, virus or viroid, infectious agent delegated to act in the Administrator’s Commissioner of Customs and Border or other pathogen, or any article similar stead. Protection, Department of Homeland to or allied with any of those articles. Animal and Plant Health Inspection Security, to enforce the regulations in Regulated articles. Fruits or Service. The Animal and Plant Health this subpart. vegetables in the raw or unprocessed Inspection Service (APHIS) of the U.S. Interstate. From one State into or state; cut flowers; seeds; and plants or Department of Agriculture. through any other State; or within the plant products for nonpropagative or Approved growing media. Agar or District of Columbia, Guam, the Virgin propagative use. other translucent tissue culture media, Islands of the United States, or any Sealed (sealable) container. A buckwheat hulls, clean ocean sand, other territory or possession of the completely enclosed container designed excelsior, exfoliated vermiculite, ground United States. for the storage and/or transportation of cork, ground peat, ground rubber, paper, Limited permit. A document issued by commercial air, sea, rail, or truck cargo, polymer stabilized cellulose, quarry an inspector or a person operating under and constructed of metal or fiberglass,

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or other similarly sturdy and (b) Certification. Certification may be entering the compliance agreement must impenetrable material, providing an issued for the movement of regulated agree to the following: enclosure accessed through doors that articles under the following conditions: (1) That he or she will use any permit are closed and secured with a lock or (1) Certification on basis of inspection or certification issued to him or her in seal. Sealed (sealable) containers used or nature of lot involved. Regulated accordance with the provisions in the for sea consignments are distinct and articles may be certified when they have permit, the requirements in this subpart, separable from the means of conveyance been inspected by an inspector and and the compliance agreement; carrying them when arriving in and in found apparently free from infestation (2) That he or she will maintain at his transit through the continental United and infection, or without such or her establishment such safeguards States. Sealed (sealable) containers used inspection when the inspector against the establishment and spread of for air consigments are distinct and determines that the lot for consignment infestation and infection and comply separable from the means of conveyance is of such a nature that no danger of with such conditions as to the carrying them before any transloading in infestation or infection is involved. maintenance of identity, handling the continental United States. Sealed (i) Persons intending to move any (including post-treatment handling), (sealable) containers used for air articles that may be certified must and interstate movement of regulated consignments after transloading in the contact the local Plant Protection and articles and the cleaning and treatment continental United States or for Quarantine office as far as possible in of means of conveyance and containers overland consignments in the advance of the contemplated date of used in such movement of the articles, continental United States may either be shipment in order to request an as may be required by the inspector in distinct and separable from the means of inspection. each specific case to prevent the spread conveyance carrying them, or be the (ii) Persons intending to move any of infestation or infection; and means of conveyance itself. articles that may be certified must (3) That he or she will allow inspectors to inspect the establishment Soil. The loose surface material of the prepare, handle, and safeguard such articles from infestation or reinfestation, and its operations. earth in which plants grow, in most (e) Attachment of limited permit or cases consisting of disintegrated rock and assemble them at such points as the inspector may designate, placing them verification of certification. Except as with an admixture of organic material otherwise provided for certain air cargo and soluble salts. so that inspection may be readily made. (2) Certification on basis of treatment. and containerized cargo on ships moved State. Each of the 50 States of the (i) Regulated articles for which in accordance with § 318.13–10, each United States, the District of Columbia, treatments are approved in part 305 of box, bale, crate, or other container of Guam, the Commonwealth of the this chapter may be certified if such regulated articles moved under Northern Mariana Islands, Puerto Rico, treatments have been applied in certification or limited permit shall have the U.S. Virgin Islands, and all other accordance with part 305 of this chapter the limited permit attached to the territories and possessions of the United and if the articles were handled after outside of the container or bear a U.S. Department of Agriculture stamp or States. such treatment in accordance with a inspection sticker verifying that the Transit permit. A written compliance agreement executed by the consignment has been certified in authorization issued by the applicant for certification or under the accordance with paragraph (b) of this Administrator for the movement of supervision of an inspector. section: Provided, That if a limited fruits and vegetables en route to a (ii) Regulated articles certified after permit or certification is issued for a foreign destination that are otherwise treatment in accordance with part 305 of consignment of more than one container prohibited movement by this subpart this chapter that are taken aboard any or for bulk products, certification shall into the continental United States. ship, vessel, other surface craft, or be stamped on or the limited permit Transit permits authorize one or more aircraft must be segregated and shall be attached to the accompanying consignments over a designated period protected in a manner as required by the of time. waybill, manifest, or bill of lading. inspector. (f) Withdrawal of certification, transit Transloading. The transfer of cargo (c) Limited permits. (1) Limited 1 permits, limited permits, or compliance from one sealable container to another, permits may be issued by an inspector agreements. Any certification, transit from one means of conveyance to for the movement of certain noncertified permit, limited permit, or compliance another, or from a sealable container regulated articles to restricted agreement which has been issued or directly into a means of conveyance. destinations. authorized may be withdrawn by an (2) Limited permits may be issued by United States. All of the States of the inspector orally or in writing, if such an inspector for the movement of United States, the Commonwealth of inspector determines that the holder regulated articles that would otherwise Northern Mariana Islands, the thereof has not complied with all be prohibited movement under this Commonwealth of Puerto Rico, the conditions under the regulations for the subpart, if the articles are to be moved District of Columbia, Guam, the U.S. use of such document. If the in accordance with § 318.13–6. Virgin Islands, and all other territories cancellation is oral, the decision and the (3) Except when the regulations and possessions of the United States. reasons for the withdrawal shall be specify that an inspector must issue the confirmed in writing as promptly as § 318.13–3 General requirements for all limited permit, limited permits may be circumstances allow. Any person whose regulated articles. issued by a person operating under a certification, transit permit, limited compliance agreement. All regulated articles that are allowed permit, or compliance agreement has (d) Compliance agreements. As a movement under this subpart must be been withdrawn may appeal the condition for the movement of regulated moved in accordance with the following decision in writing to the Administrator articles for which a compliance requirements, except as specifically within 10 days after receiving the agreement is required, the person provided otherwise in this subpart. written notification of the withdrawal. (a) Freedom from plant debris. All 1 Limited permits can be obtained from each State The appeal shall state all of the facts regulated articles moved under this or territory’s local Plant Protection and Quarantine and reasons upon which the person subpart must be free from plant debris. office. relies to show that the certification,

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transit permit, limited permit, or measures cited in paragraph (b) of this before [Insert effective date of final compliance agreement was wrongfully section to certain fruits and vegetables rule], except as provided in paragraph withdrawn. The Administrator shall mitigates the risk posed by those (d) of this section. The interstate grant or deny the appeal, in writing, commodities, and that such articles may movement conditions for those fruits stating the reasons for such decision, as be moved interstate subject to one or and vegetables that were authorized promptly as circumstances allow. If more of those measures, as provided in movement under this subpart subject to there is a conflict as to any material fact, paragraphs (c) and (d) of this section. additional measures beyond the a hearing shall be held to resolve such The name and origin of all fruits and designated measures in paragraph (b) of conflict. Rules of practice concerning vegetables authorized movement under this section can be found in § 318.13–16 such a hearing will be adopted by the this section, as well as the applicable or one of the commodity-specific Administrator. requirements for their movement, may sections in this subpart. (g) Container marking and identity. be found on the Internet at http:// (2) Other fruits and vegetables. Fruits Except as provided in § 318.13–6(c), www.aphis.usda.gov/import_export/ and vegetables that do not meet the consignments of regulated articles plants/manuals/ports/downloads/ criteria in paragraph (c)(1) of this moved in accordance with this subpart hawaii.pdf or http:// section may be authorized movement must have the following information www.aphis.usda.gov/import_export/ under this section as follows: clearly marked on each container or on plants/manuals/ports/downloads/ (i) Pest risk analysis. The risk posed the waybill, manifest, or bill of lading puerto_rico.pdf. Fruits or vegetables that by the particular article from a specified accompanying the articles: Nature and require phytosanitary measures other State has been evaluated and publicly quantity of contents; name and address than one or more of the designated communicated as follows: of shipper, owner, or person shipping or phytosanitary measures cited in (A) Availability of pest risk analysis. forwarding the articles; name and paragraph (b) of this section may only APHIS published in the Federal address of consignee; shipper’s be moved in accordance with applicable Register, for a public comment period of identifying mark and number; and the requirements in § 318.13–3 and 60 days, a notice announcing the certification stamp or number of the regulated article-specific requirements availability of a pest risk analysis that limited permit authorizing movement, if contained elsewhere in this subpart. evaluated the risks associated with the one was issued. (b) Designated phytosanitary movement of the particular fruit or (h) Refusal of movement. An measures. (1) The fruits and vegetables vegetable. inspector may refuse to allow the are inspected in the first State of arrival. (B) Determination of risk; factors interstate movement of a regulated (2) The fruits and vegetables considered. The Administrator article if the inspector finds that the originated from a pest-free area in the determined, and announced in the regulated article is prohibited, is not State of origin and the grower from notice referred to in the previous accompanied by required which the fruit or vegetable originated paragraph, that, based on the documentation, is so infested with a has entered into a compliance information available, the application of plant pest or noxious weed that, in the agreement with the Administrator. one or more of the designated judgment of the inspector, it cannot be (3) The fruits and vegetables are phytosanitary measures described in cleaned or treated, or contains soil or treated in accordance with part 305 of paragraph (b) of this section is sufficient other prohibited contaminants. this chapter and the treatment is to mitigate the risk that plant pests or (i) Costs and charges. Services of the certified by an inspector. noxious weeds could be introduced into inspector during regularly assigned (4) The fruits and vegetables articles or disseminated elsewhere within the hours of duty at the usual places of duty are inspected and certified in the State United States by the fruit or vegetable. shall be furnished without cost to the of origin by an inspector and have been In order for the Administrator to make one requesting such services. APHIS found free of one or more specific the determination described in this will not assume responsibility for any quarantine pests identified by risk paragraph, he or she must conclude costs or charges, other than those analysis as likely to follow the pathway. based on the information presented in indicated in this section, in connection (5) The fruits and vegetables are the risk analysis for the fruit or with the inspection, treatment, moved as commercial consignments vegetable that the risk posed by each conditioning, storage, forwarding, or only. quarantine pest associated with the fruit (6) The fruits and vegetables may be any other operation of any character or vegetable in the State of origin is distributed only within a defined area incidental to the physical movement of mitigated by one or more of the and the boxes or containers in which regulated articles or plant pests. following factors: (j) APHIS not responsible for damage. the fruit or vegetables are distributed (1) Inspection. A quarantine pest is APHIS assumes no responsibility for must be marked to indicate the associated with the fruit or vegetable in any damage to regulated articles that applicable distribution restrictions. the State of origin, but the pest can be (c) Fruits and vegetables authorized results from the application of treatment easily detected via inspection in the for interstate movement under this or other measures required under this State of first arrival; section. (2) Pest freedom. No quarantine pests subpart (or under part 305 of this (1) Previously approved fruits and are known to be associated with the chapter) to protect against the vegetables. Fruits and vegetables that fruit or vegetable in the State of origin, dissemination of plant pests within the were authorized movement under this or a quarantine pest is associated with United States. subpart either administratively or by (Approved by the Office of Management and the fruit or vegetable in the State of Budget under control number 0579–0088) specific regulation as of [Insert effective origin but the fruit or vegetable date of final rule] and that were subject originates from an area that meets the § 318.13–4 Approval of certain fruits and only to one or more of the designated requirements of § 318.13–5 for pest vegetables for interstate movement. phytosanitary measures cited in freedom; (a) Determination by the paragraph (b) of this section and the (3) Effectiveness of treatment. A Administrator. The Administrator has general requirements of § 318.13–3 may quarantine pest is associated with the determined that the application of one continue to be moved interstate under fruit or vegetable in the State of origin, or more of the designated phytosanitary the same requirements that applied but the risk posed by the pest can be

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reduced by applying an approved post- only be moved interstate if the area of (1) Labeling. Each box of fruits or harvest treatment to the fruit or origin is free of all plant pests that vegetables that is moved interstate from vegetable; attack the fruits or vegetables. In other a pest-free area under this subpart must (4) Predeparture inspection. A cases, fruits or vegetables may be moved be clearly labeled with: quarantine pest is associated with the interstate if the area of origin is free of (i) The name of the orchard or grove fruit or vegetable in the State of origin, one or more plant pests that attack the of origin, or the name of the grower; and but the fruit or vegetable is subject to fruit or vegetable and the risk posed by (ii) The name of the municipality and predeparture inspection; the remaining plant pests that attack the State or territory in which the fruits or (5) Commercial consignments. A fruit or vegetable is mitigated by other vegetables were produced; and quarantine pest is associated with the specific phytosanitary measures (iii) The type and amount of fruits or fruit or vegetable in the State of origin, contained in the regulations in this vegetables the box contains. but the risk posed by the pest can be subpart. (2) Compliance agreement. Persons reduced by commercial practices. (a) Application of standards for pest- wishing to move fruits or vegetables (6) Limited distribution. A quarantine free areas. APHIS will make a from a pest-free area in Hawaii, Puerto pest is associated with the fruit or determination of an area’s pest-free Rico, Guam, the Commonwealth of the vegetable in the State of origin, but the status based on information provided by Northern Mariana Islands, or the U.S. risk posed by the pest can be reduced the State. The information used to make Virgin Islands must enter into a by limiting distribution of the fruit or this determination will include trapping compliance agreement with APHIS in vegetable and labeling boxes containing and surveillance data, survey protocols, accordance with § 318.13–3(d). the fruit or vegetable with those and protocols for actions to be (3) Safeguarding. If fruits or distribution instructions. performed upon detection of a pest. vegetables are moved from a pest-free (ii) Administrator’s decision. The (b) Survey protocols. APHIS must area into or through an area that is not Administrator will announce his or her approve the survey protocol used to free of that pest, the fruits or vegetables decision in a subsequent Federal determine and maintain pest-free status, must be safeguarded during the time Register notice. If appropriate, APHIS as well as protocols for actions to be they are present in a non-pest-free area would begin allowing the interstate performed upon detection of a pest. by being covered with insect-proof mesh movement of the fruits or vegetables Pest-free areas are subject to audit by screens or plastic tarpaulins, including subject to requirements specified in the APHIS to verify their status. while in transit to the packinghouse and notice because: (c) Determination of pest freedom. (1) while awaiting packaging. If fruits or (A) No comments were received on For an area to be considered free of a vegetables are moved through an area the pest risk analysis; specified pest for the purposes of this that is not free of that pest during transit (B) The comments on the pest risk subpart, the Administrator must to a port, they must be packed in insect- analysis revealed that no changes to the determine, and announce in a notice proof cartons or containers or be pest risk analysis were necessary; or published in the Federal Register for 60 covered by insect-proof mesh or plastic (C) Changes to the pest risk analysis days public comment, that the area tarpaulins during transit to the port and were made in response to public meets the criteria of paragraphs (a) and subsequent movement into or through comments, but the changes did not (b) of this section. the United States. These safeguards affect the overall conclusions of the (2) The Administrator will announce described in this section must remain analysis and the Administrator’s his or her decision in a subsequent intact until the fruits or vegetables reach determination of risk. Federal Register notice. If appropriate, their final destination. (d) Amendment of interstate APHIS will allow movement of the § 318.13–6 Transit of regulated articles movement requirements. If, after [Insert regulated article from a pest-free area from Hawaii or the territories into or effective date of final rule], the because: through the continental United States. Administrator determines that one or (i) No comments were received on the Fruits and vegetables from Hawaii, more of the designated phytosanitary notice or Puerto Rico, Guam, the Commonwealth measures is not sufficient to mitigate the (ii) The comments on the notice did of the Northern Mariana Islands, or the risk posed by any fruit or vegetable not affect the overall conclusions of the U.S. Virgin Islands that are otherwise authorized interstate movement under notice and the Administrator’s prohibited interstate movement into the this section, APHIS will prohibit or determination of risk. continental United States by this (d) Decertification of pest-free areas; further restrict the interstate movement subpart may transit the continental reinstatement. If a pest is detected in an of the fruit or vegetable pending United States en route to a foreign area that is designated as free of that resolution of the situation. If APHIS destination when moved in accordance pest, APHIS will publish in the Federal concludes that a permanent change to with this section. the interstate movement requirements of Register a notice announcing that the (a) Transit permit. (1) A transit permit a particular fruit or vegetable is pest-free status of the area in question is required for the arrival, unloading, necessary, APHIS will also publish a has been withdrawn and that interstate and movement through the continental notice in the Federal Register advising movement of host crops for the pest in United States of fruits and vegetables the public of its finding. The notice will question is subject to application of an otherwise prohibited by this subpart specify the amended interstate approved treatment for the pest. If a from being moved through the movement requirements, provide an treatment for the pest is not available, continental United States from Hawaii, effective date for the change, and invite interstate movement of the host crops Puerto Rico, Guam, the Commonwealth public comment on the subject. would be prohibited. In order for a of the Northern Mariana Islands, or the decertified pest-free area to be § 318.13–5 Pest-free areas. U.S. Virgin Islands. Application for a reinstated, it would have to meet the transit permit may be made in writing Certain fruits or vegetables may be criteria of paragraphs (a) through (c) of or with PPQ Form 586.2 The transit moved interstate provided that the fruits this section. or vegetables originate from an area that (e) General requirements for the 2 PPQ Form 586 can be obtained from PPQ Permit is free of a specific pest or pests. In interstate movement of regulated Services or at http://www.aphis.usda.gov/ some cases, fruits or vegetables may articles from pest-free areas. Continued

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permit application must include the copy of which must be presented to an vegetables shipped under this section is following information: inspector at the port of arrival and the limited to a corridor that includes all (i) The specific types of fruits and port of export in the continental United States of the continental United States vegetables to be shipped (only scientific States, and at any other location in the except Alabama, Arizona, California, or English common names are continental United States where an air Florida, Georgia, Kentucky, Louisiana, acceptable); consignment is authorized to stop or Mississippi, Nevada, New Mexico, (ii) The means of conveyance to be where overland consignments change North Carolina, South Carolina, used to transport the fruit or vegetable means of conveyance. An inspector will Tennessee, Texas, and Virginia, except through the continental United States; issue a limited permit if the following that movement is allowed through (iii) The port of arrival in the conditions are met: Dallas/Fort Worth, TX, as an authorized continental United States, and the (1) The inspector determines that the stop for air cargo, or as a transloading location of any subsequent stop; specific type and quantity of the fruits location for consignments that arrive by (iv) The location of, and the time or vegetables being shipped are air but that are subsequently needed for, any storage in the accurately described by accompanying transloaded into trucks for overland continental United States; documentation, such as the movement from Dallas/Fort Worth, TX, (v) Any location in the continental accompanying manifest, waybill, and into the designated corridor by the United States where the fruits or bill of lading. (Only scientific or English shortest route. Movement through the vegetables are to be transloaded; names are acceptable.) The fruits or United States must begin and end at (vi) The means of conveyance to be vegetables shall be assembled at locations staffed by APHIS inspectors. used for transporting the fruits or whatever point and in whatever manner (f) Movement of regulated articles. vegetables from the port of arrival in the the inspector designates as necessary to Transportation through the continental continental United States to the port of comply with the requirements of this United States shall be by the most direct export; section; and route to the final destination of the (vii) The estimated time necessary to (2) The inspector establishes that the consignment in the country to which it accomplish exportation, from arrival at consignment of fruits or vegetables has is exported, as determined by APHIS the port of arrival in the continental been prepared in compliance with the based on commercial shipping routes United States to exit at the port of provisions of this section. and timetables and set forth in the export; (c) Marking requirements. Each of the transit permit. No change in the (viii) The port of export; and smallest units, including each of the quantity of the original consignment (ix) The name and address of the smallest bags, crates, or cartons, from that described in the limited applicant and, if the applicant’s address containing regulated articles for transit permit is allowed. No remarking is is not within the territorial limits of the through the continental United States allowed. No diversion or delay of the continental United States, the name and under this section must be consignment from the itinerary address in the continental United States conspicuously marked, prior to the described in the transit permit and of an agent whom the applicant names locking and sealing of the container in limited permit is allowed unless for acceptance of service of process. the State of origin, with a printed label authorized by an APHIS inspector upon (2) A transit permit will be issued that includes a description of the determination by the inspector that the only if the following conditions are met: specific type and quantity of the fruits change will not significantly increase (i) APHIS inspectors are available at or vegetables (only scientific or English the risk of plant pests or diseases in the the port of arrival, port of export, and common names are acceptable), the United States, and unless each port to any locations at which transloading of transit permit number under which the which the consignment is diverted is cargo will take place and, in the case of regulated articles are to be shipped, and, staffed by APHIS inspectors. air consignments, at any interim stop in in English, the State in which they were (g) Notification in case of emergency. the continental United States, as grown and the statement ‘‘Distribution In the case of an emergency such as an indicated on the application for the in the United States is Prohibited.’’ accident, a mechanical breakdown of transit permit; (d) Handling of fruits and vegetables. the means of conveyance, or an (ii) The application indicates that the Fruits or vegetables shipped through the unavoidable deviation from the proposed movement would comply United States from Hawaii, Puerto Rico, prescribed route, the person in charge of with the provisions in this section Guam, the Commonwealth of the the means of conveyance must, as soon applicable to the transit permit; and Northern Mariana Islands, or the U.S. as practicable, notify the APHIS office at (iii) During the 12 months prior to Virgin Islands in accordance with this the port where the cargo arrived in the receipt of the application by APHIS, the section may not be commingled in the United States. applicant has not had a transit permit same sealed container with fruits or (h) Consignments by sea. Except as withdrawn under § 318.13–3(f), unless vegetables that are intended for entry authorized by this paragraph, the transit permit has been reinstated and distribution in the United States. consignments arriving in the United upon appeal. The fruits or vegetables must be kept in States by sea from Hawaii, Puerto Rico, (b) Limited permit. Fruits or sealed containers from the time the Guam, the Commonwealth of the vegetables shipped from Hawaii, Puerto limited permit required by paragraph (b) Northern Mariana Islands, or the U.S. Rico, Guam, the Commonwealth of the of this section is issued, until the fruits Virgin Islands may be transloaded once Northern Mariana Islands, or the U.S. or vegetables exit the United States, from a ship to another ship or, Virgin Islands through the continental except as otherwise provided in the alternatively, once to a truck or railcar United States under this section must be regulations in this section. Transloading at the port of arrival and once from a accompanied by a limited permit, a must be carried out in accordance with truck or railcar to a ship at the port of the requirements of paragraphs (a), (h), export, and must remain in the original plant_health/permits/transit.shtml. Applications and (i) of this section. sealed container, except under for transit permits should be submitted to USDA, (e) Area of movement. The port of extenuating circumstances and when APHIS, PPQ Permit Services, 4700 River Road Unit 136, Riverdale, MD 20737 or through e-permits arrival, the port of export, ports for air authorized by an inspector upon http://www.aphis.usda.gov/permits/ stops, and overland movement within determination by the inspector that the learn_epermits.shtml. the continental United States of fruits or transloading would not significantly

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increase the risk of the introduction of authorized by APHIS for only one being used to export fruits or vegetables plant pests or diseases into the United additional stop in the continental from the United States under this States, and provided that APHIS United States, provided the second stop section must ensure that the means of inspectors are available to provide is within the designated corridor set conveyance or container is free of supervision. No other transloading of forth in paragraph (e) of this section and materials prohibited importation into the consignment is allowed, except is staffed by APHIS inspectors. As an the United States under this chapter. under extenuating circumstances (e.g., alternative to transloading a (m) Authorization by APHIS of the equipment breakdown) and when consignment arriving in the United movement of fruits or vegetables authorized by an inspector upon States into another aircraft, through the United States under this determination by the inspector that the consignments that arrive by air may be section does not imply that such fruits transloading would not significantly transloaded into a truck trailer for or vegetables are enterable into the increase the risk of the introduction of export by the most direct route to the destination country. Consignments plant pests or diseases into the final destination of the consignment returned to the United States from the continental United States, and provided through the designated corridor set forth destination country shall be subject to that APHIS inspectors are available to in paragraph (e) of this section. This all applicable regulations, including provide supervision. may be done at either the port of arrival ‘‘Subpart—Fruits and Vegetables’’ of (i) Consignments by air. (1) in the United States or at the second part 319 and ‘‘Plant Quarantine Consignments arriving in the United authorized air stop within the Safeguard Regulations’’ of part 352 of States by air from Hawaii, Puerto Rico, designated corridor. No other this chapter. Guam, the Commonwealth of the transloading of the consignment is (n) Any restrictions and requirements Northern Mariana Islands, or the U.S. allowed, except under extenuating with respect to the arrival, temporary Virgin Islands may be transloaded only circumstances (e.g., equipment stay, unloading, transloading, transiting, once in the United States. Transloading breakdown) and when authorized by an exportation, or other movement or of air consignments must be carried out APHIS inspector upon determination by possession in the United States of any in the presence of an APHIS inspector. the inspector that the transloading fruits or vegetables under this section Consignments arriving by air that are would not significantly increase the risk shall apply to any person who brings transloaded may be transloaded either of the introduction of plant pests or into, maintains, unloads, transloads, into another aircraft or into a truck diseases into the United States, and transports, exports, or otherwise moves trailer for export by the most direct provided that APHIS inspectors are or possesses in the United States such route to the final destination of the available to provide supervision. fruits or vegetables, whether or not that consignment through the designated (j) Duration and location of storage. person is the one who was required to corridor set forth in paragraph (e) of this Any storage in the United States of have a transit permit or limited permit section. This may be done at either the fruits or vegetables shipped under this for the fruits or vegetables or is a port of arrival in the United States or at section must be for a duration and in a subsequent custodian of the fruits or the second air stop within the location authorized in the transit permit vegetables. Failure to comply with all designated corridor, as authorized in the required by paragraph (a) of this section. applicable restrictions and requirements transit permit and as provided in Areas where such fruits or vegetables under this section by such a person paragraph (i)(2) of this section. No other are stored must be either locked or shall be deemed to be a violation of this transloading of the consignment is guarded at all times the fruits and section. allowed, except under extenuating vegetables are present. Cargo shipped (Approved by the Office of Management and circumstances (e.g., equipment under this section must be kept in a Budget under control number 0579–0088) breakdown) and when authorized by an sealed container while stored in the APHIS inspector upon determination by continental United States. § 318.13–7 Products as ships’ stores or in the possession of passengers or crew. the inspector that the transloading (k) Temperature requirement. Except would not significantly increase the risk for time spent on aircraft and except (a) In the possession of passengers or of the introduction of plant pests or during storage and transloading of air crew members. Small quantities of diseases into the United States, and consignments, the temperature in the fruits, vegetables, or cut flowers subject provided that APHIS inspectors are sealed containers containing fruits and to the quarantine and regulations in this available to provide supervision. vegetables moved under this section subpart, when loose and free of packing ° Transloading of air consignments will must be 60 F or lower from the time the materials, may be taken aboard any be authorized only if the following regulated articles leave Hawaii, Puerto ship, vessel, or other surface craft by conditions are met: Rico, Guam, the Commonwealth of the passengers or members of the crew (i) The transloading is done into Northern Mariana Islands, the U.S. without inspection and certification in sealable containers; Virgin Islands, or any other territory or the State of origin. However, if such (ii) The transloading is carried out possession of the United States until articles are not eligible for certification within the secure area of the airport they exit the United States. under § 318.13–3, they must be entirely (i.e., that area of the airport that is open (l) Prohibited materials. (1) The consumed or disposed of before arrival only to personnel authorized by the person in charge of or in possession of within the territorial waters of the airport security authorities); a sealed container used for movement continental United States, Hawaii, (iii) The area used for any storage is into or through the United States under Puerto Rico, Guam, the Commonwealth within the secure area of the airport; this section must ensure that the sealed of the Northern Mariana Islands, or the and container is carrying only those fruits or U.S. Virgin Islands. (iv) APHIS inspectors are available to vegetables authorized by the transit (b) As ships’ stores or decorations. provide the supervision required by permit required under paragraph (a) of Fruits, vegetables, or cut flowers subject paragraph (i)(1) of this section. this section; and to the quarantine and regulations in this (2) Except as authorized by paragraph (2) The person in charge of or in subpart may be taken aboard a ship, (f) of this section, consignments that possession of any means of conveyance vessel, or other surface craft in Hawaii, continue by air from the port of arrival or container returned to the United Puerto Rico, Guam, the Commonwealth in the continental United States may be States without being reloaded after of the Northern Mariana Islands, or the

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U.S. Virgin Islands without inspection inspect the aircraft upon the aircraft’s passenger, the nature of the or certification. Fruits, vegetables, and arrival in Guam. identification presented for cut flowers that are so taken aboard (c) Inspection of ships upon arrival. corroboration, the nature of the such a carrier must be either: Any person who has moved a ship or violation, the types of articles involved, (1) Entirely consumed or removed other ocean-going craft from Hawaii, and the date, time, and place of the from the ship, vessel, or other surface Puerto Rico, Guam, the Commonwealth violation. craft before arrival within the territorial of the Northern Mariana Islands, or the (b) Offer for inspection by aircraft waters of the continental United States, U.S. Virgin Islands to any other State crew. Aircraft crew members destined Hawaii, Puerto Rico, Guam, the shall contact an inspector and offer the for movement by aircraft from Hawaii, Commonwealth of the Northern Mariana inspector the opportunity to inspect the Puerto Rico, Guam, the Commonwealth Islands, the U.S. Virgin Islands, or any ship or other ocean-going craft upon its of the Northern Mariana Islands, or the other territory or possession of the arrival. U.S. Virgin Islands to any other State, United States; or (d) Disinfection of means of shall offer their baggage and personal (2) In the case of a surface carrier, conveyance. If an inspector finds that a effects for inspection at the inspection retained aboard such carrier under seal means of conveyance is infested with or station designated for the employing or otherwise disposed of subject to contains plant pests, and the inspector airline not less than 20 minutes prior to safeguards equivalent to those imposed orders disinfection of the means of the scheduled departure time of the on other prohibited or restricted conveyance, then the person in charge aircraft or the rescheduled departure products by paragraphs (b) and (c) of or in possession of the means of time as posted in the public areas of the § 352.10 of this chapter. conveyance shall disinfect the means of airport. When an inspector has conveyance and its cargo in accordance inspected and passed such baggage or § 318.13–8 Articles and persons subject to with an approved method contained in personal effects, he or she shall apply a inspection. part 305 of this chapter under the U.S. Department of Agriculture stamp, Persons, means of conveyance supervision of an inspector and in a inspection sticker, or other (including ships, other ocean-going manner prescribed by the inspector, identification to the baggage or personal craft, and aircraft), baggage, cargo, and prior to any movement of the means of effects to indicate that such baggage or any other articles, that are destined for conveyance or its cargo. personal effects have been inspected movement, are moving, or have been and passed as required. Aircraft crew moved from Hawaii, Puerto Rico, Guam, § 318.13–10 Inspection of baggage, other personal effects, and cargo. members shall disclose any fruits, the Commonwealth of the Northern vegetables, plants, plant products, or Mariana Islands, or the U.S. Virgin (a) Offer for inspection by aircraft other articles that are requested to be Islands to a destination elsewhere in the passengers. Passengers destined for disclosed by the inspector. When an United States are subject to agricultural movement by aircraft from Hawaii, inspection of a crew member’s baggage inspection at the port of departure, the Puerto Rico, Guam, the Commonwealth or personal effects discloses an article in port of arrival, or any other authorized of the Northern Mariana Islands, or the violation of the regulations in this part, port. If an inspector finds any article U.S. Virgin Islands to any other State the inspector shall seize the article. The prohibited movement by the quarantine shall offer their carry-on baggage and crew member shall state his or her name and regulations of this subpart, he or other personal effects for inspection at and address to the inspector, and she, taking the least drastic action, shall the place marked for agricultural provide the inspector with corroborative order the return of the article to the inspections, which will be located at the identification. The inspector shall place of origin, or the exportation of the airport security checkpoint or the record the name and address of the crew article, under safeguards satisfactory to aircraft boarding gate, at the time they member, the nature of the identification him or her, or otherwise dispose of it, pass through the checkpoint or the gate. presented for corroboration, the nature in whole or part, to comply with the Passengers shall offer their check-in of the violation, the types of articles quarantine and regulations of this baggage for inspection at agricultural involved, and the date, time, and place subpart. inspection stations prior to submitting of the violation. their baggage to the check-in baggage (c) Baggage inspection for persons § 318.13–9 Inspection and disinfection of facility. When an inspector has traveling to Guam on aircraft. No person means of conveyance. inspected and passed such baggage or who has moved from Hawaii, Puerto (a) Inspection of aircraft prior to personal effects, he or she shall apply a Rico, or the U.S. Virgin Islands to Guam departure. No person shall move any U.S. Department of Agriculture stamp, on an aircraft shall remove or attempt to aircraft from Hawaii, Puerto Rico, inspection sticker, or other remove any baggage or other personal Guam, the Commonwealth of the identification to such baggage or effects from the area secured for Northern Mariana Islands, or the U.S. personal effects to indicate that such customs inspections before the person Virgin Islands to any other State unless baggage or personal effects have been has offered to an inspector, and has had the person moving the aircraft has inspected and passed as required. passed by the inspector, his or her contacted an inspector and offered the Passengers shall disclose any fruits, baggage and other personal effects. inspector the opportunity to inspect the vegetables, plants, plant products, or Persons shall disclose any fruits, aircraft prior to departure and the other articles that are requested to be vegetables, plants, plant products, or inspector has informed the person disclosed by the inspector. When an other articles that are requested to be proposing to move the aircraft that the inspection of a passenger’s baggage or disclosed by the inspector. When an aircraft may depart. personal effects discloses an article in inspection of a person’s baggage or (b) Inspection of aircraft moving to violation of the regulations in this part, personal effects discloses an article in Guam. Any person who has moved an the inspector shall seize the article. The violation of the regulations in this part, aircraft from Hawaii, Puerto Rico, the passenger shall state his or her name the inspector shall seize the article. The Commonwealth of the Northern Mariana and address to the inspector, and person shall state his or her name and Islands, or the U.S. Virgin Islands to provide the inspector with corroborative address to the inspector, and provide Guam shall contact an inspector and identification. The inspector shall the inspector with corroborative offer the inspector the opportunity to record the name and address of the identification. The inspector shall

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record the name and address of the inspection sticker, or unless a limited declarations shall be executed and person, the nature of the identification permit is attached to the cargo as signed by the passengers and shall be presented for corroboration, the nature specified in § 318.13–3(e). collected and delivered by the master or of the violation, the types of articles (2) Cargo designated may be loaded other responsible officer of the aircraft, involved, and the date, time, and place without a U.S. Department of ship, vessel, or other surface craft to the of the violation. Agriculture stamp or inspection sticker inspector on arrival at the quarantine or (d) Baggage acceptance and loading attached to the cargo or a limited permit inspection area. on aircraft. No person shall accept or attached to the cargo if the cargo is (b) Every person owning or load any check-in aircraft baggage moved: controlling any dock, harbor, or landing destined for movement from Hawaii, (i) As containerized cargo on ships or field in Hawaii, Puerto Rico, Guam, the Puerto Rico, Guam, the Commonwealth other oceangoing craft or as air cargo; Commonwealth of Northern Mariana of the Northern Mariana Islands, or the (ii) The carrier has on file Islands, or the U.S. Virgin Islands from U.S. Virgin Islands to any other State documentary evidence that a valid which ships, vessels, other surface craft, unless the baggage bears a U.S. limited permit was issued for the or aircraft leave for ports in any other Department of Agriculture stamp, movement or that the cargo was State shall post, and keep posted at all inspection sticker, or other indication certified; and times, in one or more conspicuous applied by an inspector representing (iii) A notation of the existence of places in passenger waiting rooms on or that the baggage has been inspected and these documents is made by the carrier in said dock, harbor, or landing field a certified. on the waybill, manifest, or bill of warning notice directing attention to the (e) Offer for inspection by persons lading that accompanies the quarantine and regulations in this moving by ship. No person who has consignment. subpart. Every master, or other moved on any ship or other oceangoing (3) Cargo moved in accordance with responsible officer of any ship, vessel, craft from Hawaii, Puerto Rico, Guam, § 318.13–6(b) that does not have a other surface craft, or aircraft leaving the Commonwealth of the Northern limited permit attached to the cargo Hawaii, Puerto Rico, Guam, the Mariana Islands, or the U.S. Virgin must have a limited permit attached to Commonwealth of the Northern Mariana Islands to any other territory, State, or the waybill, manifest, or bill of lading Islands, or the U.S. Virgin Islands District of the United States, shall accompanying the consignment. destined to a port in any other State, remove or attempt to remove any (g) Removal of certain cargoes in shall similarly post, and keep posted at baggage or other personal effects from Guam. No person shall remove or all times, such a warning notice in the the designated inspection area as attempt to remove from a designated ship, vessel, other surface craft, or provided in paragraph (h) of this section inspection area as provided in aircraft under his charge. on or off the ship or other ocean-going paragraph (h) of this section, on or off craft unless the person has offered to an the means of conveyance, any cargo § 318.13–12 Movement by the U.S. Department of Agriculture. inspector for inspection, and has had moved from Hawaii, Puerto Rico, the passed by the inspector, the baggage and Commonwealth of the Northern Mariana Notwithstanding any other other personal effects. Persons shall Islands, or the U.S. Virgin Islands to restrictions of this subpart, regulated disclose any fruits, vegetables, plants, Guam containing fruits, vegetables, or articles may be moved if they are moved plant products, or other articles that are other articles regulated under this by the U.S. Department of Agriculture requested to be disclosed by the subpart, unless the cargo has been for experimental or scientific purposes inspector. When an inspection of a inspected and passed by an inspector in and are moved under conditions found by the Administrator to be adequate to person’s baggage or personal effects Guam. discloses an article in violation of the (h) Space and facilities for baggage prevent the spread of plant pests and regulations in this part, the inspector and cargo inspection. Baggage and cargo diseases. shall seize the article. The person shall inspection will not be performed until § 318.13–13 Movement of frozen fruits and state his or her name and address to the the person in charge or possession of the vegetables. inspector, and provide the inspector ship, other oceangoing craft, or aircraft Frozen fruits and vegetables may be with corroborative identification. The provides space and facilities on the certified for movement from Hawaii, inspector shall record the name and means of conveyance, pier, or airport Puerto Rico, Guam, the Commonwealth address of the person, the nature of the that are adequate, in the inspector’s of the Northern Mariana Islands, or the identification presented for judgment, for the performance of U.S. Virgin Islands, into or through any corroboration, the nature of the inspection. other territory, State, or District of the violation, the types of articles involved, United States in accordance with and the date, time, and place of the § 318.13–11 Posting of warning notice and distribution of baggage declarations. § 318.13–3. Such fruits and vegetables violation. must be held at a temperature not higher (f) Loading of certain cargoes. (1) (a) Before any aircraft or any ship, than 20 °F during shipping and upon Except as otherwise provided in vessel, or other surface craft moving to arrival in the continental United States, paragraph (f)(2) of this section, no Guam, the Commonwealth of Northern and in accordance with the person shall present to any common Mariana Islands, or American Samoa requirements for the interstate carrier or contract carrier for movement, from Hawaii or any other territory or movement of frozen fruits and and no common carrier or contract possession of the United States arrives vegetables in part 305 of this chapter. carrier shall load, any cargo containing in Guam, the Commonwealth of Paragraph (b) of § 305.17 lists frozen fruits, vegetables, or other articles Northern Mariana Islands, or American fruits and vegetables for which quick regulated under this subpart that are Samoa, a baggage declaration, to be freezing is not an authorized treatment. destined for movement from Hawaii, furnished by the U.S. Department of Puerto Rico, Guam, or the U.S. Virgin Agriculture, calling attention to the § 318.13–14 Movement of processed fruits, Islands to any other State unless the provisions of the Plant Protection Act, vegetables, and other products. cargo has been offered for inspection, and the quarantine and regulations in (a) Fruits, vegetables, and other passed by an inspector, and bears a U.S. this subpart, must be distributed to each products that are processed sufficiently Department of Agriculture stamp or adult passenger. These baggage as to preclude the survival of any live

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pests can be moved interstate from requirements which apply to the fruit, subpart, to examine any such products Hawaii, Puerto Rico, the U.S. Virgin vegetable, or other product in its that are found for insect infestation, and Islands, Guam, and the Commonwealth unprocessed state. to notify the postmaster in writing of of the Northern Mariana Islands. Those any violations of this subpart that are § 318.13–15 Parcel post inspection. processed products which are approved found as a result of an inspection. Inspectors are authorized to inspect, for interstate movement from those with the cooperation of the U.S. Postal § 318.13–16 Regulated articles allowed States can be found in the fruits and Service, parcel post packages placed in interstate movement subject to specified vegetables manuals for those States. the mails in Hawaii, Puerto Rico, Guam, conditions. (b) Consignments of processed fruits, the Commonwealth of the Northern (a) The following regulated articles vegetables, or other products that have Mariana Islands, or the U.S. Virgin may be moved interstate in accordance not been processed sufficiently as to be Islands to determine whether such with § 318.13–3 and any additional incapable of harboring fruit flies, are packages contain products whose requirements specified in paragraph (b) subject to the interstate movement movement is not authorized under this of this section.

State, territory, or district of Common name Botanical name Plant part(s) Additional requirements origin

Hawaii ...... Bananas1 ...... Musa spp...... Fruit ...... (b)(1)(i), (b)(2)(ii) Pot marigold, johnny-jump-ups, Calendula spp...... Flower ...... (b)(2)(iii) pansies, and violets. Pineapple 2 ...... Ananas comosus ...... Fruit ...... (b)(2)(i) Puerto Rico ...... Cactus ...... Cactaceae ...... Whole plant...... (b)(2)(iv), (b)(3)(ii) Okra ...... Abelmoschus escuelentus ...... Fruit ...... (b)(3)(i) Pot marigold, johnny-jump-ups, Calendula spp...... Flower ...... (b)(2)(iii) pansies, and violets. U.S. Virgin Is- Cactus ...... Cactaceae ...... Whole plant...... (b)(2)(iv), (b)(3)(ii) lands. Okra ...... Abelmoschus escuelentus ...... Fruit ...... (b)(3)(i) Pot marigold, johnny-jump-ups, Calendula spp...... Flower ...... (b)(2)(iii) pansies, and violets. 1 Fruit may also be moved interstate in accordance with § 318.13–17. 2 Fruit may also be moved interstate with treatment in accordance with part 305 of this chapter.

(b) Additional restrictions for § 318.13–17 Regulated articles from Guam. them under this subpart, and shall be applicable regulated articles as specified (a)(1) Regulated articles, other than subject to release, in accordance with in paragraph (a) of this section. soil, may be moved from Guam into or § 330.105(a) of this chapter as if they (1) Restricted movement and through any other State only if, they were foreign arrivals. Such articles shall distribution. meet the strictest plant quarantine be released only if they meet all (i) Allowed movement into Alaska. requirements under part 319 of this applicable requirements under this Cartons must be labeled, ‘‘For chapter for similar articles offered for subpart. distribution in Alaska only.’’ entry into such States from the countries (2) A release shall be issued in writing (ii) [Reserved] of East and Southeast Asia, including unless the inspection involves small (2) Plant types. Cambodia, India, Japan, Korea, Laos, the quantities of regulated articles, in which (i) Smooth cayenne variety and northeastern provinces of Manchuria, case a release may be issued orally by hybrids with 50 percent or more smooth the Philippines, Taiwan, and Vietnam the inspector. cayenne parentage only. or the islands of the Central and South (ii) Green bananas of the cultivars §§ 318.13–18 through 318.13–20 Pacific, including Micronesia, [Reserved] ‘‘Williams,’’ ‘‘Valery,’’ ‘‘Grand Nain,’’ Melanesia, and Polynesia, as well as and standard and dwarf ‘‘Brazilian’’ Australia, New Zealand, and the Malay § 318.13–21 Avocados from Hawaii to only. Alaska. Archipelago, except requirements for (iii) Inflorescences only with no stems Avocados may be moved interstate or leaves attached. permits, phytosanitary certificates, notices of arrival, and notices of from Hawaii to Alaska without (iv) Bare-rooted plants or plants treatment only under the following rooted in approved growing media only. consignment from port of arrival. Soil must meet the requirements of § 330.300 conditions: (3) Other conditions. (a) Distribution and marking of this chapter. (i) If destined to States other than requirements. The avocados may be Alabama, Arizona, Arkansas, California, (2) Regulated articles that do not meet moved interstate for distribution in Florida, Georgia, Illinois, Kentucky, the requirements of paragraph (a)(1) of Alaska only, the boxes of avocados must Louisiana, Mississippi, Missouri, this section are prohibited movement be clearly marked with the statement Nevada, New Mexico, North Carolina, from Guam into or through any other ‘‘Distribution limited to the State of Oklahoma, South Carolina, Tennessee, State. Alaska,’’ and the consignment must be Texas, or Virginia, the consignment (b)(1) Regulated articles moved from identified in accordance with the must be treated in accordance with part Guam into or through any other State requirements of § 318.13–3. 305 of this chapter unless the shall be subject to inspection at the port (b) Commercial consignments. The consignment is for immediate of first arrival in another part of the avocados may be moved in commercial consumption or processing. United States to determine whether they consignments only. (ii) Must be treated in accordance are free of plant pests and otherwise (c) Packing requirements. The with part 305 of this chapter. meet the requirements applicable to avocados must have been sealed in the

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packinghouse in Hawaii in boxes with § 318.13–22 Bananas from Hawaii. of the green scale (Coccus viridis) and a seal that will break if the box is (a) Green bananas (Musa spp.) of the the banana moth (Opogona sacchari opened. cultivars ‘‘Williams,’’ ‘‘Valery,’’ ‘‘Grand (Bojen)) before or after undergoing (d) Ports. The avocados may enter the Nain,’’ and standard and dwarf irradiation treatment. continental United States only at the ‘‘Brazilian’’ may be moved interstate (3) Untreated bananas from Hawaii following ports: Portland, OR; Seattle, from Hawaii with certification in may be moved interstate for treatment WA; or any port in Alaska. accordance with § 318.13–3 of this on the mainland United States under a (e) Shipping requirements. The subpart if the bananas meet the limited permit issued by an inspector. avocados must be moved either by air or following conditions:3 To be eligible for a limited permit under ship and in a sealed container. The (1) The bananas must be picked while this paragraph, bananas from Hawaii avocados may not be commingled in the green and packed for shipment within must be inspected prior to interstate same sealed container with articles that 24 hours after harvest. If the green movement from Hawaii and found free are intended for entry and distribution bananas will be stored overnight during of banana moth if they are to be treated in any State other than Alaska. If the that 24-hour period, they must be stored in accordance with the requirements of avocados arrive at either Portland, OR, in a facility that prevents access by fruit paragraph (b)(1) of this section or or Seattle, WA, they may be transloaded flies; inspected and found free of banana only under the following conditions: (2) No bananas from bunches moth and green scale if they are to be (1) Consignments by sea. The containing prematurely ripe fingers (i.e., treated in accordance with the avocados may be transloaded from one individual yellow bananas in a cluster requirements of paragraph (b)(2) of this ship to another ship at the port of of otherwise green bananas) may be section. arrival, provided they remain in the harvested or packed for shipment; original sealed container and that (3) The bananas must be inspected by § 318.13–23 Cut flowers from Hawaii. APHIS inspectors supervise the an inspector and found free of plant (a) Except for cut blooms and leis of transloading. If the avocados are stored pests as well as any of the following mauna loa and jade vine and except for before reloading, they must be kept in defects: Prematurely ripe fingers, fused cut blooms of gardenia not grown in the original sealed container and must fingers, or exposed flesh (not including accordance with paragraph (b) of this be in an area that is either locked or fresh cuts made during the packing section, cut flowers may be moved guarded at all times the avocados are process); and interstate from Hawaii under limited (4) To safeguard from fruit fly present. permit, to a destination specified in the infestation, the bananas must be covered (2) Consignments by air. The permit, directly from an establishment with insect proof packaging, such as avocados may be transloaded from one operated in accordance with the terms insect-proof mesh screens or plastic aircraft to another aircraft at the port of of a compliance agreement executed by tarpaulins, from the time that they are arrival, provided the following the operator of the establishment, if the packaged for shipment until they reach conditions are met: articles have not been exposed to the port of arrival on the mainland (i) The transloading is done into infestation and they are not sealable containers; United States. (b) Bananas of any cultivar or ripeness accompanied by any articles prohibited (ii) The transloading is carried out that do not meet the conditions of interstate movement under this subpart. within the secure area of the airport paragraph (a) of this section may also be (b) Cut blooms of gardenia may be (i.e., that area of the airport that is open moved interstate from Hawaii in moved interstate from Hawaii if grown only to personnel authorized by the accordance with the following and inspected in accordance with the airport security authorities); 4 conditions: provisions of this section. (iii) The area used for any storage of (1) The bananas are irradiated at the (1) The grower’s production area must the consignment is within the secure minimum dose listed in § 305.31(a) of be inspected annually by an inspector area of the airport, and is either locked this chapter and in accordance with the and found free of green scale. If green or guarded at all times the avocados are other requirements in § 305.34 of this scale is found during an inspection, a 2- present. The avocados must be kept in chapter for the Mediterranean fruit fly month ban will be placed on the a sealed container while stored in the (Ceratitis capitata), the melon fruit fly interstate movement of cut blooms of continental United States en route to (Bactrocera curcurbitae), the Oriental gardenia from that production area. Alaska; and fruit fly (Bactrocera dorsalis), and the Near the end of the 2 months, an (iv) APHIS inspectors supervise the green scale (Coccus viridis) and are inspector will reinspect the grower’s transloading. inspected, after removal from the stalk, production area to determine whether (3) Exceptions. No transloading other in Hawaii and found to be free of the green scale is present. If reinspection than that described in paragraphs (e)(1) banana moth (Opogona sacchari determines that the production area is and (e)(2) of this section is allowed (Bojen)) by an inspector before or after free of green scale, shipping may except under extenuating circumstances undergoing irradiation treatment; or resume. If reinspection determines that (such as equipment breakdown) and (2) The bananas are irradiated at the green scale is still present in the when authorized and supervised by an minimum dose listed in § 305.31(a) of production area, another 2-month ban APHIS inspector. this chapter and in accordance with the on shipping will be placed on the (f) Limited permit. Consignments of other requirements in § 305.34 of this interstate movement of gardenia from avocados must be accompanied by a chapter for the Mediterranean fruit fly that production area. Each ban will be limited permit issued by an APHIS (Ceratitis capitata), the melon fruit fly followed by reinspection in the manner inspector in accordance with § 318.13– (Bactrocera curcurbitae), and the specified, and the production area must 3(c). The limited permit will be issued Oriental fruit fly (Bactrocera dorsalis) be found free of green scale prior to only if the inspector examines the and are inspected, after removal from interstate movement. consignment and determines that the the stalk, in Hawaii and found to be free consignment has been prepared in 4 Cut blooms of gardenia are also eligible for compliance with the provisions of this 3 Bananas from Hawaii may also be moved to interstate movement with treatment in accordance section. Alaska under § 318.13–16. with part 305 of this chapter.

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(2) The grower must establish a buffer § 318.13–25 Sweetpotatoes from Hawaii. (5)(i) Certification on basis of area surrounding gardenia production (a) Sweetpotatoes may be moved treatment. Certification shall be issued areas. The buffer area must extend 20 interstate from Hawaii in accordance by an inspector for the movement of feet from the edge of the production with this section only if the following sweetpotatoes from Hawaii that have area. Within the buffer area, the growing conditions are met: 5 been treated in accordance with part of gardenias and the following green (1) The sweetpotatoes must be treated 305 of this chapter and handled in scale host plants is prohibited: Ixora, in accordance with the vapor heat Hawaii in accordance with this section. ginger (Alpinia purpurata), plumeria, treatment schedule specified in (ii) Limited permit. A limited permit coffee, rambutan, litchi, guava, citrus, § 305.24. shall be issued by an inspector for the anthurium, avocado, banana, cocoa, (2) The sweetpotatoes must be interstate movement of untreated macadamia, celery, Pluchea indica, sampled, cut, and inspected and found sweetpotato from Hawaii for treatment mango, orchids, and annona. to be free of the ginger weevil on the mainland United States in (3) An inspector must visually inspect (Elytrotreinus subtruncatus). Sampling, accordance with this section. the cut blooms of gardenias in each cutting, and inspection must be (b) [Reserved] performed under conditions that will consignment prior to interstate (Approved by the Office of Management and movement from Hawaii to the mainland prevent any pests that may emerge from Budget under control number 0579–0281) United States. If the inspector does not the sampled sweetpotatoes from detect green scale in the consignment, infesting any other sweetpotatoes Subpart—Fruits and Vegetables From intended for interstate movement in the inspector will certify the Puerto Rico or Virgin Islands accordance with this section. consignment in accordance with [Removed] (3) The sweetpotatoes must be § 318.13–3(b). If the inspector finds inspected and found to be free of the 5. Subpart—Fruits and Vegetables green scale in a consignment, that gray pineapple mealybug (Dysmicoccus From Puerto Rico or Virgin Islands, consignment will be ineligible for neobrevipes) and the Kona coffee-root consisting of §§ 318.58 through 318.58– interstate movement from Hawaii. knot nematode (Meloidogyne 16, is removed. (Approved by the Office of Management konaensis). and Budget under control number 0579– (4)(i) Sweetpotatoes that are treated in Subpart—Guam [Removed] 0197) Hawaii must be packaged in the 6. Subpart—Guam, consisting of § 318.13–24 Sweetpotatoes from Puerto following manner: §§ 318.82 through 318.82–3, is removed. Rico. (A) The cartons must have no openings that will allow the entry of Done in Washington, DC, this 10th day of Sweetpotatoes from Puerto Rico may fruit flies and must be sealed with seals June 2008. be moved interstate to Atlantic Coast that will visually indicate if the cartons Kevin Shea, ports north of and including Baltimore, have been opened. They may be Acting Administrator, Animal and Plant MD, under limited permit if treated in constructed of any material that Health Inspection Service. accordance with part 305 of this chapter prevents the entry of fruit flies and [FR Doc. E8–13480 Filed 6–16–08; 8:45 am] or if the following conditions are met: prevents oviposition by fruit flies into BILLING CODE 3410–34–P (a) The sweetpotatoes must be the fruit in the carton.6 certified by an inspector of Puerto Rico (B) The pallet-load of cartons must be as having been grown under the wrapped before it leaves the treatment DEPARTMENT OF TRANSPORTATION following conditions: facility in one of the following ways: (1) Fields in which the sweetpotatoes (1) With polyethylene sheet wrap; Federal Aviation Administration have been grown must have been given (2) With net wrapping; or a preplanting treatment with an APHIS- (3) With strapping so that each carton 14 CFR Part 39 approved soil insecticide. on an outside row of the pallet load is constrained by a metal or plastic strap. [Docket No. FAA–2008–0657; Directorate (2) Before planting in such treated (C) Packaging must be labeled with Identifier 2007–NM–296–AD] fields, the sweetpotato draws and vine treatment lot numbers, packing and RIN 2120–AA64 cuttings must have been dipped in an treatment facility identification and APHIS-approved insecticidal solution. location, and dates of packing and Airworthiness Directives; Airbus Model (3) During the growing season an treatment. A300, A310, and A300–600 Series approved insecticide must have been (ii) Cartons of untreated sweetpotatoes Airplanes applied to the vines at prescribed that are moving to the mainland United intervals. States for treatment must be shipped in AGENCY: Federal Aviation Administration (FAA), Department of (b) An inspector of Puerto Rico must shipping containers sealed prior to Transportation (DOT). certify that the sweetpotatoes have been interstate movement with seals that will washed. visually indicate if the shipping ACTION: Notice of proposed rulemaking (NPRM). (c) The sweetpotatoes must be graded containers have been opened. by inspectors of Puerto Rico in SUMMARY: The FAA proposes to 5 Sweetpotatoes may also be moved interstate accordance with Puerto Rican standards from Hawaii with irradiation in accordance with supersede an existing airworthiness which do not provide a tolerance for § 305.34 of this chapter or after fumigation with directive (AD) that applies to certain insect infestation or evidence of insect methyl bromide according to treatment schedule T– Airbus Model A300, A310, and A300– injury and found by such inspectors to 101–b–3–1, as provided for in § 305.6(a) of this 600 series airplanes. The existing AD comply with such standards prior to chapter. 6 If there is a question as to the adequacy of a currently requires repetitive detailed movement from Puerto Rico. carton, send a request for approval of the carton, visual inspections to detect cracks in the (d) The sweetpotatoes must be together with a sample carton, to the Animal and pylon thrust and sideload fitting of the inspected by an inspector and found to Plant Health Inspection Service, Plant Protection wing, and replacement of any cracked and Quarantine, Center for Plant Health Science be free of the sweetpotato scarabee and Technology, 1730 Varsity Drive, Suite 400, pylon thrust and sideload fitting with a (Euscepes postfasciatus Fairm). Raleigh, NC 27606. new fitting. This proposed AD would

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reduce the threshold and repetitive Examining the AD Docket consider all comments received by the intervals for the detailed inspection for You may examine the AD docket on closing date and may amend this certain airplanes and would reduce the the Internet at http:// proposed AD because of those applicability of the existing AD. This www.regulations.gov; or in person at the comments. proposed AD results from issuance of Docket Management Facility between We will post all comments we mandatory continuing airworthiness 9 a.m. and 5 p.m., Monday through receive, without change, to http:// information by a foreign civil Friday, except Federal holidays. The AD www.regulations.gov, including any airworthiness authority. We are docket contains this proposed AD, the personal information you provide. We proposing this AD to detect and correct regulatory evaluation, any comments will also post a report summarizing each cracks in the pylon thrust and sideload received, and other information. The substantive verbal contact we receive fitting of the wing, which could result about this proposed AD. in reduced structural integrity of the street address for the Docket Office airplane. (telephone 800–647–5527) is in the Discussion ADDRESSES section. Comments will be DATES: We must receive comments on available in the AD docket shortly after On July 24, 1998, we issued AD 98– this proposed AD by July 17, 2008. receipt. 16–11, amendment 39–10687 (63 FR ADDRESSES: You may send comments by FOR FURTHER INFORMATION CONTACT: 40816, July 31, 1998), for certain Airbus any of the following methods: Vladimir Ulyanov, Aerospace Engineer, Model A300, A310, and A300–600 • Federal eRulemaking Portal: Go to International Branch, ANM–116, series airplanes. That AD requires http://www.regulations.gov. Follow the Transport Airplane Directorate, FAA, repetitive detailed visual inspections to instructions for submitting comments. detect cracks in the pylon thrust and • Fax: 202–493–2251. 1601 Lind Avenue, SW., Renton, sideload fitting of the wing, and • Mail: U.S. Department of Washington 98057–3356; telephone replacement of any cracked pylon thrust Transportation, Docket Operations, M– (425) 227–1138; fax (425) 227–1149. and sideload fitting with a new fitting. 30, West Building Ground Floor, Room SUPPLEMENTARY INFORMATION: That AD resulted from issuance of W12–140, 1200 New Jersey Avenue, SE., Comments Invited mandatory continuing airworthiness Washington, DC 20590. • Hand Delivery: U.S. Department of We invite you to send any written information by a foreign civil Transportation, Docket Operations, M– relevant data, views, or arguments about airworthiness authority. We issued that 30, West Building Ground Floor, Room this proposed AD. Send your comments AD to detect and correct cracks in the W12–140, 1200 New Jersey Avenue, SE., to an address listed under the pylon thrust and sideload fitting of the Washington, DC 20590, between 9 a.m. ADDRESSES section. Include ‘‘Docket No. wing, which could result in reduced and 5 p.m., Monday through Friday, FAA–2008–0657; Directorate Identifier structural integrity of the airplane. except Federal holidays. 2007–NM–296–AD’’ at the beginning of Actions Since Existing AD Was Issued For service information identified in your comments. We specifically invite this AD, contact Airbus, 1 Rond Point comments on the overall regulatory, Since we issued AD 98–16–11, Airbus Maurice Bellonte, 31707 Blagnac Cedex, economic, environmental, and energy has issued the following service France. aspects of this proposed AD. We will bulletins:

TABLE.—NEW SERVICE BULLETINS

Airbus service bulletin— For model—

A300–57–0232, Revision 02, dated February 21, 2000 ...... A300 series airplanes. A300–57–6079, Revision 04, dated February 21, 2000 ...... A300–600 series airplanes. A310–57–2075, Revision 03, dated December 1, 2006 ...... A310 series airplanes.

The repetitive detailed inspections scrapped. No more work is necessary for Federal Aviation Regulations (14 CFR and replacement procedures are airplanes on which previous issues of 21.29) and the applicable bilateral essentially identical to those specified the service bulletins were done. airworthiness agreement. As described in previous issues of the service Accomplishing the actions specified in FAA Order 8100.14A, ‘‘Interim bulletins. (AD 98–16–11 refers to Airbus in the service information is intended to Procedures for Working with the Service Bulletins A300–57–0232, adequately address the unsafe European Community on Airworthiness Revision 01 (for Model A300 series condition. The European Aviation Certification and Continued airplanes); A310–57–2075, Revision 01 Safety Agency (EASA), which is the Airworthiness,’’ dated August 12, 2005, (for Model A310 series airplanes); and Technical Agent for the Member States the EASA has kept the FAA informed of A300–57–6079, Revision 02 (for Model of the European Community, mandated the situation described above. We have the service information and issued examined the EASA’s findings, A300–600 series airplanes); all dated EASA airworthiness directive 2007– evaluated all pertinent information, and January 12, 1998; as the appropriate 0243, dated September 4, 2007, to determined that AD action is necessary sources of service information for ensure the continued airworthiness of for airplanes of this type design that are accomplishing the required actions.) these airplanes in the European Union. certificated for operation in the United Revision 03 of Airbus Service Bulletin States. A310–57–2075 reduces the detailed FAA’s Determination and Requirements This proposed AD would supersede inspection thresholds and repeat of the Proposed AD AD 98–16–11 and would continue to intervals for certain airplanes. In These airplanes are manufactured in require, at reduced thresholds and addition, the effectivity listing of all France and are type certificated for repetitive intervals for certain airplanes, three service bulletins has been revised operation in the United States under the repetitive detailed visual inspections to to remove airplanes that have been provisions of section 21.29 of the detect cracks in the pylon thrust and

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sideload fitting of the wing, and would existing AD to ‘‘detailed inspection’’ in 1. Is not a ‘‘significant regulatory continue to require replacement of any this action. action’’ under Executive Order 12866; cracked pylon thrust and sideload Costs of Compliance 2. Is not a ‘‘significant rule’’ under the fitting with a new fitting. This proposed DOT Regulatory Policies and Procedures AD would also require accomplishing This proposed AD would affect about (44 FR 11034, February 26, 1979); and the actions specified in service 164 Model A300, A310, and A300–600 3. Will not have a significant information described previously. series airplanes of U.S. registry. economic impact, positive or negative, Differences Between Proposed Rule and The inspections that are required by on a substantial number of small entities EASA AD AD 98–16–11 and retained in this under the criteria of the Regulatory proposed AD take about 3 work hours The proposed AD would differ from Flexibility Act. per airplane, at an average labor rate of We prepared a regulatory evaluation the parallel EASA airworthiness $80 per work hour. Based on these directive in that it would not allow for of the estimated costs to comply with figures, the estimated cost of the this proposed AD and placed it in the adjustment in compliance time based on currently required actions is $39,360, or AD docket. See the ADDRESSES section airplane utilization. In developing an $240 per airplane, per inspection cycle. appropriate compliance time for this for a location to examine the regulatory proposed AD, the FAA considered not Authority for This Rulemaking evaluation. only the manufacturer’s Title 49 of the United States Code List of Subjects in 14 CFR Part 39 recommendation, but the degree of specifies the FAA’s authority to issue Air transportation, Aircraft, Aviation urgency associated with addressing the rules on aviation safety. Subtitle I, safety, Safety. subject unsafe condition, and the Section 106, describes the authority of average utilization of the affected fleet. the FAA Administrator. Subtitle VII, The Proposed Amendment In light of these factors, we find the Aviation Programs, describes in more compliance times specified in detail the scope of the Agency’s Accordingly, under the authority paragraphs (f)(1) and (f)(2) of this authority. delegated to me by the Administrator, proposed AD to be warranted, in that the FAA proposes to amend 14 CFR part We are issuing this rulemaking under they represent an appropriate interval of 39 as follows: the authority described in Subtitle VII, time allowable for affected airplanes to continue to operate without Part A, Subpart III, Section 44701, PART 39—AIRWORTHINESS compromising safety. ‘‘General requirements.’’ Under that DIRECTIVES section, Congress charges the FAA with Change to Existing AD promoting safe flight of civil aircraft in 1. The authority citation for part 39 This proposed AD would retain all air commerce by prescribing regulations continues to read as follows: requirements of AD 98–16–11. Since AD for practices, methods, and procedures Authority: 49 U.S.C. 106(g), 40113, 44701. 98–16–11 was issued, the AD format has the Administrator finds necessary for been revised, and certain paragraphs safety in air commerce. This regulation § 39.13 [Amended] have been rearranged. As a result, the is within the scope of that authority 2. The Federal Aviation corresponding paragraph identifiers because it addresses an unsafe condition Administration (FAA) amends § 39.13 have changed in this proposed AD, as that is likely to exist or develop on by removing amendment 39–10687 (63 listed in the following table: products identified in this rulemaking FR 40816, July 31, 1998) and adding the action. following new airworthiness directive REVISED PARAGRAPH IDENTIFIERS Regulatory Findings (AD): Corresponding We have determined that this Airbus: Docket No. FAA–2008–0657; Requirement in AD Directorate Identifier 2007–NM–296–AD. 98–16–11 requirement in this proposed AD would not have federalism proposed AD implications under Executive Order Comments Due Date paragraph (a) ...... paragraph (f). 13132. This proposed AD would not (a) The FAA must receive comments on paragraph (b) ...... paragraph (g). have a substantial direct effect on the this AD action by July 17, 2008. States, on the relationship between the Affected ADs In addition, we have revised the national Government and the States, or applicability of this proposed AD to on the distribution of power and (b) This AD supersedes AD 98–16–11. refer to the latest revisions of the service responsibilities among the various Applicability information described previously. levels of government. (c) This AD applies to Airbus airplanes We also changed all references to a For the reasons discussed above, I identified in Table 1 of this AD, certificated ‘‘detailed visual inspection’’ in the certify that the proposed regulation: in any category.

TABLE 1.—APPLICABILITY

Model— As identified in Airbus service bulletin—

(1) A300 series airplanes ...... A300–57–0232, Revision 02, dated February 21, 2000. (2) A310 series airplanes ...... A310–57–2075, Revision 03, dated December 1, 2006. (3) A300–600 series airplanes ...... A300–57–6079, Revision 04, dated February 21, 2000.

Unsafe Condition authority. We are issuing this AD to detect Compliance (d) This AD results from issuance of and correct cracks in the pylon thrust and (e) You are responsible for having the sideload fitting of the wing, which could mandatory continuing airworthiness actions required by this AD performed within result in reduced structural integrity of the information by a foreign civil airworthiness airplane.

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the compliance times specified, unless the A300–57–0232, Revision 01 (for Model A300 and thereafter at intervals not to exceed 2,800 actions have already been done. series airplanes); A310–57–2075, Revision 01 flight cycles. (for Model A310 series airplanes); or A300– (2) For Model A310 series airplanes: Requirements of AD 98–16–11: 57–6079, Revision 02 (for Model A300–600 Inspect at the earlier of the times specified Repetitive Detailed Inspections at Reduced series airplanes); all dated January 12, 1998; in paragraph (f)(2)(i) and (f)(2)(ii) of this AD. Thresholds and Repeat Intervals for Certain as applicable; except as provided by Repeat thereafter at the applicable intervals Airplanes paragraph (h) of this AD. specified in Table 3 of this AD. (f) At the applicable time specified in (1) For Model A300 and A300–600 series (i) Prior to the accumulation of 2,800 total paragraph (f)(1) or (f)(2) of this AD: Perform airplanes: Inspect prior to the accumulation flight cycles, or within 18 months after a detailed inspection to detect cracks in the of 2,800 total flight cycles, or within 18 September 4, 1998, whichever occurs later. pylon thrust and sideload fitting of the wing, months after September 4, 1998 (the effective (ii) At the applicable time specified in in accordance with Airbus Service Bulletin date AD 98–16–11), whichever occurs later, Table 2 of this AD.

TABLE 2.—REDUCED INSPECTION THRESHOLDS FOR MODEL A310 SERIES AIRPLANES

Compliance time (whichever occurs later) Model Threshold Grace period

A310–200 series airplanes .. Before the accumulation of 1,500 total flight cycles or Within 800 flight cycles or 1,600 flight hours after the 3,000 total flight hours since first flight, whichever oc- effective date of this AD, whichever occurs first. curs first. A310–300 series airplanes Before the accumulation of 1,300 total flight cycles or Within 800 flight cycles or 1,600 flight hours after the (short range). 3,800 total flight hours since first flight, whichever oc- effective date of this AD, whichever occurs first. curs first. A310–300 series airplanes Before the accumulation of 800 total flight cycles or Within 800 flight cycles or 1,600 flight hours after the (long range). 4,000 total flight hours since first flight, whichever oc- effective date of this AD, whichever occurs first. curs first.

TABLE 3.—REDUCED REPEAT INTERVALS FOR MODEL A310 SERIES AIRPLANES

And, thereafter at intervals not to For Model— Repeat the detailed inspection at the later of— exceed—

A310–200 series airplanes ...... Within 1,500 flight cycles or 3,000 flight hours since the last detailed 1,500 flight cycles or 3,000 flight inspection, whichever occurs first; or within 800 flight cycles or hours, whichever occurs first. 1,600 flight hours after the effective date of this AD, whichever oc- curs first. A310–300 series airplanes (short Within 1,300 flight cycles or 3,800 flight hours since the last detailed 1,300 flight cycles or 3,800 flight range). inspection, whichever occurs first; or within 800 flight cycles or hours, whichever occurs first. 1,600 flight hours after the effective date of this AD, whichever oc- curs first. A310–300 series airplanes (long Within 800 flight cycles or 4,000 flight hours since the last detailed in- 800 flight cycles or 4,000 flight range). spection, whichever occurs first; or within 800 flight cycles or 1,600 hours, whichever occurs first. flight hours after the effective date of this AD, whichever occurs first.

Corrective Action 57–6079, Revision 02 (for Model A300–600 Accomplishment Instructions of the (g) If any crack is detected during any series airplanes); all dated January 12, 1998; applicable service bulletin specified in Table inspection required by paragraph (f) of this as applicable; except as provided by 4 of this AD to do the repetitive detailed AD, prior to further flight, replace the pylon paragraph (h) of this AD. inspections required by paragraph (f) of this thrust and sideload fitting with a new fitting New Actions Required by This AD: AD and the replacement required by in accordance with Airbus Service Bulletin paragraph (g) of this AD. A300–57–0232, Revision 01 (for Model A300 New Service Information series airplanes); A310–57–2075, Revision 01 (h) For all airplanes: As of the effective (for Model A310 series airplanes); or A300– date of this AD, use only the

TABLE 4.—NEW SERVICE BULLETINS

Airbus service bulletin— For model—

(1) A300–57–0232, Revision 02, dated February 21, 2000 ...... A300 series airplanes. (2) A300–57–6079, Revision 04, dated February 21, 2000 ...... A300–600 series airplanes. (3) A310–57–2075, Revision 03, dated December 1, 2006 ...... A310 series airplanes.

(i) Actions done before the effective date of dated January 12, 1998, or Revision 02, dated compliance with the corresponding this AD in accordance with Airbus Service February 21, 2000 (for Model A310 series requirements of this AD. Bulletins A300–57–6079, Revision 02, dated airplanes); or A300–57–0232, Revision 01, January 12, 1998, or Revision 03, dated dated January 12, 1998 (for Model A300 October 25, 1999 (for Model A300–600 series series airplanes); are acceptable for airplanes); A310–57–2075, Revision 01,

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Alternative Methods of Compliance which, in combination with flammable www.regulations.gov, including any (AMOCs) fuel vapors, could result in fuel tank personal information you provide. We (j) The Manager, International Branch, explosions and consequent loss of the will also post a report summarizing each ANM–116, FAA, has the authority to approve airplane. The proposed AD would substantive verbal contact we receive AMOCs for this AD, if requested using the require actions that are intended to about this proposed AD. procedures found in 14 CFR 39.19. Send address the unsafe condition described Discussion information to ATTN: Vladimir Ulyanov, in the MCAI. Aerospace Engineer, International Branch, DATES: We must receive comments on We proposed to amend 14 CFR part ANM–116, Transport Airplane Directorate, 39 with an earlier NPRM for the FAA, 1601 Lind Avenue, SW., Renton, this proposed AD by July 14, 2008. Washington 98057–3356; telephone (425) ADDRESSES: You may send comments by specified products, which was 227–1138; fax (425) 227–1149. Before using any of the following methods: published in the Federal Register on any approved AMOC on any airplane to • Federal eRulemaking Portal: Go to March 30, 2007 (72 FR 15063). That which the AMOC applies, notify your http://www.regulations.gov. Follow the earlier NPRM proposed to require appropriate principal inspector (PI) in the instructions for submitting comments. actions intended to address the unsafe FAA Flight Standards District Office (FSDO), • Fax: (202) 493–2251. condition for the products listed above. or lacking a PI, your local FSDO. • Mail: U.S. Department of Since that NPRM was issued, we have Related Information Transportation, Docket Operations, M– determined that additional bonding points must be modified and that the (k) European Aviation Safety Agency 30, West Building Ground Floor, Room (EASA) airworthiness directive 2007–0243, W12–140, 1200 New Jersey Avenue SE., compliance time for performing the dated September 4, 2007, also addresses the Washington, DC 20590. action specified in paragraph (f)(4)(ii) of subject of this AD. • Hand Delivery: U.S. Department of this supplemental NPRM (increasing the Transportation, Docket Operations, M– distance between metallic parts on the Issued in Renton, Washington, on June 10, 2008. 30, West Building Ground Floor, Room trimmable horizontal stabilizer (THS) W12–40, 1200 New Jersey Avenue SE., trim tank) may be extended for airplanes Ali Bahrami, Washington, DC, between 9 a.m. and 5 that are already compliant with certain Manager, Transport Airplane Directorate, p.m., Monday through Friday, except requirements of Airbus All Operators Aircraft Certification Service. Federal holidays. Telex (AOT) 55–03, dated August 22, [FR Doc. E8–13566 Filed 6–16–08; 8:45 am] 1996. In addition, we have referred to Examining the AD Docket BILLING CODE 4910–13–P the latest revisions of the service You may examine the AD docket on bulletins as the appropriate sources of the Internet at http:// service information for accomplishing DEPARTMENT OF TRANSPORTATION www.regulations.gov; or in person at the certain actions in this supplemental Docket Operations office between 9 a.m. Federal Aviation Administration NPRM. European Aviation Safety and 5 p.m., Monday through Friday, Agency (EASA), which is the Technical except Federal holidays. The AD docket 14 CFR Part 39 Agent for the Member States of the contains this proposed AD, the European Community, has issued [Docket No. FAA–2007–27739; Directorate regulatory evaluation, any comments Airworthiness Directive 2007–0278, Identifier 2006–NM–250–AD] received, and other information. The dated November 5, 2007 [Corrected: RIN 2120–AA64 street address for the Docket Operations November 8, 2007] (referred to after this office (telephone (800) 647–5527) is in as ‘‘the MCAI’’), to correct an unsafe Airworthiness Directives; Airbus Model the ADDRESSES section. Comments will condition for the specified products. A330 Airplanes; and Model A340–200 be available in the AD docket shortly You may obtain further information by and –300 Airplanes after receipt. examining the MCAI in the AD docket. FOR FURTHER INFORMATION CONTACT: Tim The MCAI states: AGENCY: Federal Aviation Backman, Aerospace Engineer, Administration (FAA), DOT. [T]he FAA published SFAR 88 (Special International Branch, ANM–116, FAA, Federal Aviation Regulation 88). ACTION: Supplemental notice of Transport Airplane Directorate, 1601 By mail referenced 04/00/02/07/01–L296 proposed rulemaking (NPRM); Lind Avenue SW., Renton, Washington of March 4th, 2002 and 04/00/02/07/03–L024 reopening of comment period. 98057–3356; telephone (425) 227–2797; of February 3rd, 2003 the JAA (Joint Aviation fax (425) 227–1149. Authorities) recommended to the National SUMMARY: We are revising an original SUPPLEMENTARY INFORMATION: Aviation Authorities (NAA) the application NPRM for the products listed above. of a similar regulation. This action revises the original NPRM Comments Invited The aim of this regulation is to require all by expanding the scope. This proposed We invite you to send any written holders of type certificates for passenger AD results from mandatory continuing relevant data, views, or arguments about transport aircraft certified after January 1st, 1958 with a capacity of 30 passengers or airworthiness information (MCAI) this proposed AD. Send your comments originated by an aviation authority of more, or a payload of 3,402 kg or more, to to an address listed under the carry out a definition review against another country to identify and correct ADDRESSES section. Include ‘‘Docket No. explosion hazards. an unsafe condition on an aviation FAA–2007–27739; Directorate Identifier Consequently, the following measures [are] product. The MCAI describes the unsafe 2006–NM–250–AD’’ at the beginning of rendered mandatory * * *: condition as: your comments. We specifically invite • [Inspection and] replacement [if * * * * * comments on the overall regulatory, necessary] of the white P-clips by blue P- The aim of * * * [Special Federal Aviation economic, environmental, and energy clips which are more fuel resistant remove Regulation (SFAR) 88] is to require all aspects of this proposed AD. We will the risks of fuel quantity indicator (FQI) and holders of type certificates * * * to carry out fuel level sensor system (FLSS) harnesses consider all comments received by the chafing against the metallic part of the P-clip, a definition review against explosion closing date and may amend this • hazards. Modification of electrical bonding of proposed AD based on those comments. equipment installed in fuel tanks in order to The unsafe condition is the potential of We will post all comments we re-establish the conformity with the design ignition sources inside fuel tanks, receive, without change, to http:// definition by introducing additional bonding

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leads, electrical bonding points and electrical • Mandates SB A330–28–3082 Revision 04 1996–177–038(B) with a compliance time of bonding of a support bracket for a diffuser which introduces an additional work for November 15th, 1996; assembly installed between Rib 1 and Rib 2 some bonding points which were omitted • Refers to the latest revision of certain on the stringers of the Number 1 bottom skin from the center tank at original issue (action AIRBUS SBs. panel, n°2 [paragraph (f)(2) of this AD]); • Modification of bonding points, • The unsafe condition is the potential of Mandates SB A340–28–4097 Revision 03 ignition sources inside fuel tanks, installation of additional bonding leads and which introduces an additional work by other modifications of the Additional Center which, in combination with flammable addition of electrical bondings omitted from Tank (ACT), fuel vapors, could result in fuel tank • previous revisions (action n°2); Modification to increase the distance • explosions and consequent loss of the between metallic parts on the THS Trim Introduces an extension of the required ° airplane. Tank, compliance time to perform action n 4 for • Installation of a bonding lead between those aircraft already compliant with Relevant Service Information the bonding tags on the Jettison valve AIRBUS AOT 55–03 dated 22 August 1996 actuator and drive assembly. (‘‘solution A’’), mandated by DGAC Airbus has issued the service This new AD supersedes EASA AD 2006– [Direction Ge´ne´rale de l’Aviation Civile] AD bulletins described in the following 0322 taking over its requirements and: F–1996–178–049(B) R1 and DGAC AD F– table.

AIRBUS SERVICE BULLETINS

Airbus service bulletin Revision level Date

A330–28–3082, including Appendix 01 ...... 04 August 3, 2007. A330–55–3016 ...... 02 March 16, 2007. A340–28–4073 ...... 02 March 8, 2007. A340–28–4078 ...... 01 January 25, 2007. A340–28–4097, including Appendix 01 ...... 03 July 3, 2007. A340–28–4118 ...... 02 July 10, 2007. A340–55–4017 ...... 02 March 16, 2007.

The actions described in the service Request to Use Latest Versions of We agree. Airbus has revised the information are intended to correct the Service Information service bulletins described in the unsafe condition identified in the following table. MCAI. Air Transport Association, on behalf of its member U.S. Airways, requests Comments that we allow for the most recent We have considered the following revisions to the applicable service comments received on the earlier bulletins to be used for compliance with NPRM. the AD.

SERVICE BULLETINS THAT HAVE BEEN REVISED SINCE WE ISSUED THE NPRM

Airbus service Revision level in original bulletin New revision NPRM Additional work necessary? Reason for revision

A330–28–3082 .. Revision 04, including Ap- Revision 02, including Ap- Yes, for those modified in ac- Adds bonding points that pendix 01, dated August 3, pendix 01, dated August cordance with original revi- were omitted from the Ac- 2007. 11, 2006. sion (dated June 14, 2004). complishment Instructions of the original revision of the service bulletin. A330–55–3016 .. Revision 02, dated March 16, Revision 1, dated February No ...... Changes compliance classi- 2007. 12, 1997. fication. A340–28–4073 .. Revision 02, dated March 8, Revision 01, dated October No ...... Updates effectivity, revise jet- 2007. 9, 1998. tison-valve procedure, and format changes. A340–28–4078 .. Revision 01, dated January Original Issue, dated March No ...... Changes a kit quantity. 25, 2007. 17, 2000. A340–28–4097 .. Revision 03, including Ap- Revision 02, including Ap- Yes, for those modified in ac- Includes instructions for elec- pendix 01, dated July 3, pendix 01, dated August cordance with any previous trical bonding of fuel pump 2007. 16, 2006. revision. canisters for certain air- planes and for the water drain valve between rib 1 and rib 2 for all airplanes; adds new airplane configu- rations. A340–28–4118 .. Revision 02, dated July 10, Revision 01, dated October No ...... Updates the effectivity, in- 2007. 11, 2006. cludes changes that fol- lowed validation of the service bulletin. A340–55–4017 .. Revision 02, dated March 16, Revision 1, dated February No ...... Changes compliance classi- 2007. 12, 1997. fication.

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performing the action specified in policies. Any such differences are 3. Will not have a significant paragraph (f)(4) of this supplemental highlighted in a NOTE within the economic impact, positive or negative, NPRM for airplanes that are already proposed AD. on a substantial number of small entities compliant with certain requirements of under the criteria of the Regulatory Costs of Compliance Airbus AOT 55–03 (mentioned in Table Flexibility Act. 1 of this Supplemental NPRM). Based on the service information, we We prepared a regulatory evaluation We have also revised the estimate that this proposed AD would of the estimated costs to comply with supplemental NPRM to give credit for affect 28 products of U.S. registry. We this proposed AD and placed it in the accomplishment of earlier revisions of also estimate that it would take 670 AD docket. service information that specify that no work-hours per product to comply with List of Subjects in 14 CFR Part 39 additional work is necessary for this proposed AD. The average labor airplanes on which the earlier revision rate is $80 per work-hour. Required Air transportation, Aircraft, Aviation was accomplished; we have removed parts would cost about $2,718 per safety, Safety. credit for accomplishment of the product. Where the service information The Proposed Amendment original issue of Airbus Service Bulletin lists required parts costs that are A330–28–3082; and we have removed covered under warranty, we have Accordingly, under the authority credit for accomplishment of any assumed that there will be no charge for delegated to me by the Administrator, revision of Airbus Service Bulletin these costs. As we do not control the FAA proposes to amend 14 CFR part A340–28–4097 that is earlier than warranty coverage for affected parties, 39 as follows: Revision 03. some parties may incur costs higher PART 39—AIRWORTHINESS Explanation of Change to Certain than estimated here. Based on these DIRECTIVES Compliance Times figures, we estimate the cost of the proposed AD on U.S. operators to be 1. The authority citation for part 39 We have revised our month-based $1,576,904, or $56,318 per product. continues to read as follows: compliance times to correspond to the Authority: 49 U.S.C. 106(g), 40113, 44701. amount of elapsed time between the Authority for This Rulemaking effective date of the MCAI and the Title 49 of the United States Code § 39.13 [Amended] compliance dates specified in the MCAI. specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding FAA’s Determination and Requirements rules on aviation safety. Subtitle I, the following new AD: of This Proposed AD section 106, describes the authority of Airbus: Docket No. FAA–2007–27739; the FAA Administrator. ‘‘Subtitle VII: Directorate Identifier 2006–NM–250–AD. This product has been approved by Aviation Programs,’’ describes in more Comments Due Date the aviation authority of another detail the scope of the Agency’s country, and is approved for operation authority. (a) We must receive comments by July 14, in the United States. Pursuant to our 2008. We are issuing this rulemaking under bilateral agreement with the State of the authority described in ‘‘Subtitle VII, Affected ADs Design Authority, we have been notified Part A, Subpart III, Section 44701: of the unsafe condition described in the (b) None. General requirements.’’ Under that MCAI and service information Applicability section, Congress charges the FAA with referenced above. We are proposing this promoting safe flight of civil aircraft in (c) This AD applies to all Airbus Model AD because we evaluated all pertinent A330, A340–200, and A340–300 airplanes, air commerce by prescribing regulations information and determined an unsafe all certified models, all serial numbers, for practices, methods, and procedures condition exists and is likely to exist or certificated in any category. the Administrator finds necessary for develop on other products of the same safety in air commerce. This regulation Subject type design. is within the scope of that authority (d) Air Transport Association (ATA) of Certain changes described above America Codes 28: Fuel, and 55: Stabilizers. expand the scope of the earlier NPRM. because it addresses an unsafe condition As a result, we have determined that it that is likely to exist or develop on Reason is necessary to reopen the comment products identified in this rulemaking (e) The mandatory continuing period to provide additional action. airworthiness information (MCAI) states: opportunity for the public to comment Regulatory Findings [T]he FAA published SFAR 88 (Special on this proposed AD. Federal Aviation Regulation 88). We determined that this proposed AD By mail referenced 04/00/02/07/01–L296 Differences Between This AD and the would not have federalism implications of March 4th, 2002 and 04/00/02/07/03–L024 MCAI or Service Information under Executive Order 13132. This of February 3rd, 2003 the JAA (Joint Aviation proposed AD would not have a Authorities) recommended to the National We have reviewed the MCAI and Aviation Authorities (NAA) the application related service information and, in substantial direct effect on the States, on the relationship between the national of a similar regulation. general, agree with their substance. But The aim of this regulation is to require all we might have found it necessary to use Government and the States, or on the holders of type certificates for passenger different words from those in the MCAI distribution of power and transport aircraft certified after January 1st, to ensure the AD is clear for U.S. responsibilities among the various 1958 with a capacity of 30 passengers or operators and is enforceable. In making levels of government. more, or a payload of 3,402 kg or more, to these changes, we do not intend to differ For the reasons discussed above, I carry out a definition review against substantively from the information certify this proposed regulation: explosion hazards. 1. Is not a ‘‘significant regulatory Consequently, the following measures [are] provided in the MCAI and related rendered mandatory * * *: service information. action’’ under Executive Order 12866; • [Inspection and] replacement [if We might also have proposed 2. Is not a ‘‘significant rule’’ under the necessary] of the white P-clips by blue P- different actions in this AD from those DOT Regulatory Policies and Procedures clips which are more fuel resistant remove in the MCAI in order to follow FAA (44 FR 11034, February 26, 1979); and the risks of fuel quantity indicator (FQI) and

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fuel level sensor system (FLSS) harnesses • Installation of a bonding lead between (‘‘solution A’’), mandated by DGAC chafing against the metallic part of the P-clip, the bonding tags on the Jettison valve [Direction Ge´ne´rale de l’Aviation Civile] AD • Modification of electrical bonding of actuator and drive assembly. F–1996–178–049(B) R1 and DGAC AD F– equipment installed in fuel tanks in order to This new AD supersedes EASA AD 2006– 1996–177–038(B) with a compliance time of re-establish the conformity with the design 0322 taking over its requirements and: November 15th, 1996; definition by introducing additional bonding • Mandates SB A330–28–3082 Revision 04 • Refers to the latest revision of certain leads, electrical bonding points and electrical which introduces an additional work for AIRBUS SBs. bonding of a support bracket for a diffuser some bonding points which were omitted The unsafe condition is the potential of assembly installed between Rib 1 and Rib 2 from the center tank at original issue (action ignition sources inside fuel tanks, which, in ° on the stringers of the Number 1 bottom skin n 2 [paragraph (f)(2) of this AD]); combination with flammable fuel vapors, • panel, Mandates SB A340–28–4097 Revision 03 could result in fuel tank explosions and • Modification of bonding points, which introduces an additional work by consequent loss of the airplane. installation of additional bonding leads and addition of electrical bondings omitted from other modifications of the Additional Center previous revisions (action n°2); Actions and Compliance Tank (ACT), • Introduces an extension of the required (f) Unless already done, do the actions in • Modification to increase the distance compliance time to perform action n°4 for paragraphs (f)(1), (f)(2), (f)(3), (f)(4), and (f)(5) between metallic parts on the THS those aircraft already compliant with of this AD for the applicable airplanes (trimmable horizontal stabilizer) Trim Tank, AIRBUS AOT 55–03 dated 22 August 1996 identified in Table 1 of this AD.

TABLE 1.—APPLICABLE PARAGRAPHS BY AIRPLANE MODEL

These airplane models— Except airplanes— Are affected by these paragraphs of this AD—

Model A330, A340–200, and A340–330 air- On which Airbus Modification 47634 has been (f)(1). planes. embodied in production. • On which both Airbus Modifications 49135 (f)(2)(i), except as provided by paragraphs and 49630 have been embodied in produc- (f)(2)(ii) and (f)(2)(iii) of this AD. tion. • Both Airbus Modifications 51825 and 55118 have been embodied in production. • That have been modified in-service in ac- cordance with both Airbus Service Bulletin A330–28–3082, Revision 04, including Ap- pendix 01, dated August 3, 2007; and Air- bus Service Bulletin A330–28–3101, Revi- sion 01, dated October 11, 2006. • That have been modified in-service in ac- cordance with both Airbus Service Bulletin A340–28–4097, Revision 03, including Ap- pendix 01, dated July 3, 2007; and Airbus Service Bulletin A340–28–4118, Revision 02, dated July 10, 2007. Model A330 airplanes on which the actions • On which both Airbus Modifications 49135 (f)(2)(ii) and (f)(2)(iii). specified in Airbus Service Bulletin A330–28– and 49630 have been embodied in produc- 3082, dated June 14, 2004, have been ac- tion. complished before the effective date of this • Both Airbus Modifications 51825 and 55118 AD; and Model A340–200 and A340–300 air- have been embodied in production. planes on which the actions specified in Air- • That have been modified in-service in ac- bus Service Bulletin A340–28–4097, dated cordance with both Airbus Service Bulletin June 14, 2004, Revision 01, dated March 3, A330–28–3082, Revision 04, including Ap- 2005, or Revision 02, dated August 16, 2006, pendix 01, dated August 3, 2007, and Air- have been accomplished before the effective bus Service Bulletin A330–28–3101, Revi- date of this AD. sion 01, dated October 11, 2006. • That have been modified in-service in ac- cordance with both Airbus Service Bulletin A340–28–4097, Revision 03, including Ap- pendix 01, dated July 3, 2007, and Airbus Service Bulletin A340–28–4118, Revision 02, dated July 10, 2007. Model A340–200 and A340–300 airplanes that That have been modified in service by Airbus (f)(3). have the ACT embodied in production or in Service Bulletin A340–28–4078, Revision service (Airbus Modification 42612, 44002, or 01, dated January 25, 2007. 44005). Model A340–200 and A340–300 airplanes ...... • On which Airbus Modification 44252 has (f)(4)(i), except as provided by paragraph been embodied in production. (f)(4)(ii) of this AD. • That have been modified in-service in ac- cordance with Airbus Service Bulletin A340–55–4017. Model A330–300, –301, –321, –322, –341, • On which Airbus Modification 44252 has (f)(4)(i), except as provided by paragraph –342 airplanes. been embodied in production. (f)(4)(ii) of this AD. • That have been modified in-service in ac- cordance with Airbus Service Bulletin A330–55–3016.

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TABLE 1.—APPLICABLE PARAGRAPHS BY AIRPLANE MODEL—Continued

These airplane models— Except airplanes— Are affected by these paragraphs of this AD—

Model A330–300, –301, –321, –322, –341, On which the improvement of the THS light- (f)(4)(ii). –342 airplanes; and Model A340–200 and ning strike protection has already been per- A340–300 airplanes. formed before the effective date of this AD in accordance with Airbus All Operators Telex (AOT) 55–03, dated August 22, 1996 (‘‘solution A’’), mandated by Direction Ge´ne´rale de l’Aviation Civile (DGAC) Air- worthiness Directive F–1996–178–049(B) R1, and DGAC Airworthiness Directive F– 1996–177–038(B), with a compliance time of November 15, 1996. Model A340–200 and A340–300 airplanes ...... • On which Airbus Modification 46142 has (f)(5). been embodied in production. • That have been modified in-service in ac- cordance with Airbus Service Bulletin A340–28–4073, Revision 02, dated March 8, 2007.

(1) Within 24 months after the effective accordance with Airbus Service Bulletin March 16, 2007; or Airbus Service Bulletin date of this AD, do a detailed visual A330–28–3101, Revision 01, dated October A340–55–4017, Revision 02, dated March 16, inspection of the P-clips in the wings and 11, 2006; or Airbus Service Bulletin A340– 2007; as applicable. center fuel tanks, and apply the applicable 28–4118, Revision 02, dated July 10, 2007; as (ii) For airplanes affected by this corrective actions, in accordance with the applicable. paragraph, as specified in Table 1 of this AD: applicable instructions of Airbus Service (iii) For airplanes affected by this At the first THS removal from the aircraft Bulletin A330–28–3092, Revision 01, dated paragraph, as specified in Table 1 of this AD: done for any reason after the effective date December 14, 2005; or Airbus Service Within 48 months after the effective date of of this AD (e.g., fuselage stress jacking, and Bulletin A340–28–4107, Revision 01, dated this AD, do the additional work specified in repair) when the airplane is on a support tool December 14, 2005. Airbus Service Bulletin A330–28–3082, (lifting and resting point fittings must be (2) Do the requirements of paragraphs Revision 04, including Appendix 01, dated installed), or at the time of the first (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this AD, as August 3, 2007; or Airbus Service Bulletin maintenance task that requires the use of applicable, at the times specified in those A340–28–4097, Revision 03, including THS lifting and resting point fittings, paragraphs. Appendix 01, dated July 3, 2007; in whichever occurs earlier, increase the (i) For airplanes affected by this paragraph, accordance with the accomplishment distance between metallic parts on the THS as specified in Table 1 of this AD: Within 24 instructions of those service bulletins, as trim tank in accordance with the months after the effective date of this AD, applicable. Accomplishment Instructions of Airbus modify the electrical bonding of the (3) Within 24 months after the effective equipment installed in fuel tanks, in date of this AD, modify the electrical bonding Service Bulletin A330–55–3016, Revision 02, accordance with both Airbus Service Bulletin in the ACT in accordance with the March 16, 2007; or Airbus Service Bulletin A330–28–3082, Revision 04, including Accomplishment Instructions of Airbus A340–55–4017, Revision 02, dated March 16, Appendix 01, dated August 3, 2007, and Service Bulletin A340–28–4078, Revision 01, 2007; as applicable. Airbus Service Bulletin A330–28–3101, dated January 25, 2007. (5) Within 24 months after the effective Revision 01, dated October 11, 2006; or both (4) Within 24, months after the effective date of this AD, install a bonding lead Airbus Service Bulletin A340–28–4097, date of this AD, do the requirements of between the bonding tags on the jettison Revision 03, including Appendix 01, dated paragraphs (f)(4)(i) and (f)(4)(ii), as valve actuator and drive assembly in July 3, 2007, and Airbus Service Bulletin applicable. accordance with the instructions of Airbus A340–28–4118, Revision 02, dated July 10, (i) For airplanes affected by this paragraph, Service Bulletin A340–28–4073, Revision 02, 2007; as applicable. as specified in Table 1 of this AD: Within 24 dated March 8, 2007. (ii) For airplanes affected by this months after the effective date of this AD, (6) Actions done before the effective date paragraph, as specified in Table 1 of this AD: increase the distance between metallic parts of this AD in accordance with the service Within 24 months after the effective date of on the THS trim tank in accordance with the bulletins listed in Table 2 of this AD are this AD, modify the electrical bonding of the Accomplishment Instructions of Airbus acceptable for compliance with the equipment installed in fuel tanks, in Service Bulletin A330–55–3016, Revision 02, corresponding requirements of this AD.

TABLE 2.—CREDIT SERVICE BULLETINS

Airbus service bulletin Revision level Date Corresponding paragraphs

A330–28–3082 ...... 01 ...... March 2, 2005 ...... (f)(2)(i) of this AD. A330–28–3082 ...... 02 ...... August 11, 2006 ...... (f)(2)(i) of this AD. A330–28–3082 ...... 03 ...... November 15, 2006 ...... (f)(2)(i) and (f)(2)(ii) of this AD. A330–28–3101 ...... Original ...... June 5, 2006 ...... (f)(2)(i) of this AD. A330–55–3016 ...... Original ...... August 20, 1996 ...... (f)(4)(i) and (f)(4)(ii) of this AD. A330–55–3016 ...... 1 ...... February 12, 1997 ...... (f)(4)(i) and (f)(4)(ii) of this AD. A340–28–4073 ...... Original ...... May 14, 1998 ...... (f)(5) of this AD. A340–28–4073 ...... 01 ...... October 9, 1998 ...... (f)(5) of this AD. A340–28–4078 ...... Original ...... March 17, 2000 ...... (f)(3) of this AD. A340–28–4118 ...... Original ...... June 5, 2006 ...... (f)(2)(i) and (f)(2)(ii) of this AD. A340–28–4118 ...... 01 ...... October 11, 2006 ...... (f)(2)(i) and (f)(2)(ii) of this AD. A340–55–4017 ...... Original ...... August 20, 1996 ...... (f)(4)(i) and (f)(4)(ii) of this AD.

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TABLE 2.—CREDIT SERVICE BULLETINS—Continued

Airbus service bulletin Revision level Date Corresponding paragraphs

A340–55–4017 ...... 1 ...... February 12, 1997 ...... (f)(4)(i) and (f)(4)(ii) of this AD.

FAA AD Differences Branch, Transport Airplane Directorate, FAA, to assure the product is airworthy before it 1601 Lind Ave., SW, Renton, Washington, is returned to service. Note: This AD differs from the MCAI and/ 98057–3356, telephone (425) 227–2797; fax (3) Reporting Requirements: For any or service information as follows: No reporting requirement in this AD, under the differences. (425) 227–1149. Before using any approved AMOC on any airplane to which the AMOC provisions of the Paperwork Reduction Act, Other FAA AD Provisions applies, notify your appropriate principal the Office of Management and Budget (OMB) has approved the information collection (g) The following provisions also apply to inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your requirements and has assigned OMB Control this AD: Number 2120–0056. (1) Alternative Methods of Compliance local FSDO. (AMOCs): The Manager, ANM–116, (2) Airworthy Product: For any requirement Related Information International Branch, Transport Airplane in this AD to obtain corrective actions from (h) Refer to MCAI European Aviation Directorate, FAA, has the authority to a manufacturer or other source, use these Safety Agency (EASA) Airworthiness approve AMOCs for this AD, if requested actions if they are FAA-approved. Corrective Directive 2007–0278, dated November 5, using the procedures found in 14 CFR 39.19. actions are considered FAA-approved if they 2007 [Corrected: November 8, 2007], and the Send information to ATTN: Tim Backman, are approved by the State of Design Authority service bulletins in Table 3 of this AD, for Aerospace Engineer, ANM–116, International (or their delegated agent). You are required related information.

TABLE 3.—RELATED SERVICE BULLETINS

Airbus service bulletin Revision level Date

A330–28–3082, including Appendix 01 ...... 04 August 3, 2007. A330–28–3092, excluding Appendix 01 ...... 01 December 14, 2005. A330–28–3101 ...... 01 October 11, 2006. A330–55–3016 ...... 02 March 16, 2007. A340–28–4073 ...... 02 March 8, 2007. A340–28–4078 ...... 01 January 25, 2007. A340–28–4097, including Appendix 01 ...... 03 July 3, 2007. A340–28–4107, excluding Appendix 01 ...... 01 December 14, 2005. A340–28–4118 ...... 02 July 10, 2007. A340–55–4017 ...... 02 March 16, 2007.

Issued in Renton, Washington, on June 10, Model 767–200 and –300 series emergency evacuation. This action is 2008. airplanes. That proposed rule would intended to address the identified Ali Bahrami, have required replacing certain door- unsafe condition. Manager, Transport Airplane Directorate, mounted escape slides and slide-raft DATES: Comments must be received by Aircraft Certification Service. assemblies with new slide-raft July 14, 2008. [FR Doc. E8–13568 Filed 6–16–08; 8:45 am] assemblies; replacing certain escape ADDRESSES: Submit comments in BILLING CODE 4910–13–P system latches with new latches; and triplicate to the Federal Aviation modifying or replacing certain Administration (FAA), Transport counterbalance assemblies with new Airplane Directorate, ANM–114, DEPARTMENT OF TRANSPORTATION counterbalance assemblies; as Attention: Rules Docket No. 2001–NM– applicable. This new action revises the Federal Aviation Administration 237–AD, 1601 Lind Avenue, SW., proposed rule by extending the Renton, Washington 98057–3356. compliance time, adding requirements 14 CFR Part 39 Comments may be inspected at this to install a longer firing cable and test location between 9 a.m. and 3 p.m., [Docket No. 2001–NM–237–AD] the valve of the inflation trigger system Monday through Friday, except Federal of the slide-raft, and, for certain holidays. Comments may be submitted RIN 2120–AA64 airplanes, adding procedures to adjust via fax to (425) 227–1232. Comments Airworthiness Directives; Boeing the door counter balance systems. The may also be sent via the Internet using Model 767–200 and –300 Series actions specified by this new proposed the following address: 9-anm- Airplanes AD are intended to prevent the escape [email protected]. Comments sent slides and slide-rafts of the forward and via fax or the Internet must contain AGENCY: Federal Aviation mid-cabin entry and service doors from ‘‘Docket No. 2001–NM–237–AD’’ in the Administration, DOT. being too steep for evacuation in the subject line and need not be submitted ACTION: Supplemental notice of event that the airplane rotates onto the in triplicate. Comments sent via the proposed rulemaking; reopening of aft fuselage into the extreme tip-back Internet as attached electronic files must comment period. condition. In the extreme tip-back be formatted in Microsoft Word 97 or condition, the forward and mid-cabin 2000 or ASCII text. SUMMARY: This document revises an exits could result in steeper sliding The service information referenced in earlier proposed airworthiness directive angles, which could cause injury to the proposed rule may be obtained from (AD), applicable to certain Boeing passengers and crewmembers during an Boeing Commercial Airplanes, P.O. Box

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3707, Seattle, Washington 98124–2207. ANM–114, Attention: Rules Docket No. release of the service bulletin. Revision This information may be examined at 2001–NM–237–AD, 1601 Lind Avenue, 2 also includes a reference to the the FAA, Transport Airplane SW., Renton, Washington 98057–3356. procedures in Boeing Alert Service Directorate, 1601 Lind Avenue, SW., Bulletin 767–25A0395, Revision 1, adds Discussion Renton, Washington. instructions for adjusting the door FOR FURTHER INFORMATION CONTACT: A proposal to amend part 39 of the counterbalance system for certain Keith Ladderud, Aerospace Engineer, Federal Aviation Regulations (14 CFR airplanes, and corrects certain part Cabin Safety and Environmental part 39) to add an airworthiness numbers (P/Ns), among other changes. directive (AD), applicable to certain • Systems Branch, ANM–150S, FAA, Boeing Alert Service Bulletin 767– Boeing Model 767–200 and –300 series Seattle Aircraft Certification Office, 25A0395, Revision 1, dated January 25, airplanes, was published as a notice of 1601 Lind Avenue, SW., Renton, 2007. This service bulletin describes proposed rulemaking (NPRM) in the Washington 98057–3356; telephone procedures for determining if a slide-raft Federal Register on November 25, 2003 (425) 917–6435; fax (425) 917–6590. with supplier P/N 5A3294–1, 5A3294– (68 FR 66026). That NPRM would have 2, 5A3295–1, or 5A3295–3 (Boeing P/N SUPPLEMENTARY INFORMATION: required replacing certain door- S416T214–3, S416T214–4, S416T214–2, Comments Invited mounted escape slides and slide-raft and S416T214–1, respectively), is assemblies with new slide-raft installed. If those P/Ns are not installed, Interested persons are invited to assemblies; replacing certain escape participate in the making of the the service bulletin specifies that no system latches with new latches; and further action is necessary. If any of proposed rule by submitting such modifying or replacing certain written data, views, or arguments as those P/Ns are installed, the service counterbalance assemblies with new bulletin provides procedures for they may desire. Communications shall counterbalance assemblies; as identify the Rules Docket number and lengthening the firing cable and testing applicable. That NPRM was prompted the valve of the inflation trigger system be submitted in triplicate to the address by reports indicating that the original specified above. All communications of the escape slide-raft. analysis of the highest sill heights for Boeing Alert Service Bulletin 767– received on or before the closing date the forward and mid-cabin entry and for comments, specified above, will be 25A0395, Revision 1, refers to Goodrich service doors is no longer valid on Service Bulletin 5A3294/5A3295–25– considered before taking action on the certain Boeing Model 737–200 and –300 proposed rule. The proposals contained 362, dated July 25, 2006, as an series airplanes. That condition, if not additional source of service information in this action may be changed in light corrected, could result in injury to of the comments received. for lengthening the firing cable and passengers and crewmembers during an testing the valve of the inflation trigger Submit comments using the following emergency evacuation. format: system of the escape slide-raft. • Organize comments issue-by-issue. Actions Since Issuance of Previous Comments Proposal For example, discuss a request to Due consideration has been given to change the compliance time and a Since the issuance of that NPRM, we the comments received in response to request to change the service bulletin have received three reports of the original NPRM: reference as two separate issues. uncommanded deployments of the • For each issue, state what specific door-mounted escape slide inside the Support for the Original NPRM change to the proposed AD is being passenger cabin. The uncommanded Airline Pilots Association, requested. inflation caused damage to a lavatory, International (ALPA) concurs with the • Include justification (e.g., reasons or ceiling panels, and doors. It has been corrective actions in the original NPRM. data) for each request. determined that variability in packing Comments are specifically invited on the slide can result in excessive tension Support for Replacement Parts the overall regulatory, economic, on the firing cable. Therefore, certain Goodrich Aircraft Interior Products environmental, and energy aspects of affected airplanes must have a longer states that it is prepared to support the the proposed rule. All comments firing cable installed, and the inflation need for replacement parts within the submitted will be available, both before trigger system must be tested. To compliance time specified in the and after the closing date for comments, accommodate this change, Boeing has original NPRM. in the Rules Docket for examination by issued the following service bulletins: interested persons. A report • Boeing Alert Service Bulletin 767– Request To Clarify the Unsafe summarizing each FAA-public contact 25A0266, Revision 2, dated September Condition concerned with the substance of this 27, 2007. We referred to Boeing Alert Boeing requests a change to the proposal will be filed in the Rules Service Bulletin 767–25–0266, dated wording of the unsafe condition in the Docket. September 14, 2000, as the appropriate Summary and Discussion sections of the Commenters wishing the FAA to source of service information for NPRM. Boeing states that the existing acknowledge receipt of their comments accomplishing the required actions in slide-rafts are not ‘‘too short to reach the submitted in response to this action the original NPRM. In addition to the ground’’ as stated in the NPRM, but that must submit a self-addressed, stamped existing actions, Revision 2 of the the extreme tip-back condition results in postcard on which the following service bulletin specifies procedures to a steeper sliding angle than the original statement is made: ‘‘Comments to adjust the door counterbalance systems design intent. Boeing requests that we Docket Number 2001–NM–237–AD.’’ for Group 1 and 2 airplanes (procedures instead specify, among other suggested The postcard will be date stamped and were added in Boeing Alert Service wording, that ‘‘In the extreme tip-back returned to the commenter. Bulletin 767–25A0266, Revision 1, condition, the forward and mid-cabin dated December 4, 2006). Revision 2 of exits on one side of the airplane could Availability of NPRMs the service bulletin also specifies that result in steeper sliding angles. * * *’’ Any person may obtain a copy of this more work is necessary on airplanes We partially agree with the requested NPRM by submitting a request to the changed in accordance with the changes. We disagree with using the FAA, Transport Airplane Directorate, procedures specified in the original words ‘‘one side of the airplane’’

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because they imply that passengers and the extreme tip-back condition. The compliance time specified in this crewmembers could safely evacuate existing slides are not too short to reach supplemental NPRM. from the side of the airplane with the the ground (as stated in the proposed Therefore, although we have extended lower sliding angles. Damage associated rule). the compliance time for other reasons, with a landing gear failure on the lower • The slide and slide-raft we do not agree that these comments side of the airplane could cause manufacturer will likely have trouble give adequate justification for extending passengers and crewmembers to producing the number of slides and the compliance time any further. slide-raft units necessary to modify perceive that only the side of the Requests To Withdraw Proposed Rule airplane with the sliding angle that is every affected airplane in the worldwide ‘‘too steep for evacuation’’ would be fleet. ANA, and ATA on behalf of its • available for emergency evacuation. In We need to take into consideration member American Airlines, suggest that addition, this type of failure could low-cycle, high-hour operations. we withdraw the proposed rule because render the exits on the lower, damaged We partially agree with the it represents a significant cost and side to be unusable and/or unsafe. We commenters’ statements. Given the addresses a scenario that is a remote agree with the other requested changes combination of an updated Cost Impact possibility and, therefore, should not be because they clarify the unsafe estimate for this supplemental NPRM considered an unsafe condition. American Airlines explains that, with condition. We have revised the (see ‘‘Request To Revise Cost Impact one main landing gear out, the engine Summary section accordingly. However, Section’’ above), and the risk of would remain attached at ‘‘very low we have not revised the Discussion exposure to the situation addressed in speeds’’ that are associated with taxiing, section since that section of the this supplemental NPRM, we and would not shear off due to the preamble does not reappear in the same acknowledge that there is merit in weight of the airplane, as explained in form in the supplemental NPRM. revising the compliance time. It is our the ‘‘Discussion’’ section of the Instead, the Discussion section in the intent to allow operators to offset, proposed rule. American Airlines also supplemental NPRM restates the partially, the costs associated with the supplemental NPRM by integrating the explains that the extreme tip-back wording of the original NPRM for condition would occur only at extreme reference. compliance time somewhat with the costs associated with normal slide aft center-of-gravity (CG) conditions and Requests To Revise Cost Impact Section replacement. Therefore, we have that there is a low probability of this Goodrich Aircraft Interior Products, changed paragraph (a) of this scenario resulting in a ‘‘time limited’’ All Nippon Airways (ANA), Boeing, and supplemental NPRM to propose a (90-second) evacuation. American Air Transport Association (ATA), on compliance time of within 72 months Airlines further states that there is a low behalf of its member American Airlines, after the effective date of the AD. probability of encountering the extreme all request that we revise the Cost We have also considered the other tip-back position, based on no such Impact section of the NPRM. All reasons commenters gave for extending occurrences having been encountered commenters state that the costs shown the compliance time, as discussed over the course of the fleet’s high below. number of flight cycles. in the NPRM are incomplete and should • be revised. We have determined that an We do not agree with the commenters’ We agree with the commenters. The interval based on the ‘‘useful service requests to withdraw the original Cost Impact section of the NPRM did life’’ of the slides, which is 15 years, NPRM. We consider this to be an unsafe not include the cost of the slide-rafts. would not address the unsafe condition condition for the reasons already given in a timely manner. in the original NPRM and for the We have revised the Cost Impact section • of the supplemental NPRM to include We do not agree that having no following reasons. those costs. reported incidents of airplanes tipping While we have received information back beyond the certified sill heights is from the airplane manufacturer that Requests To Extend Compliance Time sufficient justification for extending the indicates that engines could not Boeing, ANA, and Air New Zealand proposed compliance time. While the necessarily shear off the airplane at request that we extend the compliance specific condition addressed in this speeds experienced during taxi, takeoff, time. The commenters suggest supplemental NPRM has not been landing, or even under some emergency extending the compliance time from the encountered in service, we have landing situations, further information proposed 5 years to between 8 and 15 received reports of similar, but less from the manufacturer indicates that the years. The commenters make their severe, accidents and incidents that CG associated with this condition is requests to extend the compliance time could have been more severe given well within the current accepted for numerous reasons, including: slightly different conditions. operating parameters and is not an • The proposed rule has a high • We do not agree that the exit slides extreme condition. However, operators economic impact on the operators, with and slide-rafts on the opposite side of may consider CG restrictions and may small benefit to safety. Data are missing the airplane would remain within the make proposals for alternative methods from the Cost Impact section of the certified sill heights and provide a of compliance (AMOC) consideration proposed rule. means of safe exit. The gear failure may under the provisions of paragraph (d) of • The established replacement be associated with or may have caused the supplemental NPRM. We will program (useful service life) of the life- other damage that would not only raise consider requests for approval of an limited slides and slide rafts is 15 years. the exit heights on the far side of the AMOC if sufficient data are submitted to • There have been no reports of airplane, but also could render the exits substantiate that the proposal would airplanes tipping back beyond the on the near side of the airplane unsafe provide an acceptable level of safety. certified sill height. and/or unusable. In addition, although the specific • The exit slides and slide-rafts on • The slide manufacturer has conditions addressed in the proposed the opposite side of the airplane would indicated that it is prepared to support rule have not been encountered in remain within the certified sill heights operators with sufficient supplies of service, we have received reports of and corresponding sliding angles due to replacement slides and slide-rafts for partial tip-back during accidents/ the roll of the airplane associated with the worldwide fleet within the incidents that could have resulted in

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extreme tip-back given slightly different airplanes and does not include Model Removal of Table 1 of the Original conditions, making this type of event 767–300F series airplanes; therefore, no NPRM foreseeable. During at least one of these change to the supplemental NPRM is We have removed Table 1 of the partial tip-back events, the slides were necessary to exclude these airplanes original NPRM. That table contains deployed to facilitate evacuation. We do from the applicability. However, we information about specific replacement not agree that the low probability of have revised the applicability statement procedures in Boeing Alert Service encountering such a foreseeable event is of the supplemental NPRM to state that Bulletin 767–25–0266 that are necessary justification to withdraw the original only Boeing Model 767–200 and –300 for each airplane group. We find that NPRM. series airplanes that are equipped with information is readily available in any Request To Limit the Applicability of door-mounted escape slide systems are revision of the service bulletin and the Original NPRM affected. therefore not necessary to include in the supplemental NPRM. UPS and ABX Air request that we Request To Remove Paragraph (b) of revise the applicability of the original the Original NPRM Conclusion NPRM. UPS requests that we remove ABX Air recommends that we remove Certain changes described above certain Model 767–300F series airplanes expand the scope of the original NPRM. paragraph (b) of the original NPRM from the applicability of the proposed As a result, we have determined that it because the second sentence in the rule because they have a different egress is necessary to reopen the comment system. ABX Air requests that the proposed rule, ‘‘Compliance: Required period to provide additional applicability of the proposed rule be as indicated, unless accomplished opportunity for the public to comment limited to those airplanes that are previously,’’ already gives operators on this supplemental NPRM. required to be equipped with the credit for accomplishing the actions affected escape slides. For example, the before the effective date of the AD. Cost Impact Model 767–300F (freighter) and Model We agree with the request to remove There are approximately 745 767–200 or 767–300 series airplanes paragraph (b) of the original NPRM. airplanes of the affected design in the that have been modified from a Paragraph (b) was intended to give worldwide fleet. The FAA estimates that passenger configuration to a cargo operators credit for accomplishing 261 airplanes of U.S. registry would be configuration are not subject to the actions in accordance with an earlier affected by this supplemental NPRM. unsafe condition addressed by the version of the referenced service The work hours and required parts per proposed rule. bulletin. However, in this case, there is airplane vary according to the We agree that airplanes that are not no earlier version of the service bulletin, configuration group to which the required to be equipped with slides and affected airplane belongs. The average and paragraph (b) was included slide-rafts are not subject to this unsafe labor rate is $80 per work hour. The inadvertently in the original NPRM. We condition. The applicability statement ‘‘Cost Impact Per Airplane have revised the supplemental NPRM of the original NPRM currently includes Configuration Group’’ table shows the only Model 767–200 and 767–300 series accordingly. estimated costs.

COST IMPACT PER AIRPLANE CONFIGURATION GROUP

Fleet cost, by Airplane configuration group U.S.-registered Work hours Kit cost Slide cost Cost per configuration airplanes airplane group

1 ...... 208 6 $1,236 $174,400 $176,116 $36,632,128 2 ...... 12 12 2,472 354,264 357,696 4,292,352 3 ...... 41 11 98,858 174,400 274,138 11,239,658 4 ...... 0 11 34,012 174,400 209,292 0 5 ...... 0 17 35,248 354,264 390,872 0

Based on the figures in the ‘‘Cost planning time, or time necessitated by for practices, methods, and procedures Impact Per Airplane Configuration other administrative actions. the Administrator finds necessary for Group’’ table, the cost impact of this Authority for This Rulemaking safety in air commerce. This regulation supplemental NPRM on U.S. operators is within the scope of that authority is estimated to be $52,164,138. Title 49 of the United States Code because it addresses an unsafe condition The cost impact figures discussed specifies the FAA’s authority to issue that is likely to exist or develop on above are based on assumptions that no rules on aviation safety. Subtitle I, products identified in this rulemaking operator has yet accomplished any of Section 106, describes the authority of action. the proposed requirements of this AD the FAA Administrator. Subtitle VII, action, and that no operator would Aviation Programs, describes in more Regulatory Impact accomplish those actions in the future if detail the scope of the Agency’s The regulations proposed herein this AD were not adopted. The cost authority. would not have a substantial direct impact figures discussed in AD We are issuing this rulemaking under rulemaking actions represent only the the authority described in Subtitle VII, effect on the States, on the relationship time necessary to perform the specific Part A, Subpart III, Section 44701, between the national Government and actions actually required by the AD. ‘‘General requirements.’’ Under that the States, or on the distribution of These figures typically do not include section, Congress charges the FAA with power and responsibilities among the incidental costs, such as the time promoting safe flight of civil aircraft in various levels of government. Therefore, required to gain access and close up, air commerce by prescribing regulations it is determined that this proposal

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would not have federalism implications Authority: 49 U.S.C. 106(g), 40113, 44701. installed (Boeing P/N S416T214–3, under Executive Order 13132. S416T214–4, S416T214–2, and S416T214–1, For the reasons discussed above, I § 39.13 [Amended] respectively). Do the inspection in certify that this proposed regulation (1) 2. Section 39.13 is amended by accordance with the Accomplishment is not a ‘‘significant regulatory action’’ adding the following new airworthiness Instructions of Boeing Alert Service Bulletin under Executive Order 12866; (2) is not directive: 767–25A0395, Revision 1, dated January 25, a ‘‘significant rule’’ under the DOT Boeing: Docket 2001–NM–237–AD. 2007. A review of airplane maintenance Regulatory Policies and Procedures (44 Applicability: Model 767–200 and –300 records is acceptable in lieu of this FR 11034, February 26, 1979); and (3) if series airplanes, line numbers 1 through 793 inspection if the P/N of the slide-raft can be promulgated, will not have a significant inclusive, certificated in any category; conclusively determined from that review. economic impact, positive or negative, equipped with door-mounted escape slide (1) If no affected P/N is installed, no on a substantial number of small entities systems. further action is required by this paragraph. under the criteria of the Regulatory Compliance: Required as indicated, unless (2) If any affected P/N is installed, before Flexibility Act. A copy of the draft accomplished previously. further flight, lengthen the firing cable and regulatory evaluation prepared for this To prevent the escape slides and slide-rafts test the valve of the inflation trigger system of the forward and mid-cabin entry and of the escape slide-raft in accordance with action is contained in the Rules Docket. service doors from being too steep for the Accomplishment Instructions of Boeing A copy of it may be obtained by evacuation in the event that the airplane contacting the Rules Docket at the rotates onto the aft fuselage into the extreme Alert Service Bulletin 767–25A0395, location provided under the caption tip-back condition, accomplish the following: Revision 1, dated January 25, 2007. ‘‘ADDRESSES.’’ Note 1: Boeing Alert Service Bulletin 767– Replacement of Slide-Rafts 25A0395, Revision 1, refers to Goodrich List of Subjects in 14 CFR Part 39 (a) Within 72 months after the effective Service Bulletin 5A3294/5A3295–25–362, Air transportation, Aircraft, Aviation date of this AD, replace the applicable slide- dated July 25, 2006, as an additional source rafts at the applicable door or doors, and do safety, Safety. of service information for lengthening the all other applicable actions including, but not firing cable and testing the valve of the The Proposed Amendment limited to, changing the latches, and inflation trigger system of the escape slide- Accordingly, pursuant to the replacing or modifying the counterbalance assemblies, by accomplishing all applicable raft. authority delegated to me by the actions specified in the Accomplishment Administrator, the Federal Aviation Instructions in Boeing Service Bulletin 767– Credit for Actions Accomplished Previously Administration proposes to amend part 25A0266, Revision 2, dated September 27, (c) Actions done before the effective date 39 of the Federal Aviation Regulations 2007. of this AD in accordance with the service (14 CFR part 39) as follows: Modification of the Firing Cable bulletins listed in Table 1 of this AD are acceptable for compliance with the (b) Within 72 months after the effective PART 39—AIRWORTHINESS corresponding requirements of this AD. DIRECTIVES date of this AD, do a general visual inspection of the slide-raft(s) to determine if 1. The authority citation for part 39 supplier part number (P/N) 5A3294–1, continues to read as follows: 5A3294–2, 5A3295–1, or 5A3295–3 is

TABLE 1.—PREVIOUS REVISIONS OF SERVICE BULLETINS

Boeing Alert Service Bulletin Revision level Date

767–25A0266 ...... 1 ...... December 4, 2006. 767–25A0395 ...... Original ...... August 31, 2006.

Alternative Methods of Compliance DEPARTMENT OF THE TREASURY Internal Revenue Code (ASC). The (d)(1) The Manager, Seattle Aircraft regulations implement changes to the Certification Office (ACO), FAA, has the Internal Revenue Service credit for increasing research activities authority to approve AMOCs for this AD, if under section 41 made by the Tax Relief requested in accordance with the procedures 26 CFR Part 1 and Health Care Act of 2006 and will found in 14 CFR 39.19. [REG–149405–07] affect certain taxpayers claiming the (2) To request a different method of section 41 credit. The text of those compliance or a different compliance time RIN 1545–BH32 regulations also serves as the text of for this AD, follow the procedures in 14 CFR these proposed regulations. This Alternative Simplified Credit under 39.19. Before using any approved AMOC on document also provides notice of a Section 41(c)(5) any airplane to which the AMOC applies, public hearing on these proposed notify your appropriate principal inspector AGENCY: Internal Revenue Service (IRS), regulations. (PI) in the FAA Flight Standards District Treasury. DATES: Written or electronic comments Office (FSDO), or lacking a PI, your local ACTION: Notice of proposed rulemaking FSDO. must be received by September 15, by cross-reference to temporary 2008. Outlines of topics to be discussed Issued in Renton, Washington, on June 5, regulations and notice of public hearing. at the public hearing scheduled for 2008. SUMMARY: In the Rules and Regulations September 25, 2008, must be received Michael J. Kaszycki, section in this issue of the Federal by September 4, 2008. Acting Manager, Transport Airplane Register, the IRS is issuing temporary ADDRESSES: Send submissions to: Directorate, Aircraft Certification Service. regulations relating to the election and CC:PA:LPD:PR (REG–149405–07), room [FR Doc. E8–13579 Filed 6–16–08; 8:45 am] calculation of the alternative simplified 5203, Internal Revenue Service, PO Box BILLING CODE 4910–13–P credit under section 41(c)(5) of the 7604, Ben Franklin Station, Washington,

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DC 20044. Submissions may be hand Comments and Public Hearing the agenda will be available free of delivered Monday through Friday charge at the hearing. Before these proposed regulations are between the hours of 8 a.m. and 4 p.m. adopted as final regulations, Drafting Information to: CC:PA:LPD:PR (REG–149405–07), consideration will be given to any Courier’s Desk, Internal Revenue The principal author of these written comments (a signed original and Service, 1111 Constitution Avenue, regulations is David Selig, Office of eight (8) copies) or electronic comments NW., Washington, DC, or sent Associate Chief Counsel (Passthroughs that are submitted timely to the IRS. All electronically via the Federal and Special Industries). However, other comments will be available for public eRulemaking Portal at http:// personnel from the IRS and the Treasury inspection and copying. The IRS and www.regulations.gov (IRS REG–149405– Department participated in their the Treasury Department invite 07). The public hearing will be held in development. taxpayers to submit comments on the the IRS Auditorium, Internal Revenue proposed regulations and issues relating List of Subjects in 26 CFR Part 1 Building, 1111 Constitution Avenue, to the election and calculation of the NW., Washington, DC. Income taxes, Reporting and ASC under section 41(c)(5). In recordkeeping requirements. FOR FURTHER INFORMATION CONTACT: particular, the IRS and the Treasury Concerning the proposed regulations, Department encourage taxpayers to Proposed Amendments to the David Selig, (202) 622–3040; concerning submit comments on the following Regulations submission of comments, the hearing, issues: Accordingly, 26 CFR part 1 is and/or to be placed on the building Should the regulations allow a proposed to be amended as follows: access list to attend the hearing, Regina controlled group to make an election to Johnson, (202) 622–7180 (not toll-free PART 1—INCOME TAXES use the ASC both for computation of the numbers). group credit and computation of every Paragraph 1. The authority citation SUPPLEMENTARY INFORMATION: member’s stand-alone entity credit, even for part 1 is amended by adding entries Background if the ASC does not provide the greatest in numerical order to read in part as stand-alone entity credit? follows: Temporary regulations in the Rules If so, how should that election be and Regulations section of this issue of Authority: 26 U.S.C. 7805 * * * made and by whom? the Federal Register amend the Income Section 1.41–8 also issued under 26 U.S.C. Tax Regulations (26 CFR Part 1) relating What relief should be made available 41(c)(4)(B); Section 1.41–9 also issued under 26 U.S.C. 41(c)(5)(C); * * * to section 41. The temporary regulations to taxpayers that have used provide guidance concerning the methodologies inconsistent with the Par. 2. Section 1.41–6 is amended by election and calculation of the short taxable year rules provided in revising paragraphs (b)(1), (c)(2), (e) and alternative simplified credit under these regulations on tax returns filed (j) to read as follows: section 41(c)(5). The text of those after the effective date of section 41(c)(5) regulations also serves as the text of and prior to the publication of these § 1.41–6 Aggregation of expenditures. these proposed regulations. The regulations? * * * * * preamble to the temporary regulations A public hearing has been scheduled (b)(1) [The text of the proposed explains these proposed regulations. for September 25, 2008, at 10 a.m. in the amendment to § 1.41–6(b)(1) is the same IRS Auditorium, Internal Revenue as the text of § 1.41–6T(b)(1) published Special Analyses Building, 1111 Constitution Avenue, elsewhere in this issue of the Federal It has been determined that this notice NW., Washington, DC. Due to building Register.] of proposed rulemaking is not a security procedures, visitors must enter * * * * * significant regulatory action as defined at the Constitution Avenue entrance. In (c) * * * in Executive Order 12866. Therefore, a addition, all visitors must present photo (2) [The text of the proposed regulatory assessment is not required. It identification to enter the building. amendment to § 1.41–6(c)(2) is the same also has been determined that section Because of access restrictions, visitors as the text of § 1.41–6T(c)(2) published 553(b) of the Administrative Procedure will not be admitted beyond the elsewhere in this issue of the Federal Act (5 U.S.C. chapter 5) does not apply immediate entrance area more than 30 Register]. to these regulations. It is hereby minutes before the hearing starts. For * * * * * certified that these regulations will not information about having your name (e) [The text of the proposed have a significant economic impact on placed on the building access list to amendment to § 1.41–6(e) is the same as a substantial number of small entities. attend the hearing, see the FOR FURTHER the text of § 1.41–6T(e) published Although a substantial number of small INFORMATION CONTACT section of this elsewhere in this issue of the Federal entities may make an election under preamble. Register]. these regulations, any economic impact The rules of 26 CFR 601.601(a)(3) * * * * * is minimal because an election under apply to the hearing. Persons who wish (j) [The text of the proposed these regulations generally will simplify to present oral comments at the hearing amendment to § 1.41–6(j) is the same as the calculation of the credit and may must submit electronic or written the text of § 1.41–6T(j) published result in a benefit to the taxpayer. comments by September 15, 2008, and elsewhere in this issue of the Federal Accordingly, a regulatory flexibility an outline of the topics to be discussed Register]. analysis under the Regulatory and the time to be devoted to each topic Par. 3. Section 1.41–8 is amended by Flexibility Act (5 U.S.C. chapter 6) is (a signed original and eight (8) copies) revising paragraphs (b)(2), (b)(3), (b)(4) not required. Pursuant to section 7805(f) by September 4, 2008. A period of 10 and (b)(5) to read as follows: of the Internal Revenue Code, these minutes will be allotted to each person regulations will be submitted to the for making comments. An agenda § 1.41–8 Alternative incremental credit. Chief Counsel for Advocacy of the Small showing the scheduling of the speakers * * * * * Business Administration for comment will be prepared after the deadline for (b)(2) through (b)(5) [The text of on their impact on small business. receiving outlines has passed. Copies of proposed § 1.41–8(b)(2) through (b)(5) is

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the same as the text of § 1.41–8T(b)(2) review and seeks comment on the operating on the National Forests. through (b)(5) published elsewhere in flexibility assessment. Seventy-five percent of these companies this issue of the Federal Register.] DATES: Comments must be received, in are considered small business with less * * * * * writing, on or before July 17, 2008. than 500 employees. The size of these Par. 4. Section 1.41–9 is added to read ADDRESSES: Send written comments to 1,260 small businesses range from one as follows: Forest Service, USDA, Attn: Director, person to 499 employees. Total Minerals and Geology Management production ranges from zero production § 1.41–9 Alternative simplified credit. (MGM) Staff, (2810), Mail Stop 1126, for exploration companies to few [The text of proposed § 1.41–9 is the Washington, DC 20250–1125; by thousand dollars per year for very small same as the text of § 1.41–9T (a) through electronic mail to [email protected]; mining to several million dollars per (d) published elsewhere in this issue of by fax to (703) 605–1575. If comments year for the larger mining companies. the Federal Register.] are sent by electronic mail or by fax, the Most mining companies require at least public is requested not to send 20–25 percent profit to survive mining’s Steven T. Miller, duplicate written comments via regular volatile market. Acting Deputy Commissioner for Services and mail. The public may inspect comments Enforcement. Economic Impacts on Small Entities received on the proposed rule in the [FR Doc. 08–1363 Filed 6–13–08; 11:51am] Office of the Director, MGM Staff, 5th Increased operating costs from the BILLING CODE 4830–01–P Floor, Rosslyn Plaza Central, 1601 North proposed rule to small exploration and Kent Street, Arlington, Virginia, on mining companies is expected to be business days between the hours of 8:30 insignificant since the small entities are a.m. and 4 p.m. Those wishing to already working under the proposed DEPARTMENT OF AGRICULTURE inspect comments are encouraged to call rule through current direction and policy spelled out in the Forest Service Forest Service ahead at (703) 605–4646 to facilitate entry into the building. manual and handbooks. The proposed rule codifies much of the existing 36 CFR Parts 223, 228, 261, 292, and FOR FURTHER INFORMATION CONTACT: direction and policy. 293 Mike Doran, Minerals and Geology Management Staff, (208) 373–4132. The most direct costs from the Regulatory Flexibility Act Individuals who use telecommunication proposed regulations will come from Assessment—Locatable Minerals devices for the deaf (TDD) may call the how much time and money is spent on Operations Federal Information Relay Service filling out and filing the required notice (FIRS) at 1–800–877–8339 between 8 of intent, cessation of operations, or an AGENCY: Forest Service, USDA. a.m. and 8 p.m., Eastern Standard Time, operating plan. Table #1 records the ACTION: Notice of proposed rulemaking; Monday through Friday. 2007 annualized burden costs for an request for comment. Individuals who use operator. telecommunication devices for the deaf The United States Geological Survey SUMMARY: The Forest Service published (TDD) may call the Federal Information (USGS) published earnings information in the Federal Register a proposed rule Relay Service (FIRS) at 1–800–877–8339 pertaining to locatable mineral to revise the regulations for locatable between 8 a.m. and 8 p.m., Eastern operations. That information can be minerals operations conducted on Standard Time, Monday through Friday. found in the Mineral Commodity National Forest System lands. The SUPPLEMENTARY INFORMATION: The Summaries 2007. The USGS disclosed proposed rule considered impacts to assessment follows. that the estimated ‘‘Average weekly small entities under Executive Order earnings of production workers’’ for 13272 and the Small Business Description of Small Entities Affected metal mining in 2006 was $979. Based Regulatory Enforcement Fairness Act of The proposed rule (73 FR 15694, Mar. on 40 hours a week and on an 8-hour 1996 (SBREFA). However, the proposed 25, 2008) would directly affect all workday, the average hourly salary in rule did not make available nor seek exploration and mining companies. the locatable mineral arena is about comment on the small entities flexibility There are currently approximately 1,800 $24.48. This rate is reflected in Table assessment. This notice allows for exploration and mining companies #1.

TABLE #1.—2007 ANNUALIZED BURDEN COSTS

Annualized Information collection Number of Response Hour burden Total burden costs Cost per respondents frequency per collection hours @$24.48/hour respondent

Plan of operations ...... 319 1 12 3,828 $93,709 $293.76 Notice of intent ...... 1,396 1 2 2,792 20,318 14.55 Cessation of operations ...... 3 1 1 3 73 24.33

Each year the Forest Service surveys Operations and 415 Notices of Intent collection was $114,100. The estimated the regional offices to get an estimate of were received in 2007. All of these additional information collection costs how many Plans of Operations and plans and notices came from small for the proposed bonded notice are Notices of Intents were received. The entities. reflected in Table #2. latest figures indicate that 320 Plans of Total estimated 2007 costs for small entities to comply with the information

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TABLE #2.—2007 ANNUALIZED BURDEN COSTS FOR A BONDED NOTICE (Proposed Rule)

Annualized Information collection Number of Response Hour burden Total burden costs @$24.48/ Cost per respondents frequency per collection hours hour respondent

Bonded notice ...... 100 1 6 600 $14,688 $146.88

The field units provided an initial GENERAL SERVICES inputting ‘‘GSAR Case 2006–G502’’ estimate of 100 exploration and mining ADMINISTRATION under the heading ‘‘Comment or companies that would use the bonded Submission’’. Select the link ‘‘Send a notice instead of a plan of operation. A 48 CFR Part 501 Comment or Submission’’ that six hour burden per bonded notice was [GSAR Case 2006–G502; Docket 2008–0007; corresponds with GSAR Case 2006– assumed giving a total of 600 burden Sequence 5] G502. Follow the instructions provided to complete the ‘‘Public Comment and hours. Annualized costs to the small RIN 3090–AI53 entities would be $14,688. Submission Form’’. Please include your name, company name (if any), and General Services Acquisition The economic impact on an ‘‘GSAR Case 2006–G502’’ on your Regulation; GSAR Case 2006– individual respondent would be attached document. G502;Rewrite of GSAR Part 501; $114,100 + $14,688 = $128,788 divided • Fax: 202–501–4067. by 1,260 small businesses = $102.21. General Services Administration • Mail: General Services Acquisition Regulation System Administration, Regulatory Secretariat Conclusion AGENCY: Office of the Chief Acquisition (VPR), 1800 F Street, NW, Room 4035, The comments will be addressed in Officer, General Services ATTN: Laurieann Duarte, Washington, the final rule for locatable minerals Administration (GSA). DC 20405. Instructions: Please submit comments operations. The Forest Service has ACTION: Proposed rule. determined that the proposed rule will only and cite GSAR Case 2006–G502 in have an impact on a substantial number SUMMARY: The General Services all correspondence related to this case. All comments received will be posted of small businesses. However, the Administration (GSA) is proposing to without change to http:// economic impact of the proposed rule amend the General Services Acquisition Regulation (GSAR) to update the text www.regulations.gov, including any will not be significant. Under the personal and/or business confidential proposed rule small entities will have addressing the General Services Administration Acquisition Regulation information provided. the option of filing a bonded notice System. This rule is a result of the FOR FURTHER INFORMATION CONTACT: For rather than a plan of operation for short- General Services Administration clarification of content, contact Ms. term, low impact exploration proposals Acquisition Manual (GSAM) Rewrite Beverly Cromer at (202) 501–1448, or by rather the longer plan of operations Initiative undertaken by GSA to revise e-mail at [email protected]. For requiring more analysis and a longer the GSAM to maintain consistency with information pertaining to the status or approval time. The Forest Service the Federal Acquisition Regulation publication schedules, contact the expects the major impact from the (FAR), and to implement streamlined Regulatory Secretariat (VPR), Room proposed rule to be a reduction of and innovative acquisition procedures 4035, GS Building, Washington, DC paperwork burden for the small entities that contractors, offerors and GSA 20405, (202) 501–4755. Please cite which should be beneficial to small contracting personnel can utilize when GSAR Case 2006–G502. exploration and mining companies. entering into and administering SUPPLEMENTARY INFORMATION: contractual relationships. The GSAM The Forest Service hereby certifies A. Background that the proposed rule will not have incorporates the GSAR as well as significant economic impact on a internal agency acquisition policy. GSA published an Advance Notice of substantial number of small entities as GSA will rewrite each part of the Proposed Rulemaking (ANPR) with request for comments in the Federal defined by SBRFEA. GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the Register at 71 FR 7910, February 15, Dated: June 9, 2008. Federal Register. 2006, because GSA was beginning the Charles L. Myers, This rule covers the rewrite of GSAR review and update of the General Associate Deputy Chief, National Forest Part 501, General Services Services Administration Acquisition System. Administration Acquisition Regulation Regulation (GSAR). No public [FR Doc. E8–13446 Filed 6–16–08; 8:45 am] System. comments were received on GSAR Part 501. BILLING CODE 3410–11–P DATES: Interested parties should submit This GSAR rewrite will— written comments to the Regulatory • Change ‘‘you’’ to ‘‘contracting Secretariat on or before August 18, 2008 officer’’. to be considered in the formulation of • Maintain consistency with the FAR a final rule. but eliminate duplication. ADDRESSES: Submit comments • Revise GSAR sections that are out- identified by GSAR Case 2006–G502 by of-date, or which imposed inappropriate any of the following methods: burdens on the Government or • Regulations.gov: http:// contractors, especially small businesses. www.regulations.gov.Submit comments • Streamline and simplify wherever via the Federal eRulemaking portal by possible.

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In addition, GSA has recently from small business concerns or other 5. Amend section 501.105–1 by reorganized into two, rather than three interested parties. revising paragraph (c) and removing services. Therefore, the reorganization paragraph (d) to read as follows: C. Paperwork Reduction Act of the Federal Supply Service (FSS) and the Federal Technology Service (FTS) The Paperwork Reduction Act does 501.105–1 Publication and code arrangement. into the Federal Acquisition Service not apply because the proposed changes (FAS) was considered in the rewrite to the GSAM do not impose information * * * * * initiative. collection requirements that require the (c) GSA Acquisition Manual, which This proposed rule contains the approval of the Office of Management can be found at http:// revisions made to Part 501, General and Budget under 44 U.S.C. 3501, et www.acquisition.gov/gsam. The GSAR Services Administration Acquisition seq. is found in the gray shaded areas within the General Services Administration Regulation System. Section 501.101 is List of Subjects in 48 CFR Part 501 Acquisition Manual (GSAM) text on the revised to explain that the General Government procurement. Services Administration Acquisition GSAM website. Dated: June 9, 2008 Regulation (GSAR) implements or 501.105–3 [Amended] supplements the Federal Acquisition Al Matera, 6. Amend section 501.105–3 by Regulation (FAR) and to change ‘‘you’’ Director,Office of Acquisition Policy. removing ‘‘in CFR’’ and adding ‘‘in the to ‘‘contracting officer’’. Section Therefore, GSA proposes to amend 48 CFR’’ in its place. 501.103, Authority, is updated to add a CFR part 501 as set forth below: reference to the Office of Federal 1. The authority citation for 48 CFR 501.106 [Amended] part 501 revised to read as follows: Procurement Policy Act, 41 U.S.C. 421. 7. Amend section 501.106 by Section 501.104 is revised to address the Authority: 40 U.S.C. 121(c). removing GSAR Reference ‘‘511.104– type of acquisitions that the GSAR 70’’ with OMB Control Number ‘‘3090– PART 501—GENERAL SERVICES applies to and to clarify the GSAR/FAR 0203’’; adding GSAR Reference ADMINISTRATION ACQUISITION relationship. Subsection 501.105–1 is ‘‘514.201–1’’ with OMB Control Number REGULATION SYSTEM revised to state where the GSAM can be ‘‘3090–0163’’, and adding GSAR found online and to clarify the 2. Revise section 501.101 to read as Reference ‘‘515.204–1’’ with OMB difference between the GSAR and the follows: Control Number ‘‘3090–0163’’; GSAM. Subpart 501.106, is revised to removing GSAR Reference ‘‘523.370’’ provide updated OMB approval 501.101 Purpose. with OMB Control Number ‘‘3090– numbers under the Paperwork The General Services Administration 0205’’, removing GSAR Reference Reduction Act. New Section 501.107 is Acquisition Regulation (GSAR) ‘‘537.110(a) ’’ with OMB Control added to provide procedures regarding implements and supplements the Number ‘‘3090–0006’’, and removing certification requirements in accordance Federal Acquisition Regulation (FAR). It GSAR Reference ‘‘552.232–72’’ with with Section 29 of the Office of Federal contains agency acquisition policies and OMB Control Number ‘‘3090–0205’’; Procurement Policy Act (41 U.S.C. 425). practices, contract clauses, solicitation and adding GSAR Reference ‘‘552.238– It disallows any new requirements for a provisions, and forms that control the 75’’ with OMB Control Number ‘‘3090– certification by a contractor or offeror in relationship between GSA and 0235’’. the GSAR unless certain criteria are met. contractors, (including prospective 8. Add section 501.107 to read as Section 501.402 is deleted because it contractors). follows: repeats information contained in the FAR and is therefore unnecessary. 3. Revise section 501.103 to read as 501.107 Certifications. Sections 501.403 and 501.404 contain follows: (a) In accordance with Section 29 of minor editorial changes to make 501.103 Authority. the Office of Federal Procurement language clearer. Subsection 501.404– GSA’s Senior Procurement Executive Policy Act (41 U.S.C. 425), a new 71, Deviations to the nonregulatory (SPE) issues the GSAR under the general requirement for a certification by a GSAM, is revised to remove the authority of the Federal Property and contractor or offeror may not be language from the GSAR and place it in Administrative Services Act of 1949, as included in the GSAR unless— the GSAM because it is procedural, not amended. Additional authority is found (1) The certification requirement is regulatory. in the Office of Federal Procurement specifically imposed by statute; or This is not a significant regulatory Policy Act, at 41 U.S.C. 421. (2) The SPE provides written action and, therefore, was not subject to 4. Amend section 501.104 by revising justification to the Administrator for the review under Section 6(b) of Executive paragraphs (a) and (d) to read as follows: certification, and the Administrator Order 12866, Regulatory Planning and approves, in writing, the inclusion of Review, dated September 30, 1993. This 501.104 Applicability. the certification. rule is not a major rule under5 U.S.C. (a) General. The GSAR applies to all (b) Generally, no additional 804. acquisitions covered by the FAR. In certification requirement should be general, this means supplies and B. Regulatory Flexibility Act contained in solicitations or clauses. services, including construction. In However, in those rare instances where The General Services Administration addition, the GSAR covers other actions, the contracting officer must request does not expect this proposed rule to such as leasing in Part 570. certification of certain types of have a significant economic impact on * * * * * information, approval from the SPE is a substantial number of small entities (d) GSAR/FAR Relationship. The FAR required. within the meaning of the Regulatory is the primary document. The GSAR Flexibility Act, 5 U.S.C. 601, et seq., only implements and supplements the 501.402 [Removed] because no new requirements are being FAR. The GSAR may deviate from the 9. Remove section 501.402. placed on the vendor community. No Federal Acquisition Regulation (FAR), if 10. Revise section 501.403 to read as comments on this issue were received authorized. follows:

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501.403 Individual deviations. (c) A request for class deviations must floor of the West Building, 1200 New (a) An individual deviation affects fully describe the need for and the Jersey Ave., SE. The Docket only one contract action. nature of the deviation and be Management Facility is open between 9 (1) The HCA must approve an supported by appropriate a.m. and 5 p.m., Monday through individual deviation from the FAR. The documentation. Friday, except Federal Holidays. authority to grant an individual • Federal eRulemaking Portal: Go to deviation from the FAR may not be re- (d) Class deviations from the GSAR— http://www.regulations.gov. Follow the delegated. (1) Expire in 12 months, if not online instructions for submitting (2) An individual deviation from the extended; and comments. GSAR must be approved by the HCA. (2) May be rescinded earlier by GSA’s Instructions: All submissions must The authority to grant an individual SPE or by officials designated under include the agency name and docket deviation from the GSAR may be re- paragraph (a) of this section without number for this rulemaking. Note that delegated to the Contracting Director. prejudice to any action taken all comments received will be posted (b) If GSA delegates authority to previously. without change to http:// www.regulations.gov, including any another agency and requires compliance 501.404–71 [Removed] with the GSAR as a condition of the personal information provided. Please delegation, the Contracting Director in 12. Remove section 501.404–71. see the Privacy Act heading at the end the agency receiving the delegation may [FR Doc. E8–13593 Filed 6–16–08; 8:45 am] of this notice. approve individual deviations from the BILLING CODE 6820–61–S Docket: For access to the docket to GSAR unless the agency head receiving read background documents or the delegation designates another comments received, go to http:// official. DEPARTMENT OF TRANSPORTATION dms.dot.gov at any time or to Room W12–140 on the ground floor of the (c) A copy of the deviation must be National Highway Traffic Safety West Building, 1200 New Jersey Ave., provided to GSA’s SPE. Administration SE., Washington, DC, between 9 a.m. 11. Revise section 501.404 to read as and 5 p.m., Monday through Friday, follows: 49 CFR Part 531 except Federal Holidays. [Docket No. NHTSA–2008–0115] FOR FURTHER INFORMATION CONTACT: For 501.404 Class deviations. technical issues, contact Ken Katz, Lead (a) A class deviation affects more than Exemptions From Average Fuel Engineer, Fuel Economy Division, one contract action. A deviation for any Economy Standards; Passenger Office of International Policy, Fuel solicitation that will result in multiple Automobile Average Fuel Economy Economy, and Consumer Programs, at awards, or any solicitation under the Standards (202) 366–0846, facsimile (202) 493– Multiple Award Federal Supply 2290, electronic mail Schedule program is considered to be a AGENCY: National Highway Traffic [email protected]. For legal issues, class deviation, as more than one Safety Administration (NHTSA), contact Rebecca Yoon of the Office of contract action is affected. Each award Department of Transportation (DOT). the Chief Counsel, at (202) 366–2992. under such a solicitation is considered ACTION: Proposed rule; proposed SUPPLEMENTARY INFORMATION: an individual contract action. decision to grant exemption. (1) A proposed class deviation from Statutory Background the FAR must be forwarded by the SUMMARY: This proposed decision Pursuant to 49 U.S.C. 32902(d), cognizant HCA to GSA’s SPE for responds to a petition filed by Mosler NHTSA may exempt a low volume approval. Prior to approving a class Automotive (Mosler) requesting that it manufacturer of passenger automobiles deviation from the FAR, the SPE will be exempted from the generally from the generally applicable average consult with the Chairman of the applicable corporate average fuel fuel economy standards if NHTSA Civilian Agency Acquisition Council economy (CAFE) standard of 27.5 miles concludes that those standards are more (CAAC) in accordance with FAR per gallon (mpg) for model years 2008, stringent than the maximum feasible 1.404(a)(1). 2009 and 2010, and that, for Mosler, average fuel economy for that lower alternative standards be manufacturer and if NHTSA establishes (2) A proposed class deviation from established. In this document, NHTSA an alternative standard for that the GSAR must be forwarded by the proposes that the requested exemption manufacturer at its maximum feasible cognizant HCA to GSA’s SPE for be granted to Mosler and that an level. Under the statute, a low volume approval. alternative standard of 22.1 mpg be manufacturer is one that manufactured established for MYs 2008 through 2010. (worldwide) fewer than 10,000 (3) When an HCA knows that a DATES: Comments must be received on passenger automobiles in the second proposed class deviation will be or before July 17, 2008. model year before the model year for required on a permanent basis, the HCA ADDRESSES: You may submit comments which the exemption is sought (the should propose or recommend an by any of the following methods: affected model year) and that will appropriate FAR or GSAR revision. • Web Site: http:// manufacture fewer than 10,000 (b) If GSA delegates authority to www.regulations.gov. Follow the online passenger automobiles in the affected another agency and requires compliance instructions for submitting comments. model year. In determining the with the GSAR as a condition of the • Fax: 1–202–493–2251. maximum feasible average fuel delegation, the HCA in the agency • Mail: Docket Management Facility; economy, the agency is required under receiving the delegation may approve U.S. Department of Transportation, 1200 49 U.S.C. 32902(f) to consider: class deviations from the GSAR unless New Jersey Ave., SE., West Building, (1) Technological feasibility, the agency head receiving the delegation Ground Floor, Room W12–140, (2) Economic practicability, designates another official. A copy of Washington, DC 20590–001. (3) The effect of other motor vehicle the class deviation must be provided to • Hand Delivery: The Docket standards of the government on fuel GSA’s SPE. Management Facility is on the ground economy, and

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(4) The need of the United States to Under the circumstances, NHTSA continue to build high performance conserve energy. concludes that Mosler took reasonable cars, design changes that would remove The statute permits NHTSA to measures to submit a petition in as items traditionally offered on these establish alternative average fuel timely a manner as possible. The agency types of vehicles were not considered. economy standards applicable to notes that Mosler’s ability to enter the Such changes to the basic design would exempted low volume manufacturers in U.S. market apparently hinges on a be economically impracticable since one of three ways: (1) A separate favorable decision regarding its petition they could significantly reduce the standard for each exempted for an exemption from the advanced air demand for these automobiles, thereby manufacturer; (2) a separate average fuel bag requirements. Mosler has filed this reducing sales and causing significant economy standard applicable to each petition while awaiting a decision on economic injury to the low volume class of exempted automobiles (classes the other petition. Therefore, the agency manufacturer. would be based on design, size, price, has determined that good cause exists or other factors); or (3) a single standard Technology for Fuel Economy for the late submission of the petition. Improvement for all exempted manufacturers (49 This is consistent with previous U.S.C. 32902(d)(2)). determinations made by the agency with Mosler states that the requested fuel economy value of 22.1 mpg 2 represents Background Information on Mosler regard to the timeliness of petitions submitted by Spyker Automobielen B.V. the best possible CAFE that Mosler can Mosler is a U.S. company, organized (see 71 FR 49407; August 23, 2006; achieve for the 2008 through 2010 as a Florida corporation, formed in 1987 Docket No. NHTSA–2006–25593) and model years. Mosler argues that, as and owned by a single American DeTomaso Automobiles, Ltd. (see 64 FR racing-derived sports cars, its vehicles shareholder. The company headquarters 73476; December 30, 1999; Docket No. by their nature cannot maximize fuel are in Riveria Beach, Florida. There is NHTSA–99–6676). economy at the expense of speed or an engineering/assembly facility in power. Also, Mosler lags in being able Norfolk, England. The company has 25 Methodology Used To Project to apply the latest developments in fuel U.S. employees. Race car development Maximum Feasible Average Fuel efficiency technology because suppliers was initiated by the company in 1998, Economy Level for Mosler generally provide components and and the first street vehicle for the U.S. Baseline Fuel Economy technology to small manufacturers only market was produced in 2004. after supplying large manufacturers. Subsequently, U.S. street production To project the level of fuel economy Mosler argues that it cannot achieve was suspended because of issues with which could be achieved by Mosler in substantial fuel economy gains from compliance with Federal Motor Vehicle the 2008 through 2010 model years, changes to its chassis or body design. Safety Standard (FMVSS) No. 208, NHTSA considered whether there were Mosler is producing innovative sports Occupant Crash Protection. technical or other improvements that cars using state-of-the-art design. The petitioner stated that it would be feasible for these vehicles, and Mosler’s current vehicle, the MT900, is manufactured 15 vehicles in 2004. The whether the company currently plans to ultra lightweight. The double-wishbone petitioner estimates that it will produce incorporate such improvements in the suspension is unique. For its primary 40 vehicles in 2008, 50 vehicles in 2009, vehicles. The agency reviewed the structure, the MT900 utilizes a high and 60 vehicles in 2010.1 technological feasibility of any changes tech, high strength, lightweight and their economic practicability. The Mosler Petition advanced composite over an aluminum NHTSA interprets ‘‘technological honeycomb monocoque chassis. The NHTSA’s regulations on low volume feasibility’’ as meaning technology MT900 is aerodynamic, with a drag exemptions from CAFE standards state which would be available to Mosler for coefficient of 0.34cd. The weight of the that petitions for exemption must be use on its 2008 through 2010 model year vehicle is only 2440 pounds. Since the submitted ‘‘not later than 24 months automobiles. The areas examined for chassis/body configuration is small, before the beginning of the affected technologically feasible improvements aerodynamic, and lightweight, further model year, unless good cause for later were weight reduction, aerodynamic fuel economy improvements through submission is shown’’ (49 CFR improvements, engine improvements, changes to the chassis and body appear 525.6(b)). drive line improvements, and reduced to be limited. NHTSA received the petition from rolling resistance. Mosler also stated that it is unable to Mosler on June 19, 2007, seeking The agency interprets ‘‘economic change the supplier of the vehicle’s exemption from the passenger practicability’’ for the purpose of Corvette V8 engine. Mosler stated that is automobile fuel economy standards for petitions filed under 49 CFR part 525 as has revised the gear ratios in the MYs 2008 through 2010. This petition meaning the financial capability of the transmission so that the average was filed less than 24 months before the manufacturer to improve its average fuel operating engine RPM is 15% lower, beginning of MYs 2008 and 2009, and economy by incorporating improving gas mileage compared to the was therefore untimely under 49 CFR technologically feasible changes to its 2004 model year vehicle. Mosler also part 526 for those model years. Mosler 2008 through 2010 model year stated that the fuel economy label indicated that it only decided to resume automobiles. In assuming that values of the vehicle (15 mpg city and production for the U.S. market after it capability, the agency has always 22 mpg highway) are equal to or better filed a petition for an exemption from considered market demand as an than those of similar vehicles, e.g., the advanced air bag requirements in implicit part of the concept of economic Cadillac XLR (15/22), MB 550 SL (14/ January 2007. The decision to file for practicability. 22), Lamborghini Gallardo (12/18), this exemption was only made after In accordance with the concerns of Ferrari F 430 (13/17), and Aston Martin NHTSA granted similar exemptions in economic practicability, NHTSA has V8 (13/19). September 2006. considered only those potential fuel economy improvements that would be 2 This number is .05 mpg less than forecasted in 1 As explained later in this notice, Mosler’s order to allow for potential development and production of any vehicles is contingent upon the compatible with the basic design production variation. NHTSA also notes that fuel grant of a pending petition for exemption under 49 concepts of Mosler’s automobiles. Since economy compliance is determined in tenths of CFR part 555. NHTSA assumes that Mosler will mpg.

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Model Mix Mosler vehicles.3 This is insignificant persons with physical impairments. The compared to the fuel used daily by the agency’s experience in establishing Mosler has no opportunity to improve entire motor vehicle fleet, which exemptions indicates that selection of a its fuel economy by changing its fleet amounts to over 9 million barrels per single standard would be inappropriate. mix since it has stated that it will only day for motor vehicles in the United Such a standard would have little export one model to the U.S. during the States (USDOE/EIA, Monthly Energy impact on energy conservation while years for which this petition was filed. Review, September 2007, Table 5.13c).4 doing little to ease the burdens faced by small manufacturers which cannot meet Effect of Other Motor Vehicle Standards Maximum Feasible Average Fuel the fuel economy standards applicable of the Government Economy for Mosler to larger manufacturers. Similarly, the The need to comply with the FMVSS The agency has tentatively concluded agency is not proposing to establish and other regulations are anticipated to that it would not be technologically alternative standards based on different have an adverse effect on the fuel feasible and economically practicable classes of vehicles. Again, the agency’s economy of Mosler’s vehicles and on for Mosler to improve the fuel economy experience has been that vehicles Mosler’s ability to improve its fuel of its MY 2008 through 2010 fleets manufactured by low volume economy. These standards include above an average of 22.1 mpg for those manufacturers may differ widely in size, years, that Federal automobile standards FMVSS No. 208, Occupant Crash price, design or other factors. Based on would not adversely affect achievable Protection, and FMVSS No. 214, Side the information available at this time, fuel economy beyond the amount Impact Protection, and upcoming we do not believe it would be already factored into Mosler’s amendments to FMVSS No. 216, Roof appropriate to establish class-based projections, and that the national effort Crush Resistance. These standards may alternative standards. to conserve energy would not be reduce achievable fuel economy values, affected by granting the requested Regulatory Impact Analyses since they result in increased vehicle exemption and establishing an NHTSA has analyzed this decision weight. Mosler’s projection reflected the alternative standard. and determined that neither Executive impact of these standards. Mosler is a Consequently, the agency tentatively Order 12866 nor the Department of small company and engineering concludes that the maximum feasible Transportation’s regulatory policies and resources are limited, limiting the average fuel economy for Mosler should procedures apply. Under Executive amount of resources Mosler can apply to be 22.1 mpg for MYs 2008, 2009 and Order 12866, the decision would not comply with both the mandatory 2010. establish a rule, which is defined in the standards and the fuel economy As discussed above, 49 U.S.C. chapter Executive Order as ‘‘an agency requirements. 329 permits NHTSA to establish an statement of general applicability and Additionally, as a small volume alternative average fuel economy future effect.’’ The decision is not manufacturer, the more stringent standard applicable to exempted generally applicable, since it would California evaporative emission manufacturers in one of three ways: (1) apply only to Mosler, as discussed in standards and the U.S. EPA Tier 2–LEV A separate standard may be established this notice. Under DOT regulatory II exhaust standards will be applicable. for each exempted manufacturer; (2) policies and procedures, the decision A portion of Mosler’s limited classes, based on design, size, price or would not be a ‘‘significant regulation.’’ engineering resources will have to be other factors, may be established for the If Departmental policies and procedures expended to comply with these more automobiles of exempted were applicable, the agency would have stringent standards. manufacturers, with a separate fuel determined that this decision is not economy standard applicable to each significant. The principal impact of the The Need of the United States To class; or (3) a single standard may be decision to exempt Mosler from the 27.5 Conserve Energy established for all exempted mpg standard is that they would not be manufacturers (49 U.S.C. 32902(d)(2)). The agency recognizes there is a need required to pay civil penalties if its The agency tentatively concludes that it maximum feasible average fuel economy to conserve energy, to promote energy would be appropriate to establish a (22.1 mpg) were achieved. Since this security, and to improve balance of separate standard for Mosler. tentative decision sets an alternative payments. However, as stated above, While the agency has the option of standard at the level determined to be NHTSA has tentatively determined that establishing a single standard for all the maximum feasible levels for Mosler it is not technologically feasible or exempted manufacturers, we note that for MYs 2008 through 2010, no fuel economically practicable for Mosler to previous exemptions have been granted would be saved by establishing a higher achieve an average fuel economy in to manufacturers of high-performance alternative standard. model years 2008 through 2010 above cars, luxury cars and specialized NHTSA found in the Section on ‘‘The the levels set forth in this proposed vehicles for the transportation of Need of the United States To Conserve decision. Granting an exemption to Energy’’ that because of the small size Mosler and setting an alternative 3 To estimate the additional fuel that could be of the Mosler fleet, that incremental standard at that level would not result consumed, NHTSA uses estimates of the average usage of gasoline by Mosler’s customers in an increase in fuel consumption since number of vehicles miles traveled (VMT) for the entire vehicle fleet over the lifetime of the vehicle would not affect the United States’ need Mosler cannot attain the generally (26 years). We then divide this figure by 22.1 mpg to conserve gasoline. Mosler is planning applicable standards. Nevertheless, the and 27.5 mpg, and the difference between the two to produce 150 vehicles for the U.S. agency estimates that the additional fuel amounts is the additional fuel usage per vehicle market by MY 2010. Given that over that could be consumed by operating over its lifetime at the reduced CAFE standard. The total additional fuel usage figure for the Mosler fleet 7,602,000 passenger cars were produced the MYs 2008 through 2010 fleets of is determined by multiplying this figure by the for sale in the U.S. market in MY 2006,5 Mosler’s vehicles for the expected estimated sales figures provided by Mosler. It is Mosler’s production of these vehicles lifetime of these vehicles at the CAFE of likely that this is actually an overestimate of the would amount to .001% of the U.S. 22.1 mpg (compared to a 27.5 mpg fleet) additional fuel that will be consumed, as these vehicles will likely have a VMT below the fleet is 10,315 barrels of fuel, or about 1.09 average. 5 ‘‘Summary of Fuel Economy Performance, barrels per day for the entire fleet of 4 http://www.eia.doe.gov/emeu/mer/ March 2007’’ (Docket NHTSA–2007–28040–1).

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market. Thus, there are not any impacts Privacy Act Statement in the Federal Issued on: June 10, 2008. for the public at large. Register published on April 11, 2000 Stephen R. Kratzke, The agency has also considered the (Volume 65, Number 70; Pages 19477– Associate Administrator for Rulemaking. environmental implications of this 78), or at http://www.regulations.gov. [FR Doc. E8–13505 Filed 6–16–08; 8:45 am] decision in accordance with the National Environmental Policy Act List of Subjects in 49 CFR Part 531 BILLING CODE 4910–59–P (NEPA) and determined that it would Energy conservation, Gasoline, not significantly affect the quality of the Imports, Motor vehicles. human environment. Regardless of the In consideration of the foregoing, 49 fuel economy of the exempted vehicles, CFR part 531 is proposed to be amended they must pass EPA emissions standards to read as follows: which measure the amount of regulated pollutant emissions per mile traveled. PART 531—[AMENDED] The incremental carbon dioxide emissions that might result from the 1. The authority citation for part 531 proposed alternative standards would continues to read as follows: have a de minimus effect on air quality, Authority: 49 U.S.C. 32902, delegation of due to the extremely small size of the authority at 49 CFR 1.50. Mosler vehicle fleet and the difference in miles per gallon required by the 2. Section 531.5 is amended by proposed alternative standards. Further, adding paragraph (b)(15) to read as since the exempted passenger follows: automobiles cannot achieve better fuel § 531.5 Fuel economy standards. economy than provided, the decision does not affect the amount of fuel used * * * * * or the amount of carbon dioxide (b) * * * emitted. * * * * * (16) Mosler Automotive. Privacy Act Please note that anyone is able to AVERAGE FUEL ECONOMY STANDARD search the electronic form of all comments received into any of our Model year Miles per dockets by the name of the individual gallon submitting the comment (or signing the comment, if submitted on behalf of an 2008 ...... 22.1 2009 ...... 22.1 association, business, labor union, etc.). 2010 ...... 22.1 You may review DOT’s complete

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Notices Federal Register Vol. 73, No. 117

Tuesday, June 17, 2008

This section of the FEDERAL REGISTER the collection of information unless it Frequency of Responses: Reporting: contains documents other than rules or displays a currently valid OMB control On occasion. proposed rules that are applicable to the number. Total Burden Hours: 1,352. public. Notices of hearings and investigations, committee meetings, agency decisions and Agricultural Marketing Service Charlene Parker, rulings, delegations of authority, filing of Title: 7 CFR part 54—Meats, Prepared Departmental Information Collection petitions and applications and agency Meats, and Meat Products (Grading, Clearance Officer. statements of organization and functions are [FR Doc. E8–13546 Filed 6–16–08; 8:45 am] examples of documents appearing in this Certification, and Standards) and 7 CFR section. part 62—Quality Systems Verification BILLING CODE 3410–02–P Programs (QSVP). OMB Control Number: 0581–0124. DEPARTMENT OF AGRICULTURE DEPARTMENT OF AGRICULTURE Summary of Collection: The Agricultural Marketing Act of 1946, as Submission for OMB Review; Submission for OMB Review; amended, authorizes the Secretary of Comment Request Comment Request Agriculture to provide consumers with June 11, 2008. June 11, 2008. voluntary Federal meat grading and The Department of Agriculture has certification services that facilitate the The Department of Agriculture has submitted the following information marketing of meat and meat products. submitted the following information collection requirement(s) to OMB for This is accomplished by providing meat collection requirement(s) to OMB for review and clearance under the and meat products that are uniform in review and clearance under the Paperwork Reduction Act of 1995, quality. The Meat Grading and Paperwork Reduction Act of 1995, Public Law 104–13. Comments Certification (MGC) Branch provides Public Law 104–13. Comments regarding (a) Whether the collection of these services under the authority of 7 regarding: (a) Whether the collection of information is necessary for the proper CFR part 54—Meats, Prepared Meats, information is necessary for the proper performance of the functions of the and Meat Products (Grading, performance of the functions of the agency, including whether the Certification, and Standards). The agency, including whether the information will have practical utility; Agricultural Marketing Service (AMS) information will have practical utility; (b) the accuracy of the agency’s estimate will collect information using forms LS– (b) the accuracy of the agency’s estimate of burden including the validity of the 313 and LS–315. of burden including the validity of the methodology and assumptions used; (c) The Quality Systems Verification methodology and assumptions used; (c) ways to enhance the quality, utility and Programs are a collection of voluntary, ways to enhance the quality, utility and clarity of the information to be audit-based, user-fee programs that clarity of the information to be collected; (d) ways to minimize the allow applicants to have program collected; (d) ways to minimize the burden of the collection of information documentation and program processes burden of the collection of information on those who are to respond, including assessed by AMS auditors and other on those who are to respond, including through the use of appropriate USDA officials. The QSVP are user-fees through the use of appropriate automated, electronic, mechanical, or based on the approved hourly rate automated, electronic, mechanical, or other technological collection established under 7 CFR part 62. other technological collection techniques or other forms of information Need and Use of the Information: The techniques or other forms of information technology should be addressed to: Desk information AMS collects on LS–313, technology should be addressed to: Desk Officer for Agriculture, Office of ‘‘Application for Service,’’ and LS–315, Officer for Agriculture, Office of Information and Regulatory Affairs, ‘‘Application for Commitment Grading Information and Regulatory Affairs, Office of Management or Certification Service’’ will enable the Office of Management and Budget (OMB), Agency to identify the responsible and Budget (OMB), [email protected] or authorities in establishments requesting [email protected] or fax (202) 395–5806 and to Departmental services and to initiate billing and fax (202) 395–5806 and to Departmental Clearance Office, USDA, OCIO, Mail collection accounts. A signed LS–313 or Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250– LS–315 form serves as a legal agreement Stop 7602, Washington, DC 20250– 7602. Comments regarding these between USDA users of the services, 7602. Comments regarding these information collections are best assured assures payment for services provided, information collections are best assured of having their full effect if received and constitutes authorization for any of having their full effect if received within 30 days of this notification. employee of AMS to enter the within 30 days of this notification. Copies of the submission(s) may be establishment for the purpose of Copies of the submission(s) may be obtained by calling (202) 720–8681. performing official functions under the obtained by calling (202) 720–8681. An agency may not conduct or regulations. Without a properly signed An agency may not conduct or sponsor a collection of information and approved form, AMS officials sponsor a collection of information unless the collection of information would not have the authority to enter unless the collection of information displays a currently valid OMB control the premises to provide grading and/or displays a currently valid OMB control number and the agency informs certification services. number and the agency informs potential persons who are to respond to Description of Respondents: Business potential persons who are to respond to the collection of information that such or other for-profit; Farms. the collection of information that such persons are not required to respond to Number of Respondents: 311. persons are not required to respond to

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the collection of information unless it legislated in 1985 under Section 1323 of collected; (d) ways to minimize the displays a currently valid OMB control the Food and Security Act of 1985. This burden of the collection of information number. action is needed to implement the on those who are to respond, including provision of Section 407 of the Health through the use of appropriate Rural Business-Cooperative Service and Human Services Act of 1986, which automated, electronic, mechanical, or Title: 7 CFR Part 1980–E, Business amended Section 1323 of the Food and other technological collection and Industry Loan Program. Security Act of 1985. 7 CFR part 1951, techniques or other forms of information OMB Control Number: 0570–0014. Subpart R contains regulations for technology should be addressed to: Desk Summary of Collection: Section 310B servicing and liquidating existing loans Officer for Agriculture, Office of of the Consolidated Farm and Rural previously approved and administered Information and Regulatory Affairs, Development Act (Con Act), legislated by the U.S. Department of Health and Office of Management in 1972 the Business and Industry (B&I) Human Services (HHS) under 45 CFR and Budget (OMB), program. The purpose of the program is part 1076 and transferred from HHS to [email protected] or to improve, develop, or finance the Department of Agriculture. This fax (202) 395–5806 and to Departmental businesses, industries, and employment subpart contains regulations for Clearance Office, USDA, OCIO, Mail and improve the economic and servicing and liquidating loans made by Stop 7602, Washington, DC 20250– environmental climate in rural RD, successor to the Farmers Home 7602. Comments regarding these communities, including pollution Administration under the Intermediary information collections are best assured abatement and control. This purpose is Relending Program to eligible of having their full effect if received achieved through bolstering the existing intermediaries and applies to ultimate within 30 days of this notification. private credit structure by making direct recipients and other involved parties. Copies of the submission(s) may be loans, thereby providing lasting Need and Use of the Information: The obtained by calling (202) 720–8958. community benefits. The B&I program is Intermediary will provide RD An agency may not conduct or administered by the Agency through information from, i.e. assets and sponsor a collection of information Rural Development State and sub-State liabilities, income statement and a unless the collection of information Offices serving the State. summary of its lending and guarantee displays a currently valid OMB control 7 CFR part 1980–E, in conjunction program. The required financial number and the agency informs with 7 CFR part 1942–A, and other information provided by the potential persons who are to respond to regulations, is currently used only for Intermediary is vital to RD for the the collection of information that such making B&I Direct Loans. 7 CFR part Agency to make sound credit and persons are not required to respond to 1951–E is used for servicing B&I Direct financial analysis decisions and monitor the collection of information unless it and Community Facility loans. All the program. displays a currently valid OMB control reporting and recordkeeping burden Description of Respondents: Not-for- number. profit institutions; business or other for- estimates for making and servicing B&I Food and Nutrition Service Guaranteed Loans have been moved to profit. the B&I Guaranteed Loan Program Number of Respondents: 420. Title: National Universal Product regulations, 7 CFR parts 4279–A and B Frequency of Responses: Reporting: Code (NUPC) Database. and 4287–B. Consequently, only a On occasion; quarterly; semi-annually; OMB Control Number: 0584–NEW. fraction of the total reporting and annually. Summary of Collection: The Food and recordkeeping burden for making and Total Burden Hours: 11,235. Nutrition Service (FNS) is authorized by the Child Nutrition and WIC servicing B&I Direct Loans is reflected Charlene Parker, in this document. Reauthorization Act of 2004–S.2507 to Departmental Information Collection establish a ‘‘National Universal Product Need and Use of the Information: RD Clearance Officer. will collect the minimum information Code (NUPC) database for use by all [FR Doc. E8–13548 Filed 6–16–08; 8:45 am] State agencies carrying out the needed from loan applicants and BILLING CODE 3410–XT–P commercial lenders to make program.’’ The purpose of this new data determinations regarding program collection process is to reduce the current burden on both manufacturers eligibility, the current financial DEPARTMENT OF AGRICULTURE condition of a business and loan and WIC State agencies. In response to security as required by the Con Act. The Submission for OMB Review; this mandate, FNS has developed a majority of the information is collected Comment Request NUPC database to serve as an electronic only once and the agency monitors the national repository of Women, Infant, progress of the business through the June 12, 2008. and Children (WIC) eligible foods that analysis of annual borrower financial The Department of Agriculture has have been authorized or approved by statements and visits to the borrower. submitted the following information FNS and/or WIC State agencies. Description of Respondents: collection requirement(s) to OMB for Need and Use of the Information: The Individuals or households; State, Local review and clearance under the NUPC database will help streamline the or Tribal Government. Paperwork Reduction Act of 1995, handling of product information for Number of Respondents: 152. Public Law 104–13. Comments State agencies, retailer and Frequency of Responses: Reporting: regarding (a) Whether the collection of manufacturers; allow more consistent On occasion. information is necessary for the proper oversight of WIC approved items; Total Burden Hours: 835. performance of the functions of the reduce the electronic processing needed agency, including whether the by State agencies; standardize the way Rural Business Service information will have practical utility; retailers obtain WIC UPC information; Title: 7 CFR 1951–R, Rural (b) the accuracy of the agency’s estimate and make it easier for State agencies to Development Loan Servicing. of burden including the validity of the begin using EBT processing by reducing OMB Control Number: 0570–0015. methodology and assumptions used; (c) the need to visit food retailer locations Summary of Collection: The Rural ways to enhance the quality, utility and to gather UPC and other product Development (RD) Loan Servicing was clarity of the information to be information. The NUPC database will

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allow manufacturers to submit product Secretary regarding the establishment of taken into account the needs of the details to the central database for quality and handling standards for all diverse groups within the peanut consideration by participating WIC State domestic and imported peanuts industry, membership shall include, to agencies when they approve products marketed in the United States. The Farm the extent practicable, individuals with for use. Bill requires the Secretary to consult demonstrated abilities to represent Description of Respondents: State, with the Board before the Secretary minorities, women, persons with Local, or Tribal Government; Business establishes or changes quality and disabilities, and limited resource or other for-profit. handling standards for peanuts. agriculture producers. Number of Respondents: 1,040. The Farm Bill provides that the Board Authority: 7 U.S.C. 7958. Frequency of Responses: Reporting: consist of 18 members, with three On occasion. producers and three industry Dated: June 11, 2008. Total Burden Hours: 1,938. representatives from the States specified Lloyd C. Day, Ruth Brown, in each of the following producing Administrator, Agricultural Marketing regions: (a) Southeast (Alabama, Service. Departmental Information Collection Clearance Officer. Georgia, and Florida); (b) Southwest [FR Doc. E8–13581 Filed 6–16–08; 8:45 am] (Texas, Oklahoma, and New Mexico); [FR Doc. E8–13610 Filed 6–16–08; 8:45 am] BILLING CODE 3410–02–P and (c) Virginia/Carolina (Virginia and BILLING CODE 3410–30–P North Carolina). For the initial appointments, the Farm DEPARTMENT OF COMMERCE Bill required the Secretary to stagger the DEPARTMENT OF AGRICULTURE terms of the members so that: (a) One Submission for OMB Review; Agricultural Marketing Service producer member and peanut industry Comment Request member from each peanut producing [Docket No. AMS–FV–08–0043; FV08–996– region serves a one-year term; (b) one The Department of Commerce will 1 N] producer member and peanut industry submit to the Office of Management and member from each peanut producing Budget (OMB) for clearance the Peanut Standards Board region serves a two-year term; and (c) following proposal for collection of AGENCY: Agricultural Marketing Service, one producer member and peanut information under the provisions of the USDA. industry member from each peanut Paperwork Reduction Act (44 U.S.C. Chapter 35). ACTION: Notice; request for nominations. producing region serves a three-year term. The term ‘‘peanut industry Agency: National Oceanic and SUMMARY: The Farm Security and Rural representatives’’ includes, but is not Atmospheric Administration (NOAA). Investment Act of 2002 requires the limited to, representatives of shellers, Title: Deep Seabed Mining Secretary of Agriculture to establish a manufacturers, buying points, marketing Regulations for Exploration Licenses. Peanut Standards Board (Board) for the associations and marketing Form Number(s): None. purpose of advising the Secretary on cooperatives. The Farm Bill exempted OMB Approval Number: 0648–0145. quality and handling standards for the appointment of the Board from the Type of Request: Regular submission. domestically produced and imported requirements of the Federal Advisory Burden Hours: 60. peanuts. The initial Board was Committee Act. The initial Board was Number of Respondents: 1. appointed by the Secretary and appointed by the Secretary and Average Hours per Response: Annual announced on December 5, 2002. USDA announced on December 5, 2002. reports, 20 hours; license extensions, 30 seeks nominations for individuals to be USDA invites those individuals, hours (annualized to 10 hours). considered for selection as Board organizations, and groups affiliated with Needs and Uses: The Deep Seabed members for terms of office ending June the categories listed above to nominate Hard Mineral Resources Act requires 30, 2011. Selected nominees sought by individuals for membership on the applicants for an exploration license to this action would replace those six Board. Nominees sought by this action submit information for NOAA to make producer and industry representatives would replace one producer and one a determination as to the applicants’ who are currently serving for the term industry member from each peanut eligibility to meet the provisions of the of office that ends June 30, 2008. The producing region who served for the legislation. Information will be used to Board consists of 18 members term of office that ends June 30, 2008. determine the financial, environmental representing producers and industry New members would serve for a 3-year and technological eligibility of the representatives. term of office ending June 30, 2011. applicant to meet the requirements of Nominees should complete a Peanut the Act to conduct exploration DATES: Written nominations must be Standards Board Background activities. The licensees are required to received on or before July 17, 2008. Information form and submit it to Mrs. submit annual reports, as well as license ADDRESSES: Nominations should be sent Clark. Copies of this form may be extensions when applicable. to Dawana J. Clark, Marketing Order obtained at the internet site: Affected Public: Business or other for- Administration Branch, Fruit and www.ams.usda.gov/fv (below the ‘‘See profit organizations. Vegetable Programs, AMS, USDA, Unit Also’’ section, select ‘‘More’’ then select Frequency: Annually and on occasion. 155, 4700 River Road, Riverdale, MD ‘‘Peanut Quality Standards’’ and below Respondent’s Obligation: Mandatory. 20737: Telephone: (301) 734–5243; Fax: ‘‘News’’ select Background Information OMB Desk Officer: David Rostker, (301) 734–5275; E-mail: Form), or from Mrs. Clark. USDA seeks (202) 395–3897. [email protected]. a diverse group of members representing Copies of the above information SUPPLEMENTARY INFORMATION: Section the peanut industry. collection proposal can be obtained by 1308 of the Farm Security and Rural Equal opportunity practices will be calling or writing Diana Hynek, Investment Act of 2002 (Farm Bill) followed in all appointments to the Departmental Paperwork Clearance requires the Secretary of Agriculture to Board in accordance with USDA Officer, (202) 482–0266, Department of establish a Peanut Standards Board policies. To ensure that the Commerce, Room 6625, 14th and (Board) for the purpose of advising the recommendations of the Board have Constitution Avenue, NW., Washington,

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DC 20230 (or via the Internet at Avenue, Finchley Road, London, UK, Company Ltd., Hooshang Seddigh, [email protected]). NW2 2PJ. Hamid Shakeri Hendi, Hossein Jahan Written comments and 2. Hooshang Seddigh, 15 Moreland Peyma, and Iran Air is necessary, in the recommendations for the proposed Court, Lyndale Avenue, Finchley Road, public interest, to prevent an imminent information collection should be sent London, UK, NW2 2PJ. violation of the EAR. In addition, I find within 30 days of publication of this 3. Hamid Shakeri Hendi, 5th Floor, 23 that a non-standard TDO naming Ankair notice to David Rostker, OMB Desk Nafisi Avenue, Shahrak Ekbatan, Karaj is necessary in the public interest to Officer, FAX number (202) 395–7285, or Special Road, Tehran, Iran. prevent an imminent violation of the [email protected]. 4. Hossein Jahan Peyma, 2/1 Markran EAR involving the Boeing 747. Cross, Heravi Square, Moghan Ave, Dated: June 11, 2008. This Order is being issued on an ex Pasdaran Cross, Tehran, Iran. parte basis without a hearing based Gwellnar Banks, 5. Iran Air, Second Floor, No. 23, upon BIS’s showing of an imminent Management Analyst, Office of the Chief Nafisi Avenue, Ekbatan, Tehran, Iran. violation. Information Officer. BIS also has requested that I issue a It is therefore ordered: [FR Doc. E8–13439 Filed 6–16–08; 8:45 am] non-standard Order temporarily First, that, Galaxy Aviation Trade BILLING CODE 3510–JS–P denying, for a period of 180 days, Company Ltd., 15 Moreland Court, certain export privileges under the EAR Lyndale Avenue, Finchley Road, of: London, UK, NW2 2PJ; Hooshang DEPARTMENT OF COMMERCE 6. Ankair, Yesilkoy Asfalti Istanbul Seddigh, 15 Moreland Court, Lyndale No. 13/4, Florya, Istanbul, Turkey TR– Bureau of Industry and Security Avenue, Finchley Road, London, UK, 34810. NW2 2PJ; Hamid Shakeri Hendi, 5th Action Affecting Export Privileges; Specifically, with regard to Ankair, Floor, 23 Nafisi Avenue, Shahrak Galaxy Aviation Trade Company Ltd.; BIS has requested that I temporarily Ekbatan, Karaj Special Road, Tehran, Hooshang Seddigh; Hamid Shakeri deny, for a period of 180 days, the Iran; Hossein Jahan Peyma, 2/1 Markran Hendi; Hossein Jahan Peyma; Iran Air; export privileges of Ankair relating to a Cross, Heravi Square, Moghan Ave, Ankair Boeing 747 that has the manufacturer Pasdaran Cross, Tehran, Iran; Iran Air, serial number 24134, and current tail Second Floor, No. 23, Nafisi Avenue, In the Matter of: number TC–AKZ (‘‘the Boeing 747’’). Ekbatan, Tehran, Iran (each a ‘‘Denied Galaxy Aviation Trade Company Ltd., 15 In its request, BIS has presented Person’’ and collectively the ‘‘Denied Moreland Court, Lyndale Avenue, Finchley evidence that Galaxy Aviation Trade Persons’’) may not, directly or Road, London, UK, NW2 2PJ; Company Ltd. (‘‘Galaxy’’) is preparing to indirectly, participate in any way in any Hooshang Seddigh, 15 Moreland Court, purchase immediately from Ankair, the transaction involving any commodity, Lyndale Avenue, Finchley Road, London, Boeing 747, currently located in Turkey, UK, NW2 2PJ; software or technology (hereinafter for immediate re-export to Iran, and collectively referred to as ‘‘item’’) Hamid Shakeri Hendi, 5th Floor, 23 Nafisi specifically to Iran Air in Tehran, Iran, Avenue, Shahrak Ekbatan, Karaj Special exported or to be exported from the Road, Tehran, Iran; without the U.S. Government United States that is subject to the Hossein Jahan Peyma, 2/1 Makran Cross, authorization required by Section 746.7 Export Administration Regulations Heravi Square, Moghan Ave, Pasdaran of the EAR. Additional evidence (‘‘EAR’’), or in any other activity subject Cross, Tehran, Iran; provided through corporate registration to the EAR including, but not limited to: Iran Air, Second Floor, No. 23 Nafisi Avenue, information shows that Hooshang A. Applying for, obtaining, or using Ekbatan, Tehran, Iran; Seddigh is a director and principal any license, license exception, or export Ankair, Yesilkoy Asfalti Istanbul No. 13/4, shareholder of Galaxy. Hamid Shakeri control document; Florya, Istanbul, Turkey TR–34810; Hendi also is a principal shareholder of Respondents. B. Carrying on negotiations Galaxy and has a listed address in the concerning, or ordering, buying, Order Temporarily Denying Export same building as Iran Air’s headquarters receiving, using, selling, delivering, Privileges in Tehran, Iran. Another Galaxy storing, disposing of, forwarding, Pursuant to Section 766.24 of the principal shareholder, Hossein Jahan transporting, financing, or otherwise Export Administration Regulations Peyma, also lists a Tehran, Iran address. servicing in any way, any transaction (‘‘EAR’’),1 the Bureau of Industry and Open source information, including involving any item exported or to be Security (‘‘BIS’’), U.S. Department of aviation Web sites, show the Boeing 747 exported from the United States that is Commerce, through its Office of Export at issue is registered in Turkey and subject to the EAR, or in any other Enforcement (‘‘OEE’’), has requested evidence presented by OEE indicates activity subject to the EAR; or that I issue an Order temporarily that Galaxy is seeking to purchase the C. Benefiting in any way from any denying, for a period of 180 days, the Boeing 747 from Ankair in the transaction involving any item exported export privileges under the EAR of: immediate future. or to be exported from the United States 1. Galaxy Aviation Trade Company I find that the evidence presented by that is subject to the EAR, or in any LTD, 15 Moreland Court, Lyndale BIS demonstrates that a violation of the other activity subject to the EAR. Regulations is imminent in both time Second, that no person may, directly 1 The EAR is currently codified at 15 CFR Parts and degree of likelihood. As such, a or indirectly, do any of the following: 730–774 (2008). The EAR are issued under the TDO is needed to give notice to persons A. Export or reexport to or on behalf Export Administration Act of 1979, as amended (50 and companies in the United States and of any Denied Person any item subject U.S.C. app. 2401–2420 (2000)) (‘‘EAA’’). Since abroad that they should cease dealing to the EAR; August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August with the Respondents in export B. Take any action that facilitates the 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which transactions involving items subject to acquisition or attempted acquisition by has been extended by successive presidential the EAR. Such a TDO is consistent with any Denied Person of the ownership, notices, the most recent being that of August 15, the public interest to preclude future possession, or control of any item 2007 (72 FR 46137 (August 16, 2007)), has continued the Regulations in effect under the violations of the EAR. subject to the EAR that has been or will International Emergency Economics Powers Act (50 Accordingly, I find that a TDO be exported from the United States, U.S.C. 1701–1706 (2000)) (‘‘IEEPA’’). naming Galaxy Aviation Trade including financing or other support

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activities related to a transaction person, firm, corporation, or business ADDRESSES: Direct all written comments whereby any Denied Person acquires or organization related to any of the to Diana Hynek, Departmental attempts to acquire such ownership, Respondents by affiliation, ownership, Paperwork Clearance Officer, possession or control; control, or position of responsibility in Department of Commerce, Room 6625, C. Take any action to acquire from or the conduct of trade or related services 14th and Constitution Avenue, NW., to facilitate the acquisition or attempted may also be made subject to the Washington, DC 20230 (or via the acquisition from any Denied Person of provisions of this Order. Internet at [email protected]). any item subject to the EAR that has Sixth, that this Order does not FOR FURTHER INFORMATION CONTACT: been exported from the United States; prohibit any export, reexport, or other Requests for additional information or D. Obtain from any Denied Person in transaction subject to the EAR where the copies of the information collection the United States any item subject to the only items involved that are subject to instrument and instructions should be EAR with knowledge or reason to know the EAR are the foreign-produced direct directed to Larry Hall, BIS ICB Liaison, that the item will be, or is intended to product of U.S.-origin technology. (202) 482–4896, [email protected]. be, exported from the United States; or In accordance with the provisions of SUPPLEMENTARY INFORMATION: E. Engage in any transaction to service Section 766.24(e) of the EAR, the any item subject to the EAR that has Respondents may, at any time, appeal I. Abstract been or will be exported from the this Order by filing a full written This collection is required in United States and which is owned, statement in support of the appeal with compliance with U.S. export possessed or controlled by any Denied the Office of the Administrative Law regulations. The information furnished Person, or service any item, of whatever Judge, U.S. Coast Guard ALJ Docketing by U.S. exporters provides the basis for origin, that is owned, possessed or Center, 40 South Gay Street, Baltimore, decisions to grant licenses for export, controlled by any Denied Person if such Maryland 21202–4022. service involves the use of any item In accordance with the provisions of reexport, and classifications of subject to the EAR that has been or will Section 766.24(d) of the EAR, BIS may commodities, goods and technologies be exported from the United States. For seek renewal of this Order by filing a that are controlled for reasons of purposes of this paragraph, servicing written request not later than 20 days national security and foreign policy. means installation, maintenance, repair, before the expiration date. The II. Method of Collection modification or testing. Respondents may oppose a request to Submitted electronically and on Third, that, Ankair, Yesilkoy Asfalti renew this Order by filing a written paper. Istanbul No. 13/4, Florya, Istanbul, submission with the Assistant Secretary Turkey TR 34810, may not, directly or for Export Enforcement, which must be III. Data indirectly, participate in any way in any received not later than seven days OMB Control Number: 0694–0088. transaction involving the Boeing 747 before the expiration date of the Order. Form Number(s): BIS–748P. (manufacturer serial number 24134, and A copy of this Order shall be served Type of Review: Business or other for- current tail number TC–AKZ) including, on the Respondents and shall be profit organizations. but not limited to: published in the Federal Register. A. Applying for, obtaining, or using This Order is effective upon issuance Estimated Number of Respondents: any license, license exception, or export and shall remain in effect for 180 days. 20,489. Estimated Time Per Response: 30 to control document involving Boeing 747 Entered this 6th day of June 2008. (manufacturer serial number 24134, and 90 minutes. Darryl W. Jackson, current tail number TC–AKZ); Estimated Total Annual Burden B. Carrying on negotiations Assistant Secretary of Commerce for Export Hours: 15,359. concerning, or ordering, buying, Enforcement. Estimated Total Annual Cost to receiving, using, selling, delivering, [FR Doc. E8–13571 Filed 6–16–08; 8:45 am] Public: $103,747. BILLING CODE 3510–DT–P storing, disposing of, forwarding, IV. Request for Comments transporting, financing, or otherwise servicing in any way, any transaction Comments are invited on: (a) Whether DEPARTMENT OF COMMERCE involving Boeing 747 (manufacturer the proposed collection of information is necessary for the proper performance serial number 24134, and current tail Bureau of Industry and Security number TC–AKZ); of the functions of the agency, including whether the information shall have C. Benefiting in any way from any Proposed Information Collection; practical utility; (b) the accuracy of the transaction involving Boeing 747 Comment Request; Multipurpose agency’s estimate of the burden (manufacturer serial number 24134, and Application current tail number TC–AKZ) (including hours and cost) of the Fourth, that no person may, directly AGENCY: Bureau of Industry and proposed collection of information; (c) or indirectly, do any of the following: Security. ways to enhance the quality, utility, and A. Export or re-export on behalf of ACTION: Notice. clarity of the information to be Ankair the Boeing 747 (manufacturer collected; and (d) ways to minimize the serial number 24134, and current tail SUMMARY: The Department of burden of the collection of information number TC–AKZ); or Commerce, as part of its continuing on respondents, including through the B. Take any action to acquire from, effort to reduce paperwork and use of automated collection techniques lease, or otherwise facilitate the respondent burden, invites the general or other forms of information acquisition or attempted acquisition public and other Federal agencies to technology. from Ankair of the Boeing 747 take this opportunity to comment on Comments submitted in response to (manufacturer serial number 24134, and proposed and/or continuing information this notice will be summarized and/or current tail number TC–AKZ). collections, as required by the included in the request for OMB Fifth, that after notice and Paperwork Reduction Act of 1995. approval of this information collection; opportunity for comment as provided in DATES: Written comments must be they also will become a matter of public section 766.23 of the EAR, any other submitted on or August 18, 2008. record.

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Dated: June 11, 2008. 2008, the Department extended the time file in the Central Records Unit Gwellnar Banks, limit for completion of the final results (‘‘CRU’’), Room 1117 of the main Management Analyst, Office of the Chief of this administrative review by 60 days. Department building. In addition, a Information Officer. See Fresh Garlic from the People’s copy of the Final Decision Memo can be [FR Doc. E8–13503 Filed 6–16–08; 8:45 am] Republic of China: Extension of Time accessed directly on our website at BILLING CODE 3510–33–P Limit for Final Results of the Twelfth http://www.ia.ita.doc.gov/. The paper Administrative Review, 73 FR 16640 copy and electronic version of the Final (March 28, 2008). On April 10, 2008, the Decision Memo are identical in content. DEPARTMENT OF COMMERCE Department conducted a public hearing, and counsel for the Petitioners, Dong Changes Since The Preliminary Results International Trade Administration Yun, and Qingdao Saturn participated. Based on a review of the record as [A–570–831] Scope Of The Order well as comments received from parties regarding our Preliminary Results, we The products covered by this Order Fresh Garlic from the People’s have made revisions to the margin are all grades of garlic, whole or Republic of China: Final Results and calculations for Dong Yun and Shanghai separated into constituent cloves, Partial Rescission of the 12th LJ for the final results. For all changes whether or not peeled, fresh, chilled, Administrative Review to the calculations for Dong Yun and frozen, provisionally preserved, or Shanghai LJ, see the Final Decision AGENCY: Import Administration, packed in water or other neutral Memo and the company–specific International Trade Administration, substance, but not prepared or analysis memoranda. Department of Commerce. preserved by the addition of other EFFECTIVE DATE: June 17, 2008. ingredients or heat processing. The Adverse Facts Available differences between grades are based on FOR FURTHER INFORMATION CONTACT: color, size, sheathing, and level of Section 776(a)(2) of the Tariff Act of Matthew Renkey, AD/CVD Operations, decay. The scope of this order does not 1930, as amended (‘‘the Act’’) provides Office 9, Import Administration, include the following: (a) garlic that has that if an interested party: (A) withholds International Trade Administration, been mechanically harvested and that is information that has been requested by U.S. Department of Commerce, 14th primarily, but not exclusively, destined the Department; (B) fails to provide such Street and Constitution Avenue, NW, for non–fresh use; or (b) garlic that has information in a timely manner or in the Washington, DC 20230; telephone: (202) been specially prepared and cultivated form or manner requested, subject to 482–2312. prior to planting and then harvested and subsections 782(c)(1) and (e) of the Act; SUPPLEMENTARY INFORMATION: otherwise prepared for use as seed. The (C) significantly impedes a Case History subject merchandise is used principally determination under the antidumping as a food product and for seasoning. The statute; or (D) provides such information On December 10, 2007, the subject garlic is currently classifiable but the information cannot be verified, Department of Commerce (the under subheadings 0703.20.0010, the Department shall, subject to ‘‘Department’’) published in the Federal 0703.20.0020, 0703.20.0090, subsection 782(d) of the Act, use facts Register the preliminary results of the 0710.80.7060, 0710.80.9750, otherwise available in reaching the administrative review of the 0711.90.6000, and 2005.90.9700 of the applicable determination. antidumping duty order on fresh garlic Harmonized Tariff Schedule of the Furthermore, section 776(b) of the Act from the People’s Republic of China United States (‘‘HTSUS’’). Although the provides that, if the Department finds (‘‘PRC’’). See Fresh Garlic from the HTSUS subheadings are provided for that an interested party ‘‘has failed to People’s Republic of China: Notice of convenience and customs purposes, our cooperate by not acting to the best of its Preliminary Results and Preliminary written description of the scope of this ability to comply with a request for Partial Rescission of the Twelfth order is dispositive. In order to be information,’’ the Department may use Administrative Review, 72 FR 69652 excluded from the Order, garlic entered information that is adverse to the (December 10, 2007) (‘‘Preliminary under the HTSUS subheadings listed interests of that party as facts otherwise Results’’) Since the Preliminary Results, above that is (1) mechanically harvested available. Adverse inferences are the following events have occurred. and primarily, but not exclusively, appropriate ‘‘to ensure that the party On January 9, 2008, The Fresh Garlic destined for non–fresh use or (2) does not obtain a more favorable result Producers Association: Christopher specially prepared and cultivated prior by failing to cooperate than if it had Ranch L.L.C.; The Garlic Company; to planting and then harvested and cooperated fully.’’ See Statement of Valley Garlic; and Vessey and Company, otherwise prepared for use as seed must Administrative Action (‘‘SAA’’) Inc. (‘‘Petitioners’’), Jinxiang Dong Yun be accompanied by declarations to CBP accompanying the URAA, H.R. Doc. No. Freezing Storage Co., Ltd. (‘‘Dong to that effect. 316, 103d Cong., 2d Session at 870 Yun’’), Shanghai LJ International (1994). An adverse inference may Trading Co., Ltd. (‘‘Shanghai LJ’’), and Analysis Of Comments Received include reliance on information derived Qingdao Saturn International Trade Co., All issues raised in the case and from the petition, the final Ltd. (‘‘Qingdao Saturn’’) submitted case rebuttal briefs by parties to this determination in the investigation, any briefs. After reviewing the case briefs, proceeding and to which we have previous review, or any other the Department instructed Dong Yun responded are listed in the Appendix to information placed on the record. See and Shanghai LJ to re–file their case this notice and addressed in the Issues section 776(b) of the Act. briefs because they contained untimely and Decision Memorandum (‘‘Final new factual information. Dong Yun and Decision Memo’’), which is hereby In the Preliminary Results, the Shanghai LJ filed the final versions of adopted by this notice. Parties can find Department assigned a rate based on the their redacted case briefs on January 16, a complete discussion of the issues use of total adverse facts available 2008. Also on January 16, 2008, the raised in this administrative review and (‘‘AFA’’) to the PRC–Wide Entity, Petitioners, Dong Yun, and Shanghai LJ the corresponding recommendations in including Huaiyang Hongda Dehydrated submitted rebuttal briefs. On January 23, this public memorandum which is on Vegetable Company (‘‘Huaiyang

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Hongda’’), and 19 other companies1, Preliminary Results, our examination of FRESH GARLIC FROM THE PRC because they failed either to respond to shipment data from CBP for the three no the Department’s two quantity and shipment companies confirmed that Weighted– value questionnaires, or in the case of Average there were no entries of subject Manufacturer/Exporter Margin Huaiyang Hongda, to the Department’s merchandise from them during the POR. (Percent) two supplemental questionnaires. See See Preliminary Results 73 FR at 69654. Preliminary Results, 73 FR at 69656–57. We also received no comments or Jinxiang Dong Yun Freezing As no parties provided comments on information to change our preliminary Storage Co., Ltd...... 19.97 these issues, we continue to find it rescission. Therefore, we are rescinding Shanghai LJ International Trad- appropriate to apply total AFA to the ing Co., Ltd...... 31.15 this administrative review with respect PRC–Wide Entity, including Huaiyang Qufu Dongbao Import & Export to all three aforementioned companies. Hongda, and the 19 other companies. Trade Co., Ltd...... 25.56 Weifang Shennong Foodstuff Voluntary Respondent Changes Since The Preliminary Results Co., Ltd...... 25.56 In the Preliminary Results, the We have revised the calculation of the Jinxiang Shanyang Freezing Storage Co., Ltd...... 25.56 Department did not calculate an garlic bulb surrogate value. In the Qingdao Xintianfeng Foods ...... 25.56 individual margin for Qingdao Saturn, Preliminary Results, the Department Shandong Longtai Fruits and which requested to be considered as a used an average of Grade A and Super– Vegetables Co., Ltd...... 25.56 voluntary respondent. See Preliminary A (from May 2006 to January 2007) Jining Trans–High Trading Co., Results, 73 FR at 69657–58. For these prices in its calculations. For these final Ltd...... 25.56 final results, the Department continues results, however, using Respondents’ Shenzhen Fanhui Import & Ex- to treat Qingdao Saturn as a separate port Co., Ltd...... 25.56 size data on the record (and the July Taian Ziyang Food Co., Ltd...... 25.56 rate respondent, rather than a voluntary 2007 Foreign Market Research Report’s respondent, and is not calculating an Anqiu Friend Food Co., Ltd...... 25.56 clarification on the size ranges of Grade individual margin for it. For a full Shanghai Ever Rich Trade Com- A and Super–A), the Department pany ...... 25.56 discussion of this issue, see Comment 6 Heze Ever–Best International of the Final Decision Memo. calculated a surrogate value based on the most appropriate Bulletin data. We Trade Co., Ltd...... 25.56 Final Partial Rescission have concluded that a more accurate Qingdao Saturn International Trade Co., Ltd...... 25.56 In the Preliminary Results, the analysis would be for the Department to Sunny Import & Export Co., Ltd. 25.56 Department preliminarily rescinded this use only Grade Super–A values for all Henan Weite Industrial Co., Ltd. 25.56 review with respect to the following Respondents that reported bulb sizes in Jinan Farmlady Trading Co., Ltd. 25.56 three companies: Golden Bridge ranges of 55 mm and above because PRC–Wide Entity3 ...... 376.67 International, Inc. (‘‘Golden Bridge’’), bulb sizes that are 55 mm and above are 3 The PRC-Wide entity includes Huaiyang Shanghai McCormick Foods Co., Ltd. typically classified as Grade Super–A. Hongda, APS Qingdao, Fujian Meitan, (‘‘Shanghai McCormick’’), and Zhangqiu However, we have also concluded that Hongchang, Jining Haijiang, Jining Solar, Qingyuan Vegetable Co., Ltd. it is appropriate to average Grade A and Jinxian County Huaguang, Laiwu Hongyang, (‘‘Zhangqiu Qingyuan’’).2 Golden Pizhou Guangda, Qingdao Bedow, Qingdao Super–A values for all Respondents that Camel, Qingdao H&T, Qingdao Potenza, Bridge, Shanghai McCormick, and reported bulb sizes in ranges below 55 Qingdao Shiboliang, Rizhao Xingda, Zhangqiu Qingyuan reported that they mm because both A and Super–A reflect Shandong Chengshun, Shandong Dongsheng, Shandong Garlic, Shanghai Ba-Shi, and T&S. had no shipments of subject bulb sizes greater than 40 mm. merchandise to the United States during Moreover, for the final results, we are Assessment Rates the POR. See Preliminary Results, 73 FR at 69654. As we stated in the also only using garlic bulb price data Pursuant to section 751(a)(2)(A) of the that are contemporaneous with the POR. Act and 19 CFR 351.212(b)(1), the 1 APS Qingdao; Fujian Meitan Import & Export For a complete explanation of the Department will determine, and CBP Xiamen Corporation (‘‘Fujian Meitan’’); Hongchang Department’s analysis, see the Issues shall assess, antidumping duties on all Fruits & Vegetable Products (‘‘Hongchang’’); Jining and Decision Memo at Comment 2. In Haijiang Trading Co., Ltd. (‘‘Jining Haijiang’’); appropriate entries. The Department Jining Solar Summit Trade Co., Ltd. (‘‘Jining addition, we are using the updated NME intends to issue assessment instructions Solar’’); Jinxian County Huaguang Food Import & wage rate for the PRC, see the Issues and to CBP 15 days after the date of Export Co., Ltd. (‘‘Jinxian County Huaguang’’); Decision Memo at Comment 4. Lastly, publication of these final results of Laiwu Hongyang Trading Company Ltd. (‘‘Laiwu Hongyang’’); Pizhou Guangda Import and Export we are calculating the separate rate review. For assessment purposes, where Co., Ltd. (‘‘Pizhou Guangda’’); Qingdao Bedow based on the simple average of the two possible, we calculated importer– Foodstuffs Co., Ltd. (‘‘Qingdao Bedow’’); Qingdao mandatory respondents because using a specific assessment rates for subject Camel Trading Co., Ltd. (‘‘Qingdao Camel’’); weighted average risks disclosure of merchandise from the PRC via ad Qingdao H&T Food Co., Ltd. (‘‘Qingdao H&T’’); Qingdao Potenza Imp & Exp Co., Ltd. (‘‘Qingdao business proprietary information. See, valorem duty assessment rates based on Potenza’’); Qingdao Shiboliang Food Co., Ltd. e.g., Circular Welded Carbon Quality the ratio of the total amount of the (‘‘Qingdao Shiboliang’’); Rizhao Xingda Foodstuffs Steel Pipe from the People’s Republic of dumping margins calculated for the Co., Ltd. (‘‘Rizhao Xingda’’); Shandong Chengshun examined sales to the total entered Farm Produce Trading Co., Ltd. (‘‘Shandong China: Final Affirmative Countervailing Chengshun’’); Shandong Dongsheng Eastsun Foods Duty Determination and Final value of those same sales. We will Co., Ltd. (‘‘Shandong Dongsheng’’); Shandong Affirmative Determination of Critical instruct CBP to assess antidumping Garlic Company (‘‘Shandong Garlic’’); Shanghai Ba- duties on all appropriate entries covered Shi Yuexin Logistics Development (‘‘Shanghai Ba- Circumstances, 73 FR 31966 (June 5, Shi’’); T&S International, LLC (‘‘T&S’’). 2008). by this review. 2 The review requests for Qingdao Tiantaixing Cash Deposit Requirements Foods Co., Ltd. (‘‘Qingdao Tiantaixing’’), Final Results Of Review Zhengzhou Harmoni Spice Co., Ltd. (‘‘Zhengzhou The following cash–deposit Harmoni’’) were withdrawn, so in the Preliminary The weighted–average dumping requirements will be effective upon Results the Department rescinded the review for margins for the POR are as follows: these two companies and subsequently issued the publication of the final results of this appropriate liquidation instructions. administrative review for all shipments

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of the subject merchandise entered, or accordance with sections 751(a)(1) and the application kit for this request for withdrawn from warehouse, for 777(i) of the Act. applications are available at http:// consumption on or after the publication Dated: June 9, 2008. www.trade.gov/mdcp, or by contacting date, as provided for by section Stephen J. Claeys, Brad Hess at 202–482–2969. The public 751(a)(2)(C) of the Act: (1) the cash meeting will be held at the U.S. Acting Assistant Secretary for Import deposit rate for each of the reviewed Administration. Department of Commerce, HCHB, 14th companies that received a separate rate & Constitution, NW., Washington, DC in in this review will be the rate listed in Appendix I Room B 841–B. the final results of review (except that General Issues: FOR FURTHER INFORMATION CONTACT: if the rate for a particular company is de Interested parties who are unable to minimis, i.e., less than 0.5 percent, a Comment 1: Intermediate Input access information via Internet or who zero cash deposit will be required for Methodology have questions may contact Mr. Brad Comment 2: Garlic Bulb Surrogate Value that company); (2) for previously Hess by mail (see ADDRESSES), by phone A. Product Specifity investigated or reviewed PRC and non– at 202–482–2969, by fax at 202–482– B. Broad Market Average PRC exporters not listed above that have 4462, or via Internet at C. Public Availability separate rates, the cash deposit rate will [email protected]. continue to be the exporter–specific rate D. Contemporaneity SUPPLEMENTARY INFORMATION: published for the most recent period; (3) E. Tax and Duty Exclusivity Comment 3: Surrogate Financial Ratios Electronic Access: The full funding for all PRC exporters of subject Comment 4: Labor Surrogate Value opportunity announcement for MDCP is merchandise that have not been found Comment 5: By–product Offset available at http://www.trade.gov/mdcp. to be entitled to a separate rate, Funding Availability: Approximately Company–Specific Issues: including those companies for which $600,000 will be available through this this review has been rescinded, the cash Comment 6: Individual Margin announcement for fiscal year 2008. No deposit rate will be the PRC–wide rate Calculation for Qingdao Saturn award will exceed $250,000. ITA of 376.67 percent; and (4) for all non– [FR Doc. E8–13632 Filed 6–16–08; 8:45 am] anticipates making a minimum of two PRC exporters of subject merchandise BILLING CODE 3510–DS–S awards. Additional awards might be which have not received their own rate, made depending on the amounts the cash deposit rate will be the rate requested and the availability of funds. applicable to the PRC exporters that DEPARTMENT OF COMMERCE Statutory Authority: 15 U.S.C. 4723. supplied that non–PRC exporter. These CFDA: 11.112, Market Development deposit requirements, when imposed, International Trade Administration Cooperator Program. shall remain in effect until further [Docket No. 080609747–8749–01] Eligibility: Trade associations, state notice. departments of trade and their regional Reimbursement Of Duties Market Development Cooperator associations, and non-profit industry Program (MDCP) organizations, including organizations This notice also serves as a final such as World Trade Centers, centers for reminder to importers of their AGENCY: International Trade international trade development and responsibility under 19 CFR 351.402(f) Administration (ITA), Department of small business development centers are to file a certificate regarding the Commerce. eligible to apply for an MDCP award. In reimbursement of antidumping duties ACTION: Notice and request for cases where no entity described above prior to liquidation of the relevant applications. represents the industry, private industry entries during this POR. Failure to firms or groups of firms may be eligible SUMMARY: ITA is soliciting projects to comply with this requirement could to apply for an MDCP award. Such strengthen U.S. competitiveness to be result in the Department’s presumption private industry firms or groups of firms conducted by eligible entities for that reimbursement of antidumping must provide in their applications, periods of up to three years. Project duties has occurred and the subsequent documentation demonstrating that no award periods normally begin between assessment of doubled antidumping entity in the first three categories listed October 1, 2008 and January 1, 2009, but duties. below represents their industry. may begin as late as April 1, 2009. Administrative Protective Orders Cost Sharing Requirements: MDCP awards help to underwrite the Applicants must contribute two dollars This notice also serves as a reminder start-up costs of new competitiveness- for every federal dollar received. At to parties subject to administrative strengthening ventures that industry least 50% of the applicant’s cost share protective orders (‘‘APO’’) of their groups are often reluctant to undertake must be cash. The remaining percentage responsibility concerning the return or without federal support. MDCP aims to of the applicant’s cost share may be cash destruction of proprietary information develop, maintain and expand foreign or in kind. disclosed under APO in accordance markets for non-agricultural goods and Intergovernmental Review: with 19 CFR 351.305, which continues services produced in the United States. Applications under this program are not to govern business proprietary DATES: Proposals must be received by subject to Executive Order 12372, information in this segment of the ITA no later than 5 p.m. EDT, Thursday, ‘‘Intergovernmental Review of Federal proceeding. Timely written notification July 31, 2008. A public meeting to Programs.’’ of the return/destruction of APO discuss the competition will be held on Limitation of Liability: In no event materials or conversion to judicial Tuesday, June 24, 2008, at 2 p.m. will the Department of Commerce or protective order is hereby requested. ADDRESSES: Proposals must be ITA be responsible for proposal Failure to comply with the regulations submitted to ITA, U.S. Department of preparation costs if this program fails to and terms of an APO is a violation Commerce, HCHB Rm. 3215; receive funding or is cancelled because which is subject to sanction. Washington, DC 20230, or via e-mail to of other agency priorities. Publication of We are issuing and publishing this [email protected]. The full this announcement does not obligate the administrative review and notice in funding opportunity announcement and Department of Commerce or ITA to

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award funds for any specific project or distribution of the proposed awards, (4) penalty for failure to comply with, a to obligate any available funds. Diversity of industry sectors and collection of information subject to the Evaluation and Selection Procedures: overseas markets covered by the requirements of the PRA unless that After receiving the applications, ITA proposed awards, (5) Diversity of project collection of information displays a will screen each one to determine the activities represented by the proposed currently valid OMB control number. applicant’s eligibility to receive an awards, (6) Avoidance of redundancy award. After receiving all applications, and conflicts with the initiatives of Executive Order 12866 a selection panel composed of at least other federal agencies, and (7) This notice has been determined to be three ITA managers will review the Availability of funds. not significant for purposes of Executive applications using the evaluation The ITA priorities referred to under Order 12866. criteria below, score them, and forward Evaluation Criteria (3) and Selection Executive Order 13132 (Federalism) a ranked funding recommendation to Factor (2) are listed below. ITA is the Assistant Secretary for interested in receiving proposals to It has been determined that this notice Manufacturing and Services. The promote U.S. exports that include, but does not contain policies with evaluation criteria scores assigned by are not limited to, projects that: (1) Federalism implications as that term is the panel determine which applications Improve the competitiveness of U.S. defined in Executive Order 13132. are recommended for funding. The manufacturing and service industries by Administrative Procedure Act/ Assistant Secretary makes the final addressing impediments to innovation Regulatory Flexibility Act selection of award winners, justifying and reducing the cost of doing business any deviation from the selection panel’s in foreign countries; (2) Increase Prior notice and an opportunity for ranked recommendation by application competitiveness of U.S. industries in public comments are not required by the of the selection factors listed below. large markets like China, India, and Administrative Procedure Act for rules Evaluation Criteria: The selection Brazil by addressing non-tariff barriers, concerning public property, grants, panel reviews each eligible application especially those related to standards and benefits, and contracts (5 U.S.C. section based on five evaluation criteria. The intellectual property rights; (3) Help 553(a)(2)). Because notice and evaluation criteria are listed below. U.S. industry to capitalize on effective opportunity for comment are not (1) Potential to Strengthen global supply chain management required pursuant to 5 U.S.C. 553 or any Competitiveness (20%). This is the strategies; (4) Advance market-based other law, the analytical requirements of likelihood that a project will result in approaches to energy, clean the Regulatory Flexibility Act (5 U.S.C. export initiatives by U.S. firms, development, and commercialization of section 601 et seq.) are inapplicable. particularly small- and medium-sized nuclear and alternative energy Therefore, a regulatory flexibility enterprises. technologies; (5) Facilitate ease of travel analysis is not required and has not (2) Performance Measures (20%). to the United States and promote U.S. been prepared. Applicants must provide quantifiable higher education and training Dated: June 11, 2008. estimates of export and market share opportunities to non-U.S. entities; (6) Robert W. Pearson, increases, explain how they are derived, Capitalize on trade opportunities Director, Office of Planning, Coordination and and detail the methods they will use to resulting from trade agreements; (7) Management, Manufacturing and Services, gather and report performance Increase overall export awareness and International Trade Administration, information. awareness of ITA programs and services Department of Commerce. (3) Partnership and Priorities (20%). among U.S. companies, by making [FR Doc. E8–13599 Filed 6–16–08; 8:45 am] This criterion indicates the degree to small- and medium-size enterprises BILLING CODE 3510–DR–P which the project initiates or enhances export-ready or by facilitating deal- partnership with ITA and the degree to making; and (8) Support the which the proposal furthers or is Administration’s broader foreign policy DEPARTMENT OF COMMERCE compatible with ITA’s priorities. objectives through competitiveness- (4) Creativity and Capacity (20%). related initiatives. National Oceanic and Atmospheric Applicants demonstrate creativity, Administration innovation, and realism in the project The Department of Commerce Pre- work plan as well as their institutional Award Notification Requirements for RIN 0648–XI41 Grants and Cooperative Agreements capacity to carry out the work plan. Small Takes of Marine Mammals (5) Budget and Sustainability (20%). The Department of Commerce Pre- Incidental to Specified Activities; This criterion indicates the Award Notification Requirements for Seismic Survey in the Beaufort Sea, reasonableness and effectiveness of the Grants and Cooperative Agreements Alaska, Summer 2008 itemized budget for project activities, contained in the Federal Register notice the amount of the cash match that is of February 11, 2008 (73 FR 7697) are AGENCY: National Marine Fisheries readily available, and the probability applicable to this solicitation. Service (NMFS), National Oceanic and that the project can be continued on a Atmospheric Administration (NOAA), Paperwork Reduction Act self-sustained basis after the completion Commerce. of the award. This document contains collection-of- ACTION: Notice; proposed incidental take The five criteria together constitute information requirements subject to the authorization; request for comments. the application score. At 20 points per Paperwork Reduction Act (PRA). The criterion, the total possible score is 100. use of Standard Forms 424 and 424A, SUMMARY: NMFS has received an Selection Factors: The Assistant 424B, SF–LLL, and CD–346 has been application from PGS Onshore, Inc. Secretary may deviate from the selection approved by OMB under the respective (PGS) for an Incidental Harassment panel’s ranked recommendation only control numbers 0348–0043, 0348–0044, Authorization (IHA) to take marine based on the following factors: (1) The 0348–0040, 0348–0046, and 0605–0001. mammals incidental to an exploratory selection panel’s written assessments, Notwithstanding any other provision of three-dimensional (3D) marine seismic (2) Degree to which applications satisfy law, no person is required to respond to, survey in the Beaufort Sea, Alaska, ITA priorities, (3) Geographic nor shall any person be subject to a utilizing an ocean bottom cable/

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transition zone (OBC/TZ) technique in taking will have a negligible impact on PGS’ application), north of Oliktok summer 2008. Pursuant to the Marine the species or stock(s), will not have an Point and covering Thetis, Spy, and Mammal Protection Act (MMPA), NMFS unmitigable adverse impact on the Leavitt Islands, and would extend to the is requesting comments on its proposal availability of the species or stock(s) for 5–km (3–mi) state/Federal water to issue an IHA to PGS to incidentally subsistence uses (where relevant), and if boundary line and would not go into take, by harassment, small numbers of the permissible methods of taking and Federal waters. The water depth in this several species of marine mammals requirements pertaining to the area ranges from 0–15 m (0–49 ft), and between July and September, 2008, mitigation, monitoring and reporting of a third of the project waters are during the aforementioned activity. such takings are set forth. NMFS has shallower than 3 m (10 ft). The total area DATES: Comments and information must defined ‘‘negligible impact’’ in 50 CFR covered by source or receiver lines is be received no later than July 17, 2008. 216.103 as ‘‘...an impact resulting from 304.6 km2 (117.6 mi2); since the islands 2 ADDRESSES: Comments on the the specified activity that cannot be comprise approximately 1.7 km (0.7 reasonably expected to, and is not mi2) of this, the total marine area is 303 application should be addressed to P. 2 2 Michael Payne, Chief, Permits, reasonably likely to, adversely affect the km (117 mi ). The work would be divided into two Conservation and Education Division, species or stock through effects on parts. Data acquisition (use of airguns) Office of Protected Resources, National annual rates of recruitment or survival.’’ outside the barrier islands (Thetis, Spy, Marine Fisheries Service, 1315 East- Section 101(a)(5)(D) of the MMPA and Leavitt Islands) would be performed West Highway, Silver Spring, MD established an expedited process by first and would be completed by August 20910–3225. The mailbox address for which citizens of the United States can 5. This portion of the work would begin providing email comments is apply for an authorization to in the east and move toward the west. [email protected]. Comments incidentally take small numbers of marine mammals by harassment. Except Data acquisition inside the barrier sent via e-mail, including all islands would then be conducted and attachments, must not exceed a 10– with respect to certain activities not pertinent here, the MMPA defines would be completed by September 15. megabyte file size. This portion of the work would also A copy of the application containing ‘‘harassment’’ as: move from east to west. No data a list of the references used in this any act of pursuit, torment, or annoyance acquisition (use of airguns) would be document may be obtained by writing to which (i) has the potential to injure a marine mammal or marine mammal stock in the wild conducted outside the barrier islands the address specified above, telephoning after August 5. the contact listed below (FOR FURTHER [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine Description of Activity INFORMATION CONTACT), or visiting the mammal stock in the wild by causing Internet at: http://www.nmfs.noaa.gov/ disruption of behavioral patterns, including, The OBC/TZ survey involves pr/permits/incidental.htm#applications. but not limited to, migration, breathing, deploying cables from small boats, Documents cited in this notice may be nursing, breeding, feeding, or sheltering called DIB boats, to the ocean bottom, viewed, by appointment, during regular [Level B harassment]. forming a pattern consisting of three business hours, at the aforementioned Section 101(a)(5)(D) establishes a 45- parallel receiver line cables, each a address. day time limit for NMFS review of an maximum of 17.3 km (10.7 mi) long and A copy of the 2006 Minerals application followed by a 30-day public spaced approximately 200 m (656 ft) Management Service’s (MMS) Final notice and comment period on any apart. Hydrophones and geophones Programmatic Environmental proposed authorizations for the attached to the cables are used to detect Assessment (PEA) and/or the NMFS/ incidental harassment of marine seismic energy reflected back from rock MMS Draft Programmatic mammals. Within 45 days of the close strata below the ocean bottom. The Environmental Impact Statement of the comment period, NMFS must energy is generated from a submerged (DPEIS) are available on the Internet at: either issue or deny the authorization. acoustic source, called a seismic airgun http://www.mms.gov/alaska/. array, that releases compressed air into FOR FURTHER INFORMATION CONTACT: Summary of Request the water, creating an acoustic energy Candace Nachman, Office of Protected On May 9, 2008, NMFS received an pulse directed downward toward the Resources, NMFS, (301) 713–2289 or application from PGS for the taking, by seabed. PGS proposes using two shallow Brad Smith, NMFS, Alaska Region, Level B harassment only, of small water source vessels for this survey. The (907) 271–3023. numbers of several species of marine source vessels will be used sequentially: SUPPLEMENTARY INFORMATION: mammals incidental to conducting an one vessel will be active while the other exploratory 3D marine seismic survey in travels to its next position. Both source Background the Alaskan Beaufort Sea, utilizing an vessels, M/V Wiley Gunner and M/V Sections 101(a)(5)(A) and (D) of the OBC/TZ technique. PGS has been Little Joe, will each be equipped with MMPA (16 U.S.C. 1361 et seq.) direct contracted by ENI Petroleum (ENI) to identical airgun arrays with total air the Secretary of Commerce to allow, conduct the seismic survey. The discharge volume of 880 in3. The source upon request, the incidental, but not proposed survey is scheduled to occur has a peak to peak amplitude equal to intentional, taking of small numbers of from July to mid-September 2008. 31.4 bar-meters, giving a source output marine mammals by U.S. citizens who Because the proposed survey is weather of approximately 250 dB. These airgun engage in a specified activity (other than and ice dependent, the exact dates of arrays are expected to operate at a depth commercial fishing) within a specified the survey cannot be determined at this of between 0.91 m and 2.29 m (3 ft and geographical region if certain findings time. However, the proposed survey 7.5 ft). Data acquisition would also are made and either regulations are would begin as soon as ice and weather require the following instrumentation issued or, if the taking is limited to conditions allow, possibly as soon as (instrumentation specifications are harassment, a notice of a proposed July 1. The survey is expected to last for included in Appendix A of PGS’ authorization is provided to the public an estimated 75 days of data acquisition, application): seismic recording for review. excluding weather days. equipment; line equipment; transducers; Authorization for incidental takings The proposed survey location is in the energy source output; bathymetry; and shall be granted if NMFS finds that the Nikaitchuq Lease Block (see Figure 1 of positioning survey equipment.

