7–8–08 Tuesday Vol. 73 No. 131 July 8, 2008

Pages 38883–39212

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Contents Federal Register Vol. 73, No. 131

Tuesday, July 8, 2008

Agriculture Department Education Department See Forest Service NOTICES NOTICES Final Priorities for RRTCs, 39000–39005 Hearings: Meetings: BioPreferred Voluntary Labeling Program, 38968–38969 Presidents Board of Advisors (Board), The White House Initiative on Tribal Colleges and Universities (WHI/ Architectural and Transportation Barriers Compliance TCU), 39005 Board National Institute on Disability and Rehabilitation Research: Disability and Rehabilitation Research Projects and NOTICES Centers Program; Rehabilitation Research and Meetings: Training Centers, 39005–39010 Architectural and Transportation Barriers Compliance Board, 38970 Employee Benefits Security Administration NOTICES Army Department Proposed Exemptions: NOTICES Employee Retirement Income Security Act of 1974; Environmental Impact Statements; Availability, etc.: Internal Revenue Code (1986), 39158–39180 Brigade Combat Team Transformation; Fort Irwin, CA, 38999 Employment and Training Administration Centers for Disease Control and Prevention NOTICES NOTICES Applications; Negative Determination: Board of Scientific Counselors: Springs Global, US, Inc., Asheville, NC, 39044 Nominations of Candidates, 39017 Determinations: Meetings: Welex, Inc., Blue Bell, PA, 39045–39046 National Center for Injury Prevention and Control Initial Investigations: Review Group, 39016–39017 Certifications of Eligibility to Apply for Worker Adjustment Assistance, etc., 39046–39047 Coast Guard Ferguson Aluminum; Termination, 39047 RULES Revised Determination on Reconsideration: Anchorage Regulations: B. Walter and Co., Wabash, IN, 39047–39048 Stonington Maine, Deer Island Thorofare, Penobscot Bay, Termination of Investigation: ME, 38922–38923 Bedford Logistics, Inc., Bedford, IN, 39048 Weymouth Fore River Weymouth, MA, 38924–38925 General Ribbon Corp., Chatsworth, CA, 39048 PROPOSED RULES NOVTEX Division of TRIMTEX Co., Inc., Adams, MS, Safety Zones: 39048 Central Massachusetts August Swim Events, 38951–38954 Plastech, Moraine, OH, 39048 Trans-Ocean Products, Inc., Salem, OR, 39048 Commerce Department See Economic Development Administration Energy Department See Industry and Security Bureau See Federal Energy Regulatory Commission See International Trade Administration See National Oceanic and Atmospheric Administration Environmental Protection Agency RULES Commission of Fine Arts Direct Final Approval of Revised Municipal Waste NOTICES Combustor State Plan for Designated Facilities and Meetings: Pollutants: Commission of Fine Arts, 38993 Indiana, 38925–38928 PROPOSED RULES Defense Department Direct Final Approval of Revised Municipal Waste See Army Department Combustor State Plan for Designated Facilities and See Navy Department Pollutants: NOTICES Indiana, 38954–38955 36(b)(1) Arms Sales Notification, 38993–38998 NOTICES Meetings: Agency Information Collection Activities; Proposals, Defense Business Board (DBB) Meeting, 38998–38999 Submissions, and Approvals, 39013–39014 Proposed Administrative Settlement, 39014–39015 Economic Development Administration Proposed Agreement Pursuant to Section 122(h)(1) of the NOTICES Comprehensive Environmental Response: Petitions by Firms for Determination of Eligibility to Apply Compensation, and Liability Act for the Wabash for Trade Adjustment Assistance, 38970–38971 Environmental Technologies Site, 39015

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Federal Aviation Administration Supplemental Notice of Designation of Commission Staff: RULES Energy Transfer Partners, L.P., et al., 39013 Airworthiness Directives: Airbus Model A330 Airplanes and Model A340 200 and Federal Highway Administration 300 Series Airplanes, 38895–38898 NOTICES APEX Aircraft Model CAP 10 B Airplanes, 38889–38891 Environmental Impact Statements; Availability, etc.: ATR Model ATR42 Airplanes and Model ATR72-101, Crow Wing and Mille Lacs Counties, MN, 39074 -102, -201, -202, 211, and 212 Airplanes, 38887– Rescinded Notices of Intent, 39074–39075 38889 Exploratory Advanced Research Program, 39075–39077 Boeing Model 737-100, -200, -200C, -300, -400, and -500 Final Federal Agency Actions On Proposed Highway; Ohio, Series Airplanes, 38905–38908 39077–39078 Boeing Model 737-300 and -400 Series Airplanes, 38885– 38887 Federal Reserve System Boeing Model 777-200, -200LR, 300, et. al, 38893–38895 NOTICES Dassault Model Falcon 2000 Airplanes, 38891–38893 Change in Bank Control Notices; Acquisition of Shares of Gulfstream Aerospace LP Model Astra SPX, 1125 Bank or Bank Holding Companies, 39016 Westwind Astra, and Gulfstream 100 Airplanes, 38898–38900 Fine Arts Commission Lockheed Model 1329 Series Airplanes, 38900–38905 See Commission of Fine Arts McDonnell Douglas Model DC-9-81 (MD-81), et al., 38883–38885 Fish and Wildlife Service PROPOSED RULES Airworthiness Directives: PROPOSED RULES Air Tractor, Inc. Models AT-402, AT-402A, and AT-402B Endangered and Threatened Wildlife and Plants: Airplanes, 38933–38935 Proposed Removal of the Concho Water Snake (Nerodia EADS SOCATA Model TBM 700 Airplanes, 38935–38937 paucimaculata) From the Federal List of Endangered Empresa Brasileira de Aeronautica S. A. (EMBRAER) and Threatened Wildlife, etc., 38956–38967 Models EMB 110P1 and EMB-110P2 Airplanes, NOTICES 38937–38940 Balmorhea State Park Management Plan Habitat NOTICES Conservation Plan: Interim Operating Authority Granted to Commercial Air Reeves County, TX, 39024–39025 Tour Operators: Incidental Take Permit Application for Construction and National Parks and Tribal Lands Within or Abutting Operation: National Parks, 39073–39074 Seven Meteorological Towers on Lanai, HI, 39025–39026 Safe Harbor Agreement for the Northern Spotted Owl for Federal Bureau of Investigation Fred M. van Eck Forest Foundation, Humboldt County, NOTICES CA, 39026–39027 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39041–39042 Food and Drug Administration NOTICES Federal Communications Commission Meetings: RULES Peripheral and Central Nervous System Drugs Advisory Telecommunications Relay Services and Speech-to-Speech Committee, 39017–39018 Services for Individuals with Hearing and Speech Disabilities, 38928–38931 Forest Service PROPOSED RULES NOTICES Facilitating the Provision of Fixed and Mobile Broadband Proposed Surface Management of Natural Gas Resource Access: Development: Educational and Other Advanced Services in the 2150- Correction, 38969–38970 2162 and 2500-2690 MHz Bands, 38955–38956 NOTICES Agency Information Collection Activities; Proposals, Health and Human Services Department Submissions, and Approvals, 39015–39016 See Centers for Disease Control and Prevention See Food and Drug Administration Federal Energy Regulatory Commission See Health Resources and Services Administration RULES See National Institutes of Health Preventing Undue Discrimination and Preference in Transmission Service, 39092–39156 Health Resources and Services Administration NOTICES NOTICES Applications: Agency Information Collection Activities; Proposals, Ameren/UE, 39010–39011 Submissions, and Approvals, 39018–39020 Transcontinental Gas Pipe Line Corp.; Amendment, 39011–39012 Homeland Security Department Complaints: See Coast Guard NRG Energy, Inc. v. Entergy Services, Inc., 39012 See U.S. Citizenship and Immigration Services Filings: NOTICES Southeastern Power Administration, 39012 Meetings: Meetings: Homeland Security Science and Technology Advisory Sacramento Municipal Utility District, 39013 Committee, 39022–39023

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Industry and Security Bureau Justice Programs Office RULES NOTICES Implementation of the Understandings Reached at the April Agency Information Collection Activities; Proposals, 2008 Australia Group Plenary Meeting: Submissions, and Approvals, 39042–39043 Additions to the List of States Parties to the Chemical Weapons Convention, 38908–38910 Labor Department NOTICES See Employee Benefits Security Administration Action Affecting Export Privileges: See Employment and Training Administration Reza Mohammed Tabib and Terri Tabib, 38971–38972 See Occupational Safety and Health Administration NOTICES Interior Department Meetings: See Fish and Wildlife Service Advisory Committee on Job Corps, 39043 See Land Management Bureau Research on Forced Labor in the Production of Goods in See Minerals Management Service Selected Countries, 39043–39044 See National Park Service See Surface Mining Reclamation and Enforcement Office Land Management Bureau NOTICES Internal Revenue Service Alaska Native Claims Selection, 39027 RULES Final Supplementary Rules on Public Land in Humboldt, Change to Office to which Notices of Nonjudicial Sale Pershing and Washoe Counties, NV, 39027–39031 Requests for Return of Wrongfully Levied Property Proposed Reinstatement of Terminated Oil and Gas Leases: must be sent, 38915–38917 Wyoming, 39031 Elections Regarding Start-up Expenditures, Corporation Realty Actions: Organizational Expenditures and Partnership Recreation and Public Purposes Act Classification of Organizational Expenses, 38910–38915 Public Lands in Carbon County, WY, 39031–39032 PROPOSED RULES Elections Regarding Start-up Expenditures, Corporation Minerals Management Service Organizational Expenditures and Partnership NOTICES Organizational Expenses, 38940–38941 Outer Continental Shelf: NOTICES Oil and Gas Leasing Program for 2007-2012, 39032–39035 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39089–39090 National Highway Traffic Safety Administration NOTICES International Trade Administration Guidance and Recommended Best Importer Practices to NOTICES Enhance the Safety of Imported Motor Vehicles, etc., Antidumping Duty Administrative Review; Preliminary 39078–39088 Results, etc.: Stainless Steel Butt-Weld Pipe Fittings from Taiwan, National Institutes of Health 38972–38979 NOTICES Antidumping Duty New Shipper Reviews: Meetings: Fresh Garlic from the People’s Republic of China, 38979– Board of Regents of the National Library of Medicine, 38981 39020–39021 Consolidated Decision on Applications for Duty-Free Entry Board of Scientific Counselors, Lister Hill National of Scientific Instruments: Center for Biomedical Communications, 39021 University of Colorado, et al., 38981 Board of Scientific Counselors, National Center for Countervailing Duty Determinations: Biotechnology Information, 39021–39022 Sodium Nitrite From the People’s Republic of China, National Cancer Institute, 39022 38981–38984 National Institute on Alcohol Abuse and Alcoholism Determination of Sales at Less Than Fair Value: Special Emphasis Panel, 39022 Sodium Nitrite from the People’s Republic of China, 38984–38986 National Oceanic and Atmospheric Administration Final Determination of Sales at Less Than Fair Value: RULES Sodium Nitrite from the Federal Republic of Germany, Fisheries of the Exclusive Economic Zone Off Alaska: 38986–38987 Pacific Ocean Perch for Catcher Processors Participating in the Rockfish Limited Access fishery in the Central International Trade Commission Regulatory Area of the Gulf of Alaska, 38931 NOTICES Pacific Ocean Perch in the Western Regulatory Area of Investigations: the Gulf of Alaska, 38931–38932 Ferrovanadium from China and South Africa, 39040– NOTICES 39041 Application for Exempted Fishing Permits: Steel Nails from the United Arab Emirates, 39041 General Provisions for Domestic Fisheries, 38987–38988 Meetings; Sunshine Act, 39041 Meetings: Federal Consistency Appeal by Foothill/Eastern Justice Department Transportation Corridor Agency, 38988–38989 See Federal Bureau of Investigation Hydrographic Services Review Panel, 38989–38990 See Justice Programs Office Taking and Importing Marine Mammals: See Parole Commission Beaufort Sea, Alaska, 38990–38991

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Taking of Marine Mammals Incidental to Specified Indiana, 39068 Activities: Iowa, 39069 Navy Training Operations, Cherry Point Range Complex, Minnesota, 39069–39070 38991–38993 Missouri, 39070 Nebraska, 39070 National Park Service West Virginia, 39072 PROPOSED RULES Wisconsin, 39071 Negotiated Rulemaking Advisory Committee for Off-Road Grant Waivers: Vehicle Management: Nonmanufacturer Rule for Televisions, 39071–39072 Cape Hatteras National Seashore, 38954 Hearing: NOTICES Region VII Regulatory Fairness Board, 39072 Drafting of U.S. Nominations to the World Heritage List, 39036–39039 Surface Mining Reclamation and Enforcement Office Federal Land Managers Air Quality Related Values Work RULES Group, 39039 Pennsylvania Regulatory Program, 38918–38920 National Register of Historic Places; Notification of Pending PROPOSED RULES Nominations and Related Actions, 39039–39040 West Virginia Regulatory Program, 38941–38951

Navy Department Transportation Department RULES See Federal Aviation Administration Certifications and Exemptions under the International See Federal Highway Administration Regulations Preventing Collisions at Sea (1972), 38921– See National Highway Traffic Safety Administration 38922 NOTICES NOTICES Senior Executive Service Performance Review Boards Availability of Finding, 39000 Membership, 39072–39073

Nuclear Regulatory Commission Treasury Department NOTICES See Internal Revenue Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 39052 Meetings: Applications and Amendments to Facility Operating Advisory Committee on the Auditing Profession, 39088– Licenses Regarding Safeguards and Hazards, etc., 39089 39052–39059 Environmental Assessment and Finding of No Significant U.S. Citizenship and Immigration Services Impact: NOTICES Delta Lighting Corp., Stamford, CT, 39059–39061 Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 39061–39062 Submissions, and Approvals, 39023–39024

Occupational Safety and Health Administration NOTICES Separate Parts In This Issue Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39049–39051 Part II Energy Department, Federal Energy Regulatory Parole Commission Commission, 39092–39156 NOTICES Record of Vote of Meeting Closure, 39043 Part III Labor Department, Employee Benefits Security Securities and Exchange Commission Administration, 39158–39180 PROPOSED RULES Exemption of Certain Foreign Brokers or Dealers, 39182– Part IV 39212 Securities and Exchange Commission, 39182–39212 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39062–39063 Reader Aids Self-Regulatory Organizations; Proposed Rule Changes: Depository Trust Co., 39064–39065 Consult the Reader Aids section at the end of this issue for NYSE Arca, Inc., 39065–39066 phone numbers, online resources, finding aids, reminders, The Depository Trust Co., 39067–39068 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Small Business Administration LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Disaster Declarations: archives, FEDREGTOC-L, Join or leave the list (or change Illinois, 39068–39069 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.

14 CFR 39 (10 documents) ...... 38883, 38885, 38887, 38889, 38891, 38893, 38895, 38898, 38900, 38905 Proposed Rules: 39 (3 documents) ...... 38933, 38935, 38937 15 CFR 745...... 38908 774...... 38908 17 CFR Proposed Rules: 240...... 39182 18 CFR 37...... 39092 26 CFR 1...... 38910 301...... 38915 Proposed Rules: 1...... 38940 30 CFR 938...... 38918 Proposed Rules: 948...... 38941 32 CFR 706...... 38921 33 CFR 110 (2 documents) ...... 38922, 38924 Proposed Rules: 165...... 38951 36 CFR Proposed Rules: 7...... 38954 40 CFR 62...... 38925 Proposed Rules: 62...... 38954 47 CFR 64...... 38928 Proposed Rules: 27...... 38955 50 CFR 679 (2 documents) ...... 38931 Proposed Rules: 17...... 38956

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Rules and Regulations Federal Register Vol. 73, No. 131

Tuesday, July 8, 2008

This section of the FEDERAL REGISTER Management, Dept. C1–L5A (D800– consider the size of the fleet and the contains regulatory documents having general 0024). availability of parts when we applicability and legal effect, most of which determined the compliance period. Examining the AD Docket are keyed to and codified in the Code of American Airlines finds that a longer Federal Regulations, which is published under You may examine the AD docket on 50 titles pursuant to 44 U.S.C. 1510. compliance time can be justified by the Internet at http:// applying statistically based risk analysis The Code of Federal Regulations is sold by www.regulations.gov; or in person at the methods and accounting for the effect of the Superintendent of Documents. Prices of Docket Management Facility between 9 flight cycles. a.m. and 5 p.m., Monday through new books are listed in the first FEDERAL We do not agree to extend the REGISTER issue of each week. Friday, except Federal holidays. The AD compliance time. We have no data or docket contains this AD, the regulatory analysis to support such an extension of evaluation, any comments received, and the compliance period. For airplanes DEPARTMENT OF TRANSPORTATION other information. The address for the that have accumulated more than 20,000 Docket Office (telephone 800–647–5527) total flight cycles, the extent of damage Federal Aviation Administration is the Document Management Facility, already accumulated on the affected U.S. Department of Transportation, fuselage frames cannot be 14 CFR Part 39 Docket Operations, M–30, West predetermined, so accounting for Building Ground Floor, Room W12–140, subsequent flight cycles will provide no [Docket No. FAA–2007–29335; Directorate 1200 New Jersey Avenue, SE., Identifier 2007–NM–045–AD; Amendment benefit. The 24-month compliance Washington, DC 20590. 39–15592; AD 2008–13–29] period is considered appropriate in light FOR FURTHER INFORMATION CONTACT: of the characteristics of crack growth, RIN 2120–AA64 Roger Durbin, Aerospace Engineer, the probability of crack initiation, and Airframe Branch, ANM–120L, FAA, Los the ability of operators to integrate the Airworthiness Directives; McDonnell Angeles Aircraft Certification Office, required actions into established Douglas Model DC–9–81 (MD–81), DC– 3960 Paramount Boulevard, Lakewood, maintenance practices. Currently there 9–82 (MD–82), DC–9–83 (MD–83), DC– California 90712–4137; telephone (562) are insufficient statistical or other data 9–87 (MD–87), and MD–88 Airplanes 627–5233; fax (562) 627–5210. to justify a compliance period beyond SUPPLEMENTARY INFORMATION: AGENCY: Federal Aviation the proposed 24 months. However, Administration (FAA), DOT. Discussion paragraph (h) of this final rule provides operators the opportunity to request an ACTION: Final rule. We issued a notice of proposed extension of the compliance time if data SUMMARY: We are adopting a new rulemaking (NPRM) to amend 14 CFR are presented to justify such an airworthiness directive (AD) for all part 39 to include an airworthiness extension. We have not changed the McDonnell Douglas Model DC–9–81 directive (AD) that would apply to all final rule regarding this issue. (MD–81), DC–9–82 (MD–82), DC–9–83 McDonnell Douglas Model DC–9–81 (MD–81), DC–9–82 (MD–82), DC–9–83 Request To Delay Issuance of AD (MD–83), DC–9–87 (MD–87), and MD– Pending Parts Availability 88 airplanes. This AD requires repetitive (MD–83), DC–9–87 (MD–87), and MD– 88 airplanes. That NPRM was published inspections for cracking of the overwing ATA, on behalf of its member in the Federal Register on September frames from stations 845 to 905 (MD–87 American Airlines, notes that the rate of 28, 2007 (72 FR 55111). That NPRM stations 731 to 791), left and right sides, cracking noted in early inspections proposed to require repetitive and corrective actions if necessary. This suggests that the supply of available inspections for cracking of the overwing AD results from reports of cracked spare parts is insufficient to support frames from stations 845 to 905 (MD–87 overwing frames. We are issuing this AD completion of the proposed actions stations 731 to 791), left and right sides, to detect and correct such cracking, within the 24-month compliance period. and corrective actions if necessary. which could sever the frame, increase Delta Air Lines also expresses concern the loading of adjacent frames, and Comments over the availability of spare frames and result in damage to adjacent structure We gave the public the opportunity to reports that all its repairs done to date and loss of overall structural integrity of participate in developing this AD. We have been done by frame replacement the airplane. considered the comments received. with a like part. DATES: This AD is effective August 12, We infer that the commenters request 2008. Request To Extend Compliance Time that we wait to issue the final rule until The Director of the Federal Register Air Transport Association (ATA), on sufficient parts are available. We approved the incorporation by reference behalf of its member American Airlines, disagree with the need to delay the final of a certain publication listed in this AD states that a 24-month compliance rule. Boeing has arranged to have as of August 12, 2008. period for the initial inspections would additional frames manufactured as ADDRESSES: For service information be overly burdensome. The commenters demand builds during the 24-month identified in this AD, contact Boeing request that we extend the compliance compliance period. Boeing expects a Commercial Airplanes, Long Beach time to 48 months so operators can sufficient supply to be available to Division, 3855 Lakewood Boulevard, integrate the required actions with support the AD requirements. We are Long Beach, California 90846, planned heavy maintenance visits. The proceeding with issuance of the final Attention: Data and Service commenters add that we did not rule as proposed.

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Request To Revise Cost Estimate estimate provided in the NPRM. We do public interest require adopting the AD ATA, on behalf of its member Delta not agree. The cost information as proposed. provided in AD actions describes only Air Lines, notes that the estimated work Interim Action hours to do the required actions assume the direct costs of the specific that access to the overwing frames is requirements. Based on the best data We consider this AD interim action. available during a scheduled available, the manufacturer provided The manufacturer is currently maintenance visit. The commenters the number of work hours to do the developing a modification that will required actions for this AD. We assert that the 4-hour labor estimate address the unsafe condition identified recognize that, in doing the actions applies only when the inspection can be in this AD. Once this modification is required by an AD, operators might done during a scheduled heavy developed, approved, and available, we incur incidental costs, such as the time maintenance visit, when the airplane is may consider additional rulemaking. already opened up. Delta states that, in necessary for access and close, in reality, up to 67 percent of its fleet will addition to the direct costs. These Costs of Compliance not be due for the heavy maintenance incidental costs can vary significantly visit during the proposed compliance among operators. We have not changed There are about 1,189 airplanes of the time. That portion of the fleet will the final rule regarding this issue. affected design in the worldwide fleet. The following table provides the require special-schedule inspection Conclusion visits, and add at least 16 work hours to estimated costs for U.S. operators to gain access to the inspection areas. We reviewed the relevant data, comply with this AD. We infer that the commenters are considered the comments received, and requesting that we revise the cost determined that air safety and the

ESTIMATED COSTS

Number of Average labor Cost per U.S.- Work hours rate per hour Parts airplane registered Fleet cost airplanes

4 ...... $80 None ...... $320, per inspection cycle ...... 670 $214,400, per inspection cycle.

Authority for This Rulemaking (1) Is not a ‘‘significant regulatory FAA–2007–29335; Directorate Identifier 2007–NM–045–AD. Title 49 of the United States Code action’’ under Executive Order 12866, specifies the FAA’s authority to issue (2) Is not a ‘‘significant rule’’ under Effective Date rules on aviation safety. Subtitle I, DOT Regulatory Policies and Procedures (a) This airworthiness directive (AD) is section 106, describes the authority of (44 FR 11034, February 26, 1979), and effective August 12, 2008. (3) Will not have a significant the FAA Administrator. ‘‘Subtitle VII: Affected ADs Aviation Programs’’ describes in more economic impact, positive or negative, (b) None. detail the scope of the Agency’s on a substantial number of small entities authority. under the criteria of the Regulatory Applicability We are issuing this rulemaking under Flexibility Act. (c) This AD applies to all McDonnell the authority described in ‘‘Subtitle VII, You can find our regulatory Douglas Model DC–9–81 (MD–81), DC–9–82 Part A, Subpart III, Section 44701: evaluation and the estimated costs of (MD–82), DC–9–83 (MD–83), DC–9–87 (MD– General requirements.’’ Under that compliance in the AD Docket. 87), and MD–88 airplanes, certificated in any category. section, Congress charges the FAA with List of Subjects in 14 CFR Part 39 promoting safe flight of civil aircraft in Unsafe Condition air commerce by prescribing regulations Air transportation, Aircraft, Aviation safety, Incorporation by reference, (d) This AD results from reports of cracked for practices, methods, and procedures overwing frames. We are issuing this AD to the Administrator finds necessary for Safety. detect and correct such cracking, which safety in air commerce. This regulation Adoption of the Amendment could sever the frame, increase the loading of is within the scope of that authority adjacent frames, and result in damage to because it addresses an unsafe condition I Accordingly, under the authority adjacent structure and loss of overall that is likely to exist or develop on delegated to me by the Administrator, structural integrity of the airplane. products identified in this rulemaking the FAA amends 14 CFR part 39 as Compliance action. follows: (e) You are responsible for having the Regulatory Findings PART 39—AIRWORTHINESS actions required by this AD performed within the compliance times specified, unless the This AD will not have federalism DIRECTIVES actions have already been done. implications under Executive Order I 1. The authority citation for part 39 Inspections 13132. This AD will not have a continues to read as follows: substantial direct effect on the States, on (f) Before the accumulation of 20,000 total the relationship between the national Authority: 49 U.S.C. 106(g), 40113, 44701. flight cycles, or within 24 months after the effective date of this AD, whichever occurs government and the States, or on the § 39.13 [Amended] later: Do general visual and high frequency distribution of power and I 2. The FAA amends § 39.13 by adding eddy current inspections, and all applicable responsibilities among the various corrective actions, in accordance with the levels of government. the following new AD: Accomplishment Instructions of Boeing Alert For the reasons discussed above, I 2008–13–29 McDonnell Douglas: Service Bulletin MD80–53A301, Revision 1, certify that this AD: Amendment 39–15592. Docket No. dated May 25, 2007. Do the applicable

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corrective actions before further flight after Issued in Renton, Washington, on June 8, U.S. Department of Transportation, accomplishing the inspections. Repeat the 2008. Docket Operations, M–30, West inspections thereafter at applicable intervals Michael Kaszycki, Building Ground Floor, Room W12–140, not to exceed those specified in paragraph Acting Manager, Transport Airplane 1200 New Jersey Avenue, SE., 1.E., ‘‘Compliance,’’ of the service bulletin. Directorate, Aircraft Certification Service. Washington, DC 20590. Actions According to Previous Issue of [FR Doc. E8–14472 Filed 7–7–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: Service Bulletin BILLING CODE 4910–13–P Wayne Lockett, Aerospace Engineer, (g) Inspections and related investigative Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, and corrective actions are also acceptable for DEPARTMENT OF TRANSPORTATION compliance with the requirements of 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone paragraph (f) of this AD if done before the Federal Aviation Administration effective date of this AD in accordance with (425) 917–6447; fax (425) 917–6590. SUPPLEMENTARY INFORMATION: Boeing Alert Service Bulletin MD80–53A301, 14 CFR Part 39 dated January 9, 2007. Discussion [Docket No. FAA–2007–0395; Directorate Alternative Methods of Compliance Identifier 2007–NM–157–AD; Amendment We issued a notice of proposed (AMOCs) 39–15588; AD 2008–13–25] rulemaking (NPRM) to amend 14 CFR (h)(1) The Manager, Los Angeles Aircraft part 39 to include an airworthiness Certification Office (ACO), FAA, has the RIN 2120–AA64 directive (AD) that would apply to authority to approve AMOCs for this AD, if Airworthiness Directives; Boeing certain Boeing Model 737–300 and –400 requested in accordance with the procedures Model 737–300 and –400 Series series airplanes. That NPRM was found in 14 CFR 39.19. Airplanes published in the Federal Register on (2) To request a different method of January 10, 2008 (73 FR 1846). That compliance or a different compliance time AGENCY: Federal Aviation NPRM proposed to require testing and for this AD, follow the procedures in 14 CFR Administration (FAA), DOT. inspecting a certain web panel of the 39.19. Before using any approved AMOC on ACTION: Final rule. main wheel well pressure deck to any airplane to which the AMOC applies, determine the material type and notify your appropriate principal inspector SUMMARY: We are adopting a new thickness; and related investigative and (PI) in the FAA Flight Standards District airworthiness directive (AD) for certain corrective actions if necessary. Office (FSDO), or lacking a PI, your local Boeing Model 737–300 and –400 series Comments FSDO. airplanes. This AD requires testing and (3) An AMOC that provides an acceptable inspecting a certain web panel of the We gave the public the opportunity to level of safety may be used for any repair main wheel well pressure deck to participate in developing this AD. We required by this AD, if it is approved by an determine the material type and considered the comments received. Authorized Representative for the Boeing thickness; and related investigative and Commercial Airplanes Delegation Option Request To Change the Description of corrective actions if necessary. This AD Authorization Organization who has been the Unsafe Condition results from several reports indicating authorized by the Manager, Los Angeles Boeing asks that the unsafe condition ACO, to make those findings. For a repair that cracks ranging from 0.8 to 8.0 inches long were found on a certain web (end level effect) specified in the method to be approved, the repair must meet applicable sections of the NPRM be the certification basis of the airplane and 14 panel of the main wheel well pressure deck. We are issuing this AD to prevent changed from ‘‘rapid decompression’’ to CFR 25.571, Amendment 45, and the ‘‘controlled decompression.’’ Boeing approval must specifically refer to this AD. fatigue cracking in the web panel of the main wheel well pressure deck, which states that the most probable result of Material Incorporated by Reference could result in venting and consequent the cracking would be pressure loss or (i) You must use Boeing Alert Service decompression of the airplane. controlled depressurization. Boeing has received reports of cracks ranging from Bulletin MD80–53A301, Revision 1, dated DATES: This AD is effective August 12, 4.5 to 8 inches in the web panel of the May 25, 2007, to do the actions required by 2008. this AD, unless the AD specifies otherwise. main wheel well pressure deck; the The Director of the Federal Register reports included the following data: (1) The Director of the Federal Register approved the incorporation by reference • approved the incorporation by reference of Cabin crews reported a loud hissing of a certain publication listed in this AD noise coming from the area below seats this service information under 5 U.S.C. as of August 12, 2008. 552(a) and 1 CFR part 51. 14A, B, and C. No depressurization was ADDRESSES: For service information reported. (2) For service information identified in • this AD, contact Boeing Commercial identified in this AD, contact Boeing The crew reported a loud hissing Airplanes, Long Beach Division, 3855 Commercial Airplanes, P.O. Box 3707, noise from the cabin lining on the left- Lakewood Boulevard, Long Beach, California Seattle, Washington 98124–2207. hand side at row 15. The cabin windows 90846, Attention: Data and Service Examining the AD Docket along the left-hand side progressively Management, Dept. C1–L5A (D800–0024). frosted up until, after about 2 hours, all (3) You may review copies of the service You may examine the AD docket on the windows were frosted up between information incorporated by reference at the the Internet at http:// rows 11 through 17. FAA, Transport Airplane Directorate, 1601 www.regulations.gov; or in person at the • It was reported that it was not Lind Avenue, SW., Renton, Washington; or at Docket Management Facility between 9 possible to pressurize another airplane. the National Archives and Records a.m. and 5 p.m., Monday through We partially agree with Boeing. We Administration (NARA). For information on Friday, except Federal holidays. The AD agree to change the end level effect of the availability of this material at NARA, call docket contains this AD, the regulatory the unsafe condition by removing the 202–741–6030, or go to: http:// evaluation, any comments received, and word ‘‘rapid,’’ since Boeing has www.archives.gov/federal_register/ other information. The address for the provided data verifying that the code_of_federal_regulations/ Docket Office (telephone 800–647–5527) decompression does not happen ibr_locations.html. is the Document Management Facility, quickly. However, we do not agree that

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the decompression is ‘‘controlled’’ related investigative and corrective Costs of Compliance because of the safety implications and actions are defined in the service consequences associated with cracking information section of the NPRM; There are about 31 airplanes of the on a web panel of the main wheel well therefore, no change is necessary in this affected design in the worldwide fleet. pressure deck. We have changed the regard. This AD affects 1 airplane of U.S. applicable sections in this AD registry. The required tests and accordingly. Request To Clarify That Additional inspections take about 3 work hours per Action Is Necessary airplane, at an average labor rate of $80 Request To Clarify Certain Compliance per work hour. Based on these figures, Times Boeing also asks that we change the estimated cost of the AD for this Boeing asks that we clarify the paragraph (e) of the NPRM to clarify that U.S. operator is $240. additional action is necessary for different compliance times for replacing Authority for This Rulemaking discrepant web panels, depending on operators that inspected web panels the thickness, as specified in Table 1 of using instructions that were contained Title 49 of the United States Code Part 1.E., Compliance, of Boeing Special in Boeing Communication messages that specifies the FAA’s authority to issue Attention Service Bulletin 737–57– were sent out on January 17, 2006, prior rules on aviation safety. Subtitle I, 1289, dated June 13, 2007. (The service to the release of the referenced service section 106, describes the authority of bulletin was referenced in the NPRM as bulletin. Boeing states that the messages the FAA Administrator. ‘‘Subtitle VII: the appropriate source of service were sent to airlines that were operating Aviation Programs,’’ describes in more information for accomplishing the airplanes that could have a discrepant detail the scope of the Agency’s specified actions.) Boeing states that, as web panel. Boeing adds that following authority. release of those messages, as part of the written, paragraphs (g)(1) and (g)(2) of We are issuing this rulemaking under the NPRM would allow 30 months or information being developed for release the authority described in ‘‘Subtitle VII, 6,000 flight cycles, whichever is later, to in the referenced service bulletin, it was Part A, Subpart III, Section 44701: replace discrepant web panels. Boeing determined that additional details were General requirements.’’ Under that notes that this is acceptable for necessary to accurately define the section, Congress charges the FAA with discrepant web panels with a material instructions to inspect for discrepant promoting safe flight of civil aircraft in thickness that is found to be greater than web panels. Boeing notes that the air commerce by prescribing regulations or equal to 0.037 inch, and less than additional details, which affect both the for practices, methods, and procedures 0.047 inch; however, for web panels chemical spot test and the ultrasonic the Administrator finds necessary for with a material thickness of less than thickness inspections, have been safety in air commerce. This regulation 0.037 inch the specified compliance included in the service bulletin is within the scope of that authority time is before further flight. Boeing adds referenced in the NPRM as the source of because it addresses an unsafe condition that web panels with a material service information for doing the that is likely to exist or develop on thickness of less than 0.037 inch do not specified actions; therefore, inspections products identified in this rulemaking meet the ultimate regulatory load accomplished without these additional action. requirements. Boeing also asks that the steps could result in incorrect related investigative and corrective identification of discrepant web panels. Regulatory Findings actions be clarified. Boeing also suggests that this language This AD will not have federalism We agree with Boeing that some be added to paragraph (e) of the AD. clarification is necessary. Paragraph implications under Executive Order We acknowledge Boeing’s concerns; (g)(1) of the AD requires accomplishing 13132. This AD will not have a all applicable related investigative and however, paragraph 1.E, ‘‘Compliance,’’ substantial direct effect on the States, on corrective actions before further flight of the referenced service bulletin the relationship between the national (which includes replacing any specifies that the inspection instructions government and the States, or on the discrepant web panels) by doing all the contained in the subject Boeing distribution of power and actions specified in the messages sent out on January 17, 2006, responsibilities among the various Accomplishment Instructions of the did not include certain steps. That levels of government. service bulletin. The Accomplishment section specifies that the chemical spot For the reasons discussed above, I Instructions do not clearly identify web test and ultrasonic thickness inspections certify that this AD: must be done again by following the panels with a material thickness of less (1) Is not a ‘‘significant regulatory than 0.037 inch; however, the web procedures in the referenced service bulletin. In addition, paragraph (e) of action’’ under Executive Order 12866, panels are clearly identified in (2) Is not a ‘‘significant rule’’ under paragraph 1.E. of the service bulletin. this AD states that if the actions required by this AD have been done DOT Regulatory Policies and Procedures Paragraph 1.E. specifies replacing web (44 FR 11034, February 26, 1979), and panels with a material thickness of less previously, they do not need to be done than 0.037 inch, as specified in again. Therefore, we have made no (3) Will not have a significant paragraph 3.B.7. of the Accomplishment change to the AD in this regard. economic impact, positive or negative, on a substantial number of small entities Instructions of the service bulletin. Conclusion Therefore, we have clarified paragraph under the criteria of the Regulatory (g)(1) of this AD to add that the We reviewed the relevant data, Flexibility Act. corrective actions include replacing any considered the comments received, and You can find our regulatory web panel with a material thickness of determined that air safety and the evaluation and the estimated costs of less than 0.037 inch before further public interest require adopting the AD compliance in the AD Docket. flight. We have also changed paragraph with the changes described previously. List of Subjects in 14 CFR Part 39 (g)(2) of this AD to clarify that the We also determined that these changes compliance time in that paragraph is will not increase the economic burden Air transportation, Aircraft, Aviation separate from the compliance time on any operator or increase the scope of safety, Incorporation by reference, specified in paragraph (g)(1). The the AD. Safety.

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Adoption of the Amendment (including detailed and general visual (3) You may review copies of the service inspections) before further flight, by doing all information incorporated by reference at the I Accordingly, under the authority the actions specified in the Accomplishment FAA, Transport Airplane Directorate, 1601 delegated to me by the Administrator, Instructions of the service bulletin. Repeat Lind Avenue, SW., Renton, Washington; or at the FAA amends 14 CFR part 39 as the inspections thereafter at intervals not to the National Archives and Records follows: exceed 1,000 flight cycles until the actions Administration (NARA). For information on required by paragraph (g)(2) of this AD have the availability of this material at NARA, call PART 39—AIRWORTHINESS been done. For any web panel with a material 202–741–6030, or go to: http:// DIRECTIVES thickness of less than 0.037 inch, replace the www.archives.gov/federal_register/ web panel before further flight, in accordance code_of_federal_regulations/ I 1. The authority citation for part 39 with paragraph 3.B.7. of the Accomplishment ibr_locations.html. continues to read as follows: Instructions of the service bulletin. Doing this replacement ends the repetitive Issued in Renton, Washington, on June 10, Authority: 49 U.S.C. 106(g), 40113, 44701. inspections required by this paragraph. 2008. (2) Except as required by paragraph (g)(1) Ali Bahrami, § 39.13 [Amended] of this AD: Within 30 months or 6,000 flight Manager, Transport Airplane Directorate, I 2. The FAA amends § 39.13 by adding cycles after accomplishing the actions Aircraft Certification Service. the following new AD: required by paragraph (g)(1) of this AD, [FR Doc. E8–14475 Filed 7–7–08; 8:45 am] whichever is later, replace the web panel in 2008–13–25 Boeing: Amendment 39–15588. accordance with the Accomplishment BILLING CODE 4910–13–P Docket No. FAA–2007–0395; Directorate Instructions of the service bulletin. Doing Identifier 2007–NM–157–AD. this replacement ends the repetitive DEPARTMENT OF TRANSPORTATION Effective Date inspections required by paragraph (g)(1) of this AD. (a) This airworthiness directive (AD) is Federal Aviation Administration effective August 12, 2008. Corrective Actions Affected ADs (h) If any crack or corrosion is found 14 CFR Part 39 during any inspection required by paragraph (b) None. (g)(1) of this AD, and Boeing Special [Docket No. FAA–2008–0409; Directorate Identifier 2007–NM–265–AD; Amendment Applicability Attention Service Bulletin 737–57–1289, dated June 13, 2007, specifies to contact 39–15587; AD 2008–13–24] (c) This AD applies to Boeing Model 737– Boeing for repair instructions: Before further RIN 2120–AA64 300 and –400 series airplanes, certificated in flight, repair according to a method approved any category; as identified in Boeing Special in accordance with the procedures specified Airworthiness Directives; ATR Model Attention Service Bulletin 737–57–1289, in paragraph (i) of this AD. dated June 13, 2007. ATR42 Airplanes and Model ATR72– Alternative Methods of Compliance 101, –102, –201, –202, –211, and –212 Unsafe Condition (AMOCs) Airplanes (d) This AD results from several reports (i)(1) The Manager, Seattle Aircraft indicating that cracks ranging from 0.8 to 8.0 Certification Office (ACO), has the authority AGENCY: Federal Aviation inches long were found on a certain web to approve AMOCs for this AD, if requested Administration (FAA), Department of panel of the main wheel well pressure deck. in accordance with the procedures found in Transportation (DOT). We are issuing this AD to prevent fatigue 14 CFR 39.19. ACTION: Final rule. cracking in the web panel of the main wheel (2) To request a different method of well pressure deck, which could result in compliance or a different compliance time SUMMARY: venting and consequent decompression of We are adopting a new for this AD, follow the procedures in 14 CFR airworthiness directive (AD) for the the airplane. 39.19. Before using any approved AMOC on products listed above. This AD results Compliance any airplane to which the AMOC applies, notify your appropriate principal inspector from mandatory continuing (e) You are responsible for having the (PI) in the FAA Flight Standards District airworthiness information (MCAI) actions required by this AD performed within Office (FSDO), or lacking a PI, your local originated by an aviation authority of the compliance times specified, unless the FSDO. another country to identify and correct actions have already been done. (3) An AMOC that provides an acceptable an unsafe condition on an aviation Testing/Inspecting/Investigative and level of safety may be used for any repair product. The MCAI describes the unsafe Corrective Actions required by this AD, if it is approved by an condition as: Authorized Representative for the Boeing (f) Within 6 months after the effective date Commercial Airplanes Delegation Option It has been found on in-service aircraft that of this AD: Do a test of the web panel of the Authorization Organization who has been some aileron tab bellcrank assemblies were main wheel well pressure deck to determine authorized by the Manager, Seattle ACO, to not in accordance with the definition the material type, and do an ultrasonic make those findings. For a repair method to drawings. inspection to determine material thickness, be approved, the repair must meet the The main item concerned is the retainer by doing all the applicable actions specified certification basis of the airplane, and the Part Number S2711004620000, which has in the Accomplishment Instructions of approval must specifically refer to this AD. been manufactured with a hole larger than it Boeing Special Attention Service Bulletin should be, or redrilled out of limits. 737–57–1289, dated June 13, 2007. Material Incorporated by Reference The function of the retainer is to maintain (g) For airplanes on which the web (j) You must use Boeing Special Attention the spacer in position in case of rupture or thickness or material is found to be Service Bulletin 737–57–1289, dated June 13, loss of the bolt which links the tab control discrepant during the test and inspection 2007, to do the actions required by this AD, rod to the bellcrank assembly. If the diameter required by paragraph (f) of this AD, unless the AD specifies otherwise. of the retainer hole is out of limit, the accomplish the applicable actions specified (1) The Director of the Federal Register retainer function is lost and fail-safe in paragraphs (g)(1) and (g)(2) of this AD at approved the incorporation by reference of installation is no longer ensured. This the time specified, in accordance with Boeing this service information under 5 U.S.C. condition, if not corrected, could lead to loss Special Attention Service Bulletin 737–57– 552(a) and 1 CFR part 51. of the aileron tab bellcrank functionality, 1289, dated June 13, 2007. (2) For service information identified in resulting in diminished control of the (1) Except as provided by paragraph (h) of this AD, contact Boeing Commercial aircraft. this AD: Do all applicable related Airplanes, P.O. Box 3707, Seattle, investigative and corrective actions Washington 98124–2207. * * * * *

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We are issuing this AD to require Comments Regulatory Findings actions to correct the unsafe condition We determined that this AD will not on these products. We gave the public the opportunity to participate in developing this AD. We have federalism implications under DATES: This AD becomes effective received no comments on the NPRM or Executive Order 13132. This AD will August 12, 2008. on the determination of the cost to the not have a substantial direct effect on The Director of the Federal Register public. the States, on the relationship between approved the incorporation by reference the national government and the States, of certain publications listed in this AD Conclusion or on the distribution of power and as of August 12, 2008. We reviewed the available data and responsibilities among the various ADDRESSES: You may examine the AD determined that air safety and the levels of government. docket on the Internet at http:// public interest require adopting the AD For the reasons discussed above, I www.regulations.gov or in person at the as proposed. certify this AD: U.S. Department of Transportation, Docket Operations, M–30, West Differences Between This AD and the 1. Is not a ‘‘significant regulatory Building Ground Floor, Room W12–140, MCAI or Service Information action’’ under Executive Order 12866; 1200 New Jersey Avenue, SE., 2. Is not a ‘‘significant rule’’ under the Washington, DC. We have reviewed the MCAI and DOT Regulatory Policies and Procedures related service information and, in FOR FURTHER INFORMATION CONTACT: (44 FR 11034, February 26, 1979); and Tom general, agree with their substance. But Rodriguez, Aerospace Engineer, 3. Will not have a significant we might have found it necessary to use economic impact, positive or negative, International Branch, ANM–116, FAA, different words from those in the MCAI Transport Airplane Directorate, 1601 on a substantial number of small entities to ensure the AD is clear for U.S. under the criteria of the Regulatory Lind Avenue, SW., Renton, Washington operators and is enforceable. In making 98057–3356; telephone (425) 227–1137; Flexibility Act. these changes, we do not intend to differ We prepared a regulatory evaluation fax (425) 227–1149. substantively from the information SUPPLEMENTARY INFORMATION: of the estimated costs to comply with provided in the MCAI and related this AD and placed it in the AD docket. Discussion service information. Examining the AD Docket We issued a notice of proposed We might also have required different rulemaking (NPRM) to amend 14 CFR actions in this AD from those in the You may examine the AD docket on part 39 to include an AD that would MCAI in order to follow our FAA the Internet at http:// apply to the specified products. That policies. Any such differences are www.regulations.gov; or in person at the NPRM was published in the Federal highlighted in a Note within the AD. Docket Operations office between 9 a.m. Register on April 11, 2008 (73 FR Costs of Compliance and 5 p.m., Monday through Friday, 19768). That NPRM proposed to correct except Federal holidays. The AD docket an unsafe condition for the specified We estimate that this AD will affect contains the NPRM, the regulatory products. The MCAI states: about 51 products of U.S. registry. We evaluation, any comments received, and also estimate that it will take about 2 other information. The street address for It has been found on in-service aircraft that work-hours per product to comply with some aileron tab bellcrank assemblies were the Docket Operations office (telephone not in accordance with the definition the basic requirements of this AD. The (800) 647–5527) is in the ADDRESSES drawings. average labor rate is $80 per work-hour. section. Comments will be available in The main item concerned is the retainer Based on these figures, we estimate the the AD docket shortly after receipt. Part Number S2711004620000, which has cost of this AD to the U.S. operators to been manufactured with a hole larger than it be $8,160, or $160 per product. List of Subjects in 14 CFR Part 39 should be, or redrilled out of limits. Air transportation, Aircraft, Aviation The function of the retainer is to maintain Authority for This Rulemaking safety, Incorporation by reference, the spacer in position in case of rupture or Title 49 of the United States Code loss of the bolt which links the tab control Safety. specifies the FAA’s authority to issue rod to the bellcrank assembly. If the diameter Adoption of the Amendment of the retainer hole is out of limit, the rules on aviation safety. Subtitle I, retainer function is lost and fail-safe section 106, describes the authority of I Accordingly, under the authority installation is no longer ensured. This the FAA Administrator. ‘‘Subtitle VII: delegated to me by the Administrator, condition, if not corrected, could lead to loss Aviation Programs,’’ describes in more the FAA amends 14 CFR part 39 as of the aileron tab bellcrank functionality, detail the scope of the Agency’s follows: resulting in diminished control of the authority. aircraft. PART 39—AIRWORTHINESS For the reasons stated above, this We are issuing this rulemaking under Airworthiness Directive (AD) requires the the authority described in ‘‘Subtitle VII, DIRECTIVES Part A, Subpart III, Section 44701: inspection [for proper hole diameter] of the I aileron tab bellcrank retainer and, if General requirements.’’ Under that 1. The authority citation for part 39 necessary, the restoration of a proper section, Congress charges the FAA with continues to read as follows: installation [replacing any retainer which promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. does not meet specified limits with a new air commerce by prescribing regulations retainer]. for practices, methods, and procedures § 39.13 [Amended] Corrective actions also include doing a the Administrator finds necessary for I 2. The FAA amends § 39.13 by adding general visual inspection (GVI) for safety in air commerce. This regulation the following new AD: discrepancies (corrosion, deformation, is within the scope of that authority 2008–13–24 ATR—GIE Avions de scratches, or other defects) of the bolt because it addresses an unsafe condition Transport Re´gional (Formerly and fasteners of the bellcrank assembly. that is likely to exist or develop on Aerospatiale): Amendment 39–15587. You may obtain further information by products identified in this rulemaking Docket No. FAA–2008–0409; Directorate examining the MCAI in the AD docket. action. Identifier 2007–NM–265–AD.

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Effective Date (2) If any retainer exceeds the hole provisions of the Paperwork Reduction Act, (a) This airworthiness directive (AD) diameter limits specified in Avions de the Office of Management and Budget (OMB) becomes effective August 12, 2008. Transport Regional Service Bulletin ATR42– has approved the information collection 27–0098 or ATR72–27–1060, both dated requirements and has assigned OMB Control Affected ADs December 19, 2006, as applicable, before Number 2120–0056. (b) None. further flight, replace the retainer with a retainer that meets hole diameter limits, in Related Information Applicability accordance with the Accomplishment (h) Refer to MCAI European Aviation (c) This AD applies to ATR Model ATR42 Instructions of the applicable service Safety Agency (EASA) Airworthiness airplanes, certificated in any category, all bulletin. For any airplane for which a Directive 2006–0376, dated December 19, models, all serial numbers, except airplanes replacement retainer is not available, before 2006; and Avions de Transport Regional which have received ATR modification further flight, do a GVI for discrepancies of Service Bulletins ATR42–27–0098 and 04372 (aileron spring tab) in production or the bolt and fasteners of the bellcrank ATR72–27–1060, both dated December 19, ATR Service Bulletin ATR42–27–0081 or assembly. If any discrepancies of the bolt and 2006; for related information. Service Bulletin ATR42–27–0092 in service; fasteners are found, replace the retainer and ATR Model ATR72–101, –102, –201, before further flight, in accordance with the Material Incorporated by Reference –202, –211, and –212 airplanes, certificated Accomplishment Instructions of the (i) You must use Avions de Transport in any category, all serial numbers, except applicable service bulletin. If no Regional Service Bulletin ATR42–27–0098, airplanes which have received ATR discrepancies are found, replace the retainer dated December 19, 2006; or Avions de modification 04373 (aileron spring tab) in no later than 2 flight days after the hole Transport Regional Service Bulletin ATR72– production or ATR Service Bulletin ATR72– measurement, in accordance with the 27–1060, dated December 19, 2006; as 27–1045 in service. Accomplishment Instructions of the applicable; to do the actions required by this applicable service bulletin. Subject AD, unless the AD specifies otherwise. Note 1: For the purposes of this AD, a GVI (1) The Director of the Federal Register (d) Air Transport Association (ATA) of is: ‘‘A visual examination of an interior or approved the incorporation by reference of America Code 27: Flight Controls. exterior area, installation, or assembly to this service information under 5 U.S.C. Reason detect obvious damage, failure, or 552(a) and 1 CFR part 51. irregularity. This level of inspection is made (2) For service information identified in (e) The mandatory continuing from within touching distance unless this AD, contact ATR, 316 Route de Bayonne, airworthiness information (MCAI) states: otherwise specified. A mirror may be 31060 Toulouse, Cedex 03, France. It has been found on in-service aircraft that necessary to ensure visual access to all (3) You may review copies at the FAA, some aileron tab bellcrank assemblies were surfaces in the inspection area. This level of Transport Airplane Directorate, 1601 Lind not in accordance with the definition inspection is made under normally available Avenue, SW., Renton, Washington; or at the drawings. lighting conditions such as daylight, hangar National Archives and Records The main item concerned is the retainer lighting, flashlight, or droplight and may Administration (NARA). For information on Part Number S2711004620000, which has require removal or opening of access panels the availability of this material at NARA, call been manufactured with a hole larger than it or doors. Stands, ladders, or platforms may (202) 741–6030, or go to: http:// should be, or redrilled out of limits. be required to gain proximity to the area www.archives.gov/federal-register/cfr/ibr- The function of the retainer is to maintain being checked.’’ locations.html. the spacer in position in case of rupture or loss of the bolt which links the tab control FAA AD Differences Issued in Renton, Washington, on June 10, rod to the bellcrank assembly. If the diameter 2008. of the retainer hole is out of limit, the Note 2: This AD differs from the MCAI Ali Bahrami, and/or service information as follows: No retainer function is lost and fail-safe Manager, Transport Airplane Directorate, installation is no longer ensured. This differences. Aircraft Certification Service. condition, if not corrected, could lead to loss of the aileron tab bellcrank functionality, Other FAA AD Provisions [FR Doc. E8–14477 Filed 7–7–08; 8:45 am] resulting in diminished control of the (g) The following provisions also apply to BILLING CODE 4910–13–P aircraft. this AD: For the reasons stated above, this (1) Alternative Methods of Compliance Airworthiness Directive (AD) requires the (AMOCs): The Manager, International DEPARTMENT OF TRANSPORTATION inspection [for proper hole diameter] of the Branch, ANM–116, Transport Airplane aileron tab bellcrank retainer and, if Directorate, FAA, has the authority to Federal Aviation Administration necessary, the restoration of a proper approve AMOCs for this AD, if requested installation [replacing any retainer which using the procedures found in 14 CFR 39.19. 14 CFR Part 39 does not meet specified limits with a new Send information to ATTN: Tom Rodriguez, retainer]. Aerospace Engineer, International Branch, [Docket No. FAA–2008–0536; Directorate Corrective actions also include doing a ANM–116, Transport Airplane Directorate, Identifier 2008–CE–030–AD; Amendment general visual inspection (GVI) for FAA, 1601 Lind Avenue, SW., Renton, 39–15595; AD 2008–13–32] discrepancies (corrosion, deformation, Washington 98057–3356; telephone (425) scratches, or other defects) of the bolt and 227–1137; fax (425) 227–1149. Before using RIN 2120–AA64 fasteners of the bellcrank assembly. any approved AMOC on any airplane to which the AMOC applies, notify your Airworthiness Directives; APEX Actions and Compliance appropriate principal inspector (PI) in the Aircraft Model CAP 10B Airplanes (f) Within 90 days after the effective date FAA Flight Standards District Office (FSDO), of this AD, unless already done, do the or lacking a PI, your local FSDO. AGENCY: Federal Aviation following actions. (2) Airworthy Product: For any Administration (FAA), Department of (1) Measure the hole diameter of the requirement in this AD to obtain corrective Transportation (DOT). retainer of the aileron automatic tab bellcrank actions from a manufacturer or other source, ACTION: Final rule. assembly, in accordance with the use these actions if they are FAA-approved. Accomplishment Instructions of Avions de Corrective actions are considered FAA- SUMMARY: We are adopting a new Transport Regional Service Bulletin ATR42– approved if they are approved by the State airworthiness directive (AD) for the 27–0098 or ATR72–27–1060, both dated of Design Authority (or their delegated December 19, 2006, as applicable. If the hole agent). You are required to assure the product products listed above. This AD results diameter is within specified limits, no further is airworthy before it is returned to service. from mandatory continuing actions are required by paragraph (f) of this (3) Reporting Requirements: For any airworthiness information (MCAI) AD for that retainer. reporting requirement in this AD, under the issued by an aviation authority of

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another country to identify and correct Comments Regulatory Findings an unsafe condition on an aviation We gave the public the opportunity to We determined that this AD will not product. The MCAI describes the unsafe have federalism implications under condition as: participate in developing this AD. We received no comments on the NPRM or Executive Order 13132. This AD will It has been determined that the currently on the determination of the cost to the not have a substantial direct effect on used values for Arms of front and rear fuel public. the States, on the relationship between tanks, and luggage compartment from the the national government and the States, CAP 10B Airplane Flight Manuals (AFM), Conclusion or on the distribution of power and must be rectified. responsibilities among the various If left uncorrected, these weight and We reviewed the available data and determined that air safety and the levels of government. balance data could lead to erroneous For the reasons discussed above, I determination of the location of the Center of public interest require adopting the AD certify this AD: Gravity (CG) and possibly cause operation as proposed. with the CG outside the approved limits (1) Is not a ‘‘significant regulatory which may result in control difficulty. Differences Between This AD and the action’’ under Executive Order 12866; MCAI or Service Information (2) Is not a ‘‘significant rule’’ under We are issuing this AD to require DOT Regulatory Policies and Procedures actions to correct the unsafe condition We have reviewed the MCAI and (44 FR 11034, February 26, 1979); and on these products. related service information and, in (3) Will not have a significant general, agree with their substance. But economic impact, positive or negative, DATES: This AD becomes effective we might have found it necessary to use on a substantial number of small entities August 12, 2008. different words from those in the MCAI under the criteria of the Regulatory On August 12, 2008, the Director of to ensure the AD is clear for U.S. Flexibility Act. the Federal Register approved the operators and is enforceable. In making We prepared a regulatory evaluation incorporation by reference of certain these changes, we do not intend to differ of the estimated costs to comply with publications listed in this AD. substantively from the information this AD and placed it in the AD Docket. provided in the MCAI and related ADDRESSES: You may examine the AD service information. Examining the AD Docket docket on the Internet at http:// We might also have required different You may examine the AD docket on www.regulations.gov or in person at actions in this AD from those in the the Internet at http:// Document Management Facility, U.S. MCAI in order to follow FAA policies. www.regulations.gov or in person at the Department of Transportation, Docket Any such differences are highlighted in Docket Management Facility between 9 Operations, M–30, West Building a NOTE within the AD. a.m. and 5 p.m., Monday through Ground Floor, Room W12–140, 1200 Friday, except Federal holidays. The AD New Jersey Avenue, SE., Washington, Costs of Compliance docket contains the NPRM, the DC 20590. We estimate that this AD will affect regulatory evaluation, any comments FOR FURTHER INFORMATION CONTACT: 31 products of U.S. registry. We also received, and other information. The Sarjapur Nagarajan, Aerospace Engineer, estimate that it will take about 1 work- street address for the Docket Office FAA, Small Airplane Directorate, 901 hour per product to comply with basic (telephone (800) 647–5527) is in the Locust, Room 301, Kansas City, requirements of this AD. The average ADDRESSES section. Comments will be Missouri 64106; telephone: (816) 329– labor rate is $80 per work-hour. available in the AD docket shortly after receipt. 4145; fax: (816) 329–4090. Based on these figures, we estimate SUPPLEMENTARY INFORMATION: the cost of this AD to the U.S. operators List of Subjects in 14 CFR Part 39 to be to be $2,480, or $80 per product. Air transportation, Aircraft, Aviation Discussion Authority for This Rulemaking safety, Incorporation by reference, We issued a notice of proposed Safety. Title 49 of the United States Code rulemaking (NPRM) to amend 14 CFR Adoption of the Amendment part 39 to include an AD that would specifies the FAA’s authority to issue apply to the specified products. That rules on aviation safety. Subtitle I, I Accordingly, under the authority NPRM was published in the Federal section 106, describes the authority of delegated to me by the Administrator, Register on May 9, 2008 (73 FR 26351). the FAA Administrator. ‘‘Subtitle VII: the FAA amends 14 CFR part 39 as That NPRM proposed to correct an Aviation Programs,’’ describes in more follows: unsafe condition for the specified detail the scope of the Agency’s products. The MCAI states: authority. PART 39—AIRWORTHINESS We are issuing this rulemaking under DIRECTIVES It has been determined that the currently used values for Arms of front and rear fuel the authority described in ‘‘Subtitle VII, I 1. The authority citation for part 39 tanks, and luggage compartment from the Part A, Subpart III, Section 44701: continues to read as follows: CAP 10B Airplane Flight Manuals (AFM), General requirements.’’ Under that Authority: 49 U.S.C. 106(g), 40113, 44701. must be rectified. section, Congress charges the FAA with If left uncorrected, these weight and promoting safe flight of civil aircraft in § 39.13 [Amended] balance data could lead to erroneous air commerce by prescribing regulations I 2. The FAA amends § 39.13 by adding determination of the location of the Center of for practices, methods, and procedures the following new AD: Gravity (CG) and possibly cause operation the Administrator finds necessary for with the CG outside the approved limits safety in air commerce. This regulation 2008–13–32 APEX Aircraft: Amendment which may result in control difficulty. is within the scope of that authority 39–15595; Docket No. FAA–2008–0536; To prevent this condition, the present Directorate Identifier 2008–CE–030–AD. Airworthiness Directive (AD) mandates because it addresses an unsafe condition revision of the AFM which introduces the that is likely to exist or develop on Effective Date corrected values and replaces the previous products identified in this rulemaking (a) This airworthiness directive (AD) loading graphs by loading tables. action. becomes effective August 12, 2008.

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Affected ADs Corrective actions are considered FAA- from mandatory continuing (b) None. approved if they are approved by the State airworthiness information (MCAI) of Design Authority (or their delegated originated by an aviation authority of Applicability agent). You are required to assure the product another country to identify and correct (c) This AD applies to CAP 10B airplanes, is airworthy before it is returned to service. (3) Reporting Requirements: For any an unsafe condition on an aviation all serial numbers up to and including 282, product. The MCAI describes the unsafe certificated in any category. reporting requirement in this AD, under the provisions of the Paperwork Reduction Act condition as: Subject (44 U.S.C. 3501 et.seq.), the Office of In service events have shown that, after (d) Air Transport Association of America Management and Budget (OMB) has implementation of Dassault Aviation SB (ATA) Code 08: Leveling and Weighing. approved the information collection (service bulletin) F2000–133 and F2000–166, requirements and has assigned OMB Control Reason a risk of engine cowlings separation from the Number 2120–0056. airplane still exists, and may cause potential (e) The mandatory continuing Related Information damages to the engine itself and to the airworthiness information (MCAI) states: horizontal stabilizer. (h) Refer to MCAI European Aviation It has been determined that the currently It is suspected that on-ground improper Safety Agency (EASA) AD No. 2008–0071, used values for Arms of front and rear fuel latching may lead to a radial deformation of dated April 15, 2008; and APEX Aircraft tanks, and luggage compartment from the engine cowlings in flight and to their Service Bulletin No. 030502, dated April 11, CAP 10B Airplane Flight Manuals (AFM), eventual escape out of their locking devices. 2008, for related information. must be rectified. This situation may represent a hazard to the If left uncorrected, these weight and Material Incorporated by Reference aircraft propulsive system and/or its balance data could lead to erroneous (i) You must use APEX Aircraft Service structural integrity. determination of the location of the Center of Bulletin No. 030502, dated April 11, 2008, to Gravity (CG) and possibly cause operation * * * * * with the CG outside the approved limits do the actions required by this AD, unless the We are issuing this AD to require which may result in control difficulty. AD specifies otherwise. (1) The Director of the Federal Register actions to correct the unsafe condition To prevent this condition, the present on these products. Airworthiness Directive (AD) mandates approved the incorporation by reference of revision of the AFM which introduces the this service information under 5 U.S.C. DATES: This AD becomes effective corrected values and replaces the previous 552(a) and 1 CFR part 51. August 12, 2008. loading graphs by loading tables. (2) For service information identified in The Director of the Federal Register this AD, contact Apex Aircraft, Bureau de approved the incorporation by reference Actions and Compliance Navigabilite´, 1 route de Troyes, 21121 of certain publications listed in this AD (f) Unless already done, within the next 50 DAROIS, France. as of August 12, 2008. hours time-in-service (TIS) after August 12, (3) You may review copies at the FAA, ADDRESSES: You may examine the AD 2008 (the effective date of this AD), Central Region, Office of the Regional incorporate Apex Aircraft AVION CAP 10B Counsel, 901 Locust, Room 506, Kansas City, docket on the Internet at http:// Document Number 1000977 GB, Revision 8, Missouri 64106; or at the National Archives www.regulations.gov or in person at the dated February 2007 into the limitations and Records Administration (NARA). For U.S. Department of Transportation, section of the airplane flight manual as information on the availability of this Docket Operations, M–30, West specified in APEX Aircraft Service Bulletin material at NARA, call 202–741–6030, or go Building Ground Floor, Room W12–140, No. 030502, dated April 11, 2008. The to: http://www.archives.gov/federal-register/ 1200 New Jersey Avenue, SE., owner/operator holding at least a private cfr/ibr-locations.html. Washington, DC. pilot certificate as authorized by section 43.7 Issued in Kansas City, Missouri, on June FOR FURTHER INFORMATION CONTACT: Tom of the Federal Aviation Regulations 14 CFR 19, 2008. 43.7 may do this action. Make an entry in the Rodriguez, Aerospace Engineer, aircraft records showing compliance with David R. Showers, International Branch, ANM–116, FAA, this portion of the AD following 14 CFR 43.9. Acting Manager, Small Airplane Directorate, Transport Airplane Directorate, 1601 Aircraft Certification Service. FAA AD Differences Lind Avenue, SW., Renton, Washington [FR Doc. E8–14484 Filed 7–7–08; 8:45 am] 98057–3356; telephone (425) 227–1137; Note: This AD differs from the MCAI and/ BILLING CODE 4910–13–P fax (425) 227–1149. or service information as follows: No differences. SUPPLEMENTARY INFORMATION: DEPARTMENT OF TRANSPORTATION Discussion Other FAA AD Provisions We issued a notice of proposed (g) The following provisions also apply to Federal Aviation Administration this AD: rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would (1) Alternative Methods of Compliance 14 CFR Part 39 (AMOCs): The Manager, Standards Office, apply to the specified products. That FAA, has the authority to approve AMOCs [Docket No. FAA–2008–0272; Directorate NPRM was published in the Federal for this AD, if requested using the procedures Identifier 2007–NM–275–AD; Amendment Register on March 13, 2008 (73 FR found in 14 CFR 39.19. Send information to 39–15594; AD 2008–13–31] 13511). That NPRM proposed to correct ATTN: Sarjapur Nagarajan, Aerospace an unsafe condition for the specified Engineer, FAA, Small Airplane Directorate, RIN 2120–AA64 901 Locust, Room 301, Kansas City, Missouri products. The MCAI states: 64106; telephone: (816) 329–4145; fax: (816) Airworthiness Directives; Dassault In service events have shown that, after 329–4090. Before using any approved AMOC Model Falcon 2000 Airplanes implementation of Dassault Aviation SB on any airplane to which the AMOC applies, (service bulletin) F2000–133 and F2000–166, AGENCY: Federal Aviation notify your appropriate principal inspector a risk of engine cowlings separation from the (PI) in the FAA Flight Standards District Administration (FAA), Department of airplane still exists, and may cause potential Office (FSDO), or lacking a PI, your local Transportation (DOT). damages to the engine itself and to the FSDO. ACTION: Final rule. horizontal stabilizer. (2) Airworthy Product: For any It is suspected that on-ground improper requirement in this AD to obtain corrective SUMMARY: We are adopting a new latching may lead to a radial deformation of actions from a manufacturer or other source, airworthiness directive (AD) for the engine cowlings in flight and to their use these actions if they are FAA-approved. products listed above. This AD results eventual escape out of their locking devices.

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This situation may represent a hazard to the detail the scope of the Agency’s PART 39—AIRWORTHINESS aircraft propulsive system and/or its authority. DIRECTIVES structural integrity. We are issuing this rulemaking under The purpose of this Airworthiness the authority described in ‘‘Subtitle VII, I 1. The authority citation for part 39 Directive (AD) is to secure safe closure of Part A, Subpart III, Section 44701: continues to read as follows: engine cowlings and improve the existing locking devices. General Requirements.’’ Under that Authority: 49 U.S.C. 106(g), 40113, 44701. section, Congress charges the FAA with You may obtain further information by promoting safe flight of civil aircraft in § 39.13 [Amended] examining the MCAI in the AD docket. air commerce by prescribing regulations I 2. The FAA amends § 39.13 by adding Comments for practices, methods, and procedures the following new AD: the Administrator finds necessary for 2008–13–31 Dassault Aviation: We gave the public the opportunity to safety in air commerce. This regulation Amendment 39–15594. Docket No. participate in developing this AD. We is within the scope of that authority FAA–2008–0272; Directorate Identifier received no comments on the NPRM or because it addresses an unsafe condition 2007–NM–275–AD. on the determination of the cost to the that is likely to exist or develop on public. Effective Date products identified in this rulemaking (a) This airworthiness directive (AD) Conclusion action. becomes effective August 12, 2008. We reviewed the available data and Regulatory Findings Affected ADs determined that air safety and the We determined that this AD will not (b) None. public interest require adopting the AD have federalism implications under Applicability as proposed. Executive Order 13132. This AD will not have a substantial direct effect on (c) This AD applies to Dassault Model Differences Between This AD and the Falcon 2000 airplanes, certificated in any MCAI or Service Information the States, on the relationship between category, all serial numbers, except those that the national government and the States, have incorporated Modification M2275 We have reviewed the MCAI and or on the distribution of power and related service information and, in during production or Dassault Service responsibilities among the various Bulletin F2000–298 in service. general, agree with their substance. But levels of government. we might have found it necessary to use For the reasons discussed above, I Subject different words from those in the MCAI certify this AD: (d) Air Transport Association (ATA) of to ensure the AD is clear for U.S. 1. Is not a ‘‘significant regulatory America Code 54: Nacelles/Pylons. operators and is enforceable. In making action’’ under Executive Order 12866; Reason these changes, we do not intend to differ 2. Is not a ‘‘significant rule’’ under the substantively from the information (e) The mandatory continuing DOT Regulatory Policies and Procedures airworthiness information (MCAI) states: provided in the MCAI and related (44 FR 11034, February 26, 1979); and service information. In service events have shown that, after 3. Will not have a significant implementation of Dassault Aviation SB We might also have required different economic impact, positive or negative, (service bulletin) F2000–133 and F2000–166, actions in this AD from those in the on a substantial number of small entities a risk of engine cowlings separation from the MCAI in order to follow our FAA under the criteria of the Regulatory airplane still exists, and may cause potential policies. Any such differences are Flexibility Act. damages to the engine itself and to the highlighted in a NOTE within the AD. We prepared a regulatory evaluation horizontal stabilizer. It is suspected that on-ground improper Costs of Compliance of the estimated costs to comply with this AD and placed it in the AD docket. latching may lead to a radial deformation of We estimate that this AD will affect engine cowlings in flight and to their about 229 products of U.S. registry. We Examining the AD Docket eventual escape out of their locking devices. also estimate that it will take about 90 You may examine the AD docket on This situation may represent a hazard to the aircraft propulsive system and/or its work-hours per product to comply with the Internet at http:// structural integrity. the basic requirements of this AD. The www.regulations.gov; or in person at the The purpose of this Airworthiness average labor rate is $80 per work-hour. Docket Operations office between 9 a.m. Directive (AD) is to secure safe closure of Required parts will cost about $0 per and 5 p.m., Monday through Friday, engine cowlings and improve the existing product. Where the service information except Federal holidays. The AD docket locking devices. lists required parts costs that are contains the NPRM, the regulatory Actions and Compliance covered under warranty, we have evaluation, any comments received, and assumed that there will be no charge for other information. The street address for (f) Within 12 months after the effective date of this AD unless already done, do the these parts. As we do not control the Docket Operations office (telephone following actions. warranty coverage for affected parties, (800) 647–5527) is in the ADDRESSES (1) Modify the existing engine cowls some parties may incur costs higher section. Comments will be available in locking system in accordance with the than estimated here. Based on these the AD docket shortly after receipt. instructions contained in Dassault Service figures, we estimate the cost of this AD Bulletin F2000–298, Revision 3, dated List of Subjects in 14 CFR Part 39 to the U.S. operators to be $1,648,800, September 26, 2007. or $7,200 per product. Air transportation, Aircraft, Aviation (2) Before or concurrent with the safety, Incorporation by reference, modification required by paragraph (f)(1) of Authority for This Rulemaking Safety. this AD, modify the engine cowling Title 49 of the United States Code attachments in accordance with the Adoption of the Amendment instructions contained in Dassault Service specifies the FAA’s authority to issue Bulletin F2000–166, Revision 1, dated I rules on aviation safety. Subtitle I, Accordingly, under the authority October 24, 2001 (Modification M1579). section 106, describes the authority of delegated to me by the Administrator, (3) Actions done before the effective date the FAA Administrator. ‘‘Subtitle VII: the FAA amends 14 CFR part 39 as of this AD in accordance with Dassault Aviation Programs,’’ describes in more follows: Service Bulletins F2000–298, Revision 1,

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dated October 31, 2006, or Revision 2, dated (202) 741–6030, or go to: http:// of certain publications listed in this AD April 12, 2007; and F2000–166, dated June www.archives.gov/federal-register/cfr/ibr- as of July 23, 2008. 27, 2001; are acceptable for compliance with locations.html. We must receive comments on this the corresponding actions of this AD. Issued in Renton, Washington, on June 8, AD by September 8, 2008. FAA AD Differences 2008. ADDRESSES: You may send comments by Note: This AD differs from the MCAI and/ Michael Kaszycki, any of the following methods: or service information as follows: No Acting Manager, Transport Airplane • Federal eRulemaking Portal: Go to differences. Directorate, Aircraft Certification Service. http://www.regulations.gov. Follow the [FR Doc. E8–14579 Filed 7–7–08; 8:45 am] instructions for submitting comments. Other FAA AD Provisions BILLING CODE 4910–13–P • Fax: 202–493–2251. (g) The following provisions also apply to • Mail: U.S. Department of this AD: Transportation, Docket Operations, M– (1) Alternative Methods of Compliance DEPARTMENT OF TRANSPORTATION 30, West Building Ground Floor, Room (AMOCs): The Manager, International W12–140, 1200 New Jersey Avenue, SE., Branch, ANM–116, Transport Airplane Federal Aviation Administration Directorate, FAA, has the authority to Washington, DC 20590. approve AMOCs for this AD, if requested • Hand Delivery: U.S. Department of using the procedures found in 14 CFR 39.19. 14 CFR Part 39 Transportation, Docket Operations, M– Send information to ATTN: Tom Rodriguez, [Docket No. FAA–2008–0673; Directorate 30, West Building Ground Floor, Room Aerospace Engineer, International Branch, Identifier 2008–NM–117–AD; Amendment W12–140, 1200 New Jersey Avenue, SE., ANM–116, FAA, Transport Airplane 39–15606; AD 2008–14–11] Washington, DC 20590, between 9 a.m. Directorate, 1601 Lind Avenue SW., Renton, and 5 p.m., Monday through Friday, Washington 98057–3356; telephone (425) RIN 2120–AA64 227–1137; fax (425) 227–1149. Before using except Federal holidays. any approved AMOC on any airplane to Airworthiness Directives; Boeing For service information identified in which the AMOC applies, notify your Model 777–200, –200LR, –300, and this AD, contact Boeing Commercial appropriate principal inspector (PI) in the –300ER Series Airplanes Approved for Airplanes, P.O. Box 3707, Seattle, FAA Flight Standards District Office (FSDO), Extended-Range Twin-Engine Washington 98124–2207. or lacking a PI, your local FSDO. Operational Performance Standards (2) Airworthy Product: For any Examining the AD Docket (ETOPS) requirement in this AD to obtain corrective You may examine the AD docket on actions from a manufacturer or other source, AGENCY: Federal Aviation the Internet at http:// use these actions if they are FAA-approved. Administration (FAA), DOT. www.regulations.gov; person at the Corrective actions are considered FAA- Docket Management Facility between 9 approved if they are approved by the State ACTION: Final rule; request for of Design Authority (or their delegated comments. a.m. and 5 p.m., Monday through agent). You are required to assure the product Friday, except Federal holidays. The AD is airworthy before it is returned to service. SUMMARY: We are adopting a new docket contains this AD, the regulatory (3) Reporting Requirements: For any airworthiness directive (AD) for certain evaluation, any comments received, and reporting requirement in this AD, under the Boeing Model 777–200, –200LR, –300, other information. The street address for provisions of the Paperwork Reduction Act, and –300ER series airplanes. This AD the Docket Office (telephone 800–647– the Office of Management and Budget (OMB) requires a one-time inspection to 5527) is in the ADDRESSES section. has approved the information collection determine the part number of the cargo Comments will be available in the AD requirements and has assigned OMB Control docket shortly after receipt. Number 2120–0056. compartment fire suppression filter/ regulator. This AD also requires, for FOR FURTHER INFORMATION CONTACT: Related Information certain airplanes, a revision of the Robert Hettman, Aerospace Engineer, (h) Refer to MCAI European Aviation ‘‘Maximum Diversion Time in Minutes’’ Cabin Safety and Environmental Safety Agency Airworthiness Directive 2007– for ETOPS operation specified in the Systems Branch, ANM–150S, FAA, 0016, dated January 12, 2007; and Dassault Operations Specifications. For certain Seattle Aircraft Certification Office, Service Bulletins F2000–166, Revision 1, airplanes, this AD also provides for 1601 Lind Avenue, SW., Renton, dated October 24, 2001; and F2000–298, optional replacement of the cargo Revision 3, dated September 26, 2007; for Washington 98057–3356; telephone related information. compartment fire suppression filter/ (425) 917–6457; fax (425) 917–6590. regulator, which would allow revision SUPPLEMENTARY INFORMATION: Material Incorporated by Reference of the ‘‘Maximum Diversion Time in (i) You must use Dassault Service Bulletin Minutes’’ for ETOPS operation specified Discussion F2000–166, Revision 1, dated October 24, in the Operations Specifications to This AD results from a report that the 2001; and Dassault Service Bulletin F2000– restore the airplane’s full ETOPS filter/regulator installed in the cargo fire 298, Revision 3, dated September 26, 2007; capability. This AD results from a report suppression system did not meter the to do the actions required by this AD, unless that the filter/regulator installed in the the AD specifies otherwise. Halon for the certified duration during (1) The Director of the Federal Register cargo fire suppression system did not extended-range twin-engine operational approved the incorporation by reference of meter the Halon for the certified performance standards (ETOPS) flight this service information under 5 U.S.C. duration during ETOPS flight tests. We tests conducted by Boeing. Results of an 552(a) and 1 CFR part 51. are issuing this AD to prevent ETOPS investigation by the filter/regulator (2) For service information identified in operation with insufficient cargo fire supplier, Kidde Aerospace, showed that this AD, contact Dassault Falcon Jet, P.O. Box suppression capability, which could an incorrect test adapter was used 2000, South Hackensack, New Jersey 07606. result in an uncontained fire in the during the calibration procedure to set (3) You may review copies at the FAA, cargo compartment. Transport Airplane Directorate, 1601 Lind the filter/regulator flow rate. The Avenue SW., Renton, Washington; or at the DATES: This AD is effective July 23, incorrect test adapter affected the National Archives and Records 2008. calibrated flow rate setting, allowing the Administration (NARA). For information on The Director of the Federal Register Halon to flow too fast, resulting in less the availability of this material at NARA, call approved the incorporation by reference cargo fire suppression duration. It is

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uncertain how many cargo compartment hereon are impracticable and that good (1) Is not a ‘‘significant regulatory fire suppression filters/regulators were cause exists for making this amendment action’’ under Executive Order 12866, delivered with the incorrect calibration. effective in less than 30 days. (2) Is not a ‘‘significant rule’’ under To date, we have received no reports of DOT Regulatory Policies and Procedures Comments Invited in-service events related to this issue. (44 FR 11034, February 26, 1979), and ETOPS operation with insufficient This AD is a final rule that involves (3) Will not have a significant cargo fire suppression capability, if not requirements affecting flight safety, and economic impact, positive or negative, corrected, could result in an we did not provide you with notice and on a substantial number of small entities uncontained fire in the cargo an opportunity to provide your under the criteria of the Regulatory compartment. comments before it becomes effective. Flexibility Act. However, we invite you to send any You can find our regulatory Relevant Service Information written data, views, or arguments about evaluation and the estimated costs of We reviewed Boeing Special this AD. Send your comments to an compliance in the AD Docket. Attention Service Bulletin 777–26– address listed under the ADDRESSES List of Subjects in 14 CFR Part 39 0044, dated April 24, 2008; and section. Include ‘‘Docket No. FAA– Revision 1, dated June 19, 2008 (for 2008–0673; Directorate Identifier 2008– Air transportation, Aircraft, Aviation Model 777–200, –300, and –300ER NM–117–AD’’ at the beginning of your safety, Incorporation by reference, series airplanes). The service bulletins comments. We specifically invite Safety. describe procedures for replacing the comments on the overall regulatory, Adoption of the Amendment fire suppression filter/regulator with a economic, environmental, and energy new filter/regulator, which restores the aspects of this AD. We will consider all I Accordingly, under the authority fire suppression capability to the comments received by the closing date delegated to me by the Administrator, certified duration and allows the and may amend this AD because of the FAA amends 14 CFR part 39 as operator to resume flights at the those comments. follows: airplane’s full ETOPS capability. We will post all comments we receive, without change, to http:// PART 39—AIRWORTHINESS FAA’s Determination and Requirements DIRECTIVES of This AD www.regulations.gov, including any personal information you provide. We I 1. The authority citation for part 39 We are issuing this AD because we will also post a report summarizing each continues to read as follows: evaluated all the relevant information substantive verbal contact we receive and determined the unsafe condition about this AD. Authority: 49 U.S.C. 106(g), 40113, 44701. described previously is likely to exist or § 39.13 [Amended] develop in other products of the(se) Authority for This Rulemaking I same type design(s). This AD requires a Title 49 of the United States Code 2. The FAA amends § 39.13 by adding one-time inspection to determine the specifies the FAA’s authority to issue the following new AD: part number of the cargo compartment rules on aviation safety. Subtitle I, 2008–14–11 Boeing: Amendment 39–15606. fire suppression filter/regulator. This section 106, describes the authority of Docket No. FAA–2008–0673; Directorate AD also requires, for certain airplanes, the FAA Administrator. ‘‘Subtitle VII: Identifier 2008–NM–117–AD. a revision of the ‘‘Maximum Diversion Aviation Programs,’’ describes in more Effective Date Time in Minutes’’ for ETOPS operation detail the scope of the Agency’s (a) This airworthiness directive (AD) is specified in the Operations authority. effective July 23, 2008. Specifications. For certain airplanes, We are issuing this rulemaking under this AD also provides for optional the authority described in ‘‘Subtitle VII, Affected ADs replacement of the cargo compartment Part A, Subpart III, Section 44701: (b) None. fire suppression filter/regulator, which General requirements.’’ Under that Applicability would allow revision of the ‘‘Maximum section, Congress charges the FAA with promoting safe flight of civil aircraft in (c) This AD applies to Boeing Model 777– Diversion Time in Minutes’’ for ETOPS 200, –200LR, –300, and –300ER series operation specified in the Operations air commerce by prescribing regulations airplanes, certificated in any category; Specifications to restore the airplane’s for practices, methods, and procedures approved for extended-range twin-engine full ETOPS capability. the Administrator finds necessary for operational performance standards (ETOPS). safety in air commerce. This regulation FAA’s Justification and Determination is within the scope of that authority Unsafe Condition of the Effective Date because it addresses an unsafe condition (d) This AD results from a report that the An uncontained fire in the cargo that is likely to exist or develop on filter/regulator installed in the cargo fire compartment, especially during an products identified in this rulemaking suppression system did not meter the Halon ETOPS flight where alternate airports for the certified duration during ETOPS flight action. tests. We are issuing this AD to prevent may not be available, is a critical safety Regulatory Findings ETOPS operation with insufficient cargo fire risk. Because of our requirement to suppression capability, which could result in promote safe flight of civil aircraft and This AD will not have federalism an uncontained fire in the cargo thus, the critical need to assure the implications under Executive Order compartment. proper functioning of the fire 13132. This AD will not have a Compliance suppression system in the cargo substantial direct effect on the States, on compartment and the short compliance the relationship between the national (e) Comply with this AD within the time involved with this action, this AD government and the States, or on the compliance times specified, unless already done. must be issued immediately. distribution of power and Because an unsafe condition exists responsibilities among the various Inspection To Determine Part Number of the that requires the immediate adoption of levels of government. Filter/Regulator this AD, we find that notice and For the reasons discussed above, I (f) Within 30 days after the effective date opportunity for prior public comment certify that this AD: of this AD, inspect the filter/regulator for the

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fire suppression system in the lower cargo number identified in Table 1 of this AD is inspection if the part number of the filter/ compartment to determine whether a Kidde installed. A review of airplane maintenance regulator can be conclusively determined Aerospace filter/regulator having a part records is acceptable in lieu of this from that review.

TABLE 1.—APPLICABLE KIDDE AEROSPACE FILTERS/REGULATORS

Model Filter/Regulator Part No.

(1) 777–200 and –200LR series airplanes ...... 473494–1, –2, or –3; or 473995–1, –2, or –3. (2) 777–300 and 777–300ER series airplanes ...... 473857–1, –2, or –3.

Revision of the Operations Specifications (2) To request a different method of DEPARTMENT OF TRANSPORTATION (g) Except as provided in paragraph (i) of compliance or a different compliance time this AD, if a Kidde Aerospace cargo for this AD, follow the procedures in 14 CFR Federal Aviation Administration compartment fire suppression filter/regulator 39.19. Before using any approved AMOC on identified in Table 1 of this AD is found any airplane to which the AMOC applies, 14 CFR Part 39 installed during the inspection or records notify your appropriate principal inspector [Docket No. FAA–2007–0266; Directorate check required by paragraph (f) of this AD: (PI) in the FAA Flight Standards District Before further flight after doing the Identifier 2007–NM–170–AD; Amendment Office (FSDO), or lacking a PI, your local 39–15576; AD 2008–13–13] inspection or records check required by FSDO. paragraph (f) of this AD, revise the RIN 2120–AA64 ‘‘Maximum Diversion Time In Minutes,’’ Material Incorporated by Reference specified in the FAA-approved Operations (k) You must use Boeing Model 777 ETOPS Airworthiness Directives; Airbus Model Specifications, Document D086, in Configuration, Maintenance, and Procedures, A330 Airplanes and Model A340–200 accordance with the applicable instructions Document D044W054, Revision K, dated and –300 Series Airplanes contained in Boeing Model 777 ETOPS June 12, 2008, to do the actions required by Configuration, Maintenance, and Procedures, AGENCY: Federal Aviation this AD, unless the AD specifies otherwise. Document D044W054, Revision K, dated Administration (FAA), DOT. June 12, 2008. If you accomplish the optional actions specified by this AD, you must use Boeing ACTION: Final rule. Optional Replacement of the Filter/Regulator Special Attention Service Bulletin 777–26– for Certain Airplanes SUMMARY: We are adopting a new 0044, dated April 24, 2008; or Boeing Special airworthiness directive (AD) for certain (h) For Model 777–200, –300, and –300ER Attention Service Bulletin 777–26–0044, series airplanes: Once the cargo compartment Airbus Model A330 airplanes and Revision 1, dated June 19, 2008; as Model A340–200 and –300 series fire suppression filter/regulator has been applicable; to do those actions, unless the AD airplanes. This AD requires revising the replaced with a new or serviceable filter/ specifies otherwise. (The revision date of regulator in accordance with the airplane flight manual (AFM) to prohibit Boeing Model 777 ETOPS Configuration, Accomplishment Instructions of Boeing the flightcrew from performing CAT 2 Maintenance, and Procedures, Document Special Attention Service Bulletin 777–26– and CAT 3 automatic landings and roll- 0044, dated April 24, 2008; or Revision 1, D044W054, Revision K, is located on the last page of the document; no other page of this outs at certain airports. This AD also dated June 19, 2008; the ‘‘Maximum provides an optional terminating action Diversion Time In Minutes,’’ specified in the document contains the revision date.) FAA-approved Operations Specifications, (1) The Director of the Federal Register for the AFM revision. This AD results Document D086, may be revised in approved the incorporation by reference of from data showing that the magnetic accordance with the applicable instructions this service information under 5 U.S.C. variation table installed in certain contained in Boeing Model 777 ETOPS 552(a) and 1 CFR part 51. Honeywell and Northrop Grumman air Configuration, Maintenance, and Procedures, (2) For service information identified in data inertial reference units (ADIRUs) is Document D044W054, Revision K, dated this AD, contact Boeing Commercial obsolete at certain airports. We are June 12, 2008, to restore the airplane’s full Airplanes, P.O. Box 3707, Seattle, issuing this AD to prevent the airplane ETOPS capability. Washington 98124–2207. from departing the runway during a Exception to Operations Specifications (3) You may review copies of the service CAT 2 or CAT 3 automatic landing or Revision information incorporated by reference at the roll-out, due to differences between (i) The revision to the Operations FAA, Transport Airplane Directorate, 1601 actual magnetic variation and the values Specifications specified in paragraph (g) of Lind Avenue, SW., Renton, Washington; or at in the ADIRU magnetic variation tables. this AD is not required if, before further flight the National Archives and Records DATES: This AD is effective August 12, after a Kidde Aerospace cargo compartment Administration (NARA). For information on 2008. fire suppression filter/regulator identified in the availability of this material at NARA, call The Director of the Federal Register Table 1 of this AD is found installed on any 202–741–6030, or go to: http:// approved the incorporation by reference airplane, the filter/regulator replacement www.archives.gov/federal_register/ described in paragraph (h) of this AD is of certain publications listed in this AD code_of_federal_regulations/ as of August 12, 2008. accomplished. _ ibr locations.html. ADDRESSES: For service information Alternative Methods of Compliance identified in this AD, contact Airbus, 1 (AMOCs) Issued in Renton, Washington, on June 25, 2008. Rond Point Maurice Bellonte, 31707 (j)(1) The Manager, Seattle Aircraft Blagnac Cedex, France. Certification Office (ACO), FAA, ATTN: Ali Bahrami, Robert Hettman, Cabin Safety and Manager, Transport Airplane Directorate, Examining the AD Docket Environmental Systems Branch, ANM–150S, Aircraft Certification Service. You may examine the AD docket on 1601 Lind Avenue, SW., Renton, Washington [FR Doc. E8–15371 Filed 7–7–08; 8:45 am] 98057–3356; telephone (425) 917–6457; fax the Internet at http:// (425) 917–6590; has the authority to approve BILLING CODE 4910–13–P www.regulations.gov; or in person at the AMOCs for this AD, if requested using the Docket Management Facility between 9 procedures found in 14 CFR 39.19. a.m. and 5 p.m., Monday through

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Friday, except Federal holidays. The AD including the service bulletins Authority for This Rulemaking docket contains this AD, the regulatory identified above. We agree to add Title 49 of the United States Code evaluation, any comments received, and Airbus Service Bulletin A330–34–3183 specifies the FAA’s authority to issue other information. The address for the to paragraph (i)(2) of this AD, and rules on aviation safety. Subtitle I, Docket Office (telephone 800–647–5527) Airbus Service Bulletin A340–34–4173 section 106, describes the authority of is the Document Management Facility, to paragraph (i)(4) of this AD. Airbus the FAA Administrator. ‘‘Subtitle VII: U.S. Department of Transportation, Service Bulletin A330–34–3183 Aviation Programs,’’ describes in more Docket Operations, M–30, West incorporates a later ADIRU standard detail the scope of the Agency’s Building Ground Floor, Room W12–140, than the one specified in Airbus Service authority. 1200 New Jersey Avenue, SE., Bulletin A330–34–3159, dated February We are issuing this rulemaking under Washington, DC 20590. 10, 2005, which is identified as a the authority described in ‘‘Subtitle VII, FOR FURTHER INFORMATION CONTACT: Tim terminating action in paragraph (i)(2) of Part A, Subpart III, Section 44701: Backman, Aerospace Engineer, this AD. Airbus Service Bulletin A340– General requirements.’’ Under that International Branch, ANM–116, 34–4173 also incorporates a later ADIRU section, Congress charges the FAA with Transport Airplane Directorate, FAA, standard than the one specified in promoting safe flight of civil aircraft in 1601 Lind Avenue, SW., Renton, Airbus Service Bulletin A340–34–4163, air commerce by prescribing regulations Washington 98057–3356; telephone dated February 10, 2005, which is for practices, methods, and procedures (425) 227–2797; fax (425) 227–1149. identified as a terminating action in the Administrator finds necessary for SUPPLEMENTARY INFORMATION: paragraph (i)(4) of this AD. The later safety in air commerce. This regulation Discussion ADIRU standard builds on the earlier is within the scope of that authority We issued a notice of proposed standard and introduces general because it addresses an unsafe condition rulemaking (NPRM) to amend 14 CFR improvements and a new magnetic that is likely to exist or develop on part 39 to include an airworthiness variation table. The service bulletin for products identified in this rulemaking directive (AD) that would apply to the later ADIRU standard has the earlier action. certain Airbus Model A330 series service bulletin as a concurrent Regulatory Findings airplanes and Model A340–200 and requirement. This AD will not have federalism –300 series airplanes. That NPRM was However, we do not agree to add implications under Executive Order published in the Federal Register on Airbus Service Bulletin A330–34–3191 13132. This AD will not have a December 3, 2007 (72 FR 67868). That and Airbus Service Bulletin A340–34– NPRM proposed to require revising the substantial direct effect on the States, on 4180 to paragraph (i) of this AD because the relationship between the national airplane flight manual (AFM) to prohibit those service bulletins do not have the the flightcrew from performing CAT 2 government and the States, or on the service bulletin for the earlier standard distribution of power and and CAT 3 automatic landings and roll- as a concurrent requirement. We refer to outs at certain airports. That NPRM also responsibilities among the various European Aviation Safety Agency levels of government. proposed to provide an optional airworthiness directive 2006–0232, terminating action for the AFM revision. For the reasons discussed above, I dated August 7, 2006, as related certify that this AD: Comments information in paragraph (k) of this AD. (1) Is not a ‘‘significant regulatory We gave the public the opportunity to However, under the provisions of action’’ under Executive Order 12866, participate in developing this AD. We paragraph (j) of this AD, we will (2) Is not a ‘‘significant rule’’ under considered the comment received from consider requests for approval of an DOT Regulatory Policies and Procedures the commenter. alternative method of compliance if (44 FR 11034, February 26, 1979), and sufficient data are submitted to (3) Will not have a significant Request To Refer to Additional Service substantiate that the design change economic impact, positive or negative, Information would provide an acceptable level of on a substantial number of small entities Mr. Jean-Dominique Bouton states safety. We have not changed this AD in under the criteria of the Regulatory that the ‘‘Optional Terminating Action’’ this regard. Flexibility Act. paragraph does not include the latest air Conclusion You can find our regulatory data inertial reference unit (ADIRU) evaluation and the estimated costs of standards, which can be installed in We reviewed the relevant data, compliance in the AD Docket. place of the older standards addressed considered the comment received, and List of Subjects in 14 CFR Part 39 by the NPRM. The commenter identifies determined that air safety and the the following service bulletins as public interest require adopting the AD Air transportation, Aircraft, Aviation optional terminating actions to the AFM with the change described previously. safety, Incorporation by reference, revision: Airbus Service Bulletin A330– We also determined that this change Safety. 34–3183, dated June 16, 2006; Airbus will not increase the economic burden Service Bulletin A330–34–3191, dated Adoption of the Amendment on any operator or increase the scope of March 16, 2007; Airbus Service Bulletin I the AD. Accordingly, under the authority A340–34–4173, dated June 16, 2006; delegated to me by the Administrator, and Airbus Service Bulletin A340–34– Costs of Compliance the FAA amends 14 CFR part 39 as 4180, dated March 16, 2007. As follows: justification, the commenter states that This AD affects about 40 airplanes of these service bulletins include the latest U.S. registry. The required actions take PART 39—AIRWORTHINESS ADIRU standards, which can be about 1 work hour per airplane, at an DIRECTIVES installed in place of the older standards average labor rate of $80 per work hour. I addressed by this AD. Based on these figures, the estimated 1. The authority citation for part 39 We infer the commenter requests that cost of the AD for U.S. operators is continues to read as follows: we revise paragraph (i) of this AD by $3,200, or $80 per airplane. Authority: 49 U.S.C. 106(g), 40113, 44701.

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§ 39.13 [Amended] (3) For Model A340–200 and A340–300 (4) For Model A340–200 and A340–300 I 2. The FAA amends § 39.13 by adding series airplanes equipped with any series airplanes equipped with any Northrop the following new AD: Honeywell ADIRU identified in paragraph Grumman ADIRU identified in paragraph (c)(1) of this AD: Airbus TR 2.05.00/87, Issue (c)(2) of this AD, doing the replacement in 2008–13–13 Airbus: Amendment 39–15576. 2, dated September 19, 2007, to the Airbus accordance with the Accomplishment Docket No. FAA–2007–0266; Directorate A340 AFM; and Instructions of Airbus Service Bulletin A340– Identifier 2007–NM–170–AD. (4) For Model A340–200 and A340–300 34–4141, dated December 16, 2003, or Effective Date series airplanes equipped with any Northrop Revision 01, dated August 18, 2004; Airbus Grumman ADIRU identified in paragraph Service Bulletin A340–34–4163, dated (a) This airworthiness directive (AD) is (c)(2) of this AD: Airbus TR 2.05.00/88, dated effective August 12, 2008. February 10, 2005; or Airbus Service Bulletin March 31, 2006, to the Airbus A340 AFM. A340–34–4173, dated June 16, 2006. Affected ADs AFM Revision Alternative Methods of Compliance (b) None. (g) Within 14 days after the effective date (AMOCs) Applicability of this AD, revise the Limitations Section of (j)(1) The Manager, International Branch, the Airbus A330 or A340 AFM, as applicable, (c) This AD applies to Airbus Model A330– ANM–116, Transport Airplane Directorate, to prohibit the flightcrew from performing 200, A330–300, A340–200, and A340–300 FAA, has the authority to approve AMOCs CAT 2 and CAT 3 automatic landings and series airplanes, certificated in any category; for this AD, if requested in accordance with roll-outs at certain airports by incorporating equipped with the air data inertial reference the procedures found in 14 CFR 39.19. the applicable Temporary Revision into the units (ADIRUs) identified in paragraphs (c)(1) (2) To request a different method of AFM. Operate the airplane according to the and (c)(2) of this AD. compliance or a different compliance time limitations in the applicable TR. (1) Honeywell ADIRUs having part for this AD, follow the procedures in 14 CFR (h) When the information in the applicable numbers (P/Ns) HG2030AC0X (where X is 39.19. Before using any approved AMOC on TR has been incorporated into the general any number between 0 and 9 inclusive) and any airplane to which the AMOC applies, revisions of the Airbus A330 or A340 AFM, P/Ns HG2030ADYY (where YY is any as applicable, the general revisions may be notify your appropriate principal inspector number between 00 and 10 inclusive). inserted into the AFM, and the TR may be (PI) in the FAA Flight Standards District (2) Northrop Grumman (formerly Litton) removed from the AFM. Office (FSDO), or lacking a PI, your local ADIRUs having P/Ns 465020–030303ZZ FSDO. (where ZZ is any number between 00 and 12 Optional Terminating Action Related Information inclusive). (i) Replacing the ADIRUs with new, (k) European Aviation Safety Agency Unsafe Condition improved ADIRUs as specified in paragraph (i)(1), (i)(2), (i)(3), or (i)(4) of this AD airworthiness directive 2006–0232, dated (d) This AD results from data showing that terminates the AFM revision required by August 7, 2006, also addresses the subject of the magnetic variation table installed in paragraph (g) of this AD. this AD. certain Honeywell and Northrop Grumman (1) For Model A330–200 and A330–300 ADIRUs is obsolete at certain airports. We are Material Incorporated by Reference series airplanes equipped with any issuing this AD to prevent the airplane from Honeywell ADIRU identified in paragraph (l) You must use the applicable service departing the runway during a CAT 2 or CAT (c)(1) of this AD, doing the replacement in information contained in Table 1 of this AD 3 automatic landing or roll-out, due to accordance with the Accomplishment to do the actions required by this AD, unless differences between actual magnetic Instructions of Airbus Service Bulletin A330– the AD specifies otherwise. If you do the variation and the values in the ADIRU 34–3104, dated July 17, 2003; or Airbus optional actions specified in this AD, you magnetic variation tables. Service Bulletin A330–34–3165, dated June must use the applicable service information Compliance 28, 2006. contained in Table 2 of this AD to do those actions, unless the AD specifies otherwise. (e) You are responsible for having the (2) For Model A330–200 and A330–300 (1) The Director of the Federal Register actions required by this AD performed within series airplanes equipped with any Northrop approved the incorporation by reference of the compliance times specified, unless the Grumman ADIRU identified in paragraph this service information under 5 U.S.C. actions have already been done. (c)(2) of this AD, doing the replacement in accordance with the Accomplishment 552(a) and 1 CFR part 51. Temporary Revision (TR) References Instructions of Airbus Service Bulletin A330– (2) For service information identified in (f) The term ‘‘Temporary Revision,’’ as 34–3132, dated December 16, 2003, or this AD, contact Airbus, 1 Rond Point used in this AD, means the following TRs, as Revision 01, dated August 18, 2004; Airbus Maurice Bellonte, 31707 Blagnac Cedex, applicable: Service Bulletin A330–34–3159, dated France. (1) For Model A330–200 and A330–300 February 10, 2005; or Airbus Service Bulletin (3) You may review copies of the service series airplanes equipped with any A330–34–3183, dated June 16, 2006. information incorporated by reference at the Honeywell ADIRU identified in paragraph (3) For Model A340–200 and A340–300 FAA, Transport Airplane Directorate, 1601 (c)(1) of this AD: Airbus TR 2.05.00/67, Issue series airplanes equipped with any Lind Avenue, SW., Renton, Washington; or at 2, dated September 19, 2007, to the Airbus Honeywell ADIRU identified in paragraph the National Archives and Records A330 Airplane Flight Manual (AFM); (c)(1) of this AD, doing the replacement in Administration (NARA). For information on (2) For Model A330–200 and A330–300 accordance with the Accomplishment the availability of this material at NARA, call series airplanes equipped with any Northrop Instructions of Airbus Service Bulletin A340– 202–741–6030, or go to: http:// Grumman ADIRU identified in paragraph 34–4114, dated July 17, 2003; or Airbus www.archives.gov/federal_register/ (c)(2) of this AD: Airbus TR 2.05.00/68, dated Service Bulletin A340–34–4166, dated June code_of_federal_regulations/ March 31, 2006, to the Airbus A330 AFM; 28, 2006. ibr_locations.html.