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Vessel Descriptions 3590 archive tapes can be created at the square inch (psi) to 1,900 psi. This The marine crew would be configured quality control processing laboratory. system will require a 12–s to 15–s with the following vessels (vessel Digital records would be formatted in recycle time. The energy source specifications are included in Appendix SEG D configuration and traced at three synchronizing system is a Digital Real A of PGS’ application). Vessel usage is lines of 156 per record for every 2–ms Time Long Shot Source Controller. periods. The digital filters would be subject to availability; however, vessels Bathymetry of similar dimensions will be used if linear or minimum phase, and the anti- alias filters would be high-cut 0.8 Field Bathymetric equipment would be those listed below are unavailable. located on each of the source vessels • Two source vessels, the M/V Wiley Nyquist Stop Band Attenuation greater than 120 dB. Record length would be 6 and the shallow-water cable boats. Gunner and the M/V Little Joe, which s versus a shot point distance of 34 m Bathymetric data would be recorded are both 13 m (44 ft) long, 5.8 m (19 ft) (111.5 ft). This Sercel system would be simultaneously with the seismic data wide, and 3.5 m (11.5 ft) tall with a capable of an inter-record delay of equal acquisition, by employing Interspace weight of 18 metric tons (20 tons) to or less than 2 s of overhead. The Tech DX 150 (or equivalent) loaded and a draft of 0.69 m (2.2 ft) with plotter that would also be housed on the instruments, which can operate in water the engines down. These boats are able William Bradley would be a Veritas V– up to 120 m (400 ft) deep. This to maneuver in waters less than 1.2 m 12. equipment has an operating frequency (4 ft) deep. • of 200 kHz and a sound source of 100 The recording vessel, M/V William Line Equipment dB re 1 µPa. The digitizer and logger Bradley, is a self-propelled barge and PGS would have a 2400 Sercel FDU system would be a National Marine has hydraulic gravity spuds that can be Operative Remote Acquisition Units Electronic Association standard output lowered in water up to 6 m (20 ft) deep. available. The following equipment to Horizon. PGS would use a Gator INM It would be fitted with a Sercel 408 would also be available: 125 Sercel line system and a Gator INS system as source recording system. The William Bradley acquisition unit line repeaters/powers; firing controllers. For measures of is 45.7 m (150 ft) long and 11 m (36.1 12 Sercel line acquisition unit crossing depth, temperature, and salinity, a ft) wide with a draft of 1.23 m (4 ft). • line interface; 20 x-line cables; and Valeport TS Dip Meter would be used. Up to seven shallow-water cable 1,200 telemetry cables of 67 m (220 ft) Positioning Survey Equipment boats (DIB boats) would be available for each and 1,200 mini cables of 1 m (3.3 the survey. The DIB boats are 12.5 m (41 ft) each. To conduct the proposed 3D seismic ft) long and 4.3 m (14 ft) wide and have survey in the Beaufort Sea, PGS would 0.76 m (2.5 ft) draft. The boats are Transducers employ a Novatel system and a global powered by two, 200–horsepower (HP) The transducers used during the positioning system (GPS) mobile diesel Volvo Penta engines. The dry proposed seismic survey in the Beaufort receiver with 8 to 12 channels of dual weight of each boat is 4.5 metric tons (5 Sea would be GeoSpace GS-PV1 frequency. For the Novatel system, there tons) with a working load of 7.7 metric sensors. The GS30CT geophone has a would be three onshore reference tons (8.5 tons). sensitivity of 2.55 volts (V) per inch per stations and four valid satellites. As a • The supply boat M/V Katmai Spirit second ± 2 percent. The pressure phone second main system, PGS has available would be used for crew support and has a sensitivity of 6.76 V/bar ± 1.5 dB. a Trimble 4700 system and a GPS supplying marine vessels during the job. The hydrophone crystals are configured Mobile Receiver, also with 8 to 12 The Katmai Spirit has dimensions of 12 for acceleration cancellation. channels of dual frequency. For the m (40 ft) long, 5.5 m (18 ft) wide, and Trimble 4700, there would be two Energy Source Output 0.6 m (2 ft) draft. onshore reference stations. PGS will • The Project Manager/Client boat PGS would use an airgun energy also have 700 active Sonardyne would be available for use by the Project source for the proposed data Acoustic transponders available for in- Manager, the client, or other personnel acquisition. A minimum of a 10–airgun water positioning. as needed to perform their tasks. The array is expected to be used as a single boat may also be used for crew support output source. The operating source Marine Mammals Affected by the and supplying marine vessels as depth for the guns is a maximum of 2.5 Activity required. The Project Manager/Client m (8.2 ft). Source centers separation will The Beaufort Sea supports a diverse boat has dimensions of 7.3 m (24 ft) be from 1–1.5 m (3.3–4.9 ft), and the assemblage of marine mammals, long, 2.4 m (8 ft) wide, and 0.45 m (1.5 shot point distance is 34 m (110 ft). The including bowhead, gray, beluga, killer, ft) draft. The boat is powered by a 90 HP single source volume is 880 in3. minke, fin, humpback, and North engine. Although PGS is proposing to use only Pacific right whales, harbor porpoises, • The Mechanic’s boat would be used a 10–airgun array for acquisition, a 12 ringed, spotted, bearded, and ribbon to support maintenance and mechanical airgun array would be placed on each seals, polar bears, and walruses. These support for marine vessels used during vessel. This would provide two spare latter two species are under the the project. The Mechanic’s boat has airguns at all times. The source layout jurisdiction of the U.S. Fish and dimensions of 7.9 m (26 ft) long, 2.4 m will be 8 m (26 ft) wide by 6 m (20 ft) Wildlife Service (USFWS) and are not (8 ft) wide, and 0.45 m (1.5 ft) draft. The long. At a depth of 2.5 m (8.2 ft), the discussed further in this document. boat is powered by twin 90 HP engines. point to point output pressure is plus or Within the project activity areas, only minus 22 bar meters, giving a signal/ the polar bear is known to occur in Seismic Recording Equipment bubble ratio of 10:1. The array is significant numbers, and a separate The seismic recording system designed to direct sound pressure Letter of Authorization request will be scheduled to be housed on the William downwards, as shown in Figure 2 of submitted by PGS to USFWS for this Bradley during the proposed 3D marine PGS’ application. species. seismic survey is a Sercel 408. The The power is provided by either a 78 A total of three cetacean species and system would record data using a tape cubic feet per minute (CFM) or 150 CFM three pinniped species are known to emulator drive hard drive imbedded diesel air compressor. The air pressure occur or may occur in the Beaufort Sea into the recorder so that verified IBM can deliver between 1,750 pounds per in or near the proposed project area (see

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Table 3.0–1 in PGS’ application for disturbance effects may persist; the tolerant of exposure to airgun pulses information on habitat and estimated latter is most likely with sounds that are than baleen whales. abundance). Of these species, only the highly variable in characteristics, Masking bowhead whale is listed as endangered infrequent, and unpredictable in under the Endangered Species Act occurrence, and associated with Masking effects of pulsed sounds (ESA). The killer whale, harbor situations that a marine mammal (even from large arrays of airguns) on porpoise, minke whale, fin whale, North perceives as a threat; marine mammal calls and other natural Pacific right whale, humpback whale, (5) Any anthropogenic noise that is sounds are expected to be limited, and ribbon seal could occur in the strong enough to be heard has the although there are very few specific data Beaufort Sea, but each of these species potential to reduce (mask) the ability of of relevance. Some whales are known to is rare or extralimital and unlikely to be a marine mammal to hear natural continue calling in the presence of encountered in the proposed seismic sounds at similar frequencies, including seismic pulses. Their calls can be heard survey area. calls from conspecifics, and underwater between the seismic pulses (e.g., The marine mammal species expected environmental sounds such as surf Richardson et al., 1986; McDonald et al., to be encountered most frequently noise; 1995; Greene et al., 1999; Nieukirk et throughout the seismic survey in the (6) If mammals remain in an area al., 2004). Although there has been one project area is the ringed seal. The because it is important for feeding, report that sperm whales cease calling bearded and spotted seal can also be breeding, or some other biologically when exposed to pulses from a very observed but to a far lesser extent than important purpose even though there is distant seismic ship (Bowles et al., the ringed seal. Presence of beluga, chronic exposure to noise, it is possible 1994), a more recent study reports that bowhead, and gray whales in the that there could be noise-induced sperm whales off northern Norway shallow water environment within the physiological stress; this might in turn continued calling in the presence of barrier islands is possible but expected have negative effects on the well-being seismic pulses (Madsen et al., 2002). to be very limited as this is not their or reproduction of the animals involved; That has also been shown during recent typical habitat. Descriptions of the and work in the Gulf of Mexico (Tyack et al., biology, distribution, and population (7) Very strong sounds have the 2003; Smultea et al., 2004). Masking status of the marine mammal species potential to cause temporary or effects of seismic pulses are expected to under NMFS’ jurisdiction can be found permanent reduction in hearing be negligible in the case of the smaller in PGS’ application, the 2007 NMFS/ sensitivity. In terrestrial mammals, and odontocete cetaceans, given the MMS DPEIS on Arctic Seismic Surveys, presumably marine mammals, received intermittent nature of seismic pulses. and the NMFS Stock Assessment sound levels must far exceed the Dolphins and porpoises commonly are Reports (SARS). The Alaska SAR is animal’s hearing threshold for there to heard calling while airguns are available at: http://www.nmfs.noaa.gov/ be any temporary threshold shift (TTS) operating (e.g., Gordon et al., 2004; pr/pdfs/sars/ak2007.pdf. Please refer to in its hearing ability. For transient Smultea et al., 2004; Holst et al., 2005a; those documents for information on sounds, the sound level necessary to 2005b). Also, the sounds important to these species. cause TTS is inversely related to the small odontocetes are predominantly at duration of the sound. Received sound much higher frequencies than are airgun Potential Effects of Airgun Sounds on levels must be even higher for there to sounds. Marine Mammals be risk of permanent hearing Disturbance Reactions The effects of sounds from airguns impairment. In addition, intense might include one or more of the acoustic or explosive events may cause Disturbance includes a variety of following: tolerance, masking of natural trauma to tissues associated with organs effects, including subtle changes in sounds, behavioral disturbance, and vital for hearing, sound production, behavior, more conspicuous changes in temporary or permanent hearing respiration and other functions. This activities, and displacement. Reactions impairment or non-auditory effects trauma may include minor to severe to sound, if any, depend on species, (Richardson et al., 1995). As outlined in hemorrhage. state of maturity, experience, current activity, reproductive state, time of day, previous NMFS documents, the effects Tolerance of noise on marine mammals are highly and many other factors. If a marine variable, and can be categorized as Numerous studies have shown that mammal does react briefly to an follows (based on Richardson et al., pulsed sounds from airguns are often underwater sound by changing its 1995): readily detectable in the water at behavior or moving a small distance, the (1) The noise may be too weak to be distances of many kilometers. impacts of the change are unlikely to be heard at the location of the animal (i.e., Numerous studies have shown that significant to the individual, let alone lower than the prevailing ambient noise marine mammals at distances more than the stock or the species as a whole. level, the hearing threshold of the a few kilometers from operating seismic However, if a sound source displaces animal at relevant frequencies, or both); vessels often show no apparent marine mammals from an important (2) The noise may be audible but not response. That is often true even in feeding or breeding area for a prolonged strong enough to elicit any overt cases when the pulsed sounds must be period, impacts on the animals could be behavioral response; readily audible to the animals based on significant. Given the many (3) The noise may elicit reactions of measured received levels and the uncertainties in predicting the quantity variable conspicuousness and variable hearing sensitivity of that mammal and types of impacts of noise on marine relevance to the well being of the group. Although various baleen whales, mammals, it is common practice to marine mammal; these can range from toothed whales, and (less frequently) estimate how many mammals were temporary alert responses to active pinnipeds have been shown to react present within a particular distance of avoidance reactions such as vacating an behaviorally to airgun pulses under industrial activities or exposed to a area at least until the noise event ceases; some conditions, at other times, particular level of industrial sound. (4) Upon repeated exposure, a marine mammals of all three types have shown That likely overestimates the numbers mammal may exhibit diminishing no overt reactions. In general, pinnipeds of marine mammals that are affected in responsiveness (habituation), or and small odontocetes seem to be more some biologically-important manner.

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The following species summaries are (3.7 mi) from active airguns (Miller et behavioral responses were observed provided to facilitate understanding of al., 2005). when the whales were subjected to our knowledge of impulsive noise It is unclear exactly what causes seismic sounds between 160 and 170 dB impacts on the principal marine displacement, but whales have tended re 1 µPa. Studies in the Bering Sea by mammal species that are expected to be to show shorter surface and dive times, Malme et al. (1986, 1988) showed the affected. The impacts on Beaufort Sea fewer blows per surfacing, and longer responses of gray whales to seismic cetaceans and pinnipeds are likely to be blow intervals when noise levels were at sound pulses from a 100 in3 airgun short-term and transitory. or above 152 dB and showed avoidance array. Fifty percent of feeding whales Bowhead Whales—Bowhead whales of seismic operations within a 20–km stopped feeding when exposed to sound will likely show some behavioral (12–mi) radius (Ljungbald, 1988; levels of 173 dB re 1 µPa on average, changes during airgun activity, but Richardson, 1999). Bowhead whales and 10 percent stopped feeding at a depending on distance from the noise may also flee from or show total received sound level of 163 dB re 1 µPa. source, overall displacement should be avoidance of vessels if they are too One whale study found indications of minimal. Bowhead whales in the close. Bowhead whales showed total behavioral changes such as increased Beaufort Sea were observed remaining avoidance at distances of 1.3 km, 7.2 swim speed and shorter blow periods in a location where they were exposed km, 3.5 km, and 2.9 km (0.8 mi, 4.5 mi, for seismic activities at a distance of up to seismic, dredging, and drilling 2.2 mi, and 1.8 mi) when sound levels to 30 km (Wursig et al., 1999). However, sounds. Their social and feeding were 152 dB, 165 dB, 178 dB, and 165 when conducting shore-based counts behavior appeared normal as industry- dB, respectively (Ljungbald et al., 1988). Johnson (2007) did not mention any related noises occurred (Richardson et Based upon McCauley et al. (2000) change in behavior and found no al., 1987). When observed over multiple bowhead whales exhibit a behavioral significance between abundance and years, bowhead whales in the same area change at 120 dB when migrating. seismic activity. Also, given the also did not appear to avoid seismic However, other low-frequency infrequent occurrence of gray whales in locations. MMS did not find a statistical cetaceans, including bowhead whales, the Beaufort Sea east of Point Barrow, difference in the change of direction for exhibit behavioral changes at 140 dB to recent marine mammal observer (MMO) bowhead whales traveling during 160 dB when not migrating, and information from the Beaufort Sea seismic activity when analyzing fall sometimes higher levels (Miller et al., indicating that, at least for bowhead migration data from 1996 to 1998 (MMS, 2005). whales, sound pressure levels of 160 dB Beluga Whales—Seismic activity is 2005). Bowhead and gray whales have or less did not result in abandonment of expected to cause temporary not appeared bothered when seismic feeding areas, and the incorporation of displacement of beluga whales, but the mitigation and monitoring measures, pulses between 160 dB and 170 dB re impact is not expected to be significant. 1 µPa were fired from a seismic vessel including the use of MMOs and Belugas have been shown to have avoidance of concentrated areas of within a few km of their locality, but greater displacement in response to a tended to avoid the area when levels feeding whales, the number of animals moving source (e.g., airgun activity on a exposed to sound levels that could exceeded 170 dB (Richardson et al., moving vessel) and less displacement or 1997). cause disturbance of feeding or other behavioral change in response to a behaviors should be greatly reduced. Common behavioral responses of stationary source. The presence of Data on short-term reactions of marine mammals include displacement, belugas has been documented within cetaceans to impulsive noises do not startle, attraction to sound, altered the ensonified zones of industrial sites necessarily provide information about communication sounds, discontinued near platforms and stationary dredges, long-term effects. It is not known feeding, disruption to social behaviors, and the belugas did not seem to be whether impulsive noises affect temporary or permanent habitat disturbed by the activity (Richardson et reproductive rate or distribution and abandonment, panic, flight, stampede, al., 1995). When drilling sounds were habitat use in subsequent days or years. and in worse cases stranding, and played to belugas in industry-free areas, Gray whales continued to migrate sometimes death (Nowacek et al., 2007; the belugas only showed a behavioral annually along the west coast of North Southall et al., 2007; Gordon et al., reaction when received levels were America despite intermittent seismic 2004). Behavior ranges from temporary high. For example, beluga whales have exploration (and much ship traffic) in to severe, and the effects can influence been observed to show only an initial that area for decades (Malme et al., foraging, reproduction, or survival. scare when drilling noises were played 1984; Richardson et al., 1995; Angliss Response level is based on how with a received level greater than or and Outlaw, 2005). habituated or sensitive the individual equal to 153 dB re 1 µPa. Richardson Ringed Seals—Ringed seals are mammal is and whether or not previous (1997) suggested that the effect could be expected to have only short-term and interactions with sound was positive, a result of belugas having less temporary displacement as a result of negative, or neutral (Southall et al., sensitivity to low-frequency sounds. the proposed PGS project activities. 2007). The common behavioral patterns Other reports suggested that belugas Seals should not be exposed to source seen in bowhead whales when seismic will remain far away from seismic levels higher than 190 dB re 1 µPa due operations were operated nearby vessels (Miller et al., 2005). A study in to the potential for hearing damage. include displacement, avoidance, and the Beaufort Sea observed low numbers Though ringed seals have density and altered respiration (Richardson et of belugas within 10 km to 20 km (6 mi estimated take higher than other marine al.,1999; Ljungland et al., 1988). Whales to 12 mi) of seismic vessels (noted in mammals in the project area, ringed may also display varied reactions based LGL, 2006). seals exposed to sound sources as high on the time of year and activity. Gray Whales—Gray whales in the as 200 dB, displayed only brief Bowhead whales migrating in the fall immediate area of seismic activity will orientation and minor behavioral exhibited avoidance at distances up to likely show some behavioral changes. modifications, and only momentarily 20 km (12 mi) or more, while bowheads The changes in behavior, however, left young (Moulton et al., 2005; feeding during summer displayed more depend upon distance from the seismic Southall, 2007; Blackwell, 2004). Any subtle reactions and did not show a source and are expected to be minimal. behavioral reactions to activities should strong avoidance at distances past 6 km In a study including gray whales, only be temporary and not disrupt

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reproductive activities. When received levels averaged in the range of Potential Effects of Bathymetric industrial-related sounds propagated 1– 170–200 dB (Richardson, 1999). Equipment on Marine Mammals 3 km (0.6–1.9 mi) within ringed seal Hearing Impairment The bathymetric equipment used to locations, normal behavior such as determine depth will operate at a maintaining active breathing holes and When conducting the proposed frequency of 200 kHz and sound source lairs continued, and observed breeding seismic activities, TTS or permanent of 100 dB. At a frequency of this caliber, females appeared not to be bothered threshold shift (PTS) is not expected to any overlap with the functional marine (Moulton et al., 2005). mammal hearing groups and the In 1998, a total of 252 ringed seals occur in marine mammals. When estimated auditory bandwidth at which were counted in the project area over a marine mammals located within a µ they are suspected to hear will be period of 1,331 hours, contributing to vulnerable range (> 180 dB re 1 Pa for µ 98.5 percent of the total pinniped cetaceans, or > 190 dB re 1 Pa for avoided (Southall et al., 2007). Of the population during this time. Richardson pinnipeds) are impacted by impulsive marine mammals in the project area, (1999) found sounds produced from noises, the noises can lead to TTS or bowhead whales are considered low- both a 16 - 1,500 in3 sleeve gun array PTS. When TTS occurs, the result is frequency mammals, and their and another 8 - 560 in3 sleeve gun array reversible: hearing in exposed mammals estimated bandwidth occurs between 7 affected distribution and behavior only is temporarily affected. TTS may result and 22 kHz (Southall et al., 2007). when seals were within a few hundred in mammals failing to locate predators Though no direct measurements have been tested directly on the low- meters of the array, and ringed seals or prey and the inability to frequency cetaceans, such as bowhead remained in the project area during communicate effectively with other whales, hearing sensitivity was operations. During seismic activities, individuals of the same species. When whales also remained at a mean radial determined by observable levels of the threshold does not return to the response to sound levels played at distance of 223 m (731 ft) during original threshold levels, the damage is seismic operations and 116 m (381 ft) various frequencies, including classified as PTS. It is unknown what vocalization frequencies (Southall et al., when seismic operations did not occur level of sound will cause PTS in marine (Richardson, 1999). Over time, ringed 2007; Richardson et al., 1995). mammals, but it is reasoned to occur at seals may also show less displacement The only mid-frequency marine a much greater level than that caused by and fewer behavioral changes. In one mammal expected within the project study, ringed seals remained distant TTS (Southall et al., 2007). area is the beluga whale. Estimated from activities during the first season of TTS and PTS in given species auditory bandwidth for belugas occurs seismic activities, but during the second depends upon the frequency sensitivity between 150 Hz and 160 kHz (Southall season, were observed at close of that species. Bowhead and gray et al., 2007). Beluga hearing is proximity of the marine vessel. No whales operate at a low frequency, killer functional and occurs over a low to very observable behavioral changes were whale and beluga at mid frequency, and high range. Belugas also typically detect accounted for with received levels the harbor porpoise at high frequency signals only within their frequency but ranging between 170 and 200 dB (Miller (Southall, 2005). Finneran (2002) have specialized echolocation features that cater to communication and et al., 2005). estimated that sound levels greater than tracking prey (Southall et al., 2007). Spotted Seals—The total number of 192 dB re 1 µPa will lead to TTS in most No high-frequency cetaceans are spotted seals in Alaska is assumed to be cetaceans. There are no data identifying tens of thousands, and their range expected within the project area; the level of sound intensity that causes sometimes includes the Beaufort Sea however, pinnipeds, such as the ringed, TTS in baleen whales, but because most (MMS, 1996; Rugh et al., 1997). Any spotted, and bearded seals will be impacts on spotted seal populations baleen whales show avoidance at present. Pinnipeds lack the specialized should also be minimal as high numbers certain sound intensities, risk of TTS biosonar systems common to beluga of spotted seals should not occur in the should be avoided (MMS, 2006; whales. Pinnipeds also communicate in project area. From July-September 1996, Southall, 2007). Under prolonged water and air but are expected to be Harris et al. (2001) counted a total of exposure, pinnipeds have been shown more sensitive to noises in water. 422 seals in the Beaufort Sea. Of the to exhibit TTS. Kastak et al. (1999) Pinnipeds are estimated to have an seals counted, only 0.9 percent (n = 4) investigated the effects of noise on two auditory bandwidth range at 75 Hz to 75 were spotted seals. Spotted seal California sea lions, one northern kHz in water and 75 Hz to 30 kHz in air reactions to seismic activities are elephant seal, and one harbor seal. (Southall et al., 2007). Based on typically minimal, and spotted seals Kastak et al. (1999) subjected each information that is available, the have demonstrated little or no reaction pinniped to a noise source (100 to 2,000 bathymetric equipment proposed to be to scare devices even when linked to Hz) for 20 to 22 min. Each pinniped used within the project area will not areas for feeding or reproduction (Harris showed a threshold shift averaging 4.8 overlap with the hearing range of et al., 2001). dB (harbor seal), 4.9 dB (sea lion), and marine mammals. Therefore, the Bearded Seals—In a study during 4.6 dB (northern elephant seal) until the likelihood of impacts, if any, are summer 1996, Harris et al. (2001) found hearing threshold returned to pre- expected to be quite low. bearded seals were 7.3 percent (n = 31) exposure values (under a 12-hour of the total number of seals counted. Estimated Take of Marine Mammals by period). PGS mitigation measures, such Though bearded seals are bottom Incidental Harassment as monitoring by MMOs within the feeders and are usually found in water The anticipated harassments from the depths less than 200 m (656 ft), if the safety zone and ramp-up prior to activities described above may involve rarity of an encounter should occur, seismic operations, should prevent temporary changes in behavior and bearded seals, like other pinnipeds, marine mammals from sound exposure short-term displacement within should demonstrate only minimal that causes TTS and PTS. Currently ensonified areas. There is no evidence µ displacement and behavioral reaction. NMFS considers 190 dB re 1 Pa that the planned activities could result Bearded seals did not show reactions to received level as the onset of TTS for in injury, serious injury, or mortality, 1,450 in3 to 2,250 in3 airguns when pinnipeds. for example due to collisions with

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vessels. Disturbance reactions, such as were calculated. NMFS decides that the percent of several thousand phocid avoidance, are very likely to occur average density data of marine mammal sightings in nearshore waters of the amongst marine mammals in the populations will be used to calculate Beaufort Sea. vicinity of the source vessel. The estimated take numbers because these Based on the calculation of using the mitigation and monitoring measures numbers are based on surveys and average density estimates presented in proposed to be implemented (described monitoring of marine mammals in the Table 6.2–1 in PGS’ application and the later in this document) during this vicinity of the proposed project area. area of ensonification outlined above, it survey are based on Level B harassment In its review of PGS’ application, is estimated that up to approximately 28 criteria and will minimize any potential NMFS determined that the safety radii bowhead whales, 25 beluga whales, risk to injury or mortality. calculated by PGS were too small based 1,467 ringed seals, 73 spotted seals, and The methodology used by PGS to on the size and source level of the 20 bearded seals would be affected by estimate incidental take by harassment airgun array to be used. Therefore, Level B behavioral harassment as a by seismic and the numbers of marine NMFS requested that PGS submit an result of the proposed 3D OBC/TZ mammals that might be affected in the addendum to the IHA application, seismic survey in the Beaufort Sea. proposed seismic acquisition activity which outlined in greater detail the These take numbers represent 0.27 area in the Beaufort Sea is presented modeling techniques used. Based on percent of the western Arctic stock of here. The bowhead whale, beluga this additional information, NMFS bowhead whales, 0.06 percent of the whale, and bearded seal density recalculated the distances to the 160-, Beaufort Sea stock of beluga whales, and estimates are based on the estimates 170-, 180-, and 190–dB isopleths, using 0.59 percent, 0.12 percent, and 0.008 developed by LGL (2005) for the 250 dB as the source output. Based on percent of the Alaska stocks of ringed, University of Alaska IHA and used here this new information, the respective spotted, and bearded seals, respectively. for consistency. The ringed seal density radii for the 160-, 170-, 180-, and 190– Although gray whales are considered estimates are from Frost et al. (2002). dB isopleths are: 2,894 m (1.8 mi); 1,194 to be an extralimital species in the Spotted seal density estimates were m (0.74 mi); 492 m (0.31 mi); and 203 project area, there have been a few rare derived from Green et al. (2005; 2006; m (0.13 mi). sightings in the Beaufort Sea east of 2007) observations that spotted seals in The total area of ensonification using Point Barrow in late summer and as far the Beaufort Sea in the vicinity the 160–dB criteria is 7,398.4 km2 east as Smith Bay (Green et al., 2007). represent about 5 percent of all phocid (2,856.5 mi2; including 4,450.6 km2, or Currently, there are no reliable density seal sightings and then multiplying 1,718.4 mi2 outside the barrier islands; or population estimates for gray whales Frost et al.’s (2002) density estimates and 2,947.8 km2, or 1,138.1 mi2 inside in the project area. A take estimate of times 5 percent. the barrier islands) and for the 170–dB two gray whales has been requested. criteria is 3,056.6 km2 (1,180.2 mi2; This number is considered minimal Exposure Calculations for Marine including 1,838.8 km2, or 710 mi2 based on the population size of the Mammals outside the barrier islands, and 1,217.9 eastern North Pacific stock of gray In its application, PGS presented the km2, or 470.2 mi2 inside the barrier whales. average and maximum estimates of islands). However, given that none of PGS plans to continue conducting ‘‘take,’’ which were calculated by the area occurs in waters greater than 15 seismic surveys after August 25, the multiplying the expected average and m (49 ft) deep (and half the area is in commencement of annual bowhead maximum animal densities provided in waters less than 4 m, 13 ft, deep), which whale hunt, and the beginning of the Table 6.2–1 in the application by the is not suitable habitat for migrating fall bowhead migration. NMFS requires area of ensonification. The area of bowhead whales, which has been take estimates be evaluated out to the ensonification was assumed to be the defined as waters 15–200 m (49–660 ft) 120–dB isopleth for any operation length of trackline in marine waters deep (Richardson and Thomson, 2002), occurring after August 25, unless the multiplied by the 160–dB and 170–dB this calculation provides a very operator can show that their sound isopleths times 2. The total length of conservative estimate of potential take. source would attenuate to less than 120 trackline in marine waters is estimated Therefore, only the area outside the dB before reaching the normal bowhead at 1,280 km (795 mi), including 770 km barrier islands was used in the whale migration lanes. Because of the (478 mi) outside the barrier islands and calculations for bowhead whales. downward sound directionality of the 510 km (317 mi) inside the barrier The ‘‘take’’ estimates were determined proposed array configuration, the radius islands. by multiplying the various density to the 120–dB isopleth would extend In the PGS’ application, it provides estimates in Table 6.2–1 by the out to about 10–15 km (6–9 mi). Further, both average and maximum density data ensonification area using the 160–dB beginning in early August, PGS will for the marine mammals that are likely criteria for cetaceans and the 170–dB move their operations inside the barrier to be adversely affected. These density criteria for pinnipeds. However, NMFS islands and remain there throughout the numbers were based on survey and has noted in the past that it is unaware subsistence hunt and whale migration. monitoring data of marine mammals in of any empirical evidence to indicate Consequently, the closest 120 dB level recent years in the vicinity of the that pinnipeds do not respond at the sounds could reach migrating whales is proposed action area (LGL, 2005; Frost lower level (i.e., 160 dB). As a result, a point approximately 10 km (6 mi) et al., 2002; Green et al., 2005; 2006; NMFS will estimate Level B harassment north of a line between Spy and Thetis 2007). In addition, PGS also provided takes based on the 160–dB criterion. islands. At this point the water depth is maximum density estimates for those The bowhead and beluga density approximately 6 m (20 ft), less than marine mammal populations. The estimates come from LGL (2005) and the suitable habitat for migrating bowhead average and maximum population ringed seal estimates from Frost et al. whales. Further, much of the sound density of marine mammals are (2002). The spotted seal densities were emanating from inside the barrier provided in Table 6.2.1 of the PGS determined by multiplying the ringed islands would be blocked by Spy, application. However, PGS did not seal estimate by 5 percent, a reflection Thetis, and Leavitt Islands, leaving only provide a rationale regarding the of three years of survey results by Green a fraction of the survey area inside the maximum estimate or a description as to et al. (2005; 2006; 2007), showing that barrier islands from which the 120–dB how these maximum density estimates spotted seals represented about 5 radius could even reach a point 10 km

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(6 mi) north of barrier islands. During expected to the ocean floor or the areas of the proposed activities most of the survey inside the barrier anticipated by placing geophones on the would be temporarily displaced. No loss islands, it is expected that the 120–dB ocean floor. of habitat is anticipated due to laying radii would not extend at all outside the Relative to toothed whale and cable on the ocean floor. barrier islands since the islands will pinniped prey, a broad discussion of the During the period of seismic absorb the sound. various types of potential effects of surveying (July through mid- However, the 120–dB radius estimate exposure to seismic activity on fish and September), most marine mammals is based on modeling. Actual field invertebrates can be found in LGL would be dispersed throughout the area. measurements of acoustical signatures (2005). This discussion includes a The peak of the bowhead whale for the proposed array are planned at summary of direct mortality migration through the Alaskan Beaufort the onset of the surveys. Should these (pathological/physiological) and Sea typically occurs in September. measurements determine that the 120– indirect (behavioral) effects. Mortality to Starting in late August, bowheads may dB radius could extend into the fish, fish eggs, and larvae from seismic travel in proximity to the seismic bowhead whale migration corridor, energy sources would be expected surveys and hear sounds from vessel additional mitigation measures will be within a few meters (0.5 m to 3 m, 1.6 traffic and seismic activity, which might proposed in conjunction with ft to 10 ft) from the seismic source. temporarily displace some whales. In consultation with NMFS, the North Direct mortality has been observed in addition, feeding does not appear to be Slope Borough (NSB), and the Alaska cod and plaice within 48 hours after an important activity for bowheads Eskimo Whaling Commission (AEWC). they were subjected to seismic pulses 2 migrating through the Chukchi Sea in Because PGS plans to operate inside m (6.6 ft) from the source (Matishov, most years; however, sightings of the barrier islands only during the fall, 1992); however other studies did not bowhead whales do occur in the and these interior habitats typically report any fish kills from seismic source summer near Barrow (Moore and provide less suitable habitat for marine exposure (La Bella et al., 1996; IMG, DeMaster, 2000), and there are mammals as compared to outside the 2002; Hassel et al., 2003). To date, fish suggestions that certain areas near barrier islands, no increase in animal mortalities associated with normal Barrow are important feeding grounds. densities are expected during the fall seismic operations are thought to be In the absence of important feeding seismic survey. Thus, separate take slight. Saetre and Ona (1996) modeled a areas, the potential diversion of a small estimates for the fall period were not worst-case mathematical approach on number of bowheads away from survey calculated. the effects of seismic energy on fish eggs activities is not expected to have any and larvae and concluded that mortality significant or long-term consequences Conclusions rates caused by exposure to seismic for individual bowheads or their Impacts of seismic sounds on energy are so low compared to natural population. Bowheads are not expected cetaceans are generally expected to be mortality that issues relating to stock to be excluded from any habitat. restricted to avoidance of a limited area recruitment should be regarded as The numbers of cetaceans and around the seismic operation and short- insignificant. pinnipeds subject to displacement are term changes in behavior, falling within Limited studies on physiological very small in relation to abundance the MMPA definition of Level B effects on marine fish and invertebrates estimates for the mammals addressed harassment. No Level A takes (including to acoustic stress have been conducted. under this IHA request. The proposed injury, serious injury, or mortality) are No significant increases in physiological activities are not expected to have any expected as a result of the proposed stress from seismic energy were habitat-related effects that would activities. The estimated numbers of detected for various fish, squid, and produce long-term effects to marine cetaceans and pinnipeds potentially cuttlefish (McCauley et al., 2000) or for mammals or their habitat due to the exposed to sound levels sufficient to male snow crabs (Christian et al., 2003). limited extent and very nearshore cause behavioral disturbance are very Behavioral changes in fish associated location of the survey area. low percentages of the population sizes with seismic exposures from project Effects of Seismic Noise and Other in the Bering-Chukchi-Beaufort seas. activities are expected to be minor at Mitigation measures such as look best. Because only a small portion of the Related Activities on Subsistence outs, non-pursuit, shutdowns or power- available foraging habitat would be Subsistence hunting and fishing is downs when marine mammals are seen subjected to seismic pulses at a given historically, and continues to be, an within defined ranges, and avoiding time, fish would be expected to return essential aspect of Alaska Native life, migration pathways when animals are to the area of disturbance within especially in rural coastal villages. The likely most sensitive to noise will anywhere from 15–30 min (McCauley et Inupiat people participate in further reduce short-term reactions, and al., 2000) to several days (Engas et al., subsistence hunting and fishing minimize any effects on hearing 1996) after cessation of activities. activities in and around the Beaufort sensitivity. In all cases, the effects are Available data indicate that mortality Sea. The animals taken for subsistence expected to be short-term, with no and behavioral changes do occur within provide a significant portion of the food lasting biological consequence. very close range to the seismic sources; that will feed the people throughout the Subsistence issues are addressed later in however, the proposed seismic site year. Along with providing the this document. clearance activity in the Beaufort Sea is nourishment necessary for survival, predicted to have a negligible effect on subsistence activities strengthen bonds Potential Impact on Habitat the prey resources of the various life within the culture, provide a means for The proposed seismic survey will not stages of fish and invertebrates available educating the young, provide supplies result in any permanent impact on to marine mammals. Further, the 880 for artistic expression, and allow for habitats used by marine mammals or in3 array, proposed for this project, important celebratory events. their prey sources. Furthermore, seismic produces a relatively low energy pulse Only minor, temporary effects from activity will take place in shallow, (250 dB) compared to the seismic the seismic survey project are nearshore waters less than 15 m (49 ft) systems used in the above studies. anticipated on Native subsistence deep, which is not considered to be It is estimated that only a small hunting. PGS does not expect any bowhead whale habitat. No impacts are portion of the marine mammals utilizing permanent impacts on marine mammals

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that will adversely affect subsistence Bering Sea. While on their spring is located approximately 60 km (37 mi) hunting. Mitigation efforts will be migration route, bowhead whales travel west of Cross Island and is too shallow implemented to minimize or completely through leads in the ice between the (less than 15 m, 50 ft deep) to support avoid any adverse effects on marine shore-fast ice and pack ice. bowhead whales. It is unlikely that the mammals. Additionally, areas being In a study of approximately 440 Nuiqsut fall hunt would extend to the used for subsistence hunting grounds bowhead whales between 1989 and project area. Adverse impacts on the will be avoided. It is anticipated that 1994 off the coast of Point Barrow, subsistence harvest of bowhead whales only minor, temporary displacement of Richardson et al. (1995) documented as a result of the proposed survey are marine mammals will occur. movements and behaviors in response not anticipated. Alaska Natives, including the Inupiat, to playback of sounds similar to those legally hunt several species of marine produced by site clearance and shallow Beluga Whales mammals. Marine animals used for hazard surveys. Whale behavior in Beluga whales summer in the waters subsistence within the Beaufort Sea relation to the sound level being of the Chukchi and Beaufort Seas and region include bowhead and beluga received at the whales’ locations was winter in the Bering Sea. Living in areas whales and ringed, spotted, and bearded observed. The research team concluded mostly covered in ice, they are seals. Each village along the Beaufort that the sounds emitted did not have a associated with leads and polynyas Sea hunts key subsistence species. biologically significant effect on (Haard, 1988). Beluga whales can be Hunts for these animals occur during bowhead movement, distribution, or hunted from the first week in April to different seasons throughout the year. behavior. July or August. It is common for the Depending upon the success of a Ten primary coastal Alaskan villages Inupiat to refrain from hunting beluga village’s hunt for a certain species, deploy whaling crews during whale during the spring or fall bowhead whale another species may become a priority migrations. Of these ten, Nuiqsut has hunt to prevent scaring the larger in order to provide enough nourishment the potential to be affected by the whales away from hunting locations. to sustain the village. Communities that proposed project, as it is the village Belugas do not account for a majority of participate in subsistence activities situated closest to the proposed project the total subsistence harvest in Barrow potentially affected by seismic surveys area. Barrow is located farther from the or Nuiqsut (ADF&G, 2008). Between within the proposed development area proposed seismic activity but has the 1999 and 2003, the annual beluga are Nuiqsut and Barrow. potential to be affected. These two subsistence ‘‘take’’ was 65 (Frost and Nuiqsut is the village nearest to the communities are part of the AEWC. The Suydam, 1995). proposed seismic activity area. AEWC was formed as a response to the Bowhead and beluga whales and ringed, International Whaling Commission’s Ringed Seals spotted, and bearded seals are harvested past closure of bowhead whale hunting Ringed seals are distributed by residents of Nuiqsut. Because the for subsistence purposes. IWC sets a throughout the Arctic Ocean. They village is 56 km (35 mi) inland (Alaska quota for the whale hunt, and AEWC inhabit both seasonal and permanent community Online Database, 2008), allocates the quota between villages. whaling crews travel in aluminum skiffs Each of the villages within the AEWC is ice. An abundance and distribution equipped with outboard motors to represented by a Whaling Captains’ study conducted in the Beaufort Sea offshore areas such as Cross Island Association. Bowhead whales migrate before, during, and after anthropogenic (Funk and Galginaitis, 2005). Of the within the hunting range of whaling sound-producing construction found marine mammals harvested, bowhead crews in the spring (north migration) that there were only slight changes near whales are most commonly harvested. and the fall (south migration). In the construction activities around British In 1992 an estimated 34,884 kg (76,906 spring, the whales must travel through Petroleum’s (BP’s) Northstar oil lbs) were harvested (ADF&G, 2008). leads in the ice that tend to occur close development that most likely were Seals are also regularly hunted and may to shore. In the fall, the water is much caused by environmental factors account for up to 3,770 kg (8,310 lbs) of more open, allowing the whales to swim (Moulton et al., 2005). Harris et al. harvest, while beluga whale harvests farther from the coast. (2001) performed a study using 3D account for little or none (ADF&G, Whaling crews in Barrow hunt in both seismic arrays in which the number of 2008). the spring and the fall (Funk and seal sightings varied only slightly in Barrow residents’ main subsistence Galginaitis, 2005). In the spring, the periods of no sonar firing, single sonar focus is concentrated on biannual whales are hunted along leads that firing, and multiple-array sonar firing. bowhead whale hunts that take place occur when the pack ice starts Seals tended to stay slightly farther during the spring and fall. Other deteriorating. This tends to occur in away from the vessel at times of full- animals, such as seals, are hunted Barrow between the first week of April array sonar firing, but they rarely moved outside of the whaling season, but they and the first week of June, well before more than 250 m (820 ft) from the are not the primary source of the the geophysical surveys will be vessel. Sonar activity was interrupted subsistence harvest (URS Corp., 2005). conducted. The proposed seismic when seals came within a certain radius survey is anticipated to start after all the (150 m, 492 ft, to 250 m, 820 ft) of the Bowhead Whales ice melts, in approximately mid-July, vessel, in accordance with regulations The bowhead whales that could and will not affect spring whaling. Fall set by NMFS. potentially be affected by seismic whaling activities are anticipated to take Ringed seals are available to activity in the Beaufort Sea come from place east of Point Barrow (BLM, 2005). subsistence users year-round, but they the Western Arctic stock. The majority The project area is located 260 km (160 are primarily hunted in the winter due of these whales migrate annually during mi) east of Point Barrow. It is to the rich availability of other the spring from wintering grounds in anticipated that the project will not mammals in the summer. In 2000, the the Bering Sea, through the Chukchi impact the Barrow fall hunt. The annual estimated subsistence ‘‘take’’ Sea, to summer grounds in the Beaufort Nuiqsut fall whale hunt takes place in from Alaska of ringed seals was 9,567. Sea. During the fall migration, the the vicinity of Cross Island, ranging Because the bulk of the ringed seal whales travel back through the Chukchi from there to approximately 50 km (30 hunting will occur outside the time Sea to their wintering grounds in the mi) north of the island. The project area scope of the proposed project, adverse

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impacts on ringed seals as a result of the PGS anticipates that there is not a attendees in support of the IHA proposed survey are not anticipated. significant potential for the proposed application. The Open Water Meeting project to affect the bearded seal includes a forum for discussion of Spotted Seals subsistence hunt. Mitigation measures potential conflicts between industry Spotted seals in Alaska are distributed will be in place to minimize potential activities and subsistence use activities. along the continental shelf of the impacts. • May 8, 2008: Barrow POC Meeting/ Beaufort, Chukchi, and Bering Seas. Open House in Barrow to present the These seals migrate south from the Plan of Cooperation (POC) proposed project and to gather feedback Chukchi Sea, through the Bering Strait, Regulations at 50 CFR 216.104(a)(12) from the community; and into the Bering Sea beginning in require IHA applicants for activities that • May 9, 2008: Nuiqsut POC Meeting/ October. They spend the winter in the take place in Arctic waters to provide a Open House in Nuiqsut to present the Bering Sea traveling east and west along POC or information that identifies what project revisions and gather feedback the ice edge (Lowry et al., 1998). measures have been taken and/or will from the community. Because of the numbers of whales and be taken to minimize adverse effects on It should be noted that NMFS must bearded seals and the opportunities for the availability of marine mammals for make a determination under the MMPA subsistence harvesting of them, spotted subsistence purposes. PGS developed a that an activity would not have an and ringed seals are primarily hunted Draft POC, which included a timeline of unmitigable adverse impact on the during winter months in the Beaufort meetings set to occur in the subsistence needs for marine mammals. Sea. Since this time frame is outside the communities identified as potentially While this includes usage of both scope of the proposed project, being affected by the proposed project. cetaceans and pinnipeds, the primary subsistence activities involving spotted These communities are Nuiqsut and impact by seismic activities is expected and ringed seals are unlikely to occur Barrow. The Draft POC document was to be impacts from noise on bowhead during the survey (BLM, 2005). PGS distributed to the communities, whales during its westward fall feeding does not anticipate adverse effects to subsistence users groups, NMFS, and and migration period in the Beaufort spotted seals as a result of project USFWS on March 20, 2008. Based upon Sea. NMFS has defined unmitigable activities. discussions with communities and adverse impact as an impact resulting from the specified activity: (1) That is Bearded Seals subsistence users, PGS has incorporated changes to the project to reduce likely to reduce the availability of the Bearded seals tend to inhabit potential subsistence conflicts. These species to a level insufficient for a relatively shallow water (less than 200 changes are discussed in Addendum 1 harvest to meet subsistence needs by: (i) m, 656 ft, deep) that does not have of the Draft POC, which was submitted causing the marine mammals to much ice. In Alaska, they are distributed to the potentially affected communities abandon or avoid hunting areas, (ii) along the continental shelf of the Bering, and subsistence users groups, NMFS, directly displacing subsistence users, or Chukchi, and Beaufort Seas. Most and USFWS on May 7, 2008. Copies (iii) placing physical barriers between bearded seals migrate in the spring from were also available during POC the marine mammals and the the Bering Sea, through the Bering meetings in Barrow on May 8, 2008, and subsistence hunters; and (2) That cannot Strait, and into the Chukchi Sea and in Nuiqsut on May 9, 2008. A Final POC be sufficiently mitigated by other spend the summer season along the ice document including all input from measures to increase the availability of edge. Some bearded seals do not migrate potentially affected communities and marine mammals to allow subsistence and spend all year in the waters of the subsistence users groups will be needs to be met (50 CFR 216.103). Bering and Chukchi Seas. According to provided upon completion of the May However, while a signed CAA allows a subsistence harvest database, the 2000 POC meetings. Meetings that have taken NMFS to make a determination that the annual harvest of bearded seals in place prior to the survey include: activity will not have an unmitigable Alaska was 6,788 (ADF&G, 2000). • February 7, 2008: AEWC 2008 adverse impact on the subsistence use of Bearded seals are an important source of Conflict Avoidance Agreement (CAA) marine mammals, if one or both parties meat and hide for Chukchi Sea villages. meeting with Nuiqsut whalers in fail to sign the CAA, then NMFS will They tend to be targeted by subsistence Deadhorse to present the proposed make the determination that the activity users over ringed and spotted seals project and to gather feedback in will or will not have an unmitigable because they are very large. This support of a 2008 CAA; adverse impact on subsistence uses of provides a large amount of meat and • February 11, 2008: AEWC 2008 CAA marine mammals. This determination skins for constructing boats (BLM, meeting with Barrow whalers in Barrow may require that the IHA contain 2005). to present the proposed project and to additional mitigation measures in order Bearded seals are primarily hunted gather feedback in support of a 2008 for this decision to be made. during July in the Beaufort Sea; CAA; Proposed Mitigation Measures however, in 2007, bearded seals were • February 28, 2008: AEWC 2008 CAA harvested in the months of August and meeting in Barrow to discuss the 2008 The introduction of pulsed sounds September at the mouth of the Colville CAA with the AEWC; generated by seismic airguns is the main River Delta (Smith, pers. comm., 2008). • April 1, 2008: Kuukpikmiut source of potential impacts on marine The proposed project location is not a Subsistence Oversight Panel, Inc. mammal species and the focus of this primary subsistence hunting ground; Meeting and the Nuiqsut POC Meeting/ request. The response of the animal however, it is occasionally used by Open House in Nuiqsut to present the depends on various factors, but short- residents of Nuiqsut for subsistence proposed project and to gather feedback; term behavioral responses are the most hunting of bearded seals. An annual • April 2, 2008: NSB Planning likely to occur. No serious or lethal bearded seal harvest occurs in the Commission in Barrow to present the injuries are expected. Implementation of vicinity of Thetis Island in July through proposed project in support of a NSB the proposed mitigation measures August (J. Nukapigak, Nuiqsut hunter, Development Permit application; described below will reduce the pers. comm., 2008). Approximately 20 • April 14–16, 2008: Open Water potential impacts to marine mammals. bearded seals are harvested annually Meeting in Anchorage to present the Several mitigation measures are through this hunt. proposed project to NMFS and other proposed to be implemented in order to

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cause a minimal adverse impact upon the Internet, and very high frequency Hydrophones (OBH) in early July with affect marine mammal species. These radios. methods used previously (Zykov et al., include: • The proposed airgun energy source 2008b; Laurinolli et al., 2008). • The seismic vessel will remain is of moderate size, reducing the Measurements will be made with a within 5 km (3 mi) of the coastline and ensonified zone and the impacts to single OBH system positioned in 4.6–9 is not expected to pass the state/Federal marine mammals. m (15–30 ft) of water with the vessel • boundary line, avoiding bowhead whale The airgun source will be sailing along a line from 10–25 km (6– migration routes; acoustically measured from all 15.5 mi) away to directly over the OBH. • In response to discussions with the directions and in varying water depths The sail past is conducted at normal AEWC, PGS has negotiated the at the start of operations. Using this operating speed of the vessel. Some following operational windows to information, an avoidance radius will be vessel measurement may be performed further avoid potential impacts to determined within which any marine using the ASARs stationed near ODS migrating whales. The timing of the mammal sighting will cause immediate and SID (instead of the OBHs). airgun shutdown. Sound source measurements will be proposed survey would be divided into • two parts. Data acquisition outside the Ramp up and soft start methods will made of the two PGS airgun arrays at barrier islands (Thetis, Spy, and Leavitt be conducted while seismic operations two locations (inside and outside the Islands), the deepest water in the survey are initiated. This is intended to alert barrier islands in early July and prior to area, would be performed first and marine mammals in the area so that they seismic data acquisition). Both airgun would be completed by August 5. Data may swim away from the source before array configurations will be measured at acquisition inside the barrier islands, the full energy source is employed. each location, leading to four separate • Shutdown safety radii of 203 m (0.13 with maximum water depth of measurements. The measurements will mi) and 492 m (0.31 mi) for pinnipeds approximately 4.6 m (15 ft), would then be made using four OBH systems (see and cetaceans, respectively, will be be conducted from August 5–September PGS’ application, Figure 2 in Appendix monitored during operations to ensure 15. No data acquisition would be B). These recorders sample at 48 kHz, that injurious ‘‘takes’’ are avoided. conducted outside the barrier islands using a high-resolution 24–bit These radii will be adjusted accordingly after August 5. digitization systems. They can record based on the results of the acoustic • Although seismic operations are autonomously for up to 3 days per measurements mentioned above. deployment. The distances to the proposed to be conducted during the • PGS will participate in an offshore fall whale hunt (after August 25), they important sound level thresholds will monitoring program that will take place vary strongly with operating water would not occur within the areas from mid-August until mid- to late depth. In the shallowest depths of near normally used by hunters from Barrow September in cooperation with Pioneer 4 ft, sounds will be rapidly attenuated (Point Barrow) or Nuiqsut (Cross Natural Resources, Inc., (Pioneer) and and the distances will be relatively Island). The survey area is 60 km (37 ENI and in coordination with Shell small. The survey area outside the mi) west of Cross Island (and Offshore, Inc. which includes: (1) barrier islands reaches depths that downstream of the bowhead fall Monitor in-water sound near and distant support much better sound propagation, migration) and 260 km (160 mi) east of from Pioneer’s Oooguruk drill site, ENI’s and ENI expects the 120–dB distance Point Barrow. • Spy Island drill pad, and vessel could be as great as 10–20 km (6–12 mi). Although seismic operations are operations using four autonomous The OBH placement should be made to proposed to be conducted during the seafloor acoustic recorders (ASARs); (2) correspond with the best pre-field fall whale migration, activities would Monitor and characterize sounds estimates of the 190, 180, 160, and 120 occur in shallow waters within the produced from shallow-depth seismic dB re 1 µPa (rms) thresholds. JASCO barrier islands that are not considered survey planned by PGS using ASARs will consider previous sound source whale habitat. The barrier islands are and directional autonomous seafloor verification (SSV) measurements near also expected to act as an obstacle to recorders (DASARs); (3) Detect and BP’s Liberty prospect in similar water sounds generated by seismic activities, localize marine mammal vocalizations depths, combined with modeling to effectively keeping sound propagation using an array of DASAR’s positioned estimate the appropriate distances prior from entering the zone of migration. to the SSV measurements. • north and northwest of the Pioneer and MMOs will be stationed on source ENI projects; and (4) Visually survey the The OBH deployment configuration vessels to ensure that the airguns are not coastal Beaufort Sea from an aircraft to distances will be determined as operated in close proximity to marine search for bowhead whales and discussed previously. The optimal mammals and will be actively involved characterize behavior of those animals deployment configurations will be in vessel operations during all survey observed. determined for both the inside barrier operations. island and outside barrier island • PGS has offered to hire Inupiat Establishment and Monitoring of Safety locations. The OBHs will be deployed speakers to perform seismic work on Zones and seismic vessels asked to shoot along each of the PGS vessels. As part of their In-water sounds from support vessels pre-defined test tracks. The test tracks duties, the Inupiat speakers will also and associated with the Pioneer and ENI will be oriented in at least two keep watch for marine mammals and projects will be measured and source directions to capture the directivity will communicate with the MMOs levels determined. Primary vessels may characteristics of the airgun arrays; located on the source vessels. include crew boats, tugs, and barges. A airgun arrays typically produce greater • PGS will participate in the Com total of 12 vessels will be associated sound energy perpendicular to the tow Centers proposed to be operated in with the PGS seismic survey, many of direction than in line with the tow Barrow and Deadhorse. Com Centers these relatively small, outboard direction. enable vessel operators to be aware of powered skiffs. Between all three PGS will apply appropriate and avoid marine mammal and operations, it is expected that sounds adjustments to the estimated safety subsistence activity in the area. will be measured from 18–20 vessels. zones of 203 m (0.13 mi) for the 190– Communications of vessel operations Most measurements will be made dB isopleth and 492 m (0.31 mi) for the and transit will occur via telephones, using JASCO Research’s Ocean Bottom 180–dB isopleth. Results will be used

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for the implementation of mitigation considered to have cleared the safety daylight or nighttime. If the entire safety measures to power down the sound zone if it: zone is visible with vessel lights and/or source and reduce the size of the safety (1) Is visually observed to have left night vision devices, then ramp-up of zones when required. the safety zone; the airguns from a complete shutdown (2) Has not been seen within the zone may occur at night. Speed and Course Alterations for 15 min in the case of small (2) If one airgun has operated during If a marine mammal (in water) is odontocetes and pinnipeds; or a power-down period, ramp-up to full detected outside the safety radius and, (3) Has not been seen within the zone power will be permissible at night or in based on its position and the relative for 30 min in the case of mysticetes poor visibility, on the assumption that motion, is likely to enter the safety (large odontocetes do not occur within marine mammals will either be alerted radius, the vessel’s speed and/or direct the study area). by the sounds from the single airgun course would be changed in a manner and could move away or may be Shutdown Procedure that does not compromise safety detected by visual observations. requirements. The animal’s activities A shutdown procedure involves the (3) If no marine mammals have been and movements relative to the seismic complete turn off of all airguns. Ramp- sighted within or near the applicable vessel will be closely monitored to up procedures will be followed during safety zone during the previous 15 min ensure that the individual does not resumption of full seismic operations. in either daylight or nighttime, provided approach within the safety radius. If the The operating airgun(s) will be shut that the entire safety zone was visible mammal appears likely to enter the down completely during the following for at least 30 min. safety radius, further mitigative actions situations: (1) If a marine mammal approaches or Proposed Monitoring and Reporting will be taken, i.e., either further course Plan alterations or power-down or shutdown enters the applicable safety zone, and a of the airgun(s). power- down is not practical or PGS proposes to sponsor marine adequate to reduce exposure to less than mammal monitoring during the seismic Power-down Procedure 190 dB (rms; pinnipeds) or 180 dB (rms; survey in order to implement the A power-down involves decreasing cetaceans). proposed mitigation measures that the number of airguns in use such that (2) If a marine mammal approaches or require real-time monitoring, to satisfy the radii of the 190–dB and 180–dB enters the estimated safety radius the anticipated monitoring requirements zones are decreased to the extent that around the reduced source that will be of the IHA, and to meet any monitoring observed marine mammals are not in used during a power-down. requirements agreed to as part of the the applicable safety zone. Situations (3) If a marine mammal is detected POC/CAA. PGS will meet the that would require a power-down are within the safety radius and a power requirements by using two techniques: listed below. down would not keep the animal use of MMOs and participating in an (1) When the vessel is changing from outside the reduced new safety radius, acoustics monitoring plan through ENI. one source line to another, one airgun the airguns will be shut-down. The monitoring plan is described here. or a reduced number of airguns is Airgun activity will not resume until Vessel-based Visual Monitoring by operated. The continued operation of the marine mammal has cleared the MMOs one airgun or a reduced airgun array is safety radius. The animal will be intended to: (a) alert marine mammals considered to have cleared the safety PGS’ approach to monitoring is to to the presence of the seismic vessel in radius as described above for power- station two or more MMOs aboard each the area and (b) retain the option of down procedures. seismic vessel to document the initiating a ramp up to full operations occurrence of marine mammals near the Ramp-up Procedure under poor visibility conditions. vessel, to help implement mitigation (2) If a marine mammal is detected A ramp-up procedure will be requirements, and to record the outside the safety radius but is likely to followed when the airgun array begins reactions of marine mammals to the enter the safety radius, and if the operating after a specified duration with survey. At least one MMO, if not all, vessel’s speed and/or course cannot be no or reduced airgun operations. The will be an Inupiat trained in collecting changed to avoid the animal from specified duration depends on the speed marine mammal data. Each MMO will, entering the safety zone. As an of the source vessel, the size of the while on duty, scan the area of alternative to a complete shutdown, the airgun array that is being used, and the operation (using 8 to 10 power airguns may be powered- down before size of the safety zone, but is often about binoculars) for marine mammals, the animal is within the safety zone. 10 min. recording the species, location, distance (3) If a marine mammal is already NMFS requires that, once ramp-up from survey vessel, and behavior (and within the safety zone when first commences, the rate of ramp-up be no associated weather data) of all that are detected, the airguns would be more than 6 dB per 5 min period. Ramp- seen. Observer watches will last no powered-down immediately if this is a up will likely begin with the smallest more than 4 consecutive hours, and no reasonable alternative to a complete airgun, in this case, 80 in3. The precise observer will watch more than 12 total shutdown, to have the marine mammal ramp-up procedure has yet to be hours in a 24–hr day. Observation will outside the newly established safety determined. A common procedure is to occur while survey operations are zone that would be smaller due to double the number of operating airguns conducted. (Use of night-scope for fall reduced number of operating airguns. at 5-min intervals. During the ramp-up, monitoring will be explored prior to the This decision will be made by the MMO the safety zone for the full 8–gun array fall field season.) Most importantly, and can be based on the results obtained will be maintained. A ramp-up however, each MMO will determine that from the acoustic measurements for the procedure can be applied only in the the safety radius is clear of marine establishments of safety zones. following situations: mammals prior to operating the high- Following a power-down, operation of (1) If, after a complete shutdown, the energy sound equipment, and each will the full airgun array will not resume entire 180 dB safety zone has been have the authority to suspend active until the marine mammal has cleared visible for at least 30 min prior to the side-scan sonar or sleeve gun operations the safety zone. The animal will be planned start of the ramp-up in either should a marine mammal be observed

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approaching the safety radius. NMFS deployed in mid-August and then and associated daily activities at ODS will be provided with weekly reports of allowed to record as long as possible and SID and the drilling activity at ODS. the marine mammal observations as into September, taking weather factors Additional information on how the long as the onboard communication (e.g., sea state and ice formation) into ASARs and DASARs will be utilized is systems allow. consideration. The NSB Wildlife found in Appendix B of the PGS In addition to the marine mammal Department will be informed prior to application. monitoring to be performed by the removing the recorders. Acoustic Monitoring of Seismic Survey MMOs located on the source vessels, The four ASARs will be placed near and Ambient Sounds PGS has offered to hire Inupiat speakers the two drillsites to monitor sounds to perform seismic work on each of the produced from drilling (ODS only), PGS will use an automated process PGS vessels. As part of their duties, the vessel (ODS and SID), and construction developed by A. Thode of Scripps to Inupiat speakers will also keep watch activities (primarily SID). Figure 5 in detect airgun pulses in the DASAR data for marine mammals and will Appendix B of PGS’ application and compute the instantaneous peak communicate with the MMOs located provides a finer scale resolution of the pressure, the sound pressure level (rms), on the source vessels. acoustic recorders in the vicinity of ODS the sound exposure level, and the pulse Acoustic Monitoring of Drillsite and SID than in Figure 4. One ASAR duration. Background sound levels Activities and Marine Mammal will be placed approximately 0.4 km (between the pulses) are also Vocalizations (0.25) mi from each ODS and SID. One characterized using this automated ASAR will be placed 6.4 km (4 mi) procedure. These measurements provide Acoustic measurements of drillsite north of ODS and one 0.6 km (1 mi) time series for the entire study period, activities and marine mammal north of SID. Similar to the nearby Shell expected to be from 4–6 weeks vocalizations in 2008 will be performed DASAR Site 1 and Site 2 arrays, the beginning in mid-August. Vessel sounds using Greeneridge’s autonomous DASARs will be spaced 7 km (4.3 mi) will be noted and their levels included seafloor recorders. For monitoring the from each other and will detect marine in the background time series near-drillsite sounds, four (Blackwell et al., 2008). omnidirectional ASARs (Greene et al., mammal vocalizations to the north and south of the array out to 10 to 15 km (6 1997) will be used, which sample at a Aerial Surveys rate of 5 kHz and have an acoustic to 9 mi) from any one recorder. bandwidth of 10–2,200 Hz. The ASARs The acoustic data collected during the Working with NSB scientists in 2006, can record ambient and anthropogenic summer 2008 near ODS and SID will be Pioneer developed an aerial survey sounds and vocalizations from bowhead suitable to compute sound levels program to assess the distribution of whales, beluga whales, seals, and received from: (1) heavy equipment and bowhead whales within 24–32 km (15– walrus. machinery operating on the drillsites; 20 mi) of the Pioneer operation during For the whale-call acoustic array, five (2) small vessels and crew change fall whale migration. These surveys directional DASARs (Greene et al., vessels operating around the ODS and were done in 2006 and 2007 and were 2004; see Figure 3 in Appendix B of SID and between Oliktok Point and the conducted with two dedicated observers PGS’ application) will be used, which ODS; (3) loaded and empty barges from a Bell 412 helicopter (Reiser et al., have an acoustic bandwidth of 10–450 traversing to and from Oliktok Point and 2008; Williams et al., 2008). Hz. In addition to bowhead whale calls, ODS and SID; and (4) the process of For 2008, PGS proposes to collaborate the DASARs will also detect and record holding the barges in place at the with Shell to expand the temporal industrial sounds, including those drillsites while offloading equipment coverage of their aerial survey program, produced by vessels and seismic and supplies. which is otherwise planned to start airguns. Regarding the ability to detect An important aspect to characterizing around September 7. These surveys are ultra-low frequency sounds that might sounds and correlating them to specific to be performed in support of Shell’s be produced from drilling, the DASAR activities will be to maintain an accurate shallow hazard surveys being planned and the ASAR can record sounds as low record of all sound-producing activities from mid-September through October, as 1 or 2 Hz but at reduced sensitivity in the project areas. Time-referenced 2008. PGS will work to expand the relative to frequencies above 10 Hz. The information of vessel movements and duration of these surveys to start August DASARs will be modified versions of construction activities at and around the 25 and be conducted along the survey units (DASAR ‘‘b’’) that were used for drillsites will be required in order to tracklines. Shell’s 2007 Beaufort Sea Monitoring interpret acoustic sound level data. This Weather conditions permitting, Program and will be identical to those is especially important in order to surveys will be conducted 3 or more proposed for monitoring BP’s Northstar determine whether measured sound days per week beginning August 25 and Island and Shell’s five DASAR arrays in levels are generated by activities at or continuing through as far into October 2008. The modification involves a new near the drillsites. To acquire detailed as Shell continues its operation. The version of the sensor (a three-channel position information from key sources surveys will be conducted from a de device). In total, nine recorders will be of in-water sounds, Pioneer/ENI Havilland Twin Otter following similar used for Pioneer/ENI in 2008; four proposes to place GPS units capable of protocols used by Shell in the Beaufort ASARs will be deployed in the vicinity logging position data on selected project Sea in 2006 and 2007. Survey tracklines of the ODS and SID and five DASARs vessels during the open-water period. will be spaced 8 km (5 mi) apart and will be located approximately 13–20 km The vessel logs and GPS position data will run approximately 64.4 km (40 mi) (8–12 mi) north of the drillsites in 9– will be used to verify (or exclude) in a north-south direction. Surveys will 15.2 m (30–50 ft) of water (see Figure 4 various sources of anthropogenic be conducted in good survey conditions in Appendix B of PGS’ application). sounds that are detected on the acoustic (i.e., favorable weather and sea state). The acoustic recorders will be recorders and to associate any visual Four trained and experienced surveyors deployed/retrieved using a workboat observations of marine mammal seated in the rear of the aircraft will supplied by Pioneer/ENI. Recorders will behavior from aerial surveys with make observations from the right and be retrieved from a tag line and the project activities. Pioneer/ENI will also left sides of the airplane. The airplane grapple method. The recorders will be maintain logs of equipment inventory will be operated by two pilots in the

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front seats who will also survey the area activities). Marine mammal sightings proposed Arctic seismic survey IHAs for ahead of the aircraft. will be reported at species level, 2008, well within the scope of the PEA’s Standard aerial survey procedures however, especially during unfavorable eight consecutive seismic surveys. To used by LGL and others in many environmental conditions (e.g., low update the 2006 Final PEA, NMFS is previous marine mammal projects will visibility, high sea states) this will not currently preparing an EA which be followed, including those surveys always be possible. The number and incorporates by reference the 2006 Final completed for Shell in the Alaskan circumstances of ramp-up, power-down, PEA and other related documents. The Beaufort Sea in 2006 (Thomas et al., shutdown, and other mitigation actions necessary NEPA analysis will be 2007) and 2007 (Lyons et al., 2008). will be reported. The report will also concluded prior to making a Following these procedures will include estimates of the amount and determination on the issuance of the facilitate comparisons and (as nature of potential impact to marine IHA to PGS. appropriate) pooling of results with mammals encountered during the Preliminary Determinations other datasets (e.g., sighting rates, whale survey. group size and composition). The Based on the information provided in aircraft will be flown at 100–110 knots ESA PGS’ application, this document, and ground speed and at an altitude of 457 NMFS has previously consulted the MMS Final PEA, NMFS has m (1500 ft). Aerial surveys at an altitude under section 7 of the ESA on the preliminarily determined that the of 457 m (1500 ft) do not provide much issuance of IHAs for seismic survey impact of PGS conducting seismic information about seals but are suitable activities in the Beaufort and Chukchi surveys in the Beaufort Sea in 2008 may for both bowhead and beluga whales. Seas. NMFS issued a Biological Opinion result, at worst, in a temporary The need for a 457 m (1500 ft) cloud on June 16, 2006, regarding the effects modification in behavior (Level B ceiling will limit the dates and times of this action on ESA-listed species and Harassment) of small numbers of six when surveys can be flown. The surveys critical habitat under the jurisdiction of species of marine mammals, will have will follow a GPS-referenced tracklines. NMFS. The Opinion concluded that this no more than a negligible impact on the For each marine mammal sighting, the action is not likely to jeopardize the affected species or stocks, and that there observer will not the species, number, continued existence of listed species or will not be any unmitigable adverse size/age/sex class when determinable, result in the destruction or adverse impacts to subsistence communities, activity, heading, swimming speed modification of critical habitat. A copy provided the mitigation measures category (if traveling), sighting cue, ice of the Biological Opinion is available at: described previously in this document conditions (type and percentage), and http://www.mms.gov/alaska/ref/Bio are implemented. inclinometer reading. An inclinometer Opinions/ARBOIII–2.pdf. NMFS has preliminarily determined reading (angle from horizontal) will be that the short-term impact of conducting National Environmental Policy Act taken when the animal’s location is at seismic surveys in the U.S. Beaufort Sea (NEPA) a right angle to the side of the aircraft may result, at worst, in a temporary track, allowing calculation of lateral In 2006, the MMS prepared Draft and modification in behavior by certain distance from the aircraft trackline. Final Programmatic Environmental species of marine mammals. While Transect information, sighting data, and Assessments (PEAs) for seismic surveys behavioral and avoidance reactions may environmental data will be entered into in the Beaufort and Chukchi Seas. be made by these species in response to a GPS-linked data logger. NMFS was a cooperating agency in the the resultant noise, this behavioral preparation of the MMS PEA. On change is expected to have a negligible Reporting November 17, 2006 (71 FR 66912), impact on the animals. While the A report on the preliminary results of NMFS and MMS announced that they number of potential incidental the acoustic verification measurements, were preparing a DPEIS in order to harassment takes will depend on the including as a minimum the measured assess the impacts of MMS’ annual distribution and abundance of marine 190- and 180–dB (rms) radii of the authorizations under the Outer mammals (which vary annually due to airgun sources, will be submitted within Continental Shelf Lands Act to the U.S. variable ice conditions and other 72–hrs after collection of those oil and gas industry to conduct offshore factors) in the area of seismic measurements at the start of the field geophysical seismic surveys in the operations, the number of potential season. This report will specify the Chukchi and Beaufort Seas off Alaska harassment takings is estimated to be distances of the safety zones that were and NMFS’ authorizations under the small (less than one percent of any of adopted for the survey. MMPA to incidentally harass marine the estimated population sizes) and has A report on PGS’ activities and on the mammals while conducting those been mitigated to the lowest level relevant monitoring and mitigation surveys. practicable through incorporation of the results will be submitted to NMFS On March 30, 2007 (72 FR 15135), the measures mentioned previously in this within 90 days after the end of the Environmental Protection Agency (EPA) document. In addition, no take by death seismic survey. The report will describe noted the availability for comment of and/or serious injury is anticipated, and the operations that were conducted, the the NMFS/MMS DPEIS. Based upon the potential for temporary or measured sound levels, and the several verbal and written requests to permanent hearing impairment will be cetaceans and seals that were detected NMFS for additional time to review the avoided through the incorporation of near the operations. The report will be DPEIS, EPA has twice announced an the mitigation and monitoring measures submitted to NMFS, providing full extension of the comment period until proposed above. No rookeries, mating documentation of methods, results, and July 30, 2007 (72 FR 28044, May 18, grounds, areas of concentrated feeding, interpretation pertaining to all acoustic 2007; 72 FR 38576, July 13, 2007). or other areas of special significance for and vessel-based marine mammal Because NMFS has been unable to marine mammals occur within or near monitoring. The 90-day report will complete the PEIS, it determined that the planned area of operations during summarize the dates and locations of the 2006 PEA would need to be updated the season of operations. seismic operations, and all whale and in order to meet NMFS’ NEPA NMFS has preliminarily determined seal sightings (dates, times, locations, requirements. This approach was that the proposed seismic activity by activities, associated seismic survey warranted as it was reviewing five PGS in the Beaufort Sea in 2008 will not

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have an unmitigable adverse impact on Proposed Authorization ACTION: Notice. the subsistence uses of bowhead whales As a result of these preliminary and other marine mammals. This determinations, NMFS proposes to issue SUMMARY: The Department of Defense is determination is supported by the an IHA to PGS for conducting a seismic publishing the unclassified text of a information in this Federal Register survey in the Beaufort Sea in 2008, section 36(b)(1) arms sales notification. Notice, including: (1) the fall bowhead provided the previously mentioned This is published to fulfill the whale hunt in the Beaufort Sea will mitigation, monitoring, and reporting requirements of section 155 of Public either be governed by a CAA between requirements are incorporated. Law 104–164 dated 21 July 1996. PGS and the AEWC and village whaling captains or by mitigation measures Dated: June 11, 2008. FOR FURTHER INFORMATION CONTACT: Ms. contained in the IHA; (2) the CAA or James H. Lecky, B. English, DSCA/DBO/CFM, (703) 601– IHA conditions will significantly reduce Director, Office of Protected Resources, 3740. impacts on subsistence hunters to National Marine Fisheries Service. The following is a copy of a letter to ensure that there will not be an [FR Doc. E8–13650 Filed 6–16–08; 8:45 am] the Speaker of the House of unmitigable adverse impact on BILLING CODE 3510–22–S Representatives, Transmittals 08–06 subsistence uses of marine mammals; with attached transmittal, policy (3) because ringed seals are hunted justification, and Sensitivity of mainly from October through June, DEPARTMENT OF DEFENSE although they are available year-round; Technology. however, the seismic survey will not Office of the Secretary Dated: May 5, 2008. occur during the primary period when [Transmittal Nos. 08–06] Patricia L. Toppings, these seals are typically harvested; and OSD Federal Register Liaison Officer, (4) specific provisions to avoid 36(b)(1) Arms Sales Notification Department of Defense. interference with the seal hunts will be BILLING CODE 5001–06–M integrated into the survey in compliance AGENCY: Department of Defense, Defense with the CAA where applicable. Security Cooperation Agency.

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[FR Doc. E8–13216 Filed 6–16–08; 8:45 am] Deadline for Transmittal of Additional information on the RERC BILLING CODE 5001–06–C Applications: August 1, 2008. program can be found at: http:// Date of Pre-Application Meeting: July www.ed.gov/rschstat/research/pubs/res- 9, 2008. program.html#RERC. Full Text of Announcement Priority: The Universal Interface and DEPARTMENT OF EDUCATION Information Technology Access priority I. Funding Opportunity Description Office of Special Education and is from the notice of final priorities for Purpose of Program: The purpose of Rehabilitative Services Overview the Disability and Rehabilitation the RERC program is to improve the Information; National Institute on Research Projects and Centers Program, effectiveness of services authorized Disability and Rehabilitation Research published in the Federal Register on under the Rehabilitation Act of 1973, as (NIDRR)—Disability and Rehabilitation February 1, 2008 (73 FR 6132). amended, by conducting advanced Research Projects and Centers Note: On February 1, 2008, we also engineering research and development Program—Rehabilitation Engineering published a notice in the Federal Register on innovative technologies that are Research Centers (RERCs)—Universal (73 FR 6166) inviting applications for a designed to solve particular Interface and Information Technology number of competitions, including one using rehabilitation problems, or remove Access; Notice Inviting Applications the Universal Interface and Information environmental barriers. RERCs also for New Awards for Fiscal Year (FY) Technology Access priority. None of the demonstrate and evaluate such 2008 applications we received for the Universal technologies, facilitate service delivery Interface and Information Technology Access Catalog of Federal Domestic Assistance system changes, stimulate the competition announced in that notice were (CFDA) Number: 84.133E–6. production and distribution of new successful. Accordingly, through this notice, technologies and equipment in the we are inviting applications for another Dates: private sector, and provide training competition using the Universal Interface Applications Available: June 17, 2008. opportunities. and Information Technology Access priority.

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Absolute Priority: For FY 2008, this Center, P.O. Box 1398, Jessup, MD 3. Submission Dates and Times: priority is an absolute priority. Under 34 20794–1398. Telephone, toll free: Applications Available: June 17, 2008. CFR 75.105(c)(3) we consider only 1–877–433–7827. FAX: (301) 470–1244. Deadline for Transmittal of applications that meet this priority. If you use a telecommunications device Applications: August 1, 2008. This priority is: RERC on Universal for the deaf (TDD), call, toll free: 1–877– Date of Pre-Application Meeting: Interface and Information Technology 576–7734. Interested parties are invited to Access. You can contact ED Pubs at its Web participate in a pre-application meeting Program Authority: 29 U.S.C. 762(g) site, also: http://www.ed.gov/pubs/ and to receive information and technical and 764(b)(3). edpubs.html or at its e-mail address: assistance through individual Applicable Regulations: (a) The [email protected]. consultation with NIDRR staff. The pre- Education Department General If you request an application from ED application meeting will be held on July Administrative Regulations (EDGAR) in Pubs, be sure to identify this 9, 2008. Interested parties may 34 CFR parts 74, 75, 77, 80, 81, 82, 84, competition as follows: CFDA Number participate in this meeting by 85, 86, and 97. (b) The regulations for 84.133E–6. conference call with NIDRR staff from this program in 34 CFR part 350. (c) The Individuals with disabilities can the Office of Special Education and notice of final priorities for the obtain a copy of the application package Rehabilitative Services between 1:00 Disability and Rehabilitation Research in an alternative format (e.g., Braille, p.m. and 2:30 p.m., Washington, DC Projects and Centers Program, published large print, audiotape, or computer time. NIDRR staff also will be available in the Federal Register on February 1, diskette) by contacting the person or from 3:00 p.m. to 4:00 p.m., 2008 (73 FR 6132, 6144). team listed under Alternative Format in Washington, DC time, on the same day, section VIII of this notice. by telephone, to provide information Note: The regulations in 34 CFR part 86 2. Content and Form of Application apply to institutions of higher education and technical assistance through (IHEs) only. Submission: Requirements concerning individual consultation. For further the content of an application, together information or to make arrangements to II. Award Information with the forms you must submit, are in participate in the meeting via the application package for this Type of Award: Discretionary grants. conference call or for an individual competition. consultation, contact Donna Nangle, Estimated Available Funds: $950,000. Page Limit: The application narrative U.S. Department of Education, Potomac Estimated Range of Awards: (Part III of the application) is where you, Center Plaza (PCP), room 6029, 550 12th $947,999–$950,000. the applicant, address the selection Street, SW., Washington, DC 20202. Maximum Award: We will reject any criteria that reviewers use to evaluate Telephone: (202) 245–7462 or by e-mail: application that proposes a budget your application. We recommend that [email protected]. exceeding $950,000 for a single budget you limit Part III to the equivalent of no Applications for grants under this period of 12 months. The Assistant more than 125 pages, using the program may be submitted Secretary for Special Education and following standards: Rehabilitative Services may change the • A ‘‘page’’ is 8.5″ x 11″, on one side electronically using the Grants.gov maximum amount through a notice only, with 1″ margins at the top, bottom, Apply site (Grants.gov), or in paper published in the Federal Register. and both sides. format by mail or hand delivery. For information (including dates and times) Note: The maximum amount includes • Double space (no more than three direct and indirect costs. lines per vertical inch) all text in the about how to submit your application electronically, or in paper format by Estimated Number of Awards: 1. application narrative. Single spacing may be used for titles, headings, mail or hand delivery, please refer to Note: The Department is not bound by any footnotes, quotations, references, and section IV. 6. Other Submission estimates in this notice. captions, as well as all text in charts, Requirements in this notice. Project Period: Up to 60 months. tables, figures, and graphs. We do not consider an application • Use a font that is either 12 point or that does not comply with the deadline III. Eligibility Information larger or no smaller than 10 pitch requirements. 1. Eligible Applicants: States; public (characters per inch). Individuals with disabilities who or private agencies, including for-profit The recommended page limit does not need an accommodation or auxiliary aid agencies; public or private apply to Part I, the cover sheet; Part II, in connection with the application organizations, including for-profit the budget section, including the process should contact the person listed organizations; IHEs; and Indian tribes narrative budget justification; Part IV, under FOR FURTHER INFORMATION and tribal organizations. the assurances and certifications; or the CONTACT in section VII in this notice. If 2. Cost Sharing or Matching: This one-page abstract, the resumes, the the Department provides an competition does not require cost bibliography, or the letters of support. accommodation or auxiliary aid to an sharing or matching. However, the recommended page limit individual with a disability in does apply to all of the application connection with the application IV. Application and Submission narrative section (Part III). process, the individual’s application Information The application package will provide remains subject to all other 1. Address to Request Application instructions for completing all requirements and limitations in this Package: You can obtain an application components to be included in the notice. package via the Internet or from the application. Each application must 4. Intergovernmental Review: This Education Publications Center (ED include a cover sheet (Standard Form program is not subject to Executive Pubs). To obtain a copy via the Internet, 424); budget requirements (ED Form Order 12372 and the regulations in 34 use the following address: http:// 524) and narrative justification; other CFR part 79. www.ed.gov/fund/grant/apply/ required forms; an abstract, Human 5. Funding Restrictions: We reference grantapps/index.html. To obtain a copy Subjects narrative, Part III narrative; regulations outlining funding from ED Pubs, write, fax, or call the resumes of staff; and other related restrictions in the Applicable following: Education Publications materials, if applicable. Regulations section in this notice.

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6. Other Submission Requirements: depending on a variety of factors, • If you submit your application Applications for grants under this including the size of the application and electronically, you must attach any program may be submitted the speed of your Internet connection. narrative sections of your application as electronically or in paper format by mail Therefore, we strongly recommend that files in a .DOC (document), .RTF (rich or hand delivery. you do not wait until the application text), or .PDF (Portable Document) a. Electronic Submission of deadline date to begin the submission format. If you upload a file type other Applications. process through Grants.gov. than the three file types specified in this To comply with the President’s • You should review and follow the paragraph or submit a password- Management Agenda, we are Education Submission Procedures for protected file, we will not review that participating as a partner in the submitting an application through material. Governmentwide Grants.gov Apply site. Grants.gov that are included in the • Your electronic application must The Rehabilitation Engineering application package for this competition comply with any page-limit Research Centers competition, CFDA to ensure that you submit your requirements described in this notice. number 84.133E–6, is included in this application in a timely manner to the • After you electronically submit project. We request your participation in Grants.gov system. You can also find the your application, you will receive from Grants.gov. Education Submission Procedures Grants.gov an automatic notification of If you choose to submit your pertaining to Grants.gov at http://e- receipt that contains a Grants.gov application electronically, you must use Grants.ed.gov/help/Grantsgov tracking number. (This notification the Governmentwide Grants.gov Apply SubmissionProcedures.pdf. indicates receipt by Grants.gov only, not site at http://www.Grants.gov. Through • To submit your application via receipt by the Department.) The this site, you will be able to download Grants.gov, you must complete all steps Department then will retrieve your a copy of the application package, in the Grants.gov registration process application from Grants.gov and send a complete it offline, and then upload and (see http://www.grants.gov/applicants/ second notification to you by e-mail. submit your application. You may not get_registered.jsp). These steps include This second notification indicates that e-mail an electronic copy of a grant (1) registering your organization, a the Department has received your application to us. multi-part process that includes application and has assigned your You may access the electronic grant registration with the Central Contractor application a PR/Award number (an ED- application for the Rehabilitation Registry (CCR); (2) registering yourself specified identifying number unique to Engineering Research Centers as an Authorized Organization your application). competition—CFDA number 84.133E–6 Representative (AOR); and (3) getting • We may request that you provide us at http://www.Grants.gov. You must authorized as an AOR by your original signatures on forms at a later search for the downloadable application organization. Details on these steps are date. package for this program by the CFDA outlined in the Grants.gov 3-Step Application Deadline Date Extension number. Do not include the CFDA Registration Guide (see http:// in Case of Technical Issues with the number’s alpha suffix in your search www.grants.gov/section910/Grants.gov Grants.gov System: If you are (e.g., search for 84.133, not 84.133E–6). RegistrationBrochure.pdf). You also experiencing problems submitting your Please note the following: must provide on your application the application through Grants.gov, please • Your participation in Grants.gov is same D–U–N–S Number used with this contact the Grants.gov Support Desk, voluntary. registration. Please note that the toll free, at 1–800–518–4726. You must • When you enter the Grants.gov site, registration process may take five or obtain a Grants.gov Support Desk Case you will find information about more business days to complete, and Number and must keep a record of it. submitting an application electronically you must have completed all If you are prevented from through the site, as well as the hours of registration steps to allow you to submit electronically submitting your operation. successfully an application via application on the application deadline • Applications received by Grants.gov. In addition you will need to date because of technical problems with Grants.gov are date and time stamped. update your CCR registration on an the Grants.gov system, we will grant you Your application must be fully annual basis. This may take three or an extension until 4:30 p.m., uploaded and submitted and must be more business days to complete. Washington, DC time, the following date and time stamped by the • You will not receive additional business day to enable you to transmit Grants.gov system no later than 4:30 point value because you submit your your application electronically or by p.m., Washington, DC time, on the application in electronic format, nor hand delivery. You also may mail your application deadline date. Except as will we penalize you if you submit your application by following the mailing otherwise noted in this section, we will application in paper format. instructions described elsewhere in this not accept your application if it is • If you submit your application notice. received—that is, date and time electronically, you must submit all If you submit an application after 4:30 stamped by the Grants.gov system—after documents electronically, including all p.m., Washington, DC time, on the 4:30 p.m., Washington, DC time, on the information you typically provide on application deadline date, please application deadline date. We do not the following forms: Application for contact the person listed under FOR consider an application that does not Federal Assistance (SF 424), the FURTHER INFORMATION CONTACT in comply with the deadline requirements. Department of Education Supplemental section VII in this notice and provide an When we retrieve your application from Information for SF 424, Budget explanation of the technical problem Grants.gov, we will notify you if we are Information—Non-Construction you experienced with Grants.gov, along rejecting your application because it Programs (ED 524), and all necessary with the Grants.gov Support Desk Case was date and time stamped by the assurances and certifications. Please Number. We will accept your Grants.gov system after 4:30 p.m., note that two of these forms—the SF 424 application if we can confirm that a Washington, DC time, on the and the Department of Education technical problem occurred with the application deadline date. Supplemental Information for SF 424— Grants.gov system and that that problem • The amount of time it can take to have replaced the ED 424 (Application affected your ability to submit your upload an application will vary for Federal Education Assistance). application by 4:30 p.m., Washington,

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DC time, on the application deadline a courier service) must deliver the new intervention approaches and date. The Department will contact you original and two copies of your strategies. Submission of the after a determination is made on application by hand, on or before the information identified in this section V. whether your application will be application deadline date, to the 2. Review and Selection Process is accepted. Department at the following address: voluntary, except where required by the Note: The extensions to which we refer in U.S. Department of Education, selection criteria listed in the this section apply only to the unavailability Application Control Center, Attention: application package. (CFDA number 84.133E–6), 550 12th of, or technical problems with, the Grants.gov VI. Award Administration Information system. We will not grant you an extension Street, SW., Room 7041, Potomac Center if you failed to fully register to submit your Plaza, Washington, DC 20202–4260. 1. Award Notices: If your application application to Grants.gov before the The Application Control Center is successful, we notify your U.S. application deadline date and time or if the accepts hand deliveries daily between Representative and U.S. Senators and technical problem you experienced is 8:00 a.m. and 4:30 p.m., Washington, send you a Grant Award Notification unrelated to the Grants.gov system. DC time, except Saturdays, Sundays, (GAN). We may notify you informally, b. Submission of Paper Applications and Federal holidays. also. by Mail. Note for Mail or Hand Delivery of If your application is not evaluated or If you submit your application in Paper Applications: If you mail or hand not selected for funding, we notify you. paper format by mail (through the U.S. deliver your application to the 2. Administrative and National Policy Postal Service or a commercial carrier), Department— Requirements: We identify you must mail the original and two (1) You must indicate on the envelope administrative and national policy copies of your application, on or before and—if not provided by the requirements in the application package the application deadline date, to the Department—in Item 11 of the SF 424 and reference these and other Department at the applicable following the CFDA number, including suffix requirements in the Applicable address: letter, if any, of the competition under Regulations section in this notice. By mail through the U.S. Postal which you are submitting your We reference the regulations outlining Service: application; and the terms and conditions of an award in U.S. Department of Education, (2) The Application Control Center the Applicable Regulations section in Application Control Center, will mail to you a notification of receipt this notice and include these and other Attention: (CFDA number 84.133E–6), of your grant application. If you do not specific conditions in the GAN. The 400, Maryland Avenue, SW., receive this notification within 15 GAN also incorporates your approved Washington, DC 20202–4260 business days from the application application as part of your binding or deadline date, you should call the U.S. commitments under the grant. By mail through a commercial carrier: Department of Education Application 3. Reporting: At the end of your U.S. Department of Education, Control Center at (202) 245–6288. project period, you must submit a final performance report, including financial Application Control Center, Stop V. Application Review Information 4260, Attention: (CFDA number information, as directed by the 84.133E–6), 7100 Old Landover Road, 1. Selection Criteria: The selection Secretary. If you receive a multi-year Landover, MD 20785–1506. criteria for this competition are from 34 award, you must submit an annual CFR 350.54 and are listed in the performance report that provides the Regardless of which address you use, most current performance and financial you must show proof of mailing application package. 2. Review and Selection Process: expenditure information as directed by consisting of one of the following: the Secretary under 34 CFR 75.118. The (1) A legibly dated U.S. Postal Service Additional factors we consider in Secretary may also require more postmark. determining the merits of an application (2) A legible mail receipt with the are as follows— frequent performance reports under 34 date of mailing stamped by the U.S. The Secretary is interested in CFR 75.720(c). For specific Postal Service. outcomes-oriented research or requirements on reporting, please go to (3) A dated shipping label, invoice, or development projects that use rigorous http://www.ed.gov/fund/grant/apply/ receipt from a commercial carrier. scientific methodologies. To address appforms/appforms.html. (4) Any other proof of mailing this interest, applicants are encouraged Note: NIDRR will provide information by acceptable to the Secretary of the U.S. to articulate goals, objectives, and letter to grantees on how and when to submit Department of Education. expected outcomes for the proposed the final performance report. If you mail your application through research or development activities. 4. Performance Measures: To evaluate the U.S. Postal Service, we do not Proposals should describe how results the overall success of its research accept either of the following as proof and planned outputs are expected to program, NIDRR assesses the quality of of mailing: contribute to advances in knowledge, its funded projects through review of (1) A private metered postmark. improvements in policy and practice, grantee performance and products. Each (2) A mail receipt that is not dated by and public benefits for individuals with year, NIDRR examines a portion of its the U.S. Postal Service. disabilities. Applicants should propose grantees to determine: If your application is postmarked after projects that are designed to be • The percentage of newly-awarded the application deadline date, we will consistent with these goals. We NIDRR projects that are multi-site, not consider your application. encourage applicants to include in their collaborative, controlled studies of Note: The U.S. Postal Service does not application a description of how results interventions and programs. uniformly provide a dated postmark. Before will measure progress towards • The number of accomplishments relying on this method, you should check achievement of anticipated outcomes (e.g., new or improved tools, methods, with your local post office. (including a discussion of measures of discoveries, standards, interventions, c. Submission of Paper Applications effectiveness), the mechanisms that will programs, or devices) developed or by Hand Delivery. be used to evaluate outcomes associated tested with NIDRR funding that have If you submit your application in with specific problems or issues, and been judged by expert panels to be of paper format by hand delivery, you (or how the proposed activities will support high quality and to advance the field.

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• The number of new or improved 888–293–6498; or in the Washington, in the Federal Register on February 1, NIDRR-funded assistive and universally DC, area at (202) 512–1530. 2008 (73 FR 6132). designed technologies, products, and Note: The official version of this document Note: On February 1, 2008, we also devices transferred to industry for is the document published in the Federal published a notice in the Federal Register potential commercialization. Register. Free Internet access to the official (73 FR 6166) inviting applications for a • The average number of publications edition of the Federal Register and the Code number of competitions, including one using per award based on NIDRR-funded of Federal Regulations is available on GPO the Accessible Public Transportation priority. research and development activities in Access at: http://www.gpoaccess.gov/nara/ None of the applications we received for the refereed journals. index.html. Accessible Public Transportation • The percentage of new grants that competition announced in that notice were include studies funded by NIDRR that Dated: June 12, 2008. successful. Accordingly, through this notice, assess the effectiveness of interventions, Tracy R. Justesen, we are inviting applications for another Assistant Secretary for Special Education and competition using the Accessible Public programs, and devices using rigorous Transportation priority. methods. Rehabilitative Services. NIDRR uses information submitted by [FR Doc. E8–13641 Filed 6–16–08; 8:45 am] Absolute Priority: For FY 2008, this grantees as part of their annual BILLING CODE 4000–01–P priority is an absolute priority. Under 34 performance reports in support of these CFR 75.105(c)(3) we consider only performance measures. applications that meet this priority. Updates on the Government DEPARTMENT OF EDUCATION This priority is: RERC on Accessible Performance and Results Act of 1993 Public Transportation. (GPRA) indicators, revisions, and Office of Special Education and Program Authority: 29 U.S.C. 762(g) methods appear on the NIDRR Program Rehabilitative Services; Overview and 764(b)(3). Review Web site: http:// Information: National Institute on Applicable Regulations: (a) The www.neweditions.net/pr/commonfiles/ Disability and Rehabilitation Research Education Department General pmconcepts.htm. (NIDRR)—Disability and Rehabilitation Administrative Regulations (EDGAR) in Grantees should consult this site on a Research, Projects and Centers 34 CFR parts 74, 75, 77, 80, 81, 82, 84, regular basis to obtain details and Program—Rehabilitation Engineering 85, 86, and 97. (b) The regulations for explanations on how NIDRR programs Research Centers (RERCs)— this program in 34 CFR part 350. (c) The contribute to the advancement of the Accessible Public Transportation; notice of final priorities for the Department’s long-term and annual Notice Inviting Applications for New Disability and Rehabilitation Research performance goals. Awards for Fiscal Year (FY) 2008 Projects and Centers Program, published in the Federal Register on February 1, VII. Agency Contact Catalog of Federal Domestic Assistance (CFDA) Number: 84.133E–3. 2008 (73 FR 6132, 6144). FOR FURTHER INFORMATION CONTACT: Dates: Applications Available: June Note: The regulations in 34 CFR part 86 Donna Nangle, U.S. Department of apply to institutions of higher education Education, 400 Maryland Avenue, SW., 17, 2008. Deadline for Transmittal of (IHEs) only. room 6029, PCP, Washington, DC 20202. Applications: August 1, 2008. Telephone: (202) 245–7462 or by e-mail: Date of Pre-Application Meeting: July II. Award Information [email protected]. 9, 2008. Type of Award: Discretionary grants. If you use a TDD, call the Federal Estimated Available Funds: $950,000. Relay Service (FRS), toll free, at 1–800– Full Text of Announcement Estimated Range of Awards: 877–8339. I. Funding Opportunity Description $947,999—$950,000. VIII. Other Information Purpose of Program: The purpose of Maximum Award: We will reject any Alternative Format: Individuals with the RERC program is to improve the application that proposes a budget disabilities can obtain this document effectiveness of services authorized exceeding $950,000 for a single budget and a copy of the application package in under the Rehabilitation Act of 1973, as period of 12 months. The Assistant an alternative format (e.g., Braille, large amended, by conducting advanced Secretary for Special Education and print, audiotape, or computer diskette) engineering research and development Rehabilitative Services may change the by contacting the Grants and Contracts on innovative technologies that are maximum amount through a notice Services Team, U.S. Department of designed to solve particular published in the Federal Register. Education, 400 Maryland Avenue, SW., rehabilitation problems, or remove Note: The maximum amount includes room 5075, PCP, Washington, DC environmental barriers. RERCs also direct and indirect costs. 20202–2550. Telephone: (202) 245– demonstrate and evaluate such Estimated Number of Awards: 1. 7363. If you use a TDD, call the FRS, technologies, facilitate service delivery toll-free, at 1–800–877–8339. system changes, stimulate the Note: The Department is not bound by any Electronic Access to This Document: production and distribution of new estimates in this notice. You can view this document, as well as technologies and equipment in the Project Period: Up to 60 months. all other documents of this Department private sector, and provide training III. Eligibility Information published in the Federal Register, in opportunities. text or Adobe Portable Document Additional information on the RERC 1. Eligible Applicants: States; public Format (PDF) on the Internet at the program can be found at: http:// or private agencies, including for-profit following site: http://www.ed.gov/news/ www.ed.gov/rschstat/research/pubs/res- agencies; public or private fedregister. program.html#RERC. organizations, including for-profit To use PDF you must have Adobe Priority: The Accessible Public organizations; IHEs; and Indian tribes Acrobat Reader, which is available free Transportation priority is from the and tribal organizations. at this site. If you have questions about notice of final priorities for the 2. Cost Sharing or Matching: This using PDF, call the U.S. Government Disability and Rehabilitation Research competition does not require cost Printing Office (GPO), toll free, at 1– Projects and Centers Program, published sharing or matching.

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IV. Application and Submission However, the recommended page limit individual with a disability in Information does apply to all of the application connection with the application 1. Address to Request Application narrative section (Part III). process, the individual’s application The application package will provide Package: You can obtain an application remains subject to all other instructions for completing all package via the Internet or from the requirements and limitations in this components to be included in the Education Publications Center (ED notice. application. Each application must 4. Intergovernmental Review: This Pubs). include a cover sheet (Standard Form To obtain a copy via the Internet, use program is not subject to Executive 424); budget requirements (ED Form the following address: http:// Order 12372 and the regulations in 34 524) and narrative justification; other www.ed.gov/fund/grant/apply/ CFR part 79. required forms; an abstract, Human 5. Funding Restrictions: We reference grantapps/index.html. To obtain a copy Subjects narrative, Part III narrative; regulations outlining funding from ED Pubs, write, fax, or call the resumes of staff; and other related restrictions in the Applicable following: Education Publications materials, if applicable. Regulations section in this notice. Center, P.O. Box 1398, Jessup, MD 3. Submission Dates and Times: 6. Other Submission Requirements: 20794–1398. Telephone, toll free: 1– Applications Available: June 17, Applications for grants under this 877–433–7827. FAX: (301) 470–1244. If 2008. program may be submitted you use a telecommunications device Deadline for Transmittal of electronically or in paper format by mail for the deaf (TDD), call toll free: 1–877– Applications: August 1, 2008. or hand delivery. 576–7734. Date of Pre-Application Meeting: a. Electronic Submission of You can contact ED Pubs at its Web Interested parties are invited to Applications. site, also: http://www.ed.gov/pubs/ participate in a pre-application meeting To comply with the President’s edpubs.html or at its e-mail address: and to receive information and technical Management Agenda, we are [email protected]. assistance through individual participating as a partner in the If you request an application from ED consultation with NIDRR staff. The pre- Governmentwide Grants.gov Apply site. Pubs, be sure to identify this application meeting will be held on July The Rehabilitation Engineering competition as follows: CFDA Number 9, 2008. Interested parties may Research Centers competition, CFDA 84.133E–3. participate in this meeting by number 84.133E–3, is included in this Individuals with disabilities can conference call with NIDRR staff from project. We request your participation in obtain a copy of the application package the Office of Special Education and Grants.gov. in an alternative format (e.g., Braille, Rehabilitative Services between 1:00 If you choose to submit your large print, audiotape, or computer p.m. and 2:30 p.m., Washington, DC application electronically, you must use diskette) by contacting the person or time. NIDRR staff also will be available the Governmentwide Grants.gov Apply team listed under Alternative Format in from 3:00 p.m. to 4:00 p.m., site at http://www.Grants.gov. Through section VIII of this notice. Washington, DC time, on the same day, this site, you will be able to download 2. Content and Form of Application by telephone, to provide information a copy of the application package, Submission: Requirements concerning and technical assistance through complete it offline, and then upload and the content of an application, together individual consultation. For further submit your application. You may not with the forms you must submit, are in information or to make arrangements to e-mail an electronic copy of a grant the application package for this participate in the meeting via application to us. competition. conference call or for an individual You may access the electronic grant Page Limit: The application narrative consultation, contact Donna Nangle, application for the Rehabilitation (Part III of the application) is where you, U.S. Department of Education, Potomac Engineering Research Centers the applicant, address the selection Center Plaza (PCP), room 6029, 550 12th competition—CFDA number 84.133E–3 criteria that reviewers use to evaluate Street, SW., Washington, DC 20202. at http://www.Grants.gov. You must your application. We recommend that Telephone: (202) 245–7462 or by e-mail: search for the downloadable application you limit Part III to the equivalent of no [email protected]. package for this program by the CFDA more than 125 pages, using the Applications for grants under this number. Do not include the CFDA following standards: program may be submitted number’s alpha suffix in your search • ″ × ″ A ‘‘page‘‘ is 8.5 11 , on one side electronically using the Grants.gov. (e.g., search for 84.133, not 84.133E–3). only, with 1’’ margins at the top, Apply site (Grants.gov), or in paper Please note the following: bottom, and both sides. format by mail or hand delivery. For • Your participation in Grants.gov is • Double space (no more than three information (including dates and times) voluntary. lines per vertical inch) all text in the about how to submit your application • When you enter the Grants.gov site, application narrative. Single spacing electronically, or in paper format by you will find information about may be used for titles, headings, mail or hand delivery, please refer to submitting an application electronically footnotes, quotations, references, and section IV.6. Other Submission through the site, as well as the hours of captions, as well as all text in charts, Requirements in this notice. operation. tables, figures, and graphs. We do not consider an application • Applications received by • Use a font that is either 12 point or that does not comply with the deadline Grants.gov are date and time stamped. larger or no smaller than 10 pitch requirements. Your application must be fully (characters per inch). Individuals with disabilities who uploaded and submitted and must be The recommended page limit does not need an accommodation or auxiliary aid date and time stamped by the apply to Part I, the cover sheet; Part II, in connection with the application Grants.gov system no later than 4:30 the budget section, including the process should contact the person listed p.m., Washington, DC time, on the narrative budget justification; Part IV, under FOR FURTHER INFORMATION application deadline date. Except as the assurances and certifications; or the CONTACT in section VII in this notice. If otherwise noted in this section, we will one-page abstract, the resumes, the the Department provides an not accept your application if it is bibliography, or the letters of support. accommodation or auxiliary aid to an received—that is, date and time

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stamped by the Grants.gov system—after documents electronically, including all If you submit an application after 4:30 4:30 p.m., Washington, DC time, on the information you typically provide on p.m., Washington, DC time, on the application deadline date. We do not the following forms: Application for application deadline date, please consider an application that does not Federal Assistance (SF 424), the contact the person listed under FOR comply with the deadline requirements. Department of Education Supplemental FURTHER INFORMATION CONTACT in When we retrieve your application from Information for SF 424, Budget section VII in this notice and provide an Grants.gov, we will notify you if we are Information—Non-Construction explanation of the technical problem rejecting your application because it Programs (ED 524), and all necessary you experienced with Grants.gov, along was date and time stamped by the assurances and certifications. Please with the Grants.gov Support Desk Case Grants.gov system after 4:30 p.m., note that two of these forms—the SF 424 Number. We will accept your Washington, DC time, on the and the Department of Education application if we can confirm that a application deadline date. Supplemental Information for SF 424— technical problem occurred with the • The amount of time it can take to have replaced the ED 424 (Application Grants.gov system and that that problem upload an application will vary for Federal Education Assistance). affected your ability to submit your depending on a variety of factors, • If you submit your application application by 4:30 p.m., Washington, including the size of the application and electronically, you must attach any DC time, on the application deadline the speed of your Internet connection. narrative sections of your application as date. The Department will contact you Therefore, we strongly recommend that files in a .DOC (document), .RTF (rich after a determination is made on you do not wait until the application text), or .PDF (Portable Document) whether your application will be deadline date to begin the submission format. If you upload a file type other accepted. process through Grants.gov. • than the three file types specified in this Note: The extensions to which we refer in You should review and follow the paragraph or submit a password- this section apply only to the unavailability Education Submission Procedures for protected file, we will not review that of, or technical problems with, the Grants.gov submitting an application through material. system. We will not grant you an extension Grants.gov that are included in the if you failed to fully register to submit your • Your electronic application must application package for this competition application to Grants.gov before the comply with any page-limit to ensure that you submit your application deadline date and time or if the requirements described in this notice. application in a timely manner to the technical problem you experienced is • After you electronically submit unrelated to the Grants.gov system. Grants.gov system. You can also find the your application, you will receive from Education Submission Procedures b. Submission of Paper Applications Grants.gov an automatic notification of pertaining to Grants.gov at http://e- by Mail. Grants.ed.gov/help/Grantsgov receipt that contains a Grants.gov. If you submit your application in SubmissionProcedures.pdf. tracking number. (This notification paper format by mail (through the U.S. • To submit your application via indicates receipt by Grants.gov only, not Postal Service or a commercial carrier), Grants.gov., you must complete all steps receipt by the Department.) The you must mail the original and two in the Grants.gov registration process Department then will retrieve your copies of your application, on or before (see http://www.grants.gov/applicants/ application from Grants.gov and send a the application deadline date, to the get_registered.jsp). These steps include second notification to you by e-mail. Department at the applicable following (1) registering your organization, a This second notification indicates that address: multi-part process that includes the Department has received your By mail through the U.S. Postal Service: registration with the Central Contractor application and has assigned your U.S. Department of Education, Registry (CCR); (2) registering yourself application a PR/Award number (an ED- Application Control Center, as an Authorized Organization specified identifying number unique to Attention: (CFDA number 84.133E–3) Representative (AOR); and (3) getting your application). 400 Maryland Avenue, SW., authorized as an AOR by your • We may request that you provide us Washington, DC 20202–4260 organization. Details on these steps are original signatures on forms at a later or date. outlined in the Grants.gov 3-Step By mail through a commercial carrier: Registration Guide (see http:// Application Deadline Date Extension U.S. Department of Education, www.grants.gov/section910/ in Case of Technical Issues with the Application Control Center, Stop Grants.gov.RegistrationBrochure.pdf). Grants.gov System: If you are 4260, Attention: (CFDA number You also must provide on your experiencing problems submitting your 84.133E–3) 7100 Old Landover Road, application the same D–U–N–S Number application through Grants.gov, please Landover, MD 20785–1506. contact the Grants.gov. Support Desk, used with this registration. Please note Regardless of which address you use, toll free, at 1–800–518–4726. You must that the registration process may take you must show proof of mailing obtain a Grants.gov Support Desk Case five or more business days to complete, consisting of one of the following: and you must have completed all Number and must keep a record of it. (1) A legibly dated U.S. Postal Service registration steps to allow you to submit If you are prevented from postmark. successfully an application via electronically submitting your (2) A legible mail receipt with the Grants.gov. In addition you will need to application on the application deadline date of mailing stamped by the U.S. update your CCR registration on an date because of technical problems with Postal Service. annual basis. This may take three or the Grants.gov system, we will grant you (3) A dated shipping label, invoice, or more business days to complete. an extension until 4:30 p.m., receipt from a commercial carrier. • You will not receive additional Washington, DC time, the following (4) Any other proof of mailing point value because you submit your business day to enable you to transmit acceptable to the Secretary of the U.S. application in electronic format, nor your application electronically or by Department of Education. will we penalize you if you submit your hand delivery. You also may mail your If you mail your application through application in paper format. application by following the mailing the U.S. Postal Service, we do not • If you submit your application instructions described elsewhere in this accept either of the following as proof electronically, you must submit all notice. of mailing:

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(1) A private metered postmark. disabilities. Applicants should propose year, NIDRR examines a portion of its (2) A mail receipt that is not dated by projects that are designed to be grantees to determine: the U.S. Postal Service. consistent with these goals. We • The percentage of newly-awarded If your application is postmarked after encourage applicants to include in their NIDRR projects that are multi-site, the application deadline date, we will application a description of how results collaborative, controlled studies of not consider your application. will measure progress towards interventions and programs. • Note: The U.S. Postal Service does not achievement of anticipated outcomes The number of accomplishments uniformly provide a dated postmark. Before (including a discussion of measures of (e.g., new or improved tools, methods, relying on this method, you should check effectiveness), the mechanisms that will discoveries, standards, interventions, with your local post office. be used to evaluate outcomes associated programs, or devices) developed or tested with NIDRR funding that have c. Submission of Paper Applications with specific problems or issues, and been judged by expert panels to be of by Hand Delivery. how the proposed activities will support If you submit your application in new intervention approaches and high quality and to advance the field. • The number of new or improved paper format by hand delivery, you (or strategies. Submission of the NIDRR-funded assistive and universally a courier service) must deliver the information identified in this section designed technologies, products, and original and two copies of your V.2. Review and Selection Process is devices transferred to industry for application by hand, on or before the voluntary, except where required by the selection criteria listed in the potential commercialization. application deadline date, to the • application package. The average number of publications Department at the following address: per award based on NIDRR-funded U.S. Department of Education, VI. Award Administration Information research and development activities in Application Control Center, Attention: 1. Award Notices: If your application refereed journals. (CFDA number 84.133E–3) 550 12th • The percentage of new grants that Street, SW., Room 7041, Potomac Center is successful, we notify your U.S. Representative and U.S. Senators and include studies funded by NIDRR that Plaza, Washington, DC 20202–4260. assess the effectiveness of interventions, The Application Control Center send you a Grant Award Notification (GAN). We may notify you informally, programs, and devices using rigorous accepts hand deliveries daily between methods. 8:00 a.m. and 4:30 p.m., Washington, also. If your application is not evaluated or NIDRR uses information submitted by DC time, except Saturdays, Sundays, grantees as part of their annual and Federal holidays. not selected for funding, we notify you. 2. Administrative and National Policy performance reports in support of these Note for Mail or Hand Delivery of Paper Requirements: We identify performance measures. Applications: If you mail or hand deliver administrative and national policy Updates on the Government your application to the Department— requirements in the application package Performance and Results Act of 1993 (1) You must indicate on the envelope (GPRA) indicators, revisions, and and—if not provided by the Department—in and reference these and other requirements in the Applicable methods appear on the NIDRR Program Item 11 of the SF 424 the CFDA number, Review Web site: http:// including suffix letter, if any, of the Regulations section in this notice. competition under which you are submitting We reference the regulations outlining www.neweditions.net/pr/commonfiles/ your application; and the terms and conditions of an award in pmconcepts.htm. (2) The Application Control Center will the Applicable Regulations section in Grantees should consult this site on a mail to you a notification of receipt of your this notice and include these and other regular basis to obtain details and grant application. If you do not receive this specific conditions in the GAN. The explanations on how NIDRR programs notification within 15 business days from the GAN also incorporates your approved contribute to the advancement of the application deadline date, you should call application as part of your binding Department’s long-term and annual the U.S. Department of Education performance goals. Application Control Center at (202) 245– commitments under the grant. 6288. 3. Reporting: At the end of your VII. Agency Contact project period, you must submit a final FOR FURTHER INFORMATION CONTACT: V. Application Review Information performance report, including financial information, as directed by the Donna Nangle, U.S. Department of 1. Selection Criteria: The selection Secretary. If you receive a multi-year Education, 400 Maryland Avenue, SW., criteria for this competition are from 34 award, you must submit an annual room 6029, PCP, Washington, DC 20202. CFR 350.54 and are listed in the performance report that provides the Telephone: (202) 245–7462 or by e-mail: application package. most current performance and financial [email protected]. 2. Review and Selection Process: expenditure information as directed by If you use a TDD, call the Federal Additional factors we consider in the Secretary under 34 CFR 75.118. The Relay Service (FRS), toll free, at 1–800– determining the merits of an application Secretary may also require more 877–8339. are as follows— frequent performance reports under 34 The Secretary is interested in VIII. Other Information CFR 75.720(c). For specific outcomes-oriented research or Alternative Format: Individuals with requirements on reporting, please go to development projects that use rigorous disabilities can obtain this document http://www.ed.gov/fund/grant/apply/ scientific methodologies. To address and a copy of the application package in appforms/appforms.html. this interest, applicants are encouraged an alternative format (e.g., Braille, large to articulate goals, objectives, and Note: NIDRR will provide information by print, audiotape, or computer diskette) expected outcomes for the proposed letter to grantees on how and when to submit by contacting the Grants and Contracts research or development activities. the final performance report. Services Team, U.S. Department of Proposals should describe how results 4. Performance Measures: To evaluate Education, 400 Maryland Avenue, SW., and planned outputs are expected to the overall success of its research room 5075, PCP, Washington, DC contribute to advances in knowledge, program, NIDRR assesses the quality of 20202–2550. Telephone: (202) 245– improvements in policy and practice, its funded projects through review of 7363. If you use a TDD, call the FRS, and public benefits for individuals with grantee performance and products. Each toll-free, at 1–800–877–8339.

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Electronic Access to This Document: should address a copy of those through FERC’s homepage using the You can view this document, as well as comments to the Commission as ‘‘eLibrary’’ link. For user assistance, all other documents of this Department explained below. The Commission contact [email protected] or published in the Federal Register, in received no comments in response to an toll-free at (866) 208–3676 or for TTY, text or Adobe Portable Document earlier Federal Register notice of March contact (202) 502–8659. 13, 2008 (73 FR 13536–13537), and has Format (PDF) on the Internet at the FOR FURTHER INFORMATION CONTACT: made this notation in its submission to following site: http://www.ed.gov/news/ Michael Miller may be reached by OMB. fedregister. telephone at (202) 502–8415, by fax at To use PDF you must have Adobe DATES: Comments on the collection of (202) 273–0873, and by e-mail at Acrobat Reader, which is available free information are due by July 10, 2008. [email protected]. at this site. If you have questions about ADDRESSES: Address comments on the using PDF, call the U.S. Government collection of information to the Office of SUPPLEMENTARY INFORMATION: Printing Office (GPO), toll free, at 1– Management and Budget, Office of Abstract: The information collected 888–293–6498; or in the Washington, Information and Regulatory Affairs, under the requirements of FERC–512, DC, area at (202) 512–1530. Attention: Federal Energy Regulatory ‘‘Application for Preliminary Permit’’ Note: The official version of this document Commission Desk Officer. Comments to (OMB No. 1902–0073) is used by the is the document published in the Federal OMB should be filed electronically, c/o Commission to implement the statutory Register. Free Internet access to the official [email protected] and provisions of sections 4(f), 5 and 7 of the edition of the Federal Register and the Code include the OMB Control No. (1902– Federal Power Act (FPA), 16 U.S.C. of Federal Regulations is available on GPO 0073) as a point of reference. The Desk sections 797, 798 & 800. The purpose of Access at: http://www.gpoaccess.gov/nara/ Officer may be reached by telephone at obtaining a preliminary permit is to index.html. 202–395–7345. A copy of the comments maintain priority of the application for Dated: June 12, 2008. should also be sent to the Federal a license for a hydropower facility while Energy Regulatory Commission, Office Tracy R. Justesen, the applicant conducts surveys to of the Executive Director, ED–34, prepare maps, plans, specifications and Assistant Secretary for Special Education and Attention: Michael Miller, 888 First Rehabilitative Services. estimates; conducts engineering, Street, NE., Washington, DC 20426. [FR Doc. E8–13645 Filed 6–16–08; 8:45 am] economic and environmental feasibility Comments may be filed either in paper studies; and making financial BILLING CODE 4000–01–P format or electronically. Those persons arrangements. The conditions under filing electronically do not need to make which the priority will be maintained a paper filing. For paper filings, such are set forth in each permit. During the DEPARTMENT OF ENERGY comments should be submitted to the term of the permit, no other application Secretary of the Commission, Federal for a preliminary permit or application Federal Energy Regulatory Energy Regulatory Commission, 888 Commission for a license submitted by another party First Street, NE., Washington, DC 20426 can be accepted. The term of the permit [Docket No. IC08–512–001, FERC–512] and should refer to Docket No. IC08– is three years. The information collected 512–001. Documents filed electronically under the designation FERC–512 is in Commission Information Collection via the Internet must be prepared in an the form of a written application for a Activities, Proposed Collection; acceptable filing format and in preliminary permit which is used by Comment Request; Submitted for OMB compliance with the Federal Energy Commission staff to determine an Review Regulatory Commission submission applicant’s qualifications to hold a guidelines. Complete filing instructions June 10, 2008. preliminary permit, review the and acceptable filing formats are proposed hydro development for AGENCY: Federal Energy Regulatory available at (http://www.ferc.gov/help/ feasibility and to issue a notice of the Commission. submission-guide/electronic-media.asp). application in order to solicit public and ACTION: Notice. To file the document electronically, agency comments. The Commission access the Commission’s Web site and SUMMARY: In compliance with the implements these mandatory filing click on Documents & Filing, E-Filing requirements in the Code of Federal requirements of section 3507 of the (http://www.ferc.gov/docs-filing/ Paperwork Reduction Act of 1995, 44 Regulations (CFR) under 18 CFR 4.31– efiling.asp), and then follow the 33, 4.81–.83. U.S.C. 3507, the Federal Energy instructions for each screen. First time Regulatory Commission (Commission) users will have to establish a user name Action: The Commission is requesting has submitted the information and password. The Commission will a three-year extension of the current collection described below to the Office send an automatic acknowledgement to expiration date, with no changes to the of Management and Budget (OMB) for the sender’s e-mail address upon receipt existing collection of data. review of this information collection of comments. Burden Statement: Public reporting requirement. Any interested person may All comments may be viewed, printed burden for this collection is estimated file comments directly with OMB and or downloaded remotely via the Internet as:

Annual No. of respondents responses per Average burden hours Total annual burden hours respondent per response

(1) (2) (3) (1) × (2) × (3)

200 1 37 7,400

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Estimated cost burden to respondents DEPARTMENT OF ENERGY below. Cooperating agencies should is $508,000; (i.e., 7 hours @$200 an hour note the Commission’s policy that (legal) + 30 hours @$39 an hour Federal Energy Regulatory agencies that cooperate in the (technical) × 200) per year equals Commission preparation of the environmental $514,000). [Project No. 2266–096] document cannot also intervene. See, 94 FERC ¶ 61,076 (2001). The reporting burden includes the k. With this notice, we are initiating total time, effort, or financial resources Nevada Irrigation District; Notice of Intent To File License Application, informal consultation with: (a) The U.S. expended to generate, maintain, retain, Filing of Pre-Application Document, Fish and Wildlife Service and/or NOAA or disclose or provide the information Commencement of Licensing Fisheries under section 7 of the including: (1) Reviewing instructions; Proceeding and Scoping; Request for Endangered Species Act and the joint (2) developing, acquiring, installing, and Comments on the Pad and Scoping agency regulations thereunder at 50 utilizing technology and systems for the Document, and Identification of Issues CFR, Part 402 and (b) the State Historic purposes of collecting, validating, and Associated Study Requests Preservation Officer, as required by verifying, processing, maintaining, section 106, National Historical disclosing and providing information; June 10, 2008. Preservation Act, and the implementing (3) adjusting the existing ways to a. Type of Filing: Notice of Intent to regulations of the Advisory Council on comply with any previously applicable File License Application for a New Historic Preservation at 36 CFR 800.2. instructions and requirements; (4) License and Commencing Licensing l. With this notice, we are designating training personnel to respond to a Proceeding. Nevada Irrigation District as the collection of information; (5) searching b. Project No.: 2266–096. Commission’s non-federal data sources; (6) completing and c. Dated Filed: April 11, 2008. representative for carrying out informal d. Submitted By: Nevada Irrigation consultation, pursuant to section 7 of reviewing the collection of information; District. the Endangered Species Act and section and (7) transmitting, or otherwise e. Name of Project: Yuba-Bear Project. 106 of the National Historic disclosing the information. f. Location: The Yuba-Bear Project is Preservation Act. The estimate of cost for respondents located on the west slope of the Sierra m. Nevada Irrigation District filed a is based upon salaries for professional Nevada on the Middle Yuba River, Pre-Application Document (PAD; and clerical support, as well as direct Canyon Creek, Fall Creek, Rucker Creek including a proposed process plan and and indirect overhead costs. Direct costs and Bear River, in Nevada, Placer and schedule) with the Commission, include all costs directly attributable to Sierra counties, California. A large pursuant to 18 CFR 5.6 of the providing this information, such as portion of the project is located on the Commission’s regulations. administrative costs and the cost for Tahoe National Forest. Some of the n. A copy of the PAD is available for information technology. Indirect or project is located on federally-owned review at the Commission in the Public Reference Room or may be viewed on overhead costs are costs incurred by an land managed by the Bureau of Land the Commission’s Web site (http:// organization in support of its mission. Management as part of the Sierra www.ferc.gov), using the ‘‘eLibrary’’ These costs apply to activities which Resource Management Area. The project consists of four link. Enter the docket number, benefit the whole organization rather developments—Bowman, Dutch Flat, excluding the last three digits in the than anyone particular function or Chicago Park, and Rollins—which, in docket number field to access the activity. total, include: 13 main dams with a document. For assistance, contact FERC Comments are invited on: (1) Whether combined gross storage capacity of Online Support at the proposed collection of information 207,865 acre-feet of water; four water [email protected] or toll is necessary for the proper performance conduits; five diversion dams; four free at 1–866–208–3676, of for TTY, of the functions of the Commission, powerhouses with a combined installed (202) 502–8659. A copy is also available including whether the information will capacity of 79.32 megawatts; one 9.0- for inspection and reproduction at the have practical utility; (2) the accuracy of mile-long, 60-kilovolt transmission line; address in paragraph h. the agency’s estimate of the burden of and appurtenant facilities and Register online at http://ferc.gov/ the proposed collection of information, structures, including recreation esubscribenow.htm to be notified via e- including the validity of the facilities. mail of new filing and issuances related methodology and assumptions used; (3) g. Filed Pursuant to: 18 CFR Part 5 of to this or other pending projects. For assistance, contact FERC Online ways to enhance the quality, utility and the Commission’s Regulations. h. Applicant Contact: Ron Nelson, Support. clarity of the information to be General Manager, Nevada Irrigation o. With this notice, we are soliciting collected; and (4) ways to minimize the District, 1036 West Main Street, Grass comments on the PAD and Scoping burden of the collection of information Valley, CA 95945, (530) 271–6824 or e- Document 1 (SD1), as well as study on those who are to respond, including mail [email protected]. requests. All comments on the PAD and the use of appropriate automated, i. FERC Contact: John Mudre at 202– SD1, and study requests should be sent electronic, mechanical, or other 502–8902 or e-mail to the address above in paragraph h. In technological collection techniques or [email protected]. addition, all comments on the PAD and other forms of information technology, j. We are asking federal, state, local, SD1, study requests, requests for e.g., permitting electronic submission of and tribal agencies with jurisdiction cooperating agency status, and all responses. and/or special expertise with respect to communications to and from environmental issues to cooperate with Commission staff related to the merits of Kimberly D. Bose, us in the preparation of the the potential application (original and Secretary. environmental document. Agencies who eight copies) must be filed with the [FR Doc. E8–13533 Filed 6–16–08; 8:45 am] would like to request cooperating status Commission at the following address: BILLING CODE 6717–01–P should follow the instructions for filing Kimberly D. Bose, Secretary, Federal comments described in paragraph o Energy Regulatory Commission, 888

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First Street, NE., Washington, DC 20426. Location: Auburn Holiday Inn Hotel, Directions on how to obtain a copy of All filings with the Commission must 120 Grass Valley Highway, Auburn, CA. the PAD and SD1 are included in item include on the first page, the project n. of this document. name (Yuba-Bear Project) and number Evening Scoping Meeting Meeting Procedures (P–2266–096), and bear the heading Date and Time: Tuesday, June 24, ‘‘Comments on Pre-Application 2008, 7 p.m. The meetings will be recorded by a Document,’’ ‘‘Study Requests,’’ Location: Gold Miners Inn Holiday stenographer and will become part of ‘‘Comments on Scoping Document 1,’’ Inn Express Hotel, 121 Bank Street, the formal record of the Commission ‘‘Request for Cooperating Agency Grass Valley, CA. proceeding on the project. Scoping Document 1 (SD1), which Status,’’ or ‘‘Communications to and Kimberly D. Bose, outlines the subject areas to be from Commission Staff.’’ Any Secretary. individual or entity interested in addressed in the environmental submitting study requests, commenting document, was mailed to the [FR Doc. E8–13537 Filed 6–16–08; 8:45 am] on the PAD or SD1, and any agency individuals and entities on the BILLING CODE 6717–01–P requesting cooperating status must do so Commission’s mailing list on May 22, 2008. Copies of SD1 will be available at by August 11, 2008. DEPARTMENT OF ENERGY Comments on the PAD and SD1, the scoping meetings, or may be viewed study requests, requests for cooperating on the web at http://www.ferc.gov, using Federal Energy Regulatory agency status, and other permissible the ‘‘eLibrary’’ link. Follow the Commission forms of communications with the directions for accessing information in Commission may be filed electronically paragraph n. Based on all oral and [Project No. 2784–003] via the Internet in lieu of paper. The written comments, a Scoping Document Pacific Gas and Electric Company; Commission strongly encourages 2 (SD2) may be issued. SD2 may include Notice of Intent To File License electronic filings. See 18 CF a revised process plan and schedule, as Application, Filing of Pre-Application 385.2001(a)(1)(iii) and the instructions well as the list of issues identified Document, Commencement of on the Commission’s Web site (http:// through the scoping process. Licensing Proceeding and Scoping; www.ferc.gov) under the ‘‘e-filing’’ link. p. Our intent is to prepare an Site Visit Request for Comments on the PAD Environmental Impact Statement (EIS) The licensees and Commission staff and Scoping Document, and for which the planned meetings will will visit the project facilities on Identification of Issues and Associated satisfy the NEPA scoping requirements. Tuesday, June 17, Wednesday, June 18, Study Requests We anticipate preparing a multi-project and Thursday, June 19, 2008, starting at June 10, 2008. EIS that would also consider the 8 a.m. and ending at or about 5 a.m. a. Type of Filing: Notice of Intent To proposed relicensing of Pacific Gas & Participants should meet by the start File License Application for a New Electric Company’s Drum-Spaulding time as follows: (1) On June 17at the License and Commencing Licensing Hydroelectric Project (FERC No. 2310– Discovery Trail in Bear Valley; (2) on Proceeding. 173) and Rollins Transmission Line June 18 at the Alta Service Center; and b. Project No.: 2784–003. Project (FERC No. 2784–003). Because (3) on June 19 at Halsey Forebay. c. Dated Filed: April 11, 2008. these three projects are located in the Participants are responsible for their d. Submitted By: Pacific Gas and same watersheds and have the same own transportation; four-wheel-drive Electric Company (PG&E). license expiration dates, NID and PG&E vehicles are recommended. Anyone e. Name of Project: Rollins have decided, to the extent practical, to interested in attending the site visit Transmission Line Project. cooperate and coordinate on their should contact Mr. James Lynch at (916) f. Location: The Rollins Transmission relicensing efforts. The scoping 564–4214. Line Project is located in Nevada and Placer counties, California, near the meetings and site visits discussed below Meeting Objectives will address all three projects. Bear River and the town of Colfax. The At the scoping meetings, staff will: (1) project consists of consists of a single Scoping Meetings Initiate scoping of the issues; (2) review circuit wood pole line extending from Commission staff will hold two and discuss existing conditions and the Rollins Powerhouse switchyard scoping meetings in the vicinity of the resource management objectives; (3) approximately 3,800 feet to PG&E’s project at the times and places noted review and discuss existing information Drum-Grass Valley-Weimar below. The daytime meeting will focus and identify preliminary information transmission line. The project is within on resource agency, Indian tribes, and and study needs; (4) review and discuss a 40-foot-wide corridor. The project also non-governmental organization the process plan and schedule for pre- includes an access road that is 1,867 feet concerns, while the evening meeting is filing activity that incorporates the time in length, with project widths between primarily for receiving input from the frames provided for in Part 5 of the 20 and 60 feet. The project occupies a public. We invite all interested Commission’s regulations and, to the total of 5.38 acres, all of which is under individuals, organizations, and agencies extent possible, maximizes coordination private ownership. to attend one or both of the meetings, of federal, state, and tribal permitting g. Filed Pursuant to: 18 CFR Part 5 of and to assist staff in identifying and certification processes; and (5) the Commission’s Regulations. particular study needs, as well as the discuss the appropriateness of any h. Applicant Contact: Forrest scope of environmental issues to be federal or state agency or Indian tribe Sullivan, Senior Project Manager, addressed in the environmental acting as a cooperating agency for Pacific Gas and Electric Company, 5555 document. The times and locations of development of an environmental Florin Perkins Road, Rm. 100, these meetings are as follows: document. Sacramento, CA 95826, (916) 386–5580, Meeting participants should come [email protected]. Daytime Scoping Meeting prepared to discuss their issues and/or i. FERC Contact: John Mudre at 202– Date and Time: Tuesday, June 24, concerns. Please review the PAD in 502–8902 or e-mail 2008, 9 a.m. preparation for the scoping meetings. [email protected].

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j. We are asking federal, state, local, SD1, study requests, requests for and to assist staff in identifying and tribal agencies with jurisdiction cooperating agency status, and all particular study needs, as well as the and/or special expertise with respect to communications to and from scope of environmental issues to be environmental issues to cooperate with Commission staff related to the merits of addressed in the environmental us in the preparation of the the potential application (original and document. The times and locations of environmental document. Agencies who eight copies) must be filed with the these meetings are as follows: would like to request cooperating status Commission at the following address: should follow the instructions for filing Kimberly D. Bose, Secretary, Federal Daytime Scoping Meeting comments described in paragraph o Energy Regulatory Commission, 888 Date and Time: Tuesday, June 24, below. Cooperating agencies should First Street, NE., Washington, DC 20426. 2008, 9 a.m. note the Commission’s policy that All filings with the Commission must Location: Auburn Holiday Inn Hotel, agencies that cooperate in the include on the first page, the project 120 Grass Valley Highway, Auburn, preparation of the environmental name (Rollins Transmission Line California. document cannot also intervene. See, 94 Project) and number (P–2784–003), and Evening Scoping Meeting FERC ¶ 61,076 (2001). bear the heading ‘‘Comments on Pre- k. With this notice, we are initiating Application Document,’’ ‘‘Study Date and Time: Tuesday, June 24, informal consultation with: (a) The U.S. Requests,’’ ‘‘Comments on Scoping 2008, 7 p.m. Fish and Wildlife Service and/or NOAA Document 1,’’ ‘‘Request for Cooperating Location: Gold Miners Inn Holiday Fisheries under section 7 of the Agency Status,’’ or ‘‘Communications to Inn Express Hotel, 121 Bank Street, Endangered Species Act and the joint and from Commission Staff.’’ Any Grass Valley, California. agency regulations thereunder at 50 CFR individual or entity interested in Scoping Document 1 (SD1), which Part 402 and (b) the State Historic submitting study requests, commenting outlines the subject areas to be Preservation Officer, as required by on the PAD or SD1, and any agency addressed in the environmental section 106, National Historical requesting cooperating status must do so document, was mailed to the Preservation Act, and the implementing by August 11, 2008. individuals and entities on the regulations of the Advisory Council on Comments on the PAD and SD1, Commission’s mailing list on May 22, Historic Preservation at 36 CFR 800.2. study requests, requests for cooperating 2008. Copies of SD1 will be available at l. With this notice, we are designating agency status, and other permissible the scoping meetings, or may be viewed Pacific Gas and Electric Company as the forms of communications with the on the Web at http://www.ferc.gov, Commission’s non-federal Commission may be filed electronically using the ‘‘eLibrary’’ link. Follow the representative for carrying out informal via the Internet in lieu of paper. The directions for accessing information in consultation, pursuant to section 7 of Commission strongly encourages paragraph n. Based on all oral and the Endangered Species Act and section electronic filings. See 18 CFR written comments, a Scoping Document 106 of the National Historic 385.2001(a)(1)(iii) and the instructions 2 (SD2) may be issued. SD2 may include Preservation Act. on the Commission’s Web site (http:// a revised process plan and schedule, as m. Pacific Gas and Electric Company www.ferc.gov) under the ‘‘e-filing’’ link. well as the list of issues identified filed a Pre-Application Document (PAD; p. Our intent is to prepare an through the scoping process. including a proposed process plan and Environmental Impact Statement (EIS) Site Visit schedule) with the Commission, for which the planned meetings will pursuant to 18 CFR 5.6 of the satisfy the NEPA scoping requirements. The licensees and Commission staff Commission’s regulations. We anticipate preparing a multi-project will visit the project facilities on n. A copy of the PAD is available for EIS that would also consider the Tuesday, June 17, Wednesday, June 18, review at the Commission in the Public proposed relicensing of Nevada and Thursday, June 19, 2008, starting at Reference Room or may be viewed on Irrigation District’s Yuba-Bear Project 8 a.m. and ending at or about 5 p.m. the Commission’s Web site (http:// (FERC No. 2266–096) and Pacific Gas & Participants should meet by the start www.ferc.gov), using the ‘‘eLibrary’’ Electric Company’s Drum-Spaulding time as follows: (1) On June 17 at the link. Enter the docket number, Hydroelectric Project (FERC No. 2310– Discovery Trail in Bear Valley; (2) on excluding the last three digits in the 173). Because these three projects are June 18 at the Alta Service Center; and docket number field to access the located in the same watersheds and (3) on June 19 at Halsey Forebay. document. For assistance, contact FERC have the same license expiration dates, Participants are responsible for their Online Support at NID and PG&E have decided, to the own transportation; four-wheel-drive [email protected] or toll extent practical, to cooperate and vehicles are recommended. Anyone free at 1–866–208–3676, of for TTY, coordinate on their relicensing efforts. interested in attending the site visit (202) 502–8659. A copy is also available The scoping meetings and site visits should contact Mr. James Lynch at (916) for inspection and reproduction at the discussed below will address all three 564–4214. address in paragraph h. projects. Register online at http://ferc.gov/ Meeting Objectives esubscribenow.htm to be notified via Scoping Meetings At the scoping meetings, staff will: (1) e-mail of new filing and issuances Commission staff will hold two Initiate scoping of the issues; (2) review related to this or other pending projects. scoping meetings in the vicinity of the and discuss existing conditions and For assistance, contact FERC Online project at the times and places noted resource management objectives; (3) Support. below. The daytime meeting will focus review and discuss existing information o. With this notice, we are soliciting on resource agency, Indian tribes, and and identify preliminary information comments on the PAD and Scoping non-governmental organization and study needs; (4) review and discuss Document 1 (SD1), as well as study concerns, while the evening meeting is the process plan and schedule for pre- requests. All comments on the PAD and primarily for receiving input from the filing activity that incorporates the time SD1, and study requests should be sent public. We invite all interested frames provided for in Part 5 of the to the address above in paragraph h. In individuals, organizations, and agencies Commission’s regulations and, to the addition, all comments on the PAD and to attend one or both of the meetings, extent possible, maximizes coordination

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of federal, state, and tribal permitting The Project consists of 10 the Commission’s Web site (http:// and certification processes; and (5) developments: Spaulding No. 3; www.ferc.gov), using the ‘‘eLibrary’’ discuss the appropriateness of any Spaulding No. 1 and No. 2; Drum No. link. Enter the docket number, federal or state agency or Indian tribe 1 and No. 2; Dutch Flat No. 1; Halsey; excluding the last three digits in the acting as a cooperating agency for Wise; Newcastle; Deer Creek; Alta; and docket number field to access the development of an environmental Wise No. 2. In the 10 developments document. For assistance, contact FERC document. there are 29 reservoirs with a combined Online Support at Meeting participants should come gross storage capacity of 154,388 acre- [email protected] or toll prepared to discuss their issues and/or feet of water; 6 major water conduits; 12 free at 1–866–208–3676, of for TTY, concerns. Please review the PAD in powerhouses with a combined (202) 502–8659. A copy is also available preparation for the scoping meetings. authorized installed capacity of 192.5 for inspection and reproduction at the Directions on how to obtain a copy of megawatts, 7 transmission lines; and address in paragraph h. the PAD and SD1 are included in item appurtenant facilities and structures, Register online at http://ferc.gov/ n. of this document. including recreation facilities. esubscribenow.htm to be notified via e- g. Filed Pursuant to: 18 CFR Part 5 of mail of new filing and issuances related Meeting Procedures the Commission’s Regulations to this or other pending projects. For The meetings will be recorded by a h. Applicant Contact: Steve Peirano, assistance, contact FERC Online stenographer and will become part of Relicensing Project Manager, Pacific Gas Support. the formal record of the Commission and Electric Company, 245 Market o. With this notice, we are soliciting proceeding on the project. Street, Room 1103, P.O. Box 770000, comments on the PAD and Scoping San Francisco, CA 94177–0001, (415) Document 1 (SD1), as well as study Kimberly D. Bose, 973–4481, or e-mail [email protected]. requests. All comments on the PAD and Secretary. i. FERC Contact: John Mudre at (202) SD1, and study requests should be sent [FR Doc. E8–13531 Filed 6–16–08; 8:45 am] 502–8902 or e-mail to the address above in paragraph h. In BILLING CODE 6717–01–P [email protected]. addition, all comments on the PAD and j. We are asking federal, state, local, SD1, study requests, requests for and tribal agencies with jurisdiction cooperating agency status, and all DEPARTMENT OF ENERGY and/or special expertise with respect to communications to and from environmental issues to cooperate with Commission staff related to the merits of Federal Energy Regulatory us in the preparation of the the potential application (original and Commission environmental document. Agencies who eight copies) must be filed with the [Project No. 2310–173] would like to request cooperating status Commission at the following address: should follow the instructions for filing Kimberly D. Bose, Secretary, Federal Pacific Gas and Electric Company; comments described in paragraph o Energy Regulatory Commission, 888 Notice of Intent to File License below. Cooperating agencies should First Street, NE., Washington, DC 20426. Application, Filing of Pre-Application note the Commission’s policy that All filings with the Commission must Document, Commencement of agencies that cooperate in the include on the first page, the project Licensing Proceeding and Scoping; preparation of the environmental name (Drum-Spaulding Project) and Request for Comments on the Pad and document cannot also intervene. See, 94 number (P–2310–173), and bear the Scoping Document, and Identification FERC ¶ 61,076 (2001). heading ‘‘Comments on Pre-Application of Issues and Associated Study k. With this notice, we are initiating Document,’’ ‘‘Study Requests,’’ Requests informal consultation with: (a) The U.S. ‘‘Comments on Scoping Document 1,’’ Fish and Wildlife Service and/or NOAA ‘‘Request for Cooperating Agency June 10, 2008. Fisheries under section 7 of the Status,’’ or ‘‘Communications to and a. Type of Filing: Notice of Intent to Endangered Species Act and the joint from Commission Staff.’’ Any File License Application for a New agency regulations thereunder at 50 CFR individual or entity interested in License and Commencing Licensing Part 402; and (b) the State Historic submitting study requests, commenting Proceeding. Preservation Officer, as required by on the PAD or SD1, and any agency b. Project No.: 2310–173. section 106, National Historical requesting cooperating status must do so c. Dated Filed: April 11, 2008. Preservation Act, and the implementing by August 11, 2008. d. Submitted By: Pacific Gas and regulations of the Advisory Council on Comments on the PAD and SD1, Electric Company. Historic Preservation at 36 CFR 800.2. study requests, requests for cooperating e. Name of Project: Drum Spaulding l. With this notice, we are designating agency status, and other permissible Project. Pacific Gas and Electric Company as the forms of communications with the f. Location: The Drum-Spaulding Commission’s non-federal Commission may be filed electronically Project is located on the west slope of representative for carrying out informal via the Internet in lieu of paper. The the Sierra Nevada, on the South Yuba consultation, pursuant to section 7 of Commission strongly encourages River, Bear River, North Fork of the the Endangered Species Act and section electronic filings. See 18 CFR North Fork of the American River and 106 of the National Historic 385.2001(a)(1)(iii) and the instructions tributaries to the Sacramento River Preservation Act. on the Commission’s Web site (http:// basin, in Nevada and Placer counties, m. Pacific Gas and Electric Company www.ferc.gov) under the ‘‘e-filing’’ link. California. A large portion of the project filed a Pre-Application Document (PAD; p. Our intent is to prepare an is located on federal-owned lands including a proposed process plan and Environmental Impact Statement (EIS) managed by the Forest Service as part of schedule) with the Commission, for which the planned meetings will the Tahoe National Forest. Small pursuant to 18 CFR 5.6 of the satisfy the NEPA scoping requirements. portions of the project occupy lands Commission’s regulations. We anticipate preparing a multi-project managed by the Bureau of Land n. A copy of the PAD is available for EIS that would also consider the Management and the Bureau of review at the Commission in the Public proposed relicensing of Nevada Reclamation. Reference Room or may be viewed on Irrigation District’s Yuba-Bear Project

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(FERC No. 2266–096) and Pacific Gas time as follows: (1) On June 17 at the Authorization Disposition of and Electric Company’s Rollins Discovery Trail in Bear Valley; (2) on Jurisdictional Assets under section 203. Transmission Line Project (FERC No. June 18 at the Alta Service Center; and Filed Date: 06/09/2008. 2784–003). Because these three projects (3) on June 19 at Halsey Forebay. Accession Number: 20080609–5050. are located in the same watersheds and Participants are responsible for their Comment Date: 5 p.m. Eastern Time have the same license expiration dates, own transportation; four-wheel-drive on Monday, June 30, 2008. NID and PG&E have decided, to the vehicles are recommended. Anyone Docket Numbers: EC08–99–000. extent practical, to cooperate and interested in attending the site visit Applicants: Noble Environmental coordinate on their relicensing efforts. should contact Mr. James Lynch at (916) Power. The scoping meetings and site visits 564–4214. Description: Joint Application of discussed below will address all three Meeting Objectives Noble Environmental Power, LLC for projects. Authorization of Proposed Transaction At the scoping meetings, staff will: (1) Scoping Meetings under Section 203, and Request for Initiate scoping of the issues; (2) review Expedited Consideration, Waiver of Commission staff will hold two and discuss existing conditions and Certain Filing Requirements. scoping meetings in the vicinity of the resource management objectives; (3) Filed Date: 06/05/2008. project at the times and places noted review and discuss existing information Accession Number: 20080605–5046. below. The daytime meeting will focus and identify preliminary information Comment Date: 5 p.m. Eastern Time on resource agency, Indian tribes, and and study needs; (4) review and discuss on Thursday, June 26, 2008. non-governmental organization the process plan and schedule for pre- Take notice that the Commission concerns, while the evening meeting is filing activity that incorporates the time received the following exempt primarily for receiving input from the frames provided for in Part 5 of the wholesale generator filings: public. We invite all interested Commission’s regulations and, to the individuals, organizations, and agencies extent possible, maximizes coordination Docket Numbers: EG08–75–000. Applicants: Notrees Windpower, LP. to attend one or both of the meetings, of federal, state, and tribal permitting Description: Self Certification Notice and to assist staff in identifying and certification processes; and (5) of Exempt Wholesale Generator of particular study needs, as well as the discuss the appropriateness of any Notrees Windpower, LP. scope of environmental issues to be federal or state agency or Indian tribe Filed Date: 06/04/2008. addressed in the environmental acting as a cooperating agency for Accession Number: 20080604–5073. document. The times and locations of development of an environmental Comment Date: 5 p.m. Eastern Time these meetings are as follows: document. on Wednesday, June 25, 2008. Daytime Scoping Meeting Meeting participants should come prepared to discuss their issues and/or Take notice that the Commission Date and Time: Tuesday, June 24, concerns. Please review the PAD in received the following electric rate 2008, 9 a.m., preparation for the scoping meetings. filings: Location: Auburn Holiday Inn Hotel, Directions on how to obtain a copy of Docket Numbers: ER98–1767–011; 120 Grass Valley Highway, Auburn, CA. the PAD and SD1 are included in item ER07–501–007; ER99–1695–011; ER99– Evening Scoping Meeting n. of this document. 2984–010. Applicants: Tenaska Frontier Date and Time: Tuesday, June 24, Meeting Procedures Partners, Ltd.; Birchwood Power 2008, 7 p.m., The meetings will be recorded by a Partners, L.P.; Elwood Energy, LLC; Location: Gold Miners Inn Holiday stenographer and will become part of Green Country Energy, LLC. Inn Express Hotel, 121 Bank Street, the formal record of the Commission Description: Notification of Non- Grass Valley, California. proceeding on the project. Material Change in Status of J-Power Scoping Document 1 (SD1), which North America Holdings, Ltd. outlines the subject areas to be Kimberly D. Bose, Filed Date: 06/06/2008. addressed in the environmental Secretary. Accession Number: 20080606–5136. document, was mailed to the [FR Doc. E8–13538 Filed 6–16–08; 8:45 am] Comment Date: 5 p.m. Eastern Time individuals and entities on the BILLING CODE 6717–01–P on Friday, June 27, 2008. Commission’s mailing list on May 22, 2008. Copies of SD1 will be available at Docket Numbers: ER96–719–019; ER97–2801–020; ER99–2156–013. the scoping meetings, or may be viewed DEPARTMENT OF ENERGY on the Web at http://www.ferc.gov, Applicants: Cordova Energy Company using the ‘‘eLibrary’’ link. Follow the Federal Energy Regulatory LLC, MidAmerican Energy Company. directions for accessing information in Commission Description: Cordova Energy paragraph n. Based on all oral and Company LLC et al. submits written comments, a Scoping Document Combined Notice of Filings # 1 information regarding PaCificCorp’s Blundell Geothermal II Generating 2 (SD2) may be issued. SD2 may include June 10, 2008. a revised process plan and schedule, as Facility. Take notice that the Commission well as the list of issues identified Filed Date: 06/03/2008. received the following electric corporate through the scoping process. Accession Number: 20080605–0122. filings: Comment Date: 5 p.m. Eastern Time Site Visit Docket Numbers: EC08–86–000. on Tuesday, June 24, 2008. The licensees and Commission staff Applicants: Wabash Valley Power Docket Numbers: ER01–2830–003. will visit the project facilities on Association, Inc., TPF Generation Applicants: Davison Van Cleve, PC. Tuesday, June 17, Wednesday, June 18, Holdings, LLC, Holland Energy, LLC. Description: Application of Roseburg and Thursday, June 19, 2008, starting at Description: Wabash Valley Power Forest Products for Finding as a 8 a.m. and ending at or about 5 p.m. Association (Inc), et al. submits an Category 1 Seller of Davison Van Cleve, Participants should meet by the start Addendum to its Application for PC.

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Filed Date: 06/09/2008. Description: GearyEnergy, LLC Docket Numbers: ER08–1066–000. Accession Number: 20080609–5124. submits a revised application for Applicants: ISO New England Inc. Comment Date: 5 p.m. Eastern Time market-based rate authority. and New England Power Pool on Monday, June 30, 2008. Filed Date: 06/05/2008. Participants Committee. Docket Numbers: ER02–1903–008. Accession Number: 20080610–0225. Description: ISO New England, Inc Applicants: FPL Energy Marcus Hook, Comment Date: 5 p.m. Eastern Time and New England Power Pool L.P. on Thursday, June 26, 2008. Participants Committee submits First Description: FPL Energy Marcus Hook Docket Numbers: ER08–1025–001. Revised Sheet 7307D et al and LP submits a notice of change in status. Applicants: The Connecticut Light supporting testimony of Peter K Wong. Filed Date: 06/06/2008. and Power Company Filed Date: 06/03/2008. Accession Number: 20080610–0219. Description: The Connecticut Light Accession Number: 20080605–0045. Comment Date: 5 p.m. Eastern Time and Power Co. submits Amendment No. Comment Date: 5 p.m. Eastern Time on Friday, June 27, 2008. 2 to the Interconnection and Operation on Tuesday, June 24, 2008. Docket Numbers: ER02–1903–008. Agreement. Docket Numbers: ER08–1067–000. Applicants: FPL Energy Marcus Hook, Filed Date: 06/05/2008. Applicants: American Electric Power L.P. Accession Number: 20080610–0224. Service Corporation. Description: FPL Energy Marcus Hook Comment Date: 5 p.m. Eastern Time Description: The American Electric LP submits a notice of change in status. on Thursday, June 26, 2008. Power Service Corp on behalf of the Filed Date: 06/06/2008. Docket Numbers: ER08–1028–000. AEP Operating Companies submits the Accession Number: 20080610–0219. Applicants: Westar Energy, Inc. Third Revision to the Interconnection Comment Date: 5 p.m. Eastern Time Description: Westar Energy, Inc and Local Delivery Service Agreement on Friday, June 27, 2008. submits Second Revised Sheet 11 and 1 1425 with the Village of Plymouth. to the Wholesale Electric Service Filed Date: 06/04/2008. Docket Numbers: ER03–9–013; ER98– Accession Number: 20080605–0046. 2157–014. Agreement commencing 2/1/88, designated First Revised Rate Schedule Comment Date: 5 p.m. Eastern Time Applicants: Westar Energy, Inc.; on Wednesday, June 25, 2008. Kansas Gas and Electric Company FERC 170 between Kansas Gas and Description: Westar Energy, Inc Electric Company etc. Docket Numbers: ER08–1068–000. submits Sixth Revised Sheet 1 et al. to Filed Date: 05/30/2008. Applicants: PJM Interconnection, Accession Number: 20080603–0097. its FERC Tariff, Third Revised Volume L.L.C. Comment Date: 5 p.m. Eastern Time 6, effective 9/18/07. Description: PJM Interconnection, on Friday, June 20, 2008. Filed Date: 06/04/2008. LLC submits an executed Accession Number: 20080606–0056. Docket Numbers: ER08–1030–000. interconnection service agreement with Comment Date: 5 p.m. Eastern Time Applicants: Westar Energy, Inc. Providence Heights Wind, LLC et al. on Wednesday, June 25, 2008. Description: Westar Energy, Inc & Filed Date: 06/04/2008. Kansas Gas & Electric Co submits Accession Number: 20080605–0047. Docket Numbers: ER07–45–002. Second Revised Sheets 9 & 1 to the Comment Date: 5 p.m. Eastern Time Applicants: Horizon Power & Light Wholesale Electric Service Agreement on Wednesday, June 25, 2008. LLC. commencing 2/1/88, designated First Docket Numbers: ER08–1070–000. Description: Horizon Power & Light Revised Rate Schedule FERC 169 w/City Applicants: Coral Power, L.L.C. LLC submits the Amended Updated of La Harpe, KS. Description: Coral Power, LLC Market Power Analysis. Filed Date: 05/30/2008. submits a Notice of Cancellation of Filed Date: 06/04/2008. Accession Number: 20080603–0096. Fourth Revised Rate Schedule FERC 1, Accession Number: 20080609–0070. Comment Date: 5 p.m. Eastern Time effective 6/1/08. Comment Date: 5 p.m. Eastern Time on Friday, June 20, 2008. Filed Date: 06/04/2008. on Wednesday, June 25, 2008. Docket Numbers: ER08–1057–001. Accession Number: 20080606–0005. Docket Numbers: ER08–781–001. Applicants: Entergy Services, Inc. Comment Date: 5 p.m. Eastern Time Applicants: Central Illinois Light Description: Entergy Operating on Wednesday, June 25, 2008. Company, Central Illinois Public Companies submits corrected pages B.1 Docket Numbers: ER08–1071–000. Service Company, Illinois Power and B.1.1 and requests that the Applicants: Coral Energy Company. corrected pages replace those included Management, LLC. Description: The Ameren Illinois in the original filing made on 5/30/08. Description: Coral Energy Utilities jointly submit a compliance Filed Date: 06/06/2008. Management, LLC submits a Notice of filing of an executed Electric Resource Accession Number: 20080610–0220. Cancellation of First Revised Rate Sharing Agreement for Capacity. Comment Date: 5 p.m. Eastern Time Schedule FERC 1. Filed Date: 06/04/2008. on Friday, June 27, 2008. Filed Date: 06/04/2008. Accession Number: 20080606–0006. Docket Numbers: ER08–1065–000. Accession Number: 20080606–0004. Comment Date: 5 p.m. Eastern Time Applicants: PJM Interconnection, Comment Date: 5 p.m. Eastern Time on Wednesday, June 25, 2008. L.L.C. on Wednesday, June 25, 2008. Docket Numbers: ER08–832–001. Description: PJM Interconnection, Docket Numbers: ER08–1072–000. Applicants: ISO New England Inc. LLC submits amendments to Schedule Applicants: Nevada Power Company. Description: Notice of Withdrawal of 12 Appendix of the PJM Tariff to Description: Nevada Power Co. Tariff Sheets re ISO New England. include cost responsibility assignments submits a Notice of Termination of the Filed Date: 06/06/2008. for four baseline upgrades that will Service Agreement for Long-Term Firm Accession Number: 20080606–5112. operate at or above 500 kV, etc. Point-to-Point Transmission Service. Comment Date: 5 p.m. Eastern Time Filed Date: 06/03/2008. Filed Date: 06/04/2008. on Friday, June 27, 2008. Accession Number: 20080605–0044. Accession Number: 20080606–0003. Docket Numbers: ER08–848–001. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Applicants: GearyEnergy, LLC. on Tuesday, June 24, 2008. on Wednesday, June 25, 2008.

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Docket Numbers: ER08–1073–000. Docket Numbers: ER08–1079–000. Comment Date: 5 p.m. Eastern Time Applicants: Deseret Generation & Applicants: Entergy Services, Inc. on Friday, June 27, 2008. Transmission Co-op. Description: Entergy Services, Inc Docket Numbers: ER08–1091–000. Description: Deseret Generation & submits an amended Interconnection Applicants: West Valley Leasing Transmission Co-operative, Inc submits and Operating Agreement between LSP Company, LLC. its annual Informational Filing setting Energy Limited Partnership and EMI. Description: West Valley Leasing forth updated approved costs for Filed Date: 06/06/2008. Company, LLC submits Notice of member-owned generation resources for Accession Number: 20080610–0205. Cancellation of its market-based rate 2008. Comment Date: 5 p.m. Eastern Time tariff, FERC Electric Tariff, Original Filed Date: 06/04/2008. on Friday, June 27, 2008. Volume 1, to become effective 6/10/08. Accession Number: 20080606–0002. Docket Numbers: ER08–1086–000. Filed Date: 06/09/2008. Comment Date: 5 p.m. Eastern Time Applicants: Saracen Energy MB L.P. Accession Number: 20080610–0216. on Wednesday, June 25, 2008. Description: Saracen Energy MB LP Comment Date: 5 p.m. Eastern Time Docket Numbers: ER08–1074–000. submits its Cancellation of Rate on Monday, June 30, 2008. Applicants: The Midwest Schedule and gives notice that Rate Docket Numbers: ER08–1092–000. Independent Transmission Sys. Schedule FERC 1 effective 7/1/07, is Applicants: The American Electric Description: Midwest Independent being cancelled. Power Service Corp. Transmission System Operator, Inc Filed Date: 06/05/2008. Description: AEP Operating submits an executed Small Generator Accession Number: 20080610–0213. Companies submits a second revision to Interconnection Agreement. Comment Date: 5 p.m. Eastern Time the Interconnection and Local Delivery Filed Date: 06/04/2008. on Thursday, June 26, 2008. Service agreement 1421 with Village of Accession Number: 20080606–0001. Docket Numbers: ER08–1088–000. Cygnet. Comment Date: 5 p.m. Eastern Time Applicants: PJM Interconnection, Filed Date: 06/09/2008. on Wednesday, June 25, 2008. L.L.C. Accession Number: 20080610–0218. Docket Numbers: ER08–1075–000. Description: PJM Interconnection, Comment Date: 5 p.m. Eastern Time Applicants: Entergy Services, Inc. LLC submits a revised interconnection on Monday, June 30, 2008. Description: Entergy Operating service agreement and revised Docket Numbers: ER08–1093–000. Companies submits proposed construction service agreement. Applicants: Pacific Gas and Electric amendments to the agreement first Filed Date: 06/06/2008. Company. executed on 11/17/06 with Southwest Accession Number: 20080610–0203. Description: Pacific Gas and Electric Power Pool, Inc. Comment Date: 5 p.m. Eastern Time Co. submits notices of termination for Filed Date: 06/05/2008. on Friday, June 27, 2008. two Special Facilities Agreements with Accession Number: 20080609–0115. City and County of San Francisco. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER08–1089–000. Filed Date: 06/09/2008. on Thursday, June 26, 2008. Applicants: Port Washington Generating Station LLC. Accession Number: 20080610–0217. Docket Numbers: ER08–1076–000. Description: Port Washington Comment Date: 5 p.m. Eastern Time Applicants: The American Electric Generating Station LLC notifies FERC of on Monday, June 30, 2008. Power Service Corp. the termination of Rate Schedule FERC Take notice that the Commission Description: AEP Operating 1 under which PWGS was authorized to received the following electric securities Companies submits a second revision to sell test power to Wisconsin Electric filings: the Interconnection and Local Delivery Power Company etc. Service Agreement 1429 with Village of Docket Numbers: ES08–52–000. Filed Date: 06/06/2008. Sycamore. Applicants: Monongahela Power Accession Number: 20080610–0214. Filed Date: 06/05/2008. Company. Accession Number: 20080609–0112. Comment Date: 5 p.m. Eastern Time Description: Application of Comment Date: 5 p.m. Eastern Time on Friday, June 27, 2008. Monongahela Power Company under on Thursday, June 26, 2008. Docket Numbers: ER08–1089–000. Section 204 of the Federal Power Act for Docket Numbers: ER08–1077–000. Applicants: Port Washington Authorization under Section 204(a) to Applicants: Southern California Generating Station LLC. issue up to $410 Million in First Edison Company. Description: Port Washington Mortgage Bonds or Other Long-Term Description: Southern California Generating Station LLC notifies FERC of Debt Instruments. Edison Co. submits a Large Generator the termination of Rate Schedule FERC Filed Date: 06/09/2008. Interconnection Agreement with CPV 1 under which PWGS was authorized to Accession Number: 20080609–5117. Sentinel, LLC et al. sell test power to Wisconsin Electric Comment Date: 5 p.m. Eastern Time Filed Date: 06/05/2008. Power Company etc. on Monday, June 30, 2008. Accession Number: 20080609–0114. Filed Date: 06/06/2008. Take notice that the Commission Comment Date: 5 p.m. Eastern Time Accession Number: 20080610–0214. received the following foreign utility on Thursday, June 26, 2008. Comment Date: 5 p.m. Eastern Time company status filings: Docket Numbers: ER08–1078–000. on Friday, June 27, 2008. Docket Numbers: FC08–6–000. Applicants: Entergy Services, Inc. Docket Numbers: ER08–1090–000. Applicants: SunEdison International, Description: Entergy Gulf States Applicants: New York Independent LLC. Louisiana, LLC submits an amended System Operator, Inc. Description: Notice of Self Interconnection and Operating Description: New York Independent Certification of Foreign Utility Agreement between RSC Cogen, LLC System Operator, Inc. submits revisions Company, Status of SunEdison and EGS. to its Open Access Transmission Tariff International, LLC. Filed Date: 06/06/2008. and Market Administration and Control Filed Date: 06/06/2008. Accession Number: 20080610–0204. Area Services Tariff. Accession Number: 20080606–5121. Comment Date: 5 p.m. Eastern Time Filed Date: 06/06/2008. Comment Date: 5 p.m. Eastern Time on Friday, June 27, 2008. Accession Number: 20080610–0215. on Friday, June 27, 2008.

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Take notice that the Commission The filings in the above proceedings Accession Number: 20080606–0096. received the following open access are accessible in the Commission’s Comment Date: 5 p.m. Eastern Time transmission tariff filings: eLibrary system by clicking on the on Tuesday, June 17, 2008. Docket Numbers: OA08–13–003. appropriate link in the above list. They Docket Numbers: RP08–338–001. Applicants: New York Independent are also available for review in the Applicants: Tennessee Gas Pipeline System Operator, Inc. Commission’s Public Reference Room in Company. Description: New York Independent Washington, DC. There is an Description: Tennessee Gas Pipeline System Operator, Inc submits tariff eSubscription link on the Web site that Company submits Thirteenth revised revisions in compliance to FERC’s 5/7/ enables subscribers to receive e-mail Sheet 405C and Original Sheet 405C.01 08 Order. notification when a document is added for inclusion in Tennessee’s FERC Gas Filed Date: 06/06/2008. to a subscribed docket(s). For assistance Tariff, Fifth Revised Volume 1, to Accession Number: 20080610–0223. with any FERC Online service, please e- become effective 6/1/08. Comment Date: 5 p.m. Eastern Time mail [email protected]. or Filed Date: 06/06/2008. on Friday, June 27, 2008. call (866) 208–3676 (toll free). For TTY, Accession Number: 20080606–0133. Docket Numbers: OA07–88–002. call (202) 502–8659. Comment Date: 5 p.m. Eastern Time Applicants: Carolina Power & Light on Wednesday, June 18, 2008 Company d/b/a Pro, Florida Power Nathaniel J. Davis, Sr., Corp. d/b/a Progress Energy, Progress Deputy Secretary. Docket Numbers: RP08–402–000. Applicants: Gulf South Pipeline Energy, Inc. [FR Doc. E8–13559 Filed 6–16–08; 8:45 am] Company, LP. Description: Order No. 890 OATT BILLING CODE 6717–01–P Filing of Carolina Power & Light Description: Gulf South Pipeline Company and Florida Power Company, LP submits Fifth Revised Corporation. DEPARTMENT OF ENERGY Sheet 804 of its Gas Tariff Sixth Revised Filed Date: 06/04/2008. Volume 1, to become effective 7/7/08. Accession Number: 20080604–5069. Federal Energy Regulatory Filed Date: 06/06/2008. Comment Date: 5 p.m. Eastern Time Commission Accession Number: 20080606–0134. on Wednesday, June 25, 2008. Comment Date: 5 p.m. Eastern Time Any person desiring to intervene or to Combined Notice of Filings #1 on Wednesday, June 18, 2008. Docket Numbers: CP08–54–003. protest in any of the above proceedings June 11, 2008. must file in accordance with Rules 211 Applicants: Columbia Gulf Take notice that the Commission has and 214 of the Commission’s Rules of Transmission Company. received the following Natural Gas Practice and Procedure (18 CFR 385.211 Description: Columbia Gulf Pipeline Rate and Refund Report filings: and 385.214) on or before 5 p.m. Eastern Transmission Company submits time on the specified comment date. It Docket Numbers: RP99–518–107. compliance filing to cancel Dynegy is not necessary to separately intervene Applicants: Gas Transmission Marketing and Trade capacity again in a subdocket related to a Northwest Corporation. entitlements. compliance filing if you have previously Description: Gas Transmission Filed Date: 05/30/2008. intervened in the same docket. Protests Northwest Corp submits Sixteenth Accession Number: 20080530–5030. will be considered by the Commission Revised Sheet 24 and Fifth Revised Comment Date: 5 p.m. Eastern Time in determining the appropriate action to Sheet 28 to FERC Gas Tariff, Third on Wednesday, June 18, 2008. be taken, but will not serve to make Revised Volume 1–A. Any person desiring to intervene or to protestants parties to the proceeding. Filed Date: 06/09/2008. protest in any of the above proceedings Anyone filing a motion to intervene or Accession Number: 20080610–0232. must file in accordance with Rules 211 protest must serve a copy of that Comment Date: 5 p.m. Eastern Time and 214 of the Commission’s Rules of document on the Applicant. In reference on Monday, June 23, 2008. Practice and Procedure (18 CFR 385.211 to filings initiating a new proceeding, Docket Numbers: RP07–570–001. and 385.214) on or before 5 p.m. Eastern interventions or protests submitted on RP07–695–001. time on the specified comment date. It or before the comment deadline need Applicants: CenterPoint Energy— is not necessary to separately intervene not be served on persons other than the Mississippi River Transmission again in a subdocket related to a Applicant. Corporation. compliance filing if you have previously The Commission encourages Description: CenterPoint Energy— intervened in the same docket. Protests electronic submission of protests and Mississippi River Transmission will be considered by the Commission interventions in lieu of paper, using the Corporation submits Substitute Sixty- in determining the appropriate action to FERC Online links at http:// First Revised Sheet 5 et al. to FERC Gas be taken, but will not serve to make www.ferc.gov. Tariff, Third Revised Volume 1, protestants parties to the proceeding. To facilitate electronic service, effective 10/1/07 and 11/1/07. Anyone filing a motion to intervene or persons with Internet access who will Filed Date: 06/05/2008. protest must serve a copy of that eFile a document and/or be listed as a Accession Number: 20080606–0097. document on the Applicant. In reference contact for an intervenor must create Comment Date: 5 p.m. Eastern Time to filings initiating a new proceeding, and validate an eRegistration account on Tuesday, June 17, 2008. interventions or protests submitted on using the eRegistration link. Select the Docket Numbers: RP08–317–001. or before the comment deadline need eFiling link to log on and submit the Applicants: Columbia Gas not be served on persons other than the intervention or protests. Transmission Corporation. Applicant. Persons unable to file electronically Description: Columbia Gas The Commission encourages should submit an original and 14 copies Transmission Corporation submits electronic submission of protests and of the intervention or protest to the Third Revised Sheet 489 to FERC Gas interventions in lieu of paper, using the Federal Energy Regulatory Commission, Tariff, Second Revised Volume 1, FERC Online links at http:// 888 First St., NE., Washington, DC proposed to become effective 6/1/08. www.ferc.gov. To facilitate electronic 20426. Filed Date: 06/05/2008. service, persons with Internet access

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who will eFile a document and/or be Docket Numbers: EC08–100–000. Persons unable to file electronically listed as a contact for an intervenor Applicants: Solios Power LLC. should submit an original and 14 copies must create and validate an Description: Application for of the intervention or protest to the eRegistration account using the authorization for disposition of Federal Energy Regulatory Commission, eRegistration link. Select the eFiling jurisdictional facilities and request for 888 First St., NE., Washington, DC link to log on and submit the expedited action of Solios Power, LLC. 20426. intervention or protests. Filed Date: 06/05/2008. The filings in the above proceedings Persons unable to file electronically Accession Number: 20080610–0228. are accessible in the Commission’s should submit an original and 14 copies Comment Date: 5 p.m. Eastern Time eLibrary system by clicking on the of the intervention or protest to the on Thursday, June 26, 2008. appropriate link in the above list. They Federal Energy Regulatory Commission, Take notice that the Commission are also available for review in the 888 First St., NE., Washington, DC received the following electric rate Commission’s Public Reference Room in 20426. filings: Washington, DC. There is an The filings in the above proceedings Docket Numbers: ER08–1084–000. eSubscription link on the Web site that are accessible in the Commission’s Applicants: Evergreen Community enables subscribers to receive e-mail eLibrary system by clicking on the Power, LLC. notification when a document is added appropriate link in the above list. They Description: Evergreen Community to a subscribed docket(s). For assistance are also available for review in the Power, LLC submits Petition for with any FERC Online service, please e- Commission’s Public Reference Room in Acceptance of Initial Tariff, Waivers and mail [email protected]. or Washington, DC. There is an Blanket Authority of ECP. call (866) 208–3676 (toll free). For TTY, Filed Date: 06/05/2008. call (202) 502–8659. eSubscription link on the Web site that Accession Number: 20080610–0210. enables subscribers to receive e-mail Comment Date: 5 p.m. Eastern Time Nathaniel J. Davis, Sr., notification when a document is added on Thursday, June 26, 2008. to a subscribed docket(s). For assistance Deputy Secretary. Docket Numbers: ER08–1085–000. with any FERC Online service, please e- [FR Doc. E8–13562 Filed 6–16–08; 8:45 am] Applicants: El Paso Electric Company. BILLING CODE 6717–01–P mail [email protected]. or Description: El Paso Electric Company call (866) 208–3676 (toll free). For TTY, submits proposed changes to its Open call (202) 502–8659. Access Transmission Tariff. DEPARTMENT OF ENERGY Nathaniel J. Davis, Sr., Filed Date: 06/05/2008. Deputy Secretary. Accession Number: 20080610–0211. Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time Commission [FR Doc. E8–13560 Filed 6–16–08; 8:45 am] on Thursday, June 26, 2008. BILLING CODE 6717–01–P [Docket No. CP08–72–000] Any person desiring to intervene or to protest in any of the above proceedings Northern Border Pipeline Company; DEPARTMENT OF ENERGY must file in accordance with Rules 211 Notice of Availability of the and 214 of the Commission’s Rules of Environmental Assessment for the Federal Energy Regulatory Practice and Procedure (18 CFR 385.211 Proposed Des Plaines Project Commission and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It June 10, 2008. Combined Notice of Filings is not necessary to separately intervene The staff of the Federal Energy again in a subdocket related to a Regulatory Commission (FERC or June 11, 2008. compliance filing if you have previously Commission) has prepared an Take notice that the Commission intervened in the same docket. Protests environmental assessment (EA) of the received the following electric corporate will be considered by the Commission natural gas compressor station proposed filings: in determining the appropriate action to by Northern Border Pipeline Company Docket Numbers: EC08–94–000. be taken, but will not serve to make (Northern Border) in the above- Applicants: Duke Energy Carolinas, protestants parties to the proceeding. referenced docket. LLC. Anyone filing a motion to intervene or The EA was prepared to satisfy the Description: Application of Duke protest must serve a copy of that requirements of the National Energy Carolinas, LLC Seeking document on the Applicant. In reference Environmental Policy Act. The FERC Authorization for the Acquisition of to filings initiating a new proceeding, staff concludes that approval of the Jurisdictional Facilities. interventions or protests submitted on proposed project, with appropriate Filed Date: 05/30/2008. or before the comment deadline need mitigating measures, would not Accession Number: 20080530–4036. not be served on persons other than the constitute a major federal action Comment Date: 5 p.m. Eastern Time Applicant. significantly affecting the quality of the on Friday, June 20, 2008. The Commission encourages human environment. Docket Numbers: EC08–98–000. electronic submission of protests and The EA assesses the potential Applicants: Nevada Power Company, interventions in lieu of paper, using the environmental effects of the Reliant Energy Wholesale Generation, FERC Online links at http:// construction and operation of Northern LLC. www.ferc.gov. To facilitate electronic Border’s proposed Des Plaines Project, Description: Nevada Power Company service, persons with Internet access consisting of a new 1,600 horsepower & Reliant Energy Wholesale Generation, who will eFile a document and/or be compressor station, meter station, and LLC’s application for authorization to listed as a contact for an intervenor interconnect facilities at a site along dispose of jurisdictional assets. must create and validate an Northern Border’s existing pipeline Filed Date: 06/02/2008. eRegistration account using the system in Will County, Illinois. The Des Accession Number: 20080610–0275. eRegistration link. Select the eFiling Plaines Project would enable Northern Comment Date: 5 p.m. Eastern Time link to log on and submit the Border to receive natural gas from ANR on Monday, June 23, 2008. intervention or protests. Pipeline Company, for transport to a

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delivery point on Northern Border’s • Mail your comments so that they DEPARTMENT OF ENERGY pipeline system. will be received in Washington, DC, on The EA has been placed in the public or before July 10, 2008. Federal Energy Regulatory files of the FERC. A limited number of Comments will be considered by the Commission copies of the EA are available for Commission but will not serve to make distribution and public inspection at: the commentor a party to the [Docket No. ID–5728–000] Federal Energy Regulatory Commission, proceeding. Any person seeking to Public Reference Room, 888 First Street, Kroboth, Michael E.; Notice of Filing become a party to the proceeding must NE., Room 2A, Washington, DC 20426, (202) 502–8371. file a motion to intervene pursuant to June 10, 2008. Rule 214 of the Commission’s Rules of Copies of the EA have been mailed to Take notice that on May 28, 2008, federal, state, and local agencies, Practice and Procedures (18 CFR 385.214).1 Only intervenors have the Michael E. Kroboth filed an application interested individuals, newspapers, to hold interlocking positions pursuant libraries, and parties to this proceeding. right to seek rehearing of the Commission’s decision. to section 305(b) of the Federal Power Any person wishing to comment on Act and Part 45 of the regulations of the the EA may do so. To ensure Affected landowners and parties with Commission, 18 CFR Part 45 (2007). consideration prior to a Commission environmental concerns may be granted decision on the proposal, it is important intervenor status upon showing good Any person desiring to intervene or to that we receive your comments before cause by stating that they have a clear protest this filing must file in the date specified below. and direct interest in this proceeding accordance with Rules 211 and 214 of Please note that the Commission which would not be adequately the Commission’s Rules of Practice and strongly encourages electronic filing of represented by any other parties. You do Procedure (18 CFR 385.211, 385.214). any comments or interventions or not need intervenor status to have your Protests will be considered by the protests to this proceeding. See 18 Code comments considered. Commission in determining the of Federal Regulations appropriate action to be taken, but will 385.2001(a)(1)(iii) and the instructions Additional information about the not serve to make protestants parties to on the Commission’s Internet Web site project is available from the the proceeding. Any person wishing to at http://www.ferc.gov under the link to Commission’s Office of External Affairs, become a party must file a notice of ‘‘Documents and Filings’’ and ‘‘eFiling.’’ at 1–866–208–FERC or on the FERC intervention or motion to intervene, as eFiling is a file attachment process and Internet Web site (http://www.ferc.gov) appropriate. Such notices, motions, or requires that you prepare your using the eLibrary link. Click on the protests must be filed on or before the submission in the same manner as you eLibrary link, click on ‘‘General Search’’ comment date. On or before the would if filing on paper, and save it to and enter the docket number excluding comment date, it is not necessary to a file on your hard drive. New eFiling the last three digits in the Docket serve motions to intervene or protests users must first create an account by Number field. Be sure you have selected on persons other than the Applicant. clicking on ‘‘Sign up’’ or ‘‘eRegister.’’ an appropriate date range. For You will be asked to select the type of assistance, please contact FERC Online The Commission encourages filing you are making. This filing is Support at [email protected] electronic submission of protests and considered a ‘‘Comment on Filing.’’ In or toll free at 1–866–208–3676, or for interventions in lieu of paper using the addition, there is a ‘‘Quick Comment’’ TTY, contact (202) 502–8659. The ‘‘eFiling’’ link at http://www.ferc.gov. option available, which is an easy eLibrary link also provides access to the Persons unable to file electronically method for interested persons to submit texts of formal documents issued by the should submit an original and 14 copies text only comments on a project. The Commission, such as orders, notices, of the protest or intervention to the Quick-Comment User Guide can be and rulemakings. Federal Energy Regulatory Commission, viewed at http://www.ferc.gov/docs- 888 First Street, NE., Washington, DC filing/efiling/quick-comment-guide.pdf. In addition, the Commission offers a 20426. free service called eSubscription, which Quick Comment does not require a This filing is accessible on-line at allows you to keep track of all formal FERC eRegistration account; however, http://www.ferc.gov, using the issuances and submittals in specific you will be asked to provide a valid e- ‘‘eLibrary’’ link and is available for dockets. This can reduce the amount of mail address. All comments submitted review in the Commission’s Public time you spend researching proceedings under either eFiling or the Quick Reference Room in Washington, DC. Comment option are placed in the by automatically providing you with There is an ‘‘eSubscription’’ link on the public record for the specified docket. notification of these filings, document Web site that enables subscribers to If you are filing written comments, summaries and direct links to the receive e-mail notification when a please carefully follow these documents. Go to http://www.ferc.gov/ document is added to a subscribed instructions to ensure that your esubscribenow.htm. comments are received in time and docket(s). For assistance with any FERC properly recorded: Kimberly D. Bose, Online service, please e-mail • Send an original and two copies of Secretary. [email protected], or call your comments to: Kimberly D. Bose, [FR Doc. E8–13532 Filed 6–16–08; 8:45 am] (866) 208–3676 (toll free). For TTY, call (202) 502–8659. Secretary, Federal Energy Regulatory BILLING CODE 6717–01–P Commission, 888 First St., NE., Room Comment Date: 5:00 p.m. Eastern 1A, Washington, DC 20426; Time on June 18, 2008. • Reference Docket No. CP08–72– 000; Kimberly D. Bose, • Secretary. Label one copy of the comments for 1 Interventions may also be filed electronically via the attention of the Gas Branch 3, PJ– the Internet in lieu of paper. See the previous [FR Doc. E8–13534 Filed 6–16–08; 8:45 am] 11.3; and discussion on filing comments electronically. BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY e-mail at [email protected] or by phone at 202–502–8278. Federal Energy Regulatory Federal Energy Regulatory Commission Commission Kimberly D. Bose, Secretary. [Docket No. ID–5737–000] [Docket No. AD08–9–000] Agenda Volk, Stephen R.; Notice of Filing Review of Wholesale Electricity 9:30 Markets; Second Notice of Conference June 10, 2008. and Agenda Opening Remarks. Take notice that on June 6, 2008, 9:45 Stephen R. Volk filed a notice of June 10, 2008. resignation from holding interlocking On May 12, 2008, the Federal Energy ISO New England, Inc., Gordon Van positions, pursuant to Part 45 of the Regulatory Commission (Commission) Welie, President and Chief Executive regulations of the Commission, 18 CFR issued a notice announcing a conference Officer, Hung-po Chao, Director, Part 45.5. in this proceeding, to be held on July 1, Market Monitoring. Any person desiring to intervene or to 2008. As mentioned in that notice, the New York Independent System protest this filing must file in Commission has invited senior Operator, Karen Antion, Interim Chief management and market monitors from accordance with Rules 211 and 214 of Executive Officer, David Patton, the jurisdictional regional transmission the Commission’s Rules of Practice and President, Potomac Economics. organizations (RTOs) and independent Procedure (18 CFR 385.211, 385.214). PJM Independent System Operator, Inc., system operators (ISOs) to provide a Protests will be considered by the W. Terry Boston, President and Chief review of the current and future state of Commission in determining the Executive Officer, Joseph Bowring, regional wholesale electricity markets. appropriate action to be taken, but will Manager, Market Monitoring Unit. Members of the Commission’s staff will not serve to make protestants parties to provide an overview of the wholesale 12 the proceeding. Any person wishing to electricity markets outside of RTOs and become a party must file a notice of ISOs. Attached is the agenda for the Break. intervention or motion to intervene, as conference. appropriate. Such notices, motions, or 1 protests must be filed on or before the The conference will be held at the Federal Energy Regulatory Commission, California Independent System comment date. On or before the Operator, Yakout Mansour, President comment date, it is not necessary to 888 First Street, NE., Washington, DC 20426 in the Commission Meeting Room and Chief Executive Officer, Keith serve motions to intervene or protests (2–C) from 9:30 a.m. until 4 p.m. (EDT). Casey, Director, Department of Market on persons other than the Applicant. All interested persons are invited, and Monitoring, Frank Wolak, Chairman, The Commission encourages there is no registration required. Market Surveillance Committee. electronic submission of protests and This conference will be transcribed. 1:45 interventions in lieu of paper using the Transcripts of the conference will be ‘‘eFiling’’ link at http://www.ferc.gov. immediately available from Ace Midwest Independent Transmission Persons unable to file electronically Reporting Company (202–347–3700 or System Operator, T. Graham Edwards, should submit an original and 14 copies 1–800–336–6646) for a fee. It will also President and Chief Executive Officer, of the protest or intervention to the be web-cast. Capitol Connection offers David Patton, President, Potomac Federal Energy Regulatory Commission, the opportunity for remote listening and Economics. 888 First Street, NE., Washington, DC viewing of the conference. It is available Southwest Power Pool, Inc., Nick 20426. for a fee, live over the Internet, by Brown, President and Chief Executive This filing is accessible on-line at phone, or via satellite. Persons Officer, Richard Dillon, Director, http://www.ferc.gov, using the interested in receiving the broadcast, or Market Development and Analysis. ‘‘eLibrary’’ link and is available for who need information on making review in the Commission’s Public arrangements should contact David 3:15 Reininger or Julia Morelli at the Capitol Reference Room in Washington, DC. South and West Regions, Charles There is an ‘‘eSubscription’’ link on the Connection (703–993–3100) as soon as Whitmore, Senior Market Advisor, Web site that enables subscribers to possible or visit the Capitol Connection Division of Energy Market Oversight, receive e-mail notification when a Web site at http:// Office of Enforcement. document is added to a subscribed www.capitolconnection.gmu.edu and docket(s). For assistance with any FERC click on ‘‘FERC’’. 4 Online service, please e-mail Commission conferences are [email protected], or call accessible under section 508 of the Adjourn. (866) 208–3676 (toll free). For TTY, call Rehabilitation Act of 1973. For [FR Doc. E8–13539 Filed 6–16–08; 8:45 am] (202) 502–8659. accessibility accommodations please BILLING CODE 6717–01–P Comment Date: 5 p.m. Eastern Time send an e-mail to [email protected] on June 26, 2008. or call toll free 1–866–208–3372 (voice) or 202–208–1659 (TTY), or send a FAX Kimberly D. Bose, to 202–208–2106 with the required Secretary. accommodations. [FR Doc. E8–13535 Filed 6–16–08; 8:45 am] Questions about the conference BILLING CODE 6717–01–P should be directed to Saida Shaalan by

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DEPARTMENT OF ENERGY Docket No. EL08–60: Union Electric v. (ICR) has been forwarded to the Office Entergy Services, Inc. of Management and Budget (OMB) for Federal Energy Regulatory Docket No. ER08–750: Entergy review and approval. This is a request Commission Services, Inc. to renew an existing approved Docket No. ER08–751: Entergy collection. The ICR, which is abstracted Notice of FERC Staff Attendance At Services, Inc. below, describes the nature of the Southwest Power Pool Independent Docket No. ER08–752: Entergy information collection activity and its Coordinator of Transmission (ICT) Services, Inc. expected burden and costs. Stakeholders’ Policy Committee Docket No. OA08–92: Entergy DATES: Additional comments may be Meeting Services, Inc. submitted on or before July 17, 2008. Docket No. OA08–75: Entergy June 10, 2008. ADDRESSES: Submit your comments, Services, Inc. The Federal Energy Regulatory referencing docket ID Number EPA– Docket No. ER08–572: Entergy Commission hereby gives notice that HQ–OPPT–2007–0716 to (1) EPA online Services, Inc. members of its staff may attend the using www.regulations.gov (our Docket No. ER08–927: Entergy meeting noted below. Their attendance preferred method), by e-mail to Services, Inc. is part of the Commission’s ongoing [email protected] or by mail to: Docket No. OA08–59: Entergy outreach efforts. Document Control Office (DCO), Office Services, Inc. of Pollution Prevention and Toxics ICT Stakeholders Policy Committee Docket No. ER07–1252: Entergy (OPPT), Environmental Protection Meeting Services, Inc. Agency, Mail Code: 7407T, 1200 June 19, 2008 (9 a.m.–3 p.m. CST), Docket No. EL03–230: ExxonMobil v. Pennsylvania Ave., NW., Washington, Sheraton North Hilton, 15700 JFK Entergy. DC 20460, and (2) OMB at: Office of Docket No. ER08–774: Entergy Boulevard, Houston, TX 77032. Information and Regulatory Affairs, The discussions may address matters Services, Inc. Office of Management and Budget at issue in the following proceedings: Docket No. ER08–1006: Entergy (OMB), Attention: Desk Officer for EPA, Docket No. EL07–52: Louisiana Public Services, Inc. 725 17th Street, NW., Washington, DC Service Commission v. Entergy Services, Docket No. ER08–1040: Entergy 20503. Inc. Services, Inc. Docket No. ER08–1041: Entergy FOR FURTHER INFORMATION CONTACT: Docket No. OA07–32: Entergy Barbara Cunningham, Director, Services, Inc. Services, Inc. Docket No. ER08–1056: Entergy Environmental Assistance Division, Docket No. ER05–1065: Entergy Office of Pollution Prevention and Services, Inc. Services, Inc. Docket No. ER08–1057: Entergy Toxics, Environmental Protection Docket No. EL00–66: Louisiana Public Agency, Mailcode: 7408–M, 1200 Service Commission v. Entergy. Services, Inc. These meetings are open to the Pennsylvania Ave., NW., Washington, Docket No. EL95–33: Louisiana Public DC 20460; telephone number: 202–554– Service Commission v. Entergy. public. For more information, contact Amy 1404; e-mail address: TSCA- Docket No. ER00–2854: Louisiana [email protected]. Public Service Commission v. Entergy. Demetry, Office of Energy Market Docket No. EL05–15: Arkansas Regulation, Federal Energy Regulatory SUPPLEMENTARY INFORMATION: EPA has Electric Cooperative, Corp. v. Entergy Commission at (202) 502–6090 or submitted the following ICR to OMB for Arkansas, Inc. [email protected]. review and approval according to the procedures prescribed in 5 CFR 1320.12. Docket No. ER06–1555: Entergy Kimberly D. Bose, Services, Inc. On November 14, 2007 (72 FR 64075), Secretary. Docket No. ER08–845: Entergy EPA sought comments on this renewal Services, Inc. [FR Doc. E8–13536 Filed 6–16–08; 8:45 am] ICR pursuant to 5 CFR 1320.8(d). EPA Docket No. ER08–844: Entergy BILLING CODE 6717–01–P received no substantive comments Services, Inc. during the comment period. Any Docket No. ER08–885: Entergy Gulf comments related to this ICR should be States Louisiana, LLC. ENVIRONMENTAL PROTECTION submitted to EPA and OMB within 30 Docket No. ER03–583: Entergy AGENCY days of this notice. EPA has established a public docket Services, Inc. [EPA–HQ–OPPT–2007–0716; FRL–8580–5] Docket No. ER08–879: Entergy for this ICR under Docket ID No. EPA– Services, Inc. Agency Information Collection HQ–OPPT–2007–0716 which is Docket No. ER01–2214: Entergy Activities; Submission to OMB for available for online viewing at http:// Services, Inc. Review and Approval; Comment www.regulations.gov, or in person Docket No. ER07–628: Entergy Request; TSCA Section 4 Test Rules, inspection at the OPPT Docket in the Arkansas, Inc. Consent Orders, Test Rule EPA Docket Center (EPA/DC), EPA Docket No. ER07–629: Entergy Exemptions, and Voluntary Data West, Room 3334, 1301 Constitution Arkansas, Inc. Submission; EPA ICR No. 1139.08, Ave., NW., Washington, DC. The EPA Docket No. ER07–630: Entergy OMB No. 2070–0033 Docket Center Public Reading Room is Arkansas, Inc. open from 8 a.m. to 4:30 p.m., Monday Docket No. EL08–50: Louisiana Public AGENCY: Environmental Protection through Friday, excluding legal Service Commission v. System Energy Agency (EPA). holidays. The telephone number for the Resources. ACTION: Notice. Reading Room is 202–566–1744, and the Docket No. EL08–51: Louisiana Public telephone number for the Pollution Service Commission v. Entergy Services, SUMMARY: In compliance with the Prevention and Toxics Docket is 202– Inc. Paperwork Reduction Act (44 U.S.C. 566–0280. Docket No. EL08–59: ConocoPhillips 3501 et seq.), this document announces Use EPA’s electronic docket and v. Entergy Services, Inc. that an Information Collection Request comment system at www.regulations.gov

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to submit or view public comments, impacts of the chemical’s manufacture, compared with that currently in the access the index listing of the contents processing, distribution, use or disposal; OMB inventory. This decrease reflects of the public docket, and to access those and (3) that testing is needed to develop EPA’s revised estimates of the number documents in the docket that are such data. Rules and consent orders of test rules and consent orders that the available electronically. Once in the under TSCA section 4 require that one Agency expects to issue in the future, as system, select ‘‘docket search,’’ then key manufacturer or processor of a subject well as revised estimates of the amount in the docket ID number identified chemical perform the specified testing of testing still to be done under EPA’s above. Please note that EPA’s policy is and report the results of that testing to HPV Challenge program. The that public comments, whether EPA. TSCA section 4 also allows a Supporting Statement includes detailed submitted electronically or in paper, manufacturer or processor of a subject analyses of these revised estimates. This will be made available for public chemical to apply for an exemption change is an adjustment. viewing at http://www.regulations.gov from the testing requirement if that Dated: June 9, 2008. as EPA receives them and without testing will be or has been performed by Sara Hisel-McCoy, change, unless the comment contains another party. This information copyrighted material, Confidential collection applies to reporting and Director, Collection Strategies Division. Business Information (CBI), or other recordkeeping activities associated with [FR Doc. E8–13612 Filed 6–16–08; 8:45 am] information whose public disclosure is the information that EPA requires BILLING CODE 6560–50–P restricted by statute. For further industry to provide in response to TSCA information about the electronic docket, section 4 test rules, consent orders, test ENVIRONMENTAL PROTECTION go to http://www.regulations.gov. rule exemptions and other data AGENCY Title: TSCA Section 4 Test Rules, submissions. Consent Orders, Test Rule Exemptions, Responses to the collection of [FRL–8580–4] and Voluntary Data Submission. information are mandatory (see 40 CFR ICR Numbers: EPA ICR No. 1139.08, part 790). Respondents may claim all or Agency Information Collection OMB Control No. 2070–0033. part of a notice as CBI. EPA will Activities OMB Responses ICR Status: This ICR is currently disclose information that is covered by scheduled to expire on June 30, 2008. AGENCY: Environmental Protection a CBI claim only to the extent permitted Agency (EPA). An Agency may not conduct or sponsor, by, and in accordance with, the ACTION: Notice. and a person is not required to respond procedures in 40 CFR part 2. to, a collection of information, unless it Burden Statement: The annual public SUMMARY: This document announces the displays a currently valid OMB control reporting and recordkeeping burden for Office of Management and Budget’s number. The OMB control numbers for this collection of information is (OMB) responses to Agency Clearance EPA’s regulations in title 40 of the CFR, estimated to average 232 hours per requests, in compliance with the after appearing in the Federal Register response. Burden means the total time, Paperwork Reduction Act (44 U.S.C. when approved, are listed in 40 CFR effort or financial resources expended 3501 et seq.). An agency may not part 9, are displayed either by by persons to generate, maintain, retain conduct or sponsor, and a person is not publication in the Federal Register or or disclose or provide information to or required to respond to, a collection of by other appropriate means, such as on for a Federal agency. This includes the information unless it displays a the related collection instrument or time needed to review instructions; currently valid OMB control number. form, if applicable. The display of OMB develop, acquire, install and utilize The OMB control numbers for EPA’s control numbers in certain EPA technology and systems for the purposes regulations are listed in 40 CFR part 9 regulations is consolidated in 40 CFR of collecting, validating and verifying and 48 CFR chapter 15. part 9. information, processing and FOR FURTHER INFORMATION CONTACT: Rick Abstract: Section 4 of the Toxic maintaining information, and disclosing Substances Control Act (TSCA) is Westlund (202) 566–1682, or e-mail at and providing information; adjust the [email protected] and please refer designed to assure that chemicals that existing ways to comply with any may pose serious risks to human health to the appropriate EPA Information previously applicable instructions and Collection Request (ICR) Number. or the environment undergo testing by requirements; train personnel to be able SUPPLEMENTARY INFORMATION: manufacturers or processors, and that to respond to a collection of the results of such testing are made information; search data sources; OMB Responses To Agency Clearance available to EPA. EPA uses the complete and review the collection of Requests information collected under the information; and transmit or otherwise OMB Approvals authority of TSCA section 4 to assess disclose the information. risks associated with the manufacture, Respondents/Affected Entities: EPA ICR Number 1550.07; Conflict of processing, distribution, use or disposal Entities potentially affected by this Interest Rule #1 (Renewal); was of a chemical, and to support any action are persons who manufacture, approved 05/09/2008; OMB Number necessary regulatory action with respect process or import, use, distribute or 2030–0023; expires 05/31/2011. to that chemical. dispose of one or more specified EPA ICR Number 0186.11; NESHAP EPA must assure that appropriate chemical substances. for Vinyl Chloride (Renewal); in 40 CFR tests are performed on a chemical if it Frequency of Collection: On occasion. part 61, subpart F; was approved 05/15/ decides: (1) That a chemical being Estimated No. of Respondents: 58. 2008; OMB Number 2060–0071; expires considered under TSCA section 4(a) Estimated Total Annual Burden on 05/31/2011. may pose an ‘‘unreasonable risk’’ or is Respondents: 151,962 hours. EPA ICR Number 1125.05; NESHAP produced in ‘‘substantial’’ quantities Estimated Total Annual Costs: for Beryllium Rocket Motor Fuel Firing that may result in substantial or $5,845,639. (Renewal); in 40 CFR part 61, subpart D; significant human exposure or Changes in Burden Estimates: There was approved 05/15/2008; OMB substantial environmental release of the is a net decrease of 51,052 hours (from Number 2060–0394; expires 05/31/2011. chemical; (2) that additional data are 203,014 hours to 151,962 hours) in the EPA ICR Number 1681.06; NESHAP needed to determine or predict the total estimated respondent burden for Epoxy Resin and Non-Nylon

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Polyamide Production (Renewal); in 40 EPA ICR Number 1655.06; Regulation are only accepted during the Docket’s CFR part 63, subpart W; was approved of Fuels and Fuel Additives: Detergent normal hours of operation, and special 05/15/2008; OMB Number 2060–0290; Gasoline (Renewal); in 40 CFR part 80, arrangements should be made for expires 05/31/2011. subpart G; was approved 06/04/2008; deliveries of boxed information. EPA ICR Number 1722.05; Emission OMB Number 2060–0275; expires 06/ Instructions: Direct your comments to Certification and Compliance 30/2011. Docket ID No. EPA–HQ–OAR–2006– 0735. The EPA’s policy is that all Requirements for Marine Spark-ignition Dated: June 6, 2008. Engines (Renewal); in 40 CFR part 91, comments received will be included in Sara Hisel-McCoy, and 40 CFR part 805; was approved 05/ the public docket without change and 15/2008; OMB Number 2060–0321; Director, Collection Strategies Division. may be made available online at expires 05/31/2011. [FR Doc. E8–13613 Filed 6–16–08; 8:45 am] http://www.regulations.gov including EPA ICR Number 1367.08; Regulation BILLING CODE 6560–50–P any personal information provided, of Fuels and Fuel Additives: Gasoline unless the comment includes Volatility; in 40 CFR 80.27; was information claimed to be Confidential approved 05/15/2008; OMB Number ENVIRONMENTAL PROTECTION Business Information (CBI) or other 2060–0178; expires 05/31/2011. AGENCY information whose disclosure is EPA ICR Number 2258.01; PM 2.5 [EPA–HQ–2006–0735; FRL–8580–6] restricted by statute. Do not submit NAAQS Implementation Rule (Final information that you consider to be CBI Rule); in 40 CFR 51.100; was approved Announcement of Availability for Lead or otherwise protected through http:// 05/15/2008; OMB Number 2060–0611; National Ambient Air Quality Standard www.regulations.gov, or e-mail. The expires 05/31/2011. Review http://www.regulations.gov Web site is EPA ICR Number 1676.05; Clean Air an ‘‘anonymous access’’ system, which Act Tribal Authority (Renewal); in 40 AGENCY: Environmental Protection means EPA will not know your identity CFR 35, 40 CFR part 49, 40 CFR part 50, Agency (EPA). or contact information unless you and 40 CFR part 81; was approved 05/ ACTION: Notice of availability. provide it in the body of your comment. 15/2008; OMB Number 2060–0306; If you send an e-mail comment directly SUMMARY: On or about June 17, 2008, the expires 05/31/2011. to EPA without going through http:// Office of Air Quality Planning and EPA ICR Number 1826.04; Transition www.regulations.gov, your e-mail Standards (OAQPS) of EPA will make Program for Equipment Manufacturers address will be automatically captured available for public review and (Renewal); in 40 CFR 89.102 and 40 CFR and included as part of the comment comment a number of technical part 1039; was approved 05/16/2008; that is placed in the public docket and documents that discuss monitoring OMB Number 2060–0369; expires 05/ made available on the Internet. If you issues being addressed in EPA’s review 31/2011. submit an electronic comment, EPA of the national ambient air quality EPA ICR Number 2260.02; recommends that you include your Confidential Financial Disclosure Form standards (NAAQS) for lead. These name and other contact information in for Special Government Employees technical documents will be used as the body of your comment and with any Serving on Federal Advisory part of a peer review and consultation disk or CD–ROM you submit. If EPA Committees at the U.S. Environmental with the Clean Air Scientific Advisory cannot read your comment due to Protection Agency; was approved 05/16/ Committee (CASAC) Ambient Air technical difficulties and cannot contact 2008; OMB Number 2090–0029; expires Monitoring & Methods (AAMM) you for clarification, EPA may not be 05/31/2011. Subcommittee (Subcommittee). able to consider your comment. EPA ICR Number 0820.10; Hazardous DATES: Comments on the technical Electronic files should avoid the use of Waste Generator Standards (Renewal); documents must be received on or special characters, any form of in 40 CFR 262.34, 262.40(c), 262.43, before July 17, 2008. encryption, and be free of any defects or 262.44(c), 262.53–57, 262.60, 265.190– ADDRESSES: Submit your comments, viruses. For additional information 193, and 265.196; was approved 05/22/ identified by Docket ID No. EPA–HQ– about EPA’s public docket visit the EPA 2008; OMB Number 2050–0035; expires OAR–2006–0735, by one of the Docket Center homepage at http:// 05/31/2011. following methods: www.epa.gov/epahome/dockets.htm. EPA ICR Number 2020.03; Federal • http://www.regulations.gov: Follow Docket: All documents in the docket Implementation Plans under the Clean the on-line instructions for submitting are listed in the http:// Air Act for Indian Reservations in comments. www.regulations.gov index. Although Idaho, Oregon, and Washington • E-mail: Comments may be sent by listed in the index, some information is (Renewal); in 40 CFR part 49, subpart electronic mail (e-mail) to a-and-r- not publicly available, e.g., CBI or other M; was approved 05/23/2008; OMB [email protected], Attention Docket ID information whose disclosure is Number 2060–0558; expires 05/31/2011. No. EPA–HQ–OAR–2006–0735. restricted by statute. Certain other EPA ICR Number 2130.03; • Fax: Fax your comments to: 202– material, such as copyrighted material, Transportation Conformity 566–9744, Attention Docket ID. No. will be publicly available only in hard Determinations for Federally Funded EPA–HQ–OAR–2006–0735. copy. Publicly available docket and Approved Transportation Plans, • Mail: Send your comments to: Air materials are available either Programs, and Projects (Renewal); in 40 and Radiation Docket and Information electronically in http:// CFR part 93, subpart A; was approved Center, Environmental Protection www.regulations.gov or in hard copy at 05/23/2008; OMB Number 2060–0561; Agency, Mail Code: 2822T, 1200 the Air Docket in the EPA Docket expires 05/31/2011. Pennsylvania Ave., NW., Washington, Center, (EPA/DC) EPA West, Room EPA ICR Number 1596.07; Significant DC, 20460, Attention Docket ID No. 3334, 1301 Constitution Ave., NW., New Alternatives Policy (SNAP) EPA–HQ–OAR–2006–0735. Washington, DC. The Public Reading Program (Renewal); in 40 CFR part 82, • Hand Delivery or Courier: Deliver Room is open from 8:30 a.m. to 4:30 subpart G; was approved 06/05/2008; your comments to: EPA Docket Center, p.m., Monday through Friday, excluding OMB Number 2060–0226; expires 06/ 1301 Constitution Ave., NW., Room legal holidays. The telephone number 30/2011. 3334, Washington, DC. Such deliveries for the Public Reading Room is (202)

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566–1744, and the telephone number for B. Background peer review and consultation at an the Air Docket is (202) 566–1742; fax Under section 108(a) of the Clean Air upcoming public teleconference of the (202) 566–9744. Act (CAA), the Administrator identifies CASAC AAMM Subcommittee. A FOR FURTHER INFORMATION CONTACT: Mr. and lists certain pollutants which separate Federal Register notice will Kevin Cavender, Office of Air Quality ‘‘cause or contribute to air pollution inform the public of the date and phone Planning and Standards (mail code which may reasonably be anticipated to number for the public teleconference. C304–06), U.S. Environmental endanger public health or welfare.’’ The Following the CASAC AAMM Protection Agency, Research Triangle EPA then issues air quality criteria for Subcommittee public teleconference, Park, NC 27711; e-mail: listed pollutants, which are commonly EPA will consider comments received [email protected]; telephone: referred to as ‘‘criteria pollutants.’’ The from the CASAC AAMM Subcommittee (919) 541–2364; fax: (919) 541–1903. air quality criteria are to ‘‘accurately and the public in preparing the final revisions to the lead monitoring SUPPLEMENTARY INFORMATION: reflect the latest scientific knowledge useful in indicating the kind and extent requirements as part of the lead NAAQS A. What Should I Consider as I Prepare of all identifiable effects on public rulemaking. My Comments for EPA? health or welfare which may be Dated: June 11, 2008. 1. Submitting CBI. Do not submit this expected from the presence of [a] Mary E. Henigin, information to EPA through http:// pollutant in the ambient air, in varying Acting Director, Office of Air Quality Planning www.regulations.gov or e-mail. Clearly quantities.’’ Under section 109 of the and Standards. mark the part or all of the information CAA, EPA establishes NAAQS for each [FR Doc. E8–13619 Filed 6–16–08; 8:45 am] that you claim to be CBI. For CBI listed pollutant, with the NAAQS based BILLING CODE 6560–50–P information in a disk or CD–ROM that on the air quality criteria. Section 109(d) you mail to EPA, mark the outside of the of the CAA requires periodic review disk or CD–ROM as CBI and then and, if appropriate, revision of existing ENVIRONMENTAL PROTECTION identify electronically within the disk or air quality criteria. The revised air AGENCY quality criteria reflect advances in CD–ROM the specific information that [FRL–8580–8] is claimed as CBI. In addition to one scientific knowledge on the effects of complete version of the comment that the pollutant on public health or Clean Water Act Section 303(d): includes information claimed as CBI, a welfare. The EPA is also required to Availability of List Decisions copy of the comment that does not periodically review and revise the contain the information claimed as CBI NAAQS, if appropriate, based on the AGENCY: Environmental Protection must be submitted for inclusion in the revised criteria. Agency (EPA). public docket. Information so marked Lead is one of six criteria pollutants ACTION: Notice of Availability. will not be disclosed except in for which EPA has established air accordance with procedures set forth in quality criteria and NAAQS. Presently, SUMMARY: This notice announces the 40 CFR part 2. EPA is reviewing the air quality criteria availability of EPA’s final action 2. Tips for Preparing Your Comments. and NAAQS for lead. identifying water quality limited When submitting comments, remember As part of its review of the NAAQS, segments and associated pollutants in to: EPA is considering revising the Arkansas to be listed pursuant to Clean Water Act (CWA) Section 303(d), and • Identify the rulemaking by docket associated monitoring requirements for request for public comment. Section number and other identifying lead (contained in 40 CFR parts 50, 53, 303(d) requires that states submit and information (subject heading, Federal and 58). On December 12, 2007, an EPA approve or disapprove lists of Register date and page number). advanced notice of proposed rulemaking (ANPR) was published (72 waters for which existing technology- • Follow directions—The Agency FR 71488). The ANPR identified a based pollution controls are not may ask you to respond to specific number of potential revisions to the stringent enough to attain or maintain questions or organize comments by monitoring requirements. A review of state water quality standards and for referencing a Code of Federal the ANPR was conducted by CASAC in which total maximum daily loads Regulations (CFR) part or section December 2007, and a final report was (TMDLs) must be prepared. number. • submitted January 22, 2008 (EPA– On June 6, 2008, EPA partially Explain why you agree or disagree; CASAC–08–007). A consultation with approved and partially disapproved suggest alternatives and substitute the CASAC AAMM Subcommittee was Arkansas’ 2006 303(d) submittal. language for your requested changes. Specifically, EPA approved Arkansas’ • held on March 25, 2008, to discuss the Describe any assumptions and associated monitoring issues (73 FR listing of 321 water body-pollutant provide any technical information and/ 11113). A proposed rule was published combinations, and associated priority or data that you used. May 20, 2008 (73 FR 29184). rankings. EPA took neither an approval • If you estimate potential costs or The technical documents discuss the or disapproval action on 36 waters burdens, explain how you arrived at specifications and rationale for a lead in listed for beryllium. EPA disapproved your estimate in sufficient detail to PM10 (Pb-PM10) Federal Reference Arkansas’ decisions not to list 79 water allow for it to be reproduced. Method (FRM) and criteria and testing body-pollutant combinations. EPA • Provide specific examples to procedures for either a lead in TSP (Pb- identified these additional water body illustrate your concerns, and suggest TSP) or Pb-PM10 Federal Equivalency pollutant-combinations along with alternatives. Method (FEM). The technical priority rankings for inclusion on the • Explain your views as clearly as documents will be available online at: 2006 Section 303(d) List. possible, avoiding the use of profanity http://www.epa.gov/ttn/amtic/ EPA is providing the public the or personal threats. casacinf.html. opportunity to review its final decisions • Make sure to submit your The EPA is soliciting advice and to add water body pollutant- comments by the comment period recommendations from the CASAC combinations to Arkansas’ 2006 Section deadline identified. AAMM Subcommittee by means of a 303(d) List, as required by EPA’s Public

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Participation regulations (40 CFR Part EPA disapproved Arkansas’ decisions operations to assist in developing these 25). EPA will consider public comments not to list 79 water body-pollutant proposed NPDES permits in a Federal and if necessary amend its final action combinations. EPA identified these Register Notice published June 21, 2007 on the additional water body pollutant- additional water body pollutant- (72 FR 32421). The majority of combinations identified for inclusion on combinations along with priority information and data in response to that Arkansas’ Final 2006 Section 303(d) rankings for inclusion on the 2006 notice came from seven different List. Section 303(d) List. EPA solicits public groups: Individual citizens, commercial DATES: Comments must be submitted in comment on its identification of 79 fishing representatives, commercial writing to EPA on or before July 17, additional water body-pollutant shipping groups, environmental or 2008. combinations for inclusion on Arkansas’ outdoor recreation groups, the oil and 2006 Section 303(d) List. gas industry, recreational boating- ADDRESSES: Comments on the decisions related businesses, and state should be sent to Diane Smith, Dated: June 6, 2008. Miguel I. Flores, governments. EPA considered all such Environmental Protection Specialist, resulting information and data along Water Quality Protection Division, U.S. Director, Water Quality Protection Division, Region 6. with other available information in Environmental Protection Agency developing the two proposed vessel [FR Doc. E8–13616 Filed 6–16–08; 8:45 am] Region 6, 1445 Ross Ave., Dallas, TX permits. 75202–2733, telephone (214) 665–2145, BILLING CODE 6560–50–P facsimile (214) 665–7373, or e-mail: DATES: Comments must be submitted on [email protected]. Oral comments or before August 1, 2008. will not be considered. Copies of the ENVIRONMENTAL PROTECTION ADDRESSES: Submit your comments, documents which explain the rationale AGENCY identified by Docket ID No. EPA–HQ– OW–2008–0055 for the VGP or Docket for EPA’s decisions and a list of the 79 [FRL–8580–9; EPA–HQ–OW–2008–0055 and water quality limited segments for EPA–HQ–OW–2008–0056] ID No. EPA–HQ–OW–2008–0056 for the which EPA disapproved Arkansas’ RGP, by one of the following methods: • decision not to list can be obtained at Draft National Pollutant Discharge http://www.regulations.gov: Follow EPA Region 6’s Web site at http:// Elimination System (NPDES) General the on-line instructions for submitting www.epa.gov/earth1r6/6wq/tmdl.htm, Permits for Discharges Incidental to comments. • E-mail: [email protected]. or by writing or calling Ms. Smith at the the Normal Operation of a Vessel • above address. Underlying documents Mail: Original and three copies to: AGENCY: from the administrative record for these Environmental Protection Water Docket, Environmental Protection decisions are available for public Agency (EPA). Agency, Mail Code: 2822T, 1200 inspection at the above address. Please ACTION: Notice of proposed permit Pennsylvania Ave., NW., Washington, contact Ms. Smith to schedule an issuance and Notice of Public Hearing. DC 20460. • Hand Delivery: EPA Docket Center, inspection. SUMMARY: EPA Regions 1, 2, 3, 4, 5, 6, Public Reading Room, EPA FOR FURTHER INFORMATION CONTACT: 7, 8, 9, and 10 are proposing an NPDES Headquarters West Building, Room Diane Smith at (214) 665–2145. Vessel General Permit (VGP) to cover 3334, 1301 Constitution Ave., NW., SUPPLEMENTARY INFORMATION: Section discharges incidental to the normal Washington, DC 20460. Such deliveries 303(d) of the CWA requires that each operation of commercial vessels and are only accepted during the Docket’s state identify those waters for which recreational vessels greater than or equal normal hours of operation, and special existing technology-based pollution to 79 feet in length and an NPDES arrangements should be made for controls are not stringent enough to Recreational General Permit (RGP) to deliveries of boxed information. attain or maintain state water quality cover discharges incidental to the Instructions: A copy of the draft RGP standards. For those waters, states are normal operation of recreational vessels and VGP and their respective required to establish TMDLs according less than 79 feet in length. This action accompanying fact sheets are available to a priority ranking. is in response to a District Court ruling at http://www.epa.gov/npdes/vessels. EPA’s Water Quality Planning and that vacates, as of September 30, 2008, Direct your comments to Docket ID No. Management regulations include a long-standing EPA regulation that EPA–HQ–OW–2008–0055 for the VGP requirements related to the excludes discharges incidental to the and Docket ID No. EPA–HQ–OW–2008– implementation of Section 303(d) of the normal operation of a vessel from the 0056 for the RGP. EPA’s policy is that CWA (40 CFR 130.7). The regulations need to obtain an NPDES permit. Nw. public comments, whether submitted require states to identify water quality Envt’l Advocates et al. v. EPA, 2005 WL electronically or in paper, will be made limited waters still requiring TMDLs 756614 (N.D. Cal.). Although EPA has available for public viewing in EPA’s every two years. The list of waters still filed an appeal with the 9th Circuit electronic public docket as EPA receives needing TMDLs must also include Court of Appeals, as a practical matter, them and without change, unless the priority rankings and must identify the the Agency cannot simply await the comment contains copyrighted material, waters targeted for TMDL development outcome of that appeal. This is because CBI, or other information whose during the next two years (40 CFR if the District Court’s order remains disclosure is restricted by statute. When 130.7). unchanged, as of September 30, 2008, EPA identifies a comment containing Consistent with EPA’s regulations, discharges of pollutants incidental to copyrighted material, EPA will provide Arkansas submitted to EPA its listing the normal operation of a vessel that a reference to that material in the decisions under Section 303(d) on April had formerly been exempted from version of the comment that is placed in 28, 2008. On June 6, 2008, EPA NPDES permitting by the regulation will EPA’s electronic public docket. The approved Arkansas’ listing of 321 water be subject to the prohibition in CWA entire printed comment, including the body-pollutant combinations and section 301(a) against the discharge of copyrighted material, will be available associated priority rankings. EPA took pollutants without a permit. in the public docket. Do not submit neither an approval or disapproval EPA solicited information and data on information that you consider to be CBI action on 36 waters listed for beryllium. discharges incidental to normal vessel or otherwise protected through http://

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www.regulations.gov or e-mail. The DC 20460. Although all documents in electronically the specific information http://www.regulations.gov Web site is the docket are listed in an index, some contained in the disk or that you claim an ‘‘anonymous access’’ system, which information is not publicly available, is CBI. In addition to one complete means EPA will not know your identity i.e., CBI or other information whose version of the specific information or contact information unless you disclosure is restricted by statute. claimed as CBI, you must submit a copy provide it in the body of your comment. Publicly available docket materials are that does not contain the information If you send an e-mail comment directly available electronically through http:// claimed as CBI for inclusion in the to EPA without going through http:// www.regulations.gov and in hard copy public document. Information so www.regulations.gov your e-mail at the EPA Docket Center Public marked will not be disclosed except in address will be automatically captured Reading Room, open from 8:30 a.m. to accordance with procedures set forth in and included as part of the comment 4:30 p.m., Monday through Friday, 40 CFR Part 2. that is placed in the public docket and excluding legal holidays. The telephone 2. Tips for Preparing Your Comments. made available on the Internet. If you number for the Public Reading Room is When submitting comments, remember submit an electronic comment, EPA (202) 566–1744 and the telephone to: recommends that you include your number for the Water Docket is (202) • Identify the permit by docket name and other contact information in 566–2426. In addition, the comments number and other identifying the body of your comment and with any and information that EPA received in information (subject heading, Federal disk or CD–ROM you submit. If EPA response to its June 21, 2007, Federal Register date, and page number). cannot read your comment due to Register notice can be found in the • Follow directions—The agency may technical difficulties and cannot contact public docket at http:// ask you to respond to specific questions you for clarification, EPA may not be www.regulations.gov by searching or organize comments by referencing a able to consider your comment. Docket ID No. EPA–HQ–OW–2007– section or part of the permit Electronic files should avoid the use of 0483. • Explain why you agree or disagree, special characters, any form of 2. Electronic Access. You may access suggest alternatives, and substitute encryption, and be free of any defects or this Federal Register document language for your requested changes. viruses. electronically through the EPA Internet • Describe any assumptions and FOR FURTHER INFORMATION CONTACT: For under the ‘‘Federal Register’’ listings at provide any technical information and/ further information on the proposed http://www.epa.gov/fedrgstr/. or data that you used. • commercial vessel NPDES general An electronic version of the public If you estimate potential costs or permit, including on how to obtain docket is available through the Federal burdens, explain how you arrived at copies of the draft general permit and Docket Management System (FDMS) your estimate in sufficient detail to fact sheet, contact Ryan Albert at EPA found at http://www.regulations.gov. allow for it to be reproduced. • Headquarters, Office of Water, Office of You may use the FDMS to submit or Provide specific examples to Wastewater Management, Mail Code view public comments, access the index illustrate your concerns, and suggest 4203M, 1200 Pennsylvania Ave., NW., listing of the contents of the official alternatives. • Washington, DC 20460; or at tel. 202– public docket, and to access those Explain your views as clearly as documents in the public docket that are possible 564–0763; or e-mail: • [email protected]. For available electronically. Once at the Make sure to submit your further information on the proposed Web site, enter the appropriate Docket comments by the comment period recreational vessel NPDES general ID No. in the ‘‘Search’’ box to view the deadline identified. permit, including on how to obtain docket. C. How and To Whom Do I Submit Certain types of information will not copies of the draft general permit and Comments? fact sheet, contact Juhi Saxena at EPA be placed in the EPA dockets. Headquarters, Office of Water, Office of Information claimed as CBI and other The opportunity to raise issues and Wastewater Management, Mail Code information whose disclosure is provide information on these general 4203M, 1200 Pennsylvania Ave., NW., restricted by statute, which is not permits is during the public comment Washington, DC 20460; or at tel. 202– included in the official public docket, period (see 40 CFR 124.13 for more 564–0719; or e-mail: will not be available for public viewing information). You may submit [email protected]. in EPA’s electronic public docket. EPA comments electronically, by mail, or policy is that copyrighted material will through hand delivery/courier. To SUPPLEMENTARY INFORMATION: not be placed in EPA’s electronic public ensure proper receipt by EPA, identify I. General Information docket but will be available only in the appropriate docket identification printed, paper form in the official public number in the subject line on the first A. How Can I Get Copies of These docket. Although not all docket page of your comment. To ensure that Documents and Other Related materials may be available EPA can read, understand, and therefore Information? electronically, you may still access any properly respond to comments, the 1. Docket. EPA has established an of the publicly available docket Agency would prefer that commenters official public docket for this action materials through the docket facility cite, where possible, the paragraph(s) or under Docket ID No. EPA–HQ–OW– identified in section I.A.1. section in the fact sheet or permit to 2008–0055 for the VGP and Docket ID which each comment refers. Please No. EPA–HQ–OW–2008–0056 for the B. What Should I Consider as I Prepare ensure that your comments are RGP. The official public docket is the My Comments for EPA? submitted within the specified comment collection of materials, including the 1. Submitting CBI. Do not submit this period. Comments received after the administrative record for the draft information to EPA through close of the comment period will be permit required by 40 CFR 124.9, that is regulations.gov or e-mail. Clearly mark marked ‘‘late.’’ EPA is not required to available for public viewing at the Water all of the information that you claim to consider these late comments. Docket in the EPA Docket Center (EPA/ be CBI. For CBI information on EPA seeks comment on all aspects of DC), EPA West, Room 3334, 1301 computer disks mailed to EPA, mark the the two proposed general permits and Constitution Ave., NW., Washington, surface of the disk as CBI. Also identify the accompanying fact sheets. In

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particular, EPA is soliciting comments Coasts. EPA does not have credible data cruise ship population of 143 vessels, 30 on the following specific aspects of the or analyses as to whether the practice vessels are certified to operate in VGP (for more detail on each element for vessels engaged in Pacific coastwise Alaskan waters and thus are already see the Permit Fact Sheet): trade would mitigate or increase the risk equipped to treat graywater or hold • Whether uses of for the spread of aquatic nuisance sufficient quantities that they would be Tetrachloroethylene (TCE) other than species (ANS) on the Atlantic or Gulf able to avoid discharging in nutrient dry cleaning should be explicitly Coasts. Note that the proposed permit impaired waters. EPA separately included or excluded from permit would require that all vessels that leave estimates that approximately 57 vessels coverage. EPA is also interested in the U.S. Exclusive Economic Zone have advanced wastewater treatment comments on the frequency and nature (EEZ), travel more than 200 nm from systems (which likely includes most or of the use of TCE-containing products any shore, and will discharge to waters all of the vessels certified to operate in on vessels. (TCE discharges associated subject to this permit must complete a Alaskan waters), some to many of which with dry-cleaning activities on vessels Ballast Water Exchange and all such are already equipped to treat graywater are not proposed to be eligible for vessels with unpumpable ballast water (or hold sufficient quantities that they coverage because they are not and residual sediment must conduct would be able to avoid discharging in considered to be incidental to the Mandatory Saltwater Flushing. nutrient impaired waters or within 1 nm • normal operation of a vessel.) Whether the questions developed of shore). This leaves a range of 86 to • The approach for requiring NOIs for for a one-time report are appropriate 113 large cruise ships that do not commercial vessels. and whether alternative or • currently treat graywater and might Whether the permit should supplemental questions should be have to install treatment to avoid establish numeric discharge limits for considered. (The proposed permit discharging untreated greywater in discharges incidental to the normal requires owner/operators to submit a nutrient impaired waters, EPA estimates operation of a vessel for which the one-time report that contains basic that 30 of these vessels would actually proposed permit would solely impose information about the vessel after the need to install graywater treatment Best Management Practices (BMPs). 30th month of permit coverage). systems to allow discharge of graywater (The proposed permit establishes • Whether the proposed operational in nutrient-impaired waters. EPA numeric discharge limits for graywater limits for large cruise ships are believes that cruise ship operators could from Cruise Ships, oily discharges, appropriate and whether the discharge arrange their schedules and itineraries including oily mixtures, and residual standards proposed for within 1 nm of such that the remaining 56 to 83 vessels biocide limits from vessels utilizing any shore should be extended to 3 nm could avoid operating in nutrient experimental ballast water treatment from any shore, regardless of the speed impaired waters for prolonged periods standards; for the remainder of the of the vessel. (For large cruise ships, the or avoid itineraries that would require discharges incidental to the normal proposed permit would prohibit the them to stay within 1 nm of shore for operation of vessels, the proposed discharge of graywater within 1 nautical prolonged periods. Based on permit imposes BMPs, based on EPA’s mile of shore unless the graywater has information previously gathered for conclusion that numeric effluent been treated to treatment standards in Alaskan cruise ships, EPA estimates that limitations are not feasible for vessel part 5.2.1.1.2 of the proposed permit. the annualized cost for installing and discharges in this permit iteration.) EPA The proposed permit would also require operating such treatment is $7.09 per requests that if commenters provide the discharge to either meet the effluent passenger/crew berth per season. EPA suggested numeric limits, that they limits outlined in this proposed permit further estimates that the average should also provide any supporting data under Part 5.2.1.1.2 or be discharged capacity of large cruise ships is 3,211 that identifies technologies or BMPs are while the vessel is moving at least 6 available to meet these limits, and if knots for discharges between 1 nm and passengers and crew members. EPA these limits are more stringent than 3 nm of shore). thus estimates an average annualized requirements of this permit, provide the • Whether the proposed prohibition cost of installing graywater treatment of costs and non-water quality impacts of on discharges of untreated graywater $22,766 per vessel, or about $683,000 setting those limits, and any other within 1 nm of shore for large and per year for 30 vessels. (See Section relevant information that would be medium cruise ships, and into nutrient- 3.6.1 on p 70 of the Economic and helpful in setting these limits. impaired waters such as the Chesapeake Benefits Analysis for further details.) • Whether EPA should limit Bay and Puget Sound for large cruise EPA requests comment on all of these discharges of bilgewater in embayments ships, is appropriate and whether EPA’s estimates. If commenters disagree with such as the Chesapeake Bay for large economic analyses are accurate. EPA any of these estimates, EPA requests any vessels that regularly leave waters estimates that most to all large and available data that could form the basis subject to this permit. medium cruise ships have sufficient of revised estimates. • Whether the requirement of graywater holding capacity to avoid • Whether large ferries should be mandatory saltwater flushing for all discharging graywater within 1 nm of subject to additional graywater vessels with unpumpable ballast water shore and so estimates no incremental treatment standards similar to those and residual sediment which sail more costs for complying with this proposed for medium and large cruise than 200 nm (nautical mile) from any requirement. EPA further estimates that ships. shore is appropriate. some vessels will be able to hold EPA is also particularly interested in • Whether Ballast Water Exchange graywater so that they do not have to comments on the following aspects of requirements similar to those proposed discharge that graywater into nutrient the RGP (for more detail on each for Pacific near shore voyages should be impaired waters. Those large cruise element see the Permit Fact Sheet): applicable for vessels engaged in ships that do not have sufficient holding • The approach to not require NOIs coastwise trade on the Atlantic or Gulf capacity and do not have the ability to for recreational boats and Coasts that will discharge to waters treat graywater to secondary standards recommendations (and rationale subject to this permit. There are several may have to install advanced supporting them) where commenters fundamental differences between the wastewater treatment systems. EPA favor NOI submittal for recreational Pacific Coasts and the Atlantic and Gulf further estimates that of the total large boaters.