TABLE 1.—MATERIAL INCORPORATED BY REFERENCE FOR REQUIRED ACTIONS

Service Information Issue Date

Airbus Temporary Revision 2.05.00/67 to the Airbus A330 Airplane Flight Manual 2 ...... September 19, 2007. Airbus Temporary Revision 2.05.00/68 to the Airbus A330 Airplane Flight Manual Original ...... March 31, 2006. Airbus Temporary Revision 2.05.00/87 to the Airbus A340 Airplane Flight Manual 2 ...... September 19, 2007. Airbus Temporary Revision 2.05.00/88 to the Airbus A340 Airplane Flight Manual Original ...... March 31, 2006.

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TABLE 2.—MATERIAL INCORPORATED BY REFERENCE FOR OPTIONAL ACTIONS

Service Information Issue Date

Airbus Service Bulletin A330–34–3104 ...... Original ...... July 17, 2003. Airbus Service Bulletin A330–34–3132 ...... Original ...... December 16, 2003. Airbus Service Bulletin A330–34–3132 ...... 01 ...... August 18, 2004. Airbus Service Bulletin A330–34–3159 ...... Original ...... February 10, 2005. Airbus Service Bulletin A330–34–3165 ...... Original ...... June 28, 2006. Airbus Service Bulletin A330–34–3183 ...... Original ...... June 16, 2006. Airbus Service Bulletin A340–34–4114 ...... Original ...... July 17, 2003. Airbus Service Bulletin A340–34–4141 ...... Original ...... December 16, 2003. Airbus Service Bulletin A340–34–4141 ...... 01 ...... August 18, 2004. Airbus Service Bulletin A340–34–4163 ...... Original ...... February 10, 2005. Airbus Service Bulletin A340–34–4166 ...... Original ...... June 28, 2006. Airbus Service Bulletin A340–34–4173 ...... Original ...... June 16, 2006.

Issued in Renton, Washington, on June 13, airplane. We are issuing this AD to Failure of the attachment fasteners 2008. require actions to correct the unsafe could result in possible in-flight loss of Ali Bahrami, condition on these products. a horizontal or vertical stabilizer and Manager, Transport Airplane Directorate, DATES: This AD becomes effective consequent loss of control of the Aircraft Certification Service. August 12, 2008. airplane. Corrective actions include [FR Doc. E8–14468 Filed 7–7–08; 8:45 am] The Director of the Federal Register revising the airplane flight manual BILLING CODE 4910–13–P approved the incorporation by reference (AFM); inspections for damage of the of certain publications listed in this AD bolts and replacing the bolt, if as of August 12, 2008. necessary; and doing related DEPARTMENT OF TRANSPORTATION ADDRESSES: You may examine the AD investigative and other corrective actions (eddy current inspection for bolt Federal Aviation Administration docket on the Internet at http:// www.regulations.gov or in person at the hole diameter and damage, contact Gulfstream for repair and do repair). 14 CFR Part 39 U.S. Department of Transportation, Docket Operations, M–30, West You may obtain further information by [Docket No. FAA–2008–0299; Directorate Building Ground Floor, Room W12–140, examining the MCAI in the AD docket. Identifier 2007–NM–254–AD; Amendment 1200 New Jersey Avenue, SE., Comments 39–15593; AD 2008–13–30] Washington, DC. We gave the public the opportunity to RIN 2120–AA64 FOR FURTHER INFORMATION CONTACT: participate in developing this AD. We Mike Borfitz, Aerospace Engineer, received no comments on the NPRM or Airworthiness Directives; Gulfstream International Branch, ANM–116, FAA, Aerospace LP Model Astra SPX, 1125 on the determination of the cost to the Transport Airplane Directorate, 1601 public. Westwind Astra, and Gulfstream 100 Lind Avenue, SW., Renton, Washington Airplanes 98057–3356; telephone (425) 227–2677; Conclusion AGENCY: Federal Aviation fax (425) 227–1149. We reviewed the available data and Administration (FAA), Department of SUPPLEMENTARY INFORMATION: determined that air safety and the public interest require adopting the AD Transportation (DOT). Discussion ACTION: Final rule. as proposed. We issued a notice of proposed SUMMARY: We are adopting a new rulemaking (NPRM) to amend 14 CFR Differences Between This AD and the airworthiness directive (AD) for the part 39 to include an AD that would MCAI or Service Information products listed above. This AD results apply to the specified products. That We have reviewed the MCAI and from mandatory continuing NPRM was published in the Federal related service information and, in airworthiness information (MCAI) Register on March 14, 2008 (73 FR general, agree with their substance. But originated by an aviation authority of 13800). That NPRM proposed to correct we might have found it necessary to use another country to identify and correct an unsafe condition for the specified different words from those in the MCAI an unsafe condition on an aviation products. The MCAI states: to ensure the AD is clear for U.S. product. The MCAI describes the unsafe Two of the fasteners used to attach the operators and is enforceable. In making condition as: ‘‘scissors’’ to the horizontal and the vertical these changes, we do not intend to differ Two of the fasteners used to attach the stabilizers were found broken during routine substantively from the information ‘‘scissors’’ to the horizontal and the vertical maintenance. The highest loads on the provided in the MCAI and related stabilizers were found broken during routine ‘‘scissors’’ occur when using high reverse service information. maintenance. The highest loads on the thrust. Therefore, the reverse thrust must be We might also have required different ‘‘scissors’’ occur when using high reverse limited to idle in order to keep the loads at actions in this AD from those in the thrust. Therefore, the reverse thrust must be a sufficiently low level to preclude any MCAI in order to follow our FAA limited to idle in order to keep the loads at structural problem. It was established that on policies. Any such differences are model 1125 Astra, alternate fasteners of a sufficiently low level to preclude any highlighted in a NOTE within the AD. structural problem. * * * inferior strength were sometimes installed. When the originally specified fasteners are Costs of Compliance Failure of the attachment fasteners installed, the limitations on reverse thrust could result in possible in-flight loss of used may be lifted. For models Astra SPX We estimate that this AD will affect a horizontal or vertical stabilizer and and G100, however, the limitation remains in about 129 products of U.S. registry. We consequent loss of control of the effect till further revision of this AD. also estimate that it will take about 10

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work-hours per product to comply with Examining the AD Docket model 1125 Astra, alternate fasteners of the basic requirements of this AD. The inferior strength were sometimes installed. You may examine the AD docket on When the originally specified fasteners are average labor rate is $80 per work-hour. the Internet at http:// Required parts will cost about $33 per installed, the limitations on reverse thrust www.regulations.gov; or in person at the used may be lifted. For models Astra SPX product. Where the service information Docket Operations office between 9 a.m. and G100, however, the limitation remains in lists required parts costs that are and 5 p.m., Monday through Friday, effect till further revision of this AD. covered under warranty, we have except Federal holidays. The AD docket Failure of the attachment fasteners could assumed that there will be no charge for contains the NPRM, the regulatory result in possible in-flight loss of a horizontal these parts. As we do not control evaluation, any comments received, and or vertical stabilizer and consequent loss of warranty coverage for affected parties, other information. The street address for control of the airplane. Corrective actions some parties may incur costs higher the Docket Operations office (telephone include revising the airplane flight manual than estimated here. Based on these (AFM); inspections for damage of the bolts (800) 647–5527) is in the ADDRESSES and replacing the bolt, if necessary; and figures, we estimate the cost of this AD section. Comments will be available in to the U.S. operators to be $107,457, or doing related investigative and other the AD docket shortly after receipt. corrective actions (eddy current inspection $833 per product. for bolt hole diameter and damage, contact List of Subjects in 14 CFR Part 39 Authority for This Rulemaking Gulfstream for repair and do repair). Air transportation, Aircraft, Aviation Actions and Compliance Title 49 of the United States Code safety, Incorporation by reference, specifies the FAA’s authority to issue Safety. (f) Unless already done, do the following actions. rules on aviation safety. Subtitle I, Adoption of the Amendment (1) Within 30 days after the effective date section 106, describes the authority of of this AD: Revise the Limitations section of the FAA Administrator. ‘‘Subtitle VII: I Accordingly, under the authority the AFM by incorporating the information in Aviation Programs,’’ describes in more delegated to me by the Administrator, the applicable Israel Aircraft Industries detail the scope of the Agency’s the FAA amends 14 CFR part 39 as (Gulfstream) temporary revisions (TR): Astra authority. follows: AFM TR 15; Astra SPX AFM TR 8; or Gulfstream 100 AFM TR 1; all dated June 14, We are issuing this rulemaking under PART 39—AIRWORTHINESS 2007; into the Limitations section of the the authority described in ‘‘Subtitle VII, DIRECTIVES Gulfstream Astra, Astra SPX, or Gulfstream Part A, Subpart III, Section 44701: 100 AFM, as applicable. The TRs limit the General requirements.’’ Under that I 1. The authority citation for part 39 normal use of reverse thrust to idle. section, Congress charges the FAA with continues to read as follows: Note 1: The actions required by paragraph promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. (f) of this AD may be done by inserting a air commerce by prescribing regulations copy of Israel Aircraft Industries (Gulfstream) for practices, methods, and procedures § 39.13 [Amended] Astra AFM TR 15; Astra SPX AFM TR 8; or Gulfstream 100 AFM TR 1; all dated June 14, the Administrator finds necessary for I 2. The FAA amends § 39.13 by adding 2007; as applicable; into the Limitations safety in air commerce. This regulation the following new AD: section of the Gulfstream Astra, Astra SPX, is within the scope of that authority 2008–13–30 Gulfstream Aerospace LP or Gulfstream 100 AFM, as applicable. When because it addresses an unsafe condition (Formerly Israel Aircraft Industries, the applicable TR has been included in the that is likely to exist or develop on Ltd.): Amendment 39–15593. Docket No. general revisions of the applicable AFM, the products identified in this rulemaking FAA–2008–0299; Directorate Identifier general revisions may be inserted in the action. 2007–NM–254–AD. AFM. (2) For all airplanes: Within 25 flight hours Regulatory Findings Effective Date or 30 days after the effective date of this AD, (a) This airworthiness directive (AD) We determined that this AD will not whichever comes first, do the inspections becomes effective August 12, 2008. specified in paragraphs (f)(2)(i) and (f)(2)(ii) have federalism implications under of this AD in accordance with Part A of Affected ADs Executive Order 13132. This AD will Gulfstream Alert Service Bulletin 100–55A– not have a substantial direct effect on (b) None. 293, dated June 22, 2007. (i) Visually inspect the attachment bolts the States, on the relationship between Applicability the national government and the States, and replace any damaged bolt before further or on the distribution of power and (c) This AD applies to Gulfstream flight. Aerospace LP Model Astra SPX, 1125 (ii) Perform a detailed visual inspection of responsibilities among the various Westwind Astra, and Gulfstream 100 levels of government. fittings with part number (P/N) 25W357222– airplanes; certificated in any category; serial 501–51, and fillers with P/N 25W4011001– For the reasons discussed above, I numbers 004 through 158. 003, and surrounding structure for damage. If certify this AD: Subject blind bolts with P/N MS21141U0612 are installed and no damage is found, no further 1. Is not a ‘‘significant regulatory (d) Air Transport Association (ATA) of action is required. If any damage is found, action’’ under Executive Order 12866; America Code 55: Stabilizers. before further flight, repair using a method 2. Is not a ‘‘significant rule’’ under the Reason approved in accordance with the procedures specified in paragraph (g)(2) of this AD. If DOT Regulatory Policies and Procedures (e) The mandatory continuing (44 FR 11034, February 26, 1979); and any bolt with P/N AN173C11 is installed and airworthiness information (MCAI) states: damage is found, replace the bolt and do all 3. Will not have a significant Two of the fasteners used to attach the related investigative and applicable economic impact, positive or negative, ‘‘scissors’’ to the horizontal and the vertical corrective actions before further flight. on a substantial number of small entities stabilizers were found broken during routine (3) For Model 1125 Westwind Astra under the criteria of the Regulatory maintenance. The highest loads on the airplanes (serial numbers 004, 011 through Flexibility Act. ‘‘scissors’’ occur when using high reverse 072 inclusive, and 073 through 078 thrust. Therefore, the reverse thrust must be inclusive): Within 12 months after the We prepared a regulatory evaluation limited to idle in order to keep the loads at effective date of this AD, replace all P/N of the estimated costs to comply with a sufficiently low level to preclude any AN173C11 bolts, and do all related this AD and placed it in the AD docket. structural problem. It was established that on investigative and applicable corrective

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actions before further flight, as detailed in approve AMOCs for this AD, if requested 2007; Gulfstream Alert Service Bulletin 100– Part B of Gulfstream Alert Service Bulletin using the procedures found in 14 CFR 39.19. 55A–293, dated June 22, 2007; and Israel 100–55A–293, dated June 22, 2007. Send information to ATTN: Mike Borfitz, Aircraft Industries (Gulfstream) Astra SPX Accomplishment of Part B of the alert service Aerospace Engineer, International Branch, AFM TR 8, Astra AFM TR 15, and Gulfstream bulletin constitutes terminating action for ANM–116, FAA, Transport Airplane 100 AFM TR 1, all dated June 14, 2007; for paragraph (f)(1) of this AD. Israel Aircraft Directorate, 1601 Lind Avenue, SW., Renton, related information. Industries (Gulfstream) TR 15 may be deleted Washington 98057–3356; telephone (425) and unlimited use of reverse thrust is 227–2677; fax (425) 227–1149. Before using Material Incorporated by Reference any approved AMOC on any airplane to allowed per the Gulfstream Astra AFM. (i) You must use Gulfstream Alert Service Note 2: Reverse thrust limitations remain which the AMOC applies, notify your appropriate principal inspector (PI) in the Bulletin 100–55A–293, dated June 22, 2007, in effect for Model Astra SPX and Gulfstream and the temporary revisions specified in 100 airplanes. FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Table 1 of this AD, as applicable, to do the FAA AD Differences (2) Airworthy Product: For any requirement actions required by this AD, unless the AD in this AD to obtain corrective actions from specifies otherwise. Note 3: This AD differs from the MCAI a manufacturer or other source, use these (1) The Director of the Federal Register and/or service information as follows: actions if they are FAA-approved. Corrective approved the incorporation by reference of Compliance Time: The compliance time actions are considered FAA-approved if they this service information under 5 U.S.C. required by the MCAI or service information are approved by the State of Design Authority 552(a) and 1 CFR part 51. for performing the AFM revision is (or their delegated agent). You are required (2) For service information identified in immediate on receipt of this AD; however, to to assure the product is airworthy before it this AD, contact Gulfstream Aerospace avoid inadvertently grounding airplanes, this is returned to service. AD requires performing the AFM revision Corporation, P.O. Box 2206, Mail Station D– (3) Reporting Requirements: For any 25, Savannah, Georgia 31402–2206. within 30 days after the effective date of this reporting requirement in this AD, under the (3) You may review copies at the FAA, AD. provisions of the Paperwork Reduction Act, Transport Airplane Directorate, 1601 Lind the Office of Management and Budget (OMB) Other FAA AD Provisions has approved the information collection Avenue, SW., Renton, Washington; or at the (g) The following provisions also apply to requirements and has assigned OMB Control National Archives and Records this AD: Number 2120–0056. Administration (NARA). For information on (1) Alternative Methods of Compliance the availability of this material at NARA, call (AMOCs): The Manager, International Related Information (202) 741–6030, or go to: http:// Branch, ANM–116, Transport Airplane (h) Refer to MCAI Israeli Airworthiness www.archives.gov/federal-register/cfr/ibr- Directorate, FAA, has the authority to Directive 55–07–06–07R1, dated June 26, locations.html.

TABLE 1.—TEMPORARY REVISIONS INCORPORATED BY REFERENCE

Israel Aircraft Industries (Gulfstream) Dated To the

Astra SPX Temporary Revision 8 ...... June 14, 2007 ...... Gulfstream Astra SPX Airplane Flight Manual. Astra Temporary Revision 15 ...... June 14, 2007 ...... Gulfstream Astra Airplane Flight Manual. Gulfstream 100 Temporary Revision 1 ...... June 14, 2007 ...... Gulfstream 100 Airplane Flight Manual.

Issued in Renton, Washington, on June 6, This AD requires determining the part Docket Management Facility between 9 2008. number on the steering cylinder a.m. and 5 p.m., Monday through Michael Kaszycki, assembly for the nose landing gear Friday, except Federal holidays. The AD Acting Manager, Transport Airplane (NLG), determining the total flight docket contains this AD, the regulatory Directorate, Aircraft Certification Service. cycles accumulated on the NLG steering evaluation, any comments received, and [FR Doc. E8–14469 Filed 7–7–08; 8:45 am] cylinder assembly, repetitively other information. The address for the BILLING CODE 4910–13–P replacing the assembly, inspecting for Docket Office (telephone 800–647–5527) missing tow turning limit markings, and is the Document Management Facility, performing corrective actions if U.S. Department of Transportation, DEPARTMENT OF TRANSPORTATION necessary. This AD results from reports Docket Operations, M–30, West of numerous failures of the NLG steering Building Ground Floor, Room W12–140, Federal Aviation Administration cylinder. We are issuing this AD to 1200 New Jersey Avenue, SE., prevent the loss of hydraulic pressure Washington, DC 20590. 14 CFR Part 39 and steering control. FOR FURTHER INFORMATION CONTACT: [Docket No. FAA–2007–28255; Directorate DATES: This AD is effective August 12, Hector Hernandez, Aerospace Engineer, Identifier 2007–NM–023–AD; Amendment 2008. Systems and Equipment Branch, ACE– 39–15589; AD 2008–13–26] The Director of the Federal Register 119A, FAA, Atlanta Aircraft approved the incorporation by reference Certification Office, One Crown Center, RIN 2120–AA64 of certain publications listed in this AD 1895 Phoenix Boulevard, Suite 450, Airworthiness Directives; Lockheed as of August 12, 2008. Atlanta, Georgia 30349; telephone (770) Model 1329 Series Airplanes ADDRESSES: For service information 703–6069; fax (770) 703–6097. identified in this AD, contact Lockheed SUPPLEMENTARY INFORMATION: AGENCY: Federal Aviation Martin Aeronautics Company, 86 South Discussion Administration (FAA), DOT. Cobb Drive, Marietta, Georgia 30063. ACTION: Final rule. We issued a notice of proposed Examining the AD Docket rulemaking (NPRM) to amend 14 CFR SUMMARY: We are adopting a new You may examine the AD docket on part 39 to include an airworthiness airworthiness directive (AD) for certain the Internet at http:// directive (AD) that would apply to Lockheed Model 1329 series airplanes. www.regulations.gov; or in person at the certain Lockheed Model 1329 series

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airplanes. That NPRM was published in there is no record of a JL1955–7 steering major errors in the supportive the Federal Register on May 24, 2007 cylinder failure due to stress corrosion documentation and data supplied by (72 FR 29088). That NPRM proposed to cracking. Lockheed Martin. require determining the part number on We disagree. We received reports of We disagree. The identified unsafe the steering cylinder assembly for the several more service failures of P/N condition is a serious safety issue that nose landing gear (NLG), determining JL1955–7 steering cylinders as a result must be corrected. Lockheed Service the total flight cycles accumulated on of fatigue cracking in the thread relief Bulletins 329–300, Revision C, and the NLG steering cylinder assembly, area. Although no signs of corrosion 329II–32–8, Revision B, both dated repetitively replacing the assembly, were found in these particular failures, September 5, 2006, were cited as the inspecting for missing tow turning limit access to this area is difficult, and a appropriate sources of service markings, and performing corrective reliable inspection cannot be performed information for the NPRM’s proposed actions if necessary. in the thread relief area where the requirements. The actions specified in failures are occurring. Further, Comments these service bulletins adequately disassembling the actuator steering address the identified unsafe condition; We gave the public the opportunity to cylinder would destroy the cylinder. however, these service bulletins did participate in developing this AD. We Crack growth cannot be shown and contain discrepancies, which Lockheed considered the comments received. inspection intervals cannot be Martin has corrected in Lockheed Request To Withdraw NPRM: developed because the initial detectable Service Bulletin 329–300, Revision D, Inadequate To Correct Unsafe crack length is longer than the critical and 329II–32–8, Revision C, both dated Condition crack length. As a result, we find it October 4, 2007. Relevant changes to the necessary to impose a fatigue-based life service bulletins are outlined below. We Faith Landmark Ministries requests limit on the actuator steering cylinder. have determined that it is necessary to that we withdraw the NPRM because it We have not changed the final rule issue this final rule in order to address does not address the real problem with regarding this issue. the identified unsafe condition. We the NLG steering cylinder: Possible have revised paragraph (f) of this final fatigue cracking due to machining errors Suggestion of Possible Batch Problem rule to require the revised service during manufacture. Mr. Smith and Faith Landmark bulletins, and provided credit for We disagree. Based on information Ministries suggest the possibility of a accomplishment of the earlier revisions. from Lockheed Martin, due to lack of batch problem with the P/N JL1955–7 access to this area there is no reliable steering cylinder. Faith Landmark Requests To Address Service Bulletin inspection that can be performed in the Ministries states that four cylinders Discrepancies thread relief area where the failures are failed within two years on Lockheed Faith Landmark Ministries requests occurring. The only way to do the Martin airplanes that had very close correction of certain discrepancies, as inspection is to disassemble the actuator serial numbers (S/N 5211, 5213, 5215, outlined below, in the service steering cylinder—which would destroy and 5218) and another cylinder failed information cited in the NPRM. the cylinder. Originally the NLG on an airplane having S/N 5210. Mr. Lockheed Martin also stated that several steering cylinder was a life-limited part, Smith also notes that the airplanes on operators have indicated a need for but unknown to Lockheed Martin the which the parts experienced fatigue additional instructions on rebuilding life limit was removed from the failures are bunched together (S/Ns the NLG steering cylinder assembly. Lockheed JetStar/Handbook of 5210, 5213, 5215, and 5218). Operating and Maintenance Instructions The commenters made no specific Since we issued the NPRM, Lockheed (HOMI). We have determined that it is request. We have reviewed the data and issued Lockheed Service Bulletin 329– necessary to issue the final rule to re- have found no evidence of any batch 300, Revision D, and 329II–32–8, establish a relevant life limit and to problem with the steering cylinders Revision C, both dated October 4, 2007. address the identified unsafe condition. having P/N JL1955–7. We have not These revisions address many of the changed the final rule regarding this problems noted by the commenters, but Request To Remove Certain Cylinder issue. do not add work beyond the actions Part Numbers as Affected specified in the previous revision levels. Faith Landmark Ministries and Carl Request To Withdraw NPRM: The service bulletins also extend the life A. Smith request that we revise the Documentation Errors limits for certain NLG steering cylinder NPRM to remove P/N JL1955–7 steering Faith Landmark Ministries requests assemblies (as set forth in the Life cylinder as an affected part, because that we withdraw the NPRM because of Limits table below).

REVISED JETSTAR NLG STEERING CYLINDER ASSEMBLY LIFE LIMITS

Life limit Component Part No. (in flight cycles)

7049–T73 die forging ...... JL1955–5 ...... 2,175 7050–T7451 plate ...... JL1955–9 ...... 1,113 4340 steel bar ...... JL1955–801 ...... 3,211

We have revised paragraph (f) of this Paragraph 2.B.(1) of the service Maintenance Instructions), but the AD to require the revised service bulletins indicates disassembling, correct reference is ‘‘HOMI Figure 32– bulletins and added new paragraph (j) of cleaning, and inspecting the NLG 26A.’’ Faith Landmark Ministries states this AD to provide credit for work steering actuator assembly per ‘‘HOMI that for nose steering system rigging already done in accordance with the 32.4.4.1’’ (of the Lockheed JetStar/ instructions, paragraph 2.B.(5) of the previous revisions. Handbook of Operating and service bulletins refers to ‘‘HOMI Figure

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32–22,’’ but the correct reference is runway) and (2) NTSB Materials thread relief. This is the current ‘‘HOMI Figure 32–25’’ and that Laboratory Factual Report 99–107, dated configuration of most JetStars. The paragraph 2.B.(4) should refer to ‘‘HOMI April 13, 1999. The commenters note commenter is aware of six P/N JL1955– Figure 32–26A.’’ The service bulletins that the Lockheed engineering drawing 7 cylinders that were built as spares. have been revised to correct these for the cylinder does not clearly define The commenter states that there is no discrepancies. Although the revised the machining details of this region of need to remove all the existing P/N service bulletins do not specify the the cylinder, but shows a large radius JL1955–7 NLG cylinders from service. HOMI, they incorporate the necessary without dimensions. The commenters Lockheed Martin has developed a way figure and instructions. suggest that this indicates a design to examine these cylinders; Lockheed Paragraph 2.B.(2) of the service problem that needs to be corrected. The Martin inspected the six cylinders that bulletins specifies to identify the commenters state that the fatigue origins were in stock. replacement NLG steering cylinder were all located in a very straight We disagree with the commenter’s assembly with a serial number in the circular path in the tread relief area assertion that Lockheed Martin has location and method specified by around the inner surface of the cylinder. developed an adequate inspection for engineering drawing JL–1955, Revision We infer that the commenters are the P/N JL1955–7 NLG cylinders that AE or later. Faith Landmark Ministries requesting that we wait to issue the final would detect critical cracking. The states that one or more JetStar operators rule until a revised drawing is available. JetStar assessment by Lockheed Martin will probably use the same serial We agree that the NTSB reports could addresses the service history of the number so that, after repair, overhaul, or indicate a design problem. Lockheed failed cylinder along with material replacement, multiple units could have Martin examined engineering drawing changes made on P/N JL1955–7, and the same identifier. Further, the JL–1955, Revision AD, dated March 10, explores the possibility of commenter states that the NLG steering 1978, and determined that view A on nondestructive inspections. Lockheed cylinders are not serialized, so they sheet 1 did not contain sufficient clarity Martin concluded that combined cannot be traced. The commenter notes to consistently produce the cylinder in ultrasonic and eddy current inspections that many operators, trying to comply a condition that Lockheed Martin had would probably be ineffective. with an earlier version of the service intended. Lockheed Martin examined Lockheed Martin also considered a bulletin, installed exchanged the engineering drawing and found that fluorescent penetrant inspection, overhauled units, which are not the radius was defined but needed provided a time interval could be serialized. As a result, the cylinders are clarification. Lockheed Martin has calculated for continued safe flight and mixed within the fleet, and it is possible prepared an engineering order against the cylinder could be disassembled for that some of the mis-machined drawing JL–1955 and determined that inspection. cylinders are still in service. sufficient detail now exists to Based on information provided to the We agree that the identification of the consistently produce the cylinder with FAA, no available nondestructive NLG steering cylinder assembly must be the intended thread relief groove. inspection would detect a critical crack clear. The revised service bulletins However, the revised service bulletins in the thread relief area where the specify completing the identification removed any reference to drawing JL– failures are occurring because access to plate to indicate compliance with the 1955, Revision AD or AE. We have not this area is unavailable. As stated service bulletin, and to indicate new P/ changed the final rule regarding this previously, the only way to inspect the N JL1501–7 or JL1501–9 for the NLG issue. area is to disassemble the steering steering actuator assembly. It is our cylinder—which would destroy the understanding that the JL1955–13 Request To Clarify Criteria for cylinder. However, according to the cylinder assembly (which uses the Maintenance Personnel provisions of paragraph (l) of the final JL1955–15 cylinder) will have a serial Faith Landmark Ministries asserts that rule, we may approve requests for number consisting of a vendor cage code reassembling the NLG steering cylinder alternative method of compliances and sequential numerical lot number should be done by qualified shop (AMOCs) if the request includes data beginning at –001. For example, the persons or overhaul specialists at an that prove that the AMOC would serial number should be 8 characters appropriately rated repair station. provide an acceptable level of safety. XXXXX001, where XXXXX is the We infer that the commenter is We have not changed the final rule vendor cage code unique to the requesting that we revise the NPRM to regarding this issue. manufacturer (vendor) and –001 clarify the qualifications of personnel identifies the lot number. The proposed allowed to reassemble the NLG steering Request for Information on Addressing serial number will tie the cylinder cylinder. As long as the actions are to Unsafe Condition assembly to a specific manufacturer and be accomplished by persons prescribed Faith Landmark Ministries questions lot number for traceability. As we in section 43.3 (‘‘Persons authorized to why Lockheed Martin did not take any discussed previously, we have revised perform maintenance, preventive action by way of an AD or similar to this final rule to refer to the revised maintenance, rebuilding, and ensure that all the P/N JL1955–7 service bulletins. alterations.’’) of the Federal Aviation cylinders in the fleet were inspected for Regulations (14 CFR 43.3), the persons problems as soon as Lockheed Martin Requests for Revised Engineering authorized to perform the work required noticed the grouping of aircraft serial Drawing in an AD are not prescribed by the AD. numbers experiencing steering cylinder Mr. Smith and Faith Landmark We have not changed the final rule failures or immediately after the Ministries refer to two reports by the regarding this issue. incident that occurred in Houston in National Transportation Safety Board 1998, and the subsequent NTSB report. (NTSB): (1) The report associated with Request To Remove Spares Prohibition Only the FAA may initiate and issue the NPRM (regarding a 1998 incident Faith Landmark Ministries states that ADs. Lockheed Martin did report the in- involving a Lockheed Model 1329 Lockheed Martin issued a JetStar service failures to the FAA, and airplane on which the nose landing gear Assessment, dated June 8, 2007, which communicated with the NTSB as wheel locked sideways on landing and reviews the history of the P/N JL1955– required. Data were gathered to enable caused the airplane to run off the 7 cylinder failures due to fatigue at the a full assessment. The commenter made

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no specific request to change the NPRM. NPRM to add ‘‘fatigue cracking in the the part once, the commenter contends No change to the final rule is necessary thread relief’’ as a possible cause of the that future parts costs should be regarding this issue. NLG steering cylinder failures. Lockheed Martin’s responsibility. We agree with Lockheed Martin’s The operator made no specific request Request for Clarification of Unsafe rationale, but the Discussion section is Condition and Corrective Action to change the NPRM. Operators are not repeated in a final rule so we have responsible for maintaining their Faith Landmark Ministries further not changed this final rule regarding airplanes to the type design. The FAA questions why, when Service Bulletins this issue. cannot direct payment for replacement 329–300 and 329II–32–8 came out in parts by any party. Operators should 2000, they referred only to ‘‘corrosion Request To Revise Lockheed Martin Address discuss any issues regarding these costs problems’’ and included no requirement with the airplane manufacturer. We to inspect the steering cylinder for the Lockheed Martin requests that we have made no change to the final rule mis-machined thread relief that caused revise the NPRM to update its address. regarding this issue. the failure of the steering cylinder in the We have changed the appropriate 1998 incident that resulted from the references in the final rule accordingly. Additional Change to NPRM unsafe condition and prompted the AD. Request To Remove Life Limit Paragraph (g) of the NPRM specified The incident was investigated by the to replace any cylinder assembly having NTSB. Lockheed Martin was in contact Lockheed Martin indicates it plans to P/N JL1955–1 or JL1955–3 with a new with the NTSB and waiting for a final revise Service Bulletins 329–300 and assembly, and paragraph (j) of the report and the actual part before they 329II–32–8 to remove the life limit on NPRM (paragraph (k) of this final rule) could properly make the assessment as cylinder assembly P/N JL1955–9. would have prohibited the installation shown in the service bulletins. The new Lockheed Martin believes that no P/N of any cylinder assembly having P/N revisions of the service bulletins issued JL1955–9 cylinders have been built, as JL1955–1 or JL1955–3. (P/N JL1955–3 is in 2007 include an inspection of all this material will not be the preferred a cylinder, rather than an assembly.) threads for burrs or evidence of cross material for replacement steering Since the P/N JL1955–1 cylinder threading. The commenter made no cylinders. assembly uses the P/N JL1955–3 specific request to change the NPRM. We disagree that the life limit on P/ cylinder, we have deleted the references We have not changed the final rule N JL1955–9 should be removed. We to P/N JL1955–3 in the final rule. regarding this issue. have received no evidence indicating that this part does not have corrosion or Conclusion Request To Revise Cost Estimate fatigue issues, in light of the incidents Lockheed Martin states that the that have occurred. The revised service We reviewed the relevant data, estimated cost for the part should be bulletins did not remove the life limit considered the comments received, and $14,876.57 per airplane, but the NPRM on any of the cylinder assemblies. No determined that air safety and the indicated no cost for parts. change to the final rule is necessary public interest require adopting the AD We infer that the operator requests regarding this issue. with the changes described previously. that we revise the cost estimate of the We also determined that these changes Request To Clarify Cost Estimate NPRM. We agree. The NPRM provided will not increase the economic burden the estimated costs for the inspection Four Star Int’l, Inc., states that on any operator or increase the scope of only. This final rule includes the costs replacement cylinders should be made the AD. for the conditionally required cylinder available to operators at no cost. The Costs of Compliance replacement. commenter reports that an NLG steering actuator failed apparently due to stress, There are about 48 airplanes of the Request To Revise Description of with no corrosion observed. Because affected design in the worldwide fleet. Unsafe Condition Lockheed Martin has since identified The following table provides the Lockheed Martin requests that we the source of the problem, and because estimated costs for U.S. operators to revise the Discussion section of the this operator has already paid to replace comply with this AD.

ESTIMATED COSTS

Number of Work Average U.S.-reg- Action hours labor rate Parts Cost per airplane istered Fleet cost per hour airplanes

Inspect for P/N ...... 3 $80 $0 $240 ...... 34 ...... $8,160. Replace assembly ...... 2 80 14,877 15,037, per replacement ...... Up to 34 .... Up to $511,258, per replace- ment.

Authority for This Rulemaking We are issuing this rulemaking under is within the scope of that authority the authority described in Subtitle VII, because it addresses an unsafe condition Title 49 of the United States Code Part A, Subpart III, Section 44701: that is likely to exist or develop on specifies the FAA’s authority to issue ‘‘General requirements.’’ Under that products identified in this rulemaking rules on aviation safety. Subtitle I, section, Congress charges the FAA with action. section 106, describes the authority of promoting safe flight of civil aircraft in the FAA Administrator. Subtitle VII: air commerce by prescribing regulations Regulatory Findings ‘‘Aviation Programs’’ describes in more for practices, methods, and procedures This AD will not have federalism detail the scope of the Agency’s the Administrator finds necessary for implications under Executive Order authority. safety in air commerce. This regulation 13132. This AD will not have a

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substantial direct effect on the States, on Adoption of the Amendment Applicability the relationship between the national (c) This AD applies to the following I government and the States, or on the Accordingly, under the authority airplanes, certificated in any category. distribution of power and delegated to me by the Administrator, (1) Lockheed Model 1329–23A, 1329–23D, responsibilities among the various the FAA amends 14 CFR part 39 as and 1329–23E series airplanes; serial levels of government. follows: numbers 5001 through 5162 inclusive. For the reasons discussed above, I (2) Lockheed Model 1329–25 series PART 39—AIRWORTHINESS certify that this AD: airplanes, serial numbers 5201 through 5240 (1) Is not a ‘‘significant regulatory DIRECTIVES inclusive. action’’ under Executive Order 12866, I 1. The authority citation for part 39 Unsafe Condition (2) Is not a ‘‘significant rule’’ under continues to read as follows: (d) This AD results from reports of DOT Regulatory Policies and Procedures numerous failures of the nose landing gear Authority: 49 U.S.C. 106(g), 40113, 44701. (44 FR 11034, February 26, 1979), and (NLG) steering cylinder. We are issuing this (3) Will not have a significant § 39.13 [Amended] AD to prevent the loss of hydraulic pressure economic impact, positive or negative, and steering control. I on a substantial number of small entities 2. The FAA amends § 39.13 by adding Compliance under the criteria of the Regulatory the following new AD: Flexibility Act. 2008–13–26 Lockheed: Amendment 39– (e) You are responsible for having the You can find our regulatory 15589. Docket No. FAA–2007–28255; actions required by this AD performed within evaluation and the estimated costs of Directorate Identifier 2007–NM–023–AD. the compliance times specified, unless the actions have already been done. compliance in the AD Docket. Effective Date Service Information List of Subjects in 14 CFR Part 39 (a) This airworthiness directive (AD) is effective August 12, 2008. (f) The term ‘‘service bulletin,’’ as used in Air transportation, Aircraft, Aviation this AD, means the Accomplishment safety, Incorporation by reference, Affected ADs Instructions of the applicable service bulletin Safety. (b) None. identified in Table 1 of this AD.

TABLE 1.—SERVICE BULLETINS

Lockheed Service Bulletin Revision Date Affected airplanes

329–300 ...... D ...... October 4, 2007 ...... 1329–23A, 1329–23D, 1329–23E. 329II–32–8 ...... C ...... October 4, 2007 ...... 1329–25.

Inspection for Cylinder Assembly Part Inspection for Tow Turning Limit Markings Parts Installation Number (i) Within 30 days after the effective date (k) As of the effective date of this AD, do (g) Within 30 days after the effective date of this AD: Perform a general visual not install on any airplane a NLG steering of this AD, inspect to determine the part inspection above the NLG doors to detect cylinder assembly that has P/N JL1955–1. number (P/N) on the steering cylinder missing tow turning limit markings, in Alternative Methods of Compliance assembly for the nose landing gear (NLG). A accordance with the applicable service (AMOCs) review of airplane maintenance records is bulletin. If any markings are absent, restore/ acceptable in lieu of this inspection if the apply markings before further flight in (l)(1) The Manager, Atlanta Aircraft part number can be conclusively determined accordance with the applicable service Certification Office (ACO), FAA, ATTN: from that review. Replace any cylinder bulletin. Hector Hernandez, Aerospace Engineer, Systems and Equipment Branch, ACE–119A, assembly having P/N JL1955–1 with a new Note 1: For the purposes of this AD, a FAA, Atlanta Aircraft Certification Office, assembly before further flight in accordance general visual inspection is: ‘‘A visual One Crown Center, 1895 Phoenix Boulevard, with the applicable service bulletin. examination of an interior or exterior area, Suite 450, Atlanta, Georgia 30349; telephone installation, or assembly to detect obvious Life Limits (770) 703–6069; fax (770) 703–6097; has the damage, failure, or irregularity. This level of (h) Within 30 days after the effective date authority to approve AMOCs for this AD, if inspection is made from within touching of this AD: Review the airplane records to requested using the procedures found in 14 distance unless otherwise specified. A mirror determine the total flight cycles accumulated CFR 39.19. may be necessary to ensure visual access to on the NLG steering cylinder assembly, in (2) To request a different method of accordance with the applicable service all surfaces in the inspection area. This level compliance or a different compliance time bulletin. Before any steering cylinder of inspection is made under normally for this AD, follow the procedures in 14 CFR assembly component reaches its life limit, as available lighting conditions such as 39.19. Before using any approved AMOC on specified in Table 1 of the Accomplishment daylight, hangar lighting, flashlight, or any airplane to which the AMOC applies, Instructions of the applicable service droplight and may require removal or notify your appropriate principal inspector bulletin, or within 30 days after the effective opening of access panels or doors. Stands, (PI) in the FAA Flight Standards District date of this AD, whichever occurs later: ladders, or platforms may be required to gain Office (FSDO), or lacking a PI, your local Replace the cylinder assembly with a new proximity to the area being checked.’’ FSDO. assembly in accordance with the applicable service bulletin. If the steering cylinder Credit for Actions Done per Previous Material Incorporated by Reference assembly’s age cannot be positively Version of Service Bulletins (m) You must use Lockheed Service determined from the records review, replace (j) Accomplishment of the actions specified Bulletin 329–300, Revision D, dated October it within 30 days after the effective date of in Lockheed Service Bulletin 329–300, 4, 2007; or Lockheed Service Bulletin 329II– this AD, in accordance with the applicable Revision C, dated September 5, 2006, or 32–8, Revision C, dated October 4, 2007; as service bulletin. Thereafter, replace the 329II–32–8, Revision B, dated September 5, applicable, to do the actions required by this cylinder assembly at intervals not to exceed 2006, as applicable, before the effective date AD, unless the AD specifies otherwise. the life limits as specified in the applicable of this AD, is acceptable for compliance with (1) The Director of the Federal Register service bulletin. the corresponding requirements of this AD. approved the incorporation by reference of

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this service information under 5 U.S.C. accelerate skin crack growth and result language in certain paragraphs of the 552(a) and 1 CFR part 51. in decompression of the airplane. NPRM be clarified, as follows: (2) For service information identified in DATES: This AD is effective August 12, Boeing states that the intent of this AD, contact Lockheed Martin 2008. paragraph (h) of the NPRM is unclear, Aeronautics Company, 86 South Cobb Drive, and the conditional statement could be Marietta, Georgia 30063. The Director of the Federal Register (3) You may review copies of the service approved the incorporation by reference misinterpreted. Boeing notes that the information incorporated by reference at the of a certain publication listed in this AD statement ‘‘the structure that has been FAA, Transport Airplane Directorate, 1601 as of August 12, 2008. damaged is not covered in the structural repair manual’’ (SRM) will likely be Lind Avenue, SW., Renton, Washington; or at ADDRESSES: For service information interpreted differently by each airline. the National Archives and Records identified in this AD, contact Boeing Administration (NARA). For information on Boeing adds that this frame area is Commercial Airplanes, P.O. Box 3707, the availability of this material at NARA, call relatively complex with a frame splice, Seattle, Washington 98124–2207. 202–741–6030, or go to http:// stringer clips, and, in some cases, a www.archives.gov/federal_register/ _ _ _ Examining the AD Docket shear tie in the area of the repair. Boeing code of federal regulations/ states that only specific SRM repairs can ibr_locations.html. You may examine the AD docket on the Internet at http:// be used to fix the frame in this complex Issued in Renton, Washington, on June 13, area; for that reason, the referenced 2008. www.regulations.gov; or in person at the Docket Management Facility between 9 service bulletin specifically lists the Ali Bahrami, SRM sections that can be used, and a.m. and 5 p.m., Monday through Manager, Transport Airplane Directorate, recommends contacting Boeing if the Friday, except Federal holidays. The AD Aircraft Certification Service. existing repairs are not per these docket contains this AD, the regulatory [FR Doc. E8–14470 Filed 7–7–08; 8:45 am] sections. Boeing notes that there are evaluation, any comments received, and BILLING CODE 4910–13–P other frames and general formed section other information. The address for the repairs in the SRM that operators could Docket Office (telephone 800–647–5527) have used that may or may not work for is the Document Management Facility, DEPARTMENT OF TRANSPORTATION this area; for those cases or others that U.S. Department of Transportation, may not have been repaired in Docket Operations, M–30, West Federal Aviation Administration accordance with the SRM, Boeing Building Ground Floor, Room W12–140, would like to evaluate them for 14 CFR Part 39 1200 New Jersey Avenue, SE., structural adequacy. Boeing believes the Washington, DC 20590. intent of paragraph (h) is to cover this [Docket No. FAA–2007–0184; Directorate FOR FURTHER INFORMATION CONTACT: situation, except to refer to paragraph (j) Identifier 2007–NM–140–AD; Amendment Wayne Lockett, Aerospace Engineer, 39–15575; AD 2008–13–12] of the NPRM instead of contacting Airframe Branch, ANM–120S, FAA, Boeing. Boeing recommends that Seattle Aircraft Certification Office, RIN 2120–AA64 paragraph (h) be rewritten as follows: ‘‘If 1601 Lind Avenue, SW., Renton, during the accomplishment of the Airworthiness Directives; Boeing Washington 98057–3356; telephone corrective actions required by paragraph Model 737–100, –200, –200C, –300, (425) 917–6447; fax (425) 917–6590. (f) of this AD, for airplanes for which a –400, and –500 Series Airplanes SUPPLEMENTARY INFORMATION: repair has previously been accomplished, if the repair is not per the Discussion AGENCY: Federal Aviation 737–400 SRM 53–00–07, Figure 201, Administration (FAA), DOT. We issued a notice of proposed Repair 1, or 737–500 SRM 53–00–07, ACTION: Final rule. rulemaking (NPRM) to amend 14 CFR Figure 201, Repair 1, or 737–300 SRM part 39 to include an airworthiness 53–00–07, Figure 201, Repair 1, or 737– SUMMARY: We are adopting a new directive (AD) that would apply to 100/200 SRM 53–10–4, Figure 1, as airworthiness directive (AD) for certain certain Boeing Model 737–100, –200, applicable, before further flight, repair Boeing Model 737–100, –200, –200C, –200C, –300, –400, and –500 series in accordance with the procedures –300, –400, and –500 series airplanes. airplanes. That NPRM was published in specified in paragraph (j) of this AD.’’ This AD requires various repetitive the Federal Register on November 13, ATA states that UA indicates that the inspections for cracking of the upper 2007 (72 FR 63831). That NPRM term ‘‘structural repair manual,’’ as frame to side frame splice of the proposed to require various repetitive specified in paragraph (h) of the NPRM, fuselage, and other specified and inspections for cracking of the upper should be replaced with ‘‘Service corrective actions if necessary. This AD frame to side frame splice of the Bulletin 737–53A1261 Part III.’’ also provides for an optional preventive fuselage, and other specified and We agree that paragraph (h) of this AD modification, which terminates the corrective actions if necessary. That should be clarified; there are many repetitive inspections. This AD results NPRM also provides for an optional repairs for this structure specified in the from a report that the upper frame of the preventive modification, which would SRM that could be installed which may fuselage was severed between stringers terminate the repetitive inspections. not adequately address the unsafe S–13L and S–14L at station 747, and the condition. Therefore, we have changed adjacent frame at station 767 had a 1.3- Comments paragraph (h) for clarification, as inch-long crack at the same stringer We gave the public the opportunity to follows: ‘‘For airplanes on which a location. We are issuing this AD to participate in developing this AD. We repair has been previously detect and correct fatigue cracking of the considered the comments received. accomplished: If, during upper frame to side frame splice of the accomplishment of the corrective fuselage, which could result in reduced Requests To Clarify Certain Paragraphs actions required by paragraph (f) of this structural integrity of the frame and Boeing, Southwest Airlines (SWA), AD, it is found that the repair was not adjacent lap joint. This reduced United Airlines (UA), and the Air done per the Boeing 737–100/200 SRM structural integrity can increase loading Transport Association (ATA) on behalf 53–10–4, Figure 1, or the Boeing 737– in the fuselage skin, which will of its member UA, ask that certain 300/400/500 SRM 53–00–07, Figure

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201, Repair 1, as applicable; before they are approved by the Manager, each airplane to reach a heavy further flight, repair in accordance with Seattle Aircraft Certification Office. maintenance opportunity for the the procedures specified in paragraph We understand UA’s comment. As we airplane to be in an appropriate setting (k) of this AD.’’ explained previously, for clarification for accomplishing the required SWA requests clarification of we have added a new paragraph (i) to inspections and repairs if required. paragraphs (h) and (i) of the NPRM. this AD to define the action for SWA adds that it had several crack SWA states that if an SRM repair is airplanes on which a repair has been findings on airplanes with over 50,000 considered a repair option to inspection previously accomplished. Paragraph (j) flight cycles, and therefore it cannot findings per Boeing Alert Service of this AD, if accomplished, terminates consider the Boeing findings an Bulletin 737–53A1261, dated January the repetitive inspections required by anomaly. 19, 2006, as indicated in paragraph (h) paragraph (f) of this AD for the repaired KLM states that it submitted a service of the NPRM, then paragraph (i) of the or modified frames only. We have made request to Boeing asking them to NPRM should specify that SRM repairs no change to the AD in this regard. consider a compliance time for Boeing would be an alternative method of Alert Service Bulletin 737–53A1261, Request To Clarify Certain Sections of which is equal to the compliance time compliance (AMOC) and terminating the Preamble of the NPRM action to the inspections specified in given in AD 2006–26–09, amendment that service bulletin. Boeing requests that certain sections 39–14867 (72 FR 252, January 4, 2007), We do not agree that paragraph (i) of in the preamble of the NPRM be and Boeing Special Attention Service the NPRM should be changed to specify clarified for the following reasons: Bulletin 737–53–1216, Revision 1, dated that SRM repairs are an AMOC and 1. Boeing states that the first June 8, 2006. KLM states that both terminating action to the inspections paragraph of the Discussion section inspections can then be done specified in the service bulletin. The incorrectly references a Model 737–300 simultaneously during a C-check, SRM is referenced in the service airplane, but the airplane found cracked without additional work. KLM adds that bulletin as an acceptable method for was a Model 737–200 airplane. Boeing replied to the service request in 2. Boeing notes that the last sentence accomplishing certain repairs; therefore, October 2006 stating that no change in specified in the Other Related Service it is not necessary to identify the SRM compliance time was anticipated. KLM Information section specifies that the in paragraph (i) because the service notes that the impact of the inspection/ inspections are ‘‘recommended.’’ Boeing bulletin (which includes the SRM preventive modification required by AD states that the inspections are contents) is already identified in that 2006–26–09 is similar to the inspection/ ‘‘required,’’ and suggests incorporating paragraph. We have made no change to preventive modification in the NPRM. this change to the language. ATA on behalf of its member UA asks the AD in this regard. We acknowledge the commenter’s that we consider extending the Boeing asks that we clarify paragraph concern. However, the procedures repetitive inspection interval from 6,000 (i)(1) of the NPRM to include a reference specified in the service information are to 9,000 flight cycles in order to allow to Appendices A through X to the not regulatory; the procedures specified airplanes to reach a heavy maintenance service bulletin citation, for not only the in service information can only be opportunity. To date, UA states, it has repair, but also the preventive required by issuing an AD. We agree inspected 960 frames per Boeing Alert modification. Boeing recommends that that the model referenced in the Service Bulletin 737–53A1261 with no paragraph (i)(1) be rewritten as follows: Discussion section was incorrect; crack findings; the airplanes inspected ‘‘Accomplishment of the repair however, the identified sections of the ranged from 28,500 to 35,500 total flight specified in Part 3, or the preventive NPRM do not reappear in the final rule. cycles. UA suggests that the findings on modification specified in Part 4 of the Therefore, we find that no change to the the airplanes cited in the NPRM might Accomplishment Instructions of Boeing AD is necessary in this regard. be an anomaly rather than a trend if Alert Service Bulletin 737–53A1261, other industry findings are similar to Requests To Extend Compliance Times including Appendices A through X UA’s. inclusive, dated January 19, 2006.’’ SWA, KLM Royal Dutch Airlines We do not agree to extend the Boeing adds that paragraph (i)(1) as (KLM), and UA ask that we extend the compliance times. Although we currently written does not associate the compliance times for the inspections as recognize the convenience to the appendices to the preventive follows: operator if the compliance time is modification. Appendices A through V SWA asks that we consider a different aligned with its maintenance of the service bulletin are directly compliance time for airplanes that have inspections, fatigue cracking of the applicable to the preventive accomplished Boeing Service Bulletin upper frame to side frame splice of the modification. 737–53A1177, since the likelihood of fuselage is a significant safety issue, and We agree that paragraph (i)(1) of the multi-element damage does not exist for we have determined that the proposed NPRM (paragraph (j)(1) of this AD) airplanes on which that service bulletin compliance times are warranted based should be clarified to add a reference to has been accomplished at stringer 14 on the effectiveness of the inspection Appendices A through X to the service left or right. SWA recommends aligning procedure and the rate of crack growth. bulletin citation. This change links the the initial grace period and repeat In developing appropriate compliance appendices to the preventive intervals at the same frequency as times for this AD, we considered those modification, as well as the repair. We defined in Boeing Service Bulletin 737– safety issues as well as the have changed paragraph (j)(1) 53–1216, section 1.E.; i.e., 9,000 flight recommendations of the manufacturer, accordingly. cycles after issuance of the AD, and the availability of necessary repair parts, UA asks that we clarify paragraph repeating the inspections thereafter and the practical aspect of (i)(3) of the NPRM. UA notes that every 9,000 flight cycles. SWA adds that accomplishing the required inspections previously installed SRM repairs do not this will align the interior access and within an interval of time that terminate re-inspections; although inspection requirements with the frame corresponds to the normal maintenance paragraph (i)(3) may lead an operator to inspection requirements in both service schedules of most affected operators. think a previously installed SRM repair bulletins. SWA notes that the 9,000- We have made no change to the AD in does terminate those inspections, as flight-cycle interval would also allow this regard.

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Request for Clarification of Compliance between 18 and 38 work hours per the FAA amends 14 CFR part 39 as Time airplane, depending on airplane follows: configuration, at an average labor rate of KLM states that it assumes the new PART 39—AIRWORTHINESS start date of the inspections will be the $80 per work hour. Based on these DIRECTIVES issue date of the AD, instead of the figures, the estimated cost of the service bulletin issue date. inspections required by this AD for U.S. I 1. The authority citation for part 39 From this statement we infer that operators is between $754,560 and continues to read as follows: KLM is requesting that we clarify the $1,592,960, or $1,440 and $3,040 per Authority: 49 U.S.C. 106(g), 40113, 44701. compliance time specified in paragraph airplane, per inspection cycle. (f) of the NPRM. We agree that Authority for This Rulemaking § 39.13 [Amended] clarification is necessary. We have Title 49 of the United States Code I 2. The FAA amends § 39.13 by adding added a new paragraph (g) to the AD to the following new AD: clarify the compliance time. We have re- specifies the FAA’s authority to issue identified subsequent paragraphs rules on aviation safety. Subtitle I, 2008–13–12 Boeing: Amendment 39–15575. accordingly. section 106, describes the authority of Docket No. FAA–2007–0184; Directorate the FAA Administrator. ‘‘Subtitle VII: Identifier 2007–NM–140–AD. Request To Change Cost Estimate Aviation Programs,’’ describes in more Effective Date detail the scope of the Agency’s SWA states that the costs of (a) This airworthiness directive (AD) is compliance identified in the NPRM are authority. effective August 12, 2008. underestimated. SWA states that the We are issuing this rulemaking under inspection, repair of crack findings, and the authority described in ‘‘Subtitle VII, Affected ADs terminating action on uncracked frames Part A, Subpart III, section 44701: (b) None. is close to 1,200 labor hours at an General requirements.’’ Under that Applicability average labor rate of $80 per work hour. section, Congress charges the FAA with The cost per airplane is closer to promoting safe flight of civil aircraft in (c) This AD applies to Boeing Model 737– 100, –200, –200C, –300, –400, and –500 $96,000 than $3,040. This estimate does air commerce by prescribing regulations series airplanes, certificated in any category; not include access to the interior of the for practices, methods, and procedures as identified in Boeing Alert Service Bulletin airplanes, as the airplanes were in a the Administrator finds necessary for 737–53A1261, dated January 19, 2006. heavy maintenance environment. safety in air commerce. This regulation We infer that the commenter is asking is within the scope of that authority Unsafe Condition that we revise the cost estimate because it addresses an unsafe condition (d) This AD results from a report that the provided in the NPRM. We do not agree. that is likely to exist or develop on upper frame of the fuselage was severed The cost information provided in AD products identified in this rulemaking between stringers S–13L and S–14L at station actions describes only the direct costs of 747, and the adjacent frame at station 767 action. had a 1.3-inch-long crack at the same stringer the specific requirements. Based on the Regulatory Findings location. We are issuing this AD to detect and best data available, the manufacturer correct fatigue cracking of the upper frame to provided the number of work hours to This AD will not have federalism side frame splice of the fuselage, which could do the required actions for this AD. We implications under Executive Order result in reduced structural integrity of the recognize that, in doing the actions 13132. This AD will not have a frame and adjacent lap joint. This reduced required by an AD, operators might substantial direct effect on the States, on structural integrity can increase loading in incur incidental costs, in addition to the the relationship between the national the fuselage skin, which will accelerate skin direct costs. The cost analysis in AD government and the States, or on the crack growth and result in decompression of rulemaking actions, however, typically distribution of power and the airplane. does not include incidental costs such responsibilities among the various Compliance as the time required to gain access and levels of government. (e) You are responsible for having the close up, time necessary for planning, or For the reasons discussed above, I actions required by this AD performed within time necessitated by other certify that this AD: the compliance times specified, unless the administrative actions. Those incidental (1) Is not a ‘‘significant regulatory actions have already been done. action’’ under Executive Order 12866, costs, which might vary significantly Repetitive Inspections/Corrective Actions among operators, are almost impossible (2) Is not a ‘‘significant rule’’ under to calculate. We have made no change DOT Regulatory Policies and Procedures (f) At the applicable compliance time listed in paragraph 1.E., ‘‘Compliance,’’ of Boeing to the AD in this regard. (44 FR 11034, February 26, 1979), and (3) Will not have a significant Alert Service Bulletin 737–53A1261, Conclusion including Appendices A through X inclusive, economic impact, positive or negative, dated January 19, 2006; except as provided We reviewed the relevant data, on a substantial number of small entities by paragraph (g) of this AD: Do the applicable considered the comments received, and under the criteria of the Regulatory inspections for cracking of the upper frame determined that air safety and the Flexibility Act. to side frame splice of the fuselage by doing public interest require adopting the AD You can find our regulatory all of the actions, as specified in the with the changes described previously. evaluation and the estimated costs of Accomplishment Instructions of the service We also determined that these changes compliance in the AD Docket. bulletin; except as provided by paragraphs (h) and (i) of this AD. Do all applicable will not increase the economic burden List of Subjects in 14 CFR Part 39 on any operator or increase the scope of specified and corrective actions before further flight in accordance with the service the AD. Air transportation, Aircraft, Aviation safety, Incorporation by reference, bulletin. Repeat the applicable inspections Costs of Compliance Safety. thereafter at intervals not to exceed 6,000 flight cycles until the terminating action in There are about 1,509 airplanes of the Adoption of the Amendment paragraph (j) of this AD has been affected design in the worldwide fleet. accomplished. This AD affects about 524 airplanes of I Accordingly, under the authority (g) Where Boeing Alert Service Bulletin U.S. registry. The inspections take delegated to me by the Administrator, 737–53A1261, including Appendices A

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through X inclusive, dated January 19, 2006, (1) The Director of the Federal Register notification and annual report specifies a compliance time relative to the approved the incorporation by reference of requirements for exports of Chemical date on the service bulletin, this AD requires this service information under 5 U.S.C. Weapons Convention (CWC) Schedule 1 compliance within the specified compliance 552(a) and 1 CFR part 51. chemicals and the End-Use Certificate (2) For service information identified in time after the effective date of this AD. requirement for certain exports of CWC (h) If any crack is found during any this AD, contact Boeing Commercial inspection required by this AD, and Boeing Airplanes, P.O. Box 3707, Seattle, Schedule 3 chemicals by updating the Alert Service Bulletin 737–53A1261, Washington 98124–2207. fax number and address for submitting including Appendices A through X inclusive, (3) You may review copies of the service these documents to BIS. dated January 19, 2006, specifies to contact information incorporated by reference at the Finally, this rule amends the list of Boeing for appropriate action: Before further FAA, Transport Airplane Directorate, 1601 countries that currently are States flight, repair the crack in accordance with the Lind Avenue, SW., Renton, Washington; or at Parties to the CWC by adding ‘‘Congo procedures specified in paragraph (k) of this the National Archives and Records (Republic of the)’’ and ‘‘Guinea- AD. Administration (NARA). For information on the availability of this material at NARA, call Bissau,’’which recently became States (i) For airplanes on which a repair has been Parties. As a result of this change, the previously accomplished: If, during 202–741–6030, or go to: http:// _ accomplishment of the corrective actions www.archives.gov/federal register/ CW (Chemical Weapons) license _ _ _ required by paragraph (f) of this AD, it is code of federal regulations/ requirements and policies in the EAR _ found that the repair was not done per the ibr locations.html. that apply to these two countries now Boeing 737–100/200 Structural Repair Issued in Renton, Washington, on June 12, conform with those applicable to other Manual (SRM) 53–10–4, Figure 1, or the 2008. CWC States Parties. Boeing 737–300/400/500 SRM 53–00–07, Ali Bahrami, DATES: This rule is effective July 8, Figure 201, Repair 1, as applicable; before further flight, repair in accordance with the Manager, Transport Airplane Directorate, 2008. Although there is no formal procedures specified in paragraph (k) of this Aircraft Certification Service. comment period, public comments on AD. [FR Doc. E8–14471 Filed 7–7–08; 8:45 am] this regulation are welcome on a BILLING CODE 4910–13–P continuing basis. Optional Terminating Action ADDRESSES: You may submit comments, (j) Accomplishing the actions specified in identified by RIN 0694–AE36, by any of paragraph (j)(1), (j)(2), or (j)(3) of this AD, as DEPARTMENT OF COMMERCE applicable, terminates the repetitive the following methods: • E-mail: inspections required by paragraph (f) of this Bureau of Industry and Security AD for the repaired or modified frames only. [email protected]. Include (1) Accomplishment of the repair specified ‘‘RIN 0694–AE36’’ in the subject line of in Part 3, or the preventive modification 15 CFR Parts 745 and 774 the message. specified in Part 4, of the Accomplishment [Docket No. 080528717–8722–01] • Fax: (202) 482–3355. Please alert Instructions of Boeing Alert Service Bulletin the Regulatory Policy Division, by RIN 0694–AE36 737–53A1261, including Appendices A calling (202) 482–2440, if you are faxing through X inclusive, dated January 19, 2006. Implementation of the Understandings comments. (2) Accomplishment of the repair or the • preventive modification specified in Boeing Reached at the April 2008 Australia Mail or Hand Delivery/Courier: Message M–7200–02–01294, dated August Group (AG) Plenary Meeting; Additions Willard Fisher, U.S. Department of 20, 2002. to the List of States Parties to the Commerce, Bureau of Industry and Alternative Methods of Compliance Chemical Weapons Convention (CWC) Security, Regulatory Policy Division, (AMOCs) 14th Street & Pennsylvania Avenue, AGENCY: Bureau of Industry and NW., Room 2705, Washington, DC (k)(1) The Manager, Seattle ACO, has the Security, Commerce. authority to approve AMOCs for this AD, if 20230, ATTN: RIN 0694–AE36. requested in accordance with the procedures ACTION: Final rule. Send comments regarding this collection of information, including found in 14 CFR 39.19. SUMMARY: The Bureau of Industry and (2) To request a different method of suggestions for reducing the burden, to Security (BIS) is publishing this final compliance or a different compliance time David Rostker, Office of Management for this AD, follow the procedures in 14 CFR rule to amend the Export and Budget (OMB), by e-mail to 39.19. Before using any approved AMOC on Administration Regulations (EAR) to [email protected], or by fax any airplane to which the AMOC applies, implement the understandings reached to (202) 395–7285; and to the Regulatory notify your appropriate principal inspector at the April 2008 plenary meeting of the Policy Division, Bureau of Industry and (PI) in the FAA Flight Standards District Australia Group (AG). This final rule Security, Department of Commerce, Office (FSDO), or lacking a PI, your local amends the EAR to reflect changes to FSDO. 14th Street & Pennsylvania Avenue, the AG ‘‘Control List of Biological NW., Room 2705, Washington, DC (3) An AMOC that provides an acceptable Agents’’ that the countries participating level of safety may be used for any repair 20230. Comments on this collection of in the AG adopted at the plenary required by this AD, if it is approved by an information should be submitted Authorized Representative for the Boeing meeting. Specifically, this rule revises separately from comments on the final Commercial Airplanes Delegation Option the Commerce Control List (CCL) entry rule (i.e., RIN 0694–AE36)—all Authorization Organization who has been that controls animal pathogens on the comments on the latter should be authorized by the Manager, Seattle ACO, to AG ‘‘Control List of Biological Agents’’ submitted by one of the three methods make those findings. For a repair method to by revising the listing for avian outlined above. be approved, the repair must meet the influenza viruses to replace the certification basis of the airplane, and the description of highly pathogenic avian FOR FURTHER INFORMATION CONTACT: approval must specifically refer to this AD. influenza (HPAI) with new HPAI Elizabeth Scott, Director, Chemical and Material Incorporated by Reference language that is based on the definition Biological Controls Division, Office of currently used by the World Nonproliferation and Treaty (l) You must use Boeing Alert Service Compliance, Bureau of Industry and Bulletin 737–53A1261, dated January 19, Organization for Animal Health (OIE). 2006, to do the actions required by this AD, This rule also amends the provisions Security, Telephone: (202) 482–3343. unless the AD specifies otherwise. in the EAR that describe the advance SUPPLEMENTARY INFORMATION:

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Background subtype that are controlled under this aboard a carrier to a port of export, on The Bureau of Industry and Security ECCN even though they do not possess August 7, 2008, pursuant to actual (BIS) is amending the Export either of the two HPAI characteristics orders for export or reexport to a foreign Administration Regulations (EAR) to described above. This new Note requires destination, may proceed to that implement the understandings reached that AI viruses of the H5 or H7 subtype destination under the previously at the annual plenary meeting of the that do not have either of these applicable license exception or without Australia Group (AG) that was held in characteristics be sequenced to a license (NLR) so long as they are Paris on April 14–18, 2008. The determine whether multiple basic exported or reexported before August Australia Group is a multilateral forum, amino acids are present at the cleavage 22, 2008. Any such items not actually consisting of 40 participating countries, site of the haemagglutinin molecule exported or reexported before midnight, (HA0). If the test indicates that the on August 22, 2008, require a license in that maintains export controls on a list amino acid motif is similar to that accordance with this regulation. of chemicals, biological agents, and observed for other HPAI isolates, then ‘‘Deemed’’ exports of ‘‘technology’’ related equipment and technology that the isolate being tested should be and ‘‘source code’’ removed from could be used in a chemical or considered as HPAI and the virus is eligibility for export under a license biological weapons program. The AG controlled under ECCN 1C352.a.2. exception or without a license (under periodically reviews items on its control This rule also amends Section the designator ‘‘NLR’’) as a result of this list to enhance the effectiveness of 745.1(a)(2) and (b)(3) of the EAR, which regulatory action may continue to be participating governments’ national describe the advance notification and made under the previously available controls and to achieve greater annual report requirements that apply to license exception or without a license harmonization among these controls. exports of Chemical Weapons (NLR) before August 22, 2008. The understandings reached at the Convention (CWC) Schedule 1 Beginning at midnight on August 22, April 2008 annual plenary meeting chemicals, by updating the fax number 2008, such ‘‘technology’’ and ‘‘source included a decision to update the AG and address for submitting these code’’ may no longer be released, ‘‘Control List of Biological Agents’’ by documents to BIS. In addition, this rule without a license, to a foreign national revising the listing for avian influenza amends Section 745.2(a)(2) of the EAR, subject to the ‘‘deemed’’ export controls viruses to replace the description of which describes the End-Use Certificate in the EAR when a license would be highly pathogenic avian influenza requirement that applies to certain required to the home country of the (HPAI), which was based on a European exports of CWC Schedule 3 chemicals foreign national in accordance with this Community (EC) directive (Directive 92/ (i.e., exports to States not Party to the regulation. 40/EC) that was repealed, effective July CWC), by updating the fax number and Rulemaking Requirements 1, 2007. This decision allows AG address for submitting this document to participating countries to adopt HPAI BIS. 1. This rule has been determined to be language that is based on the definition Finally, this rule amends Supplement not significant for purposes of Executive currently used by the World No. 2 to Part 745 of the EAR (titled Order 12866. Organization for Animal Health (OIE). ‘‘States Parties to the Convention on the 2. Notwithstanding any other The latter is the standard definition Prohibition of the Development, provision of law, no person is required used by international reference Production, Stockpiling, and Use of to respond to, nor shall any person be laboratories for the identification and Chemical Weapons and on Their subject to a penalty for failure to comply characterization of HPAI. The OIE Destruction’’) by adding ‘‘Congo with, a collection of information subject criteria for classifying an avian (Republic of the)’’ and ‘‘Guinea-Bissau,’’ to the requirements of the Paperwork influenza (AI) virus as a highly which became States Parties to the CWC Reduction Act of 1995 (44 U.S.C. 3501 pathogenic avian influenza (HPAI) virus on January 3, 2008, and June 19, 2008, et seq.) (PRA), unless that collection of are described in the ‘‘Manual of respectively. As a result of this change, information displays a currently valid Diagnostic Tests and Vaccines for the CW (Chemical Weapons) license Office of Management and Budget Terrestrial Animals’’ (5th edition, 2004; requirements and policies that apply to (OMB) Control Number. This rule see Chapter 2.7.12: Avian Influenza; last these two countries now conform with contains a collection of information modified May 2005). those applicable to other CWC States subject to the requirements of the PRA. This final rule amends the EAR to Parties, as described in Section 742.18 This collection has been approved by implement the AG decision concerning of the EAR. OMB under Control Number 0694–0088 the characterization of HPAI viruses by Although the Export Administration (Multi-Purpose Application), which revising the listing for avian influenza Act expired on August 20, 2001, the carries a burden hour estimate of 58 viruses in Export Control Classification President, through Executive Order minutes to prepare and submit form Number (ECCN) 1C352.a.2 on the 13222 of August 17, 2001, 3 CFR, 2001 BIS–748. Send comments regarding this Commerce Control List (CCL) Comp., p. 783 (2002), as extended by the burden estimate or any other aspect of (Supplement No. 1 to part 774 of the Notice of August 15, 2007, 72 FR 46137 this collection of information, including EAR) to conform with the OIE definition (August 16, 2007), has continued the suggestions for reducing the burden, to of HPAI. As a result of the changes Export Administration Regulations in David Rostker, Office of Management made by this rule, an avian influenza effect under the International and Budget (OMB), and to the (AI) virus will be considered to be Emergency Economic Powers Act. Regulatory Policy Division, Bureau of highly pathogenic if the virus: (1) Has Industry and Security, Department of Saving Clause an intravenous pathogenicity index Commerce, as indicated in the (IVPI) in 6-week-old chickens greater Shipments of items removed from ‘‘ADDRESSES’’ section of this rule. than 1.2; or (2) causes at least 75 percent eligibility for export or reexport under a 3. This rule does not contain policies mortality in 4- to 8-week-old chickens license exception or without a license with Federalism implications as that infected intravenously. (i.e., under the designator ‘‘NLR’’) as a term is defined in Executive Order In addition, this rule adds a new Note result of this regulatory action that were 13132. to ECCN 1C352.a.2 that identifies on dock for loading, on lighter, laden 4. The provisions of the certain AI viruses of the H5 or H7 aboard an exporting carrier, or en route Administrative Procedure Act (5 U.S.C.

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553) requiring notice of proposed (2) Send the notification either by fax 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 rulemaking, the opportunity for public to (202) 482–1731 or by mail or courier Comp., p. 783; Notice of August 15, 2007, 72 participation, and a delay in effective delivery to the following address: FR 46137 (August 16, 2007). date are inapplicable for those changes Information Technology Team, Treaty Supplement No. 1 to Part 774— to Export Control Classification Number Compliance Division, Bureau of [Amended] (ECCN) 1C352.a.2 on the Commerce Industry and Security, U.S. Department Control List (Supplement No. 1 to part of Commerce, Room 4515, 14th Street I 6. In Supplement No. 1 to Part 774 774) and to Supplement No. 2 to part and Pennsylvania Avenue, NW., (the Commerce Control List), Category 745, because those revisions involve a Washington, DC 20230. Attn: ‘‘Advance 1—Materials, Chemicals, military and foreign affairs function of Notification of Schedule 1 Chemical ‘‘Microorganisms’’ & ‘‘Toxins,’’ ECCN the United States (5 U.S.C. 553(a)(1)). Export’’. 1C352 is amended by revising paragraph (a)(2) under ‘‘Items’’ in the List of Items The provisions of the Administrative * * * * * Controlled to read as follows: Procedure Act requiring notice of (b) * * * proposed rulemaking, the opportunity (3) Send the report either by fax to 1C352 Animal pathogens, as follows (see for public participation, and a delay in (202) 482–1731 or by mail or courier List of Items Controlled). effective date are inapplicable for those delivery to the following address: * * * * * changes to sections 745.1(a)(2) and Information Technology Team, Treaty List of Items Controlled (b)(3) and 745.2(a)(2), because those Compliance Division, Bureau of revisions relate to rules of agency Industry and Security, U.S. Department Unit: *** organization, procedure, or practice. Related Controls: *** of Commerce, Room 4515, 14th Street Related Definitions: *** Further, no other law requires that a and Pennsylvania Avenue, NW., notice of proposed rulemaking and an Items: Washington, DC 20230. Attn: ‘‘Annual a. * * * opportunity for public comment be Report of Schedule 1 Chemical Export’’. a.2. Avian influenza (AI) viruses identified given for this final rule. Because a I 3. Section 745.2(a)(2) is revised to as having high pathogenicity (HP), as follows: notice of proposed rulemaking and an read as follows: a.2.a. AI viruses that have an intravenous opportunity for public comment are not pathogenicity index (IVPI) in 6-week-old required to be given for this rule under § 745.2 End-Use Certificate reporting chickens greater than 1.2; or 5 U.S.C. 553 or by any other law, the requirements under the Chemical Weapons a.2.b. AI viruses that cause at least 75% analytical requirements of the Convention. mortality in 4- to 8-week-old chickens Regulatory Flexibility Act (5 U.S.C. 601 * * * * * infected intravenously. et seq.) are not applicable. (a) * * * Note: Avian influenza (AI) viruses of the Therefore, this regulation is issued in (2) Submit a copy of the End-Use H5 or H7 subtype that do not have either of final form. Although there is no formal Certificate, no later than 7 days after the the characteristics described in 1C352.a.2 (specifically, 1C352.a.2.a or a.2.b) should be comment period, public comments on date of export, either by fax to (202) sequenced to determine whether multiple this regulation are welcome on a 482–1731 or by mail or courier delivery basic amino acids are present at the cleavage continuing basis. to the following address: Information site of the haemagglutinin molecule (HA0). If List of Subjects Technology Team, Treaty Compliance the amino acid motif is similar to that Division, Bureau of Industry and observed for other HPAI isolates, then the 15 CFR Part 745 Security, U.S. Department of Commerce, isolate being tested should be considered as Room 4515, 14th Street and HPAI and the virus is controlled under Administrative practice and 1C352.a.2. procedure, Chemicals, Exports, Foreign Pennsylvania Avenue, NW., trade, Reporting and recordkeeping Washington, DC 20230. Attn: ‘‘CWC * * * * * requirements. End-Use Certificate Report’’. Dated: July 1, 2008. * * * * * 15 CFR Part 774 Eileen M. Albanese, Supplement No. 2 to Part 745— Acting Assistant Secretary for Export Exports, Foreign trade, Reporting and Administration. recordkeeping requirements. [Amended] [FR Doc. E8–15386 Filed 7–7–08; 8:45 am] I Accordingly, parts 745 and 774 of the I 4. Supplement No. 2 to Part 745 is BILLING CODE 3510–33–P Export Administration Regulations (15 amended: CFR Parts 730–774) are amended as I a. By revising the undesignated center follows: heading ‘‘List of States Parties as of DEPARTMENT OF THE TREASURY August 1, 2007’’ to read ‘‘List of States PART 745—[AMENDED] Parties as of July 1, 2008’’; and Internal Revenue Service I 1. The authority citation for 15 CFR I b. By adding, in alphabetical order, part 745 continues to read as follows: the countries ‘‘Congo (Republic of the)’’ 26 CFR Part 1 and ‘‘Guinea-Bissau’’. Authority: 50 U.S.C. 1701 et seq.; E.O. [TD 9411] 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. PART 774—[AMENDED] 950; Notice of November 8, 2007, 72 FR RIN 1545–BE78 63963 (November 13, 2007). I 5. The authority citation for 15 CFR Elections Regarding Start-up I 2. Section 745.1 is amended by part 774 continues to read as follows: Expenditures, Corporation revising paragraphs (a)(2) and (b)(3) to Authority: 50 U.S.C. app. 2401 et seq.; 50 Organizational Expenditures, and read as follows: U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. Partnership Organizational Expenses 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et § 745.1 Advance notification and annual seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); AGENCY: Internal Revenue Service (IRS), report of all exports of Schedule 1 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. Treasury. chemicals to other States Parties. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; ACTION: Final and temporary * * * * * 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. regulations. (a) * * * 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.

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SUMMARY: This document contains final $5,000, reduced (but not below zero) by expenditures as provided in sections and temporary regulations relating to the amount by which the organizational 195(b)(1)(A) and (B). Section elections to deduct start-up expenditures exceed $50,000. The 195(b)(1)(A) allows an electing taxpayer expenditures under section 195 of the remainder of the organizational to deduct start-up expenditures in the Internal Revenue Code (Code), expenditures is deductible ratably over year in which the active trade or organizational expenditures of the 180-month period beginning with business to which the expenditures corporations under section 248, and the month in which the corporation relate begins. The amount that may be organizational expenses of partnerships begins business. deducted under section 195(b)(1)(A) in under section 709. The American Jobs As amended by section 902(c) of the that year is the lesser of the amount of Creation Act of 2004 amended these Act, section 709(b) allows an electing the start-up expenditures or $5,000, three sections of the Code to provide partnership to deduct, in the taxable reduced (but not below zero) by the similar rules for deducting these types year in which the partnership begins amount by which the start-up of expenses that are paid or incurred business, an amount equal to the lesser expenditures exceed $50,000. Any start- after October 22, 2004. The regulations of (1) the amount of the organizational up expenditures that are not deductible affect taxpayers that pay or incur these expenses of the partnership, or (2) under section 195(b)(1)(A) may be expenses and provide guidance on how $5,000, reduced (but not below zero) by deducted by the taxpayer under section to elect to deduct the expenses in the amount by which the organizational 195(b)(1)(B) ratably over the 180-month accordance with the new rules. The text expenses exceed $50,000. The period beginning with the month in of these temporary regulations also remainder of the organizational which the active trade or business serves as the text of the proposed expenses is deductible ratably over the begins. All start-up expenditures 180-month period beginning with the regulations set forth in the notice of incurred by the taxpayer that relate to month in which the partnership begins proposed rulemaking on this subject in the active trade or business are business. the Proposed Rules section in this issue considered in determining whether the of the Federal Register. Explanation of Provisions start-up expenditures exceed $50,000, DATES: Effective Date: These regulations This Treasury decision revises the including expenditures incurred on or are effective on July 8, 2008. regulations under sections 195, 248, and before October 22, 2004. Applicability Dates: For dates of 709 to reflect the amendments made by For start-up expenditures as defined applicability, see §§ 1.195–1T(d), 1.248– section 902 of the Act. This Treasury in section 195(c)(1) paid or incurred 1T(f), and 1.709–1T(b)(5). decision also updates the manner in after September 8, 2008, the temporary FOR FURTHER INFORMATION CONTACT: which taxpayers elect to deduct costs regulations under section 195 provide Grace Matuszeski, (202) 622–7900 (not a under sections 195, 248, and 709. Under that a taxpayer is deemed to make an toll-free number). these regulations, taxpayers are no election under section 195(b) to deduct SUPPLEMENTARY INFORMATION: longer required to file a separate start-up expenditures for the taxable Background election statement to deduct costs under year in which the active trade or sections 195, 248, and 709. The manner business to which the expenditures This document amends the Income of filing these elections is changed relate begins. Therefore, under the Tax Regulations (26 CFR part 1) under because of various electronic return temporary regulations a taxpayer is no sections 195, 248, and 709 of the Code filing initiatives and in acknowledgment longer required to attach a statement to to reflect amendments made by section that the vast majority of taxpayers that the return or specifically identify the 902 of the American Jobs Creation Act incur costs that may be deducted under deducted amount as start-up of 2004 (Pub. L. 108–357, 118 Stat. sections 195, 248, and 709 elect to expenditures for the election under 1418) (the Act). The amendments made deduct those costs. The change also section 195(b) to be effective. A taxpayer by section 902 of the Act are effective reduces the administrative burden of may choose to forgo the deemed for amounts paid or incurred after making the elections. election by clearly electing to capitalize October 22, 2004, the date of the The temporary regulations under its start-up expenditures on a timely enactment of the Act. sections 195, 248, and 709 apply to filed Federal income tax return As amended by section 902(a) of the expenditures paid or incurred after (including extensions) for the taxable Act, section 195(b) allows an electing September 8, 2008. However, taxpayers year in which the active trade or taxpayer to deduct, in the taxable year may apply all the provisions of these business begins. The election to in which the taxpayer begins an active regulations to expenditures paid or trade or business, an amount equal to capitalize start-up expenditures is made incurred under sections 195, 248, and in accordance with the form and the lesser of (1) the amount of the start- 709 after October 22, 2004, provided the up expenditures that relate to the active instructions used by the taxpayer to file period of limitations on assessment of its Federal income tax return. An trade or business, or (2) $5,000, reduced tax has not expired for the year the (but not below zero) by the amount by election either to deduct start-up election under section 195, 248, or 709 expenditures under section 195(b) or to which the start-up expenditures exceed is deemed made. Expenditures paid or capitalize start-up expenditures is $50,000. The remainder of the start-up incurred on or before October 22, 2004, irrevocable and applies to all start-up expenditures is deductible ratably over may be amortized over a period of not expenditures of the taxpayer that are the 180-month period beginning with less than 60 months as provided for related to the active trade or business. the month in which the active trade or under prior law. business begins. In general, a change in the As amended by section 902(b) of the Temporary Regulations Under Section characterization of an item as a start-up Act, section 248(a) allows an electing 195 expenditure, or a change in the corporation to deduct, in the taxable Section 195(a) provides that, except as determination of the taxable year in year in which the corporation begins otherwise provided in section 195, no which the active trade or business business, an amount equal to the lesser deduction shall be allowed for start-up begins, will be treated as a change in of (1) the amount of the organizational expenditures. Under section 195(b)(1), a method of accounting with a section expenditures of the corporation, or (2) taxpayer may elect to deduct start-up 481(a) adjustment.

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Temporary Regulations Under Section In general, a change in the election either to deduct organizational 248 characterization of an item as an expenses under section 709(b) or to In general, the organizational organizational expenditure, or a change capitalize organizational expenses is expenditures of a corporation are not in the determination of the taxable year irrevocable and applies to all deductible except as provided in section in which the corporation begins organizational expenses of the 248. Under section 248(a), a corporation business, will be treated as a change in partnership. method of accounting with a section may elect to deduct organizational In general, a change in the 481(a) adjustment. expenditures as provided in sections characterization of an item as an 248(a)(1)(A) and (B). Section Temporary Regulations Under Section organizational expense, or a change in 248(a)(1)(A) allows an electing 709 the determination of the taxable year in corporation to deduct organizational Section 709(a) provides that, except as which the partnership begins business, expenditures in the year in which the otherwise provided in section 709(b), no will be treated as a change in method of corporation begins business. The deduction shall be allowed for accounting with a section 481(a) amount that may be deducted under organizational expenses. Under section adjustment. section 248(a)(1)(A) in that year is the 709(b), a partnership may elect to lesser of the amount of the deduct organizational expenses as Examples organizational expenditures of the provided in section 709(b)(1)(A) and (B). corporation or $5,000, reduced (but not The temporary regulations under Section 709(b)(1)(A) allows an electing sections 195, 248, and 709 contain below zero) by the amount by which the partnership to deduct organizational organizational expenditures exceed examples that illustrate how the expenses in the year in which the election is made, how to calculate the $50,000. Any organizational partnership begins business. The amount of the deduction that is allowed expenditures that are not deductible amount that may be deducted under in the year in which the election is under section 248(a)(1)(A) may be section 709(b)(1)(A) in that year is the deducted by the corporation under lesser of the amount of the made, and how to effect subsequent section 248(a)(1)(B) ratably over the 180- organizational expenses of the redeterminations in the characterization month period beginning with the month partnership or $5,000, reduced (but not of an item or the year in which the trade in which the corporation begins below zero) by the amount by which the or business begins. business. All organizational organizational expenses exceed $50,000. Special Analyses expenditures incurred by the Any organizational expenses that are corporation are considered in not deductible under section It has been determined that this determining whether the organizational 709(b)(1)(A) may be deducted by the Treasury decision is not a significant expenditures exceed $50,000, including partnership under section 709(b)(1)(B) regulatory action as defined in expenditures incurred on or before ratably over the 180-month period Executive Order 12866. Therefore, a October 22, 2004. beginning with the month in which the regulatory assessment is not required. It For organizational expenditures as partnership begins business. All also has been determined that section defined in section 248(b) and § 1.248– organizational expenses incurred by the 553(b) of the Administrative Procedure 1(b) paid or incurred after September 8, partnership are considered in Act (5 U.S.C. chapter 5) does not apply 2008, the temporary regulations under determining whether the organizational to these regulations. Please refer to the section 248 provide that a corporation is expenses exceed $50,000, including cross-referenced notice of proposed deemed to make an election under expenses incurred on or before October section 248(a) to deduct organizational rulemaking published elsewhere in this 22, 2004. issue of the Federal Register for expenditures for the taxable year in For organizational expenses as applicability of the Regulatory which the corporation begins business. defined in section 709(b)(3) and Flexibility Act (5 U.S.C. chapter 6). Therefore, under the temporary § 1.709–2(a) paid or incurred after Pursuant to section 7805(f) of the Code, regulations a corporation is no longer September 8, 2008, the temporary required to attach a statement to the regulations under section 709 provide these final and temporary regulations return or specifically identify the that a partnership is deemed to make an have been submitted to the Chief deducted amount as organizational election under section 709(b) to deduct Counsel for Advocacy of the Small expenditures for the election under organizational expenses for the taxable Business Administration for comment section 248(a) to be effective. A year in which the partnership begins on their impact on small business. corporation may choose to forgo the business. Therefore, under the Drafting Information deemed election by clearly electing to temporary regulations a partnership is capitalize its organizational no longer required to attach a statement The principal author of these expenditures on a timely filed Federal to the return or specifically identify the regulations is Grace Matuszeski of the income tax return (including deducted amount as organizational Office of the Associate Chief Counsel extensions) for the taxable year in which expenses for the election under section (Income Tax & Accounting). However, the corporation begins business. The 709(b) to be effective. A partnership other personnel from the IRS and election to capitalize organizational may choose to forgo the deemed Treasury Department participated in expenditures is made in accordance election by clearly electing to capitalize their development. with the form and instructions used by its organizational expenses on a timely the corporation to file its Federal filed Federal income tax return List of Subjects in 26 CFR Part 1 income tax return. An election either to (including extensions) for the taxable Income taxes, Reporting and deduct organizational expenditures year in which the partnership begins recordkeeping requirements. under section 248(a) or to capitalize business. The election to capitalize organizational expenditures is organizational expenses is made in Amendments to the Regulations irrevocable and applies to all accordance with the form and organizational expenditures of the instructions used by the partnership to I Accordingly, 26 CFR part 1 is corporation. file its Federal income tax return. An amended as follows:

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PART 1—INCOME TAXES determination of the taxable year in except that Corporation X incurs start-up which the active trade or business expenditures of $54,500. Under paragraph (b) I Paragraph 1. The authority citation begins also is treated as a change in of this section, Corporation X is deemed to for part 1 continues to read in part as method of accounting if the taxpayer have elected to deduct start-up expenditures follows: under section 195(b) in 2009. Therefore, amortized start-up expenditures for two Corporation X may deduct $500 Authority: 26 U.S.C. 7805 * * * or more taxable years. ($5,000¥4,500) and the portion of the (c) Examples. The following examples I remaining $54,000 that is allocable to July Par. 2. Section 1.195–1 is revised to illustrate the application of this section: through December of 2009 ($54,000/180 × 6 read as follows: Example 1. Expenditures of $5,000 or less. = $1,800) in 2009, the taxable year in which the active trade or business begins. § 1.195–1 Election to amortize start-up Corporation X, a calendar year taxpayer, Example 6. Expenditures of more than expenditures. incurs $3,000 of start-up expenditures after $55,000. The facts are the same as in [Reserved]. For further guidance, see October 22, 2004, that relate to an active trade or business that begins on July 1, 2009. Example 1 except that Corporation X incurs § 1.195–1T. Under paragraph (b) of this section, start-up expenditures of $450,000. Under I Par. 3. Section 1.195–1T is added to Corporation X is deemed to have elected to paragraph (b) of this section, Corporation X read as follows: deduct start-up expenditures under section is deemed to have elected to deduct start-up 195(b) in 2009. Therefore, Corporation X may expenditures under section 195(b) in 2009. § 1.195–1T Election to amortize start-up deduct the entire amount of the start-up Therefore, Corporation X may deduct the expenditures (temporary). expenditures in 2009, the taxable year in amounts allocable to July through December of 2009 ($450,000/180 × 6 = $15,000) in 2009, (a) In general. Under section 195(b), a which the active trade or business begins. Example 2. Expenditures of more than the taxable year in which the active trade or taxpayer may elect to amortize start-up business begins. expenditures as defined in section $5,000 but less than or equal to $50,000. The facts are the same as in Example 1 except that (d) Effective/applicability date. This 195(c)(1). In the taxable year in which Corporation X incurs start-up expenditures of section applies to start-up expenditures a taxpayer begins an active trade or $41,000. Under paragraph (b) of this section, paid or incurred after September 8, business, an electing taxpayer may Corporation X is deemed to have elected to 2008. However, taxpayers may apply all deduct an amount equal to the lesser of deduct start-up expenditures under section the provisions of this section to start-up the amount of the start-up expenditures 195(b) in 2009. Therefore, Corporation X may expenditures paid or incurred after that relate to the active trade or deduct $5,000 and the portion of the October 22, 2004, provided that the business, or $5,000 (reduced (but not remaining $36,000 that is allocable to July × period of limitations on assessment of below zero) by the amount by which the through December of 2009 ($36,000/180 6 = $1,200) in 2009, the taxable year in which tax for the year the election under start-up expenditures exceed $50,000). the active trade or business begins. paragraph (b) of this section is deemed The remainder of the start-up Example 3. Subsequent change in the made has not expired. Otherwise, for expenditures is deductible ratably over characterization of an item. The facts are the start-up expenditures paid or incurred the 180-month period beginning with same as in Example 2 except that prior to September 8, 2008, see § 1.195– the month in which the active trade or Corporation X determines in 2011 that 1 in effect prior to that date (§ 1.195–1 business begins. All start-up Corporation X incurred $10,000 for an as contained in 26 CFR part 1 edition expenditures that relate to the active additional start-up expenditure erroneously revised as of April 1, 2008). trade or business are considered in deducted in 2009 under section 162 as a business expense. Under paragraph (b) of this (e) Expiration date. This section determining whether the start-up section, Corporation X is deemed to have expires on July 7, 2011. expenditures exceed $50,000, including elected to amortize start-up expenditures I expenditures incurred on or before Par. 4. Section 1.248–1 is amended by under section 195(b) in 2009, including the revising paragraphs (a) and (c), and October 22, 2004. additional $10,000 of start-up expenditures. adding paragraphs (d), (e), (f), and (g) to (b) Time and manner of making Corporation X is using an impermissible election. A taxpayer is deemed to have method of accounting for the additional read as follows: made an election under section 195(b) $10,000 of start-up expenditures and must § 1.248–1 Election to amortize to amortize start-up expenditures as change its method under § 1.446–1(e) and the organizational expenditures. applicable general administrative procedures defined in section 195(c)(1) for the in effect in 2011. (a) [Reserved]. For further guidance, taxable year in which the active trade or Example 4. Subsequent redetermination of see § 1.248–1T(a). business to which the expenditures year in which business begins. The facts are * * * * * relate begins. A taxpayer may choose to the same as in Example 2 except that, in (c) through (g) [Reserved]. For further forgo the deemed election by clearly 2010, Corporation X deducted the start-up guidance, see § 1.248–1T(c) through (g). electing to capitalize its start-up expenditures allocable to January through I December of 2010 ($36,000/180 × 12 = Par. 5. Section 1.248–1T is added to expenditures on a timely filed Federal read as follows: income tax return (including $2,400). In addition, in 2011 it is determined extensions) for the taxable year in which that Corporation X actually began business in § 1.248–1T Election to amortize 2010. Under paragraph (b) of this section, organizational expenditures (temporary). the active trade or business to which the Corporation X is deemed to have elected to expenditures relate begins. The election deduct start-up expenditures under section (a) In general. Under section 248(a), a either to amortize start-up expenditures 195(b) in 2010. Corporation X impermissibly corporation may elect to amortize under section 195(b) or to capitalize deducted start-up expenditures in 2009, and organizational expenditures as defined start-up expenditures is irrevocable and incorrectly determined the amount of start- in section 248(b) and § 1.248–1(b). In applies to all start-up expenditures that up expenditures deducted in 2010. the taxable year in which a corporation are related to the active trade or Therefore, Corporation X is using an begins business, an electing corporation business. A change in the impermissible method of accounting for the may deduct an amount equal to the characterization of an item as a start-up start-up expenditures and must change its lesser of the amount of the method under § 1.446–1(e) and the expenditure is a change in method of applicable general administrative procedures organizational expenditures of the accounting to which sections 446 and in effect in 2011. corporation, or $5,000 (reduced (but not 481(a) apply if the taxpayer treated the Example 5. Expenditures of more than below zero) by the amount by which the item consistently for two or more $50,000 but less than or equal to $55,000. organizational expenditures exceed taxable years. A change in the The facts are the same as in Example 1 $50,000). The remainder of the

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organizational expenditures is deducted necessary to establish the nature of its Example 5. Expenditures of more than ratably over the 180-month period business operations, however, it will be $50,000 but less than or equal to $55,000. beginning with the month in which the deemed to have begun business. For The facts are the same as in Example 1 corporation begins business. All example, the acquisition of operating except that Corporation X incurs organizational expenditures of the organizational expenditures of $54,500. assets which are necessary to the type Under paragraph (c) of this section, corporation are considered in of business contemplated may Corporation X is deemed to have elected to determining whether the organizational constitute the beginning of business. deduct organizational expenditures under expenditures exceed $50,000, including (e) Examples. The following examples section 248(a) in 2009. Therefore, expenditures incurred on or before illustrate the application of this section: Corporation X may deduct $500 October 22, 2004. ($5,000¥4,500) and the portion of the (b) [Reserved]. For further guidance, Example 1. Expenditures of $5,000 or less. remaining $54,000 that is allocable to July see § 1.248–1(b). Corporation X, a calendar year taxpayer, through December of 2009 ($54,000/180 × 6 (c) Time and manner of making incurs $3,000 of organizational expenditures = $1,800) in 2009, the taxable year in which election. A corporation is deemed to after October 22, 2004, and begins business Corporation X begins business. on July 1, 2009. Under paragraph (c) of this Example 6. Expenditures of more than have made an election under section section, Corporation X is deemed to have 248(a) to amortize organizational $55,000. The facts are the same as in elected to deduct organizational expenditures Example 1 except that Corporation X incurs expenditures as defined in section under section 248(a) in 2009. Therefore, organizational expenditures of $450,000. 248(b) and § 1.248–1(b) for the taxable Corporation X may deduct the entire amount Under paragraph (c) of this section, year in which the corporation begins of the organizational expenditures in 2009, Corporation X is deemed to have elected to business. A corporation may choose to the taxable year in which Corporation X deduct organizational expenditures under forgo the deemed election by clearly begins business. section 248(a) in 2009. Therefore, electing to capitalize its organizational Example 2. Expenditures of more than Corporation X may deduct the amounts expenditures on a timely filed Federal $5,000 but less than or equal to $50,000. The allocable to July through December of 2009 income tax return (including facts are the same as in Example 1 except that ($450,000/180 × 6 = $15,000) in 2009, the Corporation X incurs organizational extensions) for the taxable year in which taxable year in which Corporation X begins expenditures of $41,000. Under paragraph (c) business. the corporation begins business. The of this section, Corporation X is deemed to election either to amortize have elected to deduct organizational (f) Effective/applicability date. This organizational expenditures under expenditures under section 248(a) in 2009. section applies to organizational section 248(a) or to capitalize Therefore, Corporation X may deduct $5,000 expenditures paid or incurred after organizational expenditures is and the portion of the remaining $36,000 that September 8, 2008. However, taxpayers irrevocable and applies to all is allocable to July through December of 2009 may apply all the provisions of this × organizational expenditures of the ($36,000/180 6 = $1,200) in 2009, the section to organizational expenditures corporation. A change in the taxable year in which Corporation X begins paid or incurred after October 22, 2004, characterization of an item as an business. Example 3. Subsequent change in the provided that the period of limitations organizational expenditure is a change characterization of an item. The facts are the on assessment of tax for the year the in method of accounting to which same as in Example 2 except that election under paragraph (c) of this sections 446 and 481(a) apply if the Corporation X determines in 2011 that section is deemed made has not expired. corporation treated the item consistently Corporation X incurred $10,000 for an Otherwise, for organizational for two or more taxable years. A change additional organizational expenditure expenditures paid or incurred prior to in the determination of the taxable year erroneously deducted in 2009 under section September 8, 2008, see § 1.248–1 in in which the corporation begins 162 as a business expense. Under paragraph effect prior to that date (§ 1.248–1 as business also is treated as a change in (c) of this section, Corporation X is deemed contained in 26 CFR part 1 edition to have elected to amortize organizational method of accounting if the corporation revised as of April 1, 2008). amortized organizational expenditures expenditures under section 248(a) in 2009, including the additional $10,000 of (g) Expiration date. This section for two or more taxable years. organizational expenditures. Corporation X is expires on July 7, 2011. (d) Determination of when using an impermissible method of accounting I Par. 6. Section 1.709–1 is amended by corporation begins business. The for the additional $10,000 of organizational revising paragraph (b) and removing deduction allowed under section 248 expenditures and must change its method paragraph (c) to read as follows: must be spread over a period beginning under § 1.446–1(e) and the applicable general with the month in which the administrative procedures in effect in 2011. § 1.709–1 Treatment of organization and corporation begins business. The Example 4. Subsequent redetermination of syndication costs. determination of the date the year in which business begins. The facts are * * * * * corporation begins business presents a the same as in Example 2 except that, in (b) [Reserved]. For further guidance, 2010, Corporation X deducted the question of fact which must be see § 1.709–1T. determined in each case in light of all organizational expenditures allocable to January through December of 2010 ($36,000/ I Par. 7. Section 1.709–1T is added to the circumstances of the particular case. 180 × 12 = $2,400). In addition, in 2011 it is read as follows: The words ‘‘begins business,’’ however, determined that Corporation X actually began do not have the same meaning as ‘‘in business in 2010. Under paragraph (c) of this § 1.709–1T Treatment of organizational existence.’’ Ordinarily, a corporation section, Corporation X is deemed to have expenses and syndication costs begins business when it starts the elected to deduct organizational expenditures (temporary). business operations for which it was under section 248(a) in 2010. Corporation X (a) [Reserved]. For further guidance, organized; a corporation comes into impermissibly deducted organizational see § 1.709–1(a). existence on the date of its expenditures in 2009, and incorrectly (b) Election to amortize organizational incorporation. Mere organizational determined the amount of organizational expenses—(1) In general. Under section expenditures deducted in 2010. Therefore, activities, such as the obtaining of the Corporation X is using an impermissible 709(b), a partnership may elect to corporate charter, are not alone method of accounting for the organizational amortize organizational expenses as sufficient to show the beginning of expenditures and must change its method defined in section 709(b)(3) and business. If the activities of the under § 1.446–1(e) and the applicable general § 1.709–2(a). In the taxable year in corporation have advanced to the extent administrative procedures in effect in 2011. which a partnership begins business, an

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electing partnership may deduct an Partnership X may deduct the entire amount X is deemed to have elected to deduct amount equal to the lesser of the of the organizational expenses in 2009, the organizational expenses under section 709(b) amount of the organizational expenses taxable year in which Partnership X begins in 2009. Therefore, Partnership X may deduct of the partnership, or $5,000 (reduced business. the amounts allocable to July through Example 2. Expenditures of more than December of 2009 ($450,000/180 × 6 = (but not below zero) by the amount by $5,000 but less than or equal to $50,000. The $15,000) in 2009, the taxable year in which which the organizational expenses facts are the same as in Example 1 except that Partnership X begins business. exceed $50,000). The remainder of the Partnership X incurs organizational expenses organizational expenses is deductible of $41,000. Under paragraph (b)(2) of this (5) Effective/applicability date. This ratably over the 180-month period section, Partnership X is deemed to have section applies to organizational beginning with the month in which the elected to deduct organizational expenses expenses paid or incurred after partnership begins business. All under section 709(b) in 2009. Therefore, September 8, 2008. However, taxpayers organizational expenses of the Partnership X may deduct $5,000 and the may apply all the provisions of this portion of the remaining $36,000 that is section to organizational expenses paid partnership are considered in allocable to July through December of 2009 determining whether the organizational × or incurred after October 22, 2004, ($36,000/180 6 = $1,200) in 2009, the provided that the period of limitations expenses exceed $50,000, including taxable year in which Partnership X begins expenses incurred on or before October business. on assessment of tax for the year the 22, 2004. Example 3. Subsequent change in the election under paragraph (b)(2) of this (2) Time and manner of making characterization of an item. The facts are the section is deemed made has not expired. election. A partnership is deemed to same as in Example 2 except that Partnership Otherwise, for organizational expenses have made an election under section X realizes in 2011 that Partnership X paid or incurred prior to September 8, 709(b) to amortize organizational incurred $10,000 for an additional 2008, see § 1.709–1 in effect prior to that organizational expense erroneously deducted date (§ 1.709–1 as contained in 26 CFR expenses as defined in section 709(b)(3) in 2009 under section 162 as a business and § 1.709–2(a) for the taxable year in part 1 edition revised as of April 1, expense. Under paragraph (b)(2) of this 2008). which the partnership begins business. section, Partnership X is deemed to have A partnership may choose to forgo the elected to amortize organizational expenses (6) Expiration date. This section deemed election by clearly electing to under section 709(b) in 2009, including the expires on July 7, 2011. capitalize its organizational expenses on additional $10,000 of organizational Linda E. Stiff, a timely filed Federal income tax return expenses. Partnership X is using an impermissible method of accounting for the Deputy Commissioner for Services and (including extensions) for the taxable Enforcement. year in which the partnership begins additional $10,000 of organizational expenses and must change its method under Approved: June 30, 2008. business. The election either to amortize § 1.446–1(e) and the applicable general Eric Solomon, organizational expenses under section administrative procedures in effect in 2011. Assistant Secretary of the Treasury (Tax 709(b) or to capitalize organizational Example 4. Subsequent redetermination of Policy). expenses is irrevocable and applies to year in which business begins. The facts are [FR Doc. E8–15459 Filed 7–7–08; 8:45 am] all organizational expenses of the the same as in Example 2 except that, in partnership. A change in the 2010, Partnership X deducted the BILLING CODE 4830–01–P characterization of an item as an organizational expenses allocable to January through December of 2010 ($36,000/180 × 12 organizational expense is a change in DEPARTMENT OF THE TREASURY method of accounting to which sections = $2,400). In addition, in 2011 it is determined that Partnership X actually began 446 and 481(a) apply if the partnership business in 2010. Under paragraph (b)(2) of Internal Revenue Service treated the item consistently for two or this section, Partnership X is deemed to have more taxable years. A change in the elected to deduct organizational expenses 26 CFR Part 301 determination of the taxable year in under section 709(b) in 2010. Partnership X which the partnership begins business impermissibly deducted organizational [TD 9410] also is treated as a change in method of expenses in 2009, and incorrectly determined RIN 1545–BF54 accounting if the partnership amortized the amount of organizational expenses organizational expenses for two or more deducted in 2010. Therefore, Partnership X is Change to Office to Which Notices of taxable years. using an impermissible method of accounting Nonjudicial Sale and Requests for (3) Liquidation of partnership. If there for the organizational expenses and must Return of Wrongfully Levied Property change its method under § 1.446–1(e) and the Must Be Sent is a winding up and complete applicable general administrative procedures liquidation of the partnership prior to in effect in 2011. AGENCY: Internal Revenue Service (IRS), the end of the amortization period, the Example 5. Expenditures of more than Treasury. unamortized amount of organizational $50,000 but less than or equal to $55,000. expenses is a partnership deduction in The facts are the same as in Example 1 ACTION: Final regulations and removal of its final taxable year to the extent except that Partnership X incurs temporary regulations. provided under section 165 (relating to organizational expenses of $54,500. Under paragraph (b)(2) of this section, Partnership SUMMARY: This document contains final losses). However, there is no regulations relating to the discharge of partnership deduction with respect to X is deemed to have elected to deduct organizational expenses under section 709(b) liens under section 7425 and return of its capitalized syndication expenses. in 2009. Therefore, Partnership X may deduct wrongfully levied upon property under (4) Examples. The following examples $500 ($5,000¥4,500) and the portion of the section 6343 of the Internal Revenue illustrate the application of this section: remaining $54,000 that is allocable to July Code (Code) of 1986. These regulations × Example 1. Expenditures of $5,000 or less. through December of 2009 ($54,000/180 6 revise regulations currently published Partnership X, a calendar year taxpayer, = $1,800) in 2009, the taxable year in which under sections 7425 and 6343. These Partnership X begins business. incurs $3,000 of organizational expenses after regulations clarify that such notices and October 22, 2004, and begins business on Example 6. Expenditures of more than July 1, 2009. Under paragraph (b)(2) of this $55,000. The facts are the same as in claims should be sent to the IRS official section, Partnership X is deemed to have Example 1 except that Partnership X incurs and office specified in the relevant IRS elected to deduct organizational expenses organizational expenses of $450,000. Under publications. The regulations will affect under section 709(b) in 2009. Therefore, paragraph (b)(2) of this section, Partnership parties seeking to provide the IRS with

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notice of a nonjudicial foreclosure sale Special Analyses any successor publication. The relevant and parties making administrative It has been determined that this IRS publications may be downloaded requests for return of wrongfully levied Treasury decision is not a significant from the IRS internet site at http:// property. regulatory action as defined in www.irs.gov. Under this section, a DATES: Effective Date: These regulations Executive Order 12866. Therefore, a request for the return of property are effective on July 8, 2008. regulatory assessment is not required. It wrongfully levied upon is not effective Applicability Date: See §§ 301.6343–2 also has been determined that section if it is given to an office other than the and 301.6343–3. 553(b) of the Administrative Procedure office listed in the relevant publication. FOR FURTHER INFORMATION CONTACT: Act (5 U.S.C. chapter 5) does not apply The written request must contain the Robin M. Ferguson, (202) 622–3630 (not to these regulations, and because the following information— a toll-free call). regulations do not impose a collection * * * * * SUPPLEMENTARY INFORMATION: of information on small entities, the (e) Effective/applicability date. These regulations are effective on July 8, 2008. Background Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to § 301.6343–2T [Removed]. This document contains final section 7805(f) of the Internal Revenue I Par. 3. Section 301.6343–2T is regulations amending the Procedure and Code, these regulations have been Administration Regulations (26 CFR removed. submitted to the Chief Counsel for I Par. 4. Section 301.7425–3 is part 301) relating to the giving of notice Advocacy of the Small Business of nonjudicial sales under section amended as follows: Administration for comment on its I 1. Paragraphs (a)(1), (b)(1), (b)(2), 7425(b) of the Code. This document also impact on small business. contains final regulations amending the (c)(1), (d)(2), (d)(3), and (d)(4) are Procedure and Administration Drafting Information revised. I Regulations relating to requests for 2. Paragraph (a)(2)(iii) Example 2 is The principal author of these amended by removing the language return of wrongfully levied property regulations is Robin M. Ferguson, Office under section 6343(b) of the Code. On ‘‘district director’’ and adding the of Associate Chief Counsel (Procedure language ‘‘IRS’’ in its place wherever it July 20, 2007, temporary regulations (TD and Administration). 9344) were published in the Federal appears. I Register (72 FR 39737). A notice of List of Subjects in 26 CFR Part 301 3. Paragraph (e) is revised. proposed rulemaking (REG–148951–05) The revisions and additions read as Employment taxes, Estate taxes, follows: cross-referencing the temporary Excise taxes, Gift taxes, Income taxes, regulations was published in the Penalties, Reporting and recordkeeping § 301.7425–3 Discharge of liens; special Federal Register on the same day (72 FR requirements. rules. 39771). No written comments were (a) Notice of sale requirements—(1) In Adoption of Amendments to the received from the public in response to general. Except in the case of the sale of Regulations the notice of proposed rulemaking. No perishable goods described in paragraph public hearing was requested, I Accordingly, 26 CFR part 301 is (c) of this section, a notice (as described scheduled or held. The proposed amended as follows: in paragraph (d) of this section) of a regulations are adopted as amended by nonjudicial sale shall be given, in this Treasury decision, and the PART 301—PROCEDURE AND writing by registered or certified mail or corresponding temporary regulations are ADMINISTRATION by personal service, not less than 25 removed. days prior to the date of sale I Paragraph 1. The authority citation For notices of nonjudicial foreclosure (determined under the provisions of for part 301 continues to read in part as sale under section 7425(b) and requests § 301.7425–2(b)), to the Internal follows: for return of property wrongfully levied Revenue Service (IRS) official, office upon under section 6343(b), the existing Authority: 26 U.S.C. 7805 * * * and address specified in IRS Publication regulations direct the notices and I Par. 2. Section 301.6343–2 is 786, ‘‘Instructions for Preparing a Notice requests to be sent to the ‘‘district of Nonjudicial Sale of Property and director (marked for the attention of the amended as follows: I Application for Consent to Sale,’’ or any Chief, Special Procedures Staff).’’ The 1. Paragraphs (a)(1) introductory text and (b) introductory text are revised. successor publication. The relevant IRS offices of the district director and I publications may be downloaded from Special Procedures were eliminated by 2. Paragraph (e) is revised. The revisions read as follows: the IRS Internet site at http:// the IRS reorganization implemented www.irs.gov. Under this section, a pursuant to the IRS Restructuring and § 301.6343–2 Return of wrongfully levied notice of sale is not effective if it is Reform Act of 1998, Public Law 105– upon property. given to an office other than the office 206 (RRA 1998), creating uncertainty as (a) Return of property—(1) General listed in the relevant publication. The to the timeliness of notices and requests rule. If the Internal Revenue Service provisions of sections 7502 (relating to under these provisions. (IRS) determines that property has been timely mailing treated as timely filing) Comments on the Proposed Regulations wrongfully levied upon, the IRS may and 7503 (relating to time for return— performance of acts where the last day None. * * * * * falls on Saturday, Sunday, or a legal Modifications of the Proposed (b) Request for return of property. A holiday) apply in the case of notices Regulations written request for the return of required to be made under this None, other than minor grammatical property wrongfully levied upon must paragraph. revisions. be given to the IRS official, office and * * * * * address specified in IRS Publication (b) Consent to sale—(1) In general. Effective/Applicability Date 4528, ‘‘Making an Administrative Notwithstanding the notice of sale These regulations are effective on July Wrongful Levy Claim Under Internal provisions of paragraph (a) of this 8, 2008. Revenue Code (IRC) Section 6343(b),’’ or section, a nonjudicial sale of property

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shall discharge or divest the property of less than 30 days after the date of the United States even though notice of the the lien and title of the United States if sale, subject to the liens and claims of sale is given less than 25 days prior to the IRS consents to the sale of the the United States, in the same manner the sale. In any case where the person property free of the lien or title. and with the same priority as the liens who submitted a timely notice, which Pursuant to section 7425(c)(2), where and claims of the United States had indicates his name and address, does adequate protection is afforded the lien with respect to the property sold. If the not receive more than 5 days prior to the or title of the United States, the IRS seller fails to hold the proceeds of the date of sale written notification from the may, in its discretion, consent with sale in accordance with the provisions IRS that the notice is inadequate, the respect to the sale of property in of this paragraph and if the IRS asserts notice shall be considered adequate for appropriate cases. Such consent shall be a claim to the proceeds within 30 days purposes of this section. effective only if given in writing and after the date of sale, the seller shall be shall be subject to such limitations and personally liable to the United States for (3) Acknowledgment of notice. If a conditions as the IRS may require. an amount equal to the value of the notice of sale described in paragraph (a) However, the IRS may not consent to a interest of the United States in the fund. or (c) of this section is submitted in sale of property under this section after However, even if the proceeds of the duplicate to the IRS with a written the date of sale, as determined under sale are not so held by the seller, but all request that receipt of the notice be § 301.7425–2(b). For provisions relating the other provisions of this paragraph acknowledged and returned to the to the authority of the IRS to release a are satisfied, the buyer of the property person giving the notice, this request lien or discharge property subject to a at the sale takes the property free of the will be honored by the IRS. The tax lien, see section 6325 and the liens and claims of the United States. In acknowledgment by the IRS will section 6325 regulations. the event of a postponement of the indicate the date and time of the receipt (2) Application for consent. Any scheduled sale of perishable goods, the of the notice. person desiring the IRS’s consent to sell seller is not required to notify the IRS property free of a tax lien or a title (4) Disclosure of adequacy of notice. of the postponement. For provisions The IRS is authorized to disclose, to any derived from the enforcement of a tax relating to the authority of the IRS to person who has a proper interest, lien of the United States in the property release a lien or discharge property whether an adequate notice of sale was shall submit to the IRS, at the office and subject to a tax lien, see section 6325 address specified in the relevant IRS and the regulations. given under paragraph (d)(1) of this publications, a written application, in section. Any person desiring this triplicate, declaring that it is made * * * * * information should submit to the IRS a (d) * * * under penalties of perjury, and written request that clearly describes the (2) Inadequate notice. Except as requesting that such consent be given. property sold or to be sold, identifies The application shall contain the otherwise provided in this paragraph, a notice of sale described in paragraph (a) the applicable notice of lien, gives the information required in the case of a reasons for requesting the information, notice of sale, as set forth in paragraph of this section that does not contain the information described in paragraph and states the name and address of the (d)(1) of this section, and, in addition, person making the request. The request shall contain a statement of the reasons (d)(1) of this section shall be considered inadequate by the IRS. If the IRS should be submitted to the IRS official, why the consent is desired. office and address specified in IRS (c) Sale of perishable goods—(1) In determines that the notice is inadequate, Publication 4235, ‘‘Technical Services general. A notice (as described in the IRS will give written notification of paragraph (d) of this section) of a the items of information which are (Advisory) Group Addresses,’’ or any nonjudicial sale of perishable goods (as inadequate to the person who submitted successor publication. The relevant IRS defined in paragraph (c)(2) of this the notice. A notice of sale that does not publications may be downloaded from section) shall be given in writing, by contain the name and address of the the IRS Internet site at http:// registered or certified mail or delivered person submitting such notice shall be www.irs.gov. by personal service, at any time before considered to be inadequate for all (e) Effective/applicability date. These the sale, to the IRS official and office purposes without notification of any regulations are effective on July 8, 2008. specified in the relevant IRS specific inadequacy. In any case where publications, at the address specified in a notice of sale does not contain the § 301.7425–3T [Removed]. such publications. Under this section, a information required under paragraph notice of sale is not effective if it is (d)(1)(ii) of this section with respect to I Par. 5. Section 301.7425–3T is given to an office other than the office a Notice of Federal Tax Lien, the IRS removed. listed in the relevant publication. If a may give written notification of such notice of a nonjudicial sale is timely omission without specification of any Linda E. Stiff, given in the manner described in this other inadequacy and such notice of Deputy Commissioner for Services and paragraph, the nonjudicial sale shall sale shall be considered inadequate for Enforcement. discharge or divest the tax lien, or a title all purposes. In the event the IRS gives Approved: June 30, 2008. derived from the enforcement of a tax notification that the notice of sale is Eric Solomon, inadequate, a notice complying with the lien, of the United States in the Assistant Secretary of the Treasury (Tax property. The provisions of sections provisions of this section (including the Policy). requirement that the notice be given not 7502 (relating to timely mailing treated [FR Doc. E8–15460 Filed 7–7–08; 8:45 am] as timely filing) and 7503 (relating to less than 25 days prior to the sale in the time for performance of acts where the case of a notice described in paragraph BILLING CODE 4830–01–P last day falls on Saturday, Sunday, or a (a) of this section) must be given. legal holiday) apply in the case of However, in accordance with the notices required to be made under this provisions of paragraph (b)(1) of this paragraph. The seller of the perishable section, in such a case the IRS may, in goods shall hold the proceeds (exclusive its discretion, consent to the sale of the of costs) of the sale as a fund, for not property free of the lien or title of the

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DEPARTMENT OF THE INTERIOR law which provides for the regulation of of Sportsmen’s Clubs Inc. et al. v. surface coal mining and reclamation Norton No. 1:03–CV–2220. It was that Office of Surface Mining Reclamation operations in accordance with the case, while initially dismissed by the and Enforcement requirements of the Act * * *; and district court, that ultimately leads to rules and regulations consistent with the Third Circuit decision that brings us 30 CFR Part 938 regulations issued by the Secretary to this action today. [PA–151–FOR; Docket ID: OSM–2008–0013] pursuant to the Act.’’ See 30 U.S.C. You can find background information 1253(a)(1) and (7). On the basis of these on the Pennsylvania program, including Pennsylvania Regulatory Program criteria, the Secretary of the Interior the Secretary’s findings, the disposition conditionally approved the of comments, and conditions of AGENCY: Office of Surface Mining Pennsylvania program on July 30, 1982. approval in the July 30, 1982, Federal Reclamation and Enforcement (OSM), From 1982 until 2001, Pennsylvania’s Register (47 FR 33050). You can also Interior. bonding program for surface coal mines, find later actions concerning ACTION: Final rule; disapproval of coal refuse reprocessing operations and Pennsylvania’s program and program amendment and reinstatement of a coal preparation plants, was funded amendments at 30 CFR 938.11, 938.12, required amendment under an Alternative Bonding System 938.13, 938.15 and 938.16. (ABS), which included a central pool of II. Submission of the Original SUMMARY: We are disapproving two money (Surface Mining Conservation Amendment changes to the Pennsylvania regulatory and Reclamation Fund) used for program (the ‘‘Pennsylvania program’’) reclamation. This pool was funded in By letter dated May 23, 2006, the regulations under the Surface Mining part by a per-acre reclamation fee paid PADEP sent us an amendment to revise Control and Reclamation Act of 1977 by operators of permitted sites and its program regulations at 25 (SMCRA or the Act) which were supplemented by site bonds posted by Pennsylvania Code (Pa. Code) previously submitted under amendment those operators for each mine site. This (Administrative Record No. PA 793.11). PA–147–FOR. While we approved the is the reclamation fee, established at 25 Pennsylvania sent the amendment in other proposed changes related to PA– Pa. Code 86.17(e), that Pennsylvania response to five required program 147–FOR, we deferred our decision on proposed to eliminate. amendments. The proposed amendment two changes pertaining to the In 1991, our oversight activities also included four additional changes discontinuation of a $100 per acre determined that Pennsylvania’s ABS which were made at Pennsylvania’s reclamation fee pending the outcome of contained unfunded reclamation own initiative. Two of the four litigation before the United States Court liabilities for backfilling, grading, and additional changes that Pennsylvania of Appeals for the Third Circuit in the revegetation and we determined that the proposed concerned money received matter of Pennsylvania Federation of ABS was financially incapable of from reclamation fees intended to Sportsmen’s Clubs Inc. et al. v. Norton, abating or treating pollutional supplement a reclamation bond pool. (PFSC v. Norton) No. 06–1780. We now discharges from bond forfeiture sites Because PADEP revised its bonding have the U.S. Court of Appeals decision under its purview. As a result, on May requirements and is now requiring all before us. The decision sets aside our 31, 1991, we imposed the required mine permits to post a full cost October 7, 2003, final rule removing a amendment codified at 30 CFR reclamation bond, the PADEP required amendment pertaining to the 938.16(h). That amendment required contended that there was no longer a Pennsylvania alternative bonding Pennsylvania to demonstrate that the basis for maintaining the reclamation system. Therefore, we are now revenues generated by its collection of fee. Pennsylvania submitted a request to disapproving the two changes the reclamation fee would assure that its discontinue the collection of the $100 pertaining to the discontinuation of the Surface Mining Conservation and per acre reclamation fee authorized fee. We are also reinstating a required Reclamation Fund (Fund) could be under 25 Pa. Code 86.17(e) under amendment that has been modified to operated in a manner that would meet Amendment No. PA–147–FOR by be consistent with the court’s decision. the ABS requirements contained in 30 adding the following sentence ‘‘This fee DATES: Effective Date: July 8, 2008. CFR 800.11(e). After a decade of trying shall not be required after (effective date FOR FURTHER INFORMATION CONTACT: to address the problems with the ABS, of this rulemaking).’’ George Rieger, Chief, Pittsburgh Field the Pennsylvania Department of Pennsylvania also amended 25 Pa. Division, Telephone: (717) 782–4036, Environmental Protection (PADEP) Code by removing section 86.283(c) e-mail: [email protected]. terminated the ABS in 2001 and began since it referenced the reclamation fee in relation to remining areas for mine SUPPLEMENTARY INFORMATION: converting active surface coal mining permits to a Conventional Bonding operators approved to participate in the I. Background on the Pennsylvania Program System (CBS) or ‘‘full-cost’’ bonding financial guarantees program. PADEP II. Submission of the Original Amendment program. This CBS requires a permittee submitted the amendment to create III. Court Decision consistency with the proposed IV. OSM’s Findings to post a site specific bond in an amount V. Summary and Disposition of Comments sufficient to cover the estimated costs to amendment to 86.17(e) that would VI. OSM’s Decision complete reclamation in the event of delete the reclamation fee. VII. Procedural Determinations bond forfeiture. While we approved the other OSM published a final rule on requested changes related to PA–147– I. Background on the Pennsylvania October 7, 2003, removing the required FOR, we deferred our decision on the Program amendment at 30 CFR 938.16(h) on the two changes pertaining to the Section 503(a) of the Act permits a basis that the conversion from an ABS discontinuation of a $100 per acre State to assume primacy for the to a CBS rendered the requirement to reclamation fee. We deferred our regulation of surface coal mining and comply with 30 CFR 800.11(e) moot. decision because Pennsylvania’s reclamation operations on non-Federal Subsequent to these OSM actions, a decision to eliminate its ABS in favor of and non-Indian lands within its borders lawsuit was filed in the U.S. District a CBS had been challenged, and the by demonstrating that its State program Court for the Middle District Court of matter was pending before the United includes, among other things, ‘‘a State Pennsylvania, Pennsylvania Federation States Court of Appeals for the Third

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Circuit in Pennsylvania Federation of modified to be consistent with the inconsistencies with the Clean Water Sportsmen’s Clubs v. Kempthorne, No. Court’s decision. Act or any other statutes or regulations 06–1780. (PFSC v. Kempthorne). under its jurisdiction. V. Summary and Disposition of Specifically, if the Third Circuit were Comments VI. OSM’s Decision to rule that Pennsylvania could not discontinue funding for surface coal Public Comments Based on the above findings, we disapprove the amendment mining sites where operators defaulted We asked for public comments on the on their reclamation obligations before Pennsylvania sent to us on May 23, original amendment (Administrative 2006, pertaining to the termination of the conversion to a CBS, and for sites Record No. PA 793.17). We received with operators who subsequently the collection of the reclamation fee at comments from one organization, the 25 Pa. Code 86.17(e) and 86.283(c). default due to failure to obtain adequate Citizens for Pennsylvania’s Future full-cost bonds, then OSM could not Because we are disapproving the (PennFUTURE) (Administrative Record elimination of the fee, Pennsylvania approve the proposed elimination of the No. PA 793.18). PennFUTURE objected reclamation fee. Therefore, in the must continue to collect this fee in to the portion of the program accordance with 25 Pa. Code 86.17(e). interest of judicial economy, we amendment that would discontinue the deferred our decision on this proposed For the reasons stated above, we are also collection of Pennsylvania’s reclamation disapproving the proposed deletion of change until final disposition of the fee at 25 Pa. Code 86.17(e), and PFSC v. Kempthorne matter. 25 Pa Code 86.283(c). requested that we defer our decision on We are also reinstating a required III. Court Decision this proposed change until such time as amendment formerly codified at 30 CFR the matter of PFSC v. Kempthorne is On August 2, 2007, the United States 938.16(h), and modifying it to be decided. consistent with the court’s decision. Court of Appeals for the Third Circuit As we noted above, we deferred our decided PFSC v. Kempthorne, 497 F.3d As reinstated, 30 CFR 938.16(h) will decision with respect to the proposed provide as follows: 337 (3rd Cir. 2007). At issue, relevant to amendment to 86.17(e), as well as on an this notice, was whether OSM properly ancillary proposed change at 86.283(c). By September 8, 2008, Pennsylvania must terminated the requirement that either submit information sufficient to With the recent Court decision, we have demonstrate that revenues to the Surface Pennsylvania demonstrate that its now concluded that we cannot approve Surface Mining Conservation and Mining Conservation and Reclamation Fund the requested changes. (Fund) are adequate to fulfill outstanding Reclamation Fund was in compliance reclamation obligations at forfeited sites for with 30 CFR 800.11(e). Federal Agency Comments which the Fund provides partial bond The Third Circuit concluded: ‘‘while Under Federal regulations at 30 CFR coverage under 30 CFR 800.11(e), or amend it is true that the ‘ABS Fund’ continues 732.17(h)(11)(i) and section 503(b) of its program to otherwise meet those to exist in name, it no longer operates SMCRA, we requested comments on the outstanding financial obligations at these as an ABS, that is, as a bond pool, to original amendment from various forfeited sites. provide liability coverage for new and Federal agencies with an actual or This final rule is being made effective existing mining sites.’’ 497 F.3d at 349. potential interest in the Pennsylvania immediately to expedite the State However, the Court went on to program (Administrative Record No. PA program amendment process and to ‘‘conclude that 800.11(e) continues to 793.12). The Mine Safety and Health encourage States to bring their programs apply to sites forfeited prior to the CBS Administration (MSHA), District 1, into conformity with the Federal conversion.’’ Id. at 353. In commenting responded (Administrative Record No. standards without undue delay. further on 30 CFR 800.11(e), the Court PA 793.13) and stated that it did not Consistency of State and Federal stated ‘‘The plain language of this have any comments or concerns. The standards is required by SMCRA. provision requires that Pennsylvania Natural Resources Conservation Service VII. Procedural Determinations demonstrate adequate funding for mine responded (Administrative Record No. discharge abatement and treatment at all PA 793.14) and stated that it did not Executive Order 12630—Takings ABS forfeiture sites.’’ Id. at 354. have any comments. This rule does not have takings IV. OSM’s Findings Environmental Protection Agency (EPA) implications. This determination is Concurrence and Comments based on the analysis performed for the PADEP had proposed elimination of counterpart Federal regulations. the $100 per acre fee given that the ABS Under Federal regulations at 30 CFR had been terminated and active mine 732.17(h)(11)(ii), we are required to get Executive Order 12866—Regulatory sites permitted under the ABS had been a written concurrence from EPA for Planning and Review converted to full-cost bonding. those provisions of the program This rule is exempted from review by However, elimination of the $100 per amendment that relate to air or water the Office of Management and Budget acre fee would essentially eliminate quality standards issued under the under Executive Order 12866. income to the Fund, thus reducing the authority of the Clean Water Act (33 amount of funds available for the U.S.C. 1251 et seq.) or the Clean Air Act Executive Order 12988—Civil Justice reclamation of the forfeited sites bonded (42 U.S.C. 7401 et seq.). Reform under the Fund. Therefore, an approval None of the revisions that The Department of the Interior has of the proposed change at 25 Pa Code Pennsylvania proposed to make in this conducted the reviews required by 86.17(e) or the deletion of 25 Pa Code amendment pertain to air or water Section 3 of Executive Order 12988 and 86.283(c) would be in conflict with the quality standards. Therefore, we did not has determined that, to the extent Court’s decision. ask EPA to concur on the amendment. allowable by law, this rule meets the Also, because the Third Circuit On June 6, 2006, we requested applicable standards of Subsections (a) decision set aside our 2003 removal of comments on the amendment from EPA and (b) of that Section. However, these the required amendment at 30 CFR (Administrative Record No. PA 793.15). standards are not applicable to the 938.16(h), we are now reinstating an The EPA, Region III, responded and actual language of State regulatory amendment ‘‘(h),’’ which has been stated that it did not identify any programs and program amendments

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because each program is drafted and Executive Order 12866 and is not subject of this rule, is based upon promulgated by a specific State, not by expected to have a significant adverse counterpart Federal regulations for OSM. Under sections 503 and 505 of effect on the supply, distribution, or use which an analysis was prepared and a SMCRA (30 U.S.C. 1253 and 1255) and of energy, a Statement of Energy Effects determination made that the Federal the Federal regulations at 30 CFR is not required. regulation was not considered a major 730.11, 732.15, and 732.17(h)(10), rule. National Environmental Policy Act decisions on proposed State regulatory programs and program amendments Section 702(d) of SMCRA (30 U.S.C. Unfunded Mandates submitted by the States must be based 1292(d)) provides that a decision on a This rule will not impose a cost of solely on a determination of whether the proposed State regulatory program $100 million or more in any given year submittal is consistent with SMCRA and provision does not constitute a major on any governmental entity or the its implementing Federal regulations Federal action within the meaning of private sector. and whether the other requirements of section 102(2)(C) of the National 30 CFR Parts 730, 731, and 732 have Environmental Policy Act (NEPA) (42 List of Subjects in 30 CFR Part 938 been met. U.S.C. 4332(2)(c)). A determination has Intergovernmental relations, Surface been made that such decisions are mining, Underground mining. Executive Order 13132—Federalism categorically excluded from the NEPA Dated: June 23, 2008. This rule does not have Federalism process (516 DM 8.4.A). implications. SMCRA delineates the Thomas D. Shope, roles of the Federal and State Paperwork Reduction Act Regional Director, Appalachian Region. governments with regard to the This rule does not contain I For the reasons set out in the regulation of surface coal mining and information collection requirements that preamble, 30 CFR part 938 is amended reclamation operations. One of the require approval by OMB under the as set forth below: purposes of SMCRA is to ‘‘establish a Paperwork Reduction Act (44 U.S.C. nationwide program to protect society 3507 et seq.). PART 938—PENNSYLVANIA and the environment from the adverse Regulatory Flexibility Act I effects of surface coal mining 1. The authority citation for part 938 operations.’’ Section 503(a)(1) of The Department of the Interior continues to read as follows: SMCRA requires that State laws certifies that this rule will not have a Authority: 30 U.S.C. 1201 et seq. regulating surface coal mining and significant economic impact on a I 2. Section 938.12 is amended by reclamation operations be ‘‘in substantial number of small entities adding paragraph (e) to read as follows: accordance with’’ the requirements of under the Regulatory Flexibility Act (5 SMCRA. Section 503(a)(7) requires that U.S.C. 601 et seq.). The State § 938.12 State statutory, regulatory, and State programs contain rules and amendment that is the subject of this proposed program amendment provisions regulations ‘‘consistent with’’ rule is based on counterpart Federal not approved. regulations issued by the Secretary regulations for which an economic * * * * * pursuant to SMCRA. analysis was prepared and certification (e) We are not approving the made that such regulations would not Executive Order 13175—Consultation following amendments that have a significant economic effect upon Pennsylvania submitted on May 23, and Coordination With Indian Tribal a substantial number of small entities. Government 2006: Accordingly, this rule will ensure that (1) At 25 Pa. Code 86.17(e), the In accordance with Executive Order existing requirements previously sentence ‘‘This fee shall not be required 13175, we have evaluated the potential promulgated by OSM will be after (effective date of this rulemaking).’’ effects of this rule on Federally- implemented by the State. In making the (2) At 25 Pa. Code 86.283(c), the recognized Indian tribes and have determination as to whether this rule proposed deletion of the entire determined that the rule does not have would have a significant economic subsection. substantial direct effects on one or more impact, the Department relied upon the I Indian tribes, on the relationship data and assumptions for the 3. Section 938.16 is amended by between the Federal Government and counterpart Federal regulations. adding paragraph (h) to read as follows: Indian tribes, or on the distribution of Small Business Regulatory Enforcement § 938.16 Required regulatory program power and responsibilities between the Fairness Act amendments. Federal Government and Indian Tribes. This rule is not a major rule under 5 * * * * * The basis for this determination is that (h) By September 8, 2008, our decision is on a State regulatory U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. Pennsylvania must either submit program and does not involve a Federal information sufficient to demonstrate program involving Indian lands. This rule: (a) Does not have an annual effect on the economy of $100 million; that revenues to the Surface Mining Executive Order 13211—Regulations (b) Will not cause a major increase in Conservation and Reclamation Fund That Significantly Affect the Supply, costs or prices for consumers, (Fund) are adequate to fulfill Distribution, or Use of Energy individual industries, geographic outstanding reclamation obligations at On May 18, 2001, the President issued regions, or Federal, State, or local forfeited sites for which the Fund Executive Order 13211 which requires government agencies; and (c) Does not provides partial bond coverage under 30 agencies to prepare a Statement of have significant adverse effects on CFR 800.11(e), or amend its program to Energy Effects for a rule that is (1) competition, employment, investment, otherwise meet those outstanding considered significant under Executive productivity, innovation, or the ability financial obligations at these forfeited Order 12866, and (2) likely to have a of U.S.-based enterprises to compete sites. significant adverse effect on the supply, with foreign-based enterprises. This * * * * * distribution, or use of energy. Because determination is based upon the fact [FR Doc. E8–15432 Filed 7–7–08; 8:45 am] this rule is exempt from review under that the State submittal, which is the BILLING CODE 4310–05–P

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DEPARTMENT OF DEFENSE Ave., SE., Suite 3000, Washington Navy impracticable, unnecessary, and Yard, DC 20374–5066, telephone: 202– contrary to public interest since it is Department of the Navy 685–5040. based on technical findings that the SUPPLEMENTARY INFORMATION: Pursuant placement of lights on this vessel in a 32 CFR Part 706 to the authority granted in 33 U.S.C. manner differently from that prescribed 1605, the Department of the Navy herein will adversely affect the vessel’s Certifications and Exemptions Under ability to perform its military functions. the International Regulations for amends 32 CFR part 706. Preventing Collisions at Sea, 1972 This amendment provides notice that List of Subjects in 32 CFR Part 706 the Deputy Assistant Judge Advocate AGENCY: Department of the Navy, DoD. General (Admiralty and Maritime Law), Marine safety, Navigation (water), and ACTION: Final rule. under authority delegated by the Vessels. Secretary of the Navy, has certified that I For the reasons set forth in the SUMMARY: The Department of the Navy USS NEW HAMPSHIRE (SSN 778) is a preamble, amend part 706 of title 32 of is amending its certifications and vessel of the Navy which, due to its the Code of Federal Regulations as exemptions under the International special construction and purpose, follows: Regulations for Preventing Collisions at cannot fully comply with the following Sea, 1972 (72 COLREGS), to reflect that specific provisions of 72 COLREGS PART 706—CERTIFICATIONS AND the Deputy Assistant Judge Advocate without interfering with its special EXEMPTIONS UNDER THE General (Admiralty and Maritime Law) function as a naval ship: Annex I, INTERNATIONAL REGULATIONS FOR has determined that USS NEW paragraph 2(a)(i), pertaining to the PREVENTING COLLISIONS AT SEA, HAMPSHIRE (SSN 778) is a vessel of height placement of the masthead light 1972 the Navy which, due to its special above the hull; Annex I, paragraph 2(k), construction and purpose, cannot fully I 1. The authority citation for part 706 pertaining to the height and relative continues to read: comply with certain provisions of the 72 positions of the anchor lights; Annex I, COLREGS without interfering with its paragraph 3(b), pertaining to the Authority: 33 U.S.C. 1605. special function as a naval ship. The location of the sidelights; and Rule I 2. Section 706.2 is amended as intended effect of this rule is to warn 21(c), pertaining to the location and arc mariners in waters where 72 COLREGS follows: of visibility of the sternlight. A. In Table One by adding, in apply. The Deputy Assistant Judge Advocate DATES: This rule is effective July 8, 2008 numerical order, the following entry for General (Admiralty and Maritime Law) USS NEW HAMPSHIRE (SSN 778); and and is applicable beginning June 27, has also certified that the lights 2008. B. In Table Three by adding, in involved are located in closest possible numerical order, the following entry for FOR FURTHER INFORMATION CONTACT: compliance with the applicable 72 USS NEW HAMPSHIRE (SSN 778): Commander M. Robb Hyde, JAGC, U.S. COLREGS requirements. Navy, Deputy Assistant Judge Advocate Moreover, it has been determined, in § 706.2 Certifications of the Secretary of General (Admiralty and Maritime Law), accordance with 32 CFR Parts 296 and the Navy under Executive Order 11964 and Office of the Judge Advocate General, 701, that publication of this amendment 33 U.S.C. 1605. Department of the Navy, 1322 Patterson for public comment prior to adoption is * * * * *

TABLE ONE

Distance in meters of forward masthead Vessel Number light below minimum required height. § 2(a)(i), Annex I

******* USS NEW HAMPSHIRE ...... SSN 778 ...... 2.90

*******

* * * * *

TABLE THREE

Anchor Side lights Forward an- lights rela- Masthead Stern light distance in- Stern light, chor light, tionship of lights arc of Side lights arc arc of visi- board of distance for- height above aft light to Vessel No. visibility; rule of visibility; rule bility; rule ship’s sides ward of stern hull in me- forward light 21(a) 21(b) 21(c) in meters in meters; ters; 2(K) in meters 3(b) annex 1 rule 21(c) annex 1 2(K) annex 1

******* USS NEW SSN 778 .... Meets Require- Meets Require- 205.6° 4.37 11.05 2.8 0.30 below. HAMPSHIRE. ment. ment.

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TABLE THREE—Continued

Anchor Side lights Forward an- lights rela- Masthead Stern light distance in- Stern light, chor light, tionship of lights arc of Side lights arc arc of visi- board of distance for- height above aft light to Vessel No. visibility; rule of visibility; rule bility; rule ship’s sides ward of stern hull in me- forward light 21(a) 21(b) 21(c) in meters in meters; ters; 2(K) in meters 3(b) annex 1 rule 21(c) annex 1 2(K) annex 1

*******

Approved: June 27, 2008. Coast Guard District, 408 Atlantic Ave., Budget has not reviewed it under that M. Robb Hyde, Boston, Massachusetts 02110, Order. Commander, JAGC, U.S. Navy, Deputy Telephone (617) 223–8355 or e-mail at We expect the economic impact of Assistant Judge Advocate General (Admiralty [email protected]. this rule to be so minimal that a full and Maritime Law). SUPPLEMENTARY INFORMATION: Regulatory Evaluation is unnecessary. [FR Doc. E8–15401 Filed 7–7–08; 8:45 am] This finding is based on the fact that BILLING CODE 3810–FF–P Regulatory Information this rule conforms to the changing needs On February 14, 2008, we published of the Town of Stonington, the changing a notice of proposed rulemaking needs of recreational, fishing and DEPARTMENT OF HOMELAND (NPRM) entitled ‘‘Anchorage commercial vessels, and makes the best SECURITY Regulations; Stonington Maine, Deer use of the available navigable water. Island Thorofare, Penobscot Bay, ME’’ This rule is in the interest of safe Coast Guard in the Federal Register (73 FR 8633). navigation, protection of moored We received no letters commenting on vessels, protection of the Town of 33 CFR Part 110 the proposed rule. No public hearing Stonington and the marine environment. [Docket No. USCG–2007–0198] was requested, and none was held. Background and Purpose Small Entities RIN 1625–AA01 Under the Regulatory Flexibility Act The rule is intended to reduce the risk Anchorage Regulations; Stonington (5 U.S.C. 601–612), we have considered of vessel collisions by creating Crotch whether this rule would have a Maine, Deer Island Thorofare, Island Special Anchorage area to aid the Penobscot Bay, ME significant economic impact on a Town of Stonington in enforcing its substantial number of small entities. AGENCY: Coast Guard, DHS. mooring and boating regulations. The term ‘‘small entities’’ comprises The Coast Guard is designating the ACTION: Final rule. small businesses, not-for-profit special anchorage area in accordance organizations that are independently SUMMARY: The Coast Guard hereby with 33 U.S.C. 471. Under that statute, owned and operated and are not establishes Crotch Island Special vessels will not be required to sound dominant in their fields, and Anchorage in Stonington, Maine, on signals or exhibit anchor lights or governmental jurisdictions with Deer Island Thorofare, Penobscot Bay. shapes which are otherwise required by populations of less than 50,000. This action is necessary to facilitate safe rule 30 and 35 of the Inland Navigation The Coast Guard certifies under 5 navigation and provide a safe and Rules, codified at 33 U.S.C. 2030 and U.S.C. 605(b) that this rule will not have secure anchorage for vessels of not more 2035. a significant economic impact on a than 65 feet in length. This action is The Coast Guard has defined the substantial number of small entities. intended to increase the safety of life anchorage area contained herein with and property on Deer Island Thorofare, the advice and consent of the Army Assistance for Small Entities improve the safety of anchored vessels, Corps of Engineers, Northeast, located at Under section 213(a) of the Small and provide for the overall safe and 696 Virginia Rd., Concord, MA 01742. Business Regulatory Enforcement efficient flow of vessel traffic and Regulatory Analyses Fairness Act of 1996 (Pub. L. 104–121), commerce. we offered to assist small entities in We developed this rule after DATES: This rule is effective August 7, understanding this rule so that they can 2008. considering numerous statutes and better evaluate its effects on them and executive orders related to rulemaking. participate in the rulemaking. ADDRESSES: Comments and materials Below we summarize our analyses If the rule would affect your small received from the public, as well as based on 13 of these statutes or business, organization, or governmental documents indicated in this preamble as executive orders. jurisdiction and you have questions being available in the docket, are part of concerning its provisions or options for Regulatory Planning and Review docket (USCG–2007–0198), and are compliance; please contact John J. available for inspection or copying at This rule is not a ‘‘significant Mauro, at the address listed in room 628, First Coast Guard District regulatory action’’ under section 3(f) of ADDRESSES above. Boston, between 8 a.m. and 3 p.m., Executive Order 12866, Regulatory Small businesses may send comments Monday through Friday, except Federal Planning and Review, and does not on the actions of Federal employees holidays. require an assessment of potential costs who enforce, or otherwise determine FOR FURTHER INFORMATION CONTACT: Mr. and benefits under section 6(a)(3) of that compliance with, Federal Regulatory John J. Mauro, Commander (DPW), First Order. The Office of Management and Enforcement Ombudsman and the

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Regional Small Business Regulatory 13175, Consultation and Coordination List of Subjects in 33 CFR Part 110 Fairness Boards. The Ombudsman with Indian Tribal Governments, evaluates these actions annually and because it would not have a substantial Anchorage grounds. rates each agency’s responsiveness to direct effect on one or more Indian I For the reasons discussed in the small business. If you wish to comment tribes, on the relationship between the preamble, the Coast Guard amends 33 on actions by employees of the Coast Federal Government and Indian tribes, CFR part 110 as follows: Guard, call 1–888–REG–FAIR (1–888– or on the distribution of power and 734–3247). responsibilities between the Federal PART 110—ANCHORAGE Government and Indian tribes. Collection of Information REGULATIONS Energy Effects This rule calls for no new collection I 1. The authority citation for part 110 of information under the Paperwork We have analyzed this rule under continues to read as follows: Reduction Act of 1995 (44 U.S.C. 3501– Executive Order 13211, Actions 3520). Concerning Regulations That Authority: 33 U.S.C. 471; 1221 through Significantly Affect Energy Supply, 1236, 2030, 2035 and 2071; Department of Federalism Distribution, or Use. We have Homeland Security Delegation No. 0170.1. A rule has implications for federalism determined that it is not a ‘‘significant under Executive Order 13132, energy action’’ under that order because I 2. Amend § 110.4 by adding paragraph Federalism, if it has a substantial direct it is not a ‘‘significant regulatory action’’ (c) to read as follows: effect on State or local governments and under Executive Order 12866 and is not § 110.4 Penobscot Bay, Maine. would either preempt State law or likely to have a significant adverse effect impose a substantial direct cost of on the supply, distribution, or use of * * * * * compliance on them. We have analyzed energy. The Administrator of the Office (c) Stonington Harbor, Deer Island this rule under that Order and have of Information and Regulatory Affairs Thorofare. (1) Crotch Island. All of the determined that it does not have has not designated it as a significant waters bound by the following points implications for federalism. energy action. Therefore, it does not beginning at the northeast shore of Unfunded Mandates Reform Act require a Statement of Energy Effects Crotch Island located at: latitude under Executive Order 13211. ° ′ ″ ° ′ ″ The Unfunded Mandates Reform Act 44 08 51.0 N, longitude 068 40 06.0 of 1995 (2 U.S.C. 1531–1538) requires Technical Standards W; thence southerly along the shoreline ° ′ ″ Federal agencies to assess the effects of The National Technology Transfer to latitude 44 08 36.0 N, longitude their discretionary regulatory actions. In 068°40′07.02″ W; thence to latitude and Advancement Act (NTTAA) (15 ° ′ ″ ° ′ ″ particular, the Act addresses actions U.S.C. 272 note) directs agencies to use 44 08 36.0 N, longitude 068 40 04.02 ° ′ ″ that may result in the expenditure by a voluntary consensus standards in their W; thence to latitude 44 08 46.98 N, ° ′ ″ State, local, or tribal government, in the regulatory activities unless the agency longitude 068 40 00.0 W; thence to aggregate, or by the private sector of provides Congress, through the Office of latitude 44°08′55.02″ N, longitude $100,000,000 or more in any one year. Management and Budget, with an 068°39′49.02″ W; thence to latitude Though this rule would not result in explanation of why using these 44°08′54.0″ N, longitude 068°40′06.0″ W such an expenditure, we do discuss the standards would be inconsistent with thence back to origin. effects of this rule elsewhere in this applicable law or otherwise impractical. DATUM: NAD 83. preamble. Voluntary consensus standards are (2) [Reserved]. Taking of Private Property technical standards (e.g., specifications Note to § 110.4(c): An ordinance of the This rule will not effect a taking of of materials, performance, design, or Town of Stonington, Maine requires the private property or otherwise have operation; test methods; sampling approval of the Stonington Harbor Master for taking implications under Executive procedures; and related management the location and type of moorings placed in Order 12630, Governmental Actions and systems practices) that are developed or these special anchorage areas. All anchoring Interference with Constitutionally adopted by voluntary consensus in the areas are under the supervision of the Protected Property Rights. standards bodies. This rule does not use technical Stonington Harbor Master or other such Civil Justice Reform standards. Therefore, we did not authority as may be designated by the This rule meets applicable standards consider the use of voluntary consensus authorities of the Town of Stonington, Maine. in sections 3(a) and 3(b)(2) of Executive standards. All moorings are to be so placed that no moored vessel will extend beyond the limit Order 12988, Civil Justice Reform, to Environment minimize litigation, eliminate of the area. ambiguity, and reduce burden. We have considered the environmental impact of this rule and Dated: June 23, 2008. Protection of Children concluded that, under figure 2–1, Timothy S. Sullivan, We have analyzed this rule under paragraph 34(f), of Commandant Rear Admiral, U.S. Coast Guard, Commander, Executive Order 13045, Protection of Instruction M16475.1D, this rule is First Coast Guard District. Children from Environmental Health categorically excluded from further [FR Doc. E8–15311 Filed 7–7–08; 8:45 am] Risks and Safety Risks. This rule is not environmental documentation. A final BILLING CODE 4910–15–P an economically significant rule and ‘‘Categorical Exclusion Determination’’ will not create an environmental risk to and a final ‘‘Environmental Analysis health or risk to safety that might Check List’’ are available in the docket disproportionately affect children. for inspection or copying where indicated under ADDRESSES. This rule Indian Tribal Governments fits the category selected from paragraph This rule does not have tribal (34)(f) as it would establish one special implications under Executive Order anchorage area.

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DEPARTMENT OF HOMELAND anchorage area in accordance with 33 understanding this rule so that they can SECURITY U.S.C. 471. Under that statute, vessels better evaluate its effects on them and will not be required to sound signals or participate in the rulemaking. Coast Guard exhibit anchor lights or shapes which If the rule would affect your small are otherwise required by rule 30 and 35 business, organization, or governmental 33 CFR Part 110 of the Inland Navigation Rules, codified jurisdiction and you have questions [Docket No. USCG–2007–0199] at 33 U.S.C. 2030 and 2035. concerning its provisions or options for The Coast Guard has defined the compliance; please contact John J. RIN 1625–AA01 anchorage area contained herein with Mauro, at the address listed in the advice and consent of the Army ADDRESSES above. Anchorage Regulations; Weymouth Corps of Engineers, Northeast, located at Small businesses may send comments Fore River, Weymouth, MA 696 Virginia Rd., Concord, MA 01742. on the actions of Federal employees who enforce, or otherwise determine AGENCY: Coast Guard, DHS. Regulatory Analyses compliance with, Federal Regulatory ACTION: Final rule. We developed this rule after Enforcement Ombudsman and the SUMMARY: The Coast Guard hereby considering numerous statutes and Regional Small Business Regulatory establishes Gull Point (PT) Special executive orders related to rulemaking. Fairness Boards. The Ombudsman Anchorage area in the Weymouth Fore Below we summarize our analyses evaluates these actions annually and River, Weymouth, Massachusetts. This based on 13 of these statutes or rates each agency’s responsiveness to action is necessary to facilitate safe executive orders. small business. If you wish to comment navigation and provide a safe and Regulatory Planning and Review on actions by employees of the Coast secure anchorage for vessels of not more Guard, call 1–888–REG–FAIR (1–888– than 65 feet in length. This action is This rule is not a significant 734–3247). regulatory action under section 3(f) of intended to increase the safety of life Collection of Information and property in the Weymouth Fore Executive Order 12866, Regulatory River, improve the safety of anchored Planning and Review, and does not This rule calls for no new collection vessels, and provide for the overall safe require an assessment of potential costs of information under the Paperwork and efficient flow of vessel traffic and and benefits under section 6(a)(3) of that Reduction Act of 1995 (44 U.S.C. 3501– commerce. Order. The Office of Management and 3520). Budget has not reviewed it under that DATES: This rule is effective August 7, Order. Federalism 2008. We expect the economic impact of A rule has implications for federalism ADDRESSES: Comments and materials this rule to be so minimal that a full under Executive Order 13132, received from the public, as well as Regulatory Evaluation is unnecessary. Federalism, if it has a substantial direct documents indicated in this preamble as This finding is based on the fact that effect on State or local governments and being available in the docket, are part of this rule conforms to the changing needs would either preempt State law or docket (USCG–2007–0199), and are of the Town of Weymouth, the changing impose a substantial direct cost of available for inspection or copying at needs of recreational, fishing and compliance on them. We have analyzed room 628, First Coast Guard District commercial vessels, and makes the best this rule under that Order and have Boston, between 8 a.m. and 3 p.m., use of the available navigable water. determined that it does not have Monday through Friday, except Federal This rule is in the interest of safe implications for federalism. holidays. navigation, protection of moored vessels, protection of the Town of Unfunded Mandates Reform Act FOR FURTHER INFORMATION CONTACT: Mr. Weymouth and the marine The Unfunded Mandates Reform Act John J. Mauro, Commander (dpw), First environment. of 1995 (2 U.S.C. 1531–1538) requires Coast Guard District, 408 Atlantic Ave., Federal agencies to assess the effects of Boston, MA 02110, Telephone (617) Small Entities their discretionary regulatory actions. In 223–8355, e-mail: Under the Regulatory Flexibility Act particular, the Act addresses actions [email protected]. (5 U.S.C. 601–612), we have considered that may result in the expenditure by a SUPPLEMENTARY INFORMATION: whether this rule would have a State, local, or tribal government, in the significant economic impact on a Regulatory Information aggregate, or by the private sector of substantial number of small entities. $100,000,000 or more in any one year. On February 14, 2008, we published The term ‘‘small entities’’ comprises Though this rule would not result in a notice of proposed rulemaking small businesses, not-for-profit such an expenditure, we do discuss the (NPRM) entitled ‘‘Anchorage organizations that are independently effects of this rule elsewhere in this Regulations; Weymouth, Massachusetts, owned and operated and are not preamble. Weymouth Fore River’’ in the Federal dominant in their fields, and Register (73 FR 8635). We received no governmental jurisdictions with Taking of Private Property letters commenting on the proposed populations of less than 50,000. This rule will not effect a taking of rule. No public hearing was requested, The Coast Guard certifies under 5 private property or otherwise have and none was held. U.S.C. 605(b) that this rule will not have taking implications under Executive a significant economic impact on a Order 12630, Governmental Actions and Background and Purpose substantial number of small entities. Interference with Constitutionally The rule is intended to reduce the risk Protected Property Rights. of vessel collisions by decreasing Assistance for Small Entities activity in nearby over-crowded Under section 213(a) of the Small Civil Justice Reform mooring areas or anchorages in Business Regulatory Enforcement This rule meets applicable standards Weymouth, Massachusetts. The Coast Fairness Act of 1996 (Pub. L. 104–121), in sections 3(a) and 3(b)(2) of Executive Guard is designating the special we offered to assist small entities in Order 12988, Civil Justice Reform, to

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minimize litigation, eliminate Environment ENVIRONMENTAL PROTECTION ambiguity, and reduce burden. We have considered the AGENCY environmental impact of this rule and Protection of Children 40 CFR Part 62 concluded that, under figure 2–1, We have analyzed this rule under paragraph 34(f), of Commandant [EPA–R05–OAR–2008–0952; FRL–8688–1] Executive Order 13045, Protection of Instruction M16475.1D, this rule is Children from Environmental Health categorically excluded from further Direct Final Approval of Revised Risks and Safety Risks. This rule is not environmental documentation. A final Municipal Waste Combustor State Plan an economically significant rule and ‘‘Categorical Exclusion Determination’’ for Designated Facilities and will not create an environmental risk to and a final ‘‘Environmental Analysis Pollutants: Indiana health or risk to safety that might Check List’’ are available in the docket disproportionately affect children. AGENCY: Environmental Protection for inspection or copying where Agency (EPA). Indian Tribal Governments indicated under ADDRESSES. This rule fits the category selected from paragraph ACTION: Direct final rule. This rule does not have tribal (34)(f) as it would establish one special SUMMARY: EPA is approving revisions to implications under Executive Order anchorage area 13175, Consultation and Coordination Indiana’s State Plan to control air with Indian Tribal Governments, List of Subjects in 33 CFR Part 110 pollutants from large Municipal Waste Combustors (MWC). The Indiana because it would not have a substantial Anchorage grounds. Department of Environmental direct effect on one or more Indian I For the reasons discussed in the tribes, on the relationship between the Management (IDEM) submitted the State preamble, the Coast Guard amends 33 Plan on August 24, 2007. The revisions Federal Government and Indian tribes, CFR part 110 as follows: or on the distribution of power and are consistent with Emission Guideline responsibilities between the Federal PART 110—ANCHORAGE (EG) amendments promulgated by EPA Government and Indian tribes. REGULATIONS on May 10, 2006. This approval means that EPA finds that the State Plan Energy Effects I 1. The authority citation for part 110 amendments meet applicable Clean Air continues to read as follows: We have analyzed this rule under Act (Act) requirements for large MWCs Executive Order 13211, Actions Authority: 33 U.S.C. 471; 1221 through for which construction commenced on Concerning Regulations That 1236, 2030, 2035 and 2071; and Department or before September 20, 1994. Once Significantly Affect Energy Supply, of Homeland Security Delegation No. 0170.1. effective, this approval also makes the amended State Plan Federally Distribution, or Use. We have I 2. Amend § 110.30, by redesignating enforceable. determined that it is not a ‘‘significant paragraph (k) as paragraph (k)(1) and energy action’’ under that order because adding paragraph (k)(2) to read as DATES: This direct final rule will be it is not a ‘‘significant regulatory action’’ follows: effective September 8, 2008, unless EPA under Executive Order 12866 and is not receives adverse comments by August 7, likely to have a significant adverse effect § 110.30 Boston Harbor, Mass., and 2008. If adverse comments are received, adjacent waters. on the supply, distribution, or use of EPA will publish a timely withdrawal of energy. The Administrator of the Office * * * * * the direct final rule in the Federal of Information and Regulatory Affairs (k) * * * Register informing the public that the has not designated it as a significant (2) Weymouth Fore River, in the rule will not take effect. vicinity of Gull Point (PT). All of the energy action. Therefore, it does not ADDRESSES: waters bound by the following points Submit your comments, require a Statement of Energy Effects ° ′ ″ identified by Docket ID No. EPA–R05– under Executive Order 13211. beginning at latitude 42 15 05 N, longitude 70°57′26″ W; thence to OAR–2008–0952, by one of the Technical Standards latitude 42°15′00″ N, longitude following methods: ° ′ ″ 1. www.regulations.gov: Follow the The National Technology Transfer 70 57 26 W; thence to latitude 42°15′15″ N, longitude 70°56′50″ W; on-line instructions for submitting and Advancement Act (NTTAA) (15 ° ′ ″ comments. U.S.C. 272 note) directs agencies to use thence to latitude 42 15 18 N, longitude 70°56′50″ W; thence to the 2. E-mail: [email protected]. voluntary consensus standards in their 3. Fax: (312) 886–6030. regulatory activities unless the agency point of the beginning. DATUM: NAD 83. 4. Mail: Carlton T. Nash, Chief, provides Congress, through the Office of Integrated Air Toxics Section, Air Management and Budget, with an Note to paragraph (k)(2): The area is Toxics and Assessment Branch (AT– explanation of why using these principally for use by recreational craft. All 18J), U.S. Environmental Protection standards would be inconsistent with anchoring in the area shall be under the supervision of the local harbor master or Agency, 77 West Jackson Boulevard, applicable law or otherwise impractical. such other authority as may be designated by Chicago, Illinois 60604. Voluntary consensus standards are the authorities of the Town of Weymouth, 5. Hand Delivery: Carlton T. Nash, technical standards (e.g., specifications Massachusetts. All moorings are to be so Chief, Integrated Air Toxics Section, Air of materials, performance, design, or placed that no moored vessel will extend Toxics and Assessment Branch (AT– operation; test methods; sampling beyond the limit of the anchorage area. 18J), U.S. Environmental Protection procedures; and related management * * * * * Agency, 77 West Jackson Boulevard, systems practices) that are developed or Chicago, Illinois 60604. Such deliveries adopted by voluntary consensus Dated: June 23, 2008. are only accepted during the Regional standards bodies. Timothy S. Sullivan, Office normal hours of operation, and This rule does not use technical Rear Admiral, U.S. Coast Guard Commander, special arrangements should be made standards. Therefore, we did not First Coast Guard District. for deliveries of boxed information. The consider the use of voluntary consensus [FR Doc. E8–15312 Filed 7–7–08; 8:45 am] Regional Office official hours of standards. BILLING CODE 4910–15–P business are Monday through Friday,

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8:30 a.m. to 4:30 p.m. excluding Federal Boulevard (AT–18J), Chicago, Illinois allow the optional use of CEMS to holidays. 60604, (312) 353–1151, monitor particulate matter and mercury. Instructions: Direct your comments to [email protected] or Michele Other revisions include: Docket ID No. EPA–R05–OAR–2008– Palmer, Environmental Engineer, • Operator stand-in provisions to 0952. EPA’s policy is that all comments Environmental Protection Agency, clarify how long a shift supervisor is received will be included in the public Region 5, 77 West Jackson Boulevard allowed to be off site when a docket without change and may be (ML–10C), Chicago, Illinois 60604, (312) provisionally certified control room made available online at 353–3646, [email protected]. operator is standing in; www.regulations.gov, including any SUPPLEMENTARY INFORMATION: • An eight-hour block average for personal information provided, unless Throughout this document whenever measuring activated carbon injection the comment includes information ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean rate; claimed to be Confidential Business EPA. This supplementary information • A provision for waiver of operating Information (CBI) or other information section is arranged as follows: parameter limits during the mercury whose disclosure is restricted by statute. I. What Did Indiana Submit to EPA? performance test and for two weeks Do not submit information that you II. What Are the Revised MWC State Plan preceding the test, as is already allowed consider to be CBI or otherwise Requirements? for dioxin testing; protected through www.regulations.gov III. What Is the Revised Indiana MWC Plan? • A revision to relative accuracy or e-mail. The www.regulations.gov Web IV. Does the Revised MWC State Plan Meet criterion for sulfur dioxide and carbon site is an ‘‘anonymous access’’ system, Federal Requirements? monoxide CEMS; which means EPA will not know your V. What Action Is EPA Taking? • Flexibility to the annual VI. Statutory and Executive Order Reviews identity or contact information unless compliance testing schedule so that a you provide it in the body of your I. What Did Indiana Submit to EPA? facility tests once per calendar year, but comment. If you send an e-mail On August 24, 2007, Indiana no less than nine months and no more comment directly to EPA without going submitted amendments to its State Plan than 15 months since the previous test; through www.regulations.gov your e- • to meet Federal rules applicable to large Allowing use of parametric mail address will be automatically MWCs, which EPA implements under monitoring limits from an exceptionally captured and included as part of the sections 111(d) and 129 of the Clean Air well-operated MWC unit to be applied comment that is placed in the public Act. Section 129(a)(5) of the Clean Air to all identical units at the same plant docket and made available on the Act requires that EPA conduct a five- site without retesting for dioxin; Internet. If you submit an electronic • year review of the emissions guidelines The option of monitoring the comment, EPA recommends that you and, if appropriate, revise them. These activated carbon injection pressure or include your name and other contact amendments are intended to revise the equivalent parameter; and information in the body of your State plan approved by EPA on • Clarifying the exclusion of comment and with any disk or CD–ROM November 18, 1999 (64 FR 62928). If monitoring data from compliance you submit. If EPA cannot read your this approval becomes effective, it will calculations. comment due to technical difficulties make the amended Indiana MWC rule and cannot contact you for clarification, III. What Is the Revised Indiana MWC consistent with the amended Federal EG EPA may not be able to consider your Plan? amendments promulgated on May 10, comment. Electronic files should avoid 2006. Indiana adopted the revised State the use of special characters, any form There is currently one large MWC Plan to implement the EG revisions of encryption, and be free of any defects plant in Indiana covered by the revised published by the EPA on May 10, 2006, or viruses. rule, Covanta Indianapolis, Inc. This in accordance with procedures Docket: All documents in the docket facility has three subject units. established in 40 CFR part 60, subpart are listed in the www.regulations.gov Cb. The submission only addresses index. Although listed in the index, II. What Are the Revised MWC State those portions of the State Plan that some information is not publicly Plan Requirements? have been updated since EPA’s available, e.g., CBI or other information On May 10, 2006 (71 FR 27324), EPA November 18, 1999, approval of whose disclosure is restricted by statute. published a final rule amending the Indiana’s previous MWC rules. It is Certain other material, such as emissions guidelines at 40 CFR part 60, comprised of revisions to 326 IAC 11– copyrighted material, will be publicly Subpart Cb, to reflect the actual 7, which establishes emission standards available only in hard copy. Publicly performance levels being achieved by for existing MWC units consistent with available docket materials are available existing MWC units. This rulemaking the Federal rules. These became either electronically in included revised limits for dioxin/furan effective in Indiana on August 9, 2007. www.regulations.gov or in hard copy at (only for units equipped with The remainder of the changes are the Environmental Protection Agency, electrostatic precipitators), mercury, accomplished by Indiana having Region 5, Air and Radiation Division, 77 cadmium, lead, particulate matter, and incorporated by reference the May 10, West Jackson Boulevard, Chicago, nitrogen oxides (for some types of 2006 Federal requirements. This became Illinois 60604. This Facility is open units). It also contained revisions to the Federally effective when EPA approved from 8:30 a.m. to 4:30 p.m., Monday compliance testing provisions to require the State’s most recent updates to the through Friday, excluding legal increased data availability from Code of Federal Regulations under 326 holidays. We recommend that you continuous emissions monitoring IAC 1–1–3 (the definition of ‘‘References telephone Margaret Sieffert, systems (CEMS). CEMS are required to to Code of Federal Regulations’’). See 73 Environmental Engineer, at (312) 353– generate at least ninety-five percent FR 14389 (March 18, 2008). In addition, 1151 before visiting the Region 5 office. (95%) data availability on a calendar Indiana made the emission limits in 326 FOR FURTHER INFORMATION CONTACT: year basis and at least ninety percent IAC 11–7 apply upon the effective date Margaret Sieffert, Environmental (90%) data availability on a calendar of the rule, August 9, 2007, which is two Engineer, Environmental Protection quarter basis. The compliance testing years earlier than required by the EPA’s Agency, Region 5, 77 West Jackson provisions have also been revised to MWC revisions.

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The Revised Plan adopts the same emission guidelines. Accordingly, the (PM), cadmium, lead, and mercury are emission limits that are in the Federal emission limits for particulate matter as follows:

Pollutant Emission limits

Particulate matter ...... 25 milligrams per dry standard cubic meter (mg/dscm).1, 4 Opacity ...... 10% based on a 6-minute average. Cadmium ...... 0.035 mg/dscm.1 Lead ...... 0.400 mg/dscm.1 Mercury ...... 0.050 mg/dscm; or 15% of the potential mercury emissions concentra- tion.3, 4 Sulfur dioxide ...... 29 parts per million by volume (ppmv); or 20% of the potential sulfur di- oxide emission concentration.3, 5 Hydrogen chloride ...... 29 ppmv; or 5% of the potential hydrogen chloride emissions con- centration.2, 3 Organic emission (expressed as total mass dioxins/furans) ...... 30 nanograms per dry standard cubic meter (ng/dscm) total mass.1 Nitrogen oxides ...... 205 ppmv.2 Carbon monoxide5 ...... 100 ppmv5 (based on a 4-hour block averaging time). 1 Corrected to seven percent (7%) oxygen. 2 Corrected to seven percent (7%) oxygen, dry basis. 3 Whichever concentration is less stringent. 4 Corrected to seven percent (7%) oxygen, dry basis, calculated as a 24-hour daily geometric mean. 5 Measured at the combustor outlet in conjunction with a measurement of oxygen concentration, corrected to seven percent (7%) oxygen, dry basis, calculated as an arithmetic mean.

IV. Does the Revised MWC State Plan period. Any parties interested in enforceable duty beyond that required Meet Federal Requirements? commenting on this action should do so by state law, it does not contain any at this time. If we do not receive any unfunded mandate or significantly or IDEM held public hearings for the comments, this action will be effective uniquely affect small governments, as preliminary adoption of the State rule September 8, 2008. described in the Unfunded Mandates on December 6, 2006, and for final Reform Act of 1995 (Pub. L. 104–4). adoption on February 7, 2007. The State VI. Statutory and Executive Order did not receive any comments during Reviews Executive Order 13175: Consultation the public comment period or at the first Executive Order 12866: Regulatory and Coordination With Indian Tribal and second public hearings. Planning and Review Governments For the reasons discussed above, EPA This rule also does not have tribal has determined that the revised Plan Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is implications because it will not have a meets all applicable Federal substantial direct effect on one or more requirements. not a ‘‘significant regulatory action’’ and therefore is not subject to review by the Indian tribes, on the relationship V. What Action Is EPA Taking? Office of Management and Budget. between the Federal Government and Indian tribes, or on the distribution of We are approving, through direct final Executive Order 13211: Actions That power and responsibilities between the rulemaking action, Indiana’s revised Significantly Affect Energy Supply, Federal Government and Indian tribes, State Plan for large MWCs, submitted to Distribution, or Use as specified by Executive Order 13175 EPA on August 24, 2007. This plan Because it is not a ‘‘significant (59 FR 22951, November 9, 2000). revision approval excludes certain regulatory action’’ under Executive authorities retained by EPA, as stated in Executive Order 13132: Federalism Order 12866 or a ‘‘significant energy 40 CFR 60.30b(b) and 60.50b(n). action,’’ this action is also not subject to This action also does not have We are publishing this action without Executive Order 13211, ‘‘Actions Federalism implications because it does prior proposal because we view this as Concerning Regulations That not have substantial direct effects on the a non-controversial amendment and Significantly Affect Energy Supply, states, on the relationship between the anticipate no adverse comments. Distribution, or Use’’ (66 FR 28355, May national government and the states, or However, in the proposed rules section 22, 2001). on the distribution of power and of this Federal Register publication, we responsibilities among the various are publishing a separate document that Regulatory Flexibility Act levels of government, as specified in will serve as the proposal to approve the This action merely approves state law Executive Order 13132 (64 FR 43255, state plan if relevant adverse written as meeting Federal requirements and August 10, 1999). This action merely comments are filed. This rule will be imposes no additional requirements approves a state rule implementing a effective September 8, 2008 without beyond those imposed by state law. federal standard, and does not alter the further notice unless we receive relevant Accordingly, the Administrator certifies relationship or the distribution of power adverse written comments by August 7, that this rule will not have a significant and responsibilities established in the 2008. If we receive such comments, we economic impact on a substantial Clean Air Act. will withdraw this action before the number of small entities under the effective date by publishing a Executive Order 13045: Protection of Regulatory Flexibility Act (5 U.S.C. 601 Children From Environmental Health subsequent document that will et seq.). withdraw the final action. All public and Safety Risks comments received will then be Unfunded Mandates Reform Act This rule also is not subject to addressed in a subsequent final rule Because this rule approves pre- Executive Order 13045 ‘‘Protection of based on the proposed action. The EPA existing requirements under state law Children from Environmental Health will not institute a second comment and does not impose any additional Risks and Safety Risks’’ (62 FR 19885,

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April 23, 1997), because it approves a List of Subjects in 40 CFR Part 62 § 62.3652 Effective date. state rule implementing a Federal Environmental protection, Air The effective date of Phase I of the Standard. pollution control, Administrative approval of the Indiana State Plan for National Technology Transfer practice and procedure, municipal waste combustors with the Advancement Act Intergovernmental relations, Municipal capacity to combust greater than 250 tons per day of municipal solid waste In reviewing SIP submissions, EPA’s waste combustors, Reporting and recordkeeping requirements. was January 18, 2000. role is to approve state choices, Phase II of the plan revision is provided that they meet the criteria of Dated: June 24, 2008. effective September 8, 2008. the Clean Air Act. In this context, in the Richard C. Karl, * * * * * absence of a prior existing requirement Acting Regional Administrator, Region 5. for the state to use voluntary consensus [FR Doc. E8–15349 Filed 7–7–08; 8:45 am] standards (VCS), EPA has no authority I 40 CFR part 62 is amended as follows: BILLING CODE 6560–50–P to disapprove a SIP submission for PART 62—[AMENDED] failure to use VCS. It would thus be inconsistent with applicable law for I 1. The authority citation for part 62 FEDERAL COMMUNICATIONS EPA, when it reviews a SIP submission, continues to read as follows: COMMISSION to use VCS in place of a SIP submission that otherwise satisfies the provisions of Authority: 42 U.S.C. 7401 et seq. 47 CFR Part 64 the Clean Air Act. Thus, the Subpart P—Indiana [CG Docket No. 03–123; FCC 08–138] requirements of section 12(d) of the National Technology Transfer and I 2. Sections 62.3650, 62.3651, and Telecommunications Relay Services Advancement Act of 1995 (15 U.S.C. 62.3652 to subpart P are revised to read and Speech-to-Speech Services for 272 note) do not apply. as follows: Individuals With Hearing and Speech Paperwork Reduction Act * * * * * Disabilities This rule does not impose an § 62.3650 Identification of plan. AGENCY: Federal Communications information collection burden under the Commission. (a) On September 30, 1999, Indiana provisions of the Paperwork Reduction ACTION: Final rule. Act of 1995 (44 U.S.C. 3501 et seq.). submitted the State Plan for implementing the Federal Large SUMMARY: In this document, the Congressional Review Act Municipal Waste Combustor (MWC) Commission clarifies its restrictions on The Congressional Review Act, 5 Emission Guidelines to control the use of consumer or call database U.S.C. 801 et seq., as added by the Small emissions from existing MWCs with the information by telecommunications Business Regulatory Enforcement capacity to combust greater than 250 relay service (TRS) providers to contact Fairness Act of 1996, generally provides tons per day of municipal solid waste. consumers of interstate TRS. The that before a rule may take effect, the The enforceable mechanism for this Commission concludes that TRS agency promulgating the rule must plan is a State rule codified in 326 providers may use information derived submit a rule report, which includes a Indiana Administrative Code (IAC) 11– from a consumer or call database to copy of the rule, to each House of the 7. The rule was adopted on September contact TRS users for purposes related Congress and to the Comptroller General 2, 1998, filed with the Secretary of State to the handling of relay calls, as well as of the United States. EPA will submit a on January 18, 1999, and became to comply with a federal statute, report containing this rule and other effective on February 17, 1999. The rule Commission rule or order, a court order, required information to the U.S. Senate, was published in the Indiana State or other lawful authority. Register on March 1, 1999 (22 IR 1967). the U.S. House of Representatives, and DATES: Effective May 28, 2008. the Comptroller General of the United (b) On August 24, 2007, Indiana ADDRESSES: Federal Communications States prior to publication of the rule in submitted a revised State plan as Commission, 445 12th Street, SW., the Federal Register. A major rule required by sections 129(a)(5) and 129 Washington, DC 20554. cannot take effect until 60 days after it (b)(2) of the Act. The revised (Phase II) is published in the Federal Register. State plan implements amendments to FOR FURTHER INFORMATION CONTACT: Lisa This action is not a ‘‘major rule’’ as 40 CFR part 60, subpart Cb published in Boehley, Consumer and Governmental defined by 5 U.S.C. 804(2). the Federal Register on May 10, 2006. Affairs Bureau, Consumer Policy Under section 307(b)(1) of the Clean The Phase II State plan includes an Division at (202) 418–7395 (voice), or e- Air Act, petitions for judicial review of amendment to State Rule 326 IAC 11– mail at [email protected]. this action must be filed in the United 7, that was adopted by Indiana on SUPPLEMENTARY INFORMATION: This is a States Court of Appeals for the February 7, 2007. summary of the Commission’s appropriate circuit by September 8, Telecommunications Relay Services and 2008. Filing a petition for § 62.3651 Identification of sources. Speech-to-Speech Services for reconsideration by the Administrator of The plan applies to all existing Individuals with Hearing and Speech this final rule does not affect the finality municipal waste combustors with the Disabilities, Declaratory Ruling of this rule for the purposes of judicial capacity to combust greater than 250 (Consumer Contacts Declaratory review nor does it extend the time tons per day of municipal solid waste, Ruling), FCC 08–138, adopted and within which a petition for judicial and for which construction, released May 28, 2008, in CG Docket review may be filed, and shall not reconstruction, or modification was No. 03–123. FCC 08–138 addresses postpone the effectiveness of such rule commenced on or before September 20, issues arising from the Commission’s or action. This action may not be 1994, as consistent with 40 CFR part 60, Telecommunications Relay Services and challenged later in proceedings to subpart Cb. Subject facilities include the Speech-to-Speech Services for enforce its requirements. (See section Indianapolis Resource Recovery Facility Individuals with Hearing and Speech 307(b)(2).) in Indianapolis, Indiana. Disabilities, Report and Order and

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Declaratory Ruling (2007 TRS Cost paragraphs 92 to 94. In addition, the Judicial Review, CG Docket No. 03–123, Recovery Declaratory Ruling), CG 2007 TRS Cost Recovery Declaratory Order, DA 08–1079 (CGB May 6, 2008). Docket No. 03–123, FCC 07–186, Ruling addressed in greater detail Discussion published at 73 FR 3197, January 17, providers’ use of consumer or call 2008. The full text of FCC 08–138 will databases to contact consumers for 4. In FCC 08–138, the Commission be available for public inspection and lobbying or to attempt to influence their states that reasonable restrictions on the copying during regular business hours use of relay. 2007 TRS Cost Recovery use of consumer information are at the FCC Reference Information Declaratory Ruling at paragraphs 95 and necessary to prevent improper Center, Portals II, 445 12th Street, SW., 96. In particular, it prohibited providers marketing practices and to ensure that Room CY–A257, Washington, DC 20554. from using a consumer or call database interstate TRS funds are used for their FCC 08–138 also may be purchased to contact TRS users ‘‘for lobbying or intended purpose. However, to address from the Commission’s duplicating any other purpose,’’ and prohibited concerns that the restrictions set forth in contractor at Portals II, 445 12th Street providers from using a consumer or call paragraphs 95 and 96 of the 2007 TRS SW., Room CY–B402, Washington, DC database to ‘‘contact TRS users or to in Cost Recovery Declaratory Ruling may 20554. Customers may contact the any way attempt to affect or influence, be overly broad and may have the Commission’s duplicating contractor at directly or indirectly, their use of relay unintended effect of preventing TRS its Web site http://www.bcpiweb.com or service.’’ 2007 TRS Cost Recovery providers from communicating by calling 1–800–378–3160. To request Declaratory Ruling at paragraphs 95 and important information, including a copy of FCC 08–138 in an accessible 96. critical public safety information, to format for people with disabilities 2. Following release of the 2007 TRS TRS users relating to the handling of (Braille, large print, electronic files, Cost Recovery Declaratory Ruling, relay calls, the Commission clarifies the audio format), send an e-mail to several TRS providers, in filings with restrictions in those paragraphs. The [email protected] or call the Consumer the Commission, asserted that the Commission also provides examples of and Governmental Affairs Bureau at restrictions contained in paragraphs 95 the circumstances in which providers (202) 418–0530 (voice), (202) 418–0432 and 96 of that ruling violate the First may use consumer or call databases to (TTY). FCC 08–138 can also be Amendment rights of TRS providers. In contact relay users. 5. First, the Commission clarifies that downloaded in Word or Portable January 2008, Sorenson the language in paragraphs 95 and 96 Document Format (PDF) at: http:// Communications, Inc. (Sorenson), filed restricting the use of consumer www.fcc.gov/cgb/dro/trs.html. a Petition for Review with the United States Court of Appeals for the Tenth information ‘‘for any * * * purpose,’’ Paperwork Reduction Act of 1995 Circuit seeking judicial review of this does not prohibit contacts by TRS Analysis language, and sought a stay from the providers with TRS users that are FCC 08–138 does not contain new or Commission pending resolution of its directly related to the handling of TRS modified information collection Petition for Review. Sorenson calls. Consistent with the Commission’s requirements subject to the Paperwork Communications v. FCC, Petition for TRS rules and orders, providers may use Reduction Act of 1995 (PRA), Public Review, Nos. 08–9503 and 08–9507 information derived from a consumer or call database established in conjunction Law 104–13. In addition, it does not (10th Circuit January 16, 2008 (08–9503) with Section 225 of the contain any new or modified and January 23, 2008 (08–9507)); Communications Act of 1934, as ‘‘information collection burden for Sorenson Communications, Inc., amended, 47 U.S.C. 225, to contact small business concerns with fewer than Request for Stay Pending Judicial users as long as it is for purposes related 25 employees,’’ pursuant to the Small Review, CG Docket No. 03–123 (January to the handling of relay calls. Therefore, Business Paperwork Relief Act of 2002, 28, 2008) (Stay Request). Among other for example, a provider reasonably Public Law 106–198, see 44 U.S.C. things, Sorenson contended that the could directly contact relay users (using 3506(c)(4). restrictions contained in paragraphs 95 and 96 are unconstitutionally vague, such customer information) in order to Synopsis violate the First Amendment rights of inform users of a service outage, respond to a consumer’s call for Background TRS providers, and are procedurally deficient under the Administrative emergency services, assist in the 1. In the 2007 TRS Cost Recovery Procedure Act. delivery of emergency services, and Declaratory Ruling, the Commission 3. In order to give the Commission provide technical support for TRS reiterated that providers seeking sufficient time to consider the products or services used by the compensation from the Interstate TRS arguments presented by Sorenson and consumer. Providers also may use Fund ‘‘may not offer consumers others, the Commission’s Consumer and customer data, for example, to comply financial or other tangible incentives, Governmental Affairs Bureau (CGB) with a federal statute, a Commission either directly or indirectly, to make issued an order on February 7, 2008, rule or order, a court order, or other relay calls.’’ 2007 TRS Cost Recovery granting a 90-day stay of paragraphs 95 lawful authority. The Commission Declaratory Ruling at paragraph 92. The and 96. Telecommunications Relay emphasizes that any such direct Commission also specified in greater Services and Speech-to-Speech Services contacts with relay users must be detail the nature and types of incentive for Individuals with Hearing and Speech informational in nature and must relate programs that are impermissible, Disabilities, Request for Stay Pending to the provision of, or the consumer’s clarified that ‘‘a financial incentive Judicial Review, CG Docket No. 03–123, use of, TRS. program is not permissible even in Order, 23 FCC Rcd 1705 (CGB Feb. 7, 6. On the other hand, providers may circumstances where the benefit goes to 2008), published at 73 FR 21843, April not contact consumers and offer a third party,’’ and stated that providers 23, 2008. The stay granted by that order financial or other incentives to generate cannot condition the ongoing use or was subsequently extended until May additional or longer calls that can be possession of TRS equipment (or the 28, 2008. Telecommunications Relay billed to the Fund because such contacts receipt of upgraded equipment) on a Services and Speech-to-Speech Services are not directly related to the purpose of consumer’s call volume. 2007 TRS Cost for Individuals with Hearing and Speech handling relay calls. The Commission Recovery Declaratory Ruling at Disabilities, Request for Stay Pending may revisit these determinations if

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specific facts are brought to its attention Feb. 4, 2008) (complaining that deaf requirement that recipients of funds suggesting an abuse of this proviso. persons are being subjected to a ‘‘virtual from AIDS/HIV education program 7. The Commission declines to bombardment of lobbying material’’). adopt policy of opposition to address the request that it explicitly The Commission finds that using prostitution and sexual trafficking, and allow the disclosure of user-specific revenue from the Interstate TRS Fund, noting that recipients could remain information to third parties designated or information obtained from end users neutral by setting up a subsidiary that by the user and information to protect in the provision of services supported would receive the funds and adopt the TRS users from fraudulent, abusive or by the Interstate TRS Fund, to engage in policy). TRS providers are free to use unlawful use of TRS. The Commission that kind of advocacy is inconsistent those resources outside the scope of the believes this issue would be better with the purpose of the fund. TRS program to support their positions addressed in the context of its 9. The Commission finds that these before the Commission. consideration of whether, and if so, how restrictions do not run afoul of the First 11. Finally, the Commission reiterates to extend customer proprietary network Amendment. In the context of a that a relay provider may not use TRS information (CPNI) requirements to TRS federally subsidized program, like the consumer or call data, or similar, providers. See Telecommunications Interstate TRS Fund, the government privately obtained information, to Relay Services And Speech-To-Speech ‘‘may certainly insist that these ‘public contact a relay user in an attempt to Services For Individuals With Hearing funds be spent for the purposes for increase, directly or indirectly, the And Speech Disabilities, E911 which they were authorized.’’’ United number or length of relay calls the user Requirements For IP-Enabled Service States v. American Library Ass’n, 539 otherwise may choose to make via that Providers, CG 03–123, WC 05–196, U.S. 194, 212 (2003) (quoting Rust v. provider. In this instance, because the Report and Order, 23 FCC Rcd 5255 Sullivan, 500 U.S. 173, 196 (1991)). The practice itself (i.e., offering users (Mar. 19, 2008) (Interim Emergency Call Interstate TRS Fund is designed to financial or similar incentives to Handling Order), published at 73 FR ensure that persons with hearing and generate additional or longer calls that 21252, April 21, 2008; Consumer and speech disabilities have access to the can be billed to the Fund) is prohibited Governmental Affairs Bureau Seeks to telephone system. It was not intended to by the Commission, communications Refresh Record on Assigning Internet finance lobbying by TRS providers with relay users in furtherance of this Protocol (IP)-Based directed at end users. The Commission practice are likewise prohibited, no Telecommunications Relay Service is under no obligation ‘‘to fund such matter the source of the consumer or (TRS) Users Ten-Digit Telephone activities out of the public fisc.’’ Rust, call data. Because the obligation placed Numbers Linked to North American 500 U.S. at 198. For the same reasons, on relay providers is to be available to Numbering Plan (NANP) and Related it is reasonable to restrict the use of handle calls consumers choose to make, Issues, CG Docket No. 03–123, Public customer information acquired in the when they choose to make them, i.e., to Notice, 23 FCC Rcd 4727 (Mar. 19, 2008) provision of federally subsidized TRS be the ‘‘dial tone’’ for a consumer that (IP-Based Relay Numbering PN), services. A consumer or call database uses relay to call a voice telephone user, published at 73 FR 16304, March 27, that a service provider develops and and because consumers do not pay for 2008, (seeking to refresh the record on maintains through participation in the this service but rather providers are the proposed establishment of a global TRS program is inextricably tied to that compensated pursuant to Title IV of the database of proxy telephone numbers federally funded program. Americans with Disabilities Act, the for Internet-based TRS users and on Consequently, it is permissible to consumer protection issues related to prohibit the use of that database for Commission finds that these restrictions numbering, including the application of purposes unrelated to the handling of are necessary to prevent providers from CPNI requirements). Although relay calls, such as lobbying end users improperly urging consumers to make consumer advocates have asked the to support a service provider’s position unnecessary relay calls, and therefore to Commission to ensure that consumers before the Commission. ensuring that interstate TRS funds are be asked by providers to opt-in to 10. Nothing the Commission does in used for their intended purpose. By receiving marketing and promotional this document would prevent a provider highlighting examples of both materials before receiving such from using information and funds from permissible and prohibited uses of information directly from providers, the other sources to engage in lawful consumer or call database information Commission defers this issue for lobbying or advocacy activities. Thus, above, the Commission seeks to ensure consideration in the context of whether, this is not an ‘‘unconstitutional that Interstate TRS funds are not used and if so, how to extend CPNI conditions’’ case in which the for activities that are outside the scope requirements to TRS providers. See government ‘‘effectively prohibit[ed] the of, or incompatible with the purposes Interim Emergency Call Handling Order; recipient from engaging in the protected of, the Interstate TRS Fund, as defined IP-Based Relay Numbering PN. conduct outside the scope of the by Congress. 8. Second, the Commission clarifies federally funded program.’’ Rust, 500 12. The restrictions on provider- that providers may not use customer U.S. at 197; see also Regan v. Taxation consumer contacts, as clarified in this information obtained through the With Representation of Washington, 461 document, apply to relay providers in provision of federally-funded relay U.S. 540, 544–46 (1983) (holding that connection with their offering of services, or use funds obtained from the tax exemption for non-profit groups that interstate relay services, including all Interstate TRS Fund, to engage in do not engage in lobbying did not Internet-based relay calls and any other lobbying or advocacy activities directed violate First Amendment; and noting relay calls that are compensated by the at relay users. Evidence in the record that a group could qualify for the tax Interstate TRS Fund. As noted above, shows that at least one service provider exemption by adopting a ‘‘dual however, if, in the future, evidence has bombarded deaf persons with structure,’’ with one arm for non- comes to the Commission’s attention of material seeking to persuade them to lobbying activities and another for the misuse of consumer or call database support the provider’s position on lobbying); DKT Int’l, Inc. v. United information by traditional TRS matters pending before the FCC. See, States Agency for Int’l Development, providers, in connection with their e.g., Ex parte letter from Jon Ziev, 477 F.3d 758 (D.C. Cir. 2007) (rejecting offering of intrastate relay services, the consumer, to Kevin Martin, FCC (dated First Amendment challenge to Commission may revisit this issue and

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consider the adoption of additional Alaska (FMP) prepared by the North recent, relevant data only became restrictions at that time. Pacific Fishery Management Council available as of July 1, 2008. under authority of the Magnuson- The AA also finds good cause to Congressional Review Act Stevens Fishery Conservation and waive the 30-day delay in the effective The Commission will not send a copy Management Act. Regulations governing date of this action under 5 U.S.C. of FCC 08–138 pursuant to the fishing by U.S. vessels in accordance 553(d)(3). This finding is based upon Congressional Review Act, see 5 U.S.C. with the FMP appear at subpart H of 50 the reasons provided above for waiver of 801(a)(1)(A) because the adopted rules CFR part 600 and 50 CFR part 679. prior notice and opportunity for public are rules of particular applicability. The 2008 TAC of Pacific ocean perch comment. Ordering Clauses allocated to catcher processors This action is required by § 679.20 participating in the rockfish limited and is exempt from review under Pursuant to sections 1, 2, and 225 of access fishery in the Central GOA is Executive Order 12866. the Communications Act of 1934, as 1,386 metric tons (mt) as established by Authority: 16 U.S.C. 1801 et seq. amended, 47 U.S.C. 151, 152, and 225, the 2008 and 2009 harvest specifications Dated: July 2, 2008. FCC 08–138 is adopted and became for groundfish of the GOA (73 FR 10562, effective on May 28, 2008. February 27, 2008), and as posted as the Emily H. Menashes, Federal Communications Commission. 2008 Rockfish Program Allocations at Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. William F. Caton, http://www.fakr.noaa.gov/ [FR Doc. 08–1418 Filed 7–2–08; 2:41 pm] Deputy Secretary. sustainablefisheries/goarat/default.htm. BILLING CODE 3510–22–S [FR Doc. E8–15446 Filed 7–7–08; 8:45 am] In accordance with § 679.20(d)(1)(i), BILLING CODE 6712–01–P the Administrator, Alaska Region, NMFS (Regional Administrator), has DEPARTMENT OF COMMERCE determined that the 2008 TAC of Pacific DEPARTMENT OF COMMERCE ocean perch allocated to catcher National Oceanic and Atmospheric processors participating in the rockfish Administration National Oceanic and Atmospheric limited access fishery in the Central Administration GOA will soon be reached. Therefore, 50 CFR Part 679 the Regional Administrator is 50 CFR Part 679 establishing a directed fishing [Docket No. 071106671–8010–02] allowance of 1,386 mt, and is setting RIN 0648–XI90 [Docket No. 071106671–8010–02] aside the remaining 0 mt as bycatch to RIN 0648–XI92 support other anticipated groundfish Fisheries of the Exclusive Economic fisheries. In accordance with Zone Off Alaska; Pacific Ocean Perch Fisheries of the Exclusive Economic § 679.20(d)(1)(iii), the Regional in the Western Regulatory Area of the Zone Off Alaska; Pacific Ocean Perch Administrator finds that this directed Gulf of Alaska for Catcher Processors Participating in fishing allowance has been reached. AGENCY: the Rockfish Limited Access Fishery in Consequently, NMFS is prohibiting National Marine Fisheries the Central Regulatory Area of the Gulf directed fishing for Pacific ocean perch Service (NMFS), National Oceanic and of Alaska by catcher processors participating in Atmospheric Administration (NOAA), the rockfish limited access fishery in the Commerce. AGENCY: National Marine Fisheries Central GOA. ACTION: Temporary rule; closure. Service (NMFS), National Oceanic and After the effective date of this closure Atmospheric Administration (NOAA), SUMMARY: NMFS is prohibiting directed Commerce. the maximum retainable amounts at fishing for Pacific ocean perch in the § 679.20(e) and (f) apply at any time ACTION: Temporary rule; closure. Western Regulatory Area of the Gulf of during a trip. Alaska (GOA). This action is necessary SUMMARY: NMFS is prohibiting directed Classification to prevent exceeding the 2008 total fishing for Pacific ocean perch by allowable catch (TAC) of Pacific ocean catcher processors participating in the This action responds to the best perch in the Western Regulatory Area of rockfish limited access fishery in the available information recently obtained the GOA. from the fishery. The Assistant Central Regulatory Area of the Gulf of DATES: Effective 1200 hrs, Alaska local Alaska (GOA). This action is necessary Administrator for Fisheries, NOAA (AA), finds good cause to waive the time (A.l.t.), July 4, 2008, through 2400 to prevent exceeding the 2008 total hrs, A.l.t., December 31, 2008. allowable catch (TAC) of Pacific ocean requirement to provide prior notice and opportunity for public comment FOR FURTHER INFORMATION CONTACT: perch allocated to catcher processors Jennifer Hogan, 907–586–7228. participating in the rockfish limited pursuant to the authority set forth at 5 access fishery in the Central Regulatory U.S.C. 553(b)(B) as such requirement is SUPPLEMENTARY INFORMATION: NMFS Area of the GOA. impracticable and contrary to the public manages the groundfish fishery in the interest. This requirement is GOA exclusive economic zone DATES: Effective 1200 hrs, Alaska local impracticable and contrary to the public according to the Fishery Management time (A.l.t.), July 5, 2008, through 2400 interest as it would prevent NMFS from Plan for Groundfish of the Gulf of hrs, A.l.t., December 31, 2008. responding to the most recent fisheries Alaska (FMP) prepared by the North FOR FURTHER INFORMATION CONTACT: data in a timely fashion and would Pacific Fishery Management Council Jennifer Hogan, 907–586–7228. delay the closure of Pacific ocean perch under authority of the Magnuson- SUPPLEMENTARY INFORMATION: NMFS by catcher processors participating in Stevens Fishery Conservation and manages the groundfish fishery in the the rockfish limited access fishery in the Management Act. Regulations governing GOA exclusive economic zone Central GOA. NMFS was unable to fishing by U.S. vessels in accordance according to the Fishery Management publish a notice providing time for with the FMP appear at subpart H of 50 Plan for Groundfish of the Gulf of public comment because the most CFR part 600 and 50 CFR part 679.

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The 2008 TAC of Pacific ocean perch in the Western Regulatory Area of the in the Western Regulatory Area of the in the Western Regulatory Area of the GOA. GOA. NMFS was unable to publish a GOA is 3,686 metric tons (mt) as After the effective date of this closure notice providing time for public established by the 2008 and 2009 the maximum retainable amounts at comment because the most recent, harvest specifications for groundfish of § 679.20(e) and (f) apply at any time relevant data only became available as the GOA (73 FR 10562, February 27, during a trip. of July 1, 2008. 2008). The AA also finds good cause to Classification In accordance with § 679.20(d)(1)(i), waive the 30-day delay in the effective the Administrator, Alaska Region, This action responds to the best date of this action under 5 U.S.C. NMFS (Regional Administrator), has available information recently obtained 553(d)(3). This finding is based upon determined that the 2008 TAC of Pacific from the fishery. The Assistant the reasons provided above for waiver of ocean perch in the Western Regulatory Administrator for Fisheries, NOAA prior notice and opportunity for public Area of the GOA will soon be reached. (AA), finds good cause to waive the comment. Therefore, the Regional Administrator is requirement to provide prior notice and This action is required by § 679.20 establishing a directed fishing opportunity for public comment and is exempt from review under allowance of 3,561 mt, and is setting pursuant to the authority set forth at 5 Executive Order 12866. aside the remaining 125 mt as bycatch U.S.C. 553(b)(B) as such requirement is Authority: 16 U.S.C. 1801 et seq. to support other anticipated groundfish impracticable and contrary to the public fisheries. In accordance with interest. This requirement is Dated: July 1, 2008. § 679.20(d)(1)(iii), the Regional impracticable and contrary to the public Emily H. Menashes, Administrator finds that this directed interest as it would prevent NMFS from Acting Director, Office of Sustainable fishing allowance has been reached. responding to the most recent fisheries Fisheries, National Marine Fisheries Service. Consequently, NMFS is prohibiting data in a timely fashion and would [FR Doc. 08–1419 Filed 7–2–08; 2:41 pm] directed fishing for Pacific ocean perch delay the closure of Pacific ocean perch BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 131

Tuesday, July 8, 2008

This section of the FEDERAL REGISTER ADDRESSES: Use one of the following AT–502B, AT–602, and AT–802/802A contains notices to the public of the proposed addresses to comment on this proposed airplanes with loose hinges, skin cracks, issuance of rules and regulations. The AD: or signs of repairs to the affected area. purpose of these notices is to give interested • Federal eRulemaking Portal: Go to Hinge failure adversely affects ability persons an opportunity to participate in the http://www.regulations.gov. Follow the to control yaw and has led to the rudder rule making prior to the adoption of the final folding over in flight. This condition rules. instructions for submitting comments. • Fax: (202) 493–2251. could allow the rudder to contact the • Mail: U.S. Department of elevator and affect ability to control DEPARTMENT OF TRANSPORTATION Transportation, Docket Operations, M– pitch with consequent loss of control. 30, West Building Ground Floor, Room Consequently, we issued AD 2006– Federal Aviation Administration W12–140, 1200 New Jersey Avenue, SE., 23–14 (71 FR 66661, November 16, Washington, DC 20590. 2006). AD 2006–23–14 requires you to 14 CFR Part 39 • Hand Delivery: U.S. Department of repetitively visually inspect the rudder Transportation, Docket Operations, M– and vertical fin hinge attaching [Docket No. FAA–2008–0749; Directorate structure (vertical fin skins, spars, Identifier 2008–CE–044–AD] 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., hinges, and brackets) for loose fasteners, RIN 2120–AA64 Washington, DC 20590, between 9 a.m. cracks, and/or corrosion. This AD also and 5 p.m., Monday through Friday, requires you to replace any damaged Airworthiness Directives; Air Tractor, except Federal holidays. parts found as a result of the inspection Inc., Models AT–402, AT–402A, and For service information identified in and install an external doubler at the AT–402B Airplanes this proposed AD, contact Air Tractor, upper rudder hinge. AGENCY: Federal Aviation Inc., P.O. Box 485, Olney, Texas 76374; Since issuing AD 2006–23–14, we Administration (FAA), Department of telephone: (940) 564–5616; facsimile: have received a report of a Model AT– Transportation (DOT). (940) 564–5612. 402 airplane with a loose upper rudder ACTION: Notice of proposed rulemaking FOR FURTHER INFORMATION CONTACT: hinge caused by fatigue. Therefore, we (NPRM). Andrew McAnaul, Aerospace Engineer, are proposing this AD to address the ASW–150 (c/o MIDO–43), 10100 unsafe condition on the Model AT–402 SUMMARY: We propose to adopt a new Reunion Place, Suite 650, San Antonio, airplanes. airworthiness directive (AD) for certain Texas 78216; telephone: (210) 308– Relevant Service Information Air Tractor, Inc., (Air Tractor) Models 3365; facsimile: (210) 308–3370. AT–402, AT–402A, and AT–402B We have reviewed Snow Engineering SUPPLEMENTARY INFORMATION: airplanes. This proposed AD would Co. Service Letter #247, revised June 2, require you to repetitively visually Comments Invited 2008; and Snow Engineering Co. Process inspect the rudder and vertical fin hinge Specification Number 145, dated We invite you to send any written attaching structure for loose fasteners December 6, 1991. The service relevant data, views, or arguments and inspect the rudder or vertical fin information describes procedures for: regarding this proposed AD. Send your • skins, spars, hinges or brackets for Inspecting (visually) the rudder and comments to an address listed under the cracks and/or corrosion. The AD would fin hinge attaching structure for loose ADDRESSES section. Include the docket also require you to replace any damaged fasteners, any cracks in the rudder or number, ‘‘FAA–2008–0749; Directorate parts found as a result of the inspections vertical fin skins, spars, hinges or Identifier 2008–CE–044–AD’’ at the and install an external doubler at the brackets, or corrosion; beginning of your comments. We • upper rudder hinge. Installation of the Replacing any damaged parts found specifically invite comments on the external doubler at the upper rudder as a result of the inspection; overall regulatory, economic, • hinge is terminating action for the Installing an external doubler at the environmental, and energy aspects of repetitive inspection requirements. This upper rudder hinge; and the proposed AD. We will consider all • Balancing of the rudder. proposed AD results from a report of a comments received by the closing date Model AT–402 airplane with a loose FAA’s Determination and Requirements and may amend the proposed AD in upper rudder hinge caused by fatigue. of the Proposed AD light of those comments. We are proposing this AD to detect and We will post all comments we We are proposing this AD because we correct loose fasteners; any cracks in the receive, without change, to http:// evaluated all information and rudder or vertical fin skins, spars, www.regulations.gov, including any determined the unsafe condition hinges or brackets; or corrosion of the personal information you provide. We described previously is likely to exist or rudder and vertical fin hinge attaching will also post a report summarizing each develop on other products of the same structure. Hinge failure adversely affects substantive verbal contact we receive type design. This proposed AD would ability to control yaw and has led to the concerning this proposed AD. require you to repetitively visually rudder folding over in flight. This inspect the rudder and vertical fin hinge condition could allow the rudder to Discussion attaching structure for loose fasteners, contact the elevator and affect ability to We received two reports (one Air any cracks in the rudder or vertical fin control pitch with consequent loss of Tractor Model AT–602 airplane and one skins, spars, hinges or brackets, or control. Model AT–802A airplane) of in-flight corrosion. This proposed AD would also DATES: We must receive comments on rudder separation at the upper attach require you to replace any damaged this proposed AD by September 8, 2008. hinge area and other reports of Models parts found as a result of the inspection

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and install an external doubler at the Costs of Compliance We estimate the following costs to do upper rudder hinge. Installation of the the proposed inspection: external doubler at the upper rudder We estimate that this proposed AD hinge is terminating action for the would affect 220 airplanes in the U.S. repetitive inspection requirements. registry.

Total cost per Total cost on Labor cost Parts cost airplane U.S. operators

1 work-hour × $80 per hour = $80 ...... Not applicable ...... $80 $17,600

Any required repairs will vary determining the potential repair and/or We estimate the following costs to do depending upon the damage found, and replacement costs for each airplane or the proposed installation of the external any replacements required will vary the number of airplanes that will need doubler at the upper rudder hinge: based on the results of the inspection. the repairs and/or replacements based Based on this, we have no way of on the result of the inspections.

Total cost per Labor cost Parts cost airplane

5 work-hours × $80 per hour = $400 ...... $217 $617

Authority for this Rulemaking 2. Is not a ‘‘significant rule’’ under the Authority: 49 U.S.C. 106(g), 40113, 44701. DOT Regulatory Policies and Procedures Title 49 of the United States Code (44 FR 11034, February 26, 1979); and § 39.13 [Amended] specifies the FAA’s authority to issue 3. Will not have a significant 2. The FAA amends § 39.13 by adding rules on aviation safety. Subtitle I, economic impact, positive or negative, the following new AD: Section 106, describes the authority of on a substantial number of small entities the FAA Administrator. Subtitle VII, under the criteria of the Regulatory Air Tractor, Inc.: Docket No. FAA–2008– Aviation Programs, describes in more Flexibility Act. 0749; Directorate Identifier 2008–CE– detail the scope of the Agency’s We prepared a regulatory evaluation 044–AD. authority. of the estimated costs to comply with Comments Due Date this proposed AD and placed it in the We are issuing this rulemaking under (a) We must receive comments on this AD docket. the authority described in Subtitle VII, airworthiness directive (AD) action by Part A, Subpart III, Section 44701, Examining the AD Docket September 8, 2008. ‘‘General requirements.’’ Under that section, Congress charges the FAA with You may examine the AD docket that Affected ADs promoting safe flight of civil aircraft in contains the proposed AD, the (b) None. air commerce by prescribing regulations regulatory evaluation, any comments for practices, methods, and procedures received, and other information on the Applicability the Administrator finds necessary for Internet at http://www.regulations.gov; (c) This AD applies to Models AT–402, safety in air commerce. This regulation or in person at the Docket Management AT–402A, and AT–402B airplanes, serial is within the scope of that authority Facility between 9 a.m. and 5 p.m., numbers 0694 through 1176, that are because it addresses an unsafe condition Monday through Friday, except Federal certificated in any category. holidays. The Docket Office (telephone that is likely to exist or develop on Unsafe Condition products identified in this rulemaking (800) 647–5527) is located at the street action. address stated in the ADDRESSES section. (d) This AD results from a report of a Comments will be available in the AD Model AT–402 airplane with a loose upper Regulatory Findings docket shortly after receipt. rudder hinge caused by fatigue. We are issuing this AD to detect and correct loose We have determined that this List of Subjects in 14 CFR Part 39 fasteners; any cracks in the rudder or vertical proposed AD would not have federalism Air transportation, Aircraft, Aviation fin skins, spars, hinges or brackets; or implications under Executive Order safety, Safety. corrosion of the rudder and vertical fin hinge 13132. This proposed AD would not The Proposed Amendment attaching structure. Hinge failure adversely have a substantial direct effect on the affects ability to control yaw and has led to States, on the relationship between the Accordingly, under the authority the rudder folding over in flight. This national Government and the States, or delegated to me by the Administrator, condition could allow the rudder to contact on the distribution of power and the FAA proposes to amend 14 CFR part the elevator and affect ability to control pitch responsibilities among the various 39 as follows: with consequent loss of control. levels of government. Compliance For the reasons discussed above, I PART 39—AIRWORTHINESS certify that the proposed regulation: DIRECTIVES (e) To address this problem, you must do 1. Is not a ‘‘significant regulatory 1. The authority citation for part 39 the following, unless already done: action’’ under Executive Order 12866; continues to read as follows:

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Actions Compliance Procedures

(1) Inspect visually the rudder and vertical fin Initially inspect when the airplane reaches a Follow Snow Engineering Co. Service Letter hinge attachment for loose fasteners; and in- total of 3,500 hours time-in-service (TIS) or #247, revised June 2, 2008. spect the rudder or vertical fin skins, spars, within the next 100 hours TIS after the ef- hinges or brackets for cracks and/or corro- fective date of this AD, whichever occurs sion. later, unless already done. Thereafter, re- petitively inspect at intervals not to exceed every 100 hours TIS. Installation of the ex- ternal doubler at the upper rudder hinge re- quired by paragraph (e)(2)(ii) or (e)(3) of this AD is terminating action for the repet- itive inspections required by this AD. (2) If you find any damage as a result of any Before further flight after any inspection re- Follow Snow Engineering Co. Service Letter inspection required by paragraph (e)(1) of quired by paragraph (e)(1) of this AD where #247, revised June 2, 2008; and Snow En- this AD, you must: you find any damaged parts. The installa- gineering Co. Process Specification Number (i) Replace any damaged parts with new tion of the external doubler at the upper 145, dated December 6, 1991. parts and rudder hinge required by paragraph (e)(2)(ii) (ii) Do the installation of the external dou- or (e)(3) of this AD terminates the action for bler at the upper rudder hinge. the repetitive inspections required by this AD. (3) Do the installation of the external doubler at When the airplane reaches a total of 5,000 Follow Snow Engineering Co. Service Letter the upper rudder hinge. hours TIS after the effective date of this AD #247, revised June 2, 2008; and Snow En- or within the next 100 hours TIS after the gineering Co. Process Specification Number effective date of this AD, whichever occurs 145, dated December 6, 1991. later, unless already done. The installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD terminates the action for the repetitive inspections required by this AD. (4) Do not install any rudder without the exter- As of the effective date of this AD ...... Not Applicable. nal doubler at the upper rudder hinge re- quired by paragraph (e)(3) of this AD.