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• Whether the permit should requirements of the VGP and RGP and H. Who Are the EPA Regional Contacts establish numeric discharge limits for the basis for those requirements, as well for This Proposed Permit? discharges incidental to the normal as to answer questions concerning the For EPA Region 1, contact Sara Green operation of a vessel for which the proposed permits. At these meetings, at USEPA REGION 1, 1 Congress Street proposed permit would solely require any person may provide written or oral Suite 1100, Mail Code: CIP, Boston, MA BMPs. (The proposed permit establishes statements and data pertaining to the 02114–2023; or at tel.: (617) 918–1574; one numeric effluent limit in the form proposed permits. The date, time and or e-mail at [email protected]. of a zero discharge standard for leaching location of the public meetings are as For EPA Region 2, contact James of tribulyl tin from vessel hulls, a follows: Olander at USEPA REGION 2, 290 second numeric effluent limit for • Washington, DC: Thursday, June 19, Broadway, New York, NY 10007–1866; graywater discharges from Cruise ships 2008, at the EPA East Building, Room or at tel.: (212) 637–3833; or e-mail at when they discharge in certain waters, 1153, 1301 Constitution Ave., NW., [email protected]. and a third for residual biocides from Washington, DC 20004, from 8 a.m. to For EPA Region 3, contact Mark experimental ballast water treatment 4:30 p.m. Smith at USEPA REGION 3, 1650 Arch systems. EPA requests that if • Portland, Oregon: Tuesday, June 24, Street, Mail Code: 3WP41, Philadelphia, commenters provide suggested numeric 2008, at the Red Lion Hotel-Portland PA 19103–2029; or at tel.: (215) 814– limits, that they should also provide any Convention Center, 1021 NE Grand 3105; or e-mail at [email protected]. supporting data that identifies Ave., Portland, OR 97232, from 8 a.m. For EPA Region 4, contact Marshall technologies or BMPs available to meet to 4:30 p.m. If you require overnight Hyatt at USEPA REGION 4, 61 Forsyth these limits, and if these limits are more accommodations, contact the hotel Street, SW., Atlanta, GA 30303–8960; or stringent than requirements of this directly to make reservations at Tel: at tel.: (404) 562–9304; or e-mail at permit, provide the costs and non-water 503–235–2100. [email protected]. quality impacts of setting those limits, • Chicago, Illinois: Thursday, June For EPA Region 5, contact Sean and any other relevant information that 26, 2008, at the Avenue Hotel, 160 E. Ramach at USEPA REGION 5, 77 West would be helpful in setting these limits. Huron Street, Chicago, IL, 60611, from Jackson Boulevard, Mail Code: WN–16J, • Whether any of the BMPs listed 8 a.m. to 4:30 p.m. If you require Chicago, IL 60604–3507; or at tel.: (312) under the ‘Encouraged Best overnight accommodations, contact the 886–5284; or e-mail at Management Practices’ Section should [email protected]. be made mandatory under this permit or hotel directly at Tel: 877–AVE–5110. EPA encourages interested and For EPA Region 6, contact J. Scott completely removed as an encouraged Wilson at USEPA REGION 6, 1445 Ross practice. potentially affected stakeholders to attend one of the scheduled public Avenue, Suite 1200, Mail Code: 6WQPP, D. Public Hearing meetings and provide oral or written Dallas, TX 75202–2733; or at tel.: (214) Because EPA anticipates a significant comments. These meetings are open to 665–7511; or e-mail at degree of public interest in these draft the public. Please note that the public [email protected]. permits, EPA will hold a public hearing meeting may close early if all business For EPA Region 7, contact Alex Monday, July 21, 2008, to receive public is finished. Oral or written comments Owutaka at USEPA REGION 7, 901 comment and answer questions received at the public meeting will be North Fifth Street, Mail Code: concerning the proposed permits. The entered into the Docket. If you are WWPDWIMB, Kansas City, KS 66101; or hearing will be held at EPA East unable to attend, you may submit at tel: (913) 551–7584; or e-mail at Building, Room 1153, 1201 Constitution comments to the EPA Water Docket at [email protected]. For EPA Region 8, contact Sandy Ave., NW., Washington, DC 20004, from the address listed under ADDRESSES. Stavnes, at USEPA REGION 8, 1595 8 a.m. to 4:30 p.m. EST. Any person F. Web Casts Wynkoop St., Mail Code: 8P–W–WW, may provide written or oral statements Denver, CO 80202–1129; or at tel: (303) and data pertaining to the proposed EPA has scheduled a Web cast to 312–6117; or e-mail at permits at the public hearing. provide information on the proposed [email protected]. Depending on the number of persons permits and to answer questions for For EPA Region 9, contact Eugene who desire to make an oral statement, interested parties that are unable to Bromley at USEPA REGION 9, 75 EPA may impose limits on the time attend the public meetings or hearing. Hawthorne Street, Mail Code: WTR–5, allowed for oral statements, which may The Web cast will be broadcast on July San Francisco, CA 94105; or at tel.: result in the full statement not being 2, 2008, from 12 p.m. to 1:30 p.m. ET. (415) 972–3510; or e-mail at heard. Therefore, EPA recommends that For information on how to register and [email protected]. all those planning to present an oral attend the Web cast, see EPA’s Web site at http://www.epa.gov/npdes/training For EPA Region 10, contact Cindi statement also submit a written Godsey at USEPA Region 10—Alaska statement. Any person not making an approximately 2 weeks prior to the date of the scheduled Web cast. Operations Office, Federal Building oral statement may also submit a written Room 537, 222 West 7th Avenue #19 statement. G. Finalizing the Permits Mail Code: AOO/A, Anchorage, AK E. Public Meetings After the close of the public comment 99513–7588; or at tel.: (907) 271–6561; EPA and the U.S. Coast Guard are co- period, EPA will issue final permit or e-mail at [email protected]. hosting three (3) public meetings. The decisions. These decisions will not be II. Statutory and Regulatory History U.S. Coast Guard has vast experience in made until after all public comments researching, evaluating and regulating have been considered and appropriate A. The Clean Water Act ballast water discharges, as well as changes made to the permits. EPA’s Section 301(a) of the Clean Water Act expert knowledge of other discharges response to comments received will be (CWA) provides that ‘‘the discharge of related to the normal operation of a included in the docket as part of the any pollutant by any person shall be vessel directly relevant to EPA’s final permit decisions. For a discussion unlawful’’ unless the discharge is in proposed vessel permits. The focus of of the timing of permit finalization, see compliance with certain other sections each meeting is to present the proposed section III.E of this notice below. of the Act. 33 U.S.C. 1311(a). The CWA

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defines ‘‘discharge of a pollutant’’ as to the bed of the ocean, contiguous zone or 122.3(a) exclusion. EPA further ‘‘(A) any addition of any pollutant to waters of the United States for the purpose explained that Congress had expressly navigable waters from any point source, of mineral or oil exploration or development. considered and accepted the Agency’s (B) any addition of any pollutant to the 40 CFR 122.3(a). regulation in the years since its waters of the contiguous zone or the Although other subsections of 40 CFR promulgation, and that Congress chose ocean from any point source other than 122.3 and its predecessor were the to regulate discharges incidental to the a vessel or other floating craft.’’ 33 subject of legal challenges (See NRDC v. normal operation of vessels through U.S.C. 1362(12). A ‘‘point source’’ is a Costle, 568 F.2d 1369 (D.C. Cir. 1977)), programs other than CWA section 402 ‘‘discernible, confined and discrete following its promulgation, the permitting. Thus, it was EPA’s conveyance’’ and includes a ‘‘vessel or regulatory text relevant to discharges understanding that Congress had other floating craft.’’ 33 U.S.C. 1362(14). incidental to the normal operation of acquiesced to EPA’s long-standing The term ‘‘pollutant’’ includes, among vessels went unchallenged, and has interpretation of how the CWA applied other things, ‘‘garbage * * * chemical been in effect ever since. to vessels. Denial of the petition did not wastes * * * and industrial, municipal, C. The Legal Challenge reflect EPA’s dismissal of the significant and agricultural waste discharged into impacts of aquatic invasive species, but water.’’ The Act’s definition of In December 2003, the long-standing rather the understanding that other ‘‘pollutant’’ specifically excludes exclusion of discharges incidental to the programs had been enacted to ‘‘sewage from vessels or a discharge normal operation of vessels from the specifically address the issue and that incidental to the normal operation of a NPDES program became the subject of a the CWA does not currently provide an lawsuit in the U.S. District Court for the vessel of the Armed Forces’’ as defined appropriate framework for addressing Northern District of California. The in Clean Water Act section 312. 33 ballast water and other discharges lawsuit arose from a January 13, 1999, U.S.C. 1362(6). One way a person may incidental to the normal operation of rulemaking petition submitted to EPA discharge a pollutant without violating non-military vessels. by a number of parties concerned about the section 301 prohibition is by In the denial of the petition, EPA obtaining a section 402 National the effects of ballast water discharges. The petition asked the Agency to repeal noted that when Congress specifically Pollutant Discharge Elimination System focused on the problem of aquatic (NPDES) permit (33 U.S.C. 1342). Under its regulation at 40 CFR 122.3(a) that excludes certain discharges incidental nuisance species in ballast water, it did section 402(a), EPA may ‘‘issue a permit to the normal operation of vessels from not look to or endorse the NPDES for the discharge of any pollutant, or the requirement to obtain an NPDES program as the means to address the combination of pollutants, permit. The petition asserted that problem. Instead, Congress enacted new notwithstanding section 1311(a)’’ upon vessels are ‘‘point sources’’ requiring statutes which directed and authorized certain conditions required by the Act. NPDES permits for discharges to U.S. the Coast Guard, rather than EPA, to B. The History of the Exclusion of waters; that EPA lacks authority to establish a regulatory program for Vessels From the NPDES Program exclude point source discharges from discharges incidental to the normal vessels from the NPDES program; that operation of vessels, including ballast Less than one year after the CWA was water (i.e., Nonindigenous Aquatic enacted, EPA promulgated a regulation ballast water must be regulated under the NPDES program because it contains Nuisance Prevention and Control Act as that excluded discharges incidental to amended, 16 U.S.C. 4701 et seq.; Act to the normal operation of vessels from invasive plant and animal species as well as other materials of concern (e.g., Prevent Pollution from Ships, 33 U.S.C. NPDES permitting. 38 FR 13528, May 1901 et seq.). Furthermore, Congress 22, 1973. After Congress re-authorized oil, chipped paint, sediment and toxins in ballast water sediment); and that made no effort to legislatively repeal and amended the CWA in 1977, EPA EPA’s interpretation of the NPDES invited another round of public enactment of CWA section 312(n) (Uniform National Discharge Standards, program or to expressly mandate that comment on the regulation. 43 FR discharges incidental to the normal 37078, August 21, 1978. In 1979, EPA also known as the UNDS program) demonstrated Congress’ rejection of the operation of vessels be addressed promulgated the final revision that through the NPDES permitting program. established the regulation largely in its exclusion. In response to the 1999 petition, EPA EPA reasoned that this Congressional current form. 44 FR 32854, June 7, 1979. first prepared a detailed report for action and inaction in light of Congress’ The current regulation identifies several public comment, Aquatic Nuisance awareness of the regulatory exclusion types of vessel discharges as being Species in Ballast Water Discharges: confirmed that Congress accepted EPA’s subject to NPDES permitting, but Issues and Options (September 10, interpretation and chose the Coast specifically excludes discharges 2001). See, 66 FR 49381, September 27, Guard as the lead agency under other incidental to the normal operation of a 2001. After considering the comments statutes. vessel. received, EPA declined to reopen the In addition, EPA found significant The following discharges do not require exclusion for additional rulemaking, practical and policy reasons not to re- NPDES permits: and denied the petition on September 2, open the longstanding CWA regulatory (a) Any discharge of sewage from vessels, 2003. EPA explained that since exclusion, reasoning that there are a effluent from properly functioning marine engines, laundry, shower, and galley sink enactment of the CWA, EPA has number of ongoing activities within the wastes or any other discharge incidental to consistently interpreted the Act to Federal government related to control of the normal operation of a vessel. This provide for NPDES regulation of invasive species in ballast water, many exclusion does not apply to rubbish, trash, discharges from industrial operations of which are likely to be more effective garbage, or other such materials discharged that incidentally occur onboard vessels and efficient than use of NPDES permits overboard; nor to other discharges when the (e.g., seafood processing facilities or oil under the CWA. EPA also noted that vessel is operating in a capacity other than exploration operations at sea) and of nothing in the CWA prevents states as a means of transportation such as when used as an energy or mining facility, a storage discharges overboard of materials such from independently regulating ballast facility or a seafood processing facility, or as trash, but not of discharges incidental water discharges under State law, when secured to a storage facility or a to the normal operation of a vessel (e.g., should they choose to do so, pursuant seafood processing facility, or when secured ballast water) subject to the 40 CFR to CWA section 510.

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After EPA’s September 2003 denial of contained in the docket accompanying charter-fishing vessels engaging in hook- the petition, a number of groups filed a these proposed permits and fact sheets. and-line fishing, and personal watercraft complaint in the U.S. District Court for If the 9th Circuit reverses or otherwise for hire. For purposes of the RGP, the Northern District of California. Nw. modifies the District Court’s decision on vessels that are not considered ‘‘un- Envt’l Advocates et al. v. EPA, 2005 WL appeal, this proposed permit or any inspected passenger vessels’’ and are 756614 (N.D. Cal.). The complaint was final permit may be terminated, not covered by this permit include, but brought pursuant to the Administrative reopened, or modified, as appropriate. are not limited to, commercial fishing Procedure Act (APA), 5 U.S.C. 701 et vessels, commercial ferries, tug boats, III. Scope and Applicability of the 2008 seq., and set out two causes of action. freighters, water taxis, and small cruise VGP and RGP First, the complaint challenged EPA’s ships. These vessels are covered by the promulgation of 40 CFR 122.3(a), an A. Geographic Coverage of VGP and VGP. action the Agency took in 1973. The RGP C. Summary of VGP Terms and second cause of action challenged EPA’s The proposed VGP and RGP apply to Requirements September 2003 denial of their petition discharges incidental to the normal to repeal the Sec. 122.3(a) exclusion. The proposed VGP addresses 28 operation of a vessel identified as being potential vessel discharge streams by D. District Court Decision eligible for coverage in the proposed establishing effluent limits, including permits, into waters subject to the Best Management Practices (BMPs) to In March 2005, the Court determined permits. These waters are ‘‘waters of the that the exclusion exceeded the control the discharge of the waste United States’’ as defined in 40 CFR streams and constituents found in those Agency’s authority under the CWA. 122.2 (extending to the reach of the 3- Specifically, in March 2005 the Court waste streams. The discharge streams mile territorial seas as defined in section eligible for coverage under this granted summary judgment to the 502(8) of the CWA). The draft general plaintiffs: proposed permit are: ballast water, deck permits would cover vessel discharges washdown and runoff, bilge water, anti- ‘‘The Court DECLARES that EPA’s in the waters of the U.S. in all states and fouling leachate from anti-fouling hull exclusion from NPDES permit requirements territories, regardless of whether a state coatings, aqueous film forming foam for discharges incidental to the normal is otherwise authorized to implement (AFFF), boiler/economizer blowdown, operation of a vessel at 40 CFR 122.3(a) is in the NPDES permit program within its cathodic protection, chain locker excess of the Agency’s authority under the jurisdiction. For more information on Clean Water Act * * * ’’. effluent, controllable pitch propeller this approach, see the fact sheets hydraulic fluid, distillation and reverse After this ruling, the Court granted accompanying the draft permits. osmosis brine, elevator pit effluent, motions to intervene on behalf of the B. Categories of Vessels Covered Under firemain systems, freshwater layup, gas Plaintiffs by the States of Illinois, New VGP and RGP turbine water wash, graywater, motor York, Michigan, Minnesota, gasoline and compensating discharge, Pennsylvania, and Wisconsin, and on The draft vessel general permit (VGP) non-oily machinery wastewater, behalf of the Government-Defendant by applies to owners and operators of refrigeration and air condensate the Shipping Industry Ballast Water commercial vessels and recreational discharge, rudder bearing lubrication Coalition. vessels that are greater than 79 feet discharge, seawater cooling overboard Following submission of briefs and (24.08 meters) in length. The discharge, seawater piping biofouling oral argument by the parties and recreational vessel permit (RGP) applies prevention, small boat engine wet interveners on the issue of a proper to all recreational vessels and un- exhaust, stern tube oily discharge, sonar remedy, the Court issued a final order inspected passenger vessels that are less dome discharge, underwater ship in September 2006 providing that: than 79 feet in length, measured from husbandry, welldeck discharges, bow to stern, excluding any attachments graywater mixed with sewage from ‘‘The blanket exemption for discharges or extensions. Recreational vessels are incidental to the normal operation of a vessels, and exhaust gas scrubber wash vessel, contained in 40 CFR 122.3(a), shall be vessels manufactured or operated water discharge. vacated as of September 30, 2008.’’ primarily for pleasure or leased, rented, For each discharge type, the permit or chartered to another for the latter’s establishes effluent limits pertaining to This means that, effective September pleasure (46 United State Code (U.S.C.) the constituents found in the effluent 30, 2008 (and assuming the order is not 2101(25)). Recreational vessels include, and BMPs designed to decrease the overturned or altered on appeal), but are not limited to, motorboats, amount of constituents entering the discharges incidental to the normal sailboats, recreational fishing boats, waste stream. A vessel might not operation of vessels currently excluded personal watercraft, rowboats, canoes, produce all of these discharges, but a from NPDES permitting by that and kayaks. Vessel owner/operators vessel owner or operator is responsible regulation, will become subject to CWA must only comply with the provisions for meeting the applicable effluent section 301’s prohibition against of the permit that are applicable to limits and complying with all the discharging, unless covered under an them. For instance, non-motorized effluent limits for every listed discharge NPDES permit. The CWA authorizes vessels do not need to do any BMPs for that the vessel produces. civil and criminal enforcement for fuel control, or the discharge of oil, violations of that prohibition and also including oily mixtures. This permit Discharge Authorization Timeframe allows for citizen suits against violators. (RGP) also applies to un-inspected To obtain authorization, the owner or Because the Government respectfully passenger vessels that are less than 79 operator of a vessel that is either 300 or disagrees with the District Court’s feet in length, measured from bow to more gross registered tons or has the decision, on November 16, 2006, EPA stern, excluding any attachments or capacity to hold or discharge more than filed an appeal in the U.S. Court of extensions, whose operation is 8 cubic meters (2113 gallons) of ballast Appeals for the Ninth Circuit. Oral substantially similar to that of a water is required to submit a Notice of argument was held on August 14, 2007, recreational vessel of less than 79 feet in Intent (NOI) to receive permit coverage, and a decision is pending. Additional length. For purposes of this permit, beginning six months after the permit’s material related to the lawsuit is these vessels include sailboats for-hire, issuance date, but no later than nine

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months after the permit’s issuance date. recreational vessels include anti-fouling The legal question of whether a For vessels that were delivered to the hull leachate, deck washdown and general permit (as opposed to an owner or operator no later than 9 runoff, graywater, engine cooling water, individual permit) qualifies as a ‘‘rule’’ months after the permit’s issuance date, and bilge water. Constituents found in or as an ‘‘adjudication’’ under the the vessel will receive permit coverage these discharge streams include aquatic Administrative Procedure Act (APA) on the date that EPA receives the nuisance species (ANS), oil and oily has been the subject of periodic complete NOI. Vessels that are delivered mixtures, nutrients, metals and toxins, litigation. In a recent case, the court after that date will receive permit and pathogens. The RGP is a much held that the CWA Section 404 coverage 30 days after EPA receives the simpler permit than the VGP and Nationwide general permit before the complete NOI. primarily includes BMPs designed to court did qualify as a ‘‘rule’’ and Vessels that meet the applicable minimize the amount of any discharge therefore that the issuance of the general eligibility requirements for permit produced as well as reduce the permit needed to comply with the coverage but are not required to submit likelihood the discharge will enter a applicable legal requirements for the an NOI, including vessels less than 300 waterbody. In addition to required issuance of a ‘‘rule.’’ National Ass’n of gross registered tons with no more than BMPs, the permit includes a section of Home Builders v. U.S. Army Corps of 8 cubic meters of ballast water capacity encouraged BMPs. These are Engineers, 417 F.3d 1272, 1284–85 (DC and recreational vessels subject to the recommended practices which can Cir.2005) (Army Corps general permits RGP, will be automatically authorized further reduce pollution from vessel under section 404 of the Clean Water by the proposed permits to discharge discharges. Act are rules under the APA and the according to the permit requirements. The RGP does not require the vessel Regulatory Flexibility Act; ‘‘Each NWP [nationwide permit] easily fits within Monitoring and Reporting owner or operator to submit an NOI to receive permit coverage. As long as the the APA’s definition ‘rule.’. . . As such, The VGP requires routine self- vessel owner or operator has met the each NWP constitutes a rule . . .’’). inspection and monitoring of all areas of eligibility requirements found in the As EPA stated in 1998, ‘‘the Agency the vessel that the permit addresses. The recognizes that the question of the permit and discharges in accordance routine self-inspection must be applicability of the APA, and thus the with the applicable terms of the permit, documented in the ship’s logbook. RFA, to the issuance of a general permit the eligible discharges are authorized. Analytical monitoring is required for is a difficult one, given the fact that a certain types of vessels. The VGP also E. Timing of Permit Finalization large number of dischargers may choose requires comprehensive annual vessel to use the general permit.’’ 63 FR 36489, As discussed above, if the Northern inspections, to ensure even the hard-to- 36497 (July 6, 1998). At that time, EPA reach areas of the vessel are inspected District of California’s order remains ‘‘reviewed its previous NPDES general for permit compliance. If the vessel is unchanged, the exclusion from NPDES permitting actions and related placed in dry dock while covered under permitting for discharges incidental to statements in the Federal Register or this permit, a dry dock inspection and the normal operation of a vessel will be elsewhere,’’ and stated that ‘‘[t]his report must be completed. Additional vacated as of September 30, 2008, which review suggests that the Agency has monitoring requirements are imposed is approximately three and a half generally treated NPDES general permits on certain classes of vessels, based on months from today’s notice seeking effectively as rules, though at times it unique characteristics not shared by public comment on the draft permits. has given contrary indications as to other vessels covered under the VGP. Even for non-controversial and whether these actions are rules or straightforward permits, it normally permits.’’ Id. at 36496. Based on EPA’s Vessel Type-Specific Requirements takes the Agency significantly more further legal analysis of the issue, the The permit imposes additional time than that to complete all of the Agency ‘‘concluded, as set forth in the requirements for 8 specific types of tasks required to finalize a draft general proposal, that NPDES general permits vessels which have unique permit, such as considering and are permits [i.e., adjudications] under characteristics resulting in discharges responding to public comment, the APA and thus not subject to APA not shared by other types of vessels. completing Coastal Zone Management rulemaking requirements or the RFA.’’ These vessel types are medium cruise Act consistency determinations, and Id. Accordingly, the Agency stated that ships, large cruise ships, large ferries, completing the Clean Water Act section ‘‘the APA’s rulemaking requirements are barges, oil or petroleum tankers, 401 certification process. Although EPA inapplicable to issuance of such research vessels, rescue boats, and expects significant public interest and permits,’’ and thus ‘‘NPDES permitting vessels employing experimental ballast comment on today’s proposed permits, is not subject to the requirement to water treatment systems. The permit EPA will make every effort to finalize publish a general notice of proposed requirements are designed to address today’s permits by the date of vacatur. rulemaking under the APA or any other the discharges from features unique to IV. Regulatory Flexibility Act law * * * [and] it is not subject to the those vessels, such as parking decks on RFA.’’ Id. at 36497. ferries and overnight accommodations The Regulatory Flexibility Act (RFA) However, the Agency went on to for passengers on cruise ships. generally requires an agency to prepare explain that, even though EPA had a regulatory flexibility analysis of any concluded that it was not legally D. Summary of RGP Permit Terms and rule subject to notice and comment required to do so, the Agency would Requirements rulemaking requirements under the voluntarily perform the RFA’s small- The RGP addresses a smaller range of Administrative Procedure Act or any entity impact analysis. Id. EPA discharges than the VGP, because other statute unless the agency certifies explained the strong public interest in recreational vessels produce different that the rule will not have a significant the Agency following the RFA’s types of discharges that are fewer in economic impact on a substantial requirements on a voluntary basis: number and variety than the discharges number of small entities. Small entities ‘‘[The notice and comment] process also from commercial and large recreational include small businesses, small provides an opportunity for EPA to vessels covered under the VGP. organizations, and small governmental consider the potential impact of general Discharges most likely to occur from jurisdictions. permit terms on small entities and how

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to craft the permit to avoid any undue future issuance of other NPDES general assumptions and from $53 to $1,598 in burden on small entities.’’ Id. permits. EPA anticipates that for most the high end assumptions. EPA applied Accordingly, with respect to the NPDES general permits the Agency will be able a cost-to-revenue test which calculates permit that EPA was addressing in that to conclude that there is not a annualized pre-tax compliance cost as a Federal Register notice, EPA stated that significant economic impact on a percentage of total revenues and used a ‘‘the Agency has considered and substantial number of small entities. In threshold of 1 and 3 percent to identify addressed the potential impact of the such cases, the requirements of the RFA entities that would be significantly general permit on small entities in a framework are fulfilled by including a impacted as a result of this Permit. The manner that would meet the statement to this effect in the permit fact total number of entities expected to requirements of the RFA if it applied.’’ sheet, along with a statement providing exceed a 1% cost ratio ranges from 285 Id. the factual basis for the conclusion. A under low cost assumptions to 389 Subsequent to EPA’s conclusion in quantitative analysis of impacts would under high cost assumptions. Of this 1998 that general permits are only be required for permits that may universe, the total number of entities adjudications, rather than rules, as affect a substantial number of small expected to exceed a 3% cost ratio noted above, the DC Circuit recently entities, consistent with EPA guidance 1 ranges from 71 under low cost held that nationwide general permits regarding RFA certification . assumptions to 76 under high cost under section 404 are ‘‘rules’’ rather V. Analysis of Economic Impacts of assumptions. The total domestic flagged than ‘‘adjudications.’’ Thus, this legal VGP and RGP vessel universe that would be affected question remains ‘‘a difficult one’’ by this permit includes approximately (supra). However, EPA continues to EPA determined that, in consideration 91,000 vessels. Accordingly, EPA believe that there is a strong public of the discussion in Section IV above, concludes that this permit is unlikely to policy interest in EPA applying the the issuance of the VGP and RGP may RFA’s framework and requirements to have the potential to affect a substantial result in a significant economic impact the Agency’s evaluation and number of small entities. Therefore, in on any businesses and in particular, consideration of the nature and extent of order to determine what, if any, small businesses. The economic any economic impacts that a CWA economic impact these permits may analyses are available in the record for general permit could have on small have on small businesses, EPA these permits. entities (e.g., small businesses). In this conducted an economic assessment of Authority: Clean Water Act, 33 U.S.C. 1251 regard, EPA believes that the Agency’s these general permits. This economic et seq. evaluation of the potential economic analysis is included in the records for Dated: June 9, 2008. impact that a general permit would have these permits. Based on this assessment, on small entities, consistent with the EPA concludes that despite a minimal Ira Leighton, RFA framework discussed below, is economic impact on all entities, Acting Regional Administrator, EPA, relevant to, and an essential component including small businesses, these Region 1. of, the Agency’s assessment of whether permits are not likely to have a Dated: June 10, 2008. a CWA general permit would place significant economic impact on a Kevin Bricke, requirements on dischargers that are substantial number of small entities. For appropriate and reasonable. the RGP, the total annual estimated Acting Director, Division of Environmental Furthermore, EPA believes that the compliance cost per permittee ranges Planning and Protection, EPA, Region 2. RFA’s framework and requirements from $8.79 to $25.99 per year for Dated: June 10, 2008. provide the Agency with the best motorboats, $5.39 to $22.59 for Carl-Axel P. Soderberg, approach for the Agency’s evaluation of sailboats, and $0.29 to $2.39 per year for the economic impact of general permits non-motorized small craft. Nationally, Division Director, Caribbean Environmental Protection Division, EPA, Region 2. on small entities. While using the RFA the draft economic impact analysis framework to inform its assessment of indicates that the RGP has an expected Dated: June 9, 2008. whether permit requirements are cost of $88.2 million annually. Jon M. Capacasa, appropriate and reasonable, EPA will Including the ballast water and other also continue to ensure that all permits Director, Water Protection Division, EPA discharge requirements, the draft Region 3. satisfy the requirements of the Clean economic impact analysis indicates that Water Act. the best management practices in the Dated: June 9, 2008. Accordingly, EPA has committed that VGP would cost between $5.6 million Jim Giattina, the Agency will operate in accordance and $19.1 million annually. Including Director, Water Management Division, EPA, with the RFA’s framework and paperwork requirements, the permit is Region 4. requirements during the Agency’s estimated to cost between $7.1 and issuance of CWA general permits (in $25.0 million annually. Dependent Dated: June 10, 2008. other words, the Agency commits that it upon sector, median costs per firm Tinka G. Hyde, will apply the RFA in its issuance of range from $4 to $795 in the low end Acting Director, Water Division, EPA, general permits as if those permits do Region 5. qualify as ‘‘rules’’ that are subject to the 1 EPA’s current guidance, entitled Final Guidance RFA). In satisfaction of this for EPA Rulewriters: Regulatory Flexibility Act as Dated: June 10, 2008. commitment, during the course of this Amended by the Small Business Regulatory William Honker, Enforcement and Fairness Act, was issued in VGP and RGP proceeding, the Agency November 2006 and is available on EPA’s Web site: Acting Director, Water Quality Protection conducted the analysis and made the http://www.epa.gov/sbrefa/documents/ Division, EPA, Region 6. appropriate determinations that are rfafinalguidance06.pdf. After considering the called for by the RFA. In addition, and Guidance and the purpose of CWA general permits, Dated: June 9, 2008. EPA concludes that general permits affecting less William A. Spratlin, in satisfaction of the Agency’s than 100 small entities do not have a significant commitment, EPA will apply the RFA’s economic impact on a substantial number of small Director, Water, Wetlands and Pesticides framework and requirements in any entities. Division, EPA, Region 7.

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Dated: June 10, 2008. become effective on July 17, 2008 if no FEDERAL MARITIME COMMISSION Stephen S. Tuber, timely and appropriate request for a [Docket No. 08–03] Assistant Regional Administrator, Office of hearing is received and the Regional Partnerships and Regulatory Assistance, EPA, Administrator does not elect to hold a Maher Terminal, LLC, v. The Port Region 8. hearing on his own motion, and if no Authority of New York and New Jersey; Dated: June 10, 2008. comments are received which cause Notice of Filing of Complaint and Alexis Strauss, EPA to modify its tentative approval. Assignment Director, Water Divsion, EPA, Region 9. ADDRESSES: Comments or a request for Notice is given that a complaint has Dated: June 11, 2008. a public hearing must be submitted to been filed with the Federal Maritime Michael Lidgard, the U.S. Environmental Protection Commission (‘‘Commission’’) by Maher Agency Region III, 1650 Arch Street, Terminal, LLC. Complainant asserts that Acting Director, Office of Water and it is a limited liability company Watersheds, EPA, Region 10. Philadelphia, PA 19103–2029. All documents relating to this registered in the State of Delaware with [FR Doc. E8–13615 Filed 6–16–08; 8:45 am] corporate offices and facilities located in BILLING CODE 6560–50–P determination are available for inspection between the hours of 8:00 Elizabeth, New Jersey. Complainant a.m. and 4:30 p.m., Monday through asserts that Respondent, The Port Authority of New York and New Jersey ENVIRONMENTAL PROTECTION Friday, at the following offices: (‘‘PANYNJ’’), is a body corporate and AGENCY • Drinking Water Branch, Water politic created by Compact between the [FRL–8580–7] Protection Division, U.S. Environmental States of New York and New Jersey and Protection Agency Region III, 1650 Arch with the consent of the Congress; has Notice of Tentative Approval and Street, Philadelphia, PA 19103–2029. offices located in New York, New York; Solicitation of Request for a Public • West Virginia Department of Health owns marine terminal facilities in the Hearing for Public Water System and Human Resources, Environmental New York-New Jersey area, including in Supervision Program Revisions for the Engineering Division, Capitol and Elizabeth, New Jersey; and is a marine State of West Virginia Washington Streets, 1 Davis Square, terminal operator within the meaning of the Shipping Act of 1984, as amended AGENCY: Environmental Protection Suite 200, Charleston, WV 25301–1798. (‘‘The Shipping Act’’). See 46 U.S.C. Agency (EPA). FOR FURTHER INFORMATION CONTACT: 40102(14). Complainant contends that ACTION: Notice of Tentative Approval Michelle Moustakas, Drinking Water Respondent violated sections 41102(c) and Solicitation of Requests for a Public Branch (3WP21) at the Philadelphia and 41106(2) and (3) of The Shipping Hearing. address given above; telephone (215) Act, respectively, by: (1) Failing to establish, observe and enforce just and SUMMARY: Notice is hereby given that 814–5741 or fax (215) 814–2318. the State of West Virginia is revising reasonable practices with respect to SUPPLEMENTARY INFORMATION: All Complainant; (2) giving undue or their Public Water Supply Supervision interested parties are invited to submit unreasonable preference or advantage to (PWSS) program to meet the written comments on this determination APMT and imposing undue or requirements of Section 1413 of the Safe and may request a public hearing. All unreasonable prejudice or disadvantage Drinking Water Act. West Virginia has comments will be considered, and, if with respect to Complainant; and (3) adopted regulations for the Long Term necessary, EPA will issue a response. unreasonably refusing to deal or 2 Enhanced Surface Water Treatment Frivolous or insubstantial requests for a negotiate with Complainant. 46 U.S.C. Rule (LT2) to improve public health hearing may be denied by the Regional 41102(c), 41106(2)–(3). protection through the control of Specifically, Complainant alleges that microbiological contaminants by Administrator. However, if a substantial request for a public hearing is made by Respondent’s lease agreement EP–248 targeting additional Cryptosporidium with APM Terminals North America, treatment requirements to higher risk July 17, 2008, a public hearing will be held. A request for public hearing shall Inc., formerly known as Maersk systems, and for the Stage 2 Disinfection Container Service Company, Inc. By-Products Rule (Stage 2) to reduce include the following: (1) The name, address, and telephone number of the (‘‘APMT’’), grants to APMT unduly and exposure to Disinfection By-Products unreasonably more favorable lease terms individual, organization, or other entity (DBP) by requiring systems to meet than Respondent provides to requesting a hearing; (2) a brief maximum contaminant levels as an Complainant in lease agreement EP– average at each compliance monitoring statement of the requesting person’s 249. These agreements, Complainant location, rather than as a system-wide interest in the Regional Administrator’s avers, are filed with the Commission as average, for two groups of DBPs, determination and of information that FMC Agreement Nos. 201106 and trihalomethanes (TTHM) and five the requesting person intends to submit 201131, respectively. Complainant haloacetic acids (HAA5). at such a hearing; and (3) the signature contends that the lease terms which EPA has determined that these of the individual making the request; or, disadvantage Complainant include, but revisions are no less stringent than the if the request is made on behalf of an are not limited to, the annual rental rate corresponding Federal regulations. organization or other entity, the per acre, investment requirements, Therefore, EPA has decided to signature of a responsible official of the throughput requirements, a first point of tentatively approve these program organization or other entity. rest requirement for automobiles, and revisions. All interested parties are Dated: June 5, 2008. the security deposit requirement. invited to submit written comments on Complainant asserts that it has this determination and may request a Donald S. Welsh, sustained injuries and damages, as a public hearing. Regional Administrator, Region III. result of Respondent’s actions, DATES: Comments or a request for a [FR Doc. E8–13614 Filed 6–16–08; 8:45 am] including but not limited to higher public hearing must be submitted by BILLING CODE 6560–50–P rents, costs, and other undue and July 17, 2008. This determination shall unreasonable payments and obligations

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amounting to a sum of millions of SUMMARY: The Department of Health and required by 42 CFR 83.12(e) of a dollars. Complainant requests that the Human Services (HHS) gives notice as decision to evaluate a petition to Commission require Respondent to: (1) required by 42 CFR 83.12(e) of a designate a class of employees for Answer the charges in the subject decision to evaluate a petition to General Steel Industries, Granite City, complaint; (2) cease and desist from the designate a class of employees for Los Illinois, to be included in the Special aforementioned violations of the Alamos National Laboratory, Los Exposure Cohort under the Energy Shipping Act; (3) provide to Alamos, New Mexico, to be included in Employees Occupational Illness Complainant the preferences provided the Special Exposure Cohort under the Compensation Program Act of 2000. The to APMT; (4) put in force such practices Energy Employees Occupational Illness initial proposed definition for the class and as the Commission determines to be Compensation Program Act of 2000. The being evaluated, subject to revision as lawful and reasonable; and (5) pay to initial proposed definition for the class warranted by the evaluation, is as Complainant by way of reparations the being evaluated, subject to revision as follows: amount of the actual injury, plus warranted by the evaluation, is as Facility: General Steel Industries. interest, cost and attorneys fees, and any follows: Location: Granite City, Illinois. other damages to be determined. Facility: Los Alamos National Job Titles and/or Job Duties: All Additionally, Complainant requests that Laboratory. individuals who worked in any the Commission order any such other Location: Los Alamos, New Mexico. location. relief as it determines appropriate. Job Titles and/or Job Duties: All Period of Employment: January 1, 1953 through December 31, 1966, This proceeding has been assigned to service support workers (which and/or during the residual the Office of Administrative Law Judges. includes, but is not limited to, security contamination period from January 1, Hearing in this matter, if any is held, guards, firefighters, laborers, custodians, 1967 through December 31, 1992. shall commence within the time carpenters, plumbers, electricians, FOR FURTHER INFORMATION CONTACT: limitations prescribed in 46 CFR 502.61, pipefitters, sheet metal workers, and only after consideration has been ironworkers, welders, maintenance Larry Elliott, Director, Office of given by the parties and the presiding workers, truck drivers, delivery persons, Compensation Analysis and Support, officer to the use of alternative forms of radiation technicians, and area work National Institute for Occupational dispute resolution. The hearing shall coordinators) who worked in any Safety and Health (NIOSH), 4676 include oral testimony and cross- operational Technical Areas with a Columbia Parkway, MS C–46, examination in the discretion of the history of radioactive material use. Cincinnati, OH 45226, Telephone 513– Period of Employment: January 1, presiding officer only upon proper 533–6800 (this is not a toll-free 1976 through December 31, 2005. showing that there are genuine issues of number). Information requests can also material fact that cannot be resolved on FOR FURTHER INFORMATION CONTACT: be submitted by e-mail to the basis of sworn statements, affidavits, Larry Elliott, Director, Office of [email protected]. depositions, or other documents or that Compensation Analysis and Support, Dated: June 5, 2008. the nature of the matter in issue is such National Institute for Occupational John Howard, that an oral hearing and cross- Safety and Health (NIOSH), 4676 Director, National Institute for Occupational examination are necessary for the Columbia Parkway, MS C–46, Safety and Health. development of an adequate record. Cincinnati, OH 45226, Telephone 513– [FR Doc. E8–13629 Filed 6–16–08; 8:45 am] 533–6800 (this is not a toll-free Pursuant to the further terms of 46 CFR BILLING CODE 4163–19–P 502.61, the initial decision of the number). Information requests can also presiding officer in this proceeding shall be submitted by e-mail to be issued by June 11, 2009, and the final [email protected]. DEPARTMENT OF HEALTH AND decision of the Commission shall be Dated: June 5, 2008. HUMAN SERVICES issued by October 9, 2009. John Howard, National Institutes of Health Karen V. Gregory, Director, National Institute for Occupational Safety and Health. Assistant Secretary. Center for Scientific Review; Notice of [FR Doc. E8–13626 Filed 6–16–08; 8:45 am] [FR Doc. E8–13547 Filed 6–16–08; 8:45 am] Closed Meetings BILLING CODE 4163–19–P BILLING CODE 6730–01–P Pursuant to section 10(d) of the Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES is hereby given of the following DEPARTMENT OF HEALTH AND meetings. HUMAN SERVICES National Institute for Occupational The meetings will be closed to the Safety and Health; Decision To public in accordance with the National Institute for Occupational Evaluate a Petition To Designate a provisions set forth in sections Safety and Health; Decision To Class of Employees for General Steel 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Evaluate a Petition To Designate a Industries, Granite City, IL, To Be as amended. The grant applications and Class of Employees for Los Alamos Included in the Special Exposure the discussions could disclose National Laboratory, Los Alamos, NM, Cohort confidential trade secrets or commercial To Be Included in the Special property such as patentable material, Exposure Cohort AGENCY: National Institute for Occupational Safety and Health and personal information concerning AGENCY: National Institute for (NIOSH), Department of Health and individuals associated with the grant Occupational Safety and Health Human Services (HHS). applications, the disclosure of which would constitute a clearly unwarranted (NIOSH), Department of Health and ACTION: Notice. Human Services (HHS). invasion of personal privacy. SUMMARY: The Department of Health and ACTION: Notice. Name of Committee: Center for Scientific Human Services (HHS) gives notice as Review Special Emphasis Panel, Molecular

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Aspects of Neuronal Development, Function Dated: June 6, 2008. Dated: June 6, 2008. and Pathology. Anna Snouffer, Anna Snouffer, Date: June 25, 2008. Acting Director, Office of Federal Advisory Acting Director, Office of Federal Advisory Time: 1:30 p.m. to 5 p.m. Committee Policy. Committee Policy. Agenda: To review and evaluate grant [FR Doc. E8–13239 Filed 6–16–08; 8:45 am] [FR Doc. E8–13238 Filed 6–16–08; 8:45 am] applications. Place: National Institutes of Health, 6701 BILLING CODE 4140–01–M BILLING CODE 4140–01–M Rockledge Drive, Bethesda, MD 20892. (Telephone Conference Call) DEPARTMENT OF HEALTH AND Contact Person: Lawrence Baizer, PhD, DEPARTMENT OF HEALTH AND Scientific Review Officer, Center for HUMAN SERVICES HUMAN SERVICES Scientific Review, National Institutes of National Institutes of Health Health, 6701 Rockledge Drive, Room 4152, National Institutes of Health MSC 7850, Bethesda, MD 20892, (301) 435– National Institute on Aging; Notice of National Institute on Aging; Amended 1257, [email protected]. Notice of Meeting This notice is being published less than 15 Closed Meetings days prior to the meeting due to the timing Notice is hereby given of a change in Pursuant to section 10(d) of the limitations imposed by the review and the meeting of the National Institute on Federal Advisory Committee Act, as funding cycle. Aging Special Emphasis Panel, July 10, amended (5 U.S.C. Appendix 2), notice Name of Committee: AIDS and Related 2008, 12 p.m. to July 10, 2008, 4 p.m., is hereby given of the following Research Integrated Review Group, AIDS National Institute on Aging, Gateway meetings. Clinical Studies and Epidemiology Study Building, 7201 Wisconsin Avenue, Section. The meetings will be closed to the Room 2C212, Bethesda, MD 20892 Date: July 17, 2008. public in accordance with the which was published in the Federal Time: 8 a.m. to 6 p.m. provisions set forth in sections Register on May 29, 2008, 73 FR 30957– Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 30958. applications. as amended. The grant applications and Meeting will begin at 10 a.m. The Place: Sofitel Lafayette Square, 806 15th the discussions could disclose meeting is closed to the public. Street, NW., Washington, DC 20005. confidential trade secrets or commercial Contact Person: Hilary D. Sigmon, PhD, property such as patentable material, Dated: June 6, 2008. Scientific Review Officer, Center for and personal information concerning Anna Snouffer, Scientific Review, National Institutes of individuals associated with the grant Acting Director, Office of Federal Advisory Health, 6701 Rockledge Drive, Room 5216, applications, the disclosure of which Committee Policy. MSC 7852, Bethesda, MD 20892, (301) 594– [FR Doc. E8–13240 Filed 6–16–08; 8:45 am] 6377, [email protected]. would constitute a clearly unwarranted invasion of personal privacy. BILLING CODE 4140–01–M Name of Committee: Center for Scientific Review Special Emphasis Panel, Chemistry Name of Committee: National Institute on Small Business Review. Aging Special Emphasis Panel, Aging DEPARTMENT OF HEALTH AND Date: July 22, 2008. Disease. HUMAN SERVICES Time: 8:30 a.m. to 5 p.m. Date: July 17, 2008. Agenda: To review and evaluate grant Time: 1 p.m. to 4:30 p.m. National Institutes of Health applications. Agenda: To review and evaluate grant Place: Bethesda Marriott, 5151 Pooks Hill applications. National Institute of Mental Health; Road, Bethesda, MD 20814. Place: National Institute on Aging, Notice of Workgroup Meeting Contact Person: John L. Bowers, PhD, Gateway Building, 7201 Wisconsin Avenue, Scientific Review Officer, Center for Room 2C212, Bethesda, MD 20892. Notice is hereby given of a meeting of Scientific Review, National Institutes of (Telephone Conference Call) the Strategic Planning Workgroup Health, 6701 Rockledge Drive, Room 4170, Contact Person: Bita Nakhai, PhD, (SPWG) organized by the Interagency MSC 7806, Bethesda, MD 20892, (301) 435– Scientific Review Administrator, Scientific Autism Coordinating Committee (IACC). 1725, [email protected]. Review Office, National Institute on Aging, Gateway Bldg., 2C212, 7201 Wisconsin Audio of this workgroup meeting will Name of Committee: Center for Scientific Avenue, Bethesda, MD 20814, 301–402– be accessible to the public via a Review Special Emphasis Panel, Cellular 7701, [email protected]. teleconference phone link, and there Probes. Name of Committee: National Institute on will be Web-based access to information Date: July 29, 2008. Aging Special Emphasis Panel, Varicella displayed at the meeting via computer/ Time: 8 a.m. to 5 p.m. Zoster Virus Infection. projector. Access information will be Agenda: To review and evaluate grant Date: July 22, 2008. posted on the IACC Web site: (http:// applications. Time: 2 p.m. to 5:30 p.m. www.nimh.nih.gov/research-funding/ Place: One Washington Circle Hotel, One Agenda: To review and evaluate grant scientific-meetings/recurring-meetings/ Washington Circle, Washington, DC 20037. applications. iacc/events/index.shtml). Attendance at Contact Person: George W. Chacko, PhD, Place: National Institute on Aging, the meeting itself will be limited to Scientific Review Officer, Center for Bethesda, MD 20892. (Telephone Conference workgroup members. The purpose of the Scientific Review, National Institutes of Call) workgroup meeting is to review an early Health, 6701 Rockledge Drive, Room 5170, Contact Person: William Cruce, PhD, MSC 7849, Bethesda, MD 20892, 301–435– draft of the IACC Strategic Plan for Health Scientist Administrator, Scientific Autism Spectrum Disorder (ASD) 1245, [email protected]. Review Office, National Institute on Aging, Research. The SPWG comments on the (Catalogue of Federal Domestic Assistance National Institutes of Health, Room 2C212, Program Nos. 93.306, Comparative Medicine; 7201 Wisconsin Avenue, Bethesda, MD draft plan will be forwarded to the IACC 93.333, Clinical Research, 93.306, 93.333, 20814, 301–402–7704, [email protected]. for consideration and discussion at its 93.337, 93.393–93.396, 93.837–93.844, (Catalogue of Federal Domestic Assistance next meeting on July 15, 2008. 93.846–93.878, 93.892, 93.893, National Program Nos. 93.866, Aging Research, Name of Committee: Interagency Autism Institutes of Health, HHS) National Institutes of Health, HHS) Coordinating Committee (IACC).

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Type of meeting: Strategic Planning FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF HOMELAND Workgroup. James Orgill, TSA–19, Transportation SECURITY Date: July 8, 2008. Security Administration, 601 South Time: 10 a.m. to 1 p.m. EST. 12th Street, Arlington, VA 22202–4220. U.S. Citizenship and Immigration Agenda: Review of draft IACC Strategic Services Plan for ASD Research. Transportation Threat Assessment and Credentialing (TTAC), TWIC Program, Place: National Institutes of Health, Agency Information Collection Neuroscience Center, 6001 Executive (571) 227–4545; e-mail: Activities Boulevard, Room 2172, Bethesda, MD. [email protected]. Contact Person: Tanya Pryor, National Agency Information Collection Background Institute of Mental Health, NIH, 6001 Activities: Form I–134, Revision of a Executive Boulevard, NSC, Bethesda, MD 20892–9669, 301–443–7153. The Department of Homeland Currently Approved Information Information about the IACC is available on Security (DHS), through the United Collection; Comment Request. the Web site: http://www.nimh.nih.gov/ States Coast Guard and the ACTION: 30-Day Notice of Information research-funding/scientific-meetings/ Transportation Security Administration Collection Under Review: Form I–134, recurring-meetings/iacc/index.shtml. (TSA), issued a joint final rule (72 FR Affidavit of Support; OMB Control No. Dated: June 10, 2008. 3492; January 25, 2007) pursuant to the 1615–0014. Jennifer Spaeth, Maritime Transportation Security Act The Department of Homeland (MTSA), Public Law 107–295, 116 Stat. Director, Office of Federal Advisory Security, U.S. Citizenship and Committee Policy. 2064 (November 25, 2002), and the Immigration Services (USCIS) has [FR Doc. E8–13508 Filed 6–16–08; 8:45 am] Security and Accountability for Every submitted the following information BILLING CODE 4140–01–P Port Act of 2006 (SAFE Port Act), Public collection request to the Office of Law 109–347 (October 13, 2006). This Management and Budget (OMB) for rule requires all credentialed merchant review and clearance in accordance DEPARTMENT OF HOMELAND mariners and individuals with with the Paperwork Reduction Act of SECURITY unescorted access to secure areas of a 1995. The information collection was regulated facility or vessel to obtain a previously published in the Federal Transportation Security Administration TWIC. In this final rule, on page 3510, Register on April 9, 2008, at 73 FR [Docket Nos. TSA–2006–24191; Coast TSA and Coast Guard stated that a 19235 allowing for a 60-day public Guard–2006–24196] phased enrollment approach based comment period. USCIS did not receive upon risk assessment and cost/benefit any comments for this information Transportation Worker Identification would be used to implement the collection. Credential (TWIC); Enrollment Dates program nationwide, and that TSA The purpose of this notice is to allow for the Ports of Little Rock, AR and would publish a notice in the Federal an additional 30 days for public Camden, NJ Register indicating when enrollment at comments. Comments are encouraged a specific location will begin and when and will be accepted until July 17, 2008. AGENCY: Transportation Security This process is conducted in accordance Administration; United States Coast it is expected to terminate. with 5 CFR 1320.10. Guard; DHS. This notice provides the start date for Written comments and/or suggestions ACTION: Notice. TWIC initial enrollment at the Ports of Little Rock, AR, on June 11, 2008; and regarding the item(s) contained in this notice, especially regarding the SUMMARY: The Department of Homeland Camden, NJ, on June 12, 2008. The estimated public burden and associated Security (DHS) through the Coast Guard will publish a separate response time, should be directed to the Transportation Security Administration notice in the Federal Register indicating Department of Homeland Security (TSA) issues this notice of the dates for when facilities within the Captain of the the beginning of the initial enrollment (DHS), and to the Office of Management Port Zone Lower Miss. River, including and Budget (OMB) USCIS Desk Officer. for the Transportation Worker those in the Port of Little Rock; and Identification Credential (TWIC) for the Comments may be submitted to: USCIS, Captain of the Port Zone Delaware Bay, Chief, Regulatory Management Division, Ports of Little Rock, AR and Camden, including those in the Port of Camden NJ. Clearance Office, 111 Massachusetts must comply with the portions of the Avenue, Suite 3008, Washington, DC DATES: TWIC enrollment begins in Little final rule requiring TWIC to be used as 20529. Comments may also be Rock on June 11, 2008 and Camden on an access control measure. That notice submitted to DHS via facsimile to 202– June 12, 2008. will be published at least 90 days before 272–8352 or via e-mail at ADDRESSES: You may view published compliance is required. [email protected], and to the OMB USCIS documents and comments concerning To obtain information on the pre- Desk Officer via facsimile at 202–395– the TWIC Final Rule, identified by the enrollment and enrollment process, and 6974 or via e-mail at docket numbers of this notice, using any enrollment locations, visit TSA’s TWIC [email protected]. one of the following methods. Web site at http://www.tsa.gov/twic. When submitting comments by e-mail (1) Searching the Federal Docket please make sure to add OMB Control Management System (FDMS) Web page Issued in Arlington, Virginia, on June 11, Number 1615–0014. Written comments at http://www.regulations.gov; 2008. and suggestions from the public and (2) Accessing the Government Rex Lovelady, affected agencies should address one or Printing Office’s Web page at http:// Program Manager, TWIC, Office of more of the following four points: www.gpoaccess.gov/fr/index.html; or Transportation Threat Assessment and (1) Evaluate whether the collection of (3) Visiting TSA’s Security Credentialing, Transportation Security information is necessary for the proper Regulations Web page at http:// Administration. performance of the functions of the www.tsa.gov and accessing the link for [FR Doc. E8–13497 Filed 6–16–08; 8:45 am] agency, including whether the ‘‘Research Center’’ at the top of the page. BILLING CODE 9110–05–P information will have practical utility;

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(2) Evaluate the accuracy of the DEPARTMENT OF HOMELAND collection of information, including the agency’s estimate of the burden of the SECURITY validity of the methodology and collection of information, including the assumptions used; validity of the methodology and U.S. Citizenship and Immigration (3) Enhance the quality, utility, and assumptions used; Services clarity of the information to be (3) Enhance the quality, utility, and Agency Information Collection collected; and clarity of the information to be Activities: Form I–765, Extension of a (4) Minimize the burden of the collected; and Currently Approved Information collection of information on those who (4) Minimize the burden of the Collection; Comment Request are to respond, including through the collection of information on those who use of appropriate automated, are to respond, including through the ACTION: 30-Day Notice of Information electronic, mechanical, or other use of appropriate automated, Collection Under Review: Form I–756, technological collection techniques, or electronic, mechanical, or other Application for Employment other forms of information technology, technological collection techniques, or Authorization; OMB Control No. 1615– e.g., permitting electronic submission of other forms of information technology, 0040. responses. e.g., permitting electronic submission of Overview of This Information responses. The Department of Homeland Security, U.S. Citizenship and Collection Overview of This Information Immigration Services (USCIS) has (1) Type of Information Collection: Collection submitted the following information collection request to the Office of Extension of a currently approved (1) Type of Information Collection: Management and Budget (OMB) for information collection. Revision of a currently approved review and clearance in accordance (2) Title of the Form/Collection: information collection. with the Paperwork Reduction Act of Application for Employment (2) Title of the Form/Collection: 1995. The information collection was Authorization. Affidavit of Support. previously published in the Federal (3) Agency form number, if any, and (3) Agency form number, if any, and Register on April 11, 2008, at 73 FR the applicable component of the the applicable component of the 19861 allowing for a 60-day public Department of Homeland Security Department of Homeland Security comment period. USCIS did not receive sponsoring the collection: Form I–765. sponsoring the collection: Form I–134. any comments for this information U.S. Citizenship and Immigration U.S. Citizenship and Immigration collection. Services. Services. The purpose of this notice is to allow (4) Affected public who will be asked (4) Affected public who will be asked an additional 30 days for public or required to respond, as well as a brief or required to respond, as well as a brief comments. Comments are encouraged abstract: Primary: Individuals and abstract: Primary: Individuals and and will be accepted until July 17, 2008. households. The information collected households. This information collection This process is conducted in accordance on this form is used by the USCIS to is necessary to determine if at the time with 5 CFR 1320.10. determine eligibility for the issuance of of application into the United States, the Written comments and/or suggestions the employment document. regarding the item(s) contained in this applicant is likely to become a public (5) An estimate of the total number of charge. notice, especially regarding the estimated public burden and associated respondents and the amount of time (5) An estimate of the total number of response time, should be directed to the estimated for an average respondent to respondents and the amount of time Department of Homeland Security respond: 1,885,296 responses at 3 hours estimated for an average respondent to (DHS), and to the Office of Management and 25 minutes (3.42 hours) per respond: 44,000 responses at 90 minutes and Budget (OMB) USCIS Desk Officer. response. (1.5 hours) per response. Comments may be submitted to: USCIS, (6) An estimate of the total public (6) An estimate of the total public Chief, Regulatory Management Division, burden (in hours) associated with the burden (in hours) associated with the Clearance Office, 111 Massachusetts collection: 6,447,712 annual burden collection: 66,000 annual burden hours. Avenue, Suite 3008, Washington, DC hours. If you have additional comments, 20529. Comments may also be If you have additional comments, suggestions, or need a copy of the submitted to DHS via facsimile to 202– suggestions, or need a copy of the proposed information collection 272–8352 or via e-mail at proposed information collection instrument with instructions, or [email protected], and to the OMB USCIS instrument with instructions, or additional information, please visit: Desk Officer via facsimile at 202–395– additional information, please visit: http://www.regulations.gov/search/ 6974 or via e-mail at http://www.regulations.gov/search/ index.jsp. [email protected]. index.jsp. If additional information is required When submitting comments by e-mail If additional information is required contact: USCIS, Regulatory Management please make sure to add OMB Control contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, Number 1615–0040. Written comments Division, 111 Massachusetts Avenue, Suite 3008, Washington, DC 20529, and suggestions from the public and Suite 3008, Washington, DC 20529, (202) 272–8377. affected agencies should address one or (202) 272–8377. more of the following four points: Dated: June 11, 2008. (1) Evaluate whether the collection of Dated: June 11, 2008. Stephen Tarragon, information is necessary for the proper Stephen Tarragon, Acting Chief, Regulatory Management performance of the functions of the Acting Chief, Regulatory Management Division, U.S. Citizenship and Immigration agency, including whether the Division, U.S. Citizenship and Immigration Services, Department of Homeland Security. information will have practical utility; Services, Department of Homeland Security. [FR Doc. E8–13543 Filed 6–16–08; 8:45 am] (2) Evaluate the accuracy of the [FR Doc. E8–13549 Filed 6–16–08; 8:45 am] BILLING CODE 9111–97–P agency’s estimate of the burden of the BILLING CODE 9111–97–P

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DEPARTMENT OF HOMELAND of the date the final determination is the model. However, some copiers in SECURITY issued. Section 177.30, CBP Regulations this series are capable of scanning color (19 CFR 177.30), states that any party- images in documents. Ricoh has U.S. Customs and Border Protection at-interest, as defined in 19 CFR developed the AC1 Series in Japan and 177.22(d), may seek judicial review of a performed the entire engineering, Notice of Issuance of Final final determination within 30 days of development, design, and art work in Determination Concerning publication of such determination in the Japan. Photocopying Machines Federal Register. An AC1 copier is stated to be a complex machine comprising a total of AGENCY: U.S. Customs and Border Dated: June 11, 2008. 2,534 pieces of individual parts. You Protection, Department of Homeland Sandra L. Bell, Security. state that at the initial stage of the copier Executive Director, Office of Regulations and production process, individual parts are ACTION: Notice of final determination. Rulings, Office of International Trade. assembled into various assemblages of Attachment: HQ H025106. SUMMARY: This document provides parts called ‘‘sections,’’ ‘‘systems,’’ notice that the U.S. Customs and Border HQ H025106 ‘‘subassemblies,’’ or ‘‘units.’’ These part assemblages represent 53 basic building Protection (CBP) has issued a final June 11, 2008 determination concerning the country of blocks for each AC1 copier. These origin of certain photocopying machines OT:RR:CTF:VS H025106 YAG blocks are in turn incorporated into which may be offered to the United Category: Marking. modularized units or subassemblies States Government under an with distinct functions. You claim that Mr. Yoshihiro Saito, Manelli Denison & undesignated government procurement the primary functional modules of the Selter, PLLC, 2000 M Street, NW., contract. Based on the facts presented, AC1 copier are: the Scanning Unit, Suite 700, Washington, DC 20036– CBP has concluded that certain goods Laser Scanning Unit, Controller Unit 3307 imported into Japan are substantially (‘‘Controller’’), Photoconductor Unit, RE: U.S. Government Procurement; Developer Unit, Transfer Unit, and transformed in Japan such that Japan is Country of Origin of Photocopying the country of origin of the finished Fusing Unit. Additionally, the Main Machines; Substantial Frame, automatic document feeder photocopying machines for government Transformation; 19 CFR Part 177 procurement purposes. (ADF), duplexer, and paper trays Dear Mr. Saito: This is in response to perform support functions by supplying DATES: The final determination was your letter, dated March 20, 2008, power through the electrical systems, issued on June 11, 2008. A copy of the requesting a final determination on driving the engine and feeding/guiding final determination is attached. Any behalf of Ricoh Company, Ltd. and flipping the paper. You state that party-at-interest, as defined in 19 CFR (‘‘Ricoh’’), pursuant to subpart B of Part Ricoh will conduct the fabrication and/ 177.22(d), may seek judicial review of 177, Customs and Border Protection or the final assembly of the Scanning this final determination within July 17, (‘‘CBP’’) Regulations (19 CFR 177.21 et Unit, Laser Scanning Unit, Controller, 2008. seq.). Photoconductor Unit, and Main Frame FOR FURTHER INFORMATION CONTACT: Under these regulations, which in Japan, using blocks and individual Yuliya A. Gulis, Valuation and Special implement Title III of the Trade parts of Japanese, Chinese, and third- Programs Branch, Regulations and Agreements Act of 1979 (‘‘TAA’’), as country origins. On the other hand, the Rulings, Office of International Trade amended (19 U.S.C. 2511 et seq.), CBP Developer Unit, Transfer Unit, Fusing (202–572–8783). issues country of origin advisory rulings Unit, and Base Engine and Image SUPPLEMENTARY INFORMATION: Notice is and final determinations as to whether Control Unit (‘‘BICU’’) as well as the hereby given that on June 11, 2008, an article is or would be a product of a ADF, paper trays, etc. will be assembled pursuant to subpart B of part 177, designated country or instrumentality in China by Ricoh Asia Industry, Ltd. Customs Regulations (19 CFR part 177, for the purpose of granting waivers of (‘‘RAI’’) or its contractors, using Chinese subpart B), CBP issued a final certain ‘‘Buy American’’ restrictions in and Japanese parts. The final assembly determination concerning the country of U.S. law or practice for products offered of AC1 photocopying machines will origin of certain photocopying machines for sale to the U.S. Government. take place in Japan. Ricoh will also which may be offered to the United This final determination concerns the conduct testing on the subassemblies States Government under an country of origin of certain and finished copiers in Japan. The final undesignated government procurement photocopying machines that Ricoh may assembly process will comprise at least contract. This final determination, in sell to the U.S. Government. We note 30 significant steps, not including pre- HQ H025106, was issued at the request that Ricoh is a party-at-interest within assembly work, tests or adjustments of Ricoh Company, Ltd. under the meaning of 19 CFR 177.22(d)(1) and performed on individual subassemblies. procedures set forth at 19 CFR part 177, is entitled to request this final Finally, the finished AC1 Series copiers subpart B, which implements Title III of determination. will undergo final inspection and the Trade Agreements Act of 1979, as packing for shipment to the United Facts amended (19 U.S.C. 2511–18). States. The final determination concluded The products subject to this ruling are that, based upon the facts presented, certain photocopying machines Scanning Unit certain goods imported into Japan are manufactured by Ricoh, referred to as The Scanning Unit performs the substantially transformed in Japan such the ‘‘AC1 Series’’, and to be imported initial task of converting the original that Japan is the country of origin of the from Japan for the purpose of sales to images into digital signals. An original finished photocopying machines for U.S. government agencies. The AC1 document is scanned when the xenon government procurement purposes. Series have photocopying, printing, lamp irradiates the original document Section 177.29, Customs Regulations faxing, and scanning functions. The through the exposure glass. The light (19 CFR 177.29), provides that notice of AC1 Series is capable of producing 40 that reads the document is reflected by final determinations shall be published or 50 black-and-white copies of three separate mirrors and arrives at a in the Federal Register within 60 days documents per minute, depending on Charge Coupled Device (‘‘CCD’’) after

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passing through an assemblage of small Laser Scanning Unit Main Frame lens pieces. CCD incorporates photo The electronic signals processed by The shell of the main frame will be diodes, which convert the light (i.e. made from steel sheets formed in China photons) on the pixels into analog the ASICs are transmitted to the Laser Scanning Unit. In the Laser Scanning on Japanese dies. The Main Frame will electronic signals. The analog signals be completely built in Japan. The are then converted into digital form Unit, two laser diodes convert the electronic signals into pulsed laser engine, I/O board, BICU, and operation through the printed wiring board called beams, which are then sent to the panels, as well as the exterior covers for sensor board unit (‘‘SBU’’) and from photoconductor drum. On the way to the Main Frame, will be installed in there transmitted to the DRAM and flash the drum, the laser beams pass through Japan. The software for all PCBs will be memory boards located in the Controller a collimator lens, a cylindrical lens, and supplied by Ricoh Japan. Unit for storage. The DRAM stores the barrel troidal lens (‘‘BTL’’) and are You request an origin determination image memory, while the flash memory reflected by polygonal and f-theta that the subject photocopying machine stores the program. The xenon lamp is mirrors. The laser diodes, the f-theta is the country of origin Japan i.e., if the a Japanese part. The reflection mirrors mirror, BTL and the collimator lens will ‘‘substantial configuration’’ is performed in Japan. and the lens block are produced in be produced in Japan. The cylindrical China to Ricoh’s specifications and lens will be supplied from China. Issue Ricoh designs these optical parts. The Nonetheless, the assembly of the Laser What is the country of origin of the CCD is manufactured in Japan by an Scanning Unit will take place in Japan. unaffiliated producer. The first and subject photocopying machines for the second carriage sections of the Scanning Photoconductor Unit purpose of U.S. Government Unit are pre-assembled by RAI in China procurement? The Photoconductor Unit contains a by inserting a xenon lamp, a reflector, photoconductive drum and an electron- Law and Analysis and mirrors into designated spots. charging roller. The drum, coated with Pursuant to Subpart B of Part 177, 19 However, after this pre-assembly is an Organic Photo Conductor (‘‘OPC’’) is CFR 177.21 et seq., which implements complete, the carriage sections are the main component of the Title III of the Trade Agreements Act of shipped to Ricoh in Japan, where the Photoconductor Unit. This unit is 1979, as amended (19 U.S.C. 2511 et subsequent assembly is performed by charged with electricity and the laser seq.), CBP issues country of origin combining the first and second carriages beam sweeps across it to make the advisory rulings and final together, installing a set of six lenses electrostatic latent image. The drum is determinations as to whether an article into a lens block, and CCD in perfect a Japanese product, and the time- is or would be a product of a designated alignment with each other and with the consuming and capital intensive country or instrumentality for the rest of the components in the Scanning assembly of the photoconductor unit purposes of granting waivers of certain Unit. The exposure and sheet-through will take place in Japan. ‘‘Buy American’’ restrictions in U.S. law glasses are also attached at that stage. or practice for products offered for sale The complete Scanning Unit is then Developer Unit to the U.S. Government. tested and a Scanner Validation Tool The Developer Unit supplies the toner Under the rule of origin set forth (‘‘SVT’’), which is a software package to the drum. The developer roller and under 19 U.S.C. 2518(4)(B): developed by Ricoh engineers, evaluates developer doctor are the key An article is a product of a country or the test results against parameters. components of this Unit and are instrumentality only if (i) it is wholly the growth, product, or manufacture of Controller Unit Subassembly manufactured in Japan. All other parts will be produced or purchased in China. that country or instrumentality, or (ii) in The Controller contains a central The Developer Unit will be assembled the case of an article which consists in processing unit (‘‘CPU’’), a hard disk and tested in China before being whole or in part of materials from drive, a flash memory (ROM), two dual shipped to Japan for the final assembly another country or instrumentality, it in-line memory modules (‘‘DIMM’’), a of the copier. has been substantially transformed into random access memory (DRAM or a new and different article of commerce Transfer Unit SDRAM), a non-volatile random access with a name, character, or use distinct from that of the article or articles from memory (‘‘NVRAM’’) and interface The Transfer Unit transfers the visible which it was so transformed. cards. The Controller controls all image from the drum to paper. The See also 19 CFR 177.22(a). applications of AC1 as a photocopier, as Transfer Unit will be assembled in In determining whether the well as its additional/optional functions China. The assembly of the Transfer combining of parts or materials as a printer, a scanner, or a fax machine. Unit involves two steps. First, a toner constitutes a substantial transformation, Once the information is stored in the sensor and a cleaning blade will be the determinative issue is the extent of DRAM and flash memory of the attached to the frame. Second, the operations performed and whether the Controller, it is transmitted to the three Japanese made transfer belt will be parts lose their identity and become an application-specific-integrated circuits installed. The transfer belt is integral part of the new article. Belcrest (‘‘ASICs’’), located on the BICU board in specifically produced in Japan. Linens v. United States, 573 F. Supp. the Main Frame section of the copier. Fusing Unit 1149 (Ct. Int’l Trade 1983), aff’d, 741 All three ASICs will be manufactured in F.2d 1368 (Fed. Cir. 1984). Assembly Japan. The CPU on the Controller Unit The Fusing Unit permanently settles operations that are minimal or simple, will be purchased from a Canadian toner on the paper by applying heat and as opposed to complex or meaningful, producer. The DRAM and flash memory pressure to the migrated toner. It is a will generally not result in a substantial will be purchased from multiple simple process and the Fusing Unit for transformation. See C.S.D. 80–111, countries. However, the Controller Unit the AC1 Series will be entirely C.S.D. 85–25, C.S.D. 89–110, C.S.D. 89– itself will be assembled and tested in assembled in China from Japanese and 118, C.S.D. 90–51, and C.S.D. 90–97. In Japan. Chinese parts. C.S.D. 85–25, 19 Cust. Bull. 844 (1985),

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CBP held that for purposes of the by Sharp and assembled in Japan of important to the performance of Generalized System of Preferences various Japanese—and Chinese—origin photocopying machines. Although the (‘‘GSP’’), the assembly of a large number parts. In that ruling, we determined that developer unit will be assembled in of fabricated components onto a printed color multifunctional systems were a China, the developer roller and circuit board in a process involving a product of Japan based on the fact that developer doctor, 2 key components of considerable amount of time and skill ‘‘although several subassemblies are the unit, are of Japanese origin. resulted in a substantial transformation. assembled in China, enough of the Similarly, even though the Transfer Unit In that case, in excess of 50 discrete Japanese subassemblies and individual is partially assembled in China, the fabricated components (such as components serve major functions and transfer belt itself is a Japanese part. We resistors, capacitors, diodes, integrated are high in value, in particular, the further note that the testing and circuits, sockets, and connectors) were transfer belt, control box unit, adjustments performed in Japan are assembled. Whether an operation is application-specific integrated circuits, technical, complex, and time complex and meaningful depends on charged couple device, and laser consuming. Based on your submission, the nature of the operation, including diodes.’’ Further we found that the it is evident that a large variety of the number of components assembled, testing and adjustments performed in adjustments are made to each number of different operations, time, Japan were technical and complex and subassembly prior to and during the skill level required, attention to detail, the assembly operations that occurred in final copier assembly process. These quality control, the value added to the Japan were sufficiently complex and tests and adjustments utilize article, and the overall employment meaningful. Thus, through the product technologically advanced equipment generated by the manufacturing process. assembly and testing and adjustment and firmware, such as the SVT, LD The courts and CBP have also operations, the individual components Checker, and LSU Checker. The tests considered the essential character of the and subassemblies of Japanese and and adjustments will consume nearly imported article in making these foreign-origin were subsumed into a one-third of the total final assembly determinations. See Uniroyal, Inc. v. new and distinct article of commerce time for AC1 copiers. Finally, the United States, 542 F. Supp. 1026, 3 CIT that had a new name, character, and assembly operations that occur in Japan 220, 224–225 (1982) (where it was use. See also HRL 562936, dated March are sufficiently complex and determined that imported uppers were 17, 2004. the essence of a completed shoe) and In HRL 561734, dated March 22, 2001, meaningful. Through the product National Juice Products Association, et CBP held that certain multifunctional assembly and testing, the individual al v. United States, 628 F. Supp. 978, 10 machines (consisting of printer, copier, components and subassemblies of CIT 48, 61 (1986) (where the court and fax machines) assembled in Japan Japanese and foreign origin are addressed each of the factors (name, were a product of that country for the subsumed into a new and distinct character, and use) in finding that no purposes of U.S. government article of commerce that has a new substantial transformation occurred in procurement. The multifunctional name, character, and use. Therefore, we the production of retail juice products machines were assembled from 227 find that the country of origin of the from manufacturing concentrate). parts (108 parts obtained from Japan, 92 AC1 series copiers for the purposes of In order to determine whether a from Thailand, 3 from China, and 24 U.S. Government procurement is Japan. substantial transformation occurs when from other countries) and eight Holding components of various origins are subassemblies, each of which was assembled into completed products, assembled in Japan. See also HRL Based on the facts of this case, we CBP considers the totality of the 561568, dated March 22, 2001. find that the processing in Japan circumstances and makes such Based on the facts and law in this substantially transforms the non- determinations on a case-by-case basis. case, we find that the assembled AC1 Japanese components. Therefore, the The country of origin of the item’s copiers are products of Japan for the country of origin of the AC1 Series components, extent of the processing purposes of U.S. Government photocopying machines is Japan for that occurs within a country, and procurement. Out of eight (8) purposes of U.S. Government whether such processing renders a subassemblies, only three (3) will be put procurement. product with a new name, character, together in China. Although the and use are primary considerations in Developer Unit and the Transfer Unit Notice of this final determination will such cases. Additionally, factors such as will be assembled in China, we find that be given in the Federal Register, as the resources expended on product enough of the Japanese subassemblies required by 19 CFR 177.29. Any party- design and development, extent and and individual components serve major at-interest other than the party which nature of post-assembly inspection and functions and are high in value, in requested this final determination may testing procedures, and worker skill particular, the transfer belt, Controller, request, pursuant to 19 CFR 177.31 that required during the actual ASCIS, CCD, laser diode, and CBP reexamine the matter anew and manufacturing process will be Photoconductor Unit. In making this issue a new final determination. considered when determining whether a determination, we particularly note that Pursuant to 19 CFR 177.30, any party- substantial transformation has occurred. the Controller Unit and the at-interest may, within 30 days after No one factor is determinative. Photoconductor Unit are being publication of the Federal Register CBP has held in a number of cases assembled in Japan, with the Notice referenced above, seek judicial involving similar merchandise that Photoconductor Unit made entirely out review of this final determination before complex and meaningful assembly of Japanese parts and the Controller the Court of International Trade. operations involving a large number of Unit containing mostly Japanese Sincerely, components result in a substantial products. Additionally, AC1’s scanning Sandra L. Bell, transformation. In Headquarters Ruling and laser scanning units will be Executive Director, Office of Regulations and Letter (‘‘HRL’’) 563491 (February 8, assembled in Japan, using a CCD, laser Rulings, Office of International Trade. 2007), we addressed the country of diodes, f-theta mirror, BTL, and origin of certain digital color collimator lens of Japanese origin. The [FR Doc. E8–13544 Filed 6–16–08; 8:45 am] multifunctional systems manufactured Developer Unit subassembly is also BILLING CODE 9111–14–P

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DEPARTMENT OF THE INTERIOR new population sites through surveys, DEPARTMENT OF THE INTERIOR genetic study, and the taking of voucher Fish and Wildlife Service specimens to document populations. Fish and Wildlife Service [FWS–R3–ES–2008–N0142; 30120–1113– Proposed research activities are aimed [FWS–R1–ES–2008–N0141; 10120–1113– 0000–F6] at enhancement of recovery of the 0000–F5] species in the wild. Endangered and Threatened Species Endangered Wildlife and Plants; Permit Applications Permit Number: TE184740 Permits AGENCY: Fish and Wildlife Service, Applicant: Theresa Sydney Burke, AGENCY: Fish and Wildlife Service, Interior. Beaver, West Virginia. Interior. ACTION: Notice of availability of permit The applicant requests a permit to ACTION: Notice of receipt of application applications; request for comments. take the Indiana bat (Myotis sodalis), to amend permit; request for comments. SUMMARY: The following applicants have Gray bat (Myotis grisescens), and SUMMARY: We, the U.S. Fish and applied for permits to conduct certain Virginia big-eared bat (Corynorhinus Wildlife Service (Service), invite the activities with endangered species. townsendii virginianus) throughout the public to comment on the following DATES: We must receive written range of the species. The activities application to amend an existing permit comments on or before July 17, 2008. proposed involve capture and marking to conduct certain activities with ADDRESSES: Regional Director, Attn: of individual bats to identify endangered species. Peter Fasbender, U.S. Fish and Wildlife populations of this listed species and to DATES: We must receive your written Service, Ecological Services, 1 Federal develop methods to minimize or avoid data or comments by July 17, 2008. Drive, Fort Snelling, MN 55111–4056; project related impacts. The surveys are ADDRESSES: Program Manager, electronic mail, [email protected]. used to formulate project features aimed Endangered Species, Ecological FOR FURTHER INFORMATION CONTACT: at enhancement of survival of the Services, U.S. Fish and Wildlife Service, Peter Fasbender (612) 713–5343. species in the wild. 911 NE. 11th Avenue, Portland, OR Information Public Comments 97232–4181. FOR FURTHER INFORMATION CONTACT: Endangered Species We solicit public review and Grant Canterbury, Fish and Wildlife The Endangered Species Act of 1973, comments on these permit applications. Biologist, at the above address or by as amended (16 U.S.C. 1531 et seq.) Please refer to the permit number when telephone (503–231–2063) or fax (503– (Act), with some exceptions, prohibits you submit comments. Comments and 231–6243). activities affecting endangered species materials we receive are available for SUPPLEMENTARY INFORMATION: The unless authorized by a permit from the public inspection, by appointment, following applicant has applied to Service. Before issuing a permit, we during normal business hours at the amend an existing scientific research invite public comment on it. address shown in the ADDRESSES permit to conduct certain activities with Accordingly, we invite public comment section. Before including your address, endangered species under section on the following applicants’ permit phone number, e-mail address, or other 10(a)(1)(A) of the Endangered Species applications for certain activities with personal identifying information in your Act (16 U.S.C. 1531 et seq.). We solicit endangered species authorized by comment, you should be aware that review and comment from local, State, section 10(a)(1)(A) of the Act and the your entire comment—including your and Federal agencies and the public. regulations governing the taking of endangered species (50 CFR 17). Submit personal identifying information—may Permit No. TE–043638 be made publicly available at any time. your written data, comments, or request Applicant: U.S. Army Natural Resources While you can ask us in your comment for a copy of the complete application Center, Schofield Barracks, Hawaii to the address shown in ADDRESSES. to withhold your personal identifying information from public review, we The applicant requests an amendment to an existing permit to remove/reduce Permit Number: TE842313 cannot guarantee that we will be able to to possession (collect pollen and seeds) do so. Applicant: Illinois State Museum, Hedyotis coriacea (kio’ele) and to take Springfield, Illinois. National Environmental Policy Act (collect eggs, rear in captivity, capture The applicant requests a permit (NEPA) adults, photograph, release, and collect renewal to take Hine’s emerald voucher specimens) the Hawaiian dragonfly (Somatochlora hineana) In compliance with NEPA (42 U.S.C. picture-wing flies Drosophila aglaia, D. throughout the species’ range in 4321 et seq.), we have made an initial hemipeza, D. montgomeryi, D. obatai, D. Alabama, Arkansas, Connecticut, determination that the activities substenoptera, and D. tarphytrichia, in Delaware, District of Columbia, Georgia, proposed in these permits are conjunction with research on the island Illinois, Indiana, Iowa, Kentucky, categorically excluded from the of Oahu, Hawaii, for the purpose of Maine, Maryland, Massachusetts, requirement to prepare an enhancing their survival. This permit Michigan, Minnesota, Missouri, New environmental assessment or currently covers removal and reduction Hampshire, New Jersey, New York, environmental impact statement. to possession of Chamaescyce herbstii North Carolina, Ohio, Oklahoma, (akoko), Hesperomannia arbuscula (no Dated: June 3, 2008. Pennsylvania, Rhode Island, South common name), Phyllostegia kaalaensis Carolina, Tennessee, Vermont, Virginia, Lynn M. Lewis, (no common name), and Schiedea West Virginia, and Wisconsin. This Assistant Regional Director, Ecological kaalae (no common name); and take of permit renewal is requested to continue Services, Region 3, Fort Snelling, Minnesota. the Oahu tree snails (Achatinella spp.) long-term scientific studies to determine [FR Doc. E8–13601 Filed 6–16–08; 8:45 am] and Oahu elepaio (Chasiempis the presence or absence of the species BILLING CODE 4310–55–P sandwichensis ibidis), for which notices within suitable habitats, to document were originally published in the Federal

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Register on July 20, 2005 (70 FR 41786), agency draft recovery plan on or before At present, in addition to low August 6, 2006 (71 FR 47242), and August 18, 2008. numbers and a limited distribution, November 16, 2007 (72 FR 64665). ADDRESSES: If you wish to review this major threats to this species are nest competition and predation of eggs and Public Review of Comments technical agency revised draft recovery plan, you may obtain a copy by chicks by pearly-eyed thrashers Please refer to the permit number for contacting the Caribbean Field Office, (Margarops fuscatus), predation of the application when submitting U.S. Fish and Wildlife Service, P.O. Box fledglings and adults by red-tailed comments. 491, Boquero´n, Puerto Rico 00622 hawks (Buteo jamaicensis), predation by We solicit public review and (telephone (787) 851–7297 Ext. 231) or rats (Rattus rattus and R. norvegicus), comment on this recovery permit by visiting our Web site at http:// parasitism by warble flies (Philornis application. Before including your endangered.fws.gov/recovery/ pici), and the impact of hurricanes. address, phone number, e-mail address, index.html#plans. If you wish to Other threats include competition for or other personal identifying comment, you may submit your cavities with European and Africanized information in your comment, you comments by the following methods: honeybees (Apis mellifera). Many of the should be aware that your entire 1. You may submit written comments threats are being controlled through comment—including your personal and materials to the Project Leader, at management strategies. identifying information—may be made the above address. Restoring an endangered or publicly available at any time. While 2. You may hand-deliver written threatened animal or plant to the point you can ask us in your comment to comments to our Caribbean Field Office, where it is again a secure, self- withhold your personal identifying U.S. Fish and Wildlife Service, P.O. Box sustaining member of its ecosystem is a information from public review, we 491, Boquero´n, Puerto Rico 00622, or primary goal of the endangered species cannot guarantee that we will be able to fax your comments to (787) 851–7440. program. To help guide the recovery do so. 3. You may send comments by e-mail effort, we are preparing recovery plans Comments and materials received will to Marelisa Rivera at for most listed species. Recovery plans be available for public inspection, by [email protected]. For directions describe actions considered necessary appointment, during normal business on how to submit electronic filing of for conservation of the species, establish hours at the above address. comments, see the ‘‘Public Comments criteria for downlisting or delisting, and estimate time and cost for implementing Dated: May 23, 2008. Solicited’’ section. Comments and materials received are recovery measures. Ren Lohoefener, The Act (16 U.S.C. 1533 et seq.) available for public inspection on Regional Director, Region 1, U.S. Fish and requires the development of recovery request, by appointment, during normal Wildlife Service. plans for listed species, unless such a business hours at the above address. [FR Doc. E8–13486 Filed 6–16–08; 8:45 am] plan would not promote the BILLING CODE 4310–55–P FOR FURTHER INFORMATION CONTACT: conservation of a particular species. Marelisa Rivera at the above address Section 4(f) of the Act requires us to (Telephone 787–851–7297, ext. 231). provide a public notice and an DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION: opportunity for public review and comment during recovery plan Fish and Wildlife Service Background development. We will consider all [FWS–R4–ES–2008–N0111]; [40120–1113– Once abundant and widespread on information presented during a public 0000–C2] the Puerto Rican archipelago, the Puerto comment period prior to approval of Rican parrot is considered one of the ten each new or revised recovery plan. We Notice of Availability of a Technical most endangered birds in the world. and other Federal agencies will take Agency Draft Recovery Plan for the Largely green with a red forehead and these comments into account in the Puerto Rican Parrot for Review and blue flight feathers, the parrot is one of course of implementing approved Comment nine Amazona parrots occurring in the recovery plans. West Indies. The species is one of the The objective of this technical agency AGENCY: Fish and Wildlife Service, smallest in its genus, measuring about Interior. draft revised plan is to provide a 29 centimeters (11 inches) in length and framework for the recovery of the Puerto ACTION: Notice of document availability weighing about 270 grams (10 ounces). Rican parrot, so that protection under and opening of public comment period. Presently, a minimum of 25 individuals the Act is no longer necessary. As survive in the wild in the El Yunque SUMMARY: We, the Fish and Wildlife reclassification and recovery criteria are National Forest (YNF) in eastern Puerto met, the status of the species will be Service, announce the availability of the Rico and 10 in the Rı´o Abajo Forest technical agency draft revised recovery reviewed and it will be considered for (RAF) in north central Puerto Rico. Two reclassification or removal from the plan for the Puerto Rican Parrot captive population facilities hold more (Amazona vittata). The technical agency Federal List of Endangered and than 225 individuals: the Iguaca Aviary Threatened Wildlife and Plants. draft revised recovery plan includes and the Jose´ L. Vivaldi Aviary in eastern specific recovery objectives and criteria and west-central Puerto Rico, Public Comments Solicited to be met in order to reclassify this respectively. We solicit written comments on the species to threatened status and delist it The Puerto Rican parrot is a fruit- recovery plan described. We will under the Endangered Species Act of eating cavity nester seldom seen far consider all comments received by the 1973, as amended (Act). We solicit from forests. The decline of the parrot date specified above prior to final review and comment on this technical and its restricted distribution are due to approval of the revised recovery plan. agency draft recovery plan from local, many factors, but mostly due to Before including your address, phone state, and Federal agencies, and the widespread habitat loss (e.g., number, e-mail address, or other public. deforestation.) Due to its nesting personal identifying information in your DATES: In order to be considered, we requirements, it depends on mature comment, you should be aware that must receive comments on the technical forests with large cavity-forming trees. your entire comment, including your

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personal identifying information, may ADDRESSES: You may submit comments In addition to direction from the be made publicly available at any time. to GSHIP/RMP Amendment Lead, BLM Three Rivers RMP, managers are While you can ask us in your comment Burns District Office, 28910 Highway 20 directed to meet management objectives to withhold your personal identifying West, Hines, Oregon 97738; fax to (541) and guidelines set forth in the Greater information from public review, we 573–4411; or e-mail to Sage-grouse and Sagebrush-Steppe cannot guarantee that we will be able to [email protected]. Comments, Ecosystems Management Guidelines do so. including the names and addresses of (2001). These management objectives Authority: The authority for this action is respondents, will be available for public and guidelines include: ‘‘*** section 4(f) of the Endangered Species Act, review at the Burns District Office maintain and enhance existing sage- 16 U.S.C. 1533(f). during regular business hours 7:45 a.m. grouse habitats, use mechanical treatment or prescribed fire to remove Dated: April 24, 2008. to 4:30 p.m., Monday through Friday, except holidays, and may be published juniper where it has invaded into * * * Cynthia K. Dohner, as part of the Decision. Before including sites with mountain big sagebrush and/ Acting Regional Director. your address, phone number, e-mail or low sagebrush; and vegetation [FR Doc. E8–13580 Filed 6–16–08; 8:45 am] address, or other personal identifying manipulations should benefit the long- BILLING CODE 4310–55–P information in your comment, you term health of sage-grouse habitat.’’ should be aware that your entire Greater sage-grouse have been comment—including your personal declining across much of their native DEPARTMENT OF THE INTERIOR identifying information—may be made range for decades due to habitat modification and fragmentation. Bureau of Land Management publicly available at any time. While you can ask us in your comment to Changes to habitat and habitat [OR–025–1110–MR–SSSS; 8–0118] withhold your personal identifying fragmentation have come from both information from public review, we natural and human causes. Human Notice of Intent To Amend the Three cannot guarantee that we will be able to caused habitat change and Rivers Resource Management Plan do so. Anonymous comments will not fragmentation have resulted from urban and Conduct Public Scoping be considered. All submissions from sprawl, rangeland modification, and infrastructure development (i.e., power AGENCY: Bureau of Land Management, organizations and businesses, and from individuals identifying themselves as lines, highways, etc.). Natural habitat U.S. Department of the Interior. changes have been induced through fire, ACTION: Notice of Intent. representatives or officials of organizations or businesses, will be climate change, and succession; however, even natural causes have been SUMMARY: In accordance with the available for public inspection in their National Environmental Policy Act of entirety. influenced by man to some degree. One 1969 and the Federal Land Policy and cause of sage-grouse habitat loss in the FOR FURTHER INFORMATION CONTACT: Three Rivers Resource Area is due to Management Act of 1976, the Bureau of GSHIP/RMP Amendment Project Lead, western juniper encroachment into what Land Management (BLM) Burns District BLM Burns District Office, 28910 were once sagebrush dominated in Burns, Oregon, intends to amend the Highway 20 West, Hines, Oregon 97738; landscapes. Three Rivers Resource Management (541) 573–4503; Fax (541) 573–4411; e- Historic grazing practices (which Plan (RMP) with an associated mail [email protected]; or visit the removed fine herbaceous fuels) and fire Environmental Assessment (EA) that Burns District Web site at http:// suppression activities at the turn of the also analyzes effects of undertaking the www.blm.gov/or/districts/burns/plans/ century reduced influence of the fire Greater Sage-grouse Habitat index.php. regime in the project area. Fire was the Improvement Project (GSHIP) located in principal factor controlling conifer Harney County, Oregon. The objective SUPPLEMENTARY INFORMATION: The encroachment into shrub-grassland of the proposal is to improve sage- GSHIP project was developed from communities in the Intermountain West grouse habitat and reestablish once open management objectives identified in the prior to Euro-American immigration sagebrush habitats encroached upon by Three Rivers RMP. The Three Rivers (110 to 130 years ago) (West 1999; western juniper. The BLM also intends Plan directs BLM to: ‘‘* * * restore, Miller and Tausch 2001). As frequency to consider allowance for harvest of maintain, or enhance the diversity of and size of fires across the landscape downed western juniper trees south of plant communities and wildlife habitat lessened, juniper expanded into shrub- U.S. Highway 20 and west of Oregon in abundances and distributions which grassland communities with an overall State Highway 205 for fuel wood, posts prevent the loss of specific native plant loss in ecosystem function and a and poles, and for commercial harvest community types or indigenous wildlife dramatic alteration in historic of juniper boughs for use in holiday species habitat within the Resource biodiversity, hydrologic cycles, fauna, decorating. Allowance for harvest of Area’’ (WL–7.2); ‘‘* * * maintain, and nutrient cycling (Bates et al. 1998). downed juniper trees and juniper restore or enhance the habitat of Recent inventories of western juniper boughs would amend the Three Rivers candidate, State listed and other in eastern Oregon indicate juniper RMP. By this notice, the BLM is sensitive species to maintain the woodlands and savannahs cover an area announcing the beginning of the public populations at a level which will avoid of over five million acres (Gedney et al. scoping process. endangering the species and the need to 1999). Comparisons with data generated DATES: Scoping comments will be list the species by either State or Federal by earlier inventories suggest the area accepted for 30 days following governments’’ (SSS–2); and ‘‘*** supporting western juniper has publication of this notice in the Federal maintain, restore or enhance the increased fivefold since 1936. Harney Register. Public notice will be provided diversity of plant communities and County is one of four counties in Oregon when the Draft RMP Amendment and plant species in abundances and that contain more than one-half million associated EA become available later distributions, which prevent the loss of acres of western juniper woodlands. this year (2008). Written comments will specific native plant community types Sage-grouse are sensitive to juniper also be accepted throughout the or indigenous plant species within the encroachment and have been shown to planning process at the address below. Resource Area’’ (V–1). avoid juniper communities for nesting

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and winter habitat (Miller et al. 2005). 1920 (30 U.S.C. 188). We are proposing the bowl are recorded as ‘‘Michigan, Continued expansion of juniper will to reinstate the lease, effective the date Emmet County, early 1900’s.’’ In Odawa lead to further losses of suitable sage- of termination subject to: spiritual practices, ceremonial bowls grouse habitat. While the problem of • The original terms and conditions have a wide range of use and are juniper encroachment is prevalent of the lease; utilized in many different ceremonial across the Resource Area, the Glass • The increased rental of $10 per activities. It is believed that manidok Butte/Rye Grass area was selected to acre; (spirits) reside in each individual bowl • 2 expand upon a small-scale project The increased royalty of 16 ⁄3 and are a part of the community. It is completed there in 2006. percent or 4 percentages above the the Tribe’s continued responsibility to Initial scoping (March 1 to April 1, existing competitive royalty rate; and take care of these bowls and use them • 2007) for the GSHIP expressed interest The $163 cost of publishing this in ceremonies for sacred reasons, as from the public in harvesting downed Notice. such Traditional Religious leaders of the juniper for fuel wood, posts and poles. FOR FURTHER INFORMATION CONTACT: Little Traverse Bay Bands of Odawa Additional preliminary issues and Karen L. Johnson, Chief, Fluids Indians, Michigan need to use these management concerns identified by Adjudication Section, BLM Montana bowls in ceremonies for the Tribe. BLM personnel and the public include State Office, 5001 Southgate Drive, The one silver brooch (CMNH 08169) management of Air Quality, Water Billings, Montana 59101–4669, 406– is made from German silver in the shape Quality, Migratory Birds, Special Status 896–5098. of a disk with punched designs of Species fauna and flora, Noxious Dated: June 11, 2008. circles, stars, and ellipses. The locality Weeds, Cultural Heritage and Hazardous Karen L. Johnson, and date for the brooch are listed as Materials. Chief, Fluids Adjudication Section. ‘‘Michigan, Emmet County, late 1800’s.’’ An interdisciplinary approach will be Multiple archeological sites that are [FR Doc. E8–13591 Filed 6–16–08; 8:45 am] used to develop the EA in order to Native American burial sites or consider the variety of resource issues BILLING CODE 4310–$$–P cemeteries in Michigan from the and concerns identified. Disciplines Historic Period contain an array of involved in the project will include (but DEPARTMENT OF THE INTERIOR European trade goods, such as knives, not be limited to) those with expertise glass beads and silver brooches (Halsey, in management of the aforementioned National Park Service 286). It is believed that the silver brooch resources. in the possession of museum came from Dated: June 11, 2008. Notice of Intent To Repatriate Cultural an Odawa grave based on similar objects Dana R. Shuford, Items: The Cleveland Museum of found in other Odawa graves from Burns District Manager. Natural History, Cleveland, OH Michigan. In addition, it is believed that the brooch is a grave item because it has [FR Doc. E8–13582 Filed 6–16–08; 8:45 am] AGENCY: National Park Service, Interior. been recorded as a Native American BILLING CODE 4310–33–P ACTION: Notice. item and not just simply a piece of Notice is here given in accordance silver since the designation of such DEPARTMENT OF THE INTERIOR with the Native American Graves simple items to be of Native origin Protection and Repatriation Act usually originates because it came from Bureau of Land Management (NAGPRA), 25 U.S.C. 3005, of the intent a Native American burial. Officials of The Cleveland Museum of [MT–922–08–1310–FI–P; NDM 95212] to repatriate cultural items in the possession of The Cleveland Museum of Natural History have determined that, Notice of Proposed Reinstatement of Natural History, Cleveland, OH, that pursuant to 25 U.S.C. 3001 (3)(B), the Terminated Oil and Gas Lease NDM meet the definition of ‘‘unassociated one cultural item described above is 95212 funerary object’’ and ‘‘sacred object’’ reasonably believed to have been placed under 25 U.S.C. 3001. with or near individual human remains AGENCY: Bureau of Land Management, This notice is published as part of the at the time of death or later as part of Interior. National Park Service’s administrative the death rite or ceremony and is ACTION: Notice. responsibilities under NAGPRA, 25 believed, by a preponderance of the U.S.C. 3003 (d)(3). The determinations evidence, to have been removed from a SUMMARY: Per 30 U.S.C. 188(d), in this notice are the sole responsibility specific burial site of a Native American Marathon Oil Company timely filed a of the museum, institution, or Federal individual. Officials of The Cleveland petition for reinstatement of oil and gas agency that has control of the cultural Museum of Natural History also have lease NDM 95212, Mountrail County, items. The National Park Service is not determined that, pursuant to 25 U.S.C. North Dakota. The lessee paid the responsible for the determinations in 3001 (3)(C), the one cultural item required rental accruing from the date of this notice. described above is a specific ceremonial termination. In 1956, cultural items were acquired object needed by traditional Native No leases were issued that affect these by The Cleveland Museum of Natural American religious leaders for the lands. The lessee agrees to new lease History from the Logan Museum, Beloit practice of traditional Native American terms for rentals and royalties of $10 per College, Beloit, WI. The two cultural religions by their present–day acre and 162⁄3 percent or 4 percentages items are one ceremonial wood bowl adherents. Lastly, officials of The above the existing competitive royalty (CMNH 12888/CMNH 19888) and one Cleveland Museum of Natural History rate. The lessee paid the $500 silver brooch (CMNH 08169). have determined that, pursuant to 25 administration fee for the reinstatement Representatives of the Little Traverse U.S.C. 3001 (2), there is a relationship of the lease and $163 cost for publishing Bay Bands of Odawa Indians, Michigan of shared group identity that can be this Notice. attributed the cultural items as Ottawa/ reasonably traced between the The lessee met the requirements for Odawa. unassociated funerary object and the reinstatement of the lease per Sec. 31(d) The bowl is well-made with a carved sacred object and the Little Traverse Bay and (e) of the Mineral Leasing Act of rim and knobs. The locality and date for Bands of Odawa Indians, Michigan.

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Representatives of any other Indian Dakota; Lower Brule Sioux Tribe of the and Yankton Sioux Tribe of South tribe that believes itself to be culturally Lower Brule Reservation, South Dakota; Dakota. affiliated with the unassociated funerary Lower Sioux Indian Community in the Officials of the Field Museum of object and/or sacred object should State of Minnesota; Oglala Sioux Tribe Natural History have determined that, contact Adriann Balok, Curator of of the Pine Ridge Reservation, South pursuant to 25 U.S.C. 3001 (9–10), the Cultural Anthropology, The Cleveland Dakota; Prairie Island Indian human remains described above Museum of Natural History, 1 Wade Community in the State of Minnesota; represent the physical remains of one Oval Dr., University Circle, Cleveland, Rosebud Sioux Tribe of the Rosebud individual of Native American ancestry. OH 44106, telephone (216) 231–4600, Indian Reservation, South Dakota; Officials of the Field Museum of Natural ext. 3294, before July 17, 2008. Santee Sioux Nation, Nebraska; History also have determined that, Repatriation of the unassociated Shakopee Mdewakanton Sioux pursuant 25 U.S.C. 3001 (2), there is a funerary object and sacred object to the Community of Minnesota; Sisseton– relationship of shared group identity Little Traverse Bay Bands of Odawa Wahpeton Oyate of the Lake Traverse that can be reasonably traced between Indians, Michigan may proceed after Reservation, South Dakota; Spirit Lake the Native American human remains that date if no additional claimants Tribe, North Dakota; Standing Rock and the Assiniboine and Sioux Tribes of come forward. Sioux Tribe of North & South Dakota; the Fort Peck Indian Reservation, The Cleveland Museum of Natural Upper Sioux Community, Minnesota; Montana; Cheyenne River Sioux Tribe History is responsible for notifying the and Yankton Sioux Tribe of South of the Cheyenne River Reservation, Little Traverse Bay Bands of Odawa Dakota. South Dakota; Crow Creek Sioux Tribe Indians, Michigan that this notice has In 1893, the Field Museum of Natural of the Crow Creek Reservation, South been published. History purchased the skull of one Dakota; Flandreau Santee Sioux Tribe of individual from Ward’s Natural Science South Dakota; Lower Brule Sioux Tribe Dated: May 12, 2008. Establishment of Rochester, NY (Field of the Lower Brule Reservation, South Sherry Hutt, Museum of Natural History catalogue Dakota; Lower Sioux Indian Community Manager, National NAGPRA Program. number 41882). Original Field Museum in the State of Minnesota; Oglala Sioux [FR Doc. E8–13624 Filed 6–16–08; 8:45 am] of Natural History records state that the Tribe of the Pine Ridge Reservation, BILLING CODE 4312–50–S human remains are ‘‘Sioux, killed 1861 South Dakota; Prairie Island Indian (Omaha).’’ No known individual was Community in the State of Minnesota; identified. No associated funerary Rosebud Sioux Tribe of the Rosebud DEPARTMENT OF THE INTERIOR objects are present. Indian Reservation, South Dakota; The human remains have been Santee Sioux Nation, Nebraska; National Park Service identified as Native American based on Shakopee Mdewakanton Sioux the specific cultural and geographic Notice of Inventory Completion: The Community of Minnesota; Sisseton– attribution in Field Museum of Natural Field Museum of Natural History, Wahpeton Oyate of the Lake Traverse History records. The records identify the Chicago, IL Reservation, South Dakota; Spirit Lake human remains as ‘‘Sioux’’ from Tribe, North Dakota; Standing Rock AGENCY: National Park Service, Interior. Omaha, NE. While the Santee Sioux Sioux Tribe of North & South Dakota; ACTION: Notice. Nation is the only Federally–recognized Upper Sioux Community, Minnesota; Sioux Indian tribe in Nebraska at the and Yankton Sioux Tribe of South Notice is here given in accordance present time, the 1861 date of death Dakota. with the Native American Graves predates the establishment of the Santee Representatives of any other Indian Protection and Repatriation Act Sioux Reservation in Nebraska. Other tribe that believes itself to be culturally (NAGPRA), 25 U.S.C. 3003, of the Sioux groups were present in Nebraska affiliated with the human remains completion of an inventory of human at that time. ‘‘Sioux’’ descendants are should contact Helen Robbins, Director remains in the possession of the Field represented by the present–day of Repatriation, Field Museum of Museum of Natural History, Chicago, IL. Assiniboine and Sioux Tribes of the Fort Natural History, 1400 South Lake Shore The human remains were removed from Peck Indian Reservation, Montana; Drive, Chicago, IL 60605–2496, the area of Omaha, NE. Cheyenne River Sioux Tribe of the telephone (312) 665–7317, before July This notice is published as part of the Cheyenne River Reservation, South 17, 2008. Repatriation of the human National Park Service’s administrative Dakota; Crow Creek Sioux Tribe of the remains to the Assiniboine and Sioux responsibilities under NAGPRA, 25 Crow Creek Reservation, South Dakota; Tribes of the Fort Peck Indian U.S.C. 3003 (d)(3). The determinations Flandreau Santee Sioux Tribe of South Reservation, Montana; Cheyenne River in this notice are the sole responsibility Dakota; Lower Brule Sioux Tribe of the Sioux Tribe of the Cheyenne River of the museum, institution, or Federal Lower Brule Reservation, South Dakota; Reservation, South Dakota; Crow Creek agency that has control of the Native Lower Sioux Indian Community in the Sioux Tribe of the Crow Creek American human remains. The National State of Minnesota; Oglala Sioux Tribe Reservation, South Dakota; Flandreau Park Service is not responsible for the of the Pine Ridge Reservation, South Santee Sioux Tribe of South Dakota; determinations in this notice. Dakota; Prairie Island Indian Lower Brule Sioux Tribe of the Lower A detailed assessment of the human Community in the State of Minnesota; Brule Reservation, South Dakota; Lower remains was made by Field Museum of Rosebud Sioux Tribe of the Rosebud Sioux Indian Community in the State of Natural History professional staff in Indian Reservation, South Dakota; Minnesota; Oglala Sioux Tribe of the consultation with representatives of the Santee Sioux Nation, Nebraska; Pine Ridge Reservation, South Dakota; Assiniboine and Sioux Tribes of the Fort Shakopee Mdewakanton Sioux Prairie Island Indian Community in the Peck Indian Reservation, Montana; Community of Minnesota; Sisseton– State of Minnesota; Rosebud Sioux Cheyenne River Sioux Tribe of the Wahpeton Oyate of the Lake Traverse Tribe of the Rosebud Indian Cheyenne River Reservation, South Reservation, South Dakota; Spirit Lake Reservation, South Dakota; Santee Sioux Dakota; Crow Creek Sioux Tribe of the Tribe, North Dakota; Standing Rock Nation, Nebraska; Shakopee Crow Creek Reservation, South Dakota; Sioux Tribe of North & South Dakota; Mdewakanton Sioux Community of Flandreau Santee Sioux Tribe of South Upper Sioux Community, Minnesota; Minnesota; Sisseton–Wahpeton Oyate of

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the Lake Traverse Reservation, South of the museum that has control of the Washington State University have Dakota; Spirit Lake Tribe, North Dakota; Native American human remains. The determined that the Confederated Tribes Standing Rock Sioux Tribe of North & National Park Service is not responsible of the Colville Reservation, Washington; South Dakota; Upper Sioux Community, for the determinations in this notice. Confederated Tribes of the Umatilla Minnesota; and Yankton Sioux Tribe of A detailed assessment of the human Indian Reservation, Oregon; South Dakota may proceed after that remains was made by the Museum of Confederated Tribes and Bands of the date if no additional claimants come Anthropology, Washington State Yakama Nation, Washington; Nez Perce forward. University professional staff in Tribe of Idaho; and Wanapum Band, a The Field Museum of Natural History consultation with representatives of the non–federally recognized Indian group, is responsible for notifying Assiniboine Confederated Tribes of the Colville are culturally affiliated with the human and Sioux Tribes of the Fort Peck Indian Reservation, Washington; Confederated remains in the Former Washington State Reservation, Montana; Cheyenne River Tribes of the Umatilla Indian University Teaching Collection. These Sioux Tribe of the Cheyenne River Reservation, Oregon; Confederated above mentioned Indian Tribes have Reservation, South Dakota; Crow Creek Tribes and Bands of the Yakama Nation, filed a joint claim for repatriation of the Sioux Tribe of the Crow Creek Washington; Nez Perce Tribe of Idaho; human remains. Reservation, South Dakota; Flandreau and Wanapum Band, a non–federally Officials of the Museum of Santee Sioux Tribe of South Dakota; recognized Indian group. Anthropology, Washington State Lower Brule Sioux Tribe of the Lower Between approximately 1950 and University have determined that, Brule Reservation, South Dakota; Lower 1970, human remains representing a pursuant to 25 U.S.C. 3001 (9–10), the Sioux Indian Community in the State of minimum of 23 individuals were human remains described above Minnesota; Oglala Sioux Tribe of the removed from various sites along the represent the physical remains of a Pine Ridge Reservation, South Dakota; lower Snake and mid–Columbia Rivers minimum of 23 individuals of Native Rosebud Sioux Tribe of the Rosebud by faculty or were donated to the American ancestry. Officials of the Indian Reservation, South Dakota; Department of Anthropology at Museum of Anthropology, Washington Santee Sioux Nation, Nebraska; Washington State University. The State University also have determined human remains were assembled and Shakopee Mdewakanton Sioux that, pursuant to 25 U.S.C. 3001 (2), used for a number of years in teaching Community of Minnesota; Sisseton– there is a relationship of shared group human osteology. No known Wahpeton Oyate of the Lake Traverse identity that can be reasonably traced individuals have been identified. No Reservation, South Dakota; Spirit Lake between the Native American human associated funerary objects are present. Tribe, North Dakota; Standing Rock remains and the Confederated Tribes of Sioux Tribe of North & South Dakota; The collection of human remains has become known as the Former the Colville Reservation, Washington; Upper Sioux Community, Minnesota; Confederated Tribes of the Umatilla and Yankton Sioux Tribe of South Washington State University Human Osteology Teaching Collection. Indian Reservation, Oregon; Dakota that this notice has been Institutional history within the Confederated Tribes and Bands of the published. department, including conversations Yakama Nation, Washington; Nez Perce Dated: May 4, 2008 with the late Dr. Grover Krantz who Tribe of Idaho; and Wanapum Band, a Sherry Hutt, assembled and used the collection, non–federally recognized Indian group. Manager, National NAGPRA Program. indicate that the human remains are Representatives of any other Indian [FR Doc. E8–13586 Filed 6–16–08; 8:45 am] from sites along the lower Snake and tribe that believes itself to be culturally affiliated with the human remain should BILLING CODE 4312–50–S mid–Columbia Rivers in southeastern Washington State. Osteological evidence contact Mary Collins, Director, Museum indicates that the 845 remains in the of Anthropology, Washington State DEPARTMENT OF THE INTERIOR Former Washington State University University, P.O. Box 644910, Pullman, Human Osteology Teaching Collection WA 99164–4910, telephone (508)335– National Park Service represent a minimum of 23 individuals 4314, before July 17, 2008. Repatriation of Native American ancestry. of the human remains to the Notice of Inventory Completion: Furthermore, the human remains that Confederated Tribes of the Colville Museum of Anthropology, Washington were removed date to the late Reservation, Washington; Confederated State University, Pullman, WA prehistoric period and historic sites Tribes of the Umatilla Indian AGENCY: National Park Service, Interior. along the lower Snake and middle Reservation, Oregon; Confederated Tribes and Bands of the Yakama Nation, ACTION: Notice. Columbia Rivers. The Confederated Tribes of the Washington; Nez Perce Tribe of Idaho; Notice is here given in accordance Colville Reservation, Washington; and Wanapum Band, a non–federally with the Native American Graves Confederated Tribes of the Umatilla recognized Indian group may proceed Protection and Repatriation Act Indian Reservation, Oregon; after that date if no additional claims (NAGPRA), 25 U.S.C., 3003, of the Confederated Tribes and Bands of the come forward. completion of an inventory of human Yakama Nation, Washington; Nez Perce The Museum of Anthropology, remains in the possession and control of Tribe of Idaho; and Wanapum Band, a Washington State University is the Museum of Anthropology, non–federally recognized Indian group, responsible for notifying the Washington State University, Pullman, are descendants of the communities of Confederated Tribes of the Colville WA. The human remains were removed the Native American people that used Reservation, Washington; Confederated from various locations in southeastern the lower Snake and Columbia Rivers. Tribes of the Umatilla Indian Washington State. Based on linguistic, oral tradition, Reservation, Oregon; Confederated This notice is published as part of the geographic and archeological evidence Tribes and Bands of the Yakama Nation, National Park Service’s administrative for the Columbia Plateau from Washington; Nez Perce Tribe of Idaho; responsibilities under NAGPRA, 25 prehistoric through the historic times, as and Wanapum Band, a non–federally U.S.C. 3003 (d)(3). The determinations well as consultation evidence, the recognized Indian group that this notice in this notice are the sole responsibility officials of Museum of Anthropology, has been published.

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Dated: June 3, 2008 south fork (Palagewan) and the lower River Reservation, California that this Sherry Hutt, Kern River below the south fork notice has been published. Manager, National NAGPRA Program. (Tubatulabal). Their neighbors are the Dated: May 4, 2008 [FR Doc. E8–13578 Filed 6–16–08; 8:45 am] Kawaiisu and the Yokuts. The Sherry Hutt, Bankalachi, which were a few miles BILLING CODE 4312–50–S Manager, National NAGPRA Program. from the Palagewan, resided in Yokuts territory. In 1857, the Kern River gold [FR Doc. E8–13569 Filed 6–16–08; 8:45 am] DEPARTMENT OF THE INTERIOR rush began in Palagewan territory. BILLING CODE 4312–50–S During 1862, a few Tubatulabal joined National Park Service the Owens Valley Paiute in hostilities DEPARTMENT OF THE INTERIOR against the Whites, and about this time, Notice of Inventory Completion: a group of Koso Indians settled in the National Park Service Raymond M. Alf Museum of Tubatulabal area, intermarrying with the Paleontology, Claremont, CA Kawaiisu. In 1863, American soldiers Notice of Inventory Completion: AGENCY: National Park Service, Interior. killed 35–40 Tubatulabal and Palagewan Rochester Museum & Science Center, men near Kernville. Between 1865 and Rochester, NY ACTION: Notice. 1875, the Tubatulabal began to practice AGENCY: National Park Service, Interior. Notice is here given in accordance agriculture and in 1893, the majority of ACTION: with the Native American Graves them and a few Palagewan survivors Notice. were allotted land in South Fork and Protection and Repatriation Act Notice is here given in accordance Kern Valleys. From 1900 to 1972, many (NAGPRA), 25 U.S.C. 3003, of the with the Native American Graves Tubatulabals moved to the Tule River completion of an inventory of human Protection and Repatriation Act Indian Reservation, north of the Kern remains in the control of the Raymond (NAGPRA), 25 U.S.C. 3003, of the valley region. It is reasonably believed M. Alf Museum of Paleontology, completion of an inventory of human that those that survived intermarried Claremont, CA. The human remains remains in the possession of the with the Yokut in the Kern County area. were removed from Kern County, CA. Rochester Museum & Science Center, Descendants of these Yokut are This notice is published as part of the Rochester, NY. The human remains members of the federally–recognized National Park Service’s administrative were removed from Point Spencer, AK. responsibilities under NAGPRA, 25 Santa Rosa Indian Community of the This notice is published as part of the U.S.C. 3003 (d)(3). The determinations Santa Rosa Rancheria, California (Tachi National Park Service’s administrative in this notice are the sole responsibility Yokut Tribe) and Tule River Indian responsibilities under NAGPRA, 25 of the museum, institution, or Federal Tribe of the Tule River Reservation, U.S.C. 3003 (d)(3). The determinations agency that has control of the Native California. in this notice are the sole responsibility American human remains. The National Officials of the Raymond M. Alf of the museum, institution, or Federal Park Service is not responsible for the Museum of Paleontology have agency that has control of the Native determinations in this notice. determined that, pursuant to 25 U.S.C. American human remains. The National A detailed assessment of the human 3001 (9–10), the human remains Park Service is not responsible for the remains was made by the Raymond M. described above represent the physical determinations in this notice. Alf Museum of Paleontology remains of one individual of Native A detailed assessment of the human professional staff and University of American ancestry. Officials of the remains was made by the Rochester California Los Angeles professional staff Raymond M. Alf Museum of Museum & Science Center professional member Archeologist Gail Kennedy, in Paleontology also have determined that, staff in consultation with consultation with representatives of the pursuant to 25 U.S.C. 3001 (2), there is representatives of the Bering Straits Santa Rosa Indian Community of the a relationship of shared group identity Foundation, a non–profit organization Santa Rosa Rancheria, California (Tachi that can be reasonably traced between representing the interests of the Bering Yokut Tribe). the Native American human remains Straits Native Corporation, Native In 1968–1969, human remains and the Santa Rosa Indian Community Brevig Mission Native Corporation, representing a minimum of one of the Santa Rosa Rancheria, California Village of Brevig Mission, Native Village individual were removed from Kern and Tule River Indian Tribe of the Tule of Teller, Teller Native Corporation, Valley, Bull Run Creek along the west River Reservation, California. Native Village of Wales, and Wales bank of the Kern River and directly west Representatives of any other Indian Native Corporation. of the River Kern community, or six tribe that believes itself to be culturally At an unknown date, human remains miles north of Kernville, Kern County, affiliated with the human remains representing a minimum of one CA, in an attempt to protect the bones should contact Don Lofgren, Director, individual were recovered from a grave from erosion. No known individual was Raymond M. Alf Museum of at Point Spencer, near Cape Prince of identified. No associated funerary Paleontology, 1175 West Baseline Road, Wales, AK, by Lt. Phillip J. Launer. The objects are present. Claremont, CA 91711, telephone (909) human remains were donated to the This site has been identified as a 624–2798, before July 17, 2008. Rochester Museum & Science Center in habitation site of the Tubatulabal. The Repatriation of the human remains to 1945. No known individual was Tubatulabal were loosely organized into the Santa Rosa Indian Community of the identified. Funerary objects documented three discrete bands called Pahkanapil, Santa Rosa Rancheria, California may as being collected are missing from the Palagewan, and Bankalachi proceed after that date if no additional museum collection. (Smithsonian, Handbook of North claimants come forward. Physical examination of the human American Indians, Book 8, 1978). The Raymond M. Alf Museum of remains indicates they are of Native Tubatulabal are considered Kern River Paleontology is responsible for notifying American ancestry. Point Spencer is Indians, speak an Uto–Aztecan the Santa Rosa Indian Community of the located at the end of a sand spit on the language, and live in the Kern River/ Santa Rosa Rancheria, California and south coast of the Seward Peninsula in Lake Isabella area, which include the Tule River Indian Tribe of the Tule Western Alaska. Archeological evidence

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indicates a relatively stable population DEPARTMENT OF THE INTERIOR Affiliated Tribes of the Fort Berthold residing on the Seward Peninsula Reservation, North Dakota. continuously for over 1,000 years. The National Park Service Officials of the Rochester Museum & 1893 U.S. Census listed a collective Science Center have determined that, Notice of Inventory Completion: village on Point Spencer with a pursuant to 25 U.S.C. 3001 (9–10), the Rochester Museum & Science Center, population of 485, of which 236 were human remains described above Rochester, NY Alaska Natives and 249 were foreign. represent the physical remains of one The Alaska Native descendants of Point AGENCY: National Park Service, Interior. individual of Native American ancestry. Officials of the Rochester Museum & Spencer are members at the Native ACTION: Notice. Village of Brevig Mission, Native Village Science Center also have determined that, pursuant to 25 U.S.C. 3001 (2), of Teller, and Native Village of Wales. Notice is here given in accordance with the Native American Graves there is a relationship of shared group Officials of the Rochester Museum & Protection and Repatriation Act identity that can be reasonably traced Science Center have determined that, (NAGPRA), 25 U.S.C. 3003, of the between the Native American human pursuant to 25 U.S.C. 3001 (9–10), the completion of an inventory of human remains and the Three Affiliated Tribes human remains described above remains in the possession of the of the Fort Berthold Reservation, North represent the physical remains of one Rochester Museum & Science Center, Dakota. individual of Native American ancestry. Rochester, NY. The human remains Representatives of any other Indian Officials of the Rochester Museum & were removed from Walworth County, tribe that believes itself to be culturally Science Center also have determined SD. affiliated with the human remains that, pursuant to 25 U.S.C. 3001 (3)(A), This notice is published as part of the should contact Gian Carlo Cervone, there is a relationship of shared group National Park Service’s administrative Rochester Museum & Science Center, identity that can be reasonably traced responsibilities under NAGPRA, 25 657 East Avenue, Rochester, NY 14607– between the Native American human U.S.C. 3003 (d)(3). The determinations 2177, telephone (585) 271–4552, ext. remains and the Bering Straits Native in this notice are the sole responsibility 310, before July 17, 2008. Repatriation Corporation, Native Brevig Mission of the museum, institution, or Federal of the human remains to the Three Native Corporation, Village of Brevig agency that has control of the Native Affiliated Tribes of the Fort Berthold Reservation, North Dakota may proceed Mission, Native Village of Teller, Teller American human remains. The National after that date if no additional claimants Native Corporation, Native Village of Park Service is not responsible for the come forward. Wales, and Wales Native Corporation. determinations in this notice. A detailed assessment of the human The Rochester Museum & Science Representatives of any other Indian remains was made by the Rochester Center is responsible for notifying the tribe that believes itself to be culturally Museum & Science Center professional Three Affiliated Tribes of the Fort affiliated with the human remains staff in consultation with Berthold Reservation, North Dakota that should contact Gian Carlo Cervone, representatives of the Three Affiliated this notice has been published. Rochester Museum & Science Center, Tribes of the Fort Berthold Reservation, Dated: May 12, 2008. 657 East Avenue, Rocherster, NY North Dakota. Sherry Hutt, 14607–2177, telephone (585) 271–4552, In the 1920s, human remains Manager, National NAGPRA Program. ext. 310, before July 17, 2008. representing a minimum of one [FR Doc. E8–13594 Filed 6–16–08; 8:45 am] Repatriation of the human remains to individual were removed from the BILLING CODE 4312–50–S the Bering Straits Foundation on behalf Mobridge site (39WW1), Walworth of the Bering Straits Native Corporation, County, SD, by W.H. Over. Mr. Over Native Brevig Mission Native sold the human remains to the museum DEPARTMENT OF THE INTERIOR Corporation, Village of Brevig Mission, in 1927. No known individual was Native Village of Teller, Teller Native identified. No associated funerary National Park Service Corporation, Native Village of Wales, objects are present. and Wales Native Corporation may Osteological examination of the Notice of Inventory Completion: Slater Museum of Natural History, University proceed after that date if no additional human remains indicates that they are of Puget Sound, Tacoma, WA claimants come forward. of likely Native American ancestry. In Mobridge Site Cemeteries: Controversy The Rochester Museum & Science AGENCY: National Park Service, Interior. Concerning the Location of the Over and ACTION: Notice. Center is responsible for notifying the Stirling Burials, Douglas W. Owsley Bering Straits Foundation, Bering Straits identified a number of human remains Notice is here given in accordance Native Corporation, Native Brevig from the Mobridge site as Arikara based with the Native American Graves Mission Native Corporation, Village of on morphological traits (1981). Protection and Repatriation Act Brevig Mission, Native Village of Teller, Diagnostic architecture and artifacts (NAGPRA), 25 U.S.C. 3003, of the Teller Native Corporation, Native found at the Mobridge site, including completion of an inventory of human Village of Wales, and Wales Native circular, semi–subterranean structures remains and associated funerary objects Corporation that this notice has been and Native–made glass pendants, in the possession of the Slater Museum published. indicate that the human remains were of Natural History, University of Puget Dated: May 12, 2008. probably buried by the Arikara during Sound, Tacoma, WA. The human the post–contact Coalescent Traditional Sherry Hutt, remains and associated funerary objects period (A.D. 1675–1780). In 1870, the were removed from Akun Island, AK. Manager, National NAGPRA Program. Arikara, Hidatsa, and Mandan tribes This notice is published as part of the [FR Doc. E8–13595 Filed 6–16–08; 8:45 am] were moved to the Fort Berthold Indian National Park Service’s administrative BILLING CODE 4312–50–S Reservation in North Dakota. responsibilities under NAGPRA, 25 Descendants of the Arikara, Hidatsa, U.S.C. 3003 (d)(3). The determinations and Mandan are members of the Three in this notice are the sole responsibility

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of the museum, institution, or Federal Warner, Tacoma, WA 98416, telephone Wn. Indian remains about 1933. Alcorn. agency that has control of the Native (253) 879–2784, before July 17, 2008. To museum. Round Case.’’ No known American human remains and Repatriation of the human remains and individuals were identified. No associated funerary objects. The associated funerary objects to the Native associated funerary objects are present. National Park Service is not responsible Village of Akutan may proceed after that The postcranial remains were for the determinations in this notice. date if no additional claimants come examined by a contracted physical A detailed assessment of the human forward. anthropologist who determined they remains was made by Slater Museum of The Slater Museum of Natural History represent one older adult male and one Natural History, University of Puget is responsible for notifying the Native adult female. Ancestry could not be Sound professional staff and a Village of Akutan that this notice has determined due to the lack of cranial consultant in consultation with been published. remains. However, there have been at representatives of the Akutan Tribal Dated: May 12, 2008 least four Native American burials Council from the Native Village of reportedly found by local residents on Akutan. Sherry Hutt, Day Island since the early 20th century. On July 17, 1974, human remains Manager, National NAGPRA Program. Based on the likely provenience from representing a minimum of one [FR Doc. E8–13567 Filed 6–16–08; 8:45 am] museum records and previous finds of individual were removed from Akun BILLING CODE 4312–50–S Native American burials in that area, Island, AK. The human remains were officials of the Slater Museum of Natural donated to the Slater Museum on History, University of Puget Sound, January 3, 1975. The identity of the DEPARTMENT OF THE INTERIOR reasonably believe that the human donor was recorded only as ‘‘Tim.’’ No remains are most likely of Native National Park Service known individual was identified. The American ancestry. 29 associated funerary objects are 19 Notice of Inventory Completion: Slater Day Island is located in the nonhuman bones (some with fine Museum of Natural History, University southeastern Puget Sound region, an cutmarks and others that have been of Puget Sound, Tacoma, WA area historically utilized by the worked), 8 worked stones, and 2 Steilacoom, Puyallup, and Nisqually obsidian flakes. AGENCY: National Park Service, Interior. tribes. While the Indian Claims The individual is most likely of ACTION: Notice. Commission (ICC) found Day Island to Native American ancestry as indicated be outside of the exclusive treaty–time by the association of the human remains Notice is here given in accordance territory of any one Native group, both with the worked points and stones. The with the Native American Graves the Nisqually Indian Tribe and Puyallup geographical location where the human Protection and Repatriation Act Tribe of Indians included Day Island remains were recovered is consistent (NAGPRA), 25 U.S.C. 3003, of the within their original land claims with the historically documented completion of an inventory of human presented to the ICC. While there is no territory of the Native Village of Akutan. remains in the possession of the Slater known evidence that an ethnographic Furthermore, based on information Museum of Natural History, University village was located on Day Island, provided during consultation with tribal of Puget Sound, Tacoma, WA. The evidence reviewed by the museum representatives, there is a reasonable human remains were removed from demonstrates Day Island was used as a belief that the human remains share a Pierce County, WA. resource procurement site by the common ancestry with members of the This notice is published as part of the Nisqually and Puyallup Tribes, as well Native Village of Akutan. National Park Service’s administrative as the Steilacoom people. There are Officials of the Slater Museum of responsibilities under NAGPRA, 25 three recorded ethnographic villages Natural History have determined that, U.S.C. 3003 (d)(3). The determinations located within four miles of Day Island pursuant to 25 U.S.C. 3001 (9–10), the in this notice are the sole responsibility which were occupied by members of the human remains described above of the museum, institution, or Federal Steilacoom, Puyallup, and Nisqually represent the physical remains of one agency that has control of the Native peoples. individual of Native American ancestry. American human remains. The National The Steilacoom are a non–federally Officials of the Slater Museum of Park Service is not responsible for the recognized tribe who were signatories of Natural History also have determined determinations in this notice. the Treaty of Medicine Creek (1854) and that, pursuant to 25 U.S.C. 3001 (3)(A), A detailed assessment of the human who were not granted exclusive the 29 objects described above are remains was made by the Slater reservation land. The Nisqually Indian reasonably believed to have been place Museum of Natural History, University Tribe provided evidence claiming with or near individual human remains of Puget Sound professional staff and a residents of the Steilacoom villages at at the time of death or later as part of consultant in consultation with Clover Creek and Steilacoom (now the death rite or ceremony. Lastly, representatives of the Muckleshoot Chambers) Creek had joined the officials of the Slater Museum of Natural Indian Tribe of the Muckleshoot Nisqually Indian Tribe after the Treaty History also have determined that, Reservation, Washington; Nisqually of Medicine Creek. Evidence also shows pursuant to 25 U.S.C. 3001 (2), there is Indian Tribe of the Nisqually that some residents of the Steilacoom a relationship of shared group identity Reservation, Washington; Puyallup Creek village joined the Puyallup Tribe. that can be reasonably traced between Tribe of the Puyallup Reservation, To the north of Day Island, across the the Native American human remains Washington; and Squaxin Island Tribe Narrows in Wollochet Bay, was the and associated funerary objects and the of the Squaxin Island Reservation, third closest ethnographic village; this Native Village of Akutan Washington. was considered by the ethnographer Representatives of any other Indian In 1933, human remains representing Marian Smith to be affiliated with the tribe that believes itself to be culturally a minimum of two individuals were Puyallup Tribe (1941:207). The multiple affiliated with the human remains and removed from Day Island in Pierce affiliations of these nearby villages associated funerary objects should County, WA. The human remains were demonstrate joint use and occupation contact Dr. Peter Wimberger, Slater found in the Slater Museum collections surrounding Day Island. Additionally, Museum of Natural History, 1500 N. with a note reading ‘‘Day Is., Pierce Co., Day Island may have been used for

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burials of Native Americans interned at DEPARTMENT OF THE INTERIOR Unified School District, Los Angeles Fox Island during the Treaty Wars. County, CA, under the supervision of Members of the Nisqually, Puyallup, National Park Service Charles H. Stephens. In the course of an Squaxin, and Steilacoom Tribes were investigation of the activities of Mr. Notice of Inventory Completion: U.S. reported to have been held there Stephens by Law Enforcement officers Department of Agriculture, Forest (Carpenter 1987). This evidence, in of the Forest Service, the collections Service, Tonto National Forest, conjunction with the Indian Claim from the Dugan Ranch Ruin, including Phoenix, AZ, and Arizona State all excavated human remains and Commission’s determination of the area University, School of Evolution and as non–exclusive to any particular tribe, funerary objects, were recovered and Social Change, Phoenix, AZ transferred to the Department of suggests Day Island is within the Anthropology at Arizona State traditional territory of all three local AGENCY: National Park Service, Interior. University for curation. No known groups: the Steilacoom, Nisqually, and ACTION: Notice. individuals were identified. The Puyallup Tribes. The descendants of the Notice is here given in accordance approximately 50 associated funerary Steilacoom, Nisqually, and Puyallup objects are pottery sherds. Tribes are members of the federally– with the Native American Graves Protection and Repatriation Act Dugan Ranch Ruin is a masonry room recognized Nisqually Indian Tribe of the block with interior courtyards that was Nisqually Reservation, Washington, and (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human occupied principally in the Late Puyallup Tribe of the Puyallup Classical Period (A.D. 1300–1400) and remains and associated funerary objects Reservation, Washington. was associated with the Verde Hohokam in the control of the U.S. Department of archeological culture in central Arizona Officials of the Slater Museum have Agriculture, Forest Service, Tonto based on the ceramics, architecture, and determined that, pursuant to 25 U.S.C. National Forest, Phoenix, AZ, and in the organization of the site. Based on oral 3001 (9–10), the human remains possession of Arizona State University, traditions and continuities of artifactual described above represent the physical School of Evolution and Social Change, materials, technology and architecture, remains of two individuals of Native Phoenix, AZ. The human remains and officials of the Tonto National Forest associated funerary objects were American ancestry. Officials of the have determined that the Ak Chin removed from the Dugan Ranch Ruin, Slater Museum also have determined Indian Community of the Maricopa (Ak that, pursuant to 25 U.S.C. 3001 (2), Yavapai County, AZ. Chin) Indian Reservation, Arizona; Gila there is a relationship of shared group This notice is published as part of the River Indian Community of the Gila identity that can be reasonably traced National Park Service’s administrative River Indian Reservation, Arizona; Salt between the Native American human responsibilities under NAGPRA, 25 River Pima–Maricopa Indian remains and the Nisqually Indian Tribe U.S.C. 3003 (d)(3). The determinations Community of the Salt River of the Nisqually Reservation, in this notice are the sole responsibility Reservation, Arizona; and Tohono Washington and Puyallup Tribe of the of the museum, institution, or Federal O’odham Nation of Arizona; and to, a Puyallup Reservation, Washington. agency that has control of the Native lesser extent, the Hopi Tribe of Arizona; American human remains and and Zuni Tribe of the Zuni Reservation, Representatives of any other Indian associated funerary objects. The tribe that believes itself to be culturally New Mexico, have a shared group National Park Service is not responsible identity to the Native American human affiliated with the human remains for the determinations in this notice. remains and associated funerary objects should contact Peter Wimberger, Slater A detailed assessment of the human of the Hohokam archeological culture. Museum of Natural History, University remains was made by Arizona State In accordance with the Plan for the of Puget Sound, 1500 N. Warner, University, School of Evolution and Treatment and Disposition of Human Tacoma, WA 98416, telephone (253) Social Change (formerly Department of Remains and Other Cultural Items from 879–2784, before July 17, 2008. Anthropology) professional staff and the Tonto National Forest Pursuant to Repatriation of the human remains to Tonto National Forest professional staff the Native American Graves Protection the Nisqually Indian Tribe of the in consultation with representatives of and Repatriation Act (as revised in Nisqually Reservation, Washington and the Ak Chin Indian Community of the 2001), it has been determined that the Puyallup Tribe of the Puyallup Maricopa (Ak Chin) Indian Reservation, primary cultural affiliation of these Reservation, Washington may proceed Arizona; Gila River Indian Community human remains and associated funerary after that date if no additional claimants of the Gila River Indian Reservation, objects is with the Ak Chin Indian come forward. Arizona; Salt River Pima–Maricopa Community of the Maricopa (Ak Chin) Indian Community of the Salt River Indian Reservation, Arizona; Gila River The Slater Museum is responsible for Reservation, Arizona; Tohono O’odham notifying the Muckleshoot Indian Tribe Indian Community of the Gila River Nation of Arizona (collectively known Indian Reservation, Arizona; Salt River of the Muckleshoot Reservation, as the ‘‘Four Southern Tribes’’); Hopi Pima–Maricopa Indian Community of Washington; Nisqually Indian Tribe of Tribe of Arizona; and Zuni Tribe of the the Salt River Reservation, Arizona; and the Nisqually Reservation, Washington; Zuni Reservation, New Mexico. Tohono O’odham Nation of Arizona; Puyallup Tribe of the Puyallup In 1968 and 1969, human remains and that they will be repatriated to the Reservation, Washington; and Squaxin representing a minimum of 17 Salt River Pima–Maricopa Indian Island Tribe of the Squaxin Island individuals were removed from the Community of the Salt River Reservation, Washington that this notice Dugan Ranch Ruin [AZ O:13:0004 Reservation, Arizona, as the designated has been published. (ASU); AR–03–12–01–027] in Yavapai representative of the ‘‘Four Southern Dated: May 21, 2008 County, AZ. The site was excavated Tribes’’ for NAGPRA issues north of the under a permit to the Southwestern Gila and Salt River Baseline in Arizona, Sherry Hutt, Society for Indian Archaeology, Walnut which area includes the location of Manager, National NAGPRA Program. City, CA, from the Tonto National Dugan Ranch Ruin. [FR Doc. E8–13570 Filed 6–16–08; 8:45 am] Forest. The excavations were carried out Officials of the Tonto National Forest BILLING CODE 4312–50–S by high school students from the Bassett have determined that, pursuant to 25

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U.S.C. 3001 (9–10), the human remains DEPARTMENT OF THE INTERIOR Based on the composition of the described above represent the physical artifactual collection, site organization, remains of 17 individuals of Native National Park Service the location of the site in the heart of the American ancestry. Officials of the aboriginal lands of the Chumash and the Notice of Inventory Completion: U.S. probability that the site is one of the Tonto National Forest also have Department of Agriculture, Forest named Chumash villages, officials of the determined that, pursuant to 25 U.S.C. Service, Los Padres National Forest, 3001 (3)(A), the approximately 50 Goleta, CA, and Santa Barbara Los Padres National Forest have objects described above are reasonably Museum of Natural History, Santa determined that the human remains and believed to have been placed with or Barbara, CA associated funerary objects from the near individual human remains at the Sunset Valley Site are culturally time of death or later as part of the death AGENCY: National Park Service, Interior. affiliated with the Santa Ynez Band of rite or ceremony. Lastly, officials of the ACTION: Notice. Chumash Indians of the Santa Ynez Reservation, California. Oral traditions Tonto National Forest have determined Notice is here given in accordance provided by representatives of the Santa that, pursuant to 25 U.S.C. 3001 (2), with the Native American Graves Ynez Band of Chumash Indians of the there is a relationship of shared group Protection and Repatriation Act Santa Ynez Reservation, California identity that can be reasonably traced (NAGPRA), 25 U.S.C. 3003, of the between the Native American human completion of an inventory of human support cultural affiliation. remains and associated funerary objects remains and associated funerary objects Officials of the Los Padres National and the Ak Chin Indian Community of in the control of the U.S. Department of Forest have determined that, pursuant the Maricopa (Ak Chin) Indian Agriculture, Forest Service, Los Padres to 25 U.S.C. 3001 (9–10), the human Reservation, Arizona; Gila River Indian National Forest, Goleta, CA, and in the remains described above represent the Community of the Gila River Indian possession of the Santa Barbara physical remains of seven individuals of Reservation, Arizona; Hopi Tribe of Museum of Natural History, Santa Native American ancestry. Officials of Arizona; Salt River Pima–Maricopa Barbara, CA. The human remains and the Los Padres National Forest also have Indian Community of the Salt River associated funerary objects were determined that, pursuant to 25 U.S.C. Reservation, Arizona; Tohono O’odham removed from the Sunset Valley Site, 3001 (3)(A), the approximately 48 Nation of Arizona; and Zuni Tribe of the Santa Barbara County, CA. objects described above are reasonably Zuni Reservation, New Mexico. This notice is published as part of the believed to have been placed with or National Park Service’s administrative Representatives of any other Indian near individual human remains at the responsibilities under NAGPRA, 25 time of death or later as part of the death tribe that believes itself to be culturally U.S.C. 3003 (d)(3). The determinations rite or ceremony. Lastly, officials of the affiliated with the human remains and/ in this notice are the sole responsibility Los Padres National Forest have or associated funerary objects should of the museum, institution, or Federal determined that, pursuant to 25 U.S.C. contact Dr. Frank E. Wozniak, NAGPRA agency that has control of the Native 3001 (2), there is a relationship of Coordinator, Southwestern Region, American human remains and shared group identity that can be USDA Forest Service, 333 Broadway associated funerary objects. The reasonably traced between the Native Blvd., SE, Albuquerque, NM 87102, National Park Service is not responsible for the determinations in this notice. American human remains and telephone (505) 842–3238, before July associated funerary objects and the 17, 2008. Repatriation of the human A detailed assessment of the human remains was made by Santa Barbara Santa Ynez Band of Chumash Indians of remains and associated funerary objects the Santa Ynez Reservation, California. to the Salt River Pima–Maricopa Indian Museum of Natural History and Los Community of the Salt River Padres National Forest professional staff Representatives of any other Indian in consultation with representatives of Reservation, Arizona may proceed after tribe that believes itself to be culturally the Santa Ynez Band of Chumash that date if no additional claimants affiliated with the human remains and Indians of the Santa Ynez Reservation, come forward. associated funerary objects should California. contact Joan Brandoff–Kerr, Forest The Tonto National Forest is In 1935, human remains representing Archaeologist, Los Padres National responsible for notifying the Ak Chin a minimum of seven individuals were Forest, Suite 150, 6755 Hollister Indian Community of the Maricopa (Ak removed from the Sunset Valley Site in Avenue, Goleta, CA 93117, telephone Chin) Indian Reservation, Arizona; Gila Santa Barbara County, CA, by Milton (805) 967–3481, ext. 215, before July 17, River Indian Community of the Gila Snow and David Banks Rogers of the 2008. Repatriation of the human River Indian Reservation, Arizona; Hopi Santa Barbara Museum of Natural remains and associated funerary objects Tribe of Arizona; Salt River Pima– History, as part of archeological to the Santa Ynez Band of Chumash investigations authorized by the Forest Maricopa Indian Community of the Salt Indians of the Santa Ynez Reservation, Service. The human remains were River Reservation, Arizona; Tohono California may proceed after that date if curated at the Santa Barbara Museum of O’odham Nation of Arizona; and Zuni no additional claimants come forward. Tribe of the Zuni Reservation, New Natural History. No known individuals were identified. The approximately 48 Los Padres National Forest is Mexico that this notice has been associated funerary objects are shell and responsible for notifying the Santa Ynez published. bone ornaments, glass bead, shell fish Band of Chumash Indians of the Santa Dated: May 21, 2008 hooks, eagle claws, stone vessels and Ynez Reservation, California that this Sherry Hutt, tools, a projectile point, and pieces of notice has been published. Manager, National NAGPRA Program. pigment. Dated: May 21, 2008. The Sunset Valley Site consists of a [FR Doc. E8–13574 Filed 6–16–08; 8:45 am] large midden with possible habitation Sherry Hutt, BILLING CODE 4312–50–S structures. The site was probably Manager, National NAGPRA Program. occupied in the early historic/mission [FR Doc. E8–13604 Filed 6–16–08; 8:45 am] period in California (A.D. 1769–1823). BILLING CODE 4312–50–S

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DEPARTMENT OF THE INTERIOR In 1972, human remains representing territorial realignments through time a minimum of one individual were and, ultimately, tribal conglomerations National Park Service removed from site 35–JA–23, also and mergers resulting from mid–19th known as the Fawn Butte Spring Site, Century treaty negotiations with the Notice of Inventory Completion: U.S. Jackson County, OR, during excavations U.S. Government, make determination Department of Defense, Army Corps of by Oregon State University prior to of the sites’ cultural affiliation Engineers, Portland District, Portland, construction of the proposed Lost Creek uncertain. The sites described above are OR, and Oregon State University Lake Dam. The excavations were within or near the traditional lands of Department of Anthropology, Corvallis, conducted on Fawn Butte above an the present–day Confederated Tribes of OR ephemeral branch of Lost Creek, a Coos, Lower Umpqua and Siuslaw AGENCY: National Park Service, Interior. tributary of the Rogue River. No known Indians of Oregon; Confederated Tribes ACTION: Notice. individual was identified. The 147 of the Grand Ronde Community of associated funerary objects are 1 Oregon; Confederated Tribes of the Notice is here given in accordance chalcedony knife, 1 projectile point, 1 Siletz Reservation, Oregon; Cow Creek with the Native American Graves projectile point tip fragment, 5 bifaces, Band of Umpqua Indians of Oregon; Protection and Repatriation Act 1 end scraper, 1 graver, 1 burin, 1 burin- Klamath Tribes, Oregon; and Modoc (NAGPRA), 25 U.S.C. 3003, of the like flake tool, 6 utilized flakes, 3 cores, Tribe of Oklahoma. The Coquille Tribe completion of an inventory of human 3 core reduction fragments, 119 debitage of Oregon has indicated both sites are remains and associated funerary objects flakes and fragments, 1 unidentified located outside of their ancestral in the control of the U.S. Department of lithic item, 1 bag of wood fragments, territory. Defense, Army Corps of Engineers, and 2 bags of burial dirt. The Confederated Tribes of the Coos, Portland District, Portland, OR, and in Site 35–JA–23 is a multicomponent Lower Umpqua and Siuslaw Indians of the possession of the Oregon State village that is believed to have been Oregon traditionally inhabited the University Department of Anthropology, occupied as early as 1200 years B.P. to headwaters, valleys and estuaries of the Corvallis, OR. The human remains and approximately A.D. 1800. Based on the Coos, Lower Umpqua and Siuslaw associated funerary objects were location of the human remains within Rivers along the central and south– removed from sites on Army Corps of the site and the associated artifacts, the central Oregon coast. The tribes spoke Engineers land within the Lost Creek individual has been determined to be diverse dialects within the Hanis, Lake Dam project area on the Rogue Native American. Milluk, Athapascan, Kuitsch, and River, Jackson County, OR. In 1972–1973, human remains Siuslaw language groups. The tribes This notice is published as part of the representing a minimum of two have been operating under a National Park Service’s administrative individuals were removed from site 35– confederated government since signing responsibilities under NAGPRA, 25 JA–25, also known as the Far Hills a treaty with the U.S. Government in U.S.C. 3003 (d)(3). The determinations Ranch Site, Jackson County, OR, during 1855. Many tribal members were in this notice are the sole responsibility excavations conducted by Oregon State removed to the Siletz Reservation, the of the museum, institution, or Federal University prior to construction of the Alsea sub agency, and other federal agency that has control of the Native proposed Lost Creek Lake Dam. The military encampments along the south– American human remains and excavations were conducted below the central Oregon coast during the mid to associated funerary objects. The mouth of Long Branch Creek on the late–19th Century. The Confederated National Park Service is not responsible west bank of the Rogue River. No known Tribes of the Coos, Lower Umpqua and for the determinations in this notice. individuals were identified. The 19 Siuslaw Indians of Oregon were A detailed assessment of the human associated funerary objects are 8 shell terminated from federal recognition in remains was made by Oregon State beads, 5 olivella beads, 1 pine nut bead, 1954 and restored in 1984. University Department of Anthropology 2 shell pendants, 1 ulna awl, and 2 The Confederated Tribes of the Grand and U.S. Army Corps of Engineers, lithic fragments. Ronde Community of Oregon, include at Portland District professional staff in Site 35–JA–25 is a small cemetery and least 26 tribes and bands whose consultation with representatives of the village dating from before A.D. 1400 to ancestral homelands span across Confederated Tribes of Coos, Lower A.D. 1700. The cemetery appears to western Oregon, southwestern Umpqua and Siuslaw Indians of Oregon; have been used prior to A.D. 1400 and Washington and northern California. Confederated Tribes of the Grand Ronde the village was primarily occupied The Grand Ronde tribes and bands Community of Oregon; Confederated between A.D. 1500 and A.D. 1700. include the Rogue River, Umpqua, Tribes of the Siletz Reservation, Oregon; Ninety–two additional human burials Chasta, Kalapuya, Molala, Clackamas, Coquille Tribe of Oregon; Cow Creek located on private property at the site Salmon River, Tillamook, and Nestucca, Band of Umpqua Indians of Oregon; were exhumed at an undetermined date as well as other smaller groups. At the Klamath Tribes, Oregon (formerly the prior to World War II, during time of contact, the individual groups Klamath Indian Tribe of Oregon); and construction of private ranch facilities, spoke 30 dialects of the Athapascan, Modoc Tribe of Oklahoma. and re–interred approximately five Chinookan, Kalapuyan, Takelman, Native American cultural items miles to the north in Trail, OR. Based Molalan, Sahaptin, Salishan, and described in this notice were excavated on the location of the human remains Shastan language families. In 1856– under Antiquities Act permits by the within the site and the associated 1857, the U.S. Government forcibly Oregon State University Department of artifacts, both individuals removed have relocated the Grand Ronde peoples to Anthropology, Corvallis, OR, on Army been determined to be Native American. the Grand Ronde Reservation at the Corps of Engineers project lands. Ethnographic records suggest the headwaters of the South Yamhill River Following excavations at the sites areas surrounding sites 35–JA–23 and in Yamhill and Polk Counties, OR. The described below, and under the 35–JA–25 were likely occupied by the Confederated Tribes of the Grand Ronde provisions of the permits, the Oregon Takelma and possibly Southern Molala Community of Oregon were first State University Department of bands during the early Contact period. incorporated in 1935, terminated from Anthropology was allowed to retain the However, overlapping territories, shared federal recognition in 1954, and restored collections for preservation. use of resource gathering areas, possible with tribal recognition in 1983.

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The Confederated Tribes of the Siletz 1954, and then restored as a federally that date if no additional claimants Reservation, Oregon, are a confederation recognized tribe in 1986. come forward. The Confederated Tribes of 30 bands whose ancestral territory The Modoc Tribe of Oklahoma and of Coos, Lower Umpqua and Siuslaw ranged along the entire Oregon coast the Klamath Tribes, Oregon, have a Indians of Oregon, Coquille Tribe of and Coast Range, inland to the main shared ancestry. The traditional Modoc Oregon, and Klamath Tribes, Oregon, in divide of the Cascade Range and south homeland consisted of some 5,000 consultation with the U.S. Army Corps to the Rogue River watershed. The square miles along what is now the of Engineers, Portland District, have principal tribes include the Clatsop, California–Oregon border. Following the indicated their desire to defer their Chinook, Klickitat, Molala, Kalapuya, conclusion of the Modoc War in 1873, interest to the other mentioned Tribes. Tillamook, Alsea, Siuslaw/Lower the Modoc people were relocated to the The U.S. Army Corps of Engineers, Umpqua, Coos, Coquille, Upper Quapaw Reservation in Oklahoma. In Portland District is responsible for Umpqua, Tututni, Chetco, Tolowa, 1909, the Modoc were granted notifying the Confederated Tribes of Takelma or Upper Rogue River, Galice/ permission to return to Oregon. Those Coos, Lower Umpqua and Siuslaw Applegate, and Shasta. The ancestors of who returned became part of the Indians of Oregon; Confederated Tribes the confederated tribes spoke at least 10 Klamath Tribes, Oregon. The Modoc of the Grand Ronde Community of different base languages, many with Tribe of Oklahoma and the Klamath Oregon; Confederated Tribes of the strong dialectic divisions even within Tribes, Oregon, have formally agreed Siletz Reservation, Oregon; Coquille the same language. In general, five that repatriation of human remains from Tribe of Oregon; Cow Creek Band of linguistic stocks – Salish, Yakonan, the historically documented territory of Umpqua Indians of Oregon; Klamath Kusan, Takelman, and Athapascan – are the Klamath Tribes should go to the Tribes, Oregon; and Modoc Tribe of represented by the tribes. The tribes Klamath Tribes, Oregon, for reburial. Oklahoma that this notice has been were forcibly removed from their Officials of the U.S. Army Corps of published. Engineers, Portland District have homelands in 1855 by the U.S. Dated: May 21, 2008 Government and placed on the Siletz determined that, pursuant to 25 U.S.C. 3001 (9–10), the human remains Sherry Hutt, and Grand Ronde reservations. After Manager, National NAGPRA Program. having their tribal status terminated described above represent the physical [FR Doc. E8–13577 Filed 6–17–08; 8:45 am] from federal recognition in 1954, the remains of at least three individuals of Confederated Tribes of the Siletz Native American ancestry. Officials of BILLING CODE 4312–50–S Reservation, Oregon were officially the U.S. Army Corps of Engineers, restored in 1977. Portland District also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), DEPARTMENT OF THE INTERIOR The Cow Creek Band of Umpqua the 166 objects described above are Indians of Oregon traditionally reasonably believed to have been placed National Park Service occupied the rugged, forested territory with or near individual human remains Notice of Inventory Completion: U.S. extending from the Cow Creek at the time of death or later as part of Department of the Interior, Bureau of watershed in the Coast Range to the the death rite or ceremony. Lastly, Land Management, Alaska State Office, North and South Forks of the Umpqua officials of the U.S. Army Corps of Anchorage, AK, and Alaska Office of River along the western slope of the Engineers, Portland District have History and Archaeology, Anchorage, Cascades. They spoke Takelma, a determined that, pursuant to 25 U.S.C. AK language in the Takelman-Kalapuyan 3001 (2), there is a relationship of division of the Penutian language stock. shared group identity that can be AGENCY: National Park Service, Interior. After treaty negotiations with the U.S. reasonably traced between the Native ACTION: Notice. Government in 1853 led to subsequent American human remains and hostilities and the removal of many associated funerary objects and the Notice is here given in accordance tribal members to the Grand Ronde Confederated Tribes of Coos, Lower with the Native American Graves Reservation on the Yamhill River, a Umpqua and Siuslaw Indians of Oregon; Protection and Repatriation Act large group of Umpqua sought safety in Confederated Tribes of the Grand Ronde (NAGPRA), 25 U.S.C. 3003, of the remote areas of their traditional Community of Oregon; Confederated completion of an inventory of human homeland. The Cow Creek Band of Tribes of the Siletz Reservation, Oregon; remains in the control of the U.S. Umpqua Indians of Oregon was Cow Creek Band of Umpqua Indians of Department of the Interior, Bureau of terminated as a recognized tribe by the Oregon; Klamath Tribes, Oregon; and Land Management, Alaska State Office, federal government in 1954, and later Modoc Tribe of Oklahoma. Anchorage, AK, and in the possession of restored to federal recognition in 1982. Representatives of any other Indian the Alaska Office of History and The Klamath Tribes, Oregon, consist tribe that believes itself to be culturally Archaeology, Anchorage, AK. The of the Klamath, Modoc and Yahooskin affiliated with the human remains and human remains were removed from tribes. Their ancestral territory includes associated funerary objects should Amaknak Island and Unalaska Island, much of south–central Oregon from the contact Daniel Mulligan, NAGPRA AK. east slopes of the Cascades to the Coordinator, Environmental Resources This notice is published as part of the adjoining desert areas, northward to the Branch, U.S. Army Corps of Engineers, National Park Service’s administrative Deschutes River headwaters and as far Portland District, P. O. Box 2946, responsibilities under NAGPRA, 25 south as Mount Shasta in California. Portland, OR 97208–2946, telephone U.S.C. 3003 (d)(3). The determinations The tribes speak Klamath and Modoc, (503) 808–4768, before July 17, 2008. in this notice are the sole responsibility two closely-related dialects belonging to Repatriation of the human remains and of the museum, institution, or Federal the Plateau branch of the Penutian associated funerary objects to the agency that has control of the Native language family. The tribes were Confederated Tribes of the Grand Ronde American human remains. The National removed to the Klamath Reservation Community of Oregon, Cow Creek Band Park Service is not responsible for the immediately northeast of Upper of Umpqua Indians of Oregon, and/or determinations in this notice. Klamath Lake in the mid–1860s, Confederated Tribes of the Siletz A detailed assessment of the human terminated from federal recognition in Reservation, Oregon, may proceed after remains was made by the Bureau of

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Land Management and U.S. Fish and Alaska State NAGPRA Coordinator, General information concerning the Wildlife Service contractors working Bureau of Land Management, 222 W. Commission may also be obtained by under the supervision of the Alaska 7th Avenue, Box 13, Anchorage, AK accessing its Internet server (http:// Office of History and Archaeology 99513–7599, telephone (907) 271–5510, www.usitc.gov). The public record for professional staff in consultation with before July 17, 2008. Repatriation of the this review may be viewed on the representatives of the Qawalangin Tribe human remains to the Qawalangin Tribe Commission’s electronic docket (EDIS) of Unalaska. of Unalaska may proceed after that date at http://edis.usitc.gov. In 1950, human remains representing if no additional claimants come SUPPLEMENTARY INFORMATION: a minimum of 10 individuals were forward. Background. On June 6, 2008, the removed from the Eider Point site near The Bureau of Land Management is Commission determined that the Unalaska on Unalaska Island in the Fox responsible for notifying the Ounalaska domestic interested party group Island group of the eastern Aleutian Corporation and Qawalangin Tribe of response to its notice of institution (73 Islands, AK. No known individuals Unalaska that this notice has been FR 11440, March 3, 2008) of the subject were identified. No associated funerary published. five-year review was adequate and that objects are present. Dated: May 21, 2008 the respondent interested party group During the 1950s or 1960s, human response was inadequate. The Sherry Hutt, remains representing a minimum of one Commission did not find any other individual were removed from an Manager, National NAGPRA Program. circumstances that would warrant undetermined site near Unalaska on [FR Doc. E8–13584 Filed 6–16–08; 8:45 am] conducting a full review.1 Accordingly, Amaknak Island in the Fox Island group BILLING CODE 4312–50–S the Commission determined that it of the eastern Aleutian Islands, AK. No would conduct an expedited review known individual was identified. No pursuant to section 751(c)(3) of the Act.2 associated funerary objects are present. INTERNATIONAL TRADE Staff report. A staff report containing According to museum records, the COMMISSION information concerning the subject human remains from both sites were matter of the review will be placed in excavated by Dr. Ted Bank of Western [Investigation No. 731–TA–990 (Review)] the nonpublic record on June 26, 2008, Michigan University, Kalamazoo, MI, and made available to persons on the Non-Malleable Cast Iron Pipe Fittings under federal permits. All excavations Administrative Protective Order service From China were done on land managed by the list for this review. A public version Bureau of Land Management authority AGENCY: United States International will be issued thereafter, pursuant to at the time. In about 1998, the Museum Trade Commission. section 207.62(d)(4) of the of the Aleutians received the Western Commission’s rules. Michigan University archeological ACTION: Scheduling of an expedited five- year review concerning the antidumping Written submissions. As provided in collections from Unalaska and Amaknak section 207.62(d) of the Commission’s Islands, AK, including human remains duty order on non-malleable cast iron pipe fittings from China. rules, interested parties that are parties that had been in the possession of the to the review and that have provided now–deceased Dr. Bank. In about 2003, SUMMARY: The Commission hereby gives individually adequate responses to the human remains were moved to the notice of the scheduling of an expedited notice of institution,3 and any party University of Alaska, Anchorage, review pursuant to section 751(c)(3) of other than an interested party to the Anthropology Department. In 2004, the the Tariff Act of 1930 (19 U.S.C. review may file written comments with human remains were sent to the State of 1675(c)(3)) (the Act) to determine the Secretary on what determination the Alaska Office of History and whether revocation of the antidumping Commission should reach in the review. Archaeology for inventory. duty order on non-malleable cast iron Comments are due on or before July 1, Unalaska Island and nearby Amaknak pipe fittings from China would be likely 2008, and may not contain new factual Island have been inhabited for over to lead to continuation or recurrence of information. Any person that is neither 8,000 years by Aleut (Unangan) people. material injury within a reasonably a party to the five-year review nor an Based on geographical location, oral foreseeable time. For further interested party may submit a brief history, and archeological evidence, the information concerning the conduct of written statement (which shall not human remains from these two islands this review and rules of general contain any new factual information) are determined to be Native American application, consult the Commission’s pertinent to the review by July 1, 2008. and ancestors of the Qawalangin Tribe Rules of Practice and Procedure, part However, should the Department of of Unalaska. 201, subparts A through E (19 CFR part Commerce extend the time limit for its Officials of the Bureau of Land 201), and part 207, subparts A, D, E, and completion of the final results of its Management have determined that, F (19 CFR part 207). review, the deadline for comments pursuant to 25 U.S.C. 3001 (9–10), the DATES: Effective Date: June 6, 2008. (which may not contain new factual human remains described above information) on Commerce’s final represent the physical remains of 11 FOR FURTHER INFORMATION CONTACT: individuals of Native American Mary Messer (202–205–3193), Office of 1 A record of the Commissioners’ votes, the ancestry. Officials of the Bureau of Land Investigations, U.S. International Trade Commission’s statement on adequacy, and any Management also have determined that, Commission, 500 E Street, SW., individual Commissioner’s statements will be pursuant to 25 U.S.C. 3001 (2), there is Washington, DC 20436. Hearing- available from the Office of the Secretary and at the a relationship of shared group identity impaired persons can obtain Commission’s Web site. 2 Chairman Daniel R. Pearson and Vice Chairman that can be reasonably traced between information on this matter by contacting Shara L. Aranoff determined that the changes in the the Native American human remains the Commission’s TDD terminal on 202– conditions of competition warranted conducting a and the Qawalangin Tribe of Unalaska. 205–1810. Persons with mobility full review. Representatives of any other Indian impairments who will need special 3 The Commission has found the responses submitted by Anvil International, LP, and Ward tribe that believes itself to be culturally assistance in gaining access to the Manufacturing, LLP, to be individually adequate. affiliated with the human remains Commission should contact the Office Comments from other interested parties will not be should contact Dr. Robert E. King, of the Secretary at 202–205–2000. accepted (see 19 CFR 207.62(d)(2)).

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results is three business days after the million unsecured claim for the State of The United States’ claim arises from issuance of Commerce’s results. If Montana. In addition, ASARCO LLC the grounding of the vessel ‘‘Sea Ya’’ in comments contain business proprietary would agree to negotiate an Everglades National Park on September information (BPI), they must conform Administrative Order on Consent with 3, 2001. The grounding injured Park with the requirements of sections 201.6, the Montana DEQ for the investigation resources. Pursuant to the Agreement, 207.3, and 207.7 of the Commission’s and analysis of remedial options and to the United States will recover $150,000. rules. The Commission’s rules do not implement the remedy for portions of The Department of Justice will receive authorize filing of submissions with the the Iron Mountain Site currently owned Secretary by facsimile or electronic by ASARCO LLC. for a period of thirty (30) days from the date of this publication comments means, except to the extent permitted by For thirty (30) days after the date of relating to the Settlement Agreement. section 201.8 of the Commission’s rules, this publication, the Department of as amended, 67 FR 68036 (November 8, Justice will receive comments relating to Comments should be addressed to the 2002). Even where electronic filing of a the Settlement Agreement. Comments Assistant Attorney General, document is permitted, certain should be addressed to the Assistant Environment and Natural Resources documents must also be filed in paper Attorney General, Environment and Division, and either e-mailed to form, as specified in II (C) of the Natural Resources Division, and either [email protected] or Commission’s Handbook on Electronic e-mailed to pubcomment- mailed to P.O. Box 7611, U.S. Filing Procedures, 67 FR 68168, 68173 [email protected] or mailed to P.O. Department of Justice, Washington, DC (November 8, 2002). Box 7611, U.S. Department of Justice, 20044–7611, and should refer to the In accordance with sections 201.16(c) Washington, DC 20044–7611. In either Settlement Agreement between the and 207.3 of the rules, each document case, the comments should refer to In re United States and Thomas G. Mundy filed by a party to the review must be ASARCO LLC, et al., Iron Mountain Site, and the M/V Sea Ya, DOJ Ref. No. 90– served on all other parties to the review D.J. Ref. No. 90–11–3–09141. 5–1–1–08517. (as identified by either the public or BPI During the comment period, the The proposed Settlement Agreement service list), and a certificate of service Settlement Agreement may be examined may be examined at Everglades National must be timely filed. The Secretary will on the following Department of Justice not accept a document for filing without Park, 40001 State Road 9336, Web site: http://www.usdoj.gov/enrd/ Homestead, FL 33034–6733, and at the a certificate of service. _ Consent Decrees.html. A copy of the Department of the Interior, Office of the Authority: This review is being conducted Settlement Agreement may also be Solicitor, Southeast Regional Office, under authority of title VII of the Tariff Act obtained by mail from the Consent Richard B. Russell Federal Building, 75 of 1930; this notice is published pursuant to Decree Library, P.O. Box 7611, U.S. Spring Street, SW., Atlanta, Georgia section 207.62 of the Commission’s rules. Department of Justice, Washington, DC 30303. During the public comment Issued: June 11, 2008. 20044–7611, or by faxing or e-mailing a period, the Settlement Agreement may By order of the Commission. request to Tonia Fleetwood ([email protected]), fax no. also be examined on the following Marilyn R. Abbott, Department of Justice Web site, http:// Secretary to the Commission. (202) 514–0097, phone confirmation number (202) 514–1547. In requesting a www.usdoj.gov/enrd/ [FR Doc. E8–13528 Filed 6–16–08; 8:45 am] _ copy from the Consent Decree Library, Consent Decrees.html. A copy of the BILLING CODE 7020–02–P please enclose a check in the amount of Settlement Agreement may also be $4.75 (25 cents per page reproduction obtained by mail from the Consent cost) payable to the United States Decree Library, P.O. Box 7611, U.S. DEPARTMENT OF JUSTICE Treasury or, if by e-mail or fax, forward Department of Justice, Washington, DC 20044–7611 or by faxing or e-mailing a Notice of Lodging of Settlement a check in that amount to the Consent Agreement Under the Comprehensive Decree Library at the stated address. request to Tonia Fleetwood ([email protected]), fax no. Environmental Response, Robert E. Maher, Jr., Compensation, and Liability Act (202) 514–0097, phone confirmation Assistant Section Chief, Environmental number (202) 514–1547. In requesting a (CERCLA) Enforcement Section, Environment and Natural Resources Division. copy from the Consent Decree Library, Notice is hereby given that on June 2, [FR Doc. E8–13637 Filed 6–16–08; 8:45 am] please enclose a check in the amount of 2008, a proposed Settlement Agreement $2.75 (25 cents per page reproduction BILLING CODE 4410–15–P in the case of In re ASARCO LLC, et al., cost) payable to the U.S. Treasury or, if No. 05–21207, Chapter 11, regarding the by email or fax, forward a check in that Iron Mountain Site located in Mineral DEPARTMENT OF JUSTICE amount to the Consent Decree Library at County, Montana, near the Town of the stated address. Superior, Montana, was lodged with the Notice of Proposed Settlement United States Bankruptcy Court for the Agreement Under the Park System Maureen Katz, Southern District of Texas. Resource Protection Act Assistant Section Chief, Environmental The United States, on behalf of the Enforcement Section, Environment and Forest Service, and the Montana Notice is hereby given that the United Natural Resources Division. Department of Environmental Quality States Department of Justice, on behalf [FR Doc. E8–13635 Filed 6–16–08; 8:45 am] (DEQ) alleged that they incurred past of the U.S. Department of the Interior, BILLING CODE 4410–15–P response costs, and will incur future National Park Service (‘‘DOI’’) has response costs, under CERCLA in reached a settlement with Thomas G. connection with the Site for which Mundy, on behalf of himself and the ASARCO LLC is liable. The Settlement M/V Sea Ya regarding claims for Agreement for the Iron Mountain Site response costs and damages under the would provide a $500,000 unsecured Park System Resource Protection Act claim for the Forest Service and a $1.7 (‘‘PSRPA’’), 16 U.S.C. 19jj.

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DEPARTMENT OF JUSTICE Commission disclosing additions or Register pursuant to Section 6(b) of the changes to its standards development Act on November 3, 2004 (69 FR 64105). Antitrust Division activities. The notifications were filed The last notification was filed with for the purpose of extending the Act’s the Department on January 11, 2008. A Notice Pursuant to the National provisions limiting the recovery of notice was published in the Federal Cooperative Research and Production antitrust plaintiffs to actual damages Register pursuant to Section 6(b) of the Act of 1993—Cable Television under specified circumstances. Act on February 25, 2008 (73 FR 10065). Laboratories, Inc. Specifically, ASTM has provided an Patricia A. Brink, Notice is hereby given that, on May 7, updated list of current, ongoing ASTM 2008, pursuant to Section 6(a) of the standards activities originating between Deputy Director of Operations, Antitrust Division. National Cooperative Research and February 2008 and May 2008 designated Production Act of 1993, 15 U.S.C. 4301 as Work Items. A complete listing of [FR Doc. E8–13214 Filed 6–16–08; 8:45 am] et seq. (‘‘the Act’’), Cable Television ASTM Work Items, along with a brief BILLING CODE 4410–11–M Laboratories, Inc. (‘‘CableLabs’’), filed description of each, is available at written notifications simultaneously http://www.astm.org. DEPARTMENT OF JUSTICE with the Attorney General and the On September 15, 2004, ASTM filed its original notification pursuant to Federal Trade Commission disclosing Drug Enforcement Administration changes in its membership. The Section 6(a) of the Act. The Department notifications were filed for the purpose of Justice published a notice in the Craig H. Bammer, D.O.; Denial of of extending the Act’s provisions Federal Register pursuant to Section Application limiting the recovery of antitrust 6(b) of the Act on November 10, 2004 plaintiffs to actual damages under (69 FR 65226). On October 1, 2007, the Deputy specified circumstances. Specifically, The last notification was filed with Assistant Administrator, Office of JetBroadband, Brook, NY, has been the Department on February 29, 2008. A Diversion Control, Drug Enforcement added as a party to this venture. notice was published in the Federal Administration, issued an Order to No other changes have been made in Register pursuant to Section 6(b) of the Show Cause to Craig H. Bammer, D.O. either the membership or planned Act on April 7, 2008 (73 FR 18812). (Respondent), of South Gulfport, activity of the group research project. Patricia A. Brink, Florida. The Show Cause Order Membership in this group research proposed the revocation of Deputy Director of Operations, Antitrust project remains open, and CableLabs Division. Respondent’s Certificate of Registration, intends to file additional written BB1336456, as a practitioner, and the [FR Doc. E8–13211 Filed 6–16–08; 8:45 am] notifications disclosing all changes in denial of any pending applications to membership. BILLING CODE 4410–11–M renew or modify the registration, on On August 8, 1988, CableLabs filed its three grounds. Show Cause Order at 1– original notification pursuant to Section DEPARTMENT OF JUSTICE 2. 6(a) of the Act. The Department of More specifically, the Show Cause Justice published a notice in the Federal Antitrust Division Order alleged that on both February 28 Register pursuant to Section 6(b) of the and April 27, 2007, the Pinellas County, Act on September 7, 1988 (53 FR Notice Pursuant to the National Florida Sheriff’s Office had arrested 34593). Cooperative Research and Production Respondent and charged him with The last notification was filed with Act of 1993—Institute of Electrical and prescribing controlled substances the Department on January 4, 2007. A Electronics Engineers without a legitimate medical purpose, notice was published in the Federal Notice is hereby given that, on May 9, and that his conduct constituted acts Register pursuant to Section 6(b) of the inconsistent with the public interest. Id. Act on February 12, 2007 (72 FR 6577). 2008, pursuant to Section 6(a) of the National Cooperative Research and at 1 (citing 21 U.S.C. 824(a)(4)). Next, Patricia A. Brink, Production Act of 1993, 15 U.S.C. 4301 the Show Cause Order alleged that on Deputy Director of Operations, Antitrust et seq. (‘‘the Act’’), Institute of Electrical June 21, 2007, the Florida Department of Division. and Electronics Engineers (‘‘IEEE’’) has Health revoked Respondent’s state [FR Doc. E8–13213 Filed 6–16–08; 8:45 am] filed written notifications medical license and that Respondent was therefore without authority to BILLING CODE 4410–11–M simultaneously with the Attorney General and the Federal Trade handle controlled substances in the Commission disclosing additions or State in which he held his DEA DEPARTMENT OF JUSTICE changes to its standards development registration. Id. (citing 21 U.S.C. activities. The notifications were filed 824(a)(3)). Finally, the Show Cause Antitrust Division for the purpose of extending the Act’s Order alleged that in July 2003, provisions limiting the recovery of Respondent had materially falsified his Notice Pursuant to the National renewal application for a DEA Cooperative Research and Production antitrust plaintiffs to actual damages under specified circumstances. registration by failing to disclose that in Act of 1993—ASTM International- 1999, he had surrendered his DEA Standards Specifically, 20 new standards have been initiated and 11 existing standards registration and Ohio medical license Notice is hereby given that, on May are being revised. More detail regarding based on allegations that he was 16, 2008, pursuant to Section 6(a) of the these changes can be found at http:// ‘‘impaired by excessive or habitual use National Cooperative Research and standards.ieee.org/standardswire/sba/ of drugs and alcohol.’’ Id. at 1–2 (citing Production Act of 1993, 15 U.S.C. 4301 27–03–08.html. 21 U.S.C. 824(a)(1)). et seq. (‘‘the Act’’), ASTM International On September 17, 2004, IEEE filed its On October 15, 2007, the Show Cause (‘‘ASTM’’) has filed written notifications original notification pursuant to Section Order, which also informed Respondent simultaneously with the Attorney 6(a) of the Act. The Department of of his right to a hearing, was served on General and the Federal Trade Justice published a notice in the Federal him at the Pinellas County Jail, where

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he was then residing.1 Since that time, Respondent answered the liability legitimate medical purpose. Instead, I neither Respondent, nor any one question related to his DEA registration. find that because Respondent materially purporting to represent him, has As for the other allegations, the falsified his 2003 application for a DEA requested a hearing. Because more than investigative file establishes that in registration and lacks authority under thirty days have passed since the service January 2007, an undercover officer state law to prescribe a controlled of the Show Cause Order and no request obtained a prescription for Roxicodone, substance, he is not entitled to hold a for a hearing has been received, I find a schedule II controlled substance from DEA registration. Accordingly, his that Respondent has waived his right to Respondent without the latter having application will be denied. performed a physical examination. a hearing on the allegations. 21 CFR The Material Falsification Allegation 1301.43(d). Accordingly, I enter this Moreover, the undercover officer also Final Order without a hearing based on obtained a prescription for a third Respondent materially falsified his relevant material contained in the person who was not present. The 2003 application for a DEA registration investigative file and make the investigative file does not, however, when he failed to disclose that he had following findings. Id. § 1301.43(e). indicate what drug the prescription was previously surrendered his DEA for. registration. As this Agency has Findings The investigative file also indicates repeatedly held, ‘‘ ‘[t]he provision of that in February 2007, the undercover truthful information on applications is Respondent held DEA Certificate of officer obtained additional prescriptions absolutely essential to effectuating [the] Registration, BB1336456, which expired for Roxicodone in exchange for the statutory purpose’ of determining on July 31, 2006. Respondent did not officer’s agreeing to pay Respondent’s whether the granting of an application file a renewal application until August electric bill. Shortly thereafter, is consistent with the public interest.’’ 8, 2006. Because Respondent’s renewal Respondent was arrested and charged The Lawsons, 72 FR at 74338 (quoting application was untimely, I find that with several counts of trafficking in Peter H. Ahles, 71 FR 50097, 50098 Respondent does not have a current illegal drugs, a felony offense under (2006)). See also Hoxie v. DEA, 419 F.3d registration. See 5 U.S.C. 558(c). Florida law. See Fla. Stat. Ann. 893.135. 477, 483 (6th Cir. 2005) (‘‘Candor * * * Respondent does, however, have an According to the online records of the is considered by the DEA to be an application which remains pending Pinellas County Courts, Respondent important factor when assessing before the Agency. awaits trial on these charges. whether a * * * registration is On June 9, 1999, Respondent Moreover, on May 25, 2007, the consistent with the public interest.’’). voluntarily surrendered his Ohio Florida Department of Health issued an A false statement is material if it ‘‘has medical license to avoid further formal emergency order suspending a natural tendency to influence, or was proceedings based on his failure to Respondent’s medical license. capable of influencing, the decision of comply with a consent agreement with Thereafter, on June 21, 2007, the Florida the decisionmaking body to which it was addressed.’’ Kungys v. United the Ohio Medical Board under which he Department of Health revoked States, 485 U.S. 759, 770 (1988) (int. was required to surrender his DEA Respondent’s medical license. quotation and other citations omitted). registration and could not apply for a Discussion Moreover, while the evidence must be new registration absent the state board’s Under section 304(a) of the Controlled ‘‘clear, unequivocal, and convincing,’’ approval. According to the records of Substances Act (CSA), a registration the ‘‘ultimate finding of materiality the Ohio board, Respondent had ‘‘may be suspended or revoked by the turns on an interpretation of the admitted that he ‘‘suffered impairment Attorney General upon a finding that substantive law.’’ Id. at 772 (int. due to excessive or habitual use of drugs the registrant * * * has materially quotations and other citation omitted). and alcohol.’’ See Ohio Medical Board falsified any application filed pursuant This Agency has previously held that Formal Actions Against Craig Howard to or required by this subchapter.’’ 21 ‘‘[a]n applicant’s answers to the various Bammer, at 2. Respondent eventually U.S.C. 824(a)(1). The Attorney General liability questions are material because did surrender his DEA registration. may also suspend or revoke a [it] ‘relies upon such answers to On July 24, 2003, Respondent registration ‘‘upon a finding that the determine whether an investigation is submitted an application to renew his registrant * * * has had his State needed prior to granting the DEA registration.2 While on this license or registration suspended, application.’’’The Lawsons, 72 FR at application Respondent acknowledged revoked, or denied by competent State 74338 (quoting Martha Hernandez, 62 that he had been subjected to authority and is no longer authorized by FR 61145, 61146 (1997)). Notably, in disciplinary proceedings with respect to State law to engage in the * * * determining whether the granting of an both his Ohio and Florida medical dispensing of controlled substances.’’ application is in the public interest, the licenses, Respondent answered ‘‘no’’ to Id. § 824(a)(3). Under agency precedent, Agency is required to consider ‘‘[t]he the question of whether he had ‘‘ever the various grounds for revocation or applicant’s experience in dispensing surrendered’’ his DEA registration. suspension of an existing registration * * * controlled substances,’’ his Moreover, according to the Agency’s which Congress enumerated in section ‘‘[c]ompliance with applicable State, registration records, on his August 2006 304(a), 21 U.S.C. 824(a), are also Federal or local laws relating to application, Respondent again properly considered in deciding controlled substances,’’ and ‘‘other acknowledged the prior actions against whether to grant or deny a registration conduct which may threaten public his state licenses. The registration under section 303. See The Lawsons, health and safety.’’ 21 U.S.C. 823(f). record does not, however, establish how Inc., 72 FR 74334, 74338 (2007); Kuen And in making determinations with H. Chen, 58 FR 65401, 65402 (1993). respect to these factors, DEA has 1 A courtesy copy of the Show Cause Order was In this matter, the Order to Show repeatedly considered an applicant’s or also sent to Respondent’s counsel. Cause alleged three separate grounds for an existing registrant’s history of 2 By this date, Respondent had already regained this proceeding. I conclude that it is abusing controlled substances. See, e.g., a DEA registration, as a renewal application stated that ‘‘your crrent registration expires on 07–31– unnecessary to address the allegations Patrick K. Riggs, 72 FR 71959 (2007); 2003.’’ Renewal Application for Registration (Dtd. related to Respondent’s prescribing of Alan H. Olefsky, 72 FR 42127 (2007); July 7, 2003). controlled substances without a Alan H. Olefsky, 57 FR 928 (1992).

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I thus conclude that Respondent’s Order post-conviction relief of a 1996 failure to disclose the earlier surrender Pursuant to the authority vested in me conviction, a suit for libel and slander, of his DEA registration was a material by 21 U.S.C. 823(f), as well as 28 CFR another suit ‘‘related to the Medical misrepresentation because it ‘‘ha[d] a 0.100(b) & 0.104, I hereby order that the Board and * * * malpractice insurance natural tendency to influence the * * * application of Craig H. Bammer, D.O., lawyers,’’ and a bankruptcy proceeding. decision’’ of the Agency as to whether for the renewal of his registration be, Id. at 3–4. to grant his application for a new and it hereby is, denied. This order is The ALJ, however, denied 3 registration. Under DEA precedent, this effective July 17, 2008. Respondent’s motion (as well as his act ‘‘provides an independent and Renewed Request for an extension of adequate ground for denying’’ Dated: June 6, 2008. time). Applying agency precedent, she Respondent’s application. The Lawsons, Michele M. Leonhart, also rejected Respondent’s argument 72 FR at 74338; Cf. Bobby Watts, 58 FR Deputy Administrator. that the Agency should not revoke his 46997 (1993). [FR Doc. E8–13609 Filed 6–16–08; 8:45 am] registration because his state license BILLING CODE 4410–09–P was only temporarily suspended. ALJ The Lack of State Authority Allegation Dec. at 6 (citing Alton E. Ingram, Jr., 69 As found above, on May 25, 2007, the FR 22562, 22563 (2004)). Because Florida Department of Health issued an DEPARTMENT OF JUSTICE ‘‘Respondent lack[ed] authority to practice medicine and handle controlled order which imposed an emergency Drug Enforcement Administration suspension of Respondent’s state substances in New Jersey,’’ the ALJ held medical license. Shortly thereafter, on [Docket No. 07–52] that ‘‘DEA lack[ed] authority to continue June 21, 2007, the Florida Department of * * * Respondent’s DEA registration.’’ Health issued a further order which Benjamin Levine, M.D.; Dismissal of ALJ Dec. at 7. The ALJ thus granted the revoked Respondent’s state medical Proceeding Government’s motion for summary license. On August 7, 2007, the Deputy disposition and recommended that I revoke Respondent’s registration. The Under the Controlled Substances Act Assistant Administrator, Office of ALJ then forwarded the record to me for (CSA), a practitioner must be currently Diversion Control, Drug Enforcement final agency action. authorized to handle controlled Administration, issued an Order to Having considered the record as a substances in ‘‘the jurisdiction in which Show Cause to Benjamin Levine, M.D. whole (including Respondent’s he practices’’ in order to maintain a (Respondent), of East Brunswick, New exceptions), I conclude that this case is DEA registration. See 21 U.S.C. 802(21) Jersey. The Show Cause Order proposed now moot. It is undisputed that (‘‘[t]he term ‘practitioner’ means a the revocation of Respondent’s DEA Respondent’s registration expired on physician * * * licensed, registered, or Certificate of Registration, BL3612480, March 31, 2008. See Order to Show otherwise permitted, by * * * the as a practitioner, and the denial of any Cause at 1; see also Respondent’s jurisdiction in which he practices * * * pending applications to renew or Counter-Statement of Material Facts at to distribute, dispense, [or] administer modify his registration, on three 1. Moreover, according to the * * * a controlled substance in the separate grounds. Show Cause Order at registration records of this Agency, course of professional practice’’). See 1. More specifically, the Show Cause Respondent has not filed a renewal also id. § 823(f) (‘‘The Attorney General Order alleged that: (1) Respondent had application.1 I therefore find that shall register practitioners * * * if the materially falsified his renewal Respondent is not currently registered applicant is authorized to dispense application for his current registration; with this Agency. (2) Respondent lacked authority to * * * controlled substances under the Under DEA precedent, ‘‘ ‘if a handle controlled substances under the laws of the State in which he registrant has not submitted a timely laws of the State in which he practiced practices.’’). As these provisions make renewal application prior to the medicine and held his DEA registration; plain, possessing authority to dispense expiration date, then the registration and (3) Respondent had committed acts a controlled substance under the laws of expires and there is nothing to revoke.’’’ inconsistent with the public interest. Id. the State in which a physician practices David L. Wood, 72 FR 54936, 54937 at 1–3. medicine is an essential condition for (2007) (quoting Ronald J. Riegel, 63 FR holding a DEA registration. Respondent requested a hearing on the allegations and the case was 67132, 67133 (1998)). Moreover, while I Because Respondent’s Florida have recognized a limited exception to medical license has been revoked, he is assigned to Administrative Law Judge (ALJ) Gail A. Randall. Shortly thereafter, this rule in cases which commence with without authority under state law to the issuance of an immediate handle controlled substance and does the Government moved for summary disposition on the ground that the New suspension order because of the not meet an essential prerequisite under collateral consequences which may the CSA for obtaining a new DEA Jersey State Board of Medical Examiners had suspended Respondent’s state attach with the issuance of such a registration. See Richard Carino, M.D., suspension, see William R. Lockridge, 72 FR 71955, 71956 (2007) (citing medical license. Motion for Summary Judgment at 1–2. cases); 21 U.S.C. 823(f). Accordingly, his 1 Respondent requested additional time Under the Administrative Procedure Act (APA), application will be denied for this an agency ‘‘may take official notice of facts at any to respond to the Government’s motion. reason as well. stage in a proceeding—even in the final decision.’’ In his motion, Respondent did not deny U.S. Dept. of Justice, Attorney General’s Manual on that his state license had been the Administrative Procedure Act 80 (1947) (Wm. 3 While Respondent indicated on 2003 W. Gaunt & Sons, Inc., Reprint 1979). In accordance application that both his Florida and Ohio licenses suspended. Instead, Respondent noted with the APA and DEA’s regulations, Respondent had been subjected to discipline, he further stated that he was appealing the State board’s is ‘‘entitled on timely request, to an opportunity to that the basis of the discipline was his ‘‘abuse of order. Resp. Br. in Support of Motion for show to the contrary.’’ § 5 U.S.C. 556(e); see also 21 a non-controlled substance (Stadol nasal spray).’’ Additional Time at 3–4. Respondent CFR 1316.59(e). Respondent can dispute these facts Stadol nasal spray contains butorphanol tartrate, by filing a properly supported motion for and is a schedule IV controlled substance. See 21 also cited a litany of legal proceedings reconsideration within fifteen days of service of this CFR 1308.14(f). Respondent’s statement was thus an that he was litigating including a order, which shall begin on the date this order is additional misrepresentation. criminal case, a tort action, a motion for mailed.

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71 FR 77791, 77797 (2006), here, no Dec. at 1–2. The Government supported renewal application prior to the such order was issued. Because there is its motion with a copy of the Notice of expiration date, then the registration neither an existing registration nor an Immediate Suspension which had been expires and there is nothing to revoke.’’’ application to act upon, and there is no issued by the Ohio Board, and which David L. Wood, 72 FR 54936, 54937 suspension order to review, this case is referenced Respondent’s indictment and (2007) (quoting Ronald J. Riegel, 63 FR now moot.2 conviction on ten felony counts of 67132, 67133 (1998)). Moreover, while I trafficking Oxycontin, and ten felony have recognized a limited exception to Order counts of ‘‘[i]llegal [p]rocessing of [d]rug this rule in cases which commence with Pursuant to the authority vested in me [d]ocuments.’’ Notice of Immediate the issuance of an immediate by 21 U.S.C. 823(f) and 824(a), as well Suspension and Opportunity for suspension order because of the as 28 CFR 0.100(b) and 0.104, I hereby Hearing (Mar. 8, 2006) (citing Ohio Rev. collateral consequences which may order that the Order to Show Cause Code 2925.03 & 2925.23). attach with the issuance of such a issued to Benjamin L. Levine, M.D., be, Respondent opposed the suspension, see William R. Lockridge, and it hereby is, dismissed. Government’s motion. Respondent’s 71 FR 77791, 77797 (2006), here, no Dated: June 6, 2008. principal contention was that his such order was issued. Because there is convictions had been reversed by the Michele M. Leonhart, neither an existing registration nor an Court of Appeals of Clark County, Ohio, Deputy Administrator. application to act upon, and there is no and that he had a pending request with suspension order to review, this case is [FR Doc. E8–13617 Filed 6–16–08; 8:45 am] the State Medical Board to vacate the now moot.2 BILLING CODE 4410–09–P suspension because it had been based on the criminal convictions. Order Respondent’s Resp. at 1. Pursuant to the authority vested in me DEPARTMENT OF JUSTICE The ALJ granted the Government’s by 21 U.S.C. 823(f) and 824(a), as well motion. According to the ALJ, there was Drug Enforcement Administration as 28 CFR 0.100(b) and 0.104, I hereby no dispute that Respondent’s state order that the Order to Show Cause [Docket No. 07–40] medical license remained suspended issued to William W. Nucklos, M.D., be, and that he was not ‘‘currently and it hereby is, dismissed. William W. Nucklos, M.D.; Dismissal of authorized to handle controlled Dated: June 6, 2008. Proceeding substances in Ohio.’’ ALJ at 3. The ALJ further explained that although Michele M. Leonhart, On June 18, 2007, the Deputy Deputy Administrator. Assistant Administrator, Office of Respondent had requested that the Ohio [FR Doc. E8–13618 Filed 6–16–08; 8:45 am] Diversion Control, Drug Enforcement Board vacate his suspension, he ‘‘ha[d] Administration, issued an Order to not demonstrated that the suspension BILLING CODE 4410–09–P Show Cause to William W. Nucklos, will be lifted.’’ Id. Reasoning that she was ‘‘compelled to grant the M.D. (Respondent), of Powell, Ohio. The DEPARTMENT OF JUSTICE Show Cause Order proposed the Government’s motion’’ because Respondent’s license had been revocation of Respondent’s registration, suspended, the ALJ recommended that National Institute of Corrections BN2037314, as a practitioner, and the Respondent’s registration be revoked denial of any pending application to Solicitation for a Cooperative and that any pending applications be renew his registration, on two grounds. Agreement—Inmate Behavior First, the Show Cause Order alleged denied. Id. Thereafter, the record was Management: Implementation and forwarded to me for final agency action. that on March 8, 2006, the State Medical Evaluation In reviewing the record, I have taken Board of Ohio had suspended official notice of the Agency’s records AGENCY: National Institute of Respondent’s state medical license. pertaining to Respondent’s registration Corrections, Department of Justice. Show Cause Order at 1 (citing 21 U.S.C. status.1 According to the Agency’s 824(a)(3)). Second, the Show Cause ACTION: Solicitation for a Cooperative records, Respondent’s registration Agreement. Order alleged that on or about February expired on October 31, 2007. Moreover, 15, 2006, Respondent had been there is no evidence showing that SUMMARY: This project has two areas of ‘‘convicted of ten felony counts of drug Respondent has filed a renewal focus: Assistance to selected jails in trafficking and the illegal processing of application, let alone a timely one. See implementing the six elements of drug documents.’’ Id.; see also 21 U.S.C. 21 CFR 1301.36(i). Accordingly, I inmate behavior management and 824(a)(2) & (a)(4). conclude that there is neither a evaluation of the process and impact of Respondent requested a hearing on registration nor an application to act implementation. The project award will the allegations; the matter was therefore upon. Id. be for a two-year period, and the project assigned to Administrative Law Judge Under DEA precedent, ‘‘ ‘if a will be carried out in conjunction with (ALJ) Mary Ellen Bittner. Thereafter, the registrant has not submitted a timely the NIC Jails Division. The awardee will Government moved for summary work closely with NIC Jails Division disposition and to stay the proceeding 1 Under the Administrative Procedure Act (APA), staff. on the ground that the Ohio board had an agency ‘‘may take official notice of facts at any suspended Respondent’s medical stage in a proceeding-even in the final decision.’’ DATES: Applications must be received license, and Respondent was thus U.S. Dept. of Justice, Attorney General’s Manual on by 4 p.m. (EDT) on Friday, July 18, the Administrative Procedure Act 80 (1947) (Wm. 2008. without authority to handle controlled W. Gaunt & Sons, Inc., Reprint 1979). In accordance substances in the State in which he with the APA and DEA’s regulations, Respondent ADDRESSES: Mailed applications must be maintained his DEA registration. ALJ is ‘‘entitled on timely request, to an opportunity to sent to: Director, National Institute of show to the contrary.’’ 5 U.S.C. 556(e); see also 21 CFR 1316.59(e). Respondent can dispute these facts 2 The dismissal of a proceeding on mootness by filing a properly supported motion for 2 The dismissal of a proceeding on mootness grounds does not, however, have collateral estoppel reconsideration within fifteen days of service of this grounds does not, however, have collateral estoppel effect in the event that Respondent reapplies for a order, which shall begin on the date this order is effect in the event that Respondent reapplies for a DEA registration in the future. mailed. DEA registration in the future.

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Corrections, 320 First Street, NW., Room NIC to provide targeted assistance to and meeting with jail staff, during the 5007, Washington, DC 20534. three jails in implementing inmate implementation process, and after Applicants are encouraged to use behavior management and evaluate the inmate behavior management has been Federal Express, UPS, or similar service implementation process and the impact fully implemented. This will involve to ensure delivery by the due date as of implementation on inmate behavior collection and analysis of both mail can be delayed due to security and perceived levels of safety within the quantitative and qualitative data. screening. Hand-delivered applications jail. Assistance to jails in implementing should be brought to 500 First Street, Scope of Work: The work to be inmate behavior management: The NW., Washington, DC 20534. Persons accomplished through this cooperative awardee, in conjunction with NIC, will delivering applications should go to the agreement consists of meetings with identify areas in which each jail front desk and call (202) 307–3106, NIC, selecting participating jails, requires assistance and will conduct up extension 0 for pickup. visiting selected jails, gathering data, to four short-term technical assistance Faxed or e-mailed applications will assisting jails in implementing inmate events for each jail. This may include an not be accepted. However, electronic behavior management, attending the overall assessment of the jail’s status applications can be submitted via Inmate Behavior Management Training regarding each element of inmate http://www.grants.gov. Program, and preparing and submitting behavior management; assistance with FOR FURTHER INFORMATION CONTACT: A reports. Following is a more through developing and implementing an inmate copy of this announcement and the description of what is expected in each classification system and a housing required application forms can be of these areas. plan; assistance in designing an inmate Meetings with NIC: At the beginning downloaded from the NIC Web page at supervision plan (including meeting of the project, the awardee (project http://www.nicic.gov. Hard copies of the inmates’ basic needs, setting and director) will meet with NIC staff in announcement can be obtained from conveying behavioral expectations, and Washington, DC for one day to discuss Rita Rippetoe. She can be reached by developing strategies for increasing the all project components, set criteria by phone at 1–800–995–6423, extension quantity and improving the quality of which participating jails will be staff interaction with inmates); 44222 or by e-mail at selected, and refine the evaluation assistance in developing strategies for [email protected]. All technical or strategy proposed in the awardee’s keeping inmates productively occupied; programmatic questions concerning this application. The awardee will be or miscellaneous short-term technical announcement should be directed to expected to meet with NIC staff at least assistance as needed. Each technical Fran Zandi, Correctional Program three more times during the course of assistance event will generally require Specialist, National Institute of the project. Two of the three remaining about 2–3 days onsite, 1–2 days of Corrections. She can be reached by meetings may take place in conjunction preparation, and 1–2 days of report phone at 1–800–995–6423, extension with other project activities. The third writing. 71070 or by e-mail at [email protected]. meeting (one day) will take place in In addition to the assistance provided SUPPLEMENTARY INFORMATION: Overview Washington, DC. by the awardee, NIC will also fund and Background: The National Institute Selection of participating jails: Based teams of staff from each jail to attend its of Corrections (NIC) has identified the on the criteria set during the initial Inmate Behavior Management training following six key elements in the meeting, the awardee, in conjunction program in Aurora, Colorado during the effective management of inmate with NIC staff, will identify a variety of first quarter of the 2009 calendar year. behavior in jails: jails that are likely to meet the selection Also, NIC will provide training on Assessing the risks and needs of each criteria. All three jail designs (linear/ inmate behavior management to line inmate at various points during his/her intermittent surveillance, podular/ staff and first-line supervisors at each detention; remote surveillance, and podular/direct jail on dates to be determined jointly by Assigning inmates to appropriate supervision) must be represented among the awardee, NIC, and the jails. housing; the selected jails. The awardee then will Attendance at the Inmate Behavior Meeting inmates’ basic needs; travel to 4–5 of these jails to determine Management Training Program: The Defining and conveying expectations final eligibility. awardee will attend, at the expense of for inmate behavior; Initial visit to selected jails: The this project, the Inmate Behavior Supervising inmates; and awardee will travel to each selected jail Management training program in Keeping inmates productively to meet with the sheriff, jail Aurora, Colorado during the first quarter occupied. administrator, the heads of the security, of calendar year 2009. The awardee will If a jail fully and properly implements classification, and inmate programs work with the teams from the selected all six elements, it should experience a functions, and other key officials to jails to further define their preliminary significant reduction in the negative discuss the project, detail what will be implementation plans for inmate inmate behavior often experienced in involved and the potential implications behavior management based on what jails, such as vandalism, violence, rule for resources and staff assignments, the teams learn in the program. violations, and disrespectful behavior outline the assistance that may be Reports: The awardee will submit toward staff and other inmates. provided through the cooperative written reports to NIC at the following In December 2004, the NIC Jails agreement and NIC, and discuss the data times (at a minimum): After the initial Division published information on these gathering and evaluation activities. The meeting with each selected jail six elements in the Resource Guide for awardee will also work with jail (including a description of the jail, an Jail Administrators (available on NIC’s officials to design a preliminary plan for overview of the meeting, a copy of the Web site http://www.nicic.gov and in the implementation of inmate behavior jail’s preliminary implementation plan, hard copy on request from the NIC management. types of data collected, and conclusions Information Center at 800–077–1461). Data gathering: The awardee will drawn from the data collection); after Also, the NIC Jails Division has gather data on negative inmate behavior the provision of on-site technical conducted related training and technical and levels of safety in the jail as assistance to each jail; after each assistance to a variety of jails over the perceived by staff and inmates by at instance of data collection and analysis; last few years. This project will allow least three points: during the initial visit and at the end of the project.

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The end-of-project report will staff to ask questions about the project including adherence to federal financial describe the implementation process in and the application procedures. guidelines and processes; adequacy of each jail, identify the assistance Attendance at the conference is budget detail, including consideration provided to the jail from the grantee and optional and provisions can be made for of all contingencies for the project and NIC, and will discuss, at a minimum, telephone conferencing for those who commitment to work within the factors that hindered or facilitated will be unable to attend in person. proposed budget; and availability of implementation, the quality of Applicants who plan to attend or who project staff for meetings with NIC staff. implementation in each jail, and the would like to participate via telephone Number of Awards: One. effects of implementation in terms of should call Fran Zandi, NIC Jails NIC Application Number: 08J65. negative inmate behavior and levels of Division, Correctional Program This number should appear as a safety in the jail as perceived by staff Specialist, at (800) 995–6423 x 71070 by reference line in the cover letter, in box and inmates. All reports will be Tuesday, July 8, 2008 to confirm 4a of Standard Form 424, and on the submitted to NIC on disk in Microsoft attendance. outside of the envelope in which the Word format and in hard copy (4 Authority: Public Law 93–415. application is sent. copies). Reports of technical assistance Funds Available: NIC is seeking the Catalog of Federal Domestic Assistance provided to the jails will also be sent in Number: 16.601. hard copy (1 copy) to the jail that applicant’s best ideas regarding received the assistance. The final report accomplishment of the scope of work Executive Order 12372: This project is must be professionally edited before it and the related costs for achieving the not subject to the provisions of the is submitted to NIC. goals of this solicitation. The final executive order. budget and award amount will be Application Requirements: Morris L. Thigpen, Applications must be submitted using negotiated between NIC and the Director, National Institute of Corrections. OMB Standard Form 424, Federal successful applicant. Funds may be Assistance and attachments. (Copies can used only for the activities that are [FR Doc. E8–13553 Filed 6–16–08; 8:45 am] be downloaded from the NIC Web page linked to the desired outcome of the BILLING CODE 4410–36–P at http://www.nicic.gov.) The project. No funds are transferred to state applications should be concisely or local governments. Funds will be awarded based on written, typed double spaced, and DEPARTMENT OF LABOR referenced to the project by the ‘‘NIC satisfactory performance of the awardee Application Number’’ and Title and upon the availability of funding in Office of the Secretary referenced in this announcement. future years. Applicants must submit an original Eligibility of Applicants: An eligible Submission for OMB Review: and three copies of the full proposal. applicant is any private agency, Comment Request The original should have the applicant’s educational institution, organization, signature in blue ink. A cover letter individual, or team with expertise the June 11, 2008. must identify the responsible audit described areas. Applicants or the The Department of Labor (DOL) agency for the applicant’s financial applicant team must be able to hereby announces the submission of the accounts. competently address both areas of focus following public information collection The narrative portion of the in this project: Assistance to selected request (ICR) to the Office of application should include, at a jails in implementing the six elements Management and Budget (OMB) for minimum: A brief paragraph indicating of inmate behavior management and review and approval in accordance with the applicant’s understanding of the evaluation of the process and impact of the Paperwork Reduction Act of 1995 purpose of the document and the issues implementation. The applicant or (Pub. L. 104–13, 44 U.S.C. chapter 35). to be addressed; a brief paragraph that applicant team must demonstrate a A copy of this ICR, with applicable summarizes the project goals and thorough understanding of jails and supporting documentation; including objectives; a clear description of the common issues in managing inmate among other things a description of the methodology that will be used to behavior; each of the six elements of likely respondents, proposed frequency complete the project and achieve its inmate behavior management, as NIC of response, and estimated total burden goals; a statement or chart of measurable presents and teaches it; the process of may be obtained from the RegInfo.gov project milestones and timelines for the implementing the six elements in a jail; Web site at http://www.reginfo.gov/ completion of each milestone; a and the design and implementation of a public/do/PRAMain or by contacting description of the qualifications of the strategy to evaluate both the process and Darrin King on 202–693–4129 (this is applicant organization and a resume for outcomes of implementing the six not a toll-free number); e-mail: the principle and each staff member elements of inmate behavior [email protected]. assigned to the project that documents management. Interested parties are encouraged to relevant knowledge, skills, and abilities Review Considerations: Applications send comments to the Office of to carry out the project; and a budget will be reviewed by a team of NIC staff. Information and Regulatory Affairs, that details all costs for the project, Among the criteria used to evaluate the Attn: OMB Desk Officer for the Bureau shows consideration for all applications are: Indication of a clear of Labor Statistics (BLS), Office of contingencies for the project; and notes understanding of project requirements; Management and Budget, Room 10235, a commitment to work within the background, experience, and expertise Washington, DC 20503, Telephone: proposed budget. of the proposed project staff, including 202–395–7316; Fax: 202–395–6974 Applicants’ Conference: An any subcontractors; clarity of the (these are not toll-free numbers), E-mail: applicants’ conference will be held on description of all elements and tasks in [email protected] within Thursday, July 10, 2008 from 1 p.m. to the project; practicality and sufficiency 30 days from the date of this publication 3 p.m. (EDT) at the NIC office, 500 1st of timeframes allotted to complete tasks; in the Federal Register. In order to Street NW., Washington, DC, 7th Floor. technical soundness of project design ensure the appropriate consideration, The conference will give applicants the and methodology; financial and comments should reference the OMB opportunity to meet with NIC project administrative integrity of the proposal, Control Number (see below).