Alternative Methods of Compliance DEPARTMENT OF TRANSPORTATION This condition, if not corrected, causes (AMOCs) mechanical interference which could result (f) The Manager, Fort Worth Aircraft Federal Aviation Administration in a situation where, during emergency procedures, the landing gear cannot be Certification Office, FAA, has the authority to extended. approve AMOCs for this AD, if requested 14 CFR Part 39 using the procedures found in 14 CFR 39.19. The proposed AD would require actions [Docket No. FAA–2008–0748; Directorate that are intended to address the unsafe Send information to ATTN: Andrew Identifier 2008–CE–041–AD] McAnaul, Aerospace Engineer, ASW–150 condition described in the MCAI. (c/o MIDO–43), 10100 Reunion Place, Suite RIN 2120–AA64 DATES: We must receive comments on 650, San Antonio, Texas 78216; telephone: this proposed AD by August 7, 2008. Airworthiness Directives; EADS (210) 308–3365; facsimile: (210) 308–3370. ADDRESSES: You may send comments by Before using any approved AMOC on any SOCATA Model TBM 700 Airplanes any of the following methods: airplane to which the AMOC applies, notify • AGENCY: Federal Aviation Federal eRulemaking Portal: Go to your appropriate principal inspector (PI) in http://www.regulations.gov. Follow the the FAA Flight Standards District Office Administration (FAA), Department of Transportation (DOT). instructions for submitting comments. (FSDO), or lacking a PI, your local FSDO. • Fax: (202) 493–2251. ACTION: Notice of proposed rulemaking • Mail: U.S. Department of Related Information (NPRM). (g) To get copies of the service information Transportation, Docket Operations, M– referenced in this AD, contact Air Tractor, SUMMARY: We propose to adopt a new 30, West Building Ground Floor, Room Inc., P.O. Box 485, Olney, Texas 76374; airworthiness directive (AD) for the W12–140, 1200 New Jersey Avenue, SE., telephone: (940) 564–5616; facsimile: (940) products listed above. This proposed Washington, DC 20590. • 564–5612. To view the AD docket, go to U.S. AD results from mandatory continuing Hand Delivery: U.S. Department of Department of Transportation, Docket airworthiness information (MCAI) Transportation, Docket Operations, M– Operations, M–30, West Building Ground originated by an aviation authority of 30, West Building Ground Floor, Room Floor, Room W12–140, 1200 New Jersey another country to identify and correct W12–140, 1200 New Jersey Avenue, SE., Avenue, SE., Washington, DC 20590, or on an unsafe condition on an aviation Washington, DC 20590, between 9 a.m. the Internet at http://www.regulations.gov. product. The MCAI describes the unsafe and 5 p.m., Monday through Friday, Issued in Kansas City, Missouri, on July 1, condition as: except Federal holidays. 2008. It has been discovered that a risk of Examining the AD Docket John Colomy, mechanical interference exists in the movement of the emergency landing gear by- You may examine the AD docket on Acting Manager, Small Airplane Directorate, pass selector, due to an insufficient the Internet at http:// Aircraft Certification Service. functional gap between a floor panel www.regulations.gov; or in person at the [FR Doc. E8–15456 Filed 7–7–08; 8:45 am] attachment lug and the landing gear control Docket Management Facility between 9 BILLING CODE 4910–13–P button. a.m. and 5 p.m., Monday through

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Friday, except Federal holidays. The AD Relevant Service Information We are issuing this rulemaking under docket contains this proposed AD, the EADS SOCATA has issued Mandatory the authority described in ‘‘Subtitle VII, regulatory evaluation, any comments TBM Aircraft Service Bulletin SB 70– Part A, Subpart III, Section 44701: received, and other information. The 154, dated April 2008. The actions General requirements.’’ Under that street address for the Docket Office described in this service information are section, Congress charges the FAA with (telephone (800) 647–5527) is in the intended to correct the unsafe condition promoting safe flight of civil aircraft in ADDRESSES section. Comments will be identified in the MCAI. air commerce by prescribing regulations available in the AD docket shortly after for practices, methods, and procedures receipt. FAA’s Determination and Requirements the Administrator finds necessary for FOR FURTHER INFORMATION CONTACT: of the Proposed AD safety in air commerce. This regulation Albert Mercado, Aerospace Engineer, This product has been approved by is within the scope of that authority FAA, Small Airplane Directorate, 901 the aviation authority of another because it addresses an unsafe condition Locust, Room 301, Kansas City, country, and is approved for operation that is likely to exist or develop on Missouri 64106; telephone: (816) 329– in the United States. Pursuant to our products identified in this rulemaking 4119; fax: (816) 329–4090. bilateral agreement with this State of action. Design Authority, they have notified us SUPPLEMENTARY INFORMATION: Regulatory Findings of the unsafe condition described in the Comments Invited MCAI and service information We determined that this proposed AD We invite you to send any written referenced above. We are proposing this would not have federalism implications relevant data, views, or arguments about AD because we evaluated all under Executive Order 13132. This this proposed AD. Send your comments information and determined the unsafe proposed AD would not have a to an address listed under the condition exists and is likely to exist or substantial direct effect on the States, on ADDRESSES section. Include ‘‘Docket No. develop on other products of the same the relationship between the national FAA–2008–0748; Directorate Identifier type design. Government and the States, or on the 2008–CE–041–AD’’ at the beginning of Differences Between This Proposed AD distribution of power and your comments. We specifically invite and the MCAI or Service Information responsibilities among the various comments on the overall regulatory, levels of government. We have reviewed the MCAI and economic, environmental, and energy For the reasons discussed above, I related service information and, in aspects of this proposed AD. We will certify this proposed regulation: consider all comments received by the general, agree with their substance. But 1. Is not a ‘‘significant regulatory closing date and may amend this we might have found it necessary to use action’’ under Executive Order 12866; proposed AD because of those different words from those in the MCAI comments. to ensure the AD is clear for U.S. 2. Is not a ‘‘significant rule’’ under the We will post all comments we operators and is enforceable. In making DOT Regulatory Policies and Procedures receive, without change, to http:// these changes, we do not intend to differ (44 FR 11034, February 26, 1979); and www.regulations.gov, including any substantively from the information 3. Will not have a significant personal information you provide. We provided in the MCAI and related economic impact, positive or negative, will also post a report summarizing each service information. on a substantial number of small entities substantive verbal contact we receive We might also have proposed under the criteria of the Regulatory about this proposed AD. different actions in this AD from those Flexibility Act. in the MCAI in order to follow FAA Discussion We prepared a regulatory evaluation policies. Any such differences are of the estimated costs to comply with The European Aviation Safety Agency highlighted in a NOTE within the this proposed AD and placed it in the (EASA), which is the Technical Agent proposed AD. AD docket. for the Member States of the European Costs of Compliance Community, has issued Emergency AD List of Subjects in 14 CFR Part 39 No. 2008–0081–E, dated April 25, 2008, We estimate that this proposed AD Air transportation, Aircraft, Aviation (referred to after this as ‘‘the MCAI’’), to will affect 72 products of U.S. registry. safety, Safety. correct an unsafe condition for the We also estimate that it would take specified products. The MCAI states: about 1 work-hour per product to The Proposed Amendment comply with the basic requirements of It has been discovered that a risk of this proposed AD. The average labor Accordingly, under the authority mechanical interference exists in the delegated to me by the Administrator, movement of the emergency landing gear by- rate is $80 per work-hour (no labor cost; pass selector, due to an insufficient work-hour warranty given by the FAA proposes to amend 14 CFR part functional gap between a floor panel manufacturer until May 31, 2009). 39 as follows: attachment lug and the landing gear control Based on these figures, we estimate button. the cost of the proposed AD on U.S. PART 39—AIRWORTHINESS This condition, if not corrected, causes operators to be $5,760 or $80 per DIRECTIVES mechanical interference which could result product. in a situation where, during emergency 1. The authority citation for part 39 procedures, the landing gear cannot be Authority for This Rulemaking continues to read as follows: extended. For the reasons described above, this EASA Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. specifies the FAA’s authority to issue Emergency Airworthiness Directive (AD) § 39.13 [Amended] requires a check of the gap between the rules on aviation safety. Subtitle I, landing gear control button and the floor section 106, describes the authority of 2. The FAA amends § 39.13 by adding panel and, if the gap is found to be the FAA Administrator. ‘‘Subtitle VII: the following new AD: insufficient, modification of the floor panel. Aviation Programs,’’ describes in more EADS SOCATA: Docket No. FAA–2008– You may obtain further information by detail the scope of the Agency’s 0748; Directorate Identifier 2008–CE– examining the MCAI in the AD docket. authority. 041–AD.

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Comments Due Date Other FAA AD Provisions DEPARTMENT OF TRANSPORTATION (a) We must receive comments by August (h) The following provisions also apply to 7, 2008. this AD: Federal Aviation Administration Affected ADs (1) Alternative Methods of Compliance 14 CFR Part 39 (b) None. (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs [Docket No. FAA–2006–26598; Directorate Applicability for this AD, if requested using the procedures Identifier 2006–CE–087–AD] (c) This AD applies to TBM 700 airplanes, found in 14 CFR 39.19. Send information to serial numbers 364, 367, and 370 through ATTN: Albert Mercado, Aerospace Engineer, RIN 2120–AA64 439, certificated in any category. FAA, Small Airplane Directorate, 901 Locust, Airworthiness Directives; Empresa Subject Room 301, Kansas City, Missouri 64106; Brasileira de Aeronautica S. A. telephone: (816) 329–4119; fax: (816) 329– (d) Air Transport Association of America (EMBRAER) Models EMB–110P1 and 4090. Before using any approved AMOC on (ATA) Code 53: Fuselage. EMB–110P2 Airplanes any airplane to which the AMOC applies, Reason notify your appropriate principal inspector AGENCY: Federal Aviation (e) The mandatory continuing (PI) in the FAA Flight Standards District Administration (FAA), Department of airworthiness information (MCAI) states: Office (FSDO), or lacking a PI, your local Transportation (DOT). It has been discovered that a risk of FSDO. ACTION: Supplemental notice of mechanical interference exists in the (2) Airworthy Product: For any requirement movement of the emergency landing gear by- proposed rulemaking (NPRM); in this AD to obtain corrective actions from reopening of the comment period. pass selector, due to an insufficient a manufacturer or other source, use these functional gap between a floor panel actions if they are FAA-approved. Corrective attachment lug and the landing gear control SUMMARY: We are revising an earlier button. actions are considered FAA-approved if they supplemental NPRM for the products This condition, if not corrected, causes are approved by the State of Design Authority listed above. This proposed AD results mechanical interference which could result (or their delegated agent). You are required from mandatory continuing in a situation where, during emergency to assure the product is airworthy before it airworthiness information (MCAI) procedures, the landing gear cannot be is returned to service. originated by an aviation authority of extended. (3) Reporting Requirements: For any For the reasons described above, this EASA another country to identify and correct reporting requirement in this AD, under the an unsafe condition on an aviation Emergency Airworthiness Directive (AD) provisions of the Paperwork Reduction Act requires a check of the gap between the product. The MCAI describes the unsafe landing gear control button and the floor (44 U.S.C. 3501 et seq.), the Office of condition as: panel and, if the gap is found to be Management and Budget (OMB) has It has been found cases of corrosion at the insufficient, modification of the floor panel. approved the information collection requirements and has assigned OMB Control regions of Wings-to-Fuselage attachments, Vertical Stabilizer to Fuselage attachments, Actions and Compliance Number 2120–0056. (f) For airplanes that have had the floor Rib 1 Half-wing and Passenger Seat Tracks. panel removed for maintenance or if it Special Flight Permit Such corrosion may lead to subsequent cracking of the affected parts, compromising cannot be positively determined that the (i) A single ferry flight of the airplane with the aircraft structural integrity, which may in floor panel has not been removed at any time, landing gear extended is allowed in order to do the following actions, unless already turn lead to structural failure and/or loss of reach the nearest maintenance facility where done: some control surface. (1) Before further flight after the effective the inspection and modification is to be done. The proposed AD would require date of this AD, inspect the gap between the actions that are intended to address the landing gear control button and the floor Related Information panel. Do the inspection following paragraph unsafe condition described in the MCAI. A of the Accomplishment Instructions in (j) Refer to MCAI European Aviation Safety DATES: We must receive comments on EADS SOCATA Mandatory TBM Aircraft Agency (EASA) Emergency AD No. 2008– this proposed AD by September 8, 2008. Service Bulletin SB 70–154, dated April 0081–E, dated April 25, 2008; and EADS ADDRESSES: You may send comments by 2008. SOCATA Mandatory TBM Aircraft Service (2) If the gap is below the limits specified any of the following methods: Bulletin SB 70–154, dated April 2008 for • Federal eRulemaking Portal: Go to in paragraph A of EADS SOCATA Mandatory related information. TBM Aircraft Service Bulletin SB 70–154, http://www.regulations.gov. Follow the dated April 2008, before further flight after Issued in Kansas City, Missouri, on July 1, instructions for submitting comments. the inspection required in paragraph (f)(1) of 2008. • Fax: (202) 493–2251. this AD, modify the floor panel following John Colomy, • Mail: U.S. Department of paragraph C of the Accomplishment Acting Manager, Small Airplane Directorate, Transportation, Docket Operations, M– Instructions in EADS SOCATA Mandatory 30, West Building Ground Floor, Room TBM Aircraft Service Bulletin SB 70–154, Aircraft Certification Service. dated April 2008. [FR Doc. E8–15461 Filed 7–7–08; 8:45 am] W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. (g) For airplanes in which it can be BILLING CODE 4910–13–P positively determined that the floor panel has • Hand Delivery: U.S. Department of not been removed at any time, within the Transportation, Docket Operations, M– next 30 days after the effective date of this 30, West Building Ground Floor, Room AD, modify the floor panel following W12–140, 1200 New Jersey Avenue, SE., paragraph C of the Accomplishment Washington, DC 20590, between 9 a.m. Instructions in EADS SOCATA Mandatory and 5 p.m., Monday through Friday, TBM Aircraft Service Bulletin SB 70–154, dated April 2008. except Federal holidays. FAA AD Differences Examining the AD Docket Note: This AD differs from the MCAI and/ You may examine the AD docket on or service information as follows: No the Internet at http:// differences. www.regulations.gov; or in person at the

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Docket Management Facility between 9 It has been found cases of corrosion at the adhere to every maintenance schedule. a.m. and 5 p.m., Monday through regions of Wings-to-Fuselage attachments, We will consider changes in the Friday, except Federal holidays. The AD Vertical Stabilizer to Fuselage attachments, compliance time or alternative actions docket contains this proposed AD, the Rib 1 Half-wing and Passenger Seat Tracks. Such corrosion may lead to subsequent presented to the FAA using the regulatory evaluation, any comments cracking of the affected parts, compromising procedures in 14 CFR 39.19 and this received, and other information. The the aircraft structural integrity, which may in AD. street address for the Docket Office turn lead to structural failure and/or loss of We are not changing the proposed AD (telephone (800) 647–5527) is in the some control surface. as a result of this comment. ADDRESSES section. Comments will be Since this condition may occur in other available in the AD docket shortly after aircraft of the same type design and affects Comment Issue No. 2: The Manufacturer receipt. flight safety, a corrective action is required. Thus, sufficient reason exists to request Is Attempting To Ground the Aircraft FOR FURTHER INFORMATION CONTACT: Karl compliance with this AD in the indicated Schletzbaum, Aerospace Engineer, FAA, time limit. AirNow (also identified as Business Small Airplane Directorate, 901 Locust, Inspection for corrosion at regions of Air, Inc.) states the proposed AD is an Room 301, Kansas City, Missouri 64106; Wings-to Fuselage attachments, Vertical attempt by the manufacturer to ground telephone: (816) 329–4146; fax: (816) Stabilizer to Fuselage attachments, Rib 1 the aircraft and relieve itself of support 329–4090. Half-wing and Passenger Seat Tracks; and if responsibilities. They state that these applicable, removal of the detected corrosion. SUPPLEMENTARY INFORMATION: aircraft are operated in different climatic You may obtain further information by conditions and are subjected to widely Comments Invited examining the MCAI in the AD docket. varying degrees of corrosion conditions. We invite you to send any written Relevant Service Information In addition, the aircraft are operated relevant data, views, or arguments about with differing levels of oversight and this proposed AD. Send your comments EMBRAER has issued Service Bulletin surveillance by the FAA. AirNow to an address listed under the S.B. No.: 110–00–0007, REVISION No.: suggests the proposed AD does not take 01, dated January 12, 2007; and Service ADDRESSES section. Include ‘‘Docket No. into account these differences in Bulletin S.B. No.: 110–57–0026, FAA–2006–26598; Directorate Identifier operational environment. We infer that REVISION No.: 03, dated April 02, 2007. 2006–CE–087–AD’’ at the beginning of the commenter wants a differentiation your comments. We specifically invite The actions described in this service of compliance times based on comments on the overall regulatory, information are intended to correct the operational environment or wants the economic, environmental, and energy unsafe condition identified in the aspects of this proposed AD. We will MCAI. NPRM withdrawn. The FAA does not agree that the consider all comments received by the Comments closing date and may amend this NPRM should be withdrawn. We agree proposed AD because of those We have considered the following that airplanes are operated under varied comments. comments received on the earlier levels of oversight and climatic We will post all comments we NPRM. conditions internationally; however, the receive, without change, to http:// Comment Issue No. 1: Extend the instructions issued from the www.regulations.gov, including any Implementation Period airworthiness authority of the state of personal information you provide. We Business Air, Inc. and Royal Air design apply to all airplanes of this type will also post a report summarizing each design, regardless of use. substantive verbal contact we receive Freight comment that the proposed AD, about this proposed AD. as written, would unnecessarily Under the aviation relationship interrupt their service and bankrupt the between Brazil and the United States, Discussion companies due to their reliance on this Brazil monitors the continued We proposed to amend 14 CFR part airplane type. They request the airworthiness of aircraft it is the State of 39 with an earlier supplemental NPRM implementation period of the proposed Design for and issues mandatory for the specified products, which was AD be extended to prevent grounding of continuing airworthiness information published in the Federal Register on the aircraft. Business Air, Inc. requests (MCAI) when they determine it is March 7, 2007 (72 FR 10093). That the time extension to develop an necessary. FAA Order 8040.5, earlier supplemental NPRM proposed to alternative method of compliance Airworthiness Directive Process for require actions intended to address the (AMOC). Mandatory Continuing Airworthiness unsafe condition for the products listed The compliance times specified in the Information (MCAI), directs the FAA in above. proposed AD could be adjusted to responding to foreign issued MCAI. Since that supplemental NPRM was accommodate a reasonable time period Under this order, the FAA accepts and issued, Empresa Brasileira de for maintenance planning. According to analyzes the MCAI as developed by the Aeronautica S. A. (EMBRAER) issued 14 CFR 39.19, the FAA approves State of Design, in this case Brazil, AMOCs or changes in compliance times, Service Bulletin S.B. No.: 110–00–0007, which is responsible for the continued if we determine the proposal provides REVISION No.: 01, dated January 12, airworthiness of the EMB–110 design. an acceptable level of safety. In this 2007. This revision added a concurrent After reviewing the MCAI and FAA requirement to do EMBRAER Service case, the FAA understands that some of service difficulty reports that revealed Bulletin S.B. No.: 110–57–0026, the affected airplanes are being some corrosion related reports, we REVISION No.: 03, dated April 02, 2007. maintained under operators’ approved The Ageˆncia Nacional de Aviac¸a˜o aircraft inspection and maintenance determined that an unsafe condition Civil (ANAC), which is the aviation programs. It is possible that many of the exists and the condition is likely to exist authority for Brazil, has issued AD No.: proposed AD actions can be integrated or develop in other products of the same 2006–10–01R1, dated August 30, 2007 into these existing inspection and type design registered in the United (referred to after this as ‘‘the MCAI’’), to maintenance programs. Since the States. correct an unsafe condition for the programs vary from operator to operator, We are not changing the proposed AD specified products. The MCAI states: we cannot write a compliance time to as a result of this comment.

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Comment Issue No. 3: The Costs Are bilateral agreement with this State of Authority for This Rulemaking Underestimated Design Authority, they have notified us Title 49 of the United States Code Royal Air Freight and AirNow of the unsafe condition described in the specifies the FAA’s authority to issue comment that the proposed AD MCAI and service information rules on aviation safety. Subtitle I, underestimates the actual cost and does referenced above. We are proposing this section 106, describes the authority of not recognize the damage that will be AD because we evaluated all the FAA Administrator. ‘‘Subtitle VII: done to surrounding structure or information and determined the unsafe Aviation Programs,’’ describes in more components when the proposed condition exists and is likely to exist or detail the scope of the Agency’s maintenance is done. develop on other products of the same authority. We accept the MCAI as developed by type design. We are issuing this rulemaking under We also determined from our review the State of Design, in this case Brazil, the authority described in ‘‘Subtitle VII, that some of the actions required in the which is responsible for the continued Part A, Subpart III, Section 44701: service information may go beyond airworthiness of the EMB–110 design. General requirements.’’ Under that addressing the unsafe condition listed Therefore, we rely on ANAC to advise section, Congress charges the FAA with in the MCAI. We are changing this us on the time and materials necessary promoting safe flight of civil aircraft in proposed AD to require, at this time, to accomplish the actions in the service air commerce by prescribing regulations only the actions we determined information. The FAA cannot determine for practices, methods, and procedures necessary to address the unsafe the impact of the proposed AD actions the Administrator finds necessary for condition. We will continue to evaluate to surrounding structure beyond what safety in air commerce. This regulation the other MCAI actions and monitor the was provided to us by ANAC. We based is within the scope of that authority corrosion issue. We may take future AD the cost estimates on the information because it addresses an unsafe condition action if we determine an additional supplied by ANAC, and we realize some that is likely to exist or develop on unsafe condition exists or is likely to operators may incur higher or lower products identified in this rulemaking develop. action. costs. Certain changes described above On January 12, 2007, Embraer revised change the scope of the earlier NPRM. Regulatory Findings the service information. The revision is As a result, we have determined that it We determined that this proposed AD discussed below in Comment Issue No. is necessary to reopen the comment 4. We have reviewed the revised would not have federalism implications period to provide additional under Executive Order 13132. This information and have revised the costs opportunity for the public to comment accordingly. proposed AD would not have a on the proposed AD. substantial direct effect on the States, on Comment Issue No. 4: Revised Service Differences Between This Proposed AD the relationship between the national Information and the MCAI or Service Information Government and the States, or on the distribution of power and Embraer notes the service bulletin We have reviewed the MCAI and responsibilities among the various identified in the proposed AD has been related service information and, in revised. The revised service information levels of government. general, agree with their substance. But For the reasons discussed above, I is Service Bulletin S.B. No.: 110–00– we might have found it necessary to use 0007, REVISION No.: 01, dated January certify this proposed regulation: different words from those in the MCAI 1. Is not a ‘‘significant regulatory 12, 2007. This service bulletin adds to ensure the AD is clear for U.S. more requirements to address the unsafe action’’ under Executive Order 12866; operators and is enforceable. In making 2. Is not a ‘‘significant rule’’ under the condition, including compliance with these changes, we do not intend to differ Service Bulletin, S.B. No.: 110–57–0026, DOT Regulatory Policies and Procedures substantively from the information (44 FR 11034, February 26, 1979); and REVISION No.: 03, dated April 02, 2007. provided in the MCAI and related Embraer also comments that the revised 3. Will not have a significant service information. economic impact, positive or negative, service information incorporates an We might also have proposed AMOC that ANAC issued to allow the on a substantial number of small entities different actions in this AD from those under the criteria of the Regulatory use of repetitive inspections from Part in the MCAI in order to follow FAA III of the revised service bulletin in lieu Flexibility Act. policies. Any such differences are We prepared a regulatory evaluation of Part IV compliance. The commenter highlighted in a NOTE within the of the estimated costs to comply with proposes new language for the NPRM proposed AD. this proposed AD and placed it in the that includes the new information AD docket. mentioned in their comment. Costs of Compliance We have reviewed the revised service Based on the service information, we List of Subjects in 14 CFR Part 39 information and agree that we should estimate that this proposed AD will Air transportation, Aircraft, Aviation include it in the proposed AD. We have affect 38 products of U.S. registry. We safety, Safety. revised the proposed AD to include also estimate that it would take about 95 EMBRAER Service Bulletin S.B. No.: work-hours per product to comply with The Proposed Amendment 110–00–0007, REVISION No.: 01, dated the basic requirements of this proposed Accordingly, under the authority January 12, 2007; and EMBRAER AD. The average labor rate is $80 per delegated to me by the Administrator, Service Bulletin S.B. No.: 110–57–0026, work-hour. the FAA proposes to amend 14 CFR part REVISION No.: 03, dated April 2, 2007. Based on these figures, we estimate 39 as follows: the cost of the proposed AD on U.S. FAA’s Determination and Requirements operators to be $288,800, or $7,600 per PART 39—AIRWORTHINESS of the Proposed AD product. DIRECTIVES This product has been approved by We have no way of determining the the aviation authority of another number of products that may need any 1. The authority citation for part 39 country, and is approved for operation necessary follow-on actions or the cost continues to read as follows: in the United States. Pursuant to our associated with those actions. Authority: 49 U.S.C. 106(g), 40113, 44701.

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§ 39.13 [Amended] Guides TP 110P2/145, PM 110/652, or PM provisions of the Paperwork Reduction Act 2. The FAA amends § 39.13 by adding 110/165, released by EMBRAER, are (44 U.S.C. 3501 et seq.), the Office of the following new AD: considered acceptable methods of Management and Budget (OMB) has compliance with the requirements of (f)(1) approved the information collection Empresa Brasileira de Aeronautica S. A. and (f)(1)(i) of this AD. requirements and has assigned OMB Control (EMBRAER): Docket No. FAA–2006– (2) Within the next 36 months after the Number 2120–0056. 26598; Directorate Identifier 2006–CE– effective date of this AD, do a visual, and as 087–AD. applicable, dye-penetrant inspection in rib 1 Related Information external and internal regions, in the auxiliary ˆ Comments Due Date (h) Refer to MCAI Agencia Nacional de fittings of the main box half-wings, and in the Aviac¸a˜o Civil (ANAC) AD No.: 2006–10– (a) We must receive comments by spar webs of half-wings. Do the inspections 01R1, dated August 30, 2007; EMBRAER September 8, 2008. following the paragraph 3. Service Bulletin S.B. No.: 110–00–0007, Affected ADs ACCOMPLISHMENT INSTRUCTIONS of REVISION No.: 01, dated January 12, 2007; EMBRAER Service Bulletin S.B. No.: 110– EMBRAER Alert Service Bulletin S.B. No.: (b) None. 57–0026, REVISION No.: 03, dated April 2, 110–00–A007, dated March 6, 2006; Applicability 2007. Before further flight, all structures EMBRAER Service Bulletin S.B. No.: 110– found corroded or cracked as a result of the 57–0026, REVISION No.: 03, dated April 2, (c) This AD applies to Models EMB–110P1 inspections done above must be corrected 2007; and Maintenance Planning Guides TP and EMB–P2 airplanes, all serial numbers, following the detailed instructions and certificated in any category. 110P2/145, PM 110/652, and PM 110/165, procedures described in EMBRAER Service released by EMBRAER; for related Subject Bulletin S.B. No.: 110–57–0026, REVISION information. No.: 03, dated April 2, 2007. (d) Air Transport Association of America Issued in Kansas City, Missouri, on June (ATA) Code 57: Wings. Note 1: The FAA is aware that most of the 30, 2008. affected airplanes are maintained under Reason operators’ approved aircraft inspection and Kim Smith, (e) The mandatory continuing maintenance programs. The AD actions may Manager, Small Airplane Directorate, Aircraft airworthiness information (MCAI) states: be integrated into these existing inspection Certification Service. It has been found cases of corrosion at the and maintenance programs. We will consider [FR Doc. E8–15510 Filed 7–7–08; 8:45 am] regions of Wings-to-Fuselage attachments, changes in the compliance time or alternative BILLING CODE 4910–13–P Vertical Stabilizer to Fuselage attachments, actions following the provisions of paragraph Rib 1 Half-wing and Passenger Seat Tracks. (g)(1) of this AD. Such corrosion may lead to subsequent cracking of the affected parts, compromising FAA AD Differences DEPARTMENT OF THE TREASURY the aircraft structural integrity, which may in Note 2: This AD differs from the MCAI turn lead to structural failure and/or loss of and/or service information as follows: We Internal Revenue Service some control surface. determined the requirement to do Part IV and Since this condition may occur in other Part V of EMBRAER Service Bulletin S.B. 26 CFR Part 1 aircraft of the same type design and affects No.: 110–00–0007, REVISION No.: 01, dated flight safety, a corrective action is required. January 12, 2007, may go beyond addressing [REG–164965–04] Thus, sufficient reason exists to request the unsafe condition listed in the MCAI. We compliance with this AD in the indicated have removed those actions from this AD. We RIN 1545–BE77 time limit. will continue to evaluate the additional Inspection for corrosion at regions of MCAI actions and monitor the corrosion Elections Regarding Start-Up Wings-to Fuselage attachments, Vertical issue. We may take future AD action if we Expenditures, Corporation Stabilizer to Fuselage attachments, Rib 1 determine an additional unsafe condition Organizational Expenditures, and Half-wing and Passenger Seat Tracks; and if exists or is likely to develop. Partnership Organizational Expenses applicable, removal of the detected corrosion. Other FAA AD Provisions Actions and Compliance AGENCY: Internal Revenue Service (IRS), (g) The following provisions also apply to Treasury. (f) Unless already done, do the following this AD: ACTION: Notice of proposed rulemaking actions: (1) Alternative Methods of Compliance (1) Within the next 30 days after the (AMOCs): The Manager, Standards Office, by cross-reference to temporary effective date of this AD or within the next FAA, has the authority to approve AMOCs regulations. 100 hours time-in-service after the effective for this AD, if requested using the procedures date of this AD, whichever occurs first, carry found in 14 CFR 39.19. Send information to SUMMARY: In the Rules and Regulations out a general visual inspection for corrosion ATTN: Karl Schletzbaum, Aerospace section of this issue of the Federal at the regions of the wings-to-fuselage Engineer, FAA, Small Airplane Directorate, Register, the IRS is issuing temporary attachments, vertical stabilizer to fuselage 901 Locust, Room 301, Kansas City, Missouri regulations relating to the elections to attachments, rib 1 half-wing, and passenger 64106; telephone: (816) 329–4146; fax: (816) deduct start-up expenditures under seat tracks, following Parts I, II, and III of the 329–4090. Before using any approved AMOC section 195 of the Internal Revenue Embraer—Empresa Brasileira de Aerona´utica on any airplane to which the AMOC applies, S.A. (EMBRAER) Service Bulletin S.B. No.: Code (Code), organizational notify your appropriate principal inspector expenditures of corporations under 110–00–0007, REVISION No.: 01, dated (PI) in the FAA Flight Standards District January 12, 2007. Office (FSDO), or lacking a PI, your local section 248, and organizational (i) Before further flight, all structures found FSDO. expenses of partnerships under section corroded or cracked as a result of the (2) Airworthy Product: For any 709. The American Jobs Creation Act of inspections done above must be addressed requirement in this AD to obtain corrective 2004 amended these three sections of following the detailed instructions and actions from a manufacturer or other source, the Code to provide similar rules for procedures described in EMBRAER Service use these actions if they are FAA-approved. deducting these types of expenses that Bulletin S.B. No.: 110–00–0007, REVISION Corrective actions are considered FAA- are paid or incurred after October 22, No.: 01, dated January 12, 2007. approved if they are approved by the State 2004. The regulations affect taxpayers (ii) Previous accomplishment of EMBRAER of Design Authority (or their delegated Alert Service Bulletin S.B. No.: 110–00– agent). You are required to assure the product that pay or incur these expenses and A007, dated March 6, 2006, or the is airworthy before it is returned to service. provide guidance on how to elect to implementation of the tasks required by (3) Reporting Requirements: For any deduct the expenses in accordance with section VI of the Maintenance Planning reporting requirement in this AD, under the the new rules. The text of those

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temporary regulations also serves as the Comments and Requests for a Public through (f) are the same as the text of text of these proposed regulations. Hearing § 1.248–1T(c) through (f) published elsewhere in this issue of the Federal DATES: Comments or a request for a Before these proposed regulations are Register.] public hearing must be received by adopted as final regulations, Par. 4. Section 1.709–1 is amended by October 6, 2008. consideration will be given to any written comments (a signed original and revising the section heading and ADDRESSES: Send submissions to: eight (8) copies) or electronic comments paragraph (b) to read as follows: CC:PA:LPD:PR (REG–164965–04), room that are submitted timely to the IRS. The § 1.709–1 Treatment of organizational 5203, Internal Revenue Service, POB IRS and the Treasury Department expenses and syndication costs. 7604, Ben Franklin Station, Washington, request comments on the clarity of the DC 20044. Submissions may be hand * * * * * proposed rules and how they can be (b) [The text of this proposed delivered Monday through Friday made easier to understand. All between the hours of 8 a.m. and 4 p.m. amendment to § 1.709–1(b) is the same comments will be available for public as the text of § 1.709–1T(b)(1) through to: CC:PA:LPD:PR (REG–164965–04), inspection and copying. Courier’s Desk, Internal Revenue (b)(5) published elsewhere in this issue A public hearing will be scheduled if of the Federal Register.] Service, 1111 Constitution Avenue, requested in writing by any person that NW., Washington, DC, or sent timely submits comments. If a public Linda E. Stiff, electronically via the Federal hearing is scheduled, notice of the date, Deputy Commissioner for Services and eRulemaking Portal at http:// time and place for the hearing will be Enforcement. www.regulations.gov (IRS REG–164965– published in the Federal Register. [FR Doc. E8–15457 Filed 7–7–08; 8:45 am] 04). Drafting Information BILLING CODE 4830–01–P FOR FURTHER INFORMATION CONTACT: The principal author of these Concerning the proposed regulations, regulations is Grace Matuszeski of the DEPARTMENT OF THE INTERIOR Grace Matuszeski, (202) 622–7900; Office of the Associate Chief Counsel concerning submission of comments or (Income Tax & Accounting). However, Office of Surface Mining Reclamation a request for a public hearing, Richard other personnel from the IRS and and Enforcement Hurst, at Treasury Department participated in [email protected] or their development. 30 CFR Part 948 (202) 622–7180 (not toll-free numbers). List of Subjects in 26 CFR Part 1 [WV–113–FOR; OSM–2008–0009] SUPPLEMENTARY INFORMATION: Income taxes, Reporting and Background and Explanation of recordkeeping requirements. West Virginia Regulatory Program Provisions Proposed Amendments to the AGENCY: Office of Surface Mining Temporary regulations in the Rules Regulations Reclamation and Enforcement (OSM), Interior. and Regulations section of this issue of Accordingly, 26 CFR part 1 is the Federal Register amend the Income proposed to be amended as follows: ACTION: Proposed rule; public comment Tax Regulations (26 CFR Part 1) to period and opportunity for public implement the changes to sections 195, PART 1—INCOME TAXES hearing on proposed amendment. 248, and 709 of the Code made by Paragraph 1. The authority citation SUMMARY: We are announcing receipt of section 902 of the American Jobs for part 1 continues to read in part as a proposed amendment to the West Creation Act of 2004, Public Law 108– follows: Virginia regulatory program (the West 357 (118 Stat. 1418). The text of those Virginia program) under the Federal temporary regulations also serves as the Authority: 26 U.S.C. 7805 * * * Surface Mining Control and text of these proposed regulations. The Par. 2. Section 1.195–1 is revised to Reclamation Act of 1977 (SMCRA or the preamble to the temporary regulations read as follows: Act). West Virginia is submitting a explains the amendments. § 1.195–1 Election to amortize start-up proposed amendment to revise its Code Special Analyses expenditures. of State Regulations (CSR) and the West [The text of this section is the same Virginia Code, as contained in This notice of proposed rulemaking is as the text of § 1.195–1T(a) through (d) Committee Substitutes for Senate Bills not a significant regulatory action as published elsewhere in this issue of the 373 and 751. The proposed amendment defined in Executive Order 12866. Federal Register.] covers a variety of issues including, but Therefore, a regulatory assessment is not Par. 3. Section 1.248–1 is amended by not limited to, statutory changes required. It also has been determined revising paragraphs (a) and (c), and involving the special reclamation tax, that section 553(b) of the Administrative adding paragraphs (d) through (f), to the creation of alternative programs for Procedure Act (5 U.S.C. chapter 5) does read as follows: the purpose of paying for the not apply to these regulations. Because reclamation of forfeited sites including the regulations do not impose a § 1.248–1 Election to amortize water treatment where required, and collection of information on small organizational expenditures. incremental bonding. entities, the Regulatory Flexibility Act (a) [The text of this proposed Other provisions include regulatory (5 U.S.C. chapter 6) does not apply. amendment to § 1.248–1(a) is the same revisions relating to public notice of Pursuant to section 7805(f) of the Code, as the text of § 1.248–1T(a) published permit applications, incidental this regulation has been submitted to elsewhere in this issue of the Federal boundary revisions, permit issuance the Chief Counsel for Advocacy of the Register.] findings, inspection of certain Small Business Administration for * * * * * impoundments, reclamation of natural comment on its impact on small (c) through (f) [The text of these drainways subsequent to sediment pond business. proposed amendments to § 1.248–1(c) removal, storm water runoff analysis,

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contemporaneous reclamation standards this document. You may also request to and rules and regulations consistent regarding excess spoil fills and bonding speak at a public hearing by contacting with regulations issued by the Secretary of certain types of excess spoil fills, and the individual listed under FOR FURTHER pursuant to the Act.’’ See 30 U.S.C. effluent limits and bond releases on INFORMATION CONTACT . 1253(a)(1) and (7). On the basis of these remining operations. Docket: The proposed rule and any criteria, the Secretary of the Interior In addition, most blasting provisions comments that are submitted may be conditionally approved the West have been removed from the State’s viewed over the internet at http:// Virginia program on January 21, 1981. Surface Mining Reclamation www.regulations.gov. Look for Docket You can find background information Regulations at Title 38 CSR 2 and will ID OSM–2008–0009. In addition, you on the West Virginia program, including now only be found in the State’s Surface may review copies of the West Virginia the Secretary’s findings, the disposition Mining Blasting Rule at Title 199 CSR program, this amendment, a listing of of comments, and conditions of 1. any scheduled public hearings, and all approval of the West Virginia program On June 16, 2008, OSM published in written comments received in response in the January 21, 1981, Federal a separate Federal Register notice, an to this document at the addresses listed Register (46 FR 5915). You can also find interim approval of the State’s below during normal business hours, later actions concerning West Virginia’s alternative bonding provisions at Monday through Friday, excluding program and program amendments at 30 section 22–3–11 of the West Virginia holidays. You may also receive one free CFR 948.10, 948.12, 948.13, 948.15, and Surface Coal Mining and Reclamation copy of this amendment by contacting 948.16. Act (WVSCMRA) that specifically OSM’s Charleston Field Office listed II. Description of the Proposed relates to the special reclamation tax below. Amendment and the creation of the Special Mr. Roger W. Calhoun, Director, Reclamation Water Trust Fund. OSM Charleston Field Office, Office of By letter dated April 8, 2008, and will accept comments on all other Surface Mining Reclamation and received electronically on April 17, provisions of the program amendment Enforcement, 1027 Virginia Street, East, 2008 (Administrative Record Number pursuant to this proposed rule notice. Charleston, West Virginia 25301, WV–1503), the West Virginia Department of Environmental Protection DATES: We will accept written Telephone: (304) 347–7158. E-mail: (WVDEP) submitted an amendment to comments until 4 p.m., EDT August 7, [email protected]. West Virginia Department of its program under SMCRA (30 U.S.C. 2008. If requested, we will hold a public 1201 et seq.). The amendment consists hearing on August 4, 2008. We will Environmental Protection, 601 57th Street, SE., Charleston, WV 25304, of changes to the West Virginia Code of accept requests to speak until 4 p.m., State Regulations (CSR) and the West EDT on July 23, 2008. Telephone: (304) 926–0490. In addition, you may review a copy of Virginia Code, as contained in ADDRESSES: You may submit comments Committee Substitutes for Senate Bills by any of the following two methods: the amendment during regular business hours at the following locations: 373 and 751. • Federal eRulemaking Portal: http:// Committee Substitute for Senate Bill Office of Surface Mining Reclamation www.regulations.gov. The proposed rule 373 authorizes revisions to the State’s and Enforcement, Morgantown Area has been assigned Docket ID OSM– Surface Mining Reclamation Office, 604 Cheat Road, Suite 150, 2008–0009. If you would like to submit Regulations at 38 CSR 2 and its Surface comments through the Federal Morgantown, West Virginia 26508, Mining Blasting Regulations at 199 CSR eRulemaking Portal, go to http:// Telephone: (304) 291–4004 (By 1. Committee Substitute for Senate Bill www.regulations.gov and do the Appointment Only). 373 was adopted by the Legislature on following. Click on the ‘‘Advanced Office of Surface Mining Reclamation March 6, 2008, and signed into law by Docket Search’’ button on the right side and Enforcement, Beckley Area Office, the Governor on March 28, 2008. West of the screen. Type in the Docket ID 313 Harper Park Drive, Suite 3, Beckley, Virginia Code at paragraphs 64–3–1 (o) OSM–2008–0009 and click the West Virginia 25801, Telephone: (304) and (p) authorize WVDEP to promulgate ‘‘Submit’’ button at the bottom of the 255–5265. the revisions to its rules as legislative page. The next screen will display the FOR FURTHER INFORMATION CONTACT: Mr. rules. This amendment contains a Docket Search Results for the Roger W. Calhoun, Director, Charleston variety of topics, including new rulemaking. If you click on OSM–2008– Field Office, Telephone: (304) 347– language for technical completeness, 0009, you can view the proposed rule 7158. E-mail: [email protected]. sediment control, storm water runoff, and submit a comment. You can also SUPPLEMENTARY INFORMATION: blasting, excess spoil fills, bonding view supporting material and any I. Background on the West Virginia Program programs, water quality, seismograph comments submitted by others. II. Description of the Proposed Amendment records, and definitions. In addition, the • Mail/Hand Delivery: Mr. Roger W. III. Public Comment Procedures amendment contains Committee Calhoun, Director, Charleston Field IV. Procedural Determinations Substitute for Senate Bill 751, which Office, Office of Surface Mining was adopted by the Legislature on Reclamation and Enforcement, 1027 I. Background on the West Virginia March 8, 2008, and approved by the Virginia Street, East, Charleston, West Program Governor on March 27, 2008. Committee Virginia 25301. Please include the rule Section 503(a) of the Act permits a Substitute for Senate Bill 751 amended identifier (WV–113–FOR) with your State to assume primacy for the and reenacted section 22–3–11 of the written comments. regulation of surface coal mining and WVSCMRA. As mentioned above, OSM Instructions: All submissions received reclamation operations on non-Federal has approved, on an interim basis, must include the agency Docket ID and non-Indian lands within its borders under a separate Federal Register (73 (OSM–2008–0009) for this rulemaking. by demonstrating that its program FR 33884) notice a portion of the bill For detailed instructions on submitting includes, among other things, ‘‘*** a relating to the special reclamation tax comments and additional information State law which provides for the and the Special Reclamation Water on the rulemaking process, see the regulation of surface coal mining and Trust Fund. Through this notice, we are ‘‘Public Comment Procedures’’ in the reclamation operations in accordance requesting public comment on the SUPPLEMENTARY INFORMATION section of with the requirements of the Act * * *; remaining revisions to the State’s

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alternative bonding system that are 3.29.a. Incidental Boundary Revisions to rights of rebuttable presumption. The authorized by Committee Substitute for (IBRs) shall be limited to minor shifts or Secretary is not obligated to use this Senate Bill 751. extensions of the permit boundary into non- information to conduct a systematic review The amendment is intended to coal areas or areas where any coal extraction of all existing permits for the purpose of is incidental to or of only secondary identifying and subsequently suspending improve the effectiveness of the West consideration to the intended purpose of the those, if any, which may have been Virginia program and to render the West IBR. IBRs shall also include the deletion of improvidently issued. Virginia program no less effective than bonded acreage which is overbonded by The Secretary will, using the computerized the Federal regulations. Throughout this another valid permit and for which full data bases, review prior to permit issuance proposed amendment, nonsubstantive liability is assumed in writing by the all applications received after the effective changes from ‘‘Office’’ to ‘‘Secretary’’, successive permittee. Incidental Boundary date of this rule and make all reasonable ‘‘Office’’ to ‘‘office’’, ‘‘Office of Revisions shall not be granted for any efforts to determine at a minimum in each Explosives and Blasting’’ to ‘‘Secretary’’ prospecting operations, or to abate a violation case whether outstanding violations (except are made but not listed in this Proposed where encroachment beyond the permit for notices of violations), unabated cessation boundary is involved, unless an equal orders, delinquent civil penalties, and/or Rule Notice. amount of acreage covered under the IBR for bond forfeitures exist on the part of the Pursuant to Committee Substitute for encroachment is deleted from the permitted applicant, the owners or controllers of the Senate Bill 373, West Virginia proposes area and transferred to the encroachment operator, and the lessor and entities the following amendments to its Surface area. controlled by the lessor, (if the lessor retains Mining Reclamation Regulations at Title These proposed revisions fall under rights to the coal after extraction) and, if so, 38 CSR 2: withhold approval of the application until all the provisions of 30 CFR 774.13(d). violations are abated or otherwise resolved in 1. CSR 38–2–3.2.g Notice of Technical 3. CSR 38–2–3.32.b Findings—Permit accordance with the requirements of the Act Completeness Issuance and this rule. Where the information in the subject data Notice of technical completeness is This amendment proposes to delete bases is incomplete and where the new language that is to be added to the the following language at subparagraph information is not available or has not been State’s regulations. It is to provide the 3.32.b relating to required written made available to the Secretary prior to public an opportunity to review and findings for permit issuance: issuance of the permit, the Secretary shall not comment on a permit application once be held in violation of any of the technical review is completed by the The Secretary will systematically prioritize requirements of the Act and this rule. State and the application has been the data collection and data compilation However, where it is later determined that effort required by this paragraph on the permits were improvidently issued as a result supplemented by the applicant after the ownership and control of violators in the close of the public comment period. of inadequate information in the subject data following order: bond forfeitures, outstanding bases or other sources available at the time As amended, subparagraph 3.2.g is unabated cessation orders, delinquent civil the permit is issued, the Secretary shall new and reads as follows: penalties, and delinquent reclamation fees. initiate the procedures set forth in subsection 3.2.g. Notice of Technical Completeness. To accomplish this objective, the Secretary 3.34 of this section. will utilize the data in the Federal Applicant After the Secretary deems a Surface Mine These proposed revisions delete Application technically complete, the Violator System, the Environmental Secretary shall cause the applicant to Resources Information Network, the Mine unnecessary language and fall under the advertise that the application is technically Safety and Health Administration R.31 Data provisions of section 510 of SMCRA and complete. The one time notice shall state that Base, and the Energy Information 30 CFR 773.8 and 773.11. Administration Data Base together with such the application has been deemed technically 4. CSR 38–2–5.4.e.1 Sediment Control: complete by the Secretary and include a other information as may be readily fifteen (15) day public review period: available. In addition, the Secretary will Inspections Provided, that, Notice of Technical make reasonable efforts to identify and include the Mine Safety and Health This amendment proposes to remove Completeness is not necessary if the the words ‘‘Impoundments meeting’’ application was technically complete prior to Administration identification number for sites on the violation listing. after ‘‘30 CFR 77.216(a).’’ This revision the end of the comment period of the original is to delete language that OSM advertisement or a decision is made within As amended, subparagraph 3.32.b previously disapproved relating to ninety (90) days of the end of the comment reads as follows: period or informal conference. impoundments. See the March 2, 2006, 3.32.b. Based on the information provided Federal Register for further explanation These proposed revisions fall under by applicants for surface mining permits (71 FR 10771). the provisions of Section 513 of SMCRA pursuant to subdivisions 3.1.a, 3.1.b, 3.1.c, As amended, subparagraph 5.4.e.1 and 30 CFR 773.6. 3.1.d, 3.1.i, 3.1.j, and 3.1.k of this rule and any other reasonably available information, reads as follows: 2. CSR 38–2–3.29.a Incidental the Secretary will compile and maintain an 5.4.e.1. A qualified registered professional Boundary Revisions (IBRs) accurate and up-to-date computerized listing engineer or other qualified professional of all persons who own or control surface specialist, under the direction of the This amendment proposes to delete mining operations with outstanding unabated professional engineer, shall inspect each language regarding incidental boundary cessation orders, delinquent civil penalties, impoundment or sediment control structure revisions that provides ‘‘or where it has delinquent reclamation fees, and bond provided, that a licensed land surveyor may been demonstrated to the satisfaction of forfeitures of record in the state since May 3, inspect those impoundments or sediment the Secretary that limited coal removal 1978. The listing will include, to the extent control or other water retention structures on areas immediately adjacent to the reasonably possible, all owners and which do not meet the size or other criteria existing permit’’. This proposal is in controllers of the violator(s), described in of 30 CFR 77.216(a); the Class B or C criteria response to earlier OSM concerns about subdivision 3.1.c of this rule. The Secretary for dams in Earth Dams and Reservoirs, TR– the State’s incidental boundary revision will make reasonable efforts to determine the 60 or W. Va. Code § 22–14 et seq., and which owners and controllers of the permittee, the are not constructed of coal processing waste requirements. See the March 2, 2006, operator if different from the permittee, and or coal refuse. The professional engineer, Federal Register for further explanation the lessor or mineral owner, where a contract licensed land surveyor, or specialist shall be (71 FR 10768). mining situation exists. The procedures and experienced in the construction of As amended, subparagraph 3.29.a listings described in this subsection do not impoundments and sediment control reads as follows: apply to notices of violations and are subject structures.

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These proposed revisions fall under These proposed revisions fall under 6.2. Blasting Plan. Each application for a the provisions of 30 CFR 816/ the provisions of 30 CFR 780.21 and permit, where blasting is anticipated, shall 817.49(a)(1). 784.14. include a blasting plan. The blasting plan shall explain how the applicant will comply 5. CSR 38–2–5.4.h.2 Abandonment 7. CSR 38–2–5.6.b Storm Water Runoff with the blasting requirements of the Act, Procedures Plan this rule, and the terms and conditions of the This amendment proposes to change permit. This plan shall include, at a This amendment proposes to delete minimum, information setting forth the language and add new language the time period from twenty-four (24) to limitations the operator will meet with regard regarding the construction of natural forty-eight (48) hours in which the to ground vibration and airblast, the basis for drainways subsequent to sediment pond monitoring results of a one (1) year, those limitations, the methods to be applied removal. WVDEP proposes to delete the twenty-four (24) hour storm event or in controlling the adverse effects of blasting following: greater must be reported to the Secretary operations and be in accordance with the ‘‘The natural drainway shall be by the permittee. requirements with Surface Mining Blasting returned as nearly as practicable to its As amended, subparagraph 5.6.b Rule, Title 199 Series 1. original profile and cross section with reads as follows: These proposed cross references to the channel sides and bottom rock 5.6.b. Each application for a permit shall the State’s blasting rules at Title 199, riprapped up to the top of the channels contain a runoff-monitoring plan which shall Series 1 fall under the provisions of the banks. The riprap requirement may be include, but is not limited to, the installation Federal blasting regulations at 30 CFR waived where the bottom and sides of and maintenance of rain gauges. The plan 816/817.61–68. the channel consist of bedrock,’’ and shall be specific to local conditions. All proposes to add the following: operations must record daily precipitation 10. CSR 38–2–7.4.b.1.J.1.(c) Front and report monitoring results on a monthly Faces of Valley Fills The natural drainway shall be basis and any one (1) year, twenty-four (24) returned as nearly as practicable to its storm event or greater must be reported to the This amendment proposes to add original pattern, profile, and dimensions Secretary within forty eight (48) and shall language that was previously removed and stabilized to control erosion and be include the results of a permit wide drainage and not approved by OSM in the March in accordance with the reclamation system inspection. 2, 2006, Federal Register (71 FR 10776). plan. The reclamation plan should also These proposed revisions fall under This proposed revision falls under the take into consideration channel and the provisions of 30 CFR 780.21 and provisions of 30 CFR 816.22(d)(1) and bank stability and habitat enhancement. 784.14. 816.71(e)(2). As amended, subparagraph 5.4.h.2 West Virginia is proposing to reinstate reads as follows: 8. CSR 38–2–5.6.d Phase-in the language as follows: Compliance Schedule 5.4.h.2. Embankment type sediment dams, 7.4.b.1.J.1.(c) Surface material shall be embankment type excavated sediment dams This amendment proposes to delete composed of soil and the materials described and crib and gabion dams, and all language regarding the phase-in in subparagraph 7.4.b.1.D. accumulated sediment behind the dam shall compliance schedule for the submission be removed from the natural drainway. The of the storm water runoff analysis that 11. CSR 38–2–14.15.c.2 Reclaimed natural drainway shall be returned as nearly expired in June 2006. Because the Areas: Calculation of Disturbed Areas as practicable to its original pattern, profile, and dimensions and stabilized to control deadline for the submission of storm This amendment proposes to clarify erosion and be in accordance with the water runoff analysis has expired, the contemporaneous reclamation rules and reclamation plan. The reclamation plan State is proposing to delete bonding of excess spoil disposal fills by should also take into consideration channel subparagraphs 5.6.d, d.1, d.1.a, d.1.b, deleting ‘‘area is available to do so;’’ and and bank stability and habitat enhancement. d.1.c, d.1.d, and d.1.e. adding ‘‘first two lifts are in and are These proposed revisions fall under There is no Federal counterpart for seeded’’ at the end of the subparagraph. the provisions of 30 CFR 816/817.56. this proposed revision. As amended, subparagraph 14.15.c.2 reads as follows: 6. CSR 38–2–5.6.a Storm Water Runoff 9. CSR 38–2–6 Blasting This amendment proposes to remove 14.15.c.2. Areas within the confines of This amendment proposes to clarify excess spoil disposal fills which are under what operations may be exempt from duplication of rules for blasting at Section 6. construction provided the fill is being conducting a ‘‘Storm Water Runoff constructed in the ‘‘conventional’’ method, At Subsections 6.1 and 6.2, this Analysis’’ by adding the following i.e. , completed from the toe up, or those fills amendment proposes to add, ‘‘and be in language: which are being constructed progressively in accordance with the requirements with lifts from the toe up or are being ‘‘Provided, however, an exemption may be Surface Mining Blasting Rule, Title 199 progressively completed from the toe up by considered on a case by case basis for mining Series 1.’’ at the end of the subsections. constructing benches and appropriate operations with permitted acreage less than Subsections 6.3, 6.4, 6.5, 6.6, 6.7, and drainage control structures (ditches, flumes, 50 acres. Furthermore, haulroads, loadouts, channels, etc.) from the toe up as soon as the and ventilation facilities are excluded from 6.8 are proposed to be deleted entirely. first two lifts are in and are seeded. this requirement. The storm water runoff As amended, Subsections 6.1 and 6.2 analysis shall include’’ read as follows: These proposed revisions fall under As amended, subparagraph 5.6.a reads 6.1. General Requirements. Each operator the provisions of 30 CFR 816.71 and as follows: shall comply with all applicable state and 816.100. federal laws in the use of explosives. A 5.6.a. Each application for a permit shall blaster certified by the Department of 12. CSR 38–2–14.15.d.3 Excess Spoil contain a storm water runoff analysis. Environmental Protection shall be Disposal Fills: Bonding Proposed Fill Provided, however, an exemption may be responsible for all blasting operations Areas considered on a case by case basis for mining including the transportation, storage and use This amendment proposes to clarify operations with permitted acreage less than of explosives within the permit area in 50 acres. Furthermore, haulroads, loadouts, accordance with the blasting plan and be in the contemporaneous reclamation and and ventilation facilities are excluded from accordance with the requirements with bonding requirements of certain excess this requirement. The storm water runoff Surface Mining Blasting Rule, Title 199 spoil disposal fills by deleting the analysis shall include the following: Series 1. phrase ‘‘to use single lift top down

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construction’’ and adding ‘‘with erosion conditions set forth in the NPDES public buildings, community buildings, protection zones’’ after the word Permit in accordance with subsection institutional buildings, gas lines, water ‘‘designed’’. (p), section 301 of the Federal Clean lines, towers, airports, underground As amended, subparagraph 14.15.d.3 Water Act, as amended or 40 CFR Part mines, tunnels and dams. The term does reads as follows: 434 as amended.’’ not include structures built and/or 14.15.d.3. Operations that propose fills that This proposed revision is to eliminate utilized for the purpose of carrying out are designed with erosion protection zones language in its rules that the State finds the surface mining operation. shall bond the proposed fill areas based upon is no longer essential due to changes in At Subsection 2.37, ‘‘Supervised a the maximum amount per acre specified in EPA’s coal remining requirements (72 Blasting Crew’’ is amended and means WV Code § 22–3-12(b)(1). FR 68000–68031). a person that is responsible for the These proposed revisions are to Pursuant to Committee Substitute for conduct of a blasting crew(s) and/or that further clarify the requirements Senate Bill 373, West Virginia proposes the crew(s) is directed by that person. pursuant to the provisions of 30 CFR the following amendments to its Surface At Subsection 2.38, ‘‘Surface Mine 800.14 and 816.71. Mining Blasting Regulations at Title 199 Operations’’ is amended and means all CSR 1: areas of surface mines, and surface area 13. CSR 38–2–14.15.e Applicability of underground mines (including shafts 16. Title 199 Surface Mining Blasting This amendment proposes to remove and slopes), areas ancillary to these Rule CSR 199–1–2–2.39 the applicability schedule that expired operations, and the reclamation of these in 2004. The applicability schedule Definitions areas, including adjacent areas ancillary to the operations, i.e. , preparation and regarding the implementation of Various definitions relating to blasting processing plants, storage areas, shops, contemporaneous reclamation plans at at CSR 199–1–2–2.39 are amended by haulageways, roads, and trails, which subparagraphs 14.15.e, 14.15.e.1 and nonsubstantive grammatical changes, are covered by the provisions of W. Va. 14.15.e.2 are removed completely and such as putting all definition terms in Code § 22–3–1 et seq., and rules 14.15.e.3 is renumbered as 14.15.e. quotation marks; changing the term There are no Federal counterparts to promulgated under that article. ‘‘Office of Explosives and Blasting’’ to At Subsection 2.39, ‘‘Worked on a the subparagraphs that the State ‘‘Secretary’’; and renumbering due to proposes to delete. Blasting Crew’’ is amended and means additions and/or deletions of terms. that a person has first-hand experience 14. CSR 38–2–23.3 Water Quality— Because they are nonsubstantive in in storing, handling, transporting, and Coal Remining Operations nature, these proposed changes are not using explosives, and has participated addressed herein. This amendment proposes to make in the loading, connecting, and The following definitions at CSR 199– the State’s remining rule consistent with initiation processes of blast, and has 1–2 are revised as follows: the proposed changes in the State’s experience in blasting procedures, and At Subsection 2.8, ‘‘Blast Site’’ is National Pollutant Discharge preparation of blast holes. amended and means the area where Elimination System (NPDES) rules by These proposed revisions fall under explosive material is handled during deleting the phrase ‘‘which began after the provisions of section 515(b)(15) of loading into boreholes. This includes February 4, 1987, and on a site which SMCRA and 30 CFR 816/817.61–68 and the perimeter area formed by the loaded was mined prior to August 3, 1977,’’ Part 850. blast holes as measured, 50 feet in all after ‘‘operation’’; deleting ‘‘water directions from the collar of the 17. CSR 199–1–3.2. Blasting Plans quality exemptions’’ and adding outermost loaded borehole; or that area ‘‘effluent limitations’’ after ‘‘the’’; Subparagraph 3.2.a.5, regarding protected from access by a physical adding ‘‘Title 47 Series 30 subdivision’’ blasting plans, is amended by adding barrier to prevent entry to the loaded and deleting ‘‘Subsection’’ and adding language to minimize, not reduce, dust blast holes. ‘‘6.2.d.’’ after ‘‘in’’; and finally, deleting outside the permit area. At Subsection 2.27, ‘‘Other Structure’’ ‘‘subsection (p), section 301 of the Subparagraph 3.2.b, regarding blasting is amended and means any man made Federal Clean Water Act, as amended or plans, is amended by requiring that the structure excluding ‘‘protected a coal remining operation as defined in person conducting the review shall be structures’’ within or outside the permit 40 CFR Part 434 as amended may experienced in common blasting areas which includes but is not limited qualify for the water quality exemptions practices utilized on surface mining to, gas wells, gas lines, water lines, set forth in 40 CFR Part 434 as operations and shall be a certified towers, airports, underground mines, amended.’’ inspector. In addition, the reviewer will As amended, Subsection 23.3 reads as tunnels, bridges, and dams. The term take into consideration the proximity of follows: does not include structures owned, individual dwellings, structures, or operated, or built by the permittee for communities to the blasting operations. 23.3 Water Quality the purpose of carrying out surface Subparagraph 3.2.c is amended to A coal remining operation may qualify for mining operations. provide that the blasting plan shall also the effluent limitations set forth in Title 47 At Subsection 2.35, ‘‘Secretary’’ is contain an inspection and monitoring Series 30 subdivision 6.2.d. substantively identical to former procedure to insure that all blasting These proposed revisions fall under Subsection 2.23 and means the operations are conducted to minimize, the provisions of the U.S. Secretary of the Department of not eliminate, to the maximum extent Environmental Protection Agency (EPA) Environmental Protection or the technically feasible, adverse impacts to coal remining requirements at 40 CFR Secretary’s authorized agent. the surrounding environment and 434.70–75. At Subsection 2.36, ‘‘Structure’’ is surrounding occupied dwellings. In amended and means ‘‘a protected addition, this subsection is amended to 15. CSR 38–2–23.4 Requirements to structure’’ or ‘‘other structure’’ which is provide that all seismographs used to Release Bonds any manmade structures within or monitor airblast or ground vibrations or This amendment, which relates to outside the permit areas which include, both shall comply with the ISEE bond release, proposes to delete the but is not limited to, dwellings, Performance Specifications for Blasting following language: ‘‘and the terms and outbuildings, commercial buildings, Seismographs.

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Subparagraph 3.2.d is amended to feet of the outside right-of-way of a Subparagraph 3.5.c.16 is amended to provide that for operations where a public road, signs reading ‘‘Blasting require the quantities of delay blasting related notice of violation Area’’, shall be conspicuously placed detonators used; (NOV) or cessation order (CO) has been along the perimeter of the blasting Subparagraph 3.5.c.17 is amended by issued; the Secretary shall review the area’’. adding the words ‘‘when required’’ in blasting plan as soon as possible, but These proposed revisions fall under relation to seismograph records and air within thirty (30) days of final the provisions of 30 CFR 816/817.44 blast records; disposition of the NOV or CO. and 816/817.66. Subparagraph 3.5.c.17.A is amended Subparagraph 3.2.e relating to the to require that seismograph and air blast review of a blasting plan where an 19. CSR 199–1–3.4 Surface Blasting at Underground Mines readings include trigger levels, enforcement action has been taken by frequency in Hz, and full waveform the State is deleted in its entirety. This amendment proposes to add a readings shall be attached to the blast These proposed revisions fall under new subparagraph, 3.4.b, regarding the log; the provisions of 30 CFR 816/817.61. regulation of surface blasting at Subparagraph 3.5.c.17.B is amended 18. CSR 199–1–3.3 Public Notice of underground mines. to require the name of the person who Subparagraph 3.4.b is amended by Blasting Operations installed the seismograph, also the name adding new language that provides that Subparagraph 3.3.a, relating to public of the person taking the readings; blasting activities for the development Subparagraph 3.5.c.17.D is amended notice of blasting operations, is of slopes and shafts will be subject to amended by requiring that at least ten to require certification of annual this rule and regulated as surface calibration; (10) days but not more than thirty (30) blasting. The operator will submit a days prior to commencing any blasting Subparagraph 3.5.c.18 is amended to blast plan for the initial developmental require that the shot location be operations which detonate five (5) blast of shafts and slopes, which will pounds or more of explosives at any identified with use of blasting grids as consider all aspects of surface coal mine found on the blast map, GPS, or other given time, the operator must publish a blasting contained in 199 CSR 1. The blasting schedule in a newspaper of methods as defined by the approved Secretary will then only regulate and blast plan; general circulation in all the counties of monitor for surface effects from ground the proposed permit area. The operator Subparagraph 3.5.c.19 is amended by vibration and airblast for the remainder deleting the requirement for a sketch of must republish and redistribute the of the shaft or slope until it intersects schedule at least every twelve months in the delay pattern for all decks and to the coal seam to be mined. require a detailed sketch of delay the same manner above. In addition, These proposed revisions fall under pattern, including the detonation timing new language provides that the the provisions of 30 CFR 817.64. permittee must retain proof of for each hole or deck in the entire blast publication. 20. CSR 199–1–3.5 Blast Record pattern, borehole loading configuration, At subparagraph 3.3.b.1, new Subparagraph 3.5.a is amended to north arrow, distance and directions to language is added that states, require that a blasting log book be on structures; and ‘‘Conspicuously place signs reading forms formatted in a manner prescribed Subparagraph 3.5.c.20 is amended to ‘Blasting Area’ along the edge of any by the Secretary. require the reasons and conditions to be blasting area that comes within 100 feet Subparagraph 3.5.c is amended to noted in the blasting log for misfires, of any public road right-of-way, and at provide that the blasting log shall any unusual event, or violation of the the point where any other road provides contain, at a minimum, but not limited blast plan. access to the blasting area; and’’ and the to, the following information: These proposed revisions fall under existing language as follows is deleted Subparagraph 3.5.c.1 is amended to the provisions of 30 CFR 816/817.68. ‘‘Warning signs shall be conspicuously require the name of the company 21. CSR 199–1–3.6. Blasting displayed at all approaches to the conducting blasting; Procedures blasting site, along haulageways and Subparagraph 3.5.c.2 is amended to access roads to the mining operation require the Article 3 permit number and Subparagraph 3.6.b.2 is amended to and at all entrances to the permit area. shot number; require that all approaches to the blast The sign shall at a minimum be two feet Subparagraph 3.5.c.4 is amended to area remain guarded until the blaster by three feet (2′ x 3′) reading require the identification of nearest signals the ‘‘all clear’’. ‘WARNING! Explosives in Use’ and other structure not owned or leased by Subparagraph 3.6.c.1 regarding explaining the blasting warning and the the operator, and indicate the direction airblast limits is amended to provide all clear signals.’’ and distance, in feet, to both such that the maximum level in Hz be no At subparagraph 3.3.b.2, new structures; more than –3dB. In addition, Footnote language is added that states, ‘‘At all Subparagraph 3.5.c.5 is amended to 1 was added to clarify that airblast is a entrances to the permit area from public require estimated wind direction and flat response from 4 to 125 Hz range; at roads or highways, place conspicuous speed; 2 Hz airblast, the microphone can have signs which state ‘Warning! Explosives Subparagraph 3.5.c.6 is amended by an error of no more than –3dB. Footnote in Use,’ which clearly list and describe adding a proviso to identify material 2 was added to clarify that the use of the the meaning of the audible blast blasted, including rock type and frequency limits of 0.1 Hz or lower—flat warning and all-clear signals that are in description of conditions; response or C-weighted—slow response use,’ and which explain the marking of Subparagraph 3.5.c.9 is amended to requires the Secretary’s approval. blasting areas and charged holes require a description of different Subparagraph 3.6.c.3 is amended to awaiting firing within the permit area. quantities of explosives used; require that all seismic monitoring The signs shall at a minimum be two Subparagraph 3.5.c.14 is amended to follow the International Society of feet by three feet (2′ x 3′)’’ and the require type and length of decking; Explosives Engineers (ISEE) Field existing language as follows is being Subparagraph 3.5.c.15 is amended to Practice Guidelines for Blasting deleted ‘‘Where blasting operations will require a description of use of blasting Seismographs, unless otherwise be conducted within one hundred (100) mats or other protective measures used; approved in the blasting plan.

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Subparagraph 3.6.g is amended to blasting condition of wells and other supervision of an approved Pre-blast provide that blasting within five water systems. Surveyor. The Secretary shall maintain hundred (500) feet of an underground Subparagraph 3.8.b is amended by a list of all those individuals who have mine not totally abandoned requires the adding language to require that surveys completed the pre-blast survey concurrence of the Secretary, and the requested more than ten (10) days before requirement training. West Virginia Office of Miners Health the planned initiation of the blasting Subparagraph 3.9.d is also amended Safety and Training. shall be completed and submitted to the by deleting language which provides Subparagraph 3.6.i is amended to Secretary by the operator before the that an individual who is not an require that all seismic monitoring initiation of blasting. approved pre-blast surveyor may follow the ISEE Field Practice These proposed revisions fall under conduct pre-blast surveys, working as a Guidelines for Blasting Seismographs, the provisions of 30 CFR 816/817.62. pre-blast surveyor-in-training, only if he unless otherwise approved in the 24. CSR 199–1–3.9 Pre-blast Surveyors or she has registered to attend pre-blast blasting plan. surveyor training at the next available Subparagraph 3.6.l is amended by Subparagraph 3.9.a is amended to opportunity. Pre-blast surveyors-in- adding a reference to 3.6.i in relation to require that, at a minimum, individuals training may conduct pre-blast surveys, the maximum airblast and ground applying as a pre-blast surveyor must only if he or she is conducting the vibration standards that do not apply to have a combination of at least two (2) survey under the direct supervision of structures owned by the permittee and of the following; an approved pre-blast surveyor. The 3.9.a.1 experience in conducting leased or not leased to another person. approved pre-blast surveyor must co- pre-blast surveys, or These proposed revisions fall under sign any survey conducted by a pre- 3.9.a.2 technical training in a blast surveyor-in-training. Individuals the provisions of 30 CFR 816/817.66, construction, or engineering related 816/817.67 and 816.79. may work as pre-blast surveyors-in- field, or training for a period of no more than 22. CSR 199–1–3.7 Blasting Control for 3.9.a.3 other related training deemed three months, prior to becoming ‘‘Other Structures’’ equivalent by the Secretary. approved pre-blast surveyors. In addition, language was added to Subparagraph 3.9.e is amended to Subparagraph 3.7.a is amended by clarify that all applicants must complete adding language to require that all provide that the Secretary may the pre-blast surveyor training provided disqualify an approved pre-blast ‘‘other structures’’ in the vicinity of the by the Secretary prior to approval to blasting area be protected from damage surveyor and remove the person from conduct pre-blast surveys. The Secretary the list of approved pre-blast surveyors, by the limits specified in paragraph may establish a fee for approval of pre- 3.6.c.1 subdivisions 3.6.h. and 3.6.i. of if the person allows surveys to be blast surveyors. Language is being submitted that do not meet the this rule, unless waived in total or in deleted which provides that experience part by the owner of the structure. requirements of W. Va. Code 22–3-13a working as a pre-blast surveyor may be and subsection 3.8 of this rule. In In addition, the waiver of the acceptable in lieu of the education protective [limits] may be accomplished addition, language was added to provide requirement. that any person who is disqualified may by the establishment of a maximum Subparagraph 3.9.c is amended to appeal to the Secretary, and if not allowable limit on air blast limits for the clarify that every three (3) years after resolved to the Surface Mine Board. structure in the written waiver meeting initial qualifications for agreement between the operator and the These proposed revisions fall under performing pre-blast surveys, those the provisions of 30 CFR 816/817.62. structure owner. The waiver may be individuals that have met the presented at the time of application in requirements of subparagraph 3.9.a. of 25. CSR 199–1–3.10 Pre-Blast Survey the blasting plan or provided at a later this rule must submit a written Review date and made available for review and demonstration of qualifications of and Subparagraph 3.10.f is amended by approval by the Secretary. ongoing experience performing pre-blast adding language to provide that all All waivers must be acquired before surveys. persons employed by the Secretary, any blasts may be conducted [as] In addition, language was added to whose duties include review of pre-blast designed on that waiver. Language provide that those individuals who have surveys and training of pre-blast requiring that the operator specify the no ongoing experience must attend the surveyors, shall meet the requirements waiver in the blasting plan and that the training required in 3.9.a. and all for pre-blast surveyors as set forth in Secretary approve all waivers is being applicants for re-approval must attend a section 3.9. deleted. In addition, language providing minimum of 4 hours continuing These proposed revisions fall under for alternative maximum allowable education training in a subject area the provisions of 30 CFR 816/817.62. limits is being deleted. relative to knowledge required for These proposed revisions fall under conducting pre-blast surveys. 26. CSR 199–1–4.1 Blaster the provisions of 30 CFR 816/817.67. Furthermore, the Secretary must Certification Requirements approve these training programs. 23. CSR 199–1–3.8 Pre-Blast Surveys Subparagraph 4.1.a is amended to Subparagraph 3.9.d is amended by require each person acting in the Subparagraph 3.8.a is amended by adding language to require that capacity of a blaster and responsible for adding language to provide that at least individuals who assist in the collection the blasting operation be certified by the thirty days prior to commencing of information for pre-blast surveys Secretary. blasting, an operator’s designee shall must complete, or be registered for, the Subparagraph 4.1.b is amended to notify in writing all owners and pre-blast surveyor training provided by require that each applicant for occupants of man made dwellings or the Secretary in 3.9.a. Those registered certification be a minimum of twenty structures that the operator or operator’s to attend the next available training on one (21) years old. In addition, new designee will perform preblast surveys. the pre-blast survey requirements may language was added to provide that In addition, language is added to assist in the collection of information applicants who have blasting experience require that attention be given to for a period of no more than three (3) prior to the last three years, with documenting and establishing the pre- months, and only under the direct documentation, may be considered by

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the Secretary on a case-by-case basis as suspended or revoked in any other state conference shall be held before the Secretary, qualifying experience for initial may be required to show cause as to who shall evaluate the blasters’ performance certification and re-certification; why they should be considered for and upon conclusion of the hearing shall; provided the requirements of 4.6.c. certification. determine if the temporary suspension of the blaster shall remain in force, withdraw the apply. These proposed revisions fall under suspension, or uphold in part. Subparagraph 4.1.c is amended to the provisions of the Federal blaster 4.9.a.2.C. Appeal to the Secretary—If a clarify that the application for certification requirements at 30 CFR blaster chooses to appeal the results of the certification be on forms prescribed by 850.15. informal conference or the written findings of the Secretary. the initial investigation; they may appeal the 30. CSR 199–1–4.6 Retraining These proposed revisions fall under results within in five days to the Secretary. the provisions of 30 CFR 816/817.61 Subparagraph 4.6.c is amended to The appeal shall include written reasons for and 850.14. clarify that an applicant for the appeal. The Secretary shall conduct a recertification who does not meet the hearing within ten days of receipt of the 27. CSR 199–1–4.2 Training appeal. experience requirements of subdivision 4.9.a.2.D. Any blaster receiving a Subsection 4.2 is amended by adding 4.1.b of this rule must take the training temporary suspension may appeal the language to provide that the training course defined in section 4.2. decision of the Secretary to the Surface Mine program will consist of the West These proposed revisions fall under Board. Virginia Surface Mine Blasters Self- the provisions of the Federal blaster 4.9.a.5 is amended by adding language to Study Guide Course and a classroom certification requirements at 30 CFR provide that any blaster receiving a review of the self-study guide course. 850.15. suspension or revocation may appeal the In addition, language was added to decision to the Secretary and to the Surface provide that completion of the 31. CSR 199–1–4.7 Blaster’s Certificate Mine Board. Subparagraph 4.7.d is amended by These proposed revisions fall under the classroom review part of the training provisions of the Federal blaster certification program may not be required for first adding language to clarify that a requirements at 30 CFR 850.15. time applicants. certified blaster shall not take any Furthermore, applicants for instruction or direction on blast design, 33. CSR 199–1–4.13 Blasting Crew certification or applicants for re- explosives loading, handling, Subsection 4.13 is amended to certification, who cannot document the transportation and detonation from a provide that persons who are not experience requirements specified in person not holding a West Virginia certified and who are assigned to a subdivision 4.1.b. of this rule, must blasters certificate, if such instruction or blasting crew, or assist in the use of complete the West Virginia Surface direction may result in an unlawful act, explosives, shall receive directions and Mine Blasters Self-Study Guide. or an improper or unlawful action that on-the-job training from the certified Subparagraph 4.2.a is amended to may result in unlawful effects of a blast. blaster in the technical aspects of provide that, prior to certification, all In addition, a person not holding a blasting operations, including applicants, not just those who choose West Virginia blasters certification who applicable state and federal laws self study, attend a two (2) hour requires a certified blaster to take such governing the storage, transportation, Blaster’s Responsibilities training action may be prosecuted under W. Va. and proper use of explosives. session addressing certified blasters’ Code 22–3–17(c) or (i). These proposed revisions fall under responsibilities and the disciplinary These proposed revisions fall under the provisions of the Federal blaster procedures contained in subsections 4.9 the provisions of the Federal blaster certification requirements at 30 CFR and 4.10 of this rule. certification requirements at 30 CFR 816/817.61 and 850.13. These proposed revisions fall under 850.15. the provisions of the Federal blaster 34. CSR 199–1–4.14 Reciprocity With 32. CSR 199–1–4.9.a Suspension and certification requirements at 30 CFR Other States Revocation 850.13. Subsection 4.14 is amended by adding Subparagraph 4.9.a.2 is amended by language to clarify that reciprocity is a 28. CSR 199–1–4.3 Examination adding language relating to Imminent one time only process. Any blaster who Subparagraph 4.3.b is amended to Harm Suspension. The new language is has been issued a certification through clarify that the examination for certified as follows: reciprocity and fails to meet the blaster consists of three parts. A certified inspector has the authority to recertification requirements will be Subparagraph 4.3.d is amended to issue a temporary suspension order to a required to reexamine and may be clarify that any person who fails to pass certified blaster when an imminent danger to required to provide refresher training any part of the exam on the second the health or safety of the public exists, or can reasonably be expected to cause documentation, as per section 4.6.a of attempt or every other subsequent significant, imminent environmental harm to this rule. attempt must certify that he/she has land, air or water resource by any condition, These proposed revisions fall under taken or retaken the classroom review practice, or violation of this rule or any the provisions of Section 719 of SMCRA training program described in permit condition. The temporary suspension and 30 CFR Part 850. subsection 4.2 of this rule prior to order shall take effect immediately. applying for another examination. 4.9.a.2.A. The Secretary shall formally 35. CSR 199–1–5.2 Filing a Blasting These proposed revisions fall under investigate the incident(s) and provide Damage Claim the provisions of the Federal blaster written findings to the blaster within fifteen Subparagraph 5.2.a is amended to certification requirements at 30 CFR days following the effective date of the clarify that only a certified inspector 850.14. temporary suspension. will be assigned to conduct a field 4.9.a.2.B. Informal Conference—Unless waived in writing by the certified blaster, an investigation to determine the initial 29. CSR 199–1–4.5 Blaster merit of the damage claim and what Certification Prohibitions informal conference shall be held at or near the site relevant to the violation. This such an investigation by a certified Subparagraph 4.5.d is amended by informal conference shall be held within inspector is to include. adding language to provide that persons twenty-four hours after the temporary Subparagraph 5.2.a.3 is amended to who have had their blasters certification suspension order becomes effective. The require that the inspector will make a

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written report on the investigation that move to strike up to twenty-five percent provisions, while summarized in this describes the nature and extent of the (25%) of the list, with cause. amendment, are subject to public notice alleged damage, taking into Subsection 6.4 is amended by adding and comment in that separate Federal consideration the condition of the language to require the parties for Register notice. OSM will render a final structure, observed defects, or pre- arbitration shall choose an arbitrator decision either separately or jointly on existing damage that is accurately within fifteen (15) days of receipt of the those provisions and all other indicated on a pre-blast survey, notice. provisions identified herein relating to conditions of the structure that existed These proposed revisions fall under the State’s alternative bonding system where there has been no blasting the provisions of Section 515(b)(15) of after the close of both public comment conducted by the operator, or other SMCRA and 30 CFR 816/817.62. periods. reliable indicators that the alleged 37. CSR 199–1–7 Explosive Material Subsection 22–3–11(a) of the damage actually pre-dated the blasting Fees WVSCMRA is amended by adding by the operator. language to provide that the penal In addition, the language was revised Subsection 7.2 is amended by adding amount of the bond shall be for each to clarify that the inspector will make language to require copies of blast logs acre or fraction of an acre. to verify the accuracy of the report and one of the initial determinations in Subsection 22–3–11(g) of the 5.2.a.3.A. through 5.2.a.3.C., notify the fee calculation made by operators. Subsection 7.3 is amended by adding WVSCMRA is amended by adding claims administrator, make a language that for the purpose of this language to provide that the Special recommendation on the merit of the section; detonators, caps, detonating Reclamation Fund previously created is claim, and supply information that the cords, and initiation systems are exempt continued. In addition, the Special claims administrator needs to from the calculation for explosive Reclamation Water Trust Fund is sufficiently document the claim. material fees. However, the Secretary created within the State Treasury into The possible determinations are: may require reporting on the use of and from which moneys shall be paid 5.2.a.3.A. There is merit that blasting these products. for the purpose of assuring a reliable caused the alleged damage; or These proposed revisions fall under source of capital to reclaim and restore 5.2.a.3.B. There is no merit that the provisions of sections 515(b)(15) and water treatment systems on forfeited blasting caused the alleged damage. 719 of SMCRA. sites. The moneys accrued in both 5.2.a.3.C. The determination of merit Pursuant to Committee Substitute for funds, any interest earned thereon and as to whether blasting caused or did not Senate Bill 751, West Virginia proposes yield from investments by the State cause the alleged damage cannot be the following amendments to section Treasurer or West Virginia Investment made. 22–3–11 of the WVSMCRA: Management Board are reserved solely Subparagraph 5.2.a.4 is amended by and exclusively for the purposes set deleting former 5.2.a.3.C and adding 38. WVSCMRA 22–3–11 Bonds; forth in this section and section similar language to clarify that the Amount and Method of Bonding; seventeen, article one of this chapter. inspector will inform the property Bonding Requirements; Special The funds shall be administered by owner of the following four resolution Reclamation Tax and Funds; Prohibited the secretary who is authorized to options available for the alleged blasting Acts; Period of Bond Liability. expend the moneys in both funds for the damage: This amendment revises section 22– reclamation and rehabilitation of lands 5.2.a.4.A. Withdraw the claim, with 3–11 of the WVSCMRA relating to the which were subjected to permitted no further action required by the State’s alternative bonding system. As surface mining operations and Secretary; stated in the WVDEP’s April 8, 2008, abandoned after the third day of August, 5.2.a.4.B. File a claim with the letter transmitting the program one thousand nine hundred seventy- operator or the operator’s general amendment, the revisions contained in seven, where the amount of the bond liability insurance carrier; Committee Substitute for Senate Bill posted and forfeited on the land is less 5.2.a.4.C. File a claim with the 751 related ‘‘* * * generally to the than the actual cost of reclamation, and homeowner’s insurance carrier; or special reclamation tax by establishing where the land is not eligible for 5.2.a.4.D. Submit to the Secretary’s the Special Reclamation Water Trust abandoned mine land reclamation funds claims process. Fund; continuing and reimposing a tax under article two of this chapter. The Subparagraph 5.2.a.5 is amended by on clean coal mined for deposit into secretary shall develop a long-range deleting and adding language to provide both funds; requiring the secretary to planning process for selection and that if the property owner declines part look at alternative programs; and prioritization of sites to be reclaimed so 5.2.a.4.D of this rule, the Secretary’s authorizing secretary to promulgate as to avoid inordinate short-term involvement will be concluded. legislative rules implementing the obligations of the assets in both funds of Subparagraph 5.2.a.6 is amended to alternative programs.’’ Only substantive such magnitude that the solvency of clarify that the determination as to the statutory revisions are addressed herein. either is jeopardized. The secretary may merit of a claim is to be made by the Nonsubstantive editorial, formatting or use both funds for the purpose of inspector. recodification changes are not addressed designing, constructing and maintaining These proposed revisions fall under in this rule. water treatment systems when they are the provisions of 30 CFR 816/817.62. The provisions relating to the creation required for a complete reclamation of of the Special Reclamation Water Trust the affected lands described in this 36. CSR 199–1–6 Arbitration for Fund and the reinstatement and subsection. The secretary may also Blasting Damage Claims increase in the special reclamation tax expend an amount not to exceed ten Subsection 6.1, relating to the listing to seven and four-tenths cents per ton as percent of the total annual assets in both of arbitrators, is amended by adding contained in section 22–3–11 (g) and funds to implement and administer the language to provide that once a year the (h)(1), respectively, have been approved provisions of this article and, as they Environmental Advocate, and industry by OSM on an interim basis in a apply to the Surface Mine Board, representatives (selected by the West separate Federal Register notice (June articles one and four, chapter twenty- Virginia Coal Association, Inc.) may 16, 2008; 73 FR 33884). These two-b of this code.

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Subsection 22–3–11(h)(1) of the permit area, but for less than all of the Written Comments WVSCMRA is amended by adding proposed disturbance and obtain incremental release of portions of that bond as Send your written comments to OSM language to provide that for tax periods at one of the addresses given above. commencing on and after the first day reclamation advances so that the released bond can be applied to approved future Your comments should be specific, of July, two thousand eight, every disturbance; and pertain only to the issues proposed in person conducting coal surface mining (C) Determine the feasibility for sites this rulemaking, and include shall remit a special reclamation tax as requiring water reclamation by creating a explanations in support of your follows: separate water reclamation security account recommendations. We may not consider (A) For the initial period of twelve or bond for the costs so that the existing or respond to your comments when months, ending the thirtieth day of June, reclamation bond in place may be released to developing the final rule if they are two thousand nine, seven and four- the extent it exceeds the costs of water received after the close of the comment reclamation. tenths cents per ton of clean coal mined, period (see DATES) or sent to an address the proceeds of which shall be allocated Subsection 22–3–11(h)(4) of the other than those listed above (see by the secretary for deposit in the WVSCMRA is amended to provide that ADDRESSES). Special Reclamation Fund and the if the secretary determines that the Availability of Comments Special Reclamation Water Trust Fund; alternative program, the incremental (B) An additional seven cents per ton bonding program or the water Before including your address, phone of clean coal mined, the proceeds of reclamation account or bonding number, e-mail address, or other which shall be deposited in the Special programs reasonably assure that personal identifying information in your Reclamation Fund. The tax shall be sufficient funds will be available to comment, you should be aware that levied upon each ton of clean coal complete the reclamation of a forfeited your entire comment—including your severed or clean coal obtained from site and that the Special Reclamation personal identifying information—may refuse pile and slurry pond recovery or Fund will remain fiscally stable, the be made publicly available at any time. clean coal from other mining methods secretary is authorized to propose While you can ask us in your comment extracting a combination of coal and legislative rules in accordance with to withhold your personal identifying waste material as part of a fuel supply. article three, chapter twenty-nine-a of information from public review, we The additional seven-cent tax shall be this code to implement an alternate cannot guarantee that we will be able to reviewed and, if necessary, adjusted program, a water reclamation account or do so. annually by the Legislature upon bonding program or other funding Public Hearing recommendation of the council mechanisms or a combination thereof. pursuant to the provisions of section If you wish to speak at the public seventeen, article one of this chapter: Subsection 22–3–11(l) of the hearing, contact the person listed under Provided, That the tax may not be WVSCMRA is amended by adding FOR FURTHER INFORMATION CONTACT by 4 reduced until the Special Reclamation language to clarify that the Tax p.m. EDT on July 23, 2008. If you are Fund and Special Reclamation Water Commissioner shall deposit the moneys disabled and need reasonable Trust Fund have sufficient moneys to collected with the Treasurer of the State accommodations to attend a public meet the reclamation responsibilities of of West Virginia to the credit of the hearing, contact the person listed under the state established in this section. Special Reclamation Fund and Special FOR FURTHER INFORMATION CONTACT. We Subsection 22–3–11(h)(2) of the Reclamation Water Trust Fund. Existing will arrange the location and time of the WVSCMRA is amended to clarify that in language providing that the moneys in hearing with those persons requesting managing the Special Reclamation the fund are to be placed by the the hearing. If no one requests an Program, the secretary shall: Treasurer in an interest bearing account opportunity to speak, we will not hold with the interest being returned to the a hearing. (A) Pursue cost-effective alternative water fund on an annual basis is being To assist the transcriber and ensure an treatment strategies; and deleted. accurate record, we request, if possible, (B) Conduct formal actuarial studies every that each person who speaks at the two years and conduct informal reviews Subsection 22–3–11(m) of the annually on both the Special Reclamation WVSCMRA is amended by adding the public hearing provide us with a written Fund and Special Reclamation Water Trust words ‘‘in both funds’’ at the end of the copy of his or her comments. The public Fund. sentence. The provision now reads, ‘‘At hearing will continue on the specified date until everyone scheduled to speak Subsection 22–3–11(h)(3) of the the beginning of each quarter, the secretary shall advise the State Tax has been given an opportunity to be WVSCMRA is amended to delete heard. If you are in the audience and obsolete language relating to tasks that Commissioner and the Governor of the assets, excluding payments, have not been scheduled to speak and were to be completed by the secretary wish to do so, you will be allowed to by December 31, 2005, and adding expenditures and liabilities, in both funds.’’ speak after those who have been language to provide that prior to the scheduled. We will end the hearing after thirty-first day of December, two These proposed revisions fall under everyone scheduled to speak and others thousand eight, the secretary shall: the provisions of section 509(c) of present in the audience who wish to (A) Determine the feasibility of creating an SMCRA and 30 CFR 800.11(e). speak, have been heard. alternate program, on a voluntary basis, for III. Public Comment Procedures financially sound operators by which those Public Meeting operators pay an increased tax into the Under the provisions of 30 CFR If there is limited interest in Special Reclamation Fund in exchange for a 732.17(h), we are seeking your participation in a public hearing, we maximum per acre bond that is less than the comments on whether these may hold a public meeting rather than maximum established in subsection (a) of this section; amendments satisfy the applicable a public hearing. If you wish to meet (B) Determine the feasibility of creating an program approval criteria of 30 CFR with us to discuss the amendment, incremental bonding program by which 732.15. If we approve these revisions, please request a meeting by contacting operators can post a reclamation bond for they will become part of the West the person listed under FOR FURTHER those areas actually disturbed within a Virginia program. INFORMATION CONTACT. All such meetings

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will be open to the public and, if Executive Order 13175—Consultation substantial number of small entities. In possible, we will post notices of and Coordination With Indian Tribal making the determination as to whether meetings at the locations listed under Governments this rule would have a significant ADDRESSES. We will make a written In accordance with Executive Order economic impact, the Department relied summary of each meeting a part of the 13175, we have evaluated the potential upon the data and assumptions for the Administrative Record. effects of this rule on Federally counterpart Federal regulations. IV. Procedural Determinations recognized Indian tribes and have Small Business Regulatory Enforcement determined that the rule does not have Fairness Act Executive Order 12630—Takings substantial direct effects on one or more Indian tribes, on the relationship This rule is not a major rule under 5 This rule does not have takings U.S.C. 804(2), the Small Business implications. This determination is between the Federal Government and Indian tribes, or on the distribution of Regulatory Enforcement Fairness Act. based on an analysis of the State This rule: (a) Does not have an annual submission. power and responsibilities between the Federal Government and Indian tribes. effect on the economy of $100 million; Executive Order 12866—Regulatory The basis for this determination is that (b) Will not cause a major increase in Planning and Review our decision is on a State regulatory costs or prices for consumers, individual industries, Federal, State, or This rule is exempt from review by program and does not involve a Federal local government agencies, or the Office of Management and Budget regulation involving Indian lands. geographic regions; and (c) Does not under Executive Order 12866. Executive Order 13211—Regulations have significant adverse effects on Executive Order 12988—Civil Justice that Significantly Affect the Supply, competition, employment, investment, Reform Distribution, or Use of Energy productivity, innovation, or the ability The Department of the Interior has On May 18, 2001, the President issued of U.S.-based enterprises to compete conducted the reviews required by Executive Order 13211 which requires with foreign-based enterprises. This section 3 of Executive Order 12988 and agencies to prepare a Statement of determination is based upon the has determined that this rule meets the Energy Effects for a rule that is (1) analysis performed under various laws applicable standards of subsections (a) considered significant under Executive and executive orders for the counterpart and (b) of that section. However, these Order 12866, and (2) likely to have a Federal regulations. significant adverse effect on the supply, standards are not applicable to the Unfunded Mandates distribution, or use of energy. Because actual language of State regulatory This rule will not impose an programs and program amendments this rule is exempt from review under Executive Order 12866 and is not unfunded mandate on State, local, or because each program is drafted and tribal governments or the private sector promulgated by a specific State, not by expected to have a significant adverse effect on the supply, distribution, or use of $100 million or more in any given OSM. Under sections 503 and 505 of of energy, a Statement of Energy Effects year. This determination is based upon SMCRA (30 U.S.C. 1253 and 1255) and is not required. the analysis performed under various the Federal regulations at 30 CFR laws and executive orders for the 730.11, 732.15, and 732.17(h)(10), National Environmental Policy Act counterpart Federal regulations. decisions on proposed State regulatory This rule does not require an programs and program amendments environmental impact statement List of Subjects in 30 CFR Part 948 submitted by the States must be based because section 702(d) of SMCRA (30 Intergovernmental relations, Surface solely on a determination of whether the U.S.C. 1292(d)) provides that agency mining, Underground mining. submittal is consistent with SMCRA and decisions on proposed State regulatory its implementing Federal regulations Dated: June 9, 2008. program provisions do not constitute Thomas D. Shope, and whether the other requirements of major Federal actions within the Regional Director, Appalachian Region. 30 CFR Parts 730, 731, and 732 have meaning of section 102(2)(C) of the been met. National Environmental Policy Act (42 [FR Doc. E8–15438 Filed 7–7–08; 8:45 am] BILLING CODE 4310–05–P Executive Order 13132—Federalism U.S.C. 4332(2)(C)). This rule does not have Federalism Paperwork Reduction Act implications. SMCRA delineates the This rule does not contain DEPARTMENT OF HOMELAND roles of the Federal and State information collection requirements that SECURITY governments with regard to the require approval by OMB under the regulation of surface coal mining and Paperwork Reduction Act (44 U.S.C. Coast Guard reclamation operations. One of the 3507 et seq.). purposes of SMCRA is to ‘‘establish a 33 CFR Part 165 Regulatory Flexibility Act nationwide program to protect society [Docket No. USCG–2008–0422] and the environment from the adverse The Department of the Interior effects of surface coal mining certifies that this rule will not have a RIN 1625–AA00 operations.’’ Section 503(a)(1) of significant economic impact on a SMCRA requires that State laws substantial number of small entities Safety Zones: Central Massachusetts regulating surface coal mining and under the Regulatory Flexibility Act (5 August Swim Events reclamation operations be ‘‘in U.S.C. 601 et seq.). The State submittal, AGENCY: Coast Guard, DHS. accordance with’’ the requirements of which is the subject of this rule, is based ACTION: Notice of proposed rulemaking. SMCRA, and section 503(a)(7) requires upon counterpart Federal regulations for that State programs contain rules and which an economic analysis was SUMMARY: The Coast Guard proposes regulations ‘‘consistent with’’ prepared and certification made that establishing safety zones for two regulations issued by the Secretary such regulations would not have a swimming events in the Captain of the pursuant to SMCRA. significant economic effect upon a Port Boston zone. This rule is intended

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to restrict vessels from entering portions so that we can contact you if we have participants, and spectators at of the involved waterways during the questions regarding your submission. swimming events. Swim events pose a respective events. The safety zones are You may submit your comments and significant risk to the public because of necessary to protect participants and material by electronic means, mail, fax, the combination of numerous vessels from the hazards associated with or delivery to the Docket Management swimmers, high-speed vessels, and a swim event. Facility at the address under ADDRESSES; potentially congested waterways. A DATES: Comments and related material but please submit your comments and safety zone will reduce the risk to the must reach the Coast Guard on or before material by only one means. If you public by separating swimmers from August 7, 2008. submit them by mail or delivery, submit vessel traffic. ADDRESSES: You may submit comments them in an unbound format, no larger 1 Discussion of Proposed Rule identified by Coast Guard docket than 8 ⁄2 by 11 inches, suitable for The safety zones established are number USCG–2008–0422 to the Docket copying and electronic filing. If you necessary to ensure the safety of vessels Management Facility at the U.S. submit them by mail and would like to and people during events in the Captain Department of Transportation. To avoid know that they reached the Facility, of the Port Boston area of responsibility, duplication, please use only one of the please enclose a stamped, self-addressed which may pose a hazard to the public. following methods: postcard or envelope. We will consider The safety zones described in (1) Online: http:// all comments and material received subparagraph (a) for this regulation will www.regulations.gov. during the comment period. We may (2) Mail: Docket Management Facility change this proposed rule in view of be enforced only immediately before (M–30), U.S. Department of them. and during the event. The Captain of the Port Boston will inform the public by all Transportation, West Building Ground Viewing Comments and Documents Floor, Room W12–140, 1200 New Jersey appropriate means including Broadcast Avenue, SE., Washington, DC 20590– To view comments, as well as Notice to Mariners, Local Notice to 0001. documents mentioned in this preamble Mariners, and on-scene Coast Guard or (3) Hand delivery: Room W12–140 on as being available in the docket, go to Coast Guard Auxiliary units. http://www.regulations.gov at any time. the Ground Floor of the West Building, Regulatory Analyses 1200 New Jersey Avenue, SE., Enter the docket number for this We developed this proposed rule after Washington, DC 20590, between 9 a.m. rulemaking (USCG–2008–0422) in the considering numerous statutes and and 5 p.m., Monday through Friday, Search box, and click ‘‘Go >>.’’ You may executive orders related to rulemaking. except Federal holidays. The telephone also visit either the Docket Management Below we summarize our analyses number is 202–366–9329. Facility in Room W12–140 on the based on 13 of these statutes or (4) Fax: 202–493–2251. ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., executive orders. FOR FURTHER INFORMATION CONTACT: If Washington, DC 20590, between 9 a.m. you have questions on this proposed Regulatory Planning and Review and 5 p.m., Monday through Friday, rule, call Chief Petty Officer Eldridge except Federal holidays; or U.S. Coast This proposed rule is not a significant McFadden at 617–223–3000. If you have Guard, Sector Boston, 427 Commercial regulatory action under section 3(f) of questions on viewing or submitting St, Boston, MA 02109 between 7 a.m. Executive Order 12866, Regulatory material to the docket, call Renee V. and 3 p.m., Monday through Friday, Planning and Review, and does not Wright, Program Manager, Docket except Federal holidays. require an assessment of potential costs Operations, telephone 202–366–9826. and benefits under section 6(a)(3) of that SUPPLEMENTARY INFORMATION: Privacy Act Order. The Office of Management and Budget has not reviewed it under that Public Participation and Request for Anyone can search the electronic Order. Comments form of all comments received into any of our dockets by the name of the We expect the economic impact of We encourage you to participate in individual submitting the comment (or this proposed rule to be so minimal that this rulemaking by submitting signing the comment, if submitted on a full Regulatory Assessment is comments and related materials. All behalf of an association, business, labor unnecessary. comments received will be posted, union, etc.). You may review the The Coast Guard’s implementation of without change, to http:// Department of Transportation’s Privacy these safety zones will be of short www.regulations.gov and will include Act Statement in the Federal Register duration and designed to minimize the any personal information you have published on April 11, 2000 (65 FR impact on navigable waters. These provided. We have an agreement with 19477), or you may visit http:// safety zones will only be enforced the Department of Transportation (DOT) DocketsInfo.dot.gov. immediately before and during the time to use the Docket Management Facility. the swimmers are in the water. Please see DOT’s ‘‘Privacy Act’’ Public Meeting Furthermore, these safety zones have paragraph below. We do not now plan to hold a public been designed to allow vessels to transit unrestricted to portions of the waterway Submitting Comments meeting. But you may submit a request for one to the Docket Management not affected by the safety zone. The If you submit a comment, please Facility at the address under ADDRESSES Coast Guard expects insignificant include the docket number for this explaining why one would be adverse impact to mariners from the rulemaking (USCG–2008–0422), beneficial. If we determine that one activation of this safety zone. indicate the specific section of this would aid this rulemaking, we will hold Small Entities document to which each comment one at a time and place announced by applies, and give the reason for each a later notice in the Federal Register. Under the Regulatory Flexibility Act comment. We recommend that you (5 U.S.C. 601–612), we have considered include your name and a mailing Background and Purpose whether this proposed rule would have address, an e-mail address, or a phone Temporary safety zones are necessary a significant economic impact on a number in the body of your document to ensure the safety of vessels, substantial number of small entities.