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The OMB is particularly interested in paperwork and respondent burden, through its compliance evaluation comments which: conducts a preclearance consultation process. For purposes of this clearance • Evaluate whether the proposed program to provide the general public request, the programs have been divided collection of information is necessary and Federal agencies with an functionally into two categories, for the proper performance of the opportunity to comment on proposed construction and supply and service. functions of the agency, including and/or continuing collections of This information collection request whether the information will have information in accordance with the covers the recordkeeping and reporting practical utility; Paperwork Reduction Act of 1995 requirements for the functional aspects • Evaluate the accuracy of the (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This of the program involving construction. agency’s estimate of the burden of the program helps to ensure that requested A separate information collection proposed collection of information, data can be provided in the desired request covers the recordkeeping and including the validity of the format, reporting burden (time and reporting requirements for functional methodology and assumptions used; aspects of the program involving supply • financial resources) is minimized, Enhance the quality, utility, and collection instruments are clearly and service, and is approved under the clarity of the information to be understood, and the impact of collection Office of Management and Budget collected; and (OMB) Number 1215–0072. • requirements on respondents can be Minimize the burden of the properly assessed. Currently, the On December 13, 2005, OMB collection of information on those who Employment Standards Administration approved without change this are to respond, including through the is soliciting comments concerning its Information Collection through use of appropriate automated, proposal to extend OMB approval of the December 31, 2008. The December 13, electronic, mechanical, or other information collection: Office of Federal 2005 submission included an internal technological collection techniques or Contract Compliance Programs assessment of the burden hours other forms of information technology, Recordkeeping and Reporting associated with the construction e.g., permitting electronic submission of Requirements, Construction. A copy of program. OFCCP updated the internal responses. assessment and included the burden Agency: Bureau of Labor Statistics. the proposed information collection request can be obtained by contacting hour results of the internal assessment Type of Review: Revision of a in this Federal Register Notice, for currently approved collection. the office listed below in the addresses section of this Notice. which OFCCP is seeking public Title: CPS Volunteer Supplement. comments. The results of the internal OMB Control Number: 1220–0176. DATES: Written comments must be study, along with the public comments, Affected Public: Individuals or submitted to the office listed in the will be incorporated in the final households. addresses section below on or before information collection requirement Estimated Number of Respondents: August 18, 2008. seeking a three-year approval. 63,000. ADDRESSES: Ms. Hazel M. Bell, U.S. Total Estimated Annual Burden The Department of Labor invites Department of Labor, 200 Constitution comments on the accuracy of the Hours: 5,300. Ave., NW., Room S–3201, Washington, Total Estimated Annual Costs Burden: estimated universe of 240,534 Federal DC 20210, telephone (202) 693–0418, contractor construction firms. OFCCP $0. fax (202) 693–1451, E-mail Description: The Volunteer developed this estimate through a multi- [email protected]. Please use only one Supplement provides information on step process. First, OFCCP obtained the method of transmission for comments the total number of individuals in the total number of construction firms in (mail, fax, or E-mail). U.S. involved in unpaid volunteer the United States from statistics activities, measures of the frequency or SUPPLEMENTARY INFORMATION: compiled by the U.S. Census Bureau in intensity with which individuals I. Background 2002. The census compilation indicated volunteer, types of organizations for that there were 601,339 construction The Office of Federal Contract which they volunteer, the activities in firms in the United States. Compliance Programs (OFCCP) is which volunteers participate, and the This total was calculated by adding responsible for the administration of prevalence of volunteering more than Nonresidential building construction three equal opportunity programs 120 miles from home or abroad. It will (NAICS 2362), Heavy and civil prohibiting employment discrimination also provide information on civic engineering construction (NAICS 237), and requiring affirmative action. The engagement. For additional information, Specialty trade contractors (NAIC 238), OFCCP administers Executive Order see related notice published at 73 FR and Other specialty trade contractors 11246, as amended; Section 503 of the (NAICS 2389). Because all construction 15539 on March 24, 2008. Rehabilitation Act of 1973, as amended firms are not covered contractors within Darrin A. King, (Section 503); and the affirmative action OFCCP’s jurisdiction, OFCCP developed Acting Departmental Clearance Officer. provisions of the Vietnam Era Veterans’ an estimate of the percentage of firms [FR Doc. E8–13556 Filed 6–16–08; 8:45 am] Readjustment Assistance Act of 1974, as that are covered contractors by BILLING CODE 4510–24–P amended (VEVRAA), 38 U.S.C. 4212. examining the percentage of supply and The regulations implementing the service firms that are covered Executive Order program are found at contractors. Employer Information DEPARTMENT OF LABOR 41 CFR Parts 60–1, 60–2, 60–3, 60–4, Report (EEO–1) forms filed annually by 60–20, 60–30, 60–40, and 60–50. The many employers provide information on Employment Standards Administration regulations implementing Section 503 the supply and service universe of are published at 41 CFR Part 60–741. Federal contractors. Relying on this Proposed Extension of the Approval of The regulations implementing VEVRAA EEO–1 data, OFCCP found that there Information Collection Requirements are found at 41 CFR Part 60–250 and 41 were 25,681 supply and service ACTION: Notice. CFR Part 60–300. These regulations consolidated EEO–1 Reports filed in FY require contractors to develop and 2002. This is a reasonable SUMMARY: The Department of Labor, as maintain Affirmative Action Programs approximation of the total number of part of its continuing effort to reduce (AAP). OFCCP reviews these AAPs supply and service firms in the United

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States. Of these firms, 10,498 (40.8%) Compliance Reviews: 669 hours. Dated: June 12, 2008. indicated that they were Federal Total Burden Hours, Recordkeeping Kathy Plowitz-Worden, contractors. For these estimates, we and Reporting: 2,491,396. Panel Coordinator, Panel Operations, assumed, based on the proportion of Frequency: Annually. National Endowment for the Arts. Supply and Service contactors that self- Total Burden Cost (capital/startup): [FR Doc. E8–13557 Filed 6–16–08; 8:45 am] identified themselves on the EEO–1 BILLING CODE 7537–01–P Reports as federal contractors, that 40 $84,099. percent of the construction firms would Total Burden Cost (operating/ maintenance): $0. hold one or more federal or federally NATIONAL PRISON RAPE assisted construction contracts. Based Comments submitted in response to ELIMINATION COMMISSION on the above process, OFCCP estimated this notice will be summarized and/or that 40.0% of the 601,339 construction included in the request for Office of Notice of Availability for Public firms, or 240,534 firms, are Federal or Management and Budget approval of the Comment on NPREC Draft Standards federally-assisted construction information collection request; they will contractors. also become a matter of public record. AGENCY: National Prison Rape Elimination Commission. II. Review Focus Dated: June 12, 2008. ACTION: Notice. The Department of Labor is Hazel M. Bell, particularly interested in comments Acting Chief, Branch of Management Review SUMMARY: The National Prison Rape which: and Internal Control, Division of Financial Elimination Commission announces the • Evaluate whether the proposed Management, Office of Management, release and availability for public collection of information is necessary Administration and Planning, Employment comment its Draft Standards for the Standards Administration. for the proper performance of the Prevention, Detection, Response, and functions of the agency, including [FR Doc. E8–13555 Filed 6–16–08; 8:45 am] Monitoring of Sexual Abuse in Lockups, whether the information will have BILLING CODE 4510–CM–P Juvenile and Community Corrections practical utility; Facilities. • evaluate the accuracy of the DATES: The comment period begins June agency’s estimate of the burden of the 16, 2008 and closes on August 1, 2008. proposed collection of information, NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES All comments must be received by 5 including the validity of the p.m. E.S.T. on Friday, August 1, 2008. methodology and assumptions used; National Endowment for the Arts; Arts ADDRESSES: • enhance the quality, utility, and The preferred comment Advisory Panel clarity of the information to be method is via the Microsoft Word form accessible at the NPREC Web site collected; and Pursuant to Section 10(a)(2) of the • minimize the burden of the (http://www.nprec.us). This form can be Federal Advisory Committee Act (Pub. downloaded and used to submit collection of information on those who L. 92–463), as amended, notice is hereby are to respond, including through the comments via mail, e-mail and/or fax. E- given that a meeting of the Arts mailed comment forms should be sent use of appropriate automated, Advisory Panel to the National Council electronic, mechanical, or other to [email protected]. To submit via on the Arts will be held in Room 714 mail, fill out the form, then print and technological collection techniques or of the Nancy Hanks Center, 1100 other forms of information technology, mail to: National Prison Rape Pennsylvania Avenue, NW., Elimination Commission, 1440 New e.g., permitting electronic submissions Washington, DC, 20506 as follows of responses. York Avenue, NW., Suite 200, (ending time is approximate): Washington, DC, 20005–2111. Faxed III. Current Actions Visual Arts/Rosa Parks Sculpture forms should be sent to (202) 233–1089. The Department of Labor seeks the Design (application review): July 9–10, FOR FURTHER INFORMATION CONTACT: approval for the extension of this 2008. This meeting, from 9 a.m. to 5:30 Questions regarding the comment currently approved information p.m. on July 9th and from 9 a.m. to 3 process should be directed to the collection in order to carry out its p.m. on July 10th, will be closed. National Prison Rape Elimination responsibility to ensure that contractors The closed portions of meetings are Commission at (202) 233–1090. develop and maintain Affirmative for the purpose of Panel review, SUPPLEMENTARY INFORMATION: The Action Programs. discussion, evaluation, and National Prison Rape Elimination Type of Review: Extension. recommendations on financial Commission (‘‘NPREC’’ or ‘‘the Agency: Employment Standards assistance under the National Commission’’) is a bipartisan panel Administration. Foundation on the Arts and the created by Congress as part of the Prison Title: OFCCP Recordkeeping and Humanities Act of 1965, as amended, Rape Elimination Act of 2003. The Reporting Requirements, Construction. including information given in Commission is charged with studying OMB Number: 1215–0163. confidence to the agency. In accordance federal, state and local government Affected Public: Business or other for- with the determination of the Chairman policies and practices related to the profit, not-for-profit institutions. of February 28, 2008, these sessions will prevention, detection, response and Total Respondents: 240,534. be closed to the public pursuant to Total Annual Responses: 240,534. monitoring of sexual abuse in Average Time per Response, subsection (c)(6) of section 552b of Title correctional and detention facilities in Recordkeeping: 10.3 hours. 5, United States Code. the United States. Consistent with the Average Time per Response, Further information with reference to Act, the Commission’s Reporting: 0 hours. these meetings can be obtained from Ms. recommendations will be designed to Affirmative Action Program, Initial Kathy Plowitz-Worden, Office of make the prevention of sexual abuse a Development: 43,290 hours. Guidelines & Panel Operations, National top priority in America’s jails, prisons, Affirmative Action Program, Annual Endowment for the Arts, Washington, lockups, juvenile facilities, and other Update: 162,360 hours. DC, 20506, or call 202/682–5691. detention facilities.

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Since its creation, the Commission operate Units 1 and 2, for an additional Impact Statement for License Renewal has undertaken a comprehensive legal 20 years beyond the period specified in of Nuclear Power Plants,’’ dated May and factual study of the penological, the current licenses. The current 1996. In considering the LRA, the physical, mental, medical, social and operating licenses for Units 1 and 2, Commission must find that the economic impacts of prison sexual expire on August 09, 2013, and October applicable requirements of Subpart A of abuse on federal, state and local 29, 2014, respectively. 10 CFR Part 51 have been satisfied. government functions and on the NMC submitted the application dated Pursuant to 10 CFR 51.26, and as part communities and social institutions in April 11, 2008 and supplemented May of the environmental scoping process, which they operate. 16, 2008, pursuant to Title 10 of the the staff intends to hold a public Upon completion of its study, the Code of Federal Regulations CFR Part 54 scoping meeting. The notice of intent Commission will report its findings, (10 CFR Part 54), to renew Operating will be the subject of a separate Federal conclusions and recommendations to License Nos. DPR–42 and DPR–60 for Register notice. the President, Congress, the U.S. Prairie Island Nuclear Generating Plant, Within 60 days after the date of Attorney General and other federal and Units 1 and 2, respectively. A Notice of publication of this Federal Register state officials. As a key component of its Receipt and Availability of the license Notice, any person whose interest may report, the Commission will include the renewal application (LRA) was be affected by this proceeding and who statutorily required zero-tolerance published in the Federal Register on wishes to participate as a party in the standards. May 6, 2008 (73 FR 25034) as corrected proceeding must file a written request This notice is to announce the release on May 27, 2008 (73 FR 30423). for a hearing or a petition for leave to of Draft Standards for the Prevention, The Commission’s staff has intervene with respect to the renewal of Detection, Response, and Monitoring of determined that NMC has submitted the license. Requests for a hearing or Sexual Abuse in Lockups, Juvenile and sufficient information in accordance petitions for leave to intervene must be Community Corrections Facilities, for a with 10 CFR sections 54.19, 54.21, filed in accordance with the public comment period of 45 days. 54.22, 54.23, 51.45, and 51.53(c) to Commission’s ‘‘Rules of Practice for Written comments about these draft enable the staff to undertake a review of Domestic Licensing Proceedings’’ in 10 standards are invited from the public, as the application, and the application is CFR Part 2. Interested persons should well as affected agencies and therefore acceptable for docketing. The consult a current copy of 10 CFR 2.309, organizations. current Docket Nos. 50–282 and 50–306 which is available at the Commission’s These drafts can be accessed and for Operating License Nos. DPR–42 and Public Document Room (PDR), located downloaded from the NPREC Web site: DPR–60, respectively, will be retained. at One White Flint North, 11555 http://www.nprec.us. Hard copies of the The determination to accept the license Rockville Pike (first floor), Rockville, NPREC draft standards are available by renewal application for docketing does Maryland 20852 and is accessible from mailing a request to the NPREC address, not constitute a determination that a the NRC’s Agencywide Documents by telephoning (202) 233–1090, or by e- renewed license should be issued, and Access and Management System mail at [email protected]. does not preclude the NRC staff from (ADAMS) Public Electronic Reading requesting additional information as the Room on the Internet at http:// Dated: June 11, 2008. review proceeds. www.nrc.gov/reading-rm/adams.html. Margaret M. Chiara, Before issuance of each requested Persons who do not have access to General Counsel, National Prison Rape renewed license, the NRC will have ADAMS or who encounter problems in Elimination Commission. made the findings required by the accessing the documents located in [FR Doc. E8–13545 Filed 6–16–08; 8:45 am] Atomic Energy Act of 1954 (the Act), as ADAMS should contact the NRC’s PDR BILLING CODE 4410–18–P amended, and the Commission’s rules Reference staff by telephone at 1–800– and regulations. In accordance with 10 397–4209 or 301–415–4737, or by e-mail CFR 54.29, the NRC may issue a at [email protected]. If a request for a NUCLEAR REGULATORY renewed license on the basis of its hearing/petition for leave to intervene is COMMISSION review if it finds that actions have been filed within the 60-day period, the identified and have been, or will be, [Docket Nos. 50–282 and 50–306] Commission, presiding officer, or the taken with respect to: (1) Managing the designated Atomic Safety and Licensing Nuclear Management Company, LLC, effects of aging during the period of Board will rule on the request and/or Prairie Island Nuclear Generating extended operation on the functionality petition. In the event that no request for Plant, Units 1 and 2; Notice of of structures and components that have a hearing or petition for leave to Acceptance for Docketing of the been identified as requiring aging intervene is filed within the 60-day Application and Notice of Opportunity management review; and (2) time- period, the NRC may, upon completion for Hearing Regarding Renewal of limited aging analyses that have been of its evaluations and upon making the Facility Operating License Nos. DPR– identified as requiring review, such that findings required under 10 CFR Parts 51 42 and DPR–60 for an Additional 20- there is reasonable assurance that the and 54, renew the license without Year Period activities authorized by the renewed further notice. license will continue to be conducted in As required by 10 CFR 2.309, a The U.S. Nuclear Regulatory accordance with the current licensing petition for leave to intervene shall set Commission (NRC or the Commission) basis (CLB), and that any changes made forth with particularity the interest of is considering an application for the to the plant’s CLB in order to comply the petitioner in the proceeding, and renewal of Operating License Nos. DPR– with 10 CFR 54.29(a) are in accord with how that interest may be affected by the 42 and DPR–60, which authorize the Act and the Commission’s results of the proceeding, taking into Nuclear Management Company (NMC), regulations. consideration the limited scope of to operate Prairie Island Nuclear Additionally, in accordance with 10 matters that may be considered Generating Plant, Units 1 and 2, CFR 51.95(c), the NRC will prepare an pursuant to 10 CFR Parts 51 and 54. The respectively, at 1650 megawatts thermal environmental impact statement that is petition must specifically explain the for each unit. The renewed licenses a supplement to the Commission’s reasons why intervention should be would authorize the applicant to NUREG–1437, ‘‘Generic Environmental permitted with particular reference to

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the following factors: (1) The nature of document filed in the proceeding prior notice that provides access to the the requestor’s/petitioner’s right under to the submission of a request for document to the NRC Office of the the Act to be made a party to the hearing or petition to intervene, and General Counsel and any others who proceeding; (2) the nature and extent of documents filed by interested have advised the Office of the Secretary the requestor’s/petitioner’s property, governmental entities participating that they wish to participate in the financial, or other interest in the under 10 CFR 2.315(c), must be filed in proceeding, so that the filer need not proceeding; and (3) the possible effect of accordance with the NRC E-Filing rule, serve the documents on those any decision or order which may be which the NRC promulgated in August participants separately. Therefore, entered in the proceeding on the 2007, 72 FR 49139 (Aug. 28, 2007). The applicants and other participants (or requestor’s/petitioner’s interest. The E-Filing process requires participants to their counsel or representative) must petition must also set forth the specific submit and serve all adjudicatory apply for and receive a digital ID contentions which the petitioner/ documents over the internet, or in some certificate before a hearing request/ requestor seeks to have litigated in the cases to mail copies on electronic petition to intervene is filed so that they proceeding. storage media. Participants may not can obtain access to the document via Each contention must consist of a submit paper copies of their filings the E–Filing system. specific statement of the issue of law or unless they seek a waiver in accordance A person filing electronically may fact to be raised or controverted. In with the procedures described below. seek assistance through the ‘‘Contact addition, the requestor/petitioner shall To comply with the procedural Us’’ link located on the NRC Web site provide a brief explanation of the bases requirements of E–Filing, at least ten at http://www.nrc.gov/site-help/e- of each contention and a concise (10) days prior to the filing deadline, the submittals.html or by calling the NRC statement of the alleged facts or the petitioner/requestor should contact the technical help line, which is available expert opinion that supports the Office of the Secretary by e-mail at between 8:30 a.m. and 4:15 p.m., contention on which the requestor/ [email protected], or by Eastern Time, Monday through Friday. petitioner intends to rely in proving the calling (301) 415–1677, to request (1) a The help line number is (800) 397–4209 contention at the hearing. The digital ID certificate, which allows the or locally, (301) 415–4737. requestor/petitioner must also provide participant (or its counsel or Participants who believe that they references to those specific sources and representative) to digitally sign have a good cause for not submitting documents of which the requestor/ documents and access the E–Submittal documents electronically must submit petitioner is aware and on which the server for any proceeding in which it is an exemption request, in accordance requestor/petitioner intends to rely to participating; and/or (2) creation of an with 10 CFR 2.302(g), with their initial establish those facts or expert opinion. electronic docket for the proceeding paper filing requesting authorization to The requestor/petitioner must provide (even in instances in which the continue to submit documents in paper sufficient information to show that a petitioner/requestor (or its counsel or format. Such filings must be submitted genuine dispute exists with the representative) already holds an NRC- by: (1) First class mail addressed to the applicant on a material issue of law or issued digital ID certificate). Each Office of the Secretary of the fact. Contentions shall be limited to petitioner/ requestor will need to Commission, U.S. Nuclear Regulatory matters within the scope of the action download the Workplace Forms Commission, Washington, DC 20555– under consideration. The contention ViewerTM to access the Electronic 0001, Attention: Rulemaking and must be one that, if proven, would Information Exchange (EIE), a Adjudications Staff; or (2) courier, entitle the requestor/petitioner to relief. component of the E-Filing system. The express mail, or expedited delivery A requestor/petitioner who fails to Workplace Forms ViewerTM is free and service to the Office of the Secretary, satisfy these requirements with respect is available at http://www.nrc.gov/site- Sixteenth Floor, One White Flint North, to at least one contention will not be help/e-submittals/install-viewer.html. 11555 Rockville Pike, Rockville, permitted to participate as a party. Information about applying for a digital Maryland, 20852, Attention: The Commission requests that each ID certificate is available on NRC’s Rulemaking and Adjudications Staff. contention be given a separate numeric public Web site at http://www.nrc.gov/ Participants filing a document in this or alphabetic designation within one of site-help/e-submittals/apply- manner are responsible for serving the the following groups: (1) Technical certificates.html. document on all other participants. (primarily related to safety concerns); Once a petitioner/requestor has Filing is considered complete by first- (2) environmental; or (3) miscellaneous. obtained a digital ID certificate, had a class mail as of the time of deposit in As specified in 10 CFR 2.309, if two docket created, and downloaded the EIE the mail, or by courier, express mail, or or more requestors/petitioners seek to viewer, it can then submit a request for expedited delivery service upon co-sponsor a contention or propose hearing or petition for leave to depositing the document with the substantially the same contention, the intervene. Submissions should be in provider of the service. requestors/petitioners will be required Portable Document Format (PDF) in Non-timely requests and/or petitions to jointly designate a representative who accordance with NRC guidance and contentions will not be entertained shall have the authority to act for the available on the NRC public Web site at absent a determination by the requestors/petitioners with respect to http://www.nrc.gov/site-help/e- Commission, the presiding officer, or that contention. submittals.html. A filing is considered the Atomic Safety and Licensing Board Those permitted to intervene become complete at the time the filer submits its that the petition and/or request should parties to the proceeding, subject to any documents through EIE. To be timely, be granted and/or the contentions limitations in the order granting leave to an electronic filing must be submitted to should be admitted based on a intervene, and have the opportunity to the EIE system no later than 11:59 p.m. balancing of the factors specified in 10 participate fully in the conduct of the Eastern Time on the due date. Upon CFR 2.309(c)(1)(i)-(viii). To be timely, hearing. receipt of a transmission, the E-Filing filings must be submitted no later than All documents filed in NRC system time-stamps the document and 11:59 p.m. Eastern Time on the due adjudicatory proceedings, including a sends the submitter an e-mail notice date. request for hearing, a petition for leave confirming receipt of the document. The Documents submitted in adjudicatory to intervene, any motion or other EIE system also distributes an e-mail proceedings will appear in NRC’s

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electronic hearing docket which is NUCLEAR REGULATORY day period provided that its final available to the public at http:// COMMISSION determination is that the amendment ehd.nrc.gov/EHD_Proceeding/home.asp, involves no significant hazards unless excluded pursuant to an order of Biweekly Notice Applications and consideration. In addition, the the Commission, an Atomic Safety and Amendments to Facility Operating Commission may issue the amendment Licensing Board, or a Presiding Officer. Licenses Involving No Significant prior to the expiration of the 30-day Participants are requested not to include Hazards Considerations comment period should circumstances change during the 30-day comment personal privacy information, such as I. Background social security numbers, home period such that failure to act in a addresses, or home phone numbers in Pursuant to section 189a. (2) of the timely way would result, for example in their filings. With respect to copyrighted Atomic Energy Act of 1954, as amended derating or shutdown of the facility. works, except for limited excerpts that (the Act), the U.S. Nuclear Regulatory Should the Commission take action serve the purpose of the adjudicatory Commission (the Commission or NRC prior to the expiration of either the filings and would constitute a Fair Use staff) is publishing this regular biweekly comment period or the notice period, it application, Participants are requested notice. The Act requires the will publish in the Federal Register a not to include copyrighted materials in Commission publish notice of any notice of issuance. Should the their submission. amendments issued, or proposed to be Commission make a final No Significant issued and grants the Commission the Hazards Consideration Determination, Detailed information about the license authority to issue and make any hearing will take place after renewal process can be found under the immediately effective any amendment issuance. The Commission expects that Nuclear Reactors icon at http:// to an operating license upon a the need to take this action will occur www.nrc.gov/reactors/operating/ determination by the Commission that very infrequently. licensing/renewal.html on the NRC’s such amendment involves no significant Written comments may be submitted Web site. Copies of the application to hazards consideration, notwithstanding by mail to the Chief, Rulemaking, renew the operating licenses for Prairie the pendency before the Commission of Directives and Editing Branch, Division Island Nuclear Generating Plant, Units 1 a request for a hearing from any person. of Administrative Services, Office of and 2, are available for public This biweekly notice includes all Administration, U.S. Nuclear Regulatory inspection at the Commission’s PDR, notices of amendments issued, or Commission, Washington, DC 20555– located at One White Flint North, 11555 proposed to be issued from May 22, 0001, and should cite the publication Rockville Pike (first floor), Rockville, 2008 to June 4, 2008. The last biweekly date and page number of this Federal Maryland 20852, and at http:// notice was published on June 3, 2008 Register notice. Written comments may www.nrc.gov/reactors/operating/ (73 FR 31717). also be delivered to Room 6D44, Two licensing/renewal/applications.html, the White Flint North, 11545 Rockville NRC’s Web site while the application is Notice of Consideration of Issuance of Amendments to Facility Operating Pike, Rockville, Maryland, from 7:30 under review. a.m. to 4:15 p.m. Federal workdays. Licenses, Proposed No Significant Copies of written comments received The application may be accessed in Hazards Consideration Determination, may be examined at the Commission’s ADAMS through the NRC’s Public and Opportunity for a Hearing Electronic Reading Room on the Internet Public Document Room (PDR), located at http://www.nrc.gov/reading-rm/ The Commission has made a at One White Flint North, Public File adams.html under ADAMS Accession proposed determination that the Area O1F21, 11555 Rockville Pike (first Number ML081130663. As stated above, following amendment requests involve floor), Rockville, Maryland. The filing of persons who do not have access to no significant hazards consideration. requests for a hearing and petitions for ADAMS or who encounter problems in Under the Commission’s regulations in leave to intervene is discussed below. accessing the documents located in 10 CFR 50.92, this means that operation Within 60 days after the date of ADAMS may contact the NRC PDR of the facility in accordance with the publication of this notice, person(s) may Reference staff by telephone at 1–800– proposed amendment would not (1) file a request for a hearing with respect 397–4209 or 301–415–4737, or by e-mail involve a significant increase in the to issuance of the amendment to the to [email protected]. probability or consequences of an subject facility operating license and accident previously evaluated; or (2) any person whose interest may be The NRC staff has verified that a copy create the possibility of a new or affected by this proceeding and who of the LRA is also available to local different kind of accident from any wishes to participate as a party in the residents near Prairie Island Nuclear accident previously evaluated; or (3) proceeding must file a written request Generating Plant, Units 1 and 2, at the involve a significant reduction in a via electronic submission through the Red Wing Public Library, 225 East margin of safety. The basis for this NRC E-Filing system for a hearing and Avenue, Red Wing, MN 55066. proposed determination for each a petition for leave to intervene. Attorney for Nuclear Management amendment request is shown below. Requests for a hearing and a petition for Company (NMC) LLC, Mr. Peter M. The Commission is seeking public leave to intervene shall be filed in Glass, Assistant General Counsel, Xcel comments on this proposed accordance with the Commission’s Energy, 414 Nicollet Mall, Minneapolis, determination. Any comments received ‘‘Rules of Practice for Domestic MN 55401. within 30 days after the date of Licensing Proceedings’’ in 10 CFR part Dated at Rockville, Maryland, this 10th day publication of this notice will be 2. Interested person(s) should consult a of June, 2008. considered in making any final current copy of 10 CFR 2.309, which is determination. available at the Commission’s PDR, For the Nuclear Regulatory Commission, Normally, the Commission will not located at One White Flint North, Public Samson Lee, issue the amendment until the File Area 01F21, 11555 Rockville Pike Acting Director, Division of License Renewal, expiration of 60 days after the date of (first floor), Rockville, Maryland. Office of Nuclear Reactor Regulation. publication of this notice. The Publicly available records will be [FR Doc. E8–13588 Filed 6–16–08; 8:45 am] Commission may issue the license accessible from the Agencywide BILLING CODE 7590–01–P amendment before expiration of the 60- Documents Access and Management

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System’s (ADAMS) Public Electronic contention will not be permitted to Information about applying for a digital Reading Room on the Internet at the participate as a party. ID certificate is available on NRC’s NRC Web site, http://www.nrc.gov/ Those permitted to intervene become public Web site at http://www.nrc.gov/ reading-rm/doc-collections/cfr/. If a parties to the proceeding, subject to any site-help/e-submittals/apply- request for a hearing or petition for limitations in the order granting leave to certificates.html. leave to intervene is filed within 60 intervene, and have the opportunity to Once a petitioner/requestor has days, the Commission or a presiding participate fully in the conduct of the obtained a digital ID certificate, had a officer designated by the Commission or hearing. docket created, and downloaded the EIE by the Chief Administrative Judge of the If a hearing is requested, and the viewer, it can then submit a request for Atomic Safety and Licensing Board Commission has not made a final hearing or petition for leave to Panel, will rule on the request and/or determination on the issue of no intervene. Submissions should be in petition; and the Secretary or the Chief significant hazards consideration, the Portable Document Format (PDF) in Administrative Judge of the Atomic Commission will make a final accordance with NRC guidance Safety and Licensing Board will issue a determination on the issue of no available on the NRC public Web site at notice of a hearing or an appropriate significant hazards consideration. The http://www.nrc.gov/site-help/e- order. final determination will serve to decide submittals.html. A filing is considered As required by 10 CFR 2.309, a when the hearing is held. If the final complete at the time the filer submits its petition for leave to intervene shall set determination is that the amendment documents through EIE. To be timely, forth with particularity the interest of request involves no significant hazards an electronic filing must be submitted to the petitioner in the proceeding, and consideration, the Commission may the EIE system no later than 11:59 p.m. how that interest may be affected by the issue the amendment and make it Eastern Time on the due date. Upon results of the proceeding. The petition immediately effective, notwithstanding receipt of a transmission, the E-Filing should specifically explain the reasons the request for a hearing. Any hearing system time-stamps the document and why intervention should be permitted held would take place after issuance of sends the submitter an e-mail notice with particular reference to the the amendment. If the final confirming receipt of the document. The following general requirements: (1) The determination is that the amendment EIE system also distributes an e-mail name, address, and telephone number of request involves a significant hazards notice that provides access to the the requestor or petitioner; (2) the consideration, any hearing held would document to the NRC Office of the nature of the requestor’s/petitioner’s take place before the issuance of any General Counsel and any others who right under the Act to be made a party amendment. have advised the Office of the Secretary to the proceeding; (3) the nature and A request for hearing or a petition for that they wish to participate in the extent of the requestor’s/petitioner’s leave to intervene must be filed in proceeding, so that the filer need not property, financial, or other interest in accordance with the NRC E-Filing rule, serve the documents on those the proceeding; and (4) the possible which the NRC promulgated in August participants separately. Therefore, effect of any decision or order which 28, 2007 (72 FR 49139). The E-Filing applicants and other participants (or may be entered in the proceeding on the process requires participants to submit their counsel or representative) must requestor’s/petitioner’s interest. The and serve documents over the internet apply for and receive a digital ID petition must also set forth the specific or in some cases to mail copies on certificate before a hearing request/ contentions which the petitioner/ electronic storage media. Participants petition to intervene is filed so that they requestor seeks to have litigated at the may not submit paper copies of their can obtain access to the document via proceeding. filings unless they seek a waiver in the E-Filing system. Each contention must consist of a accordance with the procedures A person filing electronically may specific statement of the issue of law or described below. seek assistance through the ‘‘Contact fact to be raised or controverted. In To comply with the procedural Us’’ link located on the NRC Web site addition, the petitioner/requestor shall requirements of E-Filing, at least five (5) at http://www.nrc.gov/site-help/e- provide a brief explanation of the bases days prior to the filing deadline, the submittals.html or by calling the NRC for the contention and a concise petitioner/requestor must contact the technical help line, which is available statement of the alleged facts or expert Office of the Secretary by e-mail at between 8:30 a.m. and 4:15 p.m., opinion which support the contention [email protected], or by calling Eastern Time, Monday through Friday. and on which the petitioner/requestor (301) 415–1677, to request (1) a digital The help line number is (800) 397–4209 intends to rely in proving the contention ID certificate, which allows the or locally, (301) 415–4737. at the hearing. The petitioner/requestor participant (or its counsel or Participants who believe that they must also provide references to those representative) to digitally sign have a good cause for not submitting specific sources and documents of documents and access the E-Submittal documents electronically must file a which the petitioner is aware and on server for any proceeding in which it is motion, in accordance with 10 CFR which the petitioner/requestor intends participating; and/or (2) creation of an 2.302(g), with their initial paper filing to rely to establish those facts or expert electronic docket for the proceeding requesting authorization to continue to opinion. The petition must include (even in instances in which the submit documents in paper format. sufficient information to show that a petitioner/requestor (or its counsel or Such filings must be submitted by: (1) genuine dispute exists with the representative) already holds an NRC- First class mail addressed to the Office applicant on a material issue of law or issued digital ID certificate). Each of the Secretary of the Commission, U.S. fact. Contentions shall be limited to petitioner/requestor will need to Nuclear Regulatory Commission, matters within the scope of the download the Workplace Forms Washington, DC 20555–0001, Attention: amendment under consideration. The Viewer(tm) to access the Electronic Rulemaking and Adjudications Staff; or contention must be one which, if Information Exchange (EIE), a (2) courier, express mail, or expedited proven, would entitle the petitioner/ component of the E-Filing system. The delivery service to the Office of the requestor to relief. A petitioner/ Workplace Forms ViewerTM is free and Secretary, Sixteenth Floor, One White requestor who fails to satisfy these is available at http://www.nrc.gov/site- Flint North, 11555 Rockville, Pike, requirements with respect to at least one help/e-submittals/install-viewer.html. Rockville, Maryland, 20852, Attention:

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Rulemaking and Adjudications Staff. 4.5.M.1.e.1, ‘‘Containment System,’’ 2. Does the proposed amendment create Participants filing a document in this concerning the mechanical snubbers the possibility of a new or different kind of manner are responsible for serving the functional test acceptance criteria. accident from any accident previously document on all other participants. Specifically, the change would replace evaluated? Filing is considered complete by first- Response: No. the snubber breakaway test with a drag The proposed change does not affect the class mail as of the time of deposit in force test. assumed accident performance of the Reactor the mail, or by courier, express mail, or Basis for proposed no significant Coolant Pressure Boundary, nor any plant expedited delivery service upon hazards consideration determination: structure, system, or component previously depositing the document with the As required by 10 CFR 50.91(a), the evaluated. The proposed change does not provider of the service. licensee has provided its analysis of the involve the installation of new equipment, Non-timely requests and/or petitions issue of no significant hazards and installed equipment is not being and contentions will not be entertained consideration, which is presented operated in a new or different manner. The absent a determination by the below: change deletes the breakaway test for snubbers, which is no longer required by the Commission, the presiding officer, or 1. Does the proposed amendment involve the Atomic Safety and Licensing Board ASME OM Code, and replaces it with a drag a significant increase in the probability or force test to ensure snubber functionality that the petition and/or request should consequences of an accident previously consistent with the ASME OM Code. No set be granted and/or the contentions evaluated? points are being changed which would alter should be admitted, based on a Response: No. the dynamic response of plant equipment, balancing of the factors specified in 10 The proposed change modifies Technical and the design function of systems associated CFR 2.309(c)(1)(i)–(viii). To be timely, Specifications (TS) Section 4.5.M.1.e.1 with snubbers will not be altered. filings must be submitted no later than concerning the Mechanical Snubbers Accordingly, no new failure modes or Functional Test Acceptance Criteria, accident initiators are introduced. 11:59 p.m. Eastern Time on the due specifically, replacement of the snubber date. Therefore, the proposed change[s do] not breakaway test with the drag force test. [Title create the possibility of a new or different Documents submitted in adjudicatory 10 of the Code of Federal Regulations (10 kind of accident from any accident proceedings will appear in NRC’s CFR), Part] 50.55a(b)(3)(v) permits the use of previously evaluated. electronic hearing docket which is [American Society of Mechanical Engineers 3. Does the proposed amendment involve (ASME) Operations and Maintenance (OM) available to the public at http:// a significant reduction in a margin of safety? ehd.nrc.gov/EHD_Proceeding/home.asp, Code], Subsection ISTD, in lieu of the ASME Code, Section XI, for the inservice testing of Response: No. unless excluded pursuant to an order of The proposed change does not affect the the Commission, an Atomic Safety and snubbers. Subsection ISTD of the ASME OM- Code, ‘‘Preservice and Inservice Examination function of any safety systems or response Licensing Board, or a Presiding Officer. and Testing of Dynamic Restraints (Snubbers) during plant transients. There are no changes Participants are requested not to include in Light-Water Reactor Nuclear Power proposed which alter the set points at which personal privacy information, such as Plants,’’ provides the requirements for protective actions are initiated, and there is social security numbers, home snubber testing. A requirement to perform no change to the operability requirements for addresses, or home phone numbers in the breakaway test no longer exists in the equipment assumed to operate for accident their filings. With respect to copyrighted ASME OM Code. Current ASME OM Code mitigation. The snubbers will continue to requirements require a drag force test. The perform their design function. This change works, except for limited excerpts that deletes the breakaway test for snubbers, serve the purpose of the adjudicatory drag force test is a more encompassing representation of overall snubber resistance which is no longer required by the ASME filings and would constitute a Fair Use to thermal movement because it is performed OM Code, and replaces it with a drag force application, participants are requested over the entire working range of the snubber test. Therefore, the proposed changes do not not to include copyrighted materials in stroke. Therefore, a drag force test should be involve a significant reduction in any margin their submission. used rather than the breakaway or ‘‘force that of safety. For further details with respect to this initiated free movement’’ as currently The NRC staff has reviewed the amendment action, see the application worded in the [Oyster Creek Generating licensee’s analysis and, based on this for amendment which is available for Station] TS. In addition to the above, the review, and with the changes noted public inspection at the Commission’s breakaway test is intended to be performed above, it appears that the three prior to any movement of the snubber. This standards of 10 CFR 50.92(c) are PDR, located at One White Flint North, is an impractical test situation, because the Public File Area 01F21, 11555 Rockville snubber has typically moved while the unit satisfied. Therefore, the NRC staff Pike (first floor), Rockville, Maryland. is cooling down, and the piping experiences proposes to determine that the Publicly available records will be thermal cycles. amendment request involves no accessible from the ADAMS Public The percentage of snubbers sampled and significant hazards consideration. Electronic Reading Room on the Internet the period between inspections has not Attorney for licensee: Thomas S. at the NRC Web site, http:// changed. Also, the way the snubber functions O’Neill, Associate General Counsel, www.nrc.gov/reading-rm/adams.html. If has not changed, only the method of testing Exelon Generation Company, LLC, 4300 that ensures continued functionality of it. you do not have access to ADAMS or if Winfield Road, Warrenville, IL 60555. Elimination of the breakaway test will not NRC Branch Chief: Harold K. there are problems in accessing the reduce the ability of snubbers to perform documents located in ADAMS, contact their intended design function. Drag force Chernoff. the PDR Reference staff at 1 (800) 397– testing as defined in the TS will ensure AmerGen Energy Company, LLC, et 4209, (301) 415–4737 or by e-mail to adequate demonstration of snubber al., Docket No. 50–219, Oyster Creek [email protected]. performance. Also, this change will not Nuclear Generating Station (Oyster AmerGen Energy Company, LLC, et increase the probability of malfunction of Creek), Ocean County, New Jersey. al., Docket No. 50–219, Oyster Creek plant equipment, or the failure of plant Date of amendment request: March Nuclear Generating Station (Oyster structures, systems, or components. Piping 10, 2008. systems that include snubbers in their Creek), Ocean County, New Jersey. Description of amendment request: configuration will still be capable of The proposed amendment would Date of amendment request: October performing their safety function. 18, 2007. Therefore, the proposed change[s do not relocate the pressure and temperature Description of amendment request: involve a significant increase in] the limit curves from the Technical The proposed amendment would probability or consequences of an accident Specifications (TSs) to the licensee modify Technical Specification (TS) previously evaluated. controlled ‘‘Pressure and Temperature

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Limits Report.’’ Additionally, the 2. Does the proposed amendment create Date of amendment request: April 14, proposed change would update other TS the possibility of a new or different kind of 2008. references from the TS contained curves accident from any accident previously Description of amendment request: to those in the Pressure and evaluated? The proposed amendment would Response: No. modify the Technical Specifications to Temperature Limits Report. The proposed change does not affect the Basis for proposed no significant assumed accident performance of the RCPB, allow the main steam line isolation (SLI) hazards consideration determination: nor any plant structure, system, or circuitry to be inoperable when both As required by 10 CFR 50.91(a), the component previously evaluated. The Main Steam Isolation Valves (MSIVs) licensee has provided its analysis of the proposed change does not involve the are closed and de-activated. issue of no significant hazards installation of new equipment, and installed Basis for proposed no significant consideration, which is presented equipment is not being operated in a new or hazards consideration determination: below: different manner. The change in As required by 10 CFR 50.91(a), the methodology ensures that the RCPB remains licensee has provided its analysis of the 1. Does the proposed amendment involve capable of performing its safety functions. No a significant increase in the probability or issue of no significant hazards setpoints are being changed which would consideration, which is presented consequences of an accident previously alter the dynamic response of plant evaluated? equipment. Accordingly, no new failure below: Response: No. modes are introduced which could introduce 1. Does the proposed amendment involve The proposed change modifies the the possibility of a new or different kind of a significant increase in the probability or Technical Specifications (TS) Section 1.0 accident from any previously evaluated. consequences of an accident previously (‘‘Definitions’’), Limiting Conditions for This change adopts the methodology of evaluated? Operation Section 3.3 (‘‘Reactor Coolant’’), SIR–05–044–A, ‘‘Pressure–Temperature Response: No. Surveillance Requirement 4.3 (‘‘Reactor Limits Report Methodology for Boiling Water The proposed amendment would allow the Coolant’’), and 6.0 (‘‘Administrative SLI instrumentation to be inoperable when Controls’’), to delete reference to the Reactors,’’ dated April 2007 for preparation both MSIVs are already closed and de- [Pressure–Temperature (P–T)] curves and of the pressure and temperature curves, and include reference to the [pressure- incorporates the guidance of TSTF–419–A activated. When both MSIVs are closed, the temperature limits report (PTLR)]. This (‘‘Revise PTLR Definition and References in SLI function is already accomplished and the change adopts the methodology of SIR–05– ISTS 5.6.6, RCS PTLR’’). In an NRC SER SLI instrumentation is no longer needed. The 044–A, ‘‘Pressure–Temperature Limits Report dated February 6, 2007, the NRC staff has proposed amendment does not involve a Methodology for Boiling Water Reactors,’’ found that SIR–05–044 is acceptable for physical alteration of the plant or a dated April 2007 for preparation of the referencing in licensing applications for functional change in the methods used to pressure and temperature curves, and General Electric designed boiling water respond to any evaluated plant accident. The incorporates the guidance of TSTF–419–A reactors. isolation function is accomplished either by (‘‘Revised PTLR Definition and References in Therefore, the proposed changes do not SLI instrumentation or manually closing the ISTS 5.6.6, RCS PTLR’’). [As stated in] an create the possibility of a new or different MSIVs. No new or different equipment is NRC [safety evaluation report] dated kind of accident from any accident being installed and no installed equipment is February 6, 2007, ‘‘the NRC staff has found previously evaluated. being removed or modified. The proposed that SIR–05–044 is acceptable for referencing 3. Does the proposed amendment involve amendment would not alter the parameters in licensing applications for General Electric a significant reduction in a margin of safety? within which the plant is normally operated designed boiling water reactors to the extent Response: No. or the setpoints which initiate protective or specified and under the limitations The proposed change does not affect the mitigative actions. delineated in the [topical report (TR)] and in function of the RCPB or its response during With both MSIVs closed, the SLI the enclosed final [safety evaluation].’’ As plant transients. There are no changes instrumentation is not required to be part of this change, the PTLR based on the proposed which alter the setpoints at which operable since its safety function has already methodology and template provided in SIR– protective actions are initiated, and there is been accomplished. Addition of the proposed 05–044 is being supplied for review. The P– no change to the operability requirements for new footnote would not adversely impact T curves utilize the methodology of SIR–05– equipment assumed to operate for accident any of the previously evaluated accidents 044–A. mitigation. This change adopts the described in the KPS [Kewaunee Power The NRC has established requirements in methodology of SIR–05–044–A, ‘‘Pressure– Station] USAR [Updated Safety Analysis Appendix G to [Title 10 of the Code of Temperature Limits Report Methodology for Report]. Federal Regulations (10 CFR) Part 50] to Boiling Water Reactors,’’ dated April 2007 for Therefore, the proposed amendment does protect the integrity of [the reactor coolant preparation of the P–T curves. Therefore, the not involve a significant increase in the pressure boundary (RCPB)] in nuclear power proposed change does not involve a probability or consequences of an accident plants. Additionally, 10 CFR Part 50, significant reduction in a margin of safety. previously evaluated. Appendix H, provides the NRC staff’s criteria 2. Does the proposed amendment create for the design and implementation of RPV The NRC staff has reviewed the the possibility of a new or different kind of material surveillance programs for operating licensee’s analysis and, based on this accident from any accident previously lightwater reactors. Implementing this NRC- review, and with the changes noted evaluated? approved methodology does not reduce the above, it appears that the three Response: No. ability to protect the RCPB as specified in standards of 10 CFR 50.92(c) are The proposed amendment does not involve Appendix G, nor will this change increase satisfied. Therefore, the NRC staff a physical alteration of the plant or a the probability of malfunction of plant functional change in the methods used to proposes to determine that the respond to plant accidents or transients. No equipment, or the failure of plant structures, amendment request involves no systems, or components. Incorporation of the new or different equipment is being installed new methodology for calculating P–T curves significant hazards consideration. and no installed equipment is being removed from the TS to the PTLR provides an Attorney for licensee: Thomas S. or modified. The proposed amendment equivalent level of assurance that the RCPB O’Neill, Associate General Counsel, would not alter the parameters within which is capable of performing its intended safety Exelon Generation Company, LLC, 4300 the plant is normally operated or the functions. Thus, the proposed change does Winfield Road, Warrenville, IL 60555. setpoints which initiate protective or not affect the probability or consequences of NRC Branch Chief: Harold K. mitigative actions. The design function of the an accident previously evaluated. SLI instrumentation would not be changed. Therefore, the proposed changes do not Chernoff. With both MSIVs closed, the safety function involve a significant increase in the Dominion Energy Kewaunee, Inc. associated with the SLI instrumentation has probability or consequences of an accident Docket No. 50–305, Kewaunee Power already been accomplished. Allowing the SLI previously evaluated. Station, Kewaunee County, Wisconsin. instrumentation to be inoperable when both

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MSIVs are closed and de-activated does not credit for the gaseous radiation monitor Response: No. functionally impact how the plant would for Reactor Coolant System leakage The proposed change does not make any respond to any previously evaluated detection. Improvements in nuclear fuel alteration to any RCS [Reactor Coolant accidents. No new failure mechanisms, reliability over time have resulted in the System] leakage detection components. The malfunctions, or accident initiators not proposed change only removes the gaseous considered in the design and licensing bases reduction of effectiveness of the channel of the containment atmosphere are introduced by the proposed amendment. monitors in detecting very small leaks radioactivity monitor for meeting the Therefore, the proposed change does not and very small changes in the leakrate. operability requirement for TS 3.4.6.1. The create the possibility of a new or different The proposed change also addresses the proposed amendment continues to require kind of accident from any previously condition when the remaining diverse means of leakage detection evaluated. monitoring systems are all inoperable. equipment with capability to promptly detect 3. Does the proposed amendment involve Basis for proposed no significant RCS leakage. Although not required by TS, a significant reduction in a margin of safety? hazards consideration determination: additional diverse means of leakage detection Response: No. As required by 10 CFR 50.91(a), the capability are available. Based on this evaluation, the proposed change does not Margin of safety is established through the licensee has provided its analysis of the design of the systems, structures, and involve a significant reduction in a margin of components, the parameters within which issue of no significant hazards safety. the plant is operated, and the establishment consideration, which is presented Based on the above, DNC [Dominion of setpoints for the actuation of equipment below: Nuclear Connecticut] concludes that the relied upon to respond to an event. The 1. Does the proposed change involve a proposed amendment involves no significant proposed TS amendment does not adversely significant increase in the probability or hazards consideration under the standards impact any plant structure, system or consequences of an accident previously set forth in 10 CFR 50.92, and a finding of component that is relied upon for accident evaluated? ‘‘no significant hazards consideration’’ is mitigation. The design of the SLI function is Response: No. justified. not affected by the proposed change. Closure The proposed change has been evaluated The NRC staff has reviewed the and de-activation of the MSIVs represents an and determined to not increase the licensee’s analysis and, based on this increase in functional margin as a probability or consequences of an accident review, it appears that the three deactivated valve has no opportunity to be previously evaluated. The proposed change standards of 10 CFR 50.92(c) are inadvertently opened. The proposed does not make any hardware changes and amendment also does not adversely affect the does not alter the configuration of any plant satisfied. Therefore, the NRC staff setpoints or parameters under which the SLI system, structure or component (SSC). The proposes to determine that the instrumentation is operated. Station containment atmosphere gaseous amendment request involves no operations and the SLI function would not be radioactivity monitor is not credited for use significant hazards consideration. adversely affected by the proposed change, in the initiation of any protective functions. Attorney for licensee: Lillian M. because the isolation function capability is The proposed change only removes the Cuoco, Senior Nuclear Counsel, maintained throughout the applicable modes containment atmosphere gaseous Dominion Nuclear Connecticut, Inc., of operation. The proposed change does not radioactivity monitor for meeting the Waterford, CT 06141–5127. alter any design basis or safety limit operability requirement for TS 3.4.6.1. NRC Branch Chief: Harold K. established in the KPS USAR. Therefore, the probability of occurrence of an Therefore, the proposed amendment to the accident is not increased. The TS will Chernoff. KPS TS does not involve a significant continue to require diverse means of leakage Exelon Generation Company, LLC, reduction in a margin of safety. detection equipment, thus ensuring that Docket Nos. STN 50–454 and STN 50– leakage due to cracks would continue to be 455, Byron Station, Unit Nos. 1 and 2, The NRC staff has reviewed the identified prior to breakage and the plant Ogle County, Illinois. licensee’s analysis and, based on this shutdown accordingly. Additionally, the Docket Nos. STN 50–456 and STN 50– review, it appears that the three function of this equipment is not modeled in 457, Braidwood Station, Units. 1 and 2, standards of 10 CFR 50.92(c) are the MPS2 or MPS3 probabilistic risk Will County, Illinois. satisfied. Therefore, the NRC staff assessment and therefore its removal from Date of amendment request: March proposes to determine that the the Technical Specifications has no impact 18, 2008. amendment request involves no on core damage frequency or large early Description of amendment request: significant hazards consideration. release frequency. Therefore, the consequences of an accident are not The proposed amendments would Attorney for licensee: Lillian M. increased. revise the technical specification (TS) Cuoco, Senior Counsel, Dominion 2. Does the proposed change create the surveillance requirement (SR) Resources Services, Inc., 120 Tredegar possibility of a new or different kind of numbering for two engineered safety Street, Richmond, VA 23219. accident from any accident previously feature actuation system (ESFAS) NRC Branch Chief: Lois James. evaluated? instrumentation SRs that were revised Dominion Nuclear Connecticut Inc., Response: No. in previous license amendments issued et al., Docket Nos. 50–336 and 50–423, The proposed change does not involve the by the Nuclear Regulatory Commission Millstone Power Station, Unit Nos. 2 use or installation of new equipment and the currently installed equipment will not be (NRC) staff. The revised numbering and 3, New London County, operated in a new or different manner. No scheme in the previous amendments Connecticut. new or different system interactions are introduced inconsistencies within TS Date of amendment request: August created and no new processes are introduced. 3.3.2. In addition, the proposed 15, 2007. The proposed changes will not introduce any amendments request an extension of the Description of amendment request: new failure mechanisms, malfunctions, or 120-day period for implementation of The proposed amendment would accident initiators not already considered in the changes to SRs 3.3.2.6 and 3.3.2.7, modify Technical Specification (TS) the design and licensing bases. The proposed approved in the previous license 3.3.3.1, ‘‘Radiation Monitoring,’’ TS change does not affect any SSC associated amendments, to 30 days following 3.4.6.1, ‘‘Reactor Coolant System with an accident initiator. Based on this evaluation, the proposed change does not approval of the proposed amendments. Leakage Detection Systems,’’ and create the possibility of a new or different Basis for proposed no significant Surveillance Requirements 4.4.6.1, kind of accident from any accident hazards consideration determination: ‘‘Reactor Coolant System Leakage previously evaluated. As required by 10 CFR 50.91(a), the Detection Systems.’’ Specifically, the 3. Does the proposed change involve a licensee has provided its analysis of the proposed amendment would remove significant reduction in a margin of safety? issue of no significant hazards

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consideration, which is presented create the possibility of a new or different Technical Specifications currently require below: kind of accident from any [accident] surveillance of river level elevation and previously evaluated. temperature. These surveillance 1. The proposed changes do not involve a 3. The proposed changes do not involve a requirements are unchanged. Adding an significant increase in the probability or significant reduction in a margin of safety. additional surveillance requirement to consequences of an accident previously The proposed revision to the numbering of measure river depth will not adversely evaluated. two ESFAS instrumentation SRs and impact the probability or consequences of an The proposed revision to the numbering of extension of a previously approved license accident previously evaluated. two ESFAS instrumentation SRs and amendment implementation period are Therefore, the proposed change does not extension of a previously approved license purely administrative in nature. Therefore, involve a significant increase in the amendment implementation period are the proposed changes do not affect the probability or consequences of an accident purely administrative in nature, and as such, acceptance criteria for any analyzed event, previously evaluated. do not increase the probability of any nor is there a change to any safety analysis 2. Does the proposed amendment create accident previously evaluated. The proposed limit. There will be no effect on the manner the possibility of a new or different kind of changes do not affect accident initiators or in which safety limits, limiting safety system accident from any accident previously precursors nor alter the design assumptions, settings, or limiting conditions for operation evaluated? conditions, or configuration of the facility or are determined nor will there be any effect Response: No. the manner in which the plant is operated on those plant systems necessary to assure and maintained. The proposed changes will Adding TS Surveillance Requirements to the accomplishment of protection functions. measure river depth does not create the not modify any system interface, nor will There will be no impact on the departure they affect the probability of any event possibility of a new or different kind of from nucleate boiling limits, fuel centerline initiators. Therefore, the proposed changes accident from any accident previously temperature, or any other margin of safety. do not increase the probability of an accident evaluated and does not represent a change in Redundant ESFAS trains are maintained, previously evaluated. the methods governing normal plant and diversity with regard of the signals that Since the proposed changes are purely operation. In addition, the proposed change provide engineered safety features actuation administrative, the changes will not alter or does not alter or eliminate any existing is also maintained. All signals credited as prevent structures, systems, and components requirements. The proposed change does not primary or secondary, and all operator from performing their intended function to alter assumptions made in the safety actions credited in the accident analyses will mitigate the consequences of an initiating analysis. The proposed change is consistent remain the same. The proposed changes will event, within the assumed acceptance limits. with the safety analysis assumptions and The proposed amendment does not change not result in plant operation in a current plant operating practice. the response of the plant to any accidents configuration outside the design basis. Therefore, the proposed change does not and has no impact on the reliability of the Therefore, the proposed changes do not create the possibility of a new or different ESFAS signals. The ESFAS will remain involve a significant reduction in [a] margin kind of accident from any previously highly reliable, and the proposed changes of safety. evaluated. will not result in an increase in the risk of The NRC staff has reviewed the 3. Does the proposed amendment involve plant operation. There will be no degradation licensee’s analysis and, based on this a significant reduction in a margin of safety? in the performance of, or an increase in the Response: No. review, it appears that the three Per the DAEC [Duane Arnold Energy number of challenges imposed on safety- standards of 10 CFR 50.92(c) are related equipment assumed to function Center] UFSAR [Updated Final Safety during an accident situation. The proposed satisfied. Therefore, the NRC staff Analysis Report], adequate river flow into the changes do not affect the source term, proposes to determine that the lntake Structure must be available to meet containment isolation, or radiological release amendment request involves no emergency cooling requirements and assure assumptions used in evaluating the significant hazards consideration. UHS OPERABILITY. Adequate river flow can radiological consequences of any accident Attorney for licensee: Mr. Bradley J. be assured by requiring a minimum river previously evaluated. Therefore, there will Fewell, Associate General Counsel, depth of 6.5 inches or greater at the lntake not be an increase in the consequences of any Exelon Generation Company, LLC, 4300 Structure. The proposed Surveillance accidents. Winfield Road, Warrenville, IL 60555. Requirements ensure margin to the minimum 2. The proposed changes do not create the NRC Branch Chief: Russell Gibbs. flow by specifying a depth of 12 inches or possibility of a new or different kind of FPL Energy Duane Arnold, LLC, greater at the lntake Structure. Adding accident from any accident previously additional surveillance requirements for river evaluated. Docket No. 50–331, Duane Arnold depth will not adversely impact any margin The proposed revision to the numbering of Energy Center, Linn County, Iowa. of safety. two ESFAS instrumentation SRs and Date of amendment request: extension of a previously approved license December 20, 2007. The NRC staff has reviewed the amendment implementation period are Description of amendment request: licensee’s analysis and, based on this purely administrative in nature. There are no The proposed amendment would add a review, it appears that the three hardware changes nor are there any changes Surveillance Requirement to Technical standards of 10 CFR 50.92(c) are in the method by which any safety-related Specification (TS) Section 3.7.2, ‘‘RWS satisfied. Therefore, the NRC staff plant system performs its safety function. [River Water Supply] System and UHS proposes to determine that the The proposed changes will not affect the [Ultimate Heat Sink],’’ to require amendment request involves no normal method of plant operation. No surveillances of the Cedar River depth significant hazards consideration. performance requirements will be affected or Attorney for licensee: Marjan eliminated. The proposed changes will not to assure UHS operability. result in physical alteration to any plant Basis for proposed no significant Mashhadi, Florida Power & Light system nor will there be any change in the hazards consideration determination: Company, 801 Pennsylvania Avenue, method by which any safety-related plant As required by 10 CFR 50.91(a), the Suite 220, Washington, DC 20004. system performs its safety function. There licensee has provided its analysis of the NRC Branch Chief: Lois M. James. will be no setpoint changes or changes to issue of no significant hazards Omaha Public Power District, Docket accident analysis assumptions. consideration, which is presented No. 50–285, Fort Calhoun Station, Unit No new accident scenarios, transient below: No. 1, Washington County, Nebraska. precursors, failure mechanisms, or limiting Date of amendment request: April 22, single failures are introduced as a result of 1. Does the proposed amendment involve these changes. There will be no adverse effect a significant increase in the probability or 2008. or challenges imposed on any safety-related consequences of an accident previously Description of amendment request: system as a result of these changes. evaluated? The amendment would revise the Therefore, the proposed changes do not Response: No. Technical Specifications (TS) 2.7,

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‘‘Electrical Systems,’’ Limiting the manner in which safety limits, limiting items are available for public inspection Condition for Operation (LCO) 2.7(2)j. to safety system settings or limiting conditions at the Commission’s Public Document clarify that a single period of operability for operation are determined. The safety Room (PDR), located at One White Flint for one emergency diesel generator (DG) analysis acceptance criteria are not affected North, Public File Area 01F21, 11555 by these changes. The proposed changes will is limited to 7 consecutive days and not result in plant operation in a Rockville Pike (first floor), Rockville, specify that the cumulative total time of configuration outside of the design basis. Maryland. Publicly available records inoperability for both DGs during any Therefore, the proposed changes do not will be accessible from the Agencywide calendar month cannot exceed 7 days. involve a significant reduction in a margin of Documents Access and Management Basis for proposed no significant safety. Systems (ADAMS) Public Electronic hazards consideration determination: The NRC staff has reviewed the Reading Room on the internet at the As required by 10 CFR 50.91(a), the licensee’s analysis and, based on this NRC Web site, http://www.nrc.gov/ licensee has provided its analysis of the review, it appears that the three reading-rm/adams.html. If you do not issue of no significant hazards standards of 10 CFR 50.92(c) are have access to ADAMS or if there are consideration, which is presented satisfied. Therefore, the NRC staff problems in accessing the documents below: proposes to determine that the located in ADAMS, contact the PDR 1. Does the proposed change involve a amendment request involves no Reference staff at 1 (800) 397–4209, significant increase in the probability or significant hazards consideration. (301) 415–4737 or by e-mail to consequences of an accident previously Attorney for licensee: James R. [email protected]. evaluated? Curtiss, Esq., Winston & Strawn, 1700 K AmerGen Energy Company, LLC, Response: No. Docket No. 50–219, Oyster Creek The proposed changes clarify the AOT Street, NW., Washington, DC 20006– 3817. Nuclear Generating Station, Ocean [allowed outage time] of TS 2.7(2)j for DG County, New Jersey. inoperability but are not less restrictive. NRC Branch Chief: Thomas G. Hiltz. Allowed outage times and editorial changes Date of amendment request: May 16, such as these are not an initiator of any Notice of Issuance of Amendments to 2007. accident previously evaluated. As a result, Facility Operating Licenses Description of amendment request: the probability of an accident previously During the period since publication of The amendment revises the Oyster evaluated is not affected. The consequences the last biweekly notice, the Creek Technical Specifications (TSs) of an accident during the revised AOT are no 3.5.A.6, ‘‘Primary Containment.’’ different than the consequences of the same Commission has issued the following amendments. The Commission has Specifically, the amendment revises the accident during the existing AOT. As a actions taken and applicability of the result, the consequences of an accident determined for each of these previously evaluated are not affected by these amendments that the application requirement to inert the primary changes. The proposed changes do not alter complies with the standards and containment atmosphere to less than 4 or prevent the ability of structures, systems, requirements of the Atomic Energy Act percent oxygen (O2) concentration. and components from performing their of 1954, as amended (the Act), and the Additionally, the amendment intended function to mitigate the Commission’s rules and regulations. introduces definitions for thermal consequences of an initiating event within power and rated thermal power the assumed acceptance limits. The proposed The Commission has made appropriate findings as required by the Act and the including changes for their consistent changes do not affect the source term, use within the TSs. containment isolation, or radiological release Commission’s rules and regulations in Date of issuance: May 30, 2008. assumptions used in evaluating the 10 CFR Chapter I, which are set forth in radiological consequences of an accident Effective date: As of its date of the license amendment. issuance, and shall be implemented previously evaluated. Further, the proposed Notice of Consideration of Issuance of changes do not increase the types or amounts within 60 days. of radioactive effluent that may be released Amendment to Facility Operating Amendment No.: 266. offsite, nor significantly increase individual License, Proposed No Significant Facility Operating License No. NPF– or cumulative occupational/public radiation Hazards Consideration Determination, 86: The amendment revised the License exposures. The proposed changes are and Opportunity for A Hearing in and Technical Specifications consistent with the safety analysis connection with these actions was Date of initial notice in Federal assumptions and resultant consequences. published in the Federal Register as Register: March 11, 2008 (73 FR Therefore, the proposed changes do not indicated. 13023). The Commission’s related involve a significant increase in the Unless otherwise indicated, the probability or consequences of an accident evaluation of the amendment is previously evaluated. Commission has determined that these contained in a Safety Evaluation dated 2. Does the proposed change create the amendments satisfy the criteria for May 30, 2008. possibility of a new or different accident categorical exclusion in accordance No significant hazards consideration from any accident previously evaluated? with 10 CFR 51.22. Therefore, pursuant comments received: No. Response: No. to 10 CFR 51.22(b), no environmental Arizona Public Service Company, et The proposed changes do not involve a impact statement or environmental al., Docket Nos. STN 50–528, STN 50– physical alteration of the plant (i.e., no new assessment need be prepared for these or different type of equipment will be 529, and STN 50–530, Palo Verde installed) or a change in the methods amendments. If the Commission has Nuclear Generating Station, Units No. 2, governing normal plant operation. The prepared an environmental assessment Maricopa County, Arizona. proposed changes do not alter any under the special circumstances Date of application for amendments: assumptions made in the safety analysis. provision in 10 CFR 51.22(b) and has November 14, 2007. Therefore, the proposed changes do not made a determination based on that Brief description of amendments: The create the possibility of a new or different assessment, it is so indicated. amendments revised the Technical accident from any accident previously For further details with respect to the Specifications by adding Limiting evaluated. action see (1) the applications for Condition for Operation (LCO) 3.0.8 on 3. Does the proposed change involve a significant reduction in a margin of safety? amendment, (2) the amendment, and (3) the inoperability of snubbers using the Response: No. the Commission’s related letter, Safety Consolidated Line Item Improvement The proposed changes clarifying the AOT Evaluation and/or Environmental Process. The amendments also made of TS 2.7(2)j for DG inoperability do not alter Assessment as indicated. All of these conforming changes to TS LCO 3.0.1.

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These amendments are consistent with Brief description of amendment: The term in the design basis radiological the NRC-approved Industry/Technical amendment removed Surveillance consequence analyses in accordance Specification Task Force (TSTF) Requirement (SR) 3.8.3.6 from the with Title 10 of the Code of Federal Traveler No. 372, Revision 4, ‘‘Addition Technical Specifications and relocated Regulations (10 CFR) Section 50.67. The of LCO 3.0.8, Inoperability of the requirement to a licensee-controlled revised accident source term revision Snubbers.’’ document. SR 3.8.3.6 requires the replaces the methodology that is based Date of issuance: May 30, 2008. Emergency Diesel Generator Fuel Oil on Technical Information Document Effective date: As of the date of Storage Tank to be drained, sediment (TID)–14844, ‘‘Calculation of Distance issuance and shall be implemented removed, and cleaned on a 10-year Factors for Power and Test Reactor within 90 days from the date of interval. Sites,’’ with the alternate source term issuance. Date of issuance: June 2, 2008. methodology described in Regulatory Amendment Nos.: Unit 1—170, Unit Effective date: As of the date of Guide 1.183, ‘‘Alternative Radiological 2—170, and Unit 3—170. issuance and shall be implemented Source Terms for Evaluating Design Facility Operating License No. NPF– within 60 days from the date of Basis Accidents at Nuclear Power 41, NPF–51, and NPF–74: The issuance. Reactors,’’ with the exception that TID– amendments revised the Operating Amendment No.: 160. 14844 will continue to be used as the Licenses and Technical Specifications. Facility Operating License No. NPF– Date of initial notice in Federal 47: The amendment revised the Facility radiation dose basis for equipment Register: January 29, 2008 (73 FR Operating License and Technical qualification and vital area access. 5217). The Commission’s related Specifications. Date of issuance: May 29, 2008. evaluation of the amendment is Date of initial notice in Federal Effective date: As of the date of contained in a Safety Evaluation dated Register: December 31, 2007 (72 FR issuance to be implemented within 120 May 30, 2008. 74357). The Commission’s related days. No significant hazards consideration evaluation of the amendment is Amendment No.: 125. comments received: No. contained in a Safety Evaluation dated Duke Energy Carolinas, LLC, et al., June 2, 2008. Renewed Facility Operating License Docket Nos. 50–413 and 50–414, No significant hazards consideration No. DPR–69: Amendment revised the Catawba Nuclear Station, Units 1 and 2, comments received: No. License and Technical Specifications. York County, South Carolina. Exelon Generation Company, LLC, Date of initial notice in Federal Date of application for amendments: Docket Nos. 50–352 and 50–353, Register: July 31, 2007 (72 FR 41786). Limerick Generating Station, Units 1 February 15, 2008. The supplement dated January 7, Brief description of amendments: The and 2, Montgomery County, 2008, provided additional information amendments authorize a change to the Pennsylvania. that clarified the application, did not UFSAR requiring an inspection of each Date of application for amendment: expand the scope of the application as ice condenser within 24 hours of June 27, 2007. Brief description of amendment: The originally noticed, and did not change experiencing a seismic event greater amendments consist of changes to the the Nuclear Regulatory Commission than or equal to an operating basis Technical Specifications of each unit to staff’s initial proposed no significant earthquake within the 5-week period delete the operability and surveillance hazards consideration determination. after ice basket replenishment has been requirements for the drywell air The Commission’s related evaluation of completed to confirm that adverse ice temperature and suppression chamber the amendment is contained in a Safety fallout has not occurred which could air temperature. These post-accident Evaluation dated May 29, 2008. impede the ability of the ice condenser monitoring instrumentation lower inlet doors to open. This action No significant hazards consideration requirements are being re-located to the comments received: No. would be taken, in lieu of requiring a 5- Limerick Generating Station Technical week waiting period following ice Requirements Manual. Notice of Issuance of Amendments to basket replenishment, prior to beginning Date of issuance: May 29, 2008. Facility Operating Licenses and Final ascension to power operations. Effective date: As of the date of Determination of No Significant Date of issuance: May 28, 2008. issuance and shall be implemented Hazards Consideration and Effective date: As of the date of within 60 days of issuance. Opportunity for a Hearing (Exigent issuance and shall be implemented Amendment Nos.: 191 and 152. Public Announcement or Emergency within 30 days from the date of Facility Operating License Nos. NPF– Circumstances) issuance. 39 and NPF–85. These amendments Amendment Nos.: 241, 236. revised the license and the technical During the period since publication of Facility Operating License Nos. NPF– specifications. the last biweekly notice, the 35 and NPF–52: Amendments revised Date of initial notice in Federal Commission has issued the following the licenses and the technical Register: September 11, 2007 (72 FR amendments. The Commission has specifications. 51860). The Commission’s related determined for each of these Federal Date of initial notice in evaluation of the amendments is amendments that the application for the Register: February 26, 2008 (73 FR contained in a Safety Evaluation dated amendment complies with the 10302). The Commission’s related May 29, 2008. standards and requirements of the evaluation of the amendments is No significant hazards consideration Atomic Energy Act of 1954, as amended contained in a Safety Evaluation dated comments received: No. (the Act), and the Commission’s rules Nine Mile Point Nuclear Station, LLC, May 28, 2008. and regulations. The Commission has No significant hazards consideration Docket No. 50–410, Nine Mile Point made appropriate findings as required comments received: No. Nuclear Station, Unit No. 2, Oswego by the Act and the Commission’s rules Entergy Gulf States Louisiana, LLC, County, New York. and Entergy Operations, Inc., Docket Date of application for amendment: and regulations in 10 CFR Chapter I, No. 50–458, River Bend Station, Unit 1, May 31, 2007, as supplemented by letter which are set forth in the license West Feliciana Parish, Louisiana. dated January 7, 2008. amendment. Date of amendment request: Brief description of amendment: The Because of exigent or emergency November 15, 2007. amendment revises the accident source circumstances associated with the date

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the amendment was needed, there was amendments satisfy the criteria for mail to [email protected]. If a request for a not time for the Commission to publish, categorical exclusion in accordance hearing or petition for leave to intervene for public comment before issuance, its with 10 CFR 51.22. Therefore, pursuant is filed by the above date, the usual Notice of Consideration of to 10 CFR 51.22(b), no environmental Commission or a presiding officer Issuance of Amendment, Proposed No impact statement or environmental designated by the Commission or by the Significant Hazards Consideration assessment need be prepared for these Chief Administrative Judge of the Determination, and Opportunity for a amendments. If the Commission has Atomic Safety and Licensing Board Hearing. prepared an environmental assessment Panel, will rule on the request and/or For exigent circumstances, the under the special circumstances petition; and the Secretary or the Chief Commission has either issued a Federal provision in 10 CFR 51.12(b) and has Administrative Judge of the Atomic Register notice providing opportunity made a determination based on that Safety and Licensing Board will issue a for public comment or has used local assessment, it is so indicated. notice of a hearing or an appropriate media to provide notice to the public in For further details with respect to the order. the area surrounding a licensee’s facility action see (1) the application for As required by 10 CFR 2.309, a of the licensee’s application and of the amendment, (2) the amendment to petition for leave to intervene shall set Commission’s proposed determination Facility Operating License, and (3) the forth with particularity the interest of of no significant hazards consideration. Commission’s related letter, Safety the petitioner in the proceeding, and The Commission has provided a Evaluation and/or Environmental how that interest may be affected by the reasonable opportunity for the public to Assessment, as indicated. All of these results of the proceeding. The petition comment, using its best efforts to make items are available for public inspection should specifically explain the reasons available to the public means of at the Commission’s Public Document why intervention should be permitted communication for the public to Room (PDR), located at One White Flint with particular reference to the respond quickly, and in the case of North, Public File Area 01F21, 11555 following general requirements: (1) The telephone comments, the comments Rockville Pike (first floor), Rockville, name, address, and telephone number of have been recorded or transcribed as Maryland. Publicly available records the requestor or petitioner; (2) the appropriate and the licensee has been will be accessible from the Agencywide nature of the requestor’s/petitioner’s informed of the public comments. Documents Access and Management right under the Act to be made a party In circumstances where failure to act System’s (ADAMS) Public Electronic to the proceeding; (3) the nature and in a timely way would have resulted, for Reading Room on the Internet at the extent of the requestor’s/petitioner’s example, in derating or shutdown of a NRC Web site, http://www.nrc.gov/ property, financial, or other interest in nuclear power plant or in prevention of reading-rm/adams.html. If you do not the proceeding; and (4) the possible either resumption of operation or of have access to ADAMS or if there are effect of any decision or order which increase in power output up to the problems in accessing the documents may be entered in the proceeding on the plant’s licensed power level, the located in ADAMS, contact the PDR requestor’s/petitioner’s interest. The Commission may not have had an Reference staff at 1 (800) 397–4209, petition must also identify the specific opportunity to provide for public (301) 415–4737 or by e-mail to contentions which the petitioner/ comment on its no significant hazards [email protected]. requestor seeks to have litigated at the consideration determination. In such The Commission is also offering an proceeding. case, the license amendment has been opportunity for a hearing with respect to Each contention must consist of a issued without opportunity for the issuance of the amendment. Within specific statement of the issue of law or comment. If there has been some time 60 days after the date of publication of fact to be raised or controverted. In for public comment but less than 30 this notice, person(s) may file a request addition, the petitioner/requestor shall days, the Commission may provide an for a hearing with respect to issuance of provide a brief explanation of the bases opportunity for public comment. If the amendment to the subject facility for the contention and a concise comments have been requested, it is so operating license and any person whose statement of the alleged facts or expert stated. In either event, the State has interest may be affected by this opinion which support the contention been consulted by telephone whenever proceeding and who wishes to and on which the petitioner intends to possible. participate as a party in the proceeding rely in proving the contention at the Under its regulations, the Commission must file a written request via electronic hearing. The petitioner must also may issue and make an amendment submission through the NRC E-Filing provide references to those specific immediately effective, notwithstanding system for a hearing and a petition for sources and documents of which the the pendency before it of a request for leave to intervene. Requests for a petitioner is aware and on which the a hearing from any person, in advance hearing and a petition for leave to petitioner intends to rely to establish of the holding and completion of any intervene shall be filed in accordance those facts or expert opinion. The required hearing, where it has with the Commission’s ‘‘Rules of petition must include sufficient determined that no significant hazards Practice for Domestic Licensing information to show that a genuine consideration is involved. Proceedings’’ in 10 CFR Part 2. dispute exists with the applicant on a The Commission has applied the Interested person(s) should consult a material issue of law or fact.1 standards of 10 CFR 50.92 and has made current copy of 10 CFR 2.309, which is Contentions shall be limited to matters a final determination that the available at the Commission’s PDR, within the scope of the amendment amendment involves no significant located at One White Flint North, Public under consideration. The contention hazards consideration. The basis for this File Area 01F21, 11555 Rockville Pike must be one which, if proven, would determination is contained in the (first floor), Rockville, Maryland, and documents related to this action. electronically on the Internet at the NRC 1 To the extent that the applications contain Accordingly, the amendments have Web site, http://www.nrc.gov/reading- attachments and supporting documents that are not been issued and made effective as rm/doc-collections/cfr/. If there are publicly available because they are asserted to contain safeguards or proprietary information, indicated. problems in accessing the document, petitioners desiring access to this information Unless otherwise indicated, the contact the PDR Reference staff at 1 should contact the applicant or applicant’s counsel Commission has determined that these (800) 397–4209, (301) 415–4737, or by e- and discuss the need for a protective order.

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entitle the petitioner to relief. A Office of the Secretary by e-mail at between 8:30 a.m. and 4:15 p.m., petitioner/requestor who fails to satisfy [email protected], or by Eastern Time, Monday through Friday. these requirements with respect to at calling (301) 415–1677, to request (1) a The help line number is (800) 397–4209 least one contention will not be digital ID certificate, which allows the or locally, (301) 415–4737. permitted to participate as a party. participant (or its counsel or Participants who believe that they Each contention shall be given a representative) to digitally sign have a good cause for not submitting separate numeric or alpha designation documents and access the E-Submittal documents electronically must file a within one of the following groups: server for any proceeding in which it is motion, in accordance with 10 CFR 1. Technical—primarily concerns/ participating; and/or (2) creation of an 2.302(g), with their initial paper filing issues relating to technical and/or electronic docket for the proceeding requesting authorization to continue to health and safety matters discussed or (even in instances in which the submit documents in paper format. referenced in the applications. petitioner/requestor (or its counsel or Such filings must be submitted by: (1) 2. Environmental—primarily representative) already holds an NRC- First class mail addressed to the Office concerns/issues relating to matters issued digital ID certificate). Each of the Secretary of the Commission, U.S. discussed or referenced in the petitioner/requestor will need to Nuclear Regulatory Commission, environmental analysis for the download the Workplace Forms Washington, DC 20555–0001, Attention: applications. ViewerTM to access the Electronic Rulemaking and Adjudications Staff; or 3. Miscellaneous—does not fall into Information Exchange (EIE), a (2) courier, express mail, or expedited one of the categories outlined above. component of the E-Filing system. The As specified in 10 CFR 2.309, if two delivery service to the Office of the Workplace Forms ViewerTM is free and Secretary, Sixteenth Floor, One White or more petitioners/requestors seek to is available at http://www.nrc.gov/site- co-sponsor a contention, the petitioners/ Flint North, 11555 Rockville Pike, help/e-submittals/install-viewer.html. Rockville, Maryland 20852, Attention: requestors shall jointly designate a Information about applying for a digital representative who shall have the Rulemaking and Adjudications Staff. ID certificate is available on NRC’s Participants filing a document in this authority to act for the petitioners/ public Web site at http://www.nrc.gov/ requestors with respect to that manner are responsible for serving the site-help/e-submittals/apply- document on all other participants. contention. If a petitioner/requestor certificates.html. seeks to adopt the contention of another Filing is considered complete by first- Once a petitioner/requestor has class mail as of the time of deposit in sponsoring petitioner/requestor, the obtained a digital ID certificate, had a petitioner/requestor who seeks to adopt the mail, or by courier, express mail, or docket created, and downloaded the EIE expedited delivery service upon the contention must either agree that the viewer, it can then submit a request for sponsoring petitioner/requestor shall act depositing the document with the hearing or petition for leave to provider of the service. as the representative with respect to that intervene. Submissions should be in Non-timely requests and/or petitions contention, or jointly designate with the Portable Document Format (PDF) in and contentions will not be entertained sponsoring petitioner/requestor a accordance with NRC guidance absent a determination by the representative who shall have the available on the NRC public Web site at Commission, the presiding officer, or authority to act for the petitioners/ http://www.nrc.gov/site-help/e- the Atomic Safety and Licensing Board requestors with respect to that submittals.html. A filing is considered that the petition and/or request should contention. complete at the time the filer submits its Those permitted to intervene become documents through EIE. To be timely, be granted and/or the contentions parties to the proceeding, subject to any an electronic filing must be submitted to should be admitted, based on a limitations in the order granting leave to the EIE system no later than 11:59 p.m. balancing of the factors specified in 10 intervene, and have the opportunity to Eastern Time on the due date. Upon CFR 2.309(c)(1)(i)–(viii). To be timely, participate fully in the conduct of the receipt of a transmission, the E-Filing filings must be submitted no later than hearing. Since the Commission has system time-stamps the document and 11:59 p.m. Eastern Time on the due made a final determination that the sends the submitter an e-mail notice date. amendment involves no significant confirming receipt of the document. The Documents submitted in adjudicatory hazards consideration, if a hearing is EIE system also distributes an e-mail proceedings will appear in NRC’s requested, it will not stay the notice that provides access to the electronic hearing docket which is effectiveness of the amendment. Any document to the NRC Office of the available to the public at http:// _ hearing held would take place while the General Counsel and any others who ehd.nrc.gov/EHD Proceeding/home.asp, amendment is in effect. have advised the Office of the Secretary unless excluded pursuant to an order of A request for hearing or a petition for that they wish to participate in the the Commission, an Atomic Safety and leave to intervene must be filed in proceeding, so that the filer need not Licensing Board, or a Presiding Officer. accordance with the NRC E-Filing rule, serve the documents on those Participants are requested not to include which the NRC promulgated in August participants separately. Therefore, personal privacy information, such as 28, 2007, (72 FR 49139). The E-Filing applicants and other participants (or social security numbers, home process requires participants to submit their counsel or representative) must addresses, or home phone numbers in and serve documents over the internet apply for and receive a digital ID their filings. With respect to copyrighted or in some cases to mail copies on certificate before a hearing request/ works, except for limited excerpts that electronic storage media. Participants petition to intervene is filed so that they serve the purpose of the adjudicatory may not submit paper copies of their can obtain access to the document via filings and would constitute a Fair Use filings unless they seek a waiver in the E-Filing system. application, participants are requested accordance with the procedures A person filing electronically may not to include copyrighted materials in described below. seek assistance through the ‘‘Contact their submission. To comply with the procedural Us’’ link located on the NRC Web site Virginia Electric and Power Company, requirements of E-Filing, at least five (5) at http://www.nrc.gov/site-help/e- et al., Docket Nos. 50–280 and 50–281, days prior to the filing deadline, the submittals.html or by calling the NRC Surry Power Station, Unit No. 2, Surry petitioner/requestor must contact the technical help line, which is available County, Virginia.

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Date of application for amendments: NUCLEAR REGULATORY Internet at http://www.nrc.gov/reading- April 14, 2008, as supplemented on May COMMISSION rm/adams.html. Persons who do not 6, 2008. have access to ADAMS or who Brief Description of amendments: The Office of New Reactors; Notice of encounter problems in accessing the proposed amendment allowed a one- Availability of the Final Interim Staff documents located in ADAMS should cycle revision to Surry Power Station, Guidance DC/COL–ISG–03 on contact the NRC Public Document Room Unit No. 2 Technical Specifications Probabilistic Risk Assessment reference staff at 1–800–397–4209, 301– (TSs). Specifically, TS 6.4.Q, ‘‘Steam Information To Support Design 415–4737, or by e-mail at [email protected]. Certification and Combined License Generator (SG) Program,’’ and TS 6.6.3, FOR FURTHER INFORMATION CONTACT: Applications Ms. ‘‘Steam Generator Tube Inspection Lynn A. Mrowca, Chief, PRA Licensing, Report,’’ were revised to incorporate an AGENCY: Nuclear Regulatory Operations Support Maintenance interim alternate repair criterion (IARC) Commission (NRC). Branch 1, Division of Safety Systems into the provisions for SG tube repair. ACTION: Notice of availability. and Risk Assessment, Office of the New Date of issuance: May 16, 2008. Reactors, U.S. Nuclear Regulatory SUMMARY: The NRC is issuing its Final Commission, Washington, DC 20555– Effective date: As of the date of Interim Staff Guidance (ISG) DC/COL– issuance and shall be implemented 0001; telephone 301–415–0525 or e-mail ISG–03 (ADAMS Accession No. at [email protected]. within 30 days. ML081430087). This ISG supplements Amendment No.: 258. the guidance provided to the staff in SUPPLEMENTARY INFORMATION: The agency posts its issued staff guidance in Renewed Facility Operating License section 19.0, ‘‘Probabilistic Risk the agency external Web page http:// Nos. DPR–32 and DPR–37: Amendment Assessment and Severe Accident www.nrc.gov/reading-rm/doc- changed the license and the technical Evaluation for New Reactors,’’ of collections/isg/. specifications. NUREG–0800, ‘‘Standard Review Plan Date of initial notice in Federal for the Review of Safety Analysis Dated at Rockville, Maryland, this 11th day of June 2008. Register: 73 FR 22443 (April 25, 2008) Reports for Nuclear Power Plants,’’ and Daily Press (May 12 and May 13, concerning the review of probabilistic For the Nuclear Regulatory Commission, 2008). No comments have been risk assessment (PRA) information and George M. Tartal, received. severe accident assessment submitted to Acting Chief, Rulemaking, Guidance and support design certification (DC) and Advanced Reactor Branch, Division of New The supplement dated May 6, 2008 combined license (COL) applications. Reactor Licensing, Office of New Reactors. requested approval of the amendment The NRC staff issues DC/COL–ISGs to [FR Doc. E8–13572 Filed 6–16–08; 8:45 am] based on exigent circumstances, facilitate timely implementation of the BILLING CODE 7590–01–P provided additional information that current staff guidance and to facilitate clarified the application, did not expand activities associated with review of the scope of the original proposed no applications for DC and COLs by the NUCLEAR REGULATORY significant hazards consideration Office of New Reactors. The NRC staff COMMISSION (NSHC) determination, and did not will also incorporate the approved DC/ change the NRC staff’s original proposed COL–ISGs into the next revision to the Sunshine Federal Register Notice NSHC determination. review guidance documents for new The Commission’s related evaluation reactor applications. DATES: Weeks of June 16, 23, 30, July 4, of the amendment, finding of exigent Disposition: On February 12, 2008, 14, 21, 2008. circumstances, state consultation, and the staff issued the proposed ISG PLACE: Commissioners’ Conference final NSHC determination are contained ‘‘Probabilistic Risk Assessment Room, 11555 Rockville Pike, Rockville, in a safety evaluation dated May 16, Information to Support Design Maryland. 2008. Certification and Combined License STATUS: Public and Closed. The Daily Press notice provided an Applications,’’ (COL/DC–ISG–003) opportunity to submit comments by (ADAMS Accession No. ML080370218) Week of June 16, 2008 May 15, 2008. No comments have been to solicit public and industry comment. Tuesday, June 17, 2008 received. The April 25, 2008 notice also The staff received comments (ADAMS provided an opportunity to request a Accession Nos. ML080810201, 12:55 p.m. Affirmation Session hearing by June 24, 2008, but the Daily ML080810204 and ML080840432) on (Public Meeting) (Tentative). Press Notice stated that ‘‘an opportunity the proposed guidance on March 21, 2008. These comments were further a. U.S. DOE (HLW Repository: Pre- for a hearing will be published at a later Application Matters), Docket No. date.’’ The Daily Press Notice should discussed in a public meeting held at the NRC on May 8, 2008. This final PAPO–00—The State of Nevada’s Notice have stated that ‘‘an opportunity for a of Appeal from the PAPO Board’s 1/4/ hearing was previously published.’’ issuance incorporates changes from the majority of the comments. To the extent 08 and 12/12/07 Orders and The State No significant hazards consideration that comments are not incorporated in of Nevada’s Motion to File a Limited comments received: No. this final issuance, the comments are Reply (Tentative). Dated at Rockville, Maryland, this 5th day rejected by the staff or are outside the b. AmerGen Energy Company, LLC, of June 2008. scope of this guidance. (License Renewal for Oyster Creek For The Nuclear Regulatory Commission. ADDRESSES: The NRC maintains an Nuclear Generating Station); Citizens’ Robert A. Nelson, Agencywide Documents Access and Motion to Stay proceedings (Tentative). Deputy Director, Division of Operating Management System (ADAMS), which c. U.S. Department of Energy (High- Reactor Licensing, Office of Nuclear Reactor provides text and image files of NRC’s Level Waste Repository: Pre-Application Regulation. public documents. These documents Matters, Advisory PAPO Board), [FR Doc. E8–13218 Filed 6–16–08; 8:45 am] may be accessed through the NRC’s Advisory PAPO Board Request for BILLING CODE 7590–01–P Public Electronic Reading Room on the Additional Authority (Tentative).

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Week of June 23, 2008—Tentative NRC’s Disability Program Coordinator, Dated at Rockville, Maryland, this 11th day Rohn Brown, at 301–492–2279, TDD: of June 2008. Wednesday, June 25, 2008 301–415–2100, or by e-mail at For the Nuclear Regulatory Commission. 1 p.m. Periodic Briefing on New [email protected]. Determinations on Annette L. Vietti-Cook, Reactor Issues. (Public Meeting) requests for reasonable accommodation Secretary of the Commission. (Contact: Donna Williams, 301–415– will be made on a case-by-case basis. [FR Doc. E8–13575 Filed 6–16–08; 8:45 am] 1322). * * * * * BILLING CODE 7590–01–P This meeting will be webcast live at This notice is distributed by mail to the Web address—http://www.nrc.gov. several hundred subscribers; if you no Week of June 30, 2008—Tentative longer wish to receive it, or would like NUCLEAR REGULATORY to be added to the distribution, please COMMISSION Tuesday, July 1, 2008 contact the Office of the Secretary, Yucca Mountain; Notice of Receipt and 9 a.m. Hearing: Diablo Canyon, 10 Washington, DC 20555 (301–415–1969). Availability of Application CFR part 2, Subpart K Proceeding, Oral In addition, distribution of this meeting Arguments (Public Meeting) (Contact: notice over the Internet system is On June 3, 2008, the Department of John Cordes, 301–415–1600). available. If you are interested in Energy (DOE, or the Applicant) filed a This meeting will be webcast live at receiving this Commission meeting license application for a geologic the Web address—http://www.nrc.gov. schedule electronically, please send an repository to be located at Yucca electronic message to [email protected]. Week of July 7, 2008—Tentative Mountain in Nye County, Nevada with Dated: June 12, 2008. the Nuclear Regulatory Commission (the There are no meetings scheduled for R. Michelle Schroll, Commission) pursuant to section 114 of the week of July 7, 2008. Office of the Secretary. the Nuclear Waste Policy Act, as amended, 42 U.S.C. 10134, 10 CFR Part Week of July 14, 2008—Tentative [FR Doc. 08–1365 Filed 6–13–08; 10:47 am] 63 and 10 CFR 2.101. Thursday, July 17, 2008 BILLING CODE 7590–01–M The information submitted by the 1 p.m. Briefing on Fire Protection Applicant includes information that the Applicant has identified as classified Issues (Public Meeting) (Contact: Alex NUCLEAR REGULATORY national security information. For Klein, 301–415–2822). COMMISSION This meeting will be webcast live at informational purposes, the Applicant the Web address—http://www.nrc.gov. [Docket Nos. 52–018 and 52–019] also provided, in electronic format, copies of primary references, and a Week of July 21, 2008—Tentative Duke Energy Carolinas, LLC; matrix that cross-references sections of Wednesday, July 23, 2008 Correction to Notice of Hearing and the application to 10 CFR Part 63 and Opportunity To Petition for Leave To NUREG–1804. 1:30 p.m. Discussion of Security Intervene and Order Imposing Subsequent Federal Register notices Issues (Closed—Ex. 1 & 3). Procedures for Access to Sensitive will address the NRC Staff’s Thursday, July 24, 2008 Unclassified Non-Safeguards determination of the acceptability or Information and Safeguards non-acceptability of the tendered 1:30 p.m. Discussion of Security Information for Contention Preparation application for docketing and provisions Issues (Closed—Ex. 1 & 3). on a Combined License for the William for participation of the public in the * * * * * States Lee III Units 1 and 2 review process. *The schedule for Commission A copy of the application is available meetings is subject to change on short AGENCY: Nuclear Regulatory for public inspection at the notice. To verify the status of meetings, Commission. Commission’s Public Document Room call (recording)—(301) 415–1292. ACTION: Notice of Issuance; correction. (PDR), located at One White Flint North, Contact person for more information: 11555 Rockville Pike (first floor), SUMMARY: Michelle Schroll, (301) 415–1662. This document corrects a Rockville, Maryland, and via the notice appearing in the Federal Register * * * * * Agencywide Documents Access and of April 28, 2008 (73 FR 22978), that Management System (ADAMS) Public Additional Information incorrectly referenced the name of the Electronic Reading Room on the Internet The ‘‘Discussion of Adjudicatory applicant. This action is necessary to at the NRC Web site, http:// Issues (Closed—Ex. 10)’’ previously correct an erroneous name. www.nrc.gov/reading-rm/adams.html. scheduled on Tuesday, June 17, 2008, at FOR FURTHER INFORMATION CONTACT: B. The accession number for the 1 p.m. has been cancelled. Hughes, Office of New Reactors, U.S. application is ML081560408. Future * * * * * Nuclear Regulatory Commission, publicly available documents related to The NRC Commission Meeting Washington, DC 20555–0001; telephone the application will also be posted in Schedule can be found on the Internet (301) 415–6582, e-mail: ADAMS. Persons who do not have at: http://www.nrc.gov/about-nrc/policy- [email protected]. access to ADAMS, or who encounter making/schedule.html. SUPPLEMENTARY INFORMATION: problems in accessing the documents The NRC provides reasonable 1. The subject heading of the notice of located in ADAMS, should contact the accommodation to individuals with hearing is corrected by changing ‘‘Duke NRC Public Document Room staff by disabilities where appropriate. If you Energy’’ to ‘‘Duke Energy Carolinas, telephone at 1–800–397–4209 or 301– need a reasonable accommodation to LLC.’’ 415–4737, or by e-mail to participate in these public meetings, or 2. On page 22978, in the third [email protected]. The application need this meeting notice or the column, in the first complete paragraph, is also available at http://www.nrc.gov/ transcript or other information from the twentieth line, ‘‘Duke Energy’’ is waste/hlw-disposal/yucca-lic-app.html. public meetings in another format (e.g., corrected to read ‘‘Duke Energy Dated at Rockville, Maryland, this 10th day braille, large print), please notify the Carolinas, LLC.’’ of June 2008.

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For the U.S. Nuclear Regulatory For further details with respect to this ACTION: Notice of Public Availability of Commission. action, see the application for Agency Inventory of Activities That Are Lawrence E. Kokajko, amendment dated March 13, 2007, and Not Inherently Governmental and of Director, Division of High-Level Waste the licensee’s letter dated May 6, 2008, Activities That Are Inherently Repository Safety, Office of Nuclear Material which withdrew the application for a Governmental. Safety and Safeguards. license amendment. Documents may be [FR Doc. E8–13573 Filed 6–16–08; 8:45 am] examined, and/or copied for a fee, at the SUMMARY: The Federal Activities BILLING CODE 7590–01–P NRC’s Public Document Room (PDR), Inventory Reform (FAIR) Act, Public located at One White Flint North, Public Law 105–270, requires agencies to File Area O1 F21, 11555 Rockville Pike develop inventories each year of NUCLEAR REGULATORY (first floor), Rockville, Maryland. COMMISSION activities performed by their employees Publicly available records will be that are not inherently governmental— [Docket Nos. 50–247 and 50–286] accessible electronically from the i.e., inventories of commercial activities. Agencywide Documents Access and The FAIR Act further requires OMB to Entergy Nuclear Indian Point 2, Llc, Management Systems (ADAMS) Public review the inventories in consultation Entergy Nuclear Indian Point 3, Llc, Electronic Reading Room on the Internet with the agencies and publish a notice Entergy Nuclear Operations, Inc.; at the NRC Web site, http:// of public availability in the Federal Notice of Withdrawal of Application for www.nrc.gov/reading-rm.html. Persons Register after the consultation process is Amendment to Facility Operating who do not have access to ADAMS or License Nos. DPR–26 and DPR–64, completed. In accordance with the FAIR who encounter problems in accessing Act, OMB is publishing this notice to Indian Point Nuclear Generating Unit the documents located in ADAMS Nos. 2 and 3 announce the availability of inventories should contact the NRC PDR Reference from the agencies listed below. These The U.S. Nuclear Regulatory staff by telephone at 1–800–397–4209, inventories identify both commercial or 301–415–4737 or by e-mail to Commission (the Commission) has activities and activities that are [email protected]. granted the request of Entergy Nuclear inherently governmental. Dated at Rockville, Maryland, this 10th day Operations, Inc. (the licensee) to This is the first release of the FAIR withdraw its March 13, 2007, of June 2008. Act inventories for FY 2007. Interested application for proposed amendments to For the Nuclear Regulatory Commission. parties who disagree with the agency’s Facility Operating License No. DPR–26 John P. Boska, initial judgment may present a for Indian Point Nuclear Generating Senior Project Manager, Plant Licensing challenge to the agency regarding the Unit No. 2 and Facility Operating Branch I–1, Division of Operating Reactor inclusion or the omission of an activity License No. DPR–64 for Indian Point Licensing, Office of Nuclear Reactor Nuclear Generating Unit No. 3, located Regulation. on the list of activities that are not inherently governmental within 30 in Westchester County, New York. [FR Doc. E8–13590 Filed 6–16–08; 8:45 am] working days and, if not satisfied with The proposed amendments would BILLING CODE 7590–01–P have revised the fire protection license this review, may appeal to a higher level conditions by removing the listing of within the agency. dated Fire Protection Safety Evaluation OFFICE OF MANAGEMENT AND The Office of Federal Procurement Reports (SERs) contained within the BUDGET Policy has made available a FAIR Act licenses. User’s Guide through its Internet site: The Commission had previously Public Availability of Fiscal Year 2007 http://www.whitehouse.gov/omb/ issued a Notice of Consideration of Agency Inventories Under the Federal procurement/fair-index.html. This Issuance of Amendment published in Activities Inventory Reform Act User’s Guide will help interested parties the Federal Register on April 10, 2007 review FY 2007 FAIR Act inventories. (72 FR 17947). However, by letter dated AGENCY: Office of Management and May 6, 2008, the licensee withdrew the Budget, Executive Office of the Paul A. Denett, proposed change. President. Administrator.

ATTACHMENT—FIRST FAIR ACT RELEASE FY 2007

Commodity Futures Trading Commission...... Ms. Sonda R. Owens, (202) 418–5182, http://www.cftc.gov/files/cftc/ fairact2007inventory.pdf. Department of Agriculture ...... Ms. Ava Lee, (202) 720–1179, http://www.usda.gov/ocfo. Department of Agriculture (IG) ...... Mr. Rod DeSmet, (202) 720–6979, http://www.usda.gov/oig/rptsbulletins.htm. Department of Commerce...... Ms. Delia Davis, (202) 482–4560, http://oamweb.osec.doc.gov/ CS_doc_inventories.html. Department of Education...... Mr. Gary Weaver, (202) 245–6138, http://www.ed.gov/about/offices/list/ocfo/ 2007fair.html. Department of Health and Human Services ...... Mr. Michael Tulenko, (202) 690–5803, http://www.hhs.gov/ogam/oam/fair. Department of Homeland Security ...... Mr. David Childs, (202) 447–5266, http://www.dhs.gov/dhspublic/interapp/editorial/edi- torial_0504.xml. Department of Housing and Urban Development ...... Mr. Kenneth A. Holland, (202) 402–3828, http://www.hud.gov/offices/CFO/FAIRAct/ cover.cfm. Department of Housing and Urban Development (IG) ..... Ms. Kisha Allen, (202) 402–8186, http://www.hudoig.gov. Department of Justice ...... Mr. Larry Silvis, (202) 616–3754, http://www.usdoj.gov/jmd/pe/preface.htm. Department of Labor ...... Mr. Larry Clark, (202) 693–4020, http://www.dol.gov/oasam/programs/boc/. Department of State ...... Ms. Valerie Dumas, (703) 516–1506, http://www.state.gov. Department of the Interior ...... Mr. Robert Gordon, (202) 219–0727, http://www.doi.gov/perfmgt/competitivesourcing. Department of the Treasury ...... Mr. Jim Sullivan, (202) 622–9395, http://www.treas.gov/fair. Department of Transportation ...... Mr. Thomas F. Kaplan, (202) 366–7784, http://www.dot.gov/ost/m60/fairact/.

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ATTACHMENT—FIRST FAIR ACT RELEASE FY 2007—Continued Environmental Protection Agency...... Mr. Ed Murphy, (202) 566–4456, http://www.epa.gov/oarm/inventory/2007/ 2007inventory.htm. Equal Employment Opportunity Commission ...... Ms. Doreen Starkes, (202) 663–4240, http://www.eeoc.gov. Farm Credit Administration ...... Mr. Philip Shebest, (703) 883–4146, http://www.fca.gov/FCAWeb/fairact.htm. Federal Communications Commission ...... Ms. Bonita Tingley, (202) 418–0293, http://www.fcc.gov/omd/reports.html. Federal Energy Regulatory Commission ...... Ms. Kimberly Fernandez, (202) 502–8302, http://www.ferc.gov. Federal Maritime Commission ...... Mr. Peter King, (202) 523–5800, http://www.fmc.gov. Federal Trade Commission ...... Ms. Darlene Cossette, (202) 326–3255, http://www.ftc.gov/fairact. General Services Administration ...... Mr. Paul Boyle, (202) 501–0324, http://www.gsa.gov. National Aeronautics and Space Administration ...... Ms. Ann Sharpe, (202) 358–0484, http://www.competitivesourcing.nasa.gov. National Archives and Records Administration ...... Ms. Susan Ashtianie, (301) 837–1490, http://www.archives.gov/about/plansreports/ fairact/. National Endowment for the Arts ...... Mr. Laurence M. Baden, (202) 682–5534, http://www.arts.gov. Office of Federal Housing Enterprise Oversight ...... Mr. Mark Laponsky, (202) 414–3832, http://www.ofheo.gov. Office of Personnel Management ...... Mr. Ronald C. Flom, (202) 606–3207, http://www.opm.gov/procure/fairactinventory/. Office of Special Counsel ...... Ms. Sharyn Danch, (202) 254–3600, http://www.osc.gov. Small Business Administration ...... Mr. Richard Brechbiel, (202) 205–6784, http://www.sba.gov/A76. Smithsonian Institution ...... Mr. Ken Johnson, (202) 633–5211, http://www.si.edu. Social Security Administration ...... Mr. Dennis Wilhite, (410) 966–6988, http://www.socialsecurity.gov/fair/FAIRact.htm. United States Holocaust Memorial Museum ...... Mr. Lawrence Swiader, (202) 488–6579, http://www.ushmm.org/notices/fair_act/ 2007.ls.

[FR Doc. E8–13500 Filed 6–16–08; 8:45 am] [email protected], with ‘‘EC communication function’’) no longer BILLING CODE 3110–01–P Information Technology Products includes set-top boxes with modems of (DS375)’’ in the subject line, or (ii) by certain types (e.g., Ethernet modems) or fax, to Sandy McKinzy at (202) 395– set-top boxes which ‘‘incorporate a OFFICE OF THE UNITED STATES 3640, with a confirmation copy sent device performing a recording or TRADE REPRESENTATIVE electronically to the electronic mail reproducing function (for example, a address above, in accordance with the hard disk or DVD drive).’’ As a result of [Docket No. WTO/DS375] requirements for submission set out this exclusion, the EC and its member WTO Dispute Settlement Proceeding below. States impose a duty on these set-top Regarding European Communities— FOR FURTHER INFORMATION CONTACT: boxes. In addition, the EC added an Tariff Treatment of Certain Information Elissa Alben, Assistant General Counsel, explanatory note to CN 8521 90 00 Technology Products Office of the United States Trade indicating that the subheading includes Representative, 600 17th Street, NW., set-top boxes ‘‘which incorporate a AGENCY: Office of the United States Washington, DC, (202) 395–3150. device performing a recording or Trade Representative. reproducing function (for example, a SUPPLEMENTARY INFORMATION: USTR is ACTION: Notice; request for comments. providing notice that the United States hard disk or DVD drive).’’ Products has requested consultations with the EC classified in CN 8521 90 00 are subject SUMMARY: The Office of the United to an MFN duty of 13.9%. States Trade Representative (‘‘USTR’’) is and its member States pursuant to the • Flat panel displays (including LCD, providing notice that on May 28, 2008, DSU. If such consultations should fail to electro luminescence, plasma and other in accordance with the World Trade resolve the matter and a dispute technologies). On March 31, 2005, the Organization (‘‘WTO’’) Understanding settlement panel is established pursuant EC published Council Regulation (EC) on Rules and Procedures Governing the to the DSU, such panel, which would No. 493/2005, stating that certain flat Settlement of Disputes (‘‘DSU’’), the hold its meetings in Geneva, panel displays using LCD technology United States requested consultations Switzerland, would be expected to issue that are ‘‘capable of reproducing video with the European Communities (‘‘EC’’) a report on its findings and images from a source other than an and its member States regarding the recommendations within nine months automatic data-processing machine’’ are tariff treatment accorded to set-top after it is established. not covered by the Information boxes with a communication function, Major Issues Raised by the United Technology Agreement (ITA) or by the flat panel displays, ‘‘input or output States Communication on its implementation units,’’ and facsimile machines. That On May 28, 2008, the United States (Council Decision 97/359/EC of 24 request may be found at http:// requested consultations with the EC and March 1997). On April 26, 2005, the EC www.wto.org contained in a document its member States regarding the tariff issued Commission Regulation (EC) No. designated as WT/DS375/1. USTR treatment the EC and its member States 634/2005, stating that flat panel displays invites written comments from the accord to set-top boxes with a with certain attributes, including DVI, public concerning the issues raised in communication function, flat panel would be classified in a dutiable tariff this dispute. displays, ‘‘input or output units,’’ and line. On December 29, 2005, the EC DATES: Although USTR will accept any facsimile machines. published Commission Regulation (EC) comments received during the course of • Set-top boxes with a No. 2171/2005, which also provided the dispute, comments should be communication function. On May 7, that certain flat panel displays would be submitted on or before July 11, 2008 to 2008, the EC published an amendment classified in a dutiable tariff line if they be assured of timely consideration by to the Explanatory Notes to the EC’s had certain attributes, including DVI. USTR. Combined Nomenclature (CN), which On December 30, 2006, the EC ADDRESSES: Comments should be provides that the duty-free heading CN published amendments to the submitted (i) electronically, to 8528 71 13 (‘‘set-top boxes with a Explanatory Notes to accompany CN

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8471 60 80 and 8528 21 90. Like the boxes using the approach specified in USTR will maintain a file on this regulations, the Explanatory Notes 2008/C 112/03 prior to May 7, 2008. dispute settlement proceeding, provide that flat panel displays with These actions appear to USTR to be accessible to the public, in the USTR certain attributes, such as DVI, may not inconsistent with the EC’s obligations Reading Room, which is located at 1724 be classified in the duty-free tariff line under GATT 1994 Articles X:1 and X:2. F Street, NW., Washington, DC 20508. 8471 60 80 and would be classified in The public file will include non- Public Comment: Requirements for a dutiable tariff line. EC member States confidential comments received by Submissions assess duties on flat panel displays. USTR from the public with respect to Furthermore, while the EC has Interested persons are invited to the dispute; if a dispute settlement temporarily suspended the collection of submit written comments concerning panel is convened or in the event of an duties on some flat panel displays, it the issues raised in the dispute. appeal from such a panel, the U.S. appears to fail to accord tariff treatment Comments should be submitted (i) submissions, the submissions, or non- that is no less favorable than that electronically, to [email protected], confidential summaries of submissions, provided for in its Schedule. with ‘‘EC Information Technology received from other participants in the • ‘‘Input or output units’’ and Products (DS375)’’ in the subject line, or dispute; the report of the panel; and, if facsimile machines. In 1999, the EC (ii) by fax, to Sandy McKinzy at (202) applicable, the report of the Appellate published Commission Regulation (EC) 395–3640, with a confirmation copy Body. The USTR Reading Room is open No. 517/99, which provided that certain sent electronically to the electronic mail to the public, by appointment only, ‘‘output units’’ would be classified in a address above. from 10 a.m. to noon and 1 p.m. to 4 tariff line with a 6% MFN duty. On USTR encourages the submission of p.m., Monday through Friday. An March 9, 2006, the EC published documents in Adobe PDF format as appointment to review the public file Commission Regulation (EC) No. 400/ attachments to an electronic mail. (Docket WTO/DS–375, EC Information 2006, which classified certain ‘‘output Interested persons who make Technology Products Dispute) may be units’’ or facsimile machines, under CN submissions by electronic mail should made by calling the USTR Reading subheading 9009 12 00, as indirect not provide separate cover letters; Room at (202) 395–6186. process electrostatic photocopiers. The information that might appear in a cover Daniel Brinza, EC Customs Code Committee also letter should be included in the issued a statement indicating that ‘‘if a submission itself. Similarly, to the Assistant United States Trade Representative for Monitoring and Enforcement. multifunctional device (fax, printer, extent possible, any attachments to the scanner, copier) has the capability of submission should be included in the [FR Doc. E8–13502 Filed 6–16–08; 8:45 am] photocopying in black and white 12 or same file as the submission itself, and BILLING CODE 3190–W8–P more pages per minute (A4 format) this not as separate files. indicates that the product is classifiable Comments must be in English. A OFFICE OF THE UNITED STATES in heading 9009 as a photocopying person requesting that information TRADE REPRESENTATIVE apparatus.’’ Consistent with that contained in a comment submitted by statement, on October 31, 2006, the EC that person be treated as confidential WTO Dispute Settlement Proceeding published Commission Regulation (EC) business information must certify that Regarding Measures Related to No. 1549/2006, which provides that such information is business Zeroing and Sunset Reviews certain ‘‘output units’’ or facsimile confidential and would not customarily machines capable of copying more than be released to the public by the AGENCY: Office of the United States 12 monochrome pages per minute are commenter. Confidential business Trade Representative. classified in a dutiable tariff line. EC information must be clearly designated ACTION: Notice; request for comments. member States assess duties on certain as such and ‘‘BUSINESS ‘‘input or output units’’ and facsimile CONFIDENTIAL’’ must be marked at the SUMMARY: The Office of the United machines. top and bottom of the cover page and States Trade Representative (‘‘USTR’’) is These measures appear to USTR to be each succeeding page. Persons who providing notice that pursuant to a inconsistent with the EC’s obligations submit confidential business request of Japan, the Dispute Settlement under Articles II:1(a) and II:1(b) of the information are encouraged also to Body (‘‘DSB’’) of the World Trade General Agreement on Tariffs and Trade provide a non-confidential summary of Organization (‘‘WTO’’) has established a 1994 (‘‘GATT 1994’’) and its’ Schedule the information. compliance panel under the Marrakesh and with the member States’ obligations Information or advice contained in a Agreement Establishing the World Trade under Articles II:1(a) and II:1(b) of the comment submitted, other than business Organization (‘‘WTO Agreement’’) GATT 1994 and their Schedules, and confidential information, may be concerning the dispute United States— they appear to nullify or impair benefits determined by USTR to be confidential Measures Relating to Zeroing and accruing to the United States under the in accordance with section 135(g)(2) of Sunset Reviews; Recourse to Article 21.5 GATT 1994. the Trade Act of 1974 (19 U.S.C. of the DSU by Japan. That request may In addition, with respect to set-top 2155(g)(2)). If the submitter believes that be found at http://www.wto.org boxes, the Tariff and Statistical information or advice may qualify as contained in a document designated as Nomenclature Section of the Customs such, the submitter— WT/DS322/27. USTR invites written Code Committee delivered favorable (1) Must clearly so designate the comments from the public concerning opinions with respect to the proposed information or advice; the issues raised in this dispute. amendments to the Explanatory Notes (2) Must clearly mark the material as DATES: Although USTR will accept any contained in 2008/C 112/03 in October ‘‘SUBMITTED IN CONFIDENCE’’ at the comments received during the course of 2006 and May 2007, respectively. It did top and bottom of the cover page and the dispute settlement proceeding, not publish the amended explanatory each succeeding page; and comments should be submitted on or notes in the EC Official Journal until (3) Is encouraged to provide a non- before July 15, 2008. May 7, 2008. Furthermore, member confidential summary of the ADDRESSES: Comments should be States were applying duties to set-top information or advice. submitted (i) electronically, to

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[email protected], Attn: ‘‘Japan 9.3 of the Antidumping Agreement, and in accordance with section 135(g)(2) of Zeroing (21.5)’’ in the subject line, or (ii) Article VI:2 of the GATT 1994; the Trade Act of 1974 (19 U.S.C. by fax, to Sandy McKinzy at 202–395– • The consistency of alleged 2155(g)(2)). If the submitting person 3640, with a confirmation copy sent measures taken to comply with the believes that information or advice may electronically to the e-mail address DSB’s recommendations and rulings qualify as such, the submitting person— above. with Articles 2.4, 9.2, and 9.3 of the (1) Must clearly so designate the Antidumping Agreement and Article FOR FURTHER INFORMATION CONTACT: information or advice; II:1(a), II:1(b), VI:1, and VI:2 of the (2) Must clearly mark the material as Ronald J. Baumgarten, Jr., Assistant GATT 1994; ‘‘SUBMITTED IN CONFIDENCE’’at the General Counsel, Office of the United • The alleged failure by the United top and bottom of each page of the cover States Trade Representative, 600 17th States to take any action to bring the page and each succeeding page; and Street, NW., Washington, DC 20508, sunset review determination of (3) Is encouraged to provide a non- (202) 395–9583. November 4, 1999 regarding the confidential summary of the SUPPLEMENTARY INFORMATION: USTR is antidumping duty order on Anti- information or advice. providing notice that the DSB has Friction Bearings from Japan, as well as Pursuant to section 127(e) of the established, at the request of Japan, a the sunset review determination of the Uruguay Round Agreements Act dispute settlement compliance panel same order of May 4, 2006, into (‘‘URAA’’) (19 U.S.C. 3537(e)), USTR pursuant to the WTO Understanding on conformity with its WTO obligations; will maintain a file on this dispute Rules and Procedures Governing the Japan alleges that as a result, the United settlement proceeding, accessible to the Settlement of Disputes (‘‘DSU’’). Such States acts inconsistently with Articles public, in the USTR Reading Room, panel will hold any hearing in Geneva, 17.14, 21.1, and 21.3 of the DSU, and which is located at 1724 F Street, NW., Switzerland. It is possible that the Article 11.3 of the Antidumping Washington, DC 20508. The public file public will be able to observe the Agreement. will include non-confidential comments hearing of the panel. If so, then USTR received by USTR from the public with would intend to provide notice on Public Comment: Requirements for Submissions respect to the dispute; for the dispute USTR’s Web site (under ‘‘Opportunities settlement compliance panel or in the to View Dispute Settlement Hearings’’ Interested persons are invited to event of an appeal from such a panel, on the Web page http://www.ustr.gov/ submit written comments concerning the U.S. submissions; the submissions, _ Trade Agreements/ the issues raised in this dispute. Persons or non-confidential summaries of _ Monitoring Enforcement/ submitting comments may either send submissions, received from other _ Dispute Settlement/WTO/ one copy by fax to Sandy McKinzy at participants in the dispute; the report of _ Section Index.html) of the public (202) 395–3640, or transmit a copy the panel; and, if applicable, the report hearing and the means by which the electronically to [email protected], of the Appellate Body. An appointment public may observe. with ‘‘Japan Zeroing (21.5)’’ in the to review the public file (Docket No. subject line. For documents sent by fax, Major Issues Raised by Japan WT/DS–322) may be made by calling USTR requests that the submitter the USTR Reading Room at (202) 395– In Japan’s request for the provide a confirmation copy to the 6186. The USTR Reading Room is open establishment of a panel in connection electronic mail address listed above. to the public from 9:30 a.m. to noon and with the dispute United States— USTR encourages the submission of 1 p.m. to 4 p.m., Monday through Measures Relating to Zeroing and documents in Adobe PDF format, as Friday. Sunset Reviews; Recourse to Article 21.5 attachments to an electronic mail. of the DSU by Japan, Japan challenges Interested persons who make Daniel E. Brinza, the following: submissions by electronic mail should Assistant United States Trade Representative • The consistency with DSU Articles not provide separate cover letters; for Monitoring and Enforcement. 17.14, 21.1, and 21.3 of the continued information that might appear in a cover [FR Doc. E8–13518 Filed 6–16–08; 8:45 am] use of zeroing in transaction-to- letter should be included in the BILLING CODE 3190–W8–P transaction comparisons in original submission itself. Similarly, to the investigations, in any comparison extent possible, any attachments to the methodology in periodic reviews, and in submission should be included in the OFFICE OF PERSONNEL any comparison methodology in new same file as the submission itself, and MANAGEMENT shipper reviews; Japan also alleges that not as separate files. the failure to eliminate zeroing in these A person requesting that information [OPM 1153] contexts is a breach of Articles 2.4, contained in a comment submitted by Proposed Collection: Comment 2.4.2, 9.3, and 9.5 of the Antidumping that person be treated as confidential Request for Review of an Expiring Agreement and Articles VI:1 and VI:2 of business information must certify that Information Collection: Claim for the GATT 1994; such information is business Unpaid Compensation of Deceased • The alleged failure to eliminate confidential and would not customarily Civilian Employee zeroing in eight periodic reviews, and, be released to the public by the since the expiration of the submitter. Confidential business AGENCY: U.S. Office of Personnel implementation deadline, through the information must be clearly designated Management. eight periodic reviews at issue and as such and the submission must be ACTION: Notice. related instructions and notices, the marked ‘‘BUSINESS CONFIDENTIAL’’ continued imposition, collection, and/or at the top and bottom of the cover page SUMMARY: In accordance with the assessment of antidumping duties in and each succeeding page of the Paperwork Reduction Act of 1995 (Pub. excess of the proper margin of dumping; submission. L. 104–13, May 22, 1995), this notice Japan claims that the failure to eliminate Information or advice contained in a announces that the U.S. Office of zeroing in these periodic reviews is comment submitted, other than business Personnel Management (OPM) intends inconsistent with Articles 17.14, 21.1, confidential information, may be to submit to the Office of Management and 21.3 of the DSU, Articles 2.4 and determined by USTR to be confidential and Budget (OMB) a request for review

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of an expiring information collection. OFFICE OF PERSONNEL U.S. Office of Personnel Management. Standard Form 1153, Claim for Unpaid MANAGEMENT Howard Weizmann, Compensation for Deceased Civilian Deputy Director. [OPM FORM 1673; OMB No. 3206–0232] Employee, is used to collect information [FR Doc. E8–13517 Filed 6–16–08; 8:45 am] from individuals who have been Proposed Collection: Comment BILLING CODE 6325–43–P designated as beneficiaries of the Request for Review of an Expiring unpaid compensation of a deceased Information Collection: Procedures for Federal employee or who believe that Submitting Compensation and Leave SECURITIES AND EXCHANGE their relationship to the deceased Claims COMMISSION entitles them to receive the unpaid compensation of the deceased Federal AGENCY: U.S. Office of Personnel [Release No. 34–57945; File No. SR– employee. OPM needs this information Management. NASDAQ–2008–051] in order to adjudicate the claim and ACTION: Notice. Self-Regulatory Organizations; properly assign a deceased Federal NASDAQ Stock Market, LLC; Notice of SUMMARY: In accordance with the employee’s unpaid compensation to the Filing and Immediate Effectiveness of Paperwork Reduction Act of 1995 (Pub. appropriate individual(s). Proposed Rule Change Relating to the L. 104–13, May 22, 1995), this notice The proposed revision to the expiring Listing and Trading on the Exchange announces that the U.S. Office of information collection responds to of Options on the SPDR Gold Trust suggestions received from users. Part B, Personnel Management (OPM) intends 1. is changed to clarify a beneficiary to submit to the Office of Management June 10, 2008. may include a legal entity or estate as and Budget (OMB) a request for review Pursuant to Section 19(b)(1) of the provided for in 5 CFR 178.203(c) and to of a revised information collection. Securities Exchange Act of 1934 provide instructions if more room is OPM Form 1673, Procedures for (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 needed to list designated beneficiaries. Submitting Compensation and Leave notice is hereby given that on June 3, Approximately 3,000 SF 1153 forms Claims, is used to collect information 2008, the NASDAQ Stock Market, LLC are submitted annually. It takes from current and former Federal civilian (‘‘NASDAQ’’ or ‘‘Exchange’’), filed with approximately 15 minutes to complete employees who are submitting a claim the Securities and Exchange the form. The annual estimated burden for compensation and/or leave. OPM Commission (‘‘Commission’’) the is 750 hours. needs this information in order to proposed rule change as described in Comments are particularly invited on: adjudicate the claim. Items I and II below, which Items have —Whether this collection of information Approximately 50 claims are been substantially prepared by the is necessary for the proper submitted annually. It takes Exchange. NASDAQ filed the proposal performance of functions of OPM, and approximately 60 minutes to complete pursuant to Section 19(b)(3)(A) of the whether it will have practical utility; the form. The annual estimated burden Act 3 and Rule 19b–4(f)(6) thereunder,4 —Whether our estimate of the public is 50 hours. which renders the proposal effective burden of this collection is accurate, Comments are particularly invited on: upon filing with the Commission. The and based on valid assumptions and —Whether this collection of information Commission is publishing this notice to methodology; and is necessary for the proper solicit comments on the proposed rule —Ways in which we can minimize the performance of functions of OPM, and change from interested persons. burden of the collection of whether it will have practical utility; information on those who are to —Whether our estimate of the public I. Self-Regulatory Organization’s respond, through use of the burden of this collection is accurate, Statement of the Terms of Substance of appropriate technological collection and based on valid assumptions and the Proposed Rule Change techniques or other forms of methodology; and NASDAQ proposes to amend certain information technology. —Ways in which we can minimize the NASDAQ Rules to enable the listing and For copies of this proposal, contact burden of the collection of trading on the Exchange of options on Mary Beth Smith-Toomey on (202) 606– information on those who are to the SPDR Gold Trust. The text of the 8358, FAX (202) 418–3251, or e-mail to respond, through use of the proposed rule change is available at the [email protected]. Please include a appropriate technological collection Exchange, the Commission’s Public mailing address with your request. techniques or other forms of Reference Room, and http:// www.nasdaq.com. DATES: Comments on this proposal information technology. should be received within 60 calendar For copies of this proposal, contact II. Self-Regulatory Organization’s days from the date of this publication. Mary Beth Smith-Toomey at (202) 606– Statement of the Purpose of, and 8358, FAX (202) 418–3251, or e-mail to ADDRESSES: Send or deliver comments Statutory Basis for, the Proposed Rule [email protected]. Please include a to—Robert D. Hendler, Classification Change mailing address with your request. and Pay Claim Program Manager, Center In its filing with the Commission, the DATES: Comments on this proposal for Merit System Accountability, Exchange included statements should be received within 60 calendar Division for Human Capital Leadership concerning the purpose of, and basis for, days from the date of this publication. and Merit System Accountability, U.S. the proposed rule change and discussed Office of Personnel Management, 1900 E ADDRESSES: Send or deliver comments any comments it received on the Street, NW., Room 6484, Washington, to—Robert D. Hendler, Classification proposed rule change. The text of these DC 20415. and Pay Claim Program Manager, Center statements may be examined at the for Merit System Accountability, places specified in Item IV below. The U.S. Office of Personnel Management. Division for Human Capital Leadership Howard Weizmann, and Merit System Accountability, U.S. 1 15 U.S.C. 78s(b)(1). Deputy Director. Office of Personnel Management, 1900 E 2 17 CFR 240.19b–4. [FR Doc. E8–13516 Filed 6–16–08; 8:45 am] Street, NW., Room 6484, Washington, 3 15 U.S.C. 78s(b)(3)(A). BILLING CODE 6325–43–P DC 20415. 4 17 CFR 240.19b–4(f)(6).

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Exchange has prepared summaries, set specified aggregate number even if some in part, upon an interest in, or forth in Sections A, B, and C below, of or all of the securities required to be performance of, gold. the most significant aspects of such deposited have not been received by the 2. Statutory Basis statements. Fund, subject to the condition that the person obligated to deposit the The Exchange believes that amending A. Self-Regulatory Organization’s securities has undertaken to deliver the its rules to accommodate the listing and Statement of the Purpose of, and securities as soon as possible and such trading of options on the SPDR Gold Statutory Basis for, the Proposed Rule undertaking is secured by the delivery Trust will benefit investors by providing Change and maintenance of collateral consisting them with valuable risk management 1. Purpose of cash or cash equivalents satisfactory tools. Accordingly, NASDAQ believes that the proposed rule change is The Exchange states that the purpose to the Fund, all as described in the Fund’s prospectus. consistent with Section 6(b) of the Act,7 of the proposed rule change is to permit in general, and furthers the objectives of the listing and trading of options on the The Exchange proposes that the Section 6(b)(5) of the Act,8 in particular, SPDR Gold Trust. current continued listing standards for in that it is designed to remove Currently, Chapter IV, Section 3(i) of options on ETFs would apply to options impediments to and perfect the the NASDAQ Options Rules permits on the SPDR Gold Trust. Specifically, mechanism of a free and open market in only certain Fund Shares (also referred under Chapter IV, Section 4(h) of the a manner consistent with the protection to herein as exchange traded funds NASDAQ Options Rules, options on of investors and the public interest. (‘‘ETFs’’)) to underlie options traded on Fund Shares may be subject to the the Exchange. Specifically, to be eligible suspension of opening transactions as B. Self-Regulatory Organization’s as an underlying security for options follows: (1) Following the initial twelve- Statement on Burden on Competition traded on the Exchange, an ETF must month period beginning upon the The Exchange does not believe that represent interests in registered commencement of trading of the Fund the proposed rule change will impose investment companies (or series thereof) Shares, there are fewer than 50 record any burden on competition that is not organized as open-end management and/or beneficial holders of the Fund necessary or appropriate in furtherance investment companies, unit investment Shares for 30 or more consecutive of the purposes of the Act. trusts or similar entities that are trading days; (2) the value of the index principally traded on a national or portfolio of securities on which Fund C. Self-Regulatory Organization’s securities exchange or through the Shares are based is no longer calculated Statement on Comments on the facilities of a national securities or available; or (3) such other event Proposed Rule Change Received From association and reported as ‘‘national occurs or condition exists that in the Members, Participants, or Others market’’ securities, and that hold opinion of the Exchange makes further The Exchange states that written portfolios of securities comprising or dealing on the Exchange inadvisable. comments on the proposed rule change otherwise based on or representing Additionally, the SPDR Gold Trust were neither solicited nor received. investments in broad-based indexes or would not be deemed to meet the III. Date of Effectiveness of the portfolios of securities (or that hold requirements for continued approval, Proposed Rule Change and Timing for securities in one or more other and the Exchange would not open for Commission Action registered investment companies that trading any additional series of option themselves hold such portfolios of contracts of the class covering the SPDR Because the foregoing proposed rule securities). The proposed rule change Gold Trust, if the SPDR Gold Trust change: (1) Does not significantly affect would expand the types of ETFs that ceases to be an ‘‘NMS stock’’ as the protection of investors or the public may be approved for options trading on provided for in paragraph (b)(v) of interest; (2) does not impose any the Exchange to include the SPDR Gold Chapter IV, Section 4 of the NASDAQ significant burden on competition; and Trust. Options Rules or if the SPDR Gold Trust (3) by its terms does not become The Exchange states that apart from is halted from trading on its primary operative for 30 days after the date of allowing the SPDR Gold Trust to be an market. The Exchange believes that the this filing, or such shorter time as the underlying for options traded on the addition of the SPDR Gold Trust to Commission may designate if consistent Exchange as described above, the listing Chapter IV, Section 3(i) of the NASDAQ with the protection of investors and the standards for ETFs would remain Options Rules would not have any effect public interest, the proposed rule unchanged from those that apply under on the rules pertaining to position and change has become effective pursuant to current Exchange rules. ETFs on which exercise limits 5 or margin.6 Section 19(b)(3)(A) of the Act 9 and Rule 10 options may be listed and traded would The Exchange represents that its 19b–4(f)(6) thereunder. still have to be listed and traded on a surveillance procedures applicable to A proposed rule change filed under national securities exchange and satisfy trading in options on the SPDR Gold Rule 19b–4(f)(6) normally does not the other listing standards set forth in Trust would be similar to those become operative for 30 days after the Chapter IV, Section 3(i) of the NASDAQ applicable to all other options on other date of filing. However, Rule 19b– Options Rules. ETFs currently traded on the Exchange. 4(f)(6)(iii) permits the Commission to Specifically, in addition to satisfying Also, the Exchange may obtain 7 15 U.S.C. 78f(b). the aforementioned listing information from the New York requirements, Fund Shares would have 8 15 U.S.C. 78f(b)(5). Mercantile Exchange, Inc. (a member of 9 to: (1) Meet the criteria and standards 15 U.S.C. 78s(b)(3)(A). the Intermarket Surveillance Group) 10 set forth in paragraphs (a) and (b) of 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– related to any financial instrument 4(f)(6)(iii) requires a self-regulatory organization to Chapter IV, Section 3; or (2) be available traded there that is based, in whole or provide the Commission with written notice of its for creation or redemption each intent to file the proposed rule change, along with business day from or through the Fund a brief description and text of the proposed rule 5 See NASDAQ Options Rules, Chapter III, change, at least five business days prior to the date in cash or in kind at a price related to Sections 7, Position Limits, and 9, Exercise Limits. of filing of the proposed rule change, or such net asset value, and the Fund is 6 See NASDAQ Options Rule Chapter XIII, shorter time as designated by the Commission. The obligated to issue Fund Shares in a Section 3, Margin Requirements. Exchange has fulfilled this requirement.

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designate a shorter time if such action only one method. The Commission will Disbursement Center, 14925 Kingsport is consistent with the protection of post all comments on the Commission’s Road, Fort Worth, TX 76155. investors and the public interest. The Internet Web site (http://www.sec.gov/ FOR FURTHER INFORMATION CONTACT: A. Exchange requests that the Commission rules/sro.shtml). Copies of the Escobar, Office of Disaster Assistance, waive the 30-day operative delay so that submission, all subsequent U.S. Small Business Administration, the Exchange can list and trade the amendments, all written statements 409 3rd Street, SW., Suite 6050, Shares immediately. The Commission with respect to the proposed rule Washington, DC 20416. believes that waiving the 30-day change that are filed with the SUPPLEMENTARY INFORMATION: Notice is operative delay is consistent with the Commission, and all written hereby given that as a result of the protection of investors and the public communications relating to the Administrator’s disaster declaration, interest to permit the listing and trading proposed rule change between the applications for disaster loans may be of options on the SPDR Gold Trust Commission and any person, other than 11 filed at the address listed above or other without further delay. The those that may be withheld from the locally announced locations. Commission notes the proposal is public in accordance with the The following areas have been substantively identical to proposals that provisions of 5 U.S.C. 552, will be determined to be adversely affected by were recently approved by the available for inspection and copying in the disaster: Commission, and does not raise any the Commission’s Public Reference Primary Counties: 12 new regulatory issues. For these Room, 100 F Street, NE., Washington, Yazoo. reasons, the Commission designates the DC 20549, on official business days Contiguous Counties: proposed rule change as operative upon between the hours of 10 a.m. and 3 p.m. Mississippi: Attala, Hinds, Holmes, filing. Copies of the filing also will be available Humphreys, Issaquena, Madison, At any time within 60 days of the for inspection and copying at the Sharkey, Warren. filing of the proposed rule change, the principal office of the Exchange. All The Interest Rates are: Commission may summarily abrogate comments received will be posted such rule change if it appears to the without change; the Commission does Percent Commission that such action is not edit personal identifying necessary or appropriate in the public information from submissions. You Homeowners With Credit Available interest, for the protection of investors, Elsewhere ...... 5.375. should submit only information that Homeowners Without Credit Avail- or otherwise in furtherance of the you wish to make available publicly. All purposes of the Act. able Elsewhere ...... 2.687. submissions should refer to File Businesses With Credit Available IV. Solicitation of Comments Number SR–NASDAQ–2008–051 and Elsewhere ...... 8.000. Interested persons are invited to should be submitted on or before July 8, Businesses & Small Agricultural 2008. Cooperatives Without Credit submit written data, views, and Available Elsewhere ...... 4.000. arguments concerning the foregoing, For the Commission, by the Division of Other (Including Non-Profit Organi- including whether the proposed rule Trading and Markets, pursuant to delegated 13 zations) With Credit Available change is consistent with the Act. authority. Elsewhere ...... 5.250. Comments may be submitted by any of Florence E. Harmon, Businesses And Non-Profit Organi- the following methods: Acting Secretary. zations Without Credit Available Elsewhere ...... 4.000. Electronic Comments [FR Doc. E8–13499 Filed 6–16–08; 8:45 am] BILLING CODE 8010–01–P • Use the Commission’s Internet The number assigned to this disaster comment form (http://www.sec.gov/ for physical damage is 11282 6 and for rules/sro.shtml); or economic injury is 11283 0. • Send an e-mail to rule- SMALL BUSINESS ADMINISTRATION The State which received an EIDL [email protected]. Please include File [Disaster Declaration # 11282 and # 11283] Declaration # is Mississippi. Number SR–NASDAQ–2008–051 on the (Catalog of Federal Domestic Assistance subject line. Mississippi Disaster # MS–00020 Numbers 59002 and 59008) Paper Comments AGENCY: U.S. Small Business Dated: June 11, 2008. • Send paper comments in triplicate Administration. Jovita Carranza, to Secretary, Securities and Exchange ACTION: Notice. Acting Administrator. Commission, 100 F Street, NE., [FR Doc. E8–13647 Filed 6–16–08; 8:45 am] Washington, DC 20549–1090. SUMMARY: This is a notice of an BILLING CODE 8025–01–P All submissions should refer to File Administrative declaration of a disaster Number SR–NASDAQ–2008–051. This for the State of Mississippi dated 06/11/ file number should be included on the 2008. SMALL BUSINESS ADMINISTRATION subject line if e-mail is used. To help the Incident: Severe Storms and Flooding. Commission process and review your Incident Period: 05/28/2008. Telegraph Hill Partners SBIC, L.P. , comments more efficiently, please use DATES: Effective Date: 06/11/2008. License No. 09/79–0453; Notice Physical Loan Application Deadline Seeking Exemption Under Section 312 11 For purposes only of waiving the 30-day Date: 08/11/2008. of the Small Business Investment Act, operative delay, the Commission has also Economic Injury (EIDL) Loan Conflicts of Interest considered the proposed rule’s impact on efficiency, competition, and capital formation. See Application Deadline Date: 03/11/2009. Notice is hereby given that Telegraph 15 U.S.C. 78c(f). ADDRESSES: Submit completed loan Hill Partners SBIC, L.P., 360 Post Street, 12 See Securities Exchange Act Release No. 57894 applications to: U.S. Small Business Suite 601, San Francisco, CA, 94108, a (May 30, 2008) (SR–Amex–2008–15; SR–CBOE– Administration, Processing and Federal Licensee under the Small 2005–11; SR–ISE–2008–12; SR–NYSEArca–2008– 52; and SR–Phlx–2008–17) (approving the listing Business Investment Act of 1958, as and trading of options on the SPDR Gold Trust). 13 17 CFR 200.30–3(a)(12). amended (‘‘the Act’’), in connection

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with the financing of a small concern, • Respondents: Foreign Service providers with current and adequate has sought an exemption under Section Officers, State Department Employees, information to base decisions on 312 of the Act and Section 107.730, Other Government Employees and whether a federal employee and family Financings which Constitute Conflicts Family Members. members will have sufficient medical of Interest of the Small Business • Estimated Number of Respondents: resources at a diplomatic mission Administration (‘‘SBA’’) Rules and 9,800 per year. abroad to maintain the health and • Regulations (13 CFR 107.730). Estimated Number of Responses: fitness of the individual and family Telegraph Hill Partners SBIC, L.P. 9,800 per year. members. proposes to provide equity/debt security • Average Hours Per Response: 0.5 financing to Interface Associates hours per response. Methodology Corporation, 27752 El Lazo Road, • Total Estimated Burden: 4,900 Laguna Niguel, CA 92677. The financing hours. The information collected will be is contemplated for working capital and • Frequency: On occasion. collected through the use of an • general corporate purposes. Obligation to Respond: Mandatory. electronic forms engine or by hand The financing is brought within the DATES: The Department will accept written submission using a pre-printed purview of § 107.730(a)(1) of the comments from the public up to 60 days form. Regulations because Telegraph Hill from June 17, 2008. Dated: June 10, 2008. Partners II, L.P., THP II Affiliates Fund, ADDRESSES: You may submit comments Sharon Ludan, L.P., all Associates of Telegraph Hill by any of the following methods: Executive Director, Department of State, Partners SBIC, L.P., own more than ten • E-mail: [email protected]. You Office of Medical Services. percent of Interface Associates must include the DS form number, [FR Doc. E8–13621 Filed 6–16–08; 8:45 am] Corporation. information collection title, and OMB Therefore, this transaction is control number in the subject line of BILLING CODE 4710–36–P considered a financing of an Associate your message. requiring an exemption. Notice is • Mail (paper, disk, or CD–ROM hereby given that any interested person submissions): Department of State, DEPARTMENT OF STATE may submit written comments on the Office of Medical Services, SA–1 Room transaction within fifteen days of the L–101, 2401 E St., NW., Washington, DC [Public Notice 6262] date of this publication to the Associate 20522–0101. Administrator for Investment, U.S. • Fax: 202–663–3483. In the Matter of the Review of the Small Business Administration, 409 You must include the DS form Designation of Lashkar i Jhangvi as a Third Street, SW., Washington, DC number (if applicable), information Foreign Terrorist Organization 20416. collection title, and OMB control Pursuant to Section 219 of the May 7, 2008. number in any correspondence. Immigration and Nationality Act, as Amended A. Joseph Shepard, FOR FURTHER INFORMATION CONTACT: Associate Administrator for Investment. Direct requests for additional information regarding the collection Based upon a review of the [FR Doc. E8–13597 Filed 6–16–08; 8:45 am] listed in this notice, including requests Administrative Record assembled in BILLING CODE 8025–01–P for copies of the proposed information this matter, and in consultation with the collection and supporting documents, to Attorney General and the Secretary of Ermie D. Herring, Department of State, the Treasury, I conclude that there is a DEPARTMENT OF STATE Office of Medical Services, SA–1 sufficient factual basis to find that the [Public Notice 6261] Columbia Plaza Room L101, 2401 E St., circumstances that were the basis for the NW., Washington, DC 20052–0101, who 2003 designation of Lashkar i Jhangvi as 60-Day Notice of Proposed Information may be reached on 202–663–1229 or a foreign terrorist organization have not Collection: Form DS–3057, Medical [email protected]. changed in such a manner as to warrant Clearance Update, OMB 1405–0131 SUPPLEMENTARY INFORMATION: We are revocation of the designation and that the national security of the United ACTION: Notice of request for public soliciting public comments to permit comments. the Department to: States does not warrant a revocation. • Evaluate whether the proposed Therefore, I hereby determine that the SUMMARY: The Department of State is information collection is necessary for designation of Lashkar i Jhangvi as a seeking Office of Management and the proper performance of our foreign terrorist organization, pursuant Budget (OMB) approval for the functions. • to Section 219 of the Immigration and information collection described below. Evaluate the accuracy of our Nationality Act, as amended (8 U.S.C. The purpose of this notice is to allow 60 estimate of the burden of the proposed 1189), shall be maintained. days for public comment in the Federal collection, including the validity of the Register preceding submission to OMB. methodology and assumptions used. This determination shall be published We are conducting this process in • Enhance the quality, utility, and in the Federal Register. accordance with the Paperwork clarity of the information to be Dated: June 9, 2008. Reduction Act of 1995. collected. John D. Negroponte, • Title of Information Collection: • Minimize the reporting burden on Medical Clearance Update. those who are to respond, including the Deputy Secretary of State, Department of • OMB Control Number: 1405–0131. use of automated collection techniques State. • Type of Request: Extension of or other forms of technology. [FR Doc. E8–13620 Filed 6–16–08; 8:45 am] Currently Approved Collection. BILLING CODE 4710–10–P • Originating Office: Office of Abstract of Proposed Collection Medical Services, M/MED/C/MC. Form DS–3057 is designed to collect • Form Number: DS–3057. medical information to provide medical

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DEPARTMENT OF TRANSPORTATION formal expressions of intent to file an By the Board, David M. Konschnik, OFA under 49 CFR 1152.27(c)(2),4 and Director, Office of Proceedings. Surface Transportation Board trail use/rail banking requests under 49 Anne K. Quinlan, Acting Secretary. [STB Docket No. AB–43 (Sub-No. 181X)] CFR 1152.29 must be filed by June 27, 2008. Petitions to reopen or requests for [FR Doc. E8–13328 Filed 6–12–08; 8:45 am] Illinois Central Railroad Company— public use conditions under 49 CFR BILLING CODE 4915–01–P Abandonment Exemption—in Ballard 1152.28 must be filed by July 7, 2008, County, KY with the Surface Transportation Board, 395 E Street, SW., Washington, DC DEPARTMENT OF TRANSPORTATION Illinois Central Railroad Company 20423–0001. (IC), 1 has filed a verified notice of Surface Transportation Board A copy of any petition filed with the exemption under 49 CFR Part 1152 [STB Docket No. AB–33 (Sub–No. 266X)] Subpart F—Exempt Abandonments to Board should be sent to IC’s abandon approximately 1.66 miles of its representative: Thomas J. Healey, 17641 Union Pacific Railroad Company— rail line between mileposts 364.54 and S. Ashland Ave., Homewood, IL 60430– Abandonment Exemption—in Maricopa 366.20, in Wickliffe, Ballard County, 4381. County, AZ KY.2 The line traverses United States If the verified notice contains false or Postal Service Zip Code 42087. On May 28, 2008, Union Pacific misleading information, the exemption Railroad Company (UP) filed with the IC has certified that: (1) No local is void ab initio. traffic has moved over the line for at Surface Transportation Board a petition least 2 years; (2) there is no overhead IC has filed both an environmental under 49 U.S.C. 10502 for exemption traffic on the line; (3) no formal report and a historic report that address from the provisions of 49 U.S.C. 10903 complaint filed by a user of rail service the effects, if any, of the abandonment to abandon a 2.91-mile line of railroad on the line (or by a state or local on the environment and historic known as the Litchfield Industrial Lead, government entity acting on behalf of resources. SEA will issue an extending from milepost 889.34 such user) regarding cessation of service environmental assessment (EA) by June (Litchfield Junction) to milepost 892.25 over the line either is pending with the 20, 2008. Interested persons may obtain (Litchfield Park) in Maricopa County, Surface Transportation Board or with a copy of the EA by writing to SEA AZ. The line traverses U.S. Postal any U.S. District Court or has been (Room 1100, Surface Transportation Service Zip Codes 85338 and 85395. decided in favor of complainant within Board, Washington, DC 20423–0001) or The line does not contain federally the 2-year period; and (4) the by calling SEA, at (202) 245–0305. granted rights-of-way. Any documentation in UP’s possession will requirements at 49 CFR 1105.7 [Assistance for the hearing impaired is be made available promptly to those (environmental report), 49 CFR 1105.8 available through the Federal requesting it. (historic report), 49 CFR 1105.11 Information Relay Service (FIRS) at 1– (transmittal letter), 49 CFR 1105.12 The interest of railroad employees 800–877–8339.] Comments on will be protected by the conditions set (newspaper publication), and 49 CFR environmental and historic preservation 1152.50(d)(1) (notice to governmental forth in Oregon Short Line R. Co.— matters must be filed within 15 days Abandonment—Goshen, 360 I.C.C. 91 agencies) have been met. after the EA becomes available to the As a condition to this exemption, any (1979). public. By issuance of this notice, the Board employee adversely affected by the is instituting an exemption proceeding abandonment shall be protected under Environmental, historic preservation, pursuant to 49 U.S.C. 10502(b). A final Oregon Short Line R. Co.— public use, or trail use/rail banking decision will be issued by September Abandonment—Goshen, 360 I.C.C. 91 conditions will be imposed, where appropriate, in a subsequent decision. 15, 2008. (1979). To address whether this Any offer of financial assistance condition adequately protects affected Pursuant to the provisions of 49 CFR (OFA) under 49 CFR 1152.27(b)(2) will employees, a petition for partial 1152.29(e)(2), IC shall file a notice of be due no later than 10 days after revocation under 49 U.S.C. 10502(d) consummation with the Board to signify service of a decision granting the must be filed. that it has exercised the authority petition for exemption. Each offer must Provided no formal expression of granted and fully abandoned the line. If be accompanied by a $1,300 filing fee. intent to file an offer of financial consummation has not been effected by See 49 CFR 1002.2(f)(25). assistance (OFA) has been received, this IC’s filing of a notice of consummation All interested persons should be exemption will be effective on July 17, by June 17, 2009, and there are no legal aware that, following abandonment of 2008, unless stayed pending or regulatory barriers to consummation, rail service and salvage of the line, the reconsideration. Petitions to stay that do the authority to abandon will line may be suitable for other public not involve environmental issues,3 automatically expire. use, including interim trail use. Any request for a public use condition under 1 IC is a wholly owned subsidiary of Canadian Board decisions and notices are 49 CFR 1152.28 or for trail use/rail National Railway Company. available on our Web site at http:// 2 banking under 49 CFR 1152.29 will be IC states that the involved line parallels its www.stb.dot.gov historic main line and did not provide access to any due no later than July 7, 2008. Each trail new shippers upon its acquisition, and that IC has Decided: June 6, 2008. use request must be accompanied by a been operating the line as a passing siding for $200 filing fee. See 49 CFR several decades. IC indicates that this filing was made out of an abundance of caution as to whether exemption’s effective date. See Exemption of Out- 1002.2(f)(27). abandonment authority or an exemption is required of-Service Rail Lines , 5 I.C.C.2d 377 (1989). Any All filings in response to this notice prior to removal of the track. request for a stay should be filed as soon as possible must refer to STB Docket No. AB–33 3 The Board will grant a stay if an informed so that the Board may take appropriate action before (Sub–No. 266X), and must be sent to: (1) decision on environmental issues (whether raised the exemption’s effective date. by a party or by the Board’s Section of 4 Each OFA must be accompanied by the filing Surface Transportation Board, 395 E Environmental Analysis (SEA) in its independent fee, which currently is set at $1,300. See 49 CFR Street, SW., Washington, DC 20423– investigation) cannot be made before the 1002.2(f)(25). 0001, and (2) Gabriel S. Meyer,

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Assistant General Attorney, 1400 soliciting comments concerning Form information is necessary for the proper Douglas Street, STOP 1580, Omaha, NE 1099–C, Cancellation of Debt. performance of the functions of the 68179. Replies to UP’s petition are due DATES: Written comments should be agency, including whether the on or before July 7, 2008. received on or before August 18, 2008 information shall have practical utility; Persons seeking further information to be assured of consideration. (b) the accuracy of the agency’s estimate concerning abandonment procedures ADDRESSES: Direct all written comments of the burden of the collection of may contact the Board’s Office of Public to R. Joseph Durbala, Internal Revenue information; (c) ways to enhance the Assistance, Governmental Affairs, and Service, room 6129, 1111 Constitution quality, utility, and clarity of the Compliance at (202) 245–0238 or refer Avenue, NW., Washington, DC 20224. information to be collected; (d) ways to to the full abandonment or minimize the burden of the collection of FOR FURTHER INFORMATION CONTACT: discontinuance regulations at 49 CFR Requests for additional information or information on respondents, including part 1152. Questions concerning copies of the form and instructions through the use of automated collection environmental issues may be directed to should be directed to R. Joseph Durbala, techniques or other forms of information the Board’s Section of Environmental at (202) 622–3634, or at Internal technology; and (e) estimates of capital Analysis (SEA) at (202) 245–0305. Revenue Service, room 6516, 1111 or start-up costs and costs of operation, [Assistance for the hearing impaired is Constitution Avenue, NW., Washington, maintenance, and purchase of services available through the Federal DC 20224 or through the Internet at to provide information. Information Relay Service (FIRS) at 1– [email protected]. Approved: June 5, 2008. 800–877–8339.] R. Joseph Durbala, An environmental assessment (EA) (or SUPPLEMENTARY INFORMATION: Title: IRS Reports Clearance Officer. environmental impact statement (EIS), if Cancellation of Debt. necessary) prepared by SEA will be OMB Number: 1545–1424. [FR Doc. E8–13596 Filed 6–16–08; 8:45 am] served upon all parties of record and Form Number: 1099–C. BILLING CODE 4830–01–P upon any agencies or other persons who Abstract: Form 1099–C is used by commented during its preparation. Federal government agencies, financial DEPARTMENT OF THE TREASURY Other interested persons may contact institutions, and credit unions to report the cancellation or forgiveness of a debt SEA to obtain a copy of the EA (or EIS). Internal Revenue Service EAs in these abandonment proceedings of $600 or more, as required by section 6050P of the Internal Revenue Code. normally will be made available within Proposed Collection; Comment The IRS uses the form to verify 60 days of the filing of the petition. The Request for Form 8582 deadline for submission of comments on compliance with the reporting rules and to verify that the debtor has included the EA will generally be within 30 days AGENCY: Internal Revenue Service (IRS), of its service. the proper amount of canceled debt in Treasury. Board decisions and notices are income on his or her income tax return. ACTION: available on our Web site at http:// Current Actions: There are no changes Notice and request for www.stb.dot.gov. being made to the form at this time. comments. Type of Review: Extension of a Decided: June 5, 2008. currently approved collection. SUMMARY: The Department of the By the Board, David M. Konschnik, Affected Public: Business or other for- Treasury, as part of its continuing effort Director, Office of Proceedings. profit organizations, not-for-profit to reduce paperwork and respondent Anne K. Quinlan, institutions, and the Federal burden, invites the general public and Acting Secretary. government. other Federal agencies to take this [FR Doc. E8–13058 Filed 6–16–08; 8:45 am] Estimated Number of Responses: opportunity to comment on proposed BILLING CODE 4915–01–P 647,993. and/or continuing information Estimated Time Per Response: 10 min. collections, as required by the Estimated Total Annual Burden Paperwork Reduction Act of 1995, Hours: 110,159. DEPARTMENT OF THE TREASURY Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is of the collections of information covered Internal Revenue Service soliciting comments concerning Form by this notice: 8582, Passive Activity Loss Limitations. Proposed Collection; Comment An agency may not conduct or DATES: Written comments should be Request for Form 1099–C sponsor, and a person is not required to respond to, a collection of information received on or before August 18, 2008 AGENCY: Internal Revenue Service (IRS), unless the collection of information to be assured of consideration. Treasury. displays a valid OMB control number. ADDRESSES: Direct all written comments ACTION: Notice and request for Books or records relating to a collection to R. Joseph Durbala, Shear, Internal comments. of information must be retained as long Revenue Service, room 6129, 1111 as their contents may become material Constitution Avenue, NW., Washington, SUMMARY: The Department of the in the administration of any internal DC 20224. Treasury, as part of its continuing effort revenue law. Generally, tax returns and to reduce paperwork and respondent tax return information are confidential, FOR FURTHER INFORMATION CONTACT: burden, invites the general public and as required by 26 U.S.C. 6103. Requests for additional information or other Federal agencies to take this Request for Comments: Comments copies of the form and instructions opportunity to comment on proposed submitted in response to this notice will should be directed to R. Joseph Durbala, and/or continuing information be summarized and/or included in the (202) 622–3634, Internal Revenue collections, as required by the request for OMB approval. All Service, room 6129, 1111 Constitution Paperwork Reduction Act of 1995, comments will become a matter of Avenue, NW., Washington, DC 20224, Public Law 104–13 (44 U.S.C. public record. Comments are invited on: or through the Internet at 3506(c)(2)(A)). Currently, the IRS is (a) Whether the collection of [email protected].

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SUPPLEMENTARY INFORMATION: Approved: June 5, 2008. Title: IRS e-file Signature Title: Passive Activity Loss R. Joseph Durbala, Authorization for Form 1041. Limitations. IRS Reports Clearance Officer. OMB Number: 1545–0967. OMB Number: 1545–1008. [FR Doc. E8–13598 Filed 6–16–08; 8:45 am] Form Number: 8879–F. Form Number: 8582. BILLING CODE 4830–01–P Abstract: This form has been created Abstract: Under Internal Revenue to provide e-file signature authorization Code section 469, losses from passive for Form 1041 to foster IRS policy activities, to the extent that they exceed DEPARTMENT OF THE TREASURY promoting e-filing of returns. The form income from passive activities, cannot Internal Revenue Service is necessary to support modernized e- be deducted against nonpassive income. file initiatives. This form will reduce Form 8582 is used to figure the passive Proposed Collection; Comment paper processing and handling of forms activity loss allowed and the loss to be Request for Form 8453–F and Form 1041, schedule K–1 (Form 1041), and reported on the tax returns. 8879–F related forms and schedules. Current Actions: There are no major Current Actions: There are no changes changes being made to the form at this AGENCY: Internal Revenue Service (IRS), being made to the form at this time. Treasury. time. Type of Review: Extension of a Type of Review: Extension of a ACTION: Notice and request for currently approved collection. currently approved collection. comments. Affected Public: Business or other for- Affected Public: Business or other for- SUMMARY: The Department of the profit organizations, and individuals, or profit organizations, individuals, and households. farms. Treasury, as part of its continuing effort to reduce paperwork and respondent Estimated Number of Respondents: Estimated Number of Respondents: burden, invites the general public and 2,000. 2,414,854. other Federal agencies to take this Estimated Time Per Respondent: 4 Estimated Time Per Respondent: 53 opportunity to comment on proposed minutes. hours, 43 minutes. and/or continuing information Estimated Total Annual Burden Estimated Total Annual Burden collections, as required by the Hours: 1,750. Hours: 11,373,963. Paperwork Reduction Act of 1995, The following paragraph applies to all The following paragraph applies to all Public Law 104–13 (44 U.S.C. of the collections of information covered of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is by this notice: by this notice: soliciting comments concerning Form An agency may not conduct or 8453–F, U.S. Estate of Trust Income Tax An agency may not conduct or sponsor, and a person is not required to Declaration and Signature for Electronic sponsor, and a person is not required to respond to, a collection of information and Magnetic Made Filing and Form respond to, a collection of information unless the collection of information 8879–F, IRS e-file Signature unless the collection of information displays a valid OMB control number. Authorization for Form 1041. displays a valid OMB control number. Books or records relating to a collection Books or records relating to a DATES: Written comments should be collection of information must be of information must be retained as long received on or before August 18, 2008, as their contents may become material retained as long as their contents may to be assured of consideration. become material in the administration in the administration of any internal ADDRESSES: Direct all written comments of any internal revenue law. Generally, revenue law. Generally, tax returns and to R. Joseph Durbala, Internal Revenue tax returns and tax return information tax return information are confidential, Service, room 6129, 1111 Constitution are confidential, as required by 26 as required by 26 U.S.C. 6103. Avenue, NW., Washington, DC 20224. U.S.C. 6103. Request for Comments: Comments Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: submitted in response to this notice will submitted in response to this notice will Requests for additional information or be summarized and/or included in the be summarized and/or included in the copies of the form and instructions request for OMB approval. All request for OMB approval. All should be directed to R. Joseph Durbala comments will become a matter of comments will become a matter of at Internal Revenue Service, room 6129, public record. public record. Comments are invited on: 1111 Constitution Avenue, NW., Comments are invited on: (a) Whether (a) Whether the collection of Washington, DC 20224, or at (202) 622– the collection of information is information is necessary for the proper 3634, or through the Internet at necessary for the proper performance of performance of the functions of the [email protected]. the functions of the agency, including agency, including whether the SUPPLEMENTARY INFORMATION: whether the information shall have information shall have practical utility; Title: U.S. Estate of Trust Income Tax practical utility; (b) the accuracy of the (b) the accuracy of the agency’s estimate Declaration and Signature for Electronic agency’s estimate of the burden of the of the burden of the collection of and Magnetic Media Filing. collection of information; (c) ways to information; (c) ways to enhance the OMB Number: 1545–0967. enhance the quality, utility, and clarity quality, utility, and clarity of the Form Number: 8453–F. of the information to be collected; (d) information to be collected; (d) ways to Abstract: This form is used to secure ways to minimize the burden of the minimize the burden of the collection of taxpayer signatures and declarations in collection of information on information on respondents, including conjunction with electronic or magnetic respondents, including through the use through the use of automated collection media filing of trust and fiduciary of automated collection techniques or techniques or other forms of information income tax returns, Form 8453–F, other forms of information technology; technology; and (e) estimates of capital together with the electronic or magnetic and (e) estimates of capital or start-up or start-up costs and costs of operation, media transmission, will comprise the costs and costs of operation, maintenance, and purchase of services taxpayer’s income tax return (Form maintenance, and purchase of services to provide information. 1041). to provide information.

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Approved: June 5, 2008. Type of Review: Extension of a SUMMARY: The Department of the R. Joseph Durbala, currently approved collection. Treasury, as part of its continuing effort IRS Reports Clearance Officer. Affected Public: Businesses and other to reduce paperwork and respondent [FR Doc. E8–13600 Filed 6–16–08; 8:45 am] for-profit organizations. burden, invites the general public and BILLING CODE 4830–01–P Estimated Number of Respondents: other Federal agencies to take this 100. opportunity to comment on proposed Estimated Time per Respondent: 5 and/or continuing information DEPARTMENT OF THE TREASURY hours 33 minutes. collections, as required by the Estimated Total Annual Burden Paperwork Reduction Act of 1995, Internal Revenue Service Hours: 555. Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is Proposed Collection; Comment soliciting comments concerning Form Request for Form 8924 of the collections of information covered by this notice: 8810, Corporate Passive Activity Loss and Credit Limitations. AGENCY: Internal Revenue Service (IRS), An agency may not conduct or Treasury. sponsor, and a person is not required to DATES: Written comments should be ACTION: Notice and request for respond to, a collection of information received on or before August 18, 2008 comments. unless the collection of information to be assured of consideration. displays a valid OMB control number. ADDRESSES: Direct all written comments SUMMARY: The Department of the Books or records relating to a collection to R. Joseph Durbala, Internal Revenue Treasury, as part of its continuing effort of information must be retained as long Service, room 6129, 1111 Constitution to reduce paperwork and respondent as their contents may become material Avenue, NW., Washington, DC 20224. burden, invites the general public and in the administration of any internal FOR FURTHER INFORMATION CONTACT: other Federal agencies to take this revenue law. Generally, tax returns and Requests for additional information or opportunity to comment on proposed tax return information are confidential, copies of the form and instructions and/or continuing information as required by 26 U.S.C. 6103. should be directed to R. Joseph Durbala, collections, as required by the Request for Comments: Comments at (202) 622–3634, or at Internal Paperwork Reduction Act of 1995, submitted in response to this notice will Revenue Service, Room 6129, 1111 Public Law 104–13 (44 U.S.C. be summarized and/or included in the Constitution Avenue, NW., Washington, 3506(c)(2)(A)). Currently, the IRS is request for OMB approval. All DC 20224, or through the Internet, at soliciting comments concerning Form comments will become a matter of [email protected]. 8924, Excise Tax on Certain Transfers of public record. Comments are invited on: SUPPLEMENTARY INFORMATION: Qualifying Geothermal or Mineral (a) Whether the collection of Interests. Title: Corporate Passive Activity Loss information is necessary for the proper and Credit Limitations. DATES: Written comments should be performance of the functions of the OMB Number: 1545–1091. received on or before August 18, 2008 agency, including whether the Form Number: 8810. to be assured of consideration. information shall have practical utility; Abstract: Under Internal Revenue ADDRESSES: Direct all written comments (b) the accuracy of the agency’s estimate Code section 469, losses and credits to R. Joseph Durbala, Internal Revenue, of the burden of the collection of from passive activities, to the extent Service, room 6129, 1111 Constitution information; (c) ways to enhance the they exceed passive income (or, in the Avenue, NW., Washington, DC 20224. quality, utility, and clarity of the case of credits, the tax attributable to net FOR FURTHER INFORMATION CONTACT: information to be collected; (d) ways to passive income), are not allowed. Form Requests for additional information or minimize the burden of the collection of 8810 is used by personal service copies of the form and instructions information on respondents, including corporations and closely held should be directed to R. Joseph Durbala, through the use of automated collection corporations to figure the passive (202) 622–3634, at Internal Revenue techniques or other forms of information activity loss and credits allowed and the Service, room 6129, 1111 Constitution technology; and (e) estimates of capital amount of loss and credit to be reported Avenue, NW., Washington, DC 20224, or start-up costs and costs of operation, on their tax return. or through the Internet at maintenance, and purchase of services Current Actions: There are no changes [email protected]. to provide information. being made to Form 8810 at this time. Approved: June 5, 2008. Type of Review: Extension of a SUPPLEMENTARY INFORMATION: currently approved collection. Title: Excise Tax on Certain Transfers R. Joseph Durbala, Affected Public: Business or other for- of Qualifying Geothermal or Mineral IRS Reports Clearance Officer. profit organizations. Interests. [FR Doc. E8–13602 Filed 6–16–08; 8:45 am] Estimated Number of Responses: OMB Number: 1545–2099. BILLING CODE 4830–01–P 100,000. Form Number: Form 8924. Estimated Time per Response: 37 hr., Abstract: Form 8924, Excise Tax on 29 min. Certain Transfers of Qualifying DEPARTMENT OF THE TREASURY Estimated Total Annual Burden Geothermal or Mineral Interests, is Hours: 3,749,000. required by Section 403 of the Tax Internal Revenue Service The following paragraph applies to all Relief and Health Care Act of 2006 Proposed Collection; Comment of the collections of information covered which imposes an excise tax on certain Request for Form 8810 by this notice: transfers of qualifying mineral or An agency may not conduct or geothermal interests. AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to Current Actions: There is no change Treasury. respond to, a collection of information in the paperwork burden previously unless the collection of information ACTION: Notice and request for approved by OMB. This form is being displays a valid OMB control number. comments. submitted for renewal purposes only. Books or records relating to a collection

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of information must be retained as long Service, room 6129, 1111 Constitution maintenance, and purchase of services as their contents may become material Avenue, NW., Washington, DC 20224. to provide information. in the administration of any internal FOR FURTHER INFORMATION CONTACT: Approved: June 5, 2008. revenue law. Generally, tax returns and Requests for additional information or R. Joseph Durbala, tax return information are confidential, copies of the form and instructions IRS Reports Clearance Officer. as required by 26 U.S.C. 6103. should be directed to R. Joseph Durbala, [FR Doc. E8–13605 Filed 6–16–08; 8:45 am] Request for Comments: Comments (202) 622–3634, Internal Revenue submitted in response to this notice will Service, room 6129, 1111 Constitution BILLING CODE 4830–01–P be summarized and/or included in the Avenue, NW., Washington, DC 20224, request for OMB approval. All or through the Internet at DEPARTMENT OF THE TREASURY comments will become a matter of [email protected]. public record. Comments are invited on: SUPPLEMENTARY INFORMATION: Internal Revenue Service (a) Whether the collection of Title: HSA, Archer MSA, or Medicare information is necessary for the proper [CO–25–96] Advantage MSA Information. performance of the functions of the OMB Number: 1545–1518. Proposed Collection; Comment agency, including whether the Form Number: 5498–SA. Request for Regulation Project information shall have practical utility; Abstract: This form is used to report (b) the accuracy of the agency’s estimate contributions to a medical savings AGENCY: Internal Revenue Service (IRS), of the burden of the collection of account as required by Internal Revenue Treasury. information; (c) ways to enhance the Code section 220(h). ACTION: Notice and request for quality, utility, and clarity of the Current Actions: There are no changes comments. information to be collected; (d) ways to being made to the form at this time. minimize the burden of the collection of Type of Review: Extension of a SUMMARY: The Department of the information on respondents, including currently approved collection. Treasury, as part of its continuing effort through the use of automated collection Affected Public: Businesses or other to reduce paperwork and respondent techniques or other forms of information for-profit organizations. burden, invites the general public and technology; and (e) estimates of capital Estimated Number of Responses: other Federal agencies to take this or start-up costs and costs of operation, 41,105. opportunity to comment on proposed maintenance, and purchase of services Estimated Time Per Response: 10 min. and/or continuing information to provide information. Estimated Total Annual Burden collections, as required by the Approved: June 5, 2008. Hours: 6,988. Paperwork Reduction Act of 1995, R. Joseph Durbala, The following paragraph applies to all Public Law 104–13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is IRS Reports Clearance Officer. of the collections of information covered soliciting comments concerning an [FR Doc. E8–13603 Filed 6–16–08; 8:45 am] by this notice: An agency may not conduct or existing final regulation, CO–25–96 (TD BILLING CODE 4830–01–P sponsor, and a person is not required to 8824), Limitations on Net Operating respond to, a collection of information Loss Carry-Forwards and Certain Built- DEPARTMENT OF THE TREASURY unless the collection of information In Losses and Credit Following an displays a valid OMB control number. Ownership Change of a Consolidated Internal Revenue Service Books or records relating to a collection Group. of information must be retained as long DATES: Written comments should be Proposed Collection; Comment as their contents may become material received on or before August 18, 2008 Request for Form 5498–SA in the administration of any internal to be assured of consideration. revenue law. Generally, tax returns and AGENCY: Internal Revenue Service (IRS), ADDRESSES: Direct all written comments tax return information are confidential, to R. Joseph Durbala, Internal Revenue Treasury. as required by 26 U.S.C. 6103. ACTION: Notice and request for Service, room 6129, 1111 Constitution Request for Comments: Comments Avenue, NW., Washington, DC 20224. comments. submitted in response to this notice will be summarized and/or included in the FOR FURTHER INFORMATION CONTACT: SUMMARY: The Department of the request for OMB approval. All Requests for additional information or Treasury, as part of its continuing effort comments will become a matter of copies of the regulation should be to reduce paperwork and respondent public record. Comments are invited on: directed to R. Joseph Durbala, at (202) burden, invites the general public and (a) Whether the collection of 622–3634, or at Internal Revenue other Federal agencies to take this information is necessary for the proper Service, room 6129, 1111 Constitution opportunity to comment on proposed performance of the functions of the Avenue, NW., Washington, DC 20224, and/or continuing information agency, including whether the or through the Internet, at collections, as required by the information shall have practical utility; [email protected]. Paperwork Reduction Act of 1995, (b) the accuracy of the agency’s estimate SUPPLEMENTARY INFORMATION: Public Law 104–13 (44 U.S.C. of the burden of the collection of Title: Limitations on Net Operating 3506(c)(2)(A)). Currently, the IRS is information; (c) ways to enhance the Loss Carryforwards and Certain Built-in soliciting comments concerning Form quality, utility, and clarity of the Losses and Credits Following an 5498–SA, HSA, Archer MSA, or information to be collected; (d) ways to Ownership Change of a Consolidated Medicare Advantage MSA Information. minimize the burden of the collection of Group. DATES: Written comments should be information on respondents, including OMB Number: 1545–1218. received on or before August 18, 2008 through the use of automated collection Regulation Project Number: CO–25– to be assured of consideration. techniques or other forms of information 96. ADDRESSES: Direct all written comments technology; and (e) estimates of capital Abstract: Section 1502 provides for to R. Joseph Durbala, Internal Revenue or start-up costs and costs of operation, the promulgation of regulations with

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respect to corporations that file The following paragraph applies to all performance of the functions of the consolidated income tax returns. of the collections of information covered agency, including whether the Section 382 limits the amount of income by this notice: information shall have practical utility; that can be offset by loss carryovers and An agency may not conduct or (b) the accuracy of the agency’s estimate credits after an ownership change. sponsor, and a person is not required to of the burden of the collection of These final regulations provide rules for respond to, a collection of information information; (c) ways to enhance the applying section 382 to groups of unless the collection of information quality, utility, and clarity of the corporations that file a consolidated displays a valid OMB control number. information to be collected; (d) ways to return. Books or records relating to a collection of information must be retained as long minimize the burden of the collection of Current Actions: There is no change to as their contents may become material information on respondents, including this existing regulation. in the administration of any internal through the use of automated collection Type of Review: Extension of revenue law. Generally, tax returns and techniques or other forms of information currently approved collection. tax return information are confidential, technology; and (e) estimates of capital Affected Public: Business or other for- as required by 26 U.S.C. 6103. or start-up costs and costs of operation, profit. Request for Comments: Comments maintenance, and purchase of services submitted in response to this notice will to provide information. Estimated Number of Respondents: be summarized and/or included in the 12,054. Approved: June 5, 2008. request for OMB approval. All R. Joseph Durbala, Estimated Time Per Respondent: 20 comments will become a matter of minutes. public record. Comments are invited on: IRS Reports Clearance Officer. Estimated Total Annual Burden (a) Whether the collection of [FR Doc. E8–13608 Filed 6–16–08; 8:45 am] Hours: 662. information is necessary for the proper BILLING CODE 4830–01–P

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Corrections Federal Register Vol. 73, No. 117

Tuesday, June 17, 2008

This section of the FEDERAL REGISTER DEPARTMENT OF EDUCATION Thursday, May 29, 2008 make the contains editorial corrections of previously following correction: published Presidential, Rule, Proposed Rule, Federal Pell Grant, Academic On page 30906, in the third column, and Notice documents. These corrections are Competitiveness Grant, National in the last line ‘‘which’’ should read prepared by the Office of the Federal Science and Mathematics Access To ‘‘which considers both income and Register. Agency prepared corrections are Retain Talent Grant, Federal Perkins issued as signed documents and appear in assets.’’. Loan, Federal Work-Study, Federal the appropriate document categories [FR Doc. Z8–11953 Filed 6–16–08; 8:45 am] elsewhere in the issue. Supplemental Educational Opportunity Grant, Federal Family Education Loan, BILLING CODE 1505–01–D and William D. Ford Federal Direct Loan Programs Correction In notice document E8–11953 beginning on page 30904 in the issue of

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Part II

National Credit Union Administration 12 CFR Part 701 Organization and Operations of Federal Credit Unions; Proposed Rule

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NATIONAL CREDIT UNION General Counsel; or Steven W. Anticipating the possibility of ADMINISTRATION Widerman, Trial Attorney, Office of periodic additions to the then-existing General Counsel, 1775 Duke Street, distress criteria, the Chartering Manual 12 CFR Part 701 Alexandria, Virginia 22314 or telephone incorporated by reference other criteria RIN 3133–AD48 (703) 518–6540. that the CDFI Fund might establish in SUPPLEMENTARY INFORMATION: the future. 67 FR 20013, 20017 (April Organization and Operations of 24, 2002). The distress criteria that Federal Credit Unions I. Background apply today are the same ones that In 1998, Congress enacted the Credit applied in 1998, except that the AGENCY: National Credit Union Union Membership Access Act ‘‘distressed housing’’ criterion has been Administration (NCUA). (CUMAA), Public Law 105–219, 112 replaced by county ‘‘net migration loss.’’ ACTION: Proposed rule. Stat. 914 (1998). Among other things, 12 CFR 1805.201(b)(3)(D)(5) (2008). CUMAA authorized the NCUA Board to The proposed rule (Interpretive SUMMARY: NCUA seeks public comment Ruling and Policy Statement 08–2) is on four proposals to modify its allow multiple common bond credit unions to serve members residing in intended to update and clarify the Chartering and Field of Membership existing process of approving credit Manual to update and clarify the ‘‘underserved areas,’’ provided the credit union establishes and maintains a union service to ‘‘underserved areas.’’ process of approving credit union Public comments on the proposed service to ‘‘underserved areas.’’ The first facility there. 12 U.S.C. 1759(c)(2). For an area to be ‘‘underserved,’’ CUMAA modifications are welcome. To facilitate proposal clarifies the procedure for the consideration of these comments, establishing that an ‘‘underserved area’’ requires the NCUA Board to determine that a local community, neighborhood the NCUA Board urges commenters to qualifies as a local community. The organize and label their comments to second addresses the application of the or rural district is an ‘‘investment area’’ as defined in the Community correspond to the topics and issues economic distress criteria that discussed below. determine whether an area combining Development Banking and Financial multiple geographic units is sufficiently Institutions Act of 1994 (‘‘CDFI Act’’), II. Discussion of Proposed Rule ‘‘distressed’’ to qualify as 12 U.S.C. 4702(16), and also that it is ‘‘underserved * * * by other depository A. Definition of a Local Community ‘‘underserved.’’ The third would update 1 the documentation and clarify the scope institutions.’’ 12 U.S.C. 1759(c)(2)(A). To be eligible for approval as an requirements for demonstrating that a The CDFI Act defines an ‘‘investment ‘‘underserved area,’’ a proposed area proposed area has ‘‘significant unmet area’’ as a geographic area that first must qualify as a ‘‘local needs’’ for loans and applicable ‘‘encompasses or is located in an community, neighborhood or rural financial services. The final proposal empowerment zone or enterprise district’’ (‘‘local community’’). 12 U.S.C. recognizes that meaningful data from community designated under [26 U.S.C. 1759(c)(2)(A); S. Rep. No. 193, 105th NCUA and the federal banking agencies 1391]’’; or that ‘‘meets the objective Cong., 2d Sess. 6 (1998); H.R. Rep. No. will be available to assess whether an criteria of economic distress developed 105–472, 105th Cong., 2d Sess. 19 area is ‘‘underserved by other by the [Community Development (1998). The Chartering Manual’s criteria depository institutions.’’ Financial Institutions] Fund’’ (‘‘CDFI for establishing a ‘‘local community’’ for Fund’’) and also ‘‘has significant unmet ‘‘underserved area’’ purposes deviates DATES: Comments must be received on needs for loans or equity investments.’’ somewhat from the ‘‘well-defined local or before August 18, 2008. 12 U.S.C. 4702(16). The Fund community’’ criteria elsewhere in the ADDRESSES: You may submit comments established ‘‘criteria of economic Manual. by any of the following methods (Please distress’’ and implemented the When a proposed area qualifies as a send comments by one method only): ‘‘significant unmet needs’’ criterion by ‘‘presumptive community’’ (multiple • Federal eRulemaking Portal: http:// regulation. 12 CFR 1805.201(d) and (e) political jurisdictions with a total www.regulations.gov. Follow the (1998); 12 CFR 1805.104(dd) (1998). population of 500,000 or less; or an area instructions for submitting comments. To reflect the enactment of CUMAA within a Metropolitan Statistical Area • NCUA Web Site: http:// and its introduction of ‘‘underserved with a population of 1 million or less) www.ncua.gov/ areas,’’ NCUA revised its Chartering and the Chartering Manual’s chapter on RegulationsOpinionsLaws/ Field of Membership Manual community chartering requires a credit _ _ proposed regs/proposed regs.html. (‘‘Chartering Manual’’) in 1998, union to complete the presumption by Follow the instructions for submitting replacing the previous authority to serve submitting a letter ‘‘describing how the comments. low-income communities and area meets the standards for community • E-mail: Address to associations. 12 CFR 701.1 (1999). As interaction and/or common interests’’ [email protected]. Include ‘‘[Your revised, the Chartering Manual within in the proposed area.2 Id. Ch. 2, name] Comments on Proposed Rule Part implemented the statutory definition of § V.A.1. The chapter on ‘‘underserved 701.1’’ in the e-mail subject line. ‘‘underserved area’’ and incorporated areas’’ does not require an equivalent • Fax: (703) 518–6319. Use the the then-existing CDFI criteria for letter to establish that a proposed subject line described above for e-mail. establishing a ‘‘distressed’’ area. 63 FR ‘‘underserved area’’ is a ‘‘presumptive • Mail: Address to Mary Rupp, 71998 (December 30, 1998). Those community.’’ Manual, Ch. 3, § III.A. Secretary of the Board, National Credit criteria addressed median family The disparity concerning the letter Union Administration, 1775 Duke income, poverty, unemployment, supporting a ‘‘presumptive community’’ Street, Alexandria, Virginia 22314– distressed housing, county population provides an opportunity to reconsider 3428. loss, and significant unmet needs for • Hand Delivery/Courier: Same as loans and equity investments. 63 FR at 2 When the letter supporting a ‘‘presumptive mail address. 72015, 72042. community’’ fails to present sufficient evidence of FOR FURTHER INFORMATION CONTACT: community interaction and/or common interests, the credit union may be required to provide a full Michael J. McKenna, Deputy General 1 A ‘‘depository institution’’ is defined to include analysis to support that the area is a well-defined Counsel; John K. Ianno, Associate insured credit unions. 12 U.S.C. 461(b)(1)(A)(iv). local community. Manual, Ch. 2 § V.A.1.

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whether the letter is needed at all to Second, the proposed area’s boundaries are discussed below and the internet establish a local community in the may be nontraditional, consisting of a address of each is cited in the footnotes. context of either a community charter or riverbank, a railroad line or an interstate In any case, it is useful to understand in an ‘‘underserved area.’’ The original highway, for example. 63 FR at 72038– a step-by-step progression how the purpose of the letter in the community 72039. Further, the proposed area may economic distress criteria operate. charter context was to supplement the even bisect the traditional geographic Metro or Non-Metro Location. The record with qualitative evidence of units and political subdivisions upon initial step is to determine whether a interaction and common interests which the CDFI Fund relies. Finally, proposed area is located within or within the community. The NCUA when evaluating an ‘‘investment area,’’ outside a ‘‘Metropolitan Area’’ as Board invites public comment on the CDFI Fund considers only the designated by the Office of Management whether a supporting letter is necessary number of persons who reside there. In and Budget (‘‘OMB’’). 12 CFR to further that purpose when a multiple contrast, when deciding whether to add 1805.104(ff). In practice, the CDFI Fund group credit union seeks to add an a proposed area to its field of deems a proposed area to be located ‘‘underserved area.’’ To ensure membership, a credit union considers within a Metropolitan Area if it is consistency, the proposed rule revises potential membership from among the located within an OMB-designated the chapter on ‘‘underserved areas’’ to persons who reside, work, worship or ‘‘Metropolitan Statistical Area’’ incorporate the definition of ‘‘well attend school there. These distinctions (‘‘MSA’’), and vice versa. 44 U.S.C. defined local community’’ set forth in tend to complicate the translation of a 3504(e)(3)(E). OMB updates its MSA the chapter on community chartering. proposed ‘‘underserved area’’ into the designations annually; however, to That definition will be revised geographic units envisioned by the CDFI ensure consistency with the CDFI depending on the Board’s evaluation of Fund’s economic distress criteria. Fund’s distress criteria, which are the comments received on the letter In the decade since CUMAA, a measured according to the most recent requirement. plethora of economic and demographic decennial Census, the proposed rule data has become available over the relies solely on the MSA designations B. Criteria of Economic Distress Internet, and there has been a manifold that correspond to the same decennial The proposed rule addresses the increase in the number of people who census, rather than on updated practical incompatibility between credit have Internet access. Convenient on-line designations.4 union service to a local community and access to relevant data has considerably The location within or outside a the CDFI Fund’s economic distress simplified the task of translating an Metropolitan Area dictates the criteria that apply to determine whether ‘‘underserved area’’ into the geographic ‘‘geographic unit(s)’’ into which the a proposed area is an ‘‘investment area,’’ units that the CDFI Fund uses to apply proposed area must be translated in thus qualifying it as ‘‘underserved.’’ To the economic distress criteria that order to apply the economic distress qualify as a ‘‘local community, define an ‘‘investment area.’’ Therefore, criteria. The geographic units prescribed neighborhood or rural district,’’ the this proposed rule revisits NCUA’s rules for a Metropolitan area (‘‘Metro units’’) proposed area must be a ‘‘single, well- for qualifying an ‘‘underserved area’’ are a census tract, a block group, and an defined’’ area so as to facilitate the primarily to update and conform its American Indian or Alaskan Native mandatory interaction and common approach to present circumstances. area. 12 CFR 1805.201(b)(3)(ii)(B) interests that signify a common bond As a preliminary matter, a proposed (2008). The geographic units prescribed among its residents. 65 FR 37065, area qualifies as an ‘‘investment area’’ for a Non-Metropolitan area (‘‘Non- 37072, 37082 (June 13, 2000). This has without regard to the economic distress Metro units’’) are a county (or always meant that the parts of a and ‘‘significant unmet needs’’ criteria if equivalent area), a ‘‘minor civil division proposed area must be contiguous, it is presently designated an that is a unit of local government,’’ an regardless of any other prerequisites for ‘‘Empowerment Zone’’ or an ‘‘Enterprise incorporated place, a census tract, a credit union service that apply. Because Community.’’ 12 CFR block numbering area, a block group, or of this restriction, NCUA evaluates a 1805.201(b)(3)(ii)(A)(3). Empowerment an American Indian or Alaskan Native ‘‘local community, neighborhood or Zones and Enterprise Communities area. Id. In either case, the proposed rural district’’—whether seeking were designated by the U.S. Department area must consist entirely of whole approval as an ‘‘underserved area’’ or of Housing and Urban Development and Metro or Non-Metro units; it cannot otherwise—strictly as a single, unified the U.S. Department of Agriculture consist of fractional units (e.g., half of a entity. between 1993 and 1996. These census tract or half of a county). A In several respects, the ‘‘single unified designations have since largely proposed area that is partly within and entity’’ approach is incompatible with expired,3 so most proposed areas will partly outside a Metropolitan Area (e.g., the ‘‘geographic units’’ the CDFI Fund not be able to bypass the economic that straddles an MSA’s boundary) must utilizes to apply its economic distress distress and ‘‘significant unmet needs’’ be evaluated using Metro units because criteria. First, the areas that the CDFI criteria of an ‘‘investment area.’’ they are the largest permissible unit that Fund is asked to certify as ‘‘investment For proposed areas that do not benefit is common to all parts of the area. areas’’ conform from the outset to from an Empowerment Zone or Single Metro or Non-Metro Unit. To prescribed census units (e.g., tracts or Enterprise Community designation, the qualify as an ‘‘investment area,’’ a blocks) or political subdivisions, availability of certain on-line resources proposed area consisting of a single allowing each such geographic unit or will make it easier to apply the whole Metro unit (e.g., a single census group of units to be treated as a separate economic distress criteria. The on-line tract) or a single whole Non-Metro unit ‘‘investment area.’’ 12 CFR resources that correspond to each step (e.g., a single county) must as a whole 1805.201(b)(3)(ii)(B) (2008). In contrast, meet one of the following distress an ‘‘underserved area’’ that a credit 3 Unexpired Empowerment Zones and Enterprise criteria, as reported by the most recent union proposes to add may be drawn Communities are identified at: http://www.hud.gov/ without regard to prescribed geographic offices/cpd/economicdevelopment/programs/rc/ 4 For MSA designations that correspond to the units or political boundaries, reflecting tour/index.cfm. At this link, select a state from the 2000 decennial Census, see ‘‘Metropolitan Areas map or list, then select from the ‘‘RC/EZ/EC and Components, 1999, with FIPS Codes’’ (6/30/99 the area’s status as a single unified Communities’’ shown to generate a map of the revised 1/28/02) at: http://www.census.gov/ entity (i.e., a well-defined community). designated areas. population/estimates/metro-city/99mfips.txt

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decennial census published by the U.S. ‘‘distressed’’ tract within a group to For the proposed area as a whole, the IA Bureau of the Census (‘‘decennial qualify under any one of the criteria. Worksheet shows: Whether the Census’’): Also, the decennial Census itself does population of the non-‘‘distressed’’ units • Unemployment. Unemployment not apply the 85% population threshold is less than 15 percent of the whole rate at least 1.5 times the national to a proposed area consisting of area’s population (i.e., applies the 85% average; or multiple contiguous units; it only population threshold); the exact • Poverty. At least 20 percent (20%) reports whether an individual unit percentage of the area’s population that of the population lives in poverty. 12 meets an applicable distress criterion. resides in the non-‘‘distressed’’ units; CFR 1805.201(b)(3)(ii)(D)(1) and (3) A proposed area consisting either of a the total population of the non- (2008). single Metro or Non-Metro unit, or of ‘‘distressed’’ units; and whether the If the proposed area consists of a multiple contiguous units in which the combined units are contiguous. When single Metro unit of any kind, it may ‘‘distressed’’ units represent at least 85 the IA Worksheet indicates that a also meet the following criterion, as percent of the area’s population, will proposed area does not qualify as reported by the most recent decennial meet the definition of an ‘‘investment ‘‘distressed,’’ none of these details is Census: area’’ provided that, as explained below, provided. • Metro Area Median Family Income. it also has ‘‘significant unmet needs’’ for At present, the ‘‘My CDFI Fund’’ Web Median family income (‘‘MFI’’) at or loan products and applicable financial site’s analysis is the most expeditious below 80 percent (80%) of either the services. means of establishing that a proposed Metro Area’s MFI or the national Metro Resources for Determining If Distress area is sufficiently ‘‘distressed,’’ thus Area MFI, whichever is greater. Criteria Are Met. The CDFI Fund’s ‘‘My conserving credit union resources. To If the proposed area consists of a CDFI Fund’’ Web site is an invaluable benefit from the convenience of the ‘‘My single Non-Metro unit of any kind, it resource for determining whether a CDFI Fund’’ Web site, the NCUA Board may also meet the following criterion, as proposed area is ‘‘distressed,’’ but only encourages credit unions to conform reported by the most recent decennial if the area’s unit(s) conform to one or their proposed ‘‘underserved areas’’ to Census: more census tracts or counties, or to an the ‘‘geographic units’’ the site is • Non-Metro Area Median Family independent city (which is treated as limited to—census tracts and county Income. MFI at or below 80 percent equivalent to a county); the site is not boundaries, as the case may be. (80%) of either the statewide Non-Metro equipped to analyze any other kind of Approval to Serve an Already Area’s MFI or the national Non-Metro geographic unit.5 Using its ‘‘Information Approved ‘‘Underserved Area’’. Once a Area MFI, whichever is greater. and Mapping System’’ feature, the ‘‘My credit union is initially approved to 12 CFR 1805.201(b)(3)(ii)(D)(2)(i) and CDFI Fund’’ Web site allows the user to serve an area that qualifies as (ii) (2008). enter selected units that it then analyzes ‘‘underserved,’’ other credit unions may Finally, if the proposed area consists individually and as a proposed area. be approved to serve the area provided of a single Non-Metro county, it may The analysis reflects the most recent it is ‘‘underserved’’ at the time they meet one of the following two decennial Census data.6 The results are apply. The proposed rule additional criteria, as reported by the displayed on a comprehensive ‘‘grandfathers’’ all credit unions most recent decennial Census: ‘‘Investment Area/Hot Zone Worksheet’’ approved to serve an area while it • County Population Loss. County’s (‘‘IA Worksheet’’). qualifies as ‘‘underserved,’’ allowing population loss of at least 10 percent For each unit individually, the IA them to continue serving that area in the (10%) between the most recent and the Worksheet shows: Whether it is located event it no longer qualifies. To preceding decennial census; or within an MSA; its total population; its terminate the approval to serve an area • County Migration Loss. County’s net poverty rate; the percent of benchmark that no longer is ‘‘underserved’’ would migration loss of at least 5 percent (5%) MFI; the unemployment rate; and most penalize the credit union for its efforts in the 5-year period preceding the most importantly, whether the unit is to bring an adequate level of service to recent decennial census. ‘‘distressed’’ under the distress criteria.7 the area. 12 CFR 1805.201(b)(3)(ii)(D)(4) and (5) An area that previously was approved (2008). 5 The ‘‘My CDFI Fund’’ Web site’s ‘‘Information as ‘‘underserved’’ may still qualify as Multiple Contiguous Metro or Non- and Mapping System’’ (‘‘CIMS’’) is available at: ‘‘distressed’’ when the proposed rule is Metro Units. If a proposed area consists https://www.cdfifund.gov/myCDFI/Organization/ applied using the decennial Census in Mapping/Mapping.asp The ‘‘Welcome to CIMS’’ of multiple contiguous Metro units (e.g., page explains the options for identifying ‘‘CDFI effect when the new applicant applies. a group of adjoining census tracts) or Investment Areas’’ and a ‘‘Mapping System When that is the case, the new applicant multiple contiguous Non-Metro units Overview and Tutorial.’’ The ‘‘My CDFI Fund’’ Web must show at the time it applies that the (e.g., a group of adjoining counties), the site is accessible to registered users through an area still has ‘‘significant unmet needs organizational account holder. For instructions on area is subject to a population threshold how to become a registered user, see http:// for loans and financial services’’ (to that does not apply to a proposed area www.ncua.gov/CreditUnionDevelopment// qualify as an ‘‘investment area’’) and consisting of a single unit. Thus, when Underserved/underserved.html. Under the still is ‘‘underserved by other depository a proposed area consists of multiple ‘‘Expanding into Investment Areas’’ section is a link institutions’’ (to qualify as contiguous units, at least 85 percent entitled ‘‘Instructions to Use the CDFI Web site.’’ ‘‘underserved’’). These criteria may 6 Typically, there is an 18-month lag between the (85%) of the area’s total population taking of a decennial U.S. Census and the become more difficult to meet as the must reside within the units that publication of the results. Thus, for example, the number of depository institutions ‘‘together meet one of the [applicable results of the 2000 census became available when serving the area increases. distress] criteria’’ set forth above (‘‘the published in 2002 and will remain the most recent Issues for Comment. The NCUA Board census until the results of the 2010 census are 85% population threshold’’). 12 CFR published. invites public comment on the 1805.201(b)(3)(ii)(C)(2) (2008). 7 The ‘‘My CDFI Fund’’ Web site implies that it application of the economic distress The language of the 85% population determines whether a proposed area ‘‘qualifies as threshold suggests that all of the an investment area.’’ If so, it would not be necessary or proposed area is ‘‘distressed,’’ meaning that an ‘‘distressed’’ units must qualify as such for an applicant to meet a further criterion— applicant still must independently demonstrate the demonstrating ‘‘significant unmet needs for loans,’’ proposed area’s ‘‘significant unmet needs for under the same criterion, but in etc., within the proposed area. In fact, it is apparent loans,’’ etc., in order to qualify as an ‘‘investment practice, the CDFI Fund allows each that the Web site determines only whether a unit area.’’

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criteria, including whether a proposed (2008). In practice, the CDFI Fund D. Underserved by Other Depository area should be required to conform to accepts a one-page Narrative Statement Institutions county or census tract boundaries, as describing the significant unmet capital The CDFI Fund’s ‘‘significant unmet the case may be, so that census tracts or financial services of a proposed area. needs’’ test focuses on the need for apply uniformly to areas located within ‘‘CDFI Certification Application’’ (June products and services within a proposed a Metropolitan Area, and counties apply 2007) at 11. The analysis must be area. In contrast, CUMAA’s demand that uniformly to areas located outside a supported by relevant statistical a proposed area be ‘‘underserved * * * Metropolitan Area. evidence. There are no definitive by other depository institutions’’ C. Significant Unmet Needs for Loans or standards of evaluation; the statements focuses on the presence of providers of Financial Services are evaluated on a case-by-case basis. products and services within the area. Apart from applying the economic Instead of a presumption of CUMAA did not specify a methodology distress criteria, the CDFI Fund ‘‘significant unmet needs,’’ the proposed for determining whether a proposed definition of an ‘‘investment area’’ rule revises the Chartering Manual to area meets this test; instead, it broadly requires a showing of ‘‘significant require a credit union to support its refers to unspecified ‘‘data of the unmet needs for loans or equity ‘‘underserved area’’ application with a [NCUA] Board and the Federal banking investments’’ within the proposed area. one-page ‘‘Narrative Statement’’ agencies.’’ 12 U.S.C. 1759(c)(2)(A)(ii). 12 U.S.C. 4702(16)(A)(ii). Because credit demonstrating a pattern of ‘‘significant In the decade since CUMAA, raw data unions are not authorized to offer equity unmet needs’’ in the proposed area for has accumulated within government on investments, the scope of this ‘‘unmet loans or for one or more of the financial branch locations and the volume of needs’’ test initially was limited by services that credit unions are business in certain products and definition to the unmet needs for loans.8 authorized to offer. However, a credit services, but meaningful and reliable In implementing the ‘‘significant unmet union may choose which of these data on these points has only recently needs test,’’ the CDFI Fund added the services to address and need not address become readily accessible. This data alternative of addressing the unmet all of them. makes it possible to quantify and needs for a range of financial services Under the proposed rule, the compare the presence of financial including many that credit unions are Narrative Statement on ‘‘significant institution facilities in a given area. The authorized to offer: Checking accounts, unmet needs’’ must be supported by proposed rule suggests a flexible savings accounts, check cashing, money relevant, objective statistical data methodology that relies on publicly orders, certified checks, automated reflecting, among other things, loan and available population data and data on teller machines, deposit taking, safe financial services activity in the the location of financial institution deposit box services, and other similar proposed area—much of which is now branches. services.9 12 CFR publicly available over the Internet. The Concentration of Facilities. The 1805.102(b)(3)(ii)(A)(2). Narrative Statement also may be proposed methodology compares two From 1998 through 2000, NCUA supplemented by objective testimonial measures to determine whether an area permitted the ‘‘significant unmet needs’’ evidence. The supporting data and is adequately served according to the showing to be made through the evidence should be appended to the concentration of depository institution Business Plan required to be developed Narrative Statement. facilities within the area. The first by a credit union seeking to add an measure—which sets a benchmark level ‘‘underserved area.’’ 63 FR at 72042. In addressing a proposed area’s unmet of adequate service—is the ratio of The Business Plan already was required needs, for example, a credit union might depository institution facilities to the to ‘‘identify the credit and depository focus on the need for cash operations to population of the non-‘‘distressed’’ needs of the community and detail how replace check cashing outlets and on the tracts in a proposed area, regardless the credit union plans to serve those need for personal loans at reasonable whether those tracts are contiguous. In needs.’’ Id. For that reason, NCUA rates to replace pawn brokers, payday cases where there are no non- revised its policy to recognize that a lenders and rent-a-centers. To support ‘‘distressed’’ tracts within a proposed proposed area that is ‘‘distressed’’ is such a Narrative Statement, the credit area, a non-‘‘distressed’’ tract or larger presumed to have ‘‘significant unmet union might rely on statistics and unit immediately adjoining the needs.’’ 65 FR 64512, 64518 (Oct. 27, conclusions about these needs proposed area (e.g., county or city) may 2000). published by the proposed area’s be used to set the benchmark ratio. The Since the enactment of CUMAA, the Chamber of Commerce. second measure is the ratio of facilities CDFI Fund has modified the Issues for Comment. Public to the combined population of all of the documentation and scope requirements commenters are invited to address the tracts within the proposed area. for a proposed area to meet the ‘‘significant unmet needs’’ criterion, As shown in the example below, if the ‘‘significant unmet needs’’ test. ‘‘Studies including whether the Narrative benchmark ratio of facilities within the or other analyses’’ were originally Statement should be integrated into the non-‘‘distressed’’ tracts (column A required to ‘‘adequately demonstrate a Business Plan a credit union is already below) exceeds the ratio of facilities pattern of unmet needs for loans and required to submit. Further, the NCUA within all the tracts of the proposed area equity investments.’’ 12 CFR Board asks commenters to identify as a whole (column B below), the 1805.301(e) (1998). As modified, a available statistical data that would proposed rule deems the area to be ‘‘narrative analysis’’ is the only assist credit unions in demonstrating ‘‘underserved by other depository supporting documentation now the unmet needs for loans and credit institutions,’’ and vice versa (column C required. 12 CFR 1805.201(b)(3)(ii)(E) union services in a proposed area. below):

8 Credit unions are not authorized to offer ‘‘equity a purchase of secondary capital.’’ 12 CFR generally offer. 12 CFR 1805.104(v) (2008). To these investments,’’ which are defined to include ‘‘a stock 1805.104(t) (2008). financial services, the Fund also added certain purchase, a purchase of a partnership interest, a 9 The financial services credit unions are ‘‘financial products’’ that, except for loans, credit purchase of a limited liability company authorized to offer are drawn from the CDFI Fund’s unions do not offer to their members. 12 CFR membership interest, a loan made on such terms 1805.104(u) (2008). that it has sufficient characteristics of equity [and] definition of ‘‘financial services’’ that institutions

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The proposed methodology does not to assess whether a proposed area is Regulatory Procedures distinguish between Metro and Non- ‘‘underserved by other depository Regulatory Flexibility Act Metro locations, and need not be limited institutions,’’ and to identify sources of to census tracts as its unit of measure for data on the location depository The Regulatory Flexibility Act each ratio. Census tracts are proposed as institution facilities that is sorted by requires NCUA to prepare an analysis to the unit of measure, however, because census tract. describe any significant economic most credit unions are likely to have impact a regulation may have on a already used them in determining E. Service Status Reports substantial number of small credit whether the proposed area is unions (primarily those under $10 The current rule authorizes NCUA’s sufficiently ‘‘distressed,’’ and thus will million in assets). The proposed regional directors to obtain from FCUs be familiar with the data and data amendments will not have a significant sources associated with the tracts within adding ‘‘underserved areas’’ reports on economic impact on a substantial the area. their success in serving members in number of small credit unions and Data on Population and Location of these areas. Manual, Ch. 3, § III.A. Some therefore, a regulatory flexibility Facilities. Current tract-by-tract commenters have in the past analysis is not required. recommended that NCUA affirmatively population data is available on-line Paperwork Reduction Act from the ‘‘My CDFI Fund’’ Web site’s IA require these reports. That issue is not Worksheet or from the most recent addressed in this proposed rulemaking This proposed rule imposes a decennial Census itself. Current data on because the Board is as a separate matter requirement that any multiple common the location of facilities of institutions considering recommendations of bond federal credit union that wishes to insured by the Federal Deposit NCUA’s Outreach Task Force that add an underserved area must apply for Insurance Corporation (‘‘FDIC’’) or would call for NCUA to obtain the NCUA Board’s written approval to regulated by the Office of Thrift information from credit unions on do so. This proposed rule mandates Supervision is available on-line on the member income levels and products and certain specific information that must be FDIC’s ‘‘Summary of Deposits’’ webpage services offered to members, and to included in the application. NCUA sorted by state, county and MSA.10 organize the data by census tract. requests public comment on all aspects Current data on the location of credit Consideration of the issue in this of the collection of information in this union facilities is collected by NCUA rulemaking would therefore be an proposed rule. Based upon past annually from a credit union’s ‘‘Report unnecessary duplication. experience NCUA anticipates of Officials.’’ NCUA plans to organize approximately 100 applications per that data and make it available on-line F. Pending Applications To Serve an year. Given the type of information at the NCUA Web site. This data can be ‘‘Underserved Area’’ required to be included in the sorted manually on a tract-by-tract basis. application, NCUA estimates a burden Issues for Comment. Public If, as a result of its review of public of 8 hours per application and will commenters are invited to address the comments on this proposed rule, the revisit this estimate in light of the ‘‘underserved by other depository NCUA Board adopts a final rule comments NCUA receives. institutions’’ criterion, including modifying the current Chartering NCUA will submit the collection of whether the facilities of such Manual, the modifications will apply information requirements contained in institutions should be defined to prospectively. Pending applications for this proposed rule to the Office of include ATMs and shared branches. approval to serve an ‘‘underserved area’’ Management and Budget (OMB) in Further, the NCUA Board asks and applications received after the date accordance with the Paperwork commenters to suggest methodologies of publication of this rule will be Reduction Act of 1995. 44 U.S.C. 3507. other than the concentration of facilities deferred until the rulemaking process is NCUA will use any comments received completed. to develop its new burden estimates. 10 FDIC Summary of Deposits webpage: http:// Comments on the collections of www2.fdic.gov/sod/sodSummary.asp?baritem=3. information should be sent to Office of

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Management and Budget, Reports 1999, Public Law 105–277, 112 Stat. • The occupational, associational, or Management Branch, New Executive 2681 (1998). multiple groups possess an appropriate Office Building, NCUA Desk Officer, common bond or the community represents List of Subjects in 12 CFR Part 701 Room 10202, 725 17th St., NW., a well-defined local community, Credit, Credit unions, Reporting and neighborhood, or rural district; Washington, DC 20503; or by fax to • The subscribers are of good character (202) 395–6974; Attention: Desk Officer recordkeeping requirements. and are fit to represent the proposed credit for NCUA. Please send NCUA a copy of By the National Credit Union union; and any comments you submit to OMB. Administration Board on May 29, 2008. • The establishment of the credit union is NCUA made the following Mary Rupp, economically advisable. Generally, these are the primary criteria assumptions about this proposed rule: Secretary of the Board. • The likely respondents are multiple that NCUA will consider. In unusual common bond federal credit unions. For the reasons stated above, 12 CFR circumstances, however, NCUA may examine • Estimated annual number of Part 701 is proposed to be amended as other factors, such as other federal law or respondents: 100. follows: public policy, in deciding if a charter should • Estimated average annual burden be approved. Unless otherwise noted, the policies hours per respondent: 8 hours. PART 701—ORGANIZATION AND • OPERATION OF FEDERAL CREDIT outlined in this manual apply only to federal Estimated total annual disclosure credit unions. and recordkeeping burden: 800 hours. UNIONS II—Types of Charters In addition to comments on the 1. The authority citation for part 701 proposed rule, NCUA invites comment continues to read as follows: The Federal Credit Union Act recognizes on: three types of federal credit union charters— • The accuracy of NCUA’s estimate of Authority: 12 U.S.C. 1752(5), 1755, 1756, single common bond (occupational and the burden of the information 1757, 1759, 1761a, 1761b, 1766, 1767, 1782, associational), multiple common bond (more collections; 1784, 1787, 1789. Section 701.6 is also than one group each having a common bond authorized by 15 U.S.C. 3717. Section 701.31 • Ways to minimize the burden of the of occupation or association), and is also authorized by 15 U.S.C. 1601, et seq., community. information collections on Federal 42 U.S.C. 1981 and 3601–3610. Section The requirements that must be met to credit unions, including the use of 701.35 is also authorized by 12 U.S.C. 4311– charter a federal credit union are described automated collection techniques or 4312. in Chapter 2. Special rules for credit unions other forms of information technology; 2. Section 701.1 is revised to read as serving low-income groups are described in and Chapter 3. • Estimates of capital or start-up costs follows: If a federal credit union charter is granted, and costs of operation, maintenance, § 701.1 Federal credit union chartering, Section 5 of the charter will describe the and purchase of services to provide field of membership modifications, and credit union’s field of membership, which information. conversions. defines those persons and entities eligible for Recordkeepers are not required to membership. Generally, federal credit unions National Credit Union Administration are only able to grant loans and provide respond to this collection of information policies concerning chartering, field of services to persons within the field of unless it displays a currently valid OMB membership modifications, and membership who have become members of control number. NCUA is currently conversions are set forth in Interpretive the credit union. requesting a control number for this Ruling and Policy Statement 08–2, III—Subscribers information collection from OMB. Chartering and Field of Membership Manual (IRPS 08–2) published as Federal credit unions are generally Executive Order 13132 organized by persons who volunteer their Appendix B to this part. The Chartering Executive Order 13132 encourages time and resources and are responsible for and Field of Membership Manual also is determining the interest, commitment, and independent regulatory agencies to available on-line at http:// consider the impact of their actions on economic advisability of forming a federal www.ncua.gov. credit union. The organization of a successful state and local interests. In adherence to 3. Appendix B to 12 CFR Part 701 is federal credit union takes considerable fundamental federalism principles, added to read as follows: planning and dedication. NCUA, an independent regulatory Persons interested in organizing a federal agency as defined in 44 U.S.C. 3502(5), Appendix B To Part 701—Chartering credit union should contact one of the credit voluntarily complies with the executive and Field of Membership Manual union trade associations or the NCUA regional office serving the state in which the order. The proposed rule would not Chapter 1 have substantial direct effects on the credit union will be organized. Lists of states, on the connection between the Federal Credit Union Chartering NCUA offices and credit union trade national government and the states, or associations are shown in the appendices. I—Goals of NCUA Chartering Policy NCUA will provide information to groups on the distribution of power and The National Credit Union interested in pursuing a federal charter and responsibilities among the various Administration’s (NCUA) chartering and will assist them in contacting an organizer. levels of government. NCUA has field of membership policies are directed While anyone may organize a credit union, determined that this proposed rule does toward achieving the following goals: a person with training and experience in not constitute a policy that has • To encourage the formation of credit chartering new federal credit unions is federalism implications for purposes of unions; generally the most effective organizer. the executive order. • To uphold the provisions of the Federal However, extensive involvement by the Credit Union Act; group desiring credit union service is The Treasury and General Government • To promote thrift and credit extension; essential. Appropriations Act, 1999 • To promote credit union safety and The functions of the organizer are to soundness; and provide direction, guidance, and advice on The NCUA has determined that this • To make quality credit union service the chartering process. The organizer also proposed rule would not affect family available to all eligible persons. provides the group with information about a well-being within the meaning of NCUA may grant a charter to single credit union’s functions and purpose as well section 654 of the Treasury and General occupational/associational groups, multiple as technical assistance in preparing and Government Appropriations Act of groups, or communities if: submitting the charter application. Close

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communication and cooperation between the chartered credit unions. If the application of • Operating facilities, to include office organizer and the proposed members are a prospective official or employee to serve is space/equipment and supplies, safeguarding critical to the chartering process. not acceptable to the regional director, the of assets, insurance coverage, etc.; The Federal Credit Union Act requires that group can propose an alternate to act in that • Type of record keeping and data seven or more natural persons—The individual’s place. If the charter applicant processing system; ‘‘subscribers’’—present to NCUA for approval feels it is essential that the disqualified • Detailed semiannual pro forma financial a sworn organization certificate stating at a individual be retained, the individual may statements (balance sheet, income and minimum: appeal the regional director’s decision to the expense projections) for 1st and 2nd year, • The name of the proposed federal credit NCUA Board. If an appeal is pursued, action including assumptions—e.g., loan and union; on the application may be delayed. If the dividend rates; • The location of the proposed federal appeal is denied by the NCUA Board, an • Plans for operating independently; credit union and the territory in which it will acceptable new applicant must be provided • Written policies (shares, lending, operate; • before the charter can be approved. investments, funds management, capital The names and addresses of the accumulation, dividends, collections, etc.); subscribers to the certificate and the number IV.C—Member Support • Source of funds to pay expenses during of shares subscribed by each; Economic advisability is a major factor in initial months of operation, including any • The initial par value of the shares; • determining whether the credit union will be subsidies, assistance, etc., and terms or The detailed proposed field of chartered. An important consideration is the membership; and conditions of such resources; and degree of support from the field of • • The fact that the certificate is made to Evidence of sponsor commitment (or membership. The charter applicant must be enable such persons to avail themselves of other source of support) if subsidies are able to demonstrate that membership support the advantages of the Federal Credit Union critical to success of the federal credit union. Act. is sufficient to ensure viability. Evidence may be in the form of letters, False statements on any of the required NCUA has not set a minimum field of contracts, financial statements from the documentation filed in obtaining a federal membership size for chartering a federal sponsor, and any other such document on credit union charter may be grounds for credit union. Consequently, groups of any which the proposed federal credit union can federal criminal prosecution. size may apply for a credit union charter and substantiate its projections. be approved if they demonstrate economic While the business plan may be prepared IV—Economic Advisability advisability. However, it is important to note with outside assistance, the subscribers and IV.A—General that often the size of the group is indicative proposed officials must understand and of the potential for success. For that reason, support the submitted business plan. Before chartering a federal credit union, a charter application with fewer than 3,000 NCUA must be satisfied that the institution primary potential members (e.g., employees V—Steps in Organizing a Federal Credit will be viable and that it will provide needed of a corporation or members of an Union services to its members. Economic association) may not be economically V.A—Getting Started advisability, which is a determination that a advisable. Therefore, a charter applicant with potential charter will have a reasonable a proposed field of membership of fewer than Following the guidance contained opportunity to succeed, is essential in order 3,000 primary potential members may have throughout this policy, the organizers should to qualify for a credit union charter. to provide more support than an applicant submit wording for the proposed field of NCUA will conduct an independent on-site with a larger field of membership. For membership (the persons, organizations and investigation of each charter application to example, a small occupational or other legal entities the credit union will ensure that the proposed credit union can be associational group may be required to serve) to NCUA early in the application successful. In general, the success of any process for written preliminary approval. The credit union depends on: (a) The character demonstrate a commitment for long-term support from the sponsor. proposed field of membership must meet all and fitness of management; (b) the depth of common bond or community requirements. the members’ support; and (c) present and IV.D—Present and Future Market Once the field of membership has been projected market conditions. Conditions—Business Plan given preliminary approval, and the IV.B—Proposed Management’s Character The ability to provide effective service to organizer is satisfied the application has and Fitness members, compete in the marketplace, and to merit, the organizer should conduct an organizational meeting to elect seven to ten The Federal Credit Union Act requires adapt to changing market conditions are key persons to serve as subscribers. The NCUA to ensure that the subscribers are of to the survival of any enterprise. Before subscribers should locate willing individuals good ‘‘general character and fitness.’’ NCUA will charter a credit union, a business capable of serving on the board of directors, Prospective officials and employees will be plan based on realistic and supportable credit committee, supervisory committee, the subject of credit and background projections and assumptions must be investigations. The investigation report must submitted. and as chief operating officer/manager of the demonstrate each applicant’s ability to The business plan should contain, at a proposed credit union. effectively handle financial matters. minimum, the following elements: Subsequent organizational meetings may Employees and officials should also be • Mission statement; be held to discuss the progress of the charter competent, experienced, honest and of good • Analysis of market conditions, including investigation, to announce the proposed slate character. Factors that may lead to if applicable, geographic, demographic, of officials, and to respond to any questions disapproval of a prospective official or employment, income, housing, and other posed at these meetings. employee include criminal convictions, economic data; If NCUA approves the charter application, indictments, and acts of fraud and • Evidence of member support; the subscribers, as their final duty, will elect dishonesty. Further, factors such as serious • Goals for shares, loans, and for number the board of directors of the proposed federal or unresolved past due credit obligations and of members; credit union. The new board of directors will bankruptcies disclosed during credit checks • Financial services needed/desired; then appoint the supervisory committee. • may disqualify an individual. Financial services to be provided to V.B—Charter Application Documentation NCUA also needs reasonable assurance members of all segments within the field of that the management team will have the membership; V.B.1—General requisite skills—particularly in leadership • How/when services are to be As discussed previously in this Chapter, and accounting—and the commitment to implemented; the organizer of a federal credit union charter dedicate the time and effort needed to make • Organizational/management plan must, at a minimum, provide evidence that: the proposed federal credit union a success. addressing qualification and planned training • The group(s) possess an appropriate Section 701.14 of NCUA’s Rules and of officials/employees; common bond or the geographical area to be Regulations sets forth the procedures for • Continuity plan for directors, committee served is a well-defined local community, NCUA approval of officials of newly members and management staff; neighborhood, or rural district;

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• The subscribers, prospective officials, VI—Name Selection cases, NCUA will require the prospective and employees are of good character and It is the responsibility of the federal credit officials to adhere to certain operational fitness; and guidelines. Generally, the agreement is for a • union organizers or officials of an existing The establishment of the credit union is credit union to ensure that the proposed limited term of two to four years. A sample economically advisable. federal credit union name or federal credit Letter of Understanding and Agreement is As part of the application process, the union name change does not constitute an found in Appendix 2. organizer must submit the following forms, infringement on the name of any corporation VII.B—Regional Director Approval which are available in Appendix 4 of this in its trade area. This responsibility also Once approved, the board of directors of Manual: includes researching any service marks or • the newly formed federal credit union will Federal Credit Union Investigation trademarks used by any other corporation Report, NCUA 4001; receive a signed charter and standard bylaws (including credit unions) in its trade area. • Organization Certificate, NCUA 4008; from the regional director. Additionally, the NCUA will ensure, to the extent possible, • Report of Official and Agreement to officials will be advised of the name of the that the credit union’s name: Serve, NCUA 4012; examiner assigned responsibility for • Is not already being officially used by • Application and Agreements for supervising and examining the credit union. another federal credit union; Insurance of Accounts, NCUA 9500; and • Will not be confused with NCUA or VII.C—Regional Director Disapproval • Certification of Resolutions, NCUA 9501. another federal or state agency, or with Each of these forms is described in more When a regional director disapproves any another credit union; and charter application, in whole or in part, the detail in the following sections. • Does not include misleading or organizer will be informed in writing of the V.B.2—Federal Credit Union Investigation inappropriate language. specific reasons for the disapproval. Where Report, NCUA 4001 The last three words in the name of every applicable, the regional director will provide The application for a new federal credit credit union chartered by NCUA must be information concerning options or union will be submitted on NCUA 4001. ‘‘Federal Credit Union.’’ suggestions that the applicant could consider State-chartered credit unions applying for The word ‘‘community,’’ while not for gaining approval or otherwise acquiring conversion to a federal charter will use required, can only be included in the name credit union service. The letter of denial will NCUA 4000. (See Chapter 4 for a full of federal credit unions that have been include the procedures for appealing the discussion.) The organizer is required to granted a community charter. decision. certify the information and recommend VII—NCUA REVIEW approval or disapproval, based on the VII.D—Appeal of Regional Director Decision investigation of the request. VII.A—General If the regional director denies a charter V.B.3—Organization Certificate, NCUA 4008 Once NCUA receives a complete charter application, in whole or in part, that decision application package, an acknowledgment of may be appealed to the NCUA Board. An This document, which must be completed appeal must be sent to the appropriate receipt will be sent to the organizer. At some by the subscribers, includes the seven criteria regional office within 60 days of the date of point during the review process, a staff established by the Federal Credit Union Act. denial and must address the specific reasons member will be assigned to perform an on- NCUA staff assigned to the case will assist in for denial. The regional director will then site contact with the proposed officials and the proper completion of this document. forward the appeal to the NCUA Board. others having an interest in the proposed V.B.4—Report of Official and Agreement to NCUA central office staff will make an federal credit union. Serve, NCUA 4012 independent review of the facts and present NCUA staff will review the application the appeal with a recommendation to the This form documents general background package and verify its accuracy and NCUA Board. information of each official and employee of reasonableness. A staff member will inquire Before appealing, the prospective group the proposed federal credit union. Each into the financial management experience official and employee must complete and may, within 30 days of the denial, provide and the suitability and commitment of the supplemental information to the regional sign this form. The organizer must review proposed officials and employees, and will each of the NCUA 4012s for elements that director for reconsideration. A make an assessment of economic reconsideration will contain new and would prevent the prospective official or advisability. The staff member will also employee from serving. Further, such factors material evidence addressing the reasons for provide guidance to the subscribers in the the initial denial. The regional director will as serious, unresolved past due credit proper completion of the Organization obligations and bankruptcies disclosed have 30 days from the date of the receipt of Certificate, NCUA 4008. the request for reconsideration to make a during credit checks may disqualify an Credit and background investigations may individual. final decision. If the request is again denied, be conducted concurrently by NCUA with the applicant may proceed with the appeal V.B.5—Application and Agreements for other work being performed by the organizer process within 60 days of the date of the last Insurance of Accounts, NCUA 9500 and subscribers to reduce the likelihood of denial. A second request for reconsideration This document contains the agreements delays in the chartering process. will be treated as an appeal to the NCUA with which federal credit unions must The staff member will analyze the Board. comply in order to obtain National Credit prospective credit union’s business plan for VII.E—Commencement of Operations Union Share Insurance Fund (NCUSIF) realistic projections, attainable goals, coverage of member accounts. The document adequate service to all segments of the field Assistance in commencing operations is must be completed and signed by both the of membership, sufficient start-up capital, generally available through the various credit chief executive officer and chief financial and time commitment by the proposed union trade organizations listed in Appendix officer. A federal credit union must qualify officials and employees. Any concerns will 5. for federal share insurance. be reviewed with the organizer and discussed All new federal credit unions are also with the prospective credit union’s officials. encouraged to establish a mentor relationship V.B.6—Certification of Resolutions, NCUA Additional on-site contacts by NCUA staff with a knowledgeable, experienced credit 9501 may be necessary. The organizer and union individual or an existing, well- This document certifies that the board of subscribers will be expected to take the steps operated credit union. The mentor should directors of the proposed federal credit union necessary to resolve any issues or concerns. provide guidance and assistance to the new has resolved to apply for NCUSIF insurance Such resolution efforts may delay processing credit union through attendance at meetings of member accounts and has authorized the the application. and general oversight. Upon request, NCUA chief executive officer and recording officer NCUA staff will then make a will provide assistance in finding a qualified to execute the Application and Agreements recommendation to the regional director mentor. for Insurance of Accounts. Both the chief regarding the charter application. The executive officer and recording officer of the recommendation may include specific VIII—Future Supervision proposed federal credit union must sign this provisions to be included in a Letter of Each federal credit union will be examined form. Understanding and Agreement. In most regularly by NCUA to determine that it

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remains in compliance with applicable laws association, it will be designated as a federal credit union that adds an underserved and regulations and to determine that it does multiple common bond credit union. community to its field of membership. not pose undue risk to the NCUSIF. The Community: All community credit unions examiner will contact the credit union will be designated as such, followed by a II—Occupational Common Bond officials shortly after approval of the charter description of their geographic boundaries II.A.1—General in order to arrange for the initial examination (e.g. city or county). A single occupational common bond (usually within the first six months of Credit unions desiring to confirm or submit federal credit union may include in its field operation). an application to change their designations of membership all persons and entities who The examiner will be responsible for should contact the appropriate NCUA share that common bond. NCUA permits a monitoring the progress of the credit union regional office. person’s membership eligibility in a single and providing the necessary advice and XII—Foreign Branching occupational common bond group to be guidance to ensure it is in compliance with established in five ways: applicable laws and regulations. The Federal credit unions are permitted to • Employment (or a long-term contractual examiner will also monitor compliance with serve foreign nationals within their fields of relationship equivalent to employment) in a the terms of any required Letter of membership wherever they reside provided single corporation or other legal entity makes Understanding and Agreement. Typically, they have the ability, resources, and that person part of a single occupational the examiner will require the credit union to management expertise to serve such persons. common bond; submit copies of monthly board minutes and Before a credit union opens a branch outside • Employment in a corporation or other financial statements. the United States, it must submit an legal entity with a controlling ownership The Federal Credit Union Act requires all application to do so and have prior written interest (which shall not be less than 10 newly chartered credit unions, up to two approval of the regional director. A federal percent) in or by another legal entity makes years after the charter anniversary date, to credit union may establish a service facility that person part of a single occupational obtain NCUA approval prior to appointment on a United States military installation or common bond; of any new board member, credit or United States embassy without prior NCUA • Employment in a corporation or other supervisory committee member, or senior approval. legal entity which is related to another legal executive officer. Section 701.14 of the Chapter 2 entity (such as a company under contract and NCUA Rules and Regulations sets forth the possessing a strong dependency relationship notice and application requirements. If Field of Membership Requirements for with another company) makes that person NCUA issues a Notice of Disapproval, the Federal Credit Unions part of a single occupational common bond; newly chartered credit union is prohibited • Employment or attendance at a school I—Introduction from making the change. makes that person part of a single NCUA may disapprove an individual I.A.1—General occupational common bond (see Chapter 2, serving as a director, committee member or As set forth in Chapter 1, the Federal Section III.A.1); or senior executive officer if it finds that the • Employment in the same Trade, competence, experience, character, or Credit Union Act provides for three types of federal credit union charters—single Industry, or Profession (TIP) (see Chapter 2, integrity of the individual indicates it would Section II.A.2). not be in the best interests of the members common bond (occupational or associational), multiple common bond A geographic limitation is not a of the credit union or of the public to permit requirement for a single occupational the individual to be employed by or (multiple groups), and community. Section 109 (12 U.S.C. 1759) of the Federal Credit common bond. However, for purposes of associated with the credit union. If a Notice describing the field of membership, the of Disapproval is issued, the credit union Union Act sets forth the membership criteria for each of these three types of credit unions. geographic areas being served may be may appeal the decision to the NCUA Board. included in the charter. For example: The field of membership, which is • IX—Corporate Federal Credit Unions specified in Section 5 of the charter, defines Employees, officials, and persons who work regularly under contract in Miami, A corporate federal credit union is one that those persons and entities eligible for Florida, for ABC Corporation and is operated primarily for the purpose of membership. A single common bond federal subsidiaries; serving other credit unions. Corporate federal credit union consists of one group having a • Employees of ABC Corporation who are credit unions operate under and are common bond of occupation or association. paid from * * *; administered by the NCUA Office of A multiple common bond federal credit • Employees of ABC Corporation who are Corporate Credit Unions. union consists of more than one group, each supervised from * * *; of which has a common bond of occupation • X—Groups Seeking Credit Union Service or association. A community federal credit Employees of ABC Corporation who are headquartered in * * *; and/or NCUA will attempt to assist any group in union consists of persons or organizations • chartering a credit union or joining an within a well-defined local community, Employees of ABC Corporation who existing credit union. If the group is not neighborhood, or rural district. work in the United States. eligible for federal credit union service, Once chartered, a federal credit union can The corporation or other legal entity (i.e., NCUA will refer the group to the appropriate amend its field of membership; however, the the employer) may also be included in the state supervisory authority where different same common bond or community common bond—e.g., ‘‘ABC Corporation.’’ requirements may apply. requirements for chartering the credit union The corporation or legal entity will be must be satisfied. Since there are differences defined in the last clause in Section 5 of the XI—Field of Membership Designations in the three types of charters, special rules, credit union’s charter. NCUA will designate a credit union based which are fully discussed in the following A charter applicant must provide on the following criteria: sections of this Chapter, may apply to each. documentation to establish that the single Single Occupational: If a credit union occupational common bond requirement has I.A.2—Special Low-Income Rules serves a single occupational sponsor, such as been met. ABC Corporation, it will be designated as an Generally, federal credit unions can only Some examples of single occupational occupational credit union. A single grant loans and provide services to persons common bonds are: occupational common bond credit union may who have joined the credit union. The • Employees of the Hunt Manufacturing also serve a trade, industry, or profession Federal Credit Union Act states that one of Company who work in West Chester, (TIP), such as all teachers. the purposes of federal credit unions is ‘‘to Pennsylvania (common bond—same Single Associational: If a credit union serve the productive and provident credit employer with geographic definition); serves a single associational sponsor, such as needs of individuals of modest means.’’ • Employees of the Buffalo Manufacturing the Knights of Columbus, it will be Although field of membership requirements Company who work in the United States designated as an associational credit union. are applicable, special rules set forth in (common bond—same employer with Multiple Common Bond: If a credit union Chapter 3 may apply to low-income geographic definition); serves more than one group, each of which designated credit unions and those credit • Employees, elected and appointed has a common bond of occupation and/or unions assisting low-income groups or to a officials of municipal government in Parma,

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Ohio (common bond—same employer with able to be served by the credit union because employees in the industry. For example, an geographic definition); they work in the same industry and have the airline service TIP (industry) can serve an • Employees of Johnson Soap Company same commonality of interests. airline carrier (corporate account); however, and its majority owned subsidiary, Johnson If a credit union wants to include the a nurses TIP (profession) could not serve a Toothpaste Company, who work in, are paid airline services industry, it can serve airline hospital (corporate account) because not from, are supervised from, or are and airport personnel but not passengers. everyone working in the hospital shares the headquartered in Augusta and Portland, Clients or customers of the TIP are not same profession. Maine (common bond—parent and eligible for credit union membership (e.g., If a TIP designated credit union wishes to subsidiary company with geographic patients in hospitals). Any company that is convert to a different TIP or employer-based definition); involved in more than one industry cannot occupational common bond, or different • Employees of MMLLJS contractor who be included in an industry TIP (e.g., a charter type, it only retains members of work regularly at the U.S. Naval Shipyard in company that makes tobacco products, food record after the conversion. The regional Bremerton, Washington (common bond— products, and electronics). However, director, for safety and soundness reasons, employees of contractors with geographic employees of these companies may be may approve a TIP designated credit union definition); eligible for membership in a variety of trade/ to convert to its original field of membership. • Employees, doctors, medical staff, profession occupational common bond TIPs. technicians, medical and nursing students Since a TIP must be narrowly defined, it II.B—Occupational Common Bond who work in or are paid from the Newport cannot include third party vendors and other Amendments Beach Medical Center, Newport Beach, suppliers. For example, the steel suppliers to II.B.1—General California (single corporation with the automobile industry would not be part of Section 5 of every single occupational geographic definition); the automobile industry TIP. However, the • federal credit union’s charter defines the Employees of JLS, Incorporated and automobile industry includes manufacturers field of membership the credit union can MJM, Incorporated working for the LKM Joint and their automobile dealerships. legally serve. Only those persons or legal Venture Company in Catalina Island, In general, except for credit unions entities specified in the field of membership California (common bond—same employer— currently serving a national field of can be served. There are a number of ongoing dependent relationship); membership or operating in multiple states, instances in which Section 5 must be • Employees of and students attending a geographic limitation is required for a TIP amended by NCUA. Georgetown University (common bond— credit union. The geographic limitation will First, a group sharing the credit union’s same occupation); be part of the credit union’s charter and common bond is added to the field of • Employees of all the schools supervised generally correspond to its current or membership. This may occur through various by the Timbrook Board of Education in planned operational area. More than one ways including agreement between the group Timbrook, Georgia (common bond—same federal credit union may serve the same and the credit union directly, or through a employer); or trade, industry, or profession, even if both merger, corporate acquisition, purchase and • All licensed nurses in Fairfax County, credit unions are in the same geographic assumption (P&A), or spin-off. Virginia (occupational common bond TIP). location. Some examples of insufficiently defined Second, if the entire field of membership This type of occupational common bond is is acquired by another corporation, the credit single occupational common bonds are: only available to single common bond credit • union can serve the employees of the new Employees of manufacturing firms in unions. A TIP cannot be added to a multiple Seattle, Washington (no defined occupational corporation and any subsidiaries after common bond or community field of receiving NCUA approval. sponsor; overly broad TIP); membership. • Persons employed or working in Third, a federal credit union qualifies to To obtain a TIP designation, the proposed change its common bond from: Chicago, Illinois (no occupational common or existing credit union must submit a • bond). A single occupational common bond to request to the regional director. New charter a single associational common bond; II.A.2—Trade, Industry, or Profession applicants must follow the documentation • A single occupational common bond to A common bond based on employment in requirements in Chapter 1. New charter a community charter; or a trade, industry, or profession can include applicants and existing credit unions must • A single occupational common bond to employment at any number of corporations submit a business plan on how the credit a multiple common bond. or other legal entities that—while not under union will serve the group with the request Fourth, a federal credit union removes a common ownership—have a common bond to serve the TIP. The business plan also must portion of the group from its field of by virtue of producing similar products, address how the credit union will verify the membership through agreement with the providing similar services, or participating in TIP. Examples of such verification include group, a spin-off, or because a portion of the the same type of business. state licenses, professional licenses, group is no longer in existence. While proposed or existing single common organizational memberships, pay statements, An existing single occupational common bond credit unions have some latitude in union membership, or employer certification. bond federal credit union that submits a defining a trade, industry, or profession The regional director must approve this type request to amend its charter must provide occupational common bond, it cannot be of field of membership before a credit union documentation to establish that the defined so broadly as to include groups in can serve a TIP. Credit unions converting to occupational common bond requirement has fields which are not closely related. For a TIP can retain members of record but been met. The regional director must approve example, the manufacturing industry, energy cannot add new members from its previous all amendments to an occupational common industry, communications industry, retail group or groups, unless it is part of the TIP. bond credit union’s field of membership. industry, or entertainment industry would Section II.B on Occupational Common II.B.2—Corporate Restructuring not qualify as a TIP because each industry Bond Amendments does not apply to a TIP lacks the necessary commonality. However, common bond. Removing or changing a If the single common bond group that textile workers, realtors, nurses, teachers, geographical limitation will be processed as comprises a federal credit union’s field of police officers, or U.S. military personnel are a housekeeping amendment. If safety and membership undergoes a substantial closely related and each would qualify as a soundness concerns are present, the regional restructuring, the result is often that portions TIP. director may require additional information of the group are sold or spun off. This The common bond relationship must be before the request can be processed. requires a change to the credit union’s field one that demonstrates a narrow commonality Section II.H, on Other Persons Eligible for of membership. NCUA will not permit a of interests within a specific trade, industry, Credit Union Membership, applies to TIP single common bond credit union to or profession. If a credit union wants to serve based credit unions except for the corporate maintain in its field of membership a sold or a physician TIP, it can serve all physicians, account provision which only applies to spun-off group to which it has been but that does not mean it can also serve all industry based TIPs. Credit unions with providing service unless the group otherwise clerical staff in the physicians’ offices. industry based TIPs may include qualifies for membership in the credit union However, if the TIP is based on the health corporations as members because they have or the credit union converts to a multiple care industry, then clerical staff would be the same commonality of interests as all common bond credit union.