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The term ‘‘small entities’’ comprises compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ small businesses, not-for-profit this proposed rule under that Order and under Executive Order 12866 and is not organizations that are independently have determined that it does not have likely to have a significant adverse effect owned and operated and are not implications for federalism. on the supply, distribution, or use of dominant in their fields, and Unfunded Mandates Reform Act energy. The Administrator of the Office governmental jurisdictions with of Information and Regulatory Affairs populations of less than 50,000. The Unfunded Mandates Reform Act has not designated it as a significant The Coast Guard certifies under 5 of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not U.S.C. 605(b) that this proposed rule Federal agencies to assess the effects of require a Statement of Energy Effects would not have a significant economic their discretionary regulatory actions. In under Executive Order 13211. impact on a substantial number of small particular, the Act addresses actions entities. that may result in the expenditure by a Technical Standards This proposed rule would affect the State, local, or tribal government, in the following entities, some of which might aggregate, or by the private sector of The National Technology Transfer be small entities: The owners or $100,000,000 or more in any one year. and Advancement Act (NTTAA) (15 operators of vessels intending to transit Though this proposed rule would not U.S.C. 272 note) directs agencies to use or anchor in the areas designated as result in such an expenditure, we do voluntary consensus standards in their safety zones in subparagraphs (a) during discuss the effects of this rule elsewhere regulatory activities unless the agency the date and time the safety zones are in this preamble. provides Congress, through the Office of being enforced. These safety zones Management and Budget, with an Taking of Private Property would not have a significant economic explanation of why using these impact on a substantial number of small This proposed rule would not effect a standards would be inconsistent with entities for the following reasons: The taking of private property or otherwise applicable law or otherwise impractical. safety zones in this proposed rule would have taking implications under Voluntary consensus standards are be in effect for short periods, and will Executive Order 12630, Governmental technical standards (e.g., specifications not preclude vessels from transit outside Actions and Interference with of materials, performance, design, or the zones. Constitutionally Protected Property operation; test methods; sampling If you think that your business, Rights. procedures; and related management organization, or governmental Civil Justice Reform systems practices) that are developed or jurisdiction qualifies as a small entity adopted by voluntary consensus This proposed rule meets applicable and that this rule would have a standards bodies. significant economic impact on it, standards in sections 3(a) and 3(b)(2) of please submit a comment (see Executive Order 12988, Civil Justice This proposed rule does not use ADDRESSES) explaining why you think it Reform, to minimize litigation, technical standards. Therefore, we did qualifies and how and to what degree eliminate ambiguity, and reduce not consider the use of voluntary this rule would economically affect it. burden. consensus standards. Assistance for Small Entities Protection of Children Environment Under section 213(a) of the Small We have analyzed this proposed rule We have analyzed this proposed rule Business Regulatory Enforcement under Executive Order 13045, under Commandant Instruction Fairness Act of 1996 (Pub. L. 104–121), Protection of Children from M16475.lD and Department of we want to assist small entities in Environmental Health Risks and Safety Homeland Security Management understanding this proposed rule so that Risks. This rule is not an economically Directive 5100.1, which guide the Coast significant rule and would not create an they can better evaluate its effects on Guard in complying with the National environmental risk to health or risk to them and participate in the rulemaking. Environmental Policy Act of 1969 safety that might disproportionately If the rule would affect your small (NEPA) (42 U.S.C. 4321–4370f), and business, organization, or governmental affect children. have made a preliminary determination jurisdiction and you have questions Indian Tribal Governments that this action is not likely to have a concerning its provisions or options for significant effect on the human compliance, please contact Chief Petty This proposed rule does not have environment. A preliminary Officer Eldridge McFadden at 617–223– tribal implications under Executive 3000. The Coast Guard will not retaliate Order 13175, Consultation and environmental analysis checklist against small entities that question or Coordination with Indian Tribal supporting this preliminary complain about this rule or any policy Governments, because it would not have determination is available in the docket or action of the Coast Guard. a substantial direct effect on one or where indicated under ADDRESSES. We more Indian tribes, on the relationship seek any comments or information that Collection of Information between the Federal Government and may lead to the discovery of a This proposed rule would call for no Indian tribes, or on the distribution of significant environmental impact from new collection of information under the power and responsibilities between the this proposed rule. Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. List of Subjects in 33 CFR Part 165 U.S.C. 3501–3520.). Energy Effects Federalism Harbors, Marine safety, Navigation We have analyzed this proposed rule (water), Reporting and recordkeeping A rule has implications for federalism under Executive Order 13211, Actions requirements, Security measures, and under Executive Order 13132, Concerning Regulations That Waterways. Federalism, if it has a substantial direct Significantly Affect Energy Supply, effect on State or local governments and Distribution, or Use. We have For the reasons discussed in the would either preempt State law or determined that it is not a ‘‘significant preamble, the Coast Guard proposes to impose a substantial direct cost of energy action’’ under that order because amend 33 CFR part 165 as follows:

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PART 165—REGULATED NAVIGATION DEPARTMENT OF THE INTERIOR Comment. However, the Committee may AREAS AND LIMITED ACCESS AREAS modify its agenda during the course of National Park Service its work. The meetings are open to the 1. The authority citation for part 165 public. Interested persons may provide continues to read as follows: 36 CFR Part 7 brief oral/written comments to the Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Committee during the public comment Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Negotiated Rulemaking Advisory period of the meetings each day before 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Committee for Off-Road Vehicle the lunch break or file written Pub. L. 107–295, 116 Stat. 2064; Department Management for Cape Hatteras comments with the Park of Homeland Security Delegation No. 0170.1. National Seashore Superintendent. 2. Add temporary § 165.T01–0422 to AGENCY: National Park Service (NPS), FOR FURTHER INFORMATION CONTACT: read as follows: § 165.T01–0422 Safety Interior. Mike Murray, Superintendent, Cape Zones: Central Massachusetts August ACTION: Notice of Sixth, Seventh, Eighth Hatteras National Seashore, 1401 Swim Events. and Ninth Meetings. National Park Drive, Manteo, North (a) Location. The following swim Carolina 27954, (252) 473–2111, ext. events include safety zones as described SUMMARY: Notice is hereby given, in 148. herein: accordance with the Federal Advisory SUPPLEMENTARY INFORMATION: The (1) Plymouth Rock Triathlon, Committee Act (Pub. L. 92–463, 86 Stat. Plymouth Inner Harbor, Plymouth, MA Committee’s function is to assist 770, 5 U.S.C. App 1, section 10), of the directly in the development of special (i) All waters of Plymouth Inner sixth, seventh, eighth and ninth Harbor, from surface to bottom. regulations for management of off-road meetings of the Negotiated Rulemaking vehicles (ORVs) at Cape Hatteras (ii) Effective Date. This rule will be Advisory Committee for Off-Road enforced from 7:30 a.m. through 12:30 National Seashore (Seashore). Executive Vehicle Management at Cape Hatteras Order 11644, as amended by Executive p.m. on August 31, 2008. National Seashore. (See DATES section.) (2) 30th Annual Celebrate the Clean Order 11989, requires certain Federal DATES: The Committee will hold its Harbor Swim, Gloucester Harbor, agencies to publish regulations that sixth meeting on September 8–9, 2008, Gloucester, MA provide for administrative designation from 8:30 a.m. to 5:30 p.m. on (i) All waters of Gloucester Harbor, of the specific areas and trails on which September 8, and from 8:30 a.m. to 4 from surface to bottom, within the zone ORV use may be permitted. In response, p.m. on September 9. The meetings on marked by two buoys west of Niles the NPS published a general regulation both days will be held at the Avon Fire Beach. at 36 CFR 4.10, which provides that (ii) Effective Date. This rule will be Hall, 40159 Harbor Drive, Avon, North each park that designates routes and enforced from 8:30 a.m. through 12:30 Carolina 27915. The Committee will areas for ORV use must do so by p.m. on August 16, 2008, with a rain hold its seventh meeting on October 22– promulgating a special regulation date of August 17, 2008 at the same 23, 2008, from 8:30 a.m. to 5:30 p.m. on specific to that park. It also provides times. October 22, and from 8:30 a.m. to 4 p.m. that the designation of routes and areas (b) Definition: As used in this section, on October 23. The meetings on both shall comply with Executive Order designated representative means any days will be held at the Hatteras Village 11644, and 36 CFR Sec. 1.5 regarding Coast Guard commissioned, warrant, or Civic Center, 56658 Highway 12, closures. Members of the Committee petty officer, or any federal, state, or Hatteras, NC 27943. The Committee will will negotiate to reach consensus on local law enforcement officer authorized hold its eighth meeting on November concepts and language to be used as the to enforce this regulation on behalf of 14–15, 2008, from 8:30 a.m. to 5:30 p.m. basis for a proposed special regulation, the Coat Guard Captain of the Port on November 14, and from 8:30 a.m. to to be published by the NPS in the (COTP). 4 p.m. on November 15. The meetings Federal Register, governing ORV use at (c) Regulations. (1) In accordance with on both days will be held at the Clarion the Seashore. The duties of the the general regulations in section 165.23 Hotel, 1601 South Virginia Dare Trail, Committee are solely advisory. Kill Devil Hills, NC 27948. The of this part, entry into or remaining in Dated: June 9, 2008. Committee will hold its ninth meeting the safety zones described in paragraph Michael B. Murray, (a) of this section is prohibited unless on December 11–12, 2008, from 8:30 a.m. to 5:30 p.m. on December 11, and Superintendent, Cape Hatteras National authorized by the Coast Guard Captain Seashore. of the Port (COTP), Boston, or the from 8:30 a.m. to 4 p.m. on December 12. The meetings on both days will be [FR Doc. E8–15418 Filed 7–7–08; 8:45 am] COTP’s designated representative. BILLING CODE 4310–X6–P (2) Persons desiring to transit within held at the Avon Fire Hall, 40159 the safety zones established in this Harbor Drive, Avon, North Carolina section may contact the Captain of the 27915. These, and any subsequent meetings, ENVIRONMENTAL PROTECTION Port at telephone number 617–223–3008 AGENCY or via on-scene patrol personnel on VHF will be held for the following reason: To work with the National Park Service to channel 16 to seek permission to do so. 40 CFR Part 62 If permission is granted, all persons and assist in potentially developing special vessels must comply with the regulations for ORV management at [EPA–R05–OAR–2008–0952; FRL–8687–9] Cape Hatteras National Seashore. instructions of the Captain of the Port or Direct Final Approval of Revised his or her designated representative. The proposed agenda for the sixth, seventh, eighth and ninth meetings of Municipal Waste Combustor State Plan Dated: June 24, 2008. the Committee may contain the for Designated Facilities and Gail P. Kulisch, following items: Approval of Meeting Pollutants: Indiana Captain, U.S. Coast Guard, Captain of the Summary from Last Meeting, AGENCY: Environmental Protection Port Boston. Subcommittee and Members’ Updates Agency (EPA). [FR Doc. E8–15388 Filed 7–7–08; 8:45 am] since Last Meeting, Alternatives ACTION: Proposed rule. BILLING CODE 4910–15–P Discussions, NEPA Update, and Public

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SUMMARY: EPA is approving revisions to EPA is approving the State’s SIP the proceeding is expeditiously resolved Indiana’s State Plan to control air submittal as a direct final rule without and to promote the Commission’s goal pollutants from large Municipal Waste prior proposal because the Agency of encouraging deployment of wireless Combustors (MWC). The Indiana views this as a noncontroversial broadband networks over EBS and BRS Department of Environmental submittal and anticipates no adverse spectrum, by facilitating a consensus Management (IDEM) submitted the State comments. A detailed rationale for the among interested parties on the relevant Plan on August 24, 2007. The revisions approval is set forth in the direct final issues. are consistent with Emission Guideline rule. If no adverse comments are DATES: Submit comments on or before (EG) amendments promulgated by EPA received in response to this rule, no September 22, 2008. Submit reply on May 10, 2006. This approval means further activity is contemplated. If EPA comments on or before October 22, that EPA finds that the State Plan receives adverse comments, the direct 2008. amendments meet applicable Clean Air final rule will be withdrawn and all Act (Act) requirements for large MWCs public comments received will be ADDRESSES: Federal Communications for which construction commenced on addressed in a subsequent final rule Commission, 445 12th Street, SW., or before September 20, 1994. Once based on this proposed rule. EPA will Washington, DC 20554. You may submit effective, this approval also makes the not institute a second comment period. comments, identified by DA 08–1523, or amended State Plan Federally Any parties interested in commenting by WT Docket No. 03–66, RM–10586; enforceable. on this action should do so at this time. WT Docket No. 03–67; WT Docket No. 02–68, RM–9718, by any of the DATES: Please note that if EPA receives adverse Comments must be received on following methods: or before August 7, 2008. comment on an amendment, paragraph, • or section of this rule and if that Federal eRulemaking Portal: http:// ADDRESSES: Submit your comments, www.regulations.gov. Follow the identified by Docket ID No. EPA–R05– provision may be severed from the remainder of the rule, EPA may adopt instructions for submitting comments. OAR–2008–0952, by one of the • Federal Communications following methods: as final those provisions of the rule that • are not the subject of an adverse Commission’s Web Site: http:// http://www.regulations.gov: Follow www.fcc.gov/cgb/ecfs/. Follow the the on-line instructions for submitting comment. For additional information, see the direct final rule which is located instructions for submitting comments. comments. • People with Disabilities: Contact • E-mail: [email protected]. in the Rules section of this Federal • Fax: (312) 886–6030. Register. the FCC to request reasonable • accommodations (accessible format Mail: Carlton T. Nash, Chief, Dated: June 24, 2008. Integrated Air Toxics Section, Air documents, sign language interpreters, Richard C. Karl, Toxics and Assessment Branch (AT– CART, etc.) by e-mail: [email protected] 18J), U.S. Environmental Protection Acting Regional Administrator, Region 5. or phone: (202) 418–0530 or TTY: (202) Agency, 77 West Jackson Boulevard, [FR Doc. E8–15347 Filed 7–7–08; 8:45 am] 418–0432. Chicago, Illinois 60604. BILLING CODE 6560–50–P For detailed instructions for • Hand Delivery: Carlton T. Nash, submitting comments and additional Chief, Integrated Air Toxics Section, Air information on the rulemaking process, Toxics and Assessment Branch (AT– FEDERAL COMMUNICATIONS see the SUPPLEMENTARY INFORMATION 18J), U.S. Environmental Protection COMMISSION section of this document. Agency, 77 West Jackson Boulevard, FOR FURTHER INFORMATION CONTACT: John Chicago, Illinois 60604. Such deliveries 47 CFR Part 27 Schauble, Deputy Chief, Broadband are only accepted during the Regional [WT Docket Nos. 03–66; 03–67; 02–68; IB Division, Wireless Telecommunications Office normal hours of operation, and Docket No. 02–364; ET Docket No. 00–258; Bureau, Federal Communications special arrangements should be made FCC 08–83] Commission, 445 12th Street, SW., for deliveries of boxed information. The Washington, DC 20554, at (202) 418– Regional Office official hours of Facilitating the Provision of Fixed and 0797 or via the Internet to business are Monday through Friday, Mobile Broadband Access, [email protected]. Educational and Other Advanced 8:30 a.m. to 4:30 p.m. excluding Federal SUPPLEMENTARY INFORMATION: This is a holidays. Services in the 2150–2162 and 2500– 2690 MHz Bands; Reviewing of the summary of an Order, DA 08–1523, Please see the direct final rule which is adopted and released by the FCC on located in the Rules section of this Spectrum Sharing Plan Among Non- Geostationary Satellite Orbit Mobile June 26, 2008, in WT Docket Nos. 03– Federal Register for detailed 66, RM–10586; 03–67, and 02–68, RM– instructions on how to submit Satellite Service Systems in the 1.6/2.4 GHz Bands 9718. The full text of this document is comments. available for inspection and copying FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Communications during normal business hours in the Margaret Sieffert, Environmental Commission. FCC Reference Information Center, Engineer, Environmental Protection ACTION: Notice of proposed rulemaking; Room CY–A257, 445 12th Street, SW., Agency, Region 5, 77 West Jackson extension of comment period. Washington, DC 20554. The complete Boulevard (AT–18J), Chicago, Illinois text may be purchased from the 60604, (312) 353–1151, SUMMARY: In this document, the Commission’s duplicating contractor, [email protected] or Michele Commission extends the comment and Best Copy and Printing, Inc. (BCPI), Palmer, Environmental Engineer, reply comment deadlines. This action is Portals II, 445 12th Street, SW., Room Environmental Protection Agency, taken in order to provide a limited CY–B402, Washington, DC 20554, (202) Region 5, 77 West Jackson Boulevard extension to serve the public interest by 488–5300, facsimile (202) 488–5563, or (ML–10C), Chicago, Illinois 60604, (312) allowing parties to discuss the complex via e-mail at [email protected]. The 353–3646, [email protected]. issues at stake, develop consensus complete text is also available on the SUPPLEMENTARY INFORMATION: In the approaches where possible, and prepare Commission’s Web site at http:// Rules section of this Federal Register, thorough comments while ensuring that wireless.fcc.gov/edocs public/

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attachment/DA 08–1523A1doc. This full this proceeding is extended to October September 8, 2008. Public hearing text may also be downloaded at: 22, 2008. requests must be received by August 22, http://wireless.fcc.gov/releases.html. 5. This action is taken under 2008. Alternative formats (computer diskette, delegated authority pursuant to sections ADDRESSES: You may submit comments large print, audio cassette, and Braille) 0.131 and 0.331 of the Commission’s by one of the following methods: are available by contacting Brian Millin rules, 47 CFR 0.131, 0.331. • Federal eRulemaking Portal: http:// at (202) 418–7426, TTY (202) 418–7365, Federal Communications Commission. www.regulations.gov. Follow the or via e-mail to [email protected]. Joel D. Taubenblatt, instructions for submitting comments. • U.S. mail or hand-delivery: Public Summary of the Order Deputy Chief, Wireless Telecommunications Bureau. Comments Processing, Attn: 1018– 1. On March 20, 2008, the [FR Doc. E8–15445 Filed 7–7–08; 8:45 am] AU97, Division of Policy and Directives Management; U.S. Fish and Wildlife Commission released the Broadband BILLING CODE 6712–01–P Radio Service/Educational Broadband Service; 4401 N. Fairfax Drive, Suite Service Second Further Notice of 222; Arlington, VA 22203. We will post all comments on Proposed Rulemaking (BRS/EBS 2nd DEPARTMENT OF THE INTERIOR FNPRM), FCC 08–83. In the BRS/EBS http://www.regulations.gov. This 2nd FNPRM, comments were due on or Fish and Wildlife Service generally means that we will post any before July 7, 2008, and reply comments personal information you provide us were due on or before August 6, 2008. 50 CFR Part 17 (see the Public Comments section below On May 8, 2008, a summary of the BRS/ for more information). EBS 2nd FNPRM was published in the [FWS–R2–ES–2008–0080; 92220–1113– FOR FURTHER INFORMATION CONTACT: 0000; C6] Federal Register (73 FR 26067, May 8, Adam Zerrenner, Field Supervisor, U.S. 2008). RIN 1018–AU97 Fish and Wildlife Service, Austin 2. On June 13, 2008, National EBS Ecological Services Field Office, 10711 Association (‘‘NEBSA’’), formerly Endangered and Threatened Wildlife Burnet Road, Suite 200, Austin, TX known as the National ITFS Association and Plants; Proposed Removal of the 78758; telephone 512/490–0057, (NIA) and the Catholic Television Concho Water Snake (Nerodia extension 248; facsimile 512/490–0974. Network (‘‘CTN’’) filed a motion for paucimaculata) From the Federal List Persons who use a telecommunications extension of time on June 13, 2008, to of Endangered and Threatened device for the deaf (TDD) may call the extend by 75 days the dates for filing Wildlife; Removal of Federally Federal Information Relay Service comments and reply comments in the Designated Critical Habitat (FIRS) at 800/877–8339, 24 hours a day, proceeding. NEBSA and CTN state that AGENCY: Fish and Wildlife Service, 7 days a week. the comment dates ‘‘fall in the middle Interior. SUPPLEMENTARY INFORMATION: of the summer recess period for ACTION: Proposed rule. Public Comments Solicited virtually all schools, colleges and universities, making it difficult for SUMMARY: The best available scientific Our intent is to use the best available NEBSA, CTN, EBS licensees and other and commercial data indicate that the commercial and scientific data as the educators to coordinate their response Concho water snake (Nerodia foundation for all endangered and to the important issues raised in this paucimaculata) has recovered. threatened species classification proceeding.’’ The Wireless Therefore, under the authority of the decisions. Comments or suggestions Communications Association Endangered Species Act of 1973, as from the public, other concerned International, Inc. supports this request. amended (Act), we, the U.S. Fish and governmental agencies, the scientific No party has opposed the request. Wildlife Service (Service) propose to community, industry, or any other 3. It is the policy of the Commission remove (delist) the Concho water snake interested party concerning this that extensions of time are not routinely (Nerodia paucimaculata) from the proposed rule to delist the (species granted pursuant to 47 CFR 1.46(a). Federal List of Endangered and name) are hereby solicited. Comments Such extensions may be warranted Threatened Wildlife, and accordingly, particularly are sought concerning: when, among other reasons, the also remove its federally designated (1) Any threat (or lack thereof) to the additional time will serve the public critical habitat. This determination is Concho water snake; (2) Additional information on the interest. In the present instance, we based on a thorough review of all range, distribution, and location of any grant NEBSA and CTN’s motion for available information, which indicates additional populations of the Concho extension of time by extending by 75 that the threats to this species have been eliminated or reduced to the point that water snake; days the deadlines to file comments and (3) Information on habitat destruction reply comments in the proceeding. the species has recovered and no longer meets the definition of threatened or and/or preservation for the Concho Ordering Clauses endangered under the Act. water snake; (4) Current or planned activities in the 4. Accordingly, it is ordered that, The Concho water snake is a reptile endemic to central Texas. It was listed species’ habitat and the possible pursuant to section 4(i) of the impacts to the Concho water snake; Communications Act of 1934, as as threatened on September 3, 1986, due to threats of habitat modification and (5) Data on population trends; amended, 47 U.S.C. 154(i), and § 1.46 of (6) Data on the status of Concho water destruction (51 FR 31412). Through the Commission’s rules, 47 CFR 1.46, snakes in reservoirs; that the Motion for Extension of Time implementation of recovery efforts, the (7) Information regarding the filed by National EBS Association and Service has determined that this species sufficiency of planned flows in the the Catholic Television Network on June has been recovered and no longer meets Colorado River to maintain habitat for 13, 2008 is granted, and the time for the definition of threatened or the Concho water snake; filing comments in this proceeding is endangered. (8) Data on the need for movement of extended to September 22, 2008, and DATES: Comments on the proposed rule Concho water snakes around large dams the time for filing reply comments in must be received on or before to maintain genetic diversity; and

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(9) Information pertaining to the McCulloch, Mills, Runnels, San Saba, Dixon 2000). The snakes emerge from design of the required post delisting and Tom Green. mid-March to mid-April for the main monitoring. At the time of listing, there were mating event, which occurs during You may submit your comments and considered to be two subspecies of April and early May, with a lesser event materials concerning this proposed rule Nerodia harteri, the Concho water snake in October (Greene et al. 1999, p. 702; by one of the methods listed in the (N. h. paucimaculata) and the Brazos Williams 1969, p. 11). Most births occur ADDRESSES section. Comments must be water snake (N. h. harteri). Densmore et from late July through September (Dixon submitted to http://www.regulations.gov al. (1992, p. 66) determined the Concho et al. 1988, p. 15; 1990, p. 13; 1991, pp. before midnight (Eastern Standard water snake was a distinct species 30–31; 1992, p. 28; Greene et al. 1999, Time) on the date specified in the DATES based, in part, on its geographic p. 702). Females produce litter sizes that section. Please note that we may not isolation and fixed differences in range from 4 to 29, with a mean of about consider comments we receive after the genetic markers. Therefore, in 1996 we 11 neonate snakes (Greene et al. 1999). date specified in the DATES section in changed the name in the Federal List Concho water snakes feed almost our final determination. from N. h. paucimaculata to N. exclusively on fish (Williams 1969, pp. Before including your address, phone paucimaculata (50 CFR 17.11) in 9–10; Dixon et al. 1988, p. 16; 1989, p. number, e-mail address, or other accordance with Densmore et al. (1992). 8; 1990, p. 36; 1992, p. 6; Greene et al. personal identifying information in your Information about the Concho water 1994, p. 167; Thornton 1990, p. 14), and comment, you should be aware that we snake’s biology and life history can be have been observed feeding both during will post your entire comment— found in the final listing rule (51 FR the day and at night. In riverine habitat including your personal identifying 31412–1422), the Concho Water Snake and especially among neonates (recently information—on http:// Recovery Plan (Service 1993, pp. 4–5), born snakes), minnows (fish in the www.regulations.gov. While you can ask Werner and Dixon (2000, pp. 209–216), Cyprinidae family) are the primary food us in your comment to withhold your and Campbell (2003). source. Concho water snakes may also In 1998, the Colorado River Municipal personal identifying information from opportunistically feed on frogs (Rana Water District (District) (1998, pp. 8–29) and Acris spp.) (Greene 1993, p. 20). public review, we cannot guarantee that summarized 10 years of data collected we will be able to do so. on Concho water snake populations, Previous Federal Action In making a final decision on this status, and distribution. In 2004, the We classified the Concho water snake proposal, we will take into U.S. Geological Survey (USGS) analyzed as threatened on September 3, 1986 (51 consideration the comments and any capture-recapture data from 3 sources: FR 31412). The primary reasons for additional information we receive. Such (1) Mueller (1990, pp. 18–27); (2) listing were extensive habitat loss and communications may lead to a final rule Whiting (1993, Appendix 1); and (3) the imminent threats to a large portion of its that differs from this proposal. 10 years of District data. However, for a remaining population. Critical habitat Comments and materials we receive, number of reasons, primarily was designated on June 29, 1989 (54 FR as well as supporting documentation we insufficient sampling effort at any single 27377). In September 1993, we finalized used in preparing this proposed rule, study site and a host of variables, a recovery plan for the Concho water will be available for public inspection especially environmental variability snake (Service 1993). In June 1998, we on http://www.regulations.gov, or by within a site and among sites, study received a petition to delist the Concho appointment, during normal business results have not been robust enough to water snake from the District. On hours at the Austin Ecological Services allow either population or trend August 2, 1999, we published a 90-day Field Office (see FOR FURTHER estimates with satisfactory precision petition finding that the petitioner did INFORMATION CONTACT section). (Service 2004, p. 23). Additional not present substantial information Public Hearing information, particularly concerning the indicating that delisting the species may habitat requirements of the Concho be warranted (64 FR 41903). The Act provides for one or more water snake, is discussed under Recovery public hearings on this proposal, if Summary of Factors Affecting the requested. Requests must be received by Species below. Section 4(f) of the Act directs us to August 22, 2008. Such requests must be The Concho water snake is develop and implement recovery plans made in writing and addressed to the characterized by being somewhat for listed species unless the Director Field Supervisor (see FOR FURTHER smaller than most other Nerodia. At determines that such a plan will not INFORMATION CONTACT section). maturity, males average about 15 inches benefit the conservation of the species. (in) (38.1 centimeters (cm)) snout-vent The Service completed the Concho Background length (SVL), and females average about Water Snake Recovery Plan in 1993. The The Concho water snake is endemic 18 in (45.7 cm) SVL, with a maximum Concho Water Snake Recovery Plan to the Colorado and Concho Rivers in reported length of 42 in (106.7 cm) SVL. outlines recovery criteria to assist in central Texas (Tennant 1984, p. 344; Hibernation begins in late October to determining when the snake has Scott et al. 1989, p. 373). It occurs on late November, depending upon recovered to the point that the the Colorado River from E.V. Spence weather and temperatures (Williams protections afforded by the Act are no Reservoir to Colorado Bend State Park, 1969, p. 11). Most adults probably longer needed (Service 1993, p. 33). including Ballinger Municipal Lake and hibernate in the tunnels of small These criteria are: (1) Adequate instream O.H. Ivie Reservoir, and on the Concho burrowing animals, particularly flows are assured even when the species River from the City of San Angelo to its crayfish, while hibernating juveniles is delisted. (2) Viable populations are confluence with the Colorado River at may be more common in the crevices present in each of the three major O.H. Ivie Reservoir. The Concho water under rocks on gravel bars (Werler and reaches (the Colorado River above snake can be found in rivers and Dixon 2000, pp. 212, 214). Males reach Freese Dam, Colorado River below streams, and on artificial shoreline sexual maturity at about 1 year of age Freese Dam, and the Concho River). habitat of the three reservoirs. Counties but females produce their first litter at Here, population is defined as all of known occurrence include Brown, 2 or 3 years of age, depending on their Concho water snakes in a given area, in Coke, Coleman, Concho, Lampasas, reproductive development (Werler and this case, each major river reach. (3)

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Movement of an adequate number of Summary of Factors Affecting the species and the threats that are Concho water snakes is assured to Species section below) indicates that all reasonably likely to affect the species in counteract the adverse impacts of three criteria in the Concho water snake the foreseeable future following the population fragmentation. These recovery plan (adequate instream flows delisting or downlisting and the movements should occur as long as even after delisting, viable populations removal or reduction of the Act’s Freese Dam is in place or until such in each of the three major river reaches, protections. time that the Service determines that and movement of snakes to assure A species is ‘‘endangered’’ for Concho water snake populations in the adequate genetic mixing) have been met. purposes of the Act if it is in danger of three reaches are viable and ‘‘artificial Further, recovery of the Concho water extinction throughout all or a movement’’ among them is not needed. snake has been a dynamic process, ‘‘significant portion of its range’’ and is We used the recovery plan to provide which has been furthered by the ‘‘threatened’’ if it is likely to become guidance to the Service, State of Texas, significant amount of new data collected endangered within the foreseeable and other partners on methods to on the biology and ecology of the future throughout all or a ‘‘significant minimize and reduce the threats to the species by numerous species experts. portion of its range.’’ The word ‘‘range’’ Concho water snake and to provide Since the time of listing and completion in the phrase ‘‘significant portion of its measurable criteria that would be used of the recovery plan, biologists have range’’ (SPR) refers to the range in to help determine when the threats to discovered that the snakes are able to which the species currently exists. For the Concho water snake had been persist and reproduce in the shorelines the purposes of this analysis, we will reduced so that it could be removed of reservoirs and that the snakes have evaluate whether the currently listed from the Federal List of Endangered and managed to persist in all three species, the Concho water snake, should Threatened Wildlife. population segments, surviving many be considered threatened or endangered Recovery plans in general are not years of drought. Based on this new throughout all of its range. Then we will regulatory documents and are instead information, the analysis below consider whether there are any portions intended to provide a guide on how to considers the best available data in of the Concho water snake’s range in achieve recovery. There are many paths determining that the Concho water which it is in danger of extinction or to accomplishing recovery of a species snake may no longer meet the definition likely to become endangered within the in all or a significant portion of its of a threatened or endangered species. foreseeable future. range. The main goal is to remove the threats to a species, which may occur Summary of Factors Affecting the For the purposes of this proposed without meeting all recovery criteria Species rule, we consider ‘‘foreseeable future’’ contained in a recovery plan. For Section 4 of the Act and its for the Concho water snake to be 20 example, one or more criteria may have implementing regulations (50 CFR part years. This is a reasonable timeframe for been exceeded while other criteria may 424) set forth the procedures for listing, analysis of factors identified that could not have been accomplished. In that reclassifying, or removing species from affect the species in the future and as instance, the Service may judge that, listed status. ‘‘Species’’ is defined by the they relate to Concho water snake overall, the threats have been reduced Act as including any species or biology. The snakes become sexually sufficiently, and the species is robust subspecies of fish or wildlife or plants, mature at 2 or 3 years old and reproduce enough, to reclassify the species from and any distinct vertebrate population annually (Werner and Dixon 2000, p. endangered to threatened or perhaps to segment of fish or wildlife that 216), with a likely life span rarely delist the species. In other cases, interbreeds when mature (16 U.S.C. exceeding 5 years (Greene et al. 1999, p. recovery opportunities may be 1532(16)). Once the ‘‘species’’ is 707). A 20-year timeframe would recognized that were not known at the determined, we then evaluate whether encompass about 4 life spans and time the recovery plan was finalized. that species may be endangered or multiple generations. Twenty years or Achievement of these opportunities may threatened because of one or more of the about four life spans and multiple be counted as progress toward recovery five factors described in section 4(a)(1) generations is a reasonable duration for in lieu of methods identified in the of the Act. We must consider these same analysis of hydrologic conditions and recovery plan. Likewise, we may learn five factors in delisting a species. We expected responses by a short lived information about the species that was may delist a species according to 50 species such as the Concho water snake. not known at the time the recovery plan CFR 424.11(d) if the best available Factors most likely affecting the was finalized. The new information may scientific and commercial data indicate populations relate to hydrologic cycles change the extent that criteria need to be that the species is neither endangered and stream flows. Texas water law met for recognizing recovery of the nor threatened for the following reasons: requirements, including the District’s species. Overall, recovery of a species is (1) The species is extinct; (2) the species permit (TCEQ permit #3676), requires a dynamic process requiring adaptive has recovered and is no longer minimum flows below Ivie Reservoir management. Judging the degree of endangered or threatened (as is the case that are the same as those the Service recovery of a species is also an adaptive with the (Concho water snake)); and/or found in our 2004 Biological Opinion management process that may, or may (3) the original scientific data used at were the minimum needed by the not, fully follow the guidance provided the time the species was classified were Concho water snake. In 2008 the Service in a recovery plan. in error. entered into a Memorandum of For more information on recovery of A recovered species is one that no Understanding (MOU) with the District the Concho water snake, see the longer meets the Act’s definition of to provide for the maintenance of recovery plan at http://ecos.fws.gov/ threatened or endangered. Determining minimum flow releases in perpetuity docs/recovery_plan/930927b.pdf. We whether a species is recovered requires (see the Floodwater Scouring and caution that research conducted since consideration of the same five categories Instream Flows section under Factor A the recovery plan was completed in of threats specified in section 4(a)(1) of for further discussion of the TCEQ 1993 has modified our understanding of the Act. For species that are already permit and MOU). Therefore, we have habitat requirement of the species. listed as threatened or endangered, this no reason to believe that any significant A review of the best scientific and analysis of threats is an evaluation of changes are expected in the next 20 commercial data currently available (see both the threats currently facing the years in reservoir operations or other

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factors that might affect stream Adult and maturing Concho water Colorado River from the confluence of conditions and snake populations. snakes use a wider range of habitats Beals Creek (above Spence Reservoir), The following analysis examines all than do juveniles (Scott et al. 1989, pp. depending on reservoir stage, to five factors currently affecting, or that 379–381; Werler and Dixon 2000, p. downstream of Ivie Reservoir to are likely to affect, the Concho water 211; Williams 1969, p. 8). In reservoirs Colorado Bend State Park, and on the snake within the foreseeable future. and lakes, juvenile Concho water snakes Concho River downstream of the City of are generally found in low-gradient, San Angelo to the confluence with the A. The Present or Threatened loose-rock shoals adjacent to silt-free Colorado River. This is a total of about Destruction, Modification, or cobble. In streams and rivers, juveniles 280 mi (451 km) of river and about 40 Curtailment of Its Habitat or Range are found in gravel shallows or riffles mi (64 km) of reservoir shoreline. While Habitat and Distribution (Rose 1989, pp. 121–122; Scott et al. the Concho water snake has been 1989, p. 379, Scott and Fitzgerald 1985, extirpated from some reaches of its Concho water snakes are known to p. 35). This habitat is likely the best for historical distribution, mainly upstream occur in rivers, streams, and along the juvenile snakes to successfully prey on of San Angelo (Flury and Maxwell 1981, artificial shoreline of reservoirs. These small fish because the rocky shallows p. 31), since the time of listing it has snakes are air-breathing; however, they concentrate prey and are inaccessible to been confirmed farther downstream feed almost exclusively on fish and are, large predatory fish. The exposed rocky from Ivie Reservoir and upstream from therefore, found only near water sources shoals act as thermal sinks, which may Spence Reservoir (Scott et al. 1989, p. capable of supporting at least a minimal help keep the juvenile snakes warm and 384; and Dixon et al. 1988, p. 12; 1990, fish population. Stream and river maintain a high growth rate (Scott et al. pp. 50, 62–65; 1991, pp. 60–67; 1992, habitat used by the Concho water snake 1989, pp. 380–381). pp. 84, 87, 96–97). is primarily associated with riffles Historically the Concho water snake In 2004 and 2005, Drs. Forstner and (Greene 1993, p. 96; Werler and Dixon was known to occur in spotty Dixon surveyed for Concho water 2000, p. 210; Forstner et al. 2006, p. 13), distribution on the mainstem of the snakes across the species’ range. One where the water is usually shallow and Colorado River below E.V. Spence goal of Forstner et al. (2006, pp. 4–5) the current is of greater velocity than in Reservoir near the City of Robert Lee was to evaluate whether viable Concho the connecting pools. Riffles begin when downstream to the F.M. 45 bridge and water snake populations existed in all an upper pool overflows at a change in then not again until further downstream three reaches of the Colorado and gradient and forms rapids. The stream near the City of Bend (Tinkle and Concho rivers separated by Ivie flows over rock rubble or solid to Conant 1961, pp. 42–43; Williams 1969, Reservoir. To do this, snake localities terraced bedrock substrate through a p. 3). On the Concho River and its were surveyed ‘‘for evidence of chute channel that is usually narrower tributaries, Concho water snakes were reproduction (one measure of than the streambed. The riffle ends historically known from Spring Creek, sustainability).’’ Persistence and when the rapids enter the next Dove Creek, and the South Concho reproduction were documented in the downstream pool. Riffles are believed to River, all upstream of the Twin Buttes Concho River and upstream of Ivie be the favored habitat for foraging, with Reservoir, and on the mainstem of the Reservoir in the Colorado River. young snakes using shallow parts of Concho River downstream from San However, access below Ivie Reservoir riffles and adult snakes using deeper Angelo to the confluence with the was restricted by private property parts of riffles (Greene 1993, pp. 13, 96; Colorado River (Marr 1944, pp. 486– owners, preventing an intense Scott et al. 1989, pp. 380–381; Williams 487; Tinkle and Conant 1961, pp. 42– assessment downstream of the 1969, p. 8; Werler and Dixon 2000, p. 43). By the time the Concho water snake impoundment. Regardless of limited 215; Forstner et al. 2006, p. 13). was federally listed, it had been access, females that exhibited signs of Searches on the mainstream rivers extirpated from the tributaries above the recently giving birth were collected (Concho and Colorado) also indicated City of San Angelo (Flury and Maxwell from accessible areas, which Forstner et 1981, p. 31), and surveys had never al. (2006, p. 18) considered technically Concho water snakes were found in the located snakes in lakes or reservoirs sufficient to demonstrate persistence shallow pools between riffles (Williams (Scott and Fitzgerald 1985, pp. 17, 34). and reproduction downstream of Ivie 1969, p. 8). Dixon et al. (1989, p. 16) At the time of listing, the range of the Reservior. ‘‘Even in the face of demonstrated that adult snakes used a snake included O.C. Fisher, Twin landscape scale or ecosystem wide variety of cover sites for resting, Buttes, and Spence reservoirs and one stresses by severely reduced including exposed bedrock, thick tributary creek reservoir, Ballinger precipitation, increased human uses of herbaceous vegetation, debris piles, and Municipal Lake. A fifth reservoir, O.H. instream flows, introduced species, and crayfish burrows. Ivie (formerly known as Stacy), was ever increasing human densities, the In the reservoirs, Concho water snake already planned for construction at the Concho water snake remains in the habitat is most likely shallow water confluence of the Concho and Colorado majority of the sites visited and with minimal wave action and rocks Rivers and was expected to reduce the continues to reproduce at those along the shoreline (Scott et al. 1989, range of Concho water snakes by more locations (Forstner et al. 2006, p. 18).’’ pp. 379–380; Whiting 1993, p. 112). than 50 percent (Scott and Fitzgerald Forstner et al. (2006, pp. 16–18, 20) state However, Concho water snakes have 1985, pp. 31, 35). that ‘‘self sustain[ed], seemingly viable also been observed on steep shorelines By 1993, Scott et al. (1989, pp. 382, populations in the Concho and Colorado and around boat houses (Scott et al. 384), Thornton (1992, pp. 3–16), and Rivers at the end of a decade of 1989, p. 379; Whiting 1993, p. 112). Whiting (1993, pp.8, 28, 117–118, 121) monitoring’’ occur in the three reaches Unlike many other species of Nerodia, determined the Concho water snake’s of the snake’s range. Concho water snakes do not seem to distribution to be about 233 mi (375 km) move far from water (Werler and Dixon (Service 1993, p. 9). Analysis for a 2004 Reservoir Inundation 2000, p. 208). During Greene’s (1993, p. amendment to the 1986 Biological At the time of listing, we believed the 96) visual and radiotelemetry surveys, Opinion (Service 2004, p. 32) construction of Ivie Reservoir would all snakes occurred within 33 feet (ft) summarized the known distribution of have two major impacts that would (10 meters (m)) of water. the Concho water snake to be the result in loss of Concho water snake

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habitat: (1) above the dam, the rocky water snakes have continued to be both the Concho and Colorado Rivers shoreline and riffle habitat would be found in reservoirs. Dixon’s (2004, pp. form pools that can extend two-thirds of inundated, and (2) below the dam, 3–4) surveys in 2004 confirmed that a mile (1 km) or more up river normal water flow would be curtailed, snakes persist in Spence and Ivie (depending on dam height). The riffles and floodwater scouring would be Reservoirs, and, while Ballinger Lake and pools that lie upstream of these prevented (see the Floodwater Scouring had only a small pool of water (2 feet low-head dams may not completely dry and Instream Flows section below for or less) in 2004 and no snakes were up because of small springs and creeks discussion of below-dam effects). At found, after rains in 2005 Forstner et al. nearby. These pools act as refuges for that time, the Colorado River at the (2006, p. 12) confirmed snake presence juvenile and adult Concho water snakes proposed Ivie Reservoir site was and reproductive activity within the when flow ceases (Dixon 2004, p. 9). believed to support the highest lake. Whiting (1993, p. 17) stated that Concho water snakes have been located concentration of Concho water snakes rocky shorelines were the single most in pools behind low-head dams along (Flurry and Maxwell 1981, pp. 36, 48; important component of snake habitat the Colorado River, and Dixon (2004, p. 51 FR 31419). Outside of this area, the in reservoirs, and that changes in water 9) states that it is reasonable to expect snake had been found only in isolated surface elevation of Spence Reservoir the small pools behind low-head dams occurrences, which indicated a disjunct, affect the availability of that shoreline on the Concho River act in the same fragmented distribution. The snake had habitat (Whiting 1993, p. 13). In way. Even with the drought, water not been collected in reservoirs or in the discussing Spence Reservoir, Forstner et continues to flow over bedrock in some silted in riverine habitat below Spence al. (2006, p. 17) states that, ‘‘there are areas, and snakes have been observed Reservoir (Scott and Fitzgerald 1985, rocky outcrops, boulder slopes, in foraging for fish in the diminished flow. pp. 13, 28). It also had not been found limited areas that have been occupied The extent of solid bedrock in some of in perennial tributaries except Elm by the snake and the populations have the riffle systems tends to maintain the Creek near Ballinger (Scott and remained there over the past decade.’’ nature of the riffle and does not allow Fitzgerald 1985, pp. 15, 34). Thus, we Because Concho water snakes are now vegetation to root and collect debris and believed the inundation of the Ivie known to be reproducing and persisting silt (Dixon 2004, p. 9). Reservoir would result in a substantial in lakes and reservoirs and their current Another way the snakes may endure loss of habitat for the Concho water distribution is larger than reported at drying conditions is to use deep snake. the time of listing and historically, burrows. Greene (1993, pp. 89, 94) As a result of a 1986 formal habitat loss from reservoir inundation is found Concho water snake hibernacula consultation conducted under section 7 no longer believed to be a significant (shelters for hibernating snakes) within of the Act with the U.S. Army Corps of threat to the long-term survival of the 19.7 ft (6 m) of water with a mean depth Engineers (USACE) on construction of species. of 1.7 ft (0.52 m). Hibernacula types Freese Dam to form Ivie Reservoir (1986 included crayfish burrows, rock ledges, Drought Biological Opinion), the District agreed debris piles, and concrete low water to implement conservation measures In severe drought, as the region has crossings for adults and loose that included, but were not limited to: experienced over the last 15 years embankments of rock and soil for Long-term monitoring of the snakes, (TWDB 2006, 1–60, 1–67), the linear juveniles. Dixon (2006, p. 2) stated that completing life-history studies, extent of dewatered riverine habitats during droughts the snakes were maintaining specific flow regimes from could be large and the length of time possibly in the crayfish burrows, since Spence and Ivie reservoirs, creating six without flows could extend for several they may retain moisture. artificial riffles below Spence, and months or more (Service 2004, p. 51). Even in light of the ongoing regional transplanting snakes between Decreased flow will likely reduce the drought (TWDB 2006, pp. 1–60, 1–67), populations above and below Ivie amount of available shallow rocky USGS stream gauges have registered Reservoir (Service 1986, pp. 12–24). habitats in much of the river. However, four flood events greater than 400 cubic As part of their long-term monitoring Concho water snakes appear able to feet per second (cfs) below Spence plan, District field biologists conducted survive these low flow periods. For Reservoir and six flood events greater extensive searches for the Concho water example, Elm Creek had experienced a than 1,000 cfs below Ivie Reservoir over snake beginning in 1987. According to number of extended no flow periods the last 10 years. While both Dixon Dixon et al. (1988, p. 12; 1990, pp. 50, over the 5 years prior to 2004 and then (2004, pp. 8–9) and Forstner et al. (2006, 62–65; 1991, pp. 60–67; 1992, pp. 84, flooded in August 2004. In September pp. 12, 15) document degradation of 87, 96–97), snakes have now been 2004, Dixon (2004, p. 11) noted Concho riffles from siltation, there are still documented within and above Spence water snakes inhabited the site. Dixon numerous riffles continuing to support Reservoir, downstream of Spence (2004, p. 12) surmised that snakes either Concho water snakes (Dixon 2004, pp. Reservoir in the artificial riffles, at moved from the mouth of Elm Creek at 5–8). Ballinger Municipal Lake, the old the Colorado River (a distance of 4.6 The Concho water snake has evolved Ballinger Lake, and the connecting creek mi (7.4 creek km)), or existed in and adapted for thousands of years channel between the two Ballinger deep pools somewhere within a through many documented long-term lakes. The snake has also been returnable distance to the site. Another droughts (Forstner et al. 2006, pp. 17– documented in multiple locations on example of snake persistence during dry 19). Forstner et al. (2006, pp. 16, 20) Elm Creek and two of its tributaries, times was the drying of Ballinger Lake state that ‘‘the impacts and future Bluff Creek and Coyote Creek (Scott and in 2004 and confirmation of stressors on this taxon by anthropogenic Fitzgerald 1985, pp.14–15, 30; and Scott reproductive snakes in the lake in 2005 and natural cycles are inevitable,’’ and et al. 1989, p. 384). following rains (Dixon 2004, p. 4; ‘‘the snake has persisted in an Additionally, during the District’s 10- Forstner et al. 2006, p. 15). environment for the past several year monitoring effort (1987–1997), According to Dixon (2004, p. 9), millennia that has seen frighteningly snakes were regularly found in Spence, during long periods of drought, the low- intense periods of drought.’’ Ivie, and Lake Ballinger Reservoirs, a head dams (small private dams, a few Additionally, while there have never habitat type they were not known to feet tall, that create pools upstream and been minimum flows required for the occupy at the time of listing. Concho riffle-like areas downstream) within Concho River below San Angelo, there

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are several smaller dams ‘‘up and down watershed. Stream flows during 1999 to Colorado and Concho rivers are gaining the Concho River, [which] act as refugia 2003 were substantially lower than the streams (Service 2004, pp. 50–51). for Concho water snakes (Dixon 2004, p. period of record for seven USGS stream Gaining streams gather water as you 4).’’ Therefore, because the snakes have gauges analyzed on the Colorado and progress downstream. This gathering of survived under long-term drought and Concho rivers. Recent flows on the water is exhibited not only by tributary low-flow conditions (Forstner et al. Concho River, where minimum flows inflow but also as bank discharge from 2006, p. 22), we believe that the threat have not been required, have been spring flow that occurs where shallow from drought is not likely to endanger particularly low. Prior to reservoir aquifers interface with the stream. This the Concho water snake in the construction near the City of San gaining stream phenomenon is greatly foreseeable future. Angelo, median annual flow on the controlled by ambient weather Concho River at the San Angelo and conditions. During periods of long-term Floodwater Scouring and Instream Paint Rock gauges was 32 and 26 cfs, drought, the tributaries and springs will Flows respectively, but declined to a median cease flowing; however, during normal As discussed above, at the time of annual flow of 0.2 and 0.1 cfs, rainfall periods, these sources of water listing, we believed the construction of respectively, from 1999 to 2003. help to restore and maintain more stable Ivie Reservoir would curtail normal Discharges on the Colorado River have instream flows in the mainstem (Service water flow and prevent floodwater not ceased since 1986 due partly to 2004, p. 50). Additionally, even when scouring. Without such flooding, riffle minimum flows required by the 1986 releases from dams have ceased, normal habitat is lost as the rocky streambed Biological Opinion on construction of seepage from a dam occurs and provides becomes covered with silt. In their Ivie Reservoir. However, median annual for the formation of pools (large and recent survey of the Concho water snake discharge prior to construction of Ivie small) that can provide habitat for the and its habitat, Forstner et al. (2006, pp. Reservoir was 71 cfs and declined to 9 Concho water snake and the fish it preys 14, 16) found that the lack of flushing cfs between 1999 and 2003 (Service upon for varying periods of time flows has allowed silt to settle and cover 2004, pp. 36–37). depending on ambient weather many of the riffles at historically In July 2004, the USACE reinitiated conditions. When dam releases are occupied sites and that several sites formal consultation (Consultation resumed, the pools (located below dams have changed from riffles to slow- Number 2–15–F–2004–0242) with the and up and downstream from spring flowing sandy sections of river, Service on the District’s activities. Prior areas) that may have served as refugial reducing habitat available to these to completing the consultation, the habitat are reconnected by flowing snakes. Sand and silt fill in graveled District indicated through a letter (2004, water. cobble substrate and provide areas for pp. 1–2), and the USACE concurred via If the Concho water snake is delisted, growth of salt cedar and other e-mail (2004, p. 1), that an emergency the minimum flow requirements vegetation, which further eliminates the situation existed due to a limited water required by the 2004 Biological Opinion rocky-bottomed riffle areas required by supply endangering public health and will no longer apply. However, in Concho water snakes (51 FR 31419; safety to their municipal customers February 2008 the Service entered into Scott and Fitzgerald 1985, p. 13; (450,000 people). The ongoing drought a MOU with the District to provide for Forstner et al. 2006, p. 15). However, and implementation of the conditions in the maintenance of these minimum flow despite some riffle habitat loss and the the 1986 Biological Opinion were given releases in perpetuity. The purpose of presence of other system stressors, as the basis for this emergency. During the MOU is for the District to provide Forstner et al. (2006, p. 18) noted that the emergency, the District was allowed assurance that minimum reservoir the Concho water snake persisted and to cease releasing minimum flows, releases will continue in perpetuity, continued to reproduce at the majority while formal consultation was ongoing. consistent with the 2004 BO (Service, of the sites they visited. Thus, we An amended biological opinion (2004 2004, pp. 11–12). The releases will be believe that the loss of some riffle Biological Opinion) was completed in maintained, to the extent there is habitat does not threaten the Concho December 2004. Shortly thereafter, the inflow, if the Concho water snake is water snake. District and the USACE determined the removed from the Federal list of Since issuance of the 1986 Biological emergency had ended and the threatened species. While this means Opinion and associated minimum flow requirements of the amended Biological the District has the authority to further requirements, stream flows throughout Opinion went into effect (Service 2004, reduce or even terminate flows during the range of the Concho water snake pp. 1, 3). The main component of the times of extremely low inflow, earlier have declined considerably (Forstner et 2004 Biological Opinion was a analysis using 10 years of historical data al. 2006, pp. 13–16). According to the reduction in minimum flow indicated that, based on studies that Regional Water Plan for Region F of the requirements (Service 2004, pp. 11–12). demonstrate persistence of the snake in Texas Water Development Board The new flow requirements included, to the past, such low flows occurring only (TWDB 2006, p. 1–6), ranching, irrigated the extent there is inflow into Spence occasionally and temporarily should not agriculture, and the oil and gas industry Reservoir, that the District will maintain affect the snake’s long-term status. have historically dominated the regional a minimum flow in the Colorado River The District has implemented every economy. The largest water user, about downstream of not less than 4.0 cfs activity requested by the Service in 66 percent of the total demand, is (0.11 cms) during April through previous biological opinions beginning irrigated agriculture (provided mostly September and 1.5 cfs (0.04 cms) during in 1986. The minimum flows required by groundwater pumping), and the months of October through March. in the 2004 Biological Opinion have municipal is the next largest water user While the reduced minimum flows been implemented by the District and at almost 22 percent (provided mostly outlined in the 2004 Biological Opinion those flow requirements were by surface water reservoirs) (TWDB will have an impact on the aquatic duplicated in the 2008 MOU signed by 2006, pp. 1–19, 1–24). Based on an habitat conditions in the Colorado the District. The District has an analysis of USGS stream gauges (Service River, those impacts will be ameliorated excellent track record of carrying out 2004, p. 36), low flows in the rivers in to some degree by the nature of the conservation actions to benefit the recent years have been exacerbated by intervening watersheds that drain each Concho water snake (Freese and Nichols low annual rainfall totals throughout the of these stream segments, since both the 2006, Service pp. 42–47). The Service is

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confident in the District’s commitment 4.0 cfs in the summer (April through many of its [pre-infestation] functions, and ability to carry out the provisions of September) all but 12 days. During the including native riparian habitat for the 2008 MOU to provide for minimum winter (October through March), daily wildlife and improved habitat for fish flows. Even in the absence of the MOU median flows always exceeded 1.5 cfs. and other aquatic organisms,’’ and is flow requirements, minimal amounts of Daily median flows in the reach of the ‘‘one of the most crucial options for water and stream flows will still be Colorado River below Ivie Reservoir (as improving water quality and quantity’’ present at various times of the year in measured at USGS at Winchell since (Freese and Nichols 2006, pp. 6.5–6.6). the gaining reaches of the Colorado Ivie Reservoir was constructed, 1990– We have no information that the River and below Spence and Ivie 2007) exceeded 8.0 cfs in the summer herbicide poses a direct poisoning threat Reservoirs due to: dam leakage/seepage, (April through September) all but 15 to the Concho water snake. inflow from creeks and other drainages, days. During the winter (October Additionally, control programs for and spring activity. through March), daily median flows invasive brush species, such as juniper In addition to the MOU, and the 2004 always exceeded 2.5 cfs. We believe that (Juniperus sp.) and mesquite (Prosopis Biological Opinion, Texas water law the District will continue to maintain sp.), are also being implemented in the requirements also result in maintenance instream flows in the foreseeable future. Concho and Upper Colorado River of instream flow. Texas observes While instream flows have decreased, basins to increase water quantity (Freese traditional appropriative water rights, Concho water snakes have continued to and Nichols 2006, p. 6.6; TSSWCB which is also known as the ‘‘first in be found throughout their range. In 2004, pp. 2–3). The TSSWCB is time, first in right’’ rule (See Texas addition, as discussed above in the currently focusing above O.C. Fisher Water Code § 11.027). The state’s water Drought section, Concho water snakes and Twin Buttes reservoirs on the policy requires the Texas Commission appear to be able to survive low flow Concho River and to date over 175,000 on Environmental Quality (TCEQ) to set, situations. Therefore, because the acres (70,820 hectares) of invasive brush to the extent practicable, minimum snakes have survived under low-flow have been treated in these watersheds instream flows to protect the state’s conditions, and because some minimal (TSSWCB 2004, pp. 2–3). The removal water quality when issuing water rights flows will persist throughout parts of and control of salt cedar and other permits (See Texas Water Code the snake’s range (Forstner et al. 2006, invasive brush from the riparian reaches § 11.0235(c)). Furthermore, Texas water p. 22) due to natural inflows and dam of the Colorado and Concho rivers helps law prohibits the owner of stored water releases by the District, we believe that augment existing stream discharge and from interfering with water rights the Concho water snake is not also reduces buildup of dissolved solids holders downstream or releasing water threatened due to lack of instream flows (salts) in the soils of the riparian zone that will degrade the water flowing in the foreseeable future. (Service 2004, p. 56). Additionally, this through the stream or stored removal encourages reformation of riffle Vegetation Encroachment downstream (Texas Water Code areas, increases stream flow, and § 297.93). Salt cedar (Tamarisk sp.) is a reduces sediment deposition, which The District’s water rights permit nonnative species that was introduced improves instream habitat for the (TCEQ permit #3676) requires the to the United States in the 1800s from Concho water snake and other aquatic District to maintain flows below Ivie southern Europe or the eastern species (Freese and Nichols 2006, p. Reservoir of 8 cfs from April through Mediterranean region (DiTomaso 1998, 6.6). September and 2.5 cfs from October p. 326). In the watersheds of the Spence through March. Flows must be and Ivie Reservoirs, these plants are Fragmentation maintained below both Spence and Ivie abundant and have been reported to At the time of listing, we believed reservoirs to ensure water quality and have greatly affected water quality and construction of Ivie Reservoir (formed provide for downstream water rights. quantity because they consume large by Freese Dam) would likely segment Flows are mandated and releases from volumes of water and then transport Concho water snakes into three separate Spence Reservoir are periodically salts from the water to the surfaces of populations and thereby reduce genetic required by the State of Texas to ensure their leaves. When the leaves are exchange (Scott and Fitzgerald 1985, p. the quality of water entering Ivie dropped in the fall, the salt is 34). Prior to the snake’s listing in 1986, Reservoir. Spence Reservoir is known to concentrated at the soil surface (Freese no researchers had documented Concho be high in dissolved solids and and Nichols 2006, p. 5.5; DiTomaso water snakes traveling over land to chlorides (Service 2004, p. 6), so if flows 1998, p. 334). circumvent the barriers caused by large into Spence Reservoir are low, water In an effort to increase water yield dams, and snakes had not been located quality in the reservoir can become and reduce salt concentrations in in reservoirs. Due to this separation, a degraded unless flushing flows are Spence and Ivie reservoirs, the District, reasonable and prudent measure in the released. The District must also ensure in cooperation with the Texas 1986 Biological Opinion was to transfer that senior water right holders are Cooperative Extension, the Texas snakes annually between the delivered specific amounts of water Department of Agriculture, the U.S. populations separated by the dam. from Ivie Reservoir. Therefore, long- Department of Agriculture— Snakes were transferred in 1995 and term low flow releases or no releases Agricultural Research Service, and the again in 2006 (District 1995, p. 1; from Spence and Ivie Reservoirs are Texas State Soil and Water Conservation District 2006, pp. 1–3). rare. Board (TSSWCB), has initiated a salt Because we now know Ivie Reservoir, The District has been able to maintain cedar control project in the Upper which receives flow from both the flows from both Spence and Ivie Colorado River Basin, which includes Concho and Colorado Rivers, to be reservoirs over the long term as spraying an herbicide to eradicate mass occupied, we believe it is reasonable to evidenced by long-term measures of concentrations of salt cedar and then surmise that snakes are capable of flows at two gages. Daily median flows using a leaf beetle for biological control genetic interchange between the Concho in the reach of the Colorado River below of new plant growth (Freese and Nichols and Colorado Rivers via the reservoirs’ Spence Reservoir (as measured at USGS 2006, p. 6.4). This project ‘‘is an shorelines. The District (1998, p. 14) near Ballinger since Spence Reservoir excellent first step in the recovery of the summarized Concho water snake habitat was constructed, 1969–2007) exceeded Upper Colorado River Basin back to within Ivie Reservoir and found that

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although the habitat is not linearly significant threats to the snake’s the principal food of the Concho water consistent, it does occur throughout the survival. snake (Williams 1969, pp. 9–10; Dixon reservoir. Female Concho water snakes The Concho water snake was listed as et al. 1988, p. 16; 1989, p. 8; 1990, p. produce their first young at 2 or 3 years endangered by the State of Texas in 36; 1992, p. 6; Greene et al. 1994, p. 167; of age (Werler and Dixon 2000, p. 216). 1984. In 2000, it was removed from the Thornton 1990, p. 14). While we do not Based on occupancy of reservoirs and State’s list of threatened species (TPWD know the full extent of the drought’s moderate generation time, we have a 2000, p. 3) because TPWD no longer effects on the local fish populations, we high level of confidence that gene flow considered it likely to become do have information that indicates the occurs between populations. endangered (64 FR 41903). snake is able to survive in captivity for In recent surveys, Forstner et al. 2006 The Texas State Legislature up to 12 months with a reduced food (pp. 10–13, 18) found that Concho water implemented the Texas Clean Rivers supply (Dixon 2006, p. 2), and based on snakes were reproducing in the Concho program in 1991. The District has the snake’s persistence and and Colorado Rivers above Ivie actively participated in the program reproduction within all three reaches Reservoir and in the Colorado River since that time and monitors surface (Forstner et al. 2006, pp. 10–13, 18), we below it; they concluded that the water quality in the upper Colorado believe that the Concho water snake is populations in those three river reaches River basin, which includes the no longer threatened with distribution of the Concho water snake were self sustaining and seemingly endangerment in the foreseeable future above Freese Dam. The Lower Colorado viable (Forstner et al. 2006, pp. 16–18, as a result of potential threats to local River Authority (LCRA) has the 20). The 2008 MOU (mentioned above), food fish populations. responsibility for water quality Article 4.1 also provides that, in the monitoring below Freese Dam. Both of Factor A Summary springtime, the District, in coordination these entities have participated in the In conclusion, over the course of 20 with the Service, should move 5 male Clean Rivers Program since 1991 and years, including the construction of snakes from below Spence and Freese have provided a proactive response for three dams that were anticipated to dams to above these dams, once every ensuring a high level of surface water fragment the distribution of the Concho 3 years. Moving snakes will be quality in the Colorado River and its water snake, a prolonged drought dependent upon availability of funding mainstem reservoirs. These programs accompanied by extreme low water for the District. We believe this are ongoing and designed to ensure flows in parts of the snake’s range, and movement will benefit the snake by water quality integrity for all aquatic concerns about heavy nutrient inflows, enhancing genetic exchange between resources, including the Concho water surveys have confirmed that the snakes the three populations. Should funding snake and fish, its primary food source, have occupied habitat along the new be unavailable in any particular snake- in the upper basin. As water quality lakeshores, survived in or quickly moving year, every effort will be made problems are detected, swift responses reoccupied areas of extreme low flows, to move snakes in the succeeding year. by the District and LCRA to effect and have not been adversely affected by Based on the available data, we do not corrective actions through State of Texas nutrient-related effects. Additionally, believe the species is likely to become regulatory agencies (TCEQ and the habitat restoration efforts such as the threatened or endangered in the Texas Railroad Commission) are removal of salt cedar and other brushy foreseeable future due to genetic completed (Service 2004, pp. 52–53). species may be improving instream isolation. Additional water quality protections habitat for the Concho water snake and Pollution and Water Quality for Concho water snakes in riverine and other aquatic species. We believe that reservoir habitats will continue destruction, modification, or At the time of listing, we believed indirectly under the Clean Water Act curtailment of the Concho water snake buildup of algae in riffle areas reduced (CWA). According to the Environmental habitat or range due to habitat loss, oxygen and nutrients available to Protection Agency (2006, p. 1), the CWA altered instream flows and floodwater populations of fish, the Concho water establishes basic structures for scouring, drought, vegetation snake’s primary food (51 FR 31419). We regulating discharges of pollutants into encroachment, fragmentation, and were also concerned that the inflow of United States waters, protecting water pollution no longer threaten the Concho nutrients into the Concho River in the quality for species dependent on rivers water snake with becoming endangered. San Angelo area, along with reduced and streams for their survival. Forstner (2006 p. 12) cites Soule’s dilution capability associated with According to species experts, 1987 definition that describes the key lower flows, created large minimally maintained, ‘‘mandated criteria for a viable population to concentrations of algae in portions of flows below Ivie Reservoir (TCEQ include the ability of the population to the river (51 FR 31419). A summary of permit #3676) [and] senior water rights be self sustaining, able to persist over the 1987–1996 fish collections in the below both Spence and Ivie reservoirs’’ time (a century or longer for the Concho Colorado and Concho Rivers, included will adequately provide instream flows water snake), and the ability to adapt to in the Service’s 2004 Biological Opinion for the Concho water snake (Forstner et local conditions and evolutionary (Appendix A, pp. 68–69), suggested that al. 2006, p 21), preventing the snake pressures. Forstner stated that the fish populations have persisted despite from likely becoming threatened or criteria of self sustaining, seemingly the presence of algae. Also, no impacts endangered in the foreseeable future viable populations in the Concho and to snakes have been observed or because the snake has persisted under Colorado rivers at the end of a decade documented as a result of water quality these conditions historically, including of monitoring have been met. Recalling conditions during the ongoing drought the ongoing drought, as discussed the three recovery criteria from the 1993 (Service 2004, p. 52). Additionally, earlier in this proposal. Concho Water Snake Recovery Plan: according to Dixon (2006, p. 2), Concho Adequate instream flows, viable water snakes have been documented to Forage Fish Availabilty populations in each of the three major survive in captivity for as long as 12 At the time of listing, we believed that reaches (as indicated by not only the months with a reduced food supply. declining flows, inundation, pollution, repeated presence of snakes at long-term Therefore, we no longer consider algal and other habitat threats would have monitoring sites, but by documented growth and nutrient enrichment to be adverse impacts on riffle-dwelling fish, evidence of reproduction as a measure

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of sustainability), and movement of recreation occurring on the Concho and inadequacy of existing regulatory water snakes to counteract population Colorado Rivers, where the Concho mechanisms does not constitute an fragmentation. Forstner’s 2006 Final water snake occurs, as there is on the ongoing threat to the Concho water Survey Assessment Report (May 18, Brazos River. We are unaware of any snake. 2006 p. 12) concludes that his plans to increase recreational E. Other Natural or Manmade Factors assessment indicates that two out of opportunities in the Colorado and Affecting Its Continued Existence three of the criteria have been met. Concho Rivers to increase recreational Fortner (2006 p. 13) then states that his use. Therefore, we believe that impacts We are unaware of any other natural assessment did not address the final from recreationists will continue to be or manmade factors affecting the instream flow criterion, yet concludes less in the foreseeable future in the areas continued existence of the Concho that ‘‘in addition to the mandated flows occupied by Concho water snakes. water snake at this time. below Ivie Reservoir (TCEQ permit While some limited killing of snakes Conclusion of the Five-Factor Analysis #3676), senior water rights below both is likely still occurring, there is no Spence and Ivie Reservoirs virtually evidence indicating that these As required by the Act, we considered assure maintenance of instream flows mortalities are affecting the species on the five potential threat factors to assess simply as a consequence of meeting a rangewide or population level. whether the Concho water snake is those water right demands. The Therefore, we find that mortality from threatened or endangered throughout all assurance of the instream flow criterion this factor is not likely to cause the or a significant portion of its range. can be met without ever considering the species to become threatened or When considering the listing status of flows agreed to by the District in the endangered in the foreseeable future. the species, the first step in the analysis is to determine whether the species is in 2008 MOU. The Service realizes that C. Disease or Predation severe environmental conditions that danger of extinction throughout all of its reduced reservoir releases and instream At the time of listing, no problems of range. If this is the case, then the species flow have occurred in the past and will disease or predation on Concho water is listed in its entirety. For instance, if occur in the future, and we are snakes were known to exist (51 FR the threats on a species are acting only confident that the District will continue 31420). While currently no disease on a portion of its range, but they are to implement all appropriate problems are known, predators on at such a large scale that they place the conservation actions, including Concho water snakes have been entire species in danger of extinction, providing the flows outlined in the 2008 identified. As is true for most snakes, we would list the entire species. MOU. Furthermore, we believe that the predation is considered a major natural Since the time of listing, it has been District will continue to comply with its source of mortality for Concho water shown that: (1) Concho water snakes TCEQ water rights permit, which snakes (Werler and Dixon 2000, p. 215). can survive lower flows than previously mandates flow releases from Ivie Predators documented to prey on thought necessary for their survival; (2) Reservoir. Since the listing of the Concho water snakes include mandated flows, downstream senior Concho water snake in 1986, the District kingsnakes (Lampropeltis getula), water rights, and the 2008 MOU has an impeccable track record of coachwhip snakes (Masticophis between the District and the Service providing flows, moving snakes, and flagellum), racers (Coluber constrictor), virtually assure maintenance of facilitating/conducting research and raccoons (Procyon lotor), and great blue adequate instream flows; (3) viable monitoring to conserve the species. herons (Ardea herodias) (Greene 1993, populations of Concho water snakes p. 102; Dixon et al. 1988, p. 18; exist in all three reaches of the species’ B. Overutilization for Commercial, Williams 1969, p. 15). Raptors such as range; (4) the snake uses the shoreline Recreational, Scientific, or Educational hawks (Buteo spp.) and falcons (Falco of reservoirs; (5) snakes may not need to Purposes sp p.) are also known to predate upon be transferred between populations in At the time of listing, Concho water snakes (Steenhof and Kochert 1988, p. order to prevent genetic isolation, snakes were known to sometimes be 42). Predatory fish include bass although the 2008 MOU provides for captured or killed by recreationists (51 (Micropterus salmoides) and channel them to be moved; and (6) it persists, FR 31420). The effect of this activity on catfish (Ictaclurus punctatus) (McGrew reproduces, and remains viable Concho water snake populations was 1963, pp. 178–179; Jordan and throughout its range. In addition, the and still is believed to be minimal. Arrington 2001, 158). Predation of removal of salt cedar and other invasive However, instances of Concho and Concho water snakes clearly is brushy species is restoring riparian Brazos water snakes being killed have occurring; however, all of these habitat, small riffles, and water quality been reported in both populated and predators are native to this region and for the Concho water snake. unpopulated areas. For example, Brazos the snakes have persisted in the face of Application of the Results of the Five water snakes have been crushed under such predation both historically and Factor Analysis to the Recovery Plan’s stones at the water’s edge by people during the last 20 years during periods Criteria walking on the banks and shot by small of dam construction and drought. Thus, caliber firearms, and fishermen have we believe that mortality from predation The 1993 Recovery Plan described commented on their success in is not likely to cause them to become maintenance of adequate instream flows removing the ‘‘water moccasins’’ from threatened or endangered in the (Recovery Criterion 1) to maintain both the river (Forstner et al. 2006, pp. 18– foreseeable future. the quantity and quality of Concho 19). At one of the historically most water snake habitat so that occupied productive localities for Brazos water D. The Inadequacy of Existing habitat would continue to support snakes (a closely related species Regulatory Mechanisms viable populations of the species. At the occurring in an adjacent drainage), Due to the Texas Clean Rivers time the recovery plan was completed, Forstner et al. (2006, p. 18) found no program, other Texas water law adequate instream flow rates were based snakes in 2 years of searching. They requirements, and the 2008 MOU on the constituent elements identified noted dozens to hundreds of campers at between the Fish and Wildlife Service in the 1989 critical habitat designation the site each year. According to Dixon and the ASACE, both discussed earlier (54 FR 27382) and the reasonable and (2006, p. 2), there is not as much under Factor A, we believe that prudent alternatives identified in the

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1986 Biological Opinion for the water snake (including snake abundance prescribed the movement of four snakes construction of O.H. Ivie Reservior. and reproductive success). This was (two of each sex) every five years in a However, those requirements changed further confirmed by the Fortner et al. specific pattern above and below Ivie as the following new information 2006 report. Reservoir (Recovery Criterion 3). The became available: In order to maintain riverine habitats 2004 Biological Opinion discussed (1) Lower flow rates support the snake in the Colorado River, we entered into population fragmentation (Service 2004, population; a MOU in 2008 to ensure that the p. 52) and changed the specific (2) Information on the snake’s habitat District will operate Colorado River requirement for snake movements to indicates that they are more of a reservoirs to provide adequate instream five male water snakes above and below generalist and do not depend on the flows if the species were delisted, both the Robert Lee and Freese Dams previously accepted narrow habitat consistent with the 2004 Biological once every three years. The Service requirements; and Opinion (see Factor A section above for believes that these movements are (3) Adequate flow to maintain the more information). sufficient to maintain genetic snake’s habitat and the snake In addition to the MOU, the District heterogeneity between the separated population is provided by a variety of also maintains flows below Spence and populations. The 2008 MOU requires sources in addition to the flow required Ivie reservoirs to ensure water quality the same movements of snakes by the by the 2004 Biological Opinion (and and provide for downstream water District even after the species is subsequently required in a 2008 rights. Flows are mandated and releases delisted. The Service based its belief Memorandum of Understanding from Spence Reservoir are periodically and change in snake movement (MOU)). required by the State of Texas to ensure requirements on information available As discussed above, in 2004, we the quality of water entering Ivie from monitoring and capture and revised the biological opinion and Reservoir. Spence Reservoir is known to release data after the preparation of the determined that lower flow rates were be high in dissolved solids and Recovery Plan. adequate to support riverine habitat for chlorides (Service 2004, p. 6), which As a result of the new information the snake. This was based on new results in period releases of water from discussed above, it is our belief that the information from numerous studies Spence Reservoir to maintain its water Recovery Plan’s criteria for recovery of funded by the District in the 1990s that quality. The District must also ensure the species have been met. greatly added to our knowledge of the that senior water right holders are biology of the snake and its habitat. delivered specific amounts of water Significant Portion of the Range Monitoring of the snake population from Ivie Reservoir. Therefore, long Analysis indicated that the population was term low flow releases or no releases Having determined that the Concho sustained by the lesser flows required in from Spence and Ivie Reservoirs are not water snake no longer meets the the 2004 Biological Opinion (Forstner common practices unless an emergency definition of threatened or endangered, 2006, p. 12). situation occurs. we must next consider whether there It is now known that the Concho The Recovery Plan also required are any significant portions of its range water snake is more of a habitat maintaining viable populations of the that are in danger of extinction or are opportunist than originally believed snake (Recovery Criterion 2). Forstner et likely to become endangered in the (Dixon 2004). In addition to riverine al. (2006, pp. 18, 20) reviewed the past foreseeable future. On March 16, 2007, habitat, the snake is known to use areas population data collected on the snake a formal opinion was issued by the above and below low head dams, pools as well as conducted field surveys in Solicitor of the Department of the created by the dams, man-made lakes, 2005 and 2006. Based on the snakes’ Interior, ‘‘The Meaning of ‘In Danger of naturally occurring pools in the river, persistence and reproduction Extinction Throughout All or a and tributaries, as Concho water snake throughout its range Forstner et al. Significant Portion of Its Range’’’ (U.S. has been found in Elm Creek and two (2006, pp. 18, 20) concluded that DOI 2007). We have summarized our of its tributaries. Further analysis by seemingly viable populations of Concho interpretation of that opinion and the Forstner et al. (2006, p. 16) concluded water snakes exist in all three reaches of underlying statutory language below. A that Concho water snakes can survive in the species’ range. A re-analysis of portion of a species’ range is significant habitats with lower flows than Concho water snake monitoring data if it is part of the current range of the previously thought. collected from 1987 to 1996 attempted species and is important to the While riverine habitat is important for to evaluated the population dynamics of conservation of the species because it the conservation of the snake, the need the species and assess the long-term contributes meaningfully to the to maintain continuous flows at levels viability (Whiting et al. 2008, pp. 438– representation, resiliency, or previously required were determined to 439). The results, however, were redundancy of the species. The no longer be necessary to provide inconclusive due to uncertainties in the contribution must be at a level such that adequate habitat for snakes. The flows various models used and the inability to its loss would result in a decrease in the described in the Recovery Plan and the account for snake movements from the ability to conserve the species. specific flows included in the 1989 database used in the analysis (Whiting The first step in determining whether critical habitat designation were based et al. 2008, p. 443). The study stated that a species is threatened or endangered in on the best scientific information at that snakes continued to persist even in a significant portion of its range is to time; however, subsequent information drought-prone areas with hydrologically identify any portions of the range of the provided by Forstner, Dixon, and dynamic systems (Whiting et al. 2008, species that warrant further Thornton indicated that the snake p. 443). Although we lack adequate data consideration. The range of a species survived, reproduced, and maintained on population size and viability, we can theoretically be divided into population viability with less stream have used data on range, persistence, portions in an infinite number of ways. flow. In response to that new and breeding activity as surrogates. However, there is no purpose to information, the Service required lower The Recovery Plan also discussed the analyzing portions of the range that are stream flows in the 2004 Biological movement of Concho water snakes to not reasonably likely to be significant Opinion and based that decision on the counteract adverse impacts of and threatened or endangered. To continued population viability of the population fragmentation and identify only those portions that warrant

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further consideration, we determine concentration of certain types of habitat the foreseeable future throughout all or whether there is substantial information that are necessary for the species to a significant portion of its range. We indicating that (i) The portions may be carry out its life-history functions, such believe the Concho water snake no significant and (ii) the species may be in as breeding, feeding, migration, longer requires the protection of the Act, danger of extinction there or likely to dispersal, or wintering. and, therefore, we are proposing to become so within the foreseeable future. Redundancy of populations may be remove it from the Federal List of In practice, a key part of this analysis is needed to provide a margin of safety for Endangered and Threatened Wildlife. whether the threats are geographically the species to withstand catastrophic concentrated in some way. If the threats events. This does not mean that any Effects of This Proposed Rule to the species are essentially uniform portion that provides redundancy is a If made final, this rule would revise throughout its range, no portion is likely significant portion of the range of a 50 CFR 17.11 (h) to remove the Concho to warrant further consideration. species. The idea is to conserve enough water snake from the Federal List of Moreover, if any concentration of areas of the range such that random Endangered and Threatened Wildlife. threats applies only to portions of the perturbations in the system act on only The prohibitions and conservation range that are unimportant to the a few populations. Therefore, each area measures provided by the Act, conservation of the species, such must be examined based on whether particularly through sections 7 and 9, portions will not warrant further that area provides an increment of would no longer apply to this species. consideration. redundancy that is important to the Federal agencies would no longer be If we identify any portions that conservation of the species. required to consult with us to insure warrant further consideration, we then Adequate representation insures that that any action they authorize, fund, or determine whether in fact the species is the species’ adaptive capabilities are carry out may affect the Concho water threatened or endangered in any conserved. Specifically, the portion snake. Critical habitat was designated significant portion of its range. should be evaluated to see how it for the Concho water snake on June 29, Depending on the biology of the species, contributes to the genetic diversity of 1989 (54 FR 27377). If finalized, this its range, and the threats it faces, it may the species. The loss of genetically rule would also revise 50 CFR 17.95(x) be more efficient in some cases for the based diversity may substantially to remove the critical habitat Service to address the significance reduce the ability of the species to designation. question first, and in others the status respond and adapt to future question first. Thus, if the Service environmental changes. A peripheral Regulatory Planning and Review determines that a portion of the range is population may contribute meaningfully (Executive Order 12866) not significant, the Service need not to representation if there is evidence The Office of Management and Budget determine whether the species is that it provides genetic diversity due to (OMB) has determined that this rule is threatened or endangered there; its location on the margin of the species’ not significant under Executive Order conversely, if the Service determines habitat requirements. 12866 (E.O. 12866). OMB bases its that the species is not threatened or Applying the process described above determination upon the following four endangered in a portion of its range, the for determining whether a species is criteria: Service need not determine if that threatened in a significant portion of its (a) Whether the rule will have an portion is significant. range, we next addressed whether any annual effect of $100 million or more on The terms ‘‘resiliency,’’ portions of the range of the Concho the economy or adversely affect an ‘‘redundancy,’’ and ‘‘representation’’ are water snake warranted further economic sector, productivity, jobs, the intended to be indicators of the consideration. We concluded through environment, or other units of the conservation value of portions of the the five-factor analysis, in particular government. range. Resiliency of a species allows the Factor A that the existing or potential (b) Whether the rule will create species to recover from periodic threats are consistent throughout its inconsistencies with other Federal disturbance. A species will likely be range, and there is no portion of the agencies’ actions. more resilient if large populations exist range where one or more threats is (c) Whether the rule will materially in high-quality habitat that is geographically concentrated. We believe affect entitlements, grants, user fees, distributed throughout the range of the that there are no small geographic areas loan programs, or the rights and species in such a way as to capture the where localized threats still exist. obligations of their recipients. environmental variability within the Because the low level of threats to the (d) Whether the rule raises novel legal range of the species. It is likely that the species is essentially uniform or policy issues. larger size of a population will help throughout its range, no portion Post-Delisting Monitoring contribute to the viability of the species. warrants further consideration. Thus, a portion of the range of a species In summary, Concho water snakes can Section 4(g)(1) of the Act requires the may make a meaningful contribution to survive lower flows than previously Service to implement a system, in the resiliency of the species if the area thought necessary for their survival; cooperation with the States, to monitor is relatively large and contains mandated flows and downstream senior for not less than 5 years the status of all particularly high-quality habitat or if its water rights virtually assure species that have recovered and been location or characteristics make it less maintenance of instream flows; viable removed from the lists of threatened and susceptible to certain threats than other populations of Concho water snakes endangered wildlife and plants (50 CFR portions of the range. When evaluating exist in all three reaches of the species’ 17.11, 17.12). The purpose of this post- whether or how a portion of the range range. Based on the snake’s use of delisting monitoring (PDM) is to verify contributes to resiliency of the species, reservoirs, persistence, reproduction, that the species remains secure from it may help to evaluate the historical and viability throughout its range, we risk of extinction after it has been value of the portion and how frequently have determined that none of the removed from the protections of the Act. the portion is used by the species. In existing or potential threats, either alone We are to make prompt use of the addition, the portion may contribute to or in combination with others, are likely emergency listing authorities under resiliency for other reasons—for to cause the Concho water snake to section 4(b)(7) of the Act to prevent a instance, it may contain an important become in danger of extinction within significant risk to the well being of any

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recovered species. Section 4(g) of the Clarity of the Rule pursuant to section 4(a) of the Act. We Act explicitly requires cooperation with published a notice outlining our reasons Executive Order 12866 requires each the States in development and for this determination in the Federal agency to write regulations that are easy implementation of PDM programs, but Register on October 25, 1983 (48 FR to understand. We invite your we remain responsible for compliance 49244). comments on how to make this with section 4(g) and, therefore, must proposed rule easier to understand, References Cited remain actively engaged in all phases of including answers to questions such as PDM. We also seek active participation A complete list of all references cited the following: (1) Are the requirements of other entities that are expected to herein is available upon request from in this proposed rule clearly stated? (2) assume responsibilities for the species’ the U.S. Fish and Wildlife Service, Does the proposed rule contain conservation, post-delisting. Austin Ecological Services Field Office technical language or jargon that (see FOR FURTHER INFORMATION CONTACT). The Service is developing a draft PDM interferes with the clarity? (3) Does the plan in cooperation with the District format of the proposed rule (grouping Authors and Texas Parks and Wildlife and order of sections, use of headings, The primary authors of this document Department. We intend to publish a paragraphing, etc.) aid or reduce its notice of availability of the draft plan in are staff located at the Austin Ecological clarity? (4) Would the rule be easier to FOR FURTHER the Federal Register, and solicit public Services Field Office (see understand if it were divided into more INFORMATION CONTACT). comments on that plan, prior to (but shorter) sections? (5) Is the finalizing this proposed rule. All public description of the proposed rule in the List of Subjects in 50 CFR Part 17 comments on the draft PDM will be ‘‘Supplementary Information’’ section of Endangered and threatened species, considered and incorporated into the the preamble helpful in understanding Exports, Imports, Reporting and final PDM plan as appropriate. The final the document? (6) What else could we recordkeeping requirements, and PDM plan and any future revisions will do to make the proposed rule easier to Transportation. be posted on our Endangered Species understand? Send a copy of any written Program’s national Web page (http:// comments about how we could make Proposed Regulation Promulgation endangered.fws.gov) and on the Austin this rule easier to understand to: Office Accordingly, we propose to amend Ecological Services Field Office Web of Regulatory Affairs, Department of the part 17, subchapter B of chapter I, title page (http://www.fws.gov/southwest/es/ Interior, Room 7229, 1849 C Street, NW, 50 of the Code of Federal Regulations, AustinTexas/). Washington, DC 20240. You also may e- as set forth below: Peer Review mail the comments to this address: [email protected]. PART 17—[AMENDED] In accordance with our joint policy Paperwork Reduction Act published in the Federal Register on 1. The authority citation for part 17 July 1, 1994 (59 FR 34270), we will seek This rule does not contain any new continues to read as follows: the expert opinions of at least three collections of information that require Authority: 16 U.S.C. 1361–1407; 16 U.S.C. appropriate and independent specialists approval by OMB under the Paperwork 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– regarding this proposed rule. The Reduction Act. This rule will not 625, 100 Stat. 3500; unless otherwise noted. purpose of such review is to ensure that impose recordkeeping or reporting § 17.11 [Amended] our proposed rule is based on requirements on State or local 2. Section 17.11(h) is amended by scientifically sound data, assumptions, governments, individuals, businesses, or removing the entry ‘‘Snake, Concho and analyses. We will send peer organizations. An agency may not water’’ under ‘‘REPTILES’’ from the List reviewers copies of this proposed rule conduct or sponsor, and a person is not of Endangered and Threatened Wildlife. immediately following publication in required to respond to, a collection of the Federal Register and will invite information unless it displays a § 17.95 [Amended] them to comment, during the public currently valid OMB control number. 3. Amend section 17.95(c) by comment period, on the specific National Environmental Policy Act removing the critical habitat entry for assumptions and conclusions regarding ‘‘Concho water snake, Nerodia the proposal to delist the Concho water We have determined that an paucimaculata.’’ snake. We will consider all comments Environmental Assessment or an and information received during the Environmental Impact Statement, as Dated: June 26, 2008. comment period on this proposed rule defined under the authority of the H. Dale Hall, during preparation of a final National Environmental Policy Act of Director, U.S. Fish and Wildlife Service. rulemaking. Accordingly, the final 1969, need not be prepared in [FR Doc. E8–15133 Filed 7–7–08; 8:45 am] decision may differ from this proposal. connection with regulations adopted BILLING CODE 4310–55–P

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Notices Federal Register Vol. 73, No. 131

Tuesday, July 8, 2008

This section of the FEDERAL REGISTER audio bridge may verbally join the In establishing the voluntary labeling contains documents other than rules or ‘‘Question and answer’’ portion of the program, USDA is seeking information proposed rules that are applicable to the meeting, by pressing *1 on a touch-tone from interested stakeholders in the public. Notices of hearings and investigations, telephone or by e-mailing questions or following areas: committee meetings, agency decisions and comments during the meeting to 1. Who can apply for the label. rulings, delegations of authority, filing of petitions and applications and agency [email protected]. USDA is considering allowing both statements of organization and functions are Written comments may be submitted manufacturers and vendors of biobased examples of documents appearing in this through Friday, August 1, 2008, to products to apply for use of the label for section. [email protected]. Copies of the their products. USDA is interested in meeting agenda may be viewed at http:// comments on whether it is appropriate greening.usda.gov or by contacting Mrs. to include vendors as an entity eligible DEPARTMENT OF AGRICULTURE Shana Love at the postal address, e-mail to apply the label, as some of the address, or phone listed below. requirements associated with approval Departmental Administration; Public FOR FURTHER INFORMATION CONTACT: Mrs. for use of the label will require Hearing on BioPreferred Voluntary information generally only available to Labeling Program Shana Love, Departmental Administration, Room 209–A, Whitten the manufacturer. However, vendors AGENCY: Departmental Administration, Building, 1400 Independence Avenue, may have more incentive to sell USDA. SW., Washington, DC 20250–0103; products carrying the label than the ACTION: Notice of public hearing. telephone (202) 205–4008; fax (202) product manufacturer. USDA thus 720–2191; e-mail believes allowing vendors to apply for SUMMARY: The Department of [email protected]. the label could further promote Agriculture (USDA) will hold a public biobased products. meeting for interested stakeholders to SUPPLEMENTARY INFORMATION: Section 2. Applicable minimum biobased provide an open forum to solicit 9002 of the Farm Security and Rural contents required for products to receive feedback on the establishment of the Investment Act of 2002 (FSRIA) (Pub. L. label certification. BioPreferred voluntary labeling 107–171) established a program for the USDA is considering allowing program. This program will allow USDA procurement of biobased products by labeling for three categories of products: to authorize manufacturers and vendors Federal agencies and a voluntary (a) Products within one or more of qualifying biobased products to use a program for labeling of biobased designated biobased items within the ‘‘USDA Certified Biobased Product’’ products. USDA refers to the program BioPreferred Program; (b) products label. for the Federal procurement of biobased within non-designated items that are not DATES: The public hearing will be held products and the voluntary program for mature market products; and (c) on Tuesday, July 22, 2008, from 1 p.m. labeling of biobased products, products not eligible for designation to approximately 5 p.m. collectively, as the BioPreferred because of market maturity. For the Program. The Food, Conservation, and ADDRESSES: The meeting will take place latter two categories, where no Energy Act of 2008 (Pub. L. 110–246) at the U.S. Department of Agriculture, minimum content has previously been continues and expands provisions South Building, Jefferson Auditorium, designated, USDA is considering related to the BioPreferred Program. 1400 Independence Avenue, SW., requiring a 50 percent minimum Washington, DC 20250. Under the voluntary labeling program, biobased content for use of the label. Pre-registration for this meeting is not the Department will authorize USDA is also considering a process to required. However, for security manufacturers and vendors of biobased allow a manufacturer, vendor, or trade purposes and to facilitate a smooth products to use the label ‘‘USDA association to seek an ‘‘alternative entry into a Federal facility, attendees Certified Biobased Product.’’ In minimum biobased content’’ for may provide their names in advance as establishing the voluntary labeling products within categories (b) and (c) spelled on government issued program, USDA must identify criteria above, if they believe that the 50 percent identification via e-mail to for determining which products may minimum biobased content is not [email protected]. Additionally, qualify to receive the label and specific appropriate for their product(s). As part attendees are encouraged to gain entry requirements for how the label can be of seeking the alternative content levels, into the building at Wing 7 on the used. certain analysis and information, such corner of 14th Street and Independence USDA has one primary objective in as identifying similar biobased products Avenue, SW., and will be required to establishing the voluntary labeling and their manufacturers, would likely present government issued program: To encourage the purchase of be required. While the specific analysis identification. biobased products. USDA believes that required will be determined on a case- Those unable to attend the public products carrying the label will become by-case basis, USDA anticipates that meeting in person may participate via readily recognizable as biobased each analysis will be similar to the an audio bridge by calling 1 (800) 857– products, distinct from those that do not process USDA uses to set minimum 5233, verbal pass code ‘‘Town Hall.’’ carry the label. Further, as the program biobased contents under the preferred For technical assistance, call (202) 720– matures and the label is used over time, procurement program. 8560. All callers using the above pass consumers will recognize that products The public meeting discussion in part code will be placed in ‘‘listen-only’’ carrying the label meet certain criteria will address (a) the 50 percent mode during the presentation of that set them apart from other biobased applicable minimum biobased contents information. Participants using the products. that products within these two

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categories must meet in order to be requiring additional information on the DEPARTMENT OF AGRICULTURE eligible for use of the label and (b) the label. For example, information on procedure under which an applicant product performance and/or on the life- Forest Service can request alternative applicable cycle costs and environmental and minimum biobased content (that is, an human health effects of the labeled Southwestern Region, Arizona, New applicable minimum biobased content products (as determined by the BEES or Mexico, West Texas and Oklahoma: other than 50 percent). ASTM analyses). The primary advantage Proposed Surface Management of 3. Testing procedures. of providing additional information on Natural Gas Resource Development on USDA is seeking comment on where the label is to further educate Jicarilla Ranger District, Carson required testing procedures for purchasers about the environmental and National Forest, Rio Arriba County, determining and validating biobased NM; Additional Filings content and the life-cycle costs and health attributes of the biobased products they choose to purchase. environmental and human health effects AGENCY: Forest Service, USDA. of the labeled products [as determined However, because the results of the by the Building Environmental and BEES and ASTM analyses are not ACTION: Notice; correction. Economic Sustainability (BEES) or available for non-labeled products and American Society for Testing and because they are only comparable SUMMARY: The USDA Forest Service Materials (ASTM) analyses] are between products within the same published a notice of intent (69 FR performed. USDA is considering designated item or grouping of products, 59881–59883, October 6, 2004) to permitting these tests to be performed the labels could be misleading to prepare an environmental impact by either a qualified third-party testing purchasers. Also, the amount of space statement (EIS) for a proposed forest entity or by the manufacturer or vendor that would be needed for a legible plan amendment for surface whose testing facilities are ASTM or presentation of this information could management of gas leasing and International Organization for be a serious drawback for many small development on the Jicarilla Ranger Standardization (ISO) compliant. products (for example, household District, Carson National Forest. In Additionally, USDA is considering cleaners, hair care products, lip care addition, the proposal includes a leasing requiring that if the manufacturer or products). analysis for unleased acres on the vendor chose to perform the tests that Jicarilla Ranger District. they be practitioners certified by a The public meeting in part will professional body, such as the American address the value of providing The Environmental Protection Agency Center for Lifecycle Analysis. additional information on the label, (EPA) published a notice of availability 4. Label content. what types of information should be (NOA) for the draft EIS in the Federal USDA is seeking comment on what included, and how it should be Register on February 16, 2007 (72 FR information should be included on the presented. Consideration should also be 54900). The end of the comment period label, such as a statement identifying given to the fact that some of this presented in the NOA was incorrect and the biobased content of the product, additional information may be made subsequently rectified in an amended whether the label applies to the product, available on the BioPreferred Program notice (72 FR 9521, March 2, 2007). its packaging, or both, and use of the Web site. word ‘‘BioPreferred’’ in the label. A corrected notice of intent was a. Biobased Content. USDA is d. Identifying products that are also published in the Federal Register on considering requiring that the biobased eligible for preferred procurement under May 15, 2007 (72 FR 27282) changing content of the product be included on the BioPreferred Program. USDA is the estimated filing date for the final EIS the label. USDA believes that including proposing to include the word from early summer 2005 to fall 2007. the biobased content of the product on ‘‘BioPreferred’’ on the label to identify Revised Dates: This notice changes the label will provide all consumers and those labeled products that are also the estimated filing date for the final EIS purchasers of biobased products eligible for preferred procurement under from fall 2007 to mid-late summer additional information that will further the BioPreferred Program. USDA is September 2008. When completed, EPA the purchase of such products. seeking comments on other options that will publish a NOA of the final EIS in b. Biobased Product Statement. It may can be used to identify products that are the Federal Register. also be important to identify for the also eligible for preferred procurement Corrected Unleased Acres: The draft consumer that the label applies to either under the BioPreferred Program. For EIS included a leasing analysis for the product or the packaging or both. example, one alternative USDA approximately 3,800 unleased acres on Therefore, USDA is considering that the considered was requiring the use of a the Jicarilla Ranger District. This notice label include the appropriate biobased separate label that would simply say corrects the number of unleased acres product statement(s) to make this clear. ‘‘BioPreferred.’’ Another alternative USDA is seeking comment on whether analyzed in the final EIS to USDA considered was to require approximately 5,000 acres. the biobased product statement or manufacturers to indicate in the similar statements are needed. USDA is product’s literature that the product is Change in Responsible Official: In considering that the biobased product eligible for preferred procurement under addition, this notice changes the official statement be integrated into the actual the BioPreferred Program rather than responsible for the EIS and subsequent label that would be applied to the record of decision from Forest product or its packaging. USDA is also requiring such information on the label itself. Supervisor Martin D. Chavez, Jr. to seeking comment and suggestion on Acting Forest Supervisor Erin Connelly, how to clearly demonstrate the Dated: July 1, 2008. Carson National Forest. applicability of the label on the product, Boyd K. Rutherford, FOR FURTHER INFORMATION CONTACT: packaging, or in some other fashion. Assistant Secretary for Administration. c. Other possible label content. USDA Audrey Kuykendall, Forest [FR Doc. E8–15411 Filed 7–7–08; 8:45 am] in also considering the possible Environmental Coordinator, Carson advantages and disadvantages of BILLING CODE 3410–93–P National Forest, at (575) 758–6212.

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Dated: June 30, 2008. ADDRESS: All meetings will be held at • Public Rights-of-Way Ad Hoc Erin Connelly, The Westin Arlington Gateway Hotel, Committee Report. Acting Forest Supervisor, Carson National 801 North Glebe Road, Arlington, VA • Airport Terminal Access Ad Hoc Forest. 22203. Committee Report. • [FR Doc. E8–15463 Filed 7–7–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: For Accessible Design in Education Ad BILLING CODE 3410–11–P further information regarding the Hoc Committee Report. • meetings, please contact Lawrence W. Election Assistance Commission Roffee, Executive Director, (202) 272– Report. ARCHITECTURAL AND 0001 (voice) and (202) 272–0082 (TTY). All meetings are accessible to persons TRANSPORTATION BARRIERS SUPPLEMENTARY INFORMATION: The with disabilities. An assistive listening COMPLIANCE BOARD Access Board will hold a public system, computer assisted real-time information meeting on beach access transcription (CART), and sign language Meetings routes to gather additional information interpreters will be available at the Board meetings. Persons attending AGENCY: Architectural and to assist in developing final accessibility guidelines. The meeting will consist of Board meetings are requested to refrain Transportation Barriers Compliance from using perfume, cologne, and other Board. short presentations and interactive discussions with state and Federal fragrances for the comfort of other ACTION: Notice of meetings. representatives, advocates, participants. SUMMARY: The Architectural and environmentalists, and manufacturers of Lawrence W. Roffee, Transportation Barriers Compliance beach access products. In particular, the Executive Director. Board seeks input on the location of Board (Access Board) plans to hold a [FR Doc. E8–15383 Filed 7–7–08; 8:45 am] beach access routes, their distance, public information meeting on beach BILLING CODE 8150–01–P access routes during its regularly endpoints, coverage area, and scheduled July meeting of the Board. frequency, as well as information on The regular business meetings shall take factors or conditions that may impact DEPARTMENT OF COMMERCE place in Arlington, Virginia, Monday compliance. For additional information regarding this public information through Wednesday, July 21–23, 2008, Economic Development Administration at the times and location noted below. meeting, please contact Bill Botten, Accessibility Specialist, (202) 272–0014 DATES: The schedule of events is as Notice of Petitions by Firms for (voice); (202) 272–0082 (TTY); or by e- follows: Determination of Eligibility To Apply mail: [email protected]. for Trade Adjustment Assistance Monday, July 21, 2008 At the Board meeting, the Access Board will consider the following 10–Noon Planning and Evaluation AGENCY: Economic Development agenda items: Administration, Department of Committee. • Approval of the draft April 2008 Noon–1:30 p.m. Presentation on Air Commerce. Board Meeting Minutes. ACTION: Carrier Access Act Regulations. • ADA/ABA Accessibility Notice and Opportunity for 1:30–2:30 Technical Programs Guidelines; Federal Agency Updates. Public Comment. Committee. • Planning and Evaluation Committee Pursuant to section 251 of the Trade 2:30–4 Budget Committee. Report. 4–5:30 Presentation on Architectural • Act of 1974 (19 U.S.C. 2341 et seq.), the Technical Programs Committee Economic Development Administration Barriers Act Complaint Process. Report. • (EDA) has received petitions for Tuesday, July 22, 2008 Budget Committee Report. • Executive Committee Report. certification of eligibility to apply for 10–5 Ad Hoc Committee Meetings • Telecommunications and Electronic Trade Adjustment Assistance from the (Closed to Public). and Information Technology Ad Hoc firms listed below. EDA has initiated separate investigations to determine Wednesday, July 23, 2008 Committee Report. • Transportation Vehicles Ad Hoc whether increased imports into the 9–Noon Information Meeting on Beach Committee Report. United States of articles like or directly Access Routes. • Outdoor Developed Areas Ad Hoc competitive with those produced by Noon–1:30 p.m. Presentation on Committee Report. each firm contributed importantly to the Airport Common Use Self-Service • Passenger Vessels Ad Hoc total or partial separation of the firm’s Machines. Committee Report. workers, or threat thereof, and to a 1:30–2:30 Executive Committee. • Emergency Transportable Housing decrease in sales or production of each 2:30–3:30 Board Meeting. Ad Hoc Committee Report. petitioning firm.

LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT [6/1/08 through 6/30/08]

Date accepted Firm Address for filing Products

Pacific Die Casting Corpora- 5712 NW Fruit Valley Rd., 6/16/2008 Aluminum and zinc castings. Also provides the following tion. Vancouver, WA 98660. services: Machining, plating, painting. H.J. Bergeron Pecan Shelling 1003 False River Rd., New 6/23/2008 Processor of pecans for human consumption. Plant, LLC. Roads, LA 70760. Metalworks Worldwide Inc ..... 3180 Berea Rd., Cleveland, 6/24/2008 Stamped parts of steel and aluminum. OH 44111. Wesco Machine Products, Inc S84 W18569 Enterprise, 6/24/2008 The company is a manufacturer of precision machined Muskego, WI 53150–. metal parts.