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If the group comprising the single common II.C.3—Regional Director Approval of the regional director of the merging credit bond of the credit union merges with, or is If the regional director approves the union, and, as applicable, the state acquired by, another group, the credit union requested amendment, the credit union will regulators. can serve the new group resulting from the be issued an amendment to Section 5 of its If a single occupational credit union wants merger or acquisition after receiving a charter. to merge into a multiple common bond or housekeeping amendment. community credit union, Section IV.D or II.C.4—Regional Director Disapproval Section V.D of this Chapter, respectively, II.B.3—Economic Advisability When a regional director disapproves any should be reviewed. Prior to granting a common bond application, in whole or in part, to amend the II.D.2—Emergency Mergers expansion, NCUA will examine the field of membership under this chapter, the amendment’s likely effect on the credit applicant will be informed in writing of the: An emergency merger may be approved by union’s operations and financial condition. • Specific reasons for the action; NCUA without regard to common bond or In most cases, the information needed for • Options to consider, if appropriate, for other legal constraints. An emergency merger analyzing the effect of adding a particular gaining approval; and involves NCUA’s direct intervention and group will be available to NCUA through the • Appeal procedure. approval. The credit union to be merged examination and financial and statistical must either be insolvent or likely to become II.C.5—Appeal of Regional Director Decision insolvent, and NCUA must determine that: reports; however, in particular cases, a • regional director may require additional If a field of membership expansion request, An emergency requiring expeditious information prior to making a decision. merger, or spin-off is denied by the regional action exists; director, the federal credit union may appeal • Other alternatives are not reasonably II.B.4—Documentation Requirements the decision to the NCUA Board. An appeal available; and A federal credit union requesting a must be sent to the appropriate regional • The public interest would best be served common bond expansion must submit an office within 60 days of the date of denial, by approving the merger. Application for Field of Membership and must address the specific reason(s) for If not corrected, conditions that could lead Amendment (NCUA 4015–EZ) to the the denial. The regional director will then to insolvency include, but are not limited to: appropriate NCUA regional director. An forward the appeal to the NCUA Board. • Abandonment by management; authorized credit union representative must NCUA central office staff will make an • Loss of sponsor; • sign the request. independent review of the facts and present Serious and persistent record keeping the appeal to the Board with a problems; or II.C—NCUA’s Procedures for Amending the recommendation. • Serious and persistent operational Field of Membership Before appealing, the credit union may, concerns. II.C.1—General within 30 days of the denial, provide In an emergency merger situation, NCUA supplemental information to the regional will take an active role in finding a suitable All requests for approval to amend a director for reconsideration. A merger partner (continuing credit union). federal credit union’s charter must be reconsideration will contain new and NCUA is primarily concerned that the submitted to the appropriate regional material evidence addressing the reasons for continuing credit union has the financial director. the initial denial. The regional director will strength and management expertise to absorb II.C.2—Regional Director’s Decision have 30 days from the date of the receipt of the troubled credit union without adversely NCUA staff will review all amendment the request for reconsideration to make a affecting its own financial condition and requests in order to ensure compliance with final decision. If the request is again denied, stability. NCUA policy. the applicant may proceed with the appeal As a stipulated condition to an emergency Before acting on a proposed amendment, process within 60 days of the date of the last merger, the field of membership of the the regional director may require an on-site denial. A second request for reconsideration merging credit union may be transferred review. In addition, the regional director will be treated as an appeal to the NCUA intact to the continuing federal credit union without regard to any common bond may, after taking into account the Board. restrictions. Under this authority, therefore, a significance of the proposed field of II.D—Mergers, Purchase and Assumptions, single occupational common bond federal membership amendment, require the and Spin-Offs credit union may take into its field of applicant to submit a business plan In general, other than the addition of membership any dissimilar charter type. addressing specific issues. common bond groups, there are three The common bond characteristic of the The financial and operational condition of additional ways a federal credit union with continuing credit union in an emergency the requesting credit union will be a single occupational common bond can merger does not change. That is, even though considered in every instance. NCUA will expand its field of membership: the merging credit union is a multiple carefully consider the economic advisability • By taking in the field of membership of common bond or community, the continuing of expanding the field of membership of a another credit union through a common bond credit union will remain a single common credit union with financial or operational or emergency merger; bond credit union. Similarly, if the merging problems. • By taking in the field of membership of credit union is also an unlike single common In most cases, field of membership another credit union through a common bond bond, the continuing credit union will amendments will only be approved for credit or emergency purchase and assumption remain a single common bond credit union. unions that are operating satisfactorily. (P&A); or Future common bond expansions will be Generally, if a federal credit union is having • By taking a portion of another credit based on the continuing credit union’s difficulty providing service to its current union’s field of membership through a original single common bond. membership, or is experiencing financial or common bond spin-off. Emergency mergers involving federally other operational problems, it may have more insured credit unions in different NCUA II.D.1—Mergers difficulty serving an expanded field of regions must be approved by the regional membership. Generally, the requirements applicable to director where the continuing credit union is Occasionally, however, an expanded field field of membership expansions found in this headquartered, with the concurrence of the of membership may provide the basis for chapter apply to mergers where the regional director of the merging credit union reversing current financial problems. In such continuing credit union has a federal charter. and, as applicable, the state regulators. cases, an amendment to expand the field of That is, the two credit unions must share a membership may be granted notwithstanding common bond. II.D.3—Purchase and Assumption (P&A) the credit union’s financial or operational Where the merging credit union is state- Another alternative for acquiring the field problems. The applicant credit union must chartered, the common bond rules applicable of membership of a failing credit union is clearly establish that the expanded field of to a federal credit union apply. through a consolidation known as a P&A. A membership is in the best interest of the Mergers must be approved by the NCUA P&A has limited application because, in most members and will not increase the risk to the regional director where the continuing credit cases, the failing credit union must be placed NCUSIF. union is headquartered, with the concurrence into involuntary liquidation. In the few

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instances where a P&A may be appropriate, favor, against, or not at all) will be transferred a multiple common bond charter by adding the assuming federal credit union, as with if the spin-off is approved by the voting a non-common bond group that is within a emergency mergers, may acquire the entire membership. Voting requirements for reasonable proximity of a service facility. field of membership if the emergency merger federally insured state credit unions are Groups within the existing charter may be criteria are satisfied. However, if the P&A governed by state law. retained and continue to be served. However, does not meet the emergency merger criteria, Spin-offs involving federally insured credit future amendments, including any it must be processed under the common bond unions in different NCUA regions must be expansions of the original single common requirements. approved by all regional directors where the bond group, must be done in accordance In a P&A processed under the emergency credit unions are headquartered and the state with multiple common bond policy. criteria, specified loans, shares, and certain regulators, as applicable. Spin-offs in the other designated assets and liabilities, same region also require approval by the state II.G—Removal of Groups From the Field of without regard to common bond restrictions, regulator, as applicable. Membership may also be acquired without changing the A credit union may request removal of a II.E—Overlaps character of the continuing federal credit portion of the common bond group from its union for purposes of future field of II.E.1—General field of membership for various reasons. The membership amendments. An overlap exists when a group of persons most common reasons for this type of If the purchased and/or assumed credit is eligible for membership in two or more amendment are: union’s field of membership does not share credit unions. NCUA will permit single • The group is within the field of a common bond with the purchasing and/or occupational federal credit unions to overlap membership of two credit unions and one assuming credit union, then the continuing any other charter without performing an wishes to discontinue service; credit union’s original common bond will be overlap analysis. • The federal credit union cannot continue controlling for future common bond II.E.2—Organizational Restructuring to provide adequate service to the group; expansions. • The group has ceased to exist; P&As involving federally insured credit A federal credit union’s field of • The group does not respond to repeated unions in different NCUA regions must be membership will always be governed by the requests to contact the credit union or refuses approved by the regional director where the common bond descriptions contained in to provide needed support; or continuing credit union is headquartered, Section 5 of its charter. Where a sponsor • The group initiates action to be removed with the concurrence of the regional director organization expands its operations from the field of membership. of the purchased and/or assumed credit internally, by acquisition or otherwise, the When a federal credit union requests an union and, as applicable, the state regulators. credit union may serve these new entrants to amendment to remove a group from its field II.D.4—Spin-Offs its field of membership if they are part of the of membership, the regional director will common bond described in Section 5. NCUA determine why the credit union desires to A spin-off occurs when, by agreement of will permit a complete overlap of the credit the parties, a portion of the field of remove the group. If the regional director unions’ fields of membership. concurs with the request, membership will membership, assets, liabilities, shares, and If a sponsor organization sells off a group, capital of a credit union are transferred to a continue for those who are already members new members can no longer be served unless under the ‘‘once a member, always a new or existing credit union. A spin-off is they otherwise qualify for membership in the unique in that usually one credit union has member’’ provision of the Federal Credit credit union or it converts to a multiple Union Act. a field of membership expansion and the common bond charter. other loses a portion of its field of Credit unions must submit documentation II.H—Other Persons Eligible for Credit Union membership. explaining the restructuring and providing Membership All common bond requirements apply information regarding the new organizational A number of persons, by virtue of their regardless of whether the spun-off group structure. becomes a new credit union or goes to an close relationship to a common bond group, existing federal charter. II.E.3—Exclusionary Clauses may be included, at the charter applicant’s The request for approval of a spin-off must An exclusionary clause is a limitation option, in the field of membership. These precluding the credit union from serving the include the following: be supported with a plan that addresses, at • a minimum: primary members of a portion of a group Spouses of persons who died while • Why the spin-off is being requested; otherwise included in its field of within the field of membership of this credit • What part of the field of membership is membership. NCUA no longer grants union; • to be spun off; exclusionary clauses. Those granted prior to Employees of this credit union; • • Whether the affected credit unions have the adoption of this new chartering manual Persons retired as pensioners or a common bond (applies only to single will remain in effect unless the credit unions annuitants from the above employment; • occupational credit unions); agree to remove them or one of the affected Volunteers; • • Which assets, liabilities, shares, and credit unions submits a housekeeping Members of the immediate family or capital are to be transferred; amendment to have it removed. household; • • The financial impact the spin-off will Organizations of such persons; and II.F—Charter Conversion have on the affected credit unions; • Corporate or other legal entities in this • The ability of the acquiring credit union A single occupational common bond charter. to effectively serve the new members; federal credit union may apply to convert to Immediate family is defined as spouse, • The proposed spin-off date; and a community charter provided the field of child, sibling, parent, grandparent, or • Disclosure to the members of the membership requirements of the community grandchild. This includes stepparents, requirements set forth above. charter are met. Groups within the existing stepchildren, stepsiblings, and adoptive The spin-off request must also include charter which cannot qualify in the new relationships. current financial statements from the affected charter cannot be served except for members Household is defined as persons living in credit unions and the proposed voting ballot. of record, or groups or communities obtained the same residence maintaining a single For federal credit unions spinning off a in an emergency merger or P&A. A credit economic unit. group, membership notice and voting union must notify all groups that will be Membership eligibility is extended only to requirements and procedures are the same as removed from the field of membership as a individuals who are members of an for mergers (see Part 708 of the NCUA Rules result of conversion. Members of record can ‘‘immediate family or household’’ of a credit and Regulations), except that only the continue to be served. Also, in order to union member. It is not necessary for the members directly affected by the spin-off— support a case for a conversion, the applicant primary member to join the credit union in those whose shares are to be transferred—are federal credit union may be required to order for the immediate family or household permitted to vote. Members whose shares are develop a detailed business plan as specified member of the primary member to join, not being transferred will not be afforded the in Chapter 2, Section V.A.3. provided the immediate family or household opportunity to vote. All members of the A single occupational common bond clause is included in the field of group to be spun off (whether they voted in federal credit union may apply to convert to membership. However, it is necessary for the

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immediate family member or household consider the totality of the circumstances, equivalent documentation, including any member to first join in order for that person’s which includes: legal documents required by the state or immediate family member or household • Whether members pay dues; other governing authority. member to join the credit union. A credit • Whether members participate in the The associational sponsor itself may also union can adopt a more restrictive definition furtherance of the goals of the association; be included in the field of membership—e.g., of immediate family or household. • Whether the members have voting rights. ‘‘Sprocket Association’’—and will be shown Volunteers, by virtue of their close To meet this requirement, members need not in the last clause of the field of membership. relationship with a sponsor group, may be vote directly for an officer, but may vote for III.A.2—Subsequent Changes to Association’s included. Examples include volunteers a delegate who in turn represents the Bylaws working at a hospital or school. members’ interests; Under the Federal Credit Union Act, once • Whether the association maintains a If the association’s membership or a person becomes a member of the credit membership list; geographical definitions in its charter and union, such person may remain a member of • Whether the association sponsors other bylaws are changed subsequent to the the credit union until the person chooses to activities; effective date stated in the field of withdraw or is expelled from the • The association’s membership eligibility membership, the credit union must submit membership of the credit union. This is requirements; and the revised charter or bylaws for NCUA’s commonly referred to as ‘‘once a member, • The frequency of meetings. consideration and approval prior to serving always a member.’’ The ‘‘once a member, A support group whose members are members of the association added as a result always a member’’ provision does not continually changing or whose duration is of the change. prevent a credit union from restricting temporary may not meet the single III.A.3—Sample Single Associational services to members who are no longer associational common bond criteria. Each Common Bonds within the field of membership. class of member will be evaluated based on Some examples of associational common the totality of the circumstances. Individuals III—Associational Common Bond bonds are: or honorary members who only make • Regular members of Locals 10 and 13, III.A.1—General donations to the association are not eligible IBEW, in Florida, who qualify for A single associational federal credit union to join the credit union. membership in accordance with their charter may include in its field of membership, Educational groups—for example, parent- and bylaws in effect on May 20, 2001; regardless of location, all members and teacher organizations, alumni associations, • Members of the Hoosier Farm Bureau in employees of a recognized association. A and student organizations in any school— Grant, Logan, or Lee Counties of Indiana, single associational common bond consists of and church groups may constitute who qualify for membership in accordance individuals (natural persons) and/or groups associational common bonds. with its charter and bylaws in effect on (non-natural persons) whose members Student groups (e.g., students enrolled at a March 7, 1997; participate in activities developing common public, private, or parochial school) may • Members of the Shalom Congregation in loyalties, mutual benefits, and mutual constitute either an associational or Chevy Chase, Maryland; interests. Separately chartered associational occupational common bond. For example, • Regular members of the Corporate groups can establish a single common bond students enrolled at a church sponsored Executives Association, located in relationship if they are integrally related and school could share a single associational Westchester, New York, who qualify for share common goals and purposes. For common bond with the members of that membership in accordance with its charter example, two or more churches of the same church and may qualify for a federal credit and bylaws in effect on December 1, 1997; denomination, Knights of Columbus union charter. Similarly, students enrolled at • Members of the University of Wisconsin Councils, or locals of the same union can a university, as a group by itself, or in Alumni Association, located in Green Bay, qualify as a single associational common conjunction with the faculty and employees Wisconsin; bond. of the school, could share a single • Members of the Marine Corps Reserve Individuals and groups eligible for occupational common bond and may qualify Officers Association; or membership in a single associational credit for a federal credit union charter. • Members of St. John’s Methodist Church union can include the following: The terminology ‘‘Alumni of Jacksonville and St. Luke’s Methodist Church, located in • Natural person members of the State University’’ is insufficient to Toledo, Ohio. association (for example, members of a union demonstrate an associational common bond. Some examples of insufficiently defined or church members); To qualify as an association, the alumni single associational common bonds are: • Non-natural person members of the association must meet the requirements for • All Lutherans in the United States (too association; an associational common bond. The alumni broadly defined); or • Employees of the association (for of a school must first join the alumni • Veterans of U.S. military service (group example, employees of the labor union or association, and not merely be alumni of the is too broadly defined; no formal association employees of the church); and school to be eligible for membership. of all members of the group). • The association. Homeowner associations, tenant groups, Some examples of unacceptable single Generally, a single associational common consumer groups, and other groups of associational common bonds are: bond does not include a geographic persons having an ‘‘interest in’’ a particular • Alumni of Amos University (no formal definition and can operate nationally. cause and certain consumer cooperatives association); However, a proposed or existing federal may also qualify as an association. • Customers of Fleetwood Insurance credit union may limit its field of Associations based primarily on a client- Company (policyholders or primarily membership to a single association or customer relationship do not meet customer/client relationships do not meet geographic area. NCUA may impose a associational common bond requirements. associational standards); geographic limitation if it is determined that However, having an incidental client- • Employees of members of the Reston, the applicant credit union does not have the customer relationship does not preclude an Virginia Chamber of Commerce (not a ability to serve a larger group or there are associational charter as long as the sufficiently close tie to the associational other operational concerns. All single associational common bond requirements are common bond); or associational common bonds should include met. For example, a fraternal association that • Members of St. John’s Lutheran Church a definition of the group that may be served offers insurance, which is not a condition of and St. Mary’s Catholic Church located in based on the association’s charter, bylaws, membership, may qualify as a valid Anniston, Alabama (churches are not of the and any other equivalent documentation. associational common bond. same denomination). The common bond for an associational Applicants for a single associational III.B—Associational Common Bond group cannot be established simply on the common bond federal credit union charter or Amendments basis that the association exists. In a field of membership amendment to include determining whether a group satisfies an association must provide, at the request of III.B.1—General associational common bond requirements for the regional director, a copy of the Section 5 of every associational federal a federal credit union charter, NCUA will association’s charter, bylaws, or other credit union’s charter defines the field of

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membership the credit union can legally III.C—NCUA Procedures for Amending the Before appealing, the credit union may, serve. Only those persons who, or legal Field of Membership within 30 days of the denial, provide entities that, join the credit union and are III.C.1—General supplemental information to the regional specified in the field of membership can be director for reconsideration. A served. There are three instances in which All requests for approval to amend a reconsideration will contain new and Section 5 must be amended by NCUA. federal credit union’s charter must be material evidence addressing the reasons for First, a group that shares the credit union’s submitted to the appropriate regional the initial denial. The regional director will common bond is added to the field of director. have 30 days from the date of the receipt of membership. This may occur through various III.C.2—Regional Director’s Decision the request for reconsideration to make a ways including agreement between the group NCUA staff will review all amendment final decision. If the request is again denied, and the credit union directly, or through a requests in order to ensure conformance to the applicant may proceed with the appeal merger, purchase and assumption (P&A), or NCUA policy. process within 60 days of the date of the last spin-off. Before acting on a proposed amendment, denial. A second request for reconsideration Second, a federal credit union qualifies to the regional director may require an on-site will be treated as an appeal to the NCUA change its common bond from: Board. • review. In addition, the regional director A single associational common bond to may, after taking into account the a single occupational common bond; III.D—Mergers, Purchase and Assumptions, • significance of the proposed field of and Spin-Offs A single associational common bond to membership amendment, require the a community charter; or In general, other than the addition of • applicant to submit a business plan A single associational common bond to addressing specific issues. common bond groups, there are three a multiple common bond. The financial and operational condition of additional ways a federal credit union with Third, a federal credit union removes a the requesting credit union will be a single associational common bond can portion of the group from its field of expand its field of membership: considered in every instance. The economic • membership through agreement with the advisability of expanding the field of By taking in the field of membership of group, a spin-off, or a portion of the group membership of a credit union with financial another credit union through a common bond is no longer in existence. or emergency merger; or operational problems must be carefully • An existing single associational federal considered. By taking in the field of membership of credit union that submits a request to amend In most cases, field of membership another credit union through a common bond its charter must provide documentation to amendments will only be approved for credit or emergency purchase and assumption establish that the associational common bond (P&A); or unions that are operating satisfactorily. • requirement has been met. The regional Generally, if a federal credit union is having By taking a portion of another credit director must approve all amendments to an difficulty providing service to its current union’s field of membership through a associational common bond credit union’s membership, or is experiencing financial or common bond spin-off. field of membership. other operational problems, it may have more III.D.1—Mergers III.B.2—Organizational Restructuring difficulty serving an expanded field of Generally, the requirements applicable to If the single common bond group that membership. field of membership expansions found in this comprises a federal credit union’s field of Occasionally, however, an expanded field section apply to mergers where the membership undergoes a substantial of membership may provide the basis for continuing credit union is a federal charter. restructuring, the result is often that portions reversing current financial problems. In such That is, the two credit unions must share a of the group are sold or spun off. This is an cases, an amendment to expand the field of common bond. event requiring a change to the credit union’s membership may be granted notwithstanding Where the merging credit union is state- field of membership. NCUA may not permit the credit union’s financial or operational chartered, the common bond rules applicable a single associational credit union to problems. The applicant credit union must to a federal credit union apply. maintain in its field of membership a sold or clearly establish that the expanded field of Mergers must be approved by the NCUA spun-off group to which it has been membership is in the best interest of the regional director where the continuing credit providing service unless the group otherwise members and will not increase the risk to the union is headquartered, with the concurrence qualifies for membership in the credit union NCUSIF. of the regional director of the merging credit or the credit union converts to a multiple III.C.3—Regional Director Approval union, and, as applicable, the state common bond credit union. If the regional director approves the regulators. If the group comprising the single common requested amendment, the credit union will If a single associational credit union wants bond of the credit union merges with, or is be issued an amendment to Section 5 of its to merge into a multiple common bond or acquired by, another group, the credit union charter. community credit union, Section IV.D or can serve the new group resulting from the Section V.D of this Chapter, respectively, III.C.4—Regional Director Disapproval merger or acquisition after receiving a should be reviewed. housekeeping amendment. When a regional director disapproves any III.D.2—Emergency Mergers application, in whole or in part, to amend the III.B.3—Economic Advisability field of membership under this chapter, the An emergency merger may be approved by Prior to granting a common bond applicant will be informed in writing of the: NCUA without regard to common bond or expansion, NCUA will examine the • Specific reasons for the action; other legal constraints. An emergency merger amendment’s likely impact on the credit • Options to consider, if appropriate, for involves NCUA’s direct intervention and union’s operations and financial condition. gaining approval; and approval. The credit union to be merged In most cases, the information needed for • Appeal procedures. must either be insolvent or likely to become insolvent, and NCUA must determine that: analyzing the effect of adding a particular III.C.5—Appeal of Regional Director Decision • group will be available to NCUA through the An emergency requiring expeditious If a field of membership expansion request, action exists; examination and financial and statistical • reports; however, in particular cases, a merger, or spin-off is denied by the regional Other alternatives are not reasonably director, the federal credit union may appeal available; and regional director may require additional • information prior to making a decision. the decision to the NCUA Board. An appeal The public interest would best be served must be sent to the appropriate regional by approving the merger. III.B.4—Documentation Requirements office within 60 days of the date of denial If not corrected, conditions that could lead A federal credit union requesting a and must address the specific reason(s) for to insolvency include, but are not limited to: common bond expansion must submit an the denial. The regional director will then • Abandonment by management; Application for Field of Membership forward the appeal to the NCUA Board. • Loss of sponsor; Amendment (NCUA 4015–EZ) to the NCUA central office staff will make an • Serious and persistent record keeping appropriate NCUA regional director. An independent review of the facts and present problems; or authorized credit union representative must the appeal to the NCUA Board with a • Serious and persistent operational sign the request. recommendation. concerns.

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In an emergency merger situation, NCUA III.D.4—Spin-Offs its field of membership if they are part of the will take an active role in finding a suitable A spin-off occurs when, by agreement of common bond described in Section 5. NCUA merger partner (continuing credit union). the parties, a portion of the field of will permit a complete overlap of the credit NCUA is primarily concerned that the membership, assets, liabilities, shares, and unions’ fields of membership. If a sponsor continuing credit union has the financial capital of a credit union are transferred to a organization sells off a group, new members strength and management expertise to absorb new or existing credit union. A spin-off is can no longer be served unless they the troubled credit union without adversely unique in that usually one credit union has otherwise qualify for membership in the affecting its own financial condition and a field of membership expansion and the credit union or it converts to a multiple stability. other loses a portion of its field of common bond. As a stipulated condition to an emergency membership. Credit unions must submit documentation merger, the field of membership of the All common bond requirements apply explaining the restructuring and providing merging credit union may be transferred regardless of whether the spun-off group information regarding the new organizational intact to the continuing federal credit union becomes a new credit union or goes to an structure. without regard to any common bond existing federal charter. III.E.3—Exclusionary Clauses restrictions. Under this authority, therefore, a The request for approval of a spin-off must An exclusionary clause is a limitation single associational common bond federal be supported with a plan that addresses, at precluding the credit union from serving the credit union may take into its field of a minimum: primary members of a portion of a group membership any dissimilar charter type. • Why the spin-off is being requested; • otherwise included in its field of The common bond characteristic of the What part of the field of membership is membership. NCUA no longer grants continuing credit union in an emergency to be spun off; • exclusionary clauses. Those granted prior to merger does not change. That is, even though Whether the affected credit unions have the adoption of this new chartering manual the merging credit union is a multiple the same common bond (applies only to will remain in effect unless the credit unions common bond or community, the continuing single associational credit unions); • agree to remove them or one of the affected credit union will remain a single common Which assets, liabilities, shares, and credit unions submits a housekeeping bond credit union. Similarly, if the merging capital are to be transferred; amendment to have it removed. credit union is an unlike single common • The financial impact the spin-off will bond, the continuing credit union will have on the affected credit unions; III.F—Charter Conversions • remain a single common bond credit union. The ability of the acquiring credit union A single associational common bond Future common bond expansions will be to effectively serve the new members; federal credit union may apply to convert to • based on the continuing credit union’s single The proposed spin-off date; and a community charter provided the field of • common bond. Disclosure to the members of the membership requirements of the community Emergency mergers involving federally requirements set forth above. charter are met. Groups within the existing insured credit unions in different NCUA The spin-off request must also include charter which cannot qualify in the new regions must be approved by the regional current financial statements from the affected charter cannot be served except for members director where the continuing credit union is credit unions and the proposed voting ballot. of record, or groups or communities obtained headquartered, with the concurrence of the For federal credit unions spinning off a in an emergency merger or P&A. A credit regional director of the merging credit union group, membership notice and voting union must notify all groups that will be and, as applicable, the state regulators. requirements and procedures are the same as removed from the field of membership as a for mergers (see Part 708 of the NCUA Rules III.D.3—Purchase and Assumption (P&A) result of conversion. Members of record can and Regulations), except that only the continue to be served. Also, in order to Another alternative for acquiring the field members directly affected by the spin-off— support a case for a conversion, the applicant of membership of a failing credit union is those whose shares are to be transferred—are federal credit union may be required to through a consolidation known as a P&A. A permitted to vote. Members whose shares are develop a detailed business plan as specified P&A has limited application because, in most not being transferred will not be afforded the in Chapter 2, Section V.A.3. cases, the failing credit union must be placed opportunity to vote. All members of the A single associational common bond into involuntary liquidation. In the few group to be spun off (whether they voted in federal credit union may apply to convert to instances where a P&A may be appropriate, favor, against, or not at all) will be transferred a multiple common bond charter by adding the assuming federal credit union, as with if the spin-off is approved by the voting a non-common bond group that is within a emergency mergers, may acquire the entire membership. Voting requirements for reasonable proximity of a service facility. field of membership if the emergency merger federally insured state credit unions are Groups within the existing charter may be criteria are satisfied. However, if the P&A governed by state law. retained and continue to be served. However, does not meet the emergency merger criteria, Spin-offs involving federally insured credit future amendments, including any it must be processed under the common bond unions in different NCUA regions must be expansions of the original single common requirements. approved by all regional directors where the bond group, must be done in accordance In a P&A processed under the emergency credit unions are headquartered and the state with multiple common bond policy. criteria, specified loans, shares, and certain regulators, as applicable. Spin-offs in the other designated assets and liabilities, same region also require approval by the state III.G—Removal of Groups From the Field of without regard to common bond restrictions, regulator, as applicable. Membership may also be acquired without changing the A credit union may request removal of a character of the continuing federal credit III.E—Overlaps portion of the common bond group from its union for purposes of future field of III.E.1—General field of membership for various reasons. The membership amendments. An overlap exists when a group of persons most common reasons for this type of If the purchased and/or assumed credit amendment are: is eligible for membership in two or more • union’s field of membership does not share credit unions. NCUA will permit single The group is within the field of a common bond with the purchasing and/or associational federal credit unions to overlap membership of two credit unions and one assuming credit union, then the continuing wishes to discontinue service; any other charters without performing an • credit union’s original common bond will be overlap analysis. The federal credit union cannot continue controlling for future common bond to provide adequate service to the group; expansions. III.E.2—Organizational Restructuring • The group has ceased to exist; P&As involving federally insured credit A federal credit union’s field of • The group does not respond to repeated unions in different NCUA regions must be membership will always be governed by the requests to contact the credit union or refuses approved by the regional director where the common bond descriptions contained in to provide needed support; or continuing credit union is headquartered, Section 5 of its charter. Where a sponsor • The group initiates action to be removed with the concurrence of the regional director organization expands its operations from the field of membership. of the purchased and/or assumed credit internally, by acquisition or otherwise, the When a federal credit union requests an union and, as applicable, the state regulators. credit union may serve these new entrants to amendment to remove a group from its field

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of membership, the regional director will have its own occupational or associational IV.B—Multiple Common Bond Amendments determine why the credit union desires to common bond. For example, a multiple IV.B.1—General remove the group. If the regional director common bond credit union may include two Section 5 of every multiple common bond concurs with the request, membership will unrelated employers, or two unrelated federal credit union’s charter defines the continue for those who are already members associations, or a combination of two or more field of membership and select groups the under the ‘‘once a member, always a employers or associations. Additionally, credit union can legally serve. Only those member’’ provision of the Federal Credit these groups must be within reasonable Union Act. persons or legal entities specified in the field geographic proximity of the credit union. of membership can be served. There are a III.H—Other Persons Eligible for Credit Union That is, the groups must be within the service number of instances in which Section 5 must Membership area of one of the credit union’s service be amended by NCUA. facilities. These groups are referred to as A number of persons by virtue of their First, a new select group is added to the close relationship to a common bond group select groups. A multiple common bond field of membership. This may occur through may be included, at the charter applicant’s credit union cannot include a TIP or expand agreement between the group and the credit option, in the field of membership. These using single common bond criteria. union directly, or through a merger, include the following: A federal credit union’s service area is the corporate acquisition, purchase and • Spouses of persons who died while area that can reasonably be served by the assumption (P&A), or spin-off. within the field of membership of this credit service facilities accessible to the groups Second, a federal credit union qualifies to union; within the field of membership. The service change its charter from: • • Employees of this credit union; area will most often coincide with that A Single occupational or associational • Volunteers; geographic area primarily served by the charter to a multiple common bond charter; • • Members of the immediate family or service facility. Additionally, the groups A multiple common bond to a single household; served by the credit union must have access occupational or associational charter; • • Organizations of such persons; and to the service facility. The non-availability of A multiple common bond to a • Corporate or other legal entities in this community charter; or other credit union service is a factor to be • charter. considered in determining whether the group A community to a multiple common bond charter. Immediate family is defined as spouse, is within reasonable proximity of a credit Third, a federal credit union removes a child, sibling, parent, grandparent, or union wishing to add the group to its field group from its field of membership through grandchild. This includes stepparents, of membership. stepchildren, stepsiblings, and adoptive agreement with the group, a spin-off, or A service facility for multiple common because the group no longer exists. relationships. bond credit unions is defined as a place Household is defined as persons living in where shares are accepted for members’ IV.B.2—Numerical Limitation of Select the same residence maintaining a single accounts, loan applications are accepted or Groups economic unit. loans are disbursed. This definition includes An existing multiple common bond federal Membership eligibility is extended only to a credit union owned branch, a mobile credit union that submits a request to amend individuals who are members of an branch, an office operated on a regularly its charter must provide documentation to ‘‘immediate family or household’’ of a credit establish that the multiple common bond union member. It is not necessary for the scheduled weekly basis, a credit union owned ATM, or a credit union owned requirements have been met. The regional primary member to join the credit union in director must approve all amendments to a order for the immediate family or household electronic facility that meets, at a minimum, these requirements. A service facility also multiple common bond credit union’s field member of the primary member to join, of membership. provided the immediate family or household includes a shared branch or a shared branch network if either: (1) The credit union has an NCUA will approve groups to a credit clause is included in the field of union’s field of membership if the agency ownership interest in the service facility membership. However, it is necessary for the determines in writing that the following either directly or through a CUSO or similar immediate family member or household criteria are met: member to first join in order for that person’s organization; or (2) the service facility is local • The credit union has not engaged in any immediate family member or household to the credit union and the credit union is an unsafe or unsound practice, as determined by member to join the credit union. A credit authorized participant in the service center. the regional director, which is material union can adopt a more restrictive definition This definition does not include the credit during the one year period preceding the of immediate family or household. union’s Internet Web site. filing to add the group; Volunteers, by virtue of their close The select group as a whole will be • The credit union is ‘‘adequately relationship with a sponsor group, may be considered to be within a credit union’s capitalized.’’ NCUA defines adequately included. One example is volunteers working service area when: capitalized to mean the credit union has a net at a church. • A majority of the persons in a select worth ratio of not less than 6 percent. For Under the Federal Credit Union Act, once group live, work, or gather regularly within low-income credit unions or credit unions a person becomes a member of the credit the service area; chartered less than ten years, the regional union, such person may remain a member of • The group’s headquarters is located director may determine that a net worth ratio the credit union until the person chooses to within the service area; or of less than 6 percent is adequate if the credit withdraw or is expelled from the • The group’s ‘‘paid from’’ or ‘‘supervised union is making reasonable progress toward membership of the credit union. This is from’’ location is within the service area. meeting the 6 percent net worth requirement. commonly referred to as ‘‘once a member, For any other credit union, the regional always a member.’’ The ‘‘once a member, IV.A.2—Sample Multiple Common Bond Field of Membership director may determine that a net worth ratio always a member’’ provision does not of less than 6 percent is adequate if the credit prevent a credit union from restricting An example of a multiple common bond union is making reasonable progress toward services to members who are no longer field of membership is: ‘‘The field of meeting the 6 percent net worth requirement, within the field of membership. membership of this federal credit union shall and the addition of the group would not be limited to the following: IV—Multiple Occupational/Associational adversely affect the credit union’s 1. Employees of Teltex Corporation who Common Bonds capitalization level; work in Wilmington, Delaware; • The credit union has the administrative IV.A.1—General 2. Partners and employees of Smith & capability to serve the proposed group and A federal credit union may be chartered to Jones, Attorneys at Law, who work in the financial resources to meet the need for serve a combination of distinct, definable Wilmington, Delaware; additional staff and assets to serve the new single occupational and/or associational 3. Members of the M&L Association in group; common bonds. This type of credit union is Wilmington, Delaware, who qualify for • Any potential harm the expansion may called a multiple common bond credit union. membership in accordance with its charter have on any other credit union and its Each group in the field of membership must and bylaws in effect on December 31, 1997.’’ members is clearly outweighed by the

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probable beneficial effect of the expansion. Demographics—the employee turnover applicant to submit a business plan With respect to a proposed expansion’s effect rate, economic status of the group’s members, addressing specific issues. on other credit unions, the requirements on and whether the group is more apt to consist The financial and operational condition of overlapping fields of membership set forth in of savers and/or borrowers. the requesting credit union will be Section IV.E of this Chapter are also Market competition—the availability of considered in every instance. An expanded applicable; and other financial services. field of membership may provide the basis • If the formation of a separate credit Desired services and products—the type of for reversing adverse trends. In such cases, an union by such group is not practical and services the group desires in comparison to amendment to expand the field of consistent with reasonable standards for the the type of services a new credit union could membership may be granted notwithstanding safe and sound operation of a credit union. offer. the credit union’s adverse trends. The A detailed analysis is required for groups Sponsor subsidies—the availability of applicant credit union must clearly establish of 3,000 or more primary potential members operating subsidies. that the approval of the expanded field of requesting to be added to a multiple common The desire of the sponsor—the extent of membership meets the requirements of bond credit union. It is incumbent upon the the sponsor’s interest in supporting a credit Section IV.B.2 of this Chapter and will not credit union to demonstrate that the union charter. increase the risk to the NCUSIF. formation of a separate credit union by such Employee interest—the extent of the IV.C.3—Regional Director Approval a group is not practical. The group must employees’ interest in obtaining a credit provide evidence that it lacks sufficient union charter. If the regional director approves the volunteer and other resources to support the Evidence of past failure—whether the requested amendment, the credit union will efficient and effective operations of a credit group previously had its own credit union or be issued an amendment to Section 5 of its union or does not meet the economic previously filed for a credit union charter. charter. Administrative capacity to provide advisability criteria outlined in Chapter 1. If IV.C.4—Regional Director Disapproval this can be demonstrated, the group may be services—will the group have the added to a multiple common bond credit management expertise to provide the services When a regional director disapproves any union’s field of membership. requested. application, in whole or in part, to amend the • If the group is eligible for membership in field of membership under this chapter, the IV.B.3—Documentation Requirements any other credit union, documentation must applicant will be informed in writing of the: A multiple common bond credit union be provided to support inclusion of the group • Specific reasons for the action; requesting a select group expansion must under the overlap standards set forth in • Options to consider, if appropriate, for submit a formal written request, using the Section IV.E of this Chapter; and gaining approval; and Application for Field of Membership • The most recent copy of the group’s • Appeal procedure. Amendment (NCUA 4015 or NCUA 4015–EZ) charter and bylaws or equivalent IV.C.5—Appeal of Regional Director Decision to the appropriate NCUA regional director. documentation (for associational groups). If a field of membership expansion request, An authorized credit union representative IV.B.4—Corporate Restructuring must sign the request. merger, or spin-off is denied by the regional If a select group within a federal credit The NCUA 4015–EZ (for groups less than director, the federal credit union may appeal union’s field of membership undergoes a 3,000 potential members) must be the decision to the NCUA Board. An appeal substantial restructuring, a change to the accompanied by the following: must be sent to the appropriate regional credit union’s field of membership may be • A letter, or equivalent documentation, office within 60 days of the date of denial, required if the credit union is to continue to from the group requesting credit union and must address the specific reason(s) for provide service to the select group. NCUA the denial. The regional director will then service. This letter must indicate: permits a multiple common bond credit Æ That the group wants to be added to the forward the appeal to the NCUA Board. union to maintain in its field of membership NCUA central office staff will make an applicant federal credit union’s field of a sold, spun-off, or merged select group to membership; independent review of the facts and present Æ which it has been providing service. This the appeal to the Board with a The number of persons currently type of amendment to the credit union’s included within the group to be added and recommendation. charter is not considered an expansion; Before appealing, the credit union may, their locations; and therefore, the criteria relating to adding new Æ within 30 days of the denial, provide The group’s proximity to credit union’s groups are not applicable. supplemental information to the regional nearest service facility. When two groups merge and each is in the • director for reconsideration. A The most recent copy of the group’s field of membership of a credit union, then reconsideration will contain new and charter and bylaws or equivalent both (or all affected) credit unions can serve material evidence addressing the reasons for documentation (for associational groups). the resulting merged group, subject to any The NCUA 4015 (for groups of 3,000 or existing geographic limitation and without the initial denial. The regional director will more primary potential members) must be regard to any overlap provisions. However, have 30 days from the date of the receipt of accompanied by the following: the credit unions cannot serve the other the request for reconsideration to make a • A letter, or equivalent documentation, multiple groups that may be in the field of final decision. If the request is again denied, from the group requesting credit union membership of the other credit union. the applicant may proceed with the appeal service. This letter must indicate: process within 60 days of the date of the last Æ That the group wants to be added to the IV.C—NCUA’S Procedures for Amending the denial. A second request for reconsideration federal credit union’s field of membership; Field of Membership will be treated as an appeal to the NCUA Æ Whether the group presently has other IV.C.1—General Board. credit union service available; All requests for approval to amend a IV.D—Mergers, Purchase and Assumptions, Æ The number of persons currently federal credit union’s charter must be and Spin-Offs included within the group to be added and submitted to the appropriate regional In general, other than the addition of select their locations; director. Æ The group’s proximity to credit union’s groups, there are three additional ways a nearest service facility; and IV.C.2—Regional Director’s Decision multiple common bond federal credit union Æ Why the formation of a separate credit NCUA staff will review all amendment can expand its field of membership: union for the group is not practical or requests in order to ensure conformance to • By taking in the field of membership of consistent with safety and soundness NCUA policy. another credit union through a merger; standards. A credit union need not address Before acting on a proposed amendment, • By taking in the field of membership of every item on the list, simply those issues the regional director may require an on-site another credit union through a purchase and that are relevant to its particular request: review. In addition, the regional director assumption (P&A); or Member location—whether the may, after taking into account the • By taking a portion of another credit membership is widely dispersed or significance of the proposed field of union’s field of membership through a spin- concentrated in a central location. membership amendment, require the off.

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IV.D.1—Voluntary Mergers are: abandonment of the management and/or However, in the few instances where a P&A officials and an inability to find may occur, the assuming federal credit a. All Select Groups in the Merging Credit replacements, loss of sponsor support, union, as with emergency mergers, may Union’s Field of Membership Have Less serious and persistent record keeping acquire the entire field of membership if the Than 3,000 Primary Potential Members. problems, sustained material decline in emergency criteria are satisfied. Specified A voluntary merger of two or more federal financial condition, or other serious or loans, shares, and certain other designated credit unions is permissible as long as each persistent circumstances. assets and liabilities, without regard to field select group in the merging credit union’s IV.D.3—Emergency Mergers of membership restrictions, may also be field of membership has less than 3,000 acquired without changing the character of primary potential members. While the merger An emergency merger may be approved by the continuing federal credit union for requirements outlined in Section 205 of the NCUA without regard to field of membership purposes of future field of membership Federal Credit Union Act must still be met, rules, the 3,000 numerical limitation, or other amendments. Subsequent field of the requirements of Chapter 2, Section IV.B.2 legal constraints. An emergency merger membership expansions must be consistent of this manual are not applicable. involves NCUA’s direct intervention and with multiple common bond policies. approval. The credit union to be merged b. One or More Select Groups in the Merging P&As involving federally insured credit must either be insolvent or likely to become Credit Union’s Field of Membership Has unions in different NCUA regions must be insolvent, and NCUA must determine that: approved by the regional director where the 3,000 or More Primary Potential Members. • An emergency requiring expeditious continuing credit union is headquartered, If the merging credit unions serve the same action exists; with the concurrence of the regional director • group, and the group consists of 3,000 or Other alternatives are not reasonably of the purchased and/or assumed credit more primary potential members, then the available; and union and, as applicable, the state regulators. ability to form a separate credit union • The public interest would best be served analysis is not required for that group. If the by approving the merger. IV.D.5—Spin-Offs merging credit union has any other groups If not corrected, conditions that could lead A spin-off occurs when, by agreement of consisting of 3,000 or more primary potential to insolvency include, but are not limited to: the parties, a portion of the field of members, special requirements apply. NCUA • Abandonment by management; membership, assets, liabilities, shares, and will analyze each group of 3,000 or more • Loss of sponsor; capital of a credit union are transferred to a primary potential members, except as noted • Serious and persistent record keeping new or existing credit union. A spin-off is above, to determine whether the formation of problems; or unique in that usually one credit union has a separate credit union by such a group is • Serious and persistent operational a field of membership expansion and the practical. If the formation of a separate credit concerns. other loses a portion of its field of union by such a group is not practical In an emergency merger situation, NCUA membership. because the group lacks sufficient volunteer will take an active role in finding a suitable All common bond requirements apply and other resources to support the efficient merger partner (continuing credit union). regardless of whether the spun-off group and effective operations of a credit union or NCUA is primarily concerned that the becomes a new charter or goes to an existing does not meet the economic advisable criteria continuing credit union has the financial federal charter. outlined in Chapter 1, the group may be strength and management expertise to absorb The request for approval of a spun-off merged into a multiple common bond credit the troubled credit union without adversely group must be supported with a plan that union. If the formation of a separate credit affecting its own financial condition and addresses, at a minimum: union is practical, the group must be spun- stability. • Why the spin-off is being requested; off before the merger can be approved. As a stipulated condition to an emergency • What part of the field of membership is c. Merger of a Single Common Bond Credit merger, the field of membership of the to be spun off; • Union Into a Multiple Common Bond Credit merging credit union may be transferred Which assets, liabilities, shares, and Union. intact to the continuing federal credit union capital are to be transferred; without regard to any field of membership • The financial impact the spin-off will A financially healthy single common bond restrictions including numerical limitation have on the affected credit unions; credit union with a primary potential requirements. Under this authority, any • The ability of the acquiring credit union membership of 3,000 or more cannot merge single occupational or associational common to effectively serve the new members; into a multiple common bond credit union, bond, multiple common bond, or community • The proposed spin-off date; and absent supervisory reasons, unless the charter may merger into a multiple common • Disclosure to the members of the continuing credit union already serves the bond credit union and that credit union can requirements set forth above. same group. continue to serve the merging credit union’s The spin-off request must also include d. Merger Approval. field of membership. Subsequent field of current financial statements from the affected If the merger is approved, the qualifying membership expansions of the continuing credit unions and the proposed voting ballot. groups within the merging credit union’s multiple common bond credit union must be For federal credit unions spinning off a field of membership will be transferred intact consistent with multiple common bond group, membership notice and voting to the continuing credit union and can policies. requirements and procedures are the same as continue to be served. Emergency mergers involving federally for mergers (see Part 708 of the NCUA Rules Where the merging credit union is state- insured credit unions in different NCUA and Regulations), except that only the chartered, the field of membership rules regions must be approved by the regional members directly affected by the spin-off— applicable to a federal credit union apply. director where the continuing credit union is those whose shares are to be transferred—are Mergers must be approved by the NCUA headquartered, with the concurrence of the permitted to vote. Members whose shares are regional director where the continuing credit regional director of the merging credit union not being transferred will not be afforded the union is headquartered, with the concurrence and, as applicable, the state regulators. opportunity to vote. All members of the group to be spun off (whether they voted in of the regional director of the merging credit IV.D.4—Purchase and Assumption (P&A) union, and, as applicable, the state favor, against, or not at all) will be transferred regulators. Another alternative for acquiring the field if the spin-off is approved by the voting of membership of a failing credit union is membership. Voting requirements for IV.D.2—Supervisory Mergers through a consolidation known as a P&A. federally insured state credit unions are The NCUA may approve the merger of any Generally, the requirements applicable to governed by state law. federally insured credit union when safety field of membership expansions found in this Spin-offs involving federally insured credit and soundness concerns are present without chapter apply to purchase and assumptions unions in different NCUA regions must be regard to the 3,000 numerical limitation. The where the purchasing credit union is a approved by all regional directors where the credit union need not be insolvent or in federal charter. credit unions are headquartered and the state danger of insolvency for NCUA to use this A P&A has limited application because, in regulators, as applicable. Spin-offs in the statutory authority. Examples constituting most cases, the failing credit union must be same region also require approval by the state appropriate reasons for using this authority placed into involuntary liquidation. regulator, as applicable.

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IV.E—Overlaps IV.E.2—Overlap Issues as a Result of for a conversion, the applicant federal credit IV.E.1—General Organizational Restructuring union may be required to develop a detailed business plan as specified in Chapter 2, An overlap exists when a group of persons A federal credit union’s field of membership will always be governed by the Section V.A.3. is eligible for membership in two or more A multiple common bond federal credit credit unions, including state charters. An field of membership descriptions contained in Section 5 of its charter. Where a sponsor union may apply to convert to a single overlap is permitted when the expansion’s occupational or associational common bond beneficial effect in meeting the convenience organization expands its operations internally, by acquisition or otherwise, the charter provided the field of membership and needs of the members of the group requirements of the new charter are met. proposed to be included in the field of credit union may serve these new entrants to its field of membership if they are part of any Groups within the existing charter, which do membership clearly outweighs any adverse not qualify in the new charter, cannot be effect on the overlapped credit union. select group listed in Section 5. Where acquisitions are made which add a new served except for members of record, or Credit unions must investigate the groups or communities obtained in an possibility of an overlap with federally subsidiary, the group cannot be served until the subsidiary is included in the field of emergency merger or P&A. A credit union insured credit unions prior to submitting an must notify all groups that will be removed expansion request if the group has 3,000 or membership through a housekeeping amendment. from the field of membership as a result of more primary potential members. If cases conversion. arise where the assurance given to a regional Overlaps may occur as a result of director concerning the unavailability of restructuring or merger of the parent IV.G—Removal of Groups From the Field of credit union service is inaccurate, the organization. When such overlaps occur, Membership misinformation may be grounds for removal each credit union must request a field of A credit union may request removal of a of the group from the federal credit union’s membership amendment to reflect the new group from its field of membership for charter. groups each wishes to serve. The credit various reasons. The most common reasons When an overlap situation requiring union can continue to serve any current for this type of amendment are: analysis does arise, officials of the expanding group in its field of membership that is • The group is within the field of credit union must ascertain the views of the acquiring a new group or has been acquired membership of two credit unions and one overlapped credit union. If the overlapped by a new group. The new group cannot be wishes to discontinue service; credit union does not object, the applicant served by the credit union until the field of • The federal credit union cannot continue must submit a letter or other documentation membership amendment is approved by to provide adequate service to the group; to that effect. If the overlapped credit union NCUA. • The group has ceased to exist; does not respond, the expanding credit union Credit unions affected by organizational • The group does not respond to repeated must notify NCUA in writing of its attempt restructuring or merger should attempt to requests to contact the credit union or refuses to obtain the overlapped credit union’s resolve overlap issues among themselves. to provide needed support; comments. Unless an agreement is reached limiting the • The group initiates action to be removed NCUA will approve an overlap if the overlap resulting from the corporate from the field of membership; or expansion’s beneficial effect in meeting the restructuring, NCUA will permit a complete • The federal credit union wishes to convenience and needs of the members of the overlap of the credit unions’ fields of convert to a single common bond. group clearly outweighs any adverse effect on membership. When two groups merge, or one When a federal credit union requests an the overlapped credit union. group is acquired by the other, and each is amendment to remove a group from its field In reviewing the overlap, the regional in the field of membership of a credit union, of membership, the regional director will director will consider: both (or all affected) credit unions can serve determine why the credit union desires to • The view of the overlapped credit the resulting merged or acquired group, remove the group. If the regional director union(s); subject to any existing geographic limitation concurs with the request, membership will • Whether the overlap is incidental in and without regard to any overlap provisions. continue for those who are already members nature—the group of persons in question is This is accomplished through a under the ‘‘once a member, always a so small as to have no material effect on the housekeeping amendment. member’’ provision of the Federal Credit original credit union; Credit unions must submit to NCUA Union Act. • Whether there is limited participation by documentation explaining the restructuring members or employees of the group in the and provide information regarding the new IV.H—Other Persons Eligible for Credit original credit union after the expiration of organizational structure. Union Membership a reasonable period of time; IV.E.3—Exclusionary Clauses A number of persons, by virtue of their • Whether the original credit union fails to An exclusionary clause is a limitation close relationship to a common bond group, provide requested service; may be included, at the charter applicant’s • precluding the credit union from serving the Financial effect on the overlapped credit primary members of a portion of a group option, in the field of membership. These union; otherwise included in its field of include the following: • The desires of the group(s); • Spouses of persons who died while • membership. NCUA no longer grants The desire of the sponsor organization; exclusionary clauses. Those granted prior to within the field of membership of this credit and the adoption of this new chartering manual union; • The best interests of the affected group • Employees of this credit union; will remain in effect unless the credit unions • and the credit union members involved. agree to remove them or one of the affected Persons retired as pensioners or Generally, if the overlapped credit union annuitants from the above employment; credit unions submits a housekeeping • does not object, and NCUA determines that amendment to have it removed. Volunteers; there is no safety and soundness problem, the • Members of the immediate family or overlap will be permitted. IV.F—Charter Conversion household; Potential overlaps of a federally insured A multiple common bond federal credit • Organizations of such persons; and state credit union’s field of membership by union may apply to convert to a community • Corporate or other legal entities in this a federal credit union will generally be charter provided the field of membership charter. analyzed in the same way as if two federal requirements of the community charter are Immediate family is defined as spouse, credit unions were involved. Where a met. Groups within the existing charter child, sibling, parent, grandparent, or federally insured state credit union’s field of which cannot qualify in the new charter grandchild. This includes stepparents, membership is broadly stated, NCUA will cannot be served except for members of stepchildren, stepsiblings, and adoptive exclude its field of membership from any record, or groups or communities obtained in relationships. overlap protection. an emergency merger or P&A. A credit union Household is defined as persons living in NCUA will permit multiple common bond must notify all groups that will be removed the same residence maintaining a single federal credit unions to overlap community from the field of membership as a result of economic unit. charters without performing an overlap conversion. Members of record can continue Membership eligibility is extended only to analysis. to be served. Also, in order to support a case individuals who are members of an

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‘‘immediate family or household’’ of a credit The well-defined local community, consideration of a prior application since union member. It is not necessary for the neighborhood, or rural district requirement is IRPS 99–1, as amended. Applicants may primary member to join the credit union in met if: contact the appropriate regional office to find order for the immediate family or household • The area to be served is in a recognized out if the area they are interested in has member of the primary member to join, single political jurisdiction, i.e., a city, already been determined to meet the provided the immediate family or household county, or their political equivalent, or any community requirements. If the area is the clause is included in the field of contiguous portion thereof. same as a previously approved area, an membership. However, it is necessary for the The well-defined local community, applicant need only include a statement to immediate family member or household neighborhood, or rural district requirement that effect in the application. Applicants may member to first join in order for that person’s may be met if: be required to submit their own summary immediate family member or household • The area to be served is in multiple and documentation regarding the community member to join the credit union. A credit contiguous political jurisdictions, i.e., a city, requirements if NCUA has reason to believe union can adopt a more restrictive definition county, or their political equivalent, or any that prior submissions are no longer accurate. of immediate family or household. contiguous portion thereof and if the A community credit union is frequently Volunteers, by virtue of their close population of the requested well-defined area more susceptible to competition from other relationship with a sponsor group, may be does not exceed 500,000; or local financial institutions and generally does included. Examples include volunteers • The area to be served is a Metropolitan not have substantial support from any single working at a hospital or church. Statistical Area (MSA) or its equivalent, or a sponsoring company or association. As a Under the Federal Credit Union Act, once portion thereof, where the population of the result, a community credit union will often a person becomes a member of the credit MSA or its equivalent does not exceed encounter financial and operational factors union, such person may remain a member of 1,000,000. that differ from an occupational or the credit union until the person chooses to If the proposed area meets either the associational charter. Its diverse membership withdraw or is expelled from the multiple political jurisdiction or MSA may require special marketing programs membership of the credit union. This is criteria, the credit union must submit a letter targeted to different segments of the commonly referred to as ‘‘once a member, describing how the area meets the standards community. For example, the lack of payroll always a member.’’ The ‘‘once a member, for community interaction and/or common deduction creates special challenges in the always a member’’ provision does not interests. development of savings promotional prevent a credit union from restricting If NCUA does not find sufficient evidence programs and in the collection of loans. services to members who are no longer of community interaction and/or common Accordingly, it is essential for the within the field of membership. interests or if the area to be served does not proposed community credit union to develop V—Community Charter Requirements meet the MSA or multiple political a detailed and practical business and jurisdiction requirements of the preceding marketing plan for at least the first two years V.A.1—General paragraph, the application must include of operation. The proposed credit union must Community charters must be based on a documentation to support that it is a well- not only address the documentation single, geographically well-defined local defined local community, neighborhood, or requirements set forth in Chapter 1, but also community, neighborhood, or rural district rural district. focus on the accomplishment of the unique where individuals have common interests It is the applicant’s responsibility to financial and operational factors of a and/or interact. More than one credit union demonstrate the relevance of the community charter. may serve the same community. documentation provided in support of the Community credit unions will be expected NCUA recognizes four types of affinity on application. This must be provided in a to regularly review and to follow, to the which a community charter can be based— narrative summary. The narrative summary fullest extent economically possible, the persons who live in, worship in, attend must explain how the documentation marketing and business plan submitted with school in, or work in the community. demonstrates interaction and/or common their application. Businesses and other legal entities within the interests. For example, simply listing V.A.3—Special Documentation Requirements community boundaries may also qualify for newspapers and organizations in the area is for a Converting Credit Union membership. not sufficient to demonstrate that the area is An existing federal credit union may apply NCUA has established the following a local community, neighborhood, or rural requirements for community charters: to convert to a community charter. Groups • district. currently in the credit union’s field of The geographic area’s boundaries must Examples of acceptable documentation be clearly defined; membership but outside the new community may include: credit union’s boundaries may not be • The area is a ‘‘well-defined local, • The defined political jurisdictions; included in the new community charter. community, neighborhood, or rural district;’’ • Major trade areas (shopping patterns and and Therefore, the credit union is required to • traffic flows); notify groups that will be removed from the Individuals must have common interests • Shared/common facilities (for example, and/or interact. field of membership as a result of the educational, medical, police and fire conversion. Members of record can continue V.A.2—Documentation Requirements protection, school district, water, etc.); to be served. In addition to the documentation • Organizations and clubs within the The documentation requirements set forth requirements set forth in Chapter 1 to charter community area; in Section V.A.2 of this Chapter must be met a credit union, a community credit union • Newspapers or other periodicals before a community charter can be approved. applicant must provide additional published for and about the area; In order to support a case for a conversion documentation addressing the proposed area • A local map designating the area to be to community charter, the applicant federal to be served and community service policies. served and locations of current and proposed credit union must develop a business plan A community credit union must meet the service facilities and a regional or state map incorporating the following data: statutory requirements that the proposed with the proposed community outlined; or • Pro forma financial statements for the community area is (1) well-defined, and (2) • Other documentation that demonstrates first two years after the proposed conversion, a local community, neighborhood, or rural that the area is a community where including assumptions—e.g., member, share, district. individuals have common interests and/or loan, and asset growth; ‘‘Well-defined’’ means the proposed area interact. • Marketing plan addressing how the has specific geographic boundaries. An applicant need not submit a narrative community will be served; Geographic boundaries may include a city, summary or documentation to support a • Financial services to be provided to township, county (or its political equivalent), proposed community charter, amendment or members; or a clearly identifiable neighborhood. conversion as a well-defined local • A local map showing current and Although congressional districts and state community, neighborhood or rural district if proposed service facilities; and boundaries are well-defined areas, they do the NCUA has previously determined that • Anticipated financial impact on the not meet the requirement that the proposed the same exact geographic area meets that credit union in terms of need for additional area be a local community. requirement in connection with employees and fixed assets.

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Before approval of an application to local community, neighborhood, or rural V.C.5—Appeal of Regional Director Decision convert to a community credit union, NCUA district). If a field of membership expansion request, • must be satisfied that the institution will be Persons who live in the first merger, or spin-off is denied by the regional viable and capable of providing services to its congressional district of Florida. (does not director, the federal credit union may appeal members. meet the definition of local community, the decision to the NCUA Board. An appeal V.A.4—Community Boundaries neighborhood, or rural district). must be sent to the appropriate regional The geographic boundaries of a community V.B—Field of Membership Amendments office within 60 days of the date of denial federal credit union are the areas defined in and must address the specific reason(s) for A community credit union may amend its the denial. The regional director will then its charter. The boundaries can usually be field of membership by adding additional defined using political borders, streets, forward the appeal to the NCUA Board. affinities or removing exclusionary clauses. NCUA central office staff will make an rivers, railroad tracks, etc. This can be accomplished with a A community that is a recognized legal independent review of the facts and present housekeeping amendment. entity, may be stated in the field of the appeal to the NCUA Board with a A community credit union also may membership—for example, ‘‘Gus Township, recommendation. expand its geographic boundaries. Persons Texas’’ or ‘‘Kristi County, Virginia.’’ Before appealing, the credit union may, who live, work, worship, or attend school A community that is a recognized MSA within 30 days of the denial, provide must state in the field of membership the within the proposed well-defined local supplemental information to the regional political jurisdiction(s) that comprise the community, neighborhood or rural district director for reconsideration. A MSA. must have common interests and/or interact. reconsideration will contain new and The credit union must follow the material evidence addressing the reasons for V.A.5—Special Community Charters requirements of Section V.A.3 of this chapter. the initial denial. The regional director will A community field of membership may have 30 days from the date of the receipt of include persons who work or attend school V.C—NCUA Procedures for Amending the Field of Membership the request for reconsideration to make a in a particular industrial park, shopping final decision. If the request is again denied, mall, office complex, or similar development. V.C.1—General the applicant may proceed with the appeal The proposed field of membership must have All requests for approval to amend a process within 60 days of the date of the last clearly defined geographic boundaries. community credit union’s charter must be denial. A second request for reconsideration V.A.6—Sample Community Fields of submitted to the appropriate regional will be treated as an appeal to the NCUA Membership director. If a decision cannot be made within Board. A community charter does not have to a reasonable period of time, the regional V.D—Mergers, Purchase and Assumptions, include all four affinities (i.e., live, work, director will notify the credit union. and Spin-Offs worship, or attend school in a community). V.C.2—NCUA’s Decision There are three additional ways a Some examples of community fields of The financial and operational condition of community federal credit union can expand membership are: • the requesting credit union will be its field of membership: Persons who live, work, worship, or considered in every instance. The economic • By taking in the field of membership of attend school in, and businesses located in advisability of expanding the field of another credit union through a merger; the area of Johnson City, Tennessee, bounded membership of a credit union with financial • By taking in the field of membership by Fern Street on the north, Long Street on or operational problems must be carefully through a purchase and assumption (P&A); or the east, Fourth Street on the south, and Elm considered. • By taking a portion of another credit Avenue on the west; • In most cases, field of membership union’s field of membership through a spin- Persons who live or work in Green amendments will only be approved for credit off. County, Maine; • unions that are operating satisfactorily. V.D.1—Standard Mergers Persons who live, worship, or work in Generally, if a federal credit union is having and businesses and other legal entities difficulty providing service to its current Generally, the requirements applicable to located in Independent School District No. 1, field of membership expansions apply to membership, or is experiencing financial or DuPage County, Illinois; mergers where the continuing credit union is other operational problems, it may have more • Persons who live, worship, work (or a community federal charter. difficulty serving an expanded field of regularly conduct business in), or attend Where both credit unions are community membership. school on the University of Dayton campus, charters, the continuing credit union must Occasionally, however, an expanded field in Dayton, Ohio; meet the criteria for expanding the of membership may provide the basis for • Persons who work for businesses located community boundaries. A community credit reversing current financial problems. In such in Clifton Country Mall, in Clifton Park, New union cannot merge into a single cases, an amendment to expand the field of York; or occupational/associational, or multiple membership may be granted notwithstanding • Persons who live, work, or worship in common bond credit union, except in an the Binghamton, New York, MSA, consisting the credit union’s financial or operational emergency merger. However, a single of Broome and Tioga Counties, New York. problems. The applicant credit union must occupational or associational, or multiple Some examples of insufficiently defined clearly establish that the expanded field of common bond credit union can merge into a community field of membership definitions membership is in the best interest of the community charter as long as the merging are: members and will not increase the risk to the credit union has a service facility within the • Persons who live or work within and NCUSIF. community boundaries or a majority of the businesses located within a 10-mile radius of V.C.3—NCUA Approval merging credit union’s field of membership Washington, DC (using a radius does not If the requested amendment is approved by would qualify for membership in the establish a well-defined area); NCUA, the credit union will be issued an community charter. While a community • Persons who live or work in the amendment to Section 5 of its charter. charter may take in an occupational, industrial section of New York, New York. associational, or multiple common bond (not a well-defined neighborhood, V.C.4—NCUA Disapproval credit union in a merger, it will remain a community, or rural district); or When NCUA disapproves any application community charter. • Persons who live or work in the greater to amend the field of membership, in whole Groups within the merging credit union’s Boston area. (not a well-defined or in part, under this chapter, the applicant field of membership located outside of the neighborhood, community, or rural district). will be informed in writing of the: community boundaries may not continue to Some examples of unacceptable local • Specific reasons for the action; be served. The merging credit union must communities, neighborhoods, or rural • If appropriate, options or suggestions notify groups that will be removed from the districts are: that could be considered for gaining field of membership as a result of the merger. • Persons who live or work in the State of approval; and However, the credit union may continue to California. (does not meet the definition of • Appeal procedures. serve members of record.

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Where a state-chartered credit union is apply to purchase and assumptions where favor, against, or not at all) will be transferred merging into a community federal credit the purchasing credit union is a federal if the spin-off is approved by the voting union, the continuing federal credit union’s charter. membership. Voting requirements for field of membership will be worded in A P&A has limited application because, in federally insured state credit unions are accordance with NCUA policy. Any most instances, the failing credit union must governed by state law. subsequent field of membership expansions be placed into involuntary liquidation. V.E—Overlaps must comply with applicable amendment However, in the few instances where a P&A procedures. may occur, the assuming federal credit V.E.1—General Mergers must be approved by the NCUA union, as with emergency mergers, may Generally, an overlap exists when a group regional director where the continuing credit acquire the entire field of membership if the of persons is eligible for membership in two union is headquartered, with the concurrence emergency criteria are satisfied. or more credit unions. NCUA will permit of the regional director of the merging credit In a P&A processed under the emergency community credit unions to overlap any union, and, as applicable, the state criteria, specified loans, shares, and certain other charters without performing an overlap regulators. other designated assets and liabilities may analysis. also be acquired without regard to field of V.D.2—Emergency Mergers V.E.2—Exclusionary Clauses membership restrictions and without An emergency merger may be approved by changing the character of the continuing An exclusionary clause is a limitation NCUA without regard to field of membership federal credit union for purposes of future precluding the credit union from serving the requirements or other legal constraints. An field of membership amendments. primary members of a portion of a group or emergency merger involves NCUA’s direct If the P&A does not meet the emergency community otherwise included in its field of intervention and approval. The credit union criteria, then only members of record can be membership. NCUA no longer grants to be merged must either be insolvent or obtained unless they otherwise qualify for exclusionary clauses. Those granted prior to likely to become insolvent, and NCUA must membership in the community charter. the adoption of this new chartering manual determine that: P&As involving federally insured credit will remain in effect unless the credit unions • An emergency requiring expeditious unions in different NCUA regions must be agree to remove them or one of the affected action exists; approved by the regional director where the credit unions submits a housekeeping • Other alternatives are not reasonably continuing credit union is headquartered, amendment to have it removed. available; and with the concurrence of the regional director • V.F—Charter Conversions The public interest would best be served of the purchased and/or assumed credit by approving the merger. union and, as applicable, the state regulators. A community federal credit union may If not corrected, conditions that could lead convert to a single occupational or to insolvency include, but are not limited to: V.D.4—Spin-Offs associational, or multiple common bond • Abandonment by management; A spin-off occurs when, by agreement of credit union. The converting credit union • Loss of sponsor; the parties, a portion of the field of must meet all occupational, associational, • Serious and persistent record keeping; or membership, assets, liabilities, shares, and and multiple common bond requirements, as • Serious and persistent operational capital of a credit union are transferred to a applicable. The converting credit union may concerns. new or existing credit union. A spin-off is continue to serve members of record of the In an emergency merger situation, NCUA unique in that usually one credit union has prior field of membership as of the date of will take an active role in finding a suitable a field of membership expansion and the the conversion, and any groups or merger partner (continuing credit union). other loses a portion of its field of communities obtained in an emergency NCUA is primarily concerned that the membership. merger or P&A. A change to the credit continuing credit union has the financial All field of membership requirements union’s field of membership and designated strength and management expertise to absorb apply regardless of whether the spun-off common bond will be necessary. the troubled credit union without adversely group goes to a new or existing federal A community credit union may convert to affecting its own financial condition and charter. serve a new geographical area provided the stability. The request for approval of a spin-off must field of membership requirements of V.A.3 of As a stipulated condition to an emergency be supported with a plan that addresses, at this chapter are met. Members of record of merger, the field of membership of the a minimum: the original community can continue to be merging credit union may be transferred • Why the spin-off is being requested; served. intact to the continuing federal credit union • What part of the field of membership is without regard to any field of membership to be spun off; V.G—Other Persons With a Relationship to restrictions, including the service facility • Whether the field of membership the Community requirement. Under this authority, a federal requirements are met; A number of persons who have a close credit union may take in any dissimilar field • Which assets, liabilities, shares, and relationship to the community may be of membership. capital are to be transferred; included, at the charter applicant’s option, in Even though the merging credit union is a • The financial impact the spin-off will the field of membership. These include the single common bond credit union or multiple have on the affected credit unions; following: common bond credit union or community • The ability of the acquiring credit union • Spouses of persons who died while credit union, the continuing credit union will to effectively serve the new members; within the field of membership of this credit remain a community charter. Future • The proposed spin-off date; and union; community expansions will be based on the • Disclosure to the members of the • Employees of this credit union; continuing credit union’s original requirements set forth above. • Volunteers in the community; community area. The spin-off request must also include • Members of the immediate family or Emergency mergers involving federally current financial statements from the affected household; and insured credit unions in different NCUA credit unions and the proposed voting ballot. • Organizations of such persons. regions must be approved by the regional For federal credit unions spinning off a Immediate family is defined as spouse, director where the continuing credit union is portion of the community, membership child, sibling, parent, grandparent, or headquartered, with the concurrence of the notice and voting requirements and grandchild. This includes stepparents, regional director of the merging credit union procedures are the same as for mergers (see stepchildren, stepsiblings, and adoptive and, as applicable, the state regulators. Part 708 of the NCUA Rules and relationships. Regulations), except that only the members Household is defined as persons living in V.D.3—Purchase and Assumption (P&A) directly affected by the spin-off—those the same residence maintaining a single Another alternative for acquiring the field whose shares are to be transferred—are economic unit. of membership of a failing credit union is permitted to vote. Members whose shares are Membership eligibility is extended only to through a consolidation known as a P&A. not being transferred will not be afforded the individuals who are members of an Generally, the requirements applicable to opportunity to vote. All members of the ‘‘immediate family or household’’ of a credit community expansions found in this chapter group to be spun off (whether they voted in union member. It is not necessary for the

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primary member to join the credit union in presumed to be serving predominantly low- low-income individuals to gain access to order for the immediate family or household income members. A low-income designation credit union service. member of the primary member to join, for a new credit union charter may be based NCUA permits credit union chartering and provided the immediate family or household on a majority of the potential membership. field of membership amendments based on clause is included in the field of associational groups formed for the sole membership. However, it is necessary for the II.B—Special Programs purpose of making credit union service immediate family member or household A credit union with a low-income available to low-income persons. The member to first join in order for that person’s designation has greater flexibility in association must be defined so that all of its immediate family member or household accepting nonmember deposits insured by members will meet the low-income member to join the credit union. A credit the NCUSIF, are exempt from the aggregate definition of Section 701.34 of the NCUA union can adopt a more restrictive definition loan limit on business loans, and may offer Rules and Regulations. Any multiple of immediate family or household. secondary capital accounts to strengthen its common bond credit union can add low- Under the Federal Credit Union Act, once capital base. It also may participate in special income associations to their fields of a person becomes a member of the credit funding programs such as the Community membership. union, such person may remain a member of Development Revolving Loan Program for A low-income designated community the credit union until the person chooses to Credit Unions (CDRLP) if it is involved in the federal credit union has additional latitude in withdraw or is expelled from the stimulation of economic development and serving persons who are affiliated with the membership of the credit union. This is community revitalization efforts. community. In addition to serving members commonly referred to as ‘‘once a member, The CDRLP provides both loans and grants who live, work, worship, or attend school in always a member.’’ The ‘‘once a member, for technical assistance to low-income credit the community, a low-income community always a member’’ provision does not unions. The requirements for participation in federal credit union may also serve persons prevent a credit union from restricting the revolving loan program are in Part 705 of who participate in programs to alleviate services to members who are no longer the NCUA Rules and Regulations. Only poverty or distress, or who participate in within the field of membership. operating credit unions are eligible for associations headquartered in the participation in this program. Chapter 3 community. II.C—Low-Income Documentation Examples of a low-income designated Low-Income Credit Unions and Credit community and an associational-based low- Unions Serving Underserved Areas A federal credit union charter applicant or income federal credit union are as follows: existing credit union wishing to receive a • Persons who live in [the target area]; I—Introduction low-income designation should forward a persons who work, worship, attend school, or One of the primary reasons for the creation separate request for the designation to the participate in associations headquartered in of federal credit unions is to make credit regional director, along with appropriate [the target area]; persons participating in documentation supporting the request. available to people of modest means for programs to alleviate poverty or distress For community charter applicants, the provident and productive purposes. To help which are located in [the target area]; supporting material should include the NCUA fulfill this mission, the agency has incorporated and unincorporated median household income or annual wage established special operational policies for organizations located in [the target area] or figures for the community to be served. If this federal credit unions that serve low-income maintaining a facility in [the target area]; and information is unavailable, the applicant groups and underserved areas. The policies organizations of such persons. should identify the individual zip codes or provide a greater degree of flexibility that • Members of the Canarsie Economic census tracts that comprise the community will enhance and invigorate capital infusion Assistance League, in Brooklyn, NY, an and NCUA will assist in obtaining the into low-income groups, low-income association whose members all meet the low- communities, and underserved areas. These necessary demographic data. Similarly, if single occupational or income definition of Section 701.34 of the unique policies are necessary to provide NCUA Rules and Regulations. credit unions serving low-income groups associational or multiple common bond with financial stability and potential for charter applicants cannot supply income data III—Service to Underserved Communities on its potential members, they should controlled growth and to encourage the A multiple common bond federal credit provide the regional director with a list formation of new charters as well as the union may include in its field of which includes the number of potential delivery of credit union services in low- membership, without regard to location, an members, sorted by their residential zip income communities. ‘‘underserved area’’ as defined by the Federal codes, and NCUA will assist in obtaining the Credit Union Act. 12 U.S.C. 1759(c)(2). The II—Low-Income Credit Union necessary demographic data. addition of an ‘‘underserved area’’ will not II.A—Defined An existing credit union can perform a loan or membership survey to determine if change the charter type of the multiple A credit union serving predominantly low- the credit union is primarily serving low- common bond federal credit union. More income members may be designated as a low- income members. than one multiple common-bond federal income credit union. Section 701.34 of credit union can serve the same NCUA’s Rules and Regulations defines the II.D—Third Party Assistance ‘‘underserved area,’’ if approved as provided term ‘‘low-income members’’ as those A low-income federal credit union charter below. members: applicant may contract with a third party to The Federal Credit Union Act defines an • Who make less than 80 percent of the assist in the chartering and low-income ‘‘underserved area’’ as (1) a ‘‘local average for all wage earners as established by designation process. If the charter is granted, community, neighborhood, or rural district’’ the Bureau of Labor Statistics; or a low-income credit union may contract with that (2) meets the definition of an • Whose annual household income falls at a third party to provide necessary ‘‘investment area’’ under section 103(16) of or below 80 percent of the median household management services. Such contracts should the Community Development Banking and income for the nation as established by the not exceed the duration of one year subject Financial Institutions Act of 1994 (‘‘CDFI’’), Census Bureau. to renewal. 12 U.S.C. 4702(16), and (3) is ‘‘underserved The term ‘‘low-income members’’ also by other depository institutions’’ based on includes members who are full-time or part- II.E—Special Rules for Low-Income Federal data of the NCUA Board and the federal time students in a college, university, high Credit Unions banking agencies. school, or vocational school. In recognition of the unique efforts needed (1) Local Community. To be eligible for To obtain a low-income designation from to help make credit union service available approval as ‘‘underserved,’’ a proposed area NCUA, an existing credit union must to low-income groups, NCUA has adopted must be a well-defined local community, establish that a majority of its members meet special rules that pertain to low-income neighborhood, or rural district as defined in the low-income definition. An existing credit union charters, as well as field of Chapter 2, sections V.A.1. and V.A.2. of this community credit union that serves a membership additions for low-income credit Manual. geographic area where a majority of residents unions. These special rules provide (2) Investment Area. To be approved as an meet the annual income standard is additional latitude to enable underserved, ‘‘underserved area,’’ the proposed area must

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meet the CDFI definition of an ‘‘investment • Non-Metro Area Median Family Income. concentration of depository institution area.’’ 12 U.S.C. 4702(16). A proposed area MFI at or below 80 percent (80%) of either facilities among the population of the that, at the time the credit union applies, is the statewide Non-Metro Area’s MFI or the proposed area’s non-‘‘distressed’’ tracts— designated in its entirety as an Empowerment national Non-Metro Area MFI, whichever is which sets a benchmark level of adequate Zone or Enterprise Community (12 U.S.C. greater. service—is greater than the concentration of 1391) automatically qualifies as an • 12 CFR 1805.201(b)(3)(ii)(D)(2)(i) and (ii) facilities among the population of all of the ‘‘investment area’’; no further criteria must be (2008). proposed area’s census tracts combined. If met. 12 U.S.C. 4702(16)(B). Finally, if a Non-Metro proposed area there are no non-‘‘distressed’’ tracts within a Otherwise, to qualify as an ‘‘investment consists of a single county, it may meet one proposed area, an immediately adjoining area,’’ the proposed area must meet ‘‘the of the following two criteria, as reported by non-‘‘distressed’’ census tract or larger unit objective criteria of economic distress’’ the decennial Census: (e.g., city or county) may be used to set the developed by the CDFI Fund (‘‘distress • County Population Loss. County’s benchmark concentration ratio. criteria’’), and also must demonstrate that the population loss of at least 10 percent (10%) Without regard to a proposed area’s area has ‘‘significant unmet needs’’ for loans between the most recent and the preceding location, this process compares two ratios: and financial services credit unions are decennial census; or The ratio of facilities to the population of the authorized to offer to their members. 12 • County Migration Loss. County’s net non-‘‘distressed’’ tracts (the benchmark) U.S.C. 4702(16)(A). migration loss of at least 5 percent (5%) in versus the same ratio in the proposed area as (3) Location of Proposed ‘‘Underserved the 5-year period preceding the most recent a whole. If the benchmark ratio is greater Area’’. The location of a proposed area either decennial census. than the whole area’s ratio, then the area within or outside of a Metropolitan Area 12 CFR 1805.201(b)(3)(ii)(D)(4)–(5) (2008). meets the ‘‘underserved by other depository determines the geographic unit(s) a credit (5) Proposed Area Consisting of Multiple institutions’’ criterion, and vice versa. union must apply to determine whether the (8) Approval To Serve an Area Already area meets the distress criteria. An area is Contiguous Units. A proposed area consisting of multiple contiguous units, either Metro Approved as ‘‘Underserved’’. Once a credit deemed to be Metropolitan if it is located, in union is initially approved to serve an whole or in part, within a ‘‘metropolitan (e.g., a group of adjoining census tracts) or Non-Metro (e.g., a group of adjoining ‘‘underserved area,’’ other credit unions that statistical area’’ (‘‘MSA’’) that corresponds to subsequently apply may be approved to serve the most recent completed decennial census counties), is subject to a population threshold when implementing the economic distress the same area. To be approved, the area must published by the U.S. Bureau of the Census qualify as ‘‘underserved’’ at the time the new (‘‘decennial Census’’); an area that is located criteria. At least 85 percent (85%) of the area’s total population must reside within the applicant applies. Thus, that applicant will entirely outside such an MSA is deemed to have to demonstrate as provided above that be Non-Metropolitan. units that are ‘‘distressed,’’ i.e, meet one of the area still is ‘‘distressed’’ according to the For a Metropolitan proposed area, the the applicable economic distress criteria decennial Census then in effect, and still has permissible units (‘‘Metro units’’) for above, as reported by the decennial Census ‘‘significant’’ unmet needs for loans or credit implementing the economic distress criteria (Unemployment, Poverty and MFI for census union services (to qualify as an ‘‘investment are: a census tract, a block group, and an tracts plus, for counties only, Population American Indian or Alaskan Native area. 12 Loss and Migration Loss). The population area’’). Finally, the new applicant must CFR 1805.201(b)(3)(ii)(B) (2008). For a Non- threshold is met, and the whole proposed demonstrate that the area still is Metropolitan proposed area, the permissible area qualifies as ‘‘distressed,’’ when the ‘‘underserved by other depository units (‘‘Non-Metro units’’) are: a county (or ‘‘distressed’’ units represent at least 85 institutions’’ (to qualify as ‘‘underserved’’). equivalent area), a minor civil division that percent of the area’s total population. (9) Service Facility. Once an ‘‘underserved is a unit of local government, an incorporated (6) Proposed Area’s ‘‘Significant Unmet area’’ has been added to a federal credit place, a census tract, a block numbering area, Needs’’ for Loans and Financial Services. A union’s field of membership, the credit union a block group, or an American Indian or proposed area that is ‘‘distressed’’ also must must establish within two years, and Alaskan Native area. Id. When possible, it is display ‘‘significant unmet needs’’ for loans maintain, an office or service facility in the advisable to use a census tract as the or one or more of the following financial community. A service facility is defined as a proposed area’s Metro unit and either a services credit unions are authorized to offer: place where shares are accepted for members’ census tract or county as its Non-Metro unit, Share draft accounts, savings accounts, check accounts, loan applications are accepted and as the case may be. cashing, money orders, certified checks, loans are disbursed. By definition, a service (4) Proposed Area Consisting of a Single automated teller machines, deposit taking, facility includes a credit union-owned Metro Unit. A proposed area consisting of a safe deposit box services, and other similar branch, a shared branch, a mobile branch, or single whole unit, either Metro (e.g., a single services (‘‘credit union services’’). To meet an office operated on a regularly scheduled census tract) or Non-Metro (e.g., a single this criterion, the credit union must submit weekly basis or a credit union owned county), must meet one of the following for NCUA approval a one-page ‘‘Narrative electronic facility that meets, at a minimum, distress criteria, as reported by the most Statement of Unmet Needs’’ (‘‘Narrative the above requirements. This definition does recent decennial Census: Statement’’) indicating a pattern of unmet not include an ATM or the credit union’s • Unemployment. Unemployment rate at needs in the proposed area for loans or one Internet Web site. least 1.5 times the national average; or or more credit union services. The credit (10) Business Plan. A federal credit union • Poverty. At least 20 percent (20%) of the union may choose which credit union that desires to include an underserved population lives in poverty. services to address and need not address all community in its field of membership must • Other Criterion. Any other economic of them. first develop a business plan specifying how distress criterion the CDFI Fund may adopt The Narrative Statement must be it will serve the community. The business in the future. supported by relevant, objective statistical plan, at a minimum, must explain how the 12 CFR 1805.201(b)(3)(ii)(D)(1) and (3) data reflecting, among other things, financial, credit union plans to fulfill the unmet needs (2008). demographic, economic or loan activity for loans and credit union services identified If the proposed area consists of a single pertaining to the proposed area. The in its Narrative Statement. The credit union Metro unit of any kind, it may also meet the supporting statistical data (which should be will be expected to regularly review the following criterion, as reported by the most appended to the Narrative Statement) may be business plan to determine if the community recent decennial Census: supplemented by objective testimonial is being adequately served. The regional • Metro Area Median Family Income. evidence. director may require periodic service status Median family income (‘‘MFI’’) at or below (7) Underserved by Other Depository reports from a credit union about the 80 percent (80%) of either the Metro Area’s Institutions. A proposed area that meets the ‘‘underserved area’’ to ensure that the needs MFI or the national Metro Area MFI, CDFI definition of an ‘‘investment area’’ (i.e, of the community are being met as well as whichever is greater. is ‘‘distressed’’ and has ‘‘significant unmet requiring such reports before NCUA allows a If the proposed area consists of a single needs’’) must also be underserved by other multiple common bond federal credit union Non-Metro unit of any kind, it may also meet depository institutions, including credit to add an additional ‘‘underserved area.’’ the following criterion, as reported by the unions. 12 U.S.C. 1759(c)(2)(A)(ii). This (11) Low Income Benefits. A multiple most recent decennial Census: statutory criterion is met when the common bond federal credit union that

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serves an ‘‘underserved area’’ will not be able and regulations also apply to federally • Conversion of State Charter to Federal to receive the benefits afforded to low- insured state chartered credit unions. Charter (NCUA 4000); income designated credit unions, such as There are two types of charter conversions: • Organization Certificate (NCUA 4008). expanded use of nonmember deposits and Federal charter to state charter and state Only Part (3) and the signature/notary section access to the Community Development charter to federal charter. Common bond and should be completed and, where applicable, Revolving Loan Program for Credit Unions. community requirements are not an issue signed by the credit union officials. from NCUA’s standpoint in the case of a • Report of Officials and Agreement To IV—Appeal Procedures for Underserved federal to state charter conversion. The Serve (NCUA 4012); Areas procedures and forms relevant to both types • The Application to Convert From State IV.A—NCUA Approval of charter conversion are included in Credit Union To Federal Credit Union Appendix 4. (NCUA 4401); If the requested underserved area is • The Application and Agreements for approved by NCUA, the credit union will be II—Conversion of a State Credit Union to a Insurance of Accounts (NCUA 9500); issued an amendment to Section 5 of its Federal Credit Union • charter. Certification of Resolution (NCUA 9501); II.A—General Requirements • Written evidence regarding whether the IV.B—NCUA Disapproval Any state-chartered credit union may state regulator is in agreement with the When NCUA disapproves any application conversion proposal; and apply to convert to a federal credit union. In • to add an underserved area, in whole or in order to do so it must: Business plan, as appropriate, including part, under this chapter, the applicant will be • Comply with state law regarding the most current financial report and informed in writing of the: conversion and file proof of compliance with delinquent loan schedule. • Specific reasons for the action; NCUA; If the state charter is applying to become • Options to consider, if appropriate, for • File the required conversion application, a federal community charter, it must also gaining approval; and proposed federal credit union organization comply with the documentation • Appeal procedures. certificate, and other documents with NCUA; requirements included in Chapter 2, Section • Comply with the requirements of the V.A.2 of this manual. IV.C—Appeal of Regional Director Decision Federal Credit Union Act, e.g., chartering and II.C—NCUA Consideration of Application To If the regional director denies an reserve requirements; and Convert underserved area request, the federal credit • Be granted federal share insurance by union may appeal the decision to the NCUA NCUA. II.C.1—Review by the Regional Director Board. An appeal must be sent to the Conversions are treated the same as any The application will be reviewed to appropriate regional office within 60 days of initial application for a federal charter, determine that it is complete and that the the date of denial and must address the including an on-site examination by NCUA proposal is in compliance with Section 125 specific reason(s) for the denial. The regional where appropriate. NCUA will also consult of the Federal Credit Union Act. This review director will then forward the appeal to the with the appropriate state authority regarding will include a determination that the state NCUA Board. NCUA central office staff will the credit union’s current financial credit union’s field of membership is in make an independent review of the facts and condition, management expertise, and past compliance with NCUA’s chartering policies. present the appeal to the NCUA Board with performance. Since the applicant in a The regional director may make further a recommendation. conversion is an ongoing credit union, the investigation into the proposal and may Before appealing, the credit union may, economic advisability of granting a charter is require the submission of additional within 30 days of the denial, provide more readily determinable than in the case of information to support the request to convert. supplemental information to the regional an initial charter applicant. II.C.2—On-Site Review director for reconsideration. A A converting state credit union’s field of reconsideration will contain new and membership must conform to NCUA’s NCUA may conduct an on-site examination material evidence addressing the reasons for chartering policy. The field of membership of the books and records of the credit union. the initial denial. The regional director will will be phrased in accordance with NCUA Non-federally insured credit unions will be have 30 days from the date of the receipt of chartering policy. However, if the converting assessed an insurance application fee. the request for reconsideration to make a credit union is a multiple group charter and II.C.3—Approval by the Regional Director final decision. If the request is again denied, the new federal charter is a multiple group, and Conditions to the Approval the applicant may proceed with the appeal then the new federal charter may retain in its The conversion will be approved by the process within 60 days of the date of the last field of membership any group that the state regional director if it is in compliance with denial. A second request for reconsideration credit union was serving at the time of Section 125 of the Federal Credit Union Act will be treated as an appeal to the NCUA conversion. Subsequent changes must Board. conform to NCUA chartering policy in effect and meets the criteria for federal insurance. Where applicable, the regional director will Chapter 4 at that time. If the converting credit union is a specify any special conditions that the credit Charter Conversions community charter and the new federal union must meet in order to convert to a charter is community-based, it must meet the federal charter, including changes to the I—Introduction community field of membership credit union’s field of membership in order A charter conversion is a change in the requirements set forth in Chapter 2, Section to conform to NCUA’s chartering policies. jurisdictional authority under which a credit V of this manual. If the state-chartered credit Some of these conditions may be set forth in union operates. union’s community boundary is more a Letter of Understanding and Agreement Federal credit unions receive their charters expansive than the approved federal (LUA), which requires the signature of the from NCUA and are subject to its boundary, only members of record outside of officials and the regional director. supervision, examination, and regulation. the new community boundary may continue II.C.4—Notification State-chartered credit unions are to be served. The regional director will notify both the incorporated in a particular state, receiving The converting credit union, regardless of credit union and the state regulator of the their charter from the state agency charter type, may continue to serve members decision on the conversion. responsible for credit unions and subject to of record. The converting credit union may the state’s regulator. If the state-chartered retain in its field of membership any group II.C.5—NCUA Disapproval credit union’s deposits are federally insured, or community added pursuant to state When NCUA disapproves any application it will also fall under NCUA’s jurisdiction. emergency provisions. to convert to a federal charter, the applicant A federal credit union’s power and will be informed in writing of the: authority are derived from the Federal Credit II.B—Submission of Conversion Proposal to • Specific reasons for the action; Union Act and NCUA Rules and Regulations. NCUA • Options to consider, if appropriate, for State-chartered credit unions are governed by The following documents must be gaining approval; and state law and regulation. Certain federal laws submitted with the conversion proposal: • Appeal procedures.

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II.C.6—Appeal of Regional Director Decision and the state regulator of the date of the III.B—Special Provisions Regarding Federal If a conversion to a federal charter is conversion. Share Insurance denied by the regional director, the applicant II.E.2—Assumption of Assets and Liabilities If the federal credit union intends to credit union may appeal the decision to the As of the effective date of the conversion, continue federal share insurance after the NCUA Board. An appeal must be sent to the the federal credit union will be the owner of conversion to a state credit union, it must appropriate regional office within 60 days of all of the assets and will be responsible for submit an Application for Insurance of the date of denial and must address the all of the liabilities and share accounts of the Accounts (NCUA 9600) to the regional specific reason(s) for the denial. The regional state credit union. director at the time it requests approval of the director will then forward the appeal to the conversion proposal. The regional director NCUA Board. NCUA central office staff will II.E.3—Board of Directors’ Meeting has the authority to approve or disapprove make an independent review of the facts and Upon receipt of its federal charter, the the application. present the appeal to the NCUA Board with board will hold its first meeting as a federal If the converting federal credit union does a recommendation. credit union. At this meeting, the board will not intend to continue federal share Before appealing, the credit union may, transact such business as is necessary to insurance or if its application for continued within 30 days of the denial, provide complete the conversion as approved and to insurance is denied, insurance will cease in supplemental information to the regional operate the credit union in accordance with accordance with the provisions of Section director for reconsideration. The request will the requirements of the Federal Credit Union 206 of the Federal Credit Union Act. not be considered as an appeal, but a request Act and NCUA Rules and Regulations. If, upon its conversion to a state credit for reconsideration by the regional director. As of the commencement of operations, the union, the federal credit union will be The regional director will have 30 business accounting system, records, and forms must terminating its federal share insurance or days from the date of the receipt of the conform to the standards established by converting from federal to non-federal share request for reconsideration to make a final NCUA. insurance, it must comply with the decision. If the application is again denied, II.E.4—Credit Union’s Name membership notice and voting procedures set the credit union may proceed with the appeal forth in Section 206 of the Federal Credit process to the NCUA Board within 60 days Changing of the credit union’s name on all Union Act and Part 708 of NCUA’s Rules and of the date of the last denial by the regional signage, records, accounts, investments, and Regulations, and address the criteria set forth director. other documents should be accomplished as in Section 205(c) of the Federal Credit Union soon as possible after conversion. The credit Act. II.D—Action by Board of Directors union has 180 days from the effective date of Where the state credit union will be non- II.D.1—General the conversion to change its signage and federally insured, federal insurance ceases on promotional material. This requires the credit Upon being informed of the regional the effective date of the charter conversion. union to discontinue using any remaining director’s preliminary approval, the board If it will be otherwise uninsured, then federal stock of ‘‘state credit union’’ stationery must: insurance will cease one year after the date immediately, and discontinue using credit • Comply with all requirements of the of conversion subject to the restrictions in cards, ATM cards, etc., within 180 days after state regulator that will enable the credit Section 206(d)(1) of the Federal Credit Union the effective date of the conversion, or the union to convert to a federal charter and Act. In either case, the state credit union will reissue date, whichever is later. The regional cease being a state credit union; be entitled to a refund of the federal credit director has the discretion to extend the • Obtain a letter or official statement from union’s NCUSIF capitalization deposit after timeframe for an additional 180 days. the state regulator certifying that the credit the final date on which any of its shares are Member share drafts with the state-chartered union has met all of the state requirements federally insured. name can be used by the members until and will cease to be a state credit union upon The NCUA Board reserves the right to its receiving a federal charter. A copy of this depleted. delay the refund of the capitalization deposit document must be submitted to the regional II.E.5—Reports to NCUA for up to one year if it determines that payment would jeopardize the NCUSIF. director; Within 10 business days after • Obtain a letter from the private share commencement of operations, the recently III.C—Submission of Conversion Proposal to insurer (includes excess share insurers), if converted federal credit union must submit NCUA applicable, certifying that the credit union to the regional director the following: Upon approval of a proposition for has met all withdrawal requirements. A copy • Report of Officials (NCUA 4501); and of this document must be submitted to the • conversion by a majority vote of the board of Financial and Statistical Reports, as of directors at a meeting held in accordance regional director; and the commencement of business of the federal • with the federal credit union’s bylaws, the Submit a statement of the action taken to credit union. comply with any conditions imposed by the conversion proposal will be submitted to the regional director in the preliminary approval III—Conversion of a Federal Credit Union to regional director and will include: • of the conversion proposal and, if applicable, a State Credit Union A current financial report; • submit the signed LUA. A current delinquent loan schedule; III.A—General Requirements • An explanation and appropriate II.D.2—Application for a Federal Charter Any federal credit union may apply to documents relative to any changes in When the regional director has received convert to a state credit union. In order to do insurance of member accounts; evidence that the board of directors has so, it must: • A resolution of the board of directors; satisfactorily completed the actions described • Notify NCUA prior to commencing the • A proposed Notice of Special Meeting of above, the federal charter and new Certificate process to convert to a state charter and state the Members (NCUA 4221); of Insurance will be issued. the reason(s) for the conversion; • A copy of the ballot to be sent to all The credit union may then complete the • Comply with the requirements of Section members (NCUA 4506); • conversion as discussed in the following 125 of the Federal Credit Union Act that If the credit union intends to continue section. A denial of a conversion application enable it to convert to a state credit union with federal share insurance, an application can be appealed. Refer to Section II.C.6 of and to cease being a federal credit union; and for insurance of accounts (NCUA 9600); • this chapter. • Comply with applicable state law and Evidence that the state regulator is in the requirements of the state regulator. agreement with the conversion proposal; and II.E—Completion of the Conversion • It is important that the credit union A statement of reasons supporting the II.E.1—Effective Date of Conversion provide an accurate disclosure of the reasons request to convert. The date on which the regional director for the conversion. These reasons should be III.D—Approval of Proposal To Convert approves the Organization Certificate and the stated in specific terms, not as generalities. Application and Agreements for Insurance of The federal credit union converting to a state III.D.1—Review by the Regional Director Accounts is the date on which the credit charter remains responsible for the entire The proposal will be reviewed to union becomes a federal credit union. The operating fee for the year in which it determine that it is complete and is in regional director will notify the credit union converts. compliance with Section 125 of the Federal

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Credit Union Act. The regional director may Æ Specify the purpose, time and place of accompanied by the federal charter and the make further investigation into the proposal the meeting; federal insurance certificate. A copy of the and require the submission of additional Æ Include a brief, complete, and accurate financial reports as of the preceding month- information to support the request. statement of the reasons for and against the end should be submitted at this time. • III.D.2—Conditions to the Approval proposed conversion, including any effects it The regional director will notify the could have upon share holdings, insurance of credit union and the state regulator in writing The regional director will specify any member accounts, and the policies and of the receipt of evidence that the credit special conditions that the credit union must practices of the credit union; union has been authorized to operate as a meet in order to proceed with the conversion. Æ Specify the costs of the conversion, i.e., state credit union. III.D.3—Approval by the Regional Director changing the credit union’s name, • The credit union shall cease to be a The proposal will be approved by the examination and operating fees, attorney and federal credit union as of the effective date regional director if it is in compliance with consulting fees, tax liability, etc.; of the state charter. • Section 125 and, in the case where the state Æ Inform the members that they have the If the regional director finds a material credit union will no longer be federally right to vote on the proposal at the meeting, deviation from the provisions that would insured, the notice and voting requirements or by written ballot to be filed not later than invalidate any steps taken in the conversion, of Section 206 of the Federal Credit Union the date and time announced for the annual the credit union and the state regulator shall Act. meeting, or at the special meeting called for be promptly notified in writing. This notice may be either before or after the copy of the III.D.4—Notification that purpose; Æ Be accompanied by a Federal to State state charter is filed with the regional The regional director will notify both the Conversion—Ballot for Conversion Proposal director. The notice will inform the credit credit union and the state regulator of the (NCUA 4506); and union as to the nature of the adverse decision on the proposal. Æ State in bold face type that the issue will findings. The conversion will not be effective III.D.5—NCUA Disapproval be decided by a majority of members who and completed until the improper actions vote. and steps have been corrected. When NCUA disapproves any application • to convert to a state charter, the applicant • The proposed conversion must be Upon ceasing to be a federal credit will be informed in writing of the: approved by a majority of all of the members union, the credit union shall no longer be • Specific reasons for the action; who vote on the proposal, a quorum being subject to any of the provisions of the Federal • If appropriate, options or suggestions present, in order for the credit union to Credit Union Act, except as may apply if that could be considered for gaining proceed further with the proposition, federal share insurance coverage is approval; and provided federal insurance is maintained. If continued. The successor state credit union • Appeal procedures. the proposed state-chartered credit union shall be immediately vested with all of the assets and shall continue to be responsible III.D.6—Appeal of Regional Director Decision will not be federally insured, 20 percent of the total membership must participate in the for all of the obligations of the federal credit If the regional director denies a conversion voting, and of those, a majority must vote in union to the same extent as though the to a state charter, the applicant credit union favor of the proposal. Ballots cast by conversion had not taken place. Operation of may appeal the decision to the NCUA Board. members who did not attend the meeting but the credit union from this point will be in An appeal must be sent to the appropriate who submitted their ballots in accordance accordance with the requirements of state regional office within 60 days of the date of with instructions above will be counted with law and the state regulator. • denial and must address the specific votes cast at the meeting. In order to have a If the regional director is satisfied that reason(s) for the denial. The regional director suitable record of the vote, the voting at the the conversion has been accomplished in will then forward the appeal to the NCUA meeting should be by written ballot as well. accordance with the approved proposal, the Board. NCUA central office staff will make an • The board of directors shall, within 10 federal charter will be canceled. independent review of the facts and present • days, certify the results of the membership There is no federal requirement for the appeal to the NCUA Board with a closing the records of the federal credit union recommendation. vote to the regional director. The statement shall be verified by affidavits of the Chief at the time of conversion or for the manner Before appealing, the credit union may, in which the records shall be maintained within 30 days of the denial, provide Executive Officer and the Recording Officer on NCUA 4505. thereafter. The converting credit union is supplemental information to the regional advised to contact the state regulator for director for reconsideration. The request will III.F—Compliance With State Laws applicable state requirements. not be considered as an appeal, but a request • The credit union shall neither use the for reconsideration by the regional director. If the proposal for conversion is approved words ‘‘Federal Credit Union’’ in its name The regional director will have 30 business by a majority of all members who voted, the nor represent itself in any manner as being days from the date of the receipt of the board of directors will: • Ensure that all requirements of state law a federal credit union. request for reconsideration to make a final • decision. If the application is again denied, and the state regulator have been Changing of the credit union’s name on the credit union may proceed with the appeal accommodated; all signage, records, accounts, investments, • process to the NCUA Board within 60 days Ensure that the state charter or the and other documents should be of the date of the last denial by the regional license has been received within 90 days accomplished as soon as possible after director. from the date the members approved the conversion. Unless it violates state law, the proposal to convert; and credit union has 180 days from the effective III.E—Approval of Proposal by Members • Ensure that the regional director is kept date of the conversion to change its signage The members may not vote on the proposal informed as to progress toward conversion and promotional material. This requires the until it is approved by the regional director. and of any material delay or of substantial credit union to discontinue using any Once approval of the proposal is received, difficulties which may be encountered. remaining stock of ‘‘federal credit union’’ the following actions will be taken by the If the conversion cannot be completed stationery immediately, and discontinue board of directors: within the 90-day period, the regional using credit cards, ATM cards, etc., within • The proposal must be submitted to the director should be informed of the reasons 180 days after the effective date of the members for approval and a date set for a for the delay. The regional director may set conversion, or the reissue date, whichever is meeting to vote on the proposal. The a new date for the conversion to be later. The regional director has the discretion proposal may be acted on at the annual completed. to extend the timeframe for an additional 180 meeting or at a special meeting for that days. Member share drafts with the federal purpose. The members must also be given the III.G—Completion of Conversion chartered name can be used by the members opportunity to vote by written ballot to be In order for the conversion to be until depleted. If the state credit union is not filed by the date set for the meeting. completed, the following steps are necessary: federally insured, it must change its name • Members must be given advance notice • The board of directors will submit a copy and must immediately cease using any credit (NCUA 4221) of the meeting at which the of the state charter to the regional director union documents referencing federal proposal is to be submitted. The notice must: within 10 days of its receipt. This will be insurance.

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• If the state credit union is to be federally (Approved by the Office of Management and insured, the regional director will issue a Budget under control numbers 3133–0015 new insurance certificate. and 3133–0116) BILLING CODE 7535–01–P

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[FR Doc. E8–12946 Filed 6–16–08; 8:45 am] BILLING CODE 7535–01–C

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Part III

Department of Justice 28 CFR Parts 35 and 36 Nondiscrimination on the Basis of Disability in State and Local Government Services; Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities; Proposed Rules

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DEPARTMENT OF JUSTICE 22031–0846. Overnight deliveries redacted, all or part of that comment should be sent to the Disability Rights may not be posted on http:// 28 CFR Part 35 Section, Civil Rights Division, U.S. www.regulations.gov. [CRT Docket No. 105; AG Order No. 2967– Department of Justice, located at 1425 Personal identifying information 2008] New York Avenue, NW., Suite 4039, identified and located as set forth above Washington, DC 20005. All comments will be placed in the agency’s public RIN 1190–AA46 will be made available for public docket file, but not posted online. Confidential business information Nondiscrimination on the Basis of viewing online at http:// www.regulations.gov. identified and located as set forth above Disability in State and Local will not be placed in the public docket FOR FURTHER INFORMATION CONTACT: Government Services file. If you wish to inspect the agency’s Janet L. Blizard, Deputy Chief, Disability public docket file in person by AGENCY: Department of Justice, Civil Rights Section, Civil Rights Division, appointment, please see the FOR Rights Division. U.S. Department of Justice, at (202) 307– FURTHER INFORMATION CONTACT ACTION: Notice of proposed rulemaking. 0663 (voice or TTY). This is not a toll- paragraph. free number. Information may also be SUMMARY: The Department of Justice obtained from the Department’s toll-free Overview (Department) is issuing this notice of ADA Information Line at (800) 514– proposed rulemaking (NPRM) in order Throughout this NPRM, the current, 0301 (voice) or (800) 514–0383 (TTY). legally enforceable ADA Standards will to: Adopt enforceable accessibility This rule is also available in an standards under the Americans with be referred to as the ‘‘1991 Standards.’’ accessible format on the ADA Home 28 CFR part 36, App. A, 56 FR 35544 Disabilities Act of 1990 (ADA) that are Page at http://www.ada.gov. You may ‘‘consistent with the minimum (July 26, 1991), modified in part 59 FR obtain copies of this rule in large print 2674 (Jan. 18, 1994). The Access Board’s guidelines and requirements issued by or on computer disk by calling the ADA the Architectural and Transportation 2004 revised guidelines will be referred Information Line at the number listed to as the ‘‘2004 ADAAG.’’ 69 FR 44084 Barriers Compliance Board’’ (Access above. Board); and perform periodic reviews of (July 23, 2004), as amended (editorial any rule judged to have a significant SUPPLEMENTARY INFORMATION: changes only) at 70 FR 45283 (Aug. 5, economic impact on a substantial 2005). The revisions now proposed in Electronic Submission and Posting of the NPRM, based on the 2004 ADAAG, number of small entities, and a Public Comments regulatory assessment of the costs and are referred to in the preamble as the benefits of any significant regulatory You may submit electronic comments ‘‘proposed standards.’’ action as required by the Regulatory to http://www.regulations.gov. When In performing the required periodic Flexibility Act, as amended by the submitting comments electronically, review of its existing regulations, the Small Business Regulatory Enforcement you must include CRT Docket No. 105 Department has reviewed its title II Fairness Act of 1996 (SBREFA). in the subject box, and you must regulation section by section, and, as a In this NPRM, the Department include your full name and address. result, proposes several clarifications proposes to adopt Parts I and III of the Please note that all comments and amendments in this NPRM. In Americans with Disabilities Act and received are considered part of the addition, the Department’s initial, Architectural Barriers Act Accessibility public record and made available for formal benefit-cost analysis dealing with Guidelines (2004 ADAAG), which were public inspection online at http:// the Department’s NPRMs for both titles published by the Access Board on July www.regulations.gov. Such information II and III is included in this NPRM. See 23, 2004. Prior to its adoption by the includes personal identifying E.O. 12866, 58 FR 51735 (Sept. 30, Department, the 2004 ADAAG is information (such as your name, 1993), amended by E.O. 13258, 67 FR effective only as guidance to the address, etc.) voluntarily submitted by 9385 (Feb. 26, 2002), and E.O. 13422, 72 Department; it has no legal effect on the the commenter. FR 2763 (Jan. 18, 2007); 5 U.S.C. 601, If you want to submit personal public until the Department issues a 603, 610(a); and OMB Circular A–4, identifying information (such as your final rule adopting the revised ADA http://www.whitehouse.gov/omb/ name, address, etc.) as part of your Standards (proposed standards). circulars/a004/a-4.pdf. The NPRM was Concurrently with the publication of comment, but do not want it to be submitted to the Office of Management this NPRM, the Department is posted online, you must include the and Budget (OMB), Office of publishing an NPRM to amend its title phrase ‘‘PERSONAL IDENTIFYING Information and Regulatory Affairs, for III regulation, which covers public INFORMATION’’ in the first paragraph review and approval prior to accommodations and commercial of your comment. You must also locate publication in the Federal Register. all the personal identifying information facilities, in order to adopt the 2004 Purpose ADAAG as its proposed standards for you do not want posted online in the On July 26, 1990, President George H. title III entities, to make amendments to first paragraph of your comment and W. Bush signed into law the Americans the title III regulation for consistency identify information you want redacted. If you want to submit confidential with Disabilities Act, 42 U.S.C. 12101 et with title II, and to make amendments business information as part of your seq., a comprehensive civil rights law that reflect the collective experience of comment but do not want it posted prohibiting discrimination on the basis sixteen years of enforcement of the online, you must include the phrase of disability. At the beginning of his ADA. ‘‘CONFIDENTIAL BUSINESS administration, President George W. DATES: All comments must be received INFORMATION’’ in the first paragraph Bush underscored the nation’s by August 18, 2008. of your comment. You must also commitment to ensuring the rights of ADDRESSES: Submit electronic prominently identify confidential over 50 million individuals with comments and other data to http:// business information to be redacted disabilities nationwide by announcing www.regulations.gov. Address written within the comment. If a comment has the New Freedom Initiative (available at comments concerning this NPRM to: so much confidential business http://www.whitehouse.gov/infocus/ ADA NPRM, P.O. Box 2846, Fairfax, VA information that it cannot be effectively newfreedom). The Access Board’s

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publication of the 2004 ADAAG is the based upon the version of ADAAG transportation services that are subject culmination of a long-term effort to published by the Access Board on the to subtitle B of title II should be facilitate ADA compliance and same date. Under the current regulation, reminded that the Department’s enforcement by eliminating, to the title II entities are required to comply regulation, at 28 CFR 35.102, provides extent possible, inconsistencies among either with the 1991 Standards or with that— federal accessibility requirements and the Uniform Federal Accessibility (a) Except as provided in paragraph (b) of between federal accessibility Standards (UFAS), 41 CFR part 101– this section, this part applies to all services, requirements and state and local 19.6, App. A—which many public programs, and activities provided or made building codes. In support of this effort, entities were accustomed to following available by public entities. the Department is announcing its under section 504—with respect to (b) To the extent that public transportation intention to adopt standards consistent newly constructed or altered facilities. services, programs, and activities of public with Parts I and III of the 2004 ADAAG entities are covered by subtitle B of title II of Relationship to Other Laws the ADA, 42 U.S.C. 12141, they are not as the ADA Standards for Accessible subject to the requirements of this part. Design. To facilitate this process, the The Department of Justice regulation Department is seeking public comment implementing title II, 28 CFR 35.103, Nothing in this proposed rule alters on the issues discussed in this notice. provides: that provision. To the extent that the public transportation services, The ADA and Department of Justice (a) Rule of interpretation. Except as programs, and activities of public Regulations otherwise provided in this part, this part shall not be construed to apply a lesser entities are covered by subtitle B of title The ADA broadly protects the rights standard than the standards applied under II of the ADA, they are subject to the of individuals with disabilities in title V of the Rehabilitation Act of 1973, 29 regulation of the Department of employment, access to state and local U.S.C. 791 et seq., or the regulations issued Transportation (DOT) at 49 CFR part 37 government services, places of public by federal agencies pursuant to that title. and are not covered by this proposed accommodation, transportation, and (b) Other laws. This part does not rule. Matters not covered by subtitle B other important areas of American life invalidate or limit the remedies, rights, and are covered by this rule. In addition, and, in addition, requires newly procedures of any other federal, state or local activities not specifically addressed by designed and constructed or altered laws (including state common law) that DOT’s ADA regulation may be covered provide greater or equal protection for the by DOT’s regulation implementing state and local government facilities, rights of individuals with disabilities or public accommodations, and individuals associated with them. section 504 for its federally assisted commercial facilities to be readily programs and activities at 49 CFR part accessible to and usable by individuals Nothing in this proposed rule will 27. Like other programs of public with disabilities. 42 U.S.C. 12101 et seq. alter this relationship. The Department entities that are also recipients of federal Under the ADA, the Department is recognizes that public entities subject to financial assistance, those programs responsible for issuing regulations to title II of the ADA may also be subject would be covered by both the section implement title II and title III of the Act, to title I of the ADA, which prohibits 504 regulation and this part. Airports except to the extent that transportation discrimination on the basis of disability operated by public entities are not providers subject to title II or title III are in employment, section 504, which subject to DOT’s ADA regulation, but regulated by the Department of prohibits discrimination on the basis of they are subject to subpart A of title II Transportation. Id. at 12134. disability in the programs and activities and to this rule. The Department is also proposing of recipients of federal financial The Roles of the Access Board and the amendments to its title III regulation, assistance, and other federal statutes Department of Justice which prohibits discrimination on the such as the Air Carrier Access Act, 49 basis of disability in public U.S.C. 41705, and the Fair Housing Act, The Access Board was established by accommodations and commercial 42 U.S.C. 3601 et seq. Compliance with section 502 of the Rehabilitation Act of facilities, published concurrently with the Department’s regulations under the 1973, 29 U.S.C. 792. The Board consists the publication of this NPRM, in this ADA does not necessarily ensure of thirteen public members appointed issue of the Federal Register. compliance with other federal statutes. by the President, of whom the majority Title II applies to state and local Public entities that are subject both to must be individuals with disabilities, government entities, and, in Subtitle A, the Department’s regulations and to and the heads of twelve federal protects qualified individuals with regulations published by other federal departments and agencies specified by disabilities from discrimination on the agencies must ensure that they comply statute, including the heads of the basis of disability in services, programs, with the requirements of both Department of Justice and the and activities provided by state and regulations. If there is a direct conflict Department of Transportation. local government entities. Title II between the regulations, the regulation Originally, the Access Board was extends the prohibition of that provides greater accessibility will established to develop and maintain discrimination established by section prevail. When different statutes apply to accessibility guidelines for federally 504 of the Rehabilitation Act of 1973, as entities that routinely interact, each funded facilities under the Architectural amended, 29 U.S.C. 794 (section 504), to entity must follow the regulation that Barriers Act of 1968 (ABA), 42 U.S.C. all activities of state and local specifically applies to it. For example, a 4151 et seq. The passage of the ADA governments regardless of whether these public airport is a title II facility that expanded the Access Board’s entities receive federal financial houses air carriers subject to the Air responsibilities. The ADA requires the assistance. 42 U.S.C. 12131–65. Carrier Access Act (ACAA). The public Access Board to ‘‘issue minimum On July 26, 1991, the Department airport operator would comply with the guidelines that shall supplement the issued its final rules implementing title title II requirements, not with the ACAA existing Minimum Guidelines and II and title III, which are codified at 28 requirements. Conversely, the air carrier Requirements for Accessible Design for CFR part 35 (title II) and part 36 (title is required to comply with the ACAA, purposes of subchapters II and III of this III). Appendix A of the title III not with the ADA. chapter * * * to ensure that buildings, regulation, at 28 CFR part 36, contains In addition, public entities (including facilities, rail passenger cars, and the current 1991 Standards, which were AMTRAK) that provide public vehicles are accessible, in terms of

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architecture and design, transportation, industry, the building code community, ADAAG by soliciting public input on and communication, to individuals with state and local government entities, and issues relating to the potential disabilities.’’ 42 U.S.C. 12204. The ADA individuals with disabilities. In 1999, application of the Access Board’s requires the Department to issue based largely on the report and revisions once the Department adopts regulations that include enforceable recommendations of the advisory them as revised standards; and (2) to accessibility standards applicable to committee,1 the Access Board issued a request background information that facilities subject to title II or title III that proposed rule to jointly update and would assist the Department in are consistent with the minimum revise its ADA and ABA accessibility preparing a regulatory analysis under guidelines issued by the Access Board. guidelines. 64 FR 62248 (Nov. 16, 1999). the guidance provided in OMB Circular Id. at 12134, 12186. In response to its rule, the Access Board A–4, http://www.whitehouse.gov/omb/ The Department was extensively received more than 2,500 comments circulars/a004/a-4.pdf, Sections D involved in the development of the 2004 from individuals with disabilities, (Analytical Approaches) and E ADAAG. As a federal member of the affected industries, state and local (Identifying and Measuring Benefits and Access Board, the Attorney General’s governments, and others. The Access Costs). While underscoring that the representative voted to approve the Board provided further opportunity for Department, as a member of the Access revised guidelines. Although the participation by holding public hearings Board, had already reviewed comments enforceable standards issued by the throughout the nation. The Access provided to the Access Board during its Department under title II and title III Board worked vigorously from the development of the 2004 ADAAG, the must be consistent with the minimum beginning to harmonize the ADA and Department specifically requested guidelines published by the Access ABA Accessibility Guidelines with public comment on the potential Board, it is the responsibility solely of industry standards and model codes application of the 2004 ADAAG to the Attorney General to promulgate that form the basis for many state and existing facilities. The extent to which standards and to interpret and enforce local building codes. The Access Board the 2004 ADAAG is used with respect those standards. released an interim draft of its to the program access requirement in The ADA also requires the guidelines to the public on April 2, title II (like the readily achievable Department to develop regulations with 2002, 67 FR 15509, in order to provide barrier removal requirement applicable respect to existing facilities subject to an opportunity for entities with model to existing facilities under title III) is title II (Subtitle A) and title III. How and codes to consider amendments that solely within the discretion of the to what extent the Access Board’s would promote further harmonization. Department. The ANPRM dealt with the guidelines are used with respect to the By the date of its final publication on Department’s responsibilities under readily achievable barrier removal July 23, 2004, 69 FR 44084, the 2004 both title II and title III. requirement applicable to existing ADAAG had been the subject of Public response to the ANPRM was facilities under title III of the ADA and extraordinary public participation and extraordinary. The Department to the provision of program accessibility review. under title II of the ADA are solely In addition, the Access Board extended the comment deadline by four within the discretion of the Department amended the ADAAG four times since months at the public’s request. 70 FR of Justice. 1998. In 1998, it added specific 2992 (Jan. 19, 2005). By the end of the extended comment period, the The Revised Guidelines (2004 ADAAG) guidelines on state and local government facilities, 63 FR 2000 (Jan. Department had received more than 900 Part I of the 2004 ADAAG provides 13, 1998), and building elements comments covering a broad range of so-called ‘‘scoping’’ requirements for designed for use by children, 63 FR issues. Most of the comments responded facilities subject to the ADA; ‘‘scoping’’ 2060 (Jan. 13, 1998). Subsequently, the to questions specifically posed by the is a term used in the 2004 ADAAG to Access Board added specific guidelines Department, including issues involving describe requirements (set out in Parts on play areas, 65 FR 62498 (Oct. 18, the application of the 2004 ADAAG I and II) that prescribe what elements 2000), and on recreation facilities, 67 FR once the Department adopts it, and cost and spaces—and, in some cases, how 56352 (Sept. 3, 2002). information to assist the Department in many of them—must comply with the These amendments to the ADAAG its regulatory assessment. The public technical specifications. Part II provides have not previously been adopted by the provided information on how to assess scoping requirements for facilities Department as ADA Standards. Through the cost of compliance by small entities, subject to the ABA (i.e., facilities this NPRM, the Department is office buildings, hotels and motels, designed, built, altered, or leased with announcing its intention to publish a assembly areas, hospitals and long-term federal funds). Part III provides uniform proposed rule that will adopt revised care facilities, residential units, technical specifications for facilities ADA Standards consistent with the recreational facilities, and play areas. subject to either statute. This revised 2004 ADAAG, including all of the Comments addressed the effective date format is designed to eliminate amendments to the ADAAG since 1998. of the proposed standards, the triggering unintended conflicts between the two event by which the effective date is The Advance Notice of Proposed federal accessibility standards and to measured in new construction, and Rulemaking minimize conflicts between the federal variations on a safe harbor, which regulations and the model codes that The Department published an would excuse elements in compliance form the basis of many state and local advance notice of proposed rulemaking with the 1991 Standards from building codes. (ANPRM) regarding its ADA regulation compliance with the proposed The revised 2004 ADAAG is the on September 30, 2004, 69 FR 58768, for standards. Comments responded to culmination of a ten-year effort to two reasons: (1) To begin the process of questions regarding elements scoped for improve ADA compliance and adopting the Access Board’s 2004 the ‘‘first time’’ in the 2004 ADAAG, enforcement. In 1994, the Access Board including detention and correctional began the process of updating the 1 After a two-year process of collaboration with facilities, recreational facilities and play the Access Board, the Advisory Committee issued original ADAAG by establishing an its Recommendations for a New ADAAG in areas, as well as proposed additions to advisory committee composed of September 1996, available at http://www.access- the Department’s regulation for items members of the design and construction board.gov/pubs.htm. such as free-standing equipment.

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Comments also dealt with the specific Access Board for further consideration than $100 million when using the 1991 requirements of the 2004 ADAAG. of the particular feature or facility. In Standards as the comparative baseline: Many commenters requested such a case, the Department would Side reach; water closet clearances in clarification of or changes to the delay adoption of the accessibility single-user toilet rooms with in- Department’s title II regulation. requirement for the particular feature or swinging doors; stairs; elevators; Commenters observed that now, more facility in question in its final rule and location of accessible routes to stages; than seventeen years after the enactment await Access Board action before accessible attorney areas and witness of the ADA, as facilities are becoming moving to consider any final action. stands; assistive listening systems; and physically accessible to individuals Regulatory Impact Analysis. An initial accessible teeing grounds, putting with disabilities, the Department needs regulatory impact analysis of the greens, and weather shelters at golf to focus on second-generation issues benefits and costs of a proposed rule is courses. However, this baseline figure that ensure individuals with disabilities required by Executive Order 12866 (as does not take into account the fact that, actually gain access to the accessible amended by Executive Order 13258 and since 1991, various model codes and elements. So, for example, commenters Executive Order 13422). A full benefit- consensus standards—such as the asked the Department to focus on such cost analysis is required of any model International Building Codes issues as ticketing in assembly areas and regulatory action that is deemed to be (‘‘IBC’’) published by the International reservations of boat slips. The public significant—that is, a regulation that Codes Council and the consensus asked about captioning and the division will have an annual effect of $100 accessibility standards developed by the of responsibility between the million or more on the economy. See American National Standards Institute Department and the Access Board for OMB Circular A–4; Regulatory (‘‘ANSI’’)—have been adopted by a fixed and non-fixed (or free-standing) Flexibility Act of 1980, 5 U.S.C. 601, majority of states (in whole or in part) equipment. Finally, commenters asked 603, as amended by the SBREFA, 5 and that these codes have provisions for clarification on some issues in the U.S.C. 610(a). mirroring the substance of the existing regulations, such as title III’s Early in the rulemaking process, the Department’s proposed regulations. requirements regarding service animals. Department concluded that the Indeed, such regulatory overlap is All of the issues raised in the public economic impact of its adoption of the intentional since harmonization among comments are addressed, in turn, in this 2004 ADAAG as proposed standards for federal accessibility standards, state and NPRM or in the NPRM for title III. title II and title III was likely to exceed local building codes, and model codes Issues involving title III of the ADA, the threshold for significant regulatory is one of the goals of the Department’s such as readily achievable barrier actions of $100 million. The Department rulemaking efforts. removal, are addressed in the NPRM for has completed its initial regulatory title III, published concurrently with impact analysis measuring the Even though the 1991 Standards are this NPRM in this issue of the Federal incremental benefits and costs of the an appropriate baseline to compare the Register. proposed standards; the initial new requirements against, since they regulatory impact analysis is addressed represent the current set of uniform Background (SBREFA, Regulatory at length with responses to public federal regulations governing Flexibility Act, and Executive Order) comments from the ANPRM in accessibility, in practice it is likely that Reviews Appendix B. many public and private facilities across The Department must provide two The public may notice differences the country are already being built or types of assessments as part of its between the Department’s regulatory altered in compliance with the NPRM: an analysis of the benefits and impact analysis and the Access Board’s Department’s proposed alterations costs of adopting the 2004 ADAAG as its regulatory assessment of the 2004 standards with respect to these proposed standards, and a periodic ADAAG. The differences in framework elements. Because the model codes are review of its existing regulations to and approach result from the differing voluntary, public entities often modify consider their impact on small entities, postures and responsibilities of the or carve out particular standards when including small businesses, small Department and the Access Board. First, adopting them into their laws, and even nonprofit organizations, and small the breadth of the proposed changes when the standards are the same, local governmental jurisdictions. E.O. 12866, assessed in Appendix A of this NPRM officials often interpret them differently. 58 FR 51735 (Sept. 30, 1993), as is greater than in the Access Board’s The mere fact that a state or local amended by E.O. 13258, 67 FR 9385 assessments related to the 2004 government has adopted a version of the (Feb. 26, 2002) and E.O. 13422, 72 FR ADAAG. Unlike the Access Board, the IBC does not necessarily mean that 2763 (Jan. 18, 2007); Regulatory Department must examine the effect of facilities within that jurisdiction are Flexibility Act of 1980, 5 U.S.C. 601, the proposed standards not only on legally subject to its accessibility 603, as amended by the Small Business newly constructed or altered facilities, provisions. Because of these Regulatory Enforcement Fairness Act of but also on existing facilities. Second, complications, and the inherent 1996 (SBREFA), 5 U.S.C. 610(a); OMB whereas the Access Board issued difficulty of determining which baseline Circular A–4; and E.O. 13272, 67 FR separate rules for many of the is the most appropriate for each 53461 (Aug. 13, 2002). differences between the 1991 Standards provision, the RIA accompanying this The Department leaves open the and the 2004 ADAAG (e.g., play areas rulemaking compares the costs and possibility that, as a result of the receipt and recreation facilities), the benefits of the proposed requirements to of comments on an issue raised by the Department is proposing to adopt several alternative baselines, which 2004 ADAAG, or if the Department’s several years of revisions in a single reflect various versions of existing Regulatory Impact Analysis reveals that rulemaking. building codes. In addition, since the the costs of making a particular feature According to the Department’s initial Department is soliciting comment on or facility accessible are Regulatory Impact Analysis (‘‘RIA’’), it these eight particular provisions with disproportionate to the benefits to is estimated that the incremental costs high net costs, the Department believes persons with disabilities, the Attorney of the proposed requirements for each of it is useful to further discuss the General, as a member of the Access the following eight existing elements potential impact of alternative baselines Board, may return the issue to the will exceed monetized benefits by more on these particular provisions.

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For example, the Department’s with the proposed regulations (side proposed requirement mandates that, proposed standards for existing stairs reach, water closet clearances in single- when a direct circulation path (for and elevators have identical user toilet rooms with in-swinging doors, audience members) connects the seating counterparts in one or more IBC stairs, elevators, location of accessible area to a stage, the accessible route to versions put in place before the 2004 routes to stages, accessible attorney the stage must also be direct. ADAAG (2000 or 2003). Please note, areas and witness stands, assistive The Department has generally however, that the IBC 2006 version listening systems, and accessible teeing determined that the overall costs for this bases a number of its provisions on grounds, putting greens, and weather requirement are relatively high in the guidelines in the 2004 ADAAG. These shelters at golf courses), as well as alterations context, due to the expense IBC versions, in turn, have been adopted additional practical benefits from these of having to provide a lift or ramp to collectively by forty-six (46) states and requirements, which are often difficult access the stage area directly, regardless the District of Columbia on a statewide to adequately monetize. of which baseline is used for the basis. In the four (4) remaining states The Department does not have analysis. The Department, however, has (Colorado, Delaware, Illinois, and statutory authority to modify the 2004 had difficulty in estimating the real Mississippi), while IBC adoption is left ADAAG; instead, the ADA requires the costs of this requirement because of a to the discretion of local jurisdictions, Attorney General to issue regulations lack of information about whether the vast majority of these local implementing the ADA that are colleges, elementary and secondary jurisdictions have elected to adopt IBC ‘‘consistent with’’ the ADA Accessibility schools, and entertainment venues now as their local code. Thus, given that Guidelines issued by the Access Board. routinely provide such access when nearly all jurisdictions in the country See 42 U.S.C. 12134(c), 12186(c). As they are altering existing auditoriums or currently enforce a version of the IBC as noted above in other parts of this how frequently such alterations occur. their building code, and to the extent preamble, the Department leaves open Also, the Department currently lacks that the IBC building codes may be the possibility of seeking further sufficient data or other sources with settled in this area and would not be consideration by the Access Board of which to quantify the benefits that further modified to be consistent if they particular issues raised by the 2004 accrue to students and other persons differ from the final version of these ADAAG based on disproportionate costs with disabilities who, as a result of regulations, the incremental costs and and compared to benefits and public direct access to stages, would be able to benefits attributable to the Department’s comments. The Access Board did not participate fully and equally in proposed regulations governing have the benefit of our RIA or public graduation exercises and other events. alterations to existing stairs and comment on our RIA as it pertains to the Question 3: The Department would elevators may be less significant than 2004 ADAAG. welcome information from operators of the RIA suggests over the life of the Question 2: The Department would auditoriums on the likelihood that their regulation. welcome comment on whether any of auditoriums will be altered in the next In a similar vein, consideration of an the proposed standards for these eight fifteen years, and, if so, whether such alternate IBC/ANSI baseline would also areas (side reach, water closet alterations are likely to include likely lower the incremental costs and clearances in single-user toilet rooms accessible and direct access to stages. In benefits for five other proposed with in-swinging doors, stairs, elevators, addition, the Department would like standards (side reach; water closet location of accessible routes to stages, specific information on whether, clearances in single-user toilet rooms accessible attorney areas and witness because of local law or policy, with in-swinging doors; location of stands, assistive listening systems, and auditorium operators are already accessible routes to stages; accessible accessible teeing grounds, putting providing a direct accessible route to attorney areas and witness stands; and greens, and weather shelters at golf their stages. (The Department is also assistive listening systems), albeit to a courses) should be raised with the interested in whether having to provide lesser extent. Each of these proposed Access Board for further consideration, a direct access to the stage would standards has a counterpart in either in particular as applied to alterations. encourage operators of auditoriums to Chapter 11 of one or more versions of Stages. The proposed requirement to postpone or cancel the alterations of the IBC, ANSI A117.1, or a functionally provide direct access to stages their facilities.) The Department also equivalent state accessibility code. represents an effort to ensure that seeks information on possible means of While IBC Chapter 11 and ANSI A117.1 individuals with disabilities are able to quantifying the benefits that accrue to have yet not been as widely adopted as participate in programs in an integrated persons with disabilities from this some other IBC chapters, the RIA setting. Under the current 1991 proposed requirement or on its nonetheless still estimates that between Standards, a compliant accessible route importance to them. To the extent that 15% and 35% of facilities nationwide connecting seating locations to such information cannot be quantified, are already covered by IBC/A117.1 performing areas is permitted to go the Department welcomes examples of provisions that mirror these five outside the assembly area and make use personal or anecdotal experience that proposed standards. It is thus expected of an indirect interior accessible route to illustrate the value of this requirement. that the incremental costs and benefits access the stage area. As a result, even The Department’s RIA also estimates for these proposed standards may also when other audience members are able significant costs, regardless of the be lower than the costs and benefits to access a stage directly via stairs in baseline used, for the proposed relative to the 1991 Standards baseline. order to participate in ceremonies, skits, requirement that court facilities must Question 1: The Department believes or other interactive on-stage events, provide an accessible route to a witness it would be useful to solicit input from persons with mobility disabilities may stand or attorney area and clear floor the public to inform us on the be required to use an inconvenient space to accommodate a wheelchair. anticipated costs or benefits for certain indirect entrance to the stage. As These costs arise both in the new requirements. The Department therefore graduates or award recipients, they may construction and alteration contexts. If invites comment as to what actual costs be required to part company with their the witness stand is raised, then either and benefits would be for these eight peers, to make their way to the stage a ramp or lift must be provided to existing elements, in particular as alone, and to make a conspicuous ensure access to the witness stand. applied to alterations, in compliance entrance. To address this situation, the While the RIA quantifies the benefits for

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this proposed requirement (as it does for hear or understand the audible portion existing golf courses should be reduced all of the proposed requirements) of the presentation. with little or no practical loss in primarily in terms of time savings, the From an economic perspective, the accessibility. Department fully appreciates that such cost of a single hearing-aid compliant Question 6: The Department seeks a methodology does not capture the ALS is not high—about $500 more than information from the owners and intangible benefits that accrue when a non-compliant system—and compliant operators of golf courses, both public persons with mobility disabilities are equipment is readily available on the and private, on the extent to which their able to participate in the court process retail market. As estimated in the RIA, courses already have golf car passages as conveniently as any other witness or the high overall costs for the revised to teeing grounds, putting greens, and party. Without access to the witness technical requirements for ALS are weather shelters, and, if so, whether stand, for example, a wheelchair user, or instead driven by the assumption that they intend to avail themselves of the a witness who uses other mobility entities with large assembly areas (such proposed exception. devices such as a walker or crutches, as universities, stadiums, and Analysis of impact on small entities. may have to sit at floor level. If the auditoriums) will be required to The second type of analysis that the witness with a mobility disability purchase a relatively large number of Department has undertaken is a review testifies from a floor level position, the compliant systems. On the other hand, of its existing regulations for title II and witness could be placed at a the overall scoping for ALS has been title III in order to consider the impact disadvantage in communicating with reduced in the Department’s proposed of those regulations on small entities. the judge and jury, who may no longer requirement, thus mitigating the cost to The review requires agencies to be able to see the witness as easily, or, covered entities. The proposed revision consider five factors: (1) The continued potentially, at all. This may create a to the technical requirement merely need for the rule; (2) the nature of reciprocal difficulty for the judge and specifies that 25% (or at least two) of complaints or comments received jurors who lose the sightline normally the required ALS receivers must be concerning the rule from the public; (3) provided by the raised witness stand hearing-aid compatible. The RIA the complexity of the rule; (4) the extent that enables them to see and hear the estimates that a significant part of the to which the rule overlaps, duplicates, witness in order to evaluate his or her cost of this requirement will come from or conflicts with other federal rules, demeanor and credibility—difficulty the replacement of individual ALS and, to the extent feasible, with state that redounds to the detriment of receivers and system maintenance. and local governmental rules; and (5) litigants themselves and ultimately our Question 5: The Department seeks the length of time since the rule has system of justice. information from arena and assembly been evaluated or the degree to which area administrators on their experiences technology, economic conditions, or Question 4: The Department in managing ALS. In order to evaluate other factors have changed in the area welcomes comment on how to measure the accuracy of the assumptions in the affected by the rule. 5 U.S.C. 610(b). or quantify the intangible benefits that RIA relating to ALS costs, the Based on these factors, the agency would accrue from accessible witness Department welcomes particular should determine whether to continue stands. We particularly invite anecdotal information on the life expectancy of the rule without change or to amend or accounts of the courtroom experiences ALS equipment and the cost of ongoing rescind the rule to minimize any of individuals with disabilities who have maintenance. significant economic impact of the rule encountered inaccessible witness The Department’s proposed on a substantial number of small stands, as well as the experiences of requirements mandate an accessible entities. Id. at 610(a). state and local governments in making (pedestrian) route that connects all In performing this review, the witness stands accessible, either in the accessible elements within the Department has gone through its new construction or alteration context. boundary of the golf course and facility, regulation section by section, and, as a Under the 1991 Standards, Assistive including teeing grounds, putting result, proposes several clarifications Listening Systems (‘‘ALS’’) are required greens, and weather shelters. Requiring and amendments in this NPRM. in courtrooms and in other settings access to necessary features of a golf Amendments to its title III regulation where audible communication is course ensures that persons with are proposed in the NPRM for title III integral to the use of the space and mobility disabilities may fully and published jointly with this rule. The audio amplification systems are equally participate in a recreational proposals reflect the Department’s provided for the general audience. activity. analysis and review of complaints or However, these Standards do not set From an economic perspective, the comments from the public as well as forth technical specifications for such Department’s RIA assumes that virtually changes in technology. Many of the systems. Since 1991, advancements in every tee and putting green on an proposals aim to clarify and simplify the ALS and the advent of digital existing course will need to be regraded obligations of covered entities. As technologies have made these systems in order to provide compliant accessible discussed in greater detail above, one more amenable to uniform technical (pedestrian) routes to these features. significant goal of the development of specifications. In keeping with these However, the Department’s proposal the 2004 ADAAG was to eliminate technological advancements, the revised also excuses compliance with the duplication or overlap in federal requirements create a technical standard requirement for an accessible accessibility guidelines as well as to that, among other things, ensures that a (pedestrian) route so long as a ‘‘golf car harmonize the federal guidelines with certain percentage of required ALS have passage’’ (i.e., the path typically used by model codes. The Department has also hearing-aid compatible receivers. golf cars) is otherwise provided to the worked to create harmony where Requiring hearing-aid compatible ALS teeing ground, putting green, or other appropriate between the requirements of enables persons who are hard of hearing accessible element on a course. Because titles II and III. Finally, while the to hear a speech, a play, a movie, or to it is likely that most public and private regulation is required by statute and follow the content of a trial. Without an golf courses in the United States already there is a continued need for it as a effective ALS, people with hearing loss provide golf passages to most or all whole, the Department proposes several are effectively excluded from holes, the actual costs of this modifications that are intended to participation because they are unable to requirement for owners and operators of reduce its effects on small entities.

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Organization of This NPRM Safe harbor. One of the most continue to determine accessibility in The subsequent sections of this NPRM important issues the Department must these facilities on a case-by-case basis deal with the Department’s response to address in proposing to adopt the 2004 under existing law? Please provide comments and its proposals for changes ADAAG as its new ADA Standards for information on the effect of such a to its current regulation that derive from Accessible Design is the effect that the proposal on people with disabilities and the required, periodic review that it proposed standards will have on public entities. performed. The proposed standards and existing facilities under title II. This Service animals. The Department the Department’s response to comments issue was not addressed in the 2004 wishes to clarify the obligations of regarding the 2004 ADAAG are ADAAG because it is outside of the public entities to accommodate contained in Appendix A to the NPRM. scope of the Access Board’s authority individuals with disabilities who use Appendix B to the NPRM contains the under the ADA. service animals. The Department Department’s initial, formal benefit-cost Under title II, program accessibility continues to receive a large number of analysis. requires that state and local government complaints from individuals with The section of the NPRM entitled, agencies provide individuals with service animals. It appears, therefore, ‘‘General Issues,’’ briefly introduces disabilities with access to their that many covered entities are confused topics that are noteworthy because they programs when ‘‘viewed in their about their obligations under the ADA are new to the title II regulation or have entirety.’’ Title II does not require in this area. At the same time, some been the subject of attention or structural modifications in all individuals with impairments—who comment. The topics introduced in the circumstances in order to provide would not be covered as qualified general issues section include: Safe program access. As a result of this individuals with disabilities—are harbor, service animals, wheelchairs flexibility, the Department believes that claiming that their animals are and other power-driven mobility the program accessibility requirement as legitimate service animals, whether devices, effective communication and it is codified in the current regulation fraudulently or sincerely (albeit auxiliary aids, alterations to prison may appropriately mitigate any burdens mistakenly), to gain access to the cells, and equipment. on public entities without additional facilities of public entities. Another Following the general issues section is regulatory safeguards. Nevertheless, in trend is the use of wild or exotic the ‘‘Section-By-Section Analysis and order to provide certainty and clarity, animals, many of which are untrained, Response to Comments.’’ This section the Department is proposing a safe as service animals. In order to clarify its includes a detailed discussion of the harbor for elements in existing facilities position and avoid further proposed changes to the text of the title that are in compliance with either the misapplication of the ADA, the II regulation. The section-by-section 1991 Standards or the Uniform Federal Department is proposing amendments to analysis follows the order of the current Accessibility Standards (UFAS), 41 CFR its regulation with regard to service regulation, except that regulatory part 101–19.6, App. A. This proposal is animals. sections that remain unchanged are not discussed below in § 35.150(b)(2) of the Minimal protection. In the indicated. The discussion within each section-by-section analysis. Department’s ADA Business Brief on section explains the proposals and the The Department invites comment on Service Animals, which was published reasoning behind them as well as the whether public entities that operate in 2002, the Department interpreted the Department’s response to related public existing facilities with play or recreation minimal protection language in its comments. Subject areas that deal with areas should be exempted from definition of service animals within the more than one section of the regulation compliance with certain requirements context of a seizure (i.e., alerting and include references to the related in the 2004 ADAAG. Existing facilities protecting a person who is having a sections where appropriate. would continue to be subject to seizure). Although the Department The section-by-section analysis accessibility requirements in existing received comments urging it to includes specific questions to which the law, but not specifically to the eliminate the phrase ‘‘providing Department requests public response. requirements in: (1) The Access Board’s minimal protection’’ from its regulation, These questions are numbered and supplemental guidelines on play areas, the Department continues to believe that italicized so that they are easier for 65 FR 62498 (Oct. 18, 2000); and (2) the the language serves the important readers to locate and reference. The Access Board’s supplemental guidelines function of excluding from coverage so- Department emphasizes, however, that on recreation facilities, 67 FR 56352 called ‘‘attack dogs’’ that pose a direct the public may comment on any aspect (Sept. 3, 2002). Under this scenario, the threat to others. of this NPRM and is not required to 2004 ADAAG would apply only to new Guidance on permissible service respond solely to questions specifically play areas and recreation facilities, and animals. The existing regulation posed by the Department. would not govern the accessibility of implementing title III defines a ‘‘service The Department’s proposed changes existing facilities as legal requirements. animal’’ as ‘‘any guide dog, signal dog, to the actual regulatory text of title II Public entities that operate existing or other animal.’’ At the time the that follow the section-by-section facilities with play or recreation areas, regulation was promulgated, the analysis are entitled, ‘‘Part 35: pursuant to the ADA’s requirements to Department believed that leaving the Nondiscrimination on the Basis of provide equal opportunity for species selection up to the discretion of Disability in State and Local individuals with disabilities, may still the individual with a disability was the Government Services.’’ have the obligation to provide an best course of action. Due to the accessible route to the playground, some proliferation of animal types that have General Issues accessible equipment, and an accessible been used as ‘‘service animals,’’ This section briefly introduces topics surface for the play area or recreation including wild animals, the Department that are noteworthy because they are facility. believes that this area needs established new to the title II regulation or have Question 7: Should the Department parameters. Therefore, the Department been the subject of considerable exempt public entities from specific is proposing to eliminate certain species attention or comment. Each topic is compliance with the supplemental from coverage under the ADA even if discussed in greater detail subsequently requirements for play areas and the other elements of the definition are in the section-by-section analysis. recreation facilities, and instead satisfied.

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Comfort animals vs. psychiatric where there may be compelling reasons for power-operated wheelchairs of 6 service animals. Under the Department’s to permit the use of animals whose miles per hour. In a study of trail and present regulatory language, some presence provides emotional support to other nonmotorized transportation users individuals and entities have assumed a person with a disability. Accordingly, including EPAMDs, the Federal that the requirement that service other federal agency regulations Highway Administration (FHWA) found animals must be individually trained to governing those situations may that the eye height of people using do work or carry out tasks excluded all appropriately provide for increased EPAMDs ranged from 681⁄4 inches to persons with mental disabilities from access for animals other than service 791⁄2 inches. See Federal Highway having service animals. Others have animals. Administration, Characteristics of assumed that any person with a Proposed training standards. The Emerging Road and Trail Users and psychiatric condition whose pet Department has always required that Their Safety (Oct. 2004), available at provided comfort to him or her was service animals be individually trained http://www.tfhrc.gov/safety/pubs/04103. covered by the ADA. The Department to do work or perform tasks for the Thus, EPAMDs can operate at much believes that psychiatric service animals benefit of an individual with a greater speeds than wheelchairs, and the that are trained to do work or perform disability, but has never imposed any average user is much taller than most a task (e.g., reminding its owner to take type of formal training requirements or wheelchair users. medicine) for persons whose disability certification process. While some EPAMDs have been the subject of is covered by the ADA are protected by advocacy groups have urged the debate among users, pedestrians, the Department’s present regulatory Department to modify its position, the disability advocates, state and local approach. Department does not believe that such governments, businesses, and bicyclists. Psychiatric service animals can be a modification would serve the array of The fact that a device is not designed trained to perform a variety of tasks that individuals with disabilities who use primarily for use by or marketed assist individuals with disabilities to service animals. primarily to individuals with detect the onset of psychiatric episodes Detailed regulatory text changes and disabilities, nor used primarily by and ameliorate their effects. Tasks the Department’s response to public persons with disabilities, complicates performed by psychiatric service comments on these issues and others are the question of whether individuals animals may include reminding the discussed below in the definitions with disabilities should be allowed to handler to take medicine; providing § 35.104 and in a newly-proposed operate them in areas and facilities safety checks, or room searches, or § 35.136. where other powered devices are not turning on lights for persons with Post Wheelchairs and other power-driven allowed. Those who question the use of Traumatic Stress Disorder; interrupting mobility devices. Since the passage of EPAMDs in pedestrian areas argue that self-mutilation by persons with the ADA, choices of mobility aids the speed, size, and operating features of dissociative identity disorders; and available to individuals with disabilities the devices make them too dangerous to keeping disoriented individuals from have vastly increased. In addition to operate alongside pedestrians and danger. devices such as wheelchairs and wheelchair users. Although the question The Department is proposing new mobility scooters, individuals with of EPAMD safety has not been resolved, regulatory text in § 35.104 to formalize disabilities may use devices that are not many states have passed legislation its position on emotional support or designed primarily for use by addressing EPAMD operation on comfort animals, which is that individuals with disabilities, such as sidewalks, bicycle paths, and roads. In ‘‘[a]nimals whose sole function is to electronic personal assistive mobility addition, some states, such as Iowa and provide emotional support, comfort, devices (EPAMDs). (The only available Oregon, have minimum age therapy, companionship, therapeutic model known to the Department is the requirements, or mandatory helmet benefits, or promote emotional well- Segway.) The Department has received laws. New Jersey requires helmets for all being are not service animals.’’ The complaints and become aware of EPAMD users, while Hawaii and Department wishes to underscore that situations where individuals with Pennsylvania require helmets for users the exclusion of emotional support mobility disabilities have utilized riding under a certain age. animals from ADA coverage does not lawn mowers, golf cars, large While there may be legitimate safety mean that persons with psychiatric, wheelchairs with rubber tracks, issues for EPAMD users and bystanders, cognitive, or mental disabilities cannot gasoline-powered, two-wheeled EPAMDs and other nontraditional use service animals. The Department scooters, and other devices for mobility devices can deliver real proposes specific regulatory text in locomotion in pedestrian areas. These benefits to individuals with disabilities. § 35.104 to make this clear: ‘‘[t]he term new or adapted mobility aids benefit For example, individuals with severe service animal includes individually individuals with disabilities, but also respiratory conditions who can walk trained animals that do work or perform present new challenges for state and limited distances and individuals with tasks for the benefit of individuals with local governments. multiple sclerosis have reported disabilities, including psychiatric, EPAMDs illustrate some of the benefitting significantly from EPAMDs. cognitive, and mental disabilities.’’ This challenges posed by new mobility Such individuals often find that language simply clarifies the devices. The basic Segway model is a EPAMDs are more comfortable and Department’s longstanding position. two-wheeled, gyroscopically stabilized, easier to use than wheelchairs, and The Department’s rule is based on the battery-powered personal transportation assist with balance, circulation, and assumption that the title II and title III device. The user stands on a platform digestion in ways that wheelchairs do regulations govern a wider range of suspended three inches off the ground not. See Rachel Metz, Disabled Embrace public settings than the settings that by wheels on each side, grasps a T- Segway, New York Times, Oct. 14, 2004. allow for emotional support animals. shaped handle, and steers the device The Department has received The Department recognizes, however, similarly to a bicycle. The EPAMD can questions and complaints from that there are situations not governed travel up to 121⁄2 miles per hour, individuals with disabilities and exclusively by the title II and title III compared to the average pedestrian covered entities about which mobility regulations, particularly in the context walking speed of 3 to 4 miles per hour aids must be accommodated and under of residential settings and employment and the approximate maximum speed what circumstances. While some

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individuals with disabilities support the investigations, the Department has accessible to prisoners with disabilities use of unique mobility devices, other determined that public entities and presented three options: (1) Require individuals with disabilities are sometimes misunderstand the scope of all altered elements to be accessible, concerned about their personal safety their obligations under the statute and which would maintain the current when others are using such devices. the regulation. Moreover, the number of policy that applies to other ADA There is also concern about the impact individuals with hearing loss continues alterations requirements; (2) permit of such mobility devices on facilities, to grow in this country as a large substitute cells to be made accessible such as the weight of the device on segment of the population ages and as within the same facility, which would fragile floor surfaces. individuals live longer. permit correctional authorities to meet The Department intends to address The Department is proposing several their obligation by providing the these issues and proposes to adopt a changes and additions to §§ 35.104, required accessible features in cells policy that sets the parameters for when 35.160, and 35.161 of the title II within the same facility, other than these devices must be accommodated. regulation to address these issues. those specific cells in which alterations Toward that end, the Department Among other amendments, these are planned; or (3) permit substitute proposes new definitions of the terms changes update the regulatory language cells to be made accessible within a ‘‘wheelchair’’—which includes in response to numerous technological prison system, which would focus on manually and power-driven wheelchairs advances and breakthroughs in the area ensuring that prisoners with disabilities and mobility scooters—and ‘‘other of auxiliary aids and services since the are housed in facilities that best meet power-driven mobility device’’ and regulation was promulgated sixteen their needs, since alterations within a accompanying regulatory text. The years ago. The most significant changes prison environment often result in proposed definitions are discussed in relate to video interpreting services piecemeal accessibility. Discussion of the section-by-section analysis of (VIS) and the provision of effective the proposed options and submitted § 35.104, and the proposed regulatory communication for companions. comments are described below in the text is discussed in the section-by- A technology that has emerged since section-by-section analysis of § 35.152, a section analysis of § 35.137. promulgation of the original regulation newly proposed section on matters Much of the debate surrounding is video interpreting services (VIS), and related to detention and correctional mobility aids has centered on the Department proposes to include it in facilities. appropriate definitions for the terms the regulation. VIS permits an Equipment and furniture. Question ‘‘wheelchair’’ and ‘‘other power-driven individual who is deaf or hard of seven of the ANPRM asked for comment mobility devices.’’ The Department has hearing to view and sign to a video on whether regulatory guidance is not defined the term ‘‘manually interpreter (i.e., a live interpreter in needed with respect to the acquisition powered mobility aids.’’ Instead, the another location) who can see and sign proposed rule provides a list including to the individual through a camera and use of mobile, portable, and other wheelchairs, walkers, crutches, canes, located on or near the monitor. VIS can free-standing equipment or furnishings braces, or similar devices. The inclusion provide immediate, effective access to used by covered entities to provide of the term ‘‘similar devices’’ indicates interpreting services seven days a week, services, and asked for specific that the list is not intended to be twenty-four hours a day in a variety of examples of situations that should be exhaustive. The Department would like situations by allowing individuals in addressed. The ANPRM explained that input as to whether addressing separate locations to have live, face-to- free-standing equipment was already ‘‘manually powered mobility aids’’ in face communications. addressed in the regulations in several this manner (i.e., via examples of such The specific amendments to the different contexts, but that since devices) is appropriate. The Department section on auxiliary aids and services, covered entities continue to raise also would like information as to in addition to the provision of VIS, are questions about the extent of their whether there are any other non- described in §§ 35.104, 35.160, and obligation to provide accessible free- powered or manually powered mobility 35.161 of the section-by-section analysis standing equipment, the Department aids that should be added to the list and below. was considering adding specific an explanation of the reasons they Alterations to prison cells. The 2004 language on equipment. should be included. If an actual ADAAG establishes requirements for the The Department received comments definition is preferred, the Department design and construction of cells in both in favor and against this proposal would welcome input with regard to the correctional facilities. When the Access with a majority of comments in favor of language that might be used to define Board adopted these new requirements, requiring accessible equipment and ‘‘manually powered mobility aids,’’ and it deferred one decision to the Attorney furniture. However, the Department has an explanation of the reasons this General, specifically: ‘‘Alterations to decided to add no new regulatory text language would better serve the public. cells shall not be required to comply with respect to equipment at this time. Effective communication and except to the extent determined by the A few title II entities submitted very auxiliary aids. Revised § 35.160(a) of the Attorney General.’’ The unique brief comments, with about half in favor title II regulation requires a public entity environment and security concerns of a of specific requirements for free- to take appropriate steps to ensure that correctional facility present challenges standing equipment and half opposed. communications with individuals with that are not an issue in other Most individuals and organizations disabilities, including applicants, government buildings, so the representing individuals with participants, members of the public, and Department must strike a balance disabilities were in favor of adding or their companions, are as effective as between the accessibility needs of clarifying requirements for accessible communications with others. The inmates with disabilities and the equipment. Disability organizations Department has investigated hundreds concerns of the prison officials and staff pointed out that from the user’s of complaints alleging that public that run the facilities. Therefore, in the perspective, it is irrelevant whether the entities have failed to provide effective ANPRM, the Department sought public equipment (e.g., ATMs or vending communication, many of which resulted comment about the most effective machines) is free-standing or fixed, in settlement agreements and consent means to ensure that existing since the equipment must be accessible decrees. During the course of its correctional facilities are made in order for them to use it.

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The Department believes that and possibly two, specialized golf cars until there are safety standards for these accessible equipment and furnishings available for the use of individuals with cars. are required when appropriate under disabilities, with no greater advance Other concerns raised by public the existing regulations governing notice required to obtain them than for comments were the effect of allowing modifications of policies, practices, and use of other golf cars. The Department accessible golf car use on the greens and procedures, and in the requirement for also asked about the golf car’s safety and their impact on maintenance of the program accessibility. 28 CFR 35.130(7); use on golf course greens. Accessible course. Some commenters suggested 35.150. In addition, some equipment single-user golf cars are cars for use by that the cars would damage the greens may also be subject to the effective individuals with mobility impairments and that the repair costs would be more communication requirements. 28 CFR that are driven with hand controls, and significant than for traditional golf cars. 35.160. The existing regulation at from which a person with a disability In addition, one commenter suggested § 35.150(a) requires that entities operate can hit the golf ball while remaining in that courses exceeding certain slope and each service, program, or activity so the seat of the car. Some golf cars have degree standards be exempted from that, when viewed in its entirety, each a swivel, elevated seat that allows the having single-user cars because of safety is readily accessible to and usable by golfer to play from a semi-standing concerns. Comments from golf courses individuals with disabilities, subject to position. These cars can be used by that have provided accessible golf cars a defense of fundamental alteration or individuals without disabilities as well. were generally positive in terms of undue burden. Section 35.150(b) The Department received many safety and maintenance of the course. specifies that such entities may meet comments regarding accessible golf cars, Further, courses that provide accessible their obligation to make each program with the majority of commenters in cars do not report any safety issues or accessible to individuals with favor of requiring accessible golf cars. more than minimal damage to the disabilities through the ‘‘redesign of The comments in opposition to greens. equipment.’’ Section 35.160(a) requires requiring accessible golf cars came from With respect to making golf cars covered entities to provide effective some individuals and from entities available, most supporters of providing communication to program participants. covered by title III. The Department has accessible golf cars believe that no Consequently, providing accessible decided to propose no new regulations advance notice should be required to equipment is required when appropriate specific to accessible golf cars at this reserve the golf cars. One association under the existing regulations. The time. supported requiring golf courses to have accessible cars with advance notice, Department has decided to continue Many commenters in favor of which could be achieved through with this approach and not to add any requiring accessible golf cars noted the pooling arrangements with other specific regulatory guidance addressing social aspect of golf, generally, and its courses. Some commenters explained equipment at this time. specific—albeit informal—importance, that at least two cars per course should The 2004 ADAAG includes revised in many business transactions, thus requirements for some types of fixed be required so that golfers with affecting both the social lives and the equipment that are specifically disabilities can play together. careers of some individuals with addressed in the 1991 Standards, such Commenters also addressed whether disabilities. as ATMs and vending machines, as well courses that provide no cars at all Comments opposed to requiring as detailed requirements for fixed should provide accessible cars. Some accessible golf cars generally came from equipment that is not addressed by commenters supported requiring every individuals and golf course owners and name in the current Standards, such as golf course, whether or not it provides associations covered by title III. Some depositories, change machines, and fuel traditional golf cars, to provide dispensers. Because the 2004 ADAAG commenters believed that there is little accessible cars because individuals with provides detailed requirements for demand for accessible golf cars, or that disabilities will not be able to play many types of fixed equipment, covered the problem is solved by putting without an accessible car. entities should consult those ‘‘medical’’ flags on traditional cars to The Department has decided not to requirements in determining what steps identify individuals with disabilities add a regulation specifically addressing are appropriate for making free-standing who are then permitted to drive onto the accessible golf cars at this time. The equipment accessible. The Department greens, which otherwise would not be existing regulation, which requires that also agrees that when federal guidance permitted. Others stated that accessible entities operate each service, program, for accessibility exists for equipment golf cars were too expensive or were or activity so that, when viewed in its required to be accessible to individuals specialized equipment that individuals entirety, the service, program, or activity who are blind or have low vision, with disabilities should purchase for is readily accessible to and usable by entities should consult such guidance themselves. One city representative individuals with disabilities, subject to (e.g., federal standards implementing commented that courses that do not a defense of fundamental alteration or section 508 of the Rehabilitation Act, 36 provide golf cars should not be required undue burden, will continue to govern CFR part 1194, or the guidelines that to provide accessible golf cars. this issue. 28 CFR 35.150(a). specify communication accessibility for Safety and the impact on golf course The Department is aware that the ATMs and fare card machines in the grounds were other areas addressed by Department of Defense has recently 2004 ADAAG, 36 CFR part 1191, App. the comments. Again, opinions were undertaken an extensive study of the D). The Department intends to continue divided. Some commenters said that the accessibility of golf courses operated for to monitor the use of accessible single-user golf cars are safe, do not military personnel. As a result of its equipment by covered entities and to damage the greens, and speed up the study, the Department of Defense plans analyze the economic impact of possibly pace of play. Others argued that the cars to provide two accessible golf cars at providing more detailed requirements in should pass the American National each of the 174 golf courses that the future regulations governing specific Standards Institute (ANSI) standards 2 Department of Defense operates, except types of free-standing equipment. for traditional golf cars, and that the those at which it would be unsafe to Accessible golf cars. Question six of single-user cars should not be required operate such golf cars because of the the ANPRM asked whether golf courses terrain of the course. See U.S. should be required to make at least one, 2 ANSI Z130.1–1999. Department of Defense, Report to

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Congress: Access of Disabled Persons to Commercial Facilities (Title III TA secondary auditory programs (SAP), and Morale, Recreation, and Welfare (MRW) Manual), III–4.300, available at http:// accessible electronic and information Facilities and Activities (Sept. 25, 2007). www.ada.gov/taman3.html. The title III technology. The Department of Justice plans to definition of auxiliary aids and services study the Defense Department’s provided the framework for the same ‘‘Direct Threat’’ implementation of its plan to determine definition in title II. See 56 FR 35544, In the Department’s proposed if it provides an effective framework for 35565 (July 26, 1991) and 56 FR 35694, § 35.136(b)(3), a service animal may be ensuring golf course accessibility. 35697 (July 26, 1991). This additional removed from the premises of a public example of an appropriate auxiliary aid Section-by-Section Analysis and entity if the animal poses a direct threat and service was inserted because many Response to Comments to the health or safety of others that public entities do not realize that this cannot be eliminated by reasonable This section provides a detailed easy and efficient technique is available description of the Department’s to them. While the exchange of written modifications. Direct threat is not proposed changes to the title II notes is inappropriate for lengthy or defined in title II, but it is defined in regulation, the reasoning behind the complicated communications, it can be § 36.208(b) of the current title III proposals, and responses to public appropriate for situations such as regulation as ‘‘a significant risk to the comments received on the topic. The routine requests for written information, health or safety of others that cannot be section-by-section analysis follows the for a police officer issuing a speeding eliminated by a modification of policies, order of the current title II regulation, ticket, or as a means of communication practices, or procedures, or by the except that if the Department is not while awaiting the arrival of an provision of auxiliary aids or services.’’ proposing a change to a regulation interpreter. The Department proposes taking the section, the unchanged section is not Also in paragraph (1) of the definition from its current location in discussed. In addition, this section definition, the Department has replaced title III and placing it in the definitions includes specific questions for which the term ‘‘telecommunications devices section in both title II (§ 35.104) and the Department requests public for deaf persons (TDD)’’ with ‘‘text title III (§ 36.104). response. These questions are numbered telephones (TTYs).’’ Although ‘‘TDD’’ is and italicized in order to make them the term used in the ADA, the use of ‘‘Existing Facility’’ easier for readers to locate and ‘‘TTY’’ has become the commonly Under the ADA, a facility may be one reference. accepted term and is consistent with the or more of three types at different points terminology used by the Access Board Subpart A—General in time: (1) An existing facility, (2) an in the 2004 ADAAG. The Department altered facility, or (3) a newly designed has also included in paragraph (1) Section 35.104 Definitions and constructed facility. In the current ‘‘accessible electronic and information regulation, title II defines new ‘‘1991 Standards’’ and ‘‘2004 ADAAG’’ technology’’ as another example of construction at § 35.151(a) and The Department is proposing to add auxiliary aids and services. Lastly, to the proposed regulation definitions of ‘‘computer-aided’’ has been added to alterations at § 35.151(b). In contrast, the both the ‘‘1991 Standards’’ and the describe ‘‘transcription services’’ to term ‘‘existing facility’’ is not defined ‘‘2004 ADAAG.’’ The term ‘‘1991 make it consistent with title III. although it is used in the statute and in Standards’’ refers to the currently The Department has added to the regulations for titles II and III. 42 enforceable ADA Standards for paragraph (1) a new technology, video U.S.C. 12182(b)(2)(A)(iv); 28 CFR Accessible Design, codified at 28 CFR interpreting services (VIS), which 35.150. part 36, App. A. The term ‘‘2004 consists of a video phone, video The Department’s enforcement of the ADAAG’’ refers to Parts I and III of the monitors, cameras, a high speed Internet ADA is premised on a broad Americans with Disabilities Act and connection, and an interpreter. VIS is understanding of ‘‘existing facilities.’’ Architectural Barriers Act Accessibility specifically discussed below in the The classifications of facilities under the Guidelines, which were issued by the proposed definition of VIS. ADA regulation are not static. Rather, a Architectural and Transportation In paragraph (2) of the definition, the building that was newly designed and Barriers Compliance Board on July 23, Department proposes to insert constructed at one time—and, therefore, 2004, at 69 FR 44084 (to be codified at additional examples of auxiliary aids subject to the accessibility standards in 36 CFR 1191), and which the and services for individuals who are effect at the time—becomes an ‘‘existing Department is proposing to adopt in this blind or have low vision. The preamble facility’’ after it is completed. At some NPRM. These terms are included in the to the original regulation makes clear point in its life, it may also be that the original list in the regulation definitions section for ease of reference. considered ‘‘altered’’ and then again was ‘‘not an all-inclusive or exhaustive become ‘‘existing.’’ ‘‘Auxiliary Aids and Services’’ catalogue of possible or available Several types of auxiliary aids that auxiliary aids or services. It is not The added definition of ‘‘existing have become more readily available possible to provide an exhaustive list, facility’’ in the proposed regulation have been added to § 35.104 under the and an attempt to do so would omit the clarifies that the term means exactly definition of auxiliary aids and services. new devices that will become available what it says: A facility in existence on For purposes of clarification, the with emerging technology.’’ See 56 FR any given date is an existing facility Department has added the exchange of 35694, 35697 (July 26, 1991). Because under the ADA. If a facility exists, it is written notes as an example of an technological advances in the seventeen an existing facility whether it was built auxiliary aid or service. This common- years since the ADA was enacted have in 1989, 1999, or 2009. Of course, if the sense example is a codification of the increased the range of auxiliary aids and construction of a facility at issue begins Department’s longstanding policy with services for those who are blind or have after the triggering dates for the new regard to title III entities. See The low vision, the Department has added construction standards, then the facility Americans with Disabilities Act, Title III additional examples, including brailled is subject to the new construction Technical Assistance Manual, Covering displays, screen reader software, standards, and if it is altered, it is Public Accommodations and magnification software, optical readers, subject to the alterations standards.

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‘‘Other Power-Driven Mobility Device’’ qualified to interpret orally. Also, modifications to rules, policies, or The proposed regulation defines the someone with just a rudimentary practices, the removal of architectural, term ‘‘other power-driven mobility familiarity with sign language or finger communication, or transportation device’’ as ‘‘any of a large range of spelling is not a qualified sign language barriers, or the provision of auxiliary devices powered by batteries, fuel, or interpreter. Likewise, a qualified sign aids and services, meets the essential language interpreter would not include eligibility requirements for the receipt of other engines—whether or not designed someone who is fluent in sign language services or the participation in programs solely for use by individuals with but unable to translate spoken or activities provided by a public mobility impairments—that are used by communication into ASL or to translate entity.’’ 28 CFR 35.104. The Department individuals with mobility impairments signed communication into spoken is proposing to add to the title II for the purpose of locomotion, including words. regulation the same definition of golf cars, bicycles, electronic personal The revised definition includes ‘‘service animal’’ that it will propose for assistance mobility devices (EPAMDs) examples of different types of the title III regulation. The title III (e.g., Segway), or any mobility aid interpreters. An oral interpreter has regulation currently contains a designed to operate in areas without special skill and training to mouth a definition of ‘‘service animal’’ in defined pedestrian routes.’’ The speaker’s words silently for individuals § 36.104. definition is designed to be broad and who are deaf or hard of hearing, many The current definition of ‘‘service inclusive because the Department of whom were raised orally and were animal’’ in § 36.104 is, ‘‘any guide dog, recognizes the diverse needs and taught to read lips or were diagnosed signal dog, or other animal individually preferences of individuals with with hearing loss later in life and do not trained to do work or perform tasks for disabilities and does not wish to impede know sign language. An individual who the benefit of an individual with a individual choice except when is deaf or hard of hearing may need an disability, including, but not limited to, necessary. Power-driven mobility oral interpreter if the speaker’s voice is guiding individuals with impaired devices are included in this category. unclear, there is a quick-paced exchange vision, alerting individuals with Mobility aids that are designed for areas of communication (e.g., in a meeting), or impaired hearing to intruders or sounds, or conditions without defined when the speaker does not directly face providing minimal protection or rescue pedestrian areas, such as off-road bike the individual who is deaf or hard of work, pulling a wheelchair, or fetching paths, roads (except where allowed by hearing. A cued speech interpreter dropped items.’’ The Department would law or where a sidewalk is not functions in the same manner as an oral modify that current definition, and add provided), freeways, or natural surfaces interpreter except that he or she also the same definition, as modified, to the such as beaches where there is not a uses a hand code, or cue, to represent title II regulation at § 35.104. The defined circulation route for each speech sound. changes that would be made to the title pedestrians, are also included in this ‘‘Qualified Reader’’ III definition, and that would be category. incorporated in the title II definition are Question 8: Please comment on the The current regulation identifies a as follows: proposed definition of other power- qualified reader as an auxiliary aid, but 1. Remove ‘‘guide’’ or ‘‘signal’’ as driven mobility devices. Is the definition it does not define the term. See 28 CFR descriptions of types of service dogs, overly inclusive of power-driven 35.104(2). Based upon the Department’s add ‘‘other common domestic’’ animal, mobility devices that may be used by investigation of complaints alleging that and add ‘‘qualified’’ to ‘‘individual’’ in individuals with disabilities? some entities have provided ineffective the Department’s current definition; The Department’s proposed regulatory readers, the Department proposes to 2. Remove ‘‘individuals with text on accommodating wheelchairs and define ‘‘qualified reader’’ similarly to impaired vision’’ and replace it with other power-driven mobility devices is ‘‘qualified interpreter’’ to ensure that ‘‘individuals who are blind or have low discussed below in § 35.137 of the entities select qualified individuals to vision;’’ section-by-section analysis. read an examination or other written 3. Change ‘‘individuals with impaired information in an effective, accurate, ‘‘Proposed Standards’’ hearing’’ to ‘‘individuals who are deaf or and impartial manner. Failing to hard of hearing;’’ The Department has added the term provide a qualified reader to a person 4. Replace the term ‘‘intruders’’ with ‘‘proposed standards’’ to mean the 2004 with a disability could amount to the phrase ‘‘the presence of people’’ in ADAAG as revised or amended by the discrimination based upon disability. the section on alerting individuals who Department in this rulemaking. The full ‘‘Service Animal’’ are deaf or hard of hearing; text of the 2004 ADAAG is available for 5. Add the following to the list of review at http://www.access-board.gov Although there is no specific language work and task examples: Assisting an along with a detailed comparison of the in the current title II regulation individual during a seizure, retrieving 1991 Standards and the 2004 ADAAG concerning service animals, title II medicine or the telephone, providing that identifies the differences between entities have the same legal obligations physical support to assist with balance the two documents. as title III entities to make reasonable and stability to individuals with modifications in policies, practices, or ‘‘Qualified Interpreter’’ mobility disabilities, and assisting procedures to allow service animals individuals, including those with The Department proposes to add to when necessary to avoid discrimination cognitive disabilities, with navigation; the definition of ‘‘qualified interpreter’’ on the basis of disability, unless the 6. Add that ‘‘service animal’’ includes to clarify that the term includes, but is modifications would fundamentally individually trained animals that do not limited to, sign language alter the nature of the service, program, work or perform tasks for the benefit of interpreters, oral interpreters, and cued or activity. 28 CFR 35.130(b)(7). In order individuals with disabilities, including speech interpreters. to qualify for coverage under title II, a psychiatric, cognitive, or mental Not all interpreters are qualified for person must be a ‘‘qualified individual disabilities; all situations. For example, a qualified with a disability,’’ which is defined as 7. Add that ‘‘service animal’’ does not interpreter who uses American Sign ‘‘an individual with a disability who, include wild animals (including Language (ASL) is not necessarily with or without reasonable nonhuman primates born in captivity),

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reptiles, rabbits, farm animals eliminated from the definition, and that issue (i.e., how many unusual animals (including any breed of horse, pony, ‘‘physical’’ should be added to describe are now claimed as service animals) and miniature horse, pig, and goat), ferrets, tasks. Tasks by their nature are physical, believes that this aspect of the amphibians, and rodents; and so the Department does not believe that regulation needs clarification. 8. Add that animals whose sole such a change is warranted. In contrast, To establish a practical and function is to provide emotional the existing phrase ‘‘do work’’ is slightly reasonable species parameter, the support, comfort, therapy, broader than ‘‘perform tasks,’’ and adds Department proposes to narrow the companionship, therapeutic benefits, or meaning to the definition. For example, definition of acceptable animal species promote emotional well-being are not a psychiatric service dog can help some to ‘‘dog or other common domestic service animals. individuals with dissociative identity animal’’ by excluding the following The Department is proposing these disorder to remain grounded in time or animals: Wild animals (including changes in response to concerns place. As one service dog user stated, in nonhuman primates born in captivity), expressed by commenters regarding the some cases, ‘‘critical forms of assistance reptiles, rabbits, farm animals Department’s ANPRM. Issues raised by can’t be construed as physical tasks,’’ (including any breed of horse, miniature the commenters include: noting that the manifestations of ‘‘brain- horse, pony, pig, or goat), ferrets, ‘‘Minimal protection.’’ There were based disabilities,’’ such as psychiatric amphibians, and rodents. Many many comments by service dog users disorders and autism, are as varied as commenters asserted that limiting the urging the Department to remove from their physical counterparts. One number of allowable species would help the definition the phrase ‘‘providing commenter stated that the current stop erosion of the public’s trust, which minimal protection.’’ The commenters definition works for everyone (i.e., those results in reduced access for many set forth the following reasons for why with physical and mental disabilities) individuals with disabilities, despite the the phrase should be deleted: (1) The and urged the Department to keep it. fact that they use trained service current phrase can be interpreted to The Department has evaluated this issue animals that adhere to high behavioral apply coverage under the ADA to and believes that the crux of the current standards. The Department is compelled ‘‘protection dogs’’ that are trained to be definition (individual training to do to take into account practical aggressive and protective, so long as work or perform tasks) is inclusive of considerations of certain animals and they are paired with a person with a the varied services provided by working contemplate their suitability in a variety disability; and (2) since some view the animals on behalf of individuals with of public contexts, such as libraries or minimal protection language to mean all types of disabilities and proposes courtrooms. that a dog’s very presence can act as a that this portion of the definition remain In addition, the Department believes crime deterrent, the language may be the same. that it is necessary to eliminate from interpreted to allow any untrained pet Define ‘‘task.’’ One commenter coverage all wild animals, whether born dog to provide minimal protection by its suggested defining the term ‘‘task,’’ or bred in captivity or the wild. Some mere presence. These interpretations presumably so that there would be a animals, such as nonhuman primates, were not contemplated by the ADA. better understanding of what type of pose a direct threat to safety based on Question 9: Should the Department service performed by an animal would behavior that can be aggressive and clarify the phrase ‘‘providing minimal qualify for coverage. The Department violent without notice or provocation. protection’’ in the definition or remove feels that the common definition of task The American Veterinary Medical it? Are there any circumstances where a is sufficiently clear and that it is not Association (AVMA) issued a position service animal providing ‘‘minimal necessary to add the term to the statement against the use of monkeys as protection’’ would be appropriate or definitions section; however, the service animals, stating, ‘‘[t]he AVMA expected? Department has proposed additional does not support the use of nonhuman ‘‘Alerting to intruders.’’ Some examples of work or tasks to help primates as assistance animals because commenters expressed a similar concern illustrate this requirement in the of animal welfare concerns, the regarding the phrase ‘‘alerting * * * to definition of service animal. potential for serious injury, and intruders’’ in the current text as the Define ‘‘animal’’ or what qualifies zoonotic [animal-to-human disease concern expressed by commenters certain species as ‘‘service animals.’’ transmission] risks.’’ See the AVMA regarding the phrase ‘‘providing When the regulation was promulgated 2005 position statement, Nonhuman minimal protection.’’ Commenters in 1991, the Department did not define Primates as Assistance Animals, indicated that ‘‘alerting to intruders’’ the parameters of acceptable animal available at http://www.avma.org/ has been misinterpreted by some species, and few anticipated the variety issues/policy/nonhuman_primates.asp. individuals to apply to a special line of of animals that would be used in the The potential for nonhuman primates to protection dogs that are trained to be future, ranging from pigs and miniature transmit dangerous diseases to humans aggressive. People have asserted, horses to snakes and iguanas. One has been documented in scientific incorrectly, that use of such animals is commenter suggested defining ‘‘animal’’ journals. protected under the ADA. The (in the context of service animals) or the Although unusual species make up a Department reiterates that public parameters of acceptable species to very small percentage of service animals entities are not required to admit any reduce the confusion over whether a as a collective group, their use has animal that poses a direct threat to the particular service animal is covered. engendered broad public debate and, health or safety of others. The One service dog organization therefore, the Department seeks Department has proposed removing commented that other species would be comment on this issue. ‘‘intruders’’ and replacing it with ‘‘the acceptable if those animals could meet Question 10: Should the Department presence of people.’’ the behavioral standards of trained eliminate certain species from the ‘‘Task’’ emphasis. Many commenters service dogs. Other commenters asserted definition of ‘‘service animal’’? If so, followed the lead of an umbrella service that there are certain animals (e.g., please provide comment on the dog organization and suggested that the reptiles) that cannot be trained to do Department’s use of the phrase phrase ‘‘performing tasks’’ should form work or perform tasks, so these animals ‘‘common domestic animal’’ and on its the basis of the service animal would not be covered. The Department choice of which types of animals to definition, that ‘‘do work’’ should be has followed closely this particular exclude.

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Question 11: Should the Department Handbook No. 4350.3 Rev–1, Chg–2, performance standards for VIS at impose a size or weight limitation for Occupancy Requirements of Subsidized § 35.160. common domestic animals, even if the Multifamily Housing Programs (June ‘‘Wheelchair’’ animal satisfies the ‘‘common domestic 2007), available at http:// animal’’ prong of the proposed www.hudclips.org.) Moreover, the The Department proposes the definition? Department’s proposal to change the following definition of ‘‘wheelchair’’ in Comfort animals. It is important to definition of ‘‘service animal’’ under the § 35.104: ‘‘Wheelchair means a device address the concept of comfort animals ADA is not intended to affect the rights designed solely for use by an individual or emotional support animals, which of people with disabilities who use with a mobility impairment for the have become increasingly popular. The assistance animals in their homes under primary purpose of locomotion in increased use of comfort animals is the FHA. typical indoor and outdoor pedestrian primarily by individuals with mental or In addition, the term ‘‘psychiatric areas. A wheelchair may be manually psychiatric impairments, many of which service animal’’ describes a service operated or power-driven.’’ The proposed definition of do not rise to the level of disability. animal that does work or performs a ‘‘wheelchair’’ is informed by several Comfort animals are also used by task for the benefit of an individual with existing definitions of ‘‘wheelchair.’’ individuals without any type of a psychiatric disability. This contrasts Section 507 of the ADA defines impairment who claim the need for with ‘‘emotional support’’ animals that wheelchair in the context of whether to such an animal in order to bring their are covered under the Air Carrier Access allow wheelchairs in federal wilderness pets into facilities of public entities. Act, 49 U.S.C. 41705 et seq., and its areas: ‘‘The term ‘wheelchair’ means a The difference between an emotional implementing regulations, 14 CFR device designed solely for use by a support animal and a psychiatric service 382.7, see also 68 FR 24874, 24877 (May mobility-impaired person for animal is the service that is provided, 9, 2003) (guidance on accommodation of i.e., the actual work or task performed locomotion, that is suitable for use in an service animals and emotional support indoor pedestrian area.’’ 42 U.S.C. by the service animal. Another critical animals on air transportation) and factor rests on the severity of the 12207(c)(2). The Department believes qualify as ‘‘assistance animals’’ under individual’s impairment. For example, that while this definition is appropriate the FHA, but do not qualify as ‘‘service only individuals with conditions that in the limited context of federal animals’’ under the ADA. substantially limit them in a major life wilderness areas, it is not specific activity qualify for coverage under the ‘‘Video Interpreting Services (VIS)’’ enough to provide clear guidance in the ADA, and only those individuals’ use of array of settings covered by title II. The Department has added a a service animal will be covered under The other existing federal definition definition of video interpreting services the ADA. See definition of disability, 42 of ‘‘wheelchair’’ that the Department (VIS), a technology composed of a video U.S.C. 12102(2) and 28 CFR 35.104. reviewed is in the Department of phone, video monitors, cameras, a high Major life activities include functions Transportation regulation implementing speed Internet connection, and an such as caring for one’s self, performing the transportation provisions under title interpreter. The video phone provides manual tasks, walking, seeing, hearing, II and title III of the ADA. The speaking, breathing, learning, and video transmission to a video monitor Department of Transportation’s working. Many Americans have some that permits the individual who is deaf definition of ‘‘wheelchair’’ is ‘‘a type of physical or mental impairment or hard of hearing to view and sign to mobility aid belonging to any class of (e.g., arthritis, anxiety, back pain, a video interpreter (i.e., a live three or four-wheeled devices, usable imperfect vision, etc.), but establishing interpreter in another location), who can indoors, designed for and used by a physical or mental disability also see and sign to the individual through individuals with mobility impairments, requires a substantial limitation of a a camera located on or near the monitor, whether operated manually or major life activity. Traditionally, service while others can communicate by powered.’’ 49 CFR 37.3. The Department dogs worked as guides for individuals speaking. The video monitor can has adopted much of the language from who were blind or had low vision. Since display a split screen of two live images, this definition. Under the proposed the original regulations were with the interpreter in one image and definition, wheelchairs include promulgated, service animals have been the individual who is deaf or hard of manually operated and power-driven trained to assist individuals with hearing in the other image. wheelchairs and mobility scooters. different types of disabilities. As a VIS can provide immediate, effective Mobility devices such as golf cars, result, individuals with minor access to interpreting services seven bicycles, and electronic personal impairments may mistakenly conclude days a week, twenty-four hours a day by assistance mobility devices (EPAMDs) that any type of impairment qualifies allowing people in different locations to are inherently excluded from the them for ADA coverage. engage in live, virtual face-to-face proposed definition. Typically, the Change ‘‘service animal’’ to communications. Moreover, VIS is devices covered under the proposed ‘‘assistance animal.’’ Some commenters particularly helpful where qualified definition are single-user, have three to asserted that ‘‘assistance animal’’ is a interpreters are not readily available four wheels, and are appropriate for term of art and should replace ‘‘service (e.g., for quick response during both indoor and outdoor pedestrian animal.’’ While some agencies, like the emergency hospital visits, in areas with areas. However, it could include a Department of Housing and Urban an insufficient number of qualified variety of types of wheelchairs and Development (HUD), use the term interpreters to meet demand, and in mobility scooters with individualized or ‘‘assistance animal,’’ that term is used to rural areas where distances and an unique features or models with different denote a broader category of animals interpreter’s travel time present numbers of wheels. ‘‘Typical indoor and than is covered by the ADA. The obstacles). outdoor pedestrian areas’’ refer to Department believes that changing the In addition to adding the specific locations and surfaces used by and term used under the ADA would create definition of VIS, the Department intended for pedestrians, including confusion, particularly in view of the proposes to add VIS to the definition of sidewalks, paved paths, floors of broader parameters for coverage under ‘‘auxiliary aids and services’’ (discussed buildings, elevators, and other the Fair Housing Act (FHA) (cf., HUD above in § 35.104) and to set out circulation routes, but would not

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include such areas as off-road bike a definition would better serve the that discrete event, a public entity may paths, roads (except where allowed by public. reduce such accessible features in law or where a sidewalk is not The proposed regulation regarding accordance with the requirements in the provided), freeways, or natural surfaces mobility devices, including proposed standards. wheelchairs, is discussed below in the such as beaches where there is not a Section 35.136 Service Animals defined circulation route for section-by-section analysis for § 35.137. The Department’s title II regulation pedestrians. Subpart B—General Requirements The Department does not propose to now states that ‘‘[a] public entity shall define specific dimensions that qualify Section 35.130 General Prohibitions make reasonable modifications in a device as a wheelchair. The Against Discrimination policies, practices, or procedures when the modifications are necessary to avoid Department of Transportation’s Section 35.133 Maintenance of discrimination on the basis of disability, definition includes a subpart defining Accessible Features ‘‘common wheelchair’’ to provide unless the public entity can demonstrate The general rule regarding the guidance for public transit authorities that making the modifications would maintenance of accessible features, on which devices must be transported. fundamentally alter the nature of the which provides that a public entity A ‘‘common wheelchair’’ is a service, program, or activity.’’ 28 CFR must maintain in operable working wheelchair that ‘‘does not exceed 30 35.130(b)(7). In the proposed title II condition those features of facilities and language, the Department intends to inches in width and 48 inches in length equipment that are required to be measured two inches above the ground, provide the broadest feasible access to readily accessible to and usable by individuals with disabilities who use and does not weigh more than 600 qualified individuals with disabilities, pounds when occupied.’’ 49 CFR 37.3. service animals, unless a public entity is unchanged. However, the Department can demonstrate that making the The narrower definition of ‘‘common wishes to clarify its application and wheelchair’’ was developed with modifications would fundamentally proposes one change to the section. alter the nature of the public entity’s reference to the requirements for lifts to The Department has noticed that establish parameters for the size and service, program, or activity. some covered entities do not understand The proposed section regarding weight a lift can safely accommodate. what is required by § 35.133, and it service animals would incorporate the See 49 CFR part 37, App. D (2002). The would like to take the opportunity Department’s policy interpretations as Department does not believe it is presented by this NPRM to clarify the outlined in its published technical necessary to adopt stringent size and requirement. Section 35.133(a) broadly assistance Commonly Asked Questions weight requirements for wheelchairs. covers all features that are required to be about Service Animals (1996) (available The Department requests public input accessible under the ADA, from at http://www.ada.gov/qasrvc.htm), and on the proposed definition for accessible routes and elevators to roll-in ADA Business Brief: Service Animals ‘‘wheelchair.’’ showers and signage. It is not sufficient (2002) (available at http://www.ada.gov/ Question 12: As explained above, the for a building or other feature to be built svcanimb.htm), as well as make changes definition of ‘‘wheelchair’’ is intended to in compliance with the ADA, only to be based on public comment. Proposed be tailored so that it includes many changed or blocked later so that it § 35.136 would: styles of traditional wheeled mobility becomes inaccessible. A common 1. Expressly incorporate the devices (e.g., wheelchairs and mobility problem observed by the Department is Department’s policy interpretations as scooters). Does the definition appear to that covered facilities do not maintain outlined in its published technical exclude some types of wheelchairs, accessible routes. For example, the assistance and add that a public entity mobility scooters, or other traditional accessible routes in offices or hallways may ask an individual with a disability wheeled mobility devices? Please cite are commonly obstructed by boxes, to remove a service animal from the specific examples if possible. furniture, or other items so that the premises if: (i) The animal is out of Question 13: Should the Department routes are inaccessible to individuals control and the animal’s handler does expand its definition of ‘‘wheelchair’’ to who use wheelchairs. Under the ADA, not take effective action to control it; (ii)  include Segways ? the accessible route must be maintained the animal is not housebroken; (iii) the Question 14: Are there better ways to and therefore these items are required to animal’s presence or behavior define different classes of mobility be removed. If the items are placed there fundamentally alters the nature of the devices, such as the weight and size of temporarily—for example, if an office service the public entity provides (e.g., the device that is used by the receives multiple boxes of supplies and repeated barking); or (iv) the animal Department of Transportation in the is moving them from the hall to the poses a direct threat to the health or definition of ‘‘common wheelchair’’? storage room—then § 35.133(b) excuses safety of others that cannot be Question 15: Should the Department such ‘‘isolated or temporary eliminated by reasonable modifications maintain the non-exhaustive list of interruptions.’’ Other common examples in § 35.136(b); examples as the definitional approach of features that must be maintained, and 2. Add in § 35.136(c) that if a public to the term ‘‘manually powered mobility often are not, are platform lifts and entity properly excludes a service aids’’? If so, please indicate whether elevators. Public entities must ensure animal, the public entity must give the there are any other non-powered or that these features are operable, and to individual with a disability the manually powered mobility devices that meet this requirement, regular servicing opportunity to participate in or benefit should be considered for specific and making repairs quickly will be from the services, programs, or activities inclusion in the definition, a description necessary. without having the service animal on of those devices, and an explanation of The Department proposes to amend the premises; the reasons they should be included. the rule by adding § 35.133(c) to address 3. Add in § 35.136(d) requirements Question 16: Should the Department the discrete situation in which the that the work or tasks performed by a adopt a definition of the term scoping requirements provided in the service animal must be directly related ‘‘manually powered mobility aids’’? If proposed standards may reduce the to the handler’s disability; that a service so, please provide suggested language number of required elements below that animal that accompanies an individual and an explanation of the reasons such are required by the 1991 Standards. In with a disability into a public entity’s

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facility must be individually trained to animals. Because of the variety of operating rooms, holding and recovery do work or perform a task, be individual training that a service animal areas, labor and delivery suites, housebroken, and be under the control can receive—from formal licensing at an newborn intensive care nurseries, and of its owner; and that a service animal academy to individual training on how sterile processing departments. See must have a harness, leash, or other to respond to the onset of medical Centers for Disease Control, Guidelines tether; conditions, such as seizures—the for Environmental Infection Control in 4. Add in § 35.136(e) specific Department is not inclined to establish Health Care Facilities (June 2003), language clarifying that ‘‘[a] public a standard that all service animals must available at http://www.cdc.gov/mmwr/ entity is not responsible for caring for or meet. Some of the behavioral standards preview/mmwrhtml/rr5210a1.htm. supervising a service animal.’’ This that the Department is proposing Section 35.137 Mobility Devices proposed language does not require that actually relate to suitability for public the person with a disability care for his access, such as being housebroken and Proposed § 35.137 has been added to or her service animal if care can be under the control of its handler. provide additional guidance to public provided by a family member, friend, Hospital and healthcare settings. entities about the circumstances in attendant, volunteer, or anyone acting Public entities, including public which power-driven mobility devices on behalf of the person with a disability. hospitals, must modify policies, must be accommodated. This provision is a variation on the practices, or procedures to permit the As discussed earlier in this NPRM, existing title III language in use of a service animal by an individual this proposal is in response to growing § 36.302(c)(2), which states, ‘‘[n]othing with a disability. 28 CFR 35.130(b)(7). confusion about what types of mobility in this part requires a public The exception to this requirement is if devices must be accommodated. The accommodation to supervise or care for making the modification would Department has received complaints a service animal.’’ The Department is fundamentally alter the nature of the and become aware of situations where proposing similar modifications to the service, program, or activity. The individuals with mobility disabilities title III requirements on service animals Department generally follows the have utilized for locomotion purposes in the NPRM for title III, published guidance of the Centers for Disease riding lawn mowers, golf cars, large concurrently with this NPRM. Control and Prevention (CDC) on the wheelchairs with rubber tracks, 5. Expressly incorporate the use of service animals in a hospital gasoline-powered, two-wheeled Department’s policy interpretations as setting. scooters, and other devices that are not outlined in its published technical As required by the ADA, a healthcare designed for use or exclusively used by assistance that a public entity must not facility must permit a person with a people with disabilities. Indeed, there ask what the person’s disability is or disability to be accompanied by his or has been litigation about whether the about the nature of the person’s her service animal in all areas of the ADA requires covered entities to allow disability, nor require proof of service facility in which that person would people with disabilities to use their animal certification or licensing, but otherwise be allowed, with some EPAMDs like users of traditional that a public entity may ask (i) if the exceptions. Zoonotic diseases can be wheelchairs. Individuals with animal is required because of a transmitted to humans through trauma disabilities have sued several shopping disability; and (ii) what work or tasks (e.g., bites or scratches). Although there malls in which businesses refused to the animal has been trained to perform is no evidence that most service animals allow a person with a disability to use in § 35.136(f); pose a significant risk of transmitting an EPAMD. See, e.g., Sarah Antonacci, 6. Expressly incorporate the infectious agents to humans, animals White Oaks Faces Lawsuit over Segway, Department’s policy interpretations as can serve as a reservoir for a significant State Journal-Register, Oct. 9, 2007, outlined in its published technical number of diseases that could available at http://www.sj-r.com/news/ assistance and add that a public entity potentially be transmitted to humans in stories/17784.asp; Shasta Clark, Local must not require an individual with a the healthcare setting. A service animal Man Fighting Mall Over Right to Use disability to pay a fee or surcharge or may accompany its owner to such areas Segway, WATE 6 News, July 26, 2005, post a deposit as a condition of as admissions and discharge offices, the available at http://www.wate.com/ permitting a service animal to emergency room, inpatient and Global/story.asp?s=3643674. The accompany its handler in a public outpatient rooms, examining and Department believes clarification on entity’s facility, even if such deposits diagnostic rooms, clinics, rehabilitation what the ADA requires is necessary at are required for pets, and that if a public therapy areas, the cafeteria and vending this juncture. entity normally charges its citizens for areas, the pharmacy, rest rooms, and all Section 35.137(a) reiterates the damage that they cause, a citizen with other areas of the facility where visitors general rule that public entities shall a disability may be charged for damage are permitted, except those listed below. permit individuals using wheelchairs, caused by his or her service animal in Under the ADA, the only scooters, and manually powered § 35.136(h). circumstances under which a person mobility aids, including walkers, These changes will respond to the with a disability may not be entitled to crutches, canes, braces, and similar following concerns raised by be accompanied by his or her service devices, in any areas open to individuals and organizations that animal are those rare circumstances in pedestrians. The regulation underscores commented in response to the ANPRM. which it has been determined that the this general proposition because the Proposed behavior or training animal poses a direct threat to the great majority of mobility scooters and standards. Some commenters proposed health or safety of others. A direct threat wheelchairs must be accommodated behavior or training standards for the is defined as a significant risk to the under nearly all circumstances in which Department to adopt in its revised health or safety of others that cannot be title II applies. regulation, not only to remain in eliminated or mitigated by a Section 35.137(b) adopts the general keeping with the requirement for modification of polices, practices, or requirement in the ADA that public individual training, but also on the basis procedures. Based on CDC guidance, it entities must make reasonable that without training standards the is generally appropriate to exclude a modifications to their policies, public has no way to differentiate service animal from areas that require a practices, and procedures when between untrained pets and service protected environment, including necessary to enable an individual with

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a disability to use a power-driven people with disabilities inside a individual with a disability to park the mobility device to participate in its building may be prohibited, for mobility device and walk into the recorder of services, programs, or activities unless example, because the exhaust may be deeds office, the city government would still doing so would result in a fundamental harmful to others. A mobility device be required to provide services to the person alteration of their services, programs, or through program access by meeting the that is unsafe to others would not be individual in an adjacent, more spacious activities. reasonable under the proposed office, allowing him or her to obtain services If a public entity restricts the use of regulation. Additionally, the risk of over the phone, sending an employee to the power-driven mobility devices by harm to the environment or natural or individual’s home, or through other means. people without disabilities, then it must cultural resources or conflicts with The Department is seeking public develop policies addressing which federal land management laws and comment on the proposed definitions devices and under what circumstances regulations are also to be considered. and policy concerning wheelchairs and individuals with disabilities may use The final consideration is the ability of power-driven mobility devices for the other mobility devices. the public entity to stow the mobility Question 17: Are there types of purpose of mobility. Under the device when not in use, if requested by Department’s proposed regulation in personal mobility devices that must be the user. accommodated under nearly all § 35.137(c), public entities must adopt While a public entity may inquire into circumstances? Conversely, are there policies and procedures regarding the whether the individual is using the types of mobility devices that almost accommodation of power-driven device due to a disability, the entity always will require an assessment to mobility devices other than wheelchairs may not inquire about the nature and determine whether they should be and scooters that are designed to assess extent of the disability, as provided in accommodated? Please provide whether allowing an individual with a § 35.137(d). disability to use a power-driven The Department anticipates that, in examples of devices and circumstances mobility device is reasonable and does many circumstances, allowing the use of in your responses. not result in a fundamental alteration to unique mobility devices by individuals Question 18: Should motorized its programs, services, or activities. with disabilities will be reasonable to devices that use fuel or internal- Public entities may establish policies provide access to a public entity’s combustion engines (e.g., all-terrain and procedures that address and services, programs, and activities, and vehicles) be considered personal distinguish among types of mobility that in many cases it will not mobility devices that are covered by the devices. fundamentally alter the public entity’s ADA? Are there specific circumstances For example, a city may determine operations and services. On the other in which accommodating these devices that it is reasonable to allow individuals hand, the use of mobility devices that would result in a fundamental with disabilities to use EPAMDs in a are unsafe to others, or unusually alteration? Question 19: Should personal variety of outdoor programs and unwieldy or disruptive, is unlikely to be mobility devices used by individuals activities, but that it would not be reasonable and may constitute a with disabilities be categorized by reasonable to allow the use of golf cars fundamental alteration. as mobility devices in similar Consider the following examples: intended purpose or function, by indoor circumstances. At the same time, the or outdoor use, or by some other factor? city may address its concerns about Example 1: Although people who do not Why or why not? have mobility impairments are prohibited factors such as space limitations by from operating EPAMDs at the fairgrounds, Section 35.138 Ticketing disallowing EPAMDs by members of the the county has developed a policy allowing general public. people with disabilities to use EPAMDs as The ticketing policies and practices of Section 35.137(c) lists permissible their mobility device on the fairgrounds. The public entities are subject to title II’s factors that a public entity may consider county’s policy states that EPAMDs are nondiscrimination provisions. See 42 in determining whether the use of allowed in all areas of the fairgrounds that U.S.C. 12132. Through the investigation different types of power-driven mobility are open to pedestrians as a reasonable of complaints, its enforcement actions, devices by individuals with disabilities modification to its general policy on and public comments related to EPAMDs. The county determined that the ticketing, the Department is aware of the may be permitted. In developing venue provides adequate space for a larger policies, public entities should group device such as an EPAMD and that it does need to provide regulatory guidance to power-driven mobility devices by type not fundamentally alter the nature of the entities involved in the sale or (e.g., EPAMDs, golf cars, gasoline- fair’s activities and services. The county’s distribution of tickets. With this NPRM, powered vehicles, wheelchairs designed policies do, however, require that EPAMDs the Department proposes to include a for outdoor use, and other devices). A be operated at a safe speed limit. A county section on ticketing within the general blanket exclusion of all devices that fall employee may inquire at the ticket gate requirements of subpart B. under the definition of other power- whether the device is needed due to the In response to the ANPRM, user’s disability and also inform an individuals with disabilities and related driven mobility devices in all locations individual with a disability using an EPAMD would likely violate the proposed that the county policy requires that it be advocacy groups commented that the regulation. operated at or below the designated speed reduced requirements for accessible The factors listed in § 35.137(c)(1)–(3) limit. seating in assembly areas underscored may be used in order to develop policies Example 2: The city has developed a the need for clarification from the regarding the use of other power-driven policy specific to city hall regarding the use Department on ticketing related issues. mobility devices by people with of EPAMDs (i.e., users who do not need the One disability advocacy group asserted disabilities. The dimensions, weight, devices due to disability are required to leave that in order to guarantee equal access and other characteristics of the mobility the devices outside the building). While most to assembly areas for people with device in relation to a wheelchair or of city hall is spacious, the city has disabilities, it is necessary to provide scooter, as well as the device’s determined that it is not reasonable to allow people with disabilities to bring their complementary design standards, sales maneuverability and speed, may be EPAMDs into the recorder of deeds office, policies, and operational procedures. considered. Another permissible factor which is quite small, and the device’s The Department agrees that more is the risk of potential harm to others. dimensions make it unsafe and unwieldy in explicit regulation is needed to ensure The use of gas-powered golf cars by this situation. If it is not possible for the that individuals with disabilities are not

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improperly denied access to events entities that provide a service or system permitted to do. A facility must provide because of discriminatory procedures by which individuals can purchase a portable seat for the transferee to use for the sale of wheelchair spaces. The event tickets, and is not limited to a if necessary. Department’s enforcement actions have venue’s operation of its own ticketing Secondary market ticket sales. The demonstrated that some venue systems. Department is aware that the proposed operators, ticket sellers, and distributors The Department has received rule may represent a significant change are not properly implementing title II’s numerous complaints from individuals in practice for many public entities with general nondiscrimination provisions. who were denied the opportunity to respect to ‘‘secondary market’’ ticket The Department has entered into acquire tickets for accessible seats sales. Because the secondary market is agreements addressing problems with through avenues such as ticketing pre- a recognized—and often integral—part ticketing sales and distribution by sales, promotions, lotteries, or wait lists. of the ticketing distribution system for requiring specific modifications to The proposed rule, at § 35.138(b), makes many venues and activities, individuals ticketing policies. While these clear that public entities must include with disabilities will be denied an equal negotiated settlement agreements and accessible seating in all stages of the opportunity to benefit from the goods consent decrees rest on fundamental ticketing process, including pre-sales, offered—attendance at an event—if nondiscrimination principles, they promotions, lotteries, or wait lists. public entities have no obligations with represent solutions tailored to specific Identification of available accessible respect to accessible seating bought or facilities. The Department believes that seating. Section 35.138(c) of the sold in this way. In conjunction with guidance in this area is needed, but also proposed rule requires a facility to the proposed rule, the Department seeks recognizes that ticketing practices and identify available accessible seating if comment about public entities’ current policies vary with venue size and event seating maps, brochures, or other practices with respect to the secondary type, and that a ‘‘one-size-fits-all’’ information is provided to the general market for tickets, and the anticipated approach may be unrealistic. public. In the Department’s impact of the proposed rule on different The proposed rule clarifies the investigations of theaters and stadiums, types of facilities or events. Specifically, application of title II with respect to it has discovered that many facilities the Department would like to know: ticketing issues in certain contexts, and lack an accurate inventory of the Question 20: If an individual resells a is intended to strike a balance between accessible seating in their venues, and ticket for accessible seating to someone a covered entity’s desire to maximize that this information gap results in lost who does not need accessible seating, ticket sales and the rights of individuals opportunities for patrons who need should the secondary purchaser be with disabilities to attend events in accessible seating. For some public required to move if the space is needed assembly areas in a manner that is equal entities, multiple inventories may be for someone with a disability? to that afforded to individuals without required to account for different uses of disabilities. The proposed rule does not, the facilities because the locations of Question 21: Are there particular however, purport to cover or clarify all accessible seating may change in an concerns about the obligation imposed aspects or applications of title II to arena depending on whether it is used by the proposed rule in which a public ticketing issues. Moreover, the rule for a hockey game, a basketball game, or entity must provide accessible seating, applies only to the sale or distribution a concert. The proposed rule further including a wheelchair space where of tickets that are sold or distributed on provides that the facility identify the needed, to an individual with a a preassigned basis. accessible seating on publicly available disability who purchases an Because this rule addresses ticketing seating charts. This transparency will ‘‘inaccessible’’ seat through the policies and practices for stadiums, facilitate the accurate sale of accessible secondary market? arenas, theaters, and other facilities in seating. Release of unsold accessible seats. which entertainment and sporting Section 35.138(d) requires public Section 35.138(f) provides regulatory events are held, its provisions are entities to provide individuals with guidance regarding the release of unsold related to and informed by those in disabilities with accurate information accessible seats. Through its proposed § 35.151(g), which establishes about the location of accessible seating. investigations, the Department has design requirements for seating in The proposed rule specifically prohibits become familiar with the problem of assembly areas. (Section 35.151(g) is the practice of ‘‘steering’’ individuals designated accessible seating being sold discussed below in the section-by- with disabilities to certain wheelchair to the general public before people who section analysis.) After the proposed spaces so that the facility can maximize need accessible seating can buy tickets. standards are finalized, the scoping potential ticket sales for other unsold As a result, individuals who need to use reduction will apply to all public wheelchair spaces. the accessible seating cannot attend an entities. See proposed 28 CFR 35.133(c) Season tickets and multiple event event. (discussed earlier in the section-by- tickets. Section 35.138(e) addresses the The Department has entered into section analysis). sale of season tickets and other tickets agreements addressing this problem by Ticket distribution methods. Section for multiple events. The proposed rule requiring specific modifications to 35.138(a) states the general rule that a provides that public entities must sell ticketing policies. While these public entity shall modify its policies, season tickets or tickets for multiple negotiated settlement agreements and practices, and procedures to ensure that events for accessible seating in the same consent decrees rest on fundamental individuals with disabilities can manner that such tickets are sold to nondiscrimination principles, they purchase single or multi-event tickets those purchasing general seating. The represent solutions tailored to specific for accessible seating in the same way rule also states that spectators facilities. The Department believes that as others (i.e., during the same hours purchasing tickets for accessible seating guidance in this area is needed, but also and through the same distribution on a multi-event basis shall be recognizes that ticketing practices and methods as other seating is sold) unless permitted to transfer tickets for single- policies vary with venue size and event doing so would fundamentally alter the event use by friends or associates in the type, and that a ‘‘one-size-fits-all’’ nature of its ticketing service, program, same fashion and to the same extent approach may be unrealistic. These or activity. The proposed rule makes other spectators holding tickets for the options provide flexibility so that clear that it is meant to reach all public same type of ticketing plan are ticketing policies can be adjusted

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according to the venue size and event level for an event, then a percentage wheelchair seating to purchase no more type. (determined by the ratio of the total than two tickets (for him or herself and Facility sell-out. The approach in number of seats at that price level to the a companion), while other patrons have § 35.138(f)(1) allows for the release of total number of seats in the assembly significantly higher purchase limits (if unsold accessible seating once standard area) of the number of accessible seats any). This is particularly difficult for seats in the facility have been sold. must be provided at that price level in families, friends, or other groups larger (Luxury boxes, club boxes, or suites are an accessible location. For example, than two that include a person who not required to be sold out before the many theaters built prior to the passage requires accessible seating. If the ticket remaining accessible seats are released.) of the ADA have balconies that are number is limited, the result for To implement this option, the release of inaccessible to individuals who use wheelchair users is that parents and unsold accessible seating should be wheelchairs, and the only wheelchair children, friends, classmates, and others done according to an established, spaces are located in the orchestra level are separated. Section 35.138(i) clarifies written schedule. Blocks of seats should where tickets are more expensive. If a application of title II to ameliorate such be released in stages, and should comparably sized balcony in a theater a situation. include tickets in a range of price built under the ADA’s new construction There are various ways that covered categories and locations that is standards would have two wheelchair entities can accommodate groups that representative of the range of seating spaces, the older theater must sell two require at least one wheelchair space. that remains available to other patrons. orchestra wheelchair spaces at the The proposed regulation at § 35.138(i)(1) Sell-outs in specific seating areas. balcony price on a first come, first would require a public entity to permit Under the second option, § 35.138(f)(2), served basis. up to three companions to sit in a a facility could release unsold accessible Fraudulent purchase of designated designated wheelchair area, platform, or seating in a specific seating area once all accessible seating. The Department has cross-over aisle that is designated as a of the standard seats in that location received numerous comments regarding wheelchair area, even if the number of were sold out. For example, if all fraudulent attempts to purchase companions outnumber the individuals standard seats in the orchestra level are wheelchair spaces for patrons other than requiring a wheelchair space. For sold, the unsold accessible seats in the those who use wheelchairs. Moreover, example, a parent who uses a orchestra level could be released for sale the Department recognizes that wheelchair could attend a concert with to the general public. implementation of some of its his or her spouse and their two Sell-outs of specific price ranges. The proposals, such as public identification children, and all four could sit together third approach described at of accessible seating, increases the in the wheelchair area. The Department § 35.138(f)(3) would permit a public potential for the fraudulent purchase of recognizes that some advocates may entity to release unsold accessible seats accessible seats by those who do not object to this use of designated in a specific price range if all other need them. The Department continues wheelchair areas because it will reduce standard seats in that price range were to believe that requiring an individual to the amount of accessible seating sold out. For example, if all $50 seats provide proof that he or she is a person available for those who need it. On were sold, regardless of their location, with a disability is an unnecessary and balance, however, the Department the unsold $50 accessible seats would burdensome invasion of privacy and believes that the opportunity to sit with be released for sale to the general may unfairly deter individuals with family and friends, as other patrons do, public. disabilities from purchasing tickets to is an integral element of the experience Question 22: Although not included an event. of attending a ticketed event, and it is in the proposed regulation as currently Notwithstanding this position, the an element that is often denied to drafted, the Department is soliciting proposed rule at § 35.138(h) would individuals with disabilities. comment on whether additional permit public entities to take certain By limiting the number of tickets that regulatory guidance is required or steps to address potential ticket fraud. can be purchased under this provision appropriate in terms of a more detailed Under proposed § 35.138(h)(1), a to four, the Department seeks a balance or set schedule for the release of tickets covered entity may inquire at the time by which groups and families can be in conjunction with the three of the ticket purchase for single-event accommodated while still leaving ample approaches discussed above. For tickets whether the wheelchair space is space for other individuals who use example, does the proposed regulation for someone who uses a wheelchair. wheelchairs. The Department seeks address the variable needs of assembly Section 35.138(h)(2) addresses potential comments from individuals, business areas covered by the ADA? Is additional ticket fraud for season or subscription entities, and advocacy organizations on regulatory guidance required to tickets. Under this provision, a facility whether the proposed rule will eliminate discriminatory policies, may require the purchaser to attest in appropriately effectuate the integration practices, and procedures related to the writing that a wheelchair space is for and nondiscrimination principles sale, holding, and release of accessible someone who uses a wheelchair. underlying the rule. seating? What considerations should However, the regulation preserves the Question 23: Is the proposed rule appropriately inform the determination right of an individual with a disability regarding the number of tickets that a of when unsold accessible seating can to transfer his or her ticket for public entity must permit individuals be released to the general public? individual events and clarifies that the who use wheelchairs to purchase Ticket pricing. Section 35.138(g) of intermittent use of the wheelchair space sufficient to effectuate the integration of the proposed rule addresses ticket by a person who does not use a wheelchair users with others? If not, pricing. The proposed rule codifies the wheelchair does not constitute fraud. please provide suggestions for achieving Department’s longstanding policy that Purchase of multiple tickets. The the same result with regard to public entities cannot impose a Department has received numerous individual and group ticket sales. surcharge for wheelchair spaces. complaints stating that assembly Group ticket sales. Group ticket sales Accessible seating must be made operators are unfairly restricting the present another area in which the available at all price levels for an event. number of tickets that can be purchased Department believes additional If an existing facility has barriers to by individuals with disabilities. Many regulatory guidance is appropriate. The accessible seating at a particular price venues limit an individual requiring purpose of the proposed rule at

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§ 35.138(i)(2) is to prevent the current proposed standards. In these as well. There are a number of practice of separating groups in a way circumstances, the public entity is exceptions to the technical that isolates or segregates those in the entitled to a safe harbor, and is only specifications for accessible routes, and group who require wheelchair seating. If required to modify elements to comply there are special rules (incorporated by a group includes one or more with the proposed standards if the reference from nationally recognized individuals who use a wheelchair, the public entity is, independently, standards for accessibility and safety in proposed rule requires the facility to planning an alteration that is not play areas) for accessible ground place that group in a seating area that undertaken in fulfillment of its program surfaces. Accessible ground surfaces includes wheelchair spaces so that, if accessibility obligations. See 28 CFR must be inspected and maintained possible, the group can sit together. If it 35.151(b). The proposed safe harbor for regularly and frequently to ensure is necessary to divide the group, it title II operates only with respect to continued compliance. should be divided so that the elements that are in compliance with The Department is concerned about individuals in the group who use a the scoping and technical specifications the potential impact of these wheelchair are not isolated from the in either the 1991 Standards or the supplemental requirements on existing group. In existing facilities that lack UFAS; it does not apply to elements that play areas that are not otherwise being accessible seating in certain areas, e.g., are addressed by supplemental altered. The program accessibility a theater with an inaccessible balcony, requirements in the 2004 ADAAG. The requirement does not require public the proposed regulation would require Department proposes a new entities to make structural modifications covered entities to seat at least three § 35.150(b)(2), denominated Safe to existing facilities except where such companions with the individuals using Harbor, to § 35.150 (Program modifications may be necessary to make a wheelchair in the accessible seating Accessibility). Section 35.150(a) the program or service, when area of the orchestra. includes general provisions, and considered as a whole, accessible to paragraph (b) of that section describes individuals with disabilities. Although Subpart D—Program Accessibility the methods by which a public entity play areas may be more likely than other Section 35.150(b)(2) Safe Harbor complies with the program accessibility types of facilities to require structural requirements. Historic preservation modifications, this does not mean that Under the ‘‘program accessibility’’ programs, which are addressed in every existing playground operated by a requirement in title II, each service, § 35.150(b)(2) in the current regulation, city or county must be made accessible. program, or activity, when viewed in its have been moved to § 35.150(b)(3) in the Compliance with the program entirety, must be readily accessible to proposed rule. accessibility requirement turns on the and usable by individuals with The Department proposes in accessibility of the program—i.e., the disabilities. 28 CFR 35.150 (emphasis § 35.150(b)(2) that if elements in an program of providing and maintaining added). The title II regulation makes existing facility are in compliance with public playgrounds—rather than the clear that, unlike public either the 1991 Standards or UFAS, the accessibility of each particular facility accommodations under title III, a public public entity is not required to alter— used to provide that program. Where a entity is not required to make each of its or retrofit again—such elements to public entity provides and maintains existing facilities accessible to and reflect incremental changes in the 2004 multiple play areas as part of its usable by individuals with disabilities. ADAAG simply because the Department program of providing public 28 CFR 35.150(a)(1). Moreover, public is adopting new ADA Standards. As playgrounds, for purposes of the entities are not required to make explained above, this safe harbor program accessibility requirement, only structural changes to existing facilities operates on an element-by-element a reasonable number but at least one of where other methods are effective in basis, and does not apply to elements such play areas would be required to ensuring program accessibility. 28 CFR subject to requirements that are not undertake structural modifications to 35.150(b)(1). included in the current ADA Standards provide access for individuals with Given that program accessibility is not for Accessible Design, but rather are disabilities. The same reasoning would an element-by-element inquiry, but supplemental requirements in the 2004 apply where an existing site (e.g., a state rather looks to the program when ADAAG. park) provides multiple play areas ‘‘viewed in its entirety,’’ and that designed for the same age group. structural changes are not always Section 35.150(b)(4) and (5) Existing The Department notes that the required in order to provide access to Play Areas and Recreation Facilities requirement to provide a reasonable the programs, services, or activities of a Play areas. Sections 206.2.17, 206.7.8, number of accessible play areas is public entity, the Department believes and 240.1 of the 2004 ADAAG provide consistent with the longstanding that the program accessibility a detailed set of requirements for newly program accessibility rules, which requirement, itself, may appropriately constructed and altered play areas. provide that it is not necessary for every mitigate any burdens on public entities Section 240.2.1.1 of the 2004 ADAAG facility to be accessible, provided that with respect to their existing facilities. requires that at least one ground level the program, when viewed in its Nevertheless, in order to provide play component of each type provided entirety, is readily accessible to certainty to public entities and (e.g., for different experiences such as individuals with disabilities. In individuals with disabilities alike, the rocking, swinging, climbing, spinning, situations where a public entity Department proposes to add a provision and sliding) must be accessible and provides the services of one program at to the program accessibility requirement connected to an accessible route. In multiple sites (e.g., a town with ten in § 35.150 that would clarify that addition, if elevated play components parks), the public entity would focus on public entities that have brought are provided, entities must make at least whether the number and location of the elements into compliance in existing fifty percent (50%) of the elevated play accessible parks offer comparable facilities are not, simply because of the components accessible and connect convenience to persons with disabilities Department’s adoption of the 2004 them to an accessible route, and may and whether the range of programs and ADAAG as its new standards, required have to make an additional number of services offered at the accessible parks to modify those elements in order to ground level play components are equivalent to the range offered at the reflect incremental changes in the (representing different types) accessible inaccessible parks. At a minimum, a

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public entity must provide at least one Question 26: The Department requests percent (50%) of the elevated play accessible facility unless the public public comment with respect to the components are accessible. entity can demonstrate that providing application of these requirements to Many commenters advised the the accessible facility would result in a existing play areas. What is the ‘‘tipping Department that making elevated play fundamental alteration in the nature of point’’ at which the costs of compliance components accessible in existing play its program or activity or in undue with the new requirements for existing areas that are not otherwise being financial and administrative burdens. play areas would be so burdensome that altered would impose an undue burden However, determining how many more the entity would simply shut down the on most facilities. Given the nature of than one would be ‘‘reasonable’’ playground? the element at issue, retrofitting existing requires a careful analysis of factors in The Department is proposing two elevated play components in play areas order to determine how many accessible specific provisions to reduce the impact to meet the scoping and technical facilities are necessary to ensure that the on existing facilities that undertake specifications in the alteration standard covered program is accessible. Factors structural modifications pursuant to the would be difficult and costly, and in to be considered include, but are not program accessibility requirement. First, some instances, infeasible. In response limited to, the size of the public entity, the Department proposes to add to expressed concerns, the Department geographical distance between sites, § 35.150(b)(5)(i) to provide that existing proposes to reduce the scoping for travel times to the sites, the number of play areas that are less than 1,000 existing play areas that are not being sites, and availability of public square feet in size and are not otherwise altered by permitting entities to transportation to the sites. being altered need not comply with the substitute ground level play The Department is proposing several scoping and technical requirements for components for elevated play specific provisions and posing play areas in section 240 of the 2004 components. Entities that provide additional questions in an effort to both ADAAG. The Department selected this elevated play components that do not mitigate and gather information about size based on the provision in section comply with section 240.2.2 of the 2004 the potential burden of the 1008.2.4.1 of the 2004 ADAAG, ADAAG would be deemed in supplemental requirements on existing Exception 1, permitting play areas less compliance for purposes of the program public facilities. than 1,000 square feet in size to provide accessibility requirement as long as the Question 24: Is a ‘‘reasonable number, accessible routes with a reduced clear number of accessible ground level play but at least one’’ a workable standard width (44 inches instead of 60 inches). components is equal to the sum of (a) for determining the appropriate number In its 2000 regulatory assessment for the the number of ground level play of existing play areas that a public play area guidelines, the Access Board components required to comply with entity must make accessible for its assumed that such ‘‘small’’ play areas section 240.2.1 of the 2004 ADAAG (as program to be accessible? Should the represented only about twenty percent provided by Table 240.2.1.2, but at least Department provide a more specific (20%) of the play areas located in public one of each type) and (b) the number of scoping standard? Please suggest a more schools, and none of the play areas elevated play components required to specific standard if appropriate. In the located in city and state parks (which comply with 2004 ADAAG section alternative, should the Department the Board assumed were typically larger 240.2.2 (namely, fifty percent (50%) of provide a list of factors that a public than 1,000 square feet). If these all elevated play components). In entity could use to determine how many assumptions are correct, the proposed existing play areas that provide a of its existing play areas to make exemption would have relatively little limited number of ground level play accessible, e.g., number of play areas, impact on most existing play areas components, qualifying for this travel times, or geographic distances operated by public entities, while still exception may require providing between play areas, and the size of the mitigating the burden on those smaller additional ground level play public entity? public entities to which it did apply. components. State and local governments may have Question 27: The Department would While this provision may result in already adopted accessibility standards like to hear from public entities and less accessibility than the application of or codes similar to the 2004 ADAAG individuals with disabilities about the the alteration standard, public entities requirements for play and recreation potential effect of this approach. Should will likely be more willing to areas, but which might have some existing play areas less than 1,000 voluntarily undertake structural differences from the Access Board’s square feet be exempt from the modifications in play areas if they guidelines. requirements applicable to play areas? anticipate that compliance will be Question 25: The Department would Secondly, the Department proposes to straightforward and relatively welcome comment on whether there are add § 35.150(b)(4)(i) to provide that inexpensive. In addition, for existing state and local standards specifically existing play areas that are not being play areas with limited resources, it will regarding play and recreation area altered will be permitted to meet a often be more efficient to devote accessibility. To the extent that there are reduced scoping requirement with resources to making the ground surface such standards, we would welcome respect to their elevated play of the play area accessible, which is comment on whether facilities currently components. Elevated play components, necessary to provide an accessible route governed by, and in compliance with, which are found on most playgrounds, to any play components. Reduced such state and local standards or codes are the individual components that are scoping for elevated play components should be subject to a safe harbor from linked together to form large-scale could also minimize the risk that compliance with applicable composite playground equipment (e.g., covered entities will delay compliance, requirements in the 2004 ADAAG. We the monkey bars attached to the remove elevated play components, or would also welcome comment on suspension bridge attached to the tube simply close the play area. It also whether it would be appropriate for the slide, etc.). The proposed standards provides a bright-line rule for which Access Board to consider provide that a play area that includes compliance can be easily evaluated. implementation of guidelines that both ground level and elevated play Question 28: The Department would would permit such a safe harbor with components must ensure that a like to hear from public entities and respect to play and recreation areas specified number of the ground level individuals with disabilities about the undertaking alterations. play components and at least fifty potential effect of this approach. Should

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existing play areas be permitted to provide a list of factors that a public accessible and, for some people, can be substitute additional ground level play entity could use to determine how many an important part of maintaining health. components for the elevated play of its existing swimming pools to make Other commenters noted that having components it would otherwise have accessible, e.g., number of swimming two accessible means of egress from a been required to make accessible? Are pools, travel times or geographic pool can be a significant safety feature there other select requirements distances between swimming pools, and in the event of an emergency. It may be, applicable to play areas in the 2004 the size of the public entity? however, that as a practical matter the ADAAG for which the Department The Department is proposing two reduction in scoping may not be should consider exemptions or reduced specific provisions to minimize the significant, as the measures required to scoping? potential impact of the new meet the alteration standards for Question 29: The Department would requirements on existing swimming accessible entries would often impose welcome comment on whether it would pools that undertake structural an undue burden even if considered on be appropriate for the Access Board to modifications pursuant to the program a case-by-case basis. consider implementation of guidelines accessibility requirement. First, the Question 31: The Department would for play and recreational facilities Department is proposing to add like to hear from public entities and undertaking alterations that would § 35.150(b)(5)(ii) to provide that individuals with disabilities about this permit reduced scoping of requirements swimming pools that have over 300 exemption. Should the Department or substitution of ground level play linear feet of swimming pool wall and allow existing public entities to provide components in lieu of elevated play are not being altered will be required to only one accessible means of access to components, as the Department is provide only one (rather than two) swimming pools more than 300 linear proposing with respect to barrier accessible means of entry, at least one feet long? removal obligations for certain play or of which must be a sloped entry or a Secondly, the Department proposes to recreational facilities. pool lift. This provision represents a add § 35.150(b)(5)(ii) to provide that Swimming pools. As noted earlier, the less stringent requirement than the existing swimming pools that have less program accessibility requirement does requirement in 2004 ADAAG section than 300 linear feet of swimming pool not require public entities to make 242.2, which requires such pools, when wall and are not being altered need not structural modifications to existing newly constructed or altered, to provide undertake structural modifications to facilities except where such two accessible means of entry. Under comply with the scoping and technical modifications may be necessary to make this proposal, for purposes of the requirements for swimming pools in the program or service, when program accessibility requirement, section 242.2 of the 2004 ADAAG. In its considered as a whole, accessible to swimming pools operated by public 2002 regulatory assessment for the individuals with disabilities. Although entities would be required to have at recreation guidelines, the Access Board swimming pools, like play areas, may be least one accessible entry. assumed that pools with less than 300 more likely than other types of facilities Commenters responding to the feet of linear pool wall would represent to require structural modifications, this ANPRM noted that the two-means-of- ninety percent (90%) of the pools in does not mean that every existing entry-standard, if applied to existing public high schools; forty percent (40%) swimming pool operated by a city or swimming pools, will of the pools in public parks and county must be made accessible. disproportionately affect small public community centers; and thirty percent Compliance with the program entities, both in terms of the cost of (30%) of the pools in public colleges accessibility requirement turns on the implementing the standard and and universities. If these assumptions accessibility of the program—i.e., the anticipated litigation costs. Larger are correct, the proposed exemption program of providing and maintaining public entities benefit from economies would have the greatest impact on the public swimming pools—rather than the of scale, which are not available to small accessibility of swimming pools in accessibility of each particular facility entities. Although complying with the public high schools. used to provide that program. Where a alteration standard would impose an Question 32: The Department would public entity provides and maintains undue burden on many small public like to hear from public entities and multiple swimming pools as part of its entities, the litigation-related costs of individuals with disabilities about the program of providing public swimming proving that such compliance is not potential effect of this approach. Should pools, for purposes of the program necessary to provide program access existing swimming pools with less than accessibility requirement, only a may be significant. Moreover, these 300 linear feet of pool wall be exempt reasonable number but at least one of commenters argue, the immediacy of from the requirements applicable to such swimming pools would be perceived noncompliance with the swimming pools? required to undertake structural standard—it will usually be readily Wading pools. Section 242.3 of the modifications to provide access for apparent whether a public entity has the 2004 ADAAG provides that newly individuals with disabilities. The same required accessible entry or entries— constructed or altered wading pools reasoning would apply where an makes this element particularly must provide at least one sloped means existing site (e.g., a city recreation vulnerable to serial ADA litigation. The of entry to the deepest part of the pool. center) provides multiple swimming reduced scoping would apply to all The Department is concerned that pools serving the same purpose. public entities, regardless of size. installing a sloped entry in existing Question 30: Is a ‘‘reasonable number, The Department recognizes that this wading pools may not be feasible for a but at least one’’ a workable standard approach could reduce the accessibility significant proportion of public entities for determining the appropriate number of larger swimming pools compared to and is considering creating an of existing swimming pools that a public the requirements in the 2004 ADAAG. exemption for existing wading pools entity must make accessible for its Individuals with disabilities and that are not being altered. program to be accessible? Should the advocates were particularly concerned Question 33: What site constraints Department provide a more specific about the accessibility of pools, and exist in existing facilities that could scoping standard? Please suggest a more noted that for many people with make it difficult or infeasible to install specific standard if appropriate. In the disabilities, swimming is one of the few a sloped entry in an existing wading alternative, should the Department types of exercise that is generally pool? Should existing wading pools that

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are not being altered be exempt from the constraints that would make require at least twenty-five percent requirement to provide a sloped entry? compliance with this requirement (25%) of railings at fishing piers and Saunas and steam rooms. The infeasible? platforms to be no higher than 34 inches Department is proposing one specific Areas of sport activity. Sections high, so that a person seated in a provision to minimize the potential 206.2.2 and 206.2.12 of the 2004 wheelchair can fish over the railing, to impact of the new requirements on ADAAG require each area of sport be dispersed along the pier or platform, existing saunas and steam rooms. activity (e.g., courts and playing fields, and to be on an accessible route. (An Section 241 of the 2004 ADAAG whether indoor or outdoor) to be served exception permits railings to comply, requires newly constructed or altered by an accessible route. In court sports, instead, with the model codes, which saunas and steam rooms to meet the accessible route would also have to permit railings to be 42 inches high.) If accessibility requirements, including directly connect both sides of the court. gangways (where only one end of route accessible turning space and an For purposes of the program is attached to land) and floating piers accessible bench. Where saunas or accessibility requirement, as with play (where neither end is attached to land) steam rooms are provided in clusters, areas and swimming pools, where an are involved, a number of exceptions are five percent (5%), but at least one sauna existing facility provides multiple areas provided from the general standards for or steam room in each cluster, will have of sport activity that serve the same accessible routes in order to take into to be accessible. The Department purpose (e.g., multiple soccer fields), account the difficulty of meeting understands that many saunas are only a reasonable number but at least accessibility slope requirements due to manufactured (pre-fabricated) and come one (rather than all) would need to meet fluctuations in water level. In existing in standard sizes (e.g., two-person or accessibility requirements. facilities, moreover, gangways need not four-person), and that the two-person Question 36: Should the Department be lengthened to meet the requirement size may not be large enough to meet the create an exception to this requirement (except, in an alteration, as may be turning space requirement. Therefore, for existing courts (e.g., tennis courts) required by the path of travel the Department proposes in that have been constructed back-to-back requirement). § 35.150(b)(5)(iii) to specify that existing without any space in between them? Question 38: The Department is saunas or steam rooms that have a Boating facilities. Sections 206.2.10, interested in collecting data regarding capacity of only two persons and are not 235.2 and 235.3 of the 2004 ADAAG the impact of this requirement on being altered need not undertake require a specified number of boat slips existing facilities. Are there issues (e.g., structural modifications to comply with and boarding piers at boat launch ramps space limitations) that would make it the scoping and technical requirements to be accessible and connected to an difficult to provide an accessible route for saunas and steam rooms in section accessible route. In existing boarding to existing fishing piers and platforms? 241 of the 2004 ADAAG. While this piers, the required clear pier space may Miniature golf courses. Sections exception may limit the accessibility of be perpendicular to and extend the 206.2.16, 239.2, and 239.3 of the 2004 small existing saunas or steam rooms in width of the boat slip if the facility has ADAAG require at least fifty percent public facilities, such facilities would at least one accessible boat slip, (50%) of the holes on miniature golf remain subject to the ADA’s general providing that more accessible slips courses to be accessible and connected requirement to ensure that individuals would reduce the total number (or to an accessible route (which must with disabilities have an equal widths) of existing boat slips. Accessible connect the last accessible hole directly opportunity to enjoy the services and boarding piers at boat launch ramps to the course entrance or exit); amenities of their facilities. must comply with the requirements for generally, the accessible holes would Exercise machines. Sections 236 and accessible boat slips for the entire length have to be consecutive ones. Specified 206.2.13 of the 2004 ADAAG require of the pier. If gangways (only one end exceptions apply to accessible routes one of each type of fixed exercise of route is attached to land) and floating located on the playing surfaces of holes. machine to meet clear floor space piers (neither end is attached to land) Question 39: The Department is specifications and to be on an accessible are involved, a number of exceptions are considering creating an exception for route. Types of machines are generally provided from the general standards for existing miniature golf facilities that are defined according to the muscular accessible routes in order to take into of a limited total square footage, have a groups exercised or the kind of account the difficulty of meeting limited amount of available space cardiovascular exercise provided. accessibility slope requirements due to within the course, or were designed with Question 34: Will existing facilities fluctuations in water level. In existing extreme elevation changes. If the have to reduce the number of available facilities, moreover, gangways need not Department were to create such an exercise equipment and machines in be lengthened to meet the requirement exception, what parameters should the order to comply? What types of space (except in an alteration, as may be Department use to determine whether a limitations would affect compliance? required by the path of travel miniature golf course should be exempt? Team or player seating areas. Section requirement). 221.2.1.4 of the 2004 ADAAG requires Question 37: The Department is Section 35.151 New Construction and one or more wheelchair spaces to be interested in collecting data regarding Alterations provided in each team or player seating the impact of these requirements in Section 35.151, which provides that area with fixed seats, depending upon existing boating facilities. Are there those buildings that are constructed or the number of seats provided for issues (e.g, space limitations) that would altered by, on behalf of, or for the use spectators. For bowling lanes, the make it difficult to provide an accessible of a public entity shall be designed, requirement would be limited to lanes route to existing boat slips and boarding constructed, or altered to be readily required to be accessible. piers at boat launch ramps? To what accessible to and usable by individuals Question 35: Are team or player extent do the exceptions for existing with disabilities, is unchanged in the seating areas in certain types of existing facilities (i.e., with respect to boat slips proposed rule, but current § 35.151(a) facilities (e.g., ice hockey rinks) more and gangways) mitigate the burden on will be redesignated as § 35.151(a)(1). difficult to make accessible due to existing facilities? The Department will add a new section, existing designs? What types of existing Fishing piers and platforms. Sections designated as § 35.151(a)(2), to provide facilities typically have design 206.2.14 and 237 of the 2004 ADAAG that full compliance with the

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requirements of this section is not The Department proposes to add function unless the provision of required where an entity can § 35.151(b)(4) in order to make the path restrooms is the major reason that the demonstrate that it is structurally of travel requirement in title II facility is maintained by a public entity, impracticable to meet the requirements. consistent with that in title III. Both the such as at a highway rest stop. In that Full compliance will be considered Uniform Federal Accessibility situation, a restroom would be structurally impracticable only in those Standards (UFAS) and the title III considered to be an ‘‘area containing a rare circumstances when the unique regulation contain requirements for primary function’’ of the facility. characteristics of terrain prevent the provision of an accessible ‘‘path of The requirement for an accessible incorporation of accessibility features. travel’’ to the altered area when an path of travel does not apply, however, This exception is now contained in the existing facility is altered, although the to the extent that the cost and scope of title III regulation and in the 1991 circumstances that trigger the alterations to the path of travel is Standards (applicable to both public requirements are somewhat different disproportionate to the cost of the accommodations and facilities used by under each statute. Under section overall alteration, as determined under public entities), so it has applied to any 4.1.6(3) of UFAS, an accessible route to criteria established by the Attorney covered facility that was constructed the altered area, an accessible entrance, General. Sections 227, 42 U.S.C. 12147, under the 1991 Standards since the and (where applicable) accessible toilet and 242, 42 U.S.C. 12162, of the ADA effective date of the ADA. The facilities must be provided when a adopt the same requirement for public Department is adding it to the text of substantial alteration is made to an transportation facilities under title II. § 35.151 to maintain consistency existing building. An alteration is Section 202.4 of the proposed between the design requirements that considered ‘‘substantial’’ if the total cost standards adopts the statutory path of apply under title II and those that apply of all alterations within any twelve travel requirement, and § 36.403 of the under title III. month period amounts to fifty percent Department’s title III regulation (50%) or more of the full and fair cash establishes the criteria for determining Section 35.151(b) Alterations value of the building. The proposed rule when the cost of alterations to the path The Department’s proposed rule eliminates the UFAS ‘‘substantial of travel is ‘‘disproportionate’’ to the would amend § 35.151(b)(2) to make alteration’’ basis for path of travel cost of the overall alteration. The clear that the path of travel requirements because it eliminates Department’s proposed § 35.151(b)(4) requirements of § 35.151(b)(4) do not UFAS as an option. will adopt the language now contained apply to measures taken solely to The path of travel requirements of the in the title III regulation in its entirety, comply with program accessibility Department’s proposed title II rule are including the disproportionality requirements. This amendment is based on section 303(a)(2) of the ADA, limitation (i.e., alterations made to consistent with § 36.304(d)(1) of the title which provides that when an entity provide an accessible path of travel to III regulation, which states that ‘‘[t]he undertakes an alteration to a place of the altered area would be deemed path of travel requirements of § 36.403 public accommodation or commercial disproportionate to the overall alteration shall not apply to measures taken solely facility that affects or could affect the when the cost exceeds twenty percent to comply with the barrier removal usability of or access to an area that (20%) of the cost of the alteration to the requirements of this section.’’ contains a primary function, the entity primary function area). The two requirements for alterations shall ensure that, to the maximum Section 35.151(c) Accessibility to historic facilities enumerated in extent feasible, the path of travel to the current § 35.151(d)(1) and (2) have been Standards for New Construction and altered area—and the restrooms, Alterations combined under proposed telephones, and drinking fountains § 35.151(b)(3), and one substantive serving it—is readily accessible to and Section 35.151(c) proposes to adopt change is proposed. Proposed usable by individuals with disabilities, Parts I and III of the Americans with § 35.151(b)(3) provides that alterations including individuals who use Disabilities Act and Architectural to historic properties shall comply, to wheelchairs. Barriers Act Guidelines, 69 FR 44084 the maximum extent feasible, with the The Department proposes to add a (July 23, 2004) (2004 ADAAG) as the provisions applicable to historic provision to the path of travel ADA Standards for Accessible Design properties in the design standards requirement in § 35.151(b)(4)(ii)(C) that (proposed standards). As the specified in § 35.151(c). Currently, the would clarify that public entities that Department noted above, the regulation provides that alterations to have brought required elements of the development of these proposed historic facilities shall comply with path of travel into compliance are not standards represents the culmination of section 4.1.7 of UFAS or section 4.1.7 of required to modify those elements in a lengthy effort by the Access Board to the 1991 Standards. See 28 CFR order to reflect incremental changes in update its guidelines, to make the 35.151(d)(1). However, the proposed the proposed standards when the public federal guidelines consistent to the regulation requires that alterations to entity alters a primary function area that extent permitted by law, and to historic properties on or after six is served by the element. In these harmonize the federal requirements months after the effective date of the circumstances, the public entity is with the private sector model codes that proposed regulation comply with the entitled to a safe harbor, and is only form the basis of many state and local proposed standards, not UFAS or the required to modify elements to comply building code requirements. The full 1991 Standards. See § 35.151(c). The with the proposed standards if the text of the 2004 ADAAG is available for substantive requirement in current public entity is planning an alteration to public review on the ADA Home Page § 35.151(d)(2)—that alternative methods the element. (http://www.ada.gov) and on the Access of access shall be provided pursuant to The proposed rule provides that areas Board’s Web site (http://www.access- the requirements of § 35.150 if it is not such as mechanical rooms, boiler rooms, board.gov). The Access Board site also feasible to provide physical access to an supply storage rooms, employee lounges includes an extensive discussion of the historic property in a manner that will and locker rooms, janitorial closets, development of the 2004 ADAAG, and not threaten or destroy the historic entrances, and corridors are not areas a detailed comparison of the 1991 significance of the building or facility— containing a primary function. Nor are Standards, the 2004 ADAAG, and the is unchanged. restroom areas containing a primary 2003 International Building Code.

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Appendix A to this proposed rule is in 28 CFR part 36, subpart F. Revisions requirements. To avoid placing the an analysis of the major changes in the to that process are being proposed in an burden of complying with both proposed standards and a discussion of NPRM to amend the title III regulation standards on public entities, the the public comments that the that is being published elsewhere in the Department will coordinate a Department received on specific Federal Register today. In addition, the government-wide effort to revise federal sections of the 2004 ADAAG. Comments Department operates an extensive agencies’ section 504 regulations to discussing the costs and benefits of the technical assistance program. The adopt the 2004 ADAAG as the standard proposed standards have been Department anticipates that once this for new construction and alterations. considered and taken into account by rule is final, it will issue revised The purpose of the six-month delay in the Department’s regulatory impact technical assistance material to provide requiring compliance with the 2004 analysis. Comments on the effect of the guidance about the implementation of Standards is to allow covered entities a proposed standards on existing facilities this rule. reasonable grace period to transition are discussed in conjunction with the Current § 35.151(c) establishes two between the existing and the proposed analysis of § 35.150 of this proposed standards for accessible new standards. For that reason, if a title II rule. construction and alteration. Under entity prefers to use the 2004 ADAAG The remaining comments addressed paragraph (c), design, construction, or as the standard for new construction or global issues, such as the Department’s alteration of facilities in conformance alterations commenced within the six- proposal to adopt the 2004 ADAAG as with the Uniform Federal Accessibility month period after the effective date of the ADA Standards for Accessible Standards (UFAS) or with the 1991 the proposed regulation, such entity Design without significant changes. Standards (which, at the time of the will be considered in compliance with Section 204 of the ADA, 42 U.S.C. publication of the rule were also title II of the ADA. 12134, directs the Attorney General to referred to as the Americans with Section 35.151(d) Scope of Coverage issue regulations to implement title II Disabilities Act Accessibility Guidelines that are consistent with the guidelines for Buildings and Facilities (ADAAG)) is The Department is proposing published by the Access Board. deemed to comply with the § 35.151(d) to clarify that the Commenters suggested that the requirements of this section with requirements established by this Department should not adopt the 2004 respect to those facilities (except that if section, including those contained in ADAAG, but should develop an the 1991 Standards are chosen, the the proposed standards, prescribe what independent regulation. The elevator exemption does not apply). The is necessary to ensure that fixed or built- Department is a statutory member of the 1991 Standards were based on the in elements in new or altered facilities Access Board and was actively involved ADAAG that were initially developed are accessible to individuals with in the development of the 2004 ADAAG. by the Access Board as guidelines for disabilities. Once the construction or Because of its long involvement with the accessibility of buildings and alteration of a facility has been the process, the Department does not facilities that are subject to title III. The completed, all other aspects of believe that it is necessary or Department adopted the ADAAG as the programs, services, and activities appropriate to begin that lengthy standards for places of public conducted in that facility are subject to development process again. accommodation and commercial the operational requirements Nevertheless, during the process of facilities under title III of the ADA and established in this regulation. Although drafting this NPRM, the Department has it was published as Appendix A to the the Department often chooses to use the reviewed the 2004 ADAAG to determine Department’s regulation implementing requirements of the 1991 Standards as a if additional regulatory provisions are title III, 28 CFR part 36, and amended guide to determining when and how to necessary. As a result of this review, the on Jan. 18, 1994, 59 FR 2674. make equipment and furnishings Department decided to propose new The Department’s proposed rule accessible, those determinations fall sections, which are contained in would revise the existing § 35.151(c) to within the discretionary authority of the § 35.151(d)–(h), to clarify how the adopt the 2004 ADAAG as the ADA Department and do not flow Department will apply the proposed Standards for Accessible Design. The automatically from the Standards. standards to social service proposed rule amends current The Department is also clarifying that establishments, housing at places of § 35.151(c)(1) by revising the current the advisory notes, appendix notes, and education, assembly areas, and medical language to limit its application to figures that accompany the 1991 care facilities. Each of these provisions facilities on which construction Standards do not establish separately is discussed below. commences within six months of the enforceable requirements. This Another general comment suggested publication of the final rule adopting clarification has been made to address that the Department should adopt a revised standards. The proposed rule concerns expressed by commenters who system for providing formal adds paragraph (c)(2) to § 35.151, which mistakenly believed that the advisory interpretations of the standards, states that facilities on which notes in the 2004 ADAAG established analogous to the code interpretation construction commences on or after the requirements beyond those established systems used by states and the major date six months following the in the text of the guidelines (e.g., model codes. Because the ADA is a civil publication of the final rule shall Advisory 504.4 suggests, but does not rights statute, not a building code, the comply with the proposed standards require, that covered entities provide statute does not contemplate or adopted by that rule. visual contrast on stair tread nosing to authorize a formal code interpretation As a result, for the first six months make them more visible to individuals system. The ADA anticipated that there after the effective date of the proposed with low vision). would be a need for close coordination regulation, public entity recipients can of the ADA building requirements with continue to use either UFAS or the 1991 Section 35.151(e) Social Service the state and local requirements. Standards and be in compliance with Establishments Therefore, the statute authorized the title II. Six months after the effective The Department is proposing a new Attorney General to establish an ADA date of the rule, the new standards will § 35.151(e) that provides that group code certification process under title III take effect. Construction in accordance homes, halfway houses, shelters, or of the ADA. That process is addressed with UFAS will no longer satisfy ADA similar social service establishments

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that provide temporary sleeping the option that harmonizes the provision that in guest rooms with more accommodations or residential dwelling regulatory requirements: Coverage than twenty-five beds, at least five units shall comply with the provisions under the residential dwelling units percent (5%) of the beds must have of the proposed standards that apply to requirements. parallel clear floor space enabling a residential facilities, including, but not In response to its request for public person using a wheelchair to access and limited to, the provisions in §§ 233 and comments on this issue, the Department transfer to the bed. See sections 224.3, 809 of the 2004 ADAAG. received a total of eleven responses from 806.2.3, 305 of the 2004 ADAAG. The The reasons for this proposal are industry and disability rights groups residential dwelling unit section does based on two important changes in the and advocates. Some commenters not explicitly include a similar 2004 ADAAG. For the first time, representing disability rights groups provision. residential dwelling units are explicitly expressed concern that the residential In response to this concern, the covered in the 2004 ADAAG in section dwelling unit requirements in the 2004 Department has added § 35.151(e)(1), 233. Second, the language addressing ADAAG are less stringent than the which states that in settings where the scoping and technical requirements for revised transient lodging requirements, sleeping areas include more than homeless shelters, group homes, and and would result in diminished access twenty-five beds, and in which the similar social service establishments is for individuals with disabilities. residential dwelling unit requirements eliminated. Currently, such The commenters are correct that in apply, five percent (5%) of the beds establishments are covered in section some circumstances, the residential must comply with section 806.2.3 of the 9.5 of the transient lodging section of requirements are less stringent, 2004 ADAAG (i.e., at least five percent the 1991 Standards. The deletion of particularly with respect to accessibility (5%) must have parallel clear floor section 9.5 creates an ambiguity of for individuals with communication- space on both sides of the bed enabling coverage that must be addressed. related disabilities. Other differences a person using a wheelchair to access The Department proposed in the between the residential standards and and transfer to the bed). ANPRM that the establishments the transient lodging standards include: Definitions of residential facilities and currently covered by section 9.5 be The residential guidelines do not transient lodging. The 2004 ADAAG covered as residential dwelling units in require elevator access to upper floors if adds a definition of ‘‘residential the 2004 ADAAG (section 233), rather the required accessible features can be dwelling unit’’ and modifies the current than as transient lodging guest rooms in provided on a single, accessible level; definition of ‘‘transient lodging.’’ section 224. The Department believes and the residential guidelines do not Under section 106.5 of the 2004 this is a prudent action based on its expressly require roll-in showers. ADAAG, a ‘‘residential dwelling unit’’ is effect on social service providers. Despite this, the Department still defined as ‘‘a unit intended to be used Transferring coverage of social service believes that applying the residential as a residence, that is primarily long- establishments from transient lodging to dwelling unit requirements to homeless term in nature’’ and does not include residential dwelling units will alleviate shelters and similar social service transient lodging, inpatient medical conflicting requirements for social establishments is appropriate to the care, licensed long-term care, and service providers. The Department nature of the services being offered at detention or correctional facilities. believes that a substantial percentage of those facilities, and that it will Additionally, section 106.5 of the 2004 social service providers are recipients of harmonize the ADA and section 504 ADAAG changes the definition of federal financial assistance from the requirements applicable to those ‘‘transient lodging’’ to a building or HUD. The Department of Health and facilities. In addition, the Department facility ‘‘containing one or more guest Human Services (HHS) also provides believes that the proposal is consistent room[s] for sleeping that provides financial assistance for the operation of with its obligations under the accommodations that are primarily shelters through the Administration for Regulatory Flexibility Act to provide short-term in nature’’ and does not Children and Families programs. As some regulatory relief to small entities include residential dwelling units such, they are covered both by the ADA that operate on limited budgets. intended to be used as a residence. The and section 504. The two design Nevertheless, the Department is references to ‘‘dwelling units’’ and standards for accessibility—i.e., the requesting information from providers ‘‘dormitories’’ that are in the definition 1991 Standards and UFAS—have who operate homeless shelters, transient of the 1991 Standards are omitted from confronted many social service group homes, halfway houses, and other the 2004 ADAAG definition of transient providers with separate, and sometimes social service establishments, and from lodging. conflicting, requirements for design and the clients of these facilities who would The Department said in the ANPRM construction of facilities. To resolve be affected by this proposed change. that by applying the 2004 ADAAG these conflicts, the residential dwelling Question 40: To what extent have residential facility standards to transient unit standards in the 2004 ADAAG have conflicts between the ADA and section group homes, homeless shelters, been coordinated with the section 504 504 affected these facilities? What halfway houses, and other social service requirements. The transient lodging would be the effect of applying the establishments, these facilities would be standards, however, are not similarly residential dwelling unit requirements more appropriately classified according coordinated. The deletion of section 9.5 to these facilities, rather than the to the nature of the services they of the 1991 Standards from the 2004 requirements for transient lodging guest provide, rather than the duration of ADAAG presented two options: (1) rooms? those services. Participants in these Require coverage under the transient Another commenter expressed programs may be housed on either a lodging standards, and subject such concern about how the Department short-term or long-term basis in such facilities to separate, conflicting would address dormitory-style settings facilities, and variations occur even requirements for design and in homeless shelters, transient group within the same programs and the same construction; or (2) require coverage homes, halfway houses, and other social facility. Therefore, duration is an under the residential dwelling unit service establishments if they are inconsistent way of classifying these section, which harmonizes the scoped as residential dwelling units. facilities. regulatory requirements under the ADA The commenter noted that the transient Several commenters stated that the and section 504. The Department chose lodging requirements include a specific definitions of residential dwellings and

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transient lodging in the 2004 ADAAG residential dwelling units built by or on summer, school dormitories become are not clear and will confuse social behalf of public entities with the intent program areas where small groups meet, service providers. They noted that that the finished units will be sold to receptions and educational sessions are including ‘‘primarily long-term’’ and individual owners. held, and social activities occur. The ‘‘primarily short-term’’ in the respective ability to move between rooms, both Section 35.151(f) Housing at a Place of definitions creates confusion when accessible rooms and standard rooms, in Education applied to the listed facilities because order to socialize, to study, and to use they serve individuals for widely The Department of Justice and the all public and common use areas is an varying lengths of time. Department of Education share essential part of having access to these The Department is aware of the wide responsibility for regulation and educational programs and activities. range and duration of services provided enforcement of the ADA in If the requirements for residential by social service establishments. postsecondary educational settings, facilities were applied to dormitories Therefore, rather than focus on the including architectural features. operated by schools, this could hinder length of a person’s stay at a facility, the Housing types in educational settings access to educational programs for Department believes that it makes more range from traditional residence halls students with disabilities. The prior sense to look at a facility according to and dormitories to apartment or discussion about social service the type of services provided. For that townhouse-style residences. In addition establishments with sleeping reason, rather than saying that social to the ADA and section 504, other accommodations explained that the service establishments ‘‘are’’ residential federal laws, including the Fair Housing requirements for dispersing accessible facilities, the Department has drafted Act of 1968, may apply. Covered entities units would not necessarily require an the proposed § 35.151(e) to provide that subject to the ADA must always be elevator or access to different levels of group homes, and other listed facilities, aware of, and comply with, any other a facility. Conversely, applying the shall comply with the provisions in the federal statutes or regulations that transient lodging requirements to school 2004 ADAAG that would apply to govern the operation of residential dormitories would necessitate greater residential facilities. properties. access throughout the facility to Finally, the Department received Since the enactment of the ADA, the students with disabilities. Therefore, the comments from code developers and Department has received many Department requests public comment on architects commending the decision to questions about how the ADA applies to how to scope school dormitories. coordinate the 2004 ADAAG with the educational settings, including school Question 42: Would the residential requirements of section 504, and asking dormitories. Neither the 1991 Standards facility requirements or the transient the Department to coordinate the 2004 nor the 2004 ADAAG specifically lodging requirements in the 2004 ADAAG with the Fair Housing Act’s addresses how it applies to housing in ADAAG be more appropriate for accessibility requirements. The educational settings. Therefore, the housing at places of education? How Department believes that the Department is proposing a new would the different requirements affect coordination of the Fair Housing Act § 35.151(f) that provides that residence the cost when building new dormitories with the other applicable disability halls or dormitories operated by or on and other student housing? Please rights statutes is within the jurisdiction behalf of places of education shall provide examples, if possible. of HUD. HUD is the agency charged comply with the provisions of the Section 35.151(g) Assembly Areas with the responsibility to develop proposed standards for transient regulations to implement the Fair lodging, including, but not limited to, The Department is proposing a new Housing Act, the Architectural Barriers the provisions in sections 224 and 806 § 35.151(g) to supplement the assembly Act, and the provisions of section 504 of the 2004 ADAAG. Housing provided area requirements in the proposed applicable to federally funded housing via individual apartments or standards. This provision would add programs. townhouses will be subject to the five additional requirements. Scoping of residential dwelling units requirements for residential dwelling Section 35.151(g)(1) would require for sale to individual owners. In the units. wheelchair and companion seating 2004 ADAAG, the Access Board Public and private school dormitories locations to be dispersed so that some deferred to the Department and to HUD, have varied characteristics. Like social seating is available on each level served the standard-setting agency under the service establishments, schools are by an accessible route. This requirement ABA, to decide the appropriate scoping generally recipients of federal financial should have the effect of ensuring the for residential dwelling units built by or assistance and are subject to both the full range of ticket prices, services, and on behalf of public entities with the ADA and section 504. College and amenities offered in the facility. Factors intent that the finished units will be university dormitories typically provide distinguishing specialty seating areas sold to individual owners. These housing for up to one academic year, are generally dictated by the type of programs include, for example, HUD’s but may be closed during school facility or event, but may include, for HOME program. In addition, some states vacation periods. In the summer, they example, such distinct services and have their own state-funded programs to are often used for short-term stays of amenities as reserved seating (when construct units for sale to individuals. one to three days, a week, or several other seats are sold on a first-come-first- The Department expects that, after months. They are also diverse in their served basis only); reserved seating in consultation and coordination with layout. Some have double-occupancy sections or rows located in premium HUD, the Department will make a rooms and a toilet and bathing room locations (e.g., behind home plate or determination in the final rule. shared with a hallway of others, while near the home team’s end zone) that are Question 41: The Department would some may have cluster, suite, or group not otherwise available for purchase by welcome recommendations from arrangements where several rooms are other spectators; access to wait staff for individuals with disabilities, public located inside a secure area with in-seat food or beverage service; housing authorities, and other bathing, kitchen, and common facilities. availability of catered food or beverages interested parties that have experience Public schools are subject to title II for pre-game, intermission, or post-game with these programs. Please comment and program access requirements. meals; restricted access to lounges with on the appropriate scoping for Throughout the school year and the special amenities, such as couches or

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flat screen televisions; or access to team appropriate to prohibit the use of maintained in medical care facilities personnel or facilities for team- temporary platforms in fixed seating such as hospitals. In response, sponsored events (e.g., autograph areas. Nothing in § 35.151(g) is intended commenters representing individuals sessions, sideline passes, or facility to prohibit the use of temporary with disabilities supported a tours) not otherwise available to other platforms to increase the available requirement for dispersion of accessible spectators. seating, e.g., platforms that cover a sleeping rooms among all types of Section 35.151(g)(2) adds the basketball court or hockey rink when medical specialty areas, such as prohibition that the seating may not be the arena is being used for a concert. obstetrics, orthopedics, pediatrics, and placed on temporary platforms or other These areas of temporary seating do not cardiac care. Conversely, commenters movable structures. The Department has remove required wheelchair locations representing the health care industry become aware that a growing trend in and, therefore, would not violate the pointed out that treatment areas in the design of large sports facilities is to requirements of this regulation. In health care facilities can be very fluid provide wheelchair seating on addition, covered entities would still be due to fluctuation in the population and removable platforms that seat four or permitted to use individual movable other demographic and medical funding more wheelchair users and their seats to infill any wheelchair locations trends. The Access Board decided not to companions. These platforms cover one that are not sold to wheelchair users. add a dispersion requirement because or more rows of non-wheelchair seating. Section 35.151(g)(3) would require compliance over the lifetime of the The platforms are designed to be facilities that have more than 5,000 seats facility could prove difficult given the removed so that the part of the seating to provide at least five wheelchair need for flexibility of spaces within bowl that they cover can be used to seat locations with at least three companion such facilities. The Department additional ambulatory spectators. The seats for each wheelchair space. The recognizes that it may be difficult to sale of any seats in the covered area Department is proposing this ensure a perfect distribution of rooms requires removal of the platform, requirement to address complaints from throughout all specialty areas in a thereby eliminating some of the many wheelchair users that the practice hospital, but the Department is required wheelchair seating locations. of providing a strict one-to-one concerned that the absence of any In another design that produces a relationship between wheelchair dispersion requirement may result in similar result, removable platforms locations and companion seating often inappropriate concentrations of configured to provide multiple, non- prevents family members from attending accessible rooms. wheelchair seats, are installed over events together. Question 43: The Department is some or all of the required wheelchair Section 35.151(g)(4) would provide seeking information from hospital seating locations. In this configuration, more precise guidance for designers of designers and hospital administrators selling a ticket for one wheelchair stadium-style movie theaters by that will help it determine how to ensure location requires the removal of requiring such facilities to locate that accessible hospital rooms are multiple non-wheelchair seats. wheelchair seating spaces and dispersed throughout the facility in a The Department believes that both of companion seating on a riser or cross- way that will not unduly restrain the these designs violate both the letter and aisle in the stadium section that satisfies ability of hospital administrators to the intent of this regulation. Both at least one of the following criteria: allocate space as needed. The proposed designs have the potential to reduce the (i) It is located within the rear sixty standards require that ten percent number of available wheelchair seating percent (60%) of the seats provided in (10%) of the patient bedrooms in spaces below the level required. an auditorium; or hospitals that do not specialize in Reducing the number of available (ii) It is located within the area of an treating conditions that affect mobility spaces is likely to result in reducing the auditorium in which the vertical be accessible. If it is not feasible to opportunity for people who use viewing angles (as measured to the top distribute these rooms among each of wheelchairs to have the same choice of of the screen) are from the 40th to the the specialty areas, would it be ticket prices and access to amenities 100th percentile of vertical viewing appropriate to require the accessible that are available to other patrons in the angles for all seats as ranked from the rooms to be dispersed so that there are facility. In addition, placing wheelchair seats in the first row (1st percentile) to accessible patient rooms on each floor? seating on removable platforms may seats in the back row (100th percentile). Are there other methods of dispersal have a disproportionate effect on the that would be more effective? availability of seating for individuals Section 35.151(h) Medical Care who use wheelchairs and their Facilities Section 35.151(i) Curb Ramps companions attempting to buy tickets The Department is proposing a new The current § 35.151(e) on curb ramps on the day of the event. Use of § 35.151(h) on medical care facilities, has been redesignated as § 35.151(i). removable platforms may result in which now must comply with the The Department has made a minor instances where last minute requests for applicable sections of the proposed editorial change, deleting the phrase wheelchair and companion seating standards. The Department also ‘‘other sloped areas’’ from the two cannot be met because entire sections of proposes that medical care facilities that places in which it appears in the current wheelchair seating will be lost when a do not specialize in the treatment of rule. The phrase ‘‘other sloped areas’’ platform is removed. The use of conditions that affect mobility shall lacks technical precision. Both the 1991 movable seats, on the other hand, could disperse the accessible patient Standards and the proposed standards meet such a demand without bedrooms required by section 223.2.1 of provide technical guidance for the eliminating blocks of wheelchair seating the proposed standards in a manner that installation of curb ramps. at a time, converting only those seats enables patients with disabilities to that are needed for ambulatory have access to appropriate specialty Miniature Golf Courses spectators and are not wanted by services. The Department proposes to adopt the individuals who use wheelchairs and The Department is aware that the requirements for miniature golf courses their companions. Access Board sought comment on how in the 2004 ADAAG. However, it For these reasons, the Department dispersion of accessible sleeping rooms requests public comment on a suggested believes that it is necessary and can effectively be achieved and change to the requirement for holes to

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be consecutive. A commenter aging inmate populations, corrections requiring the use of a cane, walker, association argued that the ‘‘miniature conferences now routinely include wheelchair, or other aids to do daily golf experience’’ includes not only workshops on strategies to address the activities.’’ Laura M. Maruschak, Bureau putting but also enjoyment of ‘‘beautiful needs of elderly prisoners, including the of Justice Statistics (BJS), Medical landscaping, water elements that increased health care needs. In addition, Problems of Jail Inmates (2006), include ponds, fountain displays, and the Federal Bureau of Prisons requires available at http://www.ojp.usdoj.gov/ lazy rivers that matriculate throughout that three percent (3%) of inmate bjs/abstract/mpji.htm. In a 1997 survey, the course and themed structures that housing at BOP facilities is accessible. BJS reported that among state prison allow players to be taken into a ‘fantasy- Bureau of Prisons, Design Construction inmates age 45 or older, twenty-five like’ area.’’ Thus, requiring a series of Branch, Design Guidelines, Attachment percent (25%) said they had a ‘‘physical consecutive accessible holes would A: Accessibility Guidelines for Design, condition.’’ Laura M. Maruschak and limit the experience of guests with Construction, and Alteration of Federal Allen J. Beck, Ph.D., Bureau of Justice disabilities to one area of the course. To Bureau of Prisons (Oct. 31, 2006). Statistics, Medical Problems of Inmates, remedy this situation, the association The lack of sufficient accessible cells 1997 (2001), available at http:// suggests allowing multiple breaks in the is further demonstrated by complaints www.ojp.usdoj.gov/bjs/abstract/ sequence of accessible holes while received by the Department. The mpi97.htm. maintaining the requirement that the Department receives dozens of Number of accessible cells. Section accessible holes are connected by an complaints per year alleging that 232.2.1 of the 2004 ADAAG requires at accessible route. detention and correctional facilities least two percent (2%), but no fewer The suggested change would need to have too few accessible cells, toilets, than one, of the cells in newly be made by the Access Board and then and showers for inmates with mobility constructed detention and correctional adopted by the Department, and if disabilities. Other complaints allege that facilities to have accessibility features adopted, it would apply to all miniature inmates with mobility disabilities are for individuals with mobility golf courses, not only existing miniature housed in medical units or infirmaries disabilities. Section 232.3 provides that, golf facilities. separate from the general population where special holding cells or special Question 44: The Department would simply because there are no accessible housing cells are provided, at least one like to hear from the public about the cells. Another common complaint to the cell serving each purpose shall have suggestion of allowing multiple breaks Department is from inmates alleging mobility features. While the 2004 in the sequence of accessible holes, that they are housed at a more ADAAG establishes these requirements provided that the accessible holes are restrictive classification level simply for cells in newly constructed detention connected by an accessible route. because no accessible housing exists at and correctional facilities, it does not Should the Department ask the Access the appropriate classification level. establish requirements for accessible Board to change the current requirement Further, the Department’s onsite cells in alterations to existing facilities, in the 2004 ADAAG? reviews and investigations of detention deferring that decision to the Attorney and correctional facilities confirm the Accessible Cells in Detention and General. complaints that there are too few The Department seeks input on how Correctional Facilities accessible cells. The need for accessible best to meet the needs of inmates with Through complaints received, cells can vary widely from facility to mobility disabilities in the design, investigations, and compliance reviews facility, depending on the population construction, and alteration of detention of jails, prisons, and other detention and housed. While the requirement that two and correctional facilities. The correctional facilities, the Department percent (2%) of the cells have mobility Department seeks comments on the has found that many detention and features would be adequate to meet following issues: correctional facilities have too few or no current needs in some facilities the Question 45: Are the requirements for accessible cells and shower facilities to Department has reviewed, it would not accessible cells in sections 232.2 and meet the needs of their inmates with begin to meet current needs at other 232.3 of the 2004 ADAAG adequate to mobility disabilities. The insufficient facilities. For example, at one facility meet the needs of the aging inmate numbers of accessible cells are, in part, with a population of almost 300 population in prisons? If not, should the due to the fact that most jails and inmates, ten percent (10%) of the percentage of cells required to have prisons were built long before the ADA inmates use wheelchairs. The accessible features for individuals with became law and, since then, have requirement that two percent (2%) of mobility disabilities be greater and, if so, undergone few alterations. However, the cells at this facility must be accessible what is the appropriate percentage? Department believes that the unmet would not meet the needs of inmates Should the requirement be different for demand for accessible cells is also due with mobility disabilities, since it prisons than for other detention and to the changing demographics of the would not be adequate to meet the correctional facilities? inmate population. With thousands of needs of wheelchair users alone. Question 46: Should the Department prisoners serving life sentences without Another facility has a geriatric unit for establish a program accessibility eligibility for parole, prisoners are aging, 60 inmates. A two percent (2%) requirement that public entities modify and the prison population of standard would fall far short of meeting additional cells at a detention or individuals with disabilities and elderly the needs of this largely bedridden correctional facility to incorporate the individuals is growing. A recent article population. Another building at this accessibility features needed by specific illustrates this change. Since 1990, the same facility has 600 cells and houses inmates with mobility disabilities when number of Oklahoma inmates age 45 or more than 18 inmates who need the number of cells required by sections older has quadrupled, and, in 2006, ten accessible cells. Under the two percent 232.2 and 232.3 of the 2004 ADAAG are percent (10%) of the Oklahoma state (2%) standard, only twelve accessible inadequate to meet the needs of their prison population was elderly. Angel cells would be required. inmate population? Under this option, Riggs, Now in Business: Handicapped According to the Bureau of Justice additional cells provided for inmates Accessible Prison: State Opens First Statistics (BJS) 2002 survey of jail with mobility disabilities would not Prison for Disabled, in Tulsa World inmates, ‘‘two percent of jail inmates necessarily be required to comply with (Feb. 20, 2007). Reflecting this trend of said they had a mobility impairment, all requirements of section 807.2 of the

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2004 ADAAG, so long as a cell had the Introduction of new § 35.152 for operates the correctional facility does so mobility features needed by the inmate detention and correctional facilities. In at the direction of the state government, it housed. view of the statistics regarding the unless the private entity elects to use Dispersion of cells. In the 2004 current percentage of inmates with the facility for something other than ADAAG, Advisory 232.2 recommends mobility disabilities, the fact that prison incarceration, in which case title III may that ‘‘[a]ccessible cells or rooms should populations include large numbers of apply. For that reason, the proposed be dispersed among different levels of aging inmates who are not eligible for § 35.152(a) makes it clear that this security, housing categories, and parole, the allegations in complaints section’s requirements will apply to holding classifications (e.g., male/ received by the Department from prisons operated by public entities female and adult/juvenile) to facilitate inmates, and the Department’s own directly or through contractual or other access.’’ In explaining the basis for experience with detention and relationships. recommending, but not requiring, this correctional facilities, the Department is Alterations to cells and program type of dispersal, the Access Board proposing regulatory language in a new access. When addressing the issue of stated that ‘‘[m]any detention and section (§ 35.152) on correctional alterations of prison cells, the correctional facilities are designed so facilities, and seeking public comment Department must consider the realities that certain areas (e.g., ‘shift’ areas) can on these issues. of many inaccessible state prisons and be adapted to serve as different types of The proposed rule at § 35.152 is strained budgets against the title II housing according to need’’ and that intended to address these frequent program access requirement for existing ‘‘[p]lacement of accessible cells or problems for inmates with disabilities facilities under § 35.150(a), which rooms in shift areas may allow by: (1) Proposing specific requirements states: ‘‘A public entity shall operate additional flexibility in meeting to ensure accessibility when a each service, program, or activity, so requirements for dispersion of correctional or detention facility alters that the service, program, or activity, accessible cells or rooms.’’ During its cells; (2) specifying that public entities when viewed in its entirety, is readily onsite reviews of detention and shall not place inmates or detainees accessible to and usable by individuals correctional facilities, the Department with disabilities in locations that exceed with disabilities.’’ The Supreme Court, has observed that male and female their security classification in order to in Pennsylvania Department of inmates, adult and juvenile inmates, provide accessible cells; (3) requiring Corrections v. Yeskey, 524 U.S. 206 and inmates at different security that public entities shall not place (1998), unanimously held that the ADA classifications are typically housed in inmates in designated medical units and unmistakably covers state prisons and separate areas of detention and infirmaries solely due to disability; (4) prisoners, so program access does apply correctional facilities. In many specifying that public entities shall not to state correctional facilities; the instances, detention and correctional relocate inmates and detainees solely question remains how best to achieve facilities have housed inmates in based on disability to different, that within the unique confines of a inaccessible cells, even though accessible facilities without equivalent prison system. accessible cells were available programs than where they would Correctional and detention facilities elsewhere in the facility, because there ordinarily be housed; and (5) requiring commonly provide a variety of different were no cells in the areas where they that public entities shall not deprive programs for education, training, needed to be housed, such as the inmates or detainees from visitation counseling, or other purposes related to women’s section of the facility, the with family members by placing them in rehabilitation. Some examples of juvenile section of the facility, or in a distant facilities based on their programs generally available to inmates particular security classification area. disabilities. The additions to the include: Programs to obtain G.E.Ds; Question 47: Please comment on existing title II regulation, including English as a second language; computer whether the dispersal of accessible cells each of these proposals and any public training; job skill training and on-the-job recommended in Advisory 232.2 of the comments received on this topic, are training; religious instruction and 2004 ADAAG should be required. discussed in turn below. guidance; alcohol and substance abuse Alterations to cells. In section 232.2 of Contractual arrangements with groups; anger management; and other the 2004 ADAAG, the Access Board private entities. Prisons that are built or programs. Historically, individuals with deferred one decision to the Attorney run by private entities have caused disabilities have been excluded from General, specifically: ‘‘Alterations to some confusion with regard to such programs because they are not cells shall not be required to comply requirements under the ADA. The located in accessible locations, or except to the extent determined by the Department believes that title II inmates with disabilities have been Attorney General.’’ The security obligations extend to the public entity segregated to units without equivalent concerns of detention and correctional as soon as the building is used by or on programs. In light of the Supreme facilities present challenges that do not behalf of a state or local government Court’s decision in Yeskey and the exist in other government buildings, so entity, irrespective of whether the requirements of title II, however, it is the Department must strike a balance public entity contracts with a private critical that public entities provide these that accommodates the accessibility entity to run the correctional facility. opportunities. The Department’s needs of inmates with disabilities while The power to incarcerate citizens rests proposed rule aims to specifically addressing security concerns. Therefore, with the state, not a private entity. As require equivalent opportunities to such in the ANPRM, the Department sought the Department stated in the preamble programs. public comment on three options for the to the current title II regulation, ‘‘[a]ll The Department wishes to emphasize most effective means of ensuring that governmental activities of public that detention and correctional facilities existing detention and correctional entities are covered, even if they are are unique facilities under title II. facilities are made accessible to inmates carried out by contractors.’’ 56 FR Inmates cannot leave the facilities and with disabilities. The proposed options 35694, 35696 (July 26, 1991). If a prison must have their needs met—including and submitted comments are discussed is occupied by state prisoners and is those relating to a disability—by the below in the section-by-section analysis inaccessible, the state is responsible state corrections system. If the state fails for a new proposed section on detention under title II of the ADA. In essence, the to accommodate prisoners with and correctional facilities. private builder or contractor that disabilities, these individuals have little

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recourse, particularly when the need is it is essential that the planning process commenter offered that the unique urgent (e.g., an accessible toilet or clean initially assume that inmates or safety concerns of a correctional facility needles for insulin injections for detainees with disabilities will be require a balance between staff and prisoners with diabetes). assigned within the system under the inmate safety and accessibility. One In light of a public entity’s obligation same criteria that would be applied to advocacy group reasoned that Option II to provide program access to prisoners inmates who do not have disabilities. was best because it would allow prison with disabilities, coupled with the Exceptions may be made on a case-by- operators to determine the most Department’s proposal for a more case basis if the specific situation appropriate location for the accessible flexible alterations standard, the warrants different treatment. For cells. One group commented that this Department believes that the state has a example, if an inmate is deaf and option would allow the prison officials higher responsibility to provide communicates only using sign language, more flexibility, which is necessary in a accommodations based on disability. a prison may consider whether it is correctional environment. Equally Therefore, it is essential that state more appropriate to give priority to important, keeping inmates in the same corrections systems fulfill their program housing the prisoner in a facility close facility may allow them to remain closer access requirements by adequately to his family that houses no other deaf to their homes; the third option could addressing the needs of prisoners with inmates, or if it would be preferable to create segregated facilities. In the end, disabilities, which include, but are not house the prisoner in a setting where this group asserted that each facility— limited to, proper medication and there are other sign language users with rather than each system—should be medical treatment, accessible toilet and whom he can communicate. looked at ‘‘in its entirety.’’ shower facilities, devices such as a bed Question 48: The Department is One large advocacy group stated that transfer or a shower chair, and particularly interested in hearing from Option II was acceptable, stressing that assistance with hygiene methods for prison administrators and from the program access requires the same prisoners with physical disabilities. public about the potential effect of the training and work opportunities that Therefore, the Department is proposing assignment scheme proposed here on other prisoners have. An architectural a new § 35.152 that will require public inmates and detainees who are deaf or association asserted that this option entities to ensure that inmates with who have other disabilities. Are there should only apply to existing disabilities do not experience other, more appropriate tests to apply? correctional cells, but that any other discrimination because the prison Alterations to cells. In the ANPRM, part of a correctional facility should be facilities or programs are not accessible the Department proposed three options made accessible when it is altered. The to them. for altering cells. The vast majority of Department, however, is only Integration of inmates and detainees commenters (numbering three to one) addressing the alterations of prison cells with disabilities. The Department is also supported Option II, which would allow in this rulemaking. While expressing proposing a specific application of the substitute cells to be made accessible support for Option II, a few commenters ADA’s general integration mandate. within the same facility, over Option III. stressed that cells made accessible in a Section 35.152(b)(2) would require Only one commenter expressed support different location in the facility must public entities to ensure that inmates or for Option I, and a handful of provide equal access to dining, detainees with disabilities are housed in commenters supported Option III. The recreational, educational, medical, and the most integrated setting appropriate comments on each option are discussed visitor areas as the former location. to the needs of the individual. Unless below. Another commenter stated that the the public entity can demonstrate that it Option I: Require all altered elements alternate cell location should not is appropriate for a specific individual, to be accessible. Only one commenter require longer travel distances. a public entity— supported this option, stating that The Department has evaluated all of providing alternative approaches could the comments and proposes regulatory (1) Should not place inmates or detainees allow those running the prison to language reflecting Option II, which with disabilities in locations that exceed provide a lower level of accessibility, their security classification because there are provides an appropriate balance no accessible cells or beds in the appropriate and that any deviation from the 1991 between the needs of prisoners with classification; Standards on alterations should be disabilities and the unique requirements (2) Should not place inmates or detainees addressed through a barrier removal of detention and correctional facilities. with disabilities in designated medical areas plan, transition plan, or a claim of Option III: Permit substitute cells to be unless they are actually receiving medical technical infeasibility. A few made accessible within a prison system. care or treatment; commenters argued that this option The biggest problem that commenters (3) Should not place inmates or detainees would result in piecemeal accessibility, had with Option III was that it would be with disabilities in facilities that do not offer which would be inadequate. As one more likely to separate prisoners from the same programs as the facilities where they would ordinarily be housed; commenter stated, ‘‘providing an their families and communities. One (4) Should not place inmates or detainees accessible lavatory or water closet (often advocacy group asserted that this option with disabilities in facilities further away a single unit) in an inaccessible cell could lead to the illegal segregation of from their families in order to provide makes no sense.’’ inmates with disabilities; moreover, accessible cells or beds, thus diminishing Option II: Permit substitute cells to be some of the accessible facilities may not their opportunity for visitation based on their made accessible within the same have the same programs or services (e.g., disability. facility. Commenters supporting Option Alcoholics Anonymous, etc.). One The Department recognizes that there II favored the more flexible plan to group argued that this option would are a wide range of considerations that achieve accessibility within a prison give preference to the needs of the affect decisions to house inmates or context. Many expressed support for prison system over the needs of detainees and that in specific cases this option because it would allow individuals with disabilities, while there may be compelling reasons why a individuals with disabilities to remain another group found this option placement that does not follow the close to their families. One commenter unacceptable because it had seen its provisions of § 35.152(b) may, requested accessible cells by type (e.g., own state correctional system nevertheless, comply with the ADA. women’s, men’s, juvenile, different ‘‘funneling’’ its wheelchair-using However, the Department believes that security levels, etc.). Another inmates into a few facilities, which

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sometimes exceeded the prisoners’ same facility; is integrated with other circumstances. For example, a security level requirements. Moreover, cells to the maximum extent feasible; companion may be legally authorized to some prisoners with disabilities are sent and has, at a minimum, equal physical make health care decisions on behalf of to ‘‘special housing’’ units in a facility access as the original cells to areas used the patient or may need to help the because they are the only areas with by inmates or detainees for visitation, patient with information or instructions accessible cells. dining, recreation, educational given by hospital personnel. In addition, In support of Option III, one state programs, medical services, work a companion may be the patient’s next building code commissioner stressed programs, religious services, and of kin or health care surrogate with that this plan would maximize the participation in other programs that the whom hospital personnel communicate flexibility of corrections officials to facility offers to inmates or detainees. concerning the patient’s medical place individuals with disabilities in condition. Moreover, a companion facilities best suited to their needs; Subpart E—Communications could be designated by the patient to prison accessibility extends far beyond Section 35.160 Communications communicate with hospital personnel cells; and barrier removal in a very old about the patient’s symptoms, needs, The Department proposes to expand prison could be cost prohibitive. condition, or medical history. It has § 35.160(a) to clarify that a public Another commenter, a state department been the Department’s longstanding entity’s obligation to ensure effective of labor representative, argued that position that public entities are required communication extends not just to Option III is the most reasonable for to provide effective communication to applicants, participants, and members state-run facilities (but that Option I companions who are themselves deaf, of the public with disabilities, but to should extend to private correctional hard of hearing, or who have other facilities) due to tremendous budget their companions as well. communication-related disabilities The Department also proposes to add constraints. As the Department when they accompany patients to a new § 35.160(a)(2) that will define expressed initially, the same title II medical care providers for treatment. accessibility requirements apply to a ‘‘companion’’ for the purposes of this Public entities must be aware, facility, irrespective of whether it is run section as a person who is a family however, that considerations of privacy, directly by the state or a private entity member, friend, or associate of a confidentiality, emotional involvement, with which the state contracts. program participant who, along with the and other factors may adversely affect While expressing some support for participant, is an appropriate person the ability of family members or friends Option II, one public interest law firm with whom the public entity should to facilitate communication. In addition, representing individuals with communicate. the Department stresses that privacy and disabilities stated that Option III is the The Department is proposing to add confidentiality must be maintained. We best, because many older prisons are companions to the scope of coverage of note that covered entities, such as inaccessible. ‘‘Simply having one § 35.160 to emphasize that the ADA hospitals, that are subject to the Privacy accessible cell in an otherwise applies in some instances in which a Rule, 45 CFR parts 160, 162, and 164, inaccessible facility does little good.’’ public entity needs to communicate of the Health Insurance Portability and Therefore, requiring an entire prison with a family member, friend, or Accountability Act of 1996 (HIPPA), system to have at least one fully associate of the program participant in Public Law 104–191, are permitted to accessible facility is the better approach. order to provide its services. Examples disclose to a patient’s relative, close The Department appreciates that of such situations include when a friend, or any other person identified by Option III affords state corrections school communicates with the parent of the patient (such as an interpreter) systems the maximum amount of a child during a parent-teacher meeting; relevant patient information if the flexibility with regard to placement of in a life-threatening situation, when a patient agrees to such disclosures. The individuals with disabilities. hospital needs to communicate with an agreement need not be in writing. Unfortunately, many commenters injured person’s companion to obtain Covered entities should consult the expressed legitimate concerns, most necessary information; or when a person Privacy Rule regarding other ways significantly that prisoners will, more may need to communicate with a parole disclosures might be able to be made to likely, be separated from family, friends, officer about a relative’s release such persons. and community, which is critical to conditions. In such situations, if the The Department is proposing to their rehabilitation and successful companion is deaf or hard of hearing, amend § 35.160(b)(2) to recognize that release, and many programs at the new blind, has low vision, or has a disability the type of auxiliary aid or service facility will not be the same. Lastly, the that affects his or her speech, it is the necessary to ensure effective fact that certain facilities could become public entity’s responsibility to provide communication will vary in accordance exclusively, or largely, designated for an appropriate auxiliary aid or service with the method of communication prisoners with disabilities would result to communicate effectively with the used by the individual; the nature, in segregation, even if it is not intended. companion. Where communication with length, and complexity of the Proposed requirement for cell a companion is necessary to serve the communication involved; and the alterations. The Department has interests of a person who is context in which the communication is concluded that Option II provides the participating in a public entity’s taking place. This addition is a best balance. Therefore, the Department services, programs, or activities, codification of the Department’s is proposing § 35.152(c) that would effective communication must be longstanding position, which is provide that when cells are being assured. included in the Department of Justice’s altered, a covered entity may satisfy its This issue is particularly important in The Americans with Disabilities Act, obligation to provide the required health care settings. The Department has Title II Technical Assistance Manual, number of cells with mobility features encountered confusion and reluctance Covering State and Local Government by providing the required mobility by medical care providers regarding the Programs and Services (Title II TA features in substitute cells (i.e., cells scope of their obligations with respect to Manual), II–7.1000, available at http:// other than those where alterations are such companions. Effective www.ada.gov/taman2.html. For originally planned), provided that: Each communication with a companion with example, an individual who is deaf or substitute cell is located within the a disability is necessary in a variety of hard of hearing may need a qualified

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interpreter to discuss with municipal because of advances in video Question 50: The Department is hospital personnel a diagnosis, technology, can provide a high quality considering requiring captioning of procedures, tests, treatment options, interpreting experience. VIS can safety and emergency information in surgery, or prescribed medication (e.g., circumvent the difficulty of providing sports stadiums with a capacity of dosage, side effects, drug interactions, live interpreters quickly, which is why 25,000 or more within a year of the etc.), or to explain follow-up treatments, more public entities are providing effective date of the regulation. Would a therapies, test results, or recovery. In qualified interpreters via VIS. larger threshold, such as sports comparison, in a simpler, shorter There are downsides to VIS, such as stadiums with a capacity of 50,000 or interaction, the method to achieve frozen images on the screen, or when an more, be more appropriate or would a effective communication can be more individual is in a medical care facility lower threshold, such as stadiums with basic. For example, an individual who and is limited in moving his or her a capacity of 15,000 or more, be more is seeking local tax forms may only need head, hands, or arms. Another downside appropriate? an exchange of written notes to achieve is that the camera may mistakenly focus Question 51: If the Department effective communication. on an individual’s head, which makes adopted a requirement for captioning at The Department proposes adding communication difficult or impossible. sports stadiums, should there be a § 35.160(c) to codify its longstanding Also, the accompanying audio specific means required? That is, should policy that it is the obligation of the transmission might be choppy or it be provided through any effective public entity, not the individual with a garbled, making spoken communication means (scoreboards, line boards, disability, to provide auxiliary aids and unintelligible. The Department is aware handheld devices, or other means), or services when needed for effective of complaints that some public entities are there problems with some means, communication. In particular, the have difficulty setting up and operating such as handheld devices, that should Department receives many complaints VIS because staff have not been eliminate them as options? from individuals who are deaf or hard appropriately trained to do so. Question 52: The Department is aware that several major stadiums that host of hearing alleging that public entities To address the potential problems sporting events, including National expect them to provide their own sign associated with the use of VIS, the Football League football games at Fed language interpreters. This burden is Department is proposing the inclusion Ex Field in Prince Georges County, misplaced. As such, § 35.160(c)(1) of four performance standards for VIS to Maryland, currently provide open makes clear that a public entity may not ensure effective communication: (1) captioning of all public address require an individual with a disability High quality, clear, real time, full- to bring another individual to interpret announcements, and do not limit motion video and audio over a for him or her. captioning to safety and emergency dedicated high speed Internet Section 35.160(c)(2) codifies the information. What would be the effect of connection; (2) a clear, sufficiently Department’s policy that there are very a requirement to provide captioning for large, and sharply delineated picture of limited instances when a public entity patrons who are deaf or hard of hearing the participants’ heads, arms, hands, may rely on an accompanying for game-related information (e.g., and fingers, regardless of the body individual to interpret or facilitate penalties), safety and emergency position of the person who is deaf; (3) communication: (1) In an emergency information, and any other relevant clear transmission of voices; and (4) involving a threat to public safety or announcements? welfare; or (2) if the individual with a nontechnicians who are trained to set disability specifically requests it, the up and operate the VIS quickly. Section 35.161 Telecommunications accompanying individual agrees to Captioning at sporting venues. The The Department proposes to retitle provide the assistance, and reliance on Department is aware that individuals this section ‘‘Telecommunications’’ to that individual for this assistance is who are deaf or hard of hearing have reflect situations in which a public appropriate under the circumstances. In expressed concerns that they are entity must provide an effective means such instances, the public entity is still unaware of information that is provided to communicate by telephone for required to offer to provide an over the public address systems. individuals with disabilities, and interpreter free of charge. In no Therefore, the Department is proposing proposes several other changes. circumstances should a child be used to requiring that sports stadiums with a The Department proposes to facilitate communication with a parent capacity of 25,000 or more provide redesignate current § 35.161 as about a sensitive matter. The captioning for patrons who are deaf or § 35.161(a), and to replace the term Department has produced a video and hard of hearing for safety and ‘‘Telecommunication devices for the several publications that explain this emergency information announcements deaf (TDD’s)’’ with ‘‘text telephones and other ADA obligations in law made over the public address system. (TTYs).’’ Although ‘‘TDD’’ is the term enforcement settings. They may be There are various options that could be used in the ADA, ‘‘TTY’’ has become viewed at http://www.ada.gov or used for providing captioning, such as the commonly accepted term and is ordered from the ADA Information Line on a scoreboard, on a line board, on a consistent with the terminology used by (800–514–0301 (voice) or 800–514–0383 handheld device, or other methods. the Access Board in the 2004 ADAAG. (TTY)). Question 49: The Department believes In addition, the proposed regulation Video interpreting services. Section that requiring captioning of safety and updates the terminology in light of 35.160(d) has been added to establish emergency information made over the modern usage from ‘‘individuals with performance standards for video public address system in stadiums impaired hearing or speech’’ to interpreting services (VIS), a system the seating fewer than 25,000 has the ‘‘individuals with hearing or speech Department recognizes as a means to potential of creating an undue burden disabilities.’’ provide qualified interpreters quickly for smaller entities. However, the In § 35.161(b), the Department and easily. (The mechanics of VIS are Department requests public comment addresses automated attendant systems discussed above in the definition of VIS about the effect of requiring captioning that handle telephone calls in the section-by-section analysis of of emergency announcements in all electronically. These automated systems § 35.104.) VIS also has economic stadiums, regardless of size. Would such are a common method for answering advantages, is readily available, and a request be feasible for small stadiums? and directing incoming calls to public

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entities. The Department has become Department prior to filing a lawsuit, and exercise discretion in selecting title II aware that individuals with disabilities that a complainant would satisfy this complaints for resolution by deleting who use TTYs or the requirement if no action was taken by the term ‘‘each’’ as it appears before telecommunications relay services— the Department within sixty days. The ‘‘complaint’’ in § 35.172(a). The primarily those who are deaf or hard of Department has considered the proposed rule at § 35.172(a) would read hearing or who have speech-related comments that it received by a variety that, ‘‘[t]he designated agency shall disabilities—have been unable to use of groups and has decided not to investigate complaints’’ rather than automated telephone trees systems, propose an exhaustion requirement ‘‘investigate each complaint.’’ because they are not compatible with exclusively for prisoners in the The Department also proposes to TTYs or a telecommunications relay regulation. change the language in § 35.171(a)(2)(i) service. Automated attendant systems regarding misdirected complaints to Sections 35.171, 35.172, and 35.190 often disconnect before the individual make it clear that, if an agency receives Streamlining Complaint Investigations using one of these calling methods can a complaint for which it lacks and Designated Agency Authority complete the communication. jurisdiction either under section 504 or In addition, the Department proposes The Department is proposing as a designated agency under the ADA, a new § 35.161(c) that would require modifications to its current procedures the agency may refer the complaint to that individuals using with respect to the investigation of the appropriate agency. The current telecommunications relay services or complaints alleging discrimination on language requires the agency to refer the TTYs be able to connect to and use the basis of disability by public entities complaint to the Department, which, in effectively any automated attendant under title II of the ADA. Specifically, turn, refers the complaint. The proposed system used by a public entity. The the Department is proposing several revisions to § 35.171 make it clear that Department declined to address this amendments to its enforcement an agency can refer a misdirected issue in the 1991 regulation because it procedures in order to streamline both complaint either directly to the believed that it was more appropriate its internal procedures for investigating appropriate agency or to the for the Federal Communications complaints and its procedures with Department. This amendment is Commission (FCC) to address this in its regard to the other designated agencies intended to protect against the rulemaking under title IV, 56 FR 35694, with enforcement responsibilities under unnecessary backlogging of complaints 35712 (July 26, 1991). Because the FCC title II. These proposals will reduce the and to prevent undue delay in an has since raised this concern with the administrative burdens associated with agency taking action on a complaint. Department and requested that the implementing the statute and ensure The Department is also proposing to Department address it, it is now that the Department retains the make clear that the same procedures appropriate to raise this issue in the title flexibility to allocate its limited that apply to complaint investigations III regulation. enforcement resources effectively and also apply to compliance reviews that The Department has proposed productively. are not initiated by receipt of a § 35.161(c), which requires that a public Subtitle A of title II of the ADA complaint, but rather are based on other entity must respond to telephone calls defines the remedies, procedures, and information indicating that from a telecommunications relay service rights provided for qualified individuals discrimination exists in a service, established under title IV of the with disabilities who are discriminated program, or activity covered by this Americans with Disabilities Act in the against on the basis of disability in the part. This provision is consistent with same manner that it responds to other services, programs, or activities of state the Department’s procedures for telephone calls. The Department and local governments. 42 U.S.C. enforcing title III of the ADA as well as proposes adding this provision to 12131–12134. Subpart F of the current title VII of the Civil Rights Act of 1964, address a series of complaints from regulation establishes administrative as amended, 42 U.S.C. 2000e et seq., those who use TTYs or the procedures for the enforcement of title and section 504. Section 203 of the ADA telecommunications relay systems that II of the ADA. Subpart G identifies eight provides that those same rights, many public entities refuse to accept ‘‘designated agencies,’’ including the remedies, and procedures shall apply to those calls. Department, that have responsibility for title II of the ADA, 42 U.S.C. 12133. The investigating complaints under title II. Department’s proposed rule renames Section 35.170 Complaints—Prison The Department’s current title II § 35.172(a), ‘‘Investigations and Litigation Reform Act regulation is based on the enforcement Compliance Reviews,’’ and provides in In the ANPRM, the Department procedures established in regulations new paragraph (b) that ‘‘[t]he designated proposed addressing the effect of the implementing section 504. Thus, the agency may conduct compliance Prison Litigation Reform Act (PLRA) on Department’s current regulation reviews of public entities based on complaints by prisoners alleging provides that the designated agency information indicating a possible failure unlawful discrimination on the basis of ‘‘shall investigate each complete to comply with the nondiscrimination disability under title II of the ADA. The complaint’’ alleging a violation of title II requirements of this part.’’ PLRA provides, in relevant part, that and shall ‘‘attempt informal resolution’’ Finally, the Department is proposing ‘‘[n]o action shall be brought with of such complaint. 28 CFR 35.172(a). to streamline the requirements for respect to prison conditions under In the years since the current letters of findings. Section 35.172 of the section 1983 of this title, or any other regulation went into effect, the Department’s current regulation requires federal law, by a prisoner confined in Department has received many more designated agencies to investigate all any jail, prison, or other correctional complaints alleging violations of title II complete complaints for which they are facility until such administrative than its resources permit it to resolve. responsible as determined under remedies as are available are The Department has reviewed each § 35.171. Specifically, a designated exhausted.’’ 42 U.S.C. 1997e(a). As a complaint that it has received and agency must issue a letter of findings at result of this language, the Department directed its resources to resolving the the conclusion of the investigation if the proposed requiring those prisoners most critical matters. The Department complaint was not resolved informally alleging title II violations to file an proposes to clarify in its revised and attempt to negotiate a voluntary administrative complaint with the regulation that designated agencies may compliance agreement if a violation was

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found. The Department’s proposal will by the Department as a proposed rule on as a component of this rulemaking. The clarify that letters of finding are only June 20, 1994, at 59 FR 31808. To the Department’s ANPRM, NPRM, and the required when a violation is found. The extent that those proposals were RIA include all of the elements of the discussion of letters of finding is moved incorporated in the 2004 ADAAG, they IRFA required by the Regulatory to a new paragraph (c) in the proposed will all be included in the Department’s Flexibility Act (RFA). See 5 U.S.C. 601 rule, and provides the same language as proposed standards. et seq., as amended by SBREFA, 5 U.S.C. 603(b)(1)–(5), 603(c). in the current regulation with the Regulatory Process Matters exception that the phrase ‘‘and a Section 603(b) lists specific violation is found’’ is added following This NPRM has been reviewed by the requirements for an IRFA regulatory the phrase ‘‘if resolution is not Office of Management and Budget analysis. The Department has addressed achieved.’’ (OMB) under Executive Order 12866, 58 these IRFA issues throughout the Subpart G of the existing regulation FR 51735 (Sept. 30, 1993). The ANPRM, NPRM, and the RIA. In deals with the various agency Department has evaluated its existing summary, the Department has satisfied designations that the Department regulations for title II and title III section its IRFA obligations under section proposed in promulgating the regulation by section, and many of the proposals 603(b) by providing the following: for title II of the ADA. Current § 35.190 in its NPRMs for both titles reflect its 1. Description of the reasons that lays out all of the agency designations. efforts to mitigate any negative effects action by the agency is being Paragraphs 35.190(c) and (d), on small entities. The Department has considered. See, e.g., ‘‘The Roles of the respectively, leave to the discretion of also prepared its initial regulatory Access Board and the Department of the Attorney General decisions where impact analysis (RIA), as directed by Justice,’’ ‘‘The Revised Guidelines,’’ and delegations are not specifically assigned Executive Order 12866 (amended ‘‘The Advance Notice of Proposed or where there are apparent conflicts of without substantial change by E.O. Rulemaking’’ sections of the titles II and jurisdiction. The Department’s proposed 13258, 67 FR 9385 (Feb. 26, 2002), and III NPRMs; Section 2.1, ‘‘Access Board rule would add a new § 35.190(e) in E.O. 13422, 72 FR 2763 (Jan. 18, 2007)), Regulatory Assessment’’ of the Initial order to deal with the situation in which and OMB Circular A–4. Regulatory Impact Analysis; see also a complainant has sought the assistance The Department’s initial regulatory Department of Justice ADA Advanced of the Department of Justice. The impact analysis measures the Notice of Proposed Rulemaking, 69 FR proposed rule at § 35.190(e) provides incremental benefits and costs of the 58768, 58768–70 (Sept. 30, 2004) that when the Department receives a proposed standards relative to the (outlining the regulatory history and complaint alleging a violation of title II benefits and costs of the 1991 rationale underlying DOJ’s proposal to that is directed to the Attorney General Standards. The assessment has revise its regulations implementing that may fall within the jurisdiction of estimated the benefits and costs of all titles II and III of the ADA); 2. Succinct statement of the objectives a designated agency or another federal new and revised requirements as they of, and legal basis for, the proposed agency that has jurisdiction under would apply to newly constructed rule. See, e.g., titles II and III NPRM section 504, the Department may facilities, altered facilities, and facilities sections entitled, ‘‘Summary,’’ exercise its discretion to retain the that are removing barriers to access. A summary of the regulatory ‘‘Overview,’’ ‘‘Purpose,’’ ‘‘The ADA and complaint for investigation under this assessment, including the Department’s Department of Justice Regulations,’’ part. The Department would, of course, responses to public comments ‘‘The Roles of the Access Board and the consult with the designated agency addressing its proposed methodology Department of Justice,’’ ‘‘Background regarding its intention to review when and approach, is attached as Appendix (SBREFA, Regulatory Flexibility Act, it plans to retain the complaint. In B to this NPRM. The complete, formal and Executive Order) Reviews,’’ and appropriate circumstances, the report of the initial regulatory impact ‘‘Regulatory Impact Analysis’’; App. B: Department and the designated agency analysis is available online for public Regulatory Assessment sections may conduct a joint investigation. review on the Department’s ADA Home entitled, ‘‘Background,’’ ‘‘Regulatory Finally, the Department also proposes to Page (http://www.ada.gov) and at Alternatives,’’ ‘‘Regulatory Proposals amend § 35.171(a)(2)(ii) to be consistent http://www.regulations.gov. The report with Cost Implications,’’ and with the changes in the proposed rule is the work product of the Department’s ‘‘Measurement of Incremental Benefits’’; at § 35.190(e). contractor, HDR/HLB Decision see also 69 FR at 58768–70, 58778–79 Additional Information Economics, Inc. The Department has (outlining the goals and statutory adopted the results of this analysis as its directives for the regulations Withdrawal of Outstanding NPRMs assessment of the benefits and costs that implementing titles II and III of the With the publication of this NPRM, the proposed standards will confer on ADA); the Department is withdrawing three society. The Department invites the 3. Description of, and, where feasible, outstanding NPRMs: The joint NPRM of public to read the full report and to an estimate of the number of small the Department and the Access Board submit electronic comments at http:// entities to which the proposed rule will dealing with children’s facilities, www.regulations.gov. apply. See Section 6, ‘‘Small Business published on July 22, 1996, at 61 FR Impact Analysis’’ and App. 5, ‘‘Small 37964; the Department’s proposal to Regulatory Flexibility Act Business Data of the RIA’’ (available for extend the time period for providing This NPRM has also been reviewed by review at http://www.ada.gov); see also curb ramps at existing pedestrian the Small Business Administration’s App. B: Regulatory Assessment sections walkways, published on November 27, Office of Advocacy pursuant to entitled, ‘‘Regulatory Alternatives,’’ 1995, at 60 FR 58462; and the Executive Order 13272, 67 FR 53461 ‘‘Regulatory Proposals with Cost Department’s proposal to adopt the (Aug. 13, 2002). Because the proposed Implications,’’ and ‘‘Measurement of Access Board’s accessibility guidelines rule, if adopted, may have a significant Incremental Benefits’’ (estimating the and specifications for state and local economic impact on a substantial number of small entities the Department government facilities, published as an number of small entities, the believes may be impacted by the interim final rule by the Access Board Department has conducted an Initial proposed rules and calculating the on June 20, 1994, at 59 FR 31676, and Regulatory Flexibility Analysis (IRFA) likely incremental economic impact of

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these rules on small facilities/entities into account the resources available to • Adopt a regulatory alternative for versus ‘‘typical’’ (i.e., average-sized) small entities; (2) use of performance barrier removal that, for the first time, facilities/entities); rather than design standards; and (3) provides a specific annual monetary 4. Description of the projected any exemption from coverage of the ‘‘cost cap’’ for barrier removal reporting, record-keeping, and other rule, or any part thereof, for such small obligations for qualified small compliance requirements of the entities. businesses (see title III NPRM sections proposed rule, including an estimate of The Department’s rulemaking efforts entitled, ‘‘Safe Harbor and Other the classes of small entities that will be satisfy the IRFA requirement for Proposed Limitations on Barrier subject to the requirement and the type consideration of significant regulatory Removal’’ and ‘‘Safe Harbor for of professional skills necessary for alternatives. In September 2004, the Qualified Small Businesses Regarding preparation of the report or record. See Department issued an ANPRM to What Is Readily Achievable’’); titles II and III NPRM sections entitled, commence the process of revising its • Exempt certain existing small ‘‘Paperwork Reduction Act’’ (providing regulations implementing titles II and III recreational facilities (i.e., play areas, that no new record-keeping or reporting of the ADA. See 69 FR 58768 (Sept. 30, swimming pools, saunas, and steam requirements will be imposed by the 2004). Among other things, the ANPRM rooms) which, in turn, are often owned NPRMs). The Department acknowledges sought public comment on 54 specific or operated by small entities, from that there are other compliance questions. Prominent among these barrier removal obligations in order to requirements in the NPRMs that may questions was the issue of whether (and comply with the standards in the impose costs on small entities. These how) to craft a ‘‘safe harbor’’ provision proposed regulations (see title II NPRM costs are presented in the Department’s for existing title III-covered facilities/ at § 35.150(b)(4) and (5); title III NPRM Initial Regulatory Impact Analysis, entities that would reduce the financial section entitled, ‘‘Reduced Scoping for Chapter 6, ‘‘Small Business Impact burden of complying with the 2004 Public Accommodations, Small Analysis’’ and accompanying App. 5, ADAAG. See id. at 58771–72. The Facilities, and Qualified Small ‘‘Small Business Data’’ (available for ANPRM also specifically invited Businesses’’); and review at http://www.ada.gov); comment from small entities concerning • Reduce scoping for certain other 5. Identification, to the extent the proposed rules’ potential economic existing recreational facilities (i.e., play practicable, of all relevant federal rules impact and suggested regulatory areas over 1,000 square feet and that may duplicate, overlap, or conflict alternatives to ameliorate such impact. swimming pools with over 300 linear with the proposed rule. See, e.g., title II Id. at 58779 (Question 10). By the end feet of pool wall) operated by either title NPRM sections entitled, ‘‘Analysis of of the comment period, the Department II or title III entities (see title II NPRM Impact on Small Entities’’ (generally had received over 900 comments, at § 35.150(b)(4) and (5); title III NPRM describing DOJ efforts to eliminate including comments from SBA’s Office section entitled, ‘‘Reduced Scoping for duplication or overlap in federal of Advocacy and small entities. See, Public Accommodations, Small accessibility guidelines), ‘‘The ADA and e.g., title II NPRM Preamble and title III Facilities, and Qualified Small Department of Justice Regulations,’’ NPRM Preamble sections entitled, ‘‘The Businesses’’). ‘‘Social Service Establishments’’ Advance Notice of Proposed Taken together, the foregoing (§ 35.151(e)), ‘‘Streamlining Complaint Rulemaking’’ (summarizing public regulatory proposals amply demonstrate Investigations and Designated Agency response to the ANPRM). Many small that the Department was sensitive to the Authority’’ (§§ 35.171, 35.172, and business advocates expressed concern potential economic impact of the 35.190), ‘‘Executive Order 13132: regarding the cost of making older revised regulations on small businesses Federalism’’ (discussing interplay of existing title III-covered buildings and attempted to mitigate this impact section 504 and ADA Standards), compliant with new regulations (since with a variety of provisions that, to the ‘‘Alterations’’ (§ 35.151(b)) (discussing many small businesses operate in such extent consistent with the ADA, impose interplay of UFAS and ADA Standards); facilities) and urged DOJ to issue clearer reduced compliance standards on small title III NPRM sections entitled, guidance on barrier removal. See title III entities. ‘‘Analysis of Impact on Small Entities’’ NPRM Preamble discussion of ‘‘Safe Section 610 Review. The Department (generally describing DOJ’s harbor and other proposed limitations is also required to conduct a periodic harmonization efforts with other federal on barrier removal.’’ regulatory review pursuant to section accessibility guidelines), ‘‘Social Service In drafting the NPRMs for titles II and 610 of the RFA, 5 U.S.C. 601 et seq., as Establishments’’ (§ 36.406(d)), III, the Department expressly addressed amended by the SBREFA, 5 U.S.C. 610 ‘‘Definitions of Residential Facilities small businesses’ collective ANPRM et seq. and Transient Lodging,’’ ‘‘Housing at a comments and proposed regulatory The review requires agencies to Place of Education’’ (§ 36.406(e)) alternatives to help mitigate the consider five factors: (1) The continued (discussing section 504), ‘‘Change economic impact of the proposed need for the rule; (2) the nature of ‘Service Animal’ to ‘Assistance regulations on small entities. For complaints or comments received Animal,’’’ ‘‘Scope of Coverage’’ example, the Department’s regulatory concerning the rule from the public; (3) (discussing Fair Housing Act), proposals: the complexity of the rule; (4) the extent ‘‘Effective Date: Time Period,’’ and • Provide a ‘‘safe harbor’’ provision to which the rule overlaps, duplicates, ‘‘Social Service Establishments’’ whereby elements in existing title II- or or conflicts with other federal rules and, (discussing UFAS); and title III-covered buildings or facilities to the extent feasible, with state and 6. Description of any significant that are compliant with the current 1991 local governmental rules; and (5) the alternatives to the proposed rule that Standards or UFAS need not be length of time since the rule has been accomplish the stated objectives of modified to comply with the standards evaluated or the degree to which applicable statutes and minimize any in the proposed regulations (see ‘‘Safe technology, economic conditions, or significant impact of the proposed rule Harbor’’ and § 35.150(b)(2) of the title II other factors have changed in the area on small entities, including alternatives NPRM; ‘‘Safe Harbor and Other affected by the rule. See 5 U.S.C. 610(b). considered, such as: (1) Establishment Proposed Limitations on Barrier Based on these factors, the agency is of differing compliance or reporting Removal’’ and § 36.304 of the title III required to determine whether to requirements or timetables that take NPRM); continue the rule without change or to

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amend or rescind the rule, to minimize and activities, and, therefore, clearly has direct effects on state and local any significant economic impact of the some federalism implications. State and governments, the relationship between rule on a substantial number of small local governments have been subject to the Federal Government and the States, entities. See id. at 610 (a). the ADA since 1991, and the majority or the distribution of power and In developing these proposed rules, have also been required to comply with responsibilities among the various the Department has gone through its the requirements of section 504. Hence, levels of government. regulations section by section, and, as a the ADA and the title II regulations are National Technology Transfer and result, proposes several clarifications not novel for state and local Advancement Act of 1995 and amendments in both the title II and governments. This proposed rule will title III implementing regulations. The preempt state laws affecting entities The National Technology Transfer proposals reflect the Department’s subject to the ADA only to the extent and Advancement Act of 1995 (NTTAA) analysis and review of complaints or that those laws directly conflict with the directs that all federal agencies and comments from the public as well as statutory requirements of the ADA. But departments use technical standards changes in technology. Many of the the Department believes it is prudent to that are developed or adopted by proposals aim to clarify and simplify the consult with public entities about the voluntary consensus standards bodies, obligations of covered entities. As potential federalism implications of the which are private, generally non-profit discussed in greater detail above, one proposed title II regulations. organizations that develop technical significant goal of the development of In addition, the interaction of title II standards or specifications using well- the 2004 ADAAG was to eliminate and title III has potentially significant defined procedures that require duplication or overlap in federal federalism implications. Title III of the openness, balanced participation among accessibility guidelines as well as to ADA covers public accommodations affected interests and groups, fairness harmonize the federal guidelines with and commercial facilities. These and due process, and an opportunity for model codes. The Department has also facilities are generally subject to appeal, as a means to carry out policy worked to create harmony where regulation by different levels of objectives or activities. Public Law 104– appropriate between the requirements of government, including federal, state, 113 (15 U.S.C. 272(b)). In addition, the titles II and III. Finally, while the and local governments. The ADA and statute directs agencies to consult with regulation is required by statute and the Department’s implementing voluntary, private sector, consensus there is a continued need for it as a regulation set minimum civil rights standards bodies and requires that whole, the Department proposes several protections for individuals with agencies participate with such bodies in modifications that are intended to disabilities that in turn may affect the the development of technical standards reduce its effects on small entities. implementation of state and local laws, when such participation is in the public The Department has consulted with particularly building codes. For these interest and is compatible with agency the Small Business Administration’s reasons, the Department has determined and departmental missions, authorities, Office of Advocacy about this process. that this NPRM may have federalism priorities, and budget resources. The Office of Advocacy has advised that implications and requires The Department, as a member of the although the process followed by the intergovernmental consultation in Access Board, was an active participant Department was ancillary to the compliance with Executive Order in the lengthy process of developing the proposed adoption of revised ADA 13132. 2004 ADAAG, on which the proposed Standards, the steps taken to solicit The Department intends to amend the standards are based. As part of this public input and to respond to public regulation in a manner that meets the update, the Board has made its concerns is functionally equivalent to objectives of the ADA while also guidelines more consistent with model the process required to complete a minimizing conflicts between state law building codes, such as the International section 610 review. Therefore, this and federal interests. To that end, as a Building Code (IBC), and industry rulemaking fulfills the Department’s member of the Access Board, the standards. It coordinated extensively obligations under the RFA. Department has been privy to with model code groups and standard- substantial feedback from state and local setting bodies throughout the process so Executive Order 13132: Federalism governments through the development that differences could be reconciled. As Executive Order 13132, ‘‘Federalism,’’ of the 2004 ADAAG. In addition, the a result, an historic level of 64 FR 43255 (Aug. 4, 1999), requires Department solicited and received input harmonization has been achieved, executive branch agencies to consider from public entities in the September which has brought about improvements whether a proposed rule will have 2004 ANPRM. Some elements of the to the guidelines, as well as to federalism implications. That is, the proposed rule reflect the Department’s counterpart provisions in the IBC and rulemaking agency must determine work to mitigate federalism key industry standards, including those whether the rule is likely to have implications, particularly the provisions for accessible facilities issued through substantial direct effects on state and that streamline the administrative the American National Standards local governments; a substantial direct process for state and local governments Institute. effect on the relationship between the seeking ADA code certification under federal government and the states and title III. Plain Language Instructions localities; or a substantial direct effect The Department is now soliciting The Department makes every effort to on the distribution of power and comments from elected state and local promote clarity and transparency in its responsibilities among the different officials and their representative rulemaking. In any regulation, there is a levels of government. If an agency national organizations through this tension between drafting language that believes that a proposed rule is likely to NPRM. The Department seeks comment is simple and straightforward that also have federalism implications, it must from all interested parties, but gives full effect to issues of legal consult with state and local elected especially state and local elected interpretation. The Department operates officials about how to minimize or officials, about the potential federalism a toll-free ADA Information Line (800– eliminate the effects. implications of the proposed rule. The 514–0301 (voice); 800–514–0383 (TTY)) Title II of the ADA covers state and Department will welcome comments on that the public is welcome to call during local government programs, services, whether the proposed rule may have normal business hours to obtain

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assistance in understanding anything in wheelchair in alphabetical order and Proposed standards means the this rule. If any commenter has revising the definitions of auxiliary aids requirements set forth in appendices B suggestions for how the regulation could and services and qualified interpreter to and D to 36 CFR part 1191 as adopted be written more clearly, please contact read as follows: by the Department of Justice. Janet L. Blizard, Deputy Chief, Disability § 35.104 Definitions. * * * * * Rights Section, whose contact Qualified interpreter means an information is provided in the 1991 Standards means the ADA interpreter who is able to interpret introductory section of this rule, Standards for Accessible Design, effectively, accurately, and impartially entitled, FOR FURTHER INFORMATION codified at 28 CFR part 36, Appendix A. using any necessary specialized CONTACT. 2004 ADAAG means the requirements vocabulary. Qualified interpreters Paperwork Reduction Act set forth in appendices B and D to 36 include, for example, sign language CFR part 1191. interpreters, oral interpreters, and cued The Paperwork Reduction Act of 1980 * * * * * speech interpreters. Oral interpreter (PRA), 44 U.S.C. 3501 et seq., requires Auxiliary aids and services means an interpreter who has special agencies to clear forms and record skill and training to mouth a speaker’s keeping requirements with OMB before includes— (1) Qualified interpreters, notetakers, words silently for individuals who are they can be introduced. This rule does deaf or hard of hearing. Cued speech not contain any paperwork or record computer-aided transcription services, written materials, exchange of written interpreter means an interpreter who keeping requirements, and does not functions in the same manner as an oral require clearance under the PRA. notes, telephone handset amplifiers, assistive listening devices, assistive interpreter except that he or she also Unfunded Mandates Reform Act listening systems, telephones uses a hand code, or cue, to represent each speech sound. Section 4(2) of the Unfunded compatible with hearing aids, closed Mandates Reform Act of 1995, 2 U.S.C. caption decoders, open and closed * * * * * 1503(2), excludes from coverage under captioning, text telephones (TTYs), Qualified reader means a person who that Act any proposed or final federal videotext displays, video interpreting is able to read effectively, accurately, regulation that ‘‘establishes or enforces services (VIS), accessible electronic and and impartially using any necessary any statutory rights that prohibit information technology, or other vocabulary. discrimination on the basis of race, effective methods of making orally * * * * * color, religion, sex, national origin, age, delivered information available to Service animal means any dog or handicap, or disability.’’ Accordingly, individuals who are deaf or hard of other common domestic animal this rulemaking is not subject to the hearing; individually trained to do work or provisions of the Unfunded Mandates (2) Qualified readers, taped texts, perform tasks for the benefit of a Reform Act. audio recordings, brailled materials and qualified individual with a disability, including, but not limited to, guiding List of Subjects in 28 CFR Part 35 displays, screen reader software, magnification software, optical readers, individuals who are blind or have low Administrative practice and secondary auditory programs (SAP), vision, alerting individuals who are deaf procedure, Buildings and facilities, Civil large print materials, accessible or hard of hearing to the presence of rights, Communications, Individuals electronic and information technology, people or sounds, providing minimal with disabilities, Reporting and or other effective methods of making protection or rescue work, pulling a recordkeeping requirements, State and visually delivered materials available to wheelchair, fetching items, assisting an local governments. individuals who are blind or have low individual during a seizure, retrieving By the authority vested in me as vision; medicine or the telephone, providing physical support and assistance with Attorney General by law, including 28 * * * * * U.S.C. 509 and 510, 5 U.S.C. 301, and balance and stability to individuals with Direct threat means a significant risk mobility disabilities, and assisting section 204 of the Americans with to the health or safety of others that Disabilities Act, Public Law 101–336, 42 individuals, including those with cannot be eliminated by a modification cognitive disabilities, with navigation. U.S.C. 12134, and for the reasons set of policies, practices, or procedures, or forth in the preamble, chapter I of Title The term service animal includes by the provision of auxiliary aids or individually trained animals that do 28 of the Code of Federal Regulations is services. proposed to be amended as follows: work or perform tasks for the benefit of * * * * * individuals with disabilities, including PART 35—NONDISCRIMINATION ON Existing facility means a facility that psychiatric, cognitive, and mental THE BASIS OF DISABILITY IN STATE has been constructed and remains in disabilities. The term service animal AND LOCAL GOVERNMENT SERVICES existence on any given date. does not include wild animals * * * * * (including nonhuman primates born in 1. The authority citation for 28 CFR Other power-driven mobility device captivity), reptiles, rabbits, farm animals part 35 continues to read as follows: means any of a large range of devices (including any breed of horse, miniature Authority: 5 U.S.C. 301; 28 U.S.C. 509, powered by batteries, fuel, or other horse, pony, pig, or goat), ferrets, 510; 42 U.S.C. 12134. engines—whether or not designed solely amphibians, and rodents. Animals whose sole function is to provide Subpart A—General for use by individuals with mobility impairments—that are used by emotional support, comfort, therapy, 2–3. Amend § 35.104 by adding the individuals with mobility impairments companionship, therapeutic benefits, or following definitions of 1991 Standards, for the purpose of locomotion, including to promote emotional well-being are not 2004 ADAAG, direct threat, existing golf cars, bicycles, electronic personal service animals. facility, other power-driven mobility assistance mobility devices (EPAMDs), * * * * * device, proposed standards, service or any mobility aid designed to operate Video interpreting services (VIS) animal, qualified reader, video in areas without defined pedestrian means an interpreting service that uses interpreting services (VIS), and routes. video conference technology over high

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speed Internet lines. VIS generally work or perform a task, housebroken, a fundamental alteration of the public consists of a videophone, monitors, and under the control of its handler. A entity’s service, program, or activity. cameras, a high speed Internet service animal shall have a harness, (c) Development of policies permitting connection, and an interpreter. leash, or other tether. the use of other power-driven mobility Wheelchair means a device designed (e) Care or supervision of service devices. A public entity shall establish solely for use by an individual with a animals. A public entity is not policies to permit the use of other mobility impairment for the primary responsible for caring for or supervising power-driven mobility devices by purpose of locomotion in typical indoor a service animal. individuals with disabilities when it is and outdoor pedestrian areas. A (f) Inquiries. A public entity shall not reasonable to allow an individual with wheelchair may be manually operated ask about the nature or extent of a a disability to participate in a service, or power-driven. person’s disability, but can determine program, or activity. Whether a whether an animal qualifies as a service modification is reasonable to allow the Subpart B—General Requirements animal. For example, a public entity use of a class of power-driven mobility 4. Amend § 35.133 by adding may ask: If the animal is required device by an individual with a disability paragraph (c) to read as follows: because of a disability; and what work in specific venues (e.g., parks, or task the animal has been trained to courthouses, office buildings, etc.) shall § 35.133 Maintenance of accessible perform. A public entity shall not be determined based on: features. require documentation, such as proof (1) The dimensions, weight, and * * * * * that the animal has been certified or operating speed of the mobility device (c) If the proposed standards reduce licensed as a service animal. in relation to a wheelchair; the number of required accessible (g) Access to areas open to the public, (2) The risk of potential harm to elements below the number required by program participants, and invitees. others by the operation of the mobility the 1991 Standards, the number of Individuals with disabilities who are device; accessible elements in a facility subject accompanied by service animals may (3) The risk of harm to the to this part may be reduced in access all areas of a public entity’s environment or natural or cultural accordance with the requirements of the facility where members of the public, resources or conflict with Federal land proposed standards. program participants and invitees are management laws and regulations; and 5. Amend 28 CFR part 35 by adding allowed to go, unless the public entity (4) The ability of the public entity to § 35.136 to read as follows: can demonstrate that individuals stow the mobility device when not in accompanied by service animals would use, if requested by the user. § 35.136 Service animals. fundamentally alter the public entity’s (d) Inquiry into use of power-driven (a) General. Generally, a public entity service, program, or activity. mobility device. A public entity may ask shall modify its policies, practices, or (h) Fees or surcharges. A public entity a person using a power-driven mobility procedures to permit the use of a service shall not ask or require an individual device if the mobility device is needed animal by an individual with a with a disability to post a deposit, pay due to the person’s disability. A public disability, unless the public entity can a fee or surcharge, or comply with other entity shall not ask a person using a demonstrate that the use of a service requirements not generally applicable to mobility device questions about the animal would fundamentally alter the other citizens as a condition of nature and extent of the person’s public entity’s service, program, or permitting a service animal to disability. activity. accompany its handler in a public 7. Amend 28 CFR part 35 by adding (b) Exceptions. A public entity may entity’s facility, even if people § 35.138 to read as follows: ask an individual with a disability to accompanied by pets are required to do § 35.138 Ticketing. remove a service animal from the so. If a public entity normally charges premises if: its citizens for damage that they cause, (a) General. A public entity that sells (1) The animal is out of control and a citizen with a disability may be tickets on a preassigned basis shall the animal’s handler does not take charged for damage caused by his or her modify its policies, practices, or effective action to control it; service animal. procedures to ensure that individuals (2) The animal is not housebroken or 6. Amend 28 CFR part 35 by adding with disabilities can purchase tickets for the animal’s presence or behavior § 35.137 to read as follows: accessible seating during the same fundamentally alters the nature of the hours, through the same methods of service the public entity provides; or § 35.137 Mobility devices. distribution, and in the same types and (3) The animal poses a direct threat to (a) Use of wheelchairs, scooters, and numbers of ticketing sales outlets as the health or safety of others that cannot manually powered mobility aids. A other patrons, unless the modification be eliminated by reasonable public entity shall permit individuals would fundamentally alter the nature of modifications. with mobility impairments to use the ticketing service, program, or (c) If an animal is properly excluded. wheelchairs, scooters, walkers, crutches, activity. If a public entity properly excludes a canes, braces, or other similar devices (b) Availability. Tickets for accessible service animal, it shall give the designed for use by individuals with seating shall be made available during individual with a disability the mobility impairments in any areas open all stages of ticket sales, including, but opportunity to participate in the service, to pedestrian use. not limited to, presales, promotions, program, or activity without having the (b) Other power-driven mobility lotteries, wait-lists, and general sales. service animal on the premises. devices. A public entity shall make (c) Identification of accessible seating. (d) General requirements. The work or reasonable modifications in its policies, If seating maps, plans, brochures, or tasks performed by a service animal practices, and procedures to permit the other information is provided to the shall be directly related to the handler’s use of other power-driven mobility general public, wheelchair seating and disability. A service animal that devices by individuals with disabilities, companion seats shall be identified. accompanies an individual with a unless the public entity can demonstrate (d) Notification of accessible seating disability into a facility of a public that the use of the device is not locations. A public entity that sells or entity shall be individually trained to do reasonable or that its use will result in distributes tickets for seating at

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assembly areas shall, upon inquiry, individual who utilizes a wheelchair. A (i) In addition to the provisions of inform spectators with disabilities and public entity may investigate the section 240.2.1 of the proposed their companions of the locations of all potential misuse of accessible seating standards, where an existing play area unsold or otherwise available accessible where there is good cause to believe that provides elevated play components, an seating for any ticketed event at the such seating has been purchased additional number of ground level play facility. fraudulently. components may be substituted for the (e) Sale of season tickets or other (i) Purchasing multiple tickets. (1) number of elevated play components tickets for multiple events. Season Individuals with disabilities and their that would have been required to tickets or other tickets sold on a multi- companions shall be permitted to comply with the provisions of section event basis to individuals with purchase the same maximum number of 240.2.2 of the proposed standards; and disabilities and their companions shall tickets for an event per sales transaction (ii) Where an existing swimming pool be sold under the same terms and as other spectators seeking to purchase has at least 300 linear feet of swimming conditions as other tickets sold for the seats for the same event. If there is an pool wall, it shall comply with the same series of events. Spectators insufficient number of seats for all applicable requirements for swimming purchasing tickets for accessible seating members of a party to sit together, seats pools, except that it shall provide at on a multi-event basis shall also be shall be provided that are as close as least one accessible means of entry that permitted to transfer tickets for single- possible to the wheelchair spaces. For complies with section 1009.2 or section event use by friends or associates in the accessible seating in a designated 1009.3 of the proposed standards. same fashion and to the same extent as wheelchair area, a public entity shall (5) Exemption for small facilities. For permitted other spectators holding provide up to three companion seats for measures taken to comply with the tickets for the same type of ticketing each person with a disability who program accessibility requirements of plan. requires a wheelchair space, provided this section, existing facilities shall (f) Hold and release of accessible that at the time of purchase there are comply with the applicable seating. A public entity may release sufficient available wheelchair spaces. requirements for alterations in § 35.151 unsold accessible seating to any person (2) For group sales, if a group includes of this part, except as follows: with or without a disability following one or more individuals who use a (i) Where an existing play area has any of the circumstances described wheelchair, the group shall be placed in less than 1000 square feet, it shall be below: a seating area that includes wheelchair exempt from the provisions of section (1) When all seating (excluding luxury spaces so that, if possible, the group can 240 of the proposed standards; boxes, club boxes, or suites) for an event sit together. If it is necessary to divide (ii) Where an existing swimming pool has been sold; the group, it should be divided so that has less than 300 linear feet of (2) When all seating in a designated the individuals in the group who use swimming pool wall, it shall be exempt area in the facility has been sold and the wheelchairs are not isolated from their from the provisions of section 242.2 of accessible seating being released is in group. the proposed standards; and the same designated area; or (iii) Where an existing sauna or steam (3) When all seating in a designated Subpart D—Program Accessibility room was designed and constructed to price range has been sold and the seat only two people, it shall be exempt accessible seating being sold is within 8. Amend § 35.150 as follows: from the provisions of § 241 of the the same designated price range. a. Redesignate paragraph (b)(2) as proposed standards. paragraph (b)(3); Nothing in this provision requires a * * * * * facility to release wheelchair seats for b. Add the words ‘‘or acquisition’’ 9. Revise § 35.151 to read as follows: general sale. after the word ‘‘redesign’’ in the first (g) Ticket prices. The price of tickets sentence of paragraph (b)(1) and add § 35.151 New construction and alterations. for accessible seating shall not be set paragraphs (b)(2), (b)(4), and (b)(5) to (a) Design and construction. (1) Each higher than for tickets to seating located read as follows: facility or part of a facility constructed by, on behalf of, or for the use of a in the same seating section for the same § 35.150 Existing facilities. event. Accessible seating must be made public entity shall be designed and available at all price levels for an event. * * * * * constructed in such manner that the If an existing facility has barriers to (b) * * * facility or part of the facility is readily accessible seating at a particular price (2) Safe harbor. If a public entity has accessible to and usable by individuals level for an event, then a percentage constructed or altered elements in an with disabilities, if the construction was (determined by the ratio of the total existing facility in accordance with the commenced after January 26, 1992. number of seats at that price level to the specifications in either the 1991 (2) Exception for structural total number of seats in the assembly Standards or the Uniform Federal impracticability. (i) Full compliance area) of the number of accessible seats Accessibility Standard, such public with the requirements of this section is must be provided at that price level in entity is not, solely because of the not required where a public entity can an accessible location. Department’s adoption of the proposed demonstrate that it is structurally (h) Prevention of fraudulent purchase standards, required to retrofit such impracticable to meet the requirements. of accessible seating. A public entity elements to reflect incremental changes Full compliance will be considered may not require proof of disability in the proposed standards. structurally impracticable only in those before selling a wheelchair space. * * * * * rare circumstances when the unique (1) For the sale of single-event tickets, (4) Reduced scoping for existing characteristics of terrain prevent the it is permissible to inquire whether the facilities. For measures taken to comply incorporation of accessibility features. individual purchasing the wheelchair with the program accessibility (ii) If full compliance with this space uses a wheelchair. requirements of this section, existing section would be structurally (2) For season tickets, subscriptions, facilities shall comply with the impracticable, compliance with this or other multi-events, it is permissible applicable requirements for alterations section is required to the extent that it to ask the individual to attest in writing in § 35.151 of this part, except as is not structurally impracticable. In that that the wheelchair space is for an follows: case, any portion of the facility that can

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be made accessible shall be made that affect the usability of or access to shall be made accessible to the extent accessible to the extent that it is not an area containing a primary function. that it can be made accessible without structurally impracticable. (ii) A path of travel includes a incurring disproportionate costs. (b) Alteration. (1) Each facility or part continuous, unobstructed way of (B) In choosing which accessible of a facility altered by, on behalf of, or pedestrian passage by means of which elements to provide, priority should be for the use of a public entity in a the altered area may be approached, given to those elements that will manner that affects or could affect the entered, and exited, and which connects provide the greatest access, in the usability of the facility or part of the the altered area with an exterior following order: facility shall, to the maximum extent approach (including sidewalks, streets, (1) An accessible entrance; feasible, be altered in such manner that and parking areas), an entrance to the (2) An accessible route to the altered the altered portion of the facility is facility, and other parts of the facility. area; readily accessible to and usable by (A) An accessible path of travel may (3) At least one accessible restroom individuals with disabilities, if the consist of walks and sidewalks, curb for each sex or a single unisex restroom; alteration was commenced after January ramps and other interior or exterior (4) Accessible telephones; 26, 1992. pedestrian ramps; clear floor paths (5) Accessible drinking fountains; and (2) The path of travel requirements of through lobbies, corridors, rooms, and (6) When possible, additional § 35.151(b)(4) shall not apply to other improved areas; parking access accessible elements such as parking, measures taken solely to comply with aisles; elevators and lifts; or a storage, and alarms. the program accessibility requirements combination of these elements. (v) Series of smaller alterations. (A) of this section. (B) For the purposes of this section, (3) Alterations to historic properties The obligation to provide an accessible the term path of travel also includes the path of travel may not be evaded by shall comply, to the maximum extent restrooms, telephones, and drinking feasible, with the provisions applicable performing a series of small alterations fountains serving the altered area. to the area served by a single path of to historic properties in the design (C) Safe harbor. If a public entity has travel if those alterations could have standards specified in § 35.151(c). If it is constructed or altered required elements been performed as a single undertaking. not feasible to provide physical access of a path of travel in accordance with (B)(1) If an area containing a primary to an historic property in a manner that the specifications in either the 1991 function has been altered without will not threaten or destroy the historic Standards or the Uniform Federal providing an accessible path of travel to significance of the building or facility, Accessibility Standards, the public that area, and subsequent alterations of alternative methods of access shall be entity is not required to retrofit such that area, or a different area on the same provided pursuant to the requirements elements to reflect incremental changes path of travel, are undertaken within of § 35.150. in the proposed standards solely three years of the original alteration, the (4) Path of travel. An alteration that because of an alteration to a primary total cost of alterations to the primary affects or could affect the usability of or function area served by that path of function areas on that path of travel access to an area of a facility that travel. contains a primary function shall be (iii) Disproportionality. (A) during the preceding three-year period made so as to ensure that, to the Alterations made to provide an shall be considered in determining maximum extent feasible, the path of accessible path of travel to the altered whether the cost of making that path of travel to the altered area and the area will be deemed disproportionate to travel accessible is disproportionate. restrooms, telephones, and drinking the overall alteration when the cost (2) Only alterations undertaken after fountains serving the altered area, are exceeds twenty percent (20%) of the the effective date of this part shall be readily accessible to and usable by cost of the alteration to the primary considered in determining if the cost of individuals with disabilities, including function area. providing an accessible path of travel is individuals who use wheelchairs, (B) Costs that may be counted as disproportionate to the overall cost of unless the cost and scope of such expenditures required to provide an the alterations. alterations is disproportionate to the accessible path of travel may include: (c) Accessibility standards. (1) For cost and scope of the overall alterations. (1) Costs associated with providing an facilities on which construction (i) Primary function. A primary accessible entrance and an accessible commences before [date six months function is a major activity for which route to the altered area, e.g., the cost of after the effective date of the final rule], the facility is intended. Areas that widening doorways or installing ramps; design, construction, or alteration of contain a primary function include, but (2) Costs associated with making facilities in conformance with the are not limited to, the meeting rooms in restrooms accessible, such as installing Uniform Federal Accessibility a conference center, as well as offices grab bars, enlarging toilet stalls, Standards (UFAS) (Appendix A to 41 and other work areas in which the insulating pipes, or installing accessible CFR part 101–19.6) or with the activities of the public entity using the faucet controls; Americans with Disabilities Act facility are carried out. (3) Costs associated with providing Accessibility Guidelines for Buildings (A) Mechanical rooms, boiler rooms, accessible telephones, such as relocating and Facilities (Appendix A to the supply storage rooms, employee lounges a telephone to an accessible height, Department of Justice’s final rule or locker rooms, janitorial closets, installing amplification devices, or implementing title III of the ADA, 56 FR entrances, and corridors are not areas installing a text telephone (TTY); and 35544) shall be deemed to comply with containing a primary function. (4) Costs associated with relocating an the requirements of this section with Restrooms are not areas containing a inaccessible drinking fountain. respect to those facilities, except that primary function unless the provision of (iv) Duty to provide accessible the elevator exemption contained at restrooms is the principal purpose of the features in the event of section 4.1.3(5) and section 4.1.6(1)(j) of area, e.g., in highway rest stops. disproportionality. (A) When the cost of the 1991 Standards shall not apply. (B) For the purposes of this section, alterations necessary to make the path of Departures from particular requirements alterations to windows, hardware, travel to the altered area fully accessible of either standard by the use of other controls, electrical outlets, and signage is disproportionate to the cost of the methods shall be permitted when it is shall not be deemed to be alterations overall alteration, the path of travel clearly evident that equivalent access to

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the facility or part of the facility is (4) Stadium-style movie theaters can demonstrate that it is appropriate to thereby provided. locate wheelchair seating spaces and make an exception for a specific (2) Facilities on which construction companion seating on a riser or cross- individual, a public entity— commences on or after [date six months aisle in the stadium section that satisfies (i) Should not place inmates or after the effective date of the final rule] at least one of the following criteria: detainees with disabilities in shall comply with the proposed (i) It is located within the rear sixty inappropriate security classifications standards. percent (60%) of the seats provided in because no accessible cells or beds are (d) Scope of coverage. The proposed an auditorium; or available; standards apply to fixed or built-in (ii) It is located within the area of an (ii) Should not place inmates or elements of buildings, structures, site auditorium in which the vertical detainees with disabilities in designated improvements, and pedestrian routes or viewing angles (as measured to the top medical areas unless they are actually vehicular ways located on a site. Unless of the screen) are from the 40th to the receiving medical care or treatment; specifically stated otherwise in the text, 100th percentile of vertical viewing (iii) Should not place inmates or advisory notes, appendix notes, and angles for all seats as ranked from the detainees with disabilities in facilities figures contained in the ADA Standards seats in the first row (1st percentile) to that do not offer the same programs as explain or illustrate the requirements of seats in the back row (100th percentile). the facilities where they would the rule, they do not establish (h) Medical care facilities. Medical ordinarily be housed; and enforceable requirements. care facilities subject to the proposed (iv) Should not deprive inmates or (e) Social service establishments. standards shall comply with the detainees with disabilities of visitation Group homes, halfway houses, shelters, provisions applicable to medical care with family members by placing them in or similar social service establishments facilities, including, but not limited to, distant facilities where they would not that provide temporary sleeping sections 223 and 805. In addition, otherwise be housed. (c) Alterations to detention and accommodations or residential dwelling medical care facilities that do not correctional facilities. Alterations to units subject to the proposed standards specialize in the treatment of conditions jails, prisons, and other detention and shall comply with the provisions of the that affect mobility shall disperse the correctional facilities will comply with proposed standards that apply to accessible patient rooms required by the requirements of § 35.151(b). residential facilities, including, but not section 223.2.1 in a manner that enables However, when alterations are made to limited to, the provisions in sections patients with disabilities to have access specific cells, detention and correctional 233 and 809. to appropriate specialty services. facility operators may satisfy their (1) In sleeping rooms covered by this (i) Curb ramps. (1) Newly constructed obligation to provide the required section with more than twenty-five or altered streets, roads, and highways number of cells with mobility features beds, five percent (5%) minimum of the must contain curb ramps at any by providing the required mobility beds shall have clear floor space intersection having curbs or other features in substitute cells (i.e., cells complying with section 806.2.3. barriers to entry from a street level other than those where alterations are (f) Housing at a place of education. pedestrian walkway. originally planned), provided that each Dormitories or residence halls operated (2) Newly constructed or altered street substitute cell— by or on behalf of places of education level pedestrian walkways must contain curb ramps at intersections to streets, (1) Is located within the same facility; that are subject to the proposed (2) Is integrated with other cells to the standards shall comply with the roads, or highways. 10. Amend 28 CFR part 35 by adding maximum extent feasible; and provisions applicable to transient § 35.152 to read as follows: (3) Has, at a minimum, equal physical lodging, including, but not limited to, access as the altered cells to areas used the requirements for transient lodging § 35.152 Detention and correctional by inmates or detainees for visitation, guest rooms in sections 224 and 806. facilities. dining, recreation, educational (g) Assembly areas. Assembly areas (a) General. Public entities that are programs, medical services, work subject to the proposed standards shall responsible for the operation or programs, religious services, and comply with the provisions applicable management of detention and participation in other programs that the to assembly areas, including, but not correctional facilities, either directly or facility offers to inmates or detainees. limited to, sections 221 and 804. In through contracts or other arrangements, addition, assembly areas shall ensure shall comply with this section. Subpart E—Communications that— (b) Discrimination prohibited. (1) 11. Revise § 35.160 to read as follows: (1) Wheelchair and companion Public entities shall ensure that seating locations are dispersed among qualified inmates or detainees with § 35.160 General. all levels of the facility that are served disabilities shall not, because that (a)(1) A public entity shall take by an accessible route; facility is inaccessible to or unusable by appropriate steps to ensure that (2) Wheelchair and companion individuals with disabilities, be communications with applicants, seating locations are not located on (or excluded from participation in, or be participants, members of the public obstructed by) temporary platforms or denied the benefits of the services, with disabilities, and companions other movable structures. When programs, or activities of a public entity, thereof are as effective as wheelchair seating locations are not or be subjected to discrimination by any communications with others. required to accommodate people who public entity unless the public entity (2) For purposes of this section, use wheelchairs, individual, readily can demonstrate that the required companion means a family member, removable seats may be placed in those actions would result in a fundamental friend, or associate of a program spaces; alteration or undue burden. participant who, along with the (3) Facilities that have more than (2) Public entities shall ensure that participant, is an appropriate person 5,000 seats shall provide at least five inmates or detainees with disabilities with whom the public entity should wheelchair locations that are configured are housed in the most integrated setting communicate. to provide at least three companion appropriate to the needs of the (b) A public entity shall furnish seats for each wheelchair space; and individuals. Unless the public entity appropriate auxiliary aids and services

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where necessary to afford individuals Americans with Disabilities Act in the § 35.190 Designated agencies. with disabilities and their companions same manner that it responds to other * * * * * who are individuals with disabilities, an telephone calls. (e) When the Department receives a equal opportunity to participate in, and complaint directed to the Attorney enjoy the benefits of, a service, program, Subpart F—Compliance Procedures General alleging a violation of this part or activity conducted by a public entity. 13. Amend § 35.171 by revising that may fall within the jurisdiction of (c)(1) A public entity shall not require paragraph (a)(2) to read as follows: a designated agency or another Federal an individual with a disability to bring agency that may have jurisdiction under another individual to interpret for him § 35.171 Acceptance of complaints. section 504, the Department may or her. (a) * * * exercise its discretion to retain the (2) A public entity shall not rely on (2)(i) If an agency other than the complaint for investigation under this an individual accompanying an Department of Justice determines that it part. individual with a disability to interpret does not have section 504 jurisdiction Dated: May 30, 2008. or facilitate communication, except in and is not the designated agency, it shall an emergency involving a threat to promptly refer the complaint to either Michael B. Mukasey, public safety or welfare, or unless the the appropriate designated agency or Attorney General. individual with a disability specifically agency that has section 504 jurisdiction [FR Doc. E8–12622 Filed 6–16–08; 8:45 am] requests it, the accompanying or to the Department of Justice, and so BILLING CODE 4410–13–P individual agrees to provide the notify the complainant. assistance, and reliance on that (ii) When the Department of Justice individual for this assistance is receives a complaint for which it does DEPARTMENT OF JUSTICE appropriate under the circumstances. not have jurisdiction under section 504 28 CFR Part 36 (d) Video interpreting services (VIS). and is not the designated agency, it may exercise jurisdiction pursuant to A public entity that chooses to provide [CRT Docket No. 106; AG Order No. 2968– qualified interpreters via VIS shall § 35.190(e) or refer the complaint to an 2008] ensure that it provides— agency that does have jurisdiction under (1) High quality, clear, real-time, full- section 504 or to the appropriate agency RIN 1190–AA44 motion video and audio over a designated in subpart G of this part or, dedicated high speed Internet in the case of an employment complaint Nondiscrimination on the Basis of connection; that is also subject to title I of the Act, Disability by Public Accommodations (2) A clear, sufficiently large, and to the Equal Employment Opportunity and in Commercial Facilities sharply delineated picture of the Commission. AGENCY: Department of Justice, Civil interpreter’s head and the participating * * * * * Rights Division. individual’s head, arms, hands, and 14. Revise § 35.172 to read as follows: fingers, regardless of his body position; ACTION: Notice of proposed rulemaking. (3) Clear transmission of voices; and § 35.172 Investigations and compliance SUMMARY: (4) Training to nontechnicians so that reviews. The Department of Justice they may quickly and efficiently set up (a) The designated agency shall (Department) is issuing this notice of and operate the VIS. investigate complaints for which it is proposed rulemaking (NPRM) in order (e) Sports stadiums. One year after the responsible under § 35.171. to: Adopt enforceable accessibility effective date of this regulation, sports (b) The designated agency may standards under the Americans with stadiums that have a seating capacity of conduct compliance reviews of public Disabilities Act of 1990 (ADA) that are 25,000 or more shall provide captioning entities based on information indicating ‘‘consistent with the minimum on the scoreboards and video monitors a possible failure to comply with the guidelines and requirements issued by for safety and emergency information. nondiscrimination requirements of this the Architectural and Transportation 12. Revise § 35.161 to read as follows: part. Barriers Compliance Board’’ (Access (c) Where appropriate, the designated Board); and perform periodic reviews of § 35.161 Telecommunications. agency shall attempt informal resolution any rule judged to have a significant (a) Where a public entity of any matter being investigated under economic impact on a substantial communicates by telephone with this section, and, if resolution is not number of small entities, and a applicants and beneficiaries, text achieved and a violation is found, issue regulatory assessment of the costs and telephones (TTYs) or equally effective to the public entity and the benefits of any significant regulatory telecommunications systems shall be complainant, if any, a Letter of Findings action as required by the Regulatory used to communicate with individuals that shall include— Flexibility Act, as amended by the who are deaf or hard of hearing or have (1) Findings of fact and conclusions of Small Business Regulatory Enforcement speech impairments. law; Fairness Act of 1996 (SBREFA). (b) When a public entity uses an (2) A description of a remedy for each In this NPRM, the Department automated attendant system for violation found; and proposes to adopt Parts I and III of the receiving and directing incoming (3) Notice of the rights and procedures Americans With Disabilities Act and telephone calls, that automated available under paragraph (d) of this Architectural Barriers Act Accessibility attendant system must provide effective section and §§ 35.173 and 35.174. Guidelines (2004 ADAAG), which were communication with individuals using (d) At any time, the complainant may published by the Architectural and auxiliary aids and services, including file a private suit pursuant to § 203 of Transportation Barriers and Compliance TTYs or a telecommunications relay the Act, whether or not the designated Board (Access Board) on July 23, 2004. system. agency finds a violation. Prior to its adoption by the Department, (c) A public entity shall respond to Subpart G—Designated Agencies the 2004 ADAAG is effective only as telephone calls from a guidance to the Department; it has no telecommunications relay service 15. Amend § 35.190 by adding legal effect on the public until the established under title IV of the paragraph (e) to read as follows: Department issues a final rule adopting

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the revised ADA Standards (proposed posted online, you must include the review and approval prior to standards). phrase ‘‘PERSONAL IDENTIFYING publication in the Federal Register. It Concurrently with the publication of INFORMATION’’ in the first paragraph has also been reviewed by the Small this NPRM, the Department is of your comment. You must also locate Business Administration’s Office of publishing an NPRM to amend its title all the personal identifying information Advocacy pursuant to Executive Order II regulation, which covers state and you do not want posted online in the 13272, 67 FR 53461 (Aug. 13, 2002). local government entities, in order to first paragraph of your comment and Purpose adopt the 2004 ADAAG as its proposed identify information you want redacted. standards for title II entities, to make If you want to submit confidential On July 26, 1990, President George amendments to the title II regulation for business information as part of your H.W. Bush signed into law the consistency with title III, and to make comment but do not want it posted Americans With Disabilities Act, 42 amendments that reflect the collective online, you must include the phrase U.S.C. 12101 et seq., a comprehensive experience of 16 years of enforcement of ‘‘CONFIDENTIAL BUSINESS civil rights law prohibiting the ADA. INFORMATION’’ in the first paragraph discrimination on the basis of disability. DATES: All comments must be received of your comment. You must also At the beginning of his administration, by August 18, 2008. prominently identify confidential President George W. Bush underscored the nation’s commitment to ensuring the ADDRESSES: Submit electronic business information to be redacted rights of over fifty million individuals comments and other data to http:// within the comment. If a comment has with disabilities nationwide by www.regulations.gov. Address written so much confidential business announcing the New Freedom Initiative comments concerning this NPRM to: information that it cannot be effectively (available at http:// ADA NPRM, P.O. Box 2846, Fairfax, VA redacted, all or part of that comment www.whitehouse.gov/infocus/ 22031–0846. Overnight deliveries may not be posted on http:// www.regulations.gov. newfreedom). The Access Board’s should be sent to the Disability Rights Personal identifying information publication of the 2004 ADAAG is the Section, Civil Rights Division, U.S. identified and located as set forth above culmination of a long-term effort to Department of Justice, located at 1425 will be placed in the agency’s public facilitate ADA compliance and New York Avenue, NW., Suite 4039, docket file, but not posted online. enforcement by eliminating, to the Washington, DC 20005. All comments Confidential business information extent possible, inconsistencies among will be made available for public identified and located as set forth above federal accessibility requirements and viewing online at http:// will not be placed in the public docket between federal accessibility www.regulations.gov. file. If you wish to inspect the agency’s requirements and state and local FOR FURTHER INFORMATION CONTACT: public docket file in person by building codes. In support of this effort, Janet L. Blizard, Deputy Chief, Disability appointment, please see the ‘‘FOR the Department is announcing its Rights Section, Civil Rights Division, FURTHER INFORMATION CONTACT’’ intention to adopt standards consistent U.S. Department of Justice, at (202) 307– paragraph. with Parts I and III of the 2004 ADAAG 0663 (voice or TTY). This is not a toll- as the ADA Standards for Accessible Overview free number. Information may also be Design. To facilitate this process, the obtained from the Department’s toll-free Throughout this NPRM, the current, Department is seeking public comment ADA Information Line at (800) 514– legally enforceable ADA Standards will on the issues discussed in this notice. 0301 (voice) or (800) 514–0383 (TTY). be referred to as the ‘‘1991 Standards,’’ This rule is also available in an 28 CFR part 36, App. A, 56 FR 35544 The ADA and Department of Justice accessible format on the ADA Home (July 26, 1991), modified in part at 59 Regulations Page at http://www.ada.gov. You may FR 2674 (Jan. 18, 1994). The Access The ADA broadly protects the rights obtain copies of this rule in large print Board’s 2004 revised guidelines will be of individuals with disabilities in or on computer disk by calling the ADA referred to as the ‘‘2004 ADAAG,’’ 69 FR employment, access to state and local Information Line listed above. 44084 (July 23, 2004), as amended government services, places of public SUPPLEMENTARY INFORMATION: (editorial changes only) at 70 FR 45283 accommodation, transportation, and (Aug. 5, 2005). The revisions now other important areas of American life Electronic Submission and Posting of proposed in the NPRM, based on the and, in addition, requires newly Public Comments 2004 ADAAG, are referred to in the designed and constructed or altered You may submit electronic comments preamble as the ‘‘proposed standards.’’ state and local government facilities, to http://www.regulations.gov. When In performing the required, periodic public accommodations, and submitting comments electronically, review of its existing regulation, the commercial facilities to be readily you must include CRT Docket No. 106 Department has reviewed the title III accessible to and usable by individuals in the subject box, and you must regulation section by section, and, as a with disabilities. 42 U.S.C. 12101 et seq. include your full name and address. result, proposes several clarifications Under the ADA, the Department is Please note that all comments and amendments in this NPRM. The responsible for issuing regulations to received are considered part of the Department’s initial, formal benefit-cost implement title II and title III of the Act, public record and made available for analysis can be found at Appendix B. except to the extent that transportation public inspection online at http:// See E.O. 12866, 58 FR 51735 (Sept. 30, providers subject to title II or title III are www.regulations.gov. Such information 1993), amended by E.O. 13258, 67 FR regulated by the Department of includes personal identifying 9385 (Feb. 26, 2002), and E.O. 13422, 72 Transportation. Id. at 12134. information (such as your name, FR 2703 (Jan. 18, 2007); 5 U.S.C. 601, The Department also is proposing address, etc.) voluntarily submitted by 603, and 610(a); and OMB Circular A– amendments to its title II regulation, the commenter. 4, http://www.whitehouse.gov/omb/ which prohibits discrimination on the If you want to submit personal circulars/a004/a-4.pdf. The NPRM was basis of disability in state and local identifying information (such as your submitted to the Office of Management government services, concurrently with name, address, etc.) as part of your and Budget (OMB), Office of the publication of this NPRM, in this comment, but do not want it to be Information and Regulatory Affairs, for issue of the Federal Register.

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Title III prohibits discrimination on Act, 49 U.S.C. 41705, and the Fair ADAAG. As a federal member of the the basis of disability in the activities of Housing Act, 42 U.S.C. 3601 et seq. Access Board, the Attorney General’s places of public accommodation Compliance with the Department’s ADA representative voted to approve the (businesses that are generally open to regulations does not necessarily ensure revised guidelines. Although the the public and that fall into one of compliance with other federal statutes. enforceable standards issued by the twelve categories listed in the ADA, Public accommodations that are Department under title II and title III such as restaurants, movie theaters, subject both to the Department’s must be consistent with the minimum schools, day care facilities, recreational regulations and to regulations published guidelines published by the Access facilities, and doctors’ offices) and by other federal agencies must ensure Board, it is the sole responsibility of the requires newly constructed or altered that they comply with the requirements Attorney General to promulgate places of public accommodation—as of both regulations. If there is a direct standards and to interpret and enforce well as commercial facilities (privately conflict between the regulations, the those standards. owned, nonresidential facilities like regulation that provides greater The ADA also requires the factories, warehouses, or office accessibility will prevail. When Department to develop regulations with buildings)—to comply with the ADA different statutes apply to entities that respect to existing facilities subject to Standards. 42 U.S.C. 12181–89. routinely interact, each entity must title II (Subtitle A) and title III. How and On July 26, 1991, the Department follow the regulation that specifically to what extent the Access Board’s issued its final rules implementing title applies to it. For example, a quick guidelines are used with respect to the II and title III, which are codified at 28 service restaurant in an airport is a barrier removal requirement applicable CFR part 35 (title II) and part 36 (title public accommodation subject to title to existing facilities under title III of the III). Appendix A of the title III III. It regularly serves the passengers of ADA and to the provision of program regulation, at 28 CFR part 36, contains air carriers subject to the Air Carrier accessibility under title II of the ADA the 1991 Standards, which were based Access Act (ACAA). The restaurant is are solely within the discretion of the upon the version of ADAAG published subject to the title III requirements, not Department. to the ACAA requirements. Conversely, by the Access Board on the same date. The Revised Guidelines (2004 ADAAG) Under the Department’s regulation the airline is required to comply with implementing title III, places of public the ACAA, not with the ADA. Part I of the 2004 ADAAG provides scoping requirements for facilities accommodation and commercial The Roles of the Access Board and the facilities are currently required to subject to the ADA; scoping is a term Department of Justice used in the 2004 ADAAG to describe comply with the 1991 Standards with The Access Board was established by requirements (set out in Parts I and II) respect to newly constructed or altered section 502 of the Rehabilitation Act of that prescribe what elements and facilities. 1973. 29 U.S.C. 792. The Board consists spaces—and, in some cases, how Relationship to Other Laws of thirteen public members appointed many—must comply with the technical The Department of Justice regulation by the President, of whom the majority specifications. Part II provides scoping implementing title III, 28 CFR 36.103, must be individuals with disabilities, (which is defined in the preamble of provides: and the heads of twelve federal title 2) requirements for facilities subject departments and agencies specified by to the ABA (i.e., facilities designed, (a) Rule of interpretation. Except as statute, including the heads of the built, altered, or leased with federal otherwise provided in this part, this part Department of Justice and the funds). Part III provides uniform shall not be construed to apply a lesser standard than the standards applied under Department of Transportation. technical specifications for facilities title V of the Rehabilitation Act of 1973, 29 Originally, the Access Board was subject to either statute. This revised U.S.C. 791 et seq., or the regulations issued established to develop and maintain format is designed to eliminate by federal agencies pursuant to that title. accessibility guidelines for federally unintended conflicts between the two (b) Section 504. This part does not affect funded facilities under the Architectural federal accessibility standards and to the obligations of a recipient of federal Barriers Act of 1968 (ABA). 42 U.S.C. minimize conflicts between the federal financial assistance to comply with the 4151 et seq. The passage of the ADA regulations and the model codes that requirements of section 504 of the expanded the Access Board’s form the basis of many state and local Rehabilitation Act of 1973, 29 U.S.C. 794, and regulations issued by federal agencies responsibilities. The ADA requires the building codes. implementing section 504. Access Board to ‘‘issue minimum The 2004 ADAAG is the culmination (c) Other laws. This part does not guidelines that shall supplement the of a ten-year effort to improve ADA invalidate or limit the remedies, rights, and existing Minimum Guidelines and compliance and enforcement. In 1994, procedures of any other federal, state, or local Requirements for Accessible Design for the Access Board began the process of laws (including state common law) that purposes of subchapters II and III of this updating the original ADAAG by provide greater or equal protection for the chapter * * * to ensure that buildings, establishing an advisory committee rights of individuals with disabilities or facilities, rail passenger cars, and composed of members of the design and individuals associated with them. vehicles are accessible, in terms of construction industry, the building code Nothing in this proposed rule will architecture and design, transportation, community, state and local government alter this relationship. The Department and communication, to individuals with entities, and people with disabilities. In recognizes that public accommodations disabilities.’’ 42 U.S.C. 12204. The ADA 1999, based largely on the report and subject to title III of the ADA may also requires the Department to issue recommendations of the advisory be subject to title I of the ADA, which regulations that include enforceable committee,1 the Access Board issued a prohibits discrimination on the basis of accessibility standards applicable to proposed rule to update and revise its disability in employment; section 504, facilities subject to title II or title III that ADA and ABA Accessibility Guidelines. which prohibits discrimination on the are consistent with the minimum basis of disability in the programs and guidelines issued by the Access Board. 1 After a two-year process of collaboration with the access Board, the Advisory Committee issued its activities of recipients of federal Id. at 12134, 12186. Recommendations for a New ADAAG in September financial assistance; and other federal The Department was extensively 1996, available at http://www.access-board.gov/ statutes such as the Air Carrier Access involved in the development of the 2004 pubs.htm.

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See 64 FR 62248 (Nov. 16, 1999). In already reviewed comments provided to Department to focus on such issues as response to its proposed rule, the the Access Board during its ticketing in assembly areas and Access Board received more than 2,500 development of the 2004 ADAAG, the reservations for hotel rooms, rental cars, comments from individuals with Department specifically requested and boat slips. The public asked about disabilities, affected industries, state public comment on the potential captioning and the division of and local governments, and others. The application of the 2004 ADAAG to responsibility between the Department Access Board provided further existing facilities. The extent to which and the Access Board for fixed and non- opportunity for participation by holding the 2004 ADAAG is used with respect fixed (or free-standing) equipment. public hearings throughout the nation. to the barrier removal requirement Finally, commenters asked for The Access Board worked vigorously applicable to existing facilities under clarification on some issues in the from the beginning to harmonize the title III (like the program access existing regulations, such as title III’s ADA and ABA Accessibility Guidelines requirement in title II) is solely within requirements regarding service animals. with industry standards and model the discretion of the Department. The All of the issues raised in the public codes. The Access Board released an ANPRM dealt with the Department’s comments are addressed, in turn, in this interim draft of its guidelines to the responsibilities under both title II and NPRM or in the NPRM for title II. Issues public on April 2, 2002, 67 FR 15509, title III. involving title II of the ADA, such as the in order to provide an opportunity for Public response to the ANPRM was exhaustion of administrative remedies entities with model codes to consider extraordinary. The Department under the Prison Litigation Reform Act amendments that would promote extended the comment deadline by four (PLRA), 42 U.S.C. 1997e et seq., are further harmonization. By the date of its months at the public’s request. 70 FR addressed in the Department’s NPRM final publication on July 23, 2004, 69 FR 2992 (Jan. 19, 2005). By the end of the for title II, in this issue of the Federal 44084, the 2004 ADAAG had been the extended comment period, the Register, published concurrently with subject of extraordinary public Department had received more than 900 this NPRM. participation and review. comments covering a broad range of In addition, the Access Board issues. Most of the comments responded Background (SBREFA, Regulatory amended the ADAAG four times since to questions specifically posed by the Flexibility Act, and Executive Order) 1998. In 1998, it added specific Department, including issues involving Reviews guidelines on state and local the application of the 2004 ADAAG The Department must provide two government facilities, 63 FR 2000 (Jan. once the Department adopts it and cost types of assessments as part of its 13, 1998), and building elements information to assist the Department in NPRM: an analysis of the costs and designed for use by children, 63 FR its regulatory assessment. The public benefits of adopting the 2004 ADAAG as 2060 (Jan. 13, 1998). Subsequently, the provided information on how to assess its proposed standards, and a periodic Access Board added specific guidelines the cost of elements in small facilities, review of its existing regulations to on play areas, 65 FR 62498 (Oct. 18, office buildings, hotels and motels, consider their impact on small entities, 2000), and on recreational facilities 67 assembly areas, hospitals and long-term including small businesses, small FR 56352 (Sept. 3, 2002). care facilities, residential units, nonprofit organizations, and small These amendments to the ADAAG recreational facilities, and play areas. governmental jurisdictions. E.O. 12866, have not previously been adopted by the Comments addressed the effective date 58 FR 51735 (Sept. 30, 1993), as Department as ADA Standards. Through of the proposed standards, the triggering this NPRM, the Department is event by which the effective date is amended by E.O. 13258, 67 FR 9385 announcing its intention to publish a measured in new construction, and (Feb. 26, 2002) and E.O. 13422, 72 FR proposed rule that will adopt revised variations on a safe harbor that would 2763 (Jan. 18, 2007); Regulatory ADA Standards consistent with the excuse elements built in compliance Flexibility Act of 1980, 5 U.S.C. 601, 2004 ADAAG, including all of the with the 1991 Standards from 603, as amended by the Small Business amendments to the ADAAG since 1998. compliance with the proposed Regulatory Enforcement Fairness Act of standards. Comments responded to 1996 (SBREFA), 5 U.S.C. 610(a); OMB The Advance Notice of Proposed Circular A–4, http:// Rulemaking questions regarding elements scoped for the ‘‘first time’’ in the 2004 ADAAG, www.whitehouse.gov/ The Department published an including detention and correctional omb/circulars/a004/a-4.pdf; and E.O. advance notice of proposed rulemaking facilities, recreational facilities, and 13272, 67 FR 53461 (Aug. 13, 2002). (ANPRM) on September 30, 2004, 69 FR play areas, as well as proposed The Department leaves open the 58768, for two reasons: (1) To begin the additions to the Department’s regulation possibility that, as a result of the receipt process of adopting the Access Board’s for items such as free-standing of comments on an issue raised by the 2004 ADAAG by soliciting public input equipment. Comments also dealt with 2004 ADAAG, or if the Department’s on issues relating to the potential specific requirements in the 2004 Regulatory Impact Analysis reveals that application of the Access Board’s ADAAG. the costs of making a particular feature revisions once the Department adopts Many commenters requested or facility accessible are them as revised standards; and (2) to clarification of or changes to the disproportionate to the benefits to request background information that Department’s title III regulation. persons with disabilities, the Attorney would assist the Department in Commenters observed that now, more General, as a member of the Access preparing a regulatory analysis under than seventeen years after enactment of Board, may return the issue to the the guidance provided in OMB Circular the ADA, as facilities are becoming Access Board for further consideration A–4, available at http:// physically accessible to individuals of the particular feature or facility. In www.whitehouse.gov/omb/circulars/ with disabilities, the Department needs such a case, the Department would a004/a-4.pdf, Sections D (Analytical to focus on second generation issues delay adoption of the accessibility Approaches) and E (Identifying and that ensure that individuals with requirement for the particular feature or Measuring Benefits and Costs). While disabilities can actually gain access to facility in question in its final rule and underscoring that the Department, as a and use the accessible elements. So, for await Access Board action before member of the Access Board, had example, commenters asked the moving to consider any final action.

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Regulatory Impact Analysis. An initial accessible teeing grounds, putting collectively by forty-six (46) states and regulatory impact analysis of the costs greens, and weather shelters at golf the District of Columbia on a statewide and benefits of a proposed rule is courses. However, this baseline figure basis. In the four (4) remaining states required by Executive Order 12866 (as does not take into account the fact that, (Colorado, Delaware, Illinois, and amended by Executive Order 13258 and since 1991, various model codes and Mississippi), while IBC adoption is left Executive Order 13422). A full benefit- consensus standards—such as the to the discretion of local jurisdictions, cost analysis is required of any model International Building Codes the vast majority of these local regulatory action that is deemed to be (‘‘IBC’’) published by the International jurisdictions have elected to adopt IBC significant—that is, a regulation that Codes Council and the consensus as their local code. Thus, given that will have an annual effect of $100 accessibility standards developed by the nearly all jurisdictions in the country million or more on the economy. See American National Standards Institute currently enforce a version of the IBC as OMB Circular A–4; Regulatory (‘‘ANSI’’)—have been adopted by a their building code, and to the extent Flexibility Act of 1980, 5 U.S.C. 601, majority of states (in whole or in part) that the IBC building codes may be 603, as amended by SBREFA, 5 U.S.C. and that these codes have provisions settled in this area and would not be 610(a). mirroring the substance of the further modified to be consistent if they Early in the rulemaking process, the Department’s proposed regulations. differ from the final version of these Department concluded that the Indeed, such regulatory overlap is regulations, the incremental costs and economic impact of its adoption of the intentional since harmonization among benefits attributable to the Department’s 2004 ADAAG as proposed standards for federal accessibility standards, state and proposed regulations governing title II and title III was likely to exceed local building codes, and model codes, alterations to existing stairs and the threshold for significant regulatory is one of the goals of the Department’s elevators may be less significant than actions of $100 million. The Department rulemaking efforts. the RIA suggests over the life of the has completed its initial regulatory Even though the 1991 Standards are regulation. impact analysis measuring the an appropriate baseline to compare the In a similar vein, consideration of an incremental benefits and costs of the new requirements against, since they alternate IBC/ANSI baseline would also proposed standards; the initial represent the current set of uniform likely lower the incremental costs and regulatory impact analysis is addressed federal regulations governing benefits for five other proposed at length with responses to public accessibility, in practice it is likely that standards (side reach; water closet comments from the ANPRM, in many public and private facilities across clearances in single-user toilet rooms Appendix B. the country are already being built or with in-swinging doors; location of The public may notice differences altered in compliance with the accessible routes to stages; accessible between the Department’s regulatory Department’s proposed standards with attorney areas and witness stands; and impact analysis and the Access Board’s respect to these elements. Because the assistive listening systems), albeit to a regulatory assessment of the 2004 model codes are voluntary, public lesser extent. Each of these proposed ADAAG. The differences in framework entities often modify or carve out standards has a counterpart in either and approach result from the differing particular standards when adopting Chapter 11 of one or more versions of postures and responsibilities of the them into their laws, and even when the the IBC, ANSI A117.1, or a functionally Department and the Access Board. First, standards are the same, local officials equivalent state accessibility code. the breadth of the proposed changes often interpret them differently. The While IBC Chapter 11 and ANSI A117.1 assessed in Appendix A of this NPRM mere fact that a state or local have yet not been as widely adopted as is greater than in the Access Board’s government has adopted a version of the some other IBC chapters, the RIA assessments related to the 2004 IBC does not necessarily mean that the nonetheless still estimates that between ADAAG. Unlike the Access Board, the facilities within that jurisdiction are 15% and 35% of facilities nationwide Department must examine the effect of legally subject to its accessibility are already covered by IBC/A117.1 the proposed standards not only on provisions. Because of these provisions that mirror these five newly constructed or altered facilities, complications, and the inherent proposed standards. It is thus expected but also on existing facilities. Second, difficulty of determining which baseline that the incremental costs and benefits whereas the Access Board issued is the most appropriate for each for these proposed standards may also separate rules for many of the provision, the RIA accompanying this be lower than the costs and benefits differences between the 1991 Standards rulemaking compares the costs and relative to the 1991 Standards baseline. and the 2004 ADAAG (e.g., play areas benefits of the proposed requirements to Question 1: The Department believes and recreational facilities), the several alternative baselines, which it would be useful to solicit input from Department is proposing to adopt reflect various versions of existing the public to inform us on the several years of revisions in a single building codes. In addition, since the anticipated costs or benefits for certain rulemaking. Department is soliciting comment on requirements. The Department therefore According to the Department’s initial these eight particular provisions with invites comment as to what the actual Regulatory Impact Analysis (‘‘RIA’’), it high net costs, the Department believes costs and benefits would be for these is estimated that the incremental cost of it is useful to further discuss the eight existing elements, in particular as the proposed requirements for each of potential impact of alternative baselines applied to alterations, in compliance the following eight existing elements on these particular provisions. with the proposed regulations (side will exceed monetized benefits by more For example, the Department’s reach, water closet clearances in single- than $100 million when using the 1991 proposed standards for existing stairs user toilet rooms with in-swinging doors, Standards as the comparative baseline: and elevators have identical stairs, elevators, location of accessible Side reach; water closet clearances in counterparts in one or more IBC routes to stages, accessible attorney single-user toilet rooms with in- versions (2000, 2003, or 2006). Please areas and witness stands, assistive swinging doors; stairs; elevators; note, however, that the IBC 2006 version listening systems, and accessible teeing location of accessible routes to stages; bases a number of its provisions on grounds, putting greens, and weather accessible attorney areas and witness guidelines in the 2004 ADAAG. These shelters at golf courses), as well as stands; assistive listening systems; and IBC versions, in turn, have been adopted additional practical benefits from these

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requirements, which are often difficult of which baseline is used for the a witness who uses other mobility to adequately monetize. analysis. The Department, however, has devices such as a walker or crutches, The Department does not have had difficulty in estimating the real may have to sit at floor level. If the statutory authority to modify the 2004 costs of this requirement because of a witness with a mobility disability ADAAG; instead, the ADA requires the lack of information about whether testifies from a floor level position, the Attorney General to issue regulations colleges, elementary and secondary witness could be placed at a implementing the ADA that are schools, and entertainment venues now disadvantage in communicating with ‘‘consistent with’’ the ADA Accessibility routinely provide such access when the judge and jury who may no longer Guidelines issued by the Access Board. they are altering existing auditoriums or be able to see the witness as easily, or, See 42 U.S.C. 12134(c), 12186(c). As how frequently such alterations occur. potentially at all. This may create a noted above in other parts of this Also, the Department currently lacks reciprocal difficulty for the judge and preamble, the Department leaves open sufficient data or other sources with jurors who lose the sightline normally the possibility of seeking further which to quantify the benefits that provided by the raised witness stand consideration by the Access Board of accrue to students and other persons that enables them to see and hear the particular issues based on with disabilities who, as a result of witness in order to evaluate his or her disproportionate costs compared to direct access to stages, would be able to demeanor and credibility—difficulty benefits and public comments. The participate fully and equally in that redounds to the detriment of Access Board did not have the benefit graduation exercises and other events. litigants themselves and ultimately our of our RIA or public comment on our Question 3: The Department would system of justice. RIA as it pertains to the 2004 ADAAG. welcome information from operators of Question 4: The Department Question 2: The Department would auditoriums on the likelihood that their welcomes comment on how to measure welcome comment on whether any of auditoriums will be altered in the next or quantify the intangible benefits that the proposed standards for these eight fifteen years, and, if so, whether such would accrue from accessible witness areas (side reach, water closet alterations are likely to include stands. We particularly invite anecdotal clearances in single-user toilet rooms accessible and direct access to stages. In accounts of the courtroom experiences with in-swinging doors, stairs, elevators, addition, the Department would like of individuals with disabilities who have location of accessible routes to stages, specific information on whether, encountered inaccessible witness accessible attorney areas and witness because of local law or policy, stands, as well as the experiences of stands, assistive listening systems, and auditorium operators are already state and local governments in making accessible teeing grounds, putting providing a direct accessible route to witness stands accessible, either in the greens, and weather shelters at golf their stages. (The Department is also new construction or alteration context. courses) should be raised with the interested in whether having to provide Under the 1991 Standards, Assistive Access Board for further consideration, a direct access to the stage would Listening Systems (‘‘ALS’’) are required in particular as applied to alterations. encourage operators of auditoriums to in courtrooms and in other settings Stages. The proposed requirement to postpone or cancel the alteration of where audible communication is provide direct access to stages their facilities.) The Department also integral to the use of the space and represents an effort to ensure that seeks information on possible means of audio amplification systems are individuals with disabilities are able to quantifying the benefits that accrue to provided for the general audience. participate in programs in an integrated persons with disabilities from this However, these Standards do not set setting. Under the current 1991 proposed requirement or on its forth technical specifications for such Standards, a compliant accessible route importance to them. To the extent that systems. Since 1991, advancements in connecting seating locations to such information cannot be quantified, ALS and the advent of digital performing areas is permitted to go the Department welcomes examples of technologies have made these systems outside the assembly area and make use personal or anecdotal experience that more amenable to uniform technical of an indirect interior accessible route to illustrate the value of this requirement. specifications. In keeping with these access the stage area. As a result, even The Department’s RIA also estimates technological advancements, the revised when other audience members are able significant costs, regardless of the requirements create a technical standard to access a stage directly via stairs in baseline used, for the proposed that, among other things, ensures that a order to participate in ceremonies, skits, requirement that court facilities must certain percentage of required ALS have or other interactive on-stage events, provide an accessible route to a witness hearing-aid compatible receivers. persons with mobility disabilities may stand or attorney area and clear floor Requiring hearing-aid compatible ALS be required to use an inconvenient space to accommodate a wheelchair. enables persons who are hard of hearing indirect entrance to the stage. As These costs arise both in the new to hear a speech, a play, a movie, or to graduates or award recipients, they may construction and alteration contexts. If follow the content of a trial. Without an be required to part company with their the witness stand is raised, then either effective ALS, people with hearing loss peers, to make their way to the stage a ramp or lift must be provided to are effectively excluded from alone, and to make a conspicuous ensure access to the witness stand. participation because they are unable to entrance. To address this situation, the While the RIA quantifies the benefits for hear or understand the audible portion proposed requirement mandates that, this proposed requirement (as it does for of the presentation. when a direct circulation path (for all of the proposed requirements) From an economic perspective, the audience members) connects the seating primarily in terms of time savings, the cost of a single hearing-aid compliant area to a stage, the accessible route to Department fully appreciates that such ALS is not high—about $500 more than the stage must also be direct. a methodology does not capture the a non-compliant system—and compliant The Department has generally intangible benefits that accrue when equipment is readily available on the determined that the overall costs for this persons with mobility disabilities are retail market. As estimated in the RIA, requirement are relatively high in the able to participate in the court process the high overall costs for the revised alterations context, due to the expense as conveniently as any other witness or technical requirements for ALS are of having to provide a lift or ramp to party. Without access to the witness instead driven by the assumption that access the stage area directly, regardless stand, for example, a wheelchair user, or entities with large assembly areas (such

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as universities, stadiums, and Analysis of impact on small entities. Department’s initial, formal benefit-cost auditoriums) will be required to The second type of analysis that the analysis. purchase a relatively large number of Department has undertaken is a review The section of the NPRM entitled, compliant systems. On the other hand, of its existing regulations for title II and ‘‘General Issues,’’ briefly introduces the overall scoping for ALS has been title III in order to consider the impact topics that are noteworthy because they reduced in the Department’s proposed of those regulations on small entities. are new to the title III regulation or have requirement, thus mitigating the cost to The review requires agencies to been the subject of attention or covered entities. The proposed revision consider five factors: (1) The continued comment. The topics introduced in the to the technical requirement merely need for the rule; (2) the nature of general issues section include: safe specifies that (25% or at least 2) of the complaints or comments received harbor and other proposed limitations required ALS receivers must be hearing- concerning the rule from the public; (3) on barrier removal, service animals, aid compatible. The RIA estimates that the complexity of the rule; (4) the extent equipment, wheelchairs and other a significant part of the cost of this to which the rule overlaps, duplicates, power-driven mobility devices, requirement will come from the or conflicts with other federal rules, auxiliary aids and services (including replacement of individual ALS receivers and, to the extent feasible, with state captioning and video interpreting and system maintenance. and local governmental rules; and (5) services), and certification of state and Question 5: The Department seeks the length of time since the rule has local building codes. information from arena and assembly been evaluated or the degree to which Following the ‘‘General Issues’’ area administrators on their experiences technology, economic conditions, or section, there is a section entitled, in managing ALS. In order to evaluate other factors have changed in the area ‘‘Section-By-Section Analysis and the accuracy of the assumptions in the affected by the rule. 5 U.S.C. 610(b). Response to Comments.’’ This section RIA relating to ALS costs, the Based on these factors, the agency provides a detailed discussion of the Department welcomes particular should determine whether to continue proposed changes to the title III information on the life expectancy of the rule without change, or to amend or regulation. The section-by-section ALS equipment and the cost of ongoing rescind the rule to minimize any analysis follows the order of the current maintenance. significant economic impact of the rule regulation, except that regulatory The Department’s proposed on a substantial number of small sections that remain unchanged are not requirements mandate an accessible entities. Id. at 610(a). indicated. The discussion within each (pedestrian) route that connects all In performing this review, the section explains the proposals and the accessible elements within the Department has gone through its reasoning behind them, as well as the boundary of the golf course and facility, regulation section by section, and, as a Department’s response to related public including teeing grounds, putting result, proposes several clarifications comments. Subject areas that deal with greens, and weather shelters. Requiring and amendments in this NPRM. more than one section of the regulation access to necessary features of a golf Amendments to its title II regulation are include references to the related course ensures that persons with proposed in the NPRM for title II sections, where appropriate. mobility disabilities may fully and published concurrently with this rule. Both the ‘‘General Issues’’ section and equally participate in a recreational The proposals reflect the Department’s the ‘‘Section-By-Section Analysis’’ activity. analysis and review of complaints or include specific questions to which the From an economic perspective, the comments from the public as well as Department requests public response. Department’s RIA assumes that virtually changes in technology. Many of the These questions are numbered and every tee and putting green on an proposals aim to clarify and simplify the italicized so that they are easier for existing course will need to be regraded obligations of covered entities. As readers to locate and reference. The in order to provide compliant accessible discussed in greater detail above, a Department emphasizes, however, that (pedestrian) routes to these features. significant goal in the development of the public may comment on any aspect However, the Department’s proposal the 2004 ADAAG was to eliminate of this NPRM and is not required to also excuses compliance with the duplication or overlap in federal respond solely to questions specifically requirement for an accessible accessibility guidelines as well as to posed by the Department. (pedestrian) route so long as a ‘‘golf car harmonize the federal guidelines with The Department’s proposed changes passage’’ (i.e., the path typically used by model codes. The Department has also to the actual regulatory text of title III, golf cars) is otherwise provided to the worked to create harmony where that follow the section-by-section teeing ground, putting green, or other appropriate between the requirements of analysis are entitled, ‘‘Part 36: accessible element on a course. Because titles II and III. Finally, while the Nondiscrimination on the Basis of it is likely that most public and private regulation is required by statute and Disability by Public Accommodations golf courses in the United States already there is a continued need for it as a and in Commercial Facilities.’’ provide golf passages to most or all whole, the Department proposes several holes, the actual costs of this modifications that are intended to General Issues requirement for owners and operators of reduce its effects on small entities. This section briefly introduces topics existing golf courses should be reduced that are noteworthy because they are with little to no practical loss in Organization of This NPRM new to the title III regulation or have accessibility. The subsequent sections of this NPRM been the subject of considerable Question 6: The Department seeks deal with the Department’s response to attention or comment. Each topic is information from the owners and comments and its proposals for changes discussed subsequently in the section- operators of golf courses, both public to its current regulation that derive from by-section analysis. and private, on the extent to which their the required, periodic review that it Safe harbor and other proposed courses already have golf car passages performed. The proposed standards and limitations on barrier removal. One of to teeing grounds, putting greens, and the Department’s response to comments the most important issues that the weather shelters, and, if so, whether regarding the 2004 ADAAG are Department must address is the effect they intend to avail themselves of the contained in Appendix A to the NPRM. that supplemental or changed ADA proposed exception. Appendix B to the NPRM contains the Standards will have on the continuing

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obligation of public accommodations to play areas and recreational facilities). definition of a qualified small business, remove architectural, transportation, Option III in the ANPRM proposed the and (2) the formula for calculating what and communication barriers in existing exemption of certain elements in the percentage of revenues should be facilities to the extent that it is readily proposed standards; under this option, sufficient to satisfy the readily achievable to do so. This issue was not the Department would determine that achievable presumption. The addressed in the 2004 ADAAG because certain supplemental requirements are Department discusses its proposal for it was outside the scope of the Access inappropriate for barrier removal. After safe harbor and reduced scoping Board’s authority under the ADA. reviewing the public comments on the requirements in the section-by-section Responsibility for implementing title ANPRM, the Department has decided to analysis of § 36.304. III’s requirement that public propose a combination of Options I and The Department invites comment on accommodations eliminate existing II. The specific proposals are addressed whether public accommodations that architectural barriers where it is readily in the discussion of barrier removal in operate existing facilities with play or achievable to do so rests solely with the the section-by-section analysis of recreation areas should be exempted Department. § 36.304 below. from compliance with certain The Department’s current regulation The Department is not proposing to requirements in the 2004 ADAAG. implementing title III of the ADA adopt Option III. Instead, in keeping Existing facilities would continue to be establishes the requirements for barrier with its obligations under the SBREFA subject to accessibility requirements in removal by public accommodations. 28 to consider regulatory alternatives, the existing law, but not specifically to the CFR 36.304. Under this requirement, the Department is seeking public comment requirements in: (1) The Access Board’s Department uses the 1991 Standards as on an alternative suggested by advocates supplemental guidelines on play areas, a guide to identify what constitutes an for small business. Under this 65 FR 62498 (Oct. 18, 2000); and (2) the architectural barrier, as well as the alternative, the Department would Access Board’s supplemental guidelines specifications that covered entities must revamp its approach to barrier removal on recreation facilities, 67 FR 56352 follow in making architectural changes that is readily achievable as applied to (Sept. 3, 2002). Under that scenario, the to the extent that it is readily ‘‘qualified small business’’ entities, 2004 ADAAG would apply only to new achievable. 28 CFR part 36, App. B. which are defined in § 36.104. play areas and recreation facilities, and Once adopted, therefore, the 2004 Small business advocates argued for would not govern the accessibility of ADAAG will present a new reference clearer guidance on when barrier existing facilities as legal requirements. point for title III’s requirement to removal is, and is not, readily Public accommodations that operate remove architectural barriers in existing achievable. According to the small existing facilities with play or recreation places of public accommodation. The business advocacy groups, the areas, pursuant to the ADA’s Department is concerned that the Department’s current approach to requirements to provide equal incremental changes in the 2004 readily achievable barrier removal opportunity for individuals with ADAAG may place unnecessary cost disproportionately affects small disabilities, may still have the obligation burdens on businesses that have already businesses for the following reasons: (1) to provide an accessible route to the removed barriers by complying with the Small businesses are more likely to playground, some accessible equipment, 1991 Standards in their existing operate in older buildings and facilities; and an accessible surface for the play facilities. (2) the 1991 Standards are too numerous area or recreation facility. The Department seeks to strike an and technical for most small business Question 7: Should the Department appropriate balance between ensuring owners to understand and then to exempt owners and operators of public that people with disabilities are square with the ADA requirements with accommodations from specific provided access to buildings and state and local building or accessibility compliance with the supplemental facilities and potential financial burdens codes; and (3) small businesses are requirements for play areas and on existing places of public particularly vulnerable to title III recreation facilities, and instead accommodation under their continuing litigation and are often compelled to continue to determine accessibility in obligation for barrier removal. Such a settle because they cannot afford the these facilities on a case-by-case basis balance would not impose unnecessary litigation costs involved in proving under existing law? Please provide financial burdens on existing places of whether an action is readily achievable. information on the effect of such a public accommodation. Advocates for small business endorsed proposal on people with disabilities and The Department’s ANPRM raised many of the proposals in the ANPRM, places of public accommodation. several options that might reduce such such as the safe harbor and reduced Service animals. The Department financial burdens. One approach, scoping for some elements. wishes to clarify the obligations of described in the ANPRM as Option I, is The proposed standards will go a long public accommodations to to establish a safe harbor with regard to way toward meeting the concern of accommodate individuals with elements in existing facilities that small businesses with regard to disabilities who use service animals. comply with the scoping and technical harmonizing federal and state The Department continues to receive a provisions in the 1991 Standards. requirements; the Access Board large number of complaints from Specifically, the Department would harmonized the 2004 ADAAG with the individuals with service animals. It deem that public accommodations have model codes that form the basis of most appears that many covered entities are met their obligation for barrier removal state and local accessibility codes. Still, confused regarding their obligations with respect to any element in an the Department is proposing that a under the ADA with regard to existing facility if that element complies qualified small business is presumed to individuals with disabilities who use with the scoping and technical have done what is readily achievable in service animals. At the same time, some requirements in the 1991 Standards. a given year if, in the prior tax year, it individuals with impairments—who Another possible approach—Option II spent a fixed percentage of its revenues would not be covered as individuals in the ANPRM—is to reduce the scoping on readily achievable barrier removal. with disabilities—are claiming that their requirements for some of the The Department believes that the animals are legitimate service animals, supplemental or changed requirements efficacy of any such proposal will turn whether fraudulently or sincerely (albeit as they apply to existing facilities (e.g., on two determinations: (1) The mistakenly), to gain access to hotels,

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restaurants, and other places of public safety checks, or room searches, or regulation guidance that it has provided accommodation. Another trend is the turning on lights for persons with Post previously through technical assistance. use of wild, exotic, or unusual species, Traumatic Stress Disorder; interrupting Proposed training standards. The many of which are untrained, as service self-mutilation by persons with Department has always required that animals. The Department is proposing dissociative identity disorders; and service animals be individually trained amendments to its regulation on service keeping disoriented individuals from to do work or perform tasks for the animals in the hope of mitigating the danger. benefit of an individual with a apparent confusion. The Department is proposing new disability, but has never imposed any Minimal protection. In the regulatory text in § 36.104 to formalize type of formal training requirements or Department’s ADA Business Brief on its position on emotional support/ certification process. While some groups Service Animals, which was published comfort animals, which is that have urged the Department to modify in 2002, the Department interpreted the ‘‘[a]nimals whose sole function is to this position, the Department does not minimal protection language within the provide emotional support, comfort, believe such a modification would serve context of a seizure (i.e., alerting and therapy, companionship, therapeutic the array of individuals with disabilities protecting a person who is having a benefits, or promote emotional well- who use service animals. seizure). Although the Department being are not service animals.’’ The Detailed regulatory text changes and received comments urging it to Department wishes to state, however, the Department’s response to public eliminate the minimal protection that the exclusion of emotional support comments on these issues and others are language, the Department continues to animals from ADA coverage does not discussed below in the definition believe that it should retain the mean that individuals with psychiatric, section, § 36.104, and the section on ‘‘providing minimal protection’’ cognitive, or mental disabilities cannot modifications in policies, practices, and language and interpret the language to use service animals. The Department procedures, § 36.302(c). Equipment and furniture. In question exclude so-called ‘‘attack dogs’’ that proposes specific regulatory text in seven of the ANPRM, the Department pose a direct threat to others. § 36.104 to make this clear: ‘‘The term asked for comment on whether Guidance on permissible service service animal includes individually animals. In the original regulation regulatory guidance is needed with trained animals that do work or perform implementing title III, ‘‘service animal’’ respect to the acquisition and use of tasks for the benefit of individuals with was defined as ‘‘any guide dog, signal free-standing equipment or furnishings disabilities, including psychiatric, dog, or other animal,’’ and the used by covered entities to provide cognitive, and mental disabilities.’’ This Department believed, at the time, that services, and asked for specific language simply clarifies the leaving the species selection up to the examples of the circumstances in which Department’s longstanding position and discretion of the person with a disability such equipment should be addressed. is not a new position. was the best course of action. Due to the The ANPRM explained that free- proliferation of animals used by The Department’s rule is based on the standing equipment was already individuals, including wild animals, the assumption that the title II and title III addressed in the regulation in several Department believes that this area needs regulations govern a wider range of different contexts, but because covered some parameters. Therefore, the public settings than the settings that entities continue to raise questions Department is proposing to eliminate allow for emotional support animals. about their obligations to provide certain species from coverage even if the The Department recognizes, however, accessible free-standing equipment, the other elements of the definition are that there are situations not governed Department was considering adding satisfied. exclusively by the title II and title III specific language on equipment. The Comfort animals vs. psychiatric regulations, particularly in the context Department received comments both in service animals. Under the Department’s of residential settings and employment, favor and against new guidance on present regulatory language, some where there may be compelling reasons accessible equipment and furniture, but individuals and entities have assumed to permit the use of animals whose has decided not to add any specific that the requirement that service presence provides emotional support to regulation governing equipment at this animals must be individually trained to a person with a disability. Accordingly, time. do work or perform tasks excluded all other federal agency regulations Many businesses were opposed to individuals with mental disabilities governing those situations may additional requirements for free- from having service animals. Others appropriately provide for increased standing equipment, although they have assumed that any person with a access for animals other than service favored a move toward clarity and psychiatric condition whose pet animals. specificity. Some businesses were provided comfort to them was covered Modification in policies, practices, or concerned that they lack control of the by the ADA. The Department believes procedures. The preamble to § 36.302 of design or manufacturing of such that psychiatric service animals that are the current title III regulation states that equipment. trained to do work or perform a task the regulatory language was intended to Most organizations and individuals (e.g., reminding its owner to take provide the ‘‘broadest feasible access’’ to representing individuals with medicine) for individuals whose individuals with service animals while disabilities were in favor of adding or disability is covered by the ADA are acknowledging that, in rare clarifying requirements for accessible protected by the Department’s present circumstances, accommodating service equipment. Disability organizations regulatory approach. animals may not be required if it would pointed out that from the user’s Psychiatric service animals can be result in a fundamental alteration of the perspective, it is not relevant whether trained to perform a variety of tasks that nature of the goods or services the the equipment (e.g., ATMs, vending assist individuals with disabilities to public accommodation provides or the machines) is free-standing or fixed, detect the onset of psychiatric episodes safe operation of the public because the equipment must be and ameliorate their effects. Tasks accommodation. 56 FR 35544, 35565 accessible in order for individuals with performed by psychiatric service (July 26, 1991). In order to clarify this disabilities to use it. animals may include reminding the provision, the Department is A specific point of concern to several handler to take medicine; providing incorporating into the proposed commenters was inaccessible aisles

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between movable display racks in as detailed requirements for fixed without disabilities. These commenters stores. The Department’s current equipment that is not addressed by generally supported having one, two, or regulation addresses this issue under name in the current Standards, such as multiple cars per course. A number of barrier removal, requiring that stores depositories, change machines, and fuel comments stressed the social aspect of rearrange display racks when readily dispensers. Because the 2004 ADAAG golf, generally, and its specific achievable but adding the following provides detailed requirements for importance in many business exception to § 36.304(f): ‘‘The many types of fixed equipment, covered transactions. Most commenters believed rearrangement of temporary or movable entities may apply those requirements that no advance notice should be structures, such as furniture, equipment, to analogous free-standing equipment to required to reserve an accessible golf and display racks is not readily ensure that they are accessible, and to car. Some golf course owners argued achievable to the extent that it results in avoid potential liability for that a requirement for advance a significant loss of selling or serving discrimination. The Department also reservation of an accessible golf car space.’’ If the rearrangement of display believes that when federal guidance for might allow them to develop pooling racks is not readily achievable, stores accessibility exists for equipment arrangements with other courses. still have an obligation to provide required to be accessible to individuals In response to the Department’s alternatives to barrier removal, such as who are blind or have low vision, questions regarding the safety of retrieving merchandise from entities should consult such guidance accessible golf cars, most commenters inaccessible shelves or racks. 28 CFR (e.g., federal standards implementing stated that the accessible cars are safe, 36.305(b)(2). section 508 of the Rehabilitation Act, 36 do not damage the greens, and speed up When the title III regulation was CFR part 1194, or the guidelines that the pace of play. Some commenters initially proposed in 1991, it contained specify communication accessibility for expressed concern about the safety of a provision concerning accessible ATMs and fare card machines in the accessible golf cars, arguing either that equipment, which required that newly 2004 ADAAG, 36 CFR part 1191, App. the cars should pass the American purchased furniture or equipment that D). With regard to the specific issue of National Standards Institute (ANSI) was made available for use at a place of display racks in stores, the Department standards for traditional golf cars,2 or public accommodation be accessible, does not propose to change the that accessible cars should not be unless complying with this requirement approach in the current regulation. The required until there are applicable safety would fundamentally alter the goods, tension between access for individuals standards. Comments from golf courses services, facilities, privileges, with disabilities and loss of selling with experience in providing accessible advantages, or accommodations offered, space caused by the arrangement of the golf cars were generally positive in or would not be readily achievable. See racks within the store is the same terms of the cars’ safety and the impact 56 FR 7452, 7470–71 (Feb. 22, 1991). In whether the store is newly constructed on maintenance of the greens and the the final title III regulation promulgated or an existing facility. The existing course. in 1991, the Department decided not to approach appropriately balances the As the Department requested, the include this provision, explaining in the needs of businesses and individuals public also addressed the issue of preamble to the regulation that ‘‘its with disabilities. whether a golf course that does not requirements are more properly Accessible golf cars. Question six of provide standard golf cars should offer addressed under other sections, and the ANPRM asked whether golf courses accessible cars. One commenter . . . there are currently no appropriate should be required to make at least one, explained that the courses that do not accessibility standards addressing many and possibly two, specialized golf cars provide golf cars are often shorter length types of furniture and equipment.’’ 56 available for the use of individuals with courses, such as ‘‘executive’’ or nine- FR 35544, 35572 (July 26, 1991). disabilities with no greater advance hole courses, and that individuals with Equipment has been covered under notice than that required of other disabilities who are learning to play the Department’s ADA regulation, golfers. The ANPRM also asked about golf, or who might not have the stamina including under the provision requiring the safety of such cars and their to play eighteen holes, would be more modifications in policies, practices, and potential for damaging golf course likely to use these courses. Thus, procedures and the provision requiring greens. Accessible golf cars are designed accessible golf cars should be available barrier removal, even though there is no for use by individuals with mobility at these courses. This commenter provision specifically addressing disabilities and are operated using hand pointed out that one executive course equipment. See 28 CFR 36.302, 36.304. controls. An individual with a disability that had no traditional—but two If a person with a disability does not can hit a golf ball while remaining in accessible—cars made money on the have full and equal access to a covered the seat of an accessible golf car. Some single-user cars because individuals entity’s services because of the lack of accessible golf cars have a swivel, with and without disabilities wanted to accessible equipment, the entity must elevated seat that allows the golfer to use them. provide that equipment, unless doing so play from a semi-standing position. The Department also received would be a fundamental alteration or Accessible golf cars can be used by comments opposing a requirement to would not be readily achievable. individuals without disabilities as well. provide accessible golf cars from some The Department has decided to The Department received many golf course owners, associations, and continue with this approach, and not to comments on the subject of accessible individuals. Those opposing such a add any specific regulatory guidance golf cars (approximately one quarter of requirement argued that there was little addressing equipment at this time. It all comments received), the majority of demand for accessible golf cars, or that intends to analyze the economic impact which favored a requirement for the problem could be solved by putting of future regulations governing specific accessible golf cars. However, the ‘‘medical flags’’ on traditional golf cars. types of free-standing equipment. The Department has decided not to add a Such flags might identify cars that were 2004 ADAAG includes revised regulation specifically addressing permitted to have wider use of the requirements for some types of fixed accessible golf cars at this time. course. Other commenters stated that equipment that are specifically Comments in support of requiring accessible golf cars were too expensive addressed in the 1991 Standards, such courses to provide accessible golf cars as ATMs and vending machines, as well came from individuals both with and 2 ANSI Z130.1–1999.

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or were specialized equipment that battery-powered personal transportation mobility devices and assist with individuals with disabilities should device. The user stands on a platform balance, circulation, and digestion in purchase for themselves. suspended three inches off the ground ways that wheelchairs do not. See Like some individuals with by wheels on each side, grasps a T- Rachel Metz, Disabled Embrace Segway, disabilities, some commenters who shaped handle, and steers the device New York Times, Oct. 14, 2004. opposed a requirement for accessible similarly to a bicycle. The EPAMD can The Department has received golf cars also expressed concern about travel up to 121⁄2 miles per hour, questions and complaints from the lack of safety standards. There were compared to the average pedestrian individuals with disabilities and also concerns that repair costs for greens walking speed of 3 to 4 miles per hour covered entities about which mobility or for accessible golf cars would be more and the approximate maximum speed aids must be accommodated and under significant than with traditional golf for power-operated wheelchairs of 6 what circumstances. While some cars. One commenter suggested that miles per hour. In a study of trail and individuals with disabilities support the courses exceeding certain slope and other nonmotorized transportation users use of unique mobility devices, other degree standards be exempted from including EPAMDs, the Federal individuals with disabilities are having single-user cars. Others argued Highway Administration (FHWA) found concerned about their personal safety that, in practice, the safety issue and the that the eye height of people using when others are using such devices. issue of damage to courses are EPAMDs ranged from 681⁄4 inches to There is also concern about the impact negligible. 791⁄2 inches. See Federal Highway of such mobility devices on facilities, The Department has decided not to Administration, Characteristics of such as the weight of the device on add a regulation specifically addressing Emerging Road and Trail Users and fragile floor surfaces. accessible golf cars at this time. As with Their Safety (Oct. 2004), available at The Department intends to address free-standing equipment, the http://www.tfhrc.gov/safety/pubs/04103. these issues and proposes to adopt a Department believes that the existing Thus, EPAMDs can operate at much policy that sets the parameters for when regulation is adequate to address this greater speeds than wheelchairs, and the these devices must be accommodated. issue. The Department may gain average user is much taller than most Toward that end, the Department additional guidance in the future from wheelchair users. proposes new definitions of the terms the experience of the Department of EPAMDs have been the subject of ‘‘wheelchair’’—which includes Defense, which is planning to provide debate among users, pedestrians, manually and power-driven wheelchairs two accessible golf cars at each of the disability advocates, state and local and mobility scooters—and ‘‘other 174 golf courses that the Department of governments, businesses, and bicyclists. power-driven mobility device’’ and Defense operates, except those at which The fact that the device is not designed accompanying regulatory text. The it would be unsafe to operate such golf primarily for use by or marketed proposed definitions are discussed in cars because of the terrain of the course. primarily to individuals with the section-by-section analysis of See U.S. Department of Defense, Report disabilities, nor used primarily by § 36.104, and the proposed regulatory to Congress: Access of Disabled Persons persons with disabilities, complicates text is discussed in the section-by- to Morale, Recreation, and Welfare the question of whether individuals section analysis of § 36.311. (MRW) Facilities and Activities (Sept. with disabilities should be allowed to Much of the debate surrounding 25, 2007). operate them in areas and facilities mobility aids has centered on Wheelchairs and other power-driven where other powered devices are not appropriate definitions for the terms mobility devices. Since the passage of allowed. Those who question the use of ‘‘wheelchair’’ and ‘‘other power-driven the ADA, choices of mobility aids EPAMDs in pedestrian areas argue that mobility devices.’’ The Department has available to individuals with disabilities the speed, size, and operating features of not defined the term ‘‘manually have vastly increased. In addition to the devices make them too dangerous to powered mobility aids.’’ Instead, the devices such as wheelchairs and operate alongside pedestrians and proposed rule provides a list including mobility scooters, individuals with wheelchair users. Although the question wheelchairs, walkers, crutches, canes, disabilities may use devices that are not of their safety has not been resolved, braces, or similar devices. The inclusion designed primarily for use by many states have passed legislation of the term ‘‘similar devices’’ indicates individuals with disabilities, such as addressing EPAMD operation on that the list is not intended to be electronic personal assistive mobility sidewalks, bicycle paths, and roads. In exhaustive. The Department would like devices (EPAMDs). (The only available addition, some states, such as Iowa and input as to whether addressing model known to the Department is the Oregon, have minimum age ‘‘manually powered mobility aids’’ in Segway.) The Department has received requirements, or mandatory helmet this manner (i.e., via examples of such complaints and become aware of laws. New Jersey requires helmets for all devices) is appropriate. The Department situations where individuals with EPAMD users, while Hawaii and also would like information as to mobility disabilities have utilized riding Pennsylvania require helmets for users whether there are any other non- lawn mowers, golf cars, large under a certain age. powered or manually powered mobility wheelchairs with rubber tracks, While there may be legitimate safety aids that should be added to the list and gasoline-powered, two-wheeled issues for EPAMD users and bystanders, an explanation of the reasons they scooters, and other devices for EPAMDs and other non-traditional should be included. If an actual locomotion in pedestrian areas. These mobility devices can deliver real definition is preferred, the Department new or adapted mobility aids benefit benefits to individuals with disabilities. would welcome input with regard to the individuals with disabilities, but also For example, individuals with severe language that might be used to define present new challenges for public respiratory conditions who can walk ‘‘manually powered mobility aids,’’ and accommodations and commercial limited distances and individuals with an explanation of the reasons this facilities. multiple sclerosis have reported language would better serve the public. EPAMDs illustrate some of the benefitting significantly from EPAMDs. Auxiliary aids and services: challenges posed by new mobility Such individuals often find that captioning and video interpreting devices. The basic Segway model is a EPAMDs are more comfortable and services. Section 36.303 of the title III two-wheeled, gyroscopically stabilized, easier to use than more traditional regulation requires a public

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accommodation to take such steps as make it less cumbersome for state and statute and the regulations for titles II may be necessary to ensure that no local jurisdictions. and III. 42 U.S.C. 12182(b)(2)(A)(iv); 28 individual with a disability is excluded, In keeping with the Department’s CFR 35.150. denied services, segregated, or efforts to clarify legal obligations under The Department’s enforcement of the otherwise treated differently than other the ADA and harmonize requirements ADA is premised on a broad individuals because of the absence of with other federal laws and model understanding of ‘‘existing facility.’’ The auxiliary aids and services, unless the codes, the proposed rule includes classifications of facilities under the public accommodation can demonstrate amendments to subpart F (§§ 36.601– ADA regulation are not static. Rather, a that taking such steps would 36.608) to streamline the certification building that was newly designed and fundamentally alter the nature of the process. The proposed changes are constructed at one time—and therefore goods, services, facilities, advantages, or intended to provide more flexibility in subject to the accessibility standards in accommodations being offered or would the certification process and shorten the effect at the time—becomes an ‘‘existing result in an undue burden. Implicit in overall time involved. The Department facility’’ after it is completed. At some this duty to provide auxiliary aids and believes that the adoption of the 2004 point in its life, it may also be services is the underlying obligation of ADAAG will help achieve these goals considered ‘‘altered’’ and then again a public accommodation to because it has been further harmonized become ‘‘existing.’’ communicate effectively with its with model codes. The specific changes The added definition of ‘‘existing customers, clients, patients, or to subpart F are described below in the facility’’ in the proposed regulation participants who have disabilities section-by-section analysis. clarifies that the term means exactly affecting hearing, vision, or speech, and what it says: A facility in existence on Section-By-Section Analysis and their companions. any given date is an existing facility The Department has investigated Response to Comments under the ADA. If a facility exists, it is hundreds of complaints alleging that This section provides a detailed an existing facility whether it was built public accommodations have failed to description of the Department’s in 1989, 1999, or 2009. proposed changes to the title III provide effective communication, many ‘‘Other Power-Driven Mobility Device’’ of which have resulted in settlement regulation, the reasoning behind the agreements and consent decrees. During proposals, and responses to public The proposed regulation defines the the course of its investigations, the comments received on the topic. The term ‘‘other power-driven mobility Department has determined that public section-by-section analysis follows the device’’ as ‘‘any of a large range of accommodations sometimes order of the title III regulation itself, devices powered by batteries, fuel, or misunderstand the scope of their except that if the Department is not other engines—whether or not designed obligations under the statute and the proposing a change to a regulation solely for use by individuals with regulation. Moreover, the number of section, the unchanged section is not mobility impairments—that are used by individuals with hearing loss continues mentioned. individuals with mobility impairments to grow in this country as a large for the purpose of locomotion, including Subpart A—General segment of the population ages and as golf carts, bicycles, electronic personal people live longer. Section 36.104 Definitions assistance mobility devices (EPAMDs) The Department is proposing several (e.g., Segway), or any mobility aid changes to § 36.303 to update the ‘‘1991 Standards’’ and ‘‘2004 ADAAG’’ designed to operate in areas without regulatory language in response to The Department is proposing to add defined pedestrian routes.’’ The numerous technological advances and to the proposed regulation definitions of definition is designed to be broad and breakthroughs in the area of auxiliary both the ‘‘1991 Standards’’ and the inclusive because the Department aids and services since the regulation ‘‘2004 ADAAG.’’ The term ‘‘1991 recognizes the diverse needs and was promulgated sixteen years ago. The Standards’’ refers to the currently preferences of individuals with most significant changes are in the enforceable ADA Standards for disabilities and does not wish to impede language regarding video interpreting Accessible Design, codified at 28 CFR individual choice except when services and the provision of effective part 36, App. A. The term ‘‘2004 necessary. Power-driven mobility communication for companions. In ADAAG’’ refers to Parts I and III of the devices are included in this category. addition, the Department is discussing Americans with Disabilities Act and Mobility aids that are designed for areas in its preamble to § 36.303 options for Architectural Barriers Act Accessibility or conditions without defined adding captioning and narrative Guidelines, which were issued by the pedestrian areas, such as off-road bike description that may eventually result Architectural and Transportation paths, roads (except where allowed by in proposed textual changes. The Barriers Compliance Board on July 23, law or where a sidewalk is not specific amendments are described 2004, at 69 FR 44084 (to be codified at provided), freeways, or natural surfaces below in § 36.303 of the section-by- 36 CFR 1191), and which the such as beaches where there is not a section analysis. Department is proposing to adopt in this defined circulation route for Certification. The current title III NPRM. These terms are included in the pedestrians, are also included in this regulation provides that state or local definitions section for ease of reference. category. governments may apply to the Question 8: Please comment on the Department for certification that state ‘‘Existing Facility’’ proposed definition of other power- laws or local building codes comply Under the ADA, a facility is initially driven mobility devices. Is the definition with or exceed the minimum classified as one of three types: (1) An overly inclusive of power-driven accessibility requirements of the ADA. existing facility; (2) an altered facility; mobility devices that may be used by The current submission requirements or (3) a newly designed and constructed individuals with disabilities? and certification process, however, have facility. In the current regulation, title III The Department’s proposed regulatory proved onerous for state and local defines new construction at § 36.401(a) text on accommodating wheelchairs and governments and for the Department. and alterations at § 36.402. In contrast, other power-driven mobility devices is Many have urged the Department to the term ‘‘existing facility’’ is not discussed below in § 36.311 of the streamline the certification process and defined, although it is used in the section-by-section analysis.

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‘‘Place of Lodging’’ when the speaker does not directly face standards to define small businesses The Department proposes to add a the individual who is deaf or hard of under the ADA. The SBA’s small business size definition of ‘‘place of lodging’’ that will hearing. A cued speech interpreter standards define the maximum size that be used in proposed § 36.406(c) to functions in the same manner as an oral a concern, together with all of its address the coverage of rental interpreter except that he or she also affiliates, may be if it is to be eligible for accommodations in time-shares, uses a hand code or cue to represent federal small business programs or to be condominium hotels, and mixed-use each speech sound. considered a small business for the and corporate hotels. The proposed ‘‘Qualified Reader’’ purpose of other federal agency definition specifies that a place of programs. Concerns primarily engaged lodging is a facility that provides The current title III regulation identifies a qualified reader as an in the same kind of economic activity guestrooms for sleeping for stays that are classified in the same industry are primarily short-term in nature auxiliary aid, but it does not define the term. See 28 CFR 36.303(b)(2). Based regardless of their types of ownership (generally two weeks or less), where the (such as sole proprietorship, partnership occupant does not have the right or upon the Department’s investigation of complaints alleging that some entities or corporation). Approximately 1200 intent to return to a specific room or industries are described in detail in the unit after the conclusion of his or her have provided ineffective readers, the Department proposes to define North American Industry Classification stay, and which operates under System—United States, 2007. For most conditions and with amenities similar to ‘‘qualified reader’’ similarly to ‘‘qualified interpreter’’ to ensure that places of public accommodation, the a hotel, motel, or inn, such as an on-site SBA has established a size standard proprietor and reservations desk. The entities select qualified individuals to read an examination or other written based on average annual receipts. The factors to be followed in determining majority of places of public the conditions and amenities of a hotel information in an effective, accurate, and impartial manner. Failing to accommodation will be classified as include rooms available on a walk-up small businesses if their average annual basis, linen service, and accepting provide a qualified reader to a person with a disability may constitute a receipts are less than $6.5 million. reservations for a room type without However, some will qualify with higher guaranteeing a particular unit or room violation of the requirement to provide appropriate auxiliary aids and services. annual receipts. The SBA’s small until check-in, without a prior lease or business size standards should be security deposit. It is the Department’s ‘‘Qualified Small Business’’ familiar to most small businesses. intention that facilities that do not meet A qualified small business is a Current standards, which can only be this definition would not be covered by changed after notice and comment the proposed § 36.406(c). business entity defined as a small business concern under the regulations rulemaking, are available at http:// ‘‘Qualified Interpreter’’ promulgated by the Small Business www.census.gov/epcd/naics07/ The Department proposes to add to Administration (SBA) pursuant to the naics07fr3.htm. the definition of qualified interpreter to Small Business Act. See 15 U.S.C. 632; ‘‘Service Animal’’ 13 CFR part 121. Under section clarify that the term includes, but is not The Department is proposing to 3(a)(2)(C) of the Small Business Act, limited to, sign language interpreters, amend the definition of ‘‘service federal departments and agencies are oral interpreters, and cued speech animal’’ in § 36.104 of the current prohibited from prescribing a size interpreters. regulation, which is defined as, ‘‘any standard for categorizing a business Not all interpreters are qualified for guide dog, signal dog, or other animal concern as a small business unless they all situations. For example, a qualified individually trained to do work or have been specifically authorized to do interpreter who uses American Sign perform tasks for the benefit of an so or have proposed a size standard in Language (ASL) is not necessarily individual with a disability, including, compliance with the criteria set forth in qualified to interpret orally. Also, but not limited to, guiding individuals the SBA regulations, have provided an someone with just a rudimentary with impaired vision, alerting opportunity for public notice and familiarity with sign language or finger individuals with impaired hearing to comment on the proposed standard, and spelling is not a qualified sign language intruders or sounds, providing minimal have received approval from the interpreter. Likewise, a qualified sign protection or rescue work, pulling a Administrator of the SBA to use the language interpreter would not include wheelchair, or fetching dropped items.’’ standard. See id. Federal agencies or someone who is fluent in sign language Proposed § 36.104 would: but unable to translate spoken departments promulgating regulations 1. Remove ‘‘guide’’ or ‘‘signal’’ as communication into ASL or to translate relating to small businesses usually use descriptions of types of service dogs and signed communication into spoken SBA size criteria. If they decide add ‘‘other common domestic’’ animal words. otherwise, they must be prepared to to the Department’s current definition; The revised definition includes justify how they arrived at a different 2. Remove ‘‘individuals with examples of different types of standard and why the SBA’s regulations impaired vision’’ and replace it with interpreters. An oral interpreter has do not satisfy the agency’s program ‘‘individuals who are blind or have low special skill and training to mouth a requirements. See 13 CFR 121.903. vision’’; speaker’s words silently for individuals The ADA does not define ‘‘small 3. Change ‘‘individuals with hearing who are deaf or hard of hearing, many business’’ or specifically authorize the impairments’’ to ‘‘individuals who are of whom were raised orally and taught Department to prescribe size standards. deaf or hard of hearing’’; to read lips or were diagnosed with The Department believes that the size 4. Replace the term ‘‘intruders’’ with hearing loss later in life and do not standards SBA has developed are the phrase ‘‘the presence of people’’ in know sign language. An individual who appropriate for determining which the section on alerting individuals who is deaf or hard of hearing may need an businesses subject to the ADA should be are deaf or hard of hearing; oral interpreter if the speaker’s voice is subject to the proposed safe harbor 5. Add the following to the list of unclear, there is a quick-paced exchange provisions. Therefore, the Department work and task examples: Assisting an of communication (e.g., in a meeting), or proposes to adopt the SBA’s size individual during a seizure, retrieving

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medicine or the telephone, providing protection’’ in the definition or remove Define ‘‘animal’’ or what qualifies physical support to assist with balance it? certain species as ‘‘service animals.’’ and stability to individuals with ‘‘Alerting to intruders.’’ Some When the regulations were promulgated mobility disabilities, and assisting commenters argued that the phrase in the early 1990s, the Department did individuals, including those with ‘‘alerting to intruders’’ in the current not define the parameters of acceptable cognitive disabilities, with navigation; text has been misinterpreted by some animal species, and few anticipated the 6. Add that ‘‘service animal’’ includes people to apply to a special line of variety of animals that would be used in individually trained animals that do protection dogs that are trained to be the future, ranging from pigs and work or perform tasks for the benefit of aggressive. People have asserted, miniature horses to snakes and iguanas. individuals with disabilities, including incorrectly, that use of such animals is One commenter suggested defining psychiatric, cognitive, or mental protected under the ADA. The ‘‘animal’’ (in the context of service disabilities; Department reiterates that public animals) or the parameters of species to 7. Add that ‘‘service animal’’ does not accommodations are not required to reduce the confusion over whether a include wild animals (including admit any animal that poses a direct particular service animal is covered. nonhuman primates born in captivity), threat to the health or safety of others. One service dog organization reptiles, rabbits, farm animals The Department has proposed removing commented that other species would be (including horses, miniature horses, ‘‘intruders’’ and replacing it with ‘‘the acceptable if those animals could meet ponies, pigs, and goats), ferrets, presence of people.’’ the behavioral standards of trained amphibians, and rodents; and ‘‘Task’’ emphasis. Many commenters service dogs. Other commenters asserted 8. Add that animals whose sole followed the lead of an umbrella service that there are certain animals (e.g., function is to provide emotional dog organization in suggesting that reptiles) that cannot be trained to do support, comfort, therapy, ‘‘performing tasks’’ should form the work or perform tasks, so these animals companionship, therapeutic benefits, or basis of the service animal definition, would not be covered. The Department promote emotional well-being are not that ‘‘do work’’ should be eliminated has followed closely this particular ‘‘service animals.’’ from the definition, and that ‘‘physical’’ issue (i.e., how many unusual animals The Department is proposing these should be added to describe tasks. Tasks are now claimed as service animals) and changes in response to concerns by their nature are physical, so the believes that this aspect of the expressed by commenters who Department does not believe that such regulation needs clarification. To establish a practical and responded to the Department’s ANPRM. a change is warranted. In contrast, the reasonable species parameter, the Issues raised by the commenters phrase ‘‘do work’’ is slightly broader Department proposes to narrow the include: than ‘‘perform tasks,’’ and adds meaning definition of acceptable animal species ‘‘Minimal protection.’’ There were to the definition. For example, a to ‘‘dog or other common domestic psychiatric service dog can help some many comments by service dog users animal’’ by excluding the following urging the Department to remove from individuals with dissociative identity animals: Reptiles, rabbits, farm animals the definition ‘‘providing minimal disorder to remain grounded in time or (including horses, miniature horses, protection.’’ The commenters set forth place. As one service dog user stated, in ponies, pigs, or goats), ferrets, the following reasons: (1) The current some cases ‘‘critical forms of assistance amphibians, and rodents. Many phrase can be interpreted to allow can’t be construed as physical tasks,’’ commenters asserted that limiting the ‘‘protection dogs’’ that are trained to be noting that the manifestations of ‘‘brain- number of allowable species would help aggressive and to provide protection to based disabilities,’’ such as psychiatric stop erosion of the public’s trust, which be covered under the ADA, so long as disorders and autism, are as varied as results in reduced access for many they are paired with a person with a their physical counterparts. One individuals with disabilities, despite the disability; and (2) since some view the commenter stated that the current fact that they use trained service minimal protection language to mean definition works for everyone (i.e., those animals that adhere to high behavioral that a dog’s very presence can act as a with physical and mental disabilities) standards. The Department is compelled crime deterrent, the language allows any and urged the Department to keep it. to take into account practical untrained pet dog to provide this The Department has evaluated this issue considerations of certain animals and minimal protection by its mere and believes that the crux of the current contemplate their suitability in a variety presence. These interpretations were not definition (individual training to do of public contexts, such as restaurants, contemplated by the ADA or the title III work or perform tasks) is inclusive of grocery stores, and performing arts regulation. the varied services provided by working venues. In the Department’s ADA Business animals on behalf of individuals with In addition, the Department believes Brief on Service Animals, which was all types of disabilities and proposes that it is necessary to eliminate from published in 2002, the Department that this portion of the definition remain coverage all wild animals, whether born interpreted the minimal protection the same. or bred in captivity or the wild. Some language within the context of a seizure Define ‘‘task.’’ One commenter animals, such as nonhuman primates, (i.e., alerting and protecting a person suggested defining the term ‘‘task,’’ pose a direct threat to safety based on who is having a seizure). Despite the presumably so that there would be a behavior that can be aggressive and Department’s best efforts, the minimal better understanding of what type of violent without notice or provocation. protection language appears to have service performed by an animal would The American Veterinary Medical been misinterpreted. Nonetheless, the qualify for coverage. The Department Association (AVMA) issued a position Department continues to believe that it feels that the common definition of task statement against the use of monkeys as should retain the ‘‘providing minimal is sufficiently clear and that it is not service animals, stating, ‘‘[t]he AVMA protection’’ language and interpret the necessary to add to the definitions does not support the use of nonhuman language to exclude so-called ‘‘attack section. However, the Department has primates as assistance animals because dogs’’ that pose a direct threat to others. proposed additional examples of work of animal welfare concerns, the Question 9: Should the Department or tasks to help illustrate this potential for serious injury and zoonotic clarify the phrase ‘‘providing minimal requirement in the definition. (animal to human disease transmission)

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risks.’’ See AVMA position statement, service animals have been trained to located on or near the monitor, while Nonhuman Primates as Assistance assist individuals with many different others can communicate by speaking. Animals (2005), available at http:// types of disabilities. In some cases, The video monitor can display a split www.avma.org/issues/policy/ individuals with minor impairments screen of two live images, with the nonhuman_primates.asp. The potential who are not individuals with interpreter in one image and the for nonhuman primates to transmit disabilities under the Act have individual who is deaf or hard of dangerous diseases to humans has been mistakenly concluded that any type of hearing in the other image. documented in scientific journals. impairment qualified them for the VIS can provide immediate, effective Although unusual species make up a ADA’s protection of the right of access to interpreting services seven very small percentage of service animals individuals with disabilities to use days a week, twenty-four hours a day by as a collective group, their use has service animals. allowing people in different locations to engendered broad public debate and, Change ‘‘service animal’’ to engage in live, face-to-face therefore, the Department seeks ‘‘assistance animal.’’ Some commenters communications. Moreover, VIS is comment on this issue. asserted that ‘‘assistance animal’’ is a particularly helpful where qualified Question 10: Should the Department term of art and should replace ‘‘service interpreters are not readily available eliminate certain species from the animal.’’ While some agencies, like the (e.g., for quick response to emergency definition of ‘‘service animal’’? If so, Department of Housing and Urban hospital visits, in areas with an please provide comment on the Development (HUD), use the term insufficient number of qualified Department’s use of the phrase ‘‘assistance animal,’’ that term is used to interpreters to meet demand, and in ‘‘common domestic animal’’ and on its denote a broader category of animals rural areas where distances and an choice of which types of animals to than is covered by the ADA. The interpreter’s travel time present exclude. Department believes that changing the obstacles). Question 11: Should the Department term used under the ADA would create Along with the addition of the impose a size or weight limitation for confusion, particularly in view of the definition of VIS, other amendments to common domestic animals, even if the broader parameters for coverage under the communications section are animal satisfies the ‘‘common domestic the Fair Housing Act (FHA) cf., HUD discussed below in § 36.303. animal’’ prong of the proposed Handbook No. 4350.3 Rev–1, Chg–2, ‘‘Wheelchair’’ definition? Occupancy Requirements of Subsidized Comfort animals. It is important to Multifamily Housing Programs (June The Department proposes the address the concept of comfort animals 2007), available at http:// following definition of ‘‘wheelchair’’ in or emotional support animals, which www.hudclips.org. Moreover, the § 36.104: ‘‘Wheelchair means a device have become increasingly popular, Department’s proposal to change the designed solely for use by an individual primarily with individuals with mental definition of ‘‘service animal’’ under the with a mobility impairment for the or psychiatric impairments, many of ADA is not intended to affect the rights primary purpose of locomotion in which do not rise to the level of of people with disabilities who use typical indoor and outdoor pedestrian disability. Comfort animals are also assistance animals in their homes under areas. A wheelchair may be manually used by individuals without any type of the FHA. In addition, the Department operated or power-driven.’’ impairment who claim the need for wishes to use the term ‘‘psychiatric The proposed definition of such animals in order to bring their pets service animal’’ to describe a service ‘‘wheelchair’’ is informed by several into places of public accommodation. animal that does work or performs a existing definitions of ‘‘wheelchair.’’ The difference between an emotional task for the benefit of an individual with Section 507 of the ADA defines support animal and a legitimate a psychiatric disability. This contrasts wheelchair in the context of whether to psychiatric service animal is the service with ‘‘emotional support’’ animals that allow wheelchairs in federal wilderness that is provided (i.e., the actual work or are covered under the Air Carrier Access areas: ‘‘the term ’wheelchair’ means a task performed by the service animal). Act, 49 U.S.C. 41705 et seq., and its device designed solely for use by a Another critical factor rests on the implementing regulations. 14 CFR 382.7 mobility-impaired person for severity of the individual’s impairment. et seq.; see also 68 FR 24874, 24877 locomotion, that is suitable for use in an For example, only individuals with (May 9, 2003) (discussing indoor pedestrian area.’’ 42 U.S.C. conditions that substantially limit them accommodation of service animals and 12207(c)(2). The Department believes in a major life activity currently qualify emotional support animals on air that while this definition is appropriate for coverage under the ADA, and only transportation), and that qualify as in the limited context of federal those individuals will qualify to use a ‘‘assistance animals’’ under the FHA, wilderness areas, it is not specific service animal. See 42 U.S.C. 12102(2) but do not qualify as ‘‘service animals’’ enough to provide clear guidance in the (defining disability); 28 CFR 36.104 under the ADA. array of settings covered by title III. (same). Major life activities include The other existing federal definition functions such as caring for oneself, ’’Video Interpreting Services’’ (VIS) of wheelchair that the Department performing manual tasks, walking, The Department has added a reviewed is in the Department of seeing, hearing, speaking, breathing, definition of ‘‘video interpreting Transportation regulation implementing learning, and working. Many Americans services (VIS),’’ a technology composed the transportation provisions under title have some type of physical or mental of a video phone, video monitors, II and title III of the ADA. The impairment (e.g., arthritis, anxiety, back cameras, a high-speed Internet Department of Transportation’s pain, imperfect vision, etc.), but connection, and an interpreter. The definition of wheelchair is ‘‘a mobility establishing a physical or mental video phone provides video aid belonging to any class of three- or disability also requires there to be a transmission to a video monitor that four-wheeled devices, usable indoors, substantial limitation of a major life permits the individual who is deaf or designed for and used by individuals activity. Traditionally, service dogs hard of hearing to view and sign to a with mobility disabilities, whether worked as guides for individuals who video interpreter (i.e., a live interpreter operated manually or powered.’’ 49 CFR were blind or had low vision. Since the in another location), who can see and 37.3. The Department has adopted much original regulations were promulgated, sign to the individual through a camera of the language from this definition.