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LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT— Continued [6/1/08 through 6/30/08]

Date accepted Firm Address for filing Products

E.J. Basler Co ...... 9511 West Ainslie Street, 6/2/2008 The company is a high tolerance manufacturer of machined Schiller Park, IL 60176. metal parts and fittings. Miles Enterprises, Inc ...... 400–A Arundel Corporation, 6/2/2008 Manufacture custom cabinetry and millwork. Glen Burnie, MD 21060–. Blitz Manufacturing Co. of In- 263 America Pl, Jefferson- 6/9/2008 Polishing clothes for metal and jewelry (cotton). diana. ville, IN 47130. Perras Lumber, Inc ...... 45 Perras Road, Groveton, 6/9/2008 Perras Lumber produces board, ties, cants, grade lumber, NH 03582. pallet stock, pallets, wood chips. Robbins Lumber, Inc ...... PO Box 9, Searsmont, ME 6/3/2008 Articles produced by Robbins Lumber include fingerjoint 04973. blocks, glued panels, saddle racks. Z Becky Brown, Inc ...... 18 Tallawood Lane, Elgin, SC 6/4/2008 The company manufactures and markets a lady’s handbag 29045. that is injection molded. Western Technology Services PO Box 2974, Casper, WY 6/3/2008 Manufacturer of truck bodies for special purpose vehicles 82602. for mining and construction. Precision Source ...... 40 Maple Avenue, Esmond, 6/3/2008 Precision Source manufactures precision parts and quality RI 02917. turned components for Davenports, CNC. Best Metal Fabricators, Inc .... 3332 West Flower Street, 6/10/2008 Best Metal Fabricators, Inc. specializes in precision machin- Phoenix, AZ 85017. ing and sheet metal. Standard Printed Circuits, Inc. 44 South Main Street, 6/18/2008 The company manufactures printed circuit boards from 1– Sherburn, NY 13460. 14 layers, prototype through medium production. Withers Manufacturing, Inc .... 13533 S. State Hwy 51, 6/18/2008 Custom sheet metal fabrication, machining, and assembly Coweta, OK 74429. of custom machine units.

Any party having a substantial A. Denial of Export Privileges of Reza part, that ‘‘[t]he Director of Exporter interest in these proceedings may Mohammed Tabib Services, in consultation with the request a public hearing on the matter. On May 8, 2007, in the U.S. District Director of the Office of Export A written request for a hearing must be Court for the Central District of Enforcement, may deny export submitted to the Office of Performance California, Reza Mohammed Tabib, a/k/ privileges of any person who has been Evaluation, Room 7009, Economic a Re Tabib and a/k/a Reza Tabib convicted of a violation of * * * Development Administration, U.S. (‘‘Tabib’’ or ‘‘Reza Tabib’’) following a IEEPA,’’ for a period not to exceed 10 Department of Commerce, Washington, plea of guilty, was convicted of violating years from the date of conviction. 15 DC 20230, no later than ten (10) the International Emergency Economic CFR 766.25(a) and (d). In addition, calendar days following publication of Powers Act (50 U.S.C. 1701–1706 Section 750.8 of the Regulations states this notice. Please follow the procedures (2000)) (‘‘IEEPA’’). Tabib pled guilty to that BIS’s Office of Exporter Services set forth in section 315.9 of EDA’s final willfully attempting to export and may revoke any BIS licenses previously rule (71 FR 56704) for procedures for transship from the United States to Iran issued in which the person had an requesting a public hearing. The Catalog aircraft parts, including approximately interest at the time of his conviction. of Federal Domestic Assistance official three F–14 maintenance kits, without I have received notice of Tabib’s program number and title of the obtaining from the U.S. Department of conviction for violating the IEEPA, and program under which these petitions are the Treasury, Office of Foreign Assets have provided notice and an submitted is 11.313, Trade Adjustment Control, a license or written opportunity for Tabib to make a written Assistance. authorization for such export and submission to the Bureau of Industry Dated: June 30, 2008. transshipment. Tabib was sentenced to and Security as provided in Section William P. Kittredge, 24 months of imprisonment followed by 766.25 of the Regulations. Having Program Officer for TAA. three years of supervised release. received no submission from Tabib and, Section 11(h) of the Export following consultations with the Office [FR Doc. E8–15419 Filed 7–7–08; 8:45 am] Administration Act of 1979, as amended of Export Enforcement, including its BILLING CODE 3510–24–P (currently codified at 50 U.S.C. app. Director, I have decided to deny Tabib’s 2401–2420 (2000)) (the ‘‘Act’’) 1 and export privileges under the Regulations DEPARTMENT OF COMMERCE Section 766.25 of the Export for a period of five years from the date Administration Regulations (the of Tabib’s conviction. I have also Bureau of Industry and Security ‘‘Regulations’’),2 provide, in pertinent decided to revoke all licenses issued pursuant to the Act or Regulations in Action Affecting Export Privileges; 1 50 U.S.C. app. 2401–2420. Since August 21, which Tabib had an interest at the time Reza Mohammed Tabib and Terri 2001, the Act has been in lapse and the Preident, of his conviction. Tabib; Order Denying Export Privileges through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as extended by the B. Denial of Export Privileges of Related In the Matter of: Reza Mohammed Tabib, Notice of August 15, 2007 (72 FR 46137, Aug. 16, Person 2007), has continued the Regulations in effect under a/k/a Reza Tabib or a/ka Re Tabib, 31848 Via the International Emergency Economic Powers Act Pursuant to Sections 766.25(h) and Del Paso, Winchester, CA 92596, (50 U.S.C. 1701–1706 (2000)) (‘‘IEEPA’’). Respondent; Tern Tabib, a/k/a Tern Repic, 2 The Regulations are currently codified in the 766.23 of the Regulations, the Director 31848 Via Del Paso, Winchester, CA 92596, Code of Federal Regulations at 15 CFR Parts 730– of BIS’s Office of Exporter Services, in Related Person. 774 (2008). consultation with the Director of BIS’s

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Office of Export Enforcement, may take participate in any way in any exported from the United States. For action to name persons related to a transaction involving any commodity, purposes of this paragraph, servicing Respondent by ownership, control, software or technology (hereinafter means installation, maintenance, repair, position of responsibility, affiliation, or collectively referred to as ‘‘item’’) modification or testing. other connection in the conduct of trade exported or to be exported from the III. In addition to the Related Person or business in order to prevent evasion United States that is subject to the named above, after notice and of a denial order. Tern Tabib, a/k/a Tern Regulations, or in any other activity opportunity for comment as provided in Repic is Reza Tabib’s wife and business subject to the Regulations, including, section 76623 of the Regulations, any partner. Tern Tabib pled guilty to but not limited to: other person, firm, corporation, or violating 18 U.S.C. 1001 in connection A. Applying for, obtaining, or using business organization related to the with the attempted export by Reza Tabib any license, License Exception, or Denied Person by affiliation, ownership, of F–14 aircraft parts to Iran, specifically export control document; control, or position of responsibility in for willfully failing to file the Shipper’s B. Carrying on negotiations the conduct of trade or related services Export Declaration required for the concerning, or ordering, buying, may also be made subject to the export, and was placed on probation for receiving, using, selling, delivering, provisions of this Order if necessary to two years. Tern Tabib is related to Reza storing, disposing of, forwarding, prevent evasion of the Order. Tabib by ownership, control, position of transporting, financing, or otherwise IV. This Order does not prohibit any responsibility, affiliation, or other servicing in any way, any transaction export, reexport, or other transaction connection in the conduct of trade or involving any item exported or to be subject to the Regulations where the business. BIS believes that naming Tern exported from the United States that is only items involved that are subject to Tabib as a person related to Reza Tabib subject to the Regulations, or in any the Regulations are the foreign produced is necessary to avoid evasion of the other activity subject to the Regulations; direct product of U.S.-origin technology. denial order against Reza Tabib. or V. This Order is effective immediately As provided in Section 766.23 of the C. Benefitting in any way from any and shall remain in effect until May 8, Regulations, I gave notice to Tern Tabib transaction involving any item exported 2012. that her export privileges under the or to be exported from the United States VI. In accordance with Part 756 of the Regulations could be denied for up to 10 that is subject to the Regulations, or in Regulations, Reza Tabib may file an years due to her relationship with Reza any other activity subject to the appeal of this Order with the Under Tabib and that BIS believes naming her Regulations. Secretary of Commerce for Industry and as a person related to Reza Tabib would II. No person may, directly or Security. The appeal must be filed be necessary to prevent evasion of a indirectly, do any of the following: within 45 days from the date of this A. Export or reexport to or on behalf denial order imposed against Reza Order and must comply with the of the Persons Subject To This Order Tabib. In providing such notice, I gave provisions of Part 756 of the Tern Tabib an opportunity to oppose any item subject to the Regulations; B. Take any action that facilitates the Regulations. her addition to the Reza Tabib Denial VII. In accordance with Part 756 of the Order as a related party. Having acquisition or attempted acquisition by the Persons Subject To This Order of the Regulations, the Related Person may received no submission from Tern also file an appeal of this Order with the Tabib, I have decided, following ownership, possession, or control of any item subject to the Regulations that has Under Secretary of Commerce for consultations with the Office of Export Industry and Security. Enforcement, including its Director, to been or will be exported from the VIII. A copy of this Order shall be name Tern Tabib as a Related Person to United States, including financing or delivered to the Denied Person and the the Reza Tabib Denial Order, thereby other support activities related to a Related Person. This Order shall be denying her export privileges for five transaction whereby the Persons Subject published in the Federal Register. years from the date of Reza Tabib’s To This Order acquires or attempts to conviction. acquire such ownership, possession or Dated: June 23, 2008. I have also decided to revoke all control; Eileen M. Albanese, licenses issued pursuant to the Act or C. Take any action to acquire from or Director, Office of Exporter Services. Regulations in which the Related Person to facilitate the acquisition or attempted [FR Doc. E8–15306 Filed 7–7–08; 8:45 am] had an interest at the time of Reza acquisition from the Persons Subject To BILLING CODE 3510–DT–M Tabib’s conviction. The five-year denial This Order of any item subject to the period will end on May 8, 2012. Regulations that has been exported from Accordingly, it is hereby ordered: the United States; DEPARTMENT OF COMMERCE I. Until May 8, 2012, Reza Mohammed D. Obtain from the Persons Subject To Tabib, a/k/a Re Tabib and a/k/a Reza This Order in the United States any item International Trade Administration Tabib, 31848 Via Del Paso, Winchester, subject to the Regulations with A–583–816 CA 92596, when acting for or on behalf knowledge or reason to know that the of Tabib, his representatives, assigns, item will be, or is intended to be, Certain Stainless Steel Butt–Weld Pipe agents or employees, (‘‘the Denied exported from the United States; or Fittings from Taiwan: Preliminary Person’’) and the following person E. Engage in any transaction to service Results of Antidumping Duty related to the Denied Person as defined any item subject to the Regulations that Administrative Review and Notice of by Section 766.23 of the Regulations: has been or will be exported from the Intent to Rescind in Part Tern Tabib, a/k/a Tern Repic, 31848 Via United States and which is owned, Del Paso, Winchester, CA 92596, and possessed or controlled by the Persons AGENCY: Import Administration, when acting for or on her behalf, her Subject To This Order, or service any International Trade Administration, employees, agents or representatives, item, of whatever origin, that is owned, Department of Commerce. (‘‘the Related Person’’) (together, the possessed or controlled by the Persons SUMMARY: In response to requests from Denied Person and the Related Person Subject To This Order if such service respondent Ta Chen Stainless Pipe Co., are ‘‘Persons Subject To This Order’’) involves the use of any item subject to Ltd. (Ta Chen or respondent) and from may not, directly or indirectly, the Regulations that has been or will be Flowline Division of Markovitz

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Enterprises, Inc. (Flowline Division), 482–0195 or (202) 482–7924, through D questionnaire to Ta Chen. Ta Gerlin, Inc., Shaw Alloy Piping respectively. Chen responded to the Department’s Products, Inc., and Taylor Forge SUPPLEMENTARY INFORMATION: section A through D supplemental Stainless, Inc., (collectively, questionnaire on January 28, 2008. On petitioners), the Department of Period of Review February 4 and 5, 2008, the Department Commerce (the Department) is The POR for this administrative issued additional A through D conducting an administrative review of review is June 1, 2006, through May 31, supplemental questionnaires requesting the antidumping duty order on certain 2007. minor corrections and additional stainless steel butt–weld pipe fittings information to respondent’s January 28, Background (SSBWPFs) from Taiwan. Petitioners 2008 submission. On February 7, 2008, requested that the Department conduct On June 16, 1993, the Department respondent submitted the information an administrative review of Ta Chen, published in the Federal Register the requested by the Department in its Liang Feng Stainless Steel Fitting Co., antidumping duty order on SSBWPFs February 4 and 5, 2008, supplemental Ltd. (Liang Feng), Tru–Flow Industrial from Taiwan. See Amended Final questionnaires. On February 28, 2008, Co., Ltd. (Tru–Flow), Censor Determination and Antidumping Duty and March 6, 2008, the Department International Corporation (Censor), and Order: Certain Stainless Steel Butt– PFP Taiwan Co., Ltd. (PFP). issued additional supplemental Weld Pipe Fittings from Taiwan, 58 FR questionnaires. With regard to Ta Chen, the 33250 (June 16, 1993). On June 1, 2007, Department preliminarily determines the Department published a notice of On March 7, 2008, the Department that sales of SSBWPFs from Taiwan opportunity to request administrative extended the time limit for the have been sold in the United States at review for the period June 1, 2006, preliminary results of this less than fair value (LTFV), as provided through May 31, 2007. See Antidumping administrative review by 120 days, to in section 733(b) of the Tariff Act of or Countervailing Duty Order, Finding, not later than June 30, 2007. See Certain 1930, as amended (the Act). or Suspended Investigation; Stainless Steel Butt–Weld Pipe Fittings On September 10, 2007, Tru–Flow, Opportunity to Request Administrative from Taiwan: Notice of Extension of Liang Feng, Censor, and PFP certified Review, 72 FR 30542 (June 1, 2007). Time Limit for Preliminary Results in that they had no sales or shipments of In accordance with 19 CFR Antidumping Duty Administrative subject merchandise to the United 351.213(b)(1) and (2), on June 28, 2007, Review, 73 FR 12375 (March 7, 2008). States during the period of review petitioners requested an antidumping Ta Chen submitted a response to the duty administrative review for Ta Chen, (POR). Based on Tru–Flow’s, Liang Department’s February 28, 2008, Liang Feng, Tru–Flow, Censor, and PFP. Feng’s, Censor’s, and PFP’s certified questionnaire on March 13, 2008. In On June 28, 2007, Ta Chen requested an statements, information from U.S. addition, on March 13, 2008, Customs and Border Protection (CBP) administrative review in accordance respondent submitted a response to indicating that these companies had no with 19 CFR 351.213(b)(1) and (2). On petitioners’ affiliation allegations made shipments to the United States of the July 26, 2007, the Department published subject merchandise during the POR, the notice of initiation of this on October 10, 2007. This submission and the Department’s verification of administrative review. See Initiation of was rejected by the Department on Liang Feng (as explained below), we Antidumping and Countervailing Duty March 27, 2008, for being untimely hereby give notice that we intend to Administrative Reviews and Request for filed. See Memorandum to the File from rescind the review regarding these four Revocation In Part, 72 FR 41057 (July John Drury entitled ‘‘2006–2007 companies. For a full discussion of the 26, 2007). Administrative Review of Stainless intent to rescind with respect to Liang On August 6, 2007, the Department Steel Butt–Weld Pipe Fittings from Feng, Tru–Flow, Censor, and PFP, see issued its antidumping duty Taiwan: E–mail conversation between the ‘‘Notice of Intent to Rescind in Part’’ questionnaire to Ta Chen, Liang Feng, counsel for Ta Chen and the Department section of this notice. Tru–Flow, Censor, and PFP. On of Commerce’’ dated March 27, 2008. If these preliminary results of review September 10, 2007, the Department On March 14, 2008, respondent of Ta Chen’s sales are adopted in the received statements from Liang Feng, submitted a response to the final results, we will instruct CBP to Tru–Flow, Censor, and PFP, certifying Department’s March 6, 2008 assess antidumping duties on that they had neither sales nor exports questionnaire. In addition, on March 14, appropriate entries based on the of subject SSBWPFs to the United States 2008, the Department issued its difference between the constructed during the POR. On September 11, 2007, verification agenda outlining the general export price (CEP) and the normal value Ta Chen submitted its response to procedures for the Department’s (NV). Interested parties are invited to section A of the Department’s verification of Ta Chen’s information in comment on these preliminary results. questionnaire. On September 24, 2007, Taiwan. On March 18, 2008, respondent Parties who submit comments in this Ta Chen submitted its responses to submitted a revised section D database sections B, C, and D of the Department’s proceeding are requested to submit with to the Department. On March 19, 2008, questionnaire. the argument: 1) a statement of the the Department issued an addendum to On October 10, 2007, petitioners issues, 2) a brief summary of the its March 14, 2008, verification agenda argument, and 3) a table of authorities. submitted comments regarding Ta Chen’s section A response, primarily for Ta Chen. On March 19, 2008, the EFFECTIVE DATE: July 8, 2008. regarding alleged affiliation issues. On Department issued verification agendas FOR FURTHER INFORMATION CONTACT: John October 31, 2007, petitioners submitted for Liang Feng Stainless Steel Fitting Co. Drury or Judy Lao, AD/CVD Operations, comments on Ta Chen’s section B and Ltd., and Liang Feng Enterprise, Office 7, Import Administration, C responses. On November 29, 2007, outlining the general procedures for its International Trade Administration, petitioners submitted comments verifications of those companies in U.S. Department of Commerce, 14th regarding Ta Chen’s section D response. Taiwan. On March 24, 2008, petitioners Street and Constitution Avenue, NW, On December 28, 2007, the Department submitted a letter in response to Washington, DC 20230; telephone: (202) issued a supplemental section A

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respondent’s March 14, 2008 there were no entries, exports, or sales classifiable under subheading comments.1 of the subject merchandise during the 7307.23.00 of the Harmonized Tariff The Department verified Ta Chen’s POR. See, e.g., Certain Oil Country Schedule of the United States (HTSUS). home market sales, partial U.S. sales, Tubular Goods from Mexico: Although the HTSUS subheading is and cost information as submitted on Preliminary Results of Antidumping provided for convenience and customs the record, in Tainan, Taiwan from Duty Administrative Review and Partial purposes, our written description of the March 24, 2008, through April 4, 2008. Rescission, 71 FR 27676–78 (May 12, scope of the review is dispositive. The Department verified information 2006); Stainless Steel Sheet and Strip in SSBWPFs manufactured to American regarding Liang Feng Stainless Steel Coils from Japan: Final Rescission of Society of Testing and Materials Fitting Co. Ltd., and Liang Feng Antidumping Duty Administrative specification A774 are included in the Enterprise on April 1, 2008. See Review, 71 FR 26041 (May 3, 2006). scope of this order. Verification of the Questionnaire On September 10, 2007, Liang Feng, Affiliation Responses of Ta Chen Stainless Pipe Tru–Flow, PFP, and Censor each Co., Ltd. in the Antidumping Review of submitted letters on the record Petitioners claim that Ta Chen and its Certain Stainless Steel Butt–Weld Pipe certifying that their firms had no sales, U.S. subsidiary, Ta Chen International Fittings from Taiwan (Ta Chen entries, or exports of SSBWPFs to the (TCI), have several related parties that Verification Report), June 10, 2008, and United States during the POR. To were not disclosed in its financial Verification of the Sales Questionnaire confirm their statements, the statements. Therefore, petitioners Response of Liang Feng Stainless Steel Department conducted a CBP data contend that Ta Chen’s and TCI’s Co., Ltd. in the Antidumping Review of inquiry and determined that there were financial statements (and thus its Certain Stainless Steel Butt–Weld Pipe no identifiable entries of SSBWPFs underlying accounting records) should Fittings from Taiwan (Liang Feng during the POR manufactured or not be relied upon for the purposes of Verification Report). On March 25, exported by Liang Feng, Tru–Flow, PFP these preliminary results. For the 2008, Ta Chen submitted its minor or Censor. See Memorandum to the File, preliminary results, we have determined corrections presented at verification. through Angelica Mendoza, Program that the evidence on the record does not On April 4, 2008, the Department Manager from Judy Lao, Analyst: Ta warrant a finding that the Department issued Ta Chen a verification agenda Chen Stainless Pipe Co., Ltd. No should disregard Ta Chen’s or TCI’s outlining the general procedures for Shipments Inquiry dated May 29, 2008. financial statements. verification of its sales made through its Based on the Department’s verification With respect to petitioners’ argument U.S. affiliate, Ta Chen International of Liang Feng on April 1, 2008, the that Ta Chen withheld from the (TCI). The Department verified TCI’s Department preliminarily determines Department the identities of a U.S. sales from April 14, 2008, through that Liang Feng’s certification of no significant number of companies April 17, 2008, in Long Beach, shipments is correct. See the Analysis documented as Ta Chen affiliates, but California. On April 14, 2008, Ta Chen Memorandum dated June 30, 2008, for not acknowledged as such by Ta Chen, submitted a response to petitioners’ further information. Therefore, in the Department addressed this issue in April 1, 2008, submission. On April 21, accordance with 19 CFR 351.213(d)(3), the most recently completed 2008, Ta Chen submitted its minor the Department preliminarily intends to antidumping duty administrative review corrections presented at its U.S. rescind this review with respect to for this order. See Notice of Final verification. On May 8, 2008, Ta Chen Liang Feng, Tru–Flow, PFP and Censor. Results and Final Rescission in Part of Antidumping Duty Administrative submitted corrections to its minor Scope of the Order correction presented at its U.S. Review: Certain Stainless Steel Butt– Weld Pipe Fittings From Taiwan, 73 FR verification, as requested by the The products covered by this order 1202 (January 7, 2008), and Department. are certain stainless steel butt–weld On June 12, 2008, the Department pipe fittings, whether finished or accompanying Issues and Decision received comments from petitioners unfinished, under 14 inches inside Memorandum at Comment 1, (Ta Chen regarding Ta Chen’s selling activities diameter. Certain welded stainless steel 05–06). In addressing the issues of and the Department’s findings regarding butt–weld pipe fittings are used to affiliation raised by petitioners, the Ta Chen’s selling activities in the home connect pipe sections in piping systems Department noted that on May 30, 2007, and U.S. markets. On June 18, 2008, where conditions require welded the United States Court of International Trade (CIT) issued a decision and both petitioners and respondent filed connections. The subject merchandise is remand with respect to a number of comments regarding the Department’s used where one or more of the following identical issues raised by petitioners for verification reports. On June 20, 2008, conditions is a factor in designing the the 2002–2003 administrative review of respondent filed comments in response piping system: (1) corrosion of the stainless steel butt–weld pipe fittings to petitioners’ June 12, 2008, comments. piping system will occur if material other than stainless steel is used; (2) from Taiwan. See Ta Chen Stainless Notice of Intent to Rescind Review in contamination of the material in the Steel Pipe Co., Ltd. v. United States, Part system by the system itself must be Consol. Court No. 05–00094, Slip Op. Pursuant to 19 CFR 351.213(d)(3), the prevented; (3) high temperatures are 07–87 (CIT May 30, 2007) (Ta Chen v. Department may rescind an present; (4) extreme low temperatures United States 2007). Based on the administrative review, in whole or with are present; and (5) high pressures are remand decision in Ta Chen v. United respect to a particular exporter or contained within the system. States 2007, the Department undertook producer, if the Secretary concludes that SSBWPFs come in a variety of shapes, an exhaustive review of Ta Chen’s with the following five shapes the most affiliated parties, and determined that 1 On March 28, 2008, the Department rejected basic: elbows, tees, reducers, stub ends, Ta Chen had been a cooperative petitioners’ March 24, 2008, submission on the and caps. The edges of finished respondent and had accurately reported basis that it contained new information, and stated SSBWPFs are beveled. Threaded, its affiliated parties as defined under that petitioners could revise and resubmit its letter by redacting all new information. Per the grooved, and bolted fittings are section 771(33) of the Act (or 19 U.S.C. Department’s request, petitioners re-submitted its excluded from the order. The SSBWPFs § 1677(33)). See Final Results of March 24, 2008, letter on April 1, 2008. subject to the order are currently Redetermination Pursuant to Court

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Remand, Ta Chen Stainless Steel Pipe SSBWPFs under review, as the record 11, 2007). For home market (HM) sales, Co., Ltd. v. United States, Consol. Court evidence does not indicate that these the Department examined whether the No. 05–00094, Slip Op. 07–87 (CIT May manufacturers had knowledge that the date Ta Chen issued its pro forma 30, 2007), October 2, 2007. purchased SSBWPFs would be exported invoice or its actual invoice best reflects On September 11, 2007, Ta Chen to the United States. See Analysis the date of sale. Based upon our review provided its response to the Memorandum for the Preliminary of the record evidence, we have Department’s section A antidumping Results of Administrative Review of preliminarily determined that actual duty questionnaire and reported a Certain Stainless Steel Butt–Weld Pipe invoice date should be the sale date number of affiliated parties. See Ta Fittings from Taiwan: Ta Chen Stainless because the material terms are set on the Chen’s section A questionnaire response Pipe Co., Ltd. (June 30, 2008). Therefore, invoice date, and can potentially be dated September 11, 2007, at pages 7— knowledge that the SSBWPFs would changed up until the point of invoice 12. In a supplemental questionnaire also be sold to the United States cannot date. This methodology is consistent response, Ta Chen stated that it had be imputed to those unaffiliated with the practice in all the previous reported all affiliated parties. See Ta manufacturers. See 19 CFR 351.401(h). reviews of this proceeding. See Ta Chen’s supplemental questionnaire Section 771(16)(A) of the Act defines Chen’s section B through D response dated January 28, 2008, at page ‘‘foreign like product’’ to be ‘‘{t}he questionnaire response at B8–B9 and 9. Based on an analysis of the subject merchandise and other C9–C–10 (September 24, 2007). For U.S. information on the record, the merchandise which is identical in sales, Ta Chen reported only Department preliminarily determines physical characteristics with, and was constructed export price (CEP) sales, that Ta Chen’s reported affiliates, and produced in the same country by the and we used the invoice date for sales the relationships between Ta Chen and same person as, that merchandise.’’ to the first unaffiliated U.S. customer as the reported affiliates, have not changed Thus, consistent with the Department’s changes to the terms of the sale may since the Department’s analysis in Ta past practice in reviews under this occur up to the issuance of the invoice. Chen 05–06. Additionally, the order, for products that Ta Chen has See Verification of the Sales Responses Department notes that in Alloy Piping identified with certainty that it of Ta Chen International, United States Products, Inc. v. United States, Ct. No. purchased from a particular unaffiliated Affiliate of Ta Chen Stainless Pipe Co., 06–00454, Slip Op. 08–30 (CIT March producer and resold in the U.S. market, Ltd. (‘‘Ta Chen’’) in the Antidumping 13, 2008), the CIT held that because we have restricted the matching of Review of Certain Stainless Steel Butt– ‘‘the language of the Act and the products to products purchased by Ta Weld Pipe Fittings from Taiwan (TCI regulations restrict antidumping reviews Chen from the same unaffiliated Verification Report), June 10, 2008, at to cases where the foreign producer or producer and resold in the home page 10. affiliated parties deal in the subject market. See, e.g., Certain Stainless Steel merchandise, Commerce need not make Butt–Weld Pipe Fittings from Taiwan: Fair Value Comparisons a finding of affiliation for each company Preliminary Results of Antidumping To determine whether sales of that does not actually sell the subject Duty Administrative Review and Notice SSBWPFs by Ta Chen to the United merchandise’’ Id. at 10. Based on the of Intent to Rescind in Part, 72 FR 35970 States were made at prices below NV, decisions of the CIT, and the analysis of (July 2, 2007) and Certain Stainless we compared CEP to NV, as described the evidence on the record, the Steel Butt–Weld Pipe Fittings from below. Pursuant to section 777A(d)(2) of Department preliminarily determines Taiwan: Preliminary Results of the Act, we compared the CEPs of that Ta Chen has been a cooperative Antidumping Duty Administrative individual U.S. transactions to the respondent with respect to the issue of Review and Notice of Intent to Rescind monthly weighted–average NV of the reporting affiliated parties, and that Ta in Part, 71 FR 39663 (July 13, 2006). For foreign like product. Chen accurately reported its affiliated those products which Ta Chen cannot Constructed Export Price parties as defined under section 771(33) identify with certainty from which of the Act. producers the merchandise was Section 772(b) of the Act defines CEP purchased, the Department has applied as ‘‘the price at which the subject Product Comparisons adverse facts available. See the merchandise is first sold (or agreed to be For the purpose of determining ‘‘Application of Facts Available and sold) in the United States before or after appropriate product comparisons to Adverse Facts Available’’ section below. the date of importation by or for the SSBWPFs sold in the United States, we account of the producer or exporter of considered all SSBWPFs covered by the Date of Sale such merchandise or by a seller scope that were sold by Ta Chen in the The Department’s regulations state affiliated with the producer or exporter, home market during the POR to be that it will normally use the date of to a purchaser not affiliated with the ‘‘foreign like products,’’ in accordance invoice, as recorded in the exporter’s or producer or exporter ‘‘ Consistent with with section 771(16) of the Act. Where producer’s records kept in the ordinary recent past reviews, pursuant to section there were no contemporaneous sales of course of business, as the date of sale. 772(b) of the Act, we calculated the identical merchandise in the home See 19 CFR 351.401(i). If the price of Ta Chen’s sales based on CEP market to compare to U.S. sales, we Department can establish ‘‘a different because the sale to the first unaffiliated compared U.S. sales to the next most date {that} better reflects the date on U.S. customer was made by Ta Chen’s similar foreign like product on the basis which the exporter or producer U.S. affiliate, TCI. See the Analysis of the physical characteristics reported establishes the material terms of sale,’’ Memorandum dated June 30, 2008, for by Ta Chen, as follows: specification, the Department may choose a different further information. Ta Chen has two seam, grade, size and schedule. date. Id. channels of distribution for U.S. sales: The record shows that Ta Chen both In the present review, Ta Chen 1) Ta Chen ships the merchandise to purchased from and entered into tolling claimed that invoice date should be TCI for inventory in its warehouses and arrangements with unaffiliated used as the date of sale for its sales in subsequent resale to unaffiliated buyers Taiwanese manufacturers of SSBWPFs. the home market and to the United (stock sales), and 2) Ta Chen ships the We have preliminarily determined that States. See Ta Chen’s section A merchandise directly to TCI’s U.S. Ta Chen is the sole exporter of the questionnaire response at 20–22 (Sept. customer (indent sales). The Department

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finds that both stock and indent sales Stainless Steel Butt–Weld Pipe Fittings 773(b)(2)(C) of the Act. In such cases, qualify as CEP sales because the original From Taiwan: Preliminary Results of because we use POR average costs, we sale is between TCI and the U.S. Antidumping Duty Administrative also determined that such sales were not customer. In addition, TCI handles all Review and Notice of Intent to Rescind made at prices that would permit communication with the U.S. customer, in Part, 72 FR 35972–35973 (July 2, recovery of all costs within a reasonable from customer order to receipt of 2007), and Notice of Final Results and period of time, in accordance with payment, and incurs the risk of non– Final Rescission in Part of Antidumping section 773(b)(2)(D) of the Act. payment. In addition, TCI handles Duty Administrative Review: Certain Therefore, for purposes of this customer complaints concerning issues Stainless Steel Butt–Weld Pipe Fittings administrative review, we appropriately such as product quality, specifications, From Taiwan, 73 FR 1202 (January 7, disregarded below–cost sales and used delivery, and product returns. TCI is 2008). the remaining sales as the basis for also responsible for payment of the Therefore, pursuant to section 773(b) determining NV, in accordance with ocean freight for all U.S. sales, while Ta of the Act, we conducted a COP analysis section 773(b)(1) of the Act. of home market sales by Ta Chen. Chen arranges the ocean freight logistics 3. Price-to-Price Comparisons and paperwork. See Ta Chen’s section A A. Calculation of COP questionnaire response at A18 (Sept. 11, As there were sales at prices above the 2006). In accordance with section 773(b)(3) COP for all product comparisons, we We calculated CEP based on ex– of the Act, we calculated COP based on based NV on prices to home market warehouse or delivered prices to the sum of the respondent’s cost of customers. We deducted credit expenses unaffiliated purchasers in the United materials and fabrication for the foreign and added interest revenue. In addition, States and, where appropriate, we like product, plus amounts for general we made adjustments, where added billing adjustments and deducted and administrative (G&A) expenses, appropriate, for physical differences in discounts. In accordance with section financial expenses and all costs and the merchandise in accordance with 772(d)(1) of the Act, the Department expenses incidental to packing the section 773(a)(6)(C)(ii) of the Act. deducted direct and indirect selling merchandise. See the ‘‘Test of Home Finally, in accordance with section expenses, including inventory carrying Market Sales Prices’’ section below for 773(a)(6) of the Act, we also deducted costs incurred by TCI for stock sales, treatment of home market selling home market packing costs and added related to commercial activity in the expenses. In our COP analysis, we relied U.S. packing costs. United States. We also made deductions on the COP data submitted by Ta Chen Application of Facts Available in its original and supplemental cost for movement expenses, which include Pursuant to section 776(a)(2)(D) of the foreign inland freight, foreign brokerage questionnaire responses, and adjusted the reported direct materials costs based Act, the Department finds that the use and handling, ocean freight, of facts available (‘‘FA’’) is appropriate containerization expense, Taiwan on our findings at verification. See below. with regard to Ta Chen’s reported costs harbor construction tax, marine of production. The Department insurance, U.S. inland freight, U.S. B. Test of Home Market Prices preliminarily finds that Ta Chen brokerage and handling, and U.S. We compared the weighted–average significantly under–reported the direct customs duties. Finally, in accordance COP to home market sales of the foreign material costs used in the cost of with sections 772(d)(3) and 772(f) of the like product, as required under section production of the subject merchandise. Act, we deducted CEP profit. 773(b) of the Act, in order to determine Furthermore, pursuant section Normal Value whether these sales had been made at 776(a)(2)(D) of the Act, the Department prices below the COP. In determining preliminarily finds that the application 1. Home Market Viability whether to disregard home market sales of FA is warranted with regard to Ta To determine whether there is a made at prices below the COP, we Chen’s sales in the United States of sufficient volume of sales in the home examined whether such sales were merchandise purchased from other market to serve as a viable basis for made within an extended period of time Taiwanese producers because the calculating NV, we compared Ta Chen’s in substantial quantities, and were not Department is unable to identify with volume of home market sales of the at prices that permitted the recovery of certainty the actual producer of the foreign like product to the volume of all costs within a reasonable period of merchandise being sold by Ta Chen. U.S. sales of the subject merchandise, in time, in accordance with sections Section 776(a)(2) of the Act, provides accordance with section 773(a)(1)(B) of 773(b)(1)(A) and 773(b)(1)(B) of the Act. that, if an interested party: (A) the Act. As Ta Chen’s aggregate volume withholds information that has been C. Results of COP Test of home market sales of the foreign like requested by the Department; (B) fails to product was greater than five percent of In accordance with section 773(b)(1) provide such information in a timely its aggregate volume of U.S. sales for the of the Act, when less than 20 percent of manner or in the form or manner subject merchandise, we determined Ta Chen’s sales of a given product were requested; (C) significantly impedes a that the home market was viable. See Ta at prices less than the COP, we did not proceeding under the antidumping Chen’s Section A Resp., at 2 and Exhibit disregard any below–cost sales of that statute; or (D) provides such information 1 (September 11, 2007). product because we determined that the but the information cannot be verified, below–cost sales were not made in the Department shall, subject to 2. Cost of Production Analysis substantial quantities, as defined by subsection 782(d) of the Act, use facts Because we disregarded sales below section 773(b)(2)(C) of the Act. When 20 otherwise available in reaching the the cost of production (COP) in the prior percent or more of Ta Chen’s sales of a applicable determination. Section administrative review, we have given product during the POR were at 782(d) of the Act provides that the reasonable grounds to believe or suspect prices less than the COP, we determined Department must inform the interested that sales by Ta Chen in its home market that such sales have been made in party of the nature of any deficiency in were made at prices below the COP, ‘‘substantial quantities’’ within an its response and, to the extent pursuant to sections 773(b)(1) and extended period of time, in accordance practicable, allow the interested party to 773(b)(2)(A)(ii) of the Act. See Certain with sections 773(b)(2)(B) and remedy or explain such deficiency. We

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find that pursuant to section estimated pipe input (coil) costs Verification Report at Section V, page 776(a)(2)(D) of the Act, the application additional adjustments to account for 24. of FA is warranted for the calculation of yield loss from coil to pipe, yield loss For all fittings, the cost test and the Ta Chen’s costs of production because from pipe to fittings, and pipe DIFMER data must be manufacturer Ta Chen provided information that conversion costs. These additional specific. The cost database does not could not be fully verified. Furthermore, adjustments were based upon the distinguish control numbers we find that pursuant to section company’s reported standard costs. Id. (CONNUMs) by supplier. However, we 776(a)(2)(D) of the Act, the application We compared the results of our can distinguish between toll processed of FA is warranted because Ta Chen calculation to Ta Chen’s reported costs and purchased merchandise by failed to identify with certainty the to calculate the adjustment to cost. We CONNUM in the cost database as the manufacturer for certain sales of then applied these adjusted costs to Ta Department found at verification that SSBWPFs made by Ta Chen. Chen’s reported costs for merchandise CONNUMs of merchandise purchased produced and toll–produced by others by Ta Chen were unique. See Ta Chen’s A. Cost of Production/Direct Materials supplemental questionnaire response, Adjustment for Ta Chen. Pursuant to section 776(a) of the Act, March 13, 2008, at page 4. For the sales Ta Chen purchases stainless steel we determine that these adjustments are database, as stated above, for coils to produce pipe, which it in turn an appropriate application of FA to merchandise not identified as processes into pipe fittings. See Ta direct materials cost. Ta Chen could not manufactured by Ta Chen, we are Chen’s sections B—D questionnaire provide an explanation of the unable to distinguish between sales of response, September 27, 2007, at D–5. discrepancies between the reported per– toll processed merchandise from sales of At verification, the Department found unit costs and other verified merchandise purchased from other that Ta Chen’s per–unit pipe fittings information, the Department determines producers. direct material cost (i.e., the standard During verification, Ta Chen stated that the application of FA is warranted. cost of pipe, plus the variance) that in the normal course of business, it Also, we preliminarily conclude that Ta inexplicably rose much more slowly does not keep track of each specific Chen did not fail to act to the best of its throughout the POR than the price of Ta manufacturer for each sale of fittings ability because the underlying data Chen’s raw material input for making once the fittings enter into Ta Chen’s verified and Ta Chen provided the pipes (i.e., stainless steel coils). See Ta inventory system. Ta Chen stated that information that highlighted the Chen Verification Report, June 10, 2008, the manufacturer identity of fittings that apparent discrepancies. As such, the Section XIV at page 72. Normally, if raw are toll processed and supplied is lost Department determines that adverse FA material prices increase significantly within its inventory before they are then either the standard cost must pursuant to section 776(b) of the Act is sold. See Ta Chen Verification Report at increase significantly or the variance not warranted in this instance. Section V, page 24. Ta Chen claims that between actual and standard cost must Therefore as noted above, we are companies that toll process and supply increase significantly. For Ta Chen, adjusting the costs of production. See it fittings are not knowledgeable of Ta neither of these increases appears to the Analysis Memo for a more detailed Chen’s final customer or destination for have occurred, with the result being that discussion of the calculations. the fittings. Although Ta Chen was able for some months the recorded cost of B. Identity of Manufacturers to identify which products it had the input stainless steel coils used to purchased or toll processed during the produce the pipe exceeded Ta Chen’s Ta Chen not only manufactures POR for purposes of reporting its cost reported direct materials costs for subject fittings, but it also purchases database, it is allegedly unable to link fittings. Company officials could not completed fittings and has some toll those with its sales database because of explain this discrepancy at verification. processing performed by other the loss of the manufacturer’s identity Id. Therefore, the Department unaffiliated Taiwanese manufacturers. that takes place when the subject fittings preliminarily determines that an See Ta Chen’s section A questionnaire are commingled in inventory. adjustment is necessary to correct for response dated September 11, 2007, at In examining the issue of this unexplained difference. page 30. Ta Chen indicated that it manufacturer further at verification, Ta To adjust for the under–reporting of reported itself (i.e., Ta Chen) as the Chen informed the Department that for direct materials costs, the Department manufacturer for sales observations merchandise supplied by other estimated direct material cost for the which it produced or which were toll manufacturers, ‘‘when the fittings were two sample products reviewed at processed. In instances where the sale supplied to Ta Chen Taiwan it knew verification (i.e., one 304L and one was made of fittings purchased from a which supplier had supplied the 316L), yielded for pipe making and supplier, Ta Chen stated that it reported merchandise, but once the fittings fittings fabrication. To adjust for the the supplier as the manufacturer in its entered into its inventory it could no apparent underestimation of reported sales databases. longer distinguish’’ who the pipe costs, the Department first However, during verification the manufacturer was. Id. With respect to calculated estimated pipe input (coil) Department found that Ta Chen had the toll–processed merchandise, Ta costs by using per kilogram (kg) coil reported the other manufacturers’ names Chen stated that ‘‘when the fittings were purchase costs (for which data are in the manufacturing field for the sales shipped to Ta Chen Taiwan it knew available on the record for both coil database for all fittings that were which subcontractor had toll processed grades, 304L and 316L, for all months of purchased as well as toll processed. The the fittings, but once the fittings entered the POR). See Ta Chen’s March 13, Department also found that Ta Chen into its inventory it could no longer 2008, supplemental response at Exhibit was apparently unable to distinguish distinguish which subcontractor had 4th Supp.-18. The Department applied between the manufacturers that toll done the toll processing.’’ Id. In the per–kg. coil costs to the total process from those that supply certain response to questions about reported weight of the pieces produced, types of subject fittings that Ta Chen re– merchandise quality issues, Ta Chen by month. See Ta Chen Verification sells, once the fittings that are toll– stated that its ‘‘quality control Report at Verification Exhibits 4 and 19. produced or purchased enter into Ta department checks the merchandise. The Department then added to the Chen’s inventory system. See Ta Chen The company stated that if there are

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problems with the merchandise, the Section V at pages 23—28. See also TCI factory than the CEP level and there is subcontractor or supplier would have to Verification Report, Section IV at page no basis for determining whether the return to pick it up. The company said 8 and Section IX.A.30 at page 21. difference in levels between NV and that in theory a mill test certificate Additionally, at verification, the CEP sales affects price comparability, would be provided to Ta Chen Taiwan Department found that Ta Chen had not we adjust NV under section 773(a)(7)(B) by the subcontractors and suppliers.’’ reported toll–processed merchandise as of the Act (the CEP offset provision). Id. at 26. Finally, the Department being produced by Ta Chen, as it had Ta Chen reported two channels of examined the system by which Ta Chen previously indicated to the Department. distribution in the home market: records purchases of fittings, and noted See Ta Chen’s section B–D response, unaffiliated distributors and end–users. that there are codes available to denote September 24, 2007, at pages B–31 and We examined the selling activities the manufacturer from which fittings are C–53 and 54. Instead, Ta Chen had reported for each channel of distribution purchased. Id. at 26–27. reported the toll–producer as the and organized the reported selling The Department preliminarily manufacturer, rather than Ta Chen. The activities into the following four selling determines, contrary to Ta Chen’s Department also found that the toll– functions: sales process and marketing statements at verification, that it is able producers were the same companies support, freight and delivery, inventory to segregate those sales which were toll– from which Ta Chen also purchased maintenance and warehousing, and produced on behalf of Ta Chen from fittings. Id. at 24. warranty and technical services. We those sales of merchandise which were Pursuant to section 776(a) of the Act, found that Ta Chen’s level of selling purchased from unrelated we determine that an application of FA functions to its home market customers manufacturers. See the Analysis to those sales identified as purchased for each of the four selling functions did Memorandum dated June 30, 2008, for from other manufacturers is appropriate. not vary significantly by channel of further information. Additionally, while Despite Ta Chen’s claims to the distribution. See Ta Chen’s section A Ta Chen did not report the actual contrary, the Department found Resp., at 16–25 (Sept. 11, 2007); see also manufacturer of certain sales of numerous instances where it appears Ta Chen’s supplemental questionnaire SSBWPFs as requested by the that Ta Chen could segregate toll– response, at 6 and Exhibit 8, (January Department, claiming that it was unable produced and purchased material 28, 2008). Therefore, we preliminarily to distinguish from which producer it according to manufacturer. However, conclude that the selling functions for purchased certain fittings, the because Ta Chen has stated that it is the reported channels of distribution Department found at verification that Ta unable segregate merchandise once it constitute one LOT in the comparison Chen was aware of the individual enters into its accounting system, the market. manufacturer of fittings both for quality Department will apply FA to those sales For CEP sales, we examined the assurance purposes and at least before of merchandise purchased from other selling activities related to each of the the merchandise entered into Ta Chen’s sources. The Department intends to selling functions between Ta Chen and inventory system. examine this issue more closely for the its U.S. affiliate, TCI. Ta Chen reported As noted above, section 776(a)(2) of final results of this review. Therefore that all of its sales to the United States the Act provides that, inter alia, if an the Department will apply as FA to are CEP sales made through TCI, i.e., interested party or any other person those sales identified as sales of through one channel of distribution, and withholds information that has been purchased merchandise the average rate claimed that there is only one LOT. We requested by the Department or calculated for all merchandise produced examined the four selling functions and significantly impedes a proceeding or toll processed by Ta Chen. found that Ta Chen’s selling functions under the antidumping statute, the for sales to TCI are performed regardless administering authority and the Level of Trade of whether shipments are going to TCI Commission shall, subject to section In accordance with section or directly to the unaffiliated customer. 782(d), use the facts otherwise available 773(a)(1)(B) of the Act, to the extent Therefore, we preliminary determine in reaching the applicable practicable, we determined NV based on that Ta Chen’s U.S. sales constitute a determination under this title. sales in the comparison market at the single LOT. We preliminarily find that the use of same level of trade (LOT) as the CEP We then compared the selling FA is warranted in accordance with transaction. The NV LOT is that of the functions Ta Chen provided in the home section 776(a)(2)(D) of the Act, because starting–price sales in the comparison market LOT with the selling functions Ta Chen did not specifically identify the market. For CEP, it is the level of the provided to the U.S. LOT. In the home manufacturer of the subject constructed sale from the exporter to the market, Ta Chen provides significant merchandise, as requested by the importer. To determine whether NV selling functions related to the sales Department in its antidumping duty sales are at a different LOT than CEP process and marketing support, questionnaire and in its March 6, 2008, sales, we examine different selling warranty and technical service, supplemental questionnaire. Consistent functions along the chain of distribution inventory maintenance, and some with Section 782(d) of the Act, the between the producer and the technical services in the comparison Department requested clarification of Ta unaffiliated customer. If the comparison market, which it does not for the U.S. Chen’s reporting of the manufacturers’ market sales are at a different LOT, and LOT. On this basis, we determined that identities with respect to the purchased the difference affects price the HM LOT is at a more advanced level fittings. However, Ta Chen reported that comparability as manifested in a pattern than Ta Chen’s U.S. LOT. However, it ‘‘is unable to discern which company of consistent price differences between since we have preliminarily determined manufactured the fitting.’’ See Ta the sales on which NV is based and that there is only one LOT in the home Chen’s supplemental questionnaire comparison market sales at the LOT of market, we are unable to calculate a response dated March 13, 2008, at page the export transaction, where possible, LOT adjustment. Because we have 1. At verification, Ta Chen again stated we make an LOT adjustment under preliminarily determined that NV is to Department officials that it was section 773(a)(7)(A) of the Act. Finally, established at a LOT that is at a more unable to discern which company for CEP sales for which we are unable advanced stage of distribution than the manufactured the purchased fittings. to quantify an LOT adjustment, if the LOT of the CEP transactions, and we are See Ta Chen Verification Report, NV level is more remote from the unable to quantify a LOT adjustment

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pursuant to section 773(a)(7)(A) of the notice, pursuant to section 751(a)(3)(A) Notification to Interested Parties of the Act. Act. Therefore, for these preliminary This notice also serves as a results, we have applied a CEP offset to Assessment Rates preliminary reminder to importers of the NV–CEP comparisons, in Upon completion of this review the their responsibility under 19 CFR accordance with section 773(a)(7)(B) of 351.402(f)(2) to file a certificate the Act. Department will determine, and CBP shall assess, antidumping duties on all regarding the reimbursement of The Department intends to examine antidumping duties prior to liquidation this issue fully for the final results in appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have of the relevant entries during this light of comments by parties on this review period. Failure to comply with issue. calculated an importer–specific ad valorem rate for merchandise exported this requirement could result in the Currency Conversion by Ta Chen which is subject to this Secretary’s presumption that review. The Department intends to issue reimbursement of the antidumping For purposes of the preliminary duties occurred and the subsequent results, we made currency conversions assessment instructions to CBP 15 days after the publication of final results of assessment of double antidumping into U.S. dollars based on the exchange duties. rates in effect on the dates of the U.S. this review. We are issuing and publishing this sales, as certified by the Federal Reserve The Department clarified its ‘‘automatic assessment’’ regulation on notice in accordance with sections Bank, in accordance with section May 6, 2003 (68 FR 23954). See 751(a)(1) and 777(i)(1) of the Act. 773A(a) of the Act. Antidumping and Countervailing Duty Dated: June 30, 2008. Preliminary Results of the Review Proceedings: Assessment of David M. Spooner, Antidumping Duties, 68 FR 23954 (May As a result of our review, we Assistant Secretary for Import 6, 2003). This clarification will apply to preliminarily determine the weighted– Administration. entries of subject merchandise during average dumping margin for the [FR Doc. E8–15475 Filed 7–7–08; 8:45 am] the period of review produced by Ta producer/exporter listed below for the BILLING CODE 3510–DS–S Chen or by any of the companies for period June 1, 2006, through May 31, which we are rescinding this review and 2007, to be as follows: for which Ta Chen or each no–shipment DEPARTMENT OF COMMERCE Weighted–Average Margin respondent did not know its Ta Chen Stainless Pipe Co., Ltd merchandise would be exported by International Trade Administration 2.93% another company to the United States. In such instances, we will instruct CBP Disclosure and Public Comment A–570–831 to liquidate unreviewed entries at the The Department will disclose to all–others rate if there is no rate for the parties the calculations performed in Fresh Garlic from the People’s intermediate company(ies) involved in Republic of China: Initiation of connection with these preliminary the transaction. results within five days of the date of Antidumping Duty New Shipper publication of this notice. See 19 CFR Cash Deposit Reviews 351.224(b). Pursuant to 19 CFR 351.309, The following cash deposit AGENCY: Import Administration, interested parties may submit cases requirements will be effective upon International Trade Administration, briefs not later than 30 days after the publication of the final results of this Department of Commerce. date of publication of this notice. administrative review for all shipments EFFECTIVE DATE: July 8, 2008. Rebuttal briefs, limited to issues raised of the subject merchandise entered, or SUMMARY: The Department of Commerce in the case briefs, may be filed not later withdrawn from warehouse, for (Department) has determined that six than 35 days after the date of consumption on or after the publication timely requests for new shipper reviews publication of this notice. Parties who date of the final results of this (NSRs) of the antidumping duty order submit case briefs or rebuttal briefs in administrative review, as provided by on fresh garlic from the People’s this proceeding are requested to submit section 751(a)(1) of the Act: (1) the cash Republic of China (PRC) meet the with each argument: 1) a statement of deposit rate for the reviewed company statutory and regulatory requirements the issue; 2) a brief summary of the will be the rate listed in the final results for initiation. For three of the six NSRs argument; and, 3) a table of authorities. of review; (2) for previously investigated which the Department is initiating, the Interested parties who wish to request companies not listed above, the cash period of review (POR) is November 1, a hearing or to participate if one is deposit rate will continue to be the 2007 through April 30, 2008. For the requested must submit a written request company–specific rate published for the remaining three NSRs where the to the Assistant Secretary for Import most recent period; (3) if the exporter is shipments entered after the POR, the Administration, Room 1870, within 30 not a firm covered in this review, a prior Department is initiating and extending days of the date of publication of this review, or the original LTFV the POR by forty days, pursuant to 19 notice. Requests should contain: 1) the investigation, but the manufacturer is, CFR 351.214(f)(2)(ii). party’s name, address and telephone the cash deposit rate will be the rate number; 2) the number of participants; established for the most recent period FOR FURTHER INFORMATION CONTACT: and, 3) a list of issues to be discussed. for the manufacturer of the Martha Douthit or Elfi Blum, AD/CVD See 19 CFR 351.310(c). Issues raised in merchandise; and (4) the cash deposit Operations, Office 6, Import the hearing will be limited to those rate for all other manufacturers or Administration, International Trade raised in the respective case briefs. The exporters will continue to be the ‘‘all Administration, U.S. Department of Department will issue the final results others’’ rate of 51.01 percent, which is Commerce, 14th Street and Constitution of the administrative review, including the ‘‘all others’’ rate established in the Avenue, NW, Washington, DC 20230; the results of its analysis of issues raised LTFV investigation. These deposit telephone: (202) 482–5050 or (202) 482– in any written briefs, not later than 120 requirements, when imposed, shall 0197, respectively. days after the date of publication of this remain in effect until further notice. SUPPLEMENTARY INFORMATION:

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Background producer who exported the subject time limits set by the Department’s The notice announcing the merchandise to the United States during regulations. the POI. antidumping duty order on fresh garlic Initiation of New Shipper Reviews from the PRC was published in the In addition to the certifications Federal Register on November 16, 1994. described above, pursuant to 19 CFR Pursuant to section 751(a)(2)(B) of the 351.214(b)(2)(iv), Hejia, Chenglong, See Notice of Antidumping Duty Order: Act and 19 CFR 351.214(d)(1), the Tianheng, Juye Homestead, Chengwu, Fresh Garlic from the People’s Republic Department finds that Hejia, Chenglong, and Zhengyang submitted of China, 59 FR 59209 (November 16, Tianheng, Juye Homestead, Chengwu, documentation establishing the 1994) (Order).1 On May 22, May 23, and Zhengyang meet the threshold May 27, and May 30, 2008, pursuant to following: (1) the date on which Hejia, Chenglong, Tianheng, Juye Homestead, requirements for initiation of a NSR for section 751(a)(2)(B)(i) of the Tariff Act their shipments of fresh garlic from the of 1930, as amended (the Act), and 19 Chengwu, and Zhengyang first shipped fresh garlic for export to the United PRC. See Memorandum to File: CFR 351.214(c), the Department Initiation of AD New Shipper Review: received six timely requests for new States and the date on which the fresh garlic was first entered, or withdrawn Fresh Garlic from the People’s Republic shipper reviews (NSR) from Jinxiang of China, and the attached New Shipper Hejia Co., Ltd (Hejia), Weifang from warehouse, for consumption; (2) the volume of their first shipment;2 and Initiation Checklists, dated concurrently Chenglong Import & Export Co., Ltd. with this notice. (Chenglong), Jinxiang Tianheng Trade (3) the date of their first sale to an Co., Ltd (Tianheng), Juye Homestead unaffiliated customer in the United The POR for the three NSRs with Fruits and Vegetables Co., Ltd. (Juye States. shipments which entered during the The Department conducted CBP Homestead), Chengwu County POR is November 1, 2007 through April database queries and confirmed that Yuanxiang Industry & Commerce, Ltd. 30, 2008. See 19 CFR 351.214(g)(1)(i)(B). Hejia, Chenglong, Tianheng, Juye (Chengwu), and Shandong Jinxiang As discussed above, under 19 CFR Homestead, Chengwu, and Zhengyang’s Zhengyang Import & Export Co., Ltd. 351.214(f)(2)(ii), when the sale of the (Zhengyang), respectively. Five shipments of subject merchandise had subject merchandise occurs within the companies certified that they are both entered the United States for POR, but the entry occurs after the the producer and exporter of the subject consumption and that liquidation of normal POR, the POR may be extended. merchandise upon which the requests such entries had been properly Therefore, the POR for the NSR of the for NSRs were based. One company, suspended for antidumping duties. The remaining three exporters and Chenglong, certified that it is the Department also confirmed by producers discussed above will be examining the CBP data that such exporter of Jianxiang County Jichao November 1, 2007 through May 31, entries were made during the NSR POR, Farm Business Co., Ltd. (Jichao), 2008. The Department intends to issue or shortly thereafter. See Memorandum producer of the subject merchandise. the preliminary results of these reviews to File: New Shipper Review of Fresh Pursuant to section 751(a)(2)(B)(i)(I) of no later than 180 days from the date of Garlic from the People’s Republic of the Act and 19 CFR 351.214(b)(2)(i), initiation, and the final results of these China, Placing CBP data on the record, Hejia, Chenglong, Tianheng, Juye reviews no later than 270 days from the Homestead, Chengwu, and Zhengyang dated concurrently with this notice. Under 19 CFR 351.214(f)(2)(ii), when date of initiation. See section certified that they did not export fresh 751(a)(2)(B)(iv) of the Act. garlic to the United States during the the sale of the subject merchandise period of investigation (POI). In occurs within the period of review On August 17, 2006, the Pension addition, pursuant to section (POR), but the entry occurs after the Protection Act of 2006 (H.R. 4) was 751(a)(2)(B)(i)(II) of the Act and 19 CFR normal POR, the POR may be extended signed into law. Section 1632 of H.R. 4 351.214(b)(2)(iii)(A), Hejia, Chenglong, unless it would be likely to prevent the temporarily suspends the authority of Tianheng, Juye Homestead, Chengwu, completion of the review within the the Department to instruct CBP to and Zhengyang certified that, since the time limits set by the Department’s collect a bond or other security in lieu initiation of the investigation, they have regulations. The preamble to the of a cash deposit in new shipper never been affiliated with any PRC Department’s regulations states that reviews. Therefore, the posting of a exporter or producer who exported fresh both the entry and the sale should occur bond under section 751(a)(2)(B)(iii) of garlic to the United States during the during the POR, and that under the Act in lieu of a cash deposit is not POI, including those not individually ‘‘appropriate’’ circumstances the available in this case. Importers of fresh examined during the investigation. As Department has the flexibility to extend garlic from the PRC manufactured and/ required by 19 CFR 351.214(b)(2)(iii)(B), the POR. See Antidumping Duties; or exported by Hejia, Chenglong, Hejia, Chenglong, Tianheng, Juye Countervailing Duties; Final Rule, 62 FR Tianheng, Juye Homestead, Chengwu, Homestead, Chengwu, and Zhengyang, 27296, 27319–27320 (May 19, 1997). In and Zhengyang must continue to post also certified that their export activities this instance, for three of the exporters cash deposits of estimated antidumping were not controlled by the central requesting a NSR, the sales were made duties on each entry of subject government of the PRC. during the POR but the shipments merchandise at the current PRC–wide Pursuant to 19 CFR entered shortly after the end of the POR. rate of 376.67 percent. The exporters provided documentation 351.214(b)(2)(ii)(B), Jichao, the producer Interested parties requiring access to showing the date of entry following the of the subject merchandise for proprietary information in this NSR end of the POR. It is appropriate for the Chenglong during the POR, certified should submit applications for Department to extend the POR by forty that it did not export to the United disclosure under administrative days. The Department does not find that States during the POI, and has never protective order in accordance with 19 this delay would prevent the been affiliated with any exporter or CFR 351.305 and 351.306. This completion of the review within the initiation and notice are published in 1 Therefore, a request for a NSR based on the accordance with section 751(a)(2)(B) of semi-annual anniversary month, May, was due to 2 Hejia, Chenglong, Tianheng, Juye Homestead, the Department by the final day of May 2008. See Chengwu, and Zhengyang made no subsequent the Act and 19 CFR 351.214 and 19 CFR 351.214(d)(1). shipments to the United States. 351.221(c)(1)(i).

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Dated: June 30, 2008. Dated: July 1, 2008. FOR FURTHER INFORMATION CONTACT: Stephen J. Claeys, Faye Robinson, Gene Calvert or Paul Matino, AD/CVD Deputy Assistant Secretary for Import Director, Statutory Import Programs Staff, Operations, Office 6, Import Administration. Import Administration. Administration, International Trade [FR Doc. E8–15465 Filed 7–7–08; 8:45 am] [FR Doc. E8–15450 Filed 7–7–08; 8:45 am] Administration, U.S. Department of BILLING CODE 3510–DS–S BILLING CODE 3510–DS–P Commerce, Room 7866, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–3586 or DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE (202) 482–4146, respectively. SUPPLEMENTARY INFORMATION: International Trade Administration International Trade Administration Case History University of Colorado, et al., Notice of C–570–926 Consolidated Decision on Applications The following events have occurred for Duty-Free Entry of Scientific Sodium Nitrite From the People’s since the publication of the Preliminary Instruments Republic of China: Final Affirmative Determination in the Federal Register Countervailing Duty Determination on April 11, 2008. On April 14, 2008, This is a decision pursuant to Section petitioner (General Chemical LLC) AGENCY: Import Administration, 6(c) of the Educational, Scientific, and submitted a letter, in accordance with International Trade Administration, Cultural Materials Importation Act of section 705(a)(1) of the Tariff Act of Department of Commerce. 1966 (Pub. L. 89–651, as amended by 1930, as amended (the Act), requesting SUMMARY: The Department of Commerce Pub. L.106–36; 80 Stat. 897; 15 CFR part alignment of the final countervailing (the Department) has reached a final 301). Related records can be viewed duty determination with the final determination that countervailable between 8:30 A.M. and 5:00 P.M. in determination in the companion subsidies are being provided to Room 2104, U.S. Department of antidumping duty investigation of producers/exporters of sodium nitrite Commerce, 14th and Constitution Ave, sodium nitrite from the PRC. On April from the People’s Republic of China NW, Washington, D.C. 28, 2008, the Department aligned the (PRC). On April 11, 2008, we issued the Comments: None received. Decision: final countervailing duty determination Preliminary Determination, see Sodium Approved. We know of no instruments with the final determination in the Nitrite From the People’s Republic of of equivalent scientific value to the companion antidumping duty China: Preliminary Affirmative foreign instruments described below, for investigation of sodium nitrite from the Countervailing Duty Determination, 73 such purposes as each is intended to be PRC. See Sodium Nitrite from the FR 19816 (April 11, 2008) (Preliminary used, that was being manufactured in People’s Republic of China: Alignment Determination). Because neither the the United States at the time of its order. of Final Countervailing Duty Government of the People’s Republic of Docket Number: 08–016. Applicant: Determination with Final Antidumping China (GOC) nor the two mandatory University of Colorado, Boulder, CO Duty Determination, 73 FR 22920 (April company respondents participated in 80309. Instrument: Three–Channel 28, 2008). Digital Radio Vector Field Sensor this investigation, the Department relied (RVFS). Manufacturer: Swedish Institute on facts available and applied adverse Period of Investigation of Space Physics, Sweden. Intended inferences in reaching the Preliminary The period of investigation (POI) for Use: See notice at 73 FR 30377, May 27, Determination. The Department which we are measuring subsidies is 2008. Reasons: The instrument has a assigned a countervailable subsidy rate calendar year 2006. See 19 CFR capability to work with dipole antennas to each program under investigation 351.204(b)(2). of two different lengths (1 m and 3 m) using rates calculated in Coated Free Scope of the Investigation and a capability to oversample the Sheet Paper from the People’s Republic output I&Q data. These specifications of China: Final Affirmative The merchandise covered by this enable the instrument to operate in both Countervailing Duty Determination, 72 investigation is sodium nitrite in any mobile–mount and stationary FR 60645 (October 25, 2007) and form, at any purity level. In addition, conditions which is essential to the accompanying Issues and Decision the sodium nitrite covered by this intended use. Memorandum (CFS from the PRC). We investigation may or may not contain an Docket Number: 08–017. Applicant: City invited interested parties to comment on anti–caking agent. Examples of names College of the City University of New the Preliminary Determination. No commonly used to reference sodium York, New York, NY 10031. Instrument: interested party submitted comments nitrite are nitrous acid, sodium salt, Ultrabroadband Ti:Sapphire Laser regarding the Preliminary anti–rust, diazotizing salts, erinitrit, and Model Rainbow–DFG. Manufacturer: Determination. filmerine. The chemical composition of Femtolasers, Inc., Austria. Intended Use: Since the publication of the sodium nitrite is NaNO2 and it is See notice at 73 FR 30377, May 27, Preliminary Determination, the generally classified under subheading 2008. Reasons: The instrument can Department has reached affirmative 2834.10.1000 of the Harmonized Tariff generate optical pulses of less than 7 final countervailing duty determinations Schedule of the United States (HTSUS). femtoseconds which is fundamental to in several investigations of products The American Chemical Society the intended use. The amplifier system from the PRC. We have used the rates Chemical Abstract Service (CAS) has will be coupled with a 6 femtosecond calculated in these intervening final assigned the name ‘‘sodium nitrite’’ to laser and streak camera system to determinations to revise the sodium nitrite. The CAS registry provide high spatial, high temporal and countervailable subsidy rates for certain number is 7632–00–0. For purposes of high spectral resolution for programs. For information on the the scope of this investigation, the characterization, tunneling and carrier/ countervailable subsidy rates, see the narrative description is dispositive, not phonon dynamics studies for nanoscale ‘‘Final Determination’’ section of this the tariff heading, CAS registry number semiconductor quantum structures and notice. or CAS name, which are provided for devices. EFFECTIVE DATE: July 8, 2008. convenience and customs purposes.

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Injury Test its ability; and (5) the information can select, as adverse facts available, the Because the PRC is a ‘‘Subsidies be used without undue difficulties. highest calculated rate in any segment Section 776(b) of the Act provides Agreement Country’’ within the of the proceeding. See, e.g., Certain In– that the Department may use an meaning of section 701(b) of the Act, the shell Roasted Pistachios from the inference adverse to the interests of a International Trade Commission (ITC) is Islamic Republic of Iran: Final Results party that has failed to cooperate by not required to determine pursuant to of Countervailing Duty Administrative acting to the best of its ability to comply section 701(a)(2) of the Act whether Review (Pistachios from Iran), 71 FR with the Department’s requests for imports of the subject merchandise from 66165 (November 13, 2006) and information. See Statement of the PRC materially injure, or threaten accompanying Issues and Decision Administrative Action accompanying Memorandum at Comment 1. The material injury to, a United States the Uruguay Round Agreements Act, Department’s practice when selecting an industry. On January 14, 2008, the ITC H.R. Doc. No. 103–316, Vol. 1, 889–90 adverse rate from among the possible published its preliminary determination (1994) (SAA) at 870. sources of information is to ensure that that there is a reasonable indication that In the Preliminary Determination, the the margin is sufficiently adverse ‘‘as to an industry in the United States is Department based the CVD rates for the effectuate the statutory purposes of the materially injured by reason of allegedly two mandatory company respondents, adverse facts available rule to induce subsidized imports from the PRC of Shanxi Jiaocheng Hongxing Chemical respondents to provide the Department subject merchandise. See Sodium Nitrite Co., Ltd. (Shanxi Jiaocheng) and Tianjin with complete and accurate information from China and Germany: Investigation Soda Plant, together with its subsidiary in a timely manner.’’ See Notice of Final Nos. 701–TA–453 and 731–TA–1136– company, Tianjin Port Free Trade Zone Determination of Sales at Less than Fair 1137 (Preliminary), 73 FR 2278, (January Pan Bohai International Trading Co., Value: Static Random Access Memory 14, 2008). Ltd. (Tianjin Soda Plant) on facts Semiconductors from Taiwan, 63 FR Application of Facts Available and Use otherwise available, pursuant to section 8909, 8932 (February 23, 1998). The of Adverse Inferences 776(a)(2)(C) of the Act because they did Department’s practice also ensures ‘‘that not respond to the Department’s the party does not obtain a more Section 776 of the Act, governs the countervailing duty questionnaire. favorable result by failing to cooperate use of facts available and adverse facts Furthermore, in selecting from the facts than if it had cooperated fully.’’ See available. Section 776(a) provides that if available, the Department determined SAA at 870. In choosing the appropriate an interested party or any other person that an adverse inference was balance between providing a respondent (1) withholds information that has been warranted, pursuant to section 776(b) of with an incentive to respond accurately requested by the Department; (2) fails to the Act because Shanxi Jiaocheng and and imposing a rate that is reasonably provide such information by deadlines Tianjin Soda Plant did not respond to related to the respondent’s prior or in the form and manner requested; (3) the Department’s questionnaire and commercial activity, selecting the significantly impedes a proceeding; or therefore did not cooperate to the best highest prior rate ‘‘reflects a common (4) provides such information but the of their abilities in the investigation. sense inference that the highest prior information cannot be verified, the Preliminary Determination at 19817–18. margin is the most probative evidence of Department shall use the facts otherwise Neither the GOC nor Shanxi Jiaocheng current margins, because, if it were not available in reaching its determination. or Tianjin Soda Plant have provided any so, the importer, knowing of the rule, The statute requires that certain information or argument that would would have produced current conditions be met before the warrant a reconsideration of the information showing the margin to be Department may resort to facts Department’s Preliminary less.’’ See Rhone Poulenc, Inc. v. United available. Where the Department Determination that the reliance on facts States, 899 F. 2d 1185, 1190 (Fed. Cir. determines that a response to a request available and the application of adverse 1990). for information does not comply with inferences is warranted. Therefore, for As stated in the Preliminary the request, section 782(d) of the Act purposes of this final determination we Determination, the Department provides that the Department will so are relying on facts available and determined that Shanxi Jiaocheng and inform the party submitting the applying adverse inferences in Tianjin Soda Plant each failed to act to response and will, to the extent accordance with section 776(b) of the the best of its ability in this practicable, provide that party an Act. investigation; thus, for each program opportunity to remedy or to explain the Selection of the Adverse Facts examined, the Department made the deficiency. adverse inference that each company Available Rate If the party fails to remedy the benefitted from the program, consistent deficiency within the applicable In deciding which facts to use as with our practice. See, e.g., Certain timelines, the Department may, subject adverse facts available, section 776(b) of Cold–Rolled Carbon Steel Flat Products to section 782(e) of the Act, disregard all the Act and 19 CFR 351.308(c)(1) from the Republic of Korea; Final or part of the original and subsequent authorize the Department to rely on Affirmative Countervailing Duty responses, as appropriate. Section information derived from (1) the Determination, 67 FR 62102 (October 3, 782(e) of the Act states that the petition, (2) a final determination in the 2002). In addition, we stated in the Department shall not decline to investigation, (3) any previous review or Preliminary Determination that our consider information deemed determination, or (4) any other practice is to rely upon the highest ‘‘deficient’’ under section 782(d) of the information placed on the record. The calculated program rate for the same Act if: (1) the information is submitted Department has no information on the program or for a similar type of by the established deadline; (2) the record of this proceeding from which to program.1 See e.g., Circular Welded information can be verified; (3) the select appropriate AFA rates for any of information is not so incomplete that it the subject programs, and because this 1 The Department’s first preference is to use the cannot serve as a reliable basis for is an investigation, we have no previous highest calculated rate for the same program (i.e. reaching the applicable determination; segments of the proceeding from which identical program). If there is no identical program, then the Department will use the highest calculated (4) the interested party has to draw potential AFA rates. In such rate for a similar program (e.g. tax program to tax demonstrated that it acted to the best of cases, it is the Department’s practice to program, loan program to loan program).

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Carbon Quality Steel Pipe from the we are applying, where applicable, the data on the national inflation rate of a People’s Republic of China: Final highest countervailable subsidy rate that given country or national average Affirmative Countervailing Duty was calculated in a prior final interest rates, there typically are no Determination and Final Affirmative countervailing duty determination for a independent sources for data on Determination of Critical product from the PRC for the same or company–specific benefits resulting Circumstances, 73 FR 31966 (June 5, similar type of program (i.e., subsidy from countervailable subsidy programs. 2008) and accompanying Issues and programs regarding tax refunds or With respect to the relevance aspect Decision Memorandum at 2 (CWP from credits, value–added tax (VAT), and of corroboration, the Department will the government–provided grants and loans). consider information reasonably at its PRC); CFS from the PRC at Comment 24; See CFS from the PRC at Comment 24 disposal in considering the relevance of Laminated Woven Sacks from the and LWS from the PRC at 6–8. Absent information used to calculate a People’s Republic of China: Final a subsidy rate for the same or similar countervailable subsidy benefit. Where Affirmative Countervailing Duty type of program, we are applying the circumstances indicate that the Determination and Final Affirmative highest countervailable subsidy rate for information is not appropriate as Determination, in Part, of Critical any program otherwise listed in any adverse facts available, the Department Circumstances, 73 FR 35639 (June 24, prior final countervailing duty will not use it. See, e.g., Fresh Cut 2008) and accompanying Issues and determination involving the PRC.2 See Flowers from Mexico; Final Results of Decision Memorandum at 6–8 (LWS id. Antidumping Duty Administrative from the PRC); see also Light–Walled For a discussion of the application of Review, 61 FR 6812 (February 22, 1996). Rectangular Pipe and Tube From the AFA rates for each program In the absence of record evidence People’s Republic of China: Final determined to be countervailable, see concerning these programs due to Affirmative Countervailing Duty Memorandum to the File, Sodium respondents’ decision not to participate Investigation Determination, 73 FR Nitrite from the PRC; Calculation of in the investigation, the Department has 35642 (June 24, 2008) and Countervailable Subsidy Rates for the reviewed the information concerning accompanying Issues and Decision Final Determination, dated concurrently China subsidy programs in this and Memorandum at 2 (LWRP from the with this notice (Sodium Nitrite other cases. For those programs for PRC). We have selected the adverse facts Calculation Memorandum). Attached to which the Department has found a available rate to apply to each program, this memorandum are copies of CFS program–type match, we find that for purposes of this final determination, from the PRC, LWS from the PRC, CWP programs of the same type are relevant consistent with this practice. from the PRC, and LWRP from the PRC, to the programs of this case. For the Information from the petition which contain the public information programs for which there is no indicates that during the POI, the concerning subsidy programs, including program–type match, the Department standard income tax for corporations in the subsidy rates, upon which we are has selected the highest calculated China was 30 percent and there is an relying as adverse facts available. See subsidy for any China program from additional local income tax at the rate Sodium Nitrite Calculation which the respondents could of three percent. See the November 8, Memorandum. conceivably receive a benefit to use as 2007 letter to the Secretary of Section 776(c) of the Act provides AFA. The rate is therefore relevant to Commerce, at Exhibit IV–12. To that, when the Department relies on the respondents in that it is an actual determine the program rate for the 16 secondary information rather than on calculated CVD rate for a China program alleged income tax programs under information obtained in the course of an from which the respondents could which companies receive either a investigation or review, it shall, to the receive a benefit. No evidence had been reduction or exemption of income tax, extent practicable, corroborate that presented or obtained which contradicts we have applied an adverse inference information from independent sources the reliability or relevance of the that Shanxi Jiaocheng and Tianjin Soda that are reasonably at its disposal. To secondary information which was Plant paid no income taxes during the corroborate secondary information, the information from a prior China CVD POI. Therefore, the highest possible Department will, to the extent investigation. See Preliminary combined countervailable subsidy for practicable, examine the reliability and Determination at 19819. Due to the lack the 16 national, provincial, and local relevance of the information to be used. of participation by the respondents and income tax programs subject to this The SAA emphasizes, however, that the the resulting lack of record information investigation total 33 percent. Thus, we Department need not prove that the concerning these programs, the are applying a countervailable rate of 33 selected facts available are the best Department has corroborated the rates it percent on an overall basis for the 16 alternative information. See SAA at 869. selected to the extent practicable. income tax programs (i.e., the 16 income With regard to the reliability aspect of tax programs combined provided a corroboration, we note that these rates Final Determination countervailable subsidy of 33 percent). were calculated in prior final In accordance with section This 33 percent AFA rate does not apply countervailing duty determinations. No 705(c)(1)(B)(i) of the Act, we have to income tax credit or income tax information has been presented that assigned a subsidy rate to each of the refund programs. calls into question the reliability of two producers/exporters of the subject For the remaining programs subject to these calculated rates that we are merchandise that were selected as this investigation (including income tax applying as AFA. Unlike other types of mandatory respondent companies in credit and income tax refund programs), information, such as publicly available this CVD investigation. We determine

2 In applying the highest calculated proceeding cannot use the products for which these 1137 (Preliminary), ITC Publication 3979, January countervailable subsidy rate for any program rates were calculated. See Sodium Nitrite From the 2008 at 8. The Department’s decision to not use, as otherwise listed, we are disregarding the calculated Federal Republic of Germany And The People’s AFA, these program rates is based on the particular rates for the programs ‘‘Hot-Rolled Steel For Less Republic of China: Petition For The Imposition of facts of this investigation and this particular set of Than Adequate Remuneration’’ (CWP from the Antidumping And Countervailing Duties, facts may not be applicable or identifiable in PRC), and ‘‘Government Provision of Inputs for Less (November 8, 2007) Volume I at 32–33. See also Than Adequate Remuneration’’ (LWS from the PR Sodium Nitrite from China and Germany: another proceeding. C), because the industry under investigation in this Investigation Nos. 701–TA–453 and 731–TA–1136–

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the total net countervailable subsidy rates to be:

Producer/Exporter Subsidy Rate

Shanxi Jiaocheng Hongxing Chemical Co., Ltd. (Shanxi Jiaocheng) ...... 169.01% Tianjin Soda Plant Tianjin Port Free Trade Zone Pan Bohai International Trading Co., Ltd. (Tianjin Soda Plant) 169.01% All Others ...... 169.01%

With respect to the all others rate, posted as a result of the suspension of nitrite from the People’s Republic of section 705(c)(5)(A)(ii) of the Act liquidation will be refunded or China (PRC) is being, or is likely to be, provides that if the countervailable canceled. sold in the United States at less than fair subsidy rates established for all value (LTFV) as provided in section 735 ITC Notification exporters and producers individually of the Tariff Act of 1930, as amended investigated are determined entirely in In accordance with section 705(d) of (the Act). We made no changes to the accordance with section 776 of the Act, the Act, we will notify the ITC of our preliminary dumping margin in this the Department may use any reasonable determination. In addition, we are investigation. The final dumping margin method to establish an all others rate for making available to the ITC all non– for this investigation is listed in the exporters and producers not privileged and non–proprietary ‘‘Final Determination Margin’’ section individually investigated. In this case, information related to this investigation. below. The period covered by this the rate established for the two We will allow the ITC access to all investigation is April 1, 2007, through mandatory respondents is based entirely privileged and business proprietary September 30, 2007. on facts available under section 776 of information in our files, provided the FOR FURTHER INFORMATION CONTACT: the Act. There is no other information ITC confirms it will not disclose such Magd Zalok or Rebecca Pandolph, AD/ on the record upon which we could information, either publicly or under an CVD Operations, Office 4 Import determine an all others rate. As a result, administrative protective order (APO), Administration, International Trade we have used the AFA rate assigned for without the written consent of the Administration, U.S. Department of Shanxi Jiaocheng and Tianjin Soda Assistant Secretary for Import Commerce, 14th Street and Constitution Plant as the all others rate. This method Administration. Avenue, NW, Washington, DC 20230; is consistent with the Department’s past Return or Destruction of Proprietary telephone: (202) 482–4162 and (202) practice. See e.g. Final Affirmative Information 482–3627, respectively. Countervailing Duty Determination: SUPPLEMENTARY INFORMATION: Certain Hot–Rolled Carbon Steel Flat In the event that the ITC issues a final Products From Argentina, 66 FR 37007, negative injury determination, this Background 37008 (July 16, 2001); see also Final notice will serve as the only reminder On April 23, 2008, the Department Affirmative Countervailing Duty to parties subject to APO of their published in the Federal Register the Determination: Prestressed Steel Wire responsibility concerning the notice of its preliminary determination Strand From India, 68 FR 68356, 68357 destruction of proprietary information of sales at LTFV in the antidumping (December 8, 2003). disclosed under APO in accordance duty investigation of sodium nitrite with section 351.305(a)(3) of the Suspension of Liquidation and Cash from the PRC. See Notice of Preliminary Department’s regulations. Failure to Determination of Sales at Less Than Deposit Requirements comply is a violation of the APO. Fair Value: Sodium Nitrite from the In accordance with sections This determination is issued and People’s Republic of China, 73 FR 21906 705(c)(1)(B) of the Act, we directed U.S. published pursuant to sections 705(d) (April 23, 2008) (Preliminary Customs and Border Protection (CBP) to and 777(i) of the Act. Determination). suspend liquidation of all entries of the Dated: June 30, 2008. With respect to the Department’s subject merchandise from the PRC, David M. Spooner, invitation to comment on the which are entered or withdrawn from Assistant Secretary for Import Preliminary Determination, on May 23, warehouse, for consumption on or after Administration. 2008, General Chemical LLC (the April 11, 2008, the date of publication [FR Doc. E8–15479 Filed 7–7–08; 8:45 am] petitioner) submitted a case brief. No of the Preliminary Determination. In BILLING CODE 3510–DS–S other party submitted case or rebuttal accordance with sections 705(c)(1)(B) of briefs in this proceeding. the Act, we will instruct CBP to require Scope of the Investigation cash deposits at the rates shown above DEPARTMENT OF COMMERCE on all entries of the subject merchandise The merchandise covered by this from the PRC, entered or withdrawn International Trade Administration investigation is sodium nitrite in any from warehouse, for consumption on or form, at any purity level. In addition, after the date of publication of this final (A–570–925) the sodium nitrite covered by this determination. Notice of Final Determination of Sales investigation may or may not contain an If the ITC issues a final affirmative at Less Than Fair Value: Sodium Nitrite anti–caking agent. Examples of names injury determination, we will issue a from the People’s Republic of China commonly used to reference sodium countervailing duty order under section nitrite are nitrous acid, sodium salt, 706(a) of the Act. If the ITC determines AGENCY: Import Administration, anti–rust, diazotizing salts, erinitrit, and that material injury to, threat of material International Trade Administration, filmerine. The chemical composition of injury to, or material retardation of, the Department of Commerce. sodium nitrite is NaNO2 and it is domestic industry does not exist, this EFFECTIVE DATE: July 8, 2008. generally classified under subheading proceeding will be terminated and all SUMMARY: The Department of Commerce 2834.10.1000 of the Harmonized Tariff estimated duties deposited or securities (Department) determines that sodium Schedule of the United States (HTSUS).

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The American Chemical Society failed to establish their entitlement to 2000) (applying total adverse facts Chemical Abstract Service (CAS) has separate rates, and thus they are part of available because the respondent failed assigned the name ‘‘sodium nitrite’’ to the PRC–wide entity. Therefore, the to respond to the antidumping sodium nitrite. The CAS registry AFA rate will be applied to the PRC– questionnaire). For the reasons noted in number is 7632–00–0. wide entity. See ‘‘The PRC–Wide Rate’’ the Preliminary Determination, we While the HTSUS subheading, CAS section of this notice below for a full continue to find that the highest registry number, and CAS name are discussion of this topic. dumping margin from the petition, provided for convenience and customs 190.74 percent, as revised by the purposes, the written description of the No Changes Since the Preliminary Determination Department, is the appropriate AFA rate scope of this investigation is dispositive. in this case. See Preliminary Based on our analysis of the Analysis of Comments Received Determination, 73 FR at 21907–21908. comments received, the Department has As explained in the Preliminary In its May 23, 2008, case brief, the made no changes to its Preliminary Determination, we corroborated this rate petitioner argues that the Department Determination. pursuant to section 776(c) of the Act. should base its final determination, like Separate Rates See Preliminary Determination, 73 FR at the Preliminary Determination, on 21908. No party filed separate rates adverse facts available (AFA) because Since we begin with the presumption the two mandatory respondents, information in this investigation. Therefore, as was the case in the that all companies within an NME Qingdao Hengyuan Chemical Co., Ltd. country are subject to government (Qingdao) and Hualong Ammonium Preliminary Determination, we have considered all PRC exporters of subject control, and no company submitted Nitrate Company Ltd. (Hualong), did not information to rebut that presumption, submit responses to the Department’s merchandise to be part of the PRC–wide entity. we are applying a single antidumping questionnaire. In addition, the duty rate, the PRC–wide rate, to all petitioner explains that it does not The PRC–Wide Rate exporters of subject merchandise from object to the preliminary AFA rate used Section 776(a)(2) of the Act provides the PRC. See, e.g., Synthetic Indigo from by the Department (which is the highest the People’s Republic of China; Notice margin alleged in the petition, as that if an interested party withholds information requested by the of Final Determination of Sales at Less adjusted by the Department at initiation) Than Fair Value, 65 FR 25706, 25707 because it believes the rate is consistent Department, fails to provide information by the deadline or in the form or (May 3, 2000) (applying the PRC–wide with both the dumping margins alleged rate to all exporters of subject in the petition and the dumping margins manner requested, or significantly impedes a proceeding, the Department merchandise in the PRC based on the used for purposes of initiating the presumption that the export activities of investigation. The petitioner notes that shall use, subject to section 782(d) of the Act, facts otherwise available in the companies that failed to respond to the Department’s practice is to base an reaching the applicable determination. the Department’s questionnaire were AFA rate on the highest margin in a Furthermore, in selecting from among controlled by the PRC government). proceeding and here the highest margin the facts otherwise available, section Thus, the PRC–wide rate will apply to is the most probative evidence of 776(b) of the Act permits the all entries of subject merchandise. current margins because, if it were not, Department to use inferences that are evidence showing the margins to be less Final Determination Margin adverse to a party if it finds that the would have been provided.1 See the May party failed to cooperate by not acting We determine that the following 23, 2008, submission, Sodium Nitrite to the best of its ability to comply with weighted–average dumping margin from China: Case Brief of General a request for information. Because, as exists for the period April 1, 2007, Chemical LLC. noted above, Qingdao and Hualong are through September 30, 2007: The petitioner also notes that no party part of the PRC–wide entity, and they filed separate rate information in this withheld information that is required by Manufacturer/exporter Margin (percent) investigation. Given the PRC’s status as the Department to calculate dumping a non–market economy (NME) country, margins, the Department continues to PRC–Wide Rate ...... 190.74 and the lack of information on the conclude that it is appropriate to base record rebutting the Department’s the PRC–wide entity’s dumping margin Continuation of Suspension of presumption that all companies in the on facts available, pursuant to section Liquidation PRC are subject to government control, 776(a) of the Act.2 In accordance with section the petitioner argues that the rate Moreover, because Qingdao and applied to the PRC–wide entity cannot 735(c)(1)(B)(ii) of the Act, we are Hualong did not respond to our request directing U.S. Customs and Border be lower than the rate applied to for information, we continue to find that Qingdao and Hualong. See the May 23, Protection (CBP) to continue to suspend the PRC–wide entity failed to cooperate liquidation of all imports of subject 2008, submission, Sodium Nitrite from to the best of its ability to comply with China: Case Brief of General Chemical merchandise that is entered or a request for information. Therefore, in withdrawn from warehouse, for LLC. selecting from among the facts We agree that the dumping margin in consumption on or after April 23, 2008, otherwise available, an adverse the date of publication of the this case should be based on total AFA inference is warranted. See, e.g., Notice because the two mandatory Preliminary Determination in the of Final Determination of Sales at Less Federal Register. We will instruct CBP respondents, Qingdao and Hualong, Than Fair Value: Circular Seamless failed to respond to the Department’s to continue to require a cash deposit or Stainless Steel Hollow Products From the posting of a bond for all companies questionnaire. Moreover, by not Japan, 65 FR 42985, 42986 (July 12, responding to the Department’s based on the estimated weighted– questionnaire, Qingdao and Hualong average dumping margin shown above. 2 Section 782(d) of the Act is not applicable here The suspension of liquidation because Qingdao and Hualong failed to provide any 1 See Rhone Poulenc, Inc. v. United States, 899 response to the Department’s request for instructions will remain in effect until F.2d 1185, 1190 (Fed. Cir. 1990). information. further notice.

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International Trade Commission SUMMARY: The U.S. Department of directly on the Web at http:// Notification Commerce (the Department) determines ia.ita.doc.gov/frn. The paper copy and In accordance with section 735(d) of that imports of sodium nitrite from the electronic version of the Decision the Act, we have notified the Federal Republic of Germany (Germany) Memorandum are identical in content. are being, or are likely to be, sold in the International Trade Commission (ITC) of Period of Investigation our final determination of sales at LTFV. United States at less than fair value As our final determination is (LTFV), as provided in section 735 of The period of investigation is October affirmative, in accordance with section the Tariff Act of 1930, as amended (the 1, 2006, through September 30, 2007. 735(b)(2) of the Act, the ITC will Act). The final weighted–average determine whether the domestic dumping margins are listed below in the Scope of the Investigation industry in the United States is section entitled ‘‘Final Determination of Investigation.’’ The merchandise covered by this materially injured, or threatened with investigation is sodium nitrite in any EFFECTIVE DATE: July 8, 2008. material injury, by reason of imports or form, at any purity level. In addition, FOR FURTHER INFORMATION CONTACT: sales (or the likelihood of sales) for the sodium nitrite covered by this importation of the subject merchandise Brian C. Smith or Gemal Brangman, AD/ investigation may or may not contain an CVD Operations, Office 2, Import within 45 days of this final anti–caking agent. Examples of names Administration, International Trade determination. If the ITC determines commonly used to reference sodium that material injury or threat of material Administration, U.S. Department of nitrite are nitrous acid, sodium salt, injury does not exist, the proceeding Commerce, 14th Street and Constitution anti–rust, diazotizing salts, erinitrit, and will be terminated and all securities Avenue, NW, Washington, DC 20230; filmerine. The chemical composition of posted will be refunded or canceled. If telephone: (202) 482 1766 or (202) 482 sodium nitrite is NaNO2 and it is the ITC determines that such injury 3773, respectively. generally classified under subheading does exist, the Department will issue an SUPPLEMENTARY INFORMATION: antidumping duty order directing CBP 2834.10.1000 of the Harmonized Tariff to assess antidumping duties on all Background Schedule of the United States (HTSUS). imports of the subject merchandise On April 23, 2008, the Department The American Chemical Society entered, or withdrawn from warehouse, published the preliminary Chemical Abstract Service (CAS) has for consumption on or after the effective determination of sales at LTFV in the assigned the name ‘‘sodium nitrite’’ to date of the suspension of liquidation. antidumping investigation of sodium sodium nitrite. The CAS registry nitrite from Germany. See Notice of number is 7632–00–0. Notification Regarding APO Preliminary Determination of Sales at While the HTSUS subheading, CAS This notice also serves as a reminder Less Than Fair Value: Sodium Nitrite registry number, and CAS name are to the parties subject to administrative from the Federal Republic of Germany, provided for convenience and customs protective order (APO) of their 73 FR 21909 (April 23, 2008) purposes, the written description of the responsibility concerning the (Preliminary Determination). We invited scope of this investigation is dispositive. disposition of proprietary information parties to comment on the Preliminary disclosed under APO in accordance Determination. We received case briefs Adverse Facts Available with 19 CFR 351.305. Timely written from the petitioner, General Chemical For the final determination, we notification of return or destruction of LLC, and the respondent, BASF AG continue to find that, by failing to APO materials or conversion to judicial (BASF), on May 23, 2008. The petitioner respond to the antidumping duty protective order is hereby requested. submitted a rebuttal brief on May 28, questionnaire, BASF, the sole Failure to comply with the regulations 2008. No party requested a hearing. and the terms of an APO is a mandatory respondent in this sanctionable violation. Analysis of Comments Received investigation, did not act to the best of This determination and notice are All issues raised in the case and its ability in this investigation. issued and published in accordance rebuttal briefs by parties to this Therefore, the use of adverse facts with sections 735(d) and 777(i)(1) of the antidumping investigation are available (AFA) is warranted for this Act. addressed in the ‘‘Issues and Decision company under sections 776(a)(2) and (b) of the Act. See Preliminary Dated: June 30, 2008. Memorandum for the Final Determination, 73 FR at 21909–21910. David M. Spooner, Determination in the Less–Than-Fair– Value Investigation of Sodium Nitrite As we explained in the Preliminary Assistant Secretary for Import Determination, we selected as the AFA Administration. from the Federal Republic of Germany’’ (Decision Memorandum) from Stephen rate the highest margin alleged in the [FR Doc. E8–15488 Filed 7–7–08; 8:45 am] J. Claeys, Deputy Assistant Secretary for petition, 237.00 percent, as referenced BILLING CODE 3510–DS–S Import Administration, dated June 30, in the notice of initiation. See Sodium 2008, which is hereby adopted by this Nitrite from the Federal Republic of Germany and the People’s Republic of DEPARTMENT OF COMMERCE notice. A list of the issues which parties have raised and to which we have China: Initiation of Antidumping Duty International Trade Administration responded is attached to this notice as Investigations, 73 FR 68563, 68567 an appendix. Parties can find a (December 5, 2007). Further, as A–428–841 complete discussion of all issues raised discussed in the Preliminary Determination, we corroborated the Notice of Final Determination of Sales in this investigation and the AFA rate pursuant to section 776(c) of at Less Than Fair Value: Sodium Nitrite corresponding recommendations in the from the Federal Republic of Germany Decision Memorandum, which is on file the Act. See Preliminary Determination, in the Central Records Unit, room 1117, 73 FR at 21910–21912, and Comment 1 AGENCY: Import Administration, of the main Department Building. In of the Decision Memorandum International Trade Administration, addition, a complete version of the accompanying this notice for further Department of Commerce. Decision Memorandum can be accessed discussion.