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Under the proposed definition, Question 14: Are there better ways to covered facilities do not maintain wheelchairs include manually operated define different classes of mobility accessible routes. For example, the and power-driven wheelchairs and devices, such as the weight and size of accessible routes in offices or stores are mobility scooters. Mobility devices such the device that is used by the commonly obstructed by boxes, potted as golf cars, bicycles, and electronic Department of Transportation in the plants, display racks, or other items so personal assistance mobility devices definition of ‘‘common wheelchair’’? that the routes are inaccessible to people (EPAMDs) are inherently excluded from Question 15: Should the Department who use wheelchairs. Under the ADA, the proposed definition. Typically, the maintain the non-exhaustive list of the accessible route must be maintained devices covered under the proposed examples as the definitional approach and, therefore, these items are required definition are single-user, have three to to the term ‘‘manually powered mobility to be removed. If the items are placed four wheels, and are appropriate for aids’’? If so, please indicate whether there temporarily—for example, if an both indoor and outdoor pedestrian there are any other non-powered or office receives multiple boxes of areas. However, it could include a manually powered mobility devices that supplies and is moving them from the variety of types of wheelchairs and should be considered for specific hall to the storage room—then mobility scooters with individualized or inclusion in the definition, a description § 36.211(b) excuses such ‘‘isolated or unique features or models with different of those devices, and an explanation of temporary interruptions.’’ Other numbers of wheels. ‘‘Typical indoor and the reasons they should be included. common examples of features that must outdoor pedestrian areas’’ refer to Question 16: Should the Department be maintained, and often are not, are locations and surfaces used by and adopt a definition of the term platform lifts and elevators. Public intended for pedestrians, including ‘‘manually powered mobility aids’’? If accommodations must ensure that these sidewalks, paved paths, floors of so, please provide suggested language features are operable and, to meet this buildings, elevators, and other and an explanation of the reasons such requirement, regular servicing and circulation routes, but would not a definition would better serve the making repairs quickly will be include such areas as off-road bike public. necessary. paths, roads (except where allowed by The proposed regulation regarding The Department proposes to amend law or where a sidewalk is not mobility devices, including the rule by adding § 36.211(c) to address provided), freeways, or natural surfaces wheelchairs, is discussed below in the the discrete situation in which the such as beaches where there is not a section-by-section analysis for § 36.311. scoping requirements provided in the defined circulation route for proposed standards may reduce the Subpart B—General Requirements pedestrians. number of required elements below that The Department does not propose to Section 36.208 Direct Threat are required by the 1991 Standards. In define specific dimensions that qualify that discrete event, a public a device as a wheelchair. The The proposed regulation moves the definition of direct threat from accommodation may reduce such Department of Transportation’s accessible features in accordance with definition includes a subpart defining § 36.208(b) to the definitions section at § 36.104. This is an editorial change. the requirements in the proposed ‘‘common wheelchair’’ to provide standards. guidance for public transit authorities Consequently, § 36.208(c) would on which devices must be transported. become § 36.208(b) in the proposed Section 36.302 Modifications in A ‘‘common wheelchair’’ is a regulation. Policies, Practices, or Procedures wheelchair that ‘‘does not exceed 30 Section 36.211 Maintenance of Section 36.302(c) Service Animals inches in width and 48 inches in length accessible features measured two inches above the ground, The Department’s regulation now and does not weigh more than 600 The general rule regarding the states that ‘‘[g]enerally, a public pounds when occupied.’’ 49 CFR 37.3. maintenance of accessible features, accommodation shall modify policies, The narrower definition of ‘‘common which provides that a public practices, or procedures to permit the wheelchair’’ was developed with accommodation must maintain in use of a service animal by an individual reference to the requirements for lifts to operable working condition those with a disability.’’ 28 CFR 36.302(c)(1). establish parameters for the size and features of facilities and equipment that In general, the Department is proposing weight a lift can safely accommodate. are required to be readily accessible to to retain the scope of the current See 49 CFR part 37, App. D (2002). The and usable by qualified individuals with regulation while clarifying its Department does not believe it is disabilities, is unchanged. However, the longstanding policies and necessary to adopt stringent size and Department wishes to clarify its interpretations. weight requirements for wheelchairs. application and proposes one change to The Department is proposing to revise The Department requests public input the section. § 36.302(c) by adding the following on the proposed definition for The Department has noticed that sections as exceptions to the general ‘‘wheelchair.’’ some covered entities do not understand rule on access. Proposed § 36.302 Question 12: As explained above, the what is required by § 36.211, and it would: definition of ‘‘wheelchair’’ is intended to would like to take the opportunity 1. Expressly incorporate the be tailored so that it includes many presented by this NPRM to clarify. Department’s policy interpretations as styles of traditional wheeled mobility Section 36.211(a) broadly covers all outlined in published technical devices (e.g., wheelchairs and mobility features that are required to be assistance Commonly Asked Questions scooters). Does the definition appear to accessible under the ADA, from about Service Animals (1996) (http:// exclude some types of wheelchairs, accessible routes and elevators to roll-in www.ada.gov/qasrvc.htm) and ADA mobility scooters, or other traditional showers and signage. It is not sufficient Business Brief: Service Animals (2002) wheeled mobility devices? Please cite for a building or other feature to be built (http://www.ada.gov/svcanimb.htm) and specific examples if possible. in compliance with the ADA, only to be add that a public accommodation may Question 13: Should the Department blocked or changed later so that it is ask an individual with a disability to expand its definition of ‘‘wheelchair’’ to inaccessible. A common problem remove a service animal from the include Segways? observed by the Department is that premises if: (1) The animal is out of

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control and the animal’s owner does not members of the public are allowed to go; on the use of service animals in a take effective action to control it; (2) the and hospital setting. animal is not housebroken or the 7. Expressly incorporate the As required by the ADA, a healthcare animal’s presence or behavior Department’s policy interpretations as facility must permit a person with a fundamentally alters the nature of the outlined in published technical disability to be accompanied by his or service the public accommodation assistance Commonly Asked Questions her service animal in all areas of the provides (e.g., repeated barking during a about Service Animals (1996) (http:// facility in which that person would live performance); or (3) the animal www.ada.gov/qasrvc.htm) and ADA otherwise be allowed, with some poses a direct threat to the health or Business Brief: Service Animals (2002) exceptions. Zoonotic diseases can be safety of others that cannot be (http://www.ada.gov/svcanimb.htm) and transmitted to humans through trauma eliminated by reasonable modifications; add that a public accommodation must (bites, scratches, direct contact, 2. Add that if a place of public not require an individual with a arthropod vectors, or aerosols). accommodation properly excludes a disability to pay a fee or surcharge, post Although there is no evidence that most service animal, the public a deposit, or comply with requirements service animals pose a significant risk of accommodation must give the not generally applicable to other patrons transmitting infectious agents to individual with a disability the as a condition of permitting a service humans, animals can serve as a opportunity to obtain goods, services, or animal to accompany its handler in a reservoir for a significant number of accommodations without having the place of public accommodation, even if diseases that could potentially be service animal on the premises; such deposits are required for pets, and transmitted to humans in the healthcare 3. Add requirements that the work or that if a public accommodation setting. A service animal may tasks performed by a service animal normally charges its clients or accompany its owner to such areas as must be directly related to the handler’s customers for damage that they cause, a admissions and discharge offices, the disability; that a service animal that customer with a disability may be emergency room, inpatient and accompanies an individual with a charged for damage caused by his or her outpatient rooms, examining and disability into a place of public service animal. diagnostic rooms, clinics, rehabilitation These changes will respond to the accommodation must be individually therapy areas, the cafeteria and vending following concerns raised by trained to do work or perform a task, be areas, the pharmacy, rest rooms, and all individuals and organizations that housebroken, and be under the control other areas of the facility where visitors commented in response to the ANPRM. of its owner; and that a service animal are permitted, except those listed below. Proposed behavior or training Under the ADA, the only must have a harness, leash, or other standards. Some commenters proposed circumstances under which a person tether; behavior or training standards for the with a disability may not be entitled to 4. Modify the language in Department to adopt in its revised be accompanied by his or her service § 36.302(c)(2), which currently states, regulation, not only to remain in animal are those rare circumstances in ‘‘[n]othing in this part requires a public keeping with the requirement for which it has been determined that the accommodation to supervise or care for individual training, but also on the basis animal poses a direct threat to the a service animal,’’ to read, ‘‘[a] public that without training standards the health or safety of others. A direct threat accommodation is not responsible for public has no way to differentiate is defined as a significant risk to the caring for or supervising a service between untrained pets and service health or safety of others that cannot be animal,’’ and relocate this provision to animals. Because of the variety of eliminated or mitigated by a proposed § 36.302(c)(5). (This proposed individual training that a service animal modification of policies, practices, or language does not require that the can receive—from formal licensing at an procedures. Based on CDC guidance, it person with a disability care for his or academy to individual training on how is generally appropriate to exclude a her service animal if care can be to respond to the onset of medical service animal from areas that require a provided by a family member, friend, conditions, such as seizures—the protected environment, including attendant, volunteer, or anyone acting Department is not inclined to establish operating rooms, holding and recovery on behalf of the person with a a standard that all service animals must areas, labor and delivery suites, disability.); meet. While the Department does not newborn intensive care nurseries, and 5. Expressly incorporate the plan to change the current policy of no sterile processing departments. See Department’s policy interpretations as formal training or certification Centers for Disease Control, Guidelines outlined in published technical requirements, some of the behavioral for Environmental Infection Control in assistance Commonly Asked Questions standards that it has proposed actually Health-Care Facilities: about Service Animals (1996) (http:// relate to suitability for public access, Recommendations of CDC and the www.ada.gov/qasrvc.htm) and ADA such as being housebroken and under Healthcare Infection Control Practices Business Brief: Service Animals (2002) the control of its handler. Advisory Committee (June 2003), (http://www.ada.gov/svcanimb.htm) Hospital and healthcare settings. available at http://www.cdc.gov/mmwr/ that a public accommodation must not Public accommodations, including preview/mmwrhtml/rr5210a1.htm. ask about the nature or extent of a hospitals, must modify policies, person’s disability, nor require proof of practices, or procedures to permit the Section 36.302(e) Hotel Reservations service animal certification or licensing, use of a service animal by an individual Each year, the Department receives but that a public accommodation may with a disability. 28 CFR 36.302(c)(1). many complaints about failed ask: (i) If the animal is required because The exception to this requirement is if reservations. Most of these complaints of a disability; and (ii) what work or making the modification would involve individuals who have reserved tasks the animal has been trained to fundamentally alter the nature of the an accessible hotel room only to perform; goods, services, facilities, privileges, discover upon arrival that the room they 6. Add that individuals with advantages, or accommodations. Id. at reserved is either not available or not disabilities who are accompanied by 36.302(a). The Department generally accessible. Although reservations service animals may access all areas of follows the guidance of the Centers for services were not addressed in the a public accommodation where Disease Control and Prevention (CDC) ANPRM, commenters noted the ongoing

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problem with hotel reservations and In older facilities subject to barrier Hold and release of accessible guest urged the Department to provide removal, strict compliance with the rooms and third-party reservations. regulatory guidance on the issue. 1991 Standards is not required. Public With respect to the hold and release of The reservations policies, practices, accommodations must remove barriers accessible guest rooms, the Department and procedures of public to the extent that it is readily achievable has addressed this issue in settlement accommodations are subject to title III’s to do so. Individuals with disabilities agreements and recognizes that current general and specific nondiscrimination must be able to ascertain which practices vary widely. As in the provisions. See 42 U.S.C. 12182; 28 CFR features—in new and existing ticketing context, regulating in the area 36.302. With this NPRM, the buildings—are included in the hotel’s of hotel reservations involves Department proposes to address hotel accessible guest rooms. The presence or complicated issues, such as guest room reservations within its regulation on absence of particular accessible features dispersion and variable pricing. The modifications to policies, practices, and may be the difference between a room Department is concerned about current procedures. See 28 CFR 36.302. that is usable by a person with a practices by which accessible guest The proposed rule is based on disability and one that is not. rooms are released to the general public straightforward nondiscrimination Information about the availability and even though the hotel is not sold out. In principles: individuals with disabilities nature of accessible features will such instances, individuals with should be able to reserve hotel rooms minimize the risk that individuals with disabilities may be denied an equal with the same efficiency, immediacy, disabilities will reserve a room that is opportunity to benefit from the services and convenience as those who do not not what was expected or needed. offered by the public accommodation, need accessible guest rooms. Currently, Guarantees of accessible guest room i.e., a hotel guest room. this simple premise appears more often reservations. Section 36.302(e)(3) The Department also recognizes that to be the exception than the rule. provides that a public accommodation the proposed rule does not reach all General rule on reservations. The that owns, operates, leases (or leases to) public accommodations that are Department’s proposed § 36.302(e)(1) a place of lodging shall guarantee engaged in the business of providing states the general rule that a public accessible guest rooms that are reserved hotel reservations. As discussed above, accommodation that owns, leases (or through a reservations service to the the rule reaches public accommodations leases to), or operates a place of lodging same extent that it guarantees rooms that own, lease (or lease to), or operate shall modify its policies, practices, and a place of lodging. It does not reach an procedures to ensure that individuals that are not accessible. The Department recognizes that not all reservations are entity that, for example, owns or with disabilities can make reservations operates a travel agency, while the for accessible guest rooms in the same guaranteed and the proposed rule does not impose an affirmative duty to do so. agency or service is independent of any way as others (i.e., during the same place of lodging. Public When a public accommodation typically hours and in the same manner as accommodations that own, lease (or guarantees hotel reservations (absent individuals who do not need accessible lease to), or operate places of lodging are unforeseen circumstances), it must rooms). required to provide the information provide the same guarantee for Reservations can be made in many prescribed by the proposed rule to third accessible guest rooms. Because the different ways—in person, on the parties like travel agencies, but the third Department is aware that reservation phone, directly with the hotel, with a parties are not, independently, liable. At guarantees take many different forms parent company, or through a travel this juncture, the Department seeks (e.g., an upgrade within the same hotel agency. The proposed rule is meant to comment from individuals, businesses, or a comparable room in another hotel), reach any public accommodation that and advocacy groups as to whether such owns, leases (or leases to), or operates the Department seeks comment on the entities should be required to identify a place of lodging, and is not limited to current practices of hotels and third and describe accessible features in hotel a hotel’s operation of its own party reservations services with respect rooms available through their services, reservations service. Thus, the rule to ‘‘guaranteed’’ hotel reservations and and whether such entities should be would apply equally to corporations the impact of requiring a public subject to the guarantee obligations set that own one or more hotel chains and accommodation to guarantee accessible out in proposed § 36.302(e)(2) and provide a system by which prospective rooms to the extent it guarantees other § 36.302(e)(3). customers can reserve guest rooms, as rooms. Question 18: What are the current well as to franchisors that provide Question 17: What are the current practices of hotels and third-party reservation services. All covered entities practices of hotels and third party reservations services with respect to (1) must modify their policies and practices reservations services with respect to holding accessible rooms for individuals to ensure parity in reservations policies ‘‘guaranteed’’ hotel reservations? What with disabilities and (2) releasing between those who need accessible are the practical effects of requiring a accessible rooms to individuals without rooms and those who do not. public accommodation to guarantee disabilities? What factors are considered Identification of accessible guest accessible guest rooms to the same in making these determinations? Should rooms. Proposed § 36.302(e)(2) states extent that it guarantees other rooms? public accommodations be required to that hotel reservations services must Finally, although not included in the hold one or more accessible rooms until identify and describe the accessible proposed regulation as currently all other rooms are rented, so that the features in the hotels and guest rooms. drafted, the Department is seeking accessible rooms would be the last This requirement is integral to ensuring comment on whether additional rooms rented? that individuals with disabilities receive regulatory guidance is needed on the Question 19: Should a public the information they need to benefit policies, practices, and procedures by accommodation that does not itself from the services offered by the place of which public accommodations hold and own, lease (or lease to), or operate a lodging. As a practical matter, a public release accessible hotel guest rooms, place of lodging but nevertheless accommodation’s designation of a guest and whether third party travel agents provides reservations services, including room as ‘‘accessible’’ will not should be subject to the requirements reservations for places of lodging, be necessarily ensure that the room set out in § 36.302(e)(2) and § 36.302 subject to the requirements of proposed complies with all of the 1991 Standards. (e)(3). § 36.302(e)(2) and (e)(3)?

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Section 36.302(f) Ticketing aspects or applications of title III to accommodations, multiple inventories The ticketing policies and practices of ticketing issues. Moreover, the rule may be required to account for different public accommodations are subject to applies only to the sale or distribution uses of the facility because the locations title III’s general and specific of tickets that are sold or distributed on of accessible seating may change in an discrimination provisions. See 42 U.S.C. a preassigned basis. Tickets sold for arena depending on whether it is used 12182; 28 CFR 36.302. Through the most motion pictures, for example, for a hockey game, a basketball game, or investigation of complaints, its would not be affected by the proposed a concert. The proposed rule further enforcement actions, and public rule. requires that the facility identify the Because this rule addresses ticketing comments related to ticketing, the accessible seating on publicly available policies and practices for stadiums, seating charts. This transparency will Department is aware of the need to arenas, theaters, and other facilities in facilitate the accurate sale of accessible provide regulatory guidance to entities which entertainment and sporting seating. involved in the sale or distribution of events are held, its provisions are Proposed § 36.302(f)(4) requires tickets. With this NPRM, the related to and informed by those in public accommodations to provide Department proposes to include a proposed § 36.308 (discussed below in individuals with disabilities with section on ticketing within the the section-by-section analysis of accurate information about the location regulation on modifications to policies, § 36.308), which covers seating in of accessible seating. The proposed rule practices, and procedures. See 28 CFR assembly areas. Section 221 of the specifically prohibits the practice of 36.302. proposed standards reduces the scoping ‘‘steering’’ individuals with disabilities In response to the ANPRM, requirements for accessible seating in to certain wheelchair spaces so that the individuals with disabilities and related assembly areas. After the proposed facility can maximize potential ticket advocacy groups commented that the standards are finalized, the scoping sales for other unsold wheelchair reduced requirements for accessible reduction will apply to all public spaces. seating in assembly areas underscored accommodations. See proposed 28 CFR Season tickets and multiple event the need for clarification from the 36.211(c). sales. Proposed § 36.302(f)(5) addresses Department on ticketing related issues. Ticket distribution methods. Section the sale of season tickets and other One disability advocacy group asserted, 36.302(f)(1) states the general rule that tickets for multiple events. The that in order to guarantee equal access a public accommodation shall modify proposed rule provides that public to assembly areas for people with its policies, practices, and procedures to accommodations must sell season disabilities, it is necessary to provide ensure that individuals with disabilities tickets or tickets for multiple events for complementary design standards, sales can purchase single or multi-event accessible seating in the same manner policies, and operational procedures. tickets for accessible seating in the same that such tickets are sold to those The Department agrees that more way as others, i.e., during the same purchasing general seating. The rule explicit regulation is needed to ensure hours and through the same distribution also states that spectators purchasing that individuals with disabilities are not methods as other seating is sold. Tickets tickets for accessible seating on a multi- improperly denied access to events can be purchased in many different event basis shall be permitted to transfer because of discriminatory procedures ways: in person or on the phone, tickets for single-event use by friends or for the sale of wheelchair spaces. The directly through the venue, or through associates in the same fashion and to the Department’s enforcement actions have a third-party company. The proposed same extent as other spectators holding demonstrated that some venue rule makes clear that it is meant to reach tickets for the same type of ticketing operators, ticket sellers and distributors all public accommodations that provide plan. A facility must provide a portable are not properly implementing title III’s a service by which individuals can seat for the transferee to use, if nondiscrimination provisions. purchase event tickets, and is not necessary. The Department has entered into limited to a venue’s operation of its own Secondary market ticket sales. The agreements addressing problems with ticketing systems. Department is aware that the proposed ticketing sales and distribution by The Department has received rule may represent a significant change requiring specific modifications to numerous complaints from individuals in practice for many public ticketing policies. While these who were denied the opportunity to accommodations with respect to negotiated settlement agreements and acquire tickets for accessible seats ‘‘secondary market’’ ticket sales. consent decrees rest on fundamental through avenues such as ticketing Because the secondary market is a nondiscrimination principles, they presales, promotions, lotteries, or recognized—and often integral—part of represent solutions tailored to specific waitlists. The proposed rule, at the ticketing distribution system for facilities. The Department believes that § 36.302(f)(2), makes clear that public many venues and activities, individuals guidance in this area is needed, but also accommodations must include with disabilities will be denied an equal recognizes that ticketing practices and accessible seating in all stages of the opportunity to benefit from the goods policies vary with venue size and event ticketing process, including presales, offered—attendance at an event—if type, and that a ‘‘one-size-fits-all’’ promotions, lotteries, or waitlists. public accommodations have no approach may be unrealistic. Identification of available accessible obligations with respect to accessible The proposed rule clarifies the seating. Section 36.302(f)(3) of the seating bought or sold in this way. In application of title III with respect to proposed rule requires a facility to conjunction with the proposed rule, the ticketing issues in certain contexts, and identify available accessible seating. In Department seeks comment about is intended to strike a balance between the Department’s investigations of public accommodations’ current a covered entity’s desire to maximize theaters and stadiums, the Department practices with respect to the secondary ticket sales and the rights of individuals has discovered that many facilities lack market for tickets, and the anticipated with disabilities to attend events in an accurate inventory of the accessible impact of the proposed rule on different assembly areas in a manner that is equal seating in their venues, and that this types of facilities or events. to that afforded to individuals without information gap results in lost Question 20: If an individual resells a disabilities. The proposed rule does not, opportunities for patrons who need ticket for accessible seating to someone however, purport to cover or clarify all accessible seating. For some public who does not need accessible seating,

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should the secondary purchaser be accessible seats in a specific price range seating, increase the potential for the required to move if the space is needed if all other seats in that price range were fraudulent purchase of accessible seats for someone with a disability? sold out. For example, if all $50 seats by those who do not need them. The Question 21: Are there particular were sold, regardless of their location, Department continues to believe that concerns about the obligation imposed the unsold $50 accessible seats may be requiring an individual to provide proof by the proposed rule, in which a public released for sale to the general public. that he or she is a person with a accommodation must provide accessible Question 22: Although not included disability is an unnecessary and seating, including a wheelchair space in the proposed regulation, the burdensome invasion of privacy and where needed, to an individual with a Department is soliciting comment on may unfairly deter individuals with disability who purchases an whether additional regulatory guidance disabilities who seek to purchase tickets ‘‘inaccessible’’ seat through the is required or appropriate in terms of a to an event. secondary market? more detailed or set schedule for the Notwithstanding this position, the Release of unsold accessible seats. release of tickets in conjunction with the proposed rule at § 36.302(f)(8) permits Proposed § 36.302(f)(6) provides three approaches described above. For public accommodations to take certain regulatory guidance regarding the example, does the proposed regulation steps to address potential ticket fraud. A release of unsold accessible seats. address the variable needs of assembly covered entity may inquire at the time Through its investigations, the areas covered by the ADA? Is additional of the ticket purchase whether the Department has become familiar with regulatory guidance required to wheelchair space is for someone who the problem of designated accessible eliminate discriminatory policies, uses a wheelchair. For season or seating being sold to the general public practices, and procedures related to the subscription tickets, a facility may before people who need accessible sale, hold, and release of accessible require the purchaser to attest in writing seating buy tickets. As a result, seating? What considerations should that the wheelchair space is for someone individuals who need to use the appropriately inform the determination who uses a wheelchair. However, the accessible seating cannot attend the of when unsold accessible seating can proposed rule preserves the right of an event. be released to the general public? individual with a disability to transfer The Department has entered into Ticket pricing. Section 36.302(f)(7) of his or her ticket for individual events agreements addressing this problem by the proposed rule addresses ticket and clarifies that the intermittent use of requiring specific modifications to pricing. The proposed rule codifies the the wheelchair space by a person who ticketing policies. The Department Department’s longstanding policy that does not use a wheelchair does not believes that guidance in this area is public accommodations cannot impose constitute fraud. needed, but also recognizes that a surcharge for wheelchair spaces. Purchase of multiple tickets. The ticketing practices and policies vary Accessible seating must be made Department has received numerous with venue size and event type, and that available at all price levels for an event. complaints that public accommodations a ‘‘one-size-fits-all’’ approach may be If an existing facility has barriers to are unfairly restricting the number of unrealistic. These options provide accessible seating at a particular price tickets that can be purchased by flexibility so that ticketing policies can level for an event, then a percentage individuals with disabilities. Many be adjusted according to the venue size (determined by the ratio of the total public accommodations limit the and event type. number of seats at that price level to the number of tickets an individual with a Facility sell-out. Proposed total number of seats in the assembly disability may purchase, requiring the § 36.302(f)(6)(i) allows for the release of area) of the number of accessible seats individual to purchase no more than unsold accessible seating once standard must be provided at that price level in two tickets (for himself or herself and a seats in the facility have been sold, but an accessible location. In no case shall companion), while other patrons have luxury boxes, club boxes, or suites are the price of any particular accessible significantly higher purchase limits (if not required to be sold out before the seat exceed the price that would any). This is particularly unfair for remaining accessible seats are released. ordinarily be charged for an inaccessible families, friends, or other groups larger To implement this option, the release of seat in that location. For example, many than two that include a person who unsold accessible seating should be theaters built prior to the passage of the requires accessible seating. If the ticket done according to an established, ADA have balconies that are number is limited, the result for written schedule. Blocks of seats should inaccessible to people who use wheelchair users is that parents and be released in stages, and should wheelchairs, and the only wheelchair children, friends, classmates, and others include tickets in a range of price spaces are located in the orchestra level are separated. Section 36.302(f)(9) categories and locations that is in which tickets are more expensive. If clarifies the application of title III to representative of the range of seating a comparably sized balcony in a theater ameliorate such a situation. that remains available to other patrons. built under the ADA ’s new There are various ways that covered Sell-outs in specific seating areas. construction standards would have two entities can accommodate groups that Under the second contingency, wheelchair spaces, the existing theater require at least one wheelchair space. proposed § 36.302(f)(6)(ii), a facility must sell two orchestra wheelchair The proposed regulation permits up to could release unsold accessible seating spaces at the balcony price on a first three companions to sit in a designated in a specific seating area if all of the come, first served basis. wheelchair area, platform, or cross-over standard seats in that location were sold Fraudulent purchase of designated aisle that is designated as a wheelchair out. For example, if all seats in the accessible seating. The Department has area, even if the number of companions orchestra level are sold, the unsold received numerous comments regarding outnumbers the individuals requiring a accessible seats in the orchestra level fraudulent attempts to purchase wheelchair space. For example, a parent could be released for sale to the general wheelchair spaces for patrons other than who uses a wheelchair could attend a public. those who use wheelchairs. Moreover, concert with his or her spouse and their Sell-outs in specific price ranges. The the Department recognizes that the two children who do not use third approach described at proposed implementation of some of its wheelchairs, and all four could sit § 36.302(f)(6)(iii) permits a public proposals, such as those relating to the together in the wheelchair area. The accommodation to release unsold public identification of accessible Department recognizes that some

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advocates may object to this use of propose amendments based on while awaiting the arrival of an designated wheelchair areas because it technological advances and interpreter. will reduce the amount of accessible breakthroughs in the area of auxiliary In § 36.303(b)(2), the Department seating available for those who need it. aids and services since the original proposes to insert additional examples On balance, however, the Department regulation was published more than of auxiliary aids and services for believes that the opportunity to sit with sixteen years ago. The Department is individuals who are blind or have low family and friends, as other patrons do, proposing to add video interpreting vision. The preamble to the 1991 title III is an integral element of the experience services (VIS) to the regulatory text and regulation makes clear that the original of attending a ticketed event, and it is is discussing in this preamble options list was illustrative and that ‘‘additional an element that is often denied to for addressing captioning and narrative examples such as signage or mapping, individuals with disabilities. description. audio description services, secondary By limiting the number of tickets that Several types of auxiliary aids that auditory programs (SAP), telebraillers, can be purchased under this provision have become more readily available and reading machines * * * may be to four, the Department seeks a balance have been added to § 36.303. The considered appropriate auxiliary aids by which groups and families can be Department has added a new technology and services.’’ 56 FR 35544, 35566. accommodated while still leaving ample in § 36.303(b)(1), video interpreting Because technological advances in the space for other individuals who use services (VIS), which consists of a video seventeen years since the ADA was wheelchairs. The Department seeks phone, video monitors, cameras, a high- enacted have increased the range of comments from individuals, business speed Internet connection, and an auxiliary aids and services for those entities, and advocacy organizations on interpreter. The video phone provides who are blind or have low vision, the whether the proposed rule will video transmission to a video monitor Department has added additional appropriately effectuate the integration that permits the individual who is deaf examples, including brailled displays, and nondiscrimination principles or hard of hearing to view and sign to screen reader software, magnification underlying the rule. a video interpreter (i.e., a live software, optical readers, secondary Question 23: Is the proposed rule interpreter in another location), who can auditory programs (SAP), and accessible regarding the number of tickets that a see and sign to the individual through electronic and information technology. public accommodation must permit The Department proposes replacing a camera located on or near the monitor, individuals who use wheelchairs to the term ‘‘telecommunications devices while others can communicate by purchase sufficient to effectuate the for deaf persons (TDD’s)’’ with ‘‘text speaking. The video monitor can integration of wheelchair users with telephones (TTYs)’’ in § 36.303(b)(1). display a split screen of two live images, others? If not, please provide Although ‘‘TDD’’ is the term used in the the interpreter in one image and the suggestions for achieving the same ADA, ‘‘TTY’’ has become the commonly result with regard to individual and individual who is deaf or hard of accepted term and is consistent with the group ticket sales. hearing in the other image. VIS can terminology used by the Access Board Group ticket sales. Group ticket sales provide immediate, effective access to in the 2004 ADAAG. Second, the present another area in which the interpreting services seven days a week, Department has inserted in Department believes additional twenty-four hours a day by allowing § 36.303(d)(2) additional types of regulatory guidance is appropriate. The people in different locations to engage auxiliary aids and services that can purpose of the proposed rule is to in live, face-to-face communications. effectively provide telephone prevent the current practice of Moreover, VIS is particularly helpful communication for individuals who are separating groups in a way that isolates when qualified interpreters are not deaf or hard of hearing. Two of the or segregates those in the group who readily available (e.g., for quick auxiliary aids now included—public require wheelchair seating. For group responses to emergency hospital visits, telephones equipped with volume sales, if a group includes one or more in areas with an insufficient number of control mechanisms and hearing aid- individuals who use a wheelchair, the qualified interpreters to meet demand, compatible telephones—are designed proposed rule requires the facility to and in rural areas where distances and for individuals who are hard of hearing. place that group in a seating area that an interpreter’s travel time present The third added auxiliary aid or service includes wheelchair spaces so that, if obstacles). is VIS, which is an alternative designed possible, the group can sit together. If it For purposes of clarification, the for individuals who are deaf. A public is necessary to divide the group, it Department proposes to add to accommodation need not provide all of should be divided so that the § 36.303(b)(1) the exchange of written these auxiliary aids and services, but individuals in the group who use notes as an example of an auxiliary aid should offer those needed to provide wheelchairs are not isolated from the or service. This common-sense example effective communication. group. In existing facilities that lack is a codification of the Department’s Companions. The Department’s accessible seating in certain areas (e.g., longstanding policy with regard to title proposed language for § 36.303(c) a theater with an inaccessible balcony) III entities, and was included in the imposes no new obligations on places of the proposed regulation requires preamble to the original regulation. See public accommodation. The first covered entities to seat at least three 56 FR 35544, 35566 (July 26, 1991). This sentence of § 36.303(c)(1) adds the companions with the individual using a additional example of an appropriate phrase ‘‘and their companions,’’ so that wheelchair in the accessible seating area auxiliary aid or service was inserted the sentence now reads: ‘‘A public of the orchestra. because many entities do not realize accommodation shall furnish that this easy and efficient means is appropriate auxiliary aids and services Section 36.303 Auxiliary Aids and available to them. While the exchange of where necessary to ensure effective Services written notes is inappropriate for communication with individuals with Captioning, narrative description, and lengthy or complicated disabilities and their companions who video interpreting services. The communications, it can be appropriate are individuals with disabilities.’’ A Department is proposing changes to for situations such as routine purchases new § 36.303(c)(1)(i) defines § 36.303 in order to codify its in a department store or at a sports ‘‘companion’’ as ‘‘a family member, longstanding policies in this area, and to arena, or as a means of communication friend, or associate of a program

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participant who, along with the companions with disabilities. The Limited instances in which an participant, is an appropriate person Department has encountered confusion accompanying individual may interpret. with whom the public accommodation and reluctance by medical care Section 36.303(c)(3) codifies the should communicate.’’ Section providers regarding the scope of their Department’s policy that there are very 36.303(c)(1)(ii) advises that public obligation with respect to such limited instances when a public accommodations should be aware that companions. Effective communication accommodation may rely on an the method of communication used by with a companion with a disability is accompanying individual to interpret or the individual and the nature, length, necessary in a variety of circumstances. facilitate communication: (1) In an and complexity of the communication For example, a companion may be emergency involving a threat to public involved are factors to be considered by legally authorized to make health care safety or welfare; or (2) if the individual the public accommodation in decisions on behalf of the patient or with a disability specifically requests it, determining what type of auxiliary aid may need to help the patient with the accompanying individual agrees to or service is necessary. See, e.g., information or instructions given by provide the assistance, and reliance on Department of Justice, The Americans hospital personnel. In addition, a that individual for this assistance is with Disabilities Act, Title III Technical companion may be the patient’s next of appropriate under the circumstances. In Assistance Manual, Covering Public kin or health care surrogate with whom such instances, the public Accommodations and Commercial hospital personnel communicate accommodation is still required to offer Facilities (Title III TA Manual), III– concerning the patient’s medical to provide an interpreter free of charge. 4.300, available at http://www.ada.gov/ condition. Moreover, a companion In no circumstances should a child be taman3.html. For example, an could be designated by the patient to used to facilitate communication with a individual with a disability who is deaf communicate with hospital personnel parent about a sensitive matter. The or hard of hearing may need a qualified about the patient’s symptoms, needs, Department has produced a video and interpreter to discuss with hospital condition, or medical history. It has several publications that explain this personnel a diagnosis, procedures, tests, been the Department’s longstanding and other ADA obligations in law treatment options, surgery, or prescribed position that public accommodations enforcement settings. They may be medication (e.g., dosage, side effects, are required to provide effective viewed at http://www.ada.gov or drug interactions, etc.). In comparison, communication to companions when ordered from the ADA Information Line an individual who is deaf or hard of they accompany patients to medical (800–514–0301 (voice) or 800–514–0383 hearing who purchases an item in the care providers for treatment. (TTY)). hospital gift shop may only need an Consultation on auxiliary aid or Public accommodations must be exchange of written notes to achieve service. A public accommodation aware that considerations of privacy, effective communication. should consult with the individual with confidentiality, emotional involvement, The Department is proposing to add a disability, wherever possible, to and other factors may adversely affect companions to the scope of coverage of determine what auxiliary aid or service the ability of family members or friends § 36.303 to emphasize that the ADA would provide effective to facilitate communication. In addition, applies in some instances in which a communication. In many cases, more the Department stresses that privacy and public accommodation needs to than one auxiliary aid or service will confidentiality must be maintained. We communicate with a family member, provide effective communication, and note that covered entities, such as friend, or associate of the program the individual with a disability can hospitals, that are subject to the Privacy participant in order to provide its provide invaluable information as to Rules, 45 CFR parts 160, 162, and 164, services. Examples of such situations what auxiliary aids are effective. For of the Health Insurance Portability and include when a school communicates example, it could be difficult to provide Accountability Act of 1996 (HIPAA), with the parent of a child during a effective communication using written Public Law 104–191, are permitted to parent-teacher meeting or in a life- notes involving someone with a disclose to a patient’s relative, close threatening situation, when a hospital developmental disability or in severe friend, or any other person identified by needs to communicate with an injured pain, or if a public accommodation were the patient (such as an interpreter) person’s companion to obtain necessary to provide a qualified ASL interpreter, relevant patient information if the information. In such situations, if the when an individual needs an oral patient agrees to such disclosures. The companion is deaf or hard of hearing, interpreter instead. Both examples agreement need not be in writing. blind, has low vision, or has a disability illustrate the importance of consulting Covered entities should consult the that affects his or her speech, it is the with the individual with a disability. HIPAA Privacy Rules regarding other public accommodation’s responsibility Proposed § 36.303(c)(2) states that a ways disclosures might be able to be to provide appropriate auxiliary aid or public accommodation shall not require made to such persons. service to communicate effectively with an individual with a disability to bring Telecommunications. The Department the companion. Where communication another individual to interpret for him is proposing to reorganize § 36.303(d) with a companion is necessary to serve or her. The Department is adding this and make several substantive changes the interests of a person who is language to emphasize that when a that reflect changing terminology and participating in a public public accommodation is interacting technology. accommodation’s services, programs, or with a person with a disability, it is the The heading ‘‘Telecommunications activities, effective communication must public accommodation’s responsibility devices for the deaf (TDDs)’’ currently at be assured. to provide an interpreter to ensure that § 36.303(d) is replaced by the broader Companions in health care settings. the communication is as effective as its heading ‘‘Telecommunications.’’ Effective communication is particularly communications with others. It is not Paragraph (d)(1) is retitled, critical in health care settings where appropriate to require the person with a ‘‘Telephones’’ and altered to address miscommunication may lead to disability to bring another individual to situations in which a public misdiagnosis and improper or delayed provide such services or, when an accommodation must provide an medical treatment. Under the ADA, accompanying individual is present, to effective means to communicate by hospitals must provide effective means expect that individual to provide such telephone for individuals with of communication for patients and their services. disabilities, including the use of

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automated attendant systems, which are There are downsides to VIS, such as acknowledging that closed captions may electronic, automated systems and that frozen images on the screen, or when an be an effective auxiliary aid and service are a common method for answering individual is in a medical care facility for making aurally delivered and directing incoming calls to places of and is limited in moving his or her information available to individuals public accommodation. The Department head, hands, or arms. Another downside who are deaf or hard of hearing. See has become aware that individuals with is that the camera may mistakenly focus H.R. Rep. No. 101–485 (II), at 108 disabilities who use TTYs or on an individual’s head, which makes (1990), reprinted in 1990 U.S.C.C.A.N. telecommunications relay services— communication difficult or impossible. at 303, 391. In addition, Congress stated primarily those who are deaf or hard of In addition, the accompanying audio that ‘‘technological advances can be hearing or who have speech-related transmission might be choppy or expected to further enhance options for impairments—have been unable to use garbled, making spoken communication making meaningful and effective automated attendant systems because unintelligible. Lastly, the Department is opportunities available to individuals they are not compatible with TTYs or aware of complaints that some public with disabilities. Such advances may telecommunications relay services. accommodations have difficulty setting require public accommodations to Automated attendant systems often up and operating VIS, because staff have provide auxiliary aids and services in disconnect before the individual using not been appropriately trained. the future which today would not be one of these calling methods can To address these potential problems, required because they would be held to complete the communication. The the Department is proposing the impose undue burdens on such Department, therefore, proposes a new inclusion of four performance standards entities.’’ Id. § 36.303(d)(1)(i) that requires that for VIS to ensure effective Similarly, in 1991, the Department individuals using telecommunications communication: (1) High quality, clear, stated that ‘‘[m]ovie theaters are not relay services or TTYs must be able to real-time, full-motion video and audio required * * * to present open- connect to and use effectively any over a dedicated high-speed Internet captioned films,’’ but was silent as to automated attendant system used by a connection; (2) a clear, sufficiently closed captioning. 56 FR 35544, 35567 public accommodation. large, and sharply delineated picture of (July 26, 1991). The Department also The Department declined to address the participant’s heads, arms, hands, noted, however, that ‘‘other public this issue in the 1991 regulations and fingers, regardless of his or her body accommodations that impart verbal because it believed that it was more position; (3) clear transmission of information through soundtracks on appropriate for the Federal voices; and (4) nontechnicians who are films, video tapes, or slide shows are Communications Commission (FCC) to trained to set up and operate VIS required to make such information address this in its rulemaking under quickly. accessible to persons with hearing Finally, the changes enumerated impairments. Captioning is one means title IV of the ADA. See 56 FR 35544, above result in the current § 36.303(f), to make the information accessible to 35567 (July 26, 1991). Because the FCC ‘‘Alternatives,’’ being moved to individuals with disabilities.’’ Id. The has since raised this concern with the § 36.303(h). Department cited in its regulation ‘‘open Department and requested that the Captioning at movie theaters. The and closed captioning,’’ as examples of Department address it, it is now Department is considering options auxiliary aids and services. 28 CFR appropriate to raise this issue in the title under which it might require that movie 36.303(b)(1). III regulation. theater owners and operators exhibit Captioning makes films accessible to As mentioned above in the discussion movies that are captioned for patrons individuals whose hearing is too limited of § 36.303(b), the Department is who are deaf or hard of hearing. Both to benefit from assistive listening replacing the term ‘‘telecommunications open and closed captioning are devices. Technological advances since devices for the deaf (TDDs)’’ wherever it examples of auxiliary aids and services the early 1990s have made open and occurs throughout the proposed under the Department’s regulation. 28 closed captioning for movies more regulation with the term ‘‘text CFR 36.303(b)(1). Open captions are readily available and effective. Movie telephones (TTYs).’’ Thus, similar to subtitles in that the text is theater owners generally do not pay for § 36.303(d)(2) is entitled, ‘‘Text visible to everyone in the theater, while open movie captions; rather, the cost telephones (TTY),’’ and where ‘‘TDD’’ is closed captioning displays the written generally is absorbed by the movie used in this portion, it is replaced by text of the audio only to those studios. Originally, the captions had to ‘‘TTY.’’ Aside from these updates to individuals who request it. The ADA be burned onto select film prints, which terminology and adjustments to the itself contains no explicit language would be distributed to theaters around section numbering, proposed regarding captioning in movie theaters, the country. These prints usually were § 36.303(d)(2) is unchanged but the legislative history of title III not captioned and distributed at the substantively from current § 36.303(d). states that, ‘‘[o]pen-captioning * * * of same time the movie was released to the Video interpreting services. Section feature films playing in movie theaters, general public, but only after a film had 36.303(f) has been added to establish is not required by this legislation. Film experienced some commercial success. performance standards for video makers, are, however, encouraged to This technology has evolved, however, interpreting services (VIS), a system the produce and distribute open-captioned and burning captions onto individual Department recognizes as a means to versions of films and theaters are film prints is no longer necessary. Due provide qualified interpreters quickly encouraged to have at least some pre- to advances in digital technology, and easily. VIS also has economic announced screenings of a captioned captions can be turned on or off in advantages, is readily available, and version of feature films.’’ H.R. Rep. No. digital format without having to use a because of advances in video 101–485 (II), at 108 (1990), reprinted in separate film print with the hard technology, can provide a high quality 1990 U.S.C.C.A.N. 303, 389–91; S. Rep. captions burned on. As a result, interpreting experience. Circumventing No. 101–116 at 64 (1989). Congress was captions can be superimposed onto the the difficulty of providing live silent, however, on the question of film at theaters. In addition, digital interpreters quickly, more public closed captioning in movie theaters, a projection systems send all captions and accommodations are providing qualified technology not yet developed at that audio to the theaters on a hard disk or interpreters via VIS. time for first run movies, while via satellite, and a digital projector is

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used to display the movie. While movie defendant because of plaintiffs’ inability Question 24: Should the Department theater owners need to purchase to rebut defendants’ claims that require that, one year after the effective expensive projectors in order to display providing a specific type of closed date of this regulation, public digital movies, the Department captioning constituted an undue accommodations exhibit all new movies understands that movie theater burden). The judge in the Ball case cited in captioned format at every showing? Is operators are moving to digital film and legislative history for the proposition it more appropriate to require are entering into creative agreements to that captioning may be required, noting captioning less frequently? Should the help finance the projectors. Open that technological advances may requirement for captioning be tied to the captioning can now be done before a ‘‘require public accommodations to conversion of movies from film to the movie is released to the public. provide auxiliary aids and services in use of a digital format? Please include Closed captioning displays the the future which today would not be specifics regarding how frequently written text of the audio only to those required’’ and that the type of captioning should be provided. individuals who request captioning. accommodation and services provided Narrative description. The With some closed captioning systems, * * * [under the ADA] should ‘‘keep Department is also considering options the captions are displayed on the back pace with the rapidly changing under which it might require that movie wall of the theater as the movie is technology of the times.’’ 246 F. Supp. theater owners and operators exhibit shown on the movie screen and 2d at 22 (citing H.R. Rep. No. 101– movies with narrative descriptions, reflected onto portable devices at the 485(II) at 108). which enable individuals who are blind seats of patrons who are deaf or hard of Several state Attorney General Offices or have low vision to enjoy movies by hearing. Another system involves around the country have begun providing a spoken interpretation of key captioning that the patron receives negotiating agreements and, in some visual elements of a movie, such as through electronic devices, such as instances, initiating lawsuits to ensure actions, settings, facial expressions, personal digital assistants (PDAs), using that movie theater owners and operators costumes, and scene changes. The mobile wireless technology. The provide captioning at certain movie descriptions are narrated and recorded individual wears a pair of glasses or a screenings. onto an audiotape or disk that can be head band that plugs into the PDA (i.e., Although captioning was not synchronized with the film as it is a wireless transmitter sends the captions mentioned in the ANPRM, two projected. For example, a special reader to each moviegoer using the device), commenters requested that captioning head attached to the film projector can and that produces ‘‘floating’’ captions be provided and a movie theater owner read a timecode track printed on the that appear as if they are several meters urged the Department not to require film, which then sends a signal using an in front of the viewer’s eyes. movie theaters to provide captioning or infrared or FM transmitter to the theater Significantly, more than half of the narrative description services. where the narration can be heard on feature films produced by the major The Department is considering headsets equipped with receivers and movie studios now provide some form options under which it might require worn by the movie patron. of captioning. captioning for movies exhibited by As with captioning, the same two While the Department has not public accommodations, while issues arise with this technology: the required that the movie theater industry recognizing that the movie industry is in cost and the change to digital movies caption its presentations, during the transition as more movies are made in and projectors. The Department mid-1990s, as closed captioning became digital format and movie theater owners understands that the cost of narrative available, the Department began and operators begin to purchase digital description equipment is less than that requiring in certain settlement projectors. Movie theater owners and for closed captioning. Generally, movie agreements that presentations be closed operators with digital projectors have studios contract with entities to provide captioned. See Agreement Between Walt available to them different options for the narrative description, and it can be Disney World Co. and the United States providing captioning than those without done at the same time captioning is (Jan. 17, 1997), available at http:// digital projectors. The Department is created. The Department understands www.ada.gov/disagree.htm (requiring aware of the flux in the technology used that when theaters move to digital captioning for film, video, and video to exhibit movies and seeks comments technology, both the caption data and monitors that are part of an attraction or regarding how to require captioning the narrative descriptions can be that provide information). while the film industry transitions to a embedded into the digital signal that is The Department is aware that the digital format. Also, the Department is projected. courts have split on the question of concerned about the potential cost to Question 25: Should the Department whether captioning should be provided exhibit captioned movies, although that require that, one year after the effective at movie theaters. See Ball v. AMC cost may vary depending upon whether date of this revised regulation, a public Entm’t, 246 F. Supp. 2d 17 (D.D.C. 2003) open or closed captioning is used and accommodation will exhibit all new (denying defendant movie operators’ whether or not digital projectors are movies with narrative description? motion for summary judgment and used. The Department is cognizant that Would it be more appropriate to require noting that a closed captioned system is the cost of captioning must stay within narrative description less frequently? an auxiliary aid or service that could be the parameters of the undue burden Should the requirement for narrative required under the ADA); Cornilles v. requirement in 28 CFR 36.303(a). description of movies be tied to the use Regal Cinema, No. Civ. 00–173–AS, The Department is considering the of a digital format? If so, why? Please 2001 WL 34041789 (D. Or. Dec. 11, possibility of requiring that, after the include specifics regarding how 2001) (unpub. op.) (rejecting plaintiff’s effective date of the revised regulation, frequently narrative description should request that all films at a movie theater a public accommodation will exhibit all be provided. be captioned, noting that defendants new movies in captioned format at Captioning at sporting venues. The already provide some captioning); Todd every showing. The Department would Department is aware that individuals v. American Multi-Cinema, Inc., No. not specify which types of captioning to who are deaf or hard of hearing have Civ. A. H–02–1944, 2004 WL 1764686 provide, but would instead leave that to expressed concerns that they are (S.D. Tex. Aug. 5, 2004) (unpub. op.) the discretion of the movie theater unaware of information that is provided (granting summary judgment for owners and operators. over the public address systems.

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Therefore, in § 36.303(g), the barriers that are structural in nature available for public review at http:// Department is proposing that sports when it is readily achievable to do so. www.ada.gov. The elements listed as stadiums with a capacity of 25,000 or These proposed additions are designed numbers 1 through 66 on the matrix are more provide captioning for patrons to mitigate financial burdens on covered incremental changes that the who are deaf or hard of hearing for entities, while at the same time ensuring Department deems to be subject to the safety and emergency information that individuals with disabilities have safe harbor. announcements made over the public access to existing facilities. Discussed The safe harbors discussed in the address system. There are various below, in turn, is a proposal for a safe following paragraphs are available for options that could be used for providing harbor provision and a reduced scoping specific building elements that comply captioning, such as on a scoreboard, on option that would apply to all public with the 1991 Standards. If a public a line board, on a handheld device, or accommodations, as well as a proposal accommodation identified barriers but other methods. for a safe harbor provision and an did not remove them because it was not Question 26: The Department believes exemption that would apply only to readily achievable because of cost that requiring captioning of safety and qualified small businesses as defined in considerations, that public emergency information made over the § 36.104. accommodation has a continuing public address system in stadiums The proposed additions stem from the obligation to remove those barriers if the seating fewer than 25,000 has the Department’s proposal to adopt the 2004 economic considerations for the public potential of creating an undue burden ADAAG and from comments the accommodation change. For example, a for smaller entities. However, the Department received in response to its business upturn may provide the ability Department requests public comment ANPRM from small business advocates to pay for physical changes to the about the effect of requiring captioning expressing concern with the facility, or technological advances may of emergency announcements in all Department’s interpretation of the have reduced the costs of a previously stadiums, regardless of size. Would such barrier removal requirement. The reason expensive modification. Regardless of a requirement be feasible for small that the Department’s proposal to adopt the reason that barrier removal has not stadiums? the 2004 ADAAG is relevant to barrier yet been accomplished, any barrier Question 27: The Department is removal is that the Department removal undertaken after the effective considering requiring captioning of approaches barrier removal by reference date of this rule must comply with the safety and emergency information in to the alterations standard. 28 CFR proposed standards to the extent that it sports stadiums with a capacity of 36.304(d)(1); 56 FR 35544, 35570 (July is readily achievable to do so. 25,000 or more within a year of the 26, 1991). To the extent that it is readily Element-by-element safe harbor for effective date of the regulation. Would a achievable to do so, public public accommodations. The larger threshold, such as sports accommodations must comply with the Department is proposing to amend stadiums with a capacity of 50,000 or requirement for alterations by following § 36.304(d) in order to adopt a safe more, be more appropriate or would a the accessibility standards in Appendix harbor for elements in existing facilities lower threshold, such as stadiums with A of the existing regulation. Id. By that comply with the 1991 Standards, or a capacity of 15,000 or more, be more specifying that covered entities follow option I in the ANPRM. This provision appropriate? the 1991 Standards, the regulation is proposed § 36.304(d)(2). What is Question 28: If the Department provides clear guidance on both what currently § 36.304(d)(2) in the regulation adopted a requirement for captioning at constitutes a barrier and how to make an would be redesignated as § 36.304(d)(6). sports stadiums, should there be a existing facility accessible to and usable Specifically, the new § 36.304(d)(2) specific means required? That is, should by individuals with disabilities. Id. codifies a safe harbor for all elements it be provided through any effective Because the Department uses the 1991 that are in compliance with the specific means (scoreboards, line boards, Standards as a guide to identify what requirements—both the scoping and handheld devices, or other means), or constitutes a barrier, the proposed technical specifications—of the 1991 are there problems with some means, standards will provide a new reference Standards. Elements in existing such as handheld devices, that should point in assessing an entity’s obligations facilities that are not altered after the eliminate them as options? for readily achievable barrier removal. effective date of this rule, and that Question 29: The Department is aware As discussed above, the 2004 ADAAG comply with the 1991 Standards, are not that several major stadiums that host contains several changes from the 1991 required to be modified in order to sporting events, including National Standards. Some of those changes are comply with the proposed standards. Football League football games at Fed additions; the 2004 ADAAG introduces This safe harbor provision is not a Ex Field in Prince Georges County, requirements for elements in facility blanket exemption for facilities. Maryland, currently provide open types, like recreational facilities and Compliance with the 1991 Standards is captioning of all public address play areas, that are not in the 1991 determined on an element-by-element announcements, and do not limit Standards. In other situations the basis in each covered facility. As noted, captioning to safety and emergency changes are incremental, and were elements that the Access Board information. What would be the effect of added either because of additional study addressed for the first time in the a requirement to provide captioning for by the Access Board or in order to supplemental guidelines (e.g., play area patrons who are deaf or hard of hearing harmonize requirements with the model requirements introduced in the for game-related information (e.g., play- codes. It is the incremental changes that supplemental guidelines, etc.) would by-play information), safety and are relevant to the Department’s first not be subject to the safe harbor. Of emergency information, and any other proposed addition to § 36.304, the course, this safe harbor would have no relevant announcements? proposal of an element-by-element safe effect on noncompliant elements. harbor for all public accommodations. Barrier removal is an ongoing Section 36.304 Removal of Barriers The Department has prepared a detailed obligation. To the extent that elements The Department is offering for public matrix that identifies both the in existing facilities that impose barriers comment several proposed additions to incremental changes and the new are not already in compliance with the § 36.304, which requires the removal of requirements in Appendix 8 of its 1991 Standards, public accommodations architectural or communications Regulatory Impact Analysis, which is would be required to modify such

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elements to comply with the proposed required actions to what is ‘‘readily Specific areas of dispute. Commenters standards. achievable.’’ 28 CFR 36.304. The expressed specific concern with the The proposed safe harbor reflects the statutory defense maximizes application of a safe harbor to four Department’s determination that it accessibility by requiring case-specific, discrete areas: reach ranges, ATMs, would be an inefficient use of resources individualized determinations that seating in assembly areas, and access to to require covered entities that have excuse strict compliance when it is too swimming pools. Part of the reason the complied with the 1991 Standards to difficult or costly. The safe harbor, by Department received so many comments retrofit elements simply to comply with contrast, would exempt even some about reach ranges and swimming pools the proposed standards if the change actions that are readily achievable. may owe to the fact that the Department provides only a minimal improvement Similarly, disability rights groups used these requirements in its ANPRM in accessibility. To a substantial degree, objected to a blanket rule when the in order to illustrate the application of the barrier has already been removed. In facilities at issue vary so greatly, arguing a safe harbor. With the exception of addition, covered entities would have a that large companies should be able to swimming pools, which are discussed strong disincentive for voluntary do more to provide accessibility than below in § 36.304(d)(4)(ii), these compliance if, every time the applicable smaller businesses. concerns are addressed, in turn, in the standards are revised, covered entities A broad cross section of industries following paragraphs. are required once again to modify and advocates for industry favored the Maximum side reach ranges. Reach elements simply to keep pace with new safe harbor approach organizations ranges apply to a variety of building proposals. representing retail establishments, elements, including light switches, key The Department recognizes, however, hotels and lodging, and recreational pads, electrical outlets, fire alarm pulls, that there are also considerations facilities. These entities raised issues card readers, thermostats, elevator opposing this approach. While the related to cost, reliance on federal law, controls, pay phones, and other incremental benefit of the revisions may and fair play. Industry advocates were elements. The 2004 ADAAG includes a be minimal with respect to some concerned not only with the cost of change in the maximum height of a side elements, with respect to others the making the actual changes, but also with reach range from 54 inches in the proposed standards may confer a the cost of assessing their facilities for current ADA Standards, to 48 inches in significant benefit on some individuals compliance with the incremental the 2004 ADAAG. The change related to with disabilities that would be changes, arguing that the money would the needs of little people, and, not unavailable—except of course when be better spent on other, higher priority surprisingly, the most vocal opposition public accommodations and commercial accessibility measures. for a safe harbor came from groups facilities undergo alterations or new As noted earlier in the general representing little people. Commenters construction—if this option is adopted. discussion of the safe harbor proposals, argued that the lowered height of Because there are valid arguments on some commenters proposed that the operable controls can mean the both sides of this issue, the Department Department treat the proposed difference between independence and sought public comment on this issue in standards like most building codes dependence. One individual argued that its ANPRM. when they are updated and apply them little people can become trapped in General comments regarding safe prospectively only. Under the elevators, posing serious safety risks, harbor. The Department received International Building Code, for when the controls are over 48 inches numerous comments on this option in example, an existing structure is high. Two groups strongly opposed a the ANPRM. Generally, covered entities generally grandfathered provided that safe harbor for side reach ranges, one of favored a safe harbor, while entities the building meets a minimum level of which estimated that the revised reach representing individuals with safety. See International Code Council, range will provide access to an disabilities did not. Some disability International Bldg. Code, Commentary, additional half million individuals with rights groups, however, favored the safe section I.206 (2003); International disabilities. harbor, arguing that the marginal Existing Bldg. Code, Commentary, Industry commenters asserted that improvements in accessibility were section 101.4 (2003). requiring existing facilities to apply the insufficient to ask entities to retrofit While the Department agrees new requirement would mean, among elements that work for most individuals generally with the goal of aiming for other things, that entities would be with disabilities. One disability rights consistency between the ADA Standards required to lower every light switch in group commented that proposing new and building codes—indeed, great effort every building to the extent it is readily standards without a safe harbor would in the development of the 2004 ADAAG achievable. One business group noted penalize compliant businesses, who was undertaken to create consistency that thousands of businesses have would have to pay for retrofits twice, with building codes where possible— already internalized the cost of lowering and reward scofflaws, who would have there are critical differences between the operating controls from 60 inches to 54 avoided the expense of complying with 2004 ADAAG and building codes. The inches to comply with the 1991 the current law. Some businesses ADA is a civil rights statute, not a Standards, and that an additional opposed the application of a safe harbor building and safety code. Its primary retrofit would require an additional and, instead, encouraged the goal is to ensure access and equality for commitment of funds. A small business government to consider other avenues individuals with disabilities. It is also a association stated that lowering pay for reducing costs, like providing tax relatively new law, and much of the phones would be a significant expense relief for businesses. A tax credit is built environment remains inaccessible. to the pay phone industry, which is already available to small businesses (as Nevertheless, the Department is asking already incurring losses due to the defined in the tax code), and larger for public input on a more limited introduction of cell phones on the businesses can receive a tax deduction. version of this approach that would market. Other associations expressed 26 U.S.C. 44. exempt owners and operators of places concerns about vending machines, most Several disability groups and state of public accommodation from of which now comply with the 54-inch advocacy centers felt that there was no compliance with the supplemental reach range. need for a safe harbor because the requirements for play areas and Potential solutions that do not require statute already controls costs by limiting recreation facilities. structural modifications were offered by

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disability advocacy groups. One and will be updated when they are of sight and dispersal of wheelchair national advocacy group stated that replaced. seating in assembly areas, especially in public accommodations could provide Because new ATMs are generally stadium-style theaters, have been the relatively low-cost solutions to the equipped with speech output, this is a subject of litigation. The 1991 Standards problem, such as light switch extension time-limited issue that really affects a require that wheelchair seating ‘‘provide handles or other inexpensive discrete group of stand-alone ATMs in people with physical disabilities a alternatives to relocating operating rural areas or small retail locations, like choice of admissions prices and lines of controls. Some commenters noted that, gas stations or convenience stores. sight comparable to those for members while it is not an ideal solution, Industry commenters describe a practice of the general public.’’ The 2004 individuals of short stature may choose by which used machines in urban areas ADAAG adopts specific design to carry equipment that would enable or larger banks are generally sold to guidelines for lines of sight and the them to reach controls. smaller entities or placed in rural areas dispersal of wheelchair seating. Cf. 28 Independence and ready accessibility as new machines are purchased. ATMs CFR part 36, App. A, section 4.33.3; are significant goals in the ADA. The vary in their technological 2004 ADAAG sections 221, 802. As the Department would like to hear further sophistication, and it is more expensive Department explained in the ANPRM, from individuals of short stature to adapt the smaller, stand-alone however, this guideline is merely the whether there are discrete areas—like machines. codification of longstanding Department operating controls in elevators—that are Even though the ATM requirement policy. Because the requirements in the either significant to daily living or pose appears in the 1991 Standards, the 2004 ADAAG are not a change from that safety risks that cannot be ameliorated Department has traditionally treated the policy, entities that comply with the by extension handles or similar, less speech or communication element as Department’s policy will also be in expensive devices. The 48-inch subject to the requirements for auxiliary compliance with the relevant provisions maximum reach range would apply aids and services in § 36.303. The in the proposed standards. fully to alterations and new Department’s preamble to its regulation Reduced scoping for public explained that, ‘‘[g]iven that § 36.304’s construction. Similarly, elements that accommodations, small facilities, and proper focus is on the removal of do not comply with the existing qualified small businesses. As noted physical barriers, the Department requirement of a 48-inch reach range above, the Department is still believes that the obligation to provide would also be required to meet the new considering the possibility of communications equipment and devices 48-inch reach range. developing an alternative set of reduced * * * is more appropriately determined scoping requirements for certain ATMs. Several commenters expressed by the requirements for auxiliary aids elements that were not subject to concern about the application of a safe and services under § 36.303.’’ 56 FR specific scoping and technical harbor to ATMs. Specifically, ‘‘talking 35544, 35568. When the Department requirements in the 1991 Standards. ATMs’’—or ATMs with speech output later discussed ATMs as they relate to Business entities were generally in favor that are independently usable by barrier removal in the 1991 regulation, of exemptions and reduced scoping, individuals who are blind or have low the Department referred only to those although most of the comments vision—are an important issue for one aspects of the ATM that make it addressed elements in compliance with advocacy group, as well as for the physically accessible to individuals technical and scoping requirements in banking and ATM industries. The 1991 with mobility disabilities. Id. the 1991 Standards (e.g., the maximum Standards use a performance test, The safe harbor provision applies side reach range). Disability advocacy requiring that ‘‘[i]nstructions and all only to readily achievable barrier groups and individuals strongly information for use shall be made removal; the Department is not planning objected to exemptions and to accessible to and independently usable to apply a safe harbor to the requirement significantly reduced scoping, arguing by persons with vision impairments.’’ for auxiliary aids and services. ATMs that the 2004 ADAAG represents 28 CFR part 36, App. A, section 4.34.4. that lack speech output are not eligible minimum standards, and that the The 2004 ADAAG has a similar for a safe harbor. Although the readily achievable standard already requirement that more specifically Department is not applying a safe harbor provides enough flexibility to covered spells out what is necessary for ATMs to the communication-related entities. to be speech-enabled. Under the 2004 requirements on ATMs, the Department The Department believes that reduced ADAAG, there are specific design is proposing a new section dealing with scoping for a select few specifications in requirements for speech output, and equipment that the Department hopes the context of barrier removal is a speech must be delivered through a will resolve some of the concerns raised moderate and reasonable response to mechanism that is readily available to by both sides. The issue of whether it business entities’ concerns about the all users. See 2004 ADAAG section is permissible for an entity to purchase potential for increased costs of 707.5. used ATMs that do not have speech compliance and litigation risk when the Some individuals who are blind or output remains an open question, and Department adopts the 2004 ADAAG. have low vision fear that a safe harbor the Department is proposing questions Reduced scoping reflects the would derail the efforts they have made designed to elicit more specific feedback determination that, while some to ensure that ATMs have speech from the industry in the section dealing requirements make sense for alterations output. The banking and ATM with equipment. The Department offers and new construction, in the barrier industries object to retrofitting all for comment a narrowly drawn removal context they might not because existing ATMs, arguing it requires both exemption for small, stand-alone ATMs, of the expense or nature of the measure hardware and software changes that can in which entities would be allowed to required. Given the disparity in size and be expensive in certain cases. They also purchase used ATMs without speech resources among the entities that fall argue that retrofitting is inefficient, output in certain circumstances. within the ambit of public since most machines, especially those in Stadium-style theaters. Finally, accommodations, reduced scoping banks, are replaced every seven to nine commenters expressed concern would be justified only for years, a relatively short life span regarding the application of a safe supplemental elements that are compared to other elements in facilities, harbor to stadium-style theaters. Lines particularly complicated and expensive

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to retrofit. Based on comments in the requirements in the 2004 ADAAG. We that such ‘‘small’’ play areas represent ANPRM and the Department’s initial would also welcome comment on one hundred percent (100%) of the play regulatory assessment, the Department whether it would be appropriate for the areas located in restaurants, the largest has identified ten elements for which Access Board to consider proportion (between sixty to eighty the Department believes reduced implementation of guidelines that percent (60–80%)) of the play areas scoping might be appropriate for barrier would permit such a safe harbor with located in hotels and day care facilities, removal: play areas, swimming pools, respect to play and recreation areas and about twenty percent (20%) of the wading pools, saunas and steam rooms, undertaking alterations. play areas located in schools. (The exercise machines, team or player Question 31: The Department requests Access Board assumed that play areas in seating areas, areas of sport activity, public comment with respect to the city and state parks are typically larger boating facilities, fishing piers and application of these requirements to than 1,000 square feet.) If these platforms, and miniature golf courses. existing play areas. What is the ‘‘tipping assumptions are correct, the proposed Play areas. Sections 206.2.17, 206.7.8, point’’ at which the costs of compliance exemption would have the greatest and 240.1 of the 2004 ADAAG provide with the supplemental requirements for impact upon existing play areas located a detailed set of requirements for newly existing play areas would be so in restaurants, hotels, and day care constructed and altered play areas. At burdensome that the entity would facilities and would have relatively little least one ground level play component simply shut down the playground? impact on existing play areas located in of each type provided (e.g., for different The Department notes that section schools or parks. experiences such as rocking, swinging, 240.1 of the 2004 ADAAG specifies that Question 32: The Department would climbing, spinning, and sliding) must be play areas located in family child care like to hear from public accessible and connected to an facilities where the proprietor actually accommodations and individuals with accessible route. In addition, if elevated resides are exempt from the scoping and disabilities about the potential effect of play components are provided, entities technical requirements for play areas. this approach. Should existing play must make at least fifty percent (50%) Thus, such family child care facility areas less than 1,000 square feet be of the elevated play components owners have no obligation to make exempt from the requirements accessible and connect them to an similar changes for their existing applicable to play areas? accessible route, and may have to make facilities for purposes of barrier The Department also proposes to add an additional number of ground level removal. According to the Access Board, § 36.304(d)(3)(i) to provide that, for play components (representing different these family child care facilities are purposes of the readily achievable types) accessible as well. There are a typically located in private homes, serve barrier removal requirement, existing number of exceptions to the technical a relatively small number of children play areas will be permitted to meet a specifications for accessible routes, and (usually no more than twelve) at any reduced scoping requirement with there are special rules (incorporated by given time, and install simple and respect to their elevated play reference from nationally recognized inexpensive playground equipment for components. Elevated play components standards for accessibility and safety in which accessible products are less likely are play components that are play areas) for accessible ground to be readily available. For such approached above or below grade and surfaces. Accessible ground surfaces facilities, moreover, the cost of that are part of a composite play must be inspected and maintained providing an accessible ground surface structure consisting of two or more regularly and frequently to ensure could far exceed the cost of the components that are attached or continued compliance. equipment itself, increasing the functionally linked to create an The Department is concerned about likelihood that the home owner will integrated unit providing more than one the potential impact of these simply decide not to provide any play activity. The proposed standards supplemental requirements on existing playground equipment. While this provide that a play area that includes play areas that are not otherwise being exception may limit the accessibility of both ground level and elevated play altered. Consequently, the Department play areas in home-based child care components must ensure that a is proposing several specific provisions facilities, such facilities would remain specified number of the ground level and posing additional questions in an subject to the ADA’s general play components and at least fifty effort to both mitigate and gather requirement to ensure that individuals percent (50%) of the elevated play information about the potential burden with disabilities have an equal components are accessible. of the supplemental requirements on opportunity to enjoy the services of Many commenters advised the existing facilities. their facilities. Department that making elevated play State and local governments may have The Department proposes to add components accessible in the barrier already adopted accessibility standards § 36.304(d)(4)(i) to provide that, for removal context would exceed what is or codes similar to the 2004 ADAAG purposes of the readily achievable readily achievable for most facilities. requirements for play and recreation barrier removal requirement, existing Given the nature of the element at issue, areas, but which might have some play areas that are less than 1,000 retrofitting existing elevated play differences from the Access Board’s square feet in size are exempt from the components in play areas to meet the guidelines. scoping and technical requirements for scoping and technical specifications in Question 30: The Department would play areas in the 2004 ADAAG found in the alteration standard would be welcome comment on whether there are section 240 of the proposed standards. difficult and costly, and in some state and local standards specifically The Department selected this size based instances, infeasible. In response to regarding play and recreation area on the provision in section 1008.2.4.1 of expressed concerns, the Department accessibility. To the extent that there are the 2004 ADAAG, Exception 1, proposes to reduce the scoping for such standards, we would welcome permitting play areas less than 1,000 existing play areas undertaking barrier comment on whether facilities currently square feet in size to provide accessible removal by permitting entities to governed by, and in compliance with, routes with a reduced clear width (44 substitute ground level play such state and local standards or codes inches instead of 60 inches). In its 2000 components for elevated play should be subject to a safe harbor from regulatory assessment for the play area components. Entities that provide compliance with applicable guidelines, the Access Board assumed elevated play components that do not

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comply with the 2004 ADAAG section the same age group. Where separate play The Department recognizes that this 240.2.2 would be deemed in compliance areas are provided within a single site, approach could reduce the accessibility with their barrier removal obligations as even if each play area serves the same of larger swimming pools compared to long as the number of accessible ground age group and provides the same types the requirements in the 2004 ADAAG. level play components is equal to the of play components, the 2004 ADAAG Individuals with disabilities and sum of (a) the number of ground level would require each play area to comply. advocates were particularly concerned play components required to comply In existing facilities that are not being about the accessibility of pools, and with the 2004 ADAAG section 240.2.1 altered, where multiple play areas noted that for many people with (as provided by Table 240.2.1.2, but at designed for a particular age group are disabilities, swimming is one of the few least one of each type) and (b) the provided, the Department is considering types of exercise that is generally number of elevated play components requiring only one play area to be made accessible and, for some people, can be required to comply with the 2004 accessible. an important part of maintaining health. ADAAG section 240.2.2 (namely, fifty Question 35: Should the Department Other commenters noted that having percent (50%) of all elevated play require only one play area of each type two accessible means of egress from a components). In existing play areas that to comply in existing sites with multiple pool can be a significant safety feature provide a limited number of ground play areas? Are there other select in the event of an emergency. It may be, level play components, qualifying for requirements applicable to play areas in however, that as a practical matter the this exception may require providing the 2004 ADAAG for which the reduction in scoping may not be additional ground level play Department should consider exemptions significant, as the measures required to components. or reduced scoping? meet the alteration standards for While this provision may result in Swimming pools. The Department is accessible entries would often not be less accessibility than the application of proposing two specific provisions to readily achievable even if considered on the alteration standard where readily minimize the potential impact of the a case-by-case basis. achievable, public accommodations will supplemental requirements on existing Question 36: The Department would likely be more willing to voluntarily swimming pools. First, the Department like to hear from public undertake barrier removal measures in is proposing to add § 36.304(d)(3)(ii) to accommodations and individuals with play areas if they anticipate that provide that, for purposes of the readily disabilities about this exemption. compliance will be straightforward and achievable barrier removal requirement, Should the Department allow existing readily achievable in most instances. In swimming pools that have at least 300 public accommodations to provide only addition, for existing play areas with linear feet of swimming pool wall will one accessible means of access to limited resources, it will often be more be required to provide only one (rather swimming pools more than 300 linear efficient to devote resources to making than two) accessible means of entry, feet long? the ground surface of the play area which must be a sloped entry or a pool The Department also proposes to add accessible, which is necessary to lift. This provision represents a less § 36.304(d)(4)(ii) to provide that, for provide an accessible route to any play stringent requirement than section 242.2 purposes of the readily achievable components. Reduced scoping for of the 2004 ADAAG, which requires barrier removal requirement, existing elevated play components could also such pools, when newly constructed or swimming pools that have less than 300 minimize the risk that covered entities altered, to provide two accessible means linear feet of swimming pool wall will will delay compliance, remove elevated of entry. Under this proposal, for barrier be exempt from the provisions of play components, or simply close the removal purposes, public section 242.2 of the 2004 ADAAG. In its play area. It also provides a bright-line accommodations would be required to 2002 regulatory assessment for the rule for which compliance can be easily have at least one accessible entry where recreation guidelines, the Access Board evaluated. readily achievable to do so. assumed that pools with less than 300 Question 33: The Department would Commenters responding to the feet of linear pool wall would represent like to hear from public ANPRM noted that the two-means-of- ninety percent (90%) of the pools in accommodations and individuals with entry-standard, if applied in the barrier high schools; eighty percent (80%) of disabilities about the potential effect of removal context, will disproportionately the pools in hotels and motels; seventy this approach. Should existing play affect small businesses, both in terms of percent (70%) of the pools in exercise areas be permitted to substitute the cost of implementing the standard and sports facilities; forty percent (40%) additional ground level play and anticipated litigation costs. Larger of the pools in public parks and components for the elevated play covered entities benefit from economies community centers (e.g., YMCAs); and components it would otherwise have of scale, which are not available to small thirty percent (30%) of the pools in been required to make accessible? businesses. Although complying with colleges and universities. Question 34: The Department would the alteration standard will not be Question 37: The Department would welcome comment on whether it would readily achievable for many small like to hear from public be appropriate for the Access Board to businesses (at least not complete accommodations and individuals with consider implementation of guidelines compliance), the litigation-related costs disabilities about the potential effect of for play and recreational facilities of proving that compliance is not this approach. Should existing undertaking alterations that would readily achievable may be significant. swimming pools with less than 300 permit reduced scoping of requirements Moreover, these commenters argue, the linear feet of pool wall be exempt from or substitution of ground level play immediacy of perceived noncompliance the requirements applicable to components in lieu of elevated play with the standard—it will usually be swimming pools? components, as the Department is readily apparent whether a public Finally, the Department is interested proposing with respect to barrier accommodation has the required in collecting information regarding the removal obligations for certain play or accessible entry or entries—makes this number of existing facilities that recreational facilities. element particularly vulnerable to serial provide more than one swimming pool The Department is also considering ADA litigation. The reduced scoping on a site. The Department is considering reducing the scoping for sites with would apply to all existing public creating an exception that would permit multiple existing play areas designed for accommodations, regardless of size. existing facilities with multiple

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swimming pools on a site to make only saunas or steam rooms that have a playing field to be served by an one of each type of swimming pool capacity of only two persons are exempt accessible route? Should the accessible. from the scoping and technical Department create an exception to this Question 38: What types of facilities requirements for saunas and steam requirement for existing courts (e.g., provide more than one swimming pool rooms in section 241 of the 2004 tennis courts) that have been on a site? In such facilities, do the pools ADAAG. While this exception may limit constructed back-to-back without any tend to be identical or do they differ in the accessibility of small existing saunas space in between them? type (e.g., in size, configuration, or steam rooms, such facilities would Boating facilities. Sections 206.2.10, function, or use)? remain subject to the ADA’s general 235.2, and 235.3 of the 2004 ADAAG Wading pools. Section 242.3 of the requirement to ensure that individuals require a specified number of boat slips 2004 ADAAG provides that newly with disabilities have an equal and boarding piers at boat launch ramps constructed or altered wading pools opportunity to enjoy the services and to be accessible and connected to an must provide at least one sloped means amenities of their facilities. accessible route. In existing boarding of entry to the deepest part of the pool. Exercise machines. Sections 206.2.13 piers, the required clear pier space may The Department is concerned that and 236 of the 2004 ADAAG require one be perpendicular to and extend the installing a sloped entry in existing of each type of fixed exercise machine width of the boat slip if the facility has wading pools may not be feasible for a to meet clear floor space specifications at least one accessible boat slip, significant proportion of covered and to be on an accessible route. Types providing that more accessible slips entities and is considering creating an of machines are generally defined would reduce the total number (or exemption for existing wading pools according to the muscular groups widths) of existing boat slips. Accessible that are not being altered. The exercised or the kind of cardiovascular boarding piers at boat launch ramps Department is also interested in exercise provided. must comply with the requirements for collecting information regarding the Question 40: Will existing facilities accessible boat slips for the entire length number of existing facilities that have to reduce the number of available of the pier. If gangways (only one end provide more than one wading pool on exercise equipment and machines in of route is attached to land) and floating a site. As an alternative to an exemption order to comply? What types of space piers (neither end is attached to land) for all existing wading pools, the limitations would affect compliance? are involved, a number of exceptions are Department is considering creating an Team or player seating areas. Section provided from the general standards for exception that would permit existing 221.2.1.4 of the 2004 ADAAG requires accessible routes in order to take into facilities with multiple wading pools on one or more wheelchair spaces to be account the difficulty of meeting a site to make only one of each type of provided in each team or player seating accessibility slope requirements due to pool accessible. area with fixed seats, depending upon fluctuations in water level. In existing Question 39: What site constraints the number of seats provided for facilities, moreover, gangways need not exist in existing facilities that could spectators. For bowling lanes, the be lengthened to meet the requirement make it difficult or infeasible to install requirement would be limited to lanes (except, in an alteration, as may be a sloped entry in an existing wading required to be accessible. required by the path of travel pool? Should existing wading pools that Question 41: Are team or player requirement). are not being altered be exempt from the seating areas in certain types of existing Question 43: The Department is requirement to provide a sloped entry? facilities (e.g., ice hockey rinks) more interested in collecting data regarding What types of facilities provide more difficult to make accessible due to the impact of these requirements in than one wading pool on a site? In such existing designs? What types of existing existing boating facilities. Are there facilities, do the pools tend to be facilities typically have design issues (e.g., space limitations) that identical or do they differ in type (e.g., constraints that would make would make it difficult to provide an in size, configuration, function or use)? compliance with this requirement accessible route to existing boat slips Saunas and steam rooms. The infeasible? and boarding piers at boat launch Department is proposing one specific Areas of sport activity. Sections ramps? To what extent do the provision to minimize the potential 206.2.2 and 206.2.12 of the 2004 exceptions for existing facilities (i.e., impact of the supplemental ADAAG require each area of sport with respect to boat slips and gangways) requirements on existing saunas and activity (e.g., courts and playing fields, mitigate the burden on existing steam rooms. Section 241 of the 2004 whether indoor or outdoor) to be served facilities? ADAAG requires newly constructed or by an accessible route. In court sports, Fishing piers and platforms. Sections altered saunas and steam rooms to meet the accessible route would also have to 206.2.14 and 237 of the 2004 ADAAG accessibility requirements, including directly connect both sides of the court. require at least twenty-five percent accessible turning space and an The Department is considering limiting (25%) of railings at fishing piers and accessible bench. Where saunas or the application of this requirement in platforms to be no higher than 34 inches steam rooms are provided in clusters, existing facilities that have multiple high, so that a person seated in a five percent (5%), but at least one sauna areas of sport activity that serve the wheelchair can fish over the railing, to or steam room in each cluster, will have same purpose. For example, in existing be dispersed along the pier or platform, to be accessible. The Department facilities with multiple soccer fields of and to be on an accessible route. (An understands that many saunas are a similar size, the Department may exception permits railings to comply manufactured (pre-fabricated) and come interpret the readily achievable barrier instead with the model codes, which in standard sizes (e.g., two-person or removal requirement to require that a permit railings to be 42 inches high.) If four-person), and that the two-person reasonable number but at least one gangways (where only one end of route size may not be large enough to meet the soccer field (rather than all of them) be is attached to land) and floating piers turning space requirement. Therefore, served by an accessible route. (where neither end is attached to land) the Department proposes in Question 42: Should the Department are involved, a number of exceptions are § 36.304(d)(4)(iii) to specify that, for interpret the barrier removal provided from the general standards for purposes of the readily achievable requirement to require only a reasonable accessible routes in order to take into barrier removal requirement, existing number but at least one of each type of account the difficulty of meeting

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accessibility slope requirements due to membership selection is highly qualify as a public accommodation and fluctuations in water level. In existing selective; substantial membership fees would be subject to the requirements of facilities, moreover, gangways need not are charged; the entity is operated on a title III. be lengthened to meet the requirement nonprofit basis; and the club was not Safe harbor for qualified small (except, in an alteration, as may be founded specifically to avoid businesses regarding what is readily required by the path of travel compliance with federal civil rights achievable. The Department is offering requirement). laws. For example, a country club may for public comment a modification to Question 44: The Department is qualify as a private club and have a golf the barrier removal requirement at interested in collecting data regarding course on its grounds. If the golf course § 36.304(d)(5) that provides a safe the impact of this requirement on is for the exclusive use of club members harbor for qualified small businesses as existing facilities. Are there issues (e.g., and their guests, the golf course is not defined in § 36.104. Pursuant to this safe space limitations) that would make it a public accommodation covered by harbor, a qualified small business would difficult to provide an accessible route title III. However, if the country club have met its readily achievable barrier to existing fishing piers and platforms? allows nonmembers to pay a fee to play removal obligations for a given year if, Miniature golf courses. Sections golf, the golf course is a public in the preceding tax year, it spent at 206.2.16, 239.2, and 239.3 of the 2004 accommodation and is subject to title least one percent (1%) of its gross ADAAG require at least fifty percent III. The country club’s other operations revenues on barrier removal. In so (50%) of the holes on miniature golf and facilities, however, would remain doing, the Department wishes to courses to be accessible and connected exempt if they were exclusive to promulgate a rule that will benefit a to an accessible route (which must members. broad class of small businesses by connect the last accessible hole directly Religious organizations and entities providing a level of certainty in short- to the course entrance or exit); controlled by religious organizations, term and long-term planning with generally, the accessible holes would including places of worship, are also respect to barrier removal. An effective have to be consecutive ones. Specified exempt from the coverage of title III. rule would also provide some exceptions apply to accessible routes This exemption is intended to have a protection, through diminished located on the playing surfaces of holes. broad application and covers all of the litigation risks, to small businesses that Question 45: The Department is activities of a religious entity, whether undertake significant barrier removal considering creating an exception for they are religious or secular. For projects. The Department received many existing miniature golf facilities that are example, a religious organization that comments from the small business of a limited total square footage, have a operates a child care facility that community urging it to consider limited amount of available space includes a playground, even if the child changing its approach to barrier within the course, or were designed with care facility is open to nonmembers, is removal. extreme elevation changes. If the exempt from the requirements of the The Department seeks public input on Department were to create such an ADA despite the fact that the facility this safe harbor for readily achievable exception, what parameters should the would otherwise qualify as a public barrier removal, and, specifically, Department use to determine whether a accommodation under title III. However, solicits advice on whether one percent miniature golf course should be exempt? it should be noted that religious (1%) is the appropriate level of Scope of coverage. As illustrated by organizations that receive federal expenditure. Another business group, the above discussion, the 2004 ADAAG financial assistance are not exempt from which proposed a similar scheme, introduces supplemental scoping and the responsibility to comply with the suggested that the Department propose technical requirements for play areas requirements of section 504 or any other that small businesses spend five percent and recreation facilities that apply to applicable federal statute that prohibits (5%) of their net revenues. The elements and spaces—e.g., playgrounds discrimination on the basis of disability Department believes from its experience and swimming pools—that are found in in federally assisted programs. in enforcing the ADA that the relevant a variety of different types of facilities. Finally, facilities governed by expenditure should be a percentage of In light of these supplemental homeowners associations or similar gross, rather than net, revenues in order requirements and their potentially wide- organizations may be covered by the to avoid the effect of differences in ranging application, the Department Fair Housing Act (FHA) and subject to bookkeeping practices and to maximize wishes to emphasize that the types of HUD’s jurisdiction, rather than title III accessibility consistent with private entities covered under title III of the ADA, or they may be covered by congressional intent. The Department are unchanged by the proposed rule, both the FHA and title III. The recognizes, however, that entities with and to reiterate the criteria that distinguishing feature is whether use of similar gross revenues may have very determine whether an entity is exempt the facilities in question is limited different net revenues, and that this from coverage under the ADA. In exclusively to owners, residents, and difference may significantly affect what addition, the Department notes that their guests, or if the facilities are made is readily achievable for a particular certain types of facilities, while they available to the public. For example, a entity. Such an approach places may be exempt from the coverage of the development governed by a significant importance on getting the ADA, may nonetheless be subject to the homeowners association that includes a right percentage of revenues that should accessibility requirements of other swimming pool may be covered by the be considered. federal laws. FHA only, or both the FHA and the Any formulaic approach, even for a Private clubs (e.g., country clubs and ADA. The residences and other areas subset of the public accommodations civic organizations) are generally provided for the exclusive use of covered by the ADA, is a departure from exempt from title III. Under the ADA, residents and their guests are covered by the Department’s current position on the definition of a private club is based the FHA. If the swimming pool is barrier removal. During the on title II of the Civil Rights Act of 1964 available only to residents and their Department’s rulemaking for the and related case law. Generally, entities guests, it would be covered by the FHA regulation published in 1991, the issue are considered private clubs where only. However, if the pool is also of barrier removal received significant members exercise a high degree of available to members of the public who attention. Advocacy groups both for control over club operations; the buy pool memberships, the pool would individuals with disabilities and private

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businesses requested specific guidance provide spectators with distinct services appropriate and reasonable. Requested on what measures were required for or amenities that are not generally documentation should be narrowly barrier removal. Commenters were available to other spectators, the facility tailored so that the testing entity can concerned that, absent a standard, must ensure that wheelchair seating ascertain the nature of the disability and unsafe or ineffective design practices spaces and companion seating are the individual’s need for the requested might be undertaken. The Department’s provided in each specialty seating area. modification or auxiliary aid. Generally, current rule reflects the view of many The number of wheelchair seating a testing entity should accept without commenters that requiring public spaces and companion seating provided further inquiry documentation provided accommodations to comply with the in specialty seating areas shall be by a qualified professional who has alteration standards, where readily included in, rather than being additive made an individualized assessment of achievable to do so, promotes certainty to, wheelchair space requirements set the applicant. Appropriate and good design. forth in table 221.2.1.1 in the proposed documentation may include a letter SBREFA requires the Department to standards. from a qualified professional or consider alternative means of Proposed § 36.308(c)(2) requires that, evidence of a prior diagnosis, compliance for small businesses. 5 to the extent possible, wheelchair users accommodation, or classification, such U.S.C. 603(c). To comply with this shall be permitted to purchase as eligibility for a special education obligation, the Department is soliciting companion tickets on the same terms program. When an applicant’s public comment on the possibility of that tickets are made available to other documentation is recent and providing a safe harbor to qualified members of the public. In assembly demonstrates a consistent history of a small businesses that have spent at least areas with seating capacities exceeding diagnosis, there is no need for further one percent (1%) of their gross revenues 5,000, each of five designated inquiry into the nature of the disability. to remove architectural, wheelchair spaces shall have at least A testing entity should consider an communication, or transportation three companion seats (i.e., five groups applicant’s past use of a particular barriers. of four seats, each group including a auxiliary aid or service. Question 46: Should the Department wheelchair space) in order to provide Finally, a private entity should adopt a presumption whereby qualifying more flexible seating arrangements for respond in a timely manner to requests small businesses are presumed to have families and other small groups. The and should provide applicants with a done what is readily achievable for a group companion seats required by this reasonable opportunity to supplement given year if, during the previous tax section may be located adjacent to either their requests with additional year, the entity spent at least one the wheelchair location or other information, if necessary. Failure by the percent (1%) of its gross revenues on companion seats. The Department is testing entity to act in a timely manner barrier removal? Why or why not? Is one proposing this requirement to address and making requests of unnecessary percent (1%) an appropriate amount? complaints from many wheelchair users magnitude could result in the sort of Are gross revenues the appropriate that the practice of providing a strict delay that amounts to a denial of equal measure? Why or why not? one-to-one relationship between opportunity or equal treatment. wheelchair locations and companion Section 36.311 Mobility Devices Section 36.308 Seating in Assembly seating often prevents family members Areas from attending events together. Proposed § 36.311 has been added to The Department is proposing to revise provide additional guidance to public this section to be consistent with Section 36.309 Examinations and accommodations about the revisions in the proposed requirements Courses circumstances in which power-driven applicable to new construction and Section 309 of the ADA is intended to mobility devices must be alterations. The purpose of the section fill the gap that is created when accommodated. is unchanged: To establish the barrier licensing, certification, and other testing As discussed earlier in this NPRM, removal requirements for assembly authorities are not covered by section this proposal is in response to growing areas. Sections 36.308(a)(1) and (b) have 504 or title II of the ADA, and to ensure confusion about what types of mobility been revised to include an express that individuals with disabilities are not devices must be accommodated. The requirement to provide companion seats excluded from educational, Department has received complaints and designated aisle seats. professional, or trade opportunities and become aware of situations where Section 36.308(a)(1)(ii)(A) and (B) because examinations or courses are individuals with mobility disabilities have been revised to provide that offered in a place or manner that is not have utilized for locomotion purposes wheelchair and companion seats must accessible. See 42 U.S.C. 12189. riding lawn mowers, golf cars, large be an integral part of the seating area, Through its enforcement efforts, the wheelchairs with rubber tracks, dispersed to all accessible seating levels, Department has discovered that the gasoline-powered, two-wheeled and that the locations must provide requests made by testing entities for scooters, and other devices that are not viewing angles to the screen, documentation regarding the existence designed for indoor use or exclusively performance area, or other focal point of an individual’s disability and her or used by people with disabilities. Indeed, that are equivalent to or better than the his need for a modification or an there has been litigation about whether average viewing angles provided to all auxiliary aid or service are often the ADA requires covered entities to other spectators. inappropriate or burdensome. The allow people with disabilities to use Proposed § 36.308(a)(1)(iii) provides proposed rule attempts to address this their EPAMDs like users of traditional that companion seats may be fixed or problem. wheelchairs. Individuals with movable and that they shall be Section 36.309(b) as revised states disabilities have sued several shopping equivalent in size, quality, comfort, and that while it is appropriate for a testing malls in which businesses refused to amenities to the other seats in the entity to require that an applicant allow a person with a disability to use assembly area. document the existence of a disability in an EPAMD. See, e.g., Sarah Antonacci, A new § 36.308(c)(1) has been added order to establish that he or she is White Oaks Faces Lawsuit over Segway, to provide that when an assembly area entitled to testing modifications or aids, State Journal-Register, Oct. 9, 2007, has designated seating sections that the request for documentation must be available at http://www.sj-r.com/news/

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stories/17784.asp; Shasta Clark, Local Section 36.311(c) lists permissible Example 1: Although people who do not Man Fighting Mall Over Right to Use factors that a public accommodation have mobility disabilities are prohibited from Segway, WATE 6 News, July 26, 2005, may consider in determining whether operating EPAMDs at a theme park, the available at http://www.wate.com/ the use of different types of power- public accommodation has developed a policy allowing people with disabilities to Global/story.asp?s=3643674. The driven mobility devices by individuals use EPAMDs as their mobility device at the Department believes clarification on with disabilities may be permitted. In theme park. The policy states that EPAMDs what the ADA requires is necessary at developing policies, public are allowed in all areas of the theme park that this juncture. accommodations should group power- are open to pedestrians as a reasonable Section 36.311(a) reiterates the driven mobility devices by type (e.g., modification to its general policy on general rule that public EPAMDs, golf cars, gasoline-powered EPAMDs. The public accommodation accommodations shall permit vehicles, wheelchairs designed for determined that the venue provides adequate individuals using wheelchairs, scooters, outdoor use, and other devices). A space for a larger device such as an EPAMD and that it does not fundamentally alter the and manually powered mobility aids, blanket exclusion of all devices that fall including walkers, crutches, canes, nature of the theme park’s goods and under the definition of other power- services. The theme park’s policies do, braces, and similar devices, in any areas driven mobility devices in all locations however, require that EPAMDs be operated at open to pedestrians. The regulation would likely violate the proposed a safe speed limit. A theme park employee underscores this general proposition regulation. may inquire at the ticket gate whether the because the great majority of mobility The factors listed in § 36.311(c)(1) device is needed due to the user’s disability scooters and wheelchairs must be through (3) may be used in order to and also inform an individual with a accommodated under nearly all develop policies regarding the use of disability using an EPAMD that the theme circumstances in which title III applies. park’s policy requires that it be operated at other power-driven mobility devices by or below the designated speed limit. Section 36.311(b) adopts the general people with disabilities. The requirement in the ADA that public Example 2: A luxury cruise ship has dimensions, weight, and other developed a policy regarding the use of accommodations must make reasonable characteristics of the mobility device in EPAMDs by individuals with disabilities on modifications to their policies, relation to a wheelchair or scooter, as the ship. In developing the policy, the public practices, and procedures when well as the device’s maneuverability accommodation has considered the necessary to enable an individual with and speed, may be considered. Another dimensions of the EPAMD, including its a disability to use a power-driven permissible consideration is the height, in relation to the common areas of the mobility device to participate in its ship and the safety of other passengers. Since potential risk of harm to others by the services, programs, or activities unless the cruise ship in this example is large, there operation of other power-driven doing so would result in a fundamental are many areas where a person using an mobility devices. The use of gasoline- alteration of their services, programs, or EPAMD can be easily accommodated, powered golf cars by people with activities. including decks and spaces where passengers If a public accommodation restricts disabilities inside a building may be routinely walk and exercise, under certain weather conditions. However, the the use of power-driven mobility prohibited, for example, because the exhaust may be harmful to others. A dimensions of the ship, as on most such devices by people without disabilities, vessels, are more compact than analogous then it must develop policies addressing mobility device that is unsafe to others would not be reasonable under the features of facilities on land and may contain which devices and under what thresholds and other features that present circumstances individuals with proposed regulation. Additionally, the obstacles to some EPAMDs. Therefore, with disabilities may use power-driven risk of harm to the environment or respect to some areas, such as the mobility devices for the purpose of natural or cultural resources or conflicts passageways in cabin areas where the spaces mobility. Under the Department’s with federal land management laws and are narrow and ceilings are low, the cruise proposed regulation in § 36.311(c), regulations are also to be considered. ship may determine that allowing an public accommodations must adopt The final consideration is the ability of individual with a disability to use an EPAMD the public accommodation to stow the for mobility would result in a fundamental policies and procedures regarding the alteration to some of the cruise ship areas. In accommodation of power-driven mobility device when not in use, if requested by the user. these constricted areas, the cruise ship staff mobility devices other than wheelchairs may offer a wheelchair or other means of and scooters that are designed to assess While a public accommodation may locomotion where the EPAMD would be whether allowing an individual with a inquire into whether the individual is inappropriate. If the cruise ship in this disability to use a power-driven using the device due to a disability, the example is smaller, it may be necessary for mobility device is reasonable and does entity may not inquire about the nature the staff to restrict the use of EPAMDs in not result in a fundamental alteration to and extent of the disability, as provided most or all areas. its programs, services, or activities. in § 36.311(d). The Department is seeking public Public accommodations may establish The Department anticipates that, in comment on the proposed definitions policies and procedures that address many circumstances, allowing the use of and policy concerning wheelchairs and and distinguish among types of mobility unique mobility devices by individuals other mobility devices. devices. with disabilities will be reasonable to Question 47: Are there types of For example, an amusement park may provide access to a public personal mobility devices that must be determine that it is reasonable to allow accommodation’s services, programs, accommodated under nearly all individuals with disabilities to use and activities, and that in many cases it circumstances? Conversely, are there EPAMDs in a variety of outdoor will not fundamentally alter the public types of mobility devices that almost programs and activities, but that it accommodation’s operations and always will require an assessment to would not be reasonable to allow the services. On the other hand, the use of determine whether they should be use of golf cars as mobility devices in mobility devices that are unsafe to accommodated? Please provide similar circumstances. At the same time, others, or unusually unwieldy or examples of devices and circumstances the entity may address its concerns disruptive, is unlikely to be reasonable in your responses. about factors such as space limitations and may constitute a fundamental Question 48: Should motorized by disallowing EPAMDs by members of alteration. devices that use fuel or internal- the general public. Consider the following examples: combustion engines (e.g., all-terrain

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vehicles) be considered personal Standards and the proposed standards publication of a final rule by mobility devices that are covered by the provide in the definition of ‘‘alteration’’ establishing: (1) The effective date after ADA? Are there specific circumstances that ‘‘[n]ormal maintenance, reroofing, publication of the final rule; and (2) the in which accommodating these devices painting or wallpapering * * * are not triggering event for compliance with the would result in a fundamental alterations unless they affect the proposed standards (i.e., the event or alteration? usability of the building or facility.’’ action that compels compliance with Question 49: Should personal the proposed standards). mobility devices used by individuals Section 36.406 Standards for New Attachment A to this proposed rule is with disabilities be categorized by Construction and Alterations an analysis of the major changes in the intended purpose or function, by indoor Section 36.406(a)(2) Applicable proposed standards and a discussion of or outdoor use, or by some other factor? Standards the public comments that the Why or why not? Section 306 of the ADA, 42 U.S.C. Department received on specific Subpart D—New Construction and 12186, directs the Attorney General to sections of the 2004 ADAAG. In Alterations issue regulations to implement title III addition to those comments, the that are consistent with the guidelines Department also received some Subpart D establishes the title III comments that raised issues concerning requirements applicable to new published by the Access Board. Commenters suggested that the the scope of the coverage of the construction and alterations. The proposed standards, the Department’s Department is proposing to amend this Department should not adopt the 2004 ADAAG, but should develop an decision to adopt them, and the subpart to adopt the proposed standards established methods of interpretation. and to make related changes to give independent regulation. The Department is a statutory member of the Comments discussing the costs and effect to these changes, as described benefits of the proposed standards will below. Access Board and was actively involved in the development of the 2004 ADAAG. be addressed in the discussion of the Section 36.403 Alterations and Path of Because of the Department’s long Department’s regulatory impact Travel involvement in the process to develop analysis. Comments on the effect of the The Department is proposing one the 2004 ADAAG, the Department does proposed standards on existing facilities change to § 36.403 on alterations and not believe that it is necessary or will be discussed in conjunction with path of travel by adding a path of travel appropriate to begin that lengthy the analysis of § 36.304 of this proposed safe harbor. Proposed § 36.403(a)(1) process anew. Nevertheless, during the rule. The remaining comments states that if a private entity has process of drafting this NPRM, the addressed global issues, such as the constructed or altered required elements Department has reviewed the 2004 Department’s proposal to adopt the 2004 of a path of travel in accordance with ADAAG to determine if additional ADAAG as the ADA Standards for the 1991 Standards, the private entity is regulatory provisions are necessary. As Accessible Design without significant not required to retrofit such elements to a result of this review, the Department changes and the application of the reflect incremental changes in the has decided to propose new sections, proposed standards to employee areas. proposed standards solely because of an which are contained in §§ 36.406(b)–(g), Several commenters, including alteration to a primary function area to clarify how the Department will individual business owners and served by that path of travel. The apply the proposed standards to social organizations representing business Department is not proposing any service establishments, housing at interests, questioned the application of additional changes to §§ 36.402 through places of education, assembly areas, and the proposed standards to employee 36.405, which establish requirements medical care facilities. Each of these work areas, maintaining that all for alterations. Some commenters provisions is discussed below. employment issues should be subject to suggested that the definition of The Department is proposing to adopt title I of the ADA, 42 U.S.C. 12111 et alteration be modified to provide more the proposed standards and to establish seq. These comments indicate a guidance on what actions trigger the effective date and triggering event fundamental misunderstanding of the application of the proposed standards for the new coverage. Specifically, the statutory scope of title III coverage and generally, and the extent to which an Department is proposing to amend the scope of the 1991 Standards. The commenters correctly observed alteration triggers an additional path of § 36.406(a) by dividing it into two that title I prohibits discrimination travel obligation. sections. Proposed § 36.406(a)(1) against individuals with disabilities Consequently, the Department is specifies that new construction and employed in a business that has fifteen proposing a safe harbor to clarify alterations subject to this part shall or more employees. Title III has no alteration requirements as they pertain comply with the proposed standards if direct effect on that employer/employee to path of travel. One commenter noted physical construction of the property relationship, but does establish that changing a door lock on a hotel commences less than six months after requirements for the design, guest room would trigger requirements the effective date of the proposed rule. construction, or alteration of both public to make the path of travel accessible. Proposed § 36.406(a)(2) specifies that accommodations and commercial This suggestion is expressly rejected by new construction and alterations subject facilities, 42 U.S.C. 12183. As the the language of the existing regulation to this part shall comply with the Department explained in the preamble in § 36.403(c)(2), which makes clear that proposed standards if physical to its 1991 NPRM to implement title III: ‘‘alterations to windows, hardware, construction of the property commences controls, electrical outlets, and signage six months or more after the effective Commercial facilities are those facilities shall not be deemed to be alterations date. The Department is also proposing that are intended for nonresidential use by a that affect the usability of or access to to delete the advisory information now private entity and whose operations affect commerce . * * * [T]he new construction an area containing a primary function.’’ published in a table at § 36.406(b). and alteration requirements of subpart D of Commenter suggestions that painting The ANPRM gave notice that the the [1991] rule apply to all commercial and wallpapering be expressly excluded Department must determine when the facilities, whether or not they are places of from the definition of alterations are proposed standards will apply to newly public accommodation. Those commercial similarly unnecessary as both the 1991 constructed facilities following the facilities that are not places of public

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accommodation are not subject to the requirement to provide accessible advocacy groups and individuals argued requirements of subparts B and C (e.g., those common use circulation paths, subject that the revised regulation should be requirements concerning auxiliary aids and to several exceptions. Specific effective upon final publication, or very general nondiscrimination provisions). comments received on employee work soon thereafter. Many commenters Congress recognized that the employees within commercial facilities would generally areas are addressed in Appendix A. asserted that the importance of be protected under title I (employment) of the Finally, one commenter suggested providing increased accessibility for Act. However, as the House Committee on that the Department should adopt a people with disabilities necessitates that Education and Labor pointed out, ‘‘[t]o the system for providing formal the proposed standards become effective extent that new facilities are built in a interpretations of the ADA Standards for as soon as possible. manner that make[s] them accessible to all Accessible Design, analogous to the The current situation is substantially individuals, including potential employees, code interpretation systems used by the different from the conditions that there will be less of a need for individual states and the major model codes. prevailed in 1990 when the ADA was employers to engage in reasonable Because the ADA is a civil rights first enacted. Covered entities are no accommodations for particular employees.’’ statute—rather than a building code— longer dealing with a new statutory H.R. Rep. No. 101–485, Part 2, at 117 (1990) the statute does not contemplate or obligation. Rather, the Department is . * * * While employers of fewer than 15 employees are not covered by title I’s authorize a formal code interpretation dealing with a transition between two employment discrimination provisions, there system. The ADA anticipated that there similar editions of the title III is no such limitation with respect to new would be a need for close coordination regulation. Therefore, the Department construction covered under title III. Congress of the ADA building requirements with proposes that covered entities must chose not to so limit the new construction the state and local requirements. comply with the proposed standards for provisions because of its desire for a uniform Therefore, the statute authorized the construction that begins six months requirement of accessibility in new Attorney General to establish an ADA after publication of the final rule as an construction, because accessibility can be code certification process, which is appropriate balancing of stakeholder accomplished easily in the design and addressed in subpart F of this rule. concerns. construction stage, and because future In addition, the Department operates This approach is consistent with the expansion of a business or sale or lease of the an extensive technical assistance approach of other federal agencies that property to a larger employer or to a business that is a place of public accommodation is program. The Department anticipates are in the process of adopting the 2004 always a possibility. that once this rule is final, it will revise ADAAG: The Department of its existing technical assistance Transportation (DOT), which is 56 FR 7455 (Feb. 22, 1991). The materials to provide guidance about the generally responsible for the Department’s proposed rule merely implementation of this rule. enforcement of title II of the ADA with continues this long-standing Effective date: Time period. When the respect to public transportation, and the interpretation of title III’s application to ADA was enacted, the effective dates for General Services Administration (GSA), commercial facilities (and employee various provisions were delayed in which has adopted the Access Board’s areas within public accommodations). order to provide time for covered Architectural Barriers Act (ABA) 56 FR 35544, 35547 (July 26, 1991). entities to become familiar with their guidelines to replace the Uniform Several commenters suggested that new obligations. Titles II and III of the Federal Accessibility Standards (UFAS). the proposed standards would establish ADA generally became effective on DOT’s final rule adopting the 2004 new requirements applicable to January 26, 1992, six months after the ADAAG became effective shortly after employee-only areas, such as restrooms, regulations were published. New publication. See 71 FR 63263 (Oct. 30, locker rooms, cafeterias, and break construction under title II and 2006) (to be codified at 49 CFR part 37). rooms. These comments misunderstand alterations under either title II or title III Likewise, GSA adopted an effective date the current law. The 1991 Standards had to comply with the design of six months following publication of apply to the new construction of, or standards on that date. For new the final rule. See 70 FR 67786 (Nov. 8, alteration to, commercial facilities construction under title III, the 2005). (including employee areas of public requirements applied to facilities Effective date: Triggering event. In the accommodations), unless a specific designed and constructed for first ANPRM, the Department suggested exemption applies. Employee common- occupancy after January 26, 1993— ‘‘first use’’ as an alternative triggering use areas, such as those listed above, eighteen months after the 1991 event for facilities that do not require have been subject to title III and to Standards were published by the building permits or that do not receive subpart D of the implementing Department. certificates of occupancy. The regulation, including the provisions in The ANPRM presented three options Department received many comments in the 1991 Standards. This coverage for the effective date time period: response to this suggestion, as well as means that unless the area is subject to Option I, providing that the effective criticisms of the current triggering event a specific exemption, it must comply date of the proposed standards would be for new construction under title III. with the Standards and it must be on an eighteen months after publication of the Some commenters noted that permitting accessible route. The proposed final rule; Option II, providing that the requirements for construction projects standards will not change that coverage. effective date of the proposed standards covered by title III vary across both The major change in the rule is in the would be six months after publication of states and localities. For example, some treatment of employee work areas. the final rule; or Option III, providing jurisdictions in Iowa do not have Under the 1991 Standards, section that the effective date of the proposed building codes applying to title III 4.1.1(3), areas used only as work areas standards would be twelve months after entities, while Kentucky and Chicago do are only required to permit a person publication of the final rule. not require building permits and using a wheelchair to approach, enter, The Department received numerous certificates of occupancy for and exit the area. Because of public comments on this issue. The majority of construction under certain monetary comment suggesting that owners of business, trade, and government thresholds. Owners and operators of commercial facilities were not providing organizations advocated eighteen play areas and recreational facilities accessible routes within the facility, months or more from publication of the commented that the permitting process proposed section 206.2.8 contains a final rule. In contrast, many disability for such projects, when it exists, is

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different from those involving typical commencement of construction would these new types of facilities complicate buildings. Specifically, the current title be ambiguous or problematic. determinations of ADA coverage, III triggering events are ill-suited for prompting questions from both industry Section 36.406(b) Application of application to many elements of golf and individuals with disabilities. While Standards to Fixed Elements and miniature golf sites, amusement the Department has interpreted the ADA rides and attractions, playgrounds, park The Department is proposing a new to encompass these hotel-like facilities facilities without electricity, and similar § 36.406(b) that would clarify that the when they are used to provide transient entities. requirements established by this lodging, the regulation has not The information provided by section, including those contained in specifically addressed them. Therefore, commenters indicates that the first-use the proposed standards (and the 2004 the Department is proposing a new approach would not provide adequate ADAAG) prescribe the requirements § 36.406(c), entitled, ‘‘Places of guidance on when the proposed necessary to ensure that fixed or built- lodging,’’ which clarifies that places of standards would apply to certain in elements in new or altered facilities lodging including time-shares, facilities and elements. Several are accessible to people with condominium hotels, and mixed-use commenters suggested the start of disabilities. Once the construction or and corporate hotel facilities shall construction as the triggering event alteration of a facility has been comply with the provisions of the because it would eliminate confusion completed, all other aspects of proposed standards, including but not over facilities that do not require programs, services, and activities limited to the requirements for transient permitting. Using the start of conducted in that facility are subject to lodging in sections 224 and 806 of the construction as the triggering event the operational requirements 2004 ADAAG. would harmonize title III’s requirements established elsewhere in this regulation. The proposed rule, in the definitions for new construction with the Although the Department often chooses section, clarifies that a covered ‘‘place of to use the requirements of the 1991 requirements for new construction and lodging’’ is a facility that provides guest Standards as a guide to determining alterations under title II and alterations rooms for sleeping for stays that are when and how to make equipment and under title III. Several commenters on primarily short-term in nature (generally furnishings accessible, those coverage this issue urged the Department to use two weeks or less), to which the determinations fall within the the same triggering events for title II and occupant does not have the right or discretionary authority of the title III. intent to return to a specific room or The Department has been persuaded Department; they do not flow unit after the conclusion of his or her by these comments to propose a automatically from the Standards. stay, and which operates under triggering event paralleling that for the The Department is also clarifying that conditions and with amenities similar to alterations provisions (i.e., the date on the advisory notes, appendix notes, and a hotel, motel, or inn, particularly which construction begins). This would figures that accompany the 1991 including factors such as: (1) An on-site apply clearly across all types of covered Standards do not establish separately proprietor and reservations desk; (2) public accommodations, and the enforceable requirements. This Department plans to clarify what clarification has been made to address rooms available on a walk-up basis; (3) constitutes the start of construction concerns expressed by commenters who linen service; and (4) a policy of based on responses to this NPRM. This mistakenly believed that the advisory accepting reservations for a room type approach poses fewer problems than the notes in the 2004 ADAAG established without guaranteeing a particular unit first-use approach by measuring only requirements beyond those established or room until check-in, without a prior the date on which physical construction in the text of the guidelines (e.g., lease or security deposit. Time-shares commences. Advisory 504.4 suggests, but does not and condominiums or corporate hotels For prefabricated elements such as require, that covered entities provide that do not meet this definition will not modular buildings and amusement park visual contrast on stair tread nosings to be covered by § 36.406(c) of the rides and attractions, or installed make them more visible to people with proposed regulation, but will likely be equipment such as ATMs, the low vision). covered by the requirements of the Fair Department proposes that the start of Housing Act, 42 U.S.C. 3601 et seq. The construction means the date on which Section 36.406(c) Places of Lodging Department is seeking public input on the site preparation begins. Site The Department is proposing to add a this proposal. preparation includes providing an new § 36.406(c) to clarify the scope of Question 51: The Department requests accessible route to the element. coverage for places of lodging. For many comments on determining the Question 50: The Department years the Department has received appropriate basis for scoping for a time- proposes using the start of construction inquiries from members of the public share or condominium-hotel. Is it the as the triggering event for applying the seeking clarification of ADA coverage of total number of units in the facility, or proposed standards to new construction rental accommodations in time-shares, some smaller number, such as the under title III. The Department asks for condominium hotels, and mixed-use number of units participating in the public comment on how to define the and corporate hotel facilities that rental program, or the number of units start of construction and the practicality operate as places of lodging (as that term expected to be available for rent on an of applying commencement of is now defined in § 36.104). This section average night the most appropriate construction as a triggering event. Is the proposes to address the treatment of measure? proposed definition of the start of these hotel-like facilities that have Question 52: The Department’s construction sufficiently clear and attributes of both residential dwellings proposed definition of ‘‘place of inclusive of different types of facilities? and transient lodging facilities. These lodging’’ includes facilities that are Please be specific about the situations hybrid facilities have become primarily short-term in nature, i.e., two that are not covered in the proposed increasingly popular since the ADA’s weeks or less in duration. Is ‘‘two weeks definitions, and suggest alternatives or enactment in 1990 and make up the or less’’ the appropriate dividing line additional language. In addition, the majority of new hotel construction in between transient and residential use? Is Department asks that the public identify some vacation destinations. The hybrid thirty days a more appropriate dividing facilities subject to title III for which residential and lodging characteristics of line?

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Question 53: The Department believes the 2004 ADAAG. The Department dwelling unit requirements to homeless that the scoping and technical considers this is a prudent action based shelters and similar social service requirements for transient lodging, on its effect on social service providers. establishments is appropriate to the rather than those for residential Transferring coverage of social service nature of the services being offered at dwelling units, should apply to these establishments from transient lodging to those facilities, and because it will places of lodging. Is this the most residential dwellings will alleviate harmonize the ADA and section 504 appropriate choice? conflicting requirements for social requirements applicable to those Question 54: How should the service providers. The Department facilities. In addition, the Department Department’s regulation provide for a believes that a substantial percentage of believes that the proposal is consistent situation in which a new or converted social service providers are recipients of with its obligations under the facility constructs the required number federal financial assistance from HUD. Regulatory Flexibility Act to provide of accessible units, but the owners of The Department of Health and Human some regulatory relief to small entities those units choose not to participate in Services (HHS) also provides financial that operate on limited budgets. the rental program? Does the facility assistance for the operation of shelters Nevertheless, the Department is have an obligation to encourage or through the Administration for Children requesting information from providers require owners of accessible units to and Families programs. As such, they who operate homeless shelters, transient participate in the rental program? Does are covered both by the ADA (including group homes, halfway houses, and other the facility developer, the condominium section 9.5 of the 1991 Standards) and social service establishments, and from association, or the hotel operator have section 504. The two design standards the clients of these facilities who would an obligation to retain ownership or for accessibility (i.e., the 1991 Standards be affected by this proposed change. control over a certain number of and UFAS) have confronted many social Question 56: To what extent have accessible units to avoid this problem? service providers with separate, conflicts between the ADA and section Question 55: How should the sometimes conflicting requirements for 504 affected these facilities? What Department’s regulation establish the the design and construction of facilities. would be the effect of applying the scoping for a time-share or To resolve the conflicts, the residential residential dwelling unit requirements condominium-rental facility that dwelling standards in the 2004 ADAAG to these facilities, rather than the decides, after the sale of units to have been coordinated with the section requirements for transient lodging guest individual owners, to begin a rental 504 requirements. The transient lodging rooms? program that qualifies the facility as a standards, however, are not similarly Another commenter expressed place of lodging? How should the coordinated. The deletion of section 9.5 concern about how the Department condominium association, operator, or of the 1991 Standards from the would address dormitory-style settings developer determine which units to proposed standards presents two in homeless shelters, transient group make accessible? options: (1) Require coverage under the homes, halfway houses, and other social transient lodging standards, and subject service establishments if they are Section 36.406(d) Social Service scoped as residential dwelling units. Establishments such facilities to separate, conflicting requirements for design and The commenter noted that the transient The Department is proposing a new construction; or (2) require coverage lodging requirements include a specific § 36.406(d) that provides that group under the residential dwelling section, provision, § 224.3, that in guest rooms homes, halfway houses, shelters, or which harmonizes the regulatory with more than twenty-five beds, at similar social service establishments requirements under the ADA and least five percent (5%) of the beds must that provide temporary sleeping section 504. The Department chose the have parallel clear floor space enabling accommodations or residential dwelling option that harmonizes the regulatory a person using a wheelchair to access units shall comply with the provisions requirements. and transfer to the bed. The residential of the proposed standards applicable to In response to its request for public dwelling unit section does not explicitly residential facilities, including, but not comments on this issue, the Department include a similar provision. limited to, the provisions in sections received a total of eleven responses from In response to this concern, the 233 and 809 of the 2004 ADAAG. industry and disability rights groups Department has added § 36.406(d)(1), The reasons for this proposal are and advocates. Some commenters which states that in settings in which based on two important changes in the representing disability rights groups the sleeping areas include more than 2004 ADAAG. For the first time, expressed concern that the residential twenty-five beds, and in which the residential dwellings are explicitly dwelling requirements in the 2004 residential dwelling unit requirements covered in section 233 of the 2004 ADAAG are less stringent than the apply, five percent (5%) of the beds ADAAG. Second, the language revised transient lodging requirements must comply with section 806.2.3 of the addressing scoping and technical and would result in diminished access 2004 ADAAG (i.e., at least five percent requirements for homeless shelters, for people with disabilities. (5%) must have parallel clear floor group homes, and similar social service The commenters are correct that in space on both sides of the bed enabling establishments is eliminated. Currently, some circumstances, the residential a person using a wheelchair to access such establishments are covered in the requirements are less stringent, and transfer to the bed). transient lodging section (section 9.5) of particularly with respect to accessibility Definitions of residential facilities and the 1991 Standards. The deletion of for people with communication-related transient lodging. The 2004 ADAAG section 9.5 creates ambiguity of disabilities. Other differences are that adds a definition of ‘‘residential coverage that must be addressed. the residential guidelines do not require dwelling unit’’ and modifies the current The Department proposed in the elevator access to upper floors if the definition of ‘‘transient lodging’’ in the ANPRM that the establishments required accessible features can be 1991 Standards. Under section 106.5 of currently covered by section 9.5 be provided on a single, accessible level, the 2004 ADAAG, a ‘‘residential covered as residential dwelling units, and the residential guidelines do not dwelling unit’’ is defined as ‘‘a unit which are covered in section 233 of the expressly require roll-in showers. intended to be used as a residence, that 2004 ADAAG, rather than as transient Despite this, the Department still is primarily long-term in nature’’ and lodging guest rooms in section 224 of believes that applying the residential does not include transient lodging,

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inpatient medical care, licensed long- jurisdiction of HUD, which is the bathing, kitchen, and similar common term care, and detention or correctional agency charged with the responsibility facilities. facilities. Additionally, section 106.5 of to develop regulations to implement the Private schools are subject to title III the 2004 ADAAG, changes the Fair Housing Act, the Architectural and are required to make their programs definition of ‘‘transient lodging’’ to a Barriers Act, and the provisions of and activities accessible to individuals building or facility ‘‘containing one or section 504 applicable to federally with disabilities. Throughout the school more guest room[s] for sleeping that funded housing programs. year and the summer, school provides accommodations that are dormitories can become program areas primarily short-term in nature’’ and Section 36.406(e) Housing at a Place of in which small groups meet, receptions does not include residential dwelling Education and educational sessions are held, and units intended to be used as a residence. The Department of Justice and the social activities occur. The ability to The references to ‘‘dwelling units’’ and Department of Education share move between rooms—both accessible ‘‘dormitories’’ in the 1991 Standards responsibility for regulation and rooms and standard rooms—in order to definition are omitted in the 2004 enforcement of the ADA in socialize, to study, and to use all public ADAAG definition of transient lodging. postsecondary educational settings, and common use areas is an essential The Department said in the ANPRM including architectural features. part of having access to these that by applying the 2004 ADAAG Housing types in educational settings educational programs and activities. residential facility guidelines to range from traditional residence halls Applying the requirements for transient group homes, homeless and dormitories to apartment or residential facilities to school shelters, halfway houses, and other townhouse-style residences. In addition dormitories could hinder access to social service establishments, these to the ADA and section 504, other educational programs for students with facilities would be more appropriately federal laws, including the Fair Housing disabilities. The prior discussion about classified according to the nature of the Act of 1968, may apply. Covered entities social service establishments with services they provide, rather than the subject to the ADA must always be sleeping accommodations explains that duration of those services. Participants aware of, and comply with, any other the requirements for dispersing in these programs may be housed on federal statutes or regulations that accessible units would not necessarily either a short-term or long-term basis in govern the operation of residential require an elevator or access to different such facilities, and variation occurs properties. levels of a facility. Conversely, applying the transient lodging requirements to even within the same programs and Since the enactment of the ADA, the same facility. Therefore, duration can be school dormitories would necessitate Department has received many an inconsistent way of classifying greater access throughout the facility for questions about how the ADA applies to facilities. students with disabilities. Therefore, the educational settings, including school Several commenters stated that the Department requests public comment on dormitories. Neither the 1991 Standards definitions of residential dwellings and how to scope school dormitories. transient lodging are not clear and will nor the 2004 ADAAG specifically Question 57: Would the residential confuse social service providers. They addresses how it applies to housing in facility requirements or the transient noted that including ‘‘primarily long- educational settings. Therefore, the lodging requirements in the 2004 term’’ and ‘‘primarily short-term’’ in the Department is proposing a new ADAAG be more appropriate for respective definitions creates confusion § 36.406(e) that provides that residence housing at places of education? How when applied to the listed facilities halls or dormitories operated by or on would the different requirements affect because they serve people for widely behalf of places of education shall the cost when building new dormitories varying lengths of time. comply with the provisions of the and other student housing? The Department is aware of the wide proposed standards for transient range of services and duration of lodging, including, but not limited to, Section 36.406(f) Assembly Areas services provided by social service the provisions in sections 224 and 806 The Department is proposing a new establishments. Therefore, rather than of the 2004 ADAAG. Housing provided § 36.406(f) to supplement the assembly focus on the length of a person’s stay at via individual apartments or areas requirements in the proposed a facility, it makes more sense to look townhouses will be subject to the standards. This provision would impose at a facility according to the type of requirements for residential dwelling four additional requirements. services provided. For that reason, units. Proposed § 36.406(f)(1) requires rather than saying that social service Public and private school dormitories wheelchair and companion seating establishments are residential facilities, have varied characteristics. Like social locations to be dispersed so that some the Department has drafted the service establishments, schools are seating is available on each level served proposed § 36.406(d) to provide that generally recipients of federal financial by an accessible route. This should have group homes and other listed facilities assistance and are subject to both the the effect of ensuring a choice of ticket shall comply with the provisions in the ADA and section 504. College and prices, services, and amenities offered 2004 ADAAG that would apply to university dormitories typically provide in the facility. Factors distinguishing residential facilities. housing for up to one academic year, specialty seating areas are generally Finally, the Department received but may be closed during school dictated by the type of facility or event, comments from code developers and vacation periods. In the summer, they but may include such distinct services architects commending the decision to are often used for short-term stays of and amenities as: Reserved seating coordinate the 2004 ADAAG with the one to three days, a week, or several (when other seats are sold on a first- requirements of section 504, and asking months. They also are diverse in their come-first-served basis only); reserved it to coordinate the 2004 ADAAG with layout. Some have double-occupancy seating in sections or rows located in the Fair Housing Act’s accessibility rooms and a toilet and bathing room premium locations (e.g., behind home requirements. The Department believes shared with a hallway of others, while plate or near the home team’s end zone) that the coordination of the Fair others may have cluster, suite, or group that are not otherwise available for Housing Act with other applicable arrangements where several rooms are purchase by other spectators; access to disability rights statutes is within the located inside a secure area with wait staff for in-seat food or beverage

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service; availability of catered food or that are needed for ambulatory commenters representing the health care beverages for pre-game, intermission, or spectators and are not wanted by industry pointed out that treatment post-game meals; restricted access to individuals who use wheelchairs and areas in health care facilities can be very lounges with special amenities (such as their companions. fluid due to fluctuation in the couches or flat-screen televisions); or For these reasons, the Department population and other demographic and access to team personnel or facilities for believes that it is necessary and medical funding trends. The Access team-sponsored events (e.g., autograph appropriate to prohibit the use of Board decided not to add a dispersion sessions, sideline passes, or facility temporary platforms in fixed seating requirement because compliance over tours) not otherwise available to other areas. Nothing in this section is the lifetime of the facility could prove spectators. intended to prohibit the use of difficult given the need for flexibility of Proposed § 36.406(f)(2) reiterates the temporary platforms to increase the spaces within such facilities. The longstanding requirement that available seating, e.g., platforms that Department recognizes that it may be wheelchair and companion seating must cover a basketball court or hockey rink difficult to ensure a perfect distribution be integrated in the seating area, and when the arena is being used for a of rooms throughout all specialty areas adds a new prohibition: that the seating concert. These areas of temporary in a hospital, but the Department is may not be placed on temporary seating do not remove required concerned that the absence of any platforms or other movable structures. wheelchair locations and, therefore, dispersion requirement may result in The Department has become aware that would not violate the requirements of inappropriate concentrations of a growing trend in the design of large this regulation. In addition, covered accessible rooms. sports facilities is to provide wheelchair entities would still be permitted to use Question 58: Is there a way to ensure seating on removable platforms that seat individual movable seats to infill any that accessible hospital rooms are four or more wheelchair users and their wheelchair locations that are not sold to dispersed throughout the facility in a companions. These platforms cover one wheelchair users. way that will not unduly restrain the or more rows of standard seating. The Proposed § 36.406(f)(3) requires ability of hospital administrators to platforms are designed to be removed so facilities that have more than 5,000 seats allocate space as needed? The 1991 that the part of the seating bowl they to provide at least five wheelchair Standards require that ten percent cover can be used to seat additional locations with at least three companion (10%) of the patient bedrooms be ambulatory spectators. The sale of any seats for each wheelchair space. The accessible. If it is not feasible to seats in the covered area requires Department is proposing this distribute these rooms among each of removal of the platform, thereby requirement to address complaints from the specialty areas, would it be eliminating some of the required many wheelchair users that the practice appropriate that required accessible wheelchair seating locations. In another of providing a strict one-to-one rooms be dispersed so that there are design that produces a similar result, relationship between wheelchair accessible patient rooms on each floor? removable platforms configured to locations and companion seating often Are there other methods of dispersal provide multiple, non-wheelchair seats prevents family members from attending that would be more effective? are installed over some or all of the events together. Section 36.407 Temporary Suspension required wheelchair seating locations. Proposed § 36.406(f)(4) provides more of Certain Detectable Warning In this configuration, selling a ticket for precise guidance for designers of Requirements one wheelchair location requires the stadium-style movie theaters by The Department has removed removal of multiple standard seats. requiring such facilities to locate The Department believes that both of § 36.407, entitled, ‘‘Temporary wheelchair seating spaces and these designs violate both the letter and suspension of certain detectable companion seating on a riser or cross- the intent of this regulation. Both warning requirements,’’ because the aisle in the stadium section that satisfies designs have the potential to reduce the suspension has expired. at least one of the following criteria: number of available wheelchair seating Other spaces below the level required. (i) It is located within the rear sixty percent Reducing the number of available (60%) of the seats provided in an auditorium; Miniature Golf Courses. The spaces is likely to result in reducing the or Department proposes to adopt the opportunity for people who use (ii) It is located within the area of an requirements for miniature golf courses auditorium in which the vertical viewing in the 2004 ADAAG. However, it wheelchairs to have the same choice of angles (as measured to the top of the screen) ticket prices and access to amenities are from the 40th to the 100th percentile of requests public comment on a suggested that are available to other patrons in the vertical viewing angles for all seats as ranked change to the requirement for holes to facility. In addition, placing wheelchair from the seats in the first row (1st percentile) be consecutive. A commenter seating on removable platforms may to seats in the back row (100th percentile). association argued that the ‘‘miniature have a disproportionate effect on the golf experience’’ includes not only Section 36.406(g) Medical Care availability of seating for individuals putting but also enjoyment of ‘‘beautiful Facilities who use wheelchairs and their landscaping, water elements that companions attempting to buy tickets The Department is aware that the include ponds, fountain displays, and on the day of the event. Use of Access Board sought comment on how lazy rivers that matriculate throughout removable platforms may result in dispersion of accessible sleeping rooms the course and themed structures that instances where last minute requests for can effectively be achieved and allow players to be taken into a ‘fantasy- wheelchair and companion seating maintained in medical care facilities like’ area.’’ Thus, requiring a series of cannot be met because entire sections of such as hospitals. In response, consecutive accessible holes would wheelchair seating will be lost when a commenters representing people with limit the experience of guests with platform is removed. The use of disabilities supported a requirement for disabilities to one area of the course. To movable seats, on the other hand, could dispersion of accessible sleeping rooms remedy this situation, the association meet such a demand without among all types of medical specialty suggests allowing multiple breaks in the eliminating blocks of wheelchair seating areas, such as obstetrics, orthopedics, sequence of accessible holes while at a time, converting only those seats pediatrics, and cardiac care. Conversely, maintaining the requirement that the

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accessible holes are connected by an determined in the past to meet or to the benefits of providing more accessible route. exceed the 1991 Standards. Once the technical guidance regarding the The suggested change would need to proposed standards take effect, consistency of model codes with the be made by the Access Board and then certifications issued under the 1991 ADA’s requirements. In that regard, the adopted by the Department, and if Standards would not have any future Department expects to make available, adopted, it would apply to all miniature effect, and states and local jurisdictions in conjunction with its publication of golf courses, not only existing miniature with codes certified under the 1991 the proposed standards, information golf facilities. Standards would need to reapply for indicating differences between the 1991 Question 59: The Department would certification under the proposed Standards and the proposed standards, like to hear from the public about the standards once adopted. The and the model code of the International suggestion of allowing multiple breaks Department will make every effort to Code Council and other model codes. in the sequence of accessible holes, give these requests priority in the Many commenters, including a state provided that the accessible holes are review process. With regard to elements enforcement agency, business connected by an accessible route. of existing buildings and facilities organizations, and individuals with Should the Department ask the Access constructed in compliance with a code disabilities, urged the Department to Board to change the current requirement when a certification of equivalency was eliminate the requirement that an in the 2004 ADAAG? in effect, the proposed rule would informal hearing be held in Washington, Subpart F—Certification of State Laws require that in any enforcement action DC, after issuance of a preliminary or Local Building Codes this would be treated as rebuttable determination of equivalency, and to evidence of compliance with the Act’s add a requirement that the hearing be Subpart F contains procedures standards then in effect, which may held within the affected jurisdiction, implementing section 308(b)(1)(A)(ii) of implicate the barrier removal since it would provide better the ADA, which provides that, on the obligations of existing facilities and the opportunities for interested parties to application of a state or local ‘‘safe harbor’’ approach. attend and participate. Consistent with jurisdiction, the Attorney General may Many commenters, including these comments, the Department has certify that a state or local building code business organizations, a professional renumbered § 36.605 as § 36.604, and or similar ordinance meets or exceeds association, disability rights groups, and has proposed a new requirement: If the the minimum accessibility requirements individuals with disabilities, urged that Assistant Attorney General makes a of the Act. In enforcement proceedings, the Department take steps overall to preliminary determination of this certification will constitute streamline the certification process— equivalency, a hearing will be held in rebuttable evidence that the law or code including the initial request for the state or local jurisdiction charged meets or exceeds the ADA’s certification process—and make it less with administration and enforcement of requirements. In its ANPRM, the time consuming and easier to the code. Department proposed changes that ‘‘navigate’’ for state and local Two commenters, a professional would streamline the process for public jurisdictions. In response to these association and a model code entities seeking certification. comments, the Department has deleted organization, urged the Department to In response to the comments received, the current language in § 36.603, which add to the process for certifying state the Department proposes three changes established the obligations of a and local codes a procedure for in Subpart F. First, the Department submitting authority seeking determining ADA-compliant design and proposes to delete § 36.603, which certification of its code. The Department construction alternatives or equivalent establishes the obligations of a anticipates that in place of § 36.603, it facilitation, or alternatively, to adopt a submitting authority that is seeking will issue regulatory guidance in separate mechanism for such certification of its code. Due to the conjunction with the publication of the determinations modeled after a state proposed deletion of § 36.603, §§ 36.604 final rule that will provide more ‘‘barrier free’’ design board. One of these through 36.608 are renumbered, and streamlined submission requirements commenters also expressed frustration § 36.603 in the proposed rule is and greater flexibility in the submission that local building code officials in modified to indicate that the Assistant process. jurisdictions with certified codes lacked Attorney General for the Civil Rights The Department believes that with the the authority to issue binding Division (Assistant Attorney General) adoption of the proposed standards, the interpretations of ADA compliance and shall make a preliminary determination certification process will take suggested the transfer of such authority of equivalency after ‘‘receipt and review significantly less time to complete and in conjunction with a certification of all information relevant to a request will be a more straightforward process. determination. filed by a submitting official for In addition, it will be easier for The Department has considered these certification of a code.’’ Second, the jurisdictions to identify inconsistencies proposals, but notes that the approaches Department proposes that the with the ADA in advance of requesting suggested are not consistent with or requirement in § 36.605 (proposed certification, thereby facilitating the permissible under the statutory scheme § 36.604) (i.e., if the Assistant Attorney certification review process. The established by the ADA. Under the General makes a preliminary Department anticipates these results ADA, certification of state and local determination of equivalency, he or she because of the extensive efforts made by codes serves, to some extent, to mitigate shall hold an informal hearing in the Access Board, working in the absence of a federal mechanism for Washington, DC) be changed to a conjunction with model code reviewing nationally all architectural requirement that the hearing be held in organizations, to harmonize the 2004 plans and inspecting all covered the state or local jurisdiction charged ADAAG with the accessibility buildings under construction to ensure with administration and enforcement of provisions of the model codes, which compliance with the ADA. In this the code. Third, the Department form the basis of many state codes. regard, certification operates as a bridge proposes adding language to § 36.607 The Department also supports the between the obligation to comply with (proposed § 36.606) to explain the effect views of commenters who stressed the the 1991 Standards in new construction of the proposed standards on the codes importance of continued harmonization and alterations, and the administrative of state or local jurisdictions that were efforts by the Access Board, in addition schemes of state and local governments

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that regulate the design and ‘‘guidelines’’ but have not received period of five years so that the relevant construction process. By ensuring certification. All of these circumstances jurisdiction could amend its consistency between state or local codes require that ‘‘the certification process accessibility code to meet the proposed and federal accessibility standards, * * * start over under a new process.’’ standards once adopted. certification has the additional benefit The Department shares the commenter’s Two commenters, an architectural of streamlining the ‘‘regulatory concern regarding the importance of firm and an organization of disability process,’’ thereby making it easier for states with certified codes to update and access professionals, suggested that the those in the design and construction keep their code certifications current. In Department implement a re-certification industry to satisfy both state and federal that regard, the Department has process to: requirements. undertaken significant outreach to (1) Expedite those jurisdictions now Although certification has the remind states of the need to request certified; and (2) allow those potential to increase compliance with review from the Department for changes jurisdictions to retain their certifications the ADA, this result, however desirable, or amendments to a certified code. The while amending their accessibility is not guaranteed. The ADA Department also has written to states codes to meet the proposed standards. contemplated that there could be that have not sought code certification While the Department understands the enforcement actions brought even in to encourage them to do so. However, substantial commitment of time and states with certified codes, and provided certification is a voluntary process, and effort expended by states that have some protection in litigation to builders the Department cannot require that obtained certification of their codes, the who adhered to the provisions of the states with certified codes submit Department anticipates requiring code certified to be ADA-equivalent, amendments to a certified code any certification of equivalency for the without resorting to waivers or more than it can require the initial code accessibility requirements for variances. The certified code, however, certification. The Department will construction and alteration of title III remains within the authority of the continue to remind states with certified facilities on the basis of the proposed adopting state or local jurisdiction to codes that the protection in litigation standards once they take effect. Thus, interpret and enforce: certification does available through compliance with a states with codes certified under the not transform a state’s building code certified code does not extend to 1991 Standards will need to conform into federal law. Nor can certification uncertified code amendments. their codes to the proposed standards alone authorize state and local building The Department requested comment and obtain certification for the revised code officials implementing a certified in its ANPRM on what impact the code. Any other approach would place code to do more than they are proposed standards should have on the the Department in the untenable authorized to do under state or local status of accessibility requirements that position of the appearance of law, and these officials cannot acquire were previously determined to have met sanctioning the continued use of codes authority through certification to render or exceeded the 1991 Standards. A in certain parts of the country that are binding interpretations of federal law. number of commenters, including based upon outdated federal standards, Therefore, the Department, while business groups, retail associations, while requiring compliance with the understanding the interest in obtaining hotel chains, associations of amusement proposed standards in the rest of the greater assurance of compliance with parks, and a national chamber of country. With regard to facilities the ADA through the interpretation and commerce, urged the Department to constructed in compliance with a enforcement of a certified code by local allow each jurisdiction with a certified certified code prior to the proposed code officials, declines to amend the accessibility code to retain its standards, and during the period when regulation to reach what are purely state certification after the adoption of the a certification of equivalency was in and local processes of code enforcement proposed standards under ‘‘safe harbor’’ effect, the Department is considering an and administration or to attempt to provisions. Many of the same approach that may merge with the basic confer on local officials authority not commenters urged the Department to safe harbor discussed in § 36.304 with granted to them under the ADA. provide facilities constructed in respect to existing facilities constructed The Department also declines to accordance with currently certified in compliance with the 1991 Standards. propose modifications to the regulation accessibility codes meaningful So, for example, if the Department to require, as one individual commenter protection from litigation. adopts a safe harbor provision for all suggested, that the receipt of federal Other commenters expressed a elements in existing facilities funds be made contingent upon a state different view concerning the impact constructed in compliance with the or local government’s willingness to the proposed standards should have on 1991 Standards, then existing facilities bring its building code into compliance currently certified codes. A state in states with certified codes would be with the ADA and, ostensibly, obtain enforcement agency urged the eligible for a safe harbor if they were certification. The ADA establishes Department to allow each jurisdiction constructed in compliance with an certification as a voluntary process; with a certified accessibility code to ADA-certified code. In this scenario, altering the statutory scheme is beyond retain its certification only if the compliance with the certified code the Department’s authority. relevant jurisdiction could show that its would be treated as evidence of A comment received from a firm accessibility code meets the proposed compliance with the 1991 Standards for representing several business standards. An organization representing purposes of determining the application organizations questioned whether the people with disabilities urged the of the safe harbor provisions. Similarly, current certification process could ever Department to require each jurisdiction the Department believes that builders provide states with certified codes the with a certified accessibility code to who constructed in compliance with a opportunity to keep current with amend its accessibility code to meet the certified code should retain the changes in model codes because of proposed standards thirty days after protections in litigation that inflexibility in either the federal they are adopted. Another commenter, certification conferred, but only with rulemaking process or the certification an individual with a disability, urged regard to the ADA Standards in effect at process itself. The commenter also the Department to allow each the time. Therefore, in an enforcement pointed out that there are a number of jurisdiction with a certified accessibility action involving elements of existing states with codes that follow the current code to retain its certification for a facilities constructed in compliance

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with a certified code, compliance with facilities, and fishing piers or platforms. will all be included in the Department’s the certified code would continue to Many of these will be constructed as proposed standards. constitute rebuttable evidence of components of buildings and facilities Regulatory Process Matters compliance with the ADA Standards regulated by state and local then in effect, which could be relevant governments through their building This NPRM has been reviewed by the to a number of issues in the future such codes. In other instances, they may not Office of Management and Budget as barrier removal and good faith on the occur in conjunction with a building or (OMB) under Executive Order 12866. 58 part of builders or business owners. facility that is traditionally regulated FR 51735 (Sept. 30, 1993). The Builders of newly constructed or altered through the building code. The Department has evaluated its existing facilities, however, would only receive Department understands that state and regulations for title II and title III section protection in litigation if they local governments may differ in their by section, and many of the proposals constructed in compliance with a code choices regarding how to incorporate in its NPRMs for both titles reflect its certified as equivalent to the proposed new accessibility requirements for efforts to mitigate any negative effects standards. recreational facilities and play areas. on small entities. The Department has The Department has amended The opportunity to seek certification is also prepared an initial regulatory § 36.607 (proposed § 36.606) that not limited to jurisdictions that impact analysis (RIA), as directed by explains the effect of the proposed incorporate accessibility requirements Executive Order 12866 (amended standards on existing certifications of into building codes and enforce them without substantial change by E.O. equivalency issued under the 1991 through a building code authority. 13258, 67 FR 9385 (Feb. 26, 2002), and Standards. Jurisdictions can adopt legally E.O. 13422, 72 FR 2763 (Jan. 18, 2007)), In addition, the Department has enforceable accessibility requirements and OMB Circular A–4. considered proposals that the through a variety of regulatory schemes, The Department’s initial regulatory Department ‘‘fast-track’’ a request for re- including the building code, and lodge impact analysis measures the certification and give greater priority to oversight authority in a governmental incremental benefits and costs of the states seeking re-certification for their entity other than a code authority, such proposed standards relative to the codes. The Department plans to as a human relations commission, a benefits and costs of the 1991 facilitate the efforts of states with codes department of public safety, the office of Standards. The assessment has certified under the 1991 Standards to a local fire marshal, or an office that estimated the benefits and costs of all obtain certification under the proposed issues business licenses. new and revised requirements as they standards. After publication of the The Department is considering what would apply to newly constructed proposed standards, but before their impact the administration of facilities, altered facilities, and facilities effective date, the Department will accessibility requirements through more that are removing barriers to access. concentrate its efforts on assisting states than one regulatory scheme under the A summary of the regulatory with certified codes to identify the authority of more than one state or local assessment, including the Department’s changes needed to conform their agency should have on the certification responses to public comments existing codes to the proposed review process. The Department addressing its proposed methodology standards. Priority in the review process contemplates that when a jurisdiction and approach, is attached as Appendix will be given to states with certified uses more than one regulatory scheme B to this NPRM. The complete, formal codes interested in obtaining re- to incorporate its accessibility report of the initial regulatory impact certification pursuant to the proposed requirements for title III facilities, all of analysis is available online for public standards. In addition, the Department the requirements would be the subject review on the Department’s ADA Home will consider approaches internally that of a request for certification, even if Page (http://www.ada.gov) and at http:// could result in a more efficient process there are ‘‘joint’’ submitting officials www.regulations.gov. The report is the for satisfying the procedural representing the respective agencies work product of the Department’s requirements for issuance of with enforcement responsibility. contractor, HDR/HLB Decision preliminary determinations, such as Additional Information: Economics, Inc. The Department has consolidating the Federal Register adopted the results of this analysis as its Withdrawal of Outstanding NPRMs notices for the comment periods of two assessment of the benefits and costs that or more states if determinations are With the publication of this NPRM, the proposed standards will confer on issued in close proximity to one the Department is withdrawing three society. The Department invites the another, and scheduling informal outstanding NPRMs: the joint NPRM of public to read the full report and to hearings in a manner that maximizes the the Department and the Access Board submit electronic comments at http:// ability of the Department’s staff to dealing with children’s facilities, www.regulations.gov. conduct them within a relatively short published on July 22, 1996, at 61 FR time period. 37964; the Department’s proposal to Regulatory Flexibility Act Effect on the certification process of extend the time period for providing This NPRM has also been reviewed by using more than one regulatory scheme curb ramps at existing pedestrian the Small Business Administration’s at the state or local level to establish walkways, published on November 27, Office of Advocacy pursuant to accessibility requirements for title III 1995, at 60 FR 58462; and the Executive Order 13272, 67 FR 53461 facilities with new design requirements Department’s proposal to adopt the (Aug. 13, 2002). Because the proposed in the proposed standards. The Access Board’s accessibility guidelines rule, if adopted, may have a significant proposed standards will include and specifications for state and local economic impact on a substantial requirements for elements and spaces government facilities, published as an number of small entities, the that are not addressed specifically in the interim final rule by the Access Board Department has conducted an Initial 1991 Standards, including elements on June 20, 1994, at 59 FR 31676, and Regulatory Flexibility Analysis (IRFA) within recreational facilities and play by the Department as a proposed rule on as a component of this rulemaking. The areas such as swimming pools, spas, June 20, 1994, at 59 FR 31808. To the Department’s ANPRM, NPRM, and the miniature golf courses, components in extent that those proposals were RIA include all of the elements of the play areas, amusement rides, boating incorporated in the 2004 ADAAG, they IRFA required by the Regulatory

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Flexibility Act (RFA). See 5 U.S.C. 601 4. Description of the projected any exemption from coverage of the et seq., as amended by the SBREFA, 5 reporting, record-keeping, and other rule, or any part thereof, for such small U.S.C. 603(b)(1)–(5), 603(c). compliance requirements of the entities. Section 603(b) lists specific proposed rule, including an estimate of The Department’s rulemaking efforts requirements for an IRFA regulatory the classes of small entities that will be satisfy the IRFA requirements for analysis. The Department has addressed subject to the requirement and the type consideration of significant regulatory these IRFA issues throughout the of professional skills necessary for alternatives. In September 2004, the ANPRM, NPRM, and the RIA. In preparation of the report or record. See Department issued an ANPRM to summary, the Department has satisfied titles II and III NPRM sections entitled, commence the process of revising its its IRFA obligations under section ‘‘Paperwork Reduction Act’’ (providing regulations implementing titles II and III 603(b) by providing the following: that no new record-keeping or reporting of the ADA. See 69 FR 58768 (Sept. 30, 1. Description of the reasons that requirements will be imposed by the 2004). Among other things, the ANPRM action by the agency is being NPRMs). The Department acknowledges sought public comment on 54 specific considered. See, e.g., ‘‘The Roles of the that there are other compliance questions. Prominent among these Access Board and the Department of requirements in the NPRMs that may questions was the issue of whether (and Justice,’’ ‘‘The Revised Guidelines,’’ and impose costs on small entities. These how) to craft a ‘‘safe harbor’’ provision ‘‘The Advance Notice of Proposed costs are presented in the Department’s for existing title III-covered facilities/ Rulemaking’’ sections of the titles II and Initial Regulatory Impact Analysis, entities that would reduce the financial III NPRMs; Section 2.1, ‘‘Access Board Chapter 6, ‘‘Small Business Impact burden of complying with the 2004 Regulatory Assessment’’ of the initial Analysis’’ and accompanying App. 5, ADAAG. See id. at 58771–58772. The regulatory impact analysis; see also ‘‘Small Business Data’’ (available for ANPRM also specifically invited Department of Justice ADA Advanced review at http://www.ada.gov); comment from small entities concerning Notice of Proposed Rulemaking, 69 FR 5. Identification, to the extent the proposed rules’ potential economic 58768, 58768–70, (Sept. 30, 2004) practicable, of all relevant federal rules impact and suggested regulatory (outlining the regulatory history and that may duplicate, overlap, or conflict alternatives to ameliorate such impact. rationale underlying DOJ’s proposal to with the proposed rule. See, e.g., title II Id. at 58779 (Question 10). By the end revise its regulations implementing NPRM sections entitled, ‘‘Analysis of of the comment period, the Department titles II and III of the ADA); Impact on Small Entities’’ (generally had received over 900 comments, describing DOJ efforts to eliminate including comments from SBA’s Office 2. Succinct statement of the objectives duplication or overlap in federal of Advocacy and small entities. See, of, and legal basis for, the proposed accessibility guidelines), ‘‘The ADA and e.g., title II NPRM Preamble and title III rule. See, e.g., titles II and III NPRM Department of Justice Regulations,’’ NPRM Preamble sections entitled, ‘‘The sections entitled, ‘‘Summary,’’ ‘‘Social Service Establishments’’ Advance Notice of Proposed ‘‘Overview,’’ ‘‘Purpose,’’ ‘‘The ADA and (§ 35.151(e)), ‘‘Streamlining Complaint Rulemaking’’ (summarizing public Department of Justice Regulations,’’ Investigations and Designated Agency response to the ANPRM). Many small ‘‘The Roles of the Access Board and the Authority’’ (§§ 35.171, 35.172, and business advocates expressed concern Department of Justice,’’ ‘‘Background 35.190), ‘‘Executive Order 13132: regarding the cost of making older (SBREFA, Regulatory Flexibility Act, Federalism’’ (discussing interplay of existing title III-covered buildings and Executive Order) Reviews,’’ and section 504 and ADA Standards), compliant with new regulations (since ‘‘Regulatory Impact Analysis’’; App. B: ‘‘Alterations’’ (§ 35.151(b)) (discussing many small businesses operate in such Regulatory Assessment sections interplay of UFAS and ADA Standards); facilities) and urged DOJ to issue clearer entitled, ‘‘Background,’’ ‘‘Regulatory title III NPRM sections entitled, guidance on barrier removal. See title III Alternatives,’’ ‘‘Regulatory Proposals ‘‘Analysis of Impact on Small Entities’’ NPRM Preamble discussion of ‘‘Safe with Cost Implications,’’ and (generally describing DOJ’s harbor and other proposed limitations ‘‘Measurement of Incremental Benefits’’; harmonization efforts with other federal on barrier removal.’’ In drafting the see also 69 FR at 58768–70, 58778–79 accessibility guidelines), ‘‘Social Service NPRMs for titles II and III, the (outlining the goals and statutory Establishments’’ (§ 36.406(d)), Department expressly addressed small directives for the regulations ‘‘Definitions of Residential Facilities businesses’ collective ANPRM implementing titles II and III of the and Transient Lodging,’’ ‘‘Housing at a comments and proposed regulatory ADA); Place of Education’’ (§ 36.406(e)) alternatives to help mitigate the 3. Description of, and, where feasible, (discussing section 504), ‘‘Change economic impact of the proposed an estimate of the number of small ‘Service Animal’ to ‘Assistance regulations on small entities. For entities to which the proposed rule will Animal,’’ ’ ‘‘Scope of Coverage’’ example, the Department’s regulatory apply. See Section 6, ‘‘Small Business (discussing Fair Housing Act), proposals: Impact Analysis’’ and App. 5, ‘‘Small ‘‘Effective Date: Time Period,’’ and • Provide a ‘‘safe harbor’’ provision Business Data of the RIA’’ (available for ‘‘Social Service Establishments’’ whereby elements in existing title II- or review at http://www.ada.gov); see also (discussing UFAS); and title III-covered buildings or facilities App. B: Regulatory Assessment sections 6. Description of any significant that are compliant with the current 1991 entitled, ‘‘Regulatory Alternatives,’’ alternatives to the proposed rule that Standards or UFAS need not be Regulatory Proposals with Cost accomplish the stated objectives of modified to comply with the standards Implications,’’ and ‘‘Measurement of applicable statutes and minimize any in the proposed regulations (see ‘‘Safe Incremental Benefits’’ (estimating the significant impact of the proposed rule Harbor’’ and § 35.150(b)(2) of the title II number of small entities the Department on small entities, including alternatives NPRM ‘‘Safe Harbor and Other Proposed believes may be impacted by the considered, such as: (1) Establishment Limitations on Barrier Removal’’ and proposed rules and calculating the of differing compliance or reporting § 36.304 of the title III NPRM); likely incremental economic impact of requirements or timetables that take • Adopt a regulatory alternative for these rules on small facilities/entities into account the resources available to barrier removal that, for the first time, versus ‘‘typical’’ (i.e., average-sized) small entities; (2) use of performance provides a specific annual monetary facilities/entities); rather than design standards; and (3) ‘‘cost cap’’ for barrier removal

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obligations for qualified small In developing these proposed rules, have also been required to comply with businesses (see title III NPRM sections the Department has gone through its the requirements of section 504. Hence, entitled, ‘‘Safe Harbor and Other regulations section by section, and, as a the ADA and the title II regulations are Proposed Limitations on Barrier result, proposes several clarifications not novel for state and local Removal’’ and ‘‘Safe Harbor for and amendments in both the title II and governments. This proposed rule will Qualified Small Businesses Regarding title III implementing regulations. The preempt state laws affecting entities What Is Readily Achievable’’); proposals reflect the Department’s subject to the ADA only to the extent • Exempt certain existing small analysis and review of complaints or that those laws directly conflict with the recreational facilities (i.e., play areas, comments from the public as well as statutory requirements of the ADA. But swimming pools, saunas, and steam changes in technology. Many of the the Department believes it is prudent to rooms) which, in turn, are often owned proposals aim to clarify and simplify the consult with public entities about the or operated by small entities, from obligations of covered entities. As potential federalism implications of the barrier removal obligations in order to discussed in greater detail above, one proposed title II regulations. comply with the standards in the significant goal of the development of Title III of the ADA covers public proposed regulations (see title II NPRM the 2004 ADAAG was to eliminate accommodations and commercial at § 35.150(b)(4) and (5) and title III duplication or overlap in federal facilities. These facilities are generally NPRM section entitled, ‘‘Reduced accessibility guidelines as well as to subject to regulation by different levels Scoping for Public Accommodations, harmonize the federal guidelines with of government, including federal, state, Small Facilities, and Qualified Small model codes. The Department has also and local governments. The ADA and Businesses’’); and worked to create harmony where • the Department’s implementing Reduce scoping for certain other appropriate between the requirements of regulations set minimum civil rights existing recreational facilities (i.e., play titles II and III. Finally, while the protections for individuals with areas over 1,000 square feet and regulation is required by statute and disabilities that in turn may affect the swimming pools with over 300 linear there is a continued need for it as a implementation of state and local laws, feet of pool wall) operated by either title whole, the Department proposes several particularly building codes. For these II or title III entities (see title II NPRM modifications that are intended to reasons, the Department has determined at § 35.150(b)(4) and (5) and title III reduce its effects on small entities. that this NPRM may have federalism NPRM section entitled, ‘‘Reduced The Department has consulted with implications and requires Scoping for Public Accommodations, the Small Business Administration’s intergovernmental consultation in Small Facilities, and Qualified Small Office of Advocacy about this process. compliance with Executive Order Businesses’’). The Office of Advocacy has advised that 13132. Taken together, the foregoing although the process followed by the The Department intends to amend the regulatory proposals amply demonstrate Department was ancillary to the regulations in a manner that meets the that the Department was sensitive to the proposed adoption of revised ADA objectives of the ADA while also potential economic impact of the Standards, the steps taken to solicit revised regulations on small businesses public input and to respond to public minimizing conflicts between state law and attempted to mitigate this impact concerns is functionally equivalent to and federal interests. To that end, as a with a variety of provisions that, to the the process required to complete a member of the Access Board, the extent consistent with the ADA, impose section 610 review. Therefore, this Department has been privy to reduced compliance standards on small rulemaking fulfills the Department’s substantial feedback from state and local entities. obligations under the RFA. governments through the development Section 610 Review. The Department of the 2004 ADAAG. In addition, the is also required to conduct a periodic Executive Order 13132: Federalism Department solicited and received input regulatory review pursuant to section Executive Order 13132, 64 FR 43255 from public entities in the September 610 of the RFA, 5 U.S.C. 601 et seq., as (Aug. 4, 1999), requires executive 2004 ANPRM. Some elements of the amended by the SBREFA, 5 U.S.C. 610 branch agencies to consider whether a proposed rules reflect the Department’s et seq. proposed rule will have federalism work to mitigate federalism The review requires agencies to implications. That is, the rulemaking implications, particularly the provisions consider five factors: (1) The continued agency must determine whether the rule that streamline the administrative need for the rule; (2) the nature of is likely to have substantial direct process for state and local governments complaints or comments received effects on state and local governments, seeking ADA code certification under concerning the rule from the public; (3) a substantial direct effect on the title III. the complexity of the rule; (4) the extent relationship between the federal The Department is now soliciting to which the rule overlaps, duplicates, government and the states and comments from elected state and local or conflicts with other federal rules and, localities, or a substantial direct effect officials and their representative to the extent feasible, with state and on the distribution of power and national organizations through this local governmental rules; and (5) the responsibilities among the different NPRM. The Department seeks comment length of time since the rule has been levels of government. If an agency from all interested parties, but evaluated or the degree to which believes that a proposed rule is likely to especially state and local elected technology, economic conditions, or have federalism implications, it must officials, about the potential federalism other factors have changed in the area consult with state and local elected implications of the proposed rule. The affected by the rule. See 5 U.S.C. 610(b). officials about how to minimize or Department welcomes comments on Based on these factors, the agency is eliminate the effects. whether the proposed rule may have required to determine whether to Title II of the ADA covers state and direct effects on state and local continue the rule without change or to local government programs, services, governments, the relationship between amend or rescind the rule, to minimize and activities and, therefore, clearly has the Federal Government and the States, any significant economic impact of the some federalism implications. State and or the distribution of power and rule on a substantial number of small local governments have been subject to responsibilities among the various entities. See id. at 610(a). the ADA since 1991, and the majority levels of government.

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National Technology Transfer and in the introductory section of this rule, § 36.104 Definitions. Advancement Act of 1995 entitled, FOR FURTHER INFORMATION 1991 Standards means the ADA The National Technology Transfer CONTACT. Standards for Accessible Design, as and Advancement Act of 1995 (NTTAA) Paperwork Reduction Act defined in 28 CFR part 36, Appendix A. directs that all federal agencies and 2004 ADAAG means the requirements departments shall use technical The Paperwork Reduction Act (PRA) set forth in appendices B and D to 36 standards that are developed or adopted requires agencies to clear forms and CFR part 1191. by voluntary consensus standards recordkeeping requirements with OMB * * * * * bodies, which are private, generally before they can be introduced. 44 U.S.C. Direct threat means a significant risk non-profit organizations that develop 3501 et seq. This rule does not contain to the health or safety of others that technical standards or specifications any paperwork or recordkeeping cannot be eliminated by a modification using well-defined procedures that requirements and does not require of policies, practices, or procedures, or require openness, balanced clearance under the PRA. by the provision of auxiliary aids or participation among affected interests Unfunded Mandates Reform Act services. and groups, fairness and due process, * * * * * and an opportunity for appeal, as a Section 4(2) of the Unfunded Existing facility means a facility that means to carry out policy objectives or Mandates Reform Act of 1995, 2 U.S.C. has been constructed and remains in activities. Public Law 104–113 (15 1503(2), excludes from coverage under existence on any given date. U.S.C. 272(b)). In addition, the NTTAA that Act any proposed or final federal * * * * * directs agencies to consult with regulation that ‘‘establishes or enforces Other power-driven mobility device voluntary, private sector, consensus any statutory rights that prohibit means any of a large range of devices standards bodies and requires that discrimination on the basis of race, powered by batteries, fuel, or other agencies participate with such bodies in color, religion, sex, national origin, age, engines—whether or not designed solely the development of technical standards handicap, or disability.’’ Accordingly, for use by individuals with mobility when such participation is in the public this rulemaking is not subject to the impairments—that are used by interest and is compatible with agency provisions of the Unfunded Mandates individuals with mobility impairments and departmental missions, authorities, Reform Act. for the purpose of locomotion, including priorities, and budget resources. List of Subjects for 28 CFR Part 36 golf cars, bicycles, electronic personal The Department, as a member of the assistance mobility devices (EPAMDs), Access Board, was an active participant Administrative practice and or any mobility aid designed to operate in the lengthy process of developing the procedure, Buildings and facilities, in areas without defined pedestrian 2004 ADAAG, on which the proposed Business and industry, Civil rights, routes. standards are based. As part of this Individuals with disabilities, Penalties, * * * * * update, the Board has made its Reporting and recordkeeping Place of lodging. For purposes of this guidelines more consistent with model requirements. part, a facility is a place of lodging if building codes, such as the International it— Building Code (IBC), and industry By the authority vested in me as (1) Provides guestrooms for sleeping standards. It coordinated extensively Attorney General by law, including 28 for stays that are primarily short-term in with model code groups and standard- U.S.C. 509 and 510, 5 U.S.C. 301, and nature (generally two weeks or less) setting bodies throughout the process so section 306 of the Americans with where the occupant does not have the that differences could be reconciled. As Disabilities Act, Public Law 101–336, 42 right or intent to return to a specific a result, an historic level of U.S.C. 12186, and for the reasons set room or unit after the conclusion of his harmonization has been achieved that forth in the preamble, Chapter I of title or her stay; has brought about improvements to the 28 of the Code of Federal Regulations is (2) Under conditions and with guidelines, as well as to counterpart proposed to be amended as follows: amenities similar to a hotel, motel, or provisions in the IBC and key industry PART 36—NONDISCRIMINATION ON inn, including— standards, including those for accessible THE BASIS OF DISABILITY BY PUBLIC (i) An on-site proprietor and facilities issued through the American ACCOMMODATIONS AND IN reservations desk, National Standards Institute. COMMERCIAL FACILITIES (ii) Rooms available on a walk-up Plain Language Instructions basis, Subpart A—General The Department makes every effort to (iii) Linen service, and promote clarity and transparency in its (iv) Accepting reservations for a room 1. The authority citation for 28 CFR type without guaranteeing a particular rulemaking. In any regulation, there is a part 36 continues to read as follows: tension between drafting language that unit or room until check-in, without a Authority: 5 U.S.C. 301; 28 U.S.C. 509, prior lease or security deposit. is simple and straightforward that also 510; 42 U.S.C. 12186(b). gives full effect to issues of legal * * * * * interpretation. The Department operates 2–3. Amend § 36.104 by adding the Proposed standards means the a toll-free ADA Information Line (800– following definitions of 1991 Standards, requirements set forth in appendices B 514–0301 (voice); 800–514–0383 (TTY)) 2004 ADAAG, direct threat, existing and D to 36 CFR part 1191 as adopted that the public is welcome to call at any facility, other power-driven mobility by the Department of Justice. time to obtain assistance in device, place of lodging, proposed * * * * * understanding anything in this rule. If standards, qualified reader, qualified Qualified interpreter means an any commenter has suggestions for how small business, video interpreting interpreter who is able to interpret the regulation could be written more services (VIS), and wheelchair in effectively, accurately, and impartially clearly, please contact Janet L. Blizard, alphabetical order and revising the using any necessary specialized Deputy Chief, Disability Rights Section, definitions of qualified interpreter and vocabulary. Qualified interpreters whose contact information is provided service animal to read as follows: include, for example, sign language

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interpreters, oral interpreters, and cued Video interpreting services (VIS) and accommodations without having speech interpreters. Oral interpreter means an interpreting service that uses the service animal on the premises. means an interpreter who has special video conference technology over high- (4) General requirements. The work or skill and training to mouth a speaker’s speed internet lines. VIS generally tasks performed by a service animal words silently for individuals who are consists of a videophone, monitors, shall be directly related to the handler’s deaf or hard of hearing. Cued speech cameras, a high-speed internet disability. A service animal that interpreter means an interpreter who connection, and an interpreter. accompanies an individual with a functions in the same manner as an oral Wheelchair means a device designed disability into a place of public interpreter except that he or she also solely for use by an individual with a accommodation shall be individually uses a hand code, or cue, to represent mobility impairment for the primary trained to do work or perform a task, each speech sound. purpose of locomotion in typical indoor housebroken, and under the control of Qualified reader means a person who and outdoor pedestrian areas. A its handler. A service animal shall have is able to read effectively, accurately, wheelchair may be manually operated a harness, leash, or other tether. and impartially using any necessary or power-driven. (5) Care or supervision of service vocabulary. animals. A public accommodation is not Subpart B—General Requirements responsible for caring for or supervising Qualified small business means a a service animal. public accommodation that meets the § 36.208 [Amended] (6) Inquiries. A public definition of ‘‘business concern’’ in 13 4. Amend § 36.208 by removing accommodation shall not ask about the CFR 121.105 and that, together with its paragraph (b) and redesignating nature or extent of a person’s disability, Affiliates, as determined pursuant to the paragraph (c) as paragraph (b). but can determine whether an animal criteria set forth in 13 CFR 121.103, 5. Amend § 36.211 by adding qualifies as a service animal. For meets the small business size standards paragraph (c) to read as follows: example, a public accommodation may established in 13 CFR 121.201, for the ask if the animal is required because of industry in which it is primarily § 36.211 Maintenance of accessible features. a disability; and what work or task the engaged, as amended from time to time animal has been trained to perform. A by the Small Business Administration. * * * * * public accommodation shall not require The term ‘‘primarily engaged’’ for (c) If the proposed standards reduce documentation, such as proof that the purposes of this definition is defined in the number of required accessible animal has been certified or licensed as 13 CFR 121.107. elements below the number required by the 1991 Standards, the number of a service animal. * * * * * accessible elements in a facility subject (7) Access to areas open to the public, Service animal means any dog or to this part may be reduced in program participants, and invitees. other common domestic animal accordance with the requirements of the Individuals with disabilities who are individually trained to do work or proposed standards. accompanied by service animals may perform tasks for the benefit of an access all areas of a place of public individual with a disability, including, Subpart C—Specific Requirements accommodation where members of the but not limited to, guiding individuals public, program participants, and who are blind or have low vision, 6. Amend § 36.302 as follows: invitees are allowed to go. alerting individuals who are deaf or a. Revise paragraph (c)(2); (8) Fees or surcharges. A public hard of hearing to the presence of b. Add paragraphs (c)(3) through (c)(8) accommodation shall not ask or require people or sounds, providing minimal and paragraphs (e) and (f) to read as an individual with a disability to post protection or rescue work, pulling a follows: a deposit, pay a fee or surcharge, or wheelchair, fetching items, assisting an § 36.302 Modifications in policies, comply with other requirements not individual during a seizure, retrieving practices, or procedures. generally applicable to other patrons as medicine or the telephone, providing * * * * * a condition of permitting a service physical support and assistance with (c) * * * animal to accompany its handler in a balance and stability to individuals with (2) Exceptions. A public place of public accommodation, even if mobility disabilities, and assisting accommodation may ask an individual people accompanied by pets are individuals, including those with with a disability to remove a service required to do so. If a public cognitive disabilities, with navigation. animal from the premises if: accommodation normally charges its The term service animal includes (i) The animal is out of control and clients or customers for damage that individually trained animals that do the animal’s handler does not take they cause, a customer with a disability work or perform tasks for the benefit of effective action to control it; may be charged for damage caused by individuals with disabilities, including (ii) The animal is not housebroken or his or her service animal. psychiatric, cognitive, and mental the animal’s presence or behavior * * * * * disabilities. The term service animal fundamentally alters the nature of the (e) Hotel reservations. A public does not include wild animals service the public accommodation accommodation that owns, leases (or (including nonhuman primates born in provides (e.g., repeated barking during a leases to), or operates a place of lodging captivity), reptiles, rabbits, farm animals live performance); or shall: (including any breed of horse, miniature (iii) The animal poses a direct threat (1) Modify its policies, practices, or horse, pony, pig, or goat), ferrets, to the health or safety of others that procedures to ensure that individuals amphibians, and rodents. Animals cannot be eliminated by reasonable with disabilities can make reservations, whose sole function is to provide modifications. including reservations made by emotional support, comfort, therapy, (3) If an animal is properly excluded. telephone, in-person, or through a third companionship, therapeutic benefits, or If a place of accommodation properly party, for accessible guest rooms during to promote emotional well-being are not excludes a service animal, it shall give the same hours and in the same manner service animals. the individual with a disability the as individuals who do not need * * * * * opportunity to obtain goods, services, accessible rooms;

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(2) Identify and describe accessible (ii) When all seating in a designated (ii) For group sales, if a group features in the hotels and guest rooms area in the facility has been sold and the includes one or more individuals who offered through the reservations service; accessible seating being released is in use a wheelchair, the group shall be and the same designated area; or placed in a seating area that includes (3) Guarantee that an accessible guest (iii) When all seating in a designated wheelchair spaces so that, if possible, room reserved through the reservations price range has been sold and the the group can sit together. If it is service will be held for the reserving accessible seating being sold is within necessary to divide the group, it should customer during the reservation period the same designated price range. be divided so that the individuals in the to the same extent that it guarantees Nothing in this provision requires a group who use wheelchairs are not reservations made by others. facility to release wheelchair seats for isolated from their group. (f) Ticketing. (1) General. A public general sale. 7. Amend § 36.303 as follows: accommodation shall modify its (7) Ticket prices. The price of tickets a. Revise paragraphs (b) introductory policies, practices, or procedures to for accessible seating shall not be set text, (b)(1), (b)(2), (c), and (d); ensure that individuals with disabilities higher than for tickets to seating located b. Redesignate paragraph (f) as can purchase tickets for accessible in the same seating section for the same paragraph (h); seating during the same hours, through event. Accessible seating must be made c. Add paragraphs (f) and (g) to read the same methods of distribution, and in available at all price levels for an event. as follows: the same types and numbers of ticketing If an existing facility has barriers to § 36.303 Auxiliary aids and services sales outlets, including telephone accessible seating at a particular price * * * * * service, in-person ticket sales at the level for an event, then a percentage (b) Examples. The term auxiliary aids facility, or third-party ticketing services, (determined by the ratio of the total and services includes— as other patrons. number of seats at that price level to the (1) Qualified interpreters, notetakers, (2) Availability. Tickets for accessible total number of seats in the assembly computer-aided transcription services, seating shall be made available during area) of the number of accessible seats written materials, exchange of written all stages of ticket sales, including, but must be provided at that price level in notes, telephone handset amplifiers, not limited to, presales, promotions, an accessible location. In no case shall assistive listening devices, assistive lotteries, waitlists, and general sales. the price of any particular accessible listening systems, telephones (3) Identification of accessible seating. seat exceed the price that would compatible with hearing aids, closed Wheelchair seating and companion ordinarily be charged for an inaccessible caption decoders, open and closed seats shall be identified on seating seat in that location. captioning, text telephones (TTYs), maps, plans, brochures, or other (8) Prevention of fraudulent purchase videotext displays, video interpreting information provided to the general of accessible seating. A public services (VIS), accessible electronic and public to describe the seating layout or accommodation may not require proof information technology, or other configurations at an assembly area. of disability before selling a wheelchair effective methods of making aurally (4) Notification of accessible seating space. delivered information available to locations. A public accommodation that (i) For the sale of single-event tickets, individuals who are deaf or hard of sells or distributes tickets for seating at it is permissible to inquire whether the hearing; assembly areas shall, upon inquiry, individual purchasing the wheelchair (2) Qualified readers, taped texts, inform spectators with disabilities and space uses a wheelchair. audio recordings, brailled materials and their companions of the locations of all (ii) For season tickets, subscriptions displays, screen reader software, unsold or otherwise available accessible or other multi-events, it is permissible magnification software, optical readers, seating for any ticketed event at the to ask the individual to attest in writing secondary auditory programs (SAP), facility. that the wheelchair space is for an large print materials, accessible (5) Sale of season tickets or other individual who utilizes a wheelchair. A electronic and information technology, tickets for multiple events. Season public accommodation may investigate or other effective methods of making tickets or other tickets sold on a multi- the potential misuse of accessible visually delivered materials available to event basis to individuals with seating where there is good cause to individuals who are blind or have low disabilities and their companions shall believe that such seating has been vision; * * * be sold under the same terms and purchased fraudulently. (c) Effective communication. (1) A conditions as other tickets sold for the (9) Purchasing multiple tickets. (i) public accommodation shall furnish same series of events. Spectators Individuals with disabilities and their appropriate auxiliary aids and services purchasing tickets for accessible seating companions shall be permitted to where necessary to ensure effective on a multi-event basis shall also be purchase the same maximum number of communication with individuals with permitted to transfer tickets for single- tickets for an event per sales transaction disabilities and their companions who event use by friends or associates in the as other spectators seeking to purchase are individuals with disabilities. same fashion and to the same extent as seats for the same event. If there is an (i) For purposes of this section, permitted other spectators holding insufficient number of seats for all companion means a family member, tickets for the same type of ticketing members of a party to sit together, seats friend, or associate of a program plan. shall be provided that are as close as participant who, along with the (6) Hold and release of accessible possible to the wheelchair spaces. For participant, is an appropriate person seating. A public accommodation may accessible seating in a designated with whom the public accommodation release unsold accessible seating to any wheelchair area, a public should communicate. person with or without a disability accommodation shall provide up to (ii) The type of auxiliary aid or service following any of the circumstances three companion seats for each person necessary to ensure effective described below: with a disability who requires a communication will vary in accordance (i) When all seating (excluding luxury wheelchair space, provided that at the with the method of communication boxes, club boxes, or suites) for an event time of purchase there are sufficient used by the individual, the nature, have been sold; available wheelchair spaces. length, and complexity of the

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communication involved, and the available, upon request, a TTY for the (ii) Where an existing swimming pool context in which the communication is use of an individual who is deaf or hard has at least 300 linear feet of swimming taking place. A public accommodation of hearing, or has a speech impairment. pool wall, it shall comply with the should consult with individuals with (ii) This part does not require a public applicable requirements for swimming disabilities whenever possible to accommodation to use a TTY for pools, except that it shall be required to determine what type of auxiliary aid is receiving or making telephone calls provide only one accessible means of needed to ensure effective incident to its operations. entry that complies with section 1009.2 communication, but the ultimate * * * * * or section 1009.3 of the proposed decision as to what measures to take (f) Video interpreting services (VIS). A standards. rests with the public accommodation, public accommodation that chooses to (4) Exemption for small facilities. For provided that the method chosen results provide qualified interpreters via VIS measures taken to comply with the in effective communication. shall ensure that it provides— barrier removal requirements of this (2) A public accommodation shall not (1) High quality, clear, real-time, full- section, existing facilities shall comply require an individual with a disability motion video and audio over a with the applicable requirements for to bring another individual to interpret dedicated high-speed internet alterations in § 36.402 and §§ 36.404 for him or her. connection; through 36.406 of this part, except as (3) A public accommodation shall not (2) A clear, sufficiently large, and follows: rely on an individual accompanying an sharply delineated picture of the (i) Where an existing play area has individual with a disability to interpret interpreter’s head and the participating less than 1000 square feet or is located or facilitate communication, except in individual’s head, arms, hands, and in a family child care facility where the an emergency involving a threat to fingers, regardless of his body position; proprietor actually resides, it shall be public safety or welfare, or unless the (3) Clear transmission of voices; and exempt from the provisions of section individual with a disability specifically (4) Training to nontechnicians so that 240 of the proposed standards; requests it, the accompanying they may quickly and efficiently set up (ii) Where an existing swimming pool individual agrees to provide the and operate the VIS. has less than 300 linear feet of assistance, and reliance on that (g) Sports stadiums. One year after the swimming pool wall, it shall be exempt individual for this assistance is effective date of this regulation, sports from the provisions of section 242.2 of appropriate under the circumstances. stadiums that have a seating capacity of the proposed standards; and (d) Telecommunications—(1) 25,000 or more shall provide captioning (iii) Where an existing sauna or steam Telephones. (i) When a public on the scoreboards and video monitors room was designed and constructed to accommodation uses an automated for safety and emergency information. seat only two people, it shall be exempt attendant system for receiving and * * * * * from the provisions of section 241 of the directing incoming telephone calls, that 8. Amend § 36.304 as follows: proposed standards. automated attendant system must a. Redesignate paragraph (d)(2) as (5) Qualified small business. A provide effective communication with (d)(6) and in the first sentence remove qualified small business has met its individuals using TTYs or a the reference ‘‘(d)(1)’’ and add ‘‘(d)(1) obligation to remove architectural telecommunications relay system. through (5)’’ in its place; (ii) A public accommodation that barriers where readily achievable for a b. Add paragraphs (d)(2) through given year if, during that tax year, the offers a customer, client, patient, or (d)(5); participant the opportunity to make entity has spent an amount equal to at outgoing telephone calls on more than § 36.304 Removal of barriers. least one percent (1%) of its gross an incidental convenience basis shall * * * * * revenue in the preceding tax year on make available, upon request, public (d)(2) Safe harbor. Elements in measures undertaken in compliance telephones equipped with volume existing facilities that are not altered with the barrier removal requirements of control mechanisms, hearing aid after [insert effective date of final rule], this section. compatible telephones, or text and that comply with the 1991 * * * * * telephones (TTYs) for the use of an Standards, are not required to be 9. Amend § 36.308 as follows: individual who is deaf or hard of modified in order to comply with the a. Revise paragraphs (a)(1)(i), (a)(1)(ii) hearing, or has a speech impairment. requirements set forth in the proposed introductory text, (A), and (B), and (b); (iii) This part does not require a standards. b. Add paragraphs (a)(1)(iii) and (c) to public accommodation to use public (3) Reduced scoping for public read as follows: accommodations. For measures taken to telephones equipped with volume § 36.308 Seating in assembly areas. control mechanisms, hearing aid comply with the barrier removal compatible telephones, or TTYs for requirements of this section, existing (a)(1) * * * receiving or making telephone calls facilities shall comply with the (i) Provide a reasonable number of incident to its operations. applicable requirements for alterations wheelchair seating spaces, companion (iv) A public accommodation shall in § 36.402 and §§ 36.404 through seats, and designated aisle seats; and respond to telephone calls from a 36.406 of this part for the element being (ii) Locate the wheelchair seating telecommunications relay service altered, except as follows: spaces and companion seats so that established under title IV of the (i) In addition to the provisions of they: Americans with Disabilities Act in the section 240.2.1 of the proposed (A) Are an integral part of the seating same manner that it responds to other standards, where an existing play area area and are dispersed to all accessible telephone calls. provides elevated play components, an seating levels; and (2) Text telephones (TTYs). (i) A additional number of ground level play (B) Provide viewing angles to the public accommodation that offers a components may be substituted for the screen, performance area, or other focal customer, client, patient, or participant number of elevated play components point that are equivalent to or better the opportunity to make outgoing that would have been required to than the average viewing angles telephone calls on more than an comply with the provisions of section provided to all other spectators; incidental convenience basis shall make 240.2.2 of the proposed standards; and * * * * *

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(iii) Companion seats shall be devices in any areas open to pedestrian in accordance with the specifications in equivalent in size, quality, comfort, and use. the 1991 Standards, the private entity is amenities to the other seats in the (b) Other power-driven mobility not required to retrofit such elements to assembly areas. Companion seats may devices. A public accommodation shall reflect incremental changes in the be fixed or movable. * * * make reasonable modifications in its proposed standards solely because of an (b) New construction and alterations. policies, practices, and procedures to alteration to a primary function area The provision and location of permit the use of other power-driven served by that path of travel. wheelchair seating spaces and mobility devices by individuals with * * * * * companion seats and designated aisle disabilities, unless the public (f) * * * seats in newly constructed or altered accommodation can demonstrate that (iii) Costs associated with providing assembly areas shall be governed by the the use of the device is not reasonable accessible telephones, such as relocating standards for new construction and or that its use will result in a the telephone to an accessible height, alterations in subpart D of this part. fundamental alteration in the nature of installing amplification devices, or (c) Modifications of policy—(1) the public accommodation’s goods, installing a text telephone (TTY); * * * Seating areas. When designating seating services, facilities, privileges, * * * * * sections of assembly areas providing advantages, or accommodations. 13. Amend § 36.406 as follows: spectators with, or entitling them to, (c) Development of policies permitting a. Add the heading ‘‘Applicable distinct services or amenities that are the use of other power-driven mobility standards’’ to paragraph (a); not generally available to other devices. A public accommodation shall b. Redesignate paragraph (a) as spectators, a public accommodation in establish policies to permit the use of paragraph (a)(1); assembly areas shall ensure that other power-driven mobility devices by c. Revise paragraphs (a)(1) and (b); wheelchair seating spaces and individuals with disabilities when it is d. Add paragraphs (a)(2), (c), (d), (e), companion seating are provided in each reasonable to afford a public (f), and (g); such specialty seating area. The number accommodation’s goods, services, e. Remove Appendix to § 36.406 to of wheelchair seating spaces and facilities, or accommodations to an read as follows: companion seating provided in individual with a disability. Whether a specialty seating areas shall be included § 36.406 Standards for new construction modification is reasonable to allow the and alterations. in, rather than in addition to, use of a class of power-driven mobility (a) Applicable standards. (1) New wheelchair space requirements set forth device by an individual with a disability construction and alterations subject to in Table 221.2.1.1 in the proposed in specific venues (e.g., doctors’ offices, this part shall comply with the 1991 standards. parks, commercial buildings, etc.) shall Standards if physical construction of the (2) Group ticket purchases. To the be determined based on: property commences before [date six extent possible, a public (1) The dimensions, weight, and months after the effective date of the accommodation in assembly areas shall operating speed of the mobility device final rule.] permit wheelchair users to purchase in relation to a wheelchair; companion tickets on the same terms (2) New construction and alterations (2) The potential risk of harm to subject to this part shall comply with that tickets are made available to other others by the operation of the mobility members of the public. In assembly the proposed standards if physical device; construction of the property commences areas with seating capacities exceeding (3) The risk of harm to the 5,000, designate at least three on or after [date six months after the environment or natural or cultural effective date of the final rule.] companion seats for each of five resources or conflict with Federal land wheelchair seating spaces in order to (b) The proposed standards apply to management laws and regulations; and fixed or built-in elements of buildings, provide more flexible seating (4) The ability of the public arrangements for families and other structures, site improvements, and accommodation to stow the mobility pedestrian routes or vehicular ways small groups. The group companion device when not in use, if requested by seats required by this subsection may be located on a site. Unless specifically the user. stated otherwise, advisory notes, located adjacent to either the wheelchair (d) Inquiry into use of mobility device. location or other companion seats. appendix notes, and figures contained A public accommodation may ask a in the proposed standards explain or 10. Amend § 36.309 by adding person using a power-driven mobility paragraph (b)(1)(iv) to read as follows: illustrate the requirements of the rule; device if the mobility device is required they do not establish enforceable § 36.309 Examinations and courses. because of the person’s disability. A requirements. public accommodation shall not ask a * * * * * (c) Places of lodging. Places of (b)(1) * * * person using a mobility device lodging, including inns, hotels, motels, (iv) any request for documentation if questions about the nature and extent of time-shares, condominium hotels, such documentation is required is the person’s disability. mixed-use, and corporate hotel facilities subject to the proposed standards shall reasonable and limited to the need for Subpart D—New Construction and comply with the provisions of the the modification or aid requested. * * * Alterations * * * * * proposed standards that apply to 11. Amend 28 CFR part 36 by adding 12. Amend § 36.403 by adding transient lodging, including, but not § 36.311 to read as follows: paragraph (a)(1) and revising (f)(2)(iii) to limited to the requirements for transient read as follows: lodging guest rooms in sections 224 and § 36.311 Mobility devices. 806. (a) Use of wheelchairs and manually § 36.403 Alterations: Path of travel. (d) Social service establishments. powered mobility aids. A public (a) * * * Group homes, halfway houses, shelters, accommodation shall permit (1) If a private entity has constructed or similar social service establishments individuals with mobility impairments or altered required elements of a path of that provide temporary sleeping to use wheelchairs, scooters, walkers, travel at a place of public accommodations or residential dwelling crutches, canes, braces, or similar accommodation or commercial facility units subject to the proposed standards

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shall comply with the provisions of the sections 223 and 805. In addition, Board and consideration of the materials proposed standards that apply to medical care facilities that do not and information submitted pursuant to residential facilities, including, but not specialize in the treatment of conditions this section, as well as information limited to, the provisions in sections that affect mobility shall disperse the previously provided by the submitting 233 and 809. accessible patient bedrooms required by official—shall issue either a certification (1) In sleeping rooms with more than section 223.2.1 in a manner that enables of equivalency or a final determination twenty-five beds covered by this patients with disabilities to have access to deny the request for certification. The section, a minimum of five percent (5%) to appropriate specialty services. Assistant Attorney General shall publish of the beds shall have clear floor space notice of the certification of equivalency complying with section 806.2.3. § 36.407 [Removed] or denial of certification in the Federal (e) Housing at a place of education. 14. Remove § 36.407. Register. Dormitories or residence halls operated by or on behalf of places of education Subpart F—Certification of State Laws § 36.606 [Redesignated as § 36.605] or Local Building Codes that are subject to the proposed 18. Redesignate § 36.606 as § 36.605 standards shall comply with the § 36.603 [Removed] and revise the first sentence of provisions applicable to transient 15. Remove § 36.603. paragraph (a) to read as follows: lodging, including, but not limited to, the requirements for transient lodging § 36.604 [Redesignated as § 36.603] § 36.605 Procedure following preliminary denial of certification. guest rooms in sections 224 and 806. 16. Redesignate § 36.604 as § 36.603 (f) Assembly areas. Assembly areas and revise it to read as follows: (a) If the Assistant Attorney General subject to the proposed standards shall makes a preliminary determination to comply with the provisions applicable § 36.603 Preliminary determination. deny certification of a code under to assembly areas, including, but not Upon receipt and review of all § 36.603, he or she shall notify the limited to, sections 221 and 804. In information relevant to a request filed submitting official of the determination. addition, assembly areas shall ensure by a submitting official for certification *** that: of a code, and after consultation with * * * * * (1) Wheelchair and companion the Architectural and Transportation seating locations are dispersed to all Barriers Compliance Board, the § 36.607 [Redesignated as § 36.606] levels of the facility that are served by Assistant Attorney General shall make a an accessible route; preliminary determination of 19. Redesignate § 36.607 as § 36.606 (2) Wheelchair and companion equivalency or a preliminary and add a new paragraph (d) to read as seating locations are not located on (or determination to deny certification. follows: obstructed by) temporary platforms or § 36.606 Effect of certification. other movable structures. When § 36.605 [Redesignated as § 36.604] wheelchair seating locations are not 17. Redesignate § 36.605 as § 36.604 * * * * * required to accommodate people who and revise paragraphs (a), (a)(2), and (b) (d) When the standards of the Act use wheelchairs, individual, removable to read as follows: against which a code is deemed seats may be placed in those spaces; equivalent are substantially revised or (3) Facilities that have more than § 36.604 Procedure following preliminary amended, a certification of equivalency determination of equivalency. 5,000 seats shall provide at least five issued under the preexisting standards wheelchair spaces and at least three (a) If the Assistant Attorney General is no longer effective, as of the date the companion seats for each wheelchair makes a preliminary determination of revised standards take effect. However, space; and equivalency under § 36.603, he or she construction in compliance with a (4) Stadium-style movie theaters shall shall inform the submitting official, in certified code during the period when a locate wheelchair seating spaces and writing, of that preliminary certification of equivalency was companion seating on a riser or cross- determination. The Assistant Attorney effective shall be considered rebuttable aisle in the stadium section that satisfies General also shall: evidence of compliance with the at least one of the following criteria: *** Standards then in effect as to those (i) It is located within the rear sixty (2) After considering the information elements of buildings and facilities that percent (60%) of the seats provided in received in response to the notice comply with the certified code. A an auditorium; or described in paragraph (a) of this submitting official may reapply for (ii) It is located within the area of an section, and after publishing a separate certification pursuant to the Act’s auditorium in which the vertical notice in the Federal Register, hold an revised standards, and, to the extent viewing angles (as measured to the top informal hearing, in the State or local possible, priority will be afforded the of the screen) are from the 40th to the jurisdiction charged with administration request in the review process. 100th percentile of vertical viewing and enforcement of the code, at which angles for all seats as ranked from the interested individuals, including § 36.608 [Redesignated as § 36.607] seats in the first row (1st percentile) to individuals with disabilities, are 20. Redesignate § 36.608 as § 36.607. seats in the back row (100th percentile). provided an opportunity to express their (g) Medical care facilities. Medical views with respect to the preliminary Dated: May 30, 2008. care facilities subject to the proposed determination of equivalency; and Michael B. Mukasey, standards shall comply with the (b) The Assistant Attorney General— Attorney General. provisions applicable to medical care after consultation with the Architectural [FR Doc. E8–12623 Filed 6–16–08; 8:45 am] facilities, including, but not limited to, and Transportation Barriers Compliance BILLING CODE 4410–13–P

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Part IV

Department of the Treasury Internal Revenue Service

26 CFR Parts 1, 20, 25, et al. Tax Return Preparer Penalties Under Sections 6694 and 6695; Proposed Rule

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DEPARTMENT OF THE TREASURY Paperwork Reduction Act information is required to comply with The collection of information the provisions of section 8246 of the Internal Revenue Service contained in this notice of proposed Small Business and Work Opportunity rulemaking has been submitted to the Tax Act of 2007. The likely respondents 26 CFR Parts 1, 20, 25, 26, 31, 40, 41, Office of Management and Budget in are tax return preparers and their 44, 53, 54, 55, 56, 156, 157, and 301 accordance with the Paperwork employers. Estimated total annual reporting Reduction Act of 1995 (44 U.S.C. [REG–129243–07] burden: 10,679,320 hours. 3507(d)). Comments on the collection of RIN 1545–BG83 Estimated average annual burden per information should be sent to the Office respondent: 15.6 hours. of Management and Budget, Attn: Desk Tax Return Preparer Penalties Under Estimated number of respondents: Officer for the Department of the Sections 6694 and 6695 684,268. Treasury, Office of Information and Estimated frequency of responses: AGENCY: Internal Revenue Service (IRS), Regulatory Affairs, Washington, DC 127,801,426. Treasury. 20503, with copies to the Internal An agency may not conduct or ACTION: Notice of proposed rulemaking Revenue Service, Attn: IRS Reports sponsor, and a person is not required to and notice of public hearing. Clearance Officer, respond to, a collection of information SE:W:CAR:MP:T:T:SP, Washington, DC unless it displays a valid control SUMMARY: This document contains 20224. Comments on the collection of number assigned by the Office of proposed regulations implementing information should be received by Management and Budget. amendments to the tax return preparer August 18, 2008. Comments are penalties under sections 6694 and 6695 specifically requested concerning: Background of the Internal Revenue Code (Code) and Whether the proposed collection of This document contains proposed related provisions under sections 6060, information is necessary for the proper amendments to the Income Tax 6107, 6109, 6696, and 7701(a)(36) performance of the functions of the IRS, Regulations (26 CFR part 1), the Estate reflecting amendments to the Code including whether the information will Tax Regulations (26 CFR part 20), the made by section 8246 of the Small have practical utility; Gift Tax Regulations (26 CFR part 25), Business and Work Opportunity Tax The accuracy of the estimated burden the Generation-Skipping Transfer Tax Act of 2007. The proposed regulations associated with the proposed collection Regulations (26 CFR part 26), the affect tax return preparers and provide of information; Employment Tax and Collection of guidance regarding the amended How the quality, utility, and clarity of Income Tax at Source Regulations (26 provisions. This document also the information to be collected may be CFR part 31), the Excise Tax Procedural provides notice of a public hearing on enhanced; Regulations (26 CFR part 40), the these proposed regulations. How the burden of complying with Highway Use Tax Regulations, (26 CFR DATES: Written or electronic comments the proposed collection of information part 41), the Wagering Tax Regulations must be received by August 18, 2008. may be minimized, including through (26 CFR part 44), the Foundation and Outlines of topics to be discussed at the the application of automated collection Similar Excise Tax Regulations (26 CFR public hearing scheduled for Monday, techniques or other forms of information part 53), the Pension Excise Tax August 18, 2008, must be received by technology; and Regulations (26 CFR part 54), the Excise Monday, August 4, 2008. Estimates of capital or start-up costs Tax on Real Estate Investment Trusts and costs of operation, maintenance, and Regulated Investment Companies ADDRESSES: Send submissions to: and purchase of services to provide Regulations (26 CFR part 55), the Public CC:PA:LPD:PR (REG–129243–07), room information. Charity Excise Tax Regulations (26 CFR 5203, Internal Revenue Service, PO Box The collection of information in this part 56), the Excise Tax on Greenmail 7604, Ben Franklin Station, Washington, proposed regulation is in §§ 1.6060– Regulations (26 CFR part 156), the DC 20044. Submissions may be hand 1(a)(1), 1.6107–1, 1.6694–2(c)(3), Excise Tax on Structured Settlement delivered Monday through Friday 20.6060–1(a)(1), 20.6107–1, 25.6060– Factoring Transactions Regulations (26 between the hours of 8 a.m. and 4 p.m. 1(a)(1), 25.6107–1, 26.6060–1(a)(1), CFR part 157), and the Regulations on to: CC:PA:LPD:PR (REG–129243–07), 26.6107–1, 31.6060–1(a)(1), 31.6107–1, Procedure and Administration (26 CFR Courier’s Desk, Internal Revenue 40.6060–1(a)(1), 40.6107–1, 41.6060– part 301) implementing the Service, 1111 Constitution Avenue, 1(a)(1), 41.6107–1, 44.6060–1(a)(1), amendments to tax return preparer NW., Washington, DC, or sent 44.6107–1, 53.6060–1(a)(1), 53.6107–1, penalties under sections 6694 and 6695 electronically via the Federal 54.6060–1(a)(1), 54.6107–1, 55.6060– (and the related provisions under eRulemaking Portal at http:// 1(a)(1), 55.6107–1, 56.6060–1(a)(1), sections 6060, 6107, 6109, 6696, and www.regulations.gov/Regs (IRS REG– 56.6107–1, 156.6060–1(a)(1), 156.6107– 7701(a)(36)) made by section 8246 of the 129243–07). The public hearing will be 1, 157.6060–1(a)(1), and 157.6107–1. Small Business and Work Opportunity held in the IRS Auditorium, Internal This information is necessary to make Tax Act of 2007, Public Law 110–28 Revenue Building, 1111 Constitution the record of the name, taxpayer (121 Stat. 190) (May 25, 2007) (the 2007 Avenue, NW., Washington, DC. identification number, and principal Act). FOR FURTHER INFORMATION CONTACT: place of work of each tax return In accordance with the 2007 Act, Concerning the proposed regulations, preparer, make each return or claim for these proposed regulations amend Michael E. Hara, (202) 622–4910, and refund prepared available for inspection existing regulations defining income tax Matthew S. Cooper, (202) 622–4940; by the Commissioner of Internal return preparers to broaden the scope of concerning submissions of comments, Revenue, and to document that the tax that definition to include preparers of the hearing, and/or to be placed on the return preparer advised the taxpayer of estate, gift, and generation-skipping building access list to attend the the penalty standards applicable to the transfer tax returns, employment tax hearing, Regina Johnson, (202) 622– taxpayer in order for the tax return returns, excise tax returns, and returns 7180 (not toll-free numbers). preparer to avoid penalties under of exempt organizations. These SUPPLEMENTARY INFORMATION: section 6694. The collection of proposed regulations also revise current

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regulations to amend the standards of income tax return preparers, were first Joint Committee on Taxation’s General conduct that must be met to avoid enacted by the 1976 Act. Sections 6107 Explanation of the Tax Reform Act of imposition of the tax return preparer and 6109, imposing an obligation on 1976, 94th Cong., 2d Sess. at 346 (1976), penalty under section 6694. In addition, return preparers to furnish and maintain explained the need for the new tax these proposed regulations reflect copies of returns and include an return preparer penalty regime by changes to the computation of the identifying number on those returns, noting the significant number of section 6694 tax return preparer penalty were also enacted by the 1976 Act. fraudulent returns and tax return made by the 2007 Act. These regulations As originally enacted, section preparers engaged in abusive practices. also amend current regulations under 7701(a)(36)(A) defined the term income The legislative history further explained the penalty provisions of section 6695 to tax return preparer to mean any person that, under prior law, it was often conform them with changes made by the who prepared for compensation, or who difficult for the IRS to detect any 2007 Act expanding the scope of that employed one or more persons to individual case of improper return statute beyond income tax returns. The prepare for compensation, any income preparation. This was because the IRS Treasury Department and the IRS intend tax return or income tax claim for generally had no way of knowing to finalize these proposed regulations by refund, or a ‘‘substantial portion’’ of whether the return was prepared by the the end of 2008, with the expectation such return or claim. Section taxpayer or by a tax return preparer who that the final regulations will be 7701(a)(36)(B) excluded from the may have engaged in abusive practices applicable to returns and claims for definition of income tax return preparer involving a number of returns. Further, refund filed (and advice given) after the persons who merely provided even when the IRS could trace the date that final regulations are published mechanical assistance in the improper preparation of tax returns to in the Federal Register, but in no event preparation of a return or claim for an individual tax return preparer, the sooner than December 31, 2008. refund, or who prepared returns and only sanctions available were criminal claims as an employee of the taxpayer penalties, which were often considered History of the Tax Return Preparer or in a fiduciary capacity. The inappropriate, cumbersome, and Penalty Provisions legislative history to the 1976 Act ineffective deterrents because of the cost The 2007 Act amended section 6694 explained that whether or not a portion and length of time involved in to expand the definition of tax return of a return constituted a substantial prosecuting those cases. The legislative preparer, broaden the scope of the tax portion of a tax return was to be history makes clear that Congress return preparer penalties to include determined by examining both the intended the tax return preparer preparers of returns other than income length and complexity of that particular penalties to aid the IRS in detecting tax returns, revise the standards of portion of the return and the amount of returns that were incorrectly prepared conduct that tax return preparers must tax liability involved. The legislative and to deter tax return preparers from meet to avoid imposition of penalties, history noted, however, that the filling engaging in improper conduct. See S. and change the computation of the tax out of a single schedule would generally Rep. No. 94–938, at 350–51 (1976). return preparer penalties. The 2007 Act not be considered a substantial portion Regulations implementing certain of did not amend a number of other Code of that return unless that particular the amendments made by the 1976 Act sections related to tax return preparer schedule was the dominant portion of were published on December 29, 1976, conduct, nor did it directly address the the entire tax return. The legislative as TD 7451, 41 FR 56631, and later tax regulations, published guidance, and history also provided that a person who amended on March 31, 1977, by TD case law that have developed since prepared a return for compensation may 7473, 42 FR 17124. Additional enactment of the preparer penalty be an income tax return preparer even regulations were published on April 1, regime as part of the Tax Reform Act of though that person did not actually 1977, as TD 7475, 42 FR 17452, and 1976, Public Law 94–455 (90 Stat. 1688) place figures on a taxpayer’s return. See November 23, 1977, as TD 7519, 42 FR (October 4, 1976) (the 1976 Act). S. Rep. No. 94–938, 94th Cong., 2d Sess. 17452 (the November 1977 final The Treasury Department and the IRS 349–359 (1976). regulations). believe that the recent amendments to As originally enacted, section 6694(a) The November 1977 final regulations the tax return preparer penalty imposed a ‘‘first tier’’ penalty of $100 if applied the tax return preparer penalty provisions necessitate a comprehensive any part of an understatement was due provisions to persons who did not sign review and overhaul of all the tax return to the negligent or intentional disregard the return or claim for refund, or make preparer penalties and related of rules or regulations by an income tax or control the entries on the return or regulatory provisions. These proposed return preparer. Section 6694(b) claim for refund, including tax regulations are the first significant step imposed a ‘‘second tier’’ penalty of $500 professionals who rendered advice that in this process. Because the proposed if any part of an understatement was was directly related to the regulations were drafted with due to a willful attempt in any manner determination of the existence, consideration of the existing regulations to understate tax liability by an income characterization, or amount, of an entry and the legislative history of the tax return preparer. Section 6695(b) on a return or claim for refund. By statutory provisions that were amended imposed a penalty of $25 if an income including a broad definition of tax by the 2007 Act, a brief review of the tax return preparer failed to sign a return preparer, the Treasury legislative and regulatory history return or claim for refund in the manner Department and the IRS intended the leading up to the recent amendments is prescribed by regulations. Sections regulations to increase advisor care and appropriate in order to place the 6695(a), (c), (d), and (e) also imposed to monitor careless or deceptive proposed regulatory changes reflecting penalties of $25 if an income tax return members of the profession. The the 2007 Act amendments in context. preparer failed to comply with the November 1977 final regulations various identification rules in sections reflected the considered view that The Tax Reform Act Of 1976 6107(a), 6109(a)(4), 6107(b) and 6060. excluding nonsigning tax professionals The provisions in section 7701(a)(36) The House and Senate Reports to the from the reach of section 6694 could defining income tax return preparers, 1976 Act, H. Rep. No. 94–658, 94th result in a lack of accountability for and the provisions in sections 6694, and Cong., 1st Sess. at 274 (1975) and S. positions taken on a return, as taxpayers 6695, imposing various penalties on Rep. No. 94–938 at 349–50, and the could escape penalty liability because

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they employed tax return preparers, tax The OBRA 1989 also made uniform position is more likely than not’’ the return preparers could escape liability the tax return preparer penalties that proper treatment. For disclosed because they relied on nonsigning tax apply for each failure by a tax return positions, the 2007 Act replaced the professionals’ opinions, and nonsigning preparer to: (1) Furnish a copy of a ‘‘not-frivolous’’ standard with a tax professionals could escape liability return or claim for refund to the standard requiring the tax return because they would not be considered taxpayer under section 6695(a); (2) sign preparer to have a ‘‘reasonable basis’’ for tax return preparers. The November the return or claim for refund under the tax treatment of the position. 1977 final regulations also reflected a section 6695(b); (3) furnish his or her The 2007 Act also increased the first- concern with the possible exemption of identification number under section tier penalty under section 6694(a) from tax attorneys and other professionals 6695(c); or (4) file a correct information $250 to the greater of $1,000 or 50 involved in preparing more complex return under section 6695(e). The percent of the income derived (or to be returns while at the same time unified penalty amount was $50 for derived) by the tax return preparer from subjecting to penalties preparers of less each failure, with a limit of $25,000 for the preparation of a return or claim for sophisticated returns who did not rely the total amount of penalties that could refund with respect to which the on the work of others. be imposed for any single type of penalty was imposed. In addition, the The November 1977 final regulations failure. 2007 Act increased the second-tier also adopted the safe harbor provisions The OBRA 1989 also consolidated the penalty under section 6694(b) from of § 301.7701–15(b)(2), which excluded negligence, substantial understatement $1,000 to the greater of $5,000 or 50 from the definition of a tax return and valuation misstatement penalties percent of the income derived (or to be preparer persons providing tax advice applicable to taxpayers. These penalties derived) by the tax return preparer. The (other than those signing the return) if were consolidated into a single amendments made by the 2007 Act are the amounts of gross income, accuracy-related penalty regime under effective for tax returns prepared after deductions, or credits giving rise to the section 6662. The new accuracy-related the date of enactment, May 25, 2007. penalty for a substantial understatement understatement were less than $2,000; Notice 2008–13 of income tax generally would not be or less than $100,000 and also less than imposed, however, if (1) there was Notice 2008–13 (2008–3 IRB 282) was 20 percent of the gross income (or, for ‘‘substantial authority’’ for the released on December 31, 2007 and an individual, the individual’s adjusted taxpayer’s treatment of the item giving provided interim guidance under the gross income) shown on the return or rise to the understatement, or (2) 2007 Act regarding: (1) The relevant claim for refund. relevant facts affecting the tax treatment categories of tax returns or claims for Omnibus Budget Reconciliation Act of of the item were adequately disclosed in refund for purposes of applying the 1989 the return or in a statement attached to penalty under section 6694(a); (2) the the return and there was a ‘‘reasonable definition of ‘‘tax return preparer’’ Sections 6694 and 6695 were basis’’ for the tax treatment of the item. under sections 6694 and 7701(a)(36); (3) amended by the Improved Penalty By adopting the ‘‘realistic possibility’’ the date a return is deemed prepared; (4) Administration and Compliance Tax standard for tax return preparers, and the standards of conduct applicable to Act of 1989, enacted as title G of the the higher ‘‘substantial authority’’ tax return preparers for disclosed and Omnibus Budget Reconciliation Act of standard for taxpayers with respect to undisclosed positions taken on tax 1989 (OBRA 1989), Public Law 101–239 undisclosed positions, OBRA 1989 returns; and (5) the penalty compliance (103 Stat. 2106) (December 19, 1989). created a disparity between the penalty obligations applicable to tax return The OBRA 1989 amended section treatment of tax return preparers and preparers. Additional guidance was 6694(a) to remove the prior link to most taxpayers subject to income tax. provided in Notice 2008–12 (2008–3 negligence or intentional disregard of Regulations were published on IRB 280) with respect to the rules or regulations and instead impose December 31, 1991, as TD 8382, 56 FR implementation of the tax return a $250 penalty on an income tax return 67509, which amended the regulations preparer signature requirement of preparer who understated a taxpayer’s under section 6694 to conform the section 6695(b), and in Notice 2008–11 tax liability on an income tax return or income tax return preparer regulations (2008–3 IRB 279), which clarified the claim for refund if the understatement with the statutory changes made by earlier transition relief provided in was due to a position for which there OBRA 1989 and to make other changes. Notice 2007–54 (2007–27 IRB 12 (July 2, was not a ‘‘realistic possibility’’ of being 2007)). Notice 2008–46 (2008–18 IRB The Small Business and Work sustained on its merits, and the tax 868) was released on April 16, 2008 and Opportunity Tax Act of 2007 return preparer knew or reasonably added certain returns and documents to should have known of such position. Section 8246 of the 2007 Act Exhibits 1, 2, and 3 of Notice 2008–13. The revised section 6694(a) penalty did amended sections 6694 and 7701(a)(36) not apply, however, if the position was and made conforming changes to other Explanation of Provisions ‘‘not frivolous’’ and was adequately Code provisions to make tax return In developing these proposed disclosed, or if there was reasonable preparer penalties applicable to a regulations, the Treasury Department cause for the position taken and the tax broader range of tax returns. The 2007 and the IRS recognize that the majority return preparer acted in good faith. The Act’s amendments to section 6694 also of tax return preparers serve the OBRA 1989 also amended section changed the standards of conduct that interests of their clients and the tax 6694(b) to impose a $1,000 penalty on tax return preparers must meet in order system by preparing complete and a tax return preparer who understated a to avoid imposition of penalties in the accurate returns. Tax return preparers taxpayer’s tax liability on an income tax event that a return prepared results in are critical to ensuring compliance with return or claim for refund if the an understatement of tax. For the Federal tax laws and are an understatement was due to the tax undisclosed positions, the 2007 Act important component in the IRS’s return preparer’s willful attempt to replaced the ‘‘realistic possibility’’ administration of those laws. The understate tax liability or the tax return standard with a standard requiring the proposed regulations intend to balance preparer’s reckless or intentional tax return preparer to ‘‘reasonably the interests of the IRS in curtailing the disregard of rules or regulations. believe that the tax treatment of the activities of noncompliant tax return

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preparers against the burden imposed Forms 1040EZ, ‘‘Income Tax Return for section 6694 penalty on an intra-firm on all tax return preparers in complying Single Filers and Joint Filers With No basis. with the requirements imposed by the Dependents,’’ and Forms 1040A, ‘‘U.S. The Treasury Department and the IRS 2007 Act and these proposed Individual Income Tax Return,’’ filed for believe that the amendments to section regulations. the 2009, 2010 and 2011 taxable years, 6694 made by the 2007 Act, together The Treasury Department and the IRS the return information may be provided with the evolution in existing business also recognize that the government has on a replica of a Form 1040, ‘‘U.S. practices and the increased complexity a number of tools to monitor and Individual Income Tax Return,’’ that of the Federal tax law that has created sanction tax return preparers, and will provides all of the return information. an increased need for specialization, continue to coordinate the application For other electronically filed returns, require reconsideration of the ‘‘one of penalties under sections 6694, 6695, the information may be provided on a preparer per firm’’ rule. Specifically, the 6695A, 6700, 6701, 6702, and Circular replica of an official form that provides Treasury Department and the IRS 230, as well as other applicable all of the information. This amendment believe this evolution requires the penalties and criminal sanctions. addresses the IRS’ transitional issues in adoption of a framework that centers on The IRS will assess penalties under implementing the Modernized e-File the return or claim for refund on a section 6694 in appropriate cases. In platform for the Form 1040 series of position-by-position basis, with the keeping with a balanced enforcement returns. focus of any penalty on the position(s) program for tax return preparers, the IRS giving rise to the understatement on the intends to modify its internal guidance Date Return Is Prepared return or claim for refund and any so that a referral by revenue agents to Proposed § 1.6694–1(a)(2) defines the responsible parties with respect to such the IRS Office of Professional date a return or claim for refund is position(s). Thus the Treasury Responsibility (OPR) will not be per se prepared as the date it is signed by the Department and the IRS believe that the mandatory when the IRS assesses a tax tax return preparer, and also provides ‘‘one preparer per firm’’ rule is no return preparer penalty under section that if the tax return preparer fails to longer appropriate and have proposed to 6694(a) against a tax return preparer sign the return when otherwise required adopt a framework defining a preparer- who is also a practitioner within the to do so, the date the return is deemed per-position within a firm. meaning of Circular 230. This change is Under both the current and the prepared is the date the return is filed. consistent with the general proposed regulations, an individual is a In the case of a nonsigning tax return administrative recommendations made tax return preparer subject to section preparer, the relevant date is the date in the legislative history of the 6694 if the individual is primarily the person provides the advice on the amendments made by OBRA 1989 to the responsible for the position on the position that results in the section 6694 penalty. See H.R. Conf. return or claim for refund giving rise to understatement. This date will be Rep. 101–386, 101st Cong., 1st Sess. at the understatement. determined based on all the facts and 662 (1989). In matters involving non- Under proposed § 6694–1(b)(1), only circumstances. willful conduct, the IRS will generally one person within a firm will be look for a pattern of failing to meet the Defining the Preparer Within a Firm considered primarily responsible for required penalty standards under each position giving rise to an section 6694(a) before making a referral Current § 1.6694–1(b)(1) provides a understatement and, accordingly, be to OPR, although any egregious conduct ‘‘one preparer per firm’’ rule. subject to the penalty. In the course of subjecting a tax return preparer to Specifically, if a signing tax return identifying the individual who is penalty may also form a basis for a preparer is associated with a firm, that primarily responsible for the position, referral to OPR. individual, and no other individual in the IRS may advise multiple individuals the firm, is treated as a tax return within the firm that it may be concluded Proposed Changes preparer with respect to the return or that they are the individual within the The following is a summary of the claim for purposes of section 6694. firm who is primarily responsible. In proposed changes to the existing Under the current regulations, if two or some circumstances, there may be more regulations affecting tax return more individuals associated with a firm than one tax return preparer who is preparers. The changes included in are tax return preparers with respect to primarily responsible for the position(s) these proposed regulations are a return or claim for refund, and none giving rise to an understatement if discussed in order of the Code sections of them is the signing tax return multiple tax return preparers are to which they relate. When appropriate, preparer, only one of the individuals is employed by, or associated with, cross-references to definitional sections a nonsigning tax return preparer with different firms. are included. Significantly, the respect to that return or claim for Proposed § 1.6694–1(b)(2) provides definition of tax return preparer, which purposes of section 6694. In such a case, that the individual who signs the return maintains the concepts in the existing ordinarily, the individual who is a tax or claim for refund as the tax return regulations of signing and nonsigning return preparer for purposes of section preparer will generally be considered tax return preparers, is located at the 6694 is the individual with overall the person that is primarily responsible end of these proposed regulations in supervisory responsibility for the advice for all of the positions on the return or § 301.7701–15, and that section is cross- given by the firm with respect to the claim for refund giving rise to an referenced in the relevant sections of the return or claim. The ‘‘one preparer per understatement. The ‘‘one preparer per regulations under sections 6694 and firm’’ rule and the corollary rule firm’’ rule, however, is revised by these 6695. included in § 1.6694–2(d)(5) of the proposed regulations if it is concluded current regulations precluding a tax based upon information received from Furnishing of Copy of the Tax Return return preparer from relying on the the signing tax return preparer (or other Section 1.6107–1(a), which requires advice of an individual associated with relevant information from a source other signing tax return preparers to furnish the tax return preparer’s same firm for than the signing tax return preparer) the taxpayer a copy of the prepared purposes of penalty protection were that another person within the signing return, is proposed to be amended to intended to eliminate the administrative tax return preparer’s same firm was provide that for electronically filed difficulty of attempting to apply the primarily responsible for the position(s)

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giving rise to the understatement. In this that the signing tax return preparer is preparer or actually known by the tax situation, the ‘‘one preparer per firm’’ the primarily responsible tax return return preparer, and must make rule in the current regulations could preparer under proposed § 1.6694– reasonable inquiries if the information unduly limit the IRS to assessing the 1(b)(1) and (b)(2), the IRS may assess the as furnished appears to be incorrect or penalty against a person who may have section 6694 penalty against that incomplete. The Treasury Department overall responsibility in terms of signing individual when appropriate under the and the IRS believe that this expansion the return, but who may lack detailed statute and regulations. In situations of the current rules regarding reliance is knowledge of, or responsibility for, a when the facts indicate that the necessary given the heightened problematic return position, and who nonsigning tax return preparer with standards imposed on tax return reasonably relied on another overall supervisory responsibility is the preparers by the 2007 Act and the professional at the same firm with primarily responsible tax return increased complexity of the tax law, greater knowledge of, and responsibility preparer under proposed § 1.6694– which often requires signing and for, the accuracy of a position giving rise 1(b)(1) and (b)(3), the IRS may assess the nonsigning tax return preparers to rely to the understatement. section 6694 penalty against that on the work of others in ensuring The Treasury Department and the IRS individual when appropriate. In compliance. believe that amending the regulations to situations when it is unclear which Income Derived Determination in better target the person or persons individual, as between the signer and Computing Penalty Amount responsible for the position(s) giving other nonsigning tax return preparers at rise to the understatement will further the firm, the IRS may assess the section Proposed § 1.6694–1(f) defines compliance and result in more equitable 6694 penalty against the nonsigning tax ‘‘income derived (or to be derived)’’ administration of the tax return preparer return preparer with overall supervisory with respect to a return or claim for penalty regime. responsibility with respect to the refund as all compensation the tax Proposed § 1.6694–1(b)(3) establishes position giving rise to the return preparer receives or expects to a similar rule for situations when there understatement when appropriate. The receive with respect to the engagement are one or more nonsigning tax return Treasury Department and the IRS of preparing the return or claim for preparers at the same firm. If there are specifically request comments regarding refund or providing tax advice one or more nonsigning tax return the approach taken in these proposed (including research and consultation) preparers at the firm and no signing tax regulations and any recommendations with respect to the position(s) taken on return preparer within the firm, the to improve this rule. the return or claim for refund that gave individual within the firm with overall As described in this preamble, rise to the understatement. In the supervisory responsibility for the conforming rules are included in situation of a tax return preparer who is position(s) giving rise to the § 1.6694–1(f) of the proposed not compensated directly by the understatement is the tax return regulations regarding computation of taxpayer, but rather by a firm that preparer who is primarily responsible the ‘‘income derived (or to be derived)’’ employs the tax return preparer or with for the position for purposes of section from the firm and the individual(s) whom the tax return preparer is 6694. Additionally, if after the associated with the firm, in order to associated, income derived (or to be application of proposed § 1.6694–1(b)(2) ensure that the same income is not derived) means all compensation the tax it is concluded that the signer is not counted twice in determining the return preparer receives from the firm primarily responsible for the position or amount of income subject to the section that can be reasonably allocated to the the IRS cannot conclude which 6694 penalty. engagement of preparing the return or individual (as between the signing tax claim for refund or providing tax advice return preparer and other persons Reliance on Information Provided (including research and consultation) within the firm) is primarily responsible Section 1.6694–1(e) of the current with respect to the position(s) taken on for the position, the individual regulations allows a tax return preparer the return or claim for refund that gave nonsigning tax return preparer within generally to rely in good faith without rise to the understatement. In the the firm with overall supervisory verification upon information furnished situation where a firm that employs the responsibility for the position(s) is the by the taxpayer. Proposed § 1.6694–1(e) individual tax return preparer (or the tax return preparer who is primarily allows similar reliance, but provides firm with which the individual tax responsible for the position(s) giving that a tax return preparer may not rely return preparer is associated) is subject rise to the understatement. on information provided by taxpayers to a penalty under section 6694(a) or (b), This rule in proposed § 1.6694–1(b)(3) with respect to legal conclusions on income derived (or to be derived) means is intended to address the potential for Federal tax issues. all compensation the firm receives or uncertainty regarding the identification The proposed regulations expand on expects to receive with respect to the of the primarily responsible tax return the current regulations to provide that a engagement of preparing the return or preparer prior to the time of the tax return preparer may rely in good claim for refund or providing tax advice expiration of the period of limitations faith and without verification on (including research and consultation) on making an assessment under section information furnished by another with respect to the position(s) taken on 6694(a). The proposed rule is advisor, another tax return preparer, or the return or claim for refund that gave distinguished from the current ‘‘one other party (even when the advisor or rise to the understatement. preparer per firm’’ rule in the current tax return preparer is within the tax If the tax return preparer or the tax regulations because under the proposed return preparer’s same firm). Similarly, return preparer’s firm has multiple rule the IRS may assess the penalty a tax return preparer may rely in good engagements related to the same return against either the signing tax return faith without verification upon a tax or claim for refund, only those preparer or the nonsigning tax return return that has been previously engagements relating to the position(s) preparer with overall supervisory prepared by a taxpayer or another tax taken on the return or claim for refund responsibility for the position(s) giving return preparer and filed with the IRS. that gave rise to the understatement are rise to an understatement depending on The tax return preparer, however, may considered for purposes of computing the facts and circumstances. not ignore the implications of the income derived (or to be derived). In Specifically, when the facts indicate information furnished to the tax return the situation of a tax return preparer

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who is not compensated directly by the and monetary penalties under 31 U.S.C. authorities contained in § 1.6662– taxpayer, but rather by a firm that section 330 with respect to the same 4(d)(3)(iii) (or any successor provision) employs the tax return preparer or with conduct. are to be considered in determining whom the tax return preparer is whether a position satisfies the ‘‘more Firm Liability associated, income derived (or to be likely than not’’ standard. Proposed derived) means all compensation the tax Proposed §§ 1.6694–2(a)(2) and § 1.6694–2(b)(4) also provides examples return preparer receives from the firm 1.6694–3(a)(2) are the same as that illustrate positions meeting the that can be reasonably allocated to the §§ 1.6694–2(a)(2) and 1.6694–3(a)(2) of ‘‘reasonable belief that the position relevant firm engagements. the current regulations regarding when would more likely than not be sustained The proposed regulations also provide a firm is liable for the section 6694(a) or on its merits’’ standard. that only compensation for time spent (b) penalty with one exception. on tax advice that is given with respect Proposed §§ 1.6694–2(a)(2)(iii) and Reasonable Basis to events that have occurred at the time 1.6694–3(a)(2)(iii) provide that a firm is Proposed §§ 1.6694–2(c)(1) and (2) the advice is rendered and that relates also subject to the penalty when the establish that the ‘‘reasonable basis’’ to the position(s) giving rise to the firm’s review procedures were standard that must be met for disclosed understatement will be taken into disregarded by the firm through positions is the same standard as account for purposes of calculating the willfulness, recklessness, or gross defined in § 1.6662–3(b)(3) (or any section 6694 penalty. This rule is indifference (including ignoring facts successor provision). The proposed intended to be consistent with the that would lead a person of reasonable regulations also provide that, to meet definition of tax return preparer in prudence and competence to investigate the ‘‘reasonable basis’’ standard, a tax § 301.7701–15(b)(2)(i). or ascertain) in the formulation of the return preparer may rely in good faith, The proposed regulations provide that advice, or the preparation of the return without verification, upon information it may be concluded, based upon or claim for refund, that included the furnished by a taxpayer, advisor, information received from the tax return position for which the penalty is another tax return preparer, or other preparer, that an appropriate allocation imposed. party (even when the advisor or tax of compensation attributable to the return preparer is within the tax return Reasonable Belief of More Likely Than position(s) giving rise to the preparer’s same firm), as provided in Not understatement on the return or claim proposed § 1.6694–1(e). for refund is less than the total amount Proposed § 1.6694–2(b)(1) provides Adequate Disclosure of compensation associated with the that the ‘‘reasonable belief that the engagement. For example, it may be position would more likely than not be Section 1.6694–2(c)(3) builds on the concluded that the number of hours of sustained on its merits’’ standard will be current regulations and the interim the engagement spent on the position(s) satisfied if the tax return preparer guidance provided in Notice 2008–13 giving rise to the understatement may be analyzes the pertinent facts and and provides the rules for disclosure of less than the total hours associated with authorities and, in reliance upon that a position for which there is a the engagement. If this is concluded, the analysis, reasonably concludes in good ‘‘reasonable basis’’ but for which the tax amount of the penalty will be calculated faith that the position has a greater than return preparer does not have a based upon the compensation 50 percent likelihood of being sustained ‘‘reasonable belief that the position attributable to the position(s) giving rise on its merits. Whether a tax return would more likely than not be sustained to the understatement. Otherwise, the preparer meets this standard will be on its merits.’’ total amount of compensation from the determined based upon all facts and For a signing tax return preparer engagement will be the amount of circumstances, including the tax return within the meaning of § 301.7701– income derived for purposes of preparer’s due diligence. In determining 15(b)(1), the proposed regulations calculating the penalty under section the level of diligence in a particular provide that a position may be disclosed 6694. case, the IRS will take into account the in one of five ways. First, the position The proposed regulations also clarify tax return preparer’s experience with may be disclosed on a properly that the amount of penalties assessed the area of tax law and familiarity with completed and filed Form 8275, against the individual and the firm shall the taxpayer’s affairs, as well as the Disclosure Statement, or Form 8275–R, not exceed 50 percent of the income complexity of the issues and facts in the Regulation Disclosure Statement, as derived (or to be derived) by the firm case. The proposed regulations also appropriate, or on the tax return in from the relevant engagement(s) relating provide that a tax return preparer may accordance with the annual revenue to the position(s) giving rise to an meet the ‘‘reasonable belief that the procedure. See Revenue Procedure understatement. The portion of the total position would more likely than not be 2008–14 (2008–7 IRB 435 (February 19, amount of penalty assessed against the sustained on its merits’’ standard if a 2008)). Second, for income tax returns, individual tax return preparer shall not position is supported by a well-reasoned if the position does not meet the exceed 50 percent of the individual’s construction of the applicable statutory ‘‘substantial authority’’ standard compensation attributable to the provision despite the absence of other described in § 1.6662–4(d), disclosure of engagement that relates to the types of authority, or if the tax return the position is adequate if the tax return position(s) giving rise to an preparer relies on information or advice preparer provides the taxpayer with a understatement. In other words, the furnished by a taxpayer, advisor, prepared tax return that includes the same income will not be taken into another tax return preparer, or other appropriate disclosure. Third, for consideration more than once in party (even when the advisor or tax income tax returns, if the position meets calculating the penalty against an return preparer is within the tax return the ‘‘substantial authority’’ standard, individual tax return preparer and the preparer’s same firm), as provided in disclosure of the position is adequate if individual tax return preparer’s firm. proposed § 1.6694–1(e). the tax return preparer advises the The Treasury Department and the IRS Proposed § 1.6694–2(b)(2) provides taxpayer of all of the penalty standards also anticipate that Circular 230 will be that a tax return preparer may not rely applicable to the taxpayer under section revised to state that the IRS generally on unreasonable assumptions, while 6662. Fourth, for income tax returns, if will not stack the section 6694 penalty proposed § 1.6694–2(b)(3) states that the the position may be described as a tax

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shelter under section 6662(d)(2)(C) or a would more likely than not be sustained Due Diligence for Earned Income Credit reportable transaction to which section on the merits’’ must be addressed by the Proposed § 1.6695–2(b)(3) establishes 6662A applies, disclosure of the tax return preparer. Thus, the advice to a reasonableness standard for signing position is adequate if the tax return the taxpayer with respect to each tax return preparers’ due diligence preparer advises the taxpayer that there position must be particular to the requirements with respect to needs to be at a minimum ‘‘substantial taxpayer and tailored to the taxpayer’s determining eligibility for the earned authority’’ for the position, that the facts and circumstances. No form of a income credit and adds examples. taxpayer must possess a ‘‘reasonable general boilerplate disclaimer will belief that the tax treatment was more satisfy these standards. Proposed Claims for Refund or Credit by Tax likely than not’’ the proper treatment, § 1.6694–2(c)(iv) provides that Return Preparers or Appraisers and that disclosure will not protect the disclosure in the case of items Proposed § 1.6696–1, discussing the taxpayer from assessment of an attributable to a pass-through entity is procedures for filing claims for credit or accuracy-related penalty. Fifth, for tax adequate if made at the entity level in refund for penalties assessed against tax returns or claims for refund that are accordance with the rules in § 1.6662– return preparers under sections 6694 or subject to penalties other than the 4(f)(5). For example, a tax return 6695, is revised to also cover the new accuracy-related penalty for substantial appraiser penalty under section 6695A. understatements under sections preparer of a partnership tax return Section 6695A was enacted by section 6662(b)(2) and (d), the tax return need only advise the partnership in 1219 of the Pension Protection Act of preparer advises the taxpayer of the order to satisfy any of the above 2006 (Pub. L. 109–280 (120 Stat. 780, penalty standards applicable to the disclosure rules and does not need to 1084–86) (August 17, 2006)), as taxpayer under section 6662. This fifth advise each individual partner in the amended by the Tax Technical rule is intended to address the situation partnership of the applicable penalties. Corrections Act of 2007 (Public Law when the penalty standard applicable to Reasonable Cause 110–172 (121 Stat. 2473, 2474) the taxpayer is based on compliance December 29, 2007)). A separate with requirements other than disclosure Proposed § 1.6694–2(d) maintains the regulation project will provide guidance on the return (for example, section rules in the current regulations under section 6695A. 6662(e)). In order to establish that the regarding reasonable cause and good tax return preparer’s disclosure faith, except that § 1.6694–2(d) is Definition of Tax Return Preparer obligation was satisfied, the tax return proposed to be revised to provide that Proposed §§ 301.7701–15(b)(1) and (2) preparer must document whether a position is supported by a add to the section 7701 regulations the contemporaneously in the tax return generally accepted administrative or definitions of ‘‘signing tax return preparer’s files that the information or industry practice is an additional factor preparer’’ and ‘‘nonsigning tax return advice required by the proposed to consider in determining whether the preparer’’ that are included in § 1.6694– regulations was provided. tax return preparer acted with 1 of the current regulations. Proposed In the case of a nonsigning tax return reasonable cause and good faith. This preparer within the meaning of § 301.7701–15(b)(1) provides that a provision is intended to address § 301.7701–15(b)(2), the position may be signing tax return preparer is any tax situations in the absence of published disclosed in one of three ways. First, the return preparer who signs or who is guidance when administrative or position may be disclosed on a properly required to sign a return or claim for completed and filed Form 8275, industry practice has developed that refund as a tax return preparer pursuant ‘‘Disclosure Statement,’’ or Form 8275– would not reasonably be subject to to § 1.6695–1(b). R, ‘‘Regulation Disclosure Statement,’’ challenge by the IRS. Proposed § 301.7701–15(b)(2) as appropriate, or on the tax return in The reasonable cause factor regarding provides that a nonsigning tax return accordance with the annual revenue reliance on advice of another tax return preparer is any tax return preparer who procedure. Second, a nonsigning tax preparer is also expanded to allow a tax is not a signing tax return preparer but return preparer may meet the disclosure return preparer to reasonably rely on who prepares all or a substantial portion standards if the nonsigning tax return information or advice furnished by a of a return or claim for refund within preparer advises the taxpayer of all taxpayer, advisor, another tax return the meaning of § 301.7701–15(b)(3) with opportunities to avoid penalties under preparer, or other party (even when the respect to events that have occurred at section 6662 that could apply to the advisor or tax return preparer is within the time the advice is rendered. In position and advises the taxpayer of the the tax return preparer’s same firm), as determining whether an individual is a standards for disclosure to the extent provided in proposed § 1.6694–1(e). nonsigning tax return preparer, the applicable. Third, disclosure of a proposed regulations provide that any position is adequate if a nonsigning tax Electronically Signed Returns time spent on advice that is given with return preparer advises another tax respect to events that have occurred, return preparer that disclosure under Proposed § 1.6695–1(b)(2) provides which is less than 5 percent of the section 6694(a) may be required. The that, in the case of an electronically aggregate time incurred by the person nonsigning tax return preparer must signed tax return, a tax return preparer with respect to the position(s) giving document contemporaneously in the tax need not sign the return prior to rise to the understatement will not be return preparer’s files that this advice presenting a completed copy of the taken into account in determining required by the proposed regulations return to the taxpayer. The tax return whether an individual is a nonsigning was provided. preparer, however, must furnish all of tax return preparer. The Treasury In order to satisfy the disclosure the information to the taxpayer Department and the IRS believe that this standards when the position is not contemporaneously with furnishing the less than 5 percent test will encourage disclosed on or with the return, each Form 8879, IRS e-file Signature tax professionals who principally return position for which there is a Authorization, or similar IRS e-file rendered advice regarding events that ‘‘reasonable basis’’ but for which the tax signature form. The information may be had not yet occurred to provide follow- return preparer does not have a furnished on a replica of an official form up advice requested by a taxpayer ‘‘reasonable belief that the position that provides all of the information. without the concern that, by providing

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such advice to a taxpayer, the advisor the section 6694 penalties even though requirement if the agency certifies that would become a tax return preparer the documents may not themselves give the proposed rulemaking will not have under proposed § 301.7701–15(b)(2) and rise to an understatement. Accordingly, a significant economic impact on a (3). the Treasury Department and the IRS substantial number of small entities. Consistent with the current believe that including a list of returns or The proposed rules affect tax return regulations and the legislative history of other documents, the preparation of preparers. The IRS estimates there are the 1976 Act, proposed § 301.7701– which may subject a tax return preparer 38,566 tax return preparation firms and 15(b)(3)(i) clarifies that whether a to penalties, will further compliance by 260,338 self-employed tax return schedule, entry, or other portion of a not unduly increasing the burden on preparers that qualify as small entities. return or claim for refund is a persons preparing information returns Therefore, the IRS has determined that substantial portion is determined based and other documents. these proposed rules will have an upon all facts and circumstances, and a impact on a substantial number of small single tax entry may constitute a Cross-References entities. substantial portion of the tax required to Conforming changes are made in The IRS has determined, however, be shown on a return. The proposed §§ 1.6060–1, 1.6107–1, 1.6109–2, that the impact on entities affected by regulations include additional factors to 1.6694–0, 1.6694–1, 1.6694–4, 1.6695–1, the proposed rule will not be consider in determining whether a 1.6695–2, 1.6696–1, and 301.7701–15 to significant. The statute and proposed schedule, entry, or other portion of a replace references to income tax return regulations would require entities that return or claim for refund is a preparers with references to tax return employ tax return preparers to retain a substantial portion, such as the size and preparers, consistent with the record of the name, taxpayer complexity of the item relative to the provisions of the 2007 Act. Conforming identification number and principal taxpayer’s gross income and the size of cross references are also made to Part place of work of each tax return the understatement attributable to the 20, Estate Tax; Estates of Decedents preparer employed. The IRS estimates item compared to the taxpayer’s Dying After August 16, 1954; Part 25, that this would not require purchase of reported tax liability. Gift Tax; Gifts Made After December 31, additional software and would take five Proposed § 301.7701–15(b)(3)(ii) 1954; Part 26, Generation-Skipping minutes per tax return preparer increases the de minimis exception in Transfer Tax Under the Tax Reform Act employed. The statute and proposed determining a substantial portion of a of 1986; Part 31, Employment Taxes and regulations would also require tax return or claim for refund for Collection of Income Tax at Source; Part return preparers to retain a complete nonsigning tax return preparers. Under 40, Procedural Excise Tax; Part 41, copy of a return (or claim for refund) or the proposed regulations, the de Highway Use Tax; Part 44, Wagering a list of the name, taxpayer minimis exception applies if the item Tax; Part 53, Foundation and Similar identification number and taxable year giving rise to the understatement is (i) Excise Taxes; Part 54, Pension Excise for each return (or claim for refund) and less than $10,000, or (ii) less than Taxes; Part 55, Excise Tax on Real Estate the name of the tax return preparer $400,000 if the item is also less than 20 Investment Trusts and Regulated required to sign the return or claim for percent of the taxpayer’s gross income Investment Company Taxes; Part 56, refund. Many tax return preparers have (or, for an individual, the individual’s Public Charity Excise Taxes; Part 156, copying machines or scanners and adjusted gross income). This de minimis Excise Tax on Greenmail; and Part 157, already make copies of the returns rule does not apply for signing tax Excise Tax on Structured Settlement prepared, and the IRS estimates this return preparers within the meaning of Factoring Transactions; to conform would not require the purchase of § 301.7701–15(b)(1). This change to the these parts with the provisions in Parts additional equipment. The IRS regulations updates the current de 1 and 301, consistent with the estimates that it would take an average minimis amounts to reflect the passage provisions of the 2007 Act. of five minutes to make copies or of time since those amounts were set in prepare a record of the returns prepared. 1977. The Treasury Department and the Availability of IRS Documents Accordingly, the burden on employers IRS are considering whether other de The IRS notices referred to in this of tax return preparers to make a record minimis rules applicable to nonsigning preamble are published in the Internal of the name, taxpayer identification tax return preparers of non-income tax Revenue Bulletin and are available at number, and principal place of work of returns are warranted. http://www.irs.gov. each employed tax return preparer, and Consistent with the interim guidance a copy of each return or claim for refund set forth in Notice 2008–13, § 301.7701– Special Analyses prepared, or a record, is insignificant. 15(b)(4) is proposed to be amended by It has been determined that this notice The proposed regulations also allow revising the definitions of ‘‘return’’ and of proposed rulemaking is not a the tax return preparer to generally ‘‘claim for refund’’ to only include significant regulatory action as defined avoid imposition of the tax return preparers of returns and claims for in Executive Order 12866. Therefore, a preparer penalties under section 6694 in refund that are specifically identified in regulatory assessment is not required. It cases when a tax return position meets published guidance in the Internal also has been determined that section the ‘‘substantial authority’’ standard but Revenue Bulletin. The Treasury 553(b) of the Administrative Procedure not the ‘‘reasonable belief that the Department and the IRS will publish Act (5 U.S.C. chapter 5) does not apply position would more likely than not be this guidance simultaneously with the to these regulations. sustained on its merits’’ standard if the publication of final regulations and will When an agency issues a rulemaking tax return preparer advises the taxpayer likely maintain the three tiered proposal, the Regulatory Flexibility Act of the penalty standards applicable to approach used in the exhibits to Notice (5 U.S.C. chapter 6), requires the agency the taxpayer, and contemporaneously 2008–13, subject to any appropriate to ‘‘prepare and make available for documents in the tax return preparer’s modifications. Under the substantial public comment an initial regulatory files that this information or advice was portion rule in section 7701(a)(36)(A), flexibility analysis’’ that will ‘‘describe provided. Often, tax return preparers preparation of a broad range of the impact of the proposed rule on small will choose not to advise the taxpayer information returns, schedules, and entities.’’ (5 U.S.C. 603(a)). Section 605 of the applicable penalty standards and other documents can subject a person to of the RFA provides an exception to this will instead disclose the position on a

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properly completed and filed Form A public hearing has been scheduled 26 CFR Part 41 8275, ‘‘Disclosure Statement,’’ or Form for Monday, August 18, 2008, at 10 a.m. Excise, Motor vehicles, Reporting and 8275–R, ‘‘Regulation Disclosure in the IRS Auditorium, Internal Revenue recordkeeping requirements. Statement,’’ as appropriate, or on the tax Building, 1111 Constitution Avenue, return in accordance with the annual NW., Washington, DC. Due to building 26 CFR Part 44 revenue procedure. In those instances security procedures, visitors must enter Excise, Gambling, Reporting and when the tax return preparer elects to at the Constitution Avenue entrance. In recordkeeping requirements. advise the taxpayer of the penalty addition, all visitors must present photo standards, the IRS estimates that it identification to enter the building. 26 CFR Part 53 would take an average of 15 minutes to Because of access restrictions, visitors Excise taxes, Foundations, document this advice. Accordingly, the will not be admitted beyond the Investments, Lobbying, Reporting and burden on those who choose this option immediate entrance area more than 30 recordkeeping requirements. is insignificant. minutes before the hearing starts. For 26 CFR Part 54 Although the proposed regulations information about having your name also conform the standards of conduct placed on the building access list to Excise taxes, Pensions, Reporting and and tax return preparer penalties to the attend the hearing, see the FOR FURTHER recordkeeping requirements. provisions of the 2007 Act, tax return INFORMATION CONTACT section of this 26 CFR Part 55 preparers already enroll in educational preamble. seminars or training programs to keep The rules of 26 CFR 601.601(a)(3) Excise taxes, Investments, Reporting up to date with the latest changes to the apply to the hearing. Persons who wish and recordkeeping requirements. Code, and the provisions of the 2007 to present oral comments at the hearing 26 CFR Part 56 Act and the proposed regulations will must submit written or electronic Excise taxes, Lobbying, Nonprofit generally be part of that training. comments by August 18, 2008 and an Moreover, these proposed regulations organizations, Reporting and outline of the topics to be discussed and recordkeeping requirements. are required to comply with the the time to be devoted to each topic (a provisions of section 8246 of the 2007 signed original and eight (8) copies) by 26 CFR Part 156 Act and flow directly from amendments Monday, August 4, 2008. A period of 10 Excise taxes, Reporting and to the Code contained in the 2007 Act. minutes will be allotted to each person recordkeeping requirements. Based on these facts, the IRS hereby for making comments. An agenda certifies that the collection of showing the scheduling of the speakers 26 CFR Part 157 information contained in these will be prepared after the deadline for Excise taxes, Reporting and regulations will not have a significant receiving outlines has passed. Copies of recordkeeping requirements. economic impact on a substantial the agenda will be available free of 26 CFR Part 301 number of small entities. Accordingly, a charge at the hearing. Regulatory Flexibility Analysis is not Employment taxes, Estate taxes, required. Drafting Information Excise taxes, Gift taxes, Income taxes, Pursuant to section 7805(f) of the The principal authors of these Penalties, Reporting and recordkeeping Code, these regulations have been proposed regulations are Matthew S. requirements. submitted to the Chief Counsel for Cooper and Michael E. Hara, Office of Proposed Amendments to the Advocacy of the Small Business the Associate Chief Counsel (Procedure Regulations Administration for comment on their and Administration). impact on small business. Accordingly, 26 CFR parts 1, 20, 25, List of Subjects Comments and Public Hearing 26, 31, 40, 41, 44, 53, 54, 55, 56, 156, 26 CFR Part 1 157, and 301 are proposed to be Before these proposed regulations are amended as follows: adopted as final regulations, Income taxes, Reporting and consideration will be given to any recordkeeping requirements. PART 1—INCOME TAXES written (a signed original and eight (8) 26 CFR Part 20 copies) or electronic comments that are Paragraph 1. The authority citation submitted timely to the IRS. The IRS Estate taxes, Reporting and for part 1 is amended by adding entries and the Treasury Department request recordkeeping requirements. in numerical order to read in part as follows: comments on the clarity of the proposed 26 CFR Part 25 regulations and how they can be made Authority: 26 U.S.C. 7805 * * * Gift taxes, Reporting and easier to understand. Comments are Section 1.6060–1 also issued under 26 recordkeeping requirements. requested on the examples in the U.S.C. 6060(a). * * * proposed regulations, and 26 CFR Part 26 Section 1.6109–2 also issued under 26 U.S.C. 6109(a). * * * commentators are specifically invited to Estate taxes, Reporting and Section 1.6695–1 also issued under 26 suggest changes to these examples or to recordkeeping requirements. U.S.C. 6695(b). * * * suggest new examples that they believe Section 1.6695–2 also issued under 26 would better illustrate the principles 26 CFR Part 31 U.S.C. 6695(g). * * * that should be included in the final Employment taxes, Income taxes, Par. 2. Section 1.6060–1 is amended regulations. The IRS and the Treasury Penalties, Pensions, Railroad by revising the section heading and Department also request comments on Retirement, Reporting and paragraphs (a) and (c) and adding the accuracy of the certification that the recordkeeping requirements, Social paragraph (d) to read as follows: regulations in this document will not security, Unemployment compensation. have a significant economic impact on § 1.6060–1 Reporting requirements for tax a substantial number of small entities. 26 CFR Part 40 return preparers. All comments will be available for Excise taxes, Reporting and (a) In general. (1) Each person who public inspection and copying. recordkeeping requirements. employs one or more signing tax return

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preparers to prepare any return of tax or § 1.6107–1 Tax return preparer must during which the return was presented claim for refund of tax, other than for furnish copy of return to taxpayer and must for signature, the material shall be the person, at any time during a return retain a copy or record. retained and kept available for period shall satisfy the requirements of (a) Furnishing copy to taxpayer. A inspection for the 3-year period section 6060 of the Internal Revenue person who is a signing tax return following the close of the later return Code by— preparer of any return of tax or claim for period in which the return became due. (i) Retaining a record of the name, refund of tax under the Internal For the definition of ‘‘return period,’’ taxpayer identification number, and Revenue Code shall furnish a completed see section 6060(c). If the person subject principal place of work during the copy of the return or claim for refund to the record retention requirement of return period of each tax return preparer to the taxpayer (or nontaxable entity) this paragraph (b) is a corporation or a employed by the person at any time not later than the time the return or partnership that is dissolved before during that period; and claim for refund is presented for the completion of the 3-year period, then all signature of the taxpayer (or nontaxable (ii) Making that record available for persons who are responsible for the entity). For electronically filed Forms inspection upon request by the winding up of the affairs of the 1040EZ, ‘‘Income Tax Return for Single Commissioner. corporation or partnership under state Filers and Joint Filers With No law shall be subject, on behalf of the (2) The record described in this Dependents,’’ and Form 1040A, ‘‘U.S. corporation or partnership, to these paragraph (a) must be retained and kept Individual Income Tax Return,’’ filed for record retention requirements until available for inspection for the 3-year the 2009, 2010 and 2011 taxable years, completion of the 3-year period. If state period following the close of the return the information may be provided on a law does not specify any person or period to which that record relates. replica of a Form 1040, ‘‘U.S. Individual persons as responsible for winding up, (3) The person may choose any form Income Tax Return,’’ that provides all of then, collectively, the directors or of documentation to be used under this the information. For other electronically general partners shall be subject, on section as a record of the signing tax filed returns, the information may be behalf of the corporation or partnership, return preparers employed during a provided on a replica of an official form to the record retention requirements of return period. However, the record must that provides all of the information. The this paragraph (b). For purposes of the disclose on its face which individuals signing tax return preparer may, at its penalty imposed by section 6695(d), were employed as tax return preparers option, request a receipt or other such designated persons shall be during that period. evidence from the taxpayer (or deemed to be the tax return preparer (4) For the definition of the term nontaxable entity) sufficient to show and will be jointly and severally liable ‘‘signing tax return preparer,’’ see satisfaction of the requirement of this for each failure. section 7701(a)(36) and § 301.7701– paragraph (a). (c) Tax return preparer. For the 15(b)(1) of this chapter. For the (b) Copy or record to be retained. (1) definition of ‘‘signing tax return definition of the term ‘‘return period,’’ A person who is a signing tax return preparer,’’ see section 7701(a)(36) and see paragraph (b) of this section. preparer of any return or claim for § 301.7701–15(b)(1) of this chapter. For (5)(i) For purposes of this section, any refund shall— purposes of applying this section, in the individual who, in acting as a signing (i)(A) Retain a completed copy of the case of— tax return preparer, is not employed by return or claim for refund; or (1) An arrangement between two or another tax return preparer shall be (B) Retain a record, by list, card file, more signing tax return preparers, the treated as his or her own employer. or otherwise of the name, taxpayer person who employs one or more other Thus, a sole proprietor shall retain and identification number, and taxable year signing tax return preparers to prepare make available a record with respect to of the taxpayer (or nontaxable entity) for any return or claim for refund for himself (or herself) as provided in this whom the return or claim for refund compensation other than for the person section. was prepared, and the type of return or shall be considered to be the sole (ii) A partnership shall, for purposes claim for refund prepared; signing tax return preparer; and of this section, be treated as the (ii) Retain a record, by retention of a (2) A partnership arrangement for the employer of the partners of the copy of the return or claim for refund, preparation of returns and claims for partnership and shall retain and make maintenance of a list or card file, or refund, the partnership shall be available a record with respect to the otherwise, for each return or claim for considered to be the sole signing tax partners and others employed by the refund presented to the taxpayer (or return preparer. partnership as provided in this section. nontaxable entity), of the name of the (d) Penalties. (1) For the civil penalty individual tax return preparer required for failure to furnish a copy of the return * * * * * to sign the return or claim for refund or claim for refund to the taxpayers (or (c) Penalty. For the civil penalty for pursuant to § 1.6695–1(b); and nontaxable entity) as required under failure to retain and make available a (iii) Make the copy or record of paragraph (a) of this section, see section record of the tax return preparers returns and claims for refund and record 6695(a) and § 1.6695–1(a). employed during a return period as of the individuals required to sign (2) For the civil penalty for failure to required under this section, or for available for inspection upon request by retain a copy of the return or claim for failure to include an item in the record the Commissioner. refund, or to retain a record as required required to be retained and made (2) The material described in this under paragraph (b) of this section, see available under this section, see paragraph (b) shall be retained and kept section 6695(d) and § 1.6695–1(d). § 1.6695–1(e). available for inspection for the 3-year (e) Effective/applicability date. This (d) Effective/applicability date. This period following the close of the return section is applicable to returns and section is applicable to returns and period during which the return or claim claims for refund filed on the date that claims for refund filed after the date that for refund was presented for signature to final regulations are published in the final regulations are published in the the taxpayer (or nontaxable entity). In Federal Register. Federal Register. the case of a return that becomes due Par. 4. Section 1.6109–2 is amended Par. 3. Section 1.6107–1 is revised to (with extensions, if any) during a return by revising the section heading and read as follows: period following the return period paragraphs (a) and (d) to read as follows:

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§ 1.6109–2 Tax return preparers furnishing (d) Abatement of penalty where taxpayer’s percent of a penalty for understatement identifying numbers for returns or claims liability not understated. of taxpayer’s liability and certain other for refund filed after December 31, 2008. (e) Verification of information furnished by procedural matters. (a) Furnishing identifying number. (1) taxpayer or other third party. (a) In general. (1) In general. (b) Tax return preparer must bring suit in Each return of tax or claim for refund of (2) Verification of information on district court to determine liability for tax under the Internal Revenue Code previously filed returns. penalty. prepared by one or more tax return (3) Examples. (c) Suspension of running of period of preparers must include the identifying (f) Income derived (or to be derived) with limitations on collection. number of the tax return preparer respect to the return or claim for refund. (d) Effective/applicability date. required by § 1.6695–1(b) to sign the (1) In general. Par. 6. Section 1.6694–1 is revised to return or claim for refund. In addition, (2) Compensation. (i) Multiple engagements. read as follows: if there is an employment arrangement (ii) Reasonable allocation. or association between the individual § 1.6694–1 Section 6694 penalties (iii) Fee refunds. applicable to tax return preparers. tax return preparer and another person (iv) Reduction of compensation. (except to the extent the return prepared (3) Individual and firm allocation. (a) Overview—(1) In general. Sections is for the person), the identifying (4) Examples. 6694(a) and (b) impose penalties on tax number of the other person must also (g) Effective/applicability date. return preparers for conduct giving rise appear on the return or claim for refund. § 1.6694–2 Penalty for understatement due to certain understatements of liability to an unreasonable position. on a return (including an amended or For the definition of the term ‘‘tax (a) In general. return preparer,’’ see section 7701(a)(36) adjusted return) or claim for refund. The (1) Proscribed conduct. section 6694(a) penalty is imposed in an and § 301.7701–15 of this chapter. (2) Special rule for corporations, (2) The identifying number of an partnerships, and other firms. amount equal to the greater of $1,000, or individual tax return preparer is that (b) Reasonable belief that the position 50 percent of the income derived (or to individual’s social security account would more likely than not be sustained on be derived) by the tax return preparer number, or such alternative number as its merits. for an understatement of liability with (1) In general. may be prescribed by the Internal respect to tax that is due to an (2) No unreasonable assumptions. undisclosed position for which the tax Revenue Service in forms, instructions, (3) Authorities. or other appropriate guidance. return preparer did not have a (4) Examples. reasonable belief that the position (3) If an individual tax return preparer (5) Written determinations. would more likely than not be sustained described in paragraph (a)(2) of this (6) When more likely than not standard must be satisfied. on its merits (or due to a disclosed section is employed by, or associated position for which there is no with, a person (whether an individual or (c) Exception for adequate disclosure of positions with a reasonable basis. reasonable basis). The section 6694(b) entity) and prepares the return or claim (1) In general. penalty is imposed in an amount equal for refund (other than a return prepared (2) Reasonable basis. to the greater of $5,000, or 50 percent of for the person), the identifying number (3) Adequate disclosure. the income derived (or to be derived) by is the person’s employer identification (i) Signing tax return preparers. the tax return preparer for an number. (ii) Nonsigning tax return preparers. understatement of liability with respect * * * * * (A) Advice to taxpayers. (B) Advice to another tax return preparer. to tax that is due to a willful attempt to (d) Effective/applicability date. (iii) Requirements for advice. understate tax liability or that is due to Paragraph (a) of this section is (iv) Pass-through entities. reckless or intentional disregard of rules applicable to returns and claims for (v) Examples. or regulations. See § 1.6694–2 for rules refund filed after the date that final (d) Exception for reasonable cause and relating to the penalty under section regulations are published in the Federal good faith. 6694(a). See § 1.6694–3 for rules relating Register, but no sooner than December (1) Nature of the error causing the to the penalty under section 6694(b). 31, 2008. For returns or claims for understatement. (2) Date return is deemed prepared. refund filed before January 1, 2000, see (2) Frequency of errors. For purposes of the penalties under (3) Materiality of errors. § 1.6109–2A(a). (4) Tax return preparer’s normal office section 6694, a return or claim for Par 5. Section 1.6694–0 is revised to practice. refund is deemed prepared on the date read as follows: (5) Reliance on advice of others. it is signed by the tax return preparer. (6) Reliance on generally accepted If a signing tax return preparer within § 1.6694–0 Table of contents. administrative or industry practice. the meaning of § 301.7701–15(b)(1) of This section lists the captions that (e) Burden of proof. this chapter fails to sign the return, the appear in §§ 1.6694–1 through 1.6694– (f) Effective/applicability date. return is deemed prepared on the date 4. § 1.6694–3 Penalty for understatement due the return is filed. See § 1.6695–1 of this to willful, reckless, or intentional section. In the case of a nonsigning tax § 1.6694–1 Section 6694 penalties conduct. applicable to tax return preparers. (a) In general. return preparer within the meaning of (a) Overview. (1) Proscribed conduct. § 301.7701–15(b)(2) of this chapter, the (1) In general. (2) Special rule for corporations, relevant date is the date the nonsigning (2) Date return is deemed prepared. partnerships, and other firms. tax return preparer provides the tax (b) Tax return preparer. (b) Willful attempt to understate liability. advice with respect to the position (1) In general. (c) Reckless or intentional disregard. giving rise to the understatement. This (2) Responsibility of signing tax return (d) Examples. date will be determined based on all the preparer. (e) Rules or regulations. (3) Responsibility of nonsigning tax return facts and circumstances. (f) Section 6694(b) penalty reduced by (b) Tax return preparer—(1) In preparer. section 6694(a) penalty. (4) Tax return preparer and firm (g) Burden of proof. general. For purposes of this section, responsibility. (h) Effective/applicability date. ‘‘tax return preparer’’ means any person (5) Examples. § 1.6694–4 Extension of period of collection who is a tax return preparer within the (c) Understatement of liability. when tax return preparer pays 15 meaning of section 7701(a)(36) and

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§ 301.7701–15 of this chapter. An understatement is the tax return (c) Understatement of liability. For individual is a tax return preparer preparer who is primarily responsible purposes of this section, an subject to section 6694 if the individual for the position for purposes of section ‘‘understatement of liability’’ exists if, is primarily responsible for the 6694. viewing the return or claim for refund position(s) on the return or claim for (4) Tax return preparer and firm as a whole, there is an understatement refund giving rise to an understatement. responsibility. To the extent provided in of the net amount payable with respect There is only one individual within a §§ 1.6694–2(a)(2) and 1.6694–3(a)(2), an to any tax imposed by the Internal firm who is primarily responsible for individual and the firm that employs Revenue Code (Code), or an each position on the return or claim for the individual, or the firm of which the overstatement of the net amount refund giving rise to an understatement. individual is a partner, member, creditable or refundable with respect to In the course of identifying the shareholder, or other equity holder, may any tax imposed by the Code. The net individual who is primarily responsible both be subject to penalty under section amount payable in a taxable year with for the position, the Internal Revenue 6694 with respect to the position(s) on respect to the return for which the tax Service may advise multiple individuals the return or claim for refund giving rise return preparer engaged in conduct within the firm that it may be concluded to an understatement. If an individual proscribed by section 6694 is not that they are the individual within the (other than the sole proprietor) who is reduced by any carryback. Tax imposed firm who is primarily responsible. In employed by a sole proprietorship is by the Code does not include additions some circumstances, there may be more subject to penalty under section 6694, to the tax, additional amounts, and than one tax return preparer who is the sole proprietorship is considered a assessable penalties imposed by primarily responsible for the position(s) ‘‘firm’’ for purposes of this paragraph subchapter 68 of the Code. Except as giving rise to an understatement if (b). provided in paragraph (d) of this multiple tax return preparers are (5) Examples. The provisions of section, the determination of whether an employed by, or associated with, paragraph (b) of this section are understatement of liability exists may be different firms. illustrated by the following examples: made in a proceeding involving the tax (2) Responsibility of signing tax return Example 1. Attorney A provides advice to return preparer that is separate and preparer. The signing tax return Client C concerning the proper treatment of apart from any proceeding involving the preparer within the meaning of an item with respect to which all events have taxpayer. § 301.7701–15(b)(1) of this chapter will occurred on C’s income tax return. In (d) Abatement of penalty where generally be considered the person who preparation for providing that advice, A taxpayer’s liability not understated. If a is primarily responsible for all of the seeks advice regarding the proper treatment penalty under section 6694(a) or (b) positions on the return or claim for of the item from Attorney B, who is within concerning a return or claim for refund refund giving rise to an understatement. the same firm as A, but A is the attorney who has been assessed against one or more It may be concluded, however, based signs C’s return as a tax return preparer. B tax return preparers, and if it is upon information received from the provides advice on the treatment of the item established at any time in a final upon which A relies. B’s advice is reflected signing tax return preparer (or other on C’s income tax return but no disclosure administrative determination or a final relevant information from a source other was made in accordance with § 1.6694– judicial decision that there was no than the signing tax return preparer) 2(c)(3). The advice constitutes preparation of understatement of liability relating to that another person within the signing a substantial portion of the return within the the position(s) on the return or claim for tax return preparer’s same firm was meaning of § 301.7701–15(b)(3) and the IRS refund, then— primarily responsible for the position(s) later challenges the position taken on the tax (1) The assessment shall be abated; on the return or claim for refund giving return, giving rise to an understatement of and rise to an understatement. liability. For purposes of the regulations (2) If any amount of the penalty was (3) Responsibility of nonsigning tax under section 6694, A is initially considered paid, that amount shall be refunded to return preparer. If there are one or more the tax return preparer with respect to C’s the person or persons who so paid, as return and the IRS advises A that A may be if the payment were an overpayment of individuals within a firm who are subject to the penalty under section 6694 nonsigning tax return preparers within with respect to C’s return. Based upon tax, without consideration of any period the meaning of § 301.7701–15(b)(2) of information received from A or another of limitations. this chapter and there is no signing tax source, it may be concluded that B had (e) Verification of information return preparer within the meaning of primary responsibility for the position taken furnished by taxpayer or other party— § 301.7701–15(b)(1) of this chapter for on the return that gave rise to the (1) In general. For purposes of sections the return or claim for refund within understatement because B had overall 6694(a) and (b) (including meeting the that firm, the individual within the firm supervisory responsibility for the position reasonable belief that the position with overall supervisory responsibility giving rise to an understatement. would more likely than not be sustained for the position(s) giving rise to the Example 2. Same as Example 1, except that on its merits and reasonable basis neither Attorney A nor any other attorney standards in §§ 1.6694–2(b) and (c)(2), understatement is the tax return within A’s firm signs Client C’s return as a preparer who is primarily responsible tax return preparer. Attorney B is the and demonstrating reasonable cause and for the position for purposes of section nonsigning tax return preparer within the good faith under § 1.6694–2(d)), the tax 6694. Additionally, if, after the firm with overall supervisory responsibility return preparer generally may rely in application of paragraph (b)(2) of this for the position giving rise to an good faith without verification upon section, it is concluded that the signing understatement. Accordingly, B is the tax information furnished by the taxpayer. tax return preparer is not primarily return preparer who is primarily responsible A tax return preparer, however, may not responsible for the position or the IRS for the position on C’s return giving rise to rely on information provided by a cannot conclude which individual (as an understatement and is subject to penalty taxpayer with respect to legal between the signing tax return preparer under section 6694. conclusions on Federal tax issues. A tax Example 3. Same as Example 1, except and other persons within the firm) is Attorney D, who works for a different firm return preparer may also rely in good primarily responsible for the position, than A, also provides advice on the same faith and without verification upon the individual within the firm with position upon which A relies. It may be information furnished by another overall supervisory responsibility for concluded that D is also primarily advisor, another tax return preparer or the position(s) giving rise to the responsible for the position on the return. other party (including another advisor

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or tax return preparer at the tax return Contributions, in accordance with the refund or providing tax advice preparer’s firm). The tax return preparer reporting and substantiation requirements (including research and consultation) is not required to audit, examine or under section 170(f)(11). E reported a with respect to the position(s) taken on review books and records, business deduction on the tax return for the charitable the return or claim for refund that gave contribution, which resulted in an operations, or documents or other understatement of liability for tax, and signed rise to the understatement. In the evidence to verify independently the tax return as the tax return preparer. E situation where a firm that employs the information provided by the taxpayer, is subject to a penalty under section 6694. individual tax return preparer (or the advisor, other tax return preparer, or Example 2. While preparing the 2008 tax firm of which the individual tax return other party. The tax return preparer, return for an individual taxpayer, Preparer F preparer is a partner, member, however, may not ignore the realizes that the taxpayer did not provide a shareholder, or other equity holder) is implications of information furnished to Form 1099 for a bank account that produced subject to a penalty under section the tax return preparer or actually significant taxable income in 2008. When F 6694(a) or (b) pursuant to the provisions known by the tax return preparer. The inquired about any other income, the in §§ 1.6694–2(a)(2) or 1.6694–3(a)(2), taxpayer furnished the Form 1099 to F for tax return preparer must make use in preparation of the 2008 tax return. F income derived (or to be derived) means reasonable inquiries if the information did not know that the taxpayer owned an all compensation the firm receives or as furnished appears to be incorrect or additional bank account that generated expects to receive with respect to the incomplete. Additionally, some taxable income for 2008 and the taxpayer did engagement of preparing the return or provisions of the Code or regulations not reveal this information to the tax return claim for refund or providing tax advice require that specific facts and preparer notwithstanding F’s general inquiry (including research and consultation) circumstances exist (for example, that about any other income. F signed the with respect to the position(s) taken on the taxpayer maintain specific taxpayer’s return as the tax return preparer. the return or claim for refund that gave F is not subject to a penalty under section documents) before a deduction or credit rise to the understatement. 6694. (2) Compensation—(i) Multiple may be claimed. The tax return preparer Example 3. In preparing a tax return, must make appropriate inquiries to Accountant G relies on the advice of an engagements. For purposes of applying determine the existence of facts and actuary concerning the limit on deductibility paragraph (f)(1) of this section, if the tax circumstances required by a Code under section 404(a)(1)(A) of a contribution return preparer or the tax return section or regulation as a condition of by an employer to a qualified pension trust. preparer’s firm has multiple the claiming of a deduction or credit. On the basis of this advice, G completed and engagements related to the same return (2) Verification of information on signed the tax return. It is later determined or claim for refund, only those previously filed returns. For purposes of that there is an understatement of liability for engagements relating to the position(s) section 6694(a) and (b) (including tax that resulted from the incorrect advice taken on the return or claim for refund provided by the actuary. G had no reason to meeting the reasonable belief that the that gave rise to the understatement are believe that the advice was incorrect or considered for purposes of calculating position would more likely than not incomplete, and the advice appeared would be sustained on its merits and reasonable on its face. G was also not aware the income derived (or to be derived) reasonable basis standards in §§ 1.6694– at the time the return was prepared of any with respect to the return or claim for 2(b) and (c)(2), and demonstrating reason why the actuary did not know all of refund. reasonable cause and good faith under the relevant facts or that the advice was no (ii) Reasonable allocation. For § 1.6694–2(d)), a tax return preparer longer reliable due to developments in the purposes of applying paragraph (f)(1) of may rely in good faith without law since the time the advice was given. G this section, only compensation for tax verification upon a tax return that has is not subject to a penalty under section advice that is given with respect to 6694. The actuary, however, may be subject been previously prepared by a taxpayer events that have occurred at the time the to penalty under section 6694 if the advice advice is rendered and that relates to the or another tax return preparer and filed given by the actuary constitutes a substantial with the IRS. For example, a tax return position(s) giving rise to the portion of the tax return within the meaning understatement will be taken into preparer who prepares an amended of § 301.7701–15(b)(3) of this chapter. account for purposes of calculating the return (including a claim for refund) (f) Income derived (or to be derived) need not verify the positions on the section 6694(a) and (b) penalties. If a with respect to the return or claim for lump sum fee is received that includes original return. The tax return preparer, refund—(1) In general. For purposes of however, may not ignore the amounts not taken into account under sections 6694(a) and (b), income derived the preceding sentence, the amount of implications of information furnished to (or to be derived) means all income derived will be based on a the tax return preparer or actually compensation the tax return preparer reasonable allocation of the lump sum known by the tax return preparer. The receives or expects to receive with fee between the tax advice giving rise to tax return preparer must make respect to the engagement of preparing the penalty and the advice that does not reasonable inquiries if the information the return or claim for refund or give rise to the penalty. as furnished appears to be incorrect or providing tax advice (including research (iii) Fee refunds. For purposes of incomplete. The tax return preparer and consultation) with respect to the applying paragraph (f)(1) of this section, must confirm that the position being position(s) taken on the return or claim a refund to the taxpayer of all or part of relied upon has not been adjusted by for refund that gave rise to the the amount paid to the tax return examination or otherwise. understatement. In the situation of a tax preparer or the tax return preparer’s (3) Examples. The provisions of this return preparer who is not compensated firm will not reduce the amount of the paragraph (e) are illustrated by the directly by the taxpayer, but rather by a section 6694 penalty assessed. A refund following examples: firm that employs the tax return in this context does not include a Example 1. During an interview conducted preparer or with whom the tax return discounted fee or alternative billing by Preparer E, a taxpayer stated that he had preparer is associated, income derived arrangement for the services provided. made a charitable contribution of real estate (or to be derived) means all (iv) Reduction of compensation. For in the amount of $50,000 during the tax year, when in fact he had not made this charitable compensation the tax return preparer purposes of applying paragraph (f)(1) of contribution. E did not inquire about the receives from the firm that can be this section, it may be concluded based existence of a qualified appraisal or complete reasonably allocated to the engagement upon information provided by the tax a Form 8283, Noncash Charitable of preparing the return or claim for return preparer or the tax return

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preparer’s firm that an appropriate of Firm L and provides corporate tax advice section, a tax return preparer is liable allocation of compensation attributable for the taxpayer after all events have occurred for a penalty under section 6694(a) to the position(s) giving rise to the subject to an engagement for corporate tax equal to the greater of $1,000 or 50 understatement on the return or claim advice. J provides international tax advice for percent of the income derived (or to be the taxpayer after all events have occurred for refund is less than the total amount subject to a different engagement for derived) by the tax return preparer for of compensation associated with the international tax advice. K prepares and signs any return or claim for refund that it engagement. For example, the number the taxpayer’s return under a general tax prepares that results in an of hours of the engagement spent on the services engagement. I’s advice is the source understatement of liability due to a position(s) giving rise to the of an understatement on the return and the position if the tax return preparer knew understatement may be less than the advice constitutes preparation of a (or reasonably should have known) of total hours associated with the substantial portion of the return within the the position and either— engagement. If this is concluded, the meaning of § 301.7701–15(b) of this chapter. (i) The position was not disclosed as amount of the penalty will be calculated I is the nonsigning tax return preparer within provided in this section and there was the firm with overall supervisory not a reasonable belief that the position based upon the compensation responsibility for the position on the attributable to the position(s) giving rise taxpayer’s return giving rise to an would more likely than not be sustained to the understatement. Otherwise, the understatement. Thus, I is the tax return on its merits; or total amount of compensation from the preparer who is primarily responsible for the (ii) The position was disclosed as engagement will be the amount of position on the taxpayer’s return giving rise provided in this section but there was income derived for purposes of to the understatement. Because K’s signature no reasonable basis for the position. calculating the penalty under section as the signing tax return preparer is on the (2) Special rule for corporations, 6694. return, the IRS advises K that K may be partnerships, and other firms. A firm (3) Individual and firm allocation. If subject to the section 6694(a) penalty against that employs a tax return preparer both an individual within a firm and a K to the understatement. K provides subject to a penalty under section information that I is the tax return preparer 6694(a) (or a firm of which the firm that employs the individual (or the with primary responsibility for the position firm of which the individual is a that gave rise to the understatement and K individual tax return preparer is a partner, member, shareholder, or other formed a reasonable belief that the position partner, member, shareholder or other equity holder) are subject to a penalty would more likely than not be sustained on equity holder) is also subject to penalty under section 6694(a) or (b) pursuant to the merits by relying on the advice provided if, and only if— the provisions in §§ 1.6694–2(a)(2) or by I. Furthermore, K has reasonable cause (i) One or more members of the 1.6694–3(a)(2), the amount of penalties because K relied on I for the advice on the principal management (or principal assessed against the individual and the corporate tax matter. The IRS, therefore, officers) of the firm or a branch office firm shall not exceed 50 percent of the assesses the section 6694 penalty against I. participated in or knew of the conduct The portion of the total amount of the income derived (or to be derived) by the proscribed by section 6694(a); penalty allocable to I does not exceed that (ii) The corporation, partnership, or firm from the engagement of preparing part of I’s compensation that is attributable the return or claim for refund or to the corporate tax advice engagement. In other firm entity failed to provide providing tax advice (including research the event that Firm L is also liable under the reasonable and appropriate procedures and consultation) with respect to the provisions in § 1.6694–2(a)(2), the IRS for review of the position for which the position(s) taken on the return or claim assesses the section 6694 penalty in an penalty is imposed; or for refund that gave rise to the amount not exceeding 50 percent of Firm L’s (iii) Such review procedures were understatement. The portion of the total firm compensation based on the engagement disregarded by the corporation, relating to the corporate tax advice services partnership, or other firm entity through amount of the penalty assessed against provided by I where there is no applicable the individual tax return preparer shall willfulness, recklessness, or gross reduction in compensation pursuant to indifference (including ignoring facts not exceed 50 percent of the § 1.6694–1(f)(2)(iii). individual’s compensation as Example 3. Same facts as Example 2, that would lead a person of reasonable determined under paragraphs (f)(1) and except that I provides the advice on the prudence and competence to investigate (2) of this section. corporate matter when the events have not or ascertain) in the formulation of the (4) Examples. The provisions of this yet occurred. I’s advice is the cause of an advice, or the preparation of the return paragraph (f) are illustrated by the understatement position on the return but I or claim for refund, that included the following examples: is not a tax return preparer pursuant to position for which the penalty is § 301.7701–15(b)(2) or (3) of this chapter. K imposed. Example 1. Signing Tax Return Preparer H has reasonable cause because K relied on I for (b) Reasonable belief that the position is engaged by a taxpayer and paid a total of the advice on the corporate tax matter and K $21,000. Of this amount, $20,000 relates to would more likely than not be sustained is not limited to reliance on persons who on its merits—(1) In general. A tax research and consultation regarding a provide post-transactional advice if such transaction that is later reported on a return, reliance is reasonable and in good faith. I, K return preparer may ‘‘reasonably believe and $1,000 for the activities relating to the and Firm L are not liable for the section 6694 that a position would more likely than preparation of the return. Based on H’s penalty. not be sustained on its merits’’ if the tax hourly rates, a reasonable allocation of the return preparer analyzes the pertinent (g) Effective/applicability date. This amount of compensation related to the advice facts and authorities, and in reliance rendered prior to the occurrence of events section is applicable to returns and upon that analysis, reasonably that are the subject of the advice is $5,000. claims for refund filed, and advice concludes in good faith that the position The remaining compensation of $16,000 is provided, after the date that final has a greater than 50 percent likelihood considered to be compensation related to the regulations are published in the Federal advice rendered after the occurrence of of being sustained on its merits. In Register. events that are the subject of the advice and reaching this conclusion, the possibility return preparation. The income derived by H Par. 7. Section 1.6694–2 is revised to read as follows: that the position will not be challenged with respect to the return for purposes of by the Internal Revenue Service (IRS) computing the penalty under section 6694(a) § 1.6694–2 Penalty for understatement due is $16,000, and the amount of the penalty (for example, because the taxpayer’s imposed under section 6694(a) is $8,000. to an unreasonable position. return may not be audited or because Example 2. Accountants I, J, and K are (a) In general—(1) Proscribed conduct. the issue may not be raised on audit) is employed by Firm L. I is a principal manager Except as otherwise provided in this not to be taken into account. The

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analysis prescribed by § 1.6662– position would more likely than not be a ‘‘written determination’’ as provided 4(d)(3)(ii) (or any successor provision) sustained on its merits. in § 1.6662–4(d)(3)(iv)(A). for purposes of determining whether Example 2. After the passage of legislation (6) When ‘‘more likely than not’’ substantial authority is present applies containing a new statutory provision, a standard must be satisfied. For purposes for purposes of determining whether the taxpayer engaged in a transaction that is of this section, the requirement that a adversely affected by the new provision. position satisfies the ‘‘more likely than more likely than not standard is Prior law supported a position favorable to satisfied. Whether a tax return preparer the taxpayer. Preparer N believes that the not’’ standard must be satisfied on the meets this standard will be determined new statute is inequitable as applied to the date the return is deemed prepared, as based upon all facts and circumstances, taxpayer’s situation. The statutory language, prescribed by § 1.6694–1(a)(2). including the tax return preparer’s however, is unambiguous as applied to the (c) Exception for adequate disclosure diligence. In determining the level of transaction to deny the result claimed by the of positions with a reasonable basis—(1) diligence in a particular situation, the taxpayer previously. In considering the new In general. The section 6694(a) penalty tax return preparer’s experience with statutory provision as applied to the will not be imposed on a tax return the area of Federal tax law and taxpayer’s position, N may not avoid the preparer if the position taken has a familiarity with the taxpayer’s affairs, as section 6694(a) penalty by taking the position reasonable basis and is adequately that the tax return preparer reasonably disclosed within the meaning of well as the complexity of the issues and believed that the position would more likely facts, will be taken into account. A tax paragraph (c)(3) of this section. For an than not be sustained on its merits. exception to the section 6694(a) penalty return preparer may reasonably believe Example 3. While preparing the taxpayer’s that a position more likely than not return, Preparer O determines that a statute for reasonable cause and good faith, see would be sustained on its merits despite is silent as to whether the taxpayer may take paragraph (d) of this section. the absence of other types of authority a certain position on the taxpayer’s 2007 (2) Reasonable basis. For purposes of if the position is supported by a well- Federal income tax return. Three private this section, ‘‘reasonable basis’’ has the reasoned construction of the applicable letter rulings issued to other taxpayers in same meaning as in § 1.6662–3(b)(3) or statutory provision. For purposes of 2002 and 2003 support the taxpayer’s any successor provision of the accuracy- position. Temporary regulations issued in determining whether the tax return related penalty regulations. For 2004, however, are clearly contrary to the purposes of determining whether the tax preparer has a reasonable belief that the taxpayer’s position. After the issuance of the return preparer has a reasonable basis position would more likely than not be temporary regulations, the earlier private for a position, a tax return preparer may sustained on the merits, a tax return letter rulings cease to be authorities and are rely in good faith without verification preparer may rely in good faith without not taken into account in determining upon information furnished by the verification upon information furnished whether the taxpayer’s position satisfies the taxpayer, advisor, other tax return by the taxpayer, advisor, other tax reasonable belief that the position would preparer, or other party (including return preparer, or other party more likely than not be sustained on its another advisor or tax return preparer at (including another advisor or tax return merits standard. Preparer O may not avoid the section 6694(a) penalty by taking the the tax return preparer’s firm), as preparer at the tax return preparer’s position that the tax return preparer provided in § 1.6694–1(e). firm), as provided in § 1.6694–1(e). reasonably believed that the taxpayer’s (3) Adequate disclosure—(i) Signing (2) No unreasonable assumptions. A position would more likely than not be tax return preparers. In the case of a position must not be based on sustained on its merits. signing tax return preparer within the unreasonable factual or legal Example 4. In the course of researching meaning of § 301.7701–15(b)(1) of this assumptions (including assumptions as whether an interpretation of a phrase in the chapter, disclosure of a position for to future events) and must not Internal Revenue Code (Code) is a position which there is a reasonable basis but for unreasonably rely on the that more likely than not will be sustained which the tax return preparer does not representations, statements, findings, or on its merits, Preparer P discovers that the only relevant authorities include decisions of have a reasonable belief that the agreements of the taxpayer or any other five U.S. courts of appeal. Three U.S. courts position would more likely than not be person. For example, a position must of appeal have construed the language as sustained on the merits is adequate if not be based on a representation or being taxpayer favorable. Two other U.S. the tax return preparer meets any of the assumption that the tax return preparer courts of appeal, however, have construed following standards: knows, or has reason to know, is the identical language as being favorable to (A) The position is disclosed in inaccurate. the government’s position. The U.S. court of appeals in the jurisdiction where the accordance with § 1.6662–4(f) (which (3) Authorities. The authorities permits disclosure on a properly considered in determining whether a taxpayer is located has not addressed this issue. P reasonably believes that the completed and filed Form 8275, position satisfies the more likely than ‘‘Disclosure Statement,’’ or Form 8275– not standard are those authorities taxpayer’s facts more closely parallel the facts involved in the three U.S. courts of R, ‘‘Regulation Disclosure Statement,’’ provided in § 1.6662–4(d)(3)(iii) (or any appeals’ decisions that were taxpayer as appropriate, or on the tax return in successor provision). favorable. Under the analysis prescribed by accordance with the annual revenue (4) Examples. The provisions of § 1.6662–4(d)(3)(ii), P may avoid the section procedure described in § 1.6662–4(f)(2)). paragraphs (b)(1) through (b)(3) of this 6694(a) penalty by taking the position that (B) For income tax returns, if the section are illustrated by the following the tax return preparer reasonably believed position would not meet the standard examples: that a well-reasoned position consistent with the taxpayer favorable interpretation would for the taxpayer to avoid a penalty Example 1. A new statute is silent as to more likely than not be sustained on its under section 6662(d)(2)(B) without whether the taxpayer may take advantage of merits. disclosure (no substantial authority), the certain tax benefits. The Treasury tax return preparer provides the Department and the IRS have not issued any (5) Written determinations. The tax taxpayer with the prepared tax return interpretative guidance for the newly enacted return preparer may avoid the section provision. A well-reasoned construction of that includes the disclosure in the statutory text supports the position that 6694(a) penalty by taking the position accordance with § 1.6662–4(f). a taxpayer may claim the tax benefits. that the tax return preparer reasonably (C) For income tax returns, if the Preparer M may avoid the section 6694(a) believed that the taxpayer’s position position would otherwise meet the penalty by taking the position that M satisfies the ‘‘more likely than not’’ standard for nondisclosure under reasonably believed that the taxpayer’s standard if the taxpayer is the subject of section 6662(d)(2)(B)(i) (substantial

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authority), the tax return preparer return preparer does not have a Example 1. An individual taxpayer hires advises the taxpayer of all the penalty reasonable belief that the position Accountant Q to prepare its income tax standards applicable to the taxpayer would more likely than not be sustained return. Q does not reasonably believe that a under section 6662. The tax return on the merits, disclosure of that position particular position taken on the tax return would more likely than not be sustained on preparer must also contemporaneously is adequate if the tax return preparer its merits although there is substantial document the advice in the tax return advises the taxpayer of any opportunity authority for the position. Q prepares and preparer’s files. to avoid penalties under section 6662 signs the tax return without disclosing the (D) For income tax returns, if section that could apply to the position, if position taken on the tax return, but advises 6662(d)(2)(B) does not apply because relevant, and of the standards for the individual taxpayer of the penalty the position may be described in section disclosure to the extent applicable. The standards applicable to the taxpayer under 6662(d)(2)(C) or section 6662A (a tax tax return preparer must also section 6662, and contemporaneously shelter, reportable transaction with a contemporaneously document the documents in Q’s files that this advice was significant purpose of tax avoidance or advice in the tax return preparer’s files. provided. The individual taxpayer signs and evasion, or a listed transaction), the tax (B) Advice to another tax return files the tax return without disclosing the position because the position meets the return preparer advises the taxpayer that preparer. If a nonsigning tax return standards for nondisclosure under section there needs to be at a minimum preparer provides advice to another tax 6662(d)(2)(B)(i). The IRS later challenges the substantial authority for the position, return preparer with respect to a position taken on the tax return, resulting in that the taxpayer must possess a position for which there is a reasonable an understatement of liability. Q is not reasonable belief that the tax treatment basis but for which the nonsigning tax subject to a penalty under section 6694. was more likely than not the proper return preparer does not have a Example 2. Attorney R advises a large treatment in order to avoid a penalty reasonable belief that the position corporate taxpayer concerning the proper under section 6662(d) or section 6662A would more likely than not be sustained treatment of complex entries on the corporate as applicable, and that disclosure will on the merits, disclosure of that position taxpayer’s tax return. R has reason to know that the tax attributable to the entries is a not protect the taxpayer from is adequate if the tax return preparer substantial portion of the tax required to be assessment of an accuracy-related advises the other tax return preparer shown on the tax return within the meaning penalty if either section 6662(d)(2)(C) or that disclosure under section 6694(a) of § 301.7701–15(b)(3). When providing the 6662A applies to the position. The tax may be required. The tax return advice, R concludes that one position with return preparer must also preparer must also contemporaneously respect to these entries does not meet the contemporaneously document the document the advice in the tax return reasonable belief that the position would advice in the tax return preparer’s files. preparer’s files. more likely than not be sustained on the (E) For returns or claims for refund (iii) Requirements for advice. For merits standard and also does not have that are subject to penalties pursuant to purposes of satisfying the disclosure substantial authority, although the position meets the reasonable basis standard. R, in section 6662 other than the substantial standards of paragraphs (c)(3)(i) and (ii) good faith, advises the corporate taxpayer understatement penalty under section of this section, each return position for that the position lacks substantial authority 6662(b)(2) and (d), the tax return which there is a reasonable basis but for and the taxpayer will be subject to an preparer advises the taxpayer of the which the tax return preparer does not accuracy-related penalty under section 6662 penalty standards applicable to the have a reasonable belief that the unless the position is disclosed in a taxpayer under sections 6662. The tax position would more likely than not be disclosure statement included in the return. return preparer must also sustained on the merits must be R also documents the fact that this advice contemporaneously document the addressed by the tax return preparer. was contemporaneously provided to the advice in the tax return preparer’s files. The advice to the taxpayer with respect corporate taxpayer at the time the advice was (ii) Nonsigning tax return preparers. provided. Neither R nor any other attorney to each position, therefore, must be within R’s firm signs the corporate taxpayer’s In the case of a nonsigning tax return particular to the taxpayer and tailored to return as a tax return preparer, but the advice preparer within the meaning of the taxpayer’s facts and circumstances. by R constitutes preparation of a substantial § 301.7701–15(b)(2) of this chapter, The tax return preparer is required to portion of the tax return and R is the disclosure of a position that satisfies the contemporaneously document the fact individual with overall supervisory reasonable basis standard but does not that the advice was provided. There is responsibility for the position giving rise to satisfy the reasonable belief that a no general pro forma language or special the understatement. Thus, R is a tax return position would more likely than not be format required for a tax return preparer preparer for purposes of section 6694. R, sustained on its merits standard is to comply with these rules. No form of however, will not be subject to a penalty adequate if the position is disclosed in a general boilerplate disclaimer, under section 6694. accordance with § 1.6662–4(f) (which however, is sufficient to satisfy these (d) Exception for reasonable cause permits disclosure on a properly standards. A tax return preparer may and good faith. The penalty under completed and filed Form 8275 or Form choose to comply with the section 6694(a) will not be imposed if, 8275–R, as appropriate, or on the return documentation standard in one considering all the facts and in accordance with an annual revenue document covering each position, or in circumstances, it is determined that the procedure described in § 1.6662–4(f)(2)). multiple documents covering all of the understatement was due to reasonable In addition, disclosure of a position is positions. cause and that the tax return preparer adequate in the case of a nonsigning tax (iv) Pass-through entities. Disclosure acted in good faith. Factors to consider return preparer if, with respect to that in the case of items attributable to a include: position, the tax return preparer pass-through entity is adequate if made (1) Nature of the error causing the complies with the provisions of at the entity level in accordance with understatement. The error resulted from paragraph (c)(3)(ii)(A) or (B) of this the rules in § 1.6662–4(f)(5) or at the a provision that was complex, section, whichever is applicable. entity level in accordance with the rules uncommon, or highly technical and a (A) Advice to taxpayers. If a in paragraphs (c)(3)(i) or (ii) of this competent tax return preparer of tax nonsigning tax return preparer provides section. returns or claims for refund of the type advice to the taxpayer with respect to a (v) Examples. The provisions of at issue reasonably could have made the position for which there is a reasonable paragraph (c)(3) of this section are error. The reasonable cause and good basis but for which the nonsigning tax illustrated by the following examples: faith exception, however, does not

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apply to an error that would have been return preparer may reasonably rely in Par. 8. Section 1.6694–3 is amended apparent from a general review of the good faith on the advice of, or schedules by revising paragraphs (a), (c)(2) and (3), return or claim for refund by the tax or other documents prepared by, the (d), (e), (f), (g) and (h) to read as follows: return preparer. taxpayer, another advisor, another tax (2) Frequency of errors. The return preparer, or other party § 1.6694–3 Penalty for understatement due to willful, reckless, or intentional conduct. understatement was the result of an (including another advisor or tax return isolated error (such as an inadvertent preparer at the tax return preparer’s (a) In general—(1) Proscribed conduct. mathematical or clerical error) rather firm), and who the tax return preparer A tax return preparer is liable for a than a number of errors. Although the had reason to believe was competent to penalty under section 6694(b) equal to reasonable cause and good faith render the advice or other information. the greater of $5,000 or 50 percent of the exception generally applies to an The advice or information may be income derived (or to be derived) by the isolated error, it does not apply if the written or oral, but in either case the tax return preparer if any part of an isolated error is so obvious, flagrant, or burden of establishing that the advice or understatement of liability for a return material that it should have been information was received is on the tax or claim for refund that is prepared is discovered during a review of the return return preparer. A tax return preparer is due to— or claim for refund. Furthermore, the not considered to have relied in good (i) A willful attempt in any manner to reasonable cause and good faith faith if— understate the liability for tax by a tax exception does not apply if there is a (i) The advice or information is return preparer on the return or claim pattern of errors on a return or claim for unreasonable on its face; for refund; or refund even though any one error, in (ii) The tax return preparer knew or (ii) Any reckless or intentional isolation, would have qualified for the should have known that the other party disregard of rules or regulations by any reasonable cause and good faith providing the advice or information was such person. exception. not aware of all relevant facts; or (2) Special rule for corporations, (3) Materiality of errors. The (iii) The tax return preparer knew or partnerships, and other firms. A firm understatement was not material in should have known (given the nature of that employs a tax return preparer relation to the correct tax liability. The the tax return preparer’s practice), at the subject to a penalty under section reasonable cause and good faith time the return or claim for refund was 6694(b) (or a firm of which the exception generally applies if the prepared, that the advice or information individual tax return preparer is a understatement is of a relatively was no longer reliable due to partner, member, shareholder or other immaterial amount. Nevertheless, even developments in the law since the time equity holder) is also subject to penalty an immaterial understatement may not the advice was given. if, and only if— qualify for the reasonable cause and (6) Reliance on generally accepted (i) One or more members of the good faith exception if the error or administrative or industry practice. The principal management (or principal errors creating the understatement are tax return preparer reasonably relied in officers) of the firm or a branch office sufficiently obvious or numerous. good faith on generally accepted participated in or knew of the conduct (4) Tax return preparer’s normal administrative or industry practice in proscribed by section 6694(b); office practice. The tax return preparer’s taking the position that resulted in the (ii) The corporation, partnership, or normal office practice, when considered understatement. A tax return preparer is other firm entity failed to provide together with other facts and not considered to have relied in good reasonable and appropriate procedures circumstances, such as the knowledge of faith if the tax return preparer knew or for review of the position for which the the tax return preparer, indicates that should have known (given the nature of penalty is imposed; or (iii) Such review procedures were the error in question would rarely occur the tax return preparer’s practice), at the disregarded by the corporation, and the normal office practice was time the return or claim for refund was partnership, or other firm entity through followed in preparing the return or prepared, that the administrative or willfulness, recklessness, or gross claim for refund in question. Such a industry practice was no longer reliable indifference (including ignoring facts normal office practice must be a system due to developments in the law or IRS that would lead a person of reasonable for promoting accuracy and consistency administrative practice since the time prudence and competence to investigate in the preparation of returns or claims the practice was developed. for refund and generally would include, (e) Burden of proof. In any proceeding or ascertain) in the formulation of the in the case of a signing tax return with respect to the penalty imposed by advice, or the preparation of the return preparer, checklists, methods for section 6694(a), the issues on which the or claim for refund, that included the obtaining necessary information from tax return preparer bears the burden of position for which the penalty is the taxpayer, a review of the prior year’s proof include whether— imposed. return, and review procedures. (1) The tax return preparer knew or * * * * * Notwithstanding these rules, the reasonably should have known that the (c) Reckless or intentional disregard— reasonable cause and good faith questioned position was taken on the (1)* * * exception does not apply if there is a return; (2) A tax return preparer is not flagrant error on a return or claim for (2) There is reasonable cause and considered to have recklessly or refund, a pattern of errors on a return or good faith with respect to such position; intentionally disregarded a rule or claim for refund, or a repetition of the and regulation if the position contrary to the same or similar errors on numerous (3) The position was disclosed rule or regulation has a reasonable basis returns or claims for refund. adequately in accordance with as defined in § 1.6694–2(c)(2) and is (5) Reliance on advice of others. For paragraph (c) of this section. adequately disclosed in accordance with purposes of demonstrating reasonable (f) Effective/applicability date. This § 1.6694–2(c)(3). In the case of a cause and good faith, a tax return section is applicable to returns and position contrary to a regulation, the preparer may rely without verification claims for refund filed, and advice position must represent a good faith upon advice and information furnished provided, after the date that final challenge to the validity of the by the taxpayer or other party, as regulations are published in the Federal regulation and, when disclosed in provided in § 1.6694–1(e). The tax Register. accordance with § 1.6694–2(c)(3), the

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tax return preparer must identify the is reduced by any amount assessed and § 1.6695–1 Other assessable penalties regulation being challenged. For collected against the tax return preparer with respect to the preparation of tax purposes of this section, disclosure on under section 6694(a) for the same returns for other persons. the return in accordance with an annual return or claim for refund. (a) Failure to furnish copy to taxpayer. revenue procedure under § 1.6662– (g) Burden of proof. In any proceeding (1) A person who is a signing tax return preparer as described in § 301.7701– 4(f)(2) is not applicable. with respect to the penalty imposed by 15(b)(1) of this chapter of any return of (3) In the case of a position contrary section 6694(b), the government bears tax or claim for refund of tax under the to a revenue ruling or notice (other than the burden of proof on the issue of Internal Revenue Code (Code), and who a notice of proposed rulemaking) whether the tax return preparer fails to satisfy the requirements imposed published by the Internal Revenue willfully attempted to understate the by section 6107(a) and § 1.6107–1(a) to Service in the Internal Revenue liability for tax. See section 7427. The furnish a copy of the return or claim for Bulletin, a tax return preparer also is not tax return preparer bears the burden of refund to the taxpayer (or nontaxable considered to have recklessly or proof on such other issues as whether— intentionally disregarded the ruling or entity), shall be subject to a penalty of (1) The tax return preparer recklessly notice if the tax return preparer $50 for such failure, with a maximum or intentionally disregarded a rule or reasonably believes that the position penalty of $25,000 per person imposed regulation; would more likely than not be sustained with respect to each calendar year, on its merits in accordance with (2) A position contrary to a regulation unless it is shown that the failure is due § 1.6694–2(b). represents a good faith challenge to the to reasonable cause and not due to (d) Examples. The provisions of validity of the regulation; and willful neglect. paragraphs (b) and (c) of this section are (3) Disclosure was adequately made in (2) No penalty may be imposed under illustrated by the following examples: accordance with § 1.6694–3(c)(2). section 6695(a) and paragraph (a)(1) of this section upon a tax return preparer Example 1. A taxpayer provided Preparer (h) Effective/applicability date. This who furnishes a copy of the return or S with detailed check registers reflecting section is applicable to returns and claim for refund to taxpayers who— personal and business expenses. One of the claims for refund filed, and advice (i) Hold an elected or politically expenses was for domestic help, and this provided, after the date that final appointed position with the government expense was identified as personal on the regulations are published in the Federal check register. S knowingly deducted the of the United States or a state or expenses of the taxpayer’s domestic help as Register. political subdivision thereof; and wages paid in the taxpayer’s business. S is Par. 9. Section 1.6694–4 is amended (ii) In order faithfully to carry out subject to the penalty under section 6694(b). by revising paragraph (a) to read as their official duties, have so arranged Example 2. A taxpayer provided Preparer follows: their affairs that they have less than full T with detailed check registers to compute knowledge of the property that they the taxpayer’s expenses. T, however, § 1.6694–4 Extension of period of hold or of the debts for which they are knowingly overstated the expenses on the collection when tax return preparer pays 15 responsible, if information is deleted percent of a penalty for understatement of return. After adjustments by the examiner, from the copy in order to preserve or the tax liability increased significantly. taxpayer’s liability and certain other Because T disregarded information provided procedural matters. maintain this arrangement. in the check registers, T is subject to the (b) Failure to sign return. (1) An penalty under section 6694(b). (a) In general. (1) The Internal individual who is a tax return preparer Example 3. Preparer U prepares a Revenue Service will investigate the as described in § 301.7701–15 of this taxpayer’s return and encounters certain preparation by a tax return preparer of chapter with respect to a return of tax expenses incurred in the purchase of a a return of tax under the Internal or claim for refund of tax under the business. Final regulations provide that such Revenue Code (Code) or claim for Code that is not signed electronically expenses incurred in the purchase of a refund of tax under the Code as shall sign the return or claim for refund business must be capitalized. One U.S. Tax described in § 301.7701–15(b)(4) of this after it is completed and before it is Court case has expressly invalidated that chapter, and will send a report of the presented to the taxpayer (or nontaxable portion of the regulations. Under these facts, examination to the tax return preparer U will have a reasonable basis for the entity) for signature. For rules covering position as defined in § 1.6694–2(c)(2) and before the assessment of either— electronically signed returns, see will not be subject to the section 6694(b) (i) A penalty for understating tax paragraph (b)(2) of this section. For penalty if the position is adequately liability due to a position for which purposes of this paragraph (b), a return disclosed in accordance with paragraph (c)(2) there was not a reasonable belief that of tax shall not include information of this section because the position the position would more likely than not returns under subpart B and subpart C represents a good faith challenge to the be sustained on its merits under section of Part III of Subtitle F. If the tax return validity of the regulations. 6694(a) (or not a reasonable basis for preparer is unavailable for signature, (e) Rules or regulations. The term disclosed positions); or another tax return preparer shall review rules or regulations includes the (ii) A penalty for willful the entire preparation of the return or provisions of the Internal Revenue understatement of liability or reckless or claim for refund, and then shall sign the Code, temporary or final Treasury intentional disregard of rules or return or claim for refund. The tax regulations issued under the Code, and regulations under section 6694(b). return preparer shall sign the return in revenue rulings or notices (other than the manner prescribed by the * * * * * notices of proposed rulemaking) issued Commissioner in forms, instructions, or by the Internal Revenue Service and (d) Effective/applicability date. This other appropriate guidance. published in the Internal Revenue section is applicable to returns and (2) In the case of electronically signed Bulletin. claims for refund filed, and advice tax returns, the tax return preparer need (f) Section 6694(b) penalty reduced by provided, after the date that final not sign the return prior to presenting a section 6694(a) penalty. The amount of regulations are published in the Federal completed copy of the return to the any penalty to which a tax return Register. taxpayer. The tax return preparer, preparer may be subject under section Par. 10. Section 1.6695–1 is revised to however, must furnish all of the 6694(b) for a return or claim for refund read as follows: information that will be transmitted as

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the electronically signed tax return to Partnership E require that K, a partner, maximum of $25,000 per person the taxpayer contemporaneously with finally review the return. The scope of K’s imposed with respect to each calendar furnishing the Form 8879, ‘‘IRS e-file review includes reviewing the information year, unless it is shown that the failure Signature Authorization,’’ or other provided and applying to this information is due to reasonable cause and not due his knowledge of H’s affairs, observing that similar Internal Revenue Service (IRS) e- Partnership E’s policies and practices have to willful neglect. If the tax return file signature form. The information been followed, and making the final preparer asserts reasonable cause for may be furnished on a replica of an determination with respect to the proper failure to sign, the IRS will require a official form. The tax return preparer application of the tax laws to determine H’s written statement to substantiate the tax shall electronically sign the return in tax liability. K may or may not exercise these return preparer’s claim of reasonable the manner prescribed by the responsibilities, or may exercise them to a cause. For purposes of this paragraph Commissioner in forms, instructions, or greater or lesser extent, depending on the (b), reasonable cause is a cause that other appropriate guidance. degree of complexity of the return, his arises despite ordinary care and (3) If more than one tax return confidence in I (or F and G), and other prudence exercised by the individual preparer is involved in the preparation factors. K is the individual tax return tax return preparer. preparer who is primarily responsible for the (6) Effective/applicability date. This of the return or claim for refund, the overall accuracy of H’s return. K must sign individual tax return preparer who has the return as tax return preparer. paragraph (b) is applicable to returns the primary responsibility as between or Example 3. L corporation maintains an and claims for refund filed after the date among the tax return preparers for the office in Seattle, Washington, for the purpose that final regulations are published in overall substantive accuracy of the of preparing partnership returns for the Federal Register. preparation of such return or claim for compensation. L makes compensatory (c) Failure to furnish identifying refund shall be considered to be the arrangements with individuals (but provides number. (1) A person who is a signing signing tax return preparer for purposes no working facilities) in several states to tax return preparer as described in of this paragraph (b) and § 301.7701– collect information from partners of a § 301.7701–15(b)(1) of this chapter of partnership and to make decisions with any return of tax under the Code or 15(b)(1) of this chapter. Any other tax respect to the proper application of the tax return preparer as described in claim for refund of tax under the Code, laws to the information in order to prepare and who fails to satisfy the requirement § 301.7701–15(b)(2) of this chapter is the partnership return and calculate the not required to sign the return or claim partnership’s distributive items. M, an of section 6109(a)(4) and § 1.6109–2(a) for refund. individual, who has such an arrangement in to furnish one or more identifying (4) Examples. The application of this Los Angeles with L, collects information numbers of signing tax return preparers paragraph (b) is illustrated by the from N, the general partner of a partnership, or persons employing the signing tax following examples: and completes a worksheet kit supplied by L return preparer (or with which the that is stamped with M’s name and an signing tax return preparer is associated) Example 1. Law Firm A employs B, a identification number assigned to M by L. In on a return or claim for refund after it lawyer, to prepare for compensation estate this process, M classifies this information in is completed and before it is presented tax returns and claims for refund of taxes. appropriate categories for the preparation of Firm A is engaged by C to prepare a Federal to the taxpayer (or nontaxable entity) for the partnership return. The completed signature shall be subject to a penalty of estate tax return. Firm A assigns B to prepare worksheet kit signed by M is then mailed to the return. B obtains the information L. O, an employee in L’s office, reviews the $50 for each failure, with a maximum of necessary for completing the return from C worksheet kit to make sure it was properly $25,000 per person imposed with and makes determinations with respect to the completed. O does not review the respect to each calendar year, unless it proper application of the tax laws to such information obtained from N for its validity is shown that the failure is due to information in order to determine the estate’s or accuracy. O may, but did not, make the reasonable cause and not due to willful tax liability. B then forwards such final decision with respect to the proper neglect. information to D, a computer tax service that application of tax laws to the information (2) No more than one penalty of $50 performs the mathematical computations and provided. The data from the worksheet is may be imposed under section 6695(c) prints the return by means of computer entered into a computer and the return form and paragraph (c)(1) of this section with processing. D then sends the completed is completed. The return is prepared for respect to a single return or claim for estate tax return to B who reviews the submission to N with filing instructions. M accuracy of the return. B is the individual tax is the individual tax return preparer refund. return preparer who is primarily responsible primarily responsible for the overall accuracy (d) Failure to retain copy or record. (1) for the overall accuracy of the estate tax of the partnership return. M must sign the A person who is a signing tax return return. B must sign the return as tax return return as tax return preparer. preparer as described in § 301.7701– preparer. Example 4. P employs R, S, and T to 15(b)(1) of this chapter of any return of Example 2. Partnership E is a national prepare gift tax returns for taxpayers. After R tax under the Code or claim for refund accounting firm that prepares returns and and S have collected the information from a of tax under the Code, and who fails to claims for refund of taxes for compensation. taxpayer and applied the tax laws to the satisfy the requirements imposed upon F and G, employees of Partnership E, are information, the return form is completed by involved in preparing the Form 990–T, him or her by section 6107(b) and a computer service. On the day the returns § 1.6107–1(b) and (c) (other than the Exempt Organization Business Income Tax prepared by R and S are ready for their Return, for H, a tax exempt organization. signatures, R is away from the city for 1 week record requirement described in both After they complete the return, including the on another assignment and S is on detail to § 1.6107–1(b)(2) and (3)) to retain and gathering of the necessary information, another office in the same city for the day. make available for inspection a copy of analyzing the proper application of the tax T may sign the gift tax returns prepared by the return or claim for refund, or to laws to such information, and the R, provided that T reviews the information include the return or claim for refund in performance of the necessary mathematical obtained by R relative to the taxpayer, and T a record of returns and claims for refund computations, I, a supervisory employee of reviews the preparation of each return and make the record available for Partnership E, reviews the return. As part of prepared by R. T may not sign the returns inspection, shall be subject to a penalty this review, I reviews the information prepared by S because S is available. provided and the application of the tax laws of $50 for the failure, unless it is shown to this information. The mathematical (5) An individual required by this that the failure is due to reasonable computations and carried-forward amounts paragraph (b) to sign a return or claim cause and not due to willful neglect. are reviewed by J, an employee of for refund shall be subject to a penalty (2) A person may not, for returns or Partnership E. The policies and practices of of $50 for each failure to sign, with a claims for refund presented to the

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taxpayers (or nontaxable entities) during a signing tax return preparer of a tax additional reasonable inquiries to determine any single return period, be subject to return or claim for refund under the Mrs. D’s proper filing status. more than $25,000 in penalties under Internal Revenue Code with respect to Example 4. Taxpayer asks Preparer E to section 6695(d) and paragraph (d)(1) of determining the eligibility for, or the prepare her tax return and tells D that she has a Schedule C business, that she has two this section. amount of, the earned income credit qualifying children and that she wants to (e) Failure to file correct information (EIC) under section 32 and who fails to claim the EIC. Taxpayer indicates that she returns. A person who is subject to the satisfy the due diligence requirements of earned $10,000 from her Schedule C reporting requirements of section 6060 paragraph (b) of this section will be business, but that she has no expenses. This and § 1.6060–1 and who fails to satisfy subject to a penalty of $100 for each information appears incomplete because it is these requirements shall pay a penalty such failure. very unlikely that someone who is self- of $50 for each such failure, with a (b) * * * employed has no business expenses. E must maximum of $25,000 per person (3) Knowledge—(i) In general. The tax make additional reasonable inquiries imposed for each calendar year, unless return preparer must not know, or have regarding taxpayer’s business to determine such failure was due to reasonable cause whether the information regarding both reason to know, that any information income and expenses is correct. and not due to willful neglect. used by the tax return preparer in (f) Negotiation of check. (1) No person determining the taxpayer’s eligibility (c) Exception to penalty. The section who is a tax return preparer as for, or the amount of, the EIC is 6695(g) penalty will not be applied with described in § 301.7701–15 of this incorrect. The tax return preparer may respect to a particular tax return or chapter may endorse or otherwise not ignore the implications of claim for refund if the tax return negotiate, directly or through an agent, information furnished to, or known by, preparer can demonstrate to the a check for the refund of tax under the the tax return preparer, and must make satisfaction of the Internal Revenue Code that is issued to a taxpayer other reasonable inquiries if the information Service that, considering all the facts than the tax return preparer if the furnished to the tax return preparer and circumstances, the tax return person was a tax return preparer of the appears to be incorrect, inconsistent, or preparer’s normal office procedures are return or claim for refund which gave incomplete. A tax return preparer must reasonably designed and routinely rise to the refund check. make reasonable inquiries if a followed to ensure compliance with the (2) Section 6695(f) and paragraphs reasonable and well-informed tax return due diligence requirements of paragraph (f)(1) and (3) of this section do not apply preparer knowledgeable in the law (b) of this section, and the failure to to a tax return preparer-bank that— would conclude that the information meet the due diligence requirements of (i) Cashes a refund check and remits furnished to the tax return preparer paragraph (b) of this section with all of the cash to the taxpayer or accepts appears to be incorrect, inconsistent, or respect to the particular return or claim a refund check for deposit in full to a incomplete. The tax return preparer for refund was isolated and inadvertent. taxpayer’s account, so long as the bank must also contemporaneously document (d) Effective/applicability date. This does not initially endorse or negotiate in the files the reasonable inquiries section is applicable to returns and the check (unless the bank has made a made and the responses to these claims for refund filed after the date that loan to the taxpayer on the basis of the inquiries. final regulations are published in the anticipated refund); or (ii) Examples. The provisions of Federal Register. (ii) Endorses a refund check for paragraph (b)(3)(i) of this section are Par. 12. Section 1.6696–1 is revised to deposit in full to a taxpayer’s account illustrated by the following examples: read as follows: pursuant to a written authorization of Example 1. A 22 year-old taxpayer wants § 1.6696–1 Claims for credit or refund by the taxpayer (unless the bank has made to claim two sons, ages 10 and 11, as tax return preparers or appraisers. a loan to the taxpayer on the basis of the qualifying children for purposes of the EIC. (a) Notice and demand. (1) The anticipated refund). Preparer A must make additional reasonable Internal Revenue Service (IRS) shall (3) A tax return preparer-bank may inquiries regarding the relationship between issue to each tax return preparer or also subsequently endorse or negotiate a the taxpayer and the children as the age of appraiser one or more statements of refund check as a part of the check- the taxpayer appears inconsistent with the notice and demand for payment for all clearing process through the financial ages of the children claimed as sons. penalties assessed against the tax return system after initial endorsement or Example 2. An 18 year-old female taxpayer preparer or appraiser under section negotiation. with an infant has $3,000 in earned income (4) The tax return preparer shall be and states that she lives with her parents. 6694 and § 1.6694–1, under section Taxpayer wants to claim the infant as a subject to a penalty of $500 for each 6695 and § 1.6695–1, or under section qualifying child for the EIC. This information 6695A (and any subsequently issued endorsement or negotiation of a check appears incomplete and inconsistent because prohibited under section 6695(f) and regulations). the taxpayer lives with her parents and earns (2) For the definition of the term ‘‘tax paragraph (f)(1) of this section. very little income. Preparer B must make return preparer,’’ see section 7701(a)(36) (g) Effective/applicability date. This additional reasonable inquires to determine if section is applicable to returns and the taxpayer is the qualifying child of her and § 301.7701–15 of this chapter. A claims for refund filed after the date that parents and, therefore, ineligible to claim the person who prepares a claim for credit final regulations are published in the EIC. or refund under this section for another Federal Register. Example 3. In March 2008, Mr. D has person, however, is not, with respect to Par. 11. Section 1.6695–2 is amended Preparer C prepare his tax year 2007 return that preparation, a tax return preparer as using Married Filing Separate filing status, by revising the section heading and defined in section 7701(a)(36) and and an address of 25 Main Street, Mytown, § 301.7701–15 of this chapter. paragraphs (a), (b)(3), (c) and (d) to read Mystate. Two weeks later Mrs. D has C as follows: (b) Claim filed by tax return preparer prepare her tax year 2007 return, and she or appraiser. A claim for credit or asks C to use the Head of Household filing § 1.6695–2 Tax return preparer due status, claiming two qualifying children, and refund of a penalty (or penalties) diligence requirements for determining the EIC. She tells C that her address is 25 assessed against a tax return preparer or earned income credit eligibility. Main Street, Mytown, Mystate. Mrs. D’s filing appraiser under section 6694 and (a) Penalty for failure to meet due status appears incorrect based on the filing § 1.6694–1, under section 6695 and diligence requirements. A person who is status used by Mr. D. Therefore, C must make § 1.6695–1, or under section 6695A (and

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any subsequently issued regulations) (2) The tax return preparer’s or form prescribed for making a claim as may be filed under this section only by appraiser’s identification number. If the provided in this section. the tax return preparer or the appraiser tax return preparer or appraiser is— (f) Place for filing claim. A claim filed (or the tax return preparer’s or (i) An individual (not described in under this section shall be filed with the appraiser’s estate) against whom the paragraph (d)(2)(iii) of this section) who IRS campus or office that issued to the penalty (or penalties) is assessed and is a citizen or resident of the United tax return preparer or appraiser the not by, for example, the tax return States, the tax return preparer’s or statement (or statements) of notice and preparer’s or appraiser’s employer. This appraiser’s social security account demand for payment of the penalty (or paragraph (b) is not intended, however, number (or such alternative number as penalties) included in the claim. to impose any restrictions on the may be prescribed by the IRS in forms, (g) Time for filing claim. (1)(i) Except preparation of this claim for credit or instructions, or other appropriate as provided in section 6694(c)(1) and refund. The claim may be prepared by guidance) shall be provided; § 1.6694–2(a)(3)(ii) and (4), and in the tax return preparer’s or appraiser’s (ii) An individual who is not a citizen section 6694(d) and § 1.6694–1(c): employer or by other persons. In all or resident of the United States and also (A) A claim for a penalty paid by a tax cases, however, the claim for credit or was not employed by another tax return return preparer under section 6694 and refund shall contain the information preparer or appraiser to prepare the § 1.6694–1, or under section 6695 and specified in paragraph (d) of this section document (or documents) with respect § 1.6695–1, or by a appraiser under and, as required by paragraph (d) of this to which the penalty (or penalties) was section 6695A (and any subsequently section, shall be verified by a written assessed, the tax return preparer’s or issued regulations) shall be filed within declaration by the tax return preparer or appraiser’s employer identification three years from the date the payment appraiser that the information is number shall be provided; or was made. provided under penalty of perjury. (iii) A person (whether an individual, (B) A consolidated claim, permitted corporation, or partnership) that under paragraph (c)(2) of this section, (c) Separation and consolidation of employed one or more persons to shall be filed within three years from claims. (1) Unless paragraph (c)(2) of prepare the document (or documents) the first date of payment of any penalty this section applies, a tax return with respect to which the penalty (or included in the claim. preparer shall file a separate claim for penalties) was assessed, the tax return (ii) For purposes of this paragraph each penalty assessed in each statement preparer’s or appraiser’s employer (g)(1), payment is considered made on of notice and demand issued to the tax identification number shall be provided. the date payment is received by the IRS return preparer. (3) The tax return preparer’s or or, if applicable, on the date an amount (2) A tax return preparer may file one appraiser’s address where the IRS is credited in satisfaction of the penalty. or more consolidated claims for any or mailed the statement (or statements) of (2) For purposes of determining all penalties imposed on the tax return notice and demand and, if different, the whether a claim is timely filed, the rules preparer by a single IRS Office under tax return preparer’s or appraiser’s under sections 7502 and 7503 and the section 6695(a) and § 1.6695–1(a) address shown on the document (or provisions of §§ 1.7502–1, 1.7502–2, (relating to failure to furnish copy of documents) with respect to which the and 1.7503–1 apply. return to taxpayer), section 6695(b) and penalty (or penalties) was assessed. (h) Application of refund to § 1.6695–1(b) (relating to failure to sign), (4)(i) The address of the IRS campus outstanding liability of tax return section 6695(c) and § 1.6695–1(c) or office that issued the statement (or preparer or appraiser. The IRS may, (relating to failure to furnish identifying statements) of notice and demand for within the applicable period of number), or under section 6695(d) and payment of the penalty (or penalties). limitations, credit any amount of an § 1.6695–1(d) (relating to failure to (ii) The date (or dates) and identifying overpayment by a tax return preparer or retain copy of return or record), whether number (or numbers) of the statement appraiser of a penalty (or penalties) paid the penalties are asserted on a single or (or statements) of notice and demand. under section 6694 and § 1.6694–1, on separate statements of notice and (5)(i) The identification, by amount, under section 6695 and § 1.6695–1, or demand. In addition, a tax return type, and document to which related, of under section 6695A (and any preparer may file one consolidated each penalty included in the claim. subsequently issued regulations) against claim for any or all penalties imposed Each document referred to in the any outstanding liability for any tax (or on the tax return preparer by a single preceding sentence shall be identified for any interest, additional amount, IRS Office under section 6695(e) and by the form title or number, by the addition to the tax, or assessable § 1.6695–1(e) (relating to failure to file taxpayer’s (or nontaxable entity’s) name penalty) owed by the tax return preparer correct information return), which are and taxpayer identification number, and or appraiser making the overpayment. If asserted on a single statement of notice by the taxable year to which the a portion of an overpayment is so and demand. document relates. credited, only the balance will be refunded to the tax return preparer or (d) Content of claim. Each claim for (ii) The date (or dates) of payment of the amount (or amounts) of the penalty appraiser. credit or refund for any penalty (or (i) Interest. (1) Section 6611 and penalties) paid by a tax return preparer (or penalties) included in the claim. (iii) The total amount claimed. § 301.6611–1 of this chapter apply to the under section 6694 and § 1.6694–1, or (6) A statement setting forth in payment by the IRS of interest on an under section 6695 and § 1.6695–1, or detail— overpayment by a tax return preparer or paid by an appraiser under section (i) Each ground upon which each appraiser of a penalty (or penalties) paid 6695A (and any subsequently issued penalty overpayment claim is based; under section 6694 and § 1.6694–1, regulations) shall include the following and under section 6695 and § 1.6695–1, or information, verified by a written (ii) Facts sufficient to apprise the IRS under section 6695A (and any declaration by the tax return preparer or of the exact basis of each such claim. subsequently issued regulations). appraiser that the information is (e) Form for filing claim. (2) Section 6601 and § 301.6601–1 of provided under penalty of perjury: Notwithstanding § 301.6402(c) of this this chapter apply to the payment of (1) The tax return preparer’s or chapter, Form 6118, ‘‘Claim for Refund interest by a tax return preparer or appraiser’s name. of Tax Return Preparer Penalties,’’ is the appraiser to the IRS on any penalty (or

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penalties) assessed against the tax return of subtitle B of the Internal Revenue § 20.6694–2 Penalties for understatement preparer under section 6694 and Code, other than for the person, at any due to an unreasonable position. § 1.6694–1, under section 6695 and time during a return period, shall satisfy (a) In general. A person who is a tax § 1.6695–1, or under section 6695A (and the recordkeeping and inspection return preparer of any return or claim any subsequently issued regulations). requirements in the manner stated in for refund of estate tax under chapter 11 (j) Suits for refund of penalty. (1) A § 1.6060–1 of this chapter. of subtitle B of the Internal Revenue tax return preparer or appraiser may not (b) Effective/applicability date. This Code (Code) shall be subject to penalties maintain a civil action for the recovery section is applicable to returns and under section 6694(a) of the Code in the of any penalty paid under section 6694 claims for refund filed after the date that manner stated in § 1.6694–2 of this and § 1.6694–1, under section 6695 and final regulations are published in the chapter. § 1.6695–1, or under section 6695A (and Federal Register. (b) Effective/applicability date. This any subsequently issued regulations), Par. 15. Section 20.6107–1 is added to section is applicable to returns and unless the tax return preparer or read as follows: claims for refund filed, and advice appraiser has previously filed a claim provided, after the date that final for credit or refund of the penalty as § 20.6107–1 Tax return preparer must regulations are published in the Federal provided in this section (and the court furnish copy of return to taxpayer and must Register. retain a copy or record. has jurisdiction of the proceeding). See Par. 19. Section 20.6694–3 is added to sections 6694(c) and 7422. (a) In general. A person who is a read as follows: signing tax return preparer of any return (2)(i) Except as provided in section § 20.6694–3 Penalty for understatement 6694(c)(2) and § 1.6694–2(b), the or claim for refund of estate tax under due to willful, reckless, or intentional periods of limitation contained in chapter 11 of subtitle B of the Internal conduct. section 6532 and § 301.6532–1 of this Revenue Code shall furnish a completed (a) In general. A person who is a tax chapter apply to a tax return preparer’s copy of the return or claim for refund return preparer of any return or claim or appraiser’s suit for the recovery of to the estate, and retain a completed for refund of estate tax under chapter 11 any penalty paid under section 6694 copy or record in the manner stated in of subtitle B of the Internal Revenue and § 1.6694–1, under section 6695 and § 1.6107–1 of this chapter. Code (Code) shall be subject to penalties § 1.6695–1, or under section 6695A (and (b) Effective/applicability date. This under section 6694(b) of the Code in the any subsequently issued regulations). section is applicable to returns and manner stated in § 1.6694–3 of this (ii) The rules under section 7503 and claims for refund filed after the date that chapter. § 301.7503–1 of this chapter apply to the final regulations are published in the (b) Effective/applicability date. This timely commencement by a tax return Federal Register. section is applicable to returns and preparer or appraiser of a suit for the Par. 16. Section 20.6109–1 is added to claims for refund filed, and advice recovery of any penalty paid under read as follows: provided, after the date that final section 6694 and § 1.6694–1, under regulations are published in the Federal section 6695 and § 1.6695–1, or under § 20.6109–1 Tax return preparers furnishing identifying numbers for returns Register. section 6695A (and any subsequently or claims for refund. Par. 20. Section 20.6694–4 is added to issued regulations). read as follows: (k) Effective/applicability date. This (a) In general. Each estate tax return section is applicable to returns and or claim for refund prepared by one or § 20.6694–4 Extension of period of claims for refund filed, and advice more signing tax return preparers must collection when preparer pays 15 percent of a penalty for understatement of taxpayer’s provided, after the date that final include the identifying number of the preparer required by § 1.6695–1(b) of liability and certain other procedural regulations are published in the Federal matters. Register. this chapter to sign the return or claim for refund in the manner stated in (a) In general. For rules relating to the PART 20—ESTATE TAX; ESTATES OF § 1.6109–2 of this chapter. extension of the period of collection DECEDENTS DYING AFTER AUGUST (b) Effective/applicability date. when a tax return preparer who 16, 1954 Paragraph (a) of this section is prepared a return or claim for refund for applicable to returns and claims for estate tax under chapter 11 of subtitle B Par. 13. The authority citation for part refund filed after the date that final of the Internal Revenue Code pays 15 20 is amended by adding entries in regulations are published in the Federal percent of a penalty for understatement numerical order to read in part as Register. of the taxpayer’s liability, and follows: Par. 17. Section 20.6694–1 is added to procedural matters relating to the investigation, assessment and collection Authority: 26 U.S.C. 7805 * * * read as follows: Section 20.6060–1 also issued under 26 of the penalties under sections 6694(a) U.S.C. 6060(a). * * * § 20.6694–1 Section 6694 penalties and (b), the rules under § 1.6694–4 of Section 20.6109–2 also issued under 26 applicable to tax return preparer. this chapter will apply. U.S.C. 6109(a). * * * (a) In general. For general definitions (b) Effective/applicability date. This Section 20.6695–1 also issued under 26 section is applicable to returns and U.S.C. 6695(b). * * * regarding section 6694 penalties applicable to preparers of estate tax claims for refund filed, and advice Section 20.6695–2 also issued under 26 provided, after the date that final U.S.C. 6695(g). * * * returns or claims see § 1.6694–1 of this chapter. regulations are published in the Federal Par. 14. Section 20.6060–1 is added to Register. read as follows: (b) Effective/applicability date. Paragraph (a) of this section is Par. 21. Section 20.6695–1 is added to read as follows: § 20.6060–1 Reporting requirements for applicable to returns and claims for tax return preparers. refund filed, and advice provided, after § 20.6695–1 Other assessable penalties (a) In general. A person that employs the date that final regulations are with respect to the preparation of tax (or engages) one or more tax return published in the Federal Register. returns for other persons. preparers to prepare a return or claim Par. 18. Section 20.6694–2 is added to (a) In general. A person who is a tax for refund of estate tax under chapter 11 read as follows: return preparer of any return or claim

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for refund of estate tax under chapter 11 Section 25.6695–2 also issued under 26 returns or claims see § 1.6694–1 of this of subtitle B of the Internal Revenue U.S.C. 6695(g). * * * chapter. Code (Code) shall be subject to penalties Par. 25. Section 25.6060–1 is added to (b) Effective/applicability date. for failure to furnish a copy to the read as follows: Paragraph (a) of this section is taxpayer under section 6695(a) of the applicable to returns and claims for Code, failure to sign the return under § 25.6060–1 Reporting requirements for refund filed, and advice provided, after section 6695(b) of the Code, failure to tax return preparers. the date that final regulations are furnish an identification number under (a) In general. A person that employs published in the Federal Register. section 6695(c) of the Code, failure to (or engages) one or more tax return Par. 29. Section 25.6694–2 is added to retain a copy or list under section preparers to prepare a return or claim read as follows: 6695(d) of the Code, failure to file a for refund of gift tax under chapter 12 of subtitle B of the Internal Revenue § 25.6694–2 Penalties for understatement correct information return under section due to an unreasonable position. 6695(e) of the Code, and negotiation of Code, other than for the person, at any a check under section 6695(f) of the time during a return period, shall satisfy (a) In general. A person who is a tax Code, in the manner stated in § 1.6695– the record keeping and inspection return preparer of any return or claim 1 of this chapter. requirements in the manner stated in for refund of gift tax under chapter 12 (b) Effective/applicability date. This § 1.6060–1 of this chapter. of subtitle B of the Internal Revenue section is applicable to returns and (b) Effective/applicability date. This Code (Code) shall be subject to penalties claims for refund filed after the date that section is applicable to returns and under section 6694(a) of the Code in the final regulations are published in the claims for refund filed after the date that manner stated in § 1.6694–2 of this Federal Register. final regulations are published in the chapter. Par. 22. Section 20.6696–1 is added to Federal Register. (b) Effective/applicability date. This read as follows: Par. 26. Section 25.6107–1 is added to section is applicable to returns and read as follows: claims for refund filed, and advice § 20.6696–1 Claims for credit or refund by provided, after the date that final tax return preparers or appraisers. § 25.6107–1 Tax return preparer must regulations are published in the Federal (a) In general. For rules for claims for furnish copy of return to taxpayer and must Register. retain a copy or record. credit or refund by a tax return preparer Par. 30. Section 25.6694–3 is added to who prepared a return or claim for (a) In general. A person who is a read as follows: refund for estate tax under chapter 11 of signing tax return preparer of any return § 25.6694–3 Penalty for understatement subtitle B of the Internal Revenue Code, or claim for refund of gift tax under chapter 12 of subtitle B of the Internal due to willful, reckless, or intentional or by an appraiser that prepared an conduct. appraisal in connection with such a Revenue Code shall furnish a completed (a) In general. A person who is a tax return or claim for refund under section copy of the return or claim for refund return preparer of any return or claim 6695A, the rules under § 1.6696–1 of to the taxpayer, and retain a completed for refund of gift tax under chapter 12 this chapter will apply. copy or record in the manner stated in of subtitle B of the Internal Revenue (b) Effective/applicability date. This § 1.6107–1 of this chapter. Code (Code) shall be subject to penalties section is applicable to returns and (b) Effective/applicability date. This under section 6694(b) of the Code in the claims for refund filed, and advice section is applicable to returns and manner stated in § 1.6694–3 of this provided, after the date that final claims for refund filed after the date that chapter. regulations are published in the Federal final regulations are published in the (b) Effective/applicability date. This Register. Federal Register. section is applicable to returns and Par. 23. Section 20.7701–1 is added to Par. 27. Section 25.6109–1 is added to claims for refund filed, and advice read as follows: read as follows: provided, after the date that final § 20.7701–1 Tax return preparer. § 25.6109–1 Tax return preparers regulations are published in the Federal furnishing identifying numbers for returns Register. (a) In general. For the definition of a or claims for refund. tax return preparer, see § 301.7701–15 of Par. 31. Section 25.6694–4 is added to (a) In general. Each gift tax return or this chapter. read as follows: claim for refund prepared by one or (b) Effective/applicability date. This more signing tax return preparers must § 25.6694–4 Extension of period of section is applicable to returns and include the identifying number of the collection when tax return preparer pays 15 claims for refund filed, and advice preparer required by § 1.6695–1(b) of percent of a penalty for understatement of provided, after the date that final taxpayer’s liability and certain other this chapter to sign the return or claim regulations are published in the Federal procedural matters. for refund in the manner stated in Register. § 1.6109–2 of this chapter. (a) In general. For rules for the (b) Effective/applicability date. extension of period of collection when PART 25—GIFT TAX; GIFTS MADE a tax return preparer who prepared a AFTER DECEMBER 31, 1954 Paragraph (a) of this section is applicable to returns and claims for return or claim for refund for gift tax Par. 24. The authority citation for part refund filed after the date that final under chapter 12 of subtitle B of the 25 is amended by adding entries in regulations are published in the Federal Internal Revenue Code pays 15 percent numerical order to read in part as Register. of a penalty for understatement of follows: Par. 28. Section 25.6694–1 is added to taxpayer’s liability, and procedural read as follows: matters relating to the investigation of , Authority: 26 U.S.C. 7805 * * * assessment and collection of the Section 25.6060–1 also issued under 26 § 25.6694–1 Section 6694 penalties U.S.C. 6060(a). * * * penalties under section 6694(a) and (b), applicable to tax return preparer. Section 25.6109–2 also issued under 26 the rules under § 1.6694–4 of this U.S.C. 6109(a). * * * (a) In general. For general definitions chapter will apply. Section 25.6695–1 also issued under 26 regarding section 6694 penalties (b) Effective/applicability date. This U.S.C. 6695(b). * * * applicable to preparers of gift tax section is applicable to returns and

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claims for refund filed, and advice PART 26—GENERATION-SKIPPING identifying number of the preparer provided, after the date that final TRANSFER TAX REGULATIONS required by § 1.6695–1(b) of this chapter regulations are published in the Federal UNDER THE TAX REFORM ACT OF to sign the return or claim for refund in Register. 1986 the manner stated in § 1.6109–2 of this chapter. Par. 32. Section 25.6695–1 is added to Par. 35. The authority citation for part read as follows: (b) Effective/applicability date. 26 is amended by adding entries in Paragraph (a) of this section is § 25.6695–1 Other assessable penalties numerical order to read in part as applicable to returns and claims for with respect to the preparation of tax follows: refund filed after the date that final returns for other persons. Authority: 26 U.S.C. 7805 * * * regulations are published in the Federal (a) In general. A person who is a tax Section 26.6060–1 also issued under 26 Register. return preparer of any return or claim U.S.C. 6060(a).* * * Par. 39. Section 26.6694–1 is added to for refund of gift tax under chapter 12 Section 26.6109–2 also issued under 26 read as follows: U.S.C. 6109(a).* * * of subtitle B of the Internal Revenue Section 26.6695–1 also issued under 26 § 26.6694–1 Section 6694 penalties Code (Code) shall be subject to penalties U.S.C. 6695(b).* * * applicable to tax return preparer. for failure to furnish a copy to the Section 26.6695–2 also issued under 26 (a) In general. For general definitions taxpayer under section 6695(a) of the U.S.C. 6695(g).* * * regarding section 6694 penalties Code, failure to sign the return under Par. 36. Section 26.6060–1 is added to applicable to preparers of generation- section 6695(b) of the Code, failure to read as follows: skipping transfer tax returns or claims furnish an identification number under see § 1.66994–1 of this chapter. section 6695(c) of the Code, failure to § 26.6060–1 Reporting requirements for (b) Effective/applicability date. retain a copy or list under section tax return preparers. Paragraph (a) of this section is 6695(d) of the Code, failure to file a (a) In general. A person that employs applicable to returns and claims for correct information return under section (or engages) one or more tax return refund filed, and advice provided, after 6695(e) of the Code, and negotiation of preparers to prepare a return or claim the date that final regulations are a check under section 6695(f) of the for refund of generation-skipping published in the Federal Register. Code, in the manner stated in § 1.6695– transfer tax under chapter 13 of subtitle Par. 40. Section 26.6694–2 is added to 1 of this chapter. B of the Internal Revenue Code, other read as follows: (b) Effective/applicability date. This than for the person, at any time during section is applicable to returns and a return period, shall satisfy the record § 26.6694–2 Penalties for understatement due to an unreasonable position. claims for refund filed after the date that keeping and inspection requirements in final regulations are published in the the manner stated in § 1.6060–1 of this (a) In general. A person who is a tax Federal Register. chapter. return preparer of any return or claim (b) Effective/applicability date. This for refund of generation-skipping Par. 33. Section 25.6696–1 is added to transfer tax under chapter 13 of subtitle read as follows: section is applicable to returns and claims for refund filed after the date that B of the Internal Revenue Code (Code) § 25.6696–1 Claims for credit or refund by final regulations are published in the shall be subject to penalties under tax return preparers. Federal Register. section 6694(a) of the Code in the manner stated in § 1.6694–2 of this (a) In general. For rules for claims for Par. 37. Section 26.6107–1 is added to read as follows: chapter. credit or refund by a tax return preparer (b) Effective/applicability date. This who prepared a return or claim for § 26.6107–1 Tax return preparer must section is applicable to returns and refund for gift tax under chapter 12 of furnish copy of return to taxpayer and must claims for refund filed, and advice subtitle B of the Internal Revenue Code, retain a copy or record. provided, after the date that final or by an appraiser that prepared an (a) In general. A person who is a regulations are published in the Federal appraisal in connection with such a signing tax return preparer of any return Register. return or claim for refund under section or claim for refund of generation- Par. 41. Section 26.6694–3 is added to 6695A, the rules under § 1.6696–1 of skipping transfer tax under chapter 13 read as follows: this chapter will apply. of subtitle B of the Internal Revenue (b) Effective/applicability date. This Code shall furnish a completed copy of § 26.6694–3 Penalty for understatement section is applicable to returns and the return or claim for refund to the due to willful, reckless, or intentional conduct. claims for refund filed, and advice estate, and retain a completed copy or provided, after the date that final record in the manner stated in § 1.6107– (a) In general. A person who is a tax regulations are published in the Federal 1 of this chapter. return preparer of any return or claim Register. (b) Effective/applicability date. This for refund of generation-skipping section is applicable to returns and transfer tax under chapter 13 of subtitle Par. 34. Section 25.7701–1 is added to B of the Internal Revenue Code (Code) read as follows: claims for refund filed after the date that final regulations are published in the shall be subject to penalties under § 25.7701–1 Tax return preparer. Federal Register. section 6694(b) of the Code in the manner stated in § 1.6694–3 of this (a) In general. For the definition of a Par. 38. Section 26.6109–1 is added to read as follows: chapter. tax return preparer, see § 301.7701–15 of (b) Effective/applicability date. This this chapter. § 26.6109–1 Tax return preparers section is applicable to returns and (b) Effective/applicability date. This furnishing identifying numbers for returns claims for refund filed, and advice section is applicable to returns and or claims for refund. provided, after the date that final claims for refund filed, and advice (a) In general. Each generation- regulations are published in the Federal provided, after the date that final skipping transfer tax return or claim for Register. regulations are published in the Federal refund prepared by one or more signing Par. 42. Section 26.6694–4 is added to Register. tax return preparers must include the read as follows:

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§ 26.6694–4 Extension of period of (b) Effective/applicability date. This or claim for refund to the taxpayer, and collection when preparer pays 15 percent of section is applicable to returns and retain a completed copy or record in the a penalty for understatement of taxpayer’s claims for refund filed, and advice manner stated in § 1.6107–1 of this liability and certain other procedural matters. provided, after the date that final chapter. regulations are published in the Federal (b) Effective/applicability date. This (a) In general. For rules relating to the Register. section is applicable to returns and extension of period of collection when Par. 45. Section 26.7701–1 is added to claims for refund filed after the date that a tax return preparer who prepared a read as follows: final regulations are published in the return or claim for refund for Federal Register. generation-skipping transfer tax under § 26.7701–1 Tax return preparer. Par. 49. Section 31.6109–2 is added to chapter 13 of subtitle B of the Internal (a) In general. For the definition of a read as follows: Revenue Code pays 15 percent of a tax return preparer, see § 301.7701–15 of penalty for understatement of taxpayer’s this chapter. § 31.6109–2 Tax return preparers liability, and procedural matters relating (b) Effective/applicability date. This furnishing identifying numbers for returns to the investigation, assessment and section is applicable to returns and or claims for refund. collection of the penalties under section claims for refund filed, and advice (a) In general. Each employment tax 6694(a) and (b), the rules under provided, after the date that final return or claim for refund of § 1.6694–4 of this chapter will apply. regulations are published in the Federal employment tax under chapters 21 (b) Effective/applicability date. This Register. through 25 of subtitle C of the Internal section is applicable to returns and Revenue Code prepared by one or more claims for refund filed, and advice PART 31—EMPLOYMENT TAXES AND signing tax return preparers must provided, after the date that final COLLECTION OF INCOME TAX AT THE include the identifying number of the regulations are published in the Federal SOURCE preparer required by § 1.6695–1(b) of Register. Par. 46. The authority citation for part this chapter to sign the return or claim Par. 43. Section 26.6695–1 is added to for refund in the manner stated in read as follows: 31 is amended by adding entries in numerical order to read in part as § 1.6109–2 of this chapter. § 26.6695–1 Other assessable penalties follows: (b) Effective/applicability date. with respect to the preparation of tax Paragraph (a) of this section is returns for other persons. Authority: 26 U.S.C. 7805 * * * applicable to returns and claims for (a) In general. A person who is a tax Section 31.6060–1 also issued under 26 refund filed after the date that final U.S.C. 6060(a). * * * return preparer of any return or claim Section 31.6109–2 also issued under 26 regulations are published in the Federal for refund of generation-skipping U.S.C. 6109(a). * * * Register. transfer tax under chapter 13 of subtitle Section 31.6695–1 also issued under 26 Par. 50. Section 31.6694–1 is added to B of the Internal Revenue Code (Code) U.S.C. 6695(b). * * * read as follows: shall be subject to penalties for failure Section 31.6695–2 also issued under 26 U.S.C. 6695(g). * * * § 31.6694–1 Section 6694 penalties to a furnish copy to the taxpayer under applicable to tax return preparer. section 6695(a) of the Code, failure to Par. 47. Section 31.6060–1 is added to (a) In general. For general definitions sign the return under section 6695(b) of read as follows: the Code, failure to furnish an regarding section 6694 penalties identification number under section § 31.6060–1 Reporting requirements for applicable to preparers of employment 6695(c) of the Code, failure to retain a tax return preparers. tax returns or claims of employment tax copy or list under section 6695(d) of the (a) In general. A person that employs under chapters 21 through 25 of subtitle Code, failure to file a correct (or engages) one or more tax return C of the Internal Revenue Code, see information return under section preparers to prepare a return or claim § 1.6694–1 of this chapter. 6695(e) of the Code, and negotiation of for refund of employment tax under (b) Effective/applicability date. a check under section 6695(f) of the chapters 21 through 25 of subtitle C of Paragraph (a) of this section is Code, in the manner stated in § 1.6695– the Internal Revenue Code, other than applicable to returns and claims for 1 of this chapter. for the person, at any time during a refund filed, and advice provided, after (b) Effective/applicability date. This return period, shall satisfy the record the date that final regulations are section is applicable to returns and keeping and inspection requirements in published in the Federal Register. claims for refund filed after the date that the manner stated in § 1.6060–1 of this Par. 51. Section 31.6694–2 is added to final regulations are published in the chapter. read as follows: Federal Register. (b) Effective/applicability date. This § 31.6694–2 Penalties for understatement Par. 44. Section 26.6696–1 is added to section is applicable to returns and due to an unreasonable position. read as follows: claims for refund filed after the date that (a) In general. A person who is a tax final regulations are published in the § 26.6696–1 Claims for credit or refund by return preparer of any return or claim tax return preparers. Federal Register. Par. 48. Section 31.6107–1 is added to for refund of employment tax under (a) In general. For rules for claims for read as follows: chapters 21 through 25 of subtitle C of credit or refund by a tax return preparer the Internal Revenue Code (Code) shall who prepared a return or claim for § 31.6107–1 Tax return preparer must be subject to penalties under section refund for generation-skipping transfer furnish copy of return to taxpayer and must 6694(a) of the Code in the manner stated tax under chapter 13 of subtitle B of the retain a copy or record. in § 1.6694–2 of this chapter. Internal Revenue Code, or by an (a) In general. A person who is a (b) Effective/applicability date. This appraiser that prepared an appraisal in signing tax return preparer of any return section is applicable to returns and connection with such a return or claim or claim for refund of employment tax claims for refund filed, and advice for refund under section 6695A, the under chapters 21 through 25 of subtitle provided, after the date that final rules under § 1.6696–1 of this chapter C of the Internal Revenue Code shall regulations are published in the Federal will apply. furnish a completed copy of the return Register.

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Par. 52. Section 31.6694–3 is added to Code, in the manner stated in § 1.6695– the recordkeeping and inspection read as follows: 1 of this chapter. requirements in the manner stated in (b) Effective/applicability date. This § 1.6060–1 of this chapter. § 31.6694–3 Penalty for understatement section is applicable to returns and (b) Effective/applicability date. This due to willful, reckless, or intentional section is applicable to returns and conduct. claims for refund filed after the date that final regulations are published in the claims for refund filed after the date that (a) In general. A person who is a tax Federal Register. final regulations are published in the return preparer of any return or claim Par. 55. Section 31.6696–1 is added to Federal Register. for refund of employment tax under read as follows: Par. 59. Section 40.6107–1 is added to chapters 21 through 25 of subtitle C of read as follows: the Internal Revenue Code (Code) shall § 31.6696–1 Claims for credit or refund by be subject to penalties under section tax return preparers. § 40.6107–1 Tax return preparer must 6694(b) of the Code in the manner stated (a) In general. For rules for claims for furnish copy of return to taxpayer and must in 1.6694–3 of this chapter. credit or refund by a tax return preparer retain a copy or record. (b) Effective/applicability date. This who prepared a return or claim for (a) In general. A person who is a section is applicable to returns and refund for employment tax under signing tax return preparer of any return claims for refund filed, and advice chapters 21 through 25 of subtitle C of or claim for refund of excise tax under provided, after the date that final the Internal Revenue Code, the rules chapters 31, 32 (other than section regulations are published in the Federal under § 1.6696–1 of this chapter will 4181), 33, 34, 36 (other than section Register. apply. 4461), 38, and 39 of subtitle D of the Par. 53. Section 31.6694–4 is added to (b) Effective/applicability date. This Internal Revenue Code shall furnish a read as follows: section is applicable to returns and completed copy of the return or claim claims for refund filed, and advice for refund to the taxpayer, and retain a § 31.6694–4 Extension of period of completed copy or record in the manner collection when tax return preparer pays 15 provided, after the date that final percent of a penalty for understatement of regulations are published in the Federal stated in § 1.6107–1 of this chapter. taxpayer’s liability and certain other Register. (b) Effective/applicability date. This procedural matters. Par. 56. Section 31.7701–1 is added to section is applicable for returns and (a) In general. For rules relating to the read as follows: claims for refund filed after the date that final regulations are published in the extension of period of collection when § 31.7701–1 Tax return preparer. a tax return preparer who prepared a Federal Register. Par. 60. Section 40.6109–1 is added to return or claim for refund for (a) In general. For the definition of a read as follows: employment tax under chapters 21 tax return preparer, see § 301.7701–15 of this chapter. through 25 of subtitle C of the Internal § 40.6109–1 Tax return preparers (b) Effective/applicability date. This Revenue Code pays 15 percent of a furnishing identifying numbers for returns section is applicable to returns and penalty for understatement of taxpayer’s or claims for refund. claims for refund filed, and advice liability, and procedural matters relating (a) In general. Each return or claim for provided, after the date that final to the investigation, assessment and refund of excise tax under chapters 31, regulations are published in the Federal collection of the penalties under section 32 (other than section 4181), 33, 34, 36 Register. 6694(a) and (b), the rules under (other than section 4461), 38, and 39 of § 1.6694–4 of this chapter will apply. PART 40—EXCISE TAX PROCEDURAL subtitle D of the Internal Revenue Code (b) Effective/applicability date. This REGULATIONS prepared by one or more signing tax section is applicable to returns and return preparers must include the claims for refund filed, and advice Par. 57. The authority citation for part identifying number of the preparer provided, after the date that final 40 is amended by adding entries in required by § 1.6695–1(b) of this chapter regulations are published in the Federal numerical order to read in part as to sign the return or claim for refund in Register. follows: the manner stated in § 1.6109–2 of this Par. 54. Section 31.6695–1 is added to Authority: 26 U.S.C. 7805 * * * chapter. read as follows: Section 40.6060–1 also issued under 26 (b) Effective/applicability date. This U.S.C. 6060(a). * * * section is applicable to returns and § 31.6695–1 Other assessable penalties Section 40.6109–2 also issued under 26 with respect to the preparation of tax claims for refund filed after the date that U.S.C. 6109(a). * * * returns for other persons. final regulations are published in the Section 40.6695–1 also issued under 26 Federal Register. (a) In general. A person who is a tax U.S.C. 6695(b). * * * Par. 61. Section 40.6694–1 is added to return preparer of any return or claim Section 40.6695–2 also issued under 26 read as follows: for refund of employment tax under U.S.C. 6695(g). * * * chapters 21 through 25 of subtitle C of Par. 58. Section 40.6060–1 is added to § 40.6694–1 Section 6694 penalties the Internal Revenue Code (Code) shall read as follows: applicable to tax return preparer. be subject to penalties for failure to (a) In general. For general definitions furnish a copy to the taxpayer under § 40.6060–1 Reporting requirements for regarding section 6694 penalties section 6695(a) of the Code, failure to tax return preparers. applicable to preparers of returns or sign the return under section 6695(b) of (a) In general. A person that employs claims for refund of excise tax under the Code, failure to furnish an (or engages) one or more tax return chapters 31, 32 (other than section identification number under section preparers to prepare a return or claim 4181), 33, 34, 36 (other than section 6695(c) of the Code, failure to retain a for refund of excise tax under chapters 4461), 38, and 39 of subtitle D of the copy or list under section 6695(d) of the 31, 32 (other than section 4181), 33, 34, Internal Revenue Code, see § 1.6694–1 Code, failure to file a correct 36 (other than section 4461), 38, and 39 of this chapter. information return under section of subtitle D of the Internal Revenue (b) Effective/applicability date. This 6695(e) of the Code, and negotiation of Code, other than for the person, at any section is applicable to returns and a check under section 6695(f) of the time during a return period, shall satisfy claims for refund filed, and advice

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provided, after the date that final (b) Effective/applicability date. This PART 41—EXCISE TAX ON USE OF regulations are published in the Federal section is applicable to returns and CERTAIN HIGHWAY MOTOR Register. claims for refund filed, and advice VEHICLES Par. 62. Section 40.6694–2 is added to provided, after the date that final (a) In general. For the definition of a read as follows: regulations are published in the Federal Register. tax return preparer, see § 301.7701-15 of § 40.6694–2 Penalties for understatement Par. 65. Section 40.6695–1 is added to this chapter. due to an unreasonable position. read as follows: (b) Effective/applicability date. This (a) In general. A person who is a tax section is applicable to returns and return preparer of any return or claim § 40.6695–1 Other assessable penalties claims for refund filed, and advice with respect to the preparation of tax provided, after the date that final for refund of excise tax under chapters returns for other persons. 31, 32 (other than section 4181), 33, 34, regulations are published in the Federal (a) In general. A person who is a tax 36 (other than section 4461), 38, and 39 Register. return preparer of any return or claim of subtitle D of the Internal Revenue for refund of excise tax under chapters PART 41—EXCISE TAX ON USE OF Code (Code) shall be subject to penalties 31, 32 (other than section 4181), 33, 34, CERTAIN HIGHWAY MOTOR under section 6694(a) of the Code in the 36 (other than section 4461), 38, and 39 VEHICLES manner stated in § 1.6694–2 of this of subtitle D of the Internal Revenue chapter. Par. 68. The authority citation for part Code (Code) shall be subject to penalties 41 is amended by adding entries in (b) Effective/applicability date. This for failure to furnish a copy to the section is applicable to returns and numerical order to read in part as taxpayer under section 6695(a) of the follows: claims for refund filed, and advice Code, failure to sign the return under provided, after the date that final section 6695(b) of the Code, failure to Authority: 26 U.S.C. 7805 * * * regulations are published in the Federal furnish an identification number under Section 41.6060–1 also issued under 26 U.S.C. 6060(a). * * * Register. section 6695(c) of the Code, failure to Par. 63. Section 40.6694–3 is added to Section 41.6109–2 also issued under 26 retain a copy or list under section U.S.C. 6109(a). * * * read as follows: 6695(d) of the Code, failure to file a Section 41.6695–1 also issued under 26 § 40.6694–3 Penalty for understatement correct information return under section U.S.C. 6695(b). * * * due to willful, reckless, or intentional 6695(e) of the Code, and negotiation of Section 41.6695–2 also issued under 26 conduct. a check under section 6695(f) of the U.S.C. 6695(g). * * * (a) In general. A person who is a tax Code, in the manner stated in § 1.6695– Par. 69. Section 41.6060–1 is added to return preparer of any return or claim 1 of this chapter. read as follows: for refund of excise tax under chapters (b) Effective/applicability date. This section is applicable for returns and § 41.6060–1 Reporting requirements for 31, 32 (other than section 4181), 33, 34, tax return preparers. 36 (other than section 4461), 38, and 39 claims for refund filed after the date that final regulations are published in the (a) In general. A person that employs of subtitle D of the Internal Revenue (or engages) one or more tax return Code (Code) shall be subject to penalties Federal Register. Par. 66. Section 40.6696–1 is added to preparers to prepare a return or claim under section 6694(b) of the Code in the read as follows: for refund of excise tax under section manner stated in § 1.6694–3 of this 4481 of the Internal Revenue Code, chapter. § 40.6696–1 Claims for credit or refund by other than for the person, at any time (b) Effective/applicability date. This tax return preparers. during a return period, shall satisfy the section is applicable to returns and (a) In general. For rules for claims for record keeping and inspection claims for refund filed, and advice credit or refund by a tax return preparer requirements in the manner stated in provided, after the date that final who prepared a return or claim for § 1.6060–1 of this chapter. regulations are published in the Federal refund for excise tax under chapters 31, (b) Effective/applicability date. This Register. 32 (other than section 4181), 33, 34, 36 section is applicable for returns and Par. 64. Section 40.6694–4 is added to (other than section 4461), 38, and 39 of claims for refund filed after the date that read as follows: subtitle D of the Internal Revenue Code, final regulations are published in the the rules under § 1.6696–1 of this Federal Register. § 40.6694–4 Extension of period of chapter will apply. Par. 70. Section 41.6107–1 is added to collection when tax return preparer pays 15 (b) Effective/applicability date. This percent of a penalty for understatement of read as follows: section is applicable to returns and taxpayer’s liability and certain other § 41.6107–1 Tax return preparer must procedural matters. claims for refund filed, and advice provided, after the date that final furnish copy of return to taxpayer and must (a) In general. For rules relating to the retain a copy or record. regulations are published in the Federal extension of period of collection when Register. (a) In general. A person who is a a tax return preparer who prepared a Par. 67. Section 40.7701–1 is added to signing tax return preparer of any return return or claim for refund for excise tax read as follows: or claim for refund of excise tax section under chapters 31, 32 (other than 4481 of the Internal Revenue Code shall section 4181), 33, 34, 36 (other than § 40.7701–1 Tax return preparer. furnish a completed copy of the return section 4461), 38, and 39 of subtitle D (a) In general. For the definition of a or claim for refund to the taxpayer, and of the Internal Revenue Code pays 15 tax return preparer, see § 301.7701–15 of retain a completed copy or record in the percent of a penalty for understatement this chapter. manner stated in § 1.6107–1 of this of taxpayer’s liability, and procedural (b) Effective/applicability date. This chapter. matters relating to the investigation, section is applicable to returns and (b) Effective/applicability date. This assessment and collection of the claims for refund filed, and advice section is applicable for returns and penalties under section 6694(a) and (b), provided, after the date that final claims for refund filed after the date that the rules under § 1.6694–4 of this regulations are published in the Federal final regulations are published in the chapter will apply. Register. Federal Register.

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Par. 71. Section 41.6109–2 is added to (b) Effective/applicability date. This of the Internal Revenue Code, the rules read as follows: section is applicable to returns and under § 1.6696–1 of this chapter will claims for refund filed, and advice apply. § 41.6109–2 Tax return preparers provided, after the date that final (b) Effective/applicability date. This furnishing identifying numbers for returns or claims for refund filed after December 31, regulations are published in the Federal section is applicable to returns and 2008. Register. claims for refund filed, and advice Par. 75. Section 41.6694–4 is added to provided, after the date that final (a) In general. Each excise tax return read as follows: regulations are published in the Federal or claim for refund under section 4481 Register. prepared by one or more signing tax § 41.6694–4 Extension of period of Par. 78. Section 41.7701–1 is added to return preparers must include the collection when preparer pays 15 percent of read as follows: identifying number of the preparer a penalty for understatement of taxpayer’s required by § 1.6695–1(b) of this chapter liability and certain other procedural § 41.7701–1 Tax return preparer. matters. to sign the return or claim for refund in (a) In general. For the definition of a (a) In general. For rules relating to the the manner stated in § 1.6109–2 of this tax return preparer, see § 301.7701–15 of extension of period of collection when chapter. this chapter. a tax return preparer who prepared a (b) Effective/applicability date. This (b) Effective/applicability date. This return or claim for refund for excise tax section is applicable for returns and section is applicable to returns and under section 4481 of the Internal claims for refund filed after the date that claims for refund filed, and advice Revenue Code pays 15 percent of a final regulations are published in the provided, after the date that final penalty for understatement of taxpayer’s Federal Register. regulations are published in the Federal liability, and procedural matters relating Par. 72. Section 41.6694–1 is added to Register. read as follows: to the investigation, assessment and collection of the penalties under section PART 44—TAXES ON WAGERING; § 41.6694–1 Section 6694 penalties 6694(a) and (b), the rules under EFFECTIVE JANUARY 1, 1955 applicable to tax return preparer. § 1.6694–4 of this chapter will apply. (a) In general. For general definitions (b) Effective/applicability date. This Par. 79. The authority citation for part regarding section 6694 penalties section is applicable to returns and 44 is amended by adding entries in applicable to preparers of tax returns or claims for refund filed, and advice numerical order to read in part as claims for refund, see § 1.6694–1 of this provided, after the date that final follows: chapter. regulations are published in the Federal Authority: 26 U.S.C. 7805 * * * (b) Effective/applicability date. This Register. Section 44.6060–1 also issued under 26 section is applicable to returns and Par. 76. Section 41.6695–1 is added to U.S.C. 6060(a). * * * claims for refund filed, and advice read as follows: Section 44.6109–2 also issued under 26 provided, after the date that final U.S.C. 6109(a). * * * regulations are published in the Federal § 41.6695–1 Other assessable penalties Section 44.6695–1 also issued under 26 Register. with respect to the preparation of tax U.S.C. 6695(b). * * * returns for other persons. Par. 73. Section 41.6694–2 is added to Section 44.6695–2 also issued under 26 read as follows: (a) In general. A person who is a tax U.S.C. 6695(g). * * * return preparer of any return or claim Par. 80. Section 44.6060–1 is added to § 41.6694–2 Penalties for understatement for refund of excise tax under section read as follows: due to an unreasonable position. 4481 of the Internal Revenue Code (a) In general. A person who is a tax (Code) shall be subject to penalties for § 44.6060–1 Reporting requirements for return preparer of any return or claim failure to furnish a copy to the taxpayer tax return preparers. for refund of excise tax under section under section 6695(a) of the Code, (a) In general. A person that employs 4481 of the Internal Revenue Code failure to sign a return under section (or engages) one or more tax return (Code) shall be subject to penalties 6695(b) of the Code, failure to furnish an preparers to prepare a return or claim under section 6694(a) of the Code in the identification number under section for refund of tax on wagers under manner stated in § 1.6694–2 of this 6695(c) of the Code, failure to retain a sections 4401 or 4411 of the Internal chapter. copy or list under section 6695(d) of the Revenue Code, other than for the (b) Effective/applicability date. This Code, failure to file a correct person, at any time during a return section is applicable to returns and information return under section period, shall satisfy the record keeping claims for refund filed, and advice 6695(e) of the Code, and negotiation of and inspection requirements in the provided, after the date that final a check under section 6695(f) of the manner stated in § 1.6060–1 of this regulations are published in the Federal Code, in the manner stated in § 1.6695– chapter. Register. 1 of this chapter. (b) Effective/applicability date. This Par. 74. Section 41.6694–3 is added to (b) Effective/applicability date. This section is applicable to returns and read as follows: section is applicable to returns and claims for refund filed after the date that claims for refund filed after the date that final regulations are published in the § 41.6694–3 Penalty for understatement final regulations are published in the Federal Register. due to willful, reckless, or intentional conduct. Federal Register. Par. 81. Section 44.6107–1 is added to Par. 77. Section 41.6696–1 is added to read as follows: (a) In general. A person who is a tax read as follows: return preparer of any return or claim § 44.6107–1 Tax return preparer must for refund of excise tax under section § 41.6696–1 Claims for credit or refund by furnish copy of return to taxpayer and must 4481 of the Internal Revenue Code tax return preparers. retain a copy or record. (Code) shall be subject to penalties (a) In general. For rules for claims for (a) In general. A person who is a under section 6694(b) of the Code in the credit or refund by a tax return preparer signing tax return preparer of any return manner stated in § 1.6694–3 of this who prepared a return or claim for or claim for refund of tax on wagers chapter. refund for excise tax under section 4481 under sections 4401 or 4411 of the

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Internal Revenue Code shall furnish a § 44.6694–3 Penalty for understatement (b) Effective/applicability date. This completed copy of the return or claim due to willful, reckless, or intentional section is applicable to returns and for refund to the taxpayer, and retain a conduct. claims for refund filed after the date that completed copy or record in the manner (a) In general. A person who is a tax final regulations are published in the stated in § 1.6107–1 of this chapter. return preparer of any return or claim Federal Register. (b) Effective/applicability date. This for refund of tax on wagers under Par. 88. Section 44.6696–1 is added to section is applicable for returns and sections 4401 or 4411 of the Internal read as follows: claims for refund filed after the date that Revenue Code (Code) shall be subject to penalties under section 6694(b) of the § 44.6696–1 Claims for credit or refund by final regulations are published in the tax return preparers. Federal Register. Code in the manner stated in § 1.6694– 3 of this chapter. (a) In general. For rules for claims for Par. 82. Section 44.6109–1 is added to credit or refund by a tax return preparer read as follows: (b) Effective/applicability date. This section is applicable to returns and who prepared a return or claim for § 44.6109–1 Tax return preparers claims for refund filed, and advice refund for tax on wagers under sections furnishing identifying numbers for returns provided, after the date that final 4401 or 4411 of the Internal Revenue or claims for refund. regulations are published in the Federal Code, the rules under § 1.6696–1 of this (a) In general. Each tax return or claim Register. chapter will apply. for refund of tax under sections 4401 or Par. 86. Section 44.6694–4 is added to (b) Effective/applicability date. This 4411 prepared by one or more signing read as follows: section is applicable to returns and tax return preparers must include the claims for refund filed, and advice identifying number of the preparer § 44.6694–4 Extension of period of provided, after the date that final required by § 1.6695–1(b) of this chapter collection when preparer pays 15 percent of regulations are published in the Federal a penalty for understatement of taxpayer’s to sign the return or claim for refund in Register. liability and certain other procedural Par. 89. Section 44.7701–1 is added to the manner stated in § 1.6109–2 of this matters. chapter. read as follows: (a) In general. For rules relating to the (b) Effective/applicability date. This extension of period of collection when § 44.7701–1 Tax return preparer. section is applicable for returns and a tax return preparer who prepared a (a) In general. For the definition of a claims for refund filed after the date that return or claim for refund for tax on tax return preparer, see § 301.7701–15 of final regulations are published in the wagers under sections 4401 or 4411 of this chapter. Federal Register. the Internal Revenue Code pays 15 (b) Effective/applicability date. This Par. 83. Section 44.6694–1 is added to percent of a penalty for understatement section is applicable to returns and read as follows: of taxpayer’s liability, and procedural claims for refund filed, and advice § 44.6694–1 Section 6694 penalties matters relating to the investigation, provided, after the date that final applicable to tax return preparer. assessment and collection of the regulations are published in the Federal penalties under section 6694(a) and (b), Register. (a) In general. For general definitions the rules under § 1.6694–4 of this regarding section 6694 penalties chapter will apply. PART 53—FOUNDATION AND SIMILAR applicable to preparers of wagering tax EXCISE TAXES returns or claims for refund under (b) Effective/applicability date. This sections 4401 or 4411, see § 1.6694–1 of section is applicable to returns and Par. 90. The authority citation for part this chapter. claims for refund filed, and advice 53 is amended by adding entries in provided, after the date that final (b) Effective/applicability date. This numerical order to read in part as regulations are published in the Federal follows: section is applicable to returns and Register. claims for refund filed, and advice Authority: 26 U.S.C. 7805 * * * Par. 87. Section 44.6695–1 is added to provided, after the date that final Section 53.6060–1 also issued under 26 read as follows: regulations are published in the Federal U.S.C. 6060(a). * * * Section 53.6109–2 also issued under 26 Register. § 44.6695–1 Other assessable penalties U.S.C. 6109(a). * * * with respect to the preparation of tax Par. 84. Section 44.6694–2 is added to Section 53.6695–1 also issued under 26 returns for other persons. read as follows: U.S.C. 6695(b). * * * (a) In general. A person who is a tax Section 53.6695–2 also issued under 26 § 44.6694–2 Penalties for understatement return preparer of any return or claim U.S.C. 6695(g). * * * due to an unreasonable position. for refund of tax on wagers under (a) In general. A person who is a tax Par. 91. Section 53.6060–1 is added to sections 4401 or 4411 of the Internal read as follows: return preparer of any return or claim Revenue Code (Code) shall be subject to for refund of tax on wagers under penalties for failure to furnish a copy to § 53.6060–1 Reporting requirements for sections 4401 or 4411 of the Internal the taxpayer under section 6695(a) of tax return preparers. Revenue Code (Code) shall be subject to the Code, failure to sign the return (a) In general. A person that employs penalties under section 6694(a) of the under section 6695(b) of the Code, (or engages) one or more tax return Code in the manner stated in § 1.6694– failure to furnish an identification preparers to prepare a return or claim 2 of this chapter. number under section 6695(c) of the for refund of tax under Chapter 42 of the (b) Effective/applicability date. This Code, failure to retain a copy or list Internal Revenue Code, other than for section is applicable to returns and under section 6695(d) of the Code, the person, at any time during a return claims for refund filed, and advice failure to file a correct information period, shall satisfy the record keeping provided, after the date that final return under section 6695(e) of the and inspection requirements in the regulations are published in the Federal Code, and negotiation of a check under manner stated in § 1.6060–1 of this Register. section 6695(f) of the Code, in the chapter. Par. 85. Section 44.6694–3 is added to manner stated in § 1.6695–1 of this (b) Effective/applicability date. This read as follows: chapter. section is applicable to returns and

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claims for refund filed after the date that subject to penalties under section Code, failure to retain a copy or list final regulations are published in the 6694(a) of the Code in the manner stated under section 6695(d) of the Code, Federal Register. in § 1.6694–2 of this chapter. failure to file a correct information Par. 92. Section 53.6107–1 is added to (b) Effective/applicability date. This return under section 6695(e) of the read as follows: section is applicable to returns and Code, and negotiation of a check under claims for refund filed, and advice section 6695(f) of the Code, in the § 53.6107–1 Tax return preparer must provided, after the date that final furnish copy of return to taxpayer and must manner stated in § 1.6695–1 of this retain a copy or record. regulations are published in the Federal chapter. Register. (b) Effective/applicability date. This (a) In general. A person who is a Par. 96. Section 53.6694–3 is added to section is applicable to returns and signing tax return preparer of any return read as follows: claims for refund filed after the date that or claim for refund of tax under Chapter final regulations are published in the 42 of the Internal Revenue Code shall § 53.6694–3 Penalty for understatement Federal Register. furnish a completed copy of the return due to willful, reckless, or intentional conduct. Par. 99. Section 53.6696–1 is added to or claim for refund to the taxpayer, and read as follows: retain a completed copy or record in the (a) In general. A person who is a tax manner stated in § 1.6107–1 of this return preparer of any return or claim § 53.6696–1 Claims for credit or refund by chapter. for refund of tax under Chapter 42 of the tax return preparers. (b) Effective/applicability date. This Internal Revenue Code (Code) shall be (a) In general. For rules for claims for section is applicable to returns and subject to penalties under section credit or refund by a tax return preparer claims for refund filed after the date that 6694(b) of the Code in the manner stated who prepared a return or claim for final regulations are published in the in § 1.6694–3 of this chapter. refund for tax under Chapter 42 of the Federal Register. (b) Effective/applicability date. This Internal Revenue Code, the rules under Par. 93. Section 53.6109–1 is added to section is applicable to returns and § 1.6696–1 of this chapter will apply. read as follows: claims for refund filed, and advice (b) Effective/applicability date. This provided, after the date that final section is applicable to returns and § 53.6109–1 Tax return preparers regulations are published in the Federal claims for refund filed, and advice furnishing identifying numbers for returns or claims for refund filed. Register. provided, after the date that final Par. 97. Section 53.6694–4 is added to regulations are published in the Federal (a) In general. Each tax return or claim read as follows: Register. for refund under Chapter 42 of the Par. 100. Section 53.7701–1 is added Internal Revenue Code prepared by one § 53.6694–4 Extension of period of to read as follows: or more signing tax return preparers collection when tax return preparer pays 15 must include the identifying number of percent of a penalty for understatement of § 53.7701–1 Tax return preparer. the preparer required by § 1.6695–1(b) taxpayer’s liability and certain other (a) In general. For the definition of a procedural matters. of this chapter to sign the return or tax return preparer, see § 301.7701–15 of claim for refund in the manner stated in (a) In general. For rules relating to the this chapter. § 1.6109–2 of this chapter. extension of period of collection when (b) Effective/applicability date. This (b) Effective/applicability date. a tax return preparer who prepared a section is applicable to returns and Paragraph (a) of this section is return or claim for refund of tax under claims for refund filed, and advice applicable to returns and claims for Chapter 42 of the Internal Revenue Code provided, after the date that final refund filed after the date that final pays 15 percent of a penalty for regulations are published in the Federal regulations are published in the Federal understatement of taxpayer’s liability, Register. Register. and procedural matters relating to the Par. 94. Section 53.6694–1 is added to investigation, assessment and collection PART 54—PENSION EXCISE TAXES read as follows: of the penalties under section 6694(a) and (b), the rules under § 1.6694–4 of Par. 101. The authority citation for § 53.6694–1 Section 6694 penalties this chapter will apply. part 54 is amended by adding entries in applicable to tax return preparer. (b) Effective/applicability date. This numerical order to read in part as (a) In general. For general definitions section is applicable to returns and follows: regarding section 6694 penalties claims for refund filed, and advice Authority: 26 U.S.C. 7805 * * * applicable to preparers of tax returns or provided, after the date that final Section 54.6060–1 also issued under 26 claims for refund under Chapter 42 of regulations are published in the Federal U.S.C. 6060(a). * * * the Internal Revenue Code, see Register. Section 54.6109–2 also issued under 26 § 1.6694–1 of this chapter. Par. 98. Section 53.6695–1 is added to U.S.C. 6109(a). * * * (b) Effective/applicability date. read as follows: Section 54.6695–1 also issued under 26 Paragraph (a) of this section is U.S.C. 6695(b). * * * applicable to returns and claims for § 53.6695–1 Other assessable penalties Section 54.6695–2 also issued under 26 refund filed, and advice provided, after with respect to the preparation of tax U.S.C. 6695(g). * * * returns for other persons. the date that final regulations are Par. 102. Section 54.6060–1 is added published in the Federal Register. (a) In general. A person who is a tax to read as follows: Par. 95. Section 53.6694–2 is added to return preparer of any return or claim read as follows: for refund of tax under Chapter 42 of the § 54.6060–1 Reporting requirements for Internal Revenue Code (Code) shall be tax return preparers. § 53.6694–2 Penalties for understatement subject to penalties for failure to furnish (a) In general. A person that employs due to an unreasonable position. a copy to the taxpayer under section (or engages) one or more tax return (a) In general. A person who is a tax 6695(a) of the Code, failure to sign the preparers to prepare a return or claim return preparer of any return or claim return under section 6695(b) of the for refund under Chapter 43 of subtitle for refund of tax under Chapter 42 of the Code, failure to furnish an identification D of the Internal Revenue Code, other Internal Revenue Code (Code) shall be number under section 6695(c) of the than for the person, at any time during

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a return period, shall satisfy the record § 54.6694–2 Penalties for understatement for refund of tax under chapter 43 of keeping and inspection requirements in due to an unreasonable position. subtitle D of the Internal Revenue Code the manner stated in § 1.6060–1 of this (a) In general. A person who is a tax (Code) shall be subject to penalties for chapter. return preparer of any return or claim failure to furnish a copy to the taxpayer (b) Effective/applicability date. This for refund of tax under chapter 43 of under section 6695(a) of the Code, section is applicable to returns and subtitle D of the Internal Revenue Code failure to sign the return under section claims for refund filed after the date that (Code) shall be subject to penalties 6695(b) of the Code, failure to furnish an final regulations are published in the under section 6694(a) of the Code in the identification number under section Federal Register. manner stated in § 1.6694–2 of this 6695(c) of the Code, failure to retain a Par. 103. Section 54.6107–1 is added chapter. copy or list under section 6695(d) of the to read as follows: (b) Effective/applicability date. This Code, failure to file a correct section is applicable to returns and information return under section § 54.6107–1 Tax return preparer must claims for refund filed, and advice 6695(e) of the Code, and negotiation of furnish copy of return to taxpayer and must provided, after the date that final retain a copy or record. a check under section 6695(f) of the regulations are published in the Federal Code, in the manner stated in § 1.6695– (a) In general. A person who is a Register. 1 of this chapter. signing tax return preparer of any return Par. 107. Section 56.6694–3 is added (b) Effective/applicability date. This or claim for refund of tax under Chapter to read as follows: section is applicable to returns and 43 of subtitle D of the Internal Revenue claims for refund filed after the date that Code, shall furnish a completed copy of § 54.6694–3 Penalty for understatement due to willful, reckless, or intentional final regulations are published in the the return or claim for refund to the Federal Register. taxpayer, and retain a completed copy conduct. (a) In general. A person who is a tax Par. 110. Section 54.6696–1 is added or record in the manner stated in to read as follows: § 1.6107–1 of this chapter. return preparer of any return or claim (b) Effective/applicability date. This for refund of excise tax under chapter 43 § 54.6696–1 Claims for credit or refund by section is applicable to returns and of subtitle D of the Internal Revenue tax return preparers. claims for refund filed after the date that Code (Code) shall be subject to penalties (a) In general. For rules for claims for final regulations are published in the under section 6694(b) of the Code in the credit or refund by a tax return preparer Federal Register. manner stated in § 1.6694–3 of this who prepared a return or claim for Par. 104. Section 54.6109–1 is added chapter. refund for excise tax under chapter 43 to read as follows: (b) Effective/applicability date. This of subtitle D of the Internal Revenue section is applicable to returns and Code, the rules under § 1.6696–1 of this § 54.6109–1 Tax return preparers claims for refund filed, and advice chapter will apply. furnishing identifying numbers for returns provided, after the date that final or claims for refund filed. (b) Effective/applicability date. This regulations are published in the Federal section is applicable to returns and (a) In general. Each tax return or claim Register. claims for refund filed, and advice Par. 108. Section 54.6694–4 is added for refund of tax under Chapter 43 of provided, after the date that final to read as follows: subtitle D prepared by one or more regulations are published in the Federal signing tax return preparers must Register. include the identifying number of the § 54.6694–4 Extension of period of collection when tax return preparer pays 15 Par. 111. Section 54.7701–1 is added preparer required by § 1.6695–1(b) of percent of a penalty for understatement of to read as follows: this chapter to sign the return or claim taxpayer’s liability and certain other for refund in the manner stated in procedural matters. § 54.7701–1 Tax return preparer. § 1.6109–2 of this chapter. (a) In general. For rules relating to the (a) In general. For the definition of a (b) Effective/applicability date. extension of period of collection when tax return preparer, see § 301.7701–15 of Paragraph (a) of this section is a tax return preparer who prepared a this chapter. applicable to returns and claims for return or claim for refund for tax under (b) Effective/applicability date. This refund filed after the date that final chapter 43 of subtitle D of the Internal section is applicable to returns and regulations are published in the Federal Revenue Code pays 15 percent of a claims for refund filed, and advice Register. penalty for understatement of taxpayer’s provided, after the date that final Par. 105. Section 54.6694–1 is added liability, and procedural matters relating regulations are published in the Federal to read as follows: to the investigation, assessment and Register. collection of the penalties under section § 54.6694–1 Section 6694 penalties PART 55—EXCISE TAX ON REAL applicable to tax return preparer. 6694(a) and (b), the rules under ESTATE INVESTMENT TRUSTS AND (a) In general. For general definitions § 1.6694–4 of this chapter will apply. (b) Effective/applicability date. This REGULATED INVESTMENT regarding section 6694 penalties section is applicable to returns and COMPANIES applicable to preparers of tax returns or claims for refund filed, and advice claims for refund of tax under Chapter Par. 112. The authority citation for provided, after the date that final 43 of subtitle D, see § 1.6694–1 of this part 55 is amended by adding entries in regulations are published in the Federal chapter. numerical order to read in part as Register. (b) Effective/applicability date. follows: Par. 109. Section 54.6695–1 is added Paragraph (a) of this section is to read as follows: Authority: 26 U.S.C. 7805 * * * applicable to returns and claims for Section 55.6060–1 also issued under 26 refund filed, and advice provided, after § 54.6695–1 Other assessable penalties U.S.C. 6060(a). * * * the date that final regulations are with respect to the preparation of tax Section 55.6109–2 also issued under 26 published in the Federal Register. returns for other persons. U.S.C. 6109(a). * * * Par. 106. Section 54.6694–2 is added (a) In general. A person who is a tax Section 55.6695–1 also issued under 26 to read as follows: return preparer of any return or claim U.S.C. 6695(b). * * *

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Section 55.6695–2 also issued under 26 applicable to preparers of tax returns or (b) Effective/applicability date. This U.S.C. 6695(g). * * * claims for refund of tax under chapter section is applicable to returns and Par. 113. Section 55.6060–1 is added 44 of Subtitle D see § 1.6694–1 of this claims for refund filed, and advice to read as follows: chapter. provided, after the date that final (b) Effective/applicability date. regulations are published in the Federal § 55.6060–1 Reporting requirements for Paragraph (a) of this section is Register. tax return preparers. applicable to returns and claims for Par. 120. Section 55.6695–1 is added (a) In general. A person that employs refund filed, and advice provided, after to read as follows: (or engages) one or more tax return the date that final regulations are preparers to prepare a return or claim published in the Federal Register. § 55.6695–1 Other assessable penalties for refund under chapter 44 of subtitle Par. 117. Section 55.6694–2 is added with respect to the preparation of tax D of the Internal Revenue Code, other to read as follows: returns for other persons. than for the person, at any time during (a) In general. A person who is a tax a return period, shall satisfy the record § 55.6694–2 Penalties for understatement due to an unreasonable position. return preparer of any return or claim keeping and inspection requirements in for refund of tax under chapter 44 of the manner stated in § 1.6060–1 of this (a) In general. A person who is a tax subtitle D of the Internal Revenue Code chapter. return preparer of any return or claim (b) Effective/applicability date. This for refund of excise tax under chapter 44 (Code) shall be subject to penalties for section is applicable to returns and of subtitle D of the Internal Revenue failure to furnish a copy to the taxpayer claims for refund filed after the date that Code (Code) shall be subject to penalties under section 6695(a) of the Code, final regulations are published in the under section 6694(a) of the Code in the failure to sign the return under section Federal Register. manner stated in § 1.6694–2 of this 6695(b) of the Code, failure to furnish an Par. 114. Section 55.6107–1 is added chapter. identification number under section to read as follows: (b) Effective/applicability date. This 6695(c) of the Code, failure to retain a section is applicable to returns and copy or list under section 6695(d) of the § 55.6107–1 Tax return preparer must claims for refund filed, and advice Code, failure to file a correct furnish copy of return to taxpayer and must provided, after the date that final information return under section retain a copy or record. regulations are published in the Federal 6695(e) of the Code, and negotiation of (a) In general. A person who is a Register. a check under section 6695(f) of the signing tax return preparer of any return Par. 118. Section 55.6694–3 is added Code, in the manner stated in § 1.6695– or claim for refund of tax under Chapter to read as follows: 1 of this chapter. 44 of subtitle D of the Internal Revenue (b) Effective/applicability date. This Code shall furnish a completed copy of § 55.6694–3 Penalty for understatement due to willful, reckless, or intentional section is applicable to returns and the return or claim for refund to the claims for refund filed after the date that taxpayer, and retain a completed copy conduct. (a) In general. A person who is a tax final regulations are published in the or record in the manner stated in Federal Register. § 1.6107–1 of this chapter. return preparer of any return or claim (b) Effective/applicability date. This for refund of tax under chapter 44 of Par. 121. Section 55.6696–1 is added section is applicable to returns and subtitle D of the Internal Revenue Code to read as follows: claims for refund filed after the date that (Code) shall be subject to penalties under section 6694(b) of the Code in the § 55.6696–1 Claims for credit or refund by final regulations are published in the tax return preparers. Federal Register. manner stated in § 1.6694–3 of this Par. 115. Section 55.6109–1 is added chapter. (a) In general. For rules for claims for to read as follows: (b) Effective/applicability date. This credit or refund by a tax return preparer section is applicable to returns and who prepared a return or claim for § 55.6109–1 Tax return preparers claims for refund filed, and advice refund for tax under chapter 44 of furnishing identifying numbers for returns provided, after the date that final or claims for refund. subtitle D of the Internal Revenue Code, regulations are published in the Federal the rules under § 1.6696–1 of this (a) In general. Each tax return or claim Register. chapter will apply. for refund of tax under chapter 44 of Par. 119. Section 55.6694–4 is added (b) Effective/applicability date. This Subtitle D prepared by one or more to read as follows: signing tax return preparers must section is applicable to returns and include the identifying number of the § 55.6694–4 Extension of period of claims for refund filed, and advice preparer required by § 1.6695–1(b) of collection when tax return preparer pays 15 provided, after the date that final this chapter to sign the return or claim percent of a penalty for understatement of regulations are published in the Federal taxpayer’s liability and certain other Register. for refund in the manner stated in procedural matters. § 1.6109–2 of this chapter. Par. 122. Section 55.7701–1 is added (a) In general. For rules relating to the (b) Effective/applicability date. to read as follows: Paragraph (a) of this section is extension of period of collection when applicable to returns and claims for a tax return preparer who prepared a § 55.7701–1 Tax return preparer. return or claim for refund for excise tax refund filed after the date that final (a) In general. For the definition of a regulations are published in the Federal under chapter 44 of subtitle D of the Internal Revenue Code pays 15 percent tax return preparer, see § 301.7701–15 of Register. this chapter. Par. 116. Section 55.6694–1 is added of a penalty for understatement of to read as follows: taxpayer’s liability, and procedural (b) Effective/applicability date. This matters relating to the investigation, section is applicable to returns and § 55.6694–1 Section 6694 penalties assessment and collection of the claims for refund filed, and advice applicable to tax return preparer. penalties under section 6694(a) and (b), provided, after the date that final (a) In general. For general definitions the rules under § 1.6694–4 of this regulations are published in the Federal regarding section 6694 penalties chapter will apply. Register.

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PART 56—PUBLIC CHARITY EXCISE the manner stated in § 1.6109–2 of this § 56.6694–4 Extension of period of TAXES chapter. collection when tax return preparer pays 15 percent of a penalty for understatement of Par. 123. The authority citation for (b) Effective/applicability date. taxpayer’s liability and certain other part 56 is amended by adding entries in Paragraph (a) of this section is procedural matters. numerical order to read in part as applicable to returns and claims for (a) In general. For rules relating to the follows: refund filed after the date that final extension of period of collection when regulations are published in the Federal a tax return preparer who prepared a Authority: 26 U.S.C. 7805 * * * Register. return or claim for refund for tax under Section 56.6060–1 also issued under 26 Par. 127. Section 56.6694–1 is added chapter 41 of subtitle D of the Internal U.S.C. 6060(a). * * * to read as follows: Revenue Code pays 15 percent of a Section 56.6109–2 also issued under 26 penalty for understatement of taxpayer’s U.S.C. 6109(a). * * * § 56.6694–1 Section 6694 penalties liability, and procedural matters relating Section 56.6695–1 also issued under 26 applicable to tax return preparer. U.S.C. 6695(b). * * * to the investigation, assessment and Section 56.6695–2 also issued under 26 (a) In general. For general definitions collection of the penalties under section U.S.C. 6695(g).* * * regarding section 6694 penalties 6694(a) and (b), the rules under applicable to preparers of tax returns or § 1.6694–4 of this chapter will apply. Par. 124. Section 56.6060–1 is added claims for refund of tax under chapter (b) Effective/applicability date. This to read as follows: 41 of subtitle D see § 1.6694–1 of this section is applicable to returns and § 56.6060–1 Reporting requirements for chapter. claims for refund filed, and advice tax return preparers. (b) Effective/applicability date. provided, after the date that final (a) In general. A person that employs Paragraph (a) of this section is regulations are published in the Federal (or engages) one or more tax return applicable to returns and claims for Register. Par. 131. Section 56.6695–1 is added preparers to prepare a return or claim refund filed, and advice provided, after to read as follows: for refund of tax under chapter 41 of the date that final regulations are subtitle D of the Internal Revenue Code, published in the Federal Register. § 56.6695–1 Other assessable penalties other than for the person, at any time Par. 128. Section 56.6694–2 is added with respect to the preparation of tax returns for other persons. during a return period, shall satisfy the to read as follows: record keeping and inspection (a) In general. A person who is a tax requirements in the manner stated in § 56.6694–2 Penalties for understatement return preparer of any return or claim § 1.6060–1 of this chapter. due to an unreasonable position. for refund of tax under chapter 41 of (b) Effective/applicability date. This (a) In general. A person who is a tax subtitle D of the Internal Revenue Code section is applicable to returns and return preparer of any return or claim (Code) shall be subject to penalties for claims for refund filed after the date that for refund of excise tax under chapter 41 failure to furnish a copy to the taxpayer final regulations are published in the of subtitle D of the Internal Revenue under section 6695(a) of the Code, Federal Register. Code (Code) shall be subject to penalties failure to sign the return under section Par. 125. Section 56.6107–1 is added under section 6694(a) of the Code in the 6695(b) of the Code, failure to furnish an to read as follows: manner stated in § 1.6694–2 of this identification number under section chapter. 6695(c) of the Code, failure to retain a § 56.6107–1 Tax return preparer must copy or list under section 6695(d) of the furnish copy of return to taxpayer and must (b) Effective/applicability date. This retain a copy or record. Code, failure to file a correct section is applicable to returns and information return under section (a) In general. A person who is a claims for refund filed, and advice 6695(e) of the Code, and negotiation of signing tax return preparer of any return provided, after the date that final a check under section 6695(f) of the or claim for refund of tax under Chapter regulations are published in the Federal Code, in the manner stated in § 1.6695– 41 of subtitle D of the Internal Revenue Register. 1 of this chapter. Code shall furnish a completed copy of Par. 129. Section 56.6694–3 is added (b) Effective/applicability date. This the return or claim for refund to the to read as follows: section is applicable to returns and estate, and retain a completed copy or claims for refund filed after the date that record in the manner stated in § 1.6107– § 56.6694–3 Penalty for understatement final regulations are published in the 1 of this chapter. due to willful, reckless, or intentional conduct. Federal Register. (b) Effective/applicability date. This Par. 132. Section 56.6696–1 is added section is applicable to returns and (a) In general. A person who is a tax to read as follows: claims for refund filed after the date that return preparer of any return or claim final regulations are published in the for refund of tax under chapter 41 of § 56.6696–1 Claims for credit or refund by tax return preparers. Federal Register. subtitle D of the Internal Revenue Code Par. 126. Section 56.6109–1 is added (Code) shall be subject to penalties (a) In general. For rules relating to to read as follows: under section 6694(b) of the Code in the claims for credit or refund by a tax manner stated in § 1.6694–3 of this return preparer who prepared a return § 56.6109–1 Tax return preparers chapter. or claim for refund for tax under chapter furnishing identifying numbers for returns 41 of subtitle D of the Internal Revenue or claims for refund. (b) Effective/applicability date. This Code, the rules under § 1.6696–1 of this (a) In general. Each tax return or claim section is applicable to returns and chapter will apply. for refund for tax under chapter 41 of claims for refund filed, and advice (b) Effective/applicability date. This subtitle D prepared by one or more tax provided, after the date that final section is applicable to returns and signing return preparers must include regulations are published in the Federal claims for refund filed, and advice the identifying number of the preparer Register. provided, after the date that final required by § 1.6695–1(b) of this chapter Par. 130. Section 56.6694–4 is added regulations are published in the Federal to sign the return or claim for refund in to read as follows: Register.

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Par. 133. Section 56.7701–1 is added Par. 137. Section 156.6109–1 is added claims for refund filed, and advice to read as follows: to read as follows: provided, after the date that final regulations are published in the Federal § 56.7701–1 Tax return preparer. § 156.6109–1 Tax return preparers Register. (a) In general. For the definition of a furnishing identifying numbers for returns or claims for refund. Par. 141. Section 156.6694–4 is added tax return preparer, see § 301.7701–15 of to read as follows: this chapter. (a) In general. Each tax return or claim (b) Effective/applicability date. This for refund for tax under section 5881 of § 156.6694–4 Extension of period of section is applicable to returns and the Internal Revenue Code prepared by collection when tax return preparer pays 15 claims for refund filed, and advice one or more signing tax return preparers percent of a penalty for understatement of must include the identifying number of taxpayer’s liability and certain other provided, after the date that final procedural matters. regulations are published in the Federal the preparer required by § 1.6695–1(b) (a) In general. For rules relating to the Register. of this chapter to sign the return or claim for refund in the manner stated in extension of period of collection when PART 156—EXCISE TAX ON § 1.6109–2 of this chapter. a tax return preparer who prepared a GREENMAIL (b) Effective/applicability date. return or claim for refund for tax under Paragraph (a) of this section is section 5881 of the Internal Revenue Par. 134. The authority citation for applicable to returns and claims for Code pays 15 percent of a penalty for part 156 is amended by adding entries refund filed after the date that final understatement of taxpayer’s liability, in numerical order to read in part as regulations are published in the Federal and procedural matters relating to the follows: Register. investigation, assessment and collection Authority: 26 U.S.C. 7805 * * * Par. 138. Section 156.6694–1 is added of the penalties under section 6694(a) Section 156.6060–1 also issued under 26 to read as follows: and (b), the rules under § 1.6694–4 of U.S.C. 6060(a). * * * this chapter will apply. § 156.6694–1 Section 6694 penalties Section 156.6109–2 also issued under 26 applicable to tax return preparer. (b) Effective/applicability date. This U.S.C. 6109(a). * * * section is applicable to returns and Section 156.6695–1 also issued under 26 (a) In general. For general definitions claims for refund filed, and advice U.S.C. 6695(b). * * * regarding section 6694 penalties provided, after the date that final Section 156.6695–2 also issued under 26 applicable to preparers of tax returns or regulations are published in the Federal U.S.C. 6695(g). * * * claims for refund for tax under section Register. Par. 135. Section 156.6060–1 is added 5881 of the Internal Revenue Code, see Par. 142. Section 156.6695–1 is added to read as follows: § 1.6694–1 of this chapter. to read as follows: (b) Effective/applicability date. § 156.6060–1 Reporting requirements for Paragraph (a) of this section is § 156.6695–1 Other assessable penalties tax return preparers. applicable to returns and claims for with respect to the preparation of tax (a) In general. A person that employs refund filed, and advice provided, after returns for other persons. (or engages) one or more tax return the date that final regulations are (a) In general. A person who is a tax preparers to prepare a return or claim published in the Federal Register. return preparer of any return or claim for refund under section 5881 of the Par. 139. Section 156.6694–2 is added for refund of tax under section 5881 of Internal Revenue Code, other than for to read as follows: the Internal Revenue Code (Code) shall the person, at any time during a return § 156.6694–2 Penalties for understatement be subject to penalties for failure to period, shall satisfy the record keeping due to an unreasonable position. furnish a copy to the taxpayer under and inspection requirements in the (a) In general. A person who is a tax section 6695(a) of the Code, failure to manner stated in § 1.6060–1 of this return preparer of any return or claim sign the return under section 6695(b) of chapter. for refund of tax under section 5881 of the Code, failure to furnish an (b) Effective/applicability date. This the Internal Revenue Code (Code) shall identification number under section section is applicable to returns and be subject to penalties under section 6695(c) of the Code, failure to retain a claims for refund filed after the date that 6694(a) of the Code in the manner stated copy or list under section 6695(d) of the final regulations are published in the in § 1.6694–2 of this chapter. Code, failure to file a correct Federal Register. (b) Effective/applicability date. This information return under section Par. 136. Section 156.6107–1 is added section is applicable to returns and 6695(e) of the Code, and negotiation of to read as follows: claims for refund filed, and advice a check under section 6695(f) of the Code, in the manner stated in § 1.6695– § 156.6107–1 Tax return preparer must provided, after the date that final furnish copy of return to taxpayer and must regulations are published in the Federal 1 of this chapter. retain a copy or record. Register. (b) Effective/applicability date. This section is applicable to returns and (a) In general. A person who is a Par. 140. Section 156.6694–3 is added to read as follows: claims for refund filed after the date that signing tax return preparer of any return final regulations are published in the or claim for refund of tax under Section § 156.6694–3 Penalty for understatement Federal Register. 5881 of the Internal Revenue Code shall due to willful, reckless, or intentional Par. 143. Section 156.6696–1 is added furnish a completed copy of the return conduct. to read as follows: or claim for refund to the taxpayer, and (a) In general. A person who is a tax retain a completed copy or record in the return preparer of any return or claim § 156.6696–1 Claims for credit or refund by manner stated in § 1.6107–1 of this for refund of tax under section 5881 of tax return preparers. chapter. the Internal Revenue Code (Code) shall (a) In general. For rules for claims for (b) Effective/applicability date. This be subject to penalties under section credit or refund by a tax return preparer section is applicable to returns and 6694(b) of the Code in the manner stated who prepared a return or claim for claims for refund filed after the date that in § 1.6694–3 of this chapter. refund for tax under section 5881 of the final regulations are published in the (b) Effective/applicability date. This Internal Revenue Code, the rules under Federal Register. section is applicable to returns and § 1.6696–1 of this chapter will apply.

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(b) Effective/applicability date. This manner stated in § 1.6107–1 of this for refund of tax under section 5891 of section is applicable to returns and chapter. the Internal Revenue Code (Code) shall claims for refund filed, and advice (b) Effective/applicability date. This be subject to penalties under section provided, after the date that final section is applicable to returns and 6694(b) of the Code in the manner stated regulations are published in the Federal claims for refund filed after the date that in § 1.6694–3 of this chapter. Register. final regulations are published in the (b) Effective/applicability date. This Par. 144. Section 156.7701–1 is added Federal Register. section is applicable to returns and to read as follows: Par. 148. Section 157.6109–1 is added claims for refund filed, and advice to read as follows: § 156.7701–1 Tax return preparer. provided, after the date that final regulations are published in the Federal (a) In general. For the definition of a § 157.6109–1 Tax return preparers Register. tax return preparer, see § 301.7701–15 of furnishing identifying numbers for returns or claims for refund. this chapter. Par. 152. Section 157.6694–4 is added (b) Effective/applicability date. This (a) In general. Each tax return or claim to read as follows: for refund for tax under section 5891 of section is applicable to returns and § 157.6694–4 Extension of period of claims for refund filed, and advice the Internal Revenue Code prepared by one or more signing tax return preparers collection when preparer pays 15 percent of provided, after the date that final a penalty for understatement of taxpayer’s regulations are published in the Federal must include the identifying number of liability and certain other procedural Register. the preparer required by § 1.6695–1(b) matters. of this chapter to sign the return or (a) In general. For rules relating to the PART 157—EXCISE TAX ON claim for refund in the manner stated in extension of period of collection when STRUCTURED SETTLEMENT § 1.6109–2 of this chapter. a tax return preparer who prepared a FACTORING TRANSACTIONS (b) Effective/applicability date. Paragraph (a) of this section is return or claim for refund for tax under Par. 145. The authority citation for applicable to returns and claims for section 5891 of the Internal Revenue part 157 is amended by adding entries refund filed after the date that final Code pays 15 percent of a penalty for in numerical order to read in part as regulations are published in the Federal understatement of taxpayer’s liability, follows: Register. and procedural matters relating to the Authority: 26 U.S.C. 7805 * * * Par. 149. Section 157.6694–1 is added investigation, assessment and collection to read as follows: of the penalties under section 6694(a) Section 157.6060–1 also issued under 26 and (b), the rules under § 1.6694–4 of U.S.C. 6060(a). * * * § 157.6694–1 Section 6694 penalties this chapter will apply. Section 157.6109–2 also issued under 26 applicable to tax return preparer. U.S.C. 6109(a). * * * (b) Effective/applicability date. This (a) In general. For general definitions section is applicable to returns and Section 157.6695–1 also issued under 26 regarding section 6694 penalties U.S.C. 6695(b). * * * claims for refund filed, and advice applicable to preparers of tax returns or Section 157.6695–2 also issued under 26 provided, after the date that final claims for refund for tax under section U.S.C. 6695(g). * * * regulations are published in the Federal 5891 of the Internal Revenue Code see Register. Par. 146. Section 157.6060–1 is added § 1.6694–1 of this chapter. to read as follows: (b) Effective/applicability date. Par. 153. Section 157.6695–1 is added to read as follows: § 157.6060–1 Reporting requirements for Paragraph (a) of this section is tax return preparers. applicable to returns and claims for § 157.6695–1 Other assessable penalties (a) In general. A person that employs refund filed, and advice provided, after with respect to the preparation of tax (or engages) one or more tax return the date that final regulations are returns for other persons. preparers to prepare a return or claim published in the Federal Register. Par. 150. Section 157.6694–2 is added (a) In general. A person who is a tax for refund for tax under section 5891 of to read as follows: return preparer of any return or claim the Internal Revenue Code, other than for refund of tax under section 5891 of for the person, at any time during a § 157.6694–2 Penalties for understatement the Internal Revenue Code (Code) shall return period, shall satisfy the record due to an unreasonable position. be subject to penalties for failure to keeping and inspection requirements in (a) In general. A person who is a tax furnish a copy to the taxpayer under the manner stated in § 1.6060–1 of this return preparer of any return or claim section 6695(a) of the Code, failure to chapter. for refund of tax under section 5891 of sign the return under section 6695(b) of (b) Effective/applicability date. This the Internal Revenue Code (Code) shall the Code, failure to furnish an section is applicable to returns and be subject to penalties under section identification number under section claims for refund filed after the date that 6694(a) of the Code in the manner stated 6695(c) of the Code, failure to retain a final regulations are published in the in § 1.6694–2 of this chapter. copy or list under section 6695(d) of the Federal Register. (b) Effective/applicability date. This Code, failure to file a correct Par. 147. Section 157.6107–1 is added section is applicable to returns and information return under section to read as follows: claims for refund filed, and advice 6695(e) of the Code, and negotiation of provided, after the date that final § 157.6107–1 Tax return preparer must a check under section 6695(f) of the furnish copy of return to taxpayer and must regulations are published in the Federal Code, in the manner stated in § 1.6695– retain a copy or record. Register. 1 of this chapter. Par. 151. Section 157.6694–3 is added (a) In general. A person who is a (b) Effective/applicability date. This to read as follows: signing tax return preparer of any return section is applicable to returns and or claim for refund of tax under section § 157.6694–3 Penalty for understatement claims for refund filed after the date that 5891 of the Internal Revenue Code shall due to willful, reckless, or intentional final regulations are published in the furnish a completed copy of the return conduct. Federal Register. or claim for refund to the taxpayer, and (a) In general. A person who is a tax Par. 154. Section 157.6696–1 is added retain a completed copy or record in the return preparer of any return or claim to read as follows:

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§ 157.6696–1 Claims for credit or refund by individual with respect to the tax required to be shown on a return. tax return preparers. position(s) giving rise to the Factors to consider in determining (a) In general. For rules for claims for understatement shall not be taken into whether a schedule, entry, or other credit or refund by a tax return preparer account. Examples of nonsigning tax portion of a return or claim for refund who prepared a return or claim for return preparers are tax return preparers is a substantial portion include but are refund for tax under section 5891 of the who provide advice (written or oral) to not limited to— Internal Revenue Code, the rules under a taxpayer (or to another tax return (A) The size and complexity of the § 1.6696–1 of this chapter will apply. preparer) when that advice constitutes a item relative to the taxpayer’s gross (b) Effective/applicability date. This substantial portion of the return within income; and section is applicable to returns and the meaning of paragraph (b)(3) of this (B) The size of the understatement claims for refund filed, and advice section. attributable to the item compared to the provided, after the date that final (ii) Examples. The provisions of this taxpayer’s reported tax liability. regulations are published in the Federal paragraph (b)(2) are illustrated by the (ii)(A) For purposes of applying the Register. following examples: rules of paragraph (b)(3)(i) of this Par. 155. Section 157.7701–1 is added Example 1. Attorney A, an attorney in a section to a nonsigning tax return to read as follows: law firm, provides legal advice to a large preparer within the meaning of corporate taxpayer regarding a completed paragraph (b)(2) of this section only, if § 157.7701–1 Tax return preparer. corporate transaction. The advice provided the schedule, entry, or other portion of (a) In general. For the definition of a by A is directly relevant to the determination the return or claim for refund involves tax return preparer, see § 301.7701–15 of of an entry on the taxpayer’s return and this amounts of gross income, amounts of this chapter. advice constitutes a substantial portion of the deductions, or amounts on the basis of (b) Effective/applicability date. This return. A, however, does not prepare any which credits are determined that are— section is applicable to returns and other portion of the taxpayer’s return and is (1) Less than $10,000; or claims for refund filed, and advice not the signing tax return preparer of this (2) Less than $400,000 and also less return. A is considered a tax return preparer. provided, after the date that final than 20 percent of the gross income as regulations are published in the Federal Example 2. Attorney B, an attorney in a law firm, provides legal advice to a large shown on the return or claim for refund Register. corporate taxpayer regarding the tax (or, for an individual, the individual’s consequences of a proposed corporate adjusted gross income), then the PART 301—PROCEDURE AND transaction. Based upon this advice, the schedule or other portion is not ADMINISTRATION corporate taxpayer enters into the considered to be a substantial portion. Par. 156. The authority citation for transaction. Once the transaction is (B) If more than one schedule, entry completed, the corporate taxpayer does not or other portion is involved, all part 301 continues to read in part as receive any additional advice from B with follows: schedules, entries or other portions respect to the transaction. B did not provide shall be aggregated in applying this rule. Authority: 26 U.S.C. 7805 * * * advice with respect to events that have occurred and is not considered a tax return This paragraph shall not apply to a Par. 157. Section 301.7701–15 is preparer. signing tax return preparer within the amended to read as follows: Example 3. The facts are the same as meaning of paragraph (b)(1) of this Example 2, except that Attorney B provides section. § 301.7701–15 Tax return preparer. supplemental advice to the corporate (iii) A tax return preparer with respect (a) In general. A tax return preparer taxpayer on a phone call after the transaction to one return is not considered to be a is any person who prepares for is completed. The time incurred on this tax return preparer of another return compensation, or who employs one or supplemental advice by B represented less merely because an entry or entries more persons to prepare for than 5 percent of the aggregate amount of reported on the first return may affect an time spent by B providing tax advice on the compensation, all or a substantial entry reported on the other return, portion of any return of tax or any claim position. B is not considered a tax return preparer. unless the entry or entries reported on for refund of tax under the Internal the first return are directly reflected on Revenue Code (Code). (3) Substantial portion. (i) Only a the other return and constitute a (b) Definitions—(1) Signing tax return person who prepares all or a substantial substantial portion of the other return. preparer. A signing tax return preparer portion of a return or claim for refund For example, the sole preparer of a is any tax return preparer who signs or shall be considered to be a tax return partnership return of income or small who is required to sign a return or claim preparer of the return or claim for business corporation income tax return for refund as a tax return preparer refund. A person who renders tax is considered a tax return preparer of a pursuant to § 1.6695–1(b) of this advice on a position that is directly partner’s or a shareholder’s return if the chapter. relevant to the determination of the entry or entries on the partnership or (2) Nonsigning tax return preparer— existence, characterization, or amount of small business corporation return (i) In general. A nonsigning tax return an entry on a return or claim for refund reportable on the partner’s or preparer is any tax return preparer who will be regarded as having prepared that shareholder’s return constitute a is not a signing tax return preparer but entry. Whether a schedule, entry, or substantial portion of the partner’s or who prepares all or a substantial portion other portion of a return or claim for shareholder’s return. of a return or claim for refund within refund is a substantial portion is (iv) Examples. The provisions of this the meaning of paragraph(b)(3) of this determined based upon whether the paragraph (b)(3) are illustrated by the section with respect to events that have person knows or reasonably should following examples: occurred at the time the advice is know that the tax attributable to the rendered. In determining whether an schedule, entry, or other portion of a Example 1. Accountant C prepares a Form 8886, ‘‘Reportable Transaction Disclosure individual is a nonsigning tax return return or claim for refund is a Statement’’, that is used to disclose preparer, time spent on advice that is substantial portion of the tax required to reportable transactions. C does not prepare given after events have occurred that be shown on the return or claim for the tax return or advise the taxpayer represents less than 5 percent of the refund. A single tax entry may regarding the tax return reporting position of aggregate time incurred by such constitute a substantial portion of the the transaction to which the Form 8886

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relates. The preparation of the Form 8886 is satisfies the definition of tax return other entity of which the person either not directly relevant to the determination of preparer. Notwithstanding the is a fiduciary or is an officer, general the existence, characterization, or amount of provisions of § 301.6109–1(g), the partner, or employee of the fiduciary. an entry on a tax return or claim for refund. (xi) An individual preparing a claim Rather, the Form 8886 is prepared by C to person shall secure an employer disclose a reportable transaction. C has not identification number if the person is an for refund for a taxpayer in response prepared a substantial portion of the tax employer of another tax return preparer, to— return and is not considered a tax return is a partnership in which one or more (A) A notice of deficiency issued to preparer under section 6694. of the general partners is a tax return the taxpayer; or Example 2. Accountant D prepares a preparer, is a firm entity in which one (B) A waiver of restriction on schedule for an individual taxpayer’s Form or more of the equity holders is a tax assessment after initiation of an audit of 1040, ‘‘U.S. Individual Income Tax Return’’, return preparer, or is an individual not the taxpayer or another taxpayer if a reporting $4,000 in dividend income and employed by another tax return determination in the audit of the other gives oral or written advice about Schedule preparer. taxpayer affects, directly or indirectly, A, which results in a claim of a medical (f) Persons who are not tax return the liability of the taxpayer for tax under expense deduction totaling $5,000, but does preparers. (1) The following persons are subtitle A. not sign the tax return. D is not a tax return (xii) A person who prepares a return preparer because the total aggregate amount not tax return preparers: of the deductions is less than $10,000. (i) An official or employee of the or claim for refund for a taxpayer with Internal Revenue Service (IRS) no explicit or implicit agreement for (4) Return and claim for refund—(i) performing their official duties. compensation, even if the person Return. For purposes of this section, a (ii) Any individual who provides tax receives an insubstantial gift, return return of tax is a return (including an assistance under a Volunteer Income service, or favor. amended or adjusted return) filed by or Tax Assistance (VITA) program (2) Paragraphs (f)(1) (vi) and (vii) of on behalf of a taxpayer reporting the established by the IRS, but only with this section apply only if any assistance liability of the taxpayer for tax under the respect to those returns prepared as part with a return of tax or claim for refund Code, if the type of return is identified of the VITA program. is directly related to a controversy with in published guidance in the Internal (iii) Any organization sponsoring or the IRS for which the qualified LITC is Revenue Bulletin. A return of tax also administering a VITA program providing assistance, or is an ancillary includes any information return or other established by the IRS, but only with part of an LITC program to inform document identified in published respect to that sponsorship or individuals for whom English is a guidance in the Internal Revenue administration. second language about their rights and Bulletin, and that reports information (iv) Any individual who provides tax responsibilities under the Code. that is or may be reported on another counseling for the elderly under a (3) Notwithstanding paragraph (f)(2) taxpayer’s return under the Code if the program established pursuant to section of this section, paragraphs (f)(1)(vi) and information reported on the information 163 of the Revenue Act of 1978, but (f)(1)(vii) of this section do not apply if return or other document constitutes a only with respect to those returns an LITC charges a separate fee or varies substantial portion of the taxpayer’s prepared as part of that program. a fee based on whether the LITC return within the meaning of paragraph (v) Any organization sponsoring or provides assistance with a return of tax (b)(3) of this section. administering a program to provide tax or claim for refund under the Code, or (ii) Claim for refund. For purposes of counseling for the elderly established if the LITC charges more than a nominal this section, a claim for refund of tax pursuant to section 163 of the Revenue fee for its services. includes a claim for credit against any Act of 1978, but only with respect to (4) For purposes of paragraph (f)(1)(ix) tax that is included in published that sponsorship or administration. of this section, the employee of a guidance in the Internal Revenue (vi) Any individual who provides tax corporation owning more than 50 Bulletin. A claim for refund also assistance as part of a qualified Low- percent of the voting power of another includes a claim for payment under Income Taxpayer Clinic (LITC), as corporation, or the employee of a section 6420, 6421, or 6427. defined by section 7526, subject to the corporation more than 50 percent of the (c) Mechanical or clerical assistance. requirements of paragraphs (f)(2) and (3) voting power of which is owned by A person who furnishes to a taxpayer or of this section, but only with respect to another corporation, is considered the other tax return preparer sufficient those returns prepared as part of the employee of the other corporation as information and advice so that LITC program. well. completion of the return or claim for (vii) Any organization that is a (5) For purposes of paragraph (f)(1)(x) refund is largely a mechanical or qualified LITC, as defined by section of this section, an estate, guardianship, clerical matter is considered a tax return 7526, subject to the requirements of conservatorship, committee, or any preparer, even though that person does paragraphs (h)(2) and (3) of this section. similar arrangement for a taxpayer not actually place or review placement (viii) An individual providing only under a legal disability (such as a minor, of information on the return or claim for typing, reproduction, or other an incompetent, or an infirm individual) refund. See also paragraph (b)(3) of this mechanical assistance in the is considered a trust or estate. section. preparation of a return or claim for (6) Examples. The mechanical (d) Qualifications. A person may be a refund. assistance exception described in tax return preparer without regard to (ix) An individual preparing a return paragraph (f)(1)(viii) of this section is educational qualifications and or claim for refund of a person, or an illustrated by the following examples: professional status requirements. officer, a general partner, member, (e) Outside the United States. A shareholder, or employee of a person, by Example 1. A reporting agent received person who prepares a return or claim whom the individual is regularly and employment tax information from a client from the client’s business records. The for refund outside the United States is continuously employed or compensated reporting agent did not render any tax advice a tax return preparer, regardless of the or in which the individual is a general to the client or exercise any discretion or person’s nationality, residence, or the partner. independent judgment on the client’s location of the person’s place of (x) An individual preparing a return underlying tax positions. The reporting agent business, if the person otherwise or claim for refund for a trust, estate, or processed the client’s information, signed the

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return as authorized by the client pursuant to compensation, the reporting agent received provided, after the date that final Form 8655, Reporting Agent Authorization, employment tax information from the client, regulations are published in the Federal and filed the client’s return using the processed the client’s information and filed Register. information supplied by the client. The the client’s return using the information reporting agent is not a tax return preparer. supplied by the client. The reporting agent is Linda E. Stiff, a tax return preparer. Example 2. A reporting agent rendered tax Deputy Commissioner for Services and advice to a client on determining whether its (g) Effective/applicability date. This Enforcement. workers are employees or independent section is applicable to returns and [FR Doc. E8–12898 Filed 6–16–08; 8:45 am] contractors for Federal tax purposes. For claims for refund filed, and advice BILLING CODE 4830–01–P

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Part V

Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Parts 3, 9, and 52 Federal Acquisition Regulation; FAR Case 2007–017; Service Contractor Employee Personal Conflicts of Interest; Proposed Rule

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DEPARTMENT OF DEFENSE practices, specific prohibitions, or (VPR), 1800 F Street, NW, Room 4035, reliance on specified principles would ATTN: Laurieann Duarte, Washington, GENERAL SERVICES be most effective and efficient in DC 20405. ADMINISTRATION promoting ethical behavior. The Instructions: Please submit comments comment period is reopened for only and cite FAR case 2007–017, in all NATIONAL AERONAUTICS AND anadditional 30 days to provide correspondence related to this case. All SPACE ADMINISTRATION additional time for interested parties to comments received will be posted review and comment on the Advance without change to http:// 48 CFR Parts 3, 9, and 52 notice of proposed rulemaking. www.regulations.gov. Please include [FAR Case 2007–017; Docket 2008–0002; DATES: Comment Date: Interested parties your name and company name (if any) Sequence 2] should submit written comments to the inside the document. FAR Secretariat on or before July 17, FOR FURTHER INFORMATION CONTACT For RIN 9000–AK97 2008 to be considered in the clarification of content, contact Ms. formulation of any proposed or interim Meredith Murphy, at (202) 208–6925. Federal Acquisition Regulation; FAR rule. Case 2007–017; Service Contractor For information pertaining to status or Employee Personal Conflicts of ADDRESSES: Submit comments publication schedules, contact the FAR Interest identified by FAR case 2007–017, by Secretariat, Room 4035, GS Building, any of the following methods: Washington, DC 20405, (202) 501–4755. AGENCIES: Department of Defense (DoD), • Regulations.gov:http:// Please cite FAR Case 2007–017. General Services Administration (GSA), www.regulations.gov. Submit comments SUPPLEMENTARY INFORMATION: The and National Aeronautics and Space via the Federal eRulemaking portal by Councils published an Advance notice Administration (NASA). inputting ‘‘FAR Case 2007–017’’ under of proposed rulemaking in the Federal ACTION: Advance notice of proposed the heading ‘‘Comment or Submission’’. Register at 73 FR 15961, March 26, rulemaking; Reopening of comment Select the link ‘‘Send a Comment or 2008. To allow additional time for period. Submission’’ that corresponds with FAR interested parties to review the Advance Case 2007–017. Follow the instructions notice of proposed rulemaking and SUMMARY: The Civilian Agency provided to complete the ‘‘Public submit comments, the comment period Acquisition Council and the Defense Comment and Submission Form’’. is reopened for an additional 30-days. Acquisition Regulations Council (the Please include your name, company Councils) are interested in determining name (if any), and ‘‘FAR Case 2007– Dated: June 11, 2008. if, when, and how service contractor 017’’ on your attached document. Al Matera, employees’ personal conflicts of interest • Fax: 202–501–4067. Director, Acquisition Policy Division. (PCI) need to be addressed and whether • Mail: General Services [FR Doc. E8–13634 Filed 6–16–08; 8:45 am] greater disclosure of contractor Administration, Regulatory Secretariat BILLING CODE 6820–EP–S

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Part VI

The President Proclamation 8270—Father’s Day, 2008

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Federal Register Presidential Documents Vol. 73, No. 117

Tuesday, June 17, 2008

Title 3— Proclamation 8270 of June 12, 2008

The President Father’s Day, 2008

By the President of the United States of America

A Proclamation On Father’s Day, we honor our Nation’s fathers for the unconditional love they give to their children and for their selfless dedication to the well- being of their families. Fathers play a unique and irreplaceable part in the lives of their children and pass along values that help children grow into responsible adults. By providing their sons and daughters with a positive example, fathers help give their children the necessary foundation they need to make wise decisions throughout their lives. Fathers strive to inspire their children to lead lives of integrity, honor, and purpose, and they pray for wisdom and the strength to give their children the love and support they need to achieve their dreams. All Americans are thankful for the extraordinary efforts of our Nation’s fathers, stepfathers, grandfathers, and guardians. Their devotion and encour- agement as mentors, providers, and role models help strengthen their families and our country. We are especially grateful for the fathers who serve in our Nation’s Armed Forces. These dedicated fathers protect liberty so that all children can have a more promising future. We pray for the safe return of all those serving overseas, and we thank the fathers who support sons and daughters who are defending our freedom around the globe. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, in accordance with a joint resolution of the Congress approved April 24, 1972, as amended (36 U.S.C. 109), do hereby proclaim June 15, 2008, as Father’s Day. I encourage all Americans to express their appreciation to all fathers for their many contributions to our Nation’s children. I direct the appropriate officials of the Government to display the flag of the United States on all Government buildings on this day. I also call upon State and local governments and citizens to observe this day with appropriate programs, ceremonies, and activities.

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IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of June, in the year of our Lord two thousand eight, and of the Independence of the United States of America the two hundred and thirty-second.

[FR Doc. 08–1370 Filed 6–16–08; 10:08 am] Billing code 3195–W8–P

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Reader Aids Federal Register Vol. 73, No. 117 Tuesday, June 17, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JUNE

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. 50...... 31607 Presidential Documents 2 CFR 72...... 32453, 33291 Executive orders and proclamations 741–6000 Proposed Rules: 73...... 32453 The United States Government Manual 741–6000 33...... 32417 74...... 32453 Other Services 3 CFR 150...... 32453 170...... 32386 Electronic and on-line services (voice) 741–6020 Proclamations: 171...... 32386 Privacy Act Compilation 741–6064 8262...... 31745 1017...... 32637 Public Laws Update Service (numbers, dates, etc.) 741–6043 8263...... 31747 Proposed Rules: TTY for the deaf-and-hard-of-hearing 741–6086 8264...... 31921 71...... 31946 8265...... 31923 430...... 32243 8266...... 31925 431...... 34094 ELECTRONIC RESEARCH 8267...... 31927 World Wide Web 8268...... 32233 12 CFR 8269...... 32983 202...... 33662 Full text of the daily Federal Register, CFR and other publications 8270...... 34603 652...... 31937 is located at: http://www.gpoaccess.gov/nara/index.html Executive Orders: Proposed Rules: Federal Register information and research tools, including Public 12989 (Amended by 535...... 31648 Inspection List, indexes, and links to GPO Access are located at: EO 13465)...... 33285 615...... 33931 http://www.archives.gov/federallregister 13405 (See Notices of 701...... 34366 June 6, 2008)...... 32981 E-mail 706...... 31648 13465...... 33285 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Administrative Orders: 14 CFR an open e-mail service that provides subscribers with a digital Presidential 27...... 31608, 33876 form of the Federal Register Table of Contents. The digital form Determinations: 29...... 31608 of the Federal Register Table of Contents includes HTML and No. 08–20 of June 4, 39 ...... 31351, 31353, 31355, PDF links to the full text of each document. 2008 ...... 33289 31749, 32648, 32985, 32987, To join or leave, go to http://listserv.access.gpo.gov and select Notice of June 6, 32988, 32991, 32993, 32996, Online mailing list archives, FEDREGTOC-L, Join or leave the list 2008 ...... 32981 32998, 33000, 33663, 33876 (or change settings); then follow the instructions. 71 ...... 31608, 32235, 33294, 4 CFR 33295, 33296, 33297, 33665, PENS (Public Law Electronic Notification Service) is an e-mail 21...... 32427 33666 service that notifies subscribers of recently enacted laws. 97...... 33666, 33669 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 5 CFR 121...... 33879 and select Join or leave the list (or change settings); then follow Ch. LXVIII ...... 33661 135...... 33879 the instructions. 201...... 33326 6 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot 204...... 33326 respond to specific inquiries. Proposed Rules: 205...... 33326 5...... 32657, 33928 211...... 33326 Reference questions. Send questions and comments about the 212...... 33326 Federal Register system to: [email protected] 7 CFR 213...... 33326 The Federal Register staff cannot interpret specific documents or 301...... 31929, 32431 217...... 33326 regulations. 305...... 32431 241...... 33326 762...... 32635 243...... 33326 955...... 31605 FEDERAL REGISTER PAGES AND DATE, JUNE 291...... 33326 1170...... 34175 298...... 33326 31351–31604...... 2 Proposed Rules: 325...... 33326 31605–31748...... 3 301...... 33333 330...... 33326 31749–31928...... 4 305...... 34202 331...... 33326 318...... 34202 382...... 33326 31929–32234...... 5 319...... 33333 1260...... 33670 32235–32426...... 6 Proposed Rules: 8 CFR 32427–32634...... 9 39 ...... 31780, 32245, 32246, 32635–32982...... 10 217...... 32440 32248, 32250, 32252, 32253, 32983–33290...... 11 1003...... 33875 32255, 32256, 32258, 32486, 33291–33660...... 12 32488, 32491, 32493, 32495, 9 CFR 33661–33874...... 13 32497, 32659, 33025, 33738, 33875–34174...... 16 93...... 31930 33740, 33743, 34224, 34228, 34175–34604...... 17 Proposed Rules: 34233 130...... 31771 71...... 33940 10 CFR 15 CFR 40...... 32453 30...... 31548

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736...... 33671 26...... 34560 36 CFR 47 CFR 740...... 33671 31...... 34560 1281...... 34197 20...... 33324 772...... 33882 40...... 34560 Proposed Rules: 73...... 32241 41...... 34560 774...... 33882 223...... 34239 90...... 33728, 34201 44...... 34560 228...... 34239 16 CFR 53...... 34560 261...... 34239 Proposed Rules: 54...... 34560 48 CFR 292...... 34239 55...... 34560 260...... 32662 293...... 34239 Ch. 1...... 33636, 33640 317...... 32259 56...... 34560 4...... 33636 156...... 34560 37 CFR 15...... 33636 17 CFR 157...... 34560 41...... 32938 25...... 33636 200...... 32222 301...... 32503, 34560 Proposed Rules: 52...... 33636 201...... 32222 Proposed Rules: 28 CFR 1...... 31655 202...... 32222 2...... 33374 203...... 32222 2...... 33345, 33356 Proposed Rules: 3...... 33356 3...... 34600 209...... 32222 0...... 33955 9...... 34600 229...... 32794 6...... 33356 35...... 34466 7...... 33356 12...... 33374 230...... 32222, 32794 36...... 34466 22...... 33374 232 ...... 32222, 32794, 33002, 41...... 31655 75...... 32262 201...... 31399 52...... 33374, 34600 33298 100...... 31648 501...... 34240 239...... 32794 549...... 33957 38 CFR 517...... 32274 240...... 32222, 32794 519...... 32669 249...... 32222, 32794 3...... 31753 29 CFR 533...... 32514 249b...... 32222 21...... 31742 4022...... 33695 537...... 32276 260...... 32222 4044...... 33695 39 CFR 547...... 32277 270...... 32222 552 ...... 32276, 32277, 32514, 274...... 32222 111...... 31943, 32238 30 CFR 32669 275...... 32222 40 CFR 279...... 32222 948...... 33884 Proposed Rules: Proposed Rules: 52 ...... 31366, 31368, 31614, 49 CFR 150...... 32260, 32261 7...... 34140 32239, 32240, 33696 75...... 34140 60...... 31372, 31376 1...... 33326 7...... 33326 19 CFR 250...... 33333 82...... 33007, 33304 950...... 31392 122...... 33697 10...... 33326 10...... 33299, 33673 24...... 33326 24...... 33673 141...... 31616 31 CFR 180 ...... 31753, 33013, 33018, 26...... 33326 162...... 33673 31...... 33326 163...... 33673 535...... 32650 33708, 33714 261...... 31756 37...... 33326 178...... 33673 536...... 32650 40...... 33326, 33735 192...... 32466 537...... 32650 271...... 31634 300 ...... 33718, 33721, 33724 195...... 31634 538...... 32650 217...... 33888 20 CFR 539...... 32650 302...... 31756 372...... 32466 218...... 33888 Proposed Rules: 540...... 32650 571...... 32473 404...... 33745 541...... 32650 Proposed Rules: 572...... 33903 52 ...... 31415, 31663, 31947, 408...... 33745 542...... 32650 585...... 32473 416...... 33745 545...... 32650 32274, 33754 560...... 32650 60 ...... 31416, 32667, 33642, Proposed Rules: 422...... 33745 260...... 32515 585...... 32650 34072 383...... 32520 21 CFR 586...... 32650 63 ...... 33013, 33258, 34072 384...... 32520 587...... 32650 152...... 33035 520 ...... 33691, 33692, 34184 385...... 32520 588...... 32650 156...... 33035 522...... 31357 531...... 34242 593...... 32650 165...... 33035 558...... 34184 571...... 31663 801...... 31358 594...... 32650 180...... 31788 803...... 33692 595...... 32650 300 ...... 33758, 33759, 33760 Proposed Rules: 721...... 32508 50 CFR 33 CFR 15...... 33027 42 CFR 18...... 33212 801...... 31390 100...... 31360 32...... 33158 803...... 33749 104...... 34190 418...... 32088 300...... 31380 117 ...... 31610, 32236, 32237, Proposed Rules: 635...... 31380 23 CFR 33005 5...... 31418 648 ...... 31769, 31770, 33922, 774...... 31609 150...... 34191 51c ...... 31418 33924 165 ...... 31363, 31612, 33005, 679 ...... 31646, 3330, 33331, 44 CFR 24 CFR 33302, 34191, 34195 33322 Proposed Rules: Proposed Rules: 64...... 33311 680...... 33925 203...... 32632, 33941 100...... 31394, 33961 65...... 33313, 33315 Proposed Rules: 151...... 32273 67 ...... 31944, 33317, 33321 17 ...... 31418, 31665, 32629, 26 CFR 165 ...... 31397, 31652, 31782, Proposed Rules: 33968 1 ...... 32629, 33301, 34185 31785, 33028, 33030, 33033, 67...... 33372 32...... 33202 301...... 32629 33337, 33341, 33751 216...... 31666 45 CFR Proposed Rules: 334...... 32665, 33344 224...... 32521 1 ...... 32499, 32500, 34237, 706...... 33727 229...... 32278, 33760 34560 34 CFR Proposed Rules: 600...... 32526, 33381 20...... 34560 Proposed Rules: 309...... 32668, 33048 622...... 31669, 32281 25...... 34560 222...... 31592 310...... 32668, 33048 700...... 31807

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REMINDERS 6-23-08; published 4-23-08 Coastal Nonpoint Pollution Romeoville, IL; comments The items in this list were [FR E8-08696] Control Programs; States due by 6-27-08; published editorially compiled as an aid DEFENSE DEPARTMENT and Territories— 6-12-08 [FR E8-13145] to Federal Register users. Federal Acquisition Regulation: Florida and South Safety Zones: Inclusion or exclusion from FAR Case 2004038; Federal Carolina; Open for Annual Events Requiring this list has no legal Procurement Data System comments until further Safety Zones in the significance. Reporting; comments due notice; published 2-11- Captain of the Port Detroit by 6-23-08; published 4- 08 [FR 08-00596] Zone; comments due by 22-08 [FR E8-08447] New Source Performance 6-23-08; published 5-22- RULES GOING INTO FAR Case 2005040, Standards Review for 08 [FR E8-11408] EFFECT JUNE 17, 2008 Electronic Subcontracting Nonmetallic Mineral HOMELAND SECURITY Reporting System; Processing Plants and DEPARTMENT HEALTH AND HUMAN comments due by 6-23- Amendment to Subpart UUU Collection of Alien Biometric SERVICES DEPARTMENT 08; published 4-22-08 [FR Applicability; comments due Data upon Exit from the Food and Drug E8-08449] by 6-23-08; published 4-22- United States at Air and 08 [FR E8-08677] Administration National Security Personnel Sea Ports of Departure: New Animal Drugs For Use in System; comments due by Pyraclostrobin; Pesticide United States Visitor and Animal Feeds; Tylosin; 6-23-08; published 5-22-08 Tolerance for Emergency Immigrant Status Indicator published 6-17-08 [FR E8-11364] Exemptions; comments due Technology Program by 6-23-08; published 4-23- Oral Dosage Form New (‘‘US-VISIT’’); comments EDUCATION DEPARTMENT 08 [FR E8-08675] Animal Drugs; Ivermectin Title I—Improving The due by 6-23-08; published Paste; published 6-17-08 Academic Achievement Of FEDERAL 4-24-08 [FR E8-08956] TREASURY DEPARTMENT The Disadvantaged; COMMUNICATIONS INTERIOR DEPARTMENT COMMISSION Internal Revenue Service comments due by 6-23-08; Fish and Wildlife Service Agency Information Collection published 4-23-08 [FR E8- Endangered and Threatened Alternative Simplified Credit Activities; Proposals, under Section 41(c)(5); 08700] Wildlife and Plants: ENERGY DEPARTMENT Submissions, and Approvals; published 6-17-08 comments due by 6-23-08; 90-Day Finding on a Federal Energy Regulatory published 4-24-08 [FR E8- Petition to List the COMMENTS DUE NEXT Commission 08790] Western Sage-Grouse WEEK Revised Public Utility Filing (Centrocercus Requirements for Electric FEDERAL TRADE urophasianus phaios) as Quarterly Reports; COMMISSION Threatened or AGRICULTURE comments due by 6-27-08; Prohibitions On Market Endangered; comments DEPARTMENT published 5-28-08 [FR E8- Manipulation and False due by 6-27-08; published Animal and Plant Health 11861] Information: 4-29-08 [FR E8-09180] Inspection Service ENVIRONMENTAL Subtitle B of Title VIII of 90-Day Finding on Petitions Movement of Hass Avocados PROTECTION AGENCY The Energy Independence to List the Mono Basin from Areas Where Mexican Approval and Promulgation of and Security Act, (2007); Area Population of the Fruit Fly or Sapote Fruit Fly Air Quality Implementation comments due by 6-23- Greater Sage-Grouse Exist; comments due by 6- Plans: 08; published 6-6-08 [FR (Centrocercus 26-08; published 6-12-08 E8-12739] urophasianus) as [FR E8-13226] Pennsylvania; comments Threatened or due by 6-26-08; published GENERAL SERVICES COMMERCE DEPARTMENT ADMINISTRATION Endangered; comments 5-27-08 [FR E8-11753] due by 6-27-08; published National Oceanic and Federal Acquisition Regulation: Virginia; comments due by 4-29-08 [FR E8-09185] Atmospheric Administration 6-26-08; published 5-27- FAR Case 2004038; Federal Initiation of Status Review Magnuson-Stevens Act 08 [FR E8-11733] Procurement Data System for the Greater Sage- Provisions; Limited Access Reporting; comments due Approval and Promulgation of Grouse (Centrocercus Privilege Programs: by 6-23-08; published 4- Implementation Plans: urophasianus) as 22-08 [FR E8-08447] Individual Fishing Quota; South Carolina; Interstate Threatened or Referenda Guidelines and Transport of Pollution; FAR Case 2005040, Endangered; comments Procedures for the New comments due by 6-23- Electronic Subcontracting due by 6-27-08; published England Fishery 08; published 5-22-08 [FR Reporting System; 4-29-08 [FR E8-09181] Management Council, et E8-11484] comments due by 6-23- Migratory Bird Hunting; al.; comments due by 6- Barium Metaborate 08; published 4-22-08 [FR Proposed 2008-09 Migratory 23-08; published 4-23-08 Registration Review; E8-08449] Game Bird Hunting [FR E8-08756] Antimicrobial Pesticide; HEALTH AND HUMAN Regulations, etc.; comments DEFENSE DEPARTMENT comments due by 6-24-08; SERVICES DEPARTMENT due by 6-27-08; published Defense Acquisition published 3-26-08 [FR E8- Centers for Medicare & 5-28-08 [FR E8-11583] 06182] Regulations System Medicaid Services INTERIOR DEPARTMENT Clean Air Act Approval and Defense Federal Acquisition Medicare Program: National Park Service Regulation Supplement; Promulgation of Air Quality Proposed Hospice Wage National Park System Units in Limitations on DoD Non- Implementation Plan Index for Fiscal Year Alaska; comments due by Commercial Time-and- Revision for North Dakota; 2009; comments due by 6-27-08; published 4-28-08 Materials Contracts; comments due by 6-26-08; published 5-27-08 [FR E8- 6-27-08; published 5-1-08 [FR E8-09184] comments due by 6-23-08; [FR 08-01198] published 4-23-08 [FR E8- 11476] JUSTICE DEPARTMENT 08697] Cyazofamid; Pesticide HOMELAND SECURITY Drug Enforcement Defense Federal Acquisition Tolerances; comments due DEPARTMENT Administration Regulation Supplement; by 6-23-08; published 4-23- Coast Guard Classification of Three Quality Assurance 08 [FR E8-08371] Regulated Navigation Area Steroids as Schedule III Authorization of Shipment of Environmental Statements; and Safety Zone, Chicago Anabolic Steroids; Supplies; comments due by Notice of Intent: Sanitary and Ship Canal, comments due by 6-24-08;

VerDate Aug 31 2005 20:02 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\17JNCU.LOC 17JNCU pwalker on PROD1PC71 with PROPOSALS5 iv Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Reader Aids

published 4-25-08 [FR E8- 6-23-08; published 5-22-08 300, and 767 300F Series session of Congress which 08842] [FR E8-11364] Airplanes; comments due have become Federal laws. It LABOR DEPARTMENT Prevailing Rate Systems: by 6-23-08; published 4- may be used in conjunction 23-08 [FR E8-08653] Labor-Management Change in Nonappropriated with ‘‘PLUS’’ (Public Laws Standards Office Fund Federal Wage Bombardier Model DHC 8 Update Service) on 202–741– System Survey Schedule 400, -401 and -402 6043. This list is also Labor Organization Annual from Fiscal Year to Airplanes; comments due available online at http:// Financial Reports; Calendar Year; comments by 6-23-08; published 5- www.archives.gov/federal- comments due by 6-26-08; due by 6-27-08; published 23-08 [FR E8-11566] register/laws.html. published 5-12-08 [FR E8- 5-28-08 [FR E8-11838] Dornier Model 328-100 10151] SECURITIES AND Airplanes; comments due LABOR DEPARTMENT The text of laws is not EXCHANGE COMMISSION by 6-23-08; published 5- published in the Federal Occupational Safety and Revisons to the Cross-Border 22-08 [FR E8-11469] Register but may be ordered Health Administration Tender Offer, Exchange Sikorsky Aircraft Corp. in ‘‘slip law’’ (individual Agency Information Collection Offer, and Business Model S-61A, D, E, L, N, pamphlet) form from the Activities; Proposals, Combination and Beneficial NM, R, and V; Croman Superintendent of Documents, Submissions, and Approvals; Ownership Reporting Rules Corp. Model SH-3H, U.S. Government Printing comments due by 6-23-08; for Certain Foreign Carson Helicopters, Inc. Office, Washington, DC 20402 published 4-24-08 [FR E8- Institution; comments due by Model S-61L; Glacier (phone, 202–512–1808). The 08879] 6-23-08; published 5-9-08 Helicopter Model CH-3; text will also be made NATIONAL AERONAUTICS [FR E8-10388] comments due by 6-23- available on the Internet from 08; published 4-22-08 [FR AND SPACE SOCIAL SECURITY GPO Access at http:// E8-08642] ADMINISTRATION ADMINISTRATION www.gpoaccess.gov/plaws/ Proposed Establishment of Federal Acquisition Regulation: Revised Medical Criteria for index.html. Some laws may Class E Airspace: Evaluating Malignant not yet be available. FAR Case 2004038; Federal Fort Collins, CO; comments Neoplastic Diseases; Procurement Data System due by 6-23-08; published comments due by 6-27-08; Reporting; comments due 5-8-08 [FR E8-10191] H.R. 1195/P.L. 110–244 by 6-23-08; published 4- published 4-28-08 [FR E8- TRANSPORTATION 22-08 [FR E8-08447] 09170] SAFETEA-LU Technical DEPARTMENT FAR Case 2005040, TRANSPORTATION Corrections Act of 2008 (June Federal Highway Electronic Subcontracting DEPARTMENT 6, 2008; 122 Stat. 1572) Administration Reporting System; Federal Aviation Highway Safety Improvement comments due by 6-23- Administration Last List June 4, 2008 Program; comments due by 08; published 4-22-08 [FR Airworthiness Directives: 6-23-08; published 4-24-08 E8-08449] Air Tractor, Inc. Models AT- [FR E8-08742] 300, et al.; comments due NATIONAL CREDIT UNION TREASURY DEPARTMENT ADMINISTRATION by 6-27-08; published 4- 28-08 [FR E8-09058] Financial Crimes Enforcement Public Laws Electronic Low-Income Definition; Network: Bell Helicopter Textron Notification Service comments due by 6-27-08; Proposed Amendments to Canada Model 222, 222B, (PENS) published 4-28-08 [FR E8- the Bank Secrecy Act 222U, 230, and 430 08968] Regulations; comments Helicopters; comments Official Advertising Statement; due by 6-23-08; published comments due by 6-27-08; due by 6-23-08; published 4-24-08 [FR E8-08955] PENS is a free electronic mail published 4-28-08 [FR E8- 4-23-08 [FR E8-08754] TREASURY DEPARTMENT notification service of newly 08967] Boeing Model 707 Airplanes, and Model 720 Alcohol and Tobacco Tax enacted public laws. To NUCLEAR REGULATORY and 720B Series and Trade Bureau subscribe, go to http:// COMMISSION Airplanes; comments due Establishment of the Snipes listserv.gsa.gov/archives/ Expansion of the National by 6-23-08; published 5-8- Mountain Viticultural Area publaws-l.html Source Tracking System; 08 [FR E8-10217] (2007R-300P); comments comments due by 6-25-08; Boeing Model 747-400 due by 6-27-08; published Note: This service is strictly published 4-11-08 [FR E8- Series Airplanes; 4-28-08 [FR E8-09172] for E-mail notification of new 07756] comments due by 6-23- laws. The text of laws is not PERSONNEL MANAGEMENT 08; published 4-22-08 [FR LIST OF PUBLIC LAWS available through this service. OFFICE E8-08531] PENS cannot respond to National Security Personnel Boeing Model 757 Airplanes This is a continuing list of specific inquiries sent to this System; comments due by and Model 767 200, 767 public bills from the current address.

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