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All–Others Rate determines that such injury does exist, further consideration. The Assistant For the final determination, we have the Department will issue an Regional Administrator has made a continued to assign as the all–others antidumping duty order directing CBP preliminary determination that the rate the simple average of the margins to assess antidumping duties on all activities authorized under this EFP in the petition in accordance with the imports of the subject merchandise would be consistent with the goals and Department’s current practice. See entered, or withdrawn from warehouse, objectives of the Northeast (NE) Skate Preliminary Determination, 73 FR at for consumption on or after the effective Complex and NE Multispecies Fishery 21912, and Comment 2 of the Decision date of the suspension of liquidation. Management Plans (FMPs). However, further review and consultation may be Memorandum accompanying this notice Notification Regarding APO for further discussion. necessary before a final determination is This notice also serves as a reminder made to issue an EFP. Therefore, NMFS Final Determination of Investigation to parties subject to administrative announces that the Assistant Regional We determine that the following protective order (APO) of their Administrator proposes to recommend weighted–average dumping margins responsibility concerning the that an EFP be issued that would allow exist for the period October 1, 2006, disposition of proprietary information two commercial fishing vessels to through September 30, 2007: disclosed under APO in accordance conduct fishing operations that are with 19 CFR 351.305. Timely otherwise restricted by the regulations Manufacturer/exporter Margin (percent) notification of return/destruction of governing the fisheries of the APO materials or conversion to judicial Northeastern United States. This EFP, BASF AG ...... 237.00 protective order is hereby requested. which would enable researchers to All Others ...... 150.82 Failure to comply with the regulations study the immediate and short-term and the terms of an APO is a post-release mortality of skates, would Continuation of Suspension of sanctionable violation. grant exemptions from the regulations Liquidation This determination is issued and as follows: Retaining, possessing, or Pursuant to section 735(c)(1)(B) of the published pursuant to sections 735(d) landing prohibited skate species, and Act, we will instruct U.S. Customs and and 777(i)(1) of the Act. skate possession limits for sampling Border Protection (CBP) to continue to Dated: June 30, 2008. purposes. suspend liquidation of all entries of David M. Spooner, Regulations under the Magnuson- Stevens Fishery Conservation and subject merchandise from Germany, Assistant Secretary for Import entered, or withdrawn from warehouse, Administration. Management Act require publication of for consumption on or after April 23, this notification to provide interested 2008, the date of publication of the Appendix—Issues in Decision parties the opportunity to comment on Preliminary Determination. We will Memorandum applications for proposed EFPs. instruct CBP to require a cash deposit or Comments DATES: Comments must be received on the posting of a bond equal to the or before July 23, 2008. Issue 1: Selection of the Adverse Facts weighted–average dumping margins, as ADDRESSES: You may submit written Available Rate for BASF indicated in the chart above, as follows: comments by any of the following Issue 2: Selection of the All–Others Rate (1) the rate for the firm listed above will methods: be the rate we have determined in this [FR Doc. E8–15458 Filed 7–7–08; 8:45 am] • Email: DA8–[email protected]. Include final determination; (2) if the exporter is BILLING CODE 3510–DS–S in the subject line ‘‘Comments on UNE/ not a firm identified in this NEA skate bycatch mortality EFP.’’ investigation, but the producer is, the • Mail: Patricia A. Kurkul, Regional rate will be the rate established for the DEPARTMENT OF COMMERCE Administrator, NMFS, NE Regional producer of the subject merchandise; (3) National Oceanic and Atmospheric Office, 1 Blackburn Drive, Gloucester, the rate for all other producers or Administration MA 01930. Mark the outside of the exporters will be 150.82 percent.1 These envelope ‘‘Comments on UNE/NEA suspension–of-liquidation instructions RIN 0648–XI83 skate bycatch mortality EFP, DA8–145.’’ will remain in effect until further notice. • Fax: (978) 281–9135. Magnuson-Stevens Act Provisions; FOR FURTHER INFORMATION CONTACT: International Trade Commission General Provisions for Domestic Notification Emily Bryant, Fishery Management Fisheries; Application for Exempted Specialist, 978–281–9244. Fishing Permits In accordance with section 735(d) of SUPPLEMENTARY INFORMATION: An the Act, we have notified the AGENCY: National Marine Fisheries application for an EFP was submitted on International Trade Commission (ITC) of Service (NMFS), National Oceanic and June 12, 2008, by Dr. James Sulikowski, our final determination. As our final Atmospheric Administration (NOAA), from the Marine Science Center of UNE, determination is affirmative and in Commerce. for a project funded by the NOAA accordance with section 735(b)(2) of the ACTION: Notice; request for comments. Saltonstall-Kennedy Grant Program. The Act, the ITC will determine, within 45 primary goal of this project is to provide days, whether the domestic industry in SUMMARY: The Assistant Regional data to determine the immediate and the United States is materially injured, Administrator for Sustainable Fisheries, short-term survivability of winter, or threatened with material injury, by Northeast Region, NMFS (Assistant smooth, little, and thorny skates. This reason of imports or sales (or the Regional Administrator), has made a research could provide valuable likelihood of sales) for importation of preliminary determination that an information for future skate the subject merchandise. If the ITC Exempted Fishing Permit (EFP) management objectives. Results will be application submitted by the University provided to the Northeast Fisheries 1 This rate was incorrectly stated as 237.00 percent in the ‘‘Suspension of Liquidation’’ section of New England (UNE) and the New Science Center and the New England of the Preliminary Determination. See Preliminary England Aquarium (NEA) contains all of Fishery Management Council. Determination, 73 FR at 21912. the required information and warrants Researchers will also disseminate

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results to a public audience at the NEA temperatures, estimated weight of catch, Dated: July 1, 2008. to increase awareness of skate the total length and gender of skates, Emily H. Menashes conservation. and handling techniques (e.g., picked or Acting Director, Office of Sustainable Since the stocks of these species are not picked; duration of deck exposure). Fisheries, National Marine Fisheries Service. at or near overfished biomass When catch is hauled aboard, all skates [FR Doc. E8–15375 Filed 7–7–08; 8:45 am] thresholds, and winter and little skates would be tagged with spaghetti tags. BILLING CODE 3510–22–S are subject to directed fisheries, research Skates would either be immediately on bycatch mortality of these species is placed into a live well by one of the needed. In order to conduct this handling methods (without a pick or DEPARTMENT OF COMMERCE research, the principal investigators with a pick) or remain on the deck for have requested an exemption from National Oceanic and Atmospheric possessing and handling prohibited 15 and 30 minutes before being Administration skate species. Additionally, an transferred to live wells. While in the exemption from skate possession wells, specimens would be visually Federal Consistency Appeal by restrictions would authorize project assessed. Any specimens that die prior Foothill/Eastern Transportation investigators to temporarily possess fish to placement within a net pen would be Corridor Agency for scientific data collection purposes placed on ice for subsequent necropsy. AGENCY: National Oceanic and prior to returning all fish to the sea. Viable skates would be placed in Atmospheric Administration (NOAA), Two vessels would each conduct 50 experimental holding pens to be Department of Commerce (Commerce). trips in conjunction with commercial submerged and deployed to the seafloor ACTION: Notice of Public Hearing. days-at-sea (DAS) trips, with one vessel for 72-hour trials. A total of 8 net pens fishing with commercial otter trawl gear would be used, with 20 to 40 skates in SUMMARY: This notice provides and the other fishing with commercial each pen. The modified basic shape information about a public hearing to be gillnets. Both vessels would use held by the National Oceanic and would form a three-dimensional standard commercial gear. Tows would Atmospheric Administration (NOAA) in hexagon with each of the six rectangular vary in time among 30, 60, and 120 Irvine, California. The hearing involves minutes to account for variations in tow sides measuring 5 ft (height) x 6 ft an administrative appeal filed with the duration that occur under normal (length). Two PVC skeletons would be Department of Commerce by the fishing conditions. Gillnet soak times used for the bottom and top of each pen. Foothill/Eastern Transportation would vary but not exceed 24 hr. Two Six vertical sections 5 feet in height Corridor Agency and its board of fishing trials would be conducted. The would support the structure. The directors (TCA). This notice also first would occur from September netting covering the pen would consist announces the reopening of the public through November 2008. The second of 3 or 4–inch diamond mesh tetra and Federal agency comment period for would occur from March through May twine. The base of each pen would be the TCA Consistency Appeal, beginning 2009. Research would occur in the filled and weighted down with a heavy July 21, 2008 and running through inshore and offshore waters off of New composite and would be affixed to the August 4, 2008. Hampshire and southern Massachusetts. seafloor by 2 or 3 40–pound mushroom DATES: NOAA will conduct a public These areas support the vast majority of anchors to reduce the likelihood of pen hearing in the TCA Consistency Appeal skate landings that can also be accessed rollover. Pens would be maneuvered in on July 25, 2008. The hearing will begin during normal fishing operations. All the water column using bridles secured at 10:30 a.m. and will continue until fishing would occur as day trips, and no to whale-safe swivels connected to a 8:30 p.m. Speaker registration begins at fishing would occur in closed areas or main tag line. Each pen would be 10 a.m. on the day of the hearing. during rolling closures. Only winter, marked at the surface with a highflyer ADDRESSES: The public hearing and thorny, smooth and little skates would and buoy. speaker registration will be held at the be used for scientific research purposes. University of California, Irvine, Bren In order to conduct control trials, Northeast multispecies would be landed Events Center, 100 Bren Events Center, UNE proposes to capture a few skates by and sold, up to the current DAS Irvine, California 92697. Written possession limits. handlines. If it proves to be unfeasible comments on issues relevant to the The researchers propose fishing a to capture enough skates by this method Secretary’s decision in this appeal may total of 100 sea days; 50 days fishing to make a statistically robust number of be submitted at the hearing. In addition, with gillnet gear and 50 fishing with trials, vessels would conduct from July 21, 2008 to August 4, 2008, trawl gear. In other words, each vessel abbreviated trawls (e.g., 5-minute tows) comments may be submitted by e-mail would fish for 25 days during each of to obtain minimally stressed controls. to [email protected] or by mail the 2 trials (fall and spring). The addressed to Thomas Street at the objective is to assess at least 300 The applicant may request minor NOAA Office of the General Counsel for specimens of each of the 4 skate species modifications and extensions to the EFP Ocean Services, 1305 East-West per season, for a total 1,200 specimens throughout the year. EFP modifications Highway, Room 6111, Silver Spring, MD per season, and 2,400 specimens for the and extensions may be granted without 20910. entire project. The researchers plan to further notice if they are deemed stagger trials in order to both deploy and essential to facilitate completion of the FOR FURTHER INFORMATION CONTACT: retrieve pens on a given day, thus proposed research and have minimal Thomas Street, Attorney-Advisor, maximizing the number of trials that impacts that do not change the scope or NOAA Office of the General Counsel, can be conducted in the proposed impact of the initially approved EFP 301–713–2967, or Stephanie Campbell, number of sea days. request. Any fishing activity conducted Attorney-Advisor, NOAA Office of the In order to identify possible outside the scope of the exempted General Counsel, 301–713–2967, or influences on discard mortality, the fishing activity would be prohibited. [email protected]. following variables would be recorded: SUPPLEMENTARY INFORMATION: On Authority: 16 U.S.C. 1801 et seq. Deck-time, season (fall, spring), depth of February 15, 2008, TCA filed notice of fishing, air and bottom seawater an appeal with the Secretary of

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Commerce (Secretary), pursuant to the minutes to present their oral comments. Administration (NOAA), Department of Coastal Zone Management Act of 1972 Elected officials and individuals Commerce. (CZMA), 16 U.S.C. 1451 et seq., and representing organizations will receive ACTION: Notice of open meeting. implementing regulations found at 15 five minutes to speak. Only one CFR Part 930, Subpart H. TCA appealed individual may speak on behalf of an SUMMARY: The Hydrographic Services an objection by the California Coastal organization. Review Panel (HSRP) was established Commission (Commission) to TCA’s Written comments on issues relevant by the Secretary of Commerce to advise proposed construction of an extension to the Secretary’s decision in this appeal the Under Secretary of Commerce for to California State Route 241 in northern may be submitted to NOAA at the Oceans and Atmosphere on matters San Diego and southern Orange hearing by any person in attendance. In related to the responsibilities and Counties, California. addition, written comments may be authorities set forth in section 303 of the Under the CZMA, the Secretary may submitted by e-mail to Hydrographic Services Improvement override the Commission’s objection if [email protected] or by mail Act of 1998, its amendments, and such he determines that the project is addressed to Thomas Street, NOAA other appropriate matters that the Under consistent with the objectives or Office of General Counsel for Ocean Secretary refers to the Panel for review purposes of the CZMA or is otherwise Services, 1305 East-West Highway, and advice. necessary in the interest of national Room 6111, Silver Spring, MD 20910. Date and Time: The public meeting security. To make the determination Comments must be received by August will be held July 29–30, 2008, from 8 that the proposed activity is ‘‘consistent 4, 2008. a.m. to 5 p.m. on July 29th and 8 a.m. with the objectives or purposes’’ of the to 12:30 p.m. on July 30th. CZMA, the Secretary must find that: (1) This hearing is being held to obtain The proposed activity furthers the information on issues the Secretary will Location: San Francisco, California. national interest as articulated in likely consider in deciding the TCA’s Sheraton Fisherman’s Wharf, 2500 sections 302 or 303 of the CZMA, in a appeal. A summary of relevant issues as Mason Street, San Francisco, CA, 94133. significant or substantial manner; (2) the well as additional background on the The times and agenda topics are subject adverse effects of the proposed activity appeal appeared in the Federal Register to change. Refer to the HSRP website do not outweigh its contribution to the notice of March 17, 2008, announcing listed below for the most current national interest, when those effects are the appeal, and may be found on the meeting agenda. considered separately or cumulatively; Internet at http://www.ogc.doc.gov/ FOR FURTHER INFORMATION CONTACT: and (3) no reasonable alternative is czma.com.htm. This Web site also Captain Steven Barnum, NOAA, available that would permit the activity includes additional information on the Designated Federal Official (DFO), to be conducted in a manner consistent hearing, including conduct and Office of Coast Survey, National Ocean with enforceable policies of the state’s decorum that is required, restrictions on Service (NOS), NOAA (N/CS), 1315 East coastal management program. 15 CFR the use of cameras and recording West Highway, Silver Spring, Maryland 930.121. equipment and the display of signs and 20910; Telephone: 301–713–2770, Fax: On March 17, 2008, NOAA published banners in the hearing room, the process 301–713–4019; e-mail: a notice in the Federal Register by which testimony will be transcribed [email protected] or visit announcing, among other things, that a and made part of the record, and other the NOAA HSRP Web site at http:// public hearing might be held concerning rules and guidelines. (Please see the set nauticalcharts.noaa.gov/ocs/hsrp/ this appeal. The hearing will be held. of Frequently Asked Questions hsrp.htm. This notice provides scheduling and regarding the hearing.) procedural information about the Questions concerning the hearing SUPPLEMENTARY INFORMATION: The hearing. should be directed to Thomas Street, meeting will be open to the public and The hearing in this appeal will Attorney-Advisor, NOAA Office of the public comment periods will be commence at 10:30 a.m. at the Bren General Counsel, 301–713–2967, or scheduled at various times throughout Events Center and will continue Stephanie Campbell, Attorney-Advisor, the meeting. These comment periods throughout the day with afternoon and NOAA Office of the General Counsel, will be part of the final agenda that will evening sessions. Intermissions are 301–713–2967, or be published before the meeting date on expected near noon and late in the [email protected]. the HSRP website listed above. Each afternoon (around 4:30 p.m.). Other individual or group making a verbal Dated: June 2, 2008. recesses may be called as necessary. presentation will be limited to a total Speakers must register on the day of the Joel La Bissonniere, time of five (5) minutes. Written hearing, on site, at the Bren Events Assistant General Counsel for Ocean Services. comments (at least 30 copies) should be Center. Registration of speakers will [Federal Domestic Assistance Catalog No. submitted to the DFO by July 16, 2008. begin at 10 a.m. The order of the 11.419 Coastal Zone Management Program Written comments received by the DFO speakers will be determined by the Assistance.] after July 16, 2008, will be distributed NOAA officials administering the [FR Doc. E8–15500 Filed 7–7–08; 8:45 am] to the HSRP, but may not be reviewed hearing. Speakers generally will be BILLING CODE 3510–08–P before the meeting date. Approximately recognized in the order in which they 25 seats will be available for the public, register (a first-come-first-served basis), on a first-come, first-served basis. alternating between individuals from DEPARTMENT OF COMMERCE Matters To Be Considered: (1) the general public and those National Oceanic and Atmospheric Swearing in of new member; (2) Panel representing organizations. Specific Administration discussion with various stakeholders in periods are expected to be set aside the region on use of and interest in during the afternoon and evening Hydrographic Services Review Panel NOAA Navigation Services; (3) Updates sessions for remarks by elected officials. Meeting on NOAA/California partnership on Depending on the number of persons Integrated Ocean and Coastal Mapping wishing to speak, speakers from the AGENCY: National Ocean Service, (IOCM) project, NOAA’s Height general public will receive up to three National Oceanic and Atmospheric Modernization and Print on Demand; (4)

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briefing on Climate and the Coasts and Authorization may be granted for made 574 round trips during the 2006– Arctic issues; and (5) public statements. periods up to 5 years if NMFS finds, 2007 ice-covered season. Dated: July 2, 2008. after notice and opportunity for public Drilling activities were conducted at comment, that the taking will have a two well sites from November 17, 2006, John Potts, negligible impact on the species or to May 1, 2007. No vibratory or impact Acting, Associate Assistant Administrator for stock(s) of marine mammals and will pile driving activities took place during Management and CFO/CAO, Ocean Services the present reporting period. The 2007 and Coastal Zone Management. not have an unmitigable adverse impact on the availability of the species or repair activities consisted of removing [FR Doc. E8–15509 Filed 7–7–08; 8:45 am] stock(s) of marine mammals for the concrete blocks in areas that had BILLING CODE 3510–JE–P subsistence uses. In addition, NMFS sustained erosion and/or block damage, must prescribe regulations setting forth installing a new layer of filter fabric, installing gravel bags of various sizes to DEPARTMENT OF COMMERCE the permissible methods of taking and other means of effecting the least build up and stabilize the subgrade, National Oceanic and Atmospheric practicable adverse impact on the installing another layer of filter fabric Administration species and its habitat, and on the and an overlying layer of geogrid to availability of the species for reduce the susceptibility of the fabric to RIN 0648–XI58 subsistence uses. The regulations also abrasion, and installing the concrete must include requirements pertaining to block armor. Taking and Importing Marine the monitoring and reporting of such Each month, four to seven aerial Mammals; Taking Marine Mammals taking. Regulations governing the taking surveys were conducted to inspect the Incidental to Construction and of marine mammals incidental to pipeline for leaks or spills. There were Operation of Offshore Oil and Gas construction and operation of the 25 reportable Northstar-related spills Facilities in the Beaufort Sea, Alaska offshore oil and gas facility at Northstar during the 2006–2007 ice-covered AGENCY: National Marine Fisheries were made effective on April 6, 2006 (71 season and the 2007 open-water season. Service (NMFS), National Oceanic and FR 11314, March 7, 2006), and remain Material spilled included drilling mud, Atmospheric Administration (NOAA), in effect until April 6, 2011. For detailed corrosion inhibitor, sewage, methanol, Commerce. information on this action, please refer motor oil, diesel fuel, hydraulic fluid, lube oil, and propylene glycol. Most of ACTION: Notice of issuance of a letter of to that document. These regulations authorization. include mitigation, monitoring, and this material remained in contaminant reporting requirements. The six species and was recovered. All spilled material SUMMARY: In accordance with the of marine mammals that BP may take in was contained and cleaned up. Marine Mammal Protection Act small numbers during construction and Contaminated snow, ice, and gravel (MMPA), as amended, and operation of the Northstar facility are were removed with various types of implementing regulations, notice is bowhead whales, gray whales, beluga equipment, hand tools, and absorbents. hereby given that NMFS has issued a whales, ringed seals, spotted seals, and No clean-up activity was necessary after letter of authorization (LOA) to BP bearded seals. Northstar flare events during the reporting period. On May 18, 2007, one Exploration (Alaska), Inc. (BPXA) to Summary of Request take marine mammals incidental to the quart of hydraulic fluid was released production of offshore oil and gas at the On May 27, 2008, NMFS received a from a ditch witch; a portion of this Northstar development in the Beaufort request from BPXA for a renewal of an fluid reached Beaufort Sea surface Sea off Alaska. LOA issued on July 6, 2007, for the water. Shovels were used to scrape up DATES: This Authorization is effective taking of small numbers of marine the contaminated snow and ice from the from July 7, 2008, through July 6, 2009. mammals incidental to oil production spill site and sorbents were used to soak operations at Northstar, under the up the materials from the water surface. ADDRESSES: The LOA and supporting regulations issued on March 7, 2006 (71 All the contaminated materials were documentation may be obtained by FR 11314). This request (BPXA, 2008) recovered from the ice and water writing to P. Michael Payne, Office of contains information in compliance surface, thereby avoiding impact to the Protected Resources, NMFS, 1315 East- with 50 CFR 216.209, which updates environment. West Highway, Silver Spring, MD information provided in BPXA’s During the open-water period, there 20910, or by telephoning one of the original application for takings were 190 helicopter round trips, 347 contacts listed here. incidental to construction and hovercraft round trips, 40 tug and barge FOR FURTHER INFORMATION CONTACT: operations at Northstar. BPXA also trips, and 137 Alaska Clean Seas Bay- Candace Nachman or Ken Hollingshead submitted the required activity and class boat round trips to Northstar. (301) 713–2289, or Brad Smith (907) monitoring report under the 2007–2008 There were an additional three trips by 271–3023. LOA. Bay-class boats in association with SUPPLEMENTARY INFORMATION: Section acoustic monitoring of the bowhead 101(a)(5)(A) of the MMPA (16 U.S.C. Summary of Activity and Monitoring whale migration. 1361 et seq.) directs NMFS to allow, on Under the 2007–2008 LOA Seal observations in 2007 began on request, the incidental, but not One offshore ice road was built during May 15 and were conducted almost intentional, taking of small numbers of the 2006–2007 ice-covered season. daily through July 31. Over the standard marine mammals by U.S. citizens who Helicopters made 135 round trips to period of May 15–July 15, a total of engage in a specified activity (other than Northstar during the 2006–2007 ice- three seals were counted during 57 commercial fishing) within a specified covered season to transport crew and days. This was much less than the total geographical region, if certain findings materials to and from the facility and number of observations in 2005 and are made by NMFS and regulations are recommended flight corridors and 2006 over the same period. As in 2005 issued. Under the MMPA, the term altitude restrictions were maintained. and 2006, no seals were observed after ‘‘take’’ means to harass, hunt, capture, Hagglunds tracked vehicles made 37 July 15, when some monitoring or kill or to attempt to harass, hunt, round trips between West Dock and continued. Results of seal counts capture, or kill marine mammals. Northstar Island, and the hovercraft conducted from Northstar Island during

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the reporting period did not provide at the Northstar offshore facility in state ADDRESSES: Comments on the evidence, or reason to suspect, that any and Federal waters in the U.S. Beaufort applications should be addressed to P. seals were killed or injured by Sea. Issuance of this LOA is based on Michael Payne, Chief, Permits, Northstar-related activities during 2007. findings described in the preamble to Conservation and Education Division, No activities were conducted that could the final rule (71 FR 11314, March 7, Office of Protected Resources, National have exposed pinnipeds and whales to 2006) and supported by information Marine Fisheries Service, 1315 East- underwater received levels greater than contained in BPXA’s 2007 annual report West Highway, Silver Spring, MD 190 dB re 1 µPa (rms) or 180 dB re 1 that the activities described in the LOA 20910–3225. The mailbox address for µPa (rms), respectively. will result in the taking of no more than providing email comments is PR1.0648– Seven Directional Autonomous small numbers of bowhead whales, [email protected]. NMFS is not Seafloor Acoustic Recorders (DASARs) beluga whales, ringed seals, and, responsible for e-mail comments sent to were installed in August, 2007. Five of possibly California gray whales, bearded addresses other than the one provided the devices were deployed at locations seals, and spotted seals and that the here. Comments sent via e-mail, 11.4–21.4 km (7.1–13.3 mi) NNE of total taking will have a negligible including all attachments, must not Northstar Island and recorded low- impact on these marine mammal stocks exceed a 10–megabyte file size. Copies frequency sounds continuously for and would not have an unmitigable of the Navy’s application may be approximately 36 days, until October 3. adverse impact on the availability of obtained by writing to the address Simultaneously, near-island recordings these species or stocks for taking for specified above (See ADDRESSES), were obtained from two DASARs placed subsistence uses. telephoning the contact listed below 410–480 m (1,345–1,575 ft) from (see FOR FURTHER INFORMATION CONTACT), Northstar over the same period. In total, Dated: July 1, 2008. James H. Lecky, or visiting the internet at: http:// 11,780 bowhead whale calls were www.nmfs.noaa.gov/pr/permits/ Director, Office of Protected Resources, recorded in approximately 36 days at incidental.htm. the four offshore DASAR locations. A National Marine Fisheries Service. total of 10,146 calls, or 282 calls/day, [FR Doc. E8–15473 Filed 7–7–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: were detected by two of the offshore BILLING CODE 3510–22–S Shane Guan, Office of Protected DASARs combined. The 282 calls/day Resources, NMFS, (301) 713–2289, ext. figure for 2007 is less than those 137. recorded for 2003–2004 but greater than DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: those for 2001, 2002, 2005, and 2006. Background The much higher call counts in 2007 National Oceanic and Atmospheric compared to the two previous years are Administration Sections 101(a)(5)(A) and (D) of the probably related to the absence of RIN 0648–XI88 MMPA (16 U.S.C. 1361 et seq.) direct nearshore pack ice during the 2007 the Secretary of Commerce (Secretary) season, meaning there were probably Taking of Marine Mammals Incidental to allow, upon request, the incidental, more whales closer to shore. to Specified Activities; Taking Marine but not intentional taking of marine Based on boat traffic records, sound Mammals Incidental to Navy Training mammals by U.S. citizens who engage emissions associated with Northstar Operations Conducted Within the Navy in a specified activity (other than activities in 2007 were probably Cherry Point Range Complex commercial fishing) if certain findings somewhat higher than in 2006 but lower are made and regulations are issued or, AGENCY: than in 2001–2003. However, the National Marine Fisheries if the taking is limited to harassment, weather was also considerably windier Service (NMFS), National Oceanic and notice of a proposed authorization is in 2006, which increases baseline sound Atmospheric Administration (NOAA), provided to the public for review. levels. BPXA has no evidence that the Commerce. Authorization for incidental takings island per se was producing sounds that ACTION: Notice; receipt of applications may be granted if NMFS finds that the were different in amplitude or for a letter of authorization (LOA); taking will have no more than a frequency characteristics compared to request for comments and information. negligible impact on the species or previous years. stock(s), will not have an unmitigable Subsistence hunters from Nuiqsut SUMMARY: NMFS has received requests adverse impact on the availability of the who traveled to Cross Island for the from the U.S. Navy (Navy) for an species or stock(s) for subsistence uses, annual bowhead whale hunt did not authorization for the take of marine and if the permissible methods of taking report any negative effects from mammals incidental to training and requirements pertaining to the Northstar activities on their ability to operations conducted within the Navy mitigation, monitoring and reporting of conduct the hunt. In 2007, Nuiqsut Cherry Point Range Complex off the such taking are set forth. whalers landed three whales. One whale coast of North Carolina for the period NMFS has defined ‘‘negligible was struck and lost. beginning May 29, 2009 and ending impact’’ in 50 CFR 216.103 as: May 28, 2014. Pursuant to the an impact resulting from the specified Authorization implementing regulations of the Marine activity that cannot be reasonably expected BPXA complied with the Mammal Protection Act (MMPA), NMFS to, and is not reasonably likely to, adversely requirements of the 2007 LOA, and is announcing our receipt of the Navy’s affect the species or stock through effects on NMFS has determined that the marine request for the development and annual rates of recruitment or survival. mammal take resulting from the 2007 implementation of regulations With respect to military readiness construction and operation activities is governing the incidental taking of activities, the MMPA defines within that analyzed in and anticipated marine mammals and inviting ‘‘harassment’’ as: (i) any act that injures or has the significant by the associated regulations. information, suggestions, and comments on the Navy’s application and request. potential to injure a marine mammal or Accordingly, NMFS has issued a 1–year marine mammal stock in the wild [Level A LOA to BPXA, authorizing the taking of DATES: Comments and information must Harassment]; or small numbers of marine mammals be received no later than August 7, (ii) any act that disturbs or is likely to incidental to oil production operations 2008. disturb a marine mammal or marine mammal

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stock in the wild by causing disruption of Cherry Point Range Complex could Amphibious Warfare natural behavioral patterns, including, but occur during the day or at night. not limited to, migration, surfacing, nursing, Amphibious Warfare (AMW) involves breeding, feeding, or sheltering, to a point Mine Warfare/Mine Exercises the utilization of naval firepower and where such behavioral patterns are logistics in combination with U.S. abandoned or significantly altered [Level B Mine Warfare (MIW) includes the Marine Corps landing forces to project Harassment]. strategic, operational, and tactical use of military power ashore. AMW Summary of Request mines and mine countermine measures encompasses a broad spectrum of (MCM). MIW training is divided into (a) operations involving maneuver from the On June 13, 2008, NMFS received an the laying of mines to degrade the sea to objectives ashore, ranging from application from the Navy requesting an enemy’s capabilities to wage land, air, shore assaults, boat raids, ship-to-shore LOA for the take of bottlenose and and maritime warfare, and (b) the maneuver, shore bombardment and Atlantic spotted dolphins by Level B countering of enemy-laid mines to other naval fire support, and air strike harassment incidental to the proposed permit friendly maneuver or use of and close air support training. In the training activities within the Navy’s selected land or sea areas. Cherry Point Range Complex, AMW Cherry Point Range Complex over the MIW consists of two unit level training is limited to Firing Exercises course of 5 years. These training operations: airborne mine (FIREX). activities are classified as military countermeasures (AMCM) and mine During an FIREX, surface ships use readiness activities. The Cherry Point neutralization. AMCM or Mine their main battery guns to fire from sea Range Complex geographically Countermeasures Exercises (MCMEX) at land targets in support of military encompasses offshore and near-shore forces ashore. On the east coast, the land operation areas (OPAREAs), train forces to detect, identify, classify, mark, avoid, and disable (or verify ranges where FIREX training can take instrumented ranges, and special use place are limited. Therefore, land airspace located along the U.S. Atlantic destruction of) underwater mines (bottom or moored) using a variety of masses are simulated during east coast coast, and is shown in Figure 1 of the FIREX training using the Integrated methods including air, surface, sub- Navy’s LOA application. Please refer to Maritime Portable Acoustic Scoring and surface, and ground assets. The AMCM Table 31 of the LOA application for Simulation System (IMPASS) system, a systems include mine hunting sonar detailed information of the potential system of buoys that simulate a land (AQS–24A), influence mine sweeping exposures from explosive ordnance (per mass. FIREX training using IMPASS in systems (MK–105 and MK–104), anti- year) for marine mammals in the the Cherry Point Range Complex study mine ordnance (Airborne Mine proposed Cherry Point Range Complex area occurs only during daylight hours. area. Neutralization System (AMNS)), and moored mine sweep system (MK–103). Vessel Movement Specified Activities Mine Neutralization operations Vessel movements are associated with In the application submitted to involve the detection, identification, most activities under the training NMFS, the Navy requests authorizations evaluation, rendering safe, and disposal operations in the Cherry Point Range for take of marine mammals incidental of underwater Unexploded Ordnance Complex. Currently, the number of to conducting training operations within (UXO) that constitutes a threat to ships Navy vessels operating in the Cherry the Cherry Point Range Complex. These or personnel. Mine hunting techniques Point study areas varies based on training activities consist of surface involve divers, specialized sonar, and training schedules and can range from 0 warfare, mine warfare, amphibious unmanned underwater vehicles (UUVs) to about 10 vessels at any given time. warfare, and vessel movement. A to locate and classify the mines and Ship sizes range from 362 ft (110 m) for description of each of these training then destroy them using one of two a submarine to 1,092 ft (333 m) for an activities within each of the range methods: mechanical (explosive cutters) aircraft carrier and speeds generally complexes is provided below: or influence (matching the acoustic, range from 10 to 14 knots. Operations Surface Warfare magnetic, or pressure signature of the involving vessel movements occur mine). intermittently and are variable in Surface Warfare (SUW) supports In addition to the current mine duration, ranging from a few hours up defense of a geographical area (e.g., a exercises, the Organic Airborne Mine to 2 weeks. These operations are widely zone or barrier) in cooperation with dispersed throughout the operation area, surface, subsurface, and air forces. SUW Countermeasures (OAMCM) training exercises would begin in the Navy which is a vast area encompassing operations detect, localize, and track 2 Cherry Point Operating Area as these 18,617 nm (an area approximately the surface targets, primarily ships. size of West Virginia). The Navy logs Detected ships are monitored visually new systems are introduced into the fleet. The OAMCM systems include about 950 total vessel days within the and with radar. Operations include Cherry Point study area during a typical mine hunting sonar (AQS–20), influence identifying surface contacts, engaging year. Consequently, the density of ships mine sweeping towed arrays that with weapons, disengaging, evasion and within the study area at any given time emulates the magnetic and acoustic avoiding attack, including is extremely low (i.e., less than 0.005 signatures of transit platforms, anti- implementation of radio silence and ships/nm2). deceptive measures. mine ordnance systems, and mine For the proposed Cherry Point Range hunting laser that uses a light imaging Proposed Monitoring and Mitigation Complex training operations, SUW detecting and ranging (LIDAR) to detect, Measures involving the use of explosive ordnance localize, and classify near-surface The Navy is developing an Integrated includes air-to-surface Missile Exercises moored/floating mines. Comprehensive Monitoring Program (MISSILEX). The MISSILEX would MIW training using Explosive (ICMP) for marine species to assess the involve helicopter crews launch Ordnance Disposal (EOD) underwater effects of training activities on marine missiles at at-sea surface targets with the detonations in the Navy Cherry Point species and investigate population goal of destroying or disabling the Study Area occur only during daylight trends in marine species distribution target. MISSILEX (A-S) training in the hours. and abundance in various range

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complexes and geographic locations Dated: July 2, 2008. should contact the Secretary at least 10 where Navy training occurs. The James H. Lecky, days before the meeting date. primary tools available for monitoring Director, Office of Protected Resources, Dated in Washington, DC, 27 June 26, include visual observations, acoustic National Marine Fisheries Service. 2008. monitoring, photo identification and [FR Doc. E8–15472 Filed 7–7–08; 8:45 am] Thomas Luebke, tagging, and oceanographic and BILLING CODE 3510–22–S Secretary. environmental data collection. [FR Doc. E8–15186 Filed 7–7–08; 8:45 am] A list of proposed mitigation BILLING CODE 6330–01–M measures and standard operating COMMISSION OF FINE ARTS procedures are described in the application for the proposed training Notice of Meeting DEPARTMENT OF DEFENSE operations. These mitigation measures include personnel training for The next meeting of the U.S. Office of the Secretary watchstanders and lookouts in marine Commission of Fine Arts is scheduled mammal monitoring, operating for 17 July 2008, at 10 a.m. Due to the [Transmittal Nos. 08–45] closure of the National Building procedures for collision avoidance, 36(b)(1) Arms Sales Notification specific measures applicable to the mid- Museum that morning, the meeting will Atlantic during North Atlantic right convene at 10 a.m. in the boardroom of AGENCY: Department of Defense, Defense whale migration, and a series of the National Capital Planning Security Cooperation Agency. Commission, 401 9th Street, NW., Suite measures for specific at-sea training ACTION: Notice. events including surface-to-surface 500, Washington, DC 20576, for the gunnery, etc. A detailed description of presentation and review of the National SUMMARY: The Department of Defense is Capital Framework Plan. Following this the monitoring and mitigation measures publishing the unclassified text of a presentation, the Commission meeting are provided in the applications. section 36(b)(1) arms sales notification. will reconvene at 12 noon in the This is published to fulfill the Information Solicited Commission’s offices in the National requirements of section 155 of Public Building Museum, Suite 312, Judiciary Law 104–164 dated 21 July 1996. Interested persons may submit Square, 401 F Street, NW., Washington, FOR FURTHER INFORMATION CONTACT: Ms. information, suggestions, and comments DC 20001–2728. Items of discussion B. English, DSCA/DBO/CFM, (703) 601– concerning the Navy’s request (see may include buildings, parks, and 3740. ADDRESSES). All information, memorials. The following is a copy of a letter to suggestions, and comments related to Draft agendas and additional the Speaker of the House of the Navy’s Cherry Point Range Complex information regarding the Commission Representatives, Transmittals 08–45 request and NMFS’ potential are available on our Web site: http:// with attached transmittal, policy development and implementation of www.cfa.gov. Inquiries regarding the justification, and Sensitivity of regulations governing the incidental agenda and requests to submit written Technology. taking of marine mammals by the or oral statements should be addressed Navy’s training activities will be to Thomas Luebke, Secretary, U.S. Dated: June 30, 2008. considered by NMFS in developing, if Commission of Fine Arts, at the above Patricia L. Toppings, appropriate, the most effective address, or call 202–504–2200. OSD Federal Register Liaison Officer, regulations governing the issuance of Individuals requiring sign language Department of Defense. letters of authorization. interpretation for the hearing impaired BILLING CODE 5001–06–M

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[FR Doc. E8–15277 Filed 7–7–08; 8:45 am] SUPPLEMENTARY INFORMATION: Purpose of than Noon on Monday, July 14th to BILLING CODE 5001–06–C the Meeting: The mission of the DBB is arrange a Pentagon escort. Public to advise the Secretary of Defense on attendees are required to arrive at the effective strategies for implementation Pentagon Metro Entrance by 8:30 a.m DEPARTMENT OF DEFENSE of best business practices of interest to and complete security screening by 8:45 the Department of Defense. At this a.m. Security screening requires two Office of the Secretary meeting, the Board will deliberate on forms of identification: (1) a findings from three task groups: (1) Task government-issued photo I.D., and (2) Defense Business Board (DBB) Group Industrial Base Strategic any type of secondary I.D. which Meeting Relationship, (2) Task Group on verifies the individual’s name (i.e. debit AGENCY: Department of Defense. Enterprise Governance, and (3) Task card, credit card, work badge, social ACTION: Notice of Meeting. Group on Capabilities Requirements. security card). Copies of DRAFT Task Group Committee’s Designated Federal SUMMARY: Under the provisions of the presentations will be available on Officer: Phyllis Ferguson, Defense Federal Advisory Committee Act of Friday, July 11th by contacting the DBB Business Board, 1155 Defense Pentagon, 1972 (5 U.S.C., Appendix, as amended), Office. Room 3C288, Washington, DC 20301– the Government in the Sunshine Act of Agenda: 9 a.m.–10:30 a.m. Public 1155, [email protected], (703) 1976 (5 U.S.C. 552b, as amended), and Meeting. 695–7563. 41 CFR 102–3.150, the Department of • Task Group Reports: Pursuant to 41 CFR 102–3.105(j) and • Defense announces that the following Industrial Base Strategic 102–3.140, and section 10(a)(3) of the Federal advisory committee meeting of Relationship Federal Advisory Committee Act of • the Defense Business Board (DBB). Enterprise Governance 1972, the public or interested • Capabilities Requirements organizations may submit written DATES: Thursday, July 17, 2008 (9 a.m. Public’s Accessibility to the Meeting: statements to the Defense Business to 10:30a.m.) Pursuant to 5 U.S.C. 552b and 41 CFR Board about its mission and functions. ADDRESSES: Pentagon, Room 3E863. 102–3.140 through 102–3.165, and the Written statements may be submitted at FOR FURTHER INFORMATION CONTACT: availability of space, this meeting is any time or in response to the stated Debora Duffy, Defense Business Board, open to the public. Seating is on a first- agenda of a planned meeting of the 1155 Defense Pentagon, Room 3C288, come basis. Members of the public who Defense Business Board. Washington, DC 20301–1155, wish to attend the meeting must contact All written statements shall be [email protected], (703) 697–2168. the Defense Business Board no later submitted to the Designated Federal

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Officer for the Defense Business Board, increased to 12) as the preferred quality of life requirements while and this individual will ensure that the alternative for Army transformation. meeting the strategic defense needs of written statements are provided to the DATES: The public comment period for the nation. membership for their consideration. the Draft PEIS will end 45 days after After reviewing the full range of Contact information for the Designated publication of an NOA in the Federal potential Army transformation options, Federal Officer can be obtained from the Register by the U.S. Environmental four alternatives have been identified by GSA’s FACA Database—https:// Protection Agency. the Army as reasonable for meeting the www.fido.gov/facadatabase/public.asp. ADDRESSES: Copies of the Draft PEIS are Army’s needs and screening criteria. Statements being submitted in available at the Directorate of Public Alternatives include: (1) Increase of response to the agenda mentioned in Affairs. Send all written comments approximately 690 Soldiers and add this notice must be received by the concerning this PEIS to: Mr. capability to increase training rotations Designated Federal Officer at the Muhammad Ban, U.S. Army National from 10 to 11 per year; (2) increase of address listed above at least five Training Center, Attn: IMWE–IRW– approximately 5,000 Soldiers and add calendar days prior to the meeting PWE, PO Box 105085, Fort Irwin, CA capability to increase training rotations which is the subject of this notice. 92310–5085. from 10 to 11 per year; (3) increase of Written statements received after this FOR FURTHER INFORMATION CONTACT: Mr. approximately 690 Soldiers and add date may not be provided to or Muhammad Ban at (760) 380–3410, capability to increase training rotations considered by the Defense Business facsimile: (760) 380–2677, e-mail: from 10 to 12 per year; and (4) increase Board until its next meeting. [email protected]. The Designated Federal Officer will of approximately 5,000 Soldiers and add review all timely submissions with the SUPPLEMENTARY INFORMATION: This Draft capability to increase training rotations Defense Business Board Chairperson PEIS assesses the environmental from 10 to 12 per year. The alternatives and ensure they are provided to all impacts associated with the stationing also include construction of new members of the Defense Business Board and training of new Soldiers at Fort facilities, an increase in installation before the meeting that is the subject of Irwin. In October 1999, the senior operations, and an adjustment of this notice. leadership of the Army expressed a new institutional programs to support vision regarding future readiness, force realigned units and organizations. The Dated: July 1, 2008. structure, personnel and transformation No Action Alternative is described and Patricia L. Toppings, of the Army to meet the challenges and its environmental impacts fully assessed OSD Federal Register Liaison Officer, demands of the 21st century. In and considered. Department of Defense. December 2000, the Army proposed to Direct, indirect, and cumulative [FR Doc. E8–15431 Filed 7–7–08; 8:45 am] undertake a synchronized program as impacts of the alternatives have been BILLING CODE 5001–06–P stated in the Army Transformation considered in the Draft PEIS. The Draft Campaign Plan to transform the existing PEIS identifies significant impacts of force structure (from a ‘‘division-based’’ DEPARTMENT OF DEFENSE force to a modular ‘‘brigade-based’’ each of the four alternative HBCT force) in three phases over a 30-year transformation scenarios. Potential Department of the Army period as described in the PEIS for impacts of concern regarding Army Transformation. A Record of transformation activities (not in priority Notice of Availability of the Draft Decision for that PEIS was signed in order) are: water supply, air quality, Programmatic Environmental Impact April 2002 to proceed with the 30-year land uses, utility system capacities, Statement (PEIS) for the Brigade phased implementation of Army traffic increases, and increase in Combat Team Transformation at Fort Transformation. hazardous material usage and hazardous Irwin, CA The Army leadership determined that waste generation. Impacts from AGENCY: Department of the Army, DoD. the 11th Armored Cavalry Regiment alternatives would result from new construction, additional rotations, and ACTION: Notice of Availability (NOA). (ACR) should transform over a period of several years to become a additional personnel. Significant SUMMARY: The Fort Irwin National MultiComponent Heavy Brigade Combat impacts to resources would be direct Training Center announces the Team (HBCT), deployable throughout and long term. The No Action availability of a Draft PEIS for mission the world. Other smaller units would Alternative provides the baseline realignment in support of Army also be stationed at Fort Irwin. Training conditions for comparison to the other Transformation, the Army Campaign rotations would increase and additional action alternatives. Additional concerns Plan, and other Army initiatives. new Soldiers would be stationed at Fort or impacts may be identified as a result Pursuant to the National Environmental Irwin. Additional cantonment and range of comments received on this Draft Policy Act (NEPA), the Department of construction would be necessary to PEIS. the Army has prepared a PEIS to support the increase in rotations and Public comment meetings on the Draft disclose potential impacts to the troops. PEIS will be held with exact dates and natural, physical, and human This Draft PEIS examines several locations to be determined and environment resulting from Army alternatives for implementation of Army published in the local news media, via transformation efforts at Fort Irwin. transformation at Fort Irwin. The PEIS public notices or mailings well in Potential impacts from alternatives that will provide the Army senior leadership advance of the meetings. are capable of meeting the Army’s with a hard look at environmental training, operations, and quality of life impacts associated with the Proposed Dated: June 27, 2008. requirements have been analyzed. After Action and better inform their decision- Addison D. Davis, IV, reviewing a full range of possible making process for selecting the final Deputy Assistant Secretary of the Army alternative transformation options, the HBCT transformation option. This PEIS (Environment, Safety and Occupational Army has selected Alternative 4 effort will assist the Army in arriving at Health). (increase of approximately 5,000 a decision that can accommodate the [FR Doc. E8–15185 Filed 7–7–08; 8:45 am] Soldiers and training rotation capacity Brigade’s training, operations, and BILLING CODE 3710–08–M

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DEPARTMENT OF DEFENSE associated with Navy’s conduct of major focus research attention on areas of exercise training in offshore operating national need. We intend these Department of the Navy areas along the East and Gulf Coasts of priorities to improve rehabilitation the U.S. (April 2008). services and outcomes for individuals Notice of Availability of Finding Environmental concerns addressed in with disabilities. the EA included land use, community AGENCY: Department of the Navy, DoD. DATES: Effective Date: These priorities facilities, coastal zone management, are effective August 7, 2008. ACTION: Notice. socioeconomics, cultural resources, FOR FURTHER INFORMATION CONTACT: airspace, air quality, noise, geology, SUMMARY: Pursuant to Section 102(2)(C) Donna Nangle, U.S. Department of soils, water resources, biological of the National Environmental Policy Education, 400 Maryland Avenue, SW., resources, munitions and hazardous Act (NEPA) of 1969 and the Council on room 6029, Potomac Center Plaza (PCP), materials management, and safety. The Environmental Quality regulations (40 Washington, DC 20202. Telephone: EA and OEA addressed potential CFR parts 1500–1508), implementing (202) 245–7462 or by e-mail: impacts to the ocean physical procedural provisions of NEPA, and [email protected]. environment, fish and Essential Fish Executive Order (EO) 12114, If you use a telecommunications Habitat; sea turtles and marine Environmental Effects Abroad of Major device for the deaf (TDD), call the mammals; seabirds and migratory birds; Federal Actions, the Department of the Federal Relay Service (FRS), toll free, at endangered and threatened species; Navy (DON) gives notice that a 1–800–877–8339. socioeconomics; and cultural resources. combined Finding of No Significant Individuals with disabilities can The SOEA included an updated analysis Impact (FONSI)/Finding of No obtain this document in an alternative of MFA sonar use. Significant Harm (FONSH) has been This action includes mitigation format (e.g., Braille, large print, issued and is available for Carrier Strike measures to reduce impacts to a level audiotape, or computer diskette) on Group Joint Task Force Exercise (CSG that is less than significant. In request to the contact person listed JTFEX) July 2008. FOR FURTHER INFORMATION accordance with the Major Atlantic under DATES: The effective date of the finding Fleet Training Exercise EA and OEA CONTACT. is July 2, 2008. and the SOEA and the evaluation of the SUPPLEMENTARY INFORMATION: We ADDRESSES: Electronic copies of the nature, scope and intensity of the published a notice of proposed combined FONSI/FONSH are available proposed action, the Navy finds that the priorities (NPP) for NIDRR’s RRTC for public viewing or downloading at conduct of the CSG JTFEX in July 2008 program in the Federal Register on http://www.navydocuments.com. will not significantly impact or harm the April 28, 2008 (73 FR 22932). The NPP FOR FURTHER INFORMATION CONTACT: environment and, therefore, an included background statements that Commander, Second Fleet Public Environmental Impact Statement or described our rationale for the priorities Affairs, Commander Phillips telephone: Overseas Environmental Impact proposed in that notice. 757–443–9822 or visit http:// Statement is not required. There are differences between the www.navydocuments.com. Dated: July 1, 2008. NPP and this notice of final priorities (NFP) as discussed in the following T. M. Cruz, SUPPLEMENTARY INFORMATION: CSG section. JTFEX (July 2008) is a major Navy Lieutenant Commander, Judge Advocate Atlantic Fleet training exercise General’s Corps, U.S. Navy, Federal Register Analysis of Comments and Changes Liaison Officer. proposed to occur in July 2008 in the In response to our invitation in the offshore Charleston and Jacksonville [FR Doc. E8–15400 Filed 7–7–08; 8:45 am] NPP, five parties submitted comments Operating Areas (OPAREAs) and BILLING CODE 3810–FF–P on the proposed priorities. An analysis adjacent military installations. The of the comments and of any changes in purpose of this exercise is to certify the priorities since publication of the naval forces as combat-ready. Activities DEPARTMENT OF EDUCATION NPP follows. conducted during the exercise include Generally, we do not address National Institute on Disability and air-to-ground (ATG) bombing at land technical and other minor changes, or Rehabilitation Research (NIDRR)— ranges, Combat Search and Rescue suggested changes the law does not Disability and Rehabilitation Research (CSAR), Maritime Interdiction authorize us to make under the Projects and Centers Program— Operations (MIO), Naval Gunfire using applicable statutory authority. In Rehabilitation Research and Training non-explosive ordnance, Fast Attack addition, we do not address comments Centers (RRTCs) Craft/Fast Inshore Attack Craft (FAC/ that raised concerns not directly related FIAC), and Anti-Submarine Warfare AGENCY: Office of Special Education and to the proposed priorities. (ASW), including use of mid-frequency Rehabilitative Services, Department of General Comments active (MFA) sonar. Education. The FONSI is based on analysis ACTION: Notice of final priorities for Comment: With regard to priorities 1 contained in a Comprehensive RRTCs. through 3, one commenter noted that Environmental Assessment (EA) ‘‘scientifically based research’’ is addressing environmental impacts SUMMARY: The Assistant Secretary for required only for research activities that associated with land-based training for Special Education and Rehabilitative require testing interventions. This Major Atlantic Fleet Training Exercises Services announces four priorities for commenter recommended that all on the East and Gulf Coasts of the U.S. RRTCs under the Disability and research conducted under these (February 2006). The FONSH is based Rehabilitation Research Projects and priorities be ‘‘scientifically based.’’ on analysis contained in a Centers Program administered by Discussion: NIDRR only requires Comprehensive Overseas Environmental NIDRR. The Assistant Secretary may use ‘‘scientifically based research’’ for Assessment (OEA) (February 2006) and one or more of these priorities for research activities that involve testing a Supplement to the Comprehensive competitions in fiscal year (FY) 2008 interventions. The definition of OEA (SOEA) for environmental impacts and later years. We take this action to ‘‘scientifically based research’’ used in

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all of the priorities in this notice and the goals of employment and Discussion: Proposed priorities 1 emphasizes the use of ‘‘experimental or community participation. through 3 did not require recruitment of quasi-experimental designs in which Discussion: NIDRR does not agree research participants from populations individuals, entities, programs, or with these comments and the associated of individuals who are served by State activities are assigned to different recommendations. In the Plan, we state: VR programs. The priorities state that conditions and with appropriate ‘‘While the proposed plan is organized the center must conduct research on controls to evaluate the effects of the along domains of research [e.g., individuals who are served by the State condition of interest, with a preference employment, health and function, VR Services program, or who receive for random-assignment experiments’’ participation and community living] for rehabilitation services from other (See section 9101(37) of the Elementary the sake of manageability, it also makes sources. and Secondary Education Act of 1965, clear that disability is a holistic Changes: None. as amended by the No Child Left Behind phenomenon that involves many Priority 2—Enhancing the Functional Act of 2001 for the definition of the term overlapping and cross-domain issues.’’ and Employment Outcomes of ‘‘scientifically based research.’’). NIDRR (See 71 FR 8166, 8166.) We also note, believes that experimental research ‘‘In addition, with respect to those Individuals With Multiple Sclerosis designs are appropriate for research that programs for which NIDRR establishes Comment: In reference to language in involves testing interventions, but not annual priorities—Rehabilitation paragraph (b) of this priority, one necessarily for the other research Research and Training Centers (RRTCs), commenter noted that research and activities to be carried out under these Rehabilitation Engineering Research clinical information indicate that the priorities. For example, experimental Centers (RERCs), and Disability and vast majority of individuals with designs are not generally appropriate or Rehabilitation Research Projects multiple sclerosis (MS) already live in necessary in the initial stages of (DRRPs)—NIDRR may require community settings. The commenter developing new measures and methods, applicants to focus on one or more stated that it is important to support identifying or developing interventions, target populations or issues that cut research that improves the ability of or determining the experiences and across domains.’’ We indicate clearly in individuals with MS to participate in outcomes of individuals with the Plan that RRTCs are expected to be the community and suggested that disabilities who seek to return to work. multidisciplinary—in other words, to NIDRR revise the priority to reflect that Changes: None. combine the strengths and perspectives focus. Comment: One commenter noted that of researchers from multiple disciplines Discussion: We intended to each of the proposed priorities included and areas of expertise. (See 71 FR 8166, emphasize the need for research to an incorrect reference for the 8177.) Therefore, we believe that a focus improve employment and community Department’s definition of the term on employment in priorities 1 through participation outcomes in this priority. scientifically based research. 3 is consistent with the We will change the priority to clarify Discussion: We agree and will make multidisciplinary approach in the Plan. our intent. this change. Although a mandatory focus on Changes: In paragraph (b) of this Changes: In all four priorities, we employment outcomes in these priority, we have clarified that the have changed the reference for the priorities may limit research activities grantee must examine, among other Department’s definition of scientifically related to outcomes in other domains, things, interventions to enhance based research to section 9101(37) of the NIDRR believes that research involving community participation. Elementary and Secondary Education both the health and function and Comment: One commenter stated that Act of 1965, as amended by the No employment domains will generate there is a need for research on strategies Child Left Behind Act of 2001. knowledge that can be used to improve and assistive devices that enhance the Comment: Two commenters both medical rehabilitation and functional and community participation recommended that NIDRR remove all vocational rehabilitation (VR) services outcomes among individuals with MS. references to employment from for individuals with disabilities. NIDRR Discussion: While NIDRR agrees with priorities 1 through 3. One of these recognizes that there are many factors the commenter that there is a need for commenters noted that NIDRR’s Long likely to affect the relationship between research about strategies and assistive Range Plan for fiscal years 2005–2009 health and functional abilities, on the devices to enhance the functional and (Plan) acknowledges the continued need one hand, and employment outcomes, community participation outcomes for for research on medical rehabilitation on the other. Research under these individuals with MS, NIDRR does not interventions to improve function, as priorities can help provide insight into believe that it is necessary to revise the well as health research to improve this relationship so that medical and VR priority to address this specific need. outcomes such as health and wellness. services can be optimized and targeted Applicants under this priority already This commenter suggested that appropriately. have flexibility to choose the types of including an employment-related Changes: None. interventions they propose to identify, outcome in the priorities that focus Comment: Referring to priorities 1 or to develop and evaluate. Assistive primarily on health and function topics through 3, one commenter devices are one specific type of will dilute the impact of research recommended removing the intervention that could be examined carried out under NIDRR’s employment requirement that the centers recruit under this priority. and health and function domains. This research participants from VR Changes: None. commenter also expressed concern that populations. The commenter noted that the focus on employment outcomes such a requirement would unnecessarily Priority 3—Aging With Physical would preclude research on community limit study populations, create Disability: Reducing Secondary participation outcomes and recruitment barriers, and result in Conditions and Enhancing Health and recommended that NIDRR include in unnecessarily expensive and lengthy Participation, Including Employment each priority a statement from its Plan studies to demonstrate empirical Comment: One commenter asked that acknowledges the importance of relationships between health and whether applicants under this priority health and function among people with functional status and employment must choose from the list of impairment disabilities to achieve NIDRR’s mission outcomes. groups in the second paragraph of the

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priority when selecting the groups that appropriate to require all applicants to • Priority 1—Enhancing the will be the focus of their research. propose to collaborate with this Functional and Employment Outcomes Discussion: The short list of SAMHSA program. For this reason, of Individuals Who Experience a Stroke. impairment groups in the priority NIDRR declines to reference the • Priority 2—Enhancing the provides examples; applicants are not SAMHSA program in the text of this Functional and Employment Outcomes restricted to this list. Applicants are free priority. of Individuals With Multiple Sclerosis. to select the group or groups that will Changes: None. • Priority 3—Aging With Physical be the focus of their research. Disability: Reducing Secondary Note: This notice does not solicit Changes: None. applications. In any year in which we choose Conditions and Enhancing Health and Comment: One commenter asked Participation, Including Employment. to use these final priorities, we invite • whether the focus of this priority is applications through a notice in the Federal Priority 4—Participation and exclusively on individuals with Register. When inviting applications we Community Living for Individuals With disabilities who are 65 years of age or designate each priority as absolute, Psychiatric Disabilities. older, or if the focus is also on adults competitive preference, or invitational. The Rehabilitation Research and Training with disabilities in middle age. effect of each type of priority follows: Discussion: NIDRR does not intend for Absolute priority: Under an absolute Centers (RRTCs) this center to focus only on individuals priority, we consider only applications that The purpose of the RRTC program is with disabilities who are 65 years of age meet the priority (34 CFR 75.105(c)(3)). to improve the effectiveness of services or older. As we describe in the Competitive preference priority: Under a authorized under the Rehabilitation Act competitive preference priority, we give background statement for this priority, competitive preference to an application by of 1973, as amended, through advanced NIDRR is interested in the experience of either (1) awarding additional points, research, training, technical assistance, individuals who acquired their depending on how well or the extent to and dissemination activities in general disability at birth, childhood, or early which the application meets the competitive problem areas, as specified by NIDRR. adulthood and who are now aging. We preference priority (34 CFR 75.105(c)(2)(i)); Such activities are designed to benefit will add language to the priority to or (2) selecting an application that meets the rehabilitation service providers, make this clear. competitive preference priority over an individuals with disabilities, and the Changes: We have changed the application of comparable merit that does not family members or other authorized language to clarify that the center meet the priority (34 CFR 75.105(c)(2)(ii)). representatives of individuals with funded under this priority must focus Invitational priority: Under an invitational priority, we are particularly interested in disabilities. In addition, NIDRR intends its research on individuals with a applications that meet the invitational to require all RRTC applicants to meet physical disability, including those who priority. However, we do not give an the requirements of the General acquired their disability at birth, in application that meets the invitational Rehabilitation Research and Training childhood, or in early adulthood and priority a competitive or absolute preference Centers (RRTC) Requirements priority, who are now aging into middle or late over other applications (34 CFR 75.105(c)(1)). which was published in a notice of final adulthood. This notice of final priorities (NFP) is priorities in the Federal Register on Comment: One commenter noted that in concert with President George W. February 1, 2008 (73 FR 6132). the prevention of falls among Bush’s New Freedom Initiative (NFI) Additional information on the RRTC individuals with physical disabilities and NIDRR’s Final Long-Range Plan for program can be found at: http:// should be a key research priority. FY 2005–2009 (Plan). Background www.ed.gov/rschstat/research/pubs/res- Discussion: NIDRR agrees that the program.html#RRTC. prevention of falls is a topic that is information on the NFI can be accessed relevant to individuals who are aging on the Internet at the following site: Statutory and Regulatory Requirements with physical disabilities. Applicants http://www.whitehouse.gov/infocus/ of RRTCs are free to propose research on this topic newfreedom. RRTCs must— under this priority. The Plan, which was published in the • Carry out coordinated advanced Changes: None. Federal Register on February 15, 2006 programs of rehabilitation research; (71 FR 8165), can be accessed on the • Provide training, including Priority 4—Participation and Internet at the following site: http:// graduate, pre-service, and in-service Community Living for Individuals With www.ed.gov/about/offices/list/osers/ training, to help rehabilitation Psychiatric Disabilities nidrr/policy.html. personnel more effectively provide Comment: One commenter requested Through the implementation of the rehabilitation services to individuals that NIDRR provide references to the NFI and the Plan, NIDRR seeks to: (1) with disabilities; Substance Abuse and Mental Health Improve the quality and utility of • Provide technical assistance to Services Administration’s (SAMHSA’s) disability and rehabilitation research; individuals with disabilities, their Best Practices Planning and (2) foster an exchange of expertise, representatives, providers, and other Implementation Grants program, to information, and training to facilitate interested parties; facilitate collaboration of the center the advancement of knowledge and • Demonstrate in their applications funded under this priority with this understanding of the unique needs of how they will address, in whole or in program. traditionally underserved populations; part, the needs of individuals with Discussion: NIDRR agrees that (3) determine best strategies and disabilities from minority backgrounds; SAMHSA’s Best Practices Planning and programs to improve rehabilitation • Disseminate informational materials Implementation Grants program may be outcomes for underserved populations; to individuals with disabilities, their a potential source of information for, or (4) identify research gaps; (5) identify representatives, providers, and other potential collaborator of, the center mechanisms of integrating research and interested parties; and funded under this priority. NIDRR practice; and (6) disseminate findings. • Serve as centers of national typically references in its priorities only excellence in rehabilitation research for Priorities those programs or entities with which individuals with disabilities, their the grantee is required to collaborate. In In this notice, we are announcing four representatives, providers, and other this case, NIDRR does not believe it is priorities for RRTCs. interested parties.

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Priorities thereby allowing individuals to return Priority 3—Aging With Physical to work. Disability: Reducing Secondary Priority 1—Enhancing the Functional Conditions and Enhancing Health and and Employment Outcomes of Priority 2—Enhancing the Functional Participation, Including Employment Individuals Who Experience a Stroke and Employment Outcomes of The Assistant Secretary for Special The Assistant Secretary for Special Individuals With Multiple Sclerosis Education and Rehabilitative Services Education and Rehabilitative Services The Assistant Secretary for Special announces a priority for a Rehabilitation announces a priority for a Rehabilitation Education and Rehabilitative Services Research and Training Center (RRTC) on Research and Training Center (RRTC) on announces a priority for a Rehabilitation Aging With Physical Disability: Enhancing the Functional and Research and Training Center (RRTC) on Employment Outcomes of Individuals Reducing Secondary Conditions and Enhancing the Functional and Enhancing Health and Participation, Who Experience a Stroke. This RRTC Employment Outcomes of Individuals must conduct rigorous research, Including Employment. This RRTC With Multiple Sclerosis. This RRTC must conduct rigorous research, training, technical assistance, and must conduct rigorous research, dissemination activities to enhance the training, technical assistance, and training, technical assistance, and dissemination activities to improve functional and employment outcomes of dissemination activities to enhance the individuals who experience a stroke. rehabilitation outcome measures and functional and employment outcomes of rehabilitation interventions that can be In doing so, the RRTC must focus on individuals with multiple sclerosis no more than two of the following applied in clinical or community-based (MS). settings and used by other researchers. dimensions: Improved mobility, In doing so, the RRTC must focus on secondary conditions (e.g., pain, The intended outcome of the RRTC is to how one or both of the following fatigue), and emotional well-being. enhance community participation, dimensions affect the employment Under this priority, the RRTC must be including employment, of individuals outcomes of individuals with MS: The designed to contribute to the following aging with long-term physical prevention or reduction of secondary outcomes: disabilities by advancing knowledge (a) Improved outcome measures for conditions (e.g., pain, fatigue, about the identification, assessment, use with individuals who experience a depression, cognitive impairment) and treatment, and improved management of stroke. The RRTC must contribute to improved mobility. Under this priority, the secondary conditions likely this outcome by identifying or the RRTC must be designed to experienced by individuals aging with a developing and testing methods and contribute to the following outcomes: physical disability. Individuals aging measures to assess outcomes in the (a) Improved outcome measures for with a physical disability include those dimensions that the RRTC chooses to use with individuals with MS. The who acquired their disability at birth, in focus on (e.g., mobility, secondary RRTC must contribute to this outcome childhood, or in early adulthood and conditions, emotional well-being). by identifying or developing and testing who are now aging into middle or late (b) Improved medical rehabilitation or methods and measures to assess adulthood. community-based rehabilitation outcomes in the dimensions on which In addressing this priority, the RRTC interventions for individuals who the RRTC chooses to focus. must propose a limited number of high- experience a stroke. The RRTC must (b) Improved medical rehabilitation or quality, cross-disability research contribute to this outcome by community-based rehabilitation projects to address the secondary identifying or developing and testing interventions. The RRTC must conditions that are most relevant to the new rehabilitation interventions that are contribute to this outcome by improving lives of individuals with physical designed to improve mobility, reduce the ability of individuals with MS to disabilities. To ensure the feasibility of the onset of secondary conditions, or remain in the workforce and to the RRTC’s proposed activities and improve emotional well-being among participate in the community through increase the likelihood of achieving the individuals who experience a stroke. identifying or developing and testing planned outcomes, the RRTC must focus Where possible, the RRTC must use new rehabilitation interventions. Where on two to four discrete impairment scientifically based research (as this possible, the Center must use groups (e.g., spinal cord injury, cerebral term is defined in section 9101(37) of scientifically based research (as this palsy, multiple sclerosis, rheumatoid the Elementary and Secondary term is defined in section 9101(37) of arthritis, stroke, post-polio) and must Education Act of 1965, as amended by the Elementary and Secondary limit intervention strategies to no more the No Child Left Behind Act of 2001) Education Act of 1965, as amended by than two of the following modalities: methods to test these interventions. the No Child Left Behind Act of 2001) exercise, health promotion, (c) Improved employment outcomes methods to test these interventions. psychological adaptation, life planning among individuals who experience a (c) Improved employment outcomes or self-management skills, and stroke. The RRTC must contribute to among individuals with MS. The RRTC environmental or technological this outcome by conducting research on must contribute to this outcome by supports. Under this priority, the RRTC the experiences and outcomes of conducting research on the experiences must be designed to contribute to the individuals who experience a stroke and and outcomes of individuals with MS following outcomes: who seek to return to work. The RRTC’s who are served by the State Vocational (a) Enhanced understanding of the research must include research on Rehabilitation Services (VR) program or natural course of aging with a physical individuals who are served by the State who receive MS-rehabilitation services disability. The RRTC must contribute to Vocational Rehabilitation (VR) Services from other sources, and by identifying this outcome by documenting the life program or who receive stroke/neuro- rehabilitation services that are trajectories and average age of onset of rehabilitation services from other associated with the reduction of specific the major types of secondary conditions sources, and must identify neuro- MS-related symptoms and functional experienced by individuals living with rehabilitation services that are limitations. Research must include long-term physical disabilities in the associated with positive outcomes in the investigation of job modifications and selected impairment groups, and treatment of specific stroke-related accommodations associated with examining the interrelationships among impairments and functional limitations successful employment. different types of secondary conditions

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and the consequences of variations in priority, the RRTC must be designed to Information on knowledge translation timing of onset for health and contribute to the following outcomes: projects funded by NIDRR can be found community participation. (a) Improved individual and system at http://www.naric.com/research/pd/ (b) Improved tools and measures for capacity to maximize the participation priority.cfm. use with individuals aging with long- of individuals with psychiatric term physical disabilities. The RRTC disabilities in community life. The Executive Order 12866 must contribute to this outcome by RRTC must contribute to this outcome This NFP has been reviewed in identifying, developing or modifying, by: accordance with Executive Order 12866. and testing measurement tools that (1) Generating new knowledge Under the terms of the order, we have improve the identification and through research on effective strategies assessed the potential costs and benefits assessment of the major types of to meet the needs of individuals with of this regulatory action. secondary conditions affecting psychiatric disabilities who are served The potential costs associated with individuals in the selected impairment by centers for independent living and this NFP are those resulting from groups, as well as the outcomes of identifying independent living services statutory requirements and those we interventions designed to prevent or and service-delivery approaches that have determined as necessary for reduce these conditions. meet the unique needs of this administering this program effectively (c) Improved rehabilitation or population. and efficiently. community-based interventions that (2) Increasing the knowledge base and In assessing the potential costs and enhance the health and participation in advancing the application of theories, benefits—both quantitative and work and the community of individuals measures, methods, or interventions qualitative—of this NFP, we have aging with physical disabilities. The that facilitate participation and determined that the benefits of the final RRTC must contribute to this outcome community living of individuals with priorities justify the costs. by identifying, developing or modifying, psychiatric disabilities. In this regard, Summary of Potential Costs and and testing interventions that show the RRTC must focus its efforts on at Benefits promise in preventing the onset of or least three of the following areas: improving the management and Employment, housing, education, health The benefits of the Disability and reducing the impact of secondary and mental health care, recreation, Rehabilitation Research Projects and conditions on individuals in the social relationships, or other public and Centers Programs have been well selected impairment groups. Where private sector activities related to established over the years in that similar possible, the RRTC must use community living. If the RRTC engages projects have been completed scientifically based research (as this in testing interventions, the RRTC must successfully. These final priorities will term is defined in section 9101(37) of use scientifically based research (as this generate new knowledge and the Elementary and Secondary term is defined in section 9101(37) of technologies through research, Education Act of 1965, as amended by the Elementary and Secondary development, dissemination, utilization, the No Child Left Behind Act of 2001) Education Act of 1965, as amended by and technical assistance projects. Another benefit of these final methods to test these interventions. the No Child Left Behind Act of 2001) priorities is that the establishment of (d) Improved employment outcomes methods. among working-age individuals aging (3) Reducing disparities in service new RRTCs will support the President’s NFI and improve the lives of with long-term physical disabilities. The delivery and program development by individuals with disabilities. The new RRTC must contribute to this outcome focusing its work on one or more of the RRTCs will generate, disseminate, and by conducting research on the following understudied areas: (i) promote the use of new information that experiences, including employment Emergency preparedness for individuals will improve employment and outcomes, of individuals aging with with psychiatric disabilities; (ii) community living options for long-term physical disabilities in the individuals with psychiatric disabilities selected impairment groups who are individuals with disabilities. from diverse racial, ethnic, and Applicable Program Regulations: 34 served by the State Vocational linguistic backgrounds; or (iii) CFR part 350. Rehabilitation (VR) Services program or individuals with psychiatric disabilities who receive rehabilitation services from who have co-occurring sensory or Electronic Access to This Document other sources, and by identifying physical disabilities. You may view this document, as well specific secondary conditions that (b) Increased incorporation of mental as all other Department of Education require improved and unique VR health research findings into practice or documents published in the Federal services and approaches. policy. The RRTC must contribute to Register, in text or Adobe Portable Priority 4—Participation and this outcome by coordinating with Document Format (PDF) on the Internet Community Living for Individuals With appropriate NIDRR-funded knowledge at the following site: http://www.ed.gov/ Psychiatric Disabilities translation grantees to advance or add to news/fedregister. their work in the following areas: To use PDF you must have Adobe The Assistant Secretary for Special (1) Developing and implementing Acrobat Reader, which is available free Education and Rehabilitative Services procedures to evaluate the readiness of at this site. If you have questions about announces a priority for a Rehabilitation mental health research findings for using PDF, call the U.S. Government Research and Training Center (RRTC) on translation into practice. Printing Office (GPO), toll free, at 1– Participation and Community Living for (2) Collaborating with stakeholder 888–293–6498; or in the Washington, Individuals With Psychiatric groups to develop, evaluate, or DC, area at (202) 512–1530. Disabilities. The RRTC must conduct implement strategies to increase rigorous research, training, technical utilization of mental health research Note: The official version of this document assistance, and dissemination activities is the document published in the Federal findings. Register. Free Internet access to the official that contribute to improved community (3) Conducting training, technical edition of the Federal Register and the Code participation and community living assistance, and dissemination activities of Federal Regulations is available on GPO outcomes for individuals with to increase utilization of mental health Access at:http://www.gpoaccess.gov/nara/ psychiatric disabilities. Under this research findings. index.html.

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(Catalog of Federal Domestic Assistance SUPPLEMENTARY INFORMATION: The in submitting written comments may do Numbers 84.133B Rehabilitation Research President’s Board of Advisors on Tribal so by submitting them to Tonya Ewers, and Training Centers Program) Colleges and Universities was 1990 K Street, NW., Washington, DC Program Authority: 29 U.S.C. 762(g) and established under Executive Order 20006, by Thursday, July 10, 2008. 764(b)(2). 13270, dated July 3, 2002, and Executive Records are kept of all Board Dated: July 2, 2008. Order 13446, dated September 28, 2007. proceedings and are available for public Tracy R. Justesen, The Board was established: (a) To report inspection at the Office of the White Assistant Secretary for Special Education and to the President annually on the results House Initiative on Tribal Colleges and Rehabilitative Services. of the participation of Tribal Colleges Universities, U.S. Department of [FR Doc. E8–15503 Filed 7–7–08; 8:45 am] and Universities in Federal programs, Education, 1990 K Street, NW., including recommendations on how to BILLING CODE 4000–01–P Washington, DC 20006, during the increase the private sector role, hours of 8 a.m. to 5 p.m., Eastern including the role of private Standard Time, Monday through Friday. DEPARTMENT OF EDUCATION foundations, in strengthening these Electronic Access to this Document: institutions, with particular emphasis You may view this document, as well as President’s Board of Advisors (Board), also given to enhancing institutional all other documents of this Department The White House Initiative on Tribal planning and development, published in the Federal Register, in Colleges and Universities (WHI/TCU) strengthening fiscal stability and text or Adobe Portable Document Meeting financial management, and improving Format (PDF), on the Internet at the institutional infrastructure, including following site: http://www.ed.gov/news/ AGENCY: The White House Initiative on the use of technology, to ensure the federegister. Tribal Colleges and Universities, long-term viability and enhancement of To use PDF, you must have Adobe Department of Education. these institutions; (b) to advise the Acrobat Reader, which is available free ACTION: Notice of An Open Meeting. President and the Secretary of at this site. If you have questions about SUMMARY: This purpose of this notice is Education (Secretary) on the needs of using PDF, call the U.S. Government to announce an open meeting of the TCUs in the areas of infrastructure, Printing Office (GPO), toll free, at 1– President’s Board of Advisors (Board), academic programs, and faculty and 888–293–6498; or, in the Washington, The White House Initiative on Tribal institutional development; (c) to advise DC area at 202–512–1530. Colleges and Universities (WHI/TCU) on the Secretary in the preparation of a Note: The official version of this document Tuesday, July 15, 2008, 1 p.m. to 5 p.m., three-year Federal plan for assistance to is the document published in the Federal at the Navajo Technical College, Lower TCUs in increasing their capacity to Register. Free Internet access to the official Point Road, Crownpoint, New Mexico participate in Federal programs; (d) to edition of the Federal Register and the Code 87313; and, on Wednesday, July 16, provide the President with an annual of Federal Regulations is available at GPO 2008, 9 a.m. to 3 p.m., at Southwestern progress report on enhancing the Access at: http://www.gpoaccess.gov/nara/ index.html. Indian Polytechnic Institute, 9169 Coors capacity of TCUs to serve their students; and (e) to develop, in consultation with Road, NW., Albuquerque, New Mexico Sara Martinez Tucker, 87184. This notice sets forth the the Department of Education and other Under Secretary. schedule and proposed agenda of the Federal agencies, a private sector upcoming meeting of the President’s strategy to assist TCUs. [FR Doc. E8–15394 Filed 7–7–08; 8:45 am] Board of Advisors on Tribal Colleges The purpose of the meeting is to BILLING CODE 4000–01–P and Universities. This notice also update and document the Board’s describes the functions of the Board. Action Agenda through a review of DEPARTMENT OF EDUCATION Notice of this meeting is required by collaborative efforts, to review the final Section 10(a)(2) of the Federal Advisory draft of the Fiscal Year 2006 Report to the President, and to discuss relevant Office of Special Education and Committee Act and is intended to notify Rehabilitative Services Overview the public of its opportunity to attend. issues to be addressed as the Board pursues opportunities to strengthen Information; National Institute on DATES AND TIMES: Tuesday, July 15, capacity of programs at the Tribal Disability and Rehabilitation Research 2008, 1 p.m. to 5 p.m., and Wednesday, Colleges and Universities. (NIDRR)—Disability and Rehabilitation July 16, 2008, 9 a.m. to 3 p.m. Additional Information: Individuals Research Projects and Centers ADDRESSES: Tuesday, July 15, 2008, 1 who will need accommodations for a Program—Rehabilitation Research and p.m. to 5 p.m., Navajo Technical disability in order to attend the meeting Training Centers (RRTCs); Notice College, Lower Point Road, Crownpoint, (e.g., interpreting services, assistive Inviting Applications for New Awards New Mexico 87313; and, on listening devices, or material in for Fiscal Year (FY) 2008 Wednesday, July 16, 2008, 9 a.m. to 3 alternative format) should notify Tonya p.m., at Southwestern Indian Ewers 1990 K Street, NW., Washington, Catalog of Federal Domestic Polytechnic Institute, 9169 Coors Road, DC 20006, Telephone: 202–219–7040, Assistance (CFDA) Numbers: 84.133B– NW., Albuquerque, New Mexico 87184. no later than July 10, 2008. We will 7, 84.133B–8, 84.133B–9, and 84.133B– FOR FURTHER INFORMATION CONTACT: attempt to meet requests for 10. Anselm Davis, Executive Director, accommodations after this date, but we Note: This notice invites applications for White House Initiative on Tribal cannot guarantee their availability. The four separate competitions. For key dates, Colleges and Universities, 1990 K Street, meeting sites are accessible to contact person information, and funding NW., Room 7014, Washington, DC individuals with disabilities. information regarding each of the four An opportunity for public comment is competitions, see the chart in the Award 20006; Telephone: 202–219–7040; Fax: Information section of this notice. 202–219–7086. available on Tuesday, July 15, 2008, Individuals who use a between 2:15 p.m. and 2:45 p.m. DATES: Applications Available: See telecommunications device for the deaf Comments will be limited to five (5) chart. (TDD) may call the Federal Information minutes for those who sign up to speak. Date of Pre-Application Meeting: See Relay Service (FRS) at 1–800–877–8339. Those members of the public interested chart.

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Deadline for Transmittal of family members or other authorized (73 FR 6132). The remaining four Applications: See chart. representatives of individuals with priorities are from the NFP for the disabilities. Disability and Rehabilitation Research Full Text of Announcement Additional information on the RRTC Projects and Centers Program, published I. Funding Opportunity Description program can be found at: http:// elsewhere in this issue of the Federal www.ed.gov/rschstat/research/pubs/res- Register. Purpose of Program: The purpose of program.html#RRTC. the RRTC program is to improve the Priorities: NIDRR has established five Absolute Priorities: For FY 2008, these effectiveness of services authorized separate priorities for the four priorities are absolute priorities. Under under the Rehabilitation Act of 1973, as competitions announced in this notice. 34 CFR 75.105(c)(3), for each amended, through advanced research, The General RRTC Requirements competition (designated by CFDA training, technical assistance, and priority, which applies to all RRTC number in the following chart), we dissemination activities in general competitions, is from the notice of final consider only applications that meet problem areas, as specified by NIDRR. priorities (NFP) for the Disability and both the General RRTC Requirements Such activities are designed to benefit Rehabilitation Research Projects and priority and the absolute priority rehabilitation service providers, Centers Program, published in the designated for that competition. individuals with disabilities, and the Federal Register on February 1, 2008 These priorities are:

Absolute priority Corresponding competition CFDA No.

General RRTC Requirements ...... 84.133B–7, 84.133B–8, 84.133B–9, 84.133B–10. Enhancing the Functional and Employment Outcomes of Individuals Who Experience a 84.133B–7. Stroke. Enhancing the Functional and Employment Outcomes of Individuals With Multiple Sclerosis 84.133B–8. Aging With Physical Disability: Reducing Secondary Conditions and Enhancing Health and 84.133B–9. Participation, Including Employment. Participation and Community Living for Individuals With Psychiatric Disabilities ...... 84.133B–10.

Note: The full text of each of these NFP for the Disability and II. Award Information priorities is included in its notice of final Rehabilitation Research Projects and priorities in the Federal Register and in the Centers program, published in the Type of Award: Discretionary grants. applicable application package. Federal Register on February 1, 2008 Estimated Available Funds: Program Authority: 29 U.S.C. 762(g) (73 FR 6132). (d) The NFP for the $7,650,000. and 764(b)(2). Disability and Rehabilitation Research Maximum Award: See chart. Applicable Regulations: (a) The Projects and Centers program, published Education Department General elsewhere in this issue of the Federal Estimated Number of Awards: See Administrative Regulations (EDGAR) in Register. chart. 34 CFR parts 74, 75, 77, 80, 81, 82, 84, Note: The regulations in 34 CFR part 86 Project Period: See chart. 85, 86, and 97. (b) The regulations for apply to institutions of higher education this program in 34 CFR part 350. (c) The (IHEs) only.

REHABILITATION RESEARCH AND TRAINING CENTERS APPLICATION NOTICE FOR FISCAL YEAR 2008

Estimated CFDA number Applications Deadline for Date of average Maximum Estimated Contact and name available transmittal of pre-application size of award* number of Project period person applications meeting awards awards

84.133B–7 07/08/2008 08/22/2008 07/29/08 $850,000 *$850,000 1 Up to 60 mos. Donna Nangle Enhancing (202) 245– the Func- 7462 Rm tional and 6029. Employment Outcomes of Individuals Who Experi- ence a Stroke. 84.133B–8 ...... 07/29/08 850,000 *850,000 1 Up to 60 mos. Enhancing the Func- tional and Employment Outcomes of Individuals With Mul- tiple Scle- rosis.

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REHABILITATION RESEARCH AND TRAINING CENTERS APPLICATION NOTICE FOR FISCAL YEAR 2008—Continued

Estimated CFDA number Applications Deadline for Date of average Maximum Estimated Contact and name available transmittal of pre-application size of award* number of Project period person applications meeting awards awards

84.133B–9 ...... 07/29/08 850,000 *850,000 1 Up to 60 mos. Aging With Physical Disability: Reducing Secondary Conditions and En- hancing Health and Participa- tion, Includ- ing Employ- ment. 84.133B–10 ...... 07/29/08 850,000 *850,000 1 Up to 60 mos. Participation and Com- munity Liv- ing for Indi- viduals With Psychiatric Disabilities.

III. Eligibility Information in an alternative format (e.g., Braille, However, the recommended page limit 1. Eligible Applicants: States; public large print, audiotape, or computer does apply to all of the application or private agencies, including for-profit diskette) by contacting the person or narrative section (Part III). agencies; public or private team listed under Alternative Format in The application package will provide organizations, including for-profit section VIII of this notice. instructions for completing all organizations; IHEs; and Indian tribes 2. Content and Form of Application components to be included in the and tribal organizations. Submission: Requirements concerning application. Each application must 2. Cost Sharing or Matching: This the content of an application, together include a cover sheet (Standard Form program does not require cost sharing or with the forms you must submit, are in 424); budget requirements (ED Form matching. the application package for each 524) and a narrative budget justification; competition announced in this notice. other required forms; an abstract, IV. Application and Submission Page Limit: The application narrative Human Subjects narrative, Part III Information (Part III of the application) is where you, narrative; resumes of staff; and other 1. Address to Request Application the applicant, address the selection related materials, if applicable. Package: You can obtain an application criteria that reviewers use to evaluate 3. Submission Dates and Times: package via the Internet or from the your application. We recommend that Applications Available: See chart. Education Publications Center (ED you limit Part III to the equivalent of no Date of Pre-Application Meeting: Pubs). To obtain a copy via the Internet, more than 125 pages for each Interested parties are invited to use the following address: http:// competition, using the following participate in any of the pre-application www.ed.gov/fund/grant/apply/ standards: meetings held for the competitions grantapps/index.html. • A ‘‘page’’ is 8.5″ × 11″, on one side announced in this notice and to receive To obtain a copy from ED Pubs, write, only, with 1″ margins at the top, bottom, information and technical assistance fax, or call the following: Education and both sides. through individual consultation with Publications Center, P.O. Box 1398, • Double space (no more than three NIDRR staff. The dates for each of the Jessup, MD 20794–1398. Telephone, toll lines per vertical inch) all text in the competitions’ pre-application meetings free: 1–877–433–7827. FAX: (301) 470– application narrative. Single spacing are listed in the chart in the Award 1244. If you use a telecommunications may be used for titles, headings, Information section in this notice. device for the deaf (TDD), call, toll free: footnotes, quotations, references, and Interested parties may participate in 1–877–576–7734. captions, as well as all text in charts, these meetings on the dates listed in the You can contact ED Pubs at its Web tables, figures, and graphs. chart by conference call with NIDRR site, also: http://www.ed.gov/pubs/ • Use a font that is either 12 point or staff from the Office of Special edpubs.html or at its e-mail address: larger or no smaller than 10 pitch Education and Rehabilitative Services [email protected]. (characters per inch). between 10 a.m. and 12 p.m., If you request an application from ED The recommended page limit does not Washington, DC, time. For each Pubs, be sure to identify the competition apply to Part I, the cover sheet; Part II, meeting, NIDRR staff also will be to which you want to apply, as follows: the budget section, including the available from 1:30 p.m. to 3:30 p.m., CFDA number 84.133B–7, 84.133B–8, narrative budget justification; Part IV, Washington, DC, time, on the same day, 84.133B–9, or 84.133B–10. the assurances and certifications; or the by telephone, to provide information Individuals with disabilities can one-page abstract, the resumes, the and technical assistance through obtain a copy of the application package bibliography, or the letters of support. individual consultation. For further

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information or to make arrangements to mail an electronic copy of a grant application package for the competition participate in any of these meetings via application to us. to which you are applying to ensure that conference call or for an individual We will reject your application if you you submit your application in a timely consultation, contact Donna Nangle, submit it in paper format unless, as manner to the Grants.gov system. You U.S. Department of Education, Potomac described elsewhere in this section, you can also find the Education Submission Center Plaza (PCP), room 6029, 550 12th qualify for one of the exceptions to the Procedures pertaining to Grants.gov at Street, SW., Washington, DC 20202. electronic submission requirement and http://e-Grants.ed.gov/help/ Telephone: (202) 245–7462 or by e-mail: submit, no later than two weeks before GrantsgovSubmissionProcedures.pdf. [email protected]. the application deadline date, a written • To submit your application via statement to the Department that you Deadline for Transmittal of Grants.gov, you must complete all steps qualify for one of these exceptions. Applications: See chart. in the Grants.gov registration process Further information regarding Applications for grants under this (see http://www.grants.gov/applicants/ calculation of the date that is two weeks program must be submitted get_registered.jsp). These steps include before the application deadline date is electronically using the Grants.gov (1) Registering your organization, a provided later in this section under Apply site (Grants.gov). For information multi-part process that includes Exception to Electronic Submission (including dates and times) about how registration with the Central Contractor to submit your application Requirement. You may access the electronic grant Registry (CCR); (2) registering yourself electronically, or in paper format by as an Authorized Organization mail or hand delivery if you qualify for application for the RRTC competitions (CFDA numbers 84.133B–7, 84.133B–8, Representative (AOR); and (3) getting an exception to the electronic authorized as an AOR by your submission requirement, please refer to 84.133B–9, and 84.133B–10) at http:// www.Grants.gov. You must search for organization. Details on these steps are section IV.6. Other Submission outlined in the Grants.gov 3–Step Requirements in this notice. the downloadable application package for the competition to which you are Registration Guide (see http:// We do not consider an application applying by the CFDA number. Do not www.grants.gov/section910/ that does not comply with the deadline include the CFDA number’s alpha suffix Grants.govRegistrationBrochure.pdf). requirements. in your search (e.g., search for 84.133, You also must provide on your Individuals with disabilities who not 84.133B). application the same D–U–N–S Number need an accommodation or auxiliary aid Please note the following: used with this registration. Please note in connection with the application • When you enter the Grants.gov site, that the registration process may take process should contact the person listed you will find information about five or more business days to complete, under FOR FURTHER INFORMATION submitting an application electronically and you must have completed all CONTACT in section VII in this notice. If through the site, as well as the hours of registration steps to allow you to submit the Department provides an operation. successfully an application via accommodation or auxiliary aid to an • Applications received by Grants.gov Grants.gov. In addition you will need to individual with a disability in are date and time stamped. Your update your CCR registration on an connection with the application application must be fully uploaded and annual basis. This may take three or process, the individual’s application submitted and must be date and time more business days to complete. remains subject to all other stamped by the Grants.gov system no • You will not receive additional requirements and limitations in this later than 4:30:00 p.m., Washington, DC point value because you submit your notice. time, on the application deadline date. application in electronic format, nor 4. Intergovernmental Review: This Except as otherwise noted in this will we penalize you if you qualify for program is not subject to Executive section, we will not accept your an exception to the electronic Order 12372 and the regulations in 34 application if it is received—that is, date submission requirement, as described CFR part 79. and time stamped by the Grants.gov elsewhere in this section, and submit 5. Funding Restrictions: We reference system—after 4:30:00 p.m., Washington, your application in paper format. regulations outlining funding DC time, on the application deadline • You must submit all documents restrictions in the Applicable date. We do not consider an application electronically, including all information Regulations section in this notice. that does not comply with the deadline you typically provide on the following 6. Other Submission Requirements: requirements. When we retrieve your forms: Application for Federal Applications for grants under the application from Grants.gov, we will Assistance (SF 424), the Department of competitions announced in this notice notify you if we are rejecting your Education Supplemental Information for must be submitted electronically unless application because it was date and time SF 424, Budget Information—Non- you qualify for an exception to this stamped by the Grants.gov system after Construction Programs (ED 524), and all requirement in accordance with the 4:30:00 p.m., Washington, DC time, on necessary assurances and certifications. instructions in this section. the application deadline date. a. Electronic Submission of • The amount of time it can take to Please note that two of these forms—the Applications. upload an application will vary SF 424 and the Department of Education Applications for grants under the depending on a variety of factors, Supplemental Information for SF 424— RRTC competitions (CFDA numbers including the size of the application and have replaced the ED 424 (Application 84.133B–7, 84.133B–8, 84.133B–9, and the speed of your Internet connection. for Federal Education Assistance). 84.133B–10) must be submitted Therefore, we strongly recommend that • You must attach any narrative electronically using the you do not wait until the application sections of your application as files in Governmentwide Grants.gov Apply site deadline date to begin the submission a DOC (document), .RTF (rich text), or at http://www.Grants.gov. Through this process through Grants.gov. .PDF (Portable Document) format. If you site, you will be able to download a • You should review and follow the upload a file type other than the three copy of the application package, Education Submission Procedures for file types specified in this paragraph or complete it offline, and then upload and submitting an application through submit a password-protected file, we submit your application. You may not e- Grants.gov that are included in the will not review that material.

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• Your electronic application must application to Grants.gov before the 7100 Old Landover Road, Landover, MD comply with any page-limit application deadline date and time or if the 20785–1506. technical problem you experienced is requirements described in this notice. Regardless of which address you use, • unrelated to the Grants.gov system. After you electronically submit you must show proof of mailing your application, you will receive from Exception to Electronic Submission consisting of one of the following: Grants.gov an automatic notification of Requirement: You qualify for an (1) A legibly dated U.S. Postal Service receipt that contains a Grants.gov exception to the electronic submission postmark. tracking number. (This notification requirement, and may submit your indicates receipt by Grants.gov only, not application in paper format, if you are (2) A legible mail receipt with the receipt by the Department.) The unable to submit an application through date of mailing stamped by the U.S. Department then will retrieve your the Grants.gov system because— Postal Service. application from Grants.gov and send a • You do not have access to the (3) A dated shipping label, invoice, or second notification to you by e-mail. Internet; or receipt from a commercial carrier. This second notification indicates that • You do not have the capacity to (4) Any other proof of mailing the Department has received your upload large documents to the acceptable to the Secretary of the U.S. application and has assigned your Grants.gov system; and Department of Education. • application a PR/Award number (an ED- No later than two weeks before the If you mail your application through specified identifying number unique to application deadline date (14 calendar the U.S. Postal Service, we do not your application). days or, if the fourteenth calendar day • accept either of the following as proof We may request that you provide us before the application deadline date of mailing: original signatures on forms at a later falls on a Federal holiday, the next date. business day following the Federal (1) A private metered postmark. Application Deadline Date Extension holiday), you mail or fax a written (2) A mail receipt that is not dated by in Case of Technical Issues With the statement to the Department, explaining the U.S. Postal Service. Grants.gov System: If you are which of the two grounds for an If your application is postmarked after experiencing problems submitting your exception prevent you from using the the application deadline date, we will application through Grants.gov, please Internet to submit your application. not consider your application. contact the Grants.gov Support Desk, If you mail your written statement to Note: The U.S. Postal Service does not toll free, at 1–800–518–4726. You must the Department, it must be postmarked uniformly provide a dated postmark. Before obtain a Grants.gov Support Desk Case no later than two weeks before the relying on this method, you should check Number and must keep a record of it. application deadline date. If you fax with your local post office. If you are prevented from your written statement to the c. Submission of Paper Applications electronically submitting your Department, we must receive the faxed by Hand Delivery. application on the application deadline statement no later than two weeks date because of technical problems with before the application deadline date. If you qualify for an exception to the the Grants.gov system, we will grant you Address and mail or fax your electronic submission requirement, you an extension until 4:30:00 p.m., statement to: Donna Nangle, U.S. (or a courier service) may deliver your Washington, DC time, the following Department of Education, 400 Maryland paper application to the Department by business day to enable you to transmit Avenue, SW., room 6029, PCP, hand. You must deliver the original and your application electronically or by Washington, DC 20202–2700. FAX: two copies of your application by hand, hand delivery. You also may mail your (202) 245–7323. on or before the application deadline application by following the mailing Your paper application must be date, to the Department at the following instructions described elsewhere in this submitted in accordance with the mail address: U.S. Department of Education, notice. or hand delivery instructions described Application Control Center, Attention: If you submit an application after in this notice. (CFDA number 84.133B–7, 84.133B–8, 4:30:00 p.m., Washington, DC time, on b. Submission of Paper Applications 84.133B–9, or 84.133B–10), 550 12th the application deadline date, please by Mail. Street, SW., Room 7041, Potomac Center contact the person listed under FOR If you qualify for an exception to the Plaza, Washington, DC 20202–4260. FURTHER INFORMATION CONTACT in electronic submission requirement, you The Application Control Center section VII in this notice and provide an may mail (through the U.S. Postal accepts hand deliveries daily between explanation of the technical problem Service or a commercial carrier) your 8:00 a.m. and 4:30:00 p.m., Washington, you experienced with Grants.gov, along application to the Department. You DC time, except Saturdays, Sundays, with the Grants.gov Support Desk Case must mail the original and two copies and Federal holidays. of your application, on or before the Number. We will accept your Note for Mail or Hand Delivery of Paper application if we can confirm that a application deadline date, to the Applications: If you mail or hand deliver technical problem occurred with the Department at the applicable following your application to the Department— Grants.gov system and that that problem address: (1) You must indicate on the envelope affected your ability to submit your By mail through the U.S. Postal and—if not provided by the Department—in application by 4:30:00 p.m., Service: U.S. Department of Education, Item 11 of the SF 424 the CFDA number, Washington, DC time, on the Application Control Center, Attention: including suffix letter, if any, of the application deadline date. The (CFDA number 84.133B–7, 84.133B–8, competition under which you are submitting Department will contact you after a 84.133B–9, or 84.133B–10), 400 your application; and (2) The Application Control Center will determination is made on whether your Maryland Avenue, SW., Washington, DC 20202–4260; or mail to you a notification of receipt of your application will be accepted. grant application. If you do not receive this By mail through a commercial carrier: Note: The extensions to which we refer in notification within 15 business days from the this section apply only to the unavailability U.S. Department of Education, application deadline date, you should call of, or technical problems with, the Grants.gov Application Control Center, Stop 4260, the U.S. Department of Education system. We will not grant you an extension Attention: (CFDA number 84.133B–7, Application Control Center at (202) 245– if you failed to fully register to submit your 84.133B–8, 84.133B–9, or 84.133B–10), 6288.

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V. Application Review Information performance report, including financial Telephone: (202) 245–7462 or by e-mail: 1. Selection Criteria: The selection information, as directed by the [email protected]. criteria for the competitions announced Secretary. If you receive a multi-year If you use a TDD, call the Federal in this notice are from 34 CFR 350.54 award, you must submit an annual Relay Service (FRS), toll free, at 1–800– and are listed in the application performance report that provides the 877–8339. package. most current performance and financial VIII. Other Information 2. Review and Selection Process: expenditure information as directed by Additional factors we consider in the Secretary under 34 CFR 75.118. The Alternative Format: Individuals with determining the merits of an application Secretary may also require more disabilities can obtain this document are as follows— frequent performance reports under 34 and a copy of the application package in The Secretary is interested in CFR 75.720(c). For specific an alternative format (e.g., Braille, large outcomes-oriented research or requirements on reporting, please go to print, audiotape, or computer diskette) development projects that use rigorous http://www.ed.gov/fund/grant/apply/ by contacting the Grants and Contracts scientific methodologies. To address appforms/appforms.html. Services Team, U.S. Department of this interest, applicants are encouraged Education, 400 Maryland Avenue, SW., Note: NIDRR will provide information by room 5075, PCP, Washington, DC to articulate goals, objectives, and letter to grantees on how and when to submit expected outcomes for the proposed the final performance report. 20202–2550. Telephone: (202) 245– 7363. If you use a TDD, call the FRS, toll research or development activities. 4. Performance Measures: To evaluate Proposals should describe how results free, at 1–800–877–8339. the overall success of its research and planned outputs are expected to Electronic Access to This Document: program, NIDRR assesses the quality of contribute to advances in knowledge, You can view this document, as well as its funded projects through a review of improvements in policy and practice, all other documents of this Department grantee performance and products. Each and public benefits for individuals with published in the Federal Register, in year, NIDRR examines a portion of its disabilities. Applicants should propose text or Adobe Portable Document grantees to determine: projects that are designed to be Format (PDF) on the Internet at the • The percentage of newly awarded consistent with these goals. We following site: http://www.ed.gov/news/ NIDRR projects that are conducting at encourage applicants to include in their fedregister. least one multi-site, collaborative application a description of how results To use PDF you must have Adobe controlled trial of interventions and will measure progress towards Acrobat Reader, which is available free programs. achievement of anticipated outcomes at this site. If you have questions about • The number of accomplishments (including a discussion of the proposed using PDF, call the U.S. Government (e.g., new or improved tools, methods, measures of effectiveness), the Printing Office (GPO), toll free, at discoveries, standards, interventions, mechanisms that will be used to 1–888–293–6498; or in the Washington, evaluate outcomes associated with programs, or devices) developed or DC, area at (202) 512–1530. tested with NIDRR funding that have specific problems or issues, and how the Note: The official version of this document proposed activities will support new been judged by expert panels to be of is the document published in the Federal high quality and to advance the field. intervention approaches and strategies. • Register. Free Internet access to the official Submission of the information The average number of publications edition of the Federal Register and the Code identified in this section V.2. Review per award based on NIDRR-funded of Federal Regulations is available on GPO and Selection Process is voluntary, research and development activities in Access at: http://www.gpoaccess.gov/nara/ refereed journals. index.html. except where required by the selection • criteria listed in the application The percentage of new grants that package. include studies funded by NIDRR that Dated: July 2, 2008. assess the effectiveness of interventions, Tracy R. Justesen, VI. Award Administration Information programs, and devices using rigorous Assistant Secretary for Special Education and 1. Award Notices: If your application and appropriate methods. Rehabilitative Services. is successful, we notify your U.S. NIDRR uses information submitted by [FR Doc. E8–15506 Filed 7–7–08; 8:45 am] Representative and U.S. Senators and grantees as part of their Annual BILLING CODE 4000–01–P send you a Grant Award Notice (GAN). Performance Reports (APRs) in support We may notify you informally, also. of these performance measures. If your application is not evaluated or Updates on the Government DEPARTMENT OF ENERGY not selected for funding, we notify you. Performance and Results Act of 1993 2. Administrative and National Policy (GPRA) indicators, revisions, and Federal Energy Regulatory Requirements: We identify methods appear on the NIDRR Program Commission administrative and national policy Review Web site: http:// requirements in the application package www.neweditions.net/pr/commonfiles/ [Project Number: 459–224] pmconcepts.htm. and reference these and other Ameren/UE; Notice of Application for Grantees should consult these sites on requirements in the Applicable Amendment of License and Soliciting a regular basis to obtain details and Regulations section in this notice. Comments, Motions To Intervene, and We reference the regulations outlining explanations on how NIDRR programs Protests the terms and conditions of an award in contribute to the advancement of the the Applicable Regulations section in Department’s long-term and annual June 27, 2008. this notice and include these and other performance goals. a. Type of Application: Non-project specific conditions in the GAN. The VII. Agency Contact use of project lands and waters. GAN also incorporates your approved b. Project Number: 459–224. application as part of your binding For Further Information Contact: c. Date Filed: June 10, 2008. commitments under the grant. Donna Nangle, U.S. Department of d. Applicant: Ameren/UE. 3. Reporting: At the end of your Education, 400 Maryland Avenue, SW., e. Name of Project: Osage project period, you must submit a final room 6029, PCP, Washington, DC 20202. Hydroelectric Project.

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f. Location: The project is located at In determining the appropriate action to Subpart A of the Federal Energy the Lakeside at Cross Creek take, the Commission will consider all Regulatory Commission’s (Commission) development near mile markers protests or other comments filed, but regulations, filed to amend its 30.9+1.5 to 30.9+2 of the Linn Creek only those who file a motion to certificate. The requested amendment, Cove of the Lake of the Ozarks, in intervene in accordance with the the Eminence Enhancement Project, Camden County, Missouri. Commission’s Rules may become a would add an additional 4,735 g. Filed Pursuant to: Federal Power party to the proceeding. Any comments, horsepower compressor unit and Act, 16 U.S.C. 791(a), 825(r) and 799 protests, or motions to intervene must appurtenant facilities to provide and 801. be received on or before the specified enhanced injection rights to nine h. Applicant Contact: Mr. Jeff Green, comment date for the particular customers participating in the Eminence Shoreline Supervisor, Ameren/UE, P.O. application. salt dome Storage Field in Covington Box 993, Lake Ozark, MO 65049, (573)– o. Filing and Service of Responsive County, Mississippi. The Eminence 365–9214. Documents—Any filings must bear in Enhancement Project would cost $19.3 i. FERC Contact: Any questions on all capital letters the title million. So that the facilities are this notice should be addressed to ‘‘COMMENTS’’, available to meet user timing needs, Christopher Yeakel at (202) 502–8132, ‘‘RECOMMENDATIONS FOR TERMS Transco requests Commission issuance or e-mail address: AND CONDITIONS’’, ‘‘PROTEST’’, OR of the necessary authorizations by [email protected]. ‘‘MOTION TO INTERVENE’’, as February 1, 2009. j. Deadline for Filing Comments and/ applicable, and the Project Number of Questions concerning this application or Motions: July 28, 2008. the particular application to which the k. Description of Request: Ameren/UE should be directed to Ingrid Germany at filing refers (p–459–224). All documents requests approval to permit VOC Transcontinental Gas Pipe Line (original and eight copies) should be Investments, LLC, to construct 20 new Corporation, P.O. Box 1396, Houston, filed with: Kimberly D. Bose, Secretary, multi-slip boat docks at the Lakeside at Texas 77251 or by calling 713–215– Federal Energy Regulatory Commission, Cross Creek development. The docks 4015. 888 First Street, NE., Washington, DC would have a total of 435 boat slips Pursuant to section 157.9 of the 20426. A copy of any motion to ranging from 32 feet long and 12 feet Commission’s rules, 18 CFR 157.9, intervene must also be served upon each wide to 48 feet long and 16 feet wide within 90 days of this Notice the representative of the Applicant and would include central walkways Commission staff will either: complete specified in the particular application. 6 feet wide. The docks would be its environmental assessment (EA) and p. Agency Comments—Federal, state, available to the residents of the Lakeside place it into the Commission’s public and local agencies are invited to file at Cross Creek development. The record (eLibrary) for this proceeding; or comments on the described application. shoreline is currently undeveloped. No issue a Notice of Schedule for A copy of the application may be dredging, fuel dispensing, or sewage Environmental Review. If a Notice of obtained by agencies directly from the pumping facilities are proposed. Schedule for Environmental Review is Applicant. If an agency does not file l. Locations of the Application: A issued, it will indicate, among other comments within the time specified for copy of the application is available for milestones, the anticipated date for the filing comments, it will be presumed to inspection and reproduction at the Commission staff’s issuance of the final have no comments. One copy of an Commission’s Public Reference Room, environmental impact statement (FEIS) agency’s comments must also be sent to located at 888 First Street, NE., Room or EA for this proposal. The filing of the the Applicant’s representatives. 2A, Washington, DC 20426, or by calling EA in the Commission’s public record q. Comments, protests and (202) 502–8371. This filing may also be for this proceeding or the issuance of a interventions may be filed electronically viewed on the Commission’s Web site at Notice of Schedule for Environmental via the Internet in lieu of paper. See 18 http://www.ferc.gov using the Review will serve to notify federal and CFR 385.2001(a)(1)(iii) and the ‘‘eLibrary’’ link. Enter the docket state agencies of the timing for the instructions on the Commission’s Web number excluding the last three digits in completion of all necessary reviews, and site at http://www.ferc.gov under the the docket number field (p–459) to the subsequent need to complete all ‘‘e-Filing’’ link. access the document. You may also federal authorizations within 90 days of register online at http://www.ferc.gov/ Kimberly D. Bose, the date of issuance of the Commission docs-filing/esubscription.asp to be Secretary. staff’s FEIS or EA. notified via e-mail of new filings and [FR Doc. E8–15218 Filed 7–7–08; 8:45 am] Any person desiring to intervene or to protest this filing must file in issuances related to this or other BILLING CODE 6717–01–P pending projects. For assistance, call accordance with Rules 211 and 214 of 1–866–208–3372 or e-mail the Commission’s Rules of Practice and [email protected], for TTY, DEPARTMENT OF ENERGY Procedure (18 CFR 385.211 and call (202) 502–8659. A copy is also 385.214). Protests will be considered by available for inspection and Federal Energy Regulatory the Commission in determining the reproduction at the address in item (h) Commission appropriate action to be taken, but will not serve to make protestants parties to above. [Docket Nos. CP08–430–000] m. Individuals desiring to be included the proceeding. Any person wishing to on the Commission’s mailing list should Transcontinental Gas Pipe Line become a party must file a notice of so indicate by writing to the Secretary Corporation; Notice of Amendment intervention or motion to intervene, as of the Commission. Application appropriate. Such notices, motions, or n. Comments, Protests, or Motions To protests must be filed on or before the Intervene—Anyone may submit July 1, 2008. comment date. Anyone filing a motion comments, a protest, or a motion to On June 23, 2008, Transcontinental to intervene or protest must serve a copy intervene in accordance with the Gas Pipe Line Corporation (Transco), of that document on the Applicant. On requirements of Rules of Practice and pursuant to section 7(c) of the Natural or before the comment date, it is not Procedure, 18 CFR 385.210, .211, .214. Gas Act, as amended, and section 157 necessary to serve motions to intervene

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or protests on persons other than the not serve to make protestants parties to Compliance Registry for SEPA. NERC Applicant. the proceeding. Any person wishing to states that it has affirmed SERC’s The Commission encourages become a party must file a notice of decision to retain SEPA’s registration as electronic submission of protests and intervention or motion to intervene, as a Transmission Operator. However, interventions in lieu of paper using the appropriate. The Respondent’s answer NERC states that it has also directed ‘‘eFiling’’ link at http://www.ferc.gov. and all interventions, or protests must SERC to evaluate and determine Persons unable to file electronically be filed on or before the comment date. whether the Army Corps of Engineers should submit an original and 14 copies The Respondent’s answer, motions to should be co-registered with SEPA as a of the protest or intervention to the intervene, and protests must be served Transmission Operator. Federal Energy Regulatory Commission, on the Complainants. 888 First Street, NE., Washington, DC The Commission encourages Any person desiring to intervene or to 20426. electronic submission of Respondent’s protest this filing must file in This filing is accessible on-line at answer, protests and interventions in accordance with Rules 211 and 214 of http://www.ferc.gov, using the lieu of paper using the ‘‘eFiling’’ link at the Commission’s Rules of Practice and ‘‘eLibrary’’ link and is available for http://www.ferc.gov. Persons unable to Procedure (18 CFR 385.211, 385.214). review in the Commission’s Public file electronically should submit an Protests will be considered by the Reference Room in Washington, DC. original and 14 copies of the answer, Commission in determining the There is an ‘‘eSubscription’’ link on the protest or intervention to the Federal appropriate action to be taken, but will Web site that enables subscribers to Energy Regulatory Commission, 888 not serve to make protestants parties to receive e-mail notification when a First Street, NE., Washington, DC 20426. the proceeding. Any person wishing to document is added to a subscribed This filing is accessible on-line at become a party must file a notice of docket(s). For assistance with any FERC http://www.ferc.gov, using the intervention or motion to intervene, as Online service, please e-mail ‘‘eLibrary’’ link and is available for appropriate. Such notices, motions, or [email protected], or call review in the Commission’s Public protests must be filed on or before the (866) 208–3676 (toll free). For TTY, call Reference Room in Washington, DC. comment date. On or before the (202) 502–8659. There is an ‘‘eSubscription’’ link on the comment date, it is not necessary to Comment Date: 5 p.m. Eastern Time Web site that enables subscribers to serve motions to intervene or protests on July 22, 2008. receive e-mail notification when a on persons other than the Applicant. Kimberly D. Bose, document is added to a subscribed docket(s). For assistance with any FERC The Commission encourages Secretary. Online service, please e-mail electronic submission of protests and [FR Doc. E8–15428 Filed 7–7–08; 8:45 am] [email protected], or call interventions in lieu of paper using the BILLING CODE 6717–01–P (866) 208–3676 (toll free). For TTY, call ‘‘eFiling’’ link at http://www.ferc.gov. (202) 502–8659. Persons unable to file electronically Comment Date: 5 p.m. Eastern Time should submit an original and 14 copies DEPARTMENT OF ENERGY on July 17, 2008. of the protest or intervention to the Federal Energy Regulatory Commission, Federal Energy Regulatory Kimberly D. Bose, Commission 888 First Street, NE., Washington, DC Secretary. 20426. [Docket No. EL08–72–000] [FR Doc. E8–15425 Filed 7–7–08; 8:45 am] This filing is accessible on-line at BILLING CODE 6717–01–P NRG Energy, Inc., Complainants, v. http://www.ferc.gov, using the Entergy Services, Inc., Respondent; ‘‘eLibrary’’ link and is available for Notice of Complaint DEPARTMENT OF ENERGY review in the Commission’s Public Reference Room in Washington, DC. June 30, 2008. Federal Energy Regulatory There is an ‘‘eSubscription’’ link on the Take notice that on June 27, 2008, Commission Web site that enables subscribers to NRG Energy, Inc. and its affiliated [Docket No. RC08–1–001] receive e-mail notification when a companies, (collectively, NRG) pursuant document is added to a subscribed to sections 206 and 306 of the Federal Southeastern Power Administration; docket(s). For assistance with any FERC Power Act, 16 U.S.C. 824e and 825e Notice of Filing Online service, please e-mail (2000) and Rules 206 and 306 of the [email protected], or call Commission’s Rules of Practice and July 1, 2008. Procedure, 18 CFR 385.206 and 386.306 (866) 208–3676 (toll free). For TTY, call Take notice that on June 20, 2008, the (202) 502–8659. (2008), submit this complaint against North American Electric Reliability Entergy Services, Inc. (Entergy), alleging Corporation (NERC) filed a decision Comment Date: 5 p.m. Eastern Time that Entergy’s May 30, 2008 annual addressing the Commission’s February on July 21, 2008. transmission rate filing includes bonus 21, 2008 decision in this proceeding Kimberly D. Bose, compensation paid to Entergy remanding a NERC registry decision Secretary. employees that should not be passed on involving the Southeastern Power to it transmission service customers. Administration (SEPA) for either [FR Doc. E8–15424 Filed 7–7–08; 8:45 am] Any person desiring to intervene or to reconsideration or further explanation.1 BILLING CODE 6717–01–P protest this filing must file in On remand NERC states that it has accordance with Rules 211 and 214 of affirmed SERC Reliability Corporation’s the Commission’s Rules of Practice and (SERC) decision to remove the function Procedure (18 CFR 385.211, 385.214). of Resource Planner from the NERC Protests will be considered by the Commission in determining the 1 Southeastern Power Administration, 122 FERC appropriate action to be taken, but will ¶ 61,140 (2008).

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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY Management and Budget (OMB). This is a request to renew an existing approved Federal Energy Regulatory Federal Energy Regulatory collection. This ICR is scheduled to Commission Commission expire on July 25, 2008. Before [Docket Nos. IN06–3–003; IN06–3–004] submitting the ICR to OMB for review [P–2101–084–CA] and approval, EPA is soliciting Energy Transfer Partners, L.P.; Energy comments on specific aspects of the Sacramento Municipal Utility District; Transfer Company; ETC Marketing proposed information collection as Notice of Meeting Ltd.; Houston Pipeline Company; described below. Oasis Pipeline, L.P.; Oasis Pipeline DATES: Comments must be submitted on July 1, 2008. Company Texas, L.P.; ETC Texas or before September 8, 2008. a. Project: Upper American River Pipeline Ltd., Oasis Division; ADDRESSES: Submit your comments, Hydroelectric Project, El Dorado Supplemental Notice of Designation of referencing docket ID number OW– County, California. Commission Staff 2008–0357, to EPA online at Regulations.gov using the Comment or b. Date and Time of Meeting: July 1, 2008. Submission function (our preferred Thursday, July 17, 2008, 2 p.m. to 4 On December 20, 2007, a notice was method), by hand delivery to the EPA p.m. (PST). issued designating the staff of the Office Docket Center (EPA/DC) EPA West, c. Place: 2800 Cottage Way, Suite W– of Enforcement as non-decisional in Room 3334, 1301 Constitution Ave., 2605, Sacramento, California 95825. By deliberations by the Commission in this NW., Washington, DC (during normal copy of this notice, we are also inviting docket, with certain limited exceptions. hours of operation), or by mail to: EPA all interested parties to attend a Exceptions to this designation are the Docket Center, Environmental teleconference from their location. Director of the Office of Enforcement Protection Agency, Water Docket and the Directors of the Divisions of (2822T), 1200 Pennsylvania Ave., NW., d. FERC Contact: Alan Mitchnick, Investigations, Energy Market Oversight, Washington, DC 20460. (202) 502–6074, Audits, and Financial Regulation in the FOR FURTHER INFORMATION CONTACT: Lars [email protected]. Office of Enforcement, and Shauna Wilcut, Standards and Health Protection 1 e. Purpose of the Meeting: On Coleman. This supplemental notice Division, Office of Science and September 25, 2007, the Commission designates Christopher Ellsworth, an Technology (4305T), Environmental requested formal consultation under the energy industry analyst in the Division Protection Agency, 1200 Pennsylvania Endangered Species Act with the U.S. of Market Oversight, Office of Ave., NW., Washington, DC 20460; Fish and Wildlife Service (FWS) on Enforcement, as an exception to the telephone number: (202) 566–0447; fax relicensing of the project. On December designation of the staff of the Office of number: (202) 566–0409; e-mail address: 13, 2007, FWS indicated that the Enforcement as non-decisional. Mr. [email protected]. Ellsworth joined the Commission after Commission must evaluate the effects SUPPLEMENTARY INFORMATION: EPA has the December 27, 2007 notice was on listed species of the recently signed established a public docket for this ICR issued and did not participate in the water storage agreement between the under Docket ID number OW–2008– investigation at issue in this proceeding. Sacramento Municipal Utility District 0357, which is available for public (SMUD) and El Dorado County et al. Kimberly D. Bose, viewing at the Water Docket in the EPA The Commission staff will be meeting Secretary. Docket Center (EPA/DC), EPA West, with FWS and SMUD to discuss this [FR Doc. E8–15426 Filed 7–7–08; 8:45 am] Room 3334, 1301 Constitution Ave., issue. BILLING CODE 6717–01–P NW., Washington, DC. The EPA Docket Center Public Reading Room is open f. All local, state, and federal agencies, from 8:30 a.m. to 4:30 p.m., Monday and interested parties, are hereby through Friday, excluding legal invited to attend the meeting or listen in ENVIRONMENTAL PROTECTION AGENCY holidays. The telephone number for the on the teleconference. The meeting Reading Room is (202) 566–1744, and location and phone number and [OW–2008–0357, FRL–8688–8] the telephone number for the Water passcode to the teleconference will be Docket is (202) 566–2426. An electronic provided upon a request made by Agency Information Collection version of the public docket is available interested parties. Please make that Activities: Proposed Collection; through the Regulations.gov Web site request to Alan Mitchnick via e-mail at Comment Request; Reporting (http://www.regulations.gov/). Use [email protected] NO LATER Requirements for BEACH Act Grants, Regulations.gov to obtain a copy of the THAN close of business Tuesday, July EPA ICR Number 2048.01, OMB draft collection of information, submit 14, 2008. Control Number 2040–0244 or view public comments, access the index listing of the contents of the Kimberly D. Bose, AGENCY: Environmental Protection Agency (EPA). public docket, and to access those Secretary. documents in the public docket that are ACTION: Notice. [FR Doc. E8–15427 Filed 7–7–08; 8:45 am] available electronically. Once in the BILLING CODE 6717–01–P SUMMARY: In compliance with the system, then key in the docket ID Paperwork Reduction Act (44 U.S.C. number identified above in the 3501 et seq.), this document announces Comment or Submission field. Any that EPA is planning to submit a comments related to this ICR should be continuing Information Collection submitted to EPA within 60 days of this Request (ICR) to the Office of notice. EPA’s policy is that public comments, 1 See March 3, 2008 Supplemental Notice in whether submitted electronically or in Docket No. IN06–3–003. paper, will be made available for public

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viewing on Regulations.gov without July 19, 2002, EPA published the local governments may also become change as they are received by EPA, National Beach Guidance and Required eligible for BEACH Act grants. Burden with the exception of comments Performance Criteria for Grants (67 FR means the total time, effort, or financial containing copyrighted material, 47540). Section 406(b) obligates grant resources expended by persons to confidential business information (CBI), recipients to submit a report to EPA generate, maintain, retain, or disclose or or other information whose public describing the data collected as part of provide information to or for a Federal disclosure is restricted by statute. When a monitoring and notification program agency. This includes the time needed EPA identifies a comment containing and the actions taken to notify the to: (1) Review instructions; (2) develop, copyrighted material, EPA will provide public when water quality standards are acquire, install, and utilize technology a reference to that material in the exceeded. and systems for the purposes of version of the comment that is placed Section 406(c) requires a grant collecting, validating, and verifying on Regulations.gov. The entire printed recipient to identify lists of coastal information, processing and comment, including the copyrighted recreation waters, processes for states to maintaining information, and disclosing material, will be available in the public delegate the responsibility for and providing information; (3) adjust docket. For those comments containing implementing a monitoring and the existing ways to comply with any information claimed as CBI, or notification program to local previously applicable instructions and information otherwise restricted by governments, and the content of the requirements; train personnel to be able statute, that material will be identified monitoring and notification program. to respond to a collection of as an item in the official docket but will The information encompassed by this information; (4) search data sources; (5) not be included in the official public ICR is required of states and local complete and review the collection of docket or available for public viewing governments that seek to obtain BEACH information; and (6) transmit or on Regulations.gov. For further Act funding. It allows EPA to properly otherwise disclose the information. information about the electronic docket, review state and local governments’ see EPA’s Federal Register notice monitoring and notification programs to Dated: July 1, 2008. describing the electronic docket at 67 determine if they are eligible for BEACH Ephraim King, FR 38102 (May 31, 2002), or online at: Act grant funding, and enables EPA to Director, Office of Science and Technology. http://www.regulations.gov. fulfill its obligations to make this [FR Doc. E8–15439 Filed 7–7–08; 8:45 am] Affected entities: Entities potentially information available to the public BILLING CODE 6560–50–P affected by this action are those coastal under Sections 406(e) and (g). and Great Lakes state, local, and tribal An agency may not conduct nor governments which are eligible for sponsor, and a person is not required to ENVIRONMENTAL PROTECTION BEACH Act grants. These are respond to, a collection of information AGENCY governments that develop and unless it displays a currently valid OMB [FRL–8688–6] implement programs for the monitoring control number. The OMB control and notification of coastal (marine and numbers for EPA’s regulations in 40 Motorola 52nd Street Superfund Site; Great Lakes) recreation waters adjacent CFR are listed in 40 CFR part 9. Proposed Notice of Administrative to beaches or similar points of access The EPA would like to solicit Settlement Based on a Limited Ability that are used by the public. comments to: To Pay at the Motorola 52nd Street Title: Reporting Requirements for (i) Evaluate whether the proposed Superfund Site BEACH Act Grants. collection of information is necessary Abstract: Congress passed the Beaches for the proper performance of the AGENCY: Environmental Protection Environmental Assessment and Coastal functions of the Agency, including Agency (EPA). Health (BEACH) Act in October 2000 to whether the information will have ACTION: Notice; Request for Public amend the Clean Water Act, in part by practical utility; Comment. adding Section 406, ‘‘Coastal Recreation (ii) Evaluate the accuracy of the Water Monitoring and Notification.’’ Agency’s estimate of the burden of the SUMMARY: Notice is hereby given that a Section 406(b) authorizes EPA to proposed collection of information, proposed Administrative Settlement make grants to state and local including the validity of the (‘‘Agreement’’) based on limited ability governments to develop and implement methodology and assumptions used; to pay for a potential source facility at programs for the monitoring and public (iii) Enhance the quality, utility, and the Motorola 52nd Street Superfund Site notification of coastal recreation waters clarity of the information to be in Phoenix, Arizona (‘‘52nd Street Site’’ adjacent to beaches or similar points of collected; and or ‘‘Site’’). The Agreement has been access that are used by the public upon (iv) Minimize the burden of the negotiated by the United States satisfaction of the requirements of the collection of information on those who Environmental Protection Agency BEACH Act. The Section obligates a are to respond, including through the (‘‘EPA’’) and the owner and operator of grant recipient to collect and submit use of appropriate automated electronic, the potential source facility, Paul information to EPA as a condition for mechanical, or other technological McCoys Laundry and Dry Cleaners, Inc. receiving the grant. Specific provisions collection techniques or other forms of (‘‘Respondent’’) subject to the final of 406(b) include the requirements that information technology, e.g., permitting review and approval of the EPA and the a grant recipient submit the factors used electronic submission of responses. U.S. Department of Justice. The to prioritize funds and a list of waters Burden Statement: The annual public proposed Agreement settles for which the grant funds will be used, reporting and recordkeeping burden for Respondent’s liability at the Site and that a grant recipient’s program be this collection of information is pursuant to the Comprehensive consistent with the performance estimated to average 1,993 hours per Environmental Response, Compensation requirements set by EPA under section grant recipient per year. This burden and Liability Act, 42 U.S.C. 9622(h)(1) 406(a). EPA needs this information from represents a report and accompanying (‘‘CERCLA’’). In the Agreement, the grant recipients to determine if their data to be are submitted each year by Respondent agrees to pay the EPA monitoring and notification programs the 40 eligible states and territories. In $26,000 representing a portion of costs are consistent with these criteria. On subsequent years, authorized tribes and incurred in response to the release or

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threat of release of hazardous substances Environmental Response, Authority: The Comprehensive the Site. In exchange, the proposed Compensation, and Liability Act of Environmental Response, Compensation, and Agreement includes EPA’s covenant not 1984, as amended (‘‘CERCLA’’), Liability Act, as amended, 42 U.S.C. 9601– to sue or to take administrative action notification is hereby given of a 9675. against Respondent. proposed administrative agreement Dated: June 26, 2008. For thirty (30) calendar days concerning the Wabash Environmental Richard C. Karl, following the date of publication of this Technologies hazardous waste site in Director, Superfund Division, Region 5. notice, EPA will receive written Terre Haute, Indiana (the ‘‘Site’’). EPA [FR Doc. E8–15434 Filed 7–7–08; 8:45 am] comments relating to the proposed proposes to enter into this agreement BILLING CODE 6560–50–P Agreement. EPA’s response to any under the authority of section 122(h) comments received will be available for and 107 of CERCLA. The proposed public inspection at the U.S. agreement has been executed by FEDERAL COMMUNICATIONS Environmental Protection Agency, 75 Heidtman Steel Products, Inc.; COMMISSION Hawthorne Street, San Francisco, CA Marathon Petroleum Company LLC; and 94105. Perma-Fix Environmental Services, Inc. Public Information Collection DATES: Comments must be submitted on (the ‘‘Settling Parties’’). Requirement Submitted to OMB for or before August 7, 2008. Under the proposed agreement, the Review and Approval, Comments Availability: The proposed Agreement Settling Parties will pay $200,000 to the Requested may be obtained from Judith Winchell, Hazardous Substances Superfund to Docket Clerk, telephone (415) 972–3124. resolve EPA’s claims against them for July 1, 2008. Comments regarding the proposed response costs incurred by EPA at the SUMMARY: The Federal Communications Agreement should be addressed to Site. EPA has incurred response costs Commission, as part of its continuing Judith Winchell (SFD–7) at United investigating and performing response effort to reduce paperwork burden, States EPA Region IX, 75 Hawthorne actions at the Site to mitigate potential invites the general public and other Street, San Francisco, California 94105, imminent and substantial Federal agencies to take this and should reference ‘‘Motorola 52nd endangerments to human health or the opportunity to comment on the Street Superfund Site,’’ and ‘‘Docket No. environment presented or threatened by following information collection, as R9–2008–03’’. hazardous substances present at the required by the Paperwork Reduction FOR FURTHER INFORMATION CONTACT: Site. Act of 1995, Public Law 104–13. An Bethany Dreyfus, Assistant Regional For thirty days following the date of agency may not conduct or sponsor a Counsel (ORC–3), Office of Regional publication of this notice, the EPA will collection of information unless it Counsel, U.S. EPA Region IX, 75 receive written comments relating to displays a currently valid control Hawthorne Street, San Francisco, CA this proposed agreement. EPA will number. No person shall be subject to 94105; E-mail: consider all comments received and any penalty for failing to comply with [email protected]; phone: (415) may decide not to enter this proposed a collection of information subject to the 972–3886. agreement if comments disclose facts or Paperwork Reduction Act (PRA) that does not display a valid control number. Dated: June 26, 2008. considerations which indicate that the proposed agreement is inappropriate, Comments are requested concerning (a) Michael Montgomery, improper or inadequate. whether the proposed collection of Acting Director, Superfund Division, Region information is necessary for the proper IX. DATES: Comments on the proposed performance of the functions of the [FR Doc. E8–15433 Filed 7–7–08; 8:45 am] agreement must be received by EPA on Commission, including whether the BILLING CODE 6560–50–P or before August 7, 2008. information shall have practical utility; ADDRESSES: Comments should be (b) the accuracy of the Commission’s addressed to the Docket Clerk, U.S. burden estimate; (c) ways to enhance ENVIRONMENTAL PROTECTION Environmental Protection Agency, the quality, utility, and clarity of the AGENCY Region 5, 77 West Jackson Boulevard, information collected; and (d) ways to [FRL–8688–7] Chicago, Illinois 60604–3590, and minimize the burden of the collection of should refer to: In the Matter of Wabash information on the respondents, Proposed Agreement Pursuant to Environmental Technologies Site, Terre including the use of automated Section 122(h)(1) of the Haute, Indiana, U.S. EPA Docket No. V– collection techniques or other forms of Comprehensive Environmental W–08C–903. information technology. Response, Compensation, and Liability FOR FURTHER INFORMATION CONTACT: DATES: Written Paperwork Reduction Act for the Wabash Environmental Thomas J. Krueger, U.S. Environmental Act (PRA) comments should be Technologies Site Protection Agency, Office of Regional submitted on or before August 7, 2008. AGENCY: Environmental Protection Counsel, C–14J, 77 West Jackson If you anticipate that you will be Agency (‘‘EPA’’). Boulevard, Chicago, Illinois 60604– submitting comments, but find it 3590, (312) 886–0562. difficult to do so within the period of ACTION: Notice; Request for public time allowed by this notice, you should comment on proposed CERCLA A copy of the proposed administrative advise the contacts listed below as soon 122(h)(1) agreement with Heidtman settlement agreement may be obtained as possible. Steel Products, Inc.; Marathon in person or by mail from the EPA’s Petroleum Company LLC; and Perma- Region 5 Office of Regional Counsel, 77 ADDRESSES: Direct all PRA comments to Fix Environmental Services, Inc. for the West Jackson Boulevard, Chicago, Nicholas A. Fraser, Office of Illinois 60604–3590. Additional Management and Budget, via Internet at Wabash Environmental Technologies _ _ Superfund Site. background information relating to the Nicholas A. [email protected] or via settlement is available for review at the fax at (202) 395–5167 and to Cathy SUMMARY: In accordance with section EPA’s Region 5 Office of Regional Williams, Federal Communications 122(i)(1) of the Comprehensive Counsel. Commission, Room 1–C823, 445 12th

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Street, SW., Washington, DC or via subscribers are made aware of the DEPARTMENT OF HEALTH AND Internet at [email protected]. or availability of basic cable service at the HUMAN SERVICES [email protected]. To view a copy of this time of installation. information collection request (ICR) Centers for Disease Control and Federal Communications Commission. submitted to OMB: (1) Go to the Web Prevention page http://www.reginfo.gov/public/do/ William F. Caton, PRAMain, (2) look for the section of the Deputy Secretary. National Center for Injury Prevention Web page called ‘‘Currently Under [FR Doc. E8–15447 Filed 7–7–08; 8:45 am] and Control Initial Review Group Review,’’ (3) click on the downward- BILLING CODE 6712–01–P In accordance with section 10(a)2 of pointing arrow in the ‘‘Select Agency’’ the Federal Advisory Committee Act box below the ‘‘Currently Under (Pub. L. 92–463), the Centers for Disease Review’’ heading, (4) select ‘‘Federal Control and Prevention (CDC) announce Communications Commission’’ from the FEDERAL RESERVE SYSTEM the following teleconference meeting: list of agencies presented in the ‘‘Select Change in Bank Control Notices; Name: National Center for Injury Agency’’ box, (5) click the ‘‘Submit’’ Prevention and Control (NCIPC) Initial button to the right of the ‘‘Select Acquisition of Shares of Bank or Bank Review Group (IRG). Agency’’ box, (6) when the list of FCC Holding Companies Times and Date: 2 p.m.–2:30 p.m. July 15, ICRs currently under review appears, 2008 (Open). look for the title of this ICR (or its OMB The notificants listed below have 2:30 p.m.–4 p.m. July 15, 2008 (Closed). control number, if there is one) and then applied under the Change in Bank Place: Centers for Disease Control and click on the ICR Reference Number to Control Act (12 U.S.C. 1817(j)) and Prevention, Chamblee Campus, Building 106, view detailed information about this § 225.41 of the Board’s Regulation Y (12 4770 Buford Highway, Atlanta, Georgia 30341. Toll Free: 888–793–2154, Participant ICR. CFR 225.41) to acquire a bank or bank Passcode: 4424802. FOR FURTHER INFORMATION CONTACT: For holding company. The factors that are Status: Portions of the meetings will be additional information or copies of the considered in acting on the notices are closed to the public in accordance with information collection(s), contact Cathy set forth in paragraph 7 of the Act (12 provisions set forth in Sections 552b(c)(4) Williams at (202) 418–2918. U.S.C. 1817(j)(7)). and (6), Title 5, U.S.C., and the Determination of the Director, Management SUPPLEMENTARY INFORMATION: The notices are available for Analysis and Services Office, CDC, pursuant OMB Control Number: 3060–0674. immediate inspection at the Federal to Section 10(d) of Public Law 92–463. Title: Section 76.1618, Basic Tier Reserve Bank indicated. The notices Purpose: This group is charged with Availability. also will be available for inspection at providing advice and guidance to the Form Number: Not applicable. the office of the Board of Governors. Secretary, Department of Health and Human Type of Review: Extension of a Services, and the Director, CDC, concerning Interested persons may express their the scientific and technical merit of grant and currently approved collection. views in writing to the Reserve Bank Respondents: Business or other for- cooperative agreement applications received indicated for that notice or to the offices from academic institutions and other public profit entities. and private profit and nonprofit Number of Respondents and of the Board of Governors. Comments must be received not later than July 22, organizations, including State and local Responses: 8,250 respondents; 8,250 government agencies, to conduct specific responses. 2008. injury research that focuses on prevention Estimated Time per Response: 2.25 A. Federal Reserve Bank of Chicago and control. hours. (Burl Thornton, Assistant Vice Matters To Be Discussed: The meeting will Frequency of Response: On occasion President) 230 South LaSalle Street, include the reconvening of the June 18, 2008 reporting requirement; Third party Chicago, Illinois 60690–1414: Panel for the peer review of two of the nine disclosure requirement. applications submitted in response to Fiscal 1. Demetris Giannoulias, Evanston, Year 2008 Requests for Applications related Obligation to Respond: Required to Illinois, individually and as Trustee of to the following individual research obtain or retain benefits. Statutory the Broadway DG Trust, George announcements: RFA–CE–08–001, Youth authority for this collection of Giannoulias, Chicago, Illinois, Violence Prevention through Community- information is contained in Section 4(i) Level Change (U49); and RFA–CE–08–003, and Section 632 of the Communications individually and as Trustee of the Research for Preventing Violence and Act of 1934, as amended. Broadway GG Trust and the George Violence-Related Injury (R01). The Total Annual Burden: 18,563 hours. Broadway Revocable Trust, the completion of peer review of applications Total Annual Cost: None. Broadway DG Trust, Evanston, Illinois, submitted in response to Fiscal Year 2008 Privacy Act Impact Assessment: No the Broadway GG Trust, Chicago, Requests for Applications related to the impact(s). Illinois, and the George Broadway following individual research Revocable Trust, Chicago, Illinois, to announcements: RFA–CD–08–001, Nature and Extent of Confidentiality: Elimination of Health Disparities through There is no need for confidentiality. acquire voting shares, and thereby join Translation Research (R18) (NCIPC); RFA– Needs and Uses: 47 CFR 76.1618 the existing Giannoulias Family control CD–08–001, Elimination of Health Disparities states that a cable operator shall provide group, of Broadway Bancorp, Inc., and through Translation Research (R18) (NCEH); written notification to subscribers of the thereby indirectly acquire Broadway RFA–EH–08–002, Program to Expand State or availability of basic tier service to new Bank, both of Chicago, Illinois. Territorial Public Health Laboratory Capacity subscribers at the time of installation. for Newborn Bloodspot Screening to include This notification shall include the Board of Governors of the Federal Reserve Severe Combined Immune Deficiency (SCID) System, July 2, 2008. following information: (a) That basic tier (U01); and RFA–TS–08–003, Environmental Robert deV. Frierson, Health and Toxicology Research Program service is available; (b) the cost per (U01). Deputy Secretary of the Board. month for basic tier service; and (c) a Agenda items are subject to change as list of all services included in the basic [FR Doc. E8–15416 Filed 7–7–08; 8:45 am] priorities dictate. service tier. These notification BILLING CODE 6210–01–S Contact Person for More Information: Jane requirements are to ensure the Suen, Ph.D., M.S., Executive Secretary,

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NCIPC IRG, CDC, 4770 Buford Highway, NE., Consideration is given to representation hotel telephone number is 301–589– M/S F–62, Atlanta, Georgia 30341, telephone from diverse geographic areas, gender, 5200. 770–488–4281. ethnic and minority groups, and the Contact Person : Diem-Kieu Ngo, This notice is published less than 15 days Center for Drug Evaluation and Research before the meeting due to administrative disabled. Members may be invited to requirements to reschedule the meeting and serve up to four-year terms. Nominees (HFD–21), Food and Drug to ensure that reviewers would be available must be U.S. citizens. Administration, 5600 Fishers Lane (for on that date. The Director, Management The following information must be express delivery, 5630 Fishers Lane, rm. Analysis and Services Office has been submitted for each candidate: Name, 1093) Rockville, MD 20857, 301–827– delegated the authority to sign Federal affiliation, address, telephone number, 7001, FAX: 301–827–6776, e-mail: Register notices pertaining to and current curriculum vitae. E-mail [email protected], or FDA announcements of meetings and other addresses are requested if available. Advisory Committee Information Line, committee management activities for both 1–800–741–8138 (301–443–0572 in the CDC and the Agency for Toxic Substances Nominations should be sent, in and Disease Registry. writing, and postmarked by October 31, Washington, DC area), code 2008 to: Sandra Malcom, Committee 3014512543. Please call the Information Dated: June 30, 2008. Management Specialist, NCEH/ATSDR, Line for up-to-date information on this Elaine L. Baker, Centers for Disease Control and meeting. A notice in the Federal Director, Management Analysis and Services Prevention, 4770 Buford Highway (MS- Register about last minute modifications Office, Centers for Disease Control and F61), Chamblee, Georgia 30341. that impact a previously announced Prevention. Telephone and facsimile submissions advisory committee meeting cannot [FR Doc. E8–15399 Filed 7–7–08; 8:45 am] cannot be accepted. always be published quickly enough to BILLING CODE 4163–18–P The Director, Management Analysis provide timely notice. Therefore, you and Services Office, has been delegated should always check the agency’s Web the authority to sign Federal Register site and call the appropriate advisory DEPARTMENT OF HEALTH AND notices pertaining to announcements of committee hot line/phone line to learn HUMAN SERVICES meetings and other committee about possible modifications before management activities for both CDC and coming to the meeting. Centers for Disease Control and Agenda : On August 6, 2008, the Prevention the National Center for Environmental Health/Agency for Toxic Substances committee will discuss new drug Request for Nominations of and Disease Registry. application (NDA) 20-427, vigabatrin, Candidates To Serve on the Board of Ovation Pharmaceuticals, Inc., for the Dated: June 30, 2008. proposed indication of adjunctive Scientific Counselors, National Center Elaine L. Baker, for Environmental Health/Agency for therapy for the treatment of refractory Director, Management Analysis and Services Toxic Substances and Disease complex partial seizures in adults. On Office, Centers for Disease Control and August 7, 2008, the committee will Registry, Centers for Disease Control Prevention. and Prevention, Department of Health discuss NDA 22–006, vigabatrin, [FR Doc. E8–15429 Filed 7–7–08; 8:45 am] and Human Services Ovation Pharmaceuticals, Inc., for the BILLING CODE 4163–18–P proposed indication of treatment of The National Center for infantile spasms. Environmental Health/Agency for Toxic FDA intends to make background Substances and Disease Registry (NCEH/ DEPARTMENT OF HEALTH AND material available to the public no later ATSDR) is soliciting nominations for HUMAN SERVICES than 2 business days before the meeting. possible membership on the Board of If FDA is unable to post the background Scientific Counselors. This Board Food and Drug Administration material on its Web site prior to the provides advice and guidance to the Peripheral and Central Nervous meeting, the background material will Secretary, HHS; the Director, CDC; and System Drugs Advisory Committee; be made publicly available at the the Director, NCEH/ATSDR, regarding location of the advisory committee Notice of Meeting program goals, objectives, strategies, and meeting, and the background material priorities in fulfillment of the agencies’ AGENCY: Food and Drug Administration, will be posted on FDA’s Web site after mission to protect and promote people’s HHS. the meeting. Background material is health. The Board provides advice and ACTION: Notice. available at http://www.fda.gov/ohrms/ guidance to help NCEH/ATSDR work dockets/ac/acmenu.htm, click on the more efficiently and effectively with its This notice announces a forthcoming year 2008 and scroll down to the various constituents and to fulfill its meeting of a public advisory committee appropriate advisory committee link. mission in protecting America’s health. of the Food and Drug Administration Procedure : Interested persons may Nominations are being sought for (FDA). The meeting will be open to the present data, information, or views, individuals who have expertise and public. orally or in writing, on issues pending qualifications necessary to contribute to Name of Committee : Peripheral and before the committee. Written the accomplishments of the Board’s Central Nervous System Drugs Advisory submissions may be made to the contact objectives. Nominees will be selected Committee. person on or before July 23, 2008. Oral from experts having experience in General Function of the Committee : presentations from the public will be preventing human diseases and To provide advice and scheduled between approximately 1 disabilities caused by environmental recommendations to the agency on p.m. and 2 p.m. on both days. Those conditions. Experts in the disciplines of FDA’s regulatory issues. desiring to make formal oral toxicology, epidemiology, Date and Time : The meeting will be presentations should notify the contact environmental or occupational held on August 6 and 7, 2008, from 8 person and submit a brief statement of medicine, behavioral science, risk a.m. to5 p.m. the general nature of the evidence or assessment, exposure assessment, and Location : Hilton Washington DC/ arguments they wish to present, the experts in public health and other Silver Spring, The Ballrooms, 8727 names and addresses of proposed related disciplines will be considered. Colesville Rd., Silver Spring, MD. The participants, and an indication of the

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approximate time requested to make [email protected] or call the HRSA because they lack client identifiers, their presentation on or before July 15, Reports Clearance Officer on (301) 443– aggregate data by definition cannot be 2008. Time allotted for each 1129. merged and unduplicated across service presentation may be limited. If the Comments are invited on: (a) Whether providers within a given geographic number of registrants requesting to the proposed collection of information area. As a result, grantees, and speak is greater than can be reasonably is necessary for the proper performance ultimately HAB, cannot obtain accurate accommodated during the scheduled of the functions of the agency, including counts of the number of individuals open public hearing session, FDA may whether the information shall have served by the Ryan White HIV/AIDS conduct a lottery to determine the practical utility; (b) the accuracy of the Program. Second, aggregate data cannot speakers for the scheduled open public agency’s estimate of the burden of the be analyzed with the detail that is hearing session. The contact person will proposed collection of information; (c) required to assess quality of care or to notify interested persons regarding their ways to enhance the quality, utility, and sufficiently account for the use of Ryan request to speak by July 16, 2008. clarity of the information to be White HIV/AIDS Program funds. Persons attending FDA’s advisory collected; and (d) ways to minimize the A well designed and supported client committee meetings are advised that the burden of the collection of information level data reporting system, using a agency is not responsible for providing on respondents, including through the unique identifier that will be encrypted access to electrical outlets. use of automated collection techniques before transfer, would provide the FDA welcomes the attendance of the or other forms of information grantee and HRSA with the requisite public at its advisory committee technology. information to assess quality of care and unmet needs, and the ability to more meetings and will make every effort to Proposed Project: Ryan White HIV/ accurately and efficiently report these accommodate persons with physical AIDS Program: Client Level Data figures to HAB and other funding disabilities or special needs. If you Reporting System: New require special accommodations due to agencies. In addition, HAB will be able a disability, please contact Diem-Kieu The Client-Level Data Reporting to characterize accurately the number of Ngo at least 7 days in advance of the System (CLDRS), created in 2008 by the clients served by the Ryan White HIV/ meeting. Health Resources and Services AIDS Program and the outcomes of the FDA is committed to the orderly Administration (HRSA), is designed to program services on a national scale. conduct of its advisory committee collect information from grantees, as The ability to perform detailed analyses meetings. Please visit our Web site at well as their subcontracted service will be possible only if organizations http://www.fda.gov/oc/advisory/ providers, funded under Parts A, B, C, submit data associated with encrypted default.htm for procedures on public D, and F of the Ryan White HIV/AIDS client identifiers. These unique conduct during advisory committee Treatment Modernization Act of 2006 identifiers must be able to link data for meetings. (Ryan White HIV/AIDS Program). The clients across Ryan White HIV/AIDS Notice of this meeting is given under Ryan White HIV/AIDS Program Program-funded grantees and their the Federal Advisory Committee Act (5 provides the Federal HIV/AIDS subcontracted service providers. U.S.C. app. 2). Programs in the Public Health Service The CLDRS provides data on the (PHS) Act under Title XXVI, with the characteristics of Ryan White HIV/AIDS Dated: June 26, 2008. flexibility to respond effectively to the Program-funded grantees, their Randall W. Lutter, changing HIV epidemic. Its emphasis is contracted service providers, and the Deputy Commissioner for Policy. on providing life-saving and life- clients being served with program [FR Doc. E8–15471 Filed 7–7–08; 8:45 am] extending services for people living funds. It is intended to support clinical BILLING CODE 4160–01–S with HIV/AIDS across the country, and quality management, performance on targeting resources to areas that have measurement, service delivery, and the greatest needs. client monitoring at both the system and DEPARTMENT OF HEALTH AND All Program Parts of the Ryan White client levels. The reporting system HUMAN SERVICES HIV/AIDS Program specify HRSA’s consists of two online data forms, the responsibilities in the administration of Grantee Information Form and the Health Resources and Services grant funds, the allocation of funds, the Service Provider Form. A data file Administration evaluation of programs for the containing the client level data elements Agency Information Collection population served, and the will be submitted with the two online Activities: Proposed Collection; improvement of the quality of care. data forms on a semi-annual basis. Comment Request Accurate records of the providers The new legislation specifies receiving Ryan White HIV/AIDS increased grantee accountability and In compliance with the requirement Program funding, the services provided, linking performance to budget. The for the opportunity for public comment and the clients served continue to be CLDRS will be used to ensure on proposed data collection projects critical to the implementation of the compliance with the requirements of the (section 3506(c)(2)(A) of Title 44, United legislation and thus are necessary for reauthorized legislation, evaluate the States Code, as amended by the HRSA to fulfill its responsibilities. progress of programs, monitor grantee Paperwork Reduction Act of 1995, Pub. Currently, the HIV/AIDS Bureau and provider performance, measure the L. 104–13), the Health Resources and (HAB) requires that all Ryan White HIV/ Government Performance and Result Services Administration (HRSA) AIDS Program-funded grantees and their Act (GPRA) and the Performance publishes periodic summaries of contracted service providers report Assessment Rating Tool (PART) goals, proposed projects being developed for aggregate data annually using the Ryan and meet reporting responsibilities to submission to the Office of Management White Data Report. Agencies report data the Department, Congress, and OMB. In and Budget (OMB) under the Paperwork related to the service provider, clients, addition to meeting the goal of Reduction Act of 1995. To request more service visits provided/clients served, accountability to Congress, clients, information on the proposed project or client demographics, and health advocacy groups, and the general to obtain a copy of the data collection insurance payments. The limitations of public, information collected through plans and draft instruments, e-mail aggregate data are twofold: First, the CLDRS is critical for HRSA, State

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and local grantees, and individual the estimated burden for the first 6- White Data Report. These providers will providers. Through the CLDRS, these month data submission. The second be required to report client level data groups will assess the status of existing table represents the estimated burden beginning in 2009. This first estimate HIV-related service delivery systems to for each subsequent 6-month data excludes providers of other direct client investigate trends in service utilization, submission. The estimated number of services because these providers will and to identify areas of greatest need. visits per 6-month reporting period not be required to report client level Discussions were conducted with 12 ranged from 1 to 17, with an average data until 2010. The second estimate volunteer grantee agencies representing (mean) of 4 client visits per reporting includes all providers that reported Parts A, B, C, D, and Minority AIDS period and a median of 2 client visits direct client services in the 2007 Ryan Initiatives, Parts A and B, as a basis for per reporting period. White Data Report. the burden estimates for the CLDRS The number of clients is estimated components that follow. These burden two ways. The first estimate is based on The estimated response burden for the estimates are broken out by burden to providers that reported outpatient/ first 6-month reporting period CLDRS grantee respondents and burden to ambulatory medical care, medical case submission is as follows: provider respondents, and are presented management, and/or non-medical case The response burden for grantees is in two tables. The first table represents management services in the 2007 Ryan estimated as:

Hours to com- Number of Responses per plete/coordinate Total hour Component Source of funding respondents grantee receipt of burden data reports

Grantee Form ...... Part A ...... 56 1 1.27 71 Part B ...... 57 1 6.00 342 Part C ...... 357 1 0.39 139 Part D ...... 90 1 0.67 60 Part A MAI ...... 56 1 1.27 71 Part B MAI ...... 30 1 10.00 300

Subtotal ...... 646 ...... 983

Hours to de- Component Number of Responses velop/adjust Total hour respondents per grantee CLD system burden

CLD Collection System ...... 563 1 1108.80 624254

The response burden for service providers is estimated as:

Number of Responses Hours per Total hour Component respondents per provider response burden

Provider Form ...... 2253 1 2.35 5295

Hours to collect/ Number of Responses report Total hour Component respondents (clients served) Total responses data per burden per provider respondent

Client Data File ...... * 1511 493.57 745784 1.65 1230544 ** 2112 417.47 881703 1.65 1454810 * Outpatient/ambulatory medical care, medical case management, and/or non-medical case management providers only. ** All providers.

The estimated response burden for all The response burden for grantees is subsequent 6-month reporting period estimated as: CLDRS submissions is as follows:

Hours to com- Number of Responses per plete/coordinate Total hour Component Source of funding respondents grantee receipt of burden data reports

Grantee Form ...... Part A ...... 56 1 1.02 57 Part B ...... 57 1 1.50 86 Part C ...... 357 1 0.32 114 Part D ...... 90 1 0.33 30 Part A MAI ...... 56 1 1.02 57

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Hours to com- Number of Responses per plete/coordinate Total hour Component Source of funding respondents grantee receipt of burden data reports

Part B MAI ...... 30 1 2.00 60

Subtotal ...... 646 ...... 404

The response burden for service providers is estimated as:

Number of Responses Hours per Total hour Component respondents per provider response burden

Provider Form ...... 2253 1 2.30 5182

Hours to collect/ Number of Responses report Total hour Component respondents (clients served) Total responses data per burden per provider respondent

Client Data File ...... * 1511 493.57 745784 1.65 1230544 ** 2112 417.47 881703 1.65 1454810 * Outpatient/ambulatory medical care, medical case management, and/or non-medical case management providers only. ** All providers.

E-mail comments to The meetings will be closed to the Date: September 16–17, 2008. [email protected] or mail comments public in accordance with the Open: September 16, 2008, 9 a.m. to 4:30 to the HRSA Reports Clearance Officer, provisions set forth in sections p.m. Agenda: Program Discussion. Room 10–33, Parklawn Building, 5600 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: National Library of Medicine, Fishers Lane, Rockville, Maryland as amended. The grant applications and Building 38, Board Room, 2nd Floor, 8600 20857. Written comments should be the discussions could disclose Rockville Pike, Bethesda, MD 20892. received within 60 days of this notice. confidential trade secrets or commercial Closed: September 16, 2008, 4:30 p.m. to Information can also be accessed at property such as patentable material, 5 p.m. http://datasupport.hab.hrsa.gov/. and personal information concerning Agenda: To review and evaluate grant individuals associated with the grant applications. Dated: June 30, 2008. applications, the disclosure of which Place: National Library of Medicine, Alexandra Huttinger, Building 38, Board Room, 2nd Floor, 8600 would constitute a clearly unwarranted Rockville Pike, Bethesda, MD 20892. Director, Division of Policy Review and invasion of personal privacy. Coordination. Open: September 17, 2008, 9 a.m. to 12 Name of Committee: Board of Regents of p.m. [FR Doc. E8–15470 Filed 7–7–08; 8:45 am] the National Library of Medicine; Extramural Agenda: Program Discussion. BILLING CODE 4165–15–P Programs Subcommittee. Place: National Library of Medicine, Date: September 15, 2008. Building 38, Board Room, 2nd Floor 8600 Closed: 4 p.m. to 6 p.m. Rockville Pike, Bethesda, MD 20892. DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant Contact Person: Donald A.B. Lindberg, MD, HUMAN SERVICES applications. Directorm National Library of Medicine, 8600 Place: National Library of Medicine, Rockville Pike, Bethesda, MD 20894, 301– National Institutes of Health Building 38, Conference Room B, 8600 496–6221, [email protected]. Rockville Pike, Bethesda, MD 20892. Any interested person may file written Contact Person: Donald A.B. Lindberg, MD, comments with the committee by forwarding National Library of Medicine; Notice of the statement to the Contact Person listed on Meetings Director, National Library of Medicine, 8600 Rockville Pike, Bethesda, MD 20894, 301– this notice. The statement should include the 496–6221, [email protected]. name, address, telephone number and when Pursuant to section 10(d) of the applicable, the business or professional Federal Advisory Committee Act, as Name of Committee: Board of Regents of affiliation of the interested person. the National Library of Medicine; amended (5 U.S.C. Appendix 2), notice In the interest of security, NIH has Subcommittee on Outreach and Public instituted stringent procedures for entrance is hereby given of meetings of the Board Information. of Regents of the National Library of onto the NIH campus. All visitor vehicles, Date: September 16, 2008. including taxicabs, hotel, and airport shuttles Medicine. Open: 7:30 a.m. to 8:45 a.m. will be inspected before being allowed on The meetings will be open to the Agenda: Outreach Activities. campus. Visitors will be asked to show one public as indicated below, with Place: National Library of Medicine, form of identification (for example, a Building 38, Conference Room B, 8600 attendance limited to space available. government-issued photo ID, drivers license, Rockville Pike, Bethesda, MD 20892. or passport) and to state the purpose of their Individuals who plan to attend and Contact Person: Donald A.B. Lindberg, MD, need special assistance, such as sign visit. Director, National Library of Medicine, 8600 Information is also available on the language interpretation or other Rockville Pike, Bethesda, MD 20894, 301– Institutes/Center’s home page: http:// reasonable accommodations, should 496–6221, [email protected]. www.nlm.nih.gov/od/bor/bor.html, where an notify the Contact Person listed below Name of Committee: Board of Regents of agenda and any additional information for in advance of the meeting. the National Library of Medicine. the meeting will be posted when available.

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(Catalogue of Federal Domestic Assistance performance, and competence of DEPARTMENT OF HEALTH AND Program Nos. 93.879, Medical Library individual investigators. HUMAN SERVICES Assistance, National Institutes of Health, Place: National Library of Medicine, HHS) National Institutes of Health Building 38, 2nd Floor, Board Room, Dated: June 27, 2008. 8600 Rockville Pike, Bethesda, MD Jennifer Spaeth, National Library of Medicine; Notice of 20892. Meeting Director, Office of Federal Advisory Closed: September 12, 2008, 9 a.m. to Committee Policy. Pursuant to section 10(d) of the 10 a.m. [FR Doc. E8–15192 Filed 7–7–08; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4140–01–M Agenda: To review and evaluate amended (5 U.S.C. Appendix 2), notice personal qualifications and is hereby given of a meeting of the performance, and competence of Board of Scientific Counselors, National DEPARTMENT OF HEALTH AND individual investigators. Center for Biotechnology Information. HUMAN SERVICES Place: National Library of Medicine, The meeting will be open to the public as indicated below, with National Institutes of Health Building 38, 2nd Floor, Board Room, 8600 Rockville Pike, Bethesda, MD attendance limited to space available. National Library of Medicine; Notice of 20892. Individuals who plan to attend and Meeting need special assistance, such as sign Open: September 12, 2008, 10 a.m. to language interpretation or other Pursuant to section 10(d) of the 11:15 a.m. reasonable accommodations, should Federal Advisory Committee Act, as Agenda: Review of research and notify the Contact Person listed below amended (5 U.S.C. Appendix 2), notice development programs and preparation in advance of the meeting. is hereby given of a meeting of the of reports of the Lister Hill Center for The meeting will be closed to the Board of Scientific Counselors, Lister Biomedical Communications. public as indicated below in accordance Hill National Center for Biomedical with the provisions set forth in section Place: National Library of Medicine, Communications. 552b(c)(6), Title 5 U.S.C., as amended The meeting will be open to the Building 38, 2nd Floor, Board Room, for the review, discussion, and public as indicated below, with 8600 Rockville Pike. evaluation of individual other attendance limited to space available. Contact Person: Karen Steely, conducted by the National Library of Individuals who plan to attend and Program Assistant, Lister Hill National Medicine, including consideration of need special assistance, such as sign Center for Biomedical Communications, personnel qualifications and language interpretation or other National Library of Medicine, Building performance, and the competence of reasonable accommodations, should 38a, Room 7s709, Bethesda, MD 20892, individual investigators, the disclosure notify the Contact Person listed below 301–435–3137, [email protected]. of which would constitute a clearly in advance of the meeting. unwarranted invasion of personal Any interested person may file The meeting will be closed to the privacy. written comments with the committee public as indicated below in accordance Name of Committee: Board of Scientific with the provisions set forth in section by forwarding the statement to the Contact Person listed on this notice. The Counselors, National Center for 552b(c)(6), Title 5 U.S.C., as amended Biotechnology Information. for the review, discussion, and statement should include the name, Date: November 18, 2008. evaluation of individual intramural address, telephone number and when Open: 8:30 a.m. to 12 p.m. programs and projects conducted by the applicable, the business or professional Agenda: Program Discussion. National Library of Medicine, including affiliation of the interested person. Place: National Library of Medicine, consideration of personnel In the interest of security, NIH has Building 38, Board Room, 2nd Floor, 8600 qualifications and performance, and the Rockville Pike, Bethesda, MD 20892. instituted stringent procedures for Closed: 12 p.m. to 2 p.m. competence of individual investigators, entrance onto the NIH campus. All Agenda: To review and evaluate personal the disclosure of which would visitor vehicles, including taxicabs, qualifications and performance, and constitute a clearly unwarranted hotel, and airport shuttles will be competence of individual investigators. invasion of personal privacy. inspected before being allowed on Place: National Library of Medicine, Name of Committee: Board of campus. Visitors will be asked to show Building 38, Board Room, 2nd Floor, 8600 Rockville Pike, Bethesda, MD 20892. Scientific Counselors, Lister Hill one form of identification (for example, National Center for Biomedical Open: 2 p.m. to 3 p.m. a government-issued photo ID, drivers Communications. Agenda: Program discussion. license, or passport) and to state the Date: September 11–12, 2008. Place: National Library of Medicine, Building 38, Board Room, 2nd Floor, 8600 Open: September 11 2008, 9 a.m. to purpose of their visit. (Catalogue of Federal Domestic Assistance Rockville Pike, Bethesda, MD 20892. 10:15 a.m. Contact Person: David J. Lipman, MD Program Nos. 93.879, Medical Library Agenda: Review of research and Director, Natl Ctr for Biotechnology Assistance, National Institutes of Health, development programs and preparation Information, National Library of Medicine, of the reports of the Lister Hill Center HHS) Department of Health and Human Services, for Biomedical Communications. Dated: June 27, 2008. Building 38a, Room 8n805, Bethesda, MD 20894, 301–435–5985, Place: National Library of Medicine, Jennifer Spaeth, [email protected]. Building 38, 2nd Floor, Board Room, Director, Office of Federal Advisory 8600 Rockville Pike, Bethesda, MD Any interested person may file written Committee Policy. comments with the committee by forwarding 20892. [FR Doc. E8–15188 Filed 7–7–08; 8:45 am] the statement to the Contact Person listed on Closed: September 11, 2008, 10:30 BILLING CODE 4140–01–M this notice. The statement should include the a.m. to 2 p.m. name, address, telephone number and when Agenda: To review and evaluate applicable, the business or professional personal qualifications and affiliation of the interested person.

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In the interest of security, NIH has 93.398, Cancer Research Manpower; 93.399, DEPARTMENT OF HOMELAND instituted stringent procedures for entrance Cancer Control, National Institutes of Health, SECURITY onto the NIH campus. All visitor vehicles, HHS) including taxicabs, hotel, and airport shuttles [Docket No. DHS–2008–0070] Dated: June 26, 2008. will be inspected before being allowed on campus. Visitors will be asked to show one Jennifer Spaeth, Homeland Security Science and form of identification (for example, a Director, Office of Federal Advisory Technology Advisory Committee government-issued photo ID, driver’s license, Committee Policy. or passport) and to state the purpose of their [FR Doc. E8–15464 Filed 7–7–08; 8:45 am] AGENCY: Science and Technology visit. Directorate, DHS. BILLING CODE 4140–01–P (Catalogue of Federal Domestic Assistance ACTION: Committee Management; Notice Program Nos. 93.879, Medical Library of Open Federal Advisory Committee Assistance, National Institutes of Health, DEPARTMENT OF HEALTH AND Meeting. HHS) HUMAN SERVICES SUMMARY: The Homeland Security Dated: June 27, 2008. National Institutes of Health Science and Technology Advisory Jennifer Spaeth, Committee will meet July 15, 2008, at Director, Office of Federal Advisory National Institute on Alcohol Abuse 1120 Vermont Avenue, NW., in Committee Policy. and Alcoholism; Notice of Closed Washington, DC. [FR Doc. E8–15191 Filed 7–7–08; 8:45 am] Meeting DATES: The Homeland Security Science BILLING CODE 4140–01–M and Technology Advisory Committee Pursuant to section 10(d) of the will meet July 15, 2008, from 9 a.m. to Federal Advisory Committee Act, as 12 p.m. The mission of the Committee DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice is to be a source of independent, HUMAN SERVICES is hereby given of the following scientific and technical planning advice meeting. National Institutes of Health for the Under Secretary for Science and The meeting will be closed to the Technology. The duties of the National Cancer Institute; Notice of public in accordance with the committee are solely advisory. Closed Meeting provisions set forth in sections The committee will meet for the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., purpose of discussing last year’s Pursuant to section 10(d) of the as amended. The grant applications and Improvised Explosive Device study, and Federal Advisory Committee Act, as the discussions could disclose current committee efforts, and to solicit amended (5 U.S.C. Appendix 2), notice confidential trade associated with the input from attendees on future efforts. is hereby given of the following grant applications, the disclosure of ADDRESSES: The meeting will be held at meeting. which would constitute a clearly 1120 Vermont Avenue, NW., The meeting will be closed to the unwarranted invasion of personal Washington, DC. Requests to have public in accordance with the privacy. written material distributed to each provisions set forth in sections Name of Committee: National Institute on member of the committee prior to the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., meeting should reach the contact person as amended. The grant applications and Alcohol Abuse and Alcoholism Special Emphasis Panel; Behavioral Mechanisms in at the address below by July 7, 2008. the discussions could disclose Alcohol Seeking (RFA AA–08–0071008). Send written material to Ms. Deborah confidential trade secrets or commercial Date: July 16, 2008. Russell, Science and Technology property such as patentable material, Time: 8 a.m. to 6 p.m. Directorate, Department of Homeland and personal information concerning Agenda: To review and evaluate grant Security, 245 Murray Drive, Bldg. 410, applications (RFA AA–08–007/008). individuals associated with the grant Washington, DC 20528. Comments must applications, the disclosure of which Place: National Institutes of Health, 5635 Fishers Lane Bethesda, MD 20892. be identified by DHS–2008–0070 and would constitute a clearly unwarranted may be submitted by one of the invasion of personal privacy. Contact Person: Beata Buzas, PhD, Scientific Review Officer, National Institute following methods: Name of Committee: National Cancer on Alcohol Abuse and Alcoholism, National • Federal eRulemaking Portal: http:// Institute Special Emphasis Panel; Innovative Institutes of Health, 5635 Fishers Lane, Rm www.regulations.gov. Follow the Technology Solutions to Cancer Sample 3041 Rockville, MD 20852 301–443–0800, instructions for submitting comments. Preparation. [email protected]. • E-mail: [email protected]. Include Date: July 24, 2008. This notice is being published less than 15 the docket number in the subject line of Time: 11 a.m. to 5 p.m. days prior to the meeting due to the timing Agenda: To review and evaluate grant the message. limitations imposed by the review and • Fax: 202–254–6173. applications. funding cycle. • Place: National Institutes of Health, 6116 Mail: Ms. Deborah Russell, Science Executive Boulevard, Rockville, MD 20852 (Catalogue of Federal Domestic Assistance and Technology Directorate, Department (Telephone Conference Call). Program Nos. 93.271, Alcohol Research of Homeland Security, 245 Murray Contact Person: Sherwood Githens, PhD, Career Development Awards for Scientists Drive, Bldg. 410, Washington, DC Scientific Review Officer, Special Review and Clinicians; 93.272, Alcohol National 20528. and Logistics Branch, Division of Extramural Research Service Awards for Research Instructions: All submissions received Activities, National Cancer Institute, 6116 Training; 93.273, Alcohol Research Programs; 93.891, Alcohol Research Center Grants, must include the words ‘‘Department of Executive Blvd. Room 8053, Bethesda, MD Homeland Security’’ and the docket 20892, 301/435–1822, [email protected]. National Institutes of Health, HHS) number for this action. Comments (Catalogue of Federal Domestic Assistance Dated: June 27, 2008. received will be posted without Program Nos. 93.392, Cancer Construction; Jennifer Spaeth, 93.393, Cancer Cause and Prevention alteration at http://www.regulations.gov, Director, Office of Federal Advisory Research; 93.394, Cancer Detection and including any personal information Committee Policy. Diagnosis Research; 93.395, Cancer provided. Treatment Research; 93.396, Cancer Biology [FR Doc. E8–15189 Filed 7–7–08; 8:45 am] Docket: For access to the docket to Research; 93.397, Cancer Centers Support; BILLING CODE 4140–01–M read background documents or

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comments received by the Homeland previously published in the Federal Department of Homeland Security Security Science and Technology Register on April 11, 2008, at 73 FR sponsoring the collection: Form I–526. Advisory Committee, go to http:// 19860, allowing for a 60-day public U.S. Citizenship and Immigration www.regulations.gov. comment period. USCIS did not receive Services. (4) Affected public who will be asked FOR FURTHER INFORMATION CONTACT: Ms. any comments for this information Deborah Russell, Science and collection. or required to respond, as well as a brief The purpose of this notice is to allow Technology Directorate, Department of abstract: Primary: Individuals and an additional 30 days for public Homeland Security, 245 Murray Drive, households. This form is used by the comments. Comments are encouraged Bldg. 410, Washington, DC 20528 202– USCIS to determine if an alien can enter and will be accepted until August 7, 254–5739. the U.S. to engage in commercial 2008. This process is conducted in enterprise. SUPPLEMENTARY INFORMATION: Notice of accordance with 5 CFR 1320.10. (5) An estimate of the total number of this meeting is given under the Federal Written comments and/or suggestions respondents and the amount of time Advisory Committee Act, 5 U.S.C. App. regarding the item(s) contained in this estimated for an average respondent to (Pub. L. 92–463). notice, especially regarding the respond: 1,368 responses at 1 hour and Public Attendance: Due to meeting estimated public burden and associated 15 minutes (1.25 hours) per response. space restrictions, the maximum response time, should be directed to the (6) An estimate of the total public number of public attendees will be 20. Department of Homeland Security burden (in hours) associated with the Members of the public will be registered (DHS), and to the Office of Information collection: 1,710 annual burden hours. to attend the public session on a first- and Regulatory Affairs, Office of If you have additional comments, come, first-served basis per the Management and Budget (OMB), USCIS suggestions, or need a copy of the procedures that follow. Any member of Desk Officer. Comments may be proposed information collection the public who wishes to attend the submitted to: USCIS, Chief, Regulatory instrument with instructions, or public session must provide his or her Management Division, Clearance Office, additional information, please visit the name, citizenship and affiliation no 111 Massachusetts Avenue, Suite 3008, USCIS Web site at: http:// later than 5 p.m. EST, Wednesday, July Washington, DC 20529. Comments may www.regulations.gov/search/index.jsp. 9, 2008. Please provide the required also be submitted to DHS via facsimile If additional information is required information to Deborah Russell via to 202–272–8352 or via e-mail at contact: USCIS, Regulatory Management phone at 202–254–5739. Persons with [email protected], and to the OMB USCIS Division, 111 Massachusetts Avenue, disabilities who require special Desk Officer via facsimile at 202–395– Suite 3008, Washington, DC 20529, assistance should indicate so in their 6974 or via e-mail at (202) 272–8377. admittance request. Photo identification [email protected]. will be required for entry into the public Dated: July 1, 2008. Written comments and suggestions Stephen Tarragon, session, and everyone in attendance from the public and affected agencies Acting Chief, Regulatory Management must be present and seated by 9 a.m. on concerning the proposed collection of July 15, 2008. Division, U.S. Citizenship and Immigration information should address one or more Services, Department of Homeland Security. Bradley Buswell, of the following four points: [FR Doc. E8–15395 Filed 7–7–08; 8:45 am] (1) Evaluate whether the collection of Deputy Under Secretary for Science and BILLING CODE 9111–97–P Technology. information is necessary for the proper performance of the functions of the [FR Doc. E8–15448 Filed 7–7–08; 8:45 am] agency, including whether the BILLING CODE 4410–10–P DEPARTMENT OF HOMELAND information will have practical utility; SECURITY (2) Evaluate the accuracy of the DEPARTMENT OF HOMELAND agency’s estimate of the burden of the U.S. Citizenship and Immigration SECURITY collection of information, including the Services validity of the methodology and U.S. Citizenship and Immigration assumptions used; Agency Information Collection Services (3) Enhance the quality, utility, and Activities: Extension of a Currently clarity of the information to be Approved Information Collection; Agency Information Collection collected; and Comment Request Activities: Form I–526, Extension of a (4) Minimize the burden of the Currently Approved Information collection of information on those who ACTION: 30-Day Notice of Information Collection; Comment Request are to respond, including through the Collection Under Review: File No. use of appropriate automated, OMB–25, Special Immigrant Visas for ACTION: 30-Day Notice of Information electronic, mechanical, or other Fourth Preference Employment-Based Collection Under Review: Form I–526, technological collection techniques, or Broadcasters; OMB Control No. 1615– Immigrant Petition by Alien other forms of information technology, 0064. Entrepreneur; OMB Control No. 1615– e.g., permitting electronic submission of 0026. responses. The Department of Homeland Security, U.S. Citizenship and The Department of Homeland Overview of This Information Collection Immigration Services (USCIS) has Security, U.S. Citizenship and (1) Type of Information Collection: submitted the following information Immigration Services (USCIS) has Extension of an existing information collection request to the Office of submitted the following information collection. Management and Budget (OMB) for collection request to the Office of (2) Title of the Form/Collection: review and clearance in accordance Management and Budget (OMB) for Immigrant Petition by Alien with the Paperwork Reduction Act of review and clearance in accordance Entrepreneur. 1995. The information collection was with the Paperwork Reduction Act of (3) Agency form number, if any, and previously published in the Federal 1995. The information collection was the applicable component of the Register on April 30, 2008, at 73 FR

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23478, allowing for a 60-day public sponsoring the collection: No Agency candidate species: Phantom springsnail comment period. USCIS did not receive Form Number (File No. OMB–25). U.S. (Tryonia cheatumi), diminutive any comments for this information Citizenship and Immigration Services. amphipod (Gammarus hyalleloides), collection. (4) Affected public who will be asked and Phantom Lake Cave Snail The purpose of this notice is to allow or required to respond, as well as a brief (Cochliopa texana). The potential take an additional 30 days for public abstract: Primary: Individuals and would occur incidental to normal comments. Comments are encouraged households. The information collected management activities at Balmorhea and will be accepted until August 7, via the submitted supplemental State Park (Park), Reeves County, Texas. 2008. This process is conducted in documentation (as contained in 8 CFR DATES: To ensure consideration, we accordance with 5 CFR 1320.10. 204.13(d)) will be used by the USCIS to must receive written comments on or Written comments and/or suggestions determine eligibility for the requested before August 7, 2008. regarding the item(s) contained in this classification as fourth preference ADDRESSES: Persons wishing to review notice, especially regarding the employment-based immigrant the application may obtain a copy by estimated public burden and associated broadcasters. writing to the Regional Director, U.S. response time, should be directed to the (5) An estimate of the total number of Fish and Wildlife Service, P.O. Box Department of Homeland Security respondents and the amount of time 1306, Room 4102, Albuquerque, NM (DHS), and to the Office of Information estimated for an average respondent to 87103. Persons wishing to review the and Regulatory Affairs, Office of respond: 100 responses at 2 hours per EA/HCP may obtain a copy by written Management and Budget (OMB), USCIS response. or telephone request to William Amy, Desk Officer. Comments may be (6) An estimate of the total public Ecological Services Office, U.S. Fish and submitted to: USCIS, Chief, Regulatory burden (in hours) associated with the Wildlife Service, 10711 Burnet Road, Management Division, Clearance Office, collection: 200 annual burden hours. Suite 200, Austin, TX 78758 (512/490– 111 Massachusetts Avenue, Suite 3008, If you have additional comments, 0057, ext. 234). Documents will be Washington, DC 20529. Comments may suggestions, or need a copy of the available for public inspection by also be submitted to DHS via facsimile proposed information collection written request, or by appointment only to 202–272–8352 or via e-mail at instrument with instructions, or during normal business hours (8 a.m. to [email protected], and to the OMB USCIS additional information, please visit the 4:30 p.m.), at the above Austin address. Desk Officer via facsimile at 202–395– USCIS Web site at: http:// FOR FURTHER INFORMATION CONTACT: 6974 or via e-mail at www.regulations.gov/search/index.jsp. _ William Amy, Ecological Services oira [email protected]. If additional information is required Office, U.S. Fish and Wildlife Service, Written comments and suggestions contact: USCIS, Regulatory Management 10711 Burnet Road, Suite 200, Austin, from the public and affected agencies Division, 111 Massachusetts Avenue, TX 78758 (512/490–0057, ext. 234). concerning the proposed collection of Suite 3008, Washington, DC 20529, Applicant: The Texas Parks and information should address one or more (202) 272–8377. Wildlife Department (Applicant) has of the following four points: Dated: July 1, 2008. applied for an incidental take permit (1) Evaluate whether the collection of (Permit) pursuant to Section 10(a)(1)(B) information is necessary for the proper Stephen Tarragon, Acting Chief, Regulatory Management of the Endangered Species Act of 1973 performance of the functions of the as amended (16 U.S.C. 153101544, 87 agency, including whether the Division, U.S. Citizenship and Immigration Services, Department of Homeland Security. Stat. 884) (ESA), from the U.S. Fish & information will have practical utility; Wildlife Service (Service) for incidental (2) Evaluate the accuracy of the [FR Doc. E8–15396 Filed 7–7–08; 8:45 am] take of the endangered Comanche agency’s estimate of the burden of the BILLING CODE 9111–97–P Springs pupfish (Cyprinodon elegans) collection of information, including the and Pecos gambusia (Gambusia nobilis), validity of the methodology and as well as the following species, which assumptions used; DEPARTMENT OF THE INTERIOR (3) Enhance the quality, utility, and are candidates to be listed: Phantom clarity of the information to be Fish and Wildlife Service springsnail (Tryonia cheatumi), collected; and diminutive amphipod (Gammarus [FWS–R2–ES–2008–N0140; 20124–1113– hyalleloides), and Phantom Lake Cave (4) Minimize the burden of the 0000–F2] collection of information on those who Snail (Cochliopa texana). The potential take is incidental to management are to respond, including through the Balmorhea State Park Management activities at Balmorhea State Park. use of appropriate automated, Plan Habitat Conservation Plan, electronic, mechanical, or other Reeves County, TX SUPPLEMENTARY INFORMATION: Section 9 technological collection techniques, or of the Act prohibits the ‘‘taking’’ of other forms of information technology, AGENCY: Fish and Wildlife Service, endangered species such as the e.g., permitting electronic submission of Interior. Comanche Springs pupfish and Pecos responses. ACTION: Notice of availability: Draft low gambusia. However, the Service, under effect habitat conservation plan and limited circumstances, may issue Overview of This Information Collection permit application. permits to take endangered wildlife (1) Type of Information Collection: species incidental to, and not the Extension of an existing information SUMMARY: The Texas Parks and Wildlife purpose of, otherwise lawful activities. collection. Department (Applicant) has applied for Regulations governing permits for (2) Title of the Form/Collection: an incidental take permit (Permit) under endangered species are at 50 CFR 17.22. Special Immigrant Visas for Fourth Section 10(a)(1)(B) of the Endangered The Balmorhea State Park Preference Employment-Based Species Act of 1973 as amended (ESA) Management Plan HCP qualifies as a Broadcasters. for the incidental take of the endangered ‘‘Low Effect’’ HCP as defined in the (3) Agency form number, if any, and Comanche Springs pupfish (Cyprinodon Service Habitat Conservation Planning the applicable component of the elegans) and Pecos gambusia (Gambusia Handbook (November 1996). Low Effect Department of Homeland Security nobilis), as well as the following HCPs have relatively minor or negligible

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impacts. Therefore, this action is a result of construction and operation of mitigating, and monitoring the impacts categorical exclusion as provided by 516 seven meteorological towers on the of taking each of the covered listed DM 2 Appendix 1 and 516 DM 6 island of Lanai, Hawaii: The endangered species and relative adaptive Appendix 1 and no further NEPA Hawaiian petrel (Pterodroma management, as evaluated against our documentation is required. A sandwichensis), endangered Hawaiian permit issuance criteria found in 50 CFR determination of jeopardy or non- stilt (Himantopus mexicanus knudseni), 13.21, 17.22, and 17.32. Pursuant to jeopardy to the species will not be made endangered Hawaiian hoary bat section 10(c) of the ESA, the Service is until at least 30 days after the date of (Lasiurus cinereus semotus), and the making the permit application package publication of this notice. We provide threatened Newell’s (Townsend’s) available for public review and this notice under Section 10(c) of the shearwater (Puffinus auricularis comment for 30 days for the purposes of ESA and National Environmental Policy newelli). Six of the seven towers have the Federal action (see DATES section Act regulations (40 CFR 1506.6). already been constructed. If approved, above). All comments received will become Public Comments the permit would authorize take, incidental to otherwise lawful activities. part of the public record for this Before including your address, phone The permit application includes a draft proposed action. Our practice is to make number, e-mail address, or other Habitat Conservation Plan (HCP) that comments, including names and home personal identifying information in your describes the Applicant’s actions and addresses of respondents, available for comment, you should be aware that the measures the Applicant will public review during regular business your entire comment—including your implement to minimize, mitigate, and hours. Respondents may request that we personal identifying information—may monitor take of listed species. The withhold their identity from the be made publicly available at any time. Service also announces the availability administrative record. We will honor While you can ask us in your comment of a draft Environmental Assessment such requests to the extent allowed by to withhold your personal identifying (EA) that has been prepared in response law. If you wish us to withhold your information from public review, we to the permit application in accordance identity (e.g., individual name, home cannot guarantee that we will be able to with requirements of the National address, and home phone number), you do so. Data or comments concerning the Environmental Policy Act (NEPA). We must state this prominently at the application and HCP should be are making the permit application beginning of your comments. submitted in writing to the Field package available for public review and Background Supervisor, U.S. Fish and Wildlife comment. Service, Ecological Services Office, Section 9 of the ESA (16 U.S.C. 1531 DATES: All comments from interested Austin, Texas at the above address. et seq.) and Federal regulations prohibit parties must be received on or before Please refer to permit number TE– the ‘‘take’’ of fish and wildlife species August 7, 2008. 183172–0 when submitting comments. listed as endangered or threatened. The ADDRESSES: Please address written term ‘‘take’’ means to harass, harm, Christopher T. Jones, comments to Patrick Leonard, Project pursue, hunt, shoot, wound, kill, trap, Acting Regional Director, Region 2, Leader, Pacific Islands Fish and Wildlife capture, or collect, or to attempt to Albuquerque, New Mexico. Office, U.S. Fish and Wildlife Service, engage in any such conduct (16 [FR Doc. E8–15466 Filed 7–7–08; 8:45 am] 300 Ala Moana Boulevard, Room #3– U.S.C.1538). However, under section BILLING CODE 4310–55–P 122, Honolulu, HI 96850. You may also 10(a) of the ESA, we may issue permits send comments by facsimile at (808) to authorize ‘‘incidental take’’ of listed 792–9580. fish and wildlife species. Incidental take DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Bill is defined by the ESA as take that is Fish and Wildlife Service Standley, Fish and Wildlife Biologist, incidental to, and not the purpose of, U.S. Fish and Wildlife Service (see carrying out an otherwise lawful [FWS–R1–ES–2008–N0121; 10120–1112– ADDRESSES above), telephone (808) 792– activity. Regulations governing 0000–F2] 9400. incidental take permits for threatened SUPPLEMENTARY INFORMATION: and endangered species are found at 50 Incidental Take Permit Application for CFR 17.32 and 17.22. If issued, the Construction and Operation of Seven Availability of Documents permittee would receive assurances Meteorological Towers on Lanai, The permit application, which under the Service’s ‘‘No Surprises’’ Hawaii includes a draft HCP and a draft EA, are regulation. AGENCY: Fish and Wildlife Service, available for public inspection, by The Applicant has applied to the Interior. appointment between the hours of 8 Service for an incidental take permit for ACTION: Notice of availability; draft a.m. and 5 p.m. at the Pacific Islands the endangered Hawaiian petrel, environmental assessment and habitat Fish and Wildlife Office (see ADDRESSES endangered Hawaiian stilt, endangered conservation plan; and receipt of above). You may also request copies of Hawaiian hoary bat, and the threatened application for an incidental take the documents by contacting the Newell’s (Townsend’s) shearwater permit. Service’s Pacific Islands Fish and (covered species), pursuant to section Wildlife Office (see FOR FURTHER 10(a)(1)(B) of the ESA. The Applicant SUMMARY: Castle and Cooke Resorts, LLC INFORMATION CONTACT above). has constructed six meteorological (met) (Applicant), has submitted an We specifically request information, towers and they are proposing application to the U.S. Fish and Wildlife views, and opinions from the public on construction of a seventh met tower, on Service (Service) for an incidental take the proposed Federal action of issuing a private land that they own. The permit (permit) pursuant to section permit, including the identification of activities proposed to be covered by the 10(a)(1)(B) of the Endangered Species any aspects of the human environment permit are the construction of the Act of 1973, as amended (ESA). The not already analyzed in our draft EA. seventh met tower and the operation Applicant is requesting a permit Further, we specifically solicit and maintenance of all seven towers. because incidental take of four species information regarding the adequacy of The met towers would be used for up to listed under the ESA may occur as a the HCP relative to minimizing, 2 years to collect data on wind patterns;

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these data would be used to assess the use of monopole met towers. Under the Fish and Wildlife Service, 1655 suitability of the wind regime to sustain third alternative, met towers that do not Heindon Road, Arcata, California 95521. a wind-turbine facility for electrical require the use of guy wires but require You also may send comments by energy production. Each met tower is a much larger foundation would be facsimile to (707) 822–8411. 165-feet-tall (50-meters-tall) and each constructed. FOR FURTHER INFORMATION CONTACT: Mr. rest on a steel base plate approximately This notice is provided pursuant to John Hunter (ADDRESSES) (707) 822– 9 square feet (0.8 square meter) in size. section 10(c) of the ESA and NEPA 7201. Each met tower is supported with regulations (40 CFR 1506.6). The public SUPPLEMENTARY INFORMATION: aircraft cable guy wires in four process for the proposed Federal action directions at each of six guy levels. The will be completed after the public Background guy wire radius is 100 feet to 110 feet comment period, at which time we will Under a Safe Harbor Agreement, (30.5 to 33.5 meters). The guy wires are evaluate the permit application, the participating landowners voluntarily anchored with standard dead-man type HCP and associated documents, and undertake management activities on anchors to a depth of 5 to 8 feet (1.5 to comments submitted thereon to their property to enhance, restore, or 2.4 meters). The met towers are located determine whether the application maintain habitat benefiting species within a combined footprint area of meets the requirements of section 10(a) listed under the Act. Safe Harbor approximately 13 acres (5.3 hectares). of the ESA and NEPA regulations. If we Agreements, and the subsequent The activities proposed to be covered determine that those requirements are enhancement of survival permits that are the construction of one met tower met, we will issue an incidental take are issued pursuant to Section and the maintenance and operation of permit to the Applicant. 10(a)(1)(A) of the Act (15 U.S.C. 1531 et seven met towers. No listed species are Dated: May 28, 2008. seq.), encourage private and other non- known to inhabit the area in the immediate vicinity of the towers, David J. Wesley, Federal property owners to implement however, incidental take may occur via Deputy Regional Director, U.S. Fish and conservation efforts for listed species, collision of individual animals flying Wildlife Service, Region 1, Portland, Oregon. by assuring property owners that they through the air space occupied by the [FR Doc. E8–15417 Filed 7–7–08; 8:45 am] will not be subject to increased land use restriction as a result of efforts to attract towers and guy wires. Removal of BILLING CODE 4310–55–P invasive plants in the mitigation area or increase the numbers or distribution may also result in take in the form of of a listed species on their property. disturbance of the covered species. DEPARTMENT OF THE INTERIOR Application requirements and issuance Incidental take of covered species criteria for enhancement of survival may occur as a result of these proposed Fish and Wildlife Service permits through Safe Harbor covered activities. The Applicant [FWS–R8–ES–2008–N0098; 11120–0008– Agreements are found in 50 CFR proposes to minimize, mitigate, and 0221–F2] 17.22(c) and 17.32(c). monitor the impacts of taking listed We have worked with the Fred M. van species by implementing the following Safe Harbor Agreement for the Eck Forest Foundation to develop a Safe measures: (1) Siting the towers as far Northern Spotted Owl for Fred M. van Harbor Agreement for the creation and from the island’s Hawaiian petrel Eck Forest Foundation, Humboldt enhancement of habitat for the northern colony and Newell’s shearwater nesting County, CA spotted owl on four Fred M. van Eck habitat as possible; (2) marking towers Forest Foundation properties totaling AGENCY: Fish and Wildlife Service, and guy wires with bird diverters and 2,163 acres in Humboldt County, Interior. flagging to increase visibility; (3) California. The term of the proposed monitoring towers for dead or injured ACTION: Notice of availability and Agreement is 90 years. Currently the birds and bats throughout the period receipt of application. properties support 1,730 acres of they are operated; (4) conducting northern spotted owl nesting and SUMMARY: This notice advises the public roosting habitat and one northern predator control within the island’s that the Fred M. van Eck Forest Hawaiian petrel colony, Newell’s spotted owl activity center. We Foundation (Applicant) has applied to anticipate that under the northern shearwater nesting habitat and hoary bat the Fish and Wildlife Service (Service) habitat; (5) conducting predator control spotted owl habitat creation and for an enhancement of survival permit enhancement timber management at the island’s wastewater treatment pursuant to Section 10(a)(1)(A) of the plant where Hawaiian stilts nest; and (6) regime proposed in the Agreement, Endangered Species Act of 1973, as removing invasive plants, primarily approximately 1,947 acres of nesting amended (Act). The permit application strawberry guava (Psidium cattleianum), and roosting habitat and potentially up includes a proposed Safe Harbor to facilitate the re-establishment of to five northern spotted owl activity Agreement (Agreement) between the native vegetation within forest habitat centers could exist on the property at Applicant and the Service for the adjacent to the Hawaiian petrel colony the end of 90 years. The proposed Safe threatened northern spotted owl (Strix and within Newell’s shearwater and Harbor Agreement does not provide for occidentalis caruina). The proposed hoary bat habitat. a return to baseline conditions at the Our EA considers the direct, indirect, Agreement and permit would remain in end of the Agreement term. Instead, the and cumulative effects of the proposed effect for 90 years. We request Agreement provides that if more than action of permit issuance, including the comments from the public on the permit five northern spotted owl activity measures that would be implemented to application and an Environmental centers should become established on minimize and mitigate such impacts. Action Statement that has been the property during the 90 year term, The EA contains an analysis of three prepared to comply with the National the Applicant would be allowed to alternatives: (1) No Action (no permit Environmental Policy Act. remove such additional activity centers issuance and the met towers would be DATES: Written comments should be during the Agreement period. Under the removed); (2) the Proposed Action (with received on or before August 7, 2008. Agreement, Fred M. van Eck Forest issuance of the permit and ADDRESSES: Send written comments to Foundation will: (1) Conduct surveys implementation of the HCP); and (3) the Mr. Michael Long, Field Supervisor, annually to determine the locations and

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reproductive status of any northern We invite the public to review the T. 79 S., R. 129 W., spotted owls; (2) protect up to five Safe Harbor Agreement and Secs. 4, 5, and 6. activity centers (locations where owls Environmental Action Statement during Containing approximately 1,905 acres. are observed nesting or roosting) with a a 30-day public comment period (see T. 79 S., R. 130 W., no-harvest area that buffers the activity DATES). Before including your address, Secs. 1 to 6, inclusive; center by no less than 100 feet; (3) phone number, e-mail address, or other Secs. 8, 9, and 16. utilize selective timber harvest methods personal identifying information in your Containing approximately 5,745 acres. such that suitable nesting habitat is comment, you should be aware that Aggregating approximately 27,308 acres. maintained within 300 feet of each your entire comment—including your Notice of the decision will also be activity center; (4) limit noise personal identifying information—may published four times in the Dutch disturbance from timber harvest be made publicly available at any time. Harbor Fisherman. operations within 1,000 feet of an active While you may ask us in your comment DATES: The time limits for filing an nest during the breeding season; and (5) to withhold your personal identifying appeal are: manage all second growth redwood information from public review, we 1. Any party claiming a property timber on the property in a manner that cannot guarantee that we will be able to interest which is adversely affected by maintains or creates suitable nesting do so. the decision shall have until August 7, and roosting habitat over time. We provide this notice pursuant to 2008 to file an appeal. Consistent with our Safe Harbor Section 10(c) of the Act. We will 2. Parties receiving service of the Policy, we propose to issue a 90 year evaluate the permit application, decision by certified mail shall have 30 permit to Fred M. van Eck Forest associated documents, and comments days from the date of receipt to file an Foundation authorizing take of northern submitted therein to determine whether appeal. spotted owls incidental to timber the permit application meets the Parties who do not file an appeal in harvest operations carried out in requirements of Section 10(a) of the Act accordance with the requirements of 43 accordance with the habitat and NEPA regulations. If, upon CFR Part 4, Subpart E, shall be deemed management provisions in the completion of the 30-day comment to have waived their rights. Agreement. Specifically, if more than period, we determine that the ADDRESSES: A copy of the decision may five northern spotted owl activity requirements are met, we will sign the be obtained from: Bureau of Land centers become established on the Agreement and issue an enhancement of Management, Alaska State Office, 222 property, take of northern spotted owls survival permit under Section West Seventh Avenue, #13, Anchorage, associated with the effects of timber 10(a)(1)(A) of the Act to Fred M. van Eck Alaska 99513–7504. harvest on such additional northern Forest Foundation for take of northern FOR FURTHER INFORMATION, CONTACT: The spotted owl activity centers would be spotted owls incidental to otherwise Bureau of Land Management by phone authorized under the incidental take lawful activities in accordance with the at 907–271–5960, or by e-mail at permit during the 90 year permit term. terms of the Agreement. [email protected]. Persons At the end of the 90 year Agreement and Dated: June 12, 2008. who use a telecommunication device permit term, no further take of northern Michael M. Long, (TTD) may call the Federal Information spotted owls would be allowed unless Field Supervisor, Arcata Fish and Wildlife Relay Service (FIRS) at 1–800–877– the Safe Harbor Agreement and Office, Arcata, California. 8330, 24 hours a day, seven days a incidental take permit are renewed or [FR Doc. E8–15365 Filed 7–7–08; 8:45 am] week, to contact the Bureau of Land extended. The development and BILLING CODE 4310–55–P Management. maintenance of high-quality habitat in a matrix of private timberland subject to Hillary Woods, even-aged management regimes will DEPARTMENT OF THE INTERIOR Land Law Examiner, Land Transfer provide a relatively stable habitat Adjudication I. condition that we believe will provide Bureau of Land Management [FR Doc. E8–15412 Filed 7–7–08; 8:45 am] high productivity for multiple [AA–8101–08; AK–964–1410–KC–P] BILLING CODE 4310–JA–P generations of spotted owls. Therefore, the cumulative impact of the Agreement Alaska Native Claims Selection and the activities it covers, which are DEPARTMENT OF THE INTERIOR facilitated by the allowable incidental AGENCY: Bureau of Land Management, take, is expected to provide a net Interior. Bureau of Land Management conservation benefit to the northern ACTION: Notice of decision approving [NV–025–1220–PC–020F; 8–08807; TAS: spotted owl. lands for conveyance. 14X1109] Public Review and Comments SUMMARY: As required by 43 CFR Final Supplementary Rules on Public 2650.7(d), notice is hereby given that an Individuals wishing copies of the Land in Humboldt, Pershing and appealable decision approving the permit application, the Environmental Washoe Counties, NV subsurface estate in certain lands for Action Statement, or copies of the full conveyance pursuant to the Alaska AGENCY: Bureau of Land Management, text of the Safe Harbor Agreement, Native Claims Settlement Act will be Interior. including a map of the proposed permit issued to The Aleut Corporation. The ACTION: Final Supplementary Rules. area, references, and legal descriptions lands are in the vicinity of Umnak of the proposed permit area, should SUMMARY: The Bureau of Land Island, Alaska, and are located in: contact the office and personnel listed Management (BLM) Winnemucca Field in the ADDRESSES section. Documents Seward Meridian, Alaska Office, Nevada, and Surprise Field will also be available for public T. 78 S., R. 129 W., Office, California, are issuing new inspection, by appointment, during Secs. 1 to 23, inclusive; supplementary rules for the Black Rock normal business hours at this office (see Secs. 26 to 33, inclusive. Desert-High Rock Canyon Emigrant ADDRESSES). Containing approximately 19,658 acres. Trails National Conservation Area

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(NCA), associated designated simplified. During the preparation of the considered more than minimal wilderness, and other contiguous lands RMP, the decisions which form the damage.’’ as identified in the 2004 Resource basis of the proposed rules were subject (2) The comment stated, ‘‘Collecting Management Plan (RMP) and Record of to public scrutiny and the wording was of plants, rocks, or other items should Decision. These supplementary rules are carefully chosen to be as clear and be discouraged in the front country needed to protect the area’s natural and concise as possible. zone.’’ cultural resources and provide for The comment also included two BLM Response: Rules 3 and 4 under public health and safety on public specific issues: Section 1 are related to collection of lands. These supplementary rules do (1) The comment stated, ‘‘Damage to rocks and fossils: not propose or implement any land use any vegetation should be prohibited in Rule 3: ‘‘You must not collect limitation or restrictions other than the front country zone.’’ This comment petrified wood, common invertebrate those limitations or restrictions is related to Section 1, Rule 1 of these fossils, rocks or minerals with included within the decisions in the supplementary rules: ‘‘Unless posted or motorized equipment.’’ RMP or allowed for by existing law or prohibited, you may pull off designated Rule 4: ‘‘You must not collect more regulation. roads and trails a maximum of 50 feet than 25 pounds per day plus one piece, from the center of the road/trail for with a maximum collection of 250 DATES: These supplementary rules are parking or camping if damage to pounds per year, of petrified wood. effective August 7, 2008. vegetation will be minimal and new Similar limits apply to each of the ADDRESSES: Bureau of Land parallel roads will not be created.’’ following: Common invertebrate fossils, Management, Winnemucca Field Office, (emphasis added). The commenter’s rocks, and minerals.’’ Attn: Dave Cooper, 1500 E. reasoning was that, because the word The front country zone encompasses Winnemucca Blvd., Winnemucca, NV ‘‘minimal’’ was not defined in the about 121,245 acres of the RMP 89445–2921. proposed supplementary rule, visitors planning area. Approximately 88 FOR FURTHER INFORMATION CONTACT: may view their impact on vegetation as percent of this area is associated with Dave Cooper, NCA Manager, 775–623– minimal when in fact the damage may the barren playa of the Black Rock 1500, e-mail [email protected]. be significant. Desert. The remaining portions of the SUPPLEMENTARY INFORMATION: BLM Response: The term ‘‘front front country zone are areas adjacent to country zone’’ in the comment refers to the playa or very small areas near I. Background portions of the planning area for which Massacre Ranch, Stevens Camp and the The Black Rock Desert-High Rock the RMP authorizes the highest levels of Soldier Meadows hot springs. The front Canyon Emigrant Trails National public use. (Section 2 of these country zone is not known for rocks, Conservation Area and associated supplementary rules includes a more petrified wood or invertebrate fossils wilderness was created by Congress on detailed definition.) A rule prohibiting sought by collectors. For this reason, the December 21, 2000 (Pub. L. 106–554). damage to ‘‘any’’ vegetation in the front BLM does not see a need to further During a three and a half year country zone (for example, the restrict the collection of rock or fossils planning process required by the trampling of a single blade of grass) in the front country zone. enabling legislation, the BLM prepared would effectively prohibit public use of The BLM has also determined that the a RMP for the NCA, associated any areas away from designated roads RMP, and the definition of ‘‘Minimal wilderness and other contiguous lands. and trails in that zone. Damage to Vegetation’’ in these The RMP contains decisions that This result would clearly be supplementary rules, adequately include additional limitations on public inconsistent with the decision of the addresses the collection of plants in the use within the RMP planning area. RMP (section 2.2.2 Decision TRAN–11) front country zone. The most common These supplementary rules are to allow vehicle parking and camping type of collection of vegetative matter necessary to implement those within the front country zone. The RMP that occurs within the front country limitations. also contains a statement in section zone is firewood collection associated On November 9, 2007 the BLM 2.2.20 Decision REC–5 which notes that: with removal of brush within short published proposed supplementary ‘‘Visitors will be encouraged to use distances of campsites. The collection of rules for the Black Rock Desert-High existing disturbed areas for camping and plants associated with botanical Rock Canyon Emigrant Trails National pulling off roads and motorized trails to research or removal of plants for Conservation Area, associated access camping areas, and will be horticultural use is very limited within designated wilderness, and other required to leave vegetation intact.’’ the entire planning area. contiguous lands in Nevada, requesting In order to address the commenter’s The RMP in sections 2.2.20 contains public review and comment. 72 FR concerns, the BLM has added a decisions related to the collection of 63625. definition of ‘‘minimal damage to plant materials and camping within the vegetation’’ in section 2 of these II. Public Comment front country zone: supplementary rules to better clarify the Decision REC–19 (2.2.20) states: The comment period closed December intent of the rule while still providing ‘‘Cutting of green or standing trees in 10, 2007. The BLM received one written for reasonable public uses of the area. the planning area will be prohibited, response from a non-governmental The added definition states: ‘‘Minimal and wood collection may be further organization. The comment was Vegetation Damage: Crushing by foot or restricted in sensitive habitat areas or generally supportive of the proposed vehicle tires or the physical removal where resources have been depleted.’’ supplementary rules, but expressed with hand tools of herbaceous Decision REC–6 establishes that concern about the complexity of the vegetation or woody vegetation less than camping within the front country zone language and recommended brevity and 18 inches tall necessary for the parking will only be allowed at designated sites. simplicity. However the comment of one or more motorized vehicles, Decision REC–7 provides that where provided no specific examples of where establishment of a campsite, or monitoring data shows that camping is the rules were too complex, nor were providing for a safe campfire. The causing resource damage, camping can there suggestions as to where the physical removal or damage of woody be restricted or eliminated. These two proposed rules could be shortened or vegetation taller than 18 inches is decisions give the BLM control over

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where visitors camp within the front governments or communities. These amended, 5 U.S.C. 601–612, to ensure country zone, and the ability to supplementary rules will not create a that government regulations do not eliminate or restrict camping where serious inconsistency or otherwise unnecessarily or disproportionately resource impacts, including over interfere with an action taken or burden small entities. The RFA requires collection of firewood, might occur in planned by another agency. These a regulatory flexibility analysis if a rule the future. Moreover, these supplementary rules do not alter the would have a significant economic supplementary rules prohibit the budgetary effects of entitlements, grants, impact, either detrimental or beneficial, physical removal or damage of woody user fees, or loan programs or the rights on a substantial number of small vegetation taller than 18 inches, and the or obligations of their recipients; nor do entities. These supplementary rules collection of more wood than is they raise novel legal or policy issues. pertain to recreational use of specific necessary for a safe campfire. The BLM They impose rules of conduct and public lands, and do not affect sees no need to further restrict the impose other limitations on certain commercial or governmental entities of collection of plants in the front country recreational activities within the NCA, any size. Therefore, the BLM has zone. associated wilderness, and other determined under the RFA that these contiguous lands in Nevada to protect supplementary rules will not have a III. Discussion of Rules natural and cultural resources and significant economic impact on a These supplementary rules apply to human health and safety. substantial number of small entities, the public lands within the boundary of and do not necessitate preparation of a Clarity of the Supplementary Rules the planning area for the Black Rock regulatory flexibility analysis. Desert-High Rock Canyon Emigrant Executive Order 12866 requires each agency to write regulations that are Small Business Regulatory Enforcement Trails National Conservation Area, Fairness Act associated wilderness, and other simple and easy to understand. A contiguous lands as set forth in the comment was received stating that the These supplementary rules do not RMP. The BLM has determined these proposed supplementary rules were too constitute a ‘‘major rule’’ as defined at supplementary rules to be necessary to complex and encouraged brevity and 5 U.S.C. 804(2). They will not result in protect the area’s natural and cultural simplicity. However, the commenter did an annual effect on the economy of $100 resources, to provide for public health not suggest where the rules were too million or more, in a major increase in and safety, reduce user conflict, complex or suggest ways they could be costs or prices, or in significant adverse enhance the experience of the visitor, simplified. The commenter did point effects on competition, employment, and reduce the potential for damage to out that the word ‘‘minimal’’ in one rule investment, productivity, innovation, or the environment. These supplementary was not defined and that lack of a on the ability of United States-based rules do not propose or implement any definition could lead to confusion enterprises to compete with foreign- land use limitations or restrictions other among visitors, and could result in based enterprises in domestic and than those limitations or restrictions damage to vegetation. As a result of that export markets. They will merely included within the decisions in the comment, the BLM added a definition of impose reasonable restrictions on RMP or allowed for by existing law or ‘‘minimal vegetation damage’’ to the certain recreational activities in the regulation. final rule. NCA, associated wilderness and contiguous lands to protect natural and Some of these supplementary rules National Environmental Policy Act make reference to designated camping cultural resources, the environment, and areas, routes, trails and management The BLM prepared an environmental human health and safety. impact statement as part of the zones. Those designations were Unfunded Mandates Reform Act developed as part of the collaborative development of the RMP. During that resource management planning process National Environmental Policy Act The Unfunded Mandates Reform Act for the NCA, associated wilderness, and process, many proposed decisions were (UMRA), 2 U.S.C. 1501 et. seq., requires other contiguous lands in Nevada, fully analyzed, including the substance an assessment of unfunded mandates on which resulted in adoption of the plan of these supplementary rules. The state, local or tribal governments. These in July 2004. A map showing the lands pertinent analysis can be found in supplementary rules do not impose any to which these rules apply, which is all Chapter 2, Alternatives, of the Proposed unfunded mandate on state, local, or lands within the planning area, can be Resource Management Plan and Final tribal governments, in the aggregate, or found in the RMP at Section 1.3 and as Environmental Impact Statement for the the private sector, of more than $100 shown at Map 1.1, or can be obtained Black Rock Desert-High Rock Canyon million per year. The rules also will not at the address listed above. Emigrant Trails National Conservation have a significant or unique effect on Area (NCA) and Associated Wilderness, small governments. They restrictions on IV. Procedural Matters and Other Contiguous Lands in Nevada, certain recreational activities in the Executive Order 12866, Regulatory September 2003. The Record of Decision NCA, associated wilderness, and Planning and Review for the RMP was signed by the BLM contiguous lands to protect natural and State Directors of Nevada and California cultural resources, the environment and These supplementary rules are not a on July 15, 2004. These supplementary human health and safety. Therefore, the significant regulatory action and are not rules provide for enforcement of plan BLM is not required to prepare a subject to review by Office of decisions. The rationale for the statement containing the information Management and Budget under decisions made in the plan is fully required by the UMRA. Executive Order 12866. These covered in the EIS. The EIS is available Executive Order 12630, Governmental supplementary rules will result in an for review in the BLM administrative Actions and Interference With annual cost of much less than $100 record at the address specified in the Constitutionally Protected Property million or more on the economy. They ADDRESSES section. will not adversely affect in a material Rights (Takings) way the economy, productivity, Regulatory Flexibility Act These supplementary rules are not a competition, jobs, environment, public Congress enacted the Regulatory government action capable of interfering health or safety, or state, local, or tribal Flexibility Act of 1980 (RFA), as with constitutionally protected property

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rights. The rules will have no effect on Executive Order 13211, Actions country management zone with the private lands or property. Therefore, the Concerning Regulations That exception of the Black Rock Desert BLM has determined that these Significantly Affect Energy Supply, playa. supplementary rules will not cause a Distribution, or Use 7. You must not build, maintain or taking of private property or require These supplementary rules do not use a campfire on the Black Rock Desert preparation of a takings assessment comprise a significant energy action. playa or adjacent dune areas without the under this Executive Order. They will not have an adverse effect on use of a surface protecting device. 8. You must not camp outside Executive Order 13132, Federalism energy supplies, production, or consumption. They address recreational designated sites within the Soldier Meadows ACEC. These supplementary rules will not use of specific public lands, and have 9. You must not camp within 100 have a substantial direct effect on the no connection with energy policy. yards of a water hole in such a manner states, on the relationship between the Author that wildlife or domestic stock will be national government and the states, or The author of these supplementary denied access to such water, unless on the distribution of power and campsites are designated by the BLM responsibilities among the various rules is Dave Cooper, Bureau of Land Management, Winnemucca Field Office. within this 100 yard area. levels of government. These Supplementary Rules for the Black 10. An authorization by the supplementary rules will have little or Rock Desert-High Rock Canyon authorized officer, whether by permit or no effect on state or local government. Emigrant Trails National Conservation other written means to use public lands Therefore, in accordance with Executive Area and Associated Wilderness, and in the NCA, associated wilderness, and Order 13132, the BLM has determined Other Contiguous Lands in Nevada: other contiguous lands, may contain that these supplementary rules do not Under 43 CFR 8365.1–6, the Bureau of reasonable restrictions necessary to have sufficient Federalism implications Land Management establishes the preserve and protect public lands and to warrant preparation of a Federalism following supplementary rules on all their resources, and to minimize Assessment. public lands within the Black Rock interference with and inconvenience to other visitors. You must follow the Executive Order 12988, Civil Justice Desert-High Rock Canyon Emigrant terms, conditions, and stipulations of Reform Trails National Conservation Area and Associated Wilderness, and Other your authorization. Under Executive Order 12988, the Contiguous Lands in Nevada Resource Section 2, Definitions BLM has determined that these Management Plan (RMP) boundary as supplementary rules will not unduly shown in the RMP at Section 1.3 and as Camping—Erecting a tent or a shelter of natural or synthetic material, burden the judicial system and that they shown at Map 1.1, RMP Reference Map. preparing a sleeping bag or other meet the requirements of sections 3(a) Section 1, Prohibited Acts/Rules bedding material for use, or parking of and 3(b)(2) of the Order. 1. Unless posted or prohibited, you a motor vehicle, motor home, or trailer Executive Order 13175, Consultation may pull off designated roads and trails for the purpose or apparent purpose of and Coordination With Indian Tribal a maximum of 50 feet from the center overnight occupancy. Governments of the road/trail for parking or camping Camp with a vehicle—Parking of a if damage to vegetation will be minimal motor vehicle, motor home, or trailer for These supplementary rules provide and new parallel roads will not be the purpose or apparent purpose of for enforcement of decisions adopted in created. overnight occupancy within one-fourth the Record of Decision and thoroughly 2. You must not possess, destroy, mile of the parked vehicle, motor home, analyzed in the EIS prepared for the deface, dig, or remove petrified wood, or trailer. Black Rock Desert-High Rock Canyon common invertebrate fossils, rocks or Common invertebrate fossil—Any Emigrant Trails National Conservation minerals without a permit in an area fossilized marine life form without a Area associated wilderness, and other otherwise closed to collecting these spinal column, including but not contiguous lands in Nevada. During resources. limited to snails, corals, diatoms, and preparation of the EIS, government-to- 3. You must not collect petrified clams. government consultation was conducted wood, common invertebrate fossils, Designated site—Specific location with the six tribal governments with rocks or minerals with motorized identified by the BLM for camping or interests in the affected area. None of equipment. other purposes. these tribal governments expressed 4. You must not collect more than 25 Designated roads and trails—Roads concerns regarding the decisions these pounds per day plus one piece, with a and trails open to motorized vehicle use supplementary rules are designed to maximum collection of 250 pounds per and identified on a map of designated enforce. Therefore, in accordance with year, of petrified wood, common roads and trails that is maintained and invertebrate fossils, rocks, and minerals. available for public inspection at the Executive Order 13175, the BLM has 5. You must not rock climb within the Winnemucca Field Office, Winnemucca, found that these supplementary rules do boundaries of the High Rock Canyon Nevada and the Surprise Field Office, not include policies that have tribal Area of Critical Environmental Concern Cedarville, California. Designated roads implications. (ACEC). and motorized trails are open to public Paperwork Reduction Act 6. You must not camp with a vehicle use in accordance with such limits and anywhere other than in designated sites restrictions as are or may be specified in These supplementary rules do not in the following areas: High Rock the RMP or in future decisions contain information collection Canyon ACEC, the Lahontan Cutthroat implementing the RMP. However, any requirements that the Office of Trout Area, Class A and B trail segments road or trail with any restrictive signing Management and Budget must approve of the Emigrant Trails, Stevens Camp, or physical barrier, including gates, under the Paperwork Reduction Act of Trego Hot Springs, Massacre Ranch and posts, branches, or rocks intended to 1995, 44 U.S.C. 3501 et seq. Mud Meadows areas, and the front prevent use of the road or trail is not a

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designated motorized road or motorized devices used exclusively upon SUPPLEMENTARY INFORMATION: The trail. stationary rails or track. lessees have agreed to the amended Management zone—The three Water hole—Any source of drinking lease terms for rentals and royalties at administrative designations (Front water for livestock, wildlife, wild rates of $10.00 per acre, or fraction Country, Rustic, and Wilderness) into horses, and burros including but not thereof, per year, and 162⁄3 percent, which the NCA, associated wilderness, limited to wildlife guzzlers, stock tanks, respectively. The lessees have paid the and contiguous lands have been divided watering troughs, natural springs, and required $500 administrative fee and for management purposes as depicted seeps. $163 to reimburse the Department for on the Visitor Use Management Zones the cost of this Federal Register notice. Penalties Map (RMP, map 2–13). Each The lessees have met all the management zone has a unique set of Under section 303(a) of the Federal requirements for reinstatement of the objectives and management decisions as Land Policy and Management Act of lease as set out in Sections 31(d) and (e) described below. 1976, 43 U.S.C. 1733(a) and 43 CFR of the Mineral Lands Leasing Act of • Front country zone—A management 8360.0–7 and 8365.1–6, violation of any 1920 (30 U.S.C. 188), and the Bureau of zone encompassing those lands that are of these supplementary rules on public Land Management is proposing to intended to be the focal point for lands within the boundaries established reinstate lease WYW143963 effective visitation where visitor in the rules, may result in a trial before February 1, 2008, under the original accommodations would be made to a United States Magistrate and may be terms and conditions of the lease and provide primary interpretation, punishable by a fine of no more than the increased rental and royalty rates overlooks, trails, and associated $1,000, or imprisonment for no more cited above. BLM has not issued a valid facilities necessary to highlight than 12 months, or both. Such lease affecting the lands. resources and features of the NCA. violations may also be subject to the • Rustic zone—Those lands that are enhanced fines provided by 18 U.S.C. Pamela J. Lewis, intended to provide an undeveloped, 3571(b)(5). Chief, Branch of Fluid Minerals Adjudication. [FR Doc. E8–15423 Filed 7–7–08; 8:45 am] primitive, and self-directed visitor Authority: 43 U.S.C. 1740 and 43 CFR experience while accommodating 8365.1–6. BILLING CODE 4310–22–P motorized and mechanized access on Dated: May 9, 2008. designated routes, and where facilities are rare and provided only where Ron Wenker, DEPARTMENT OF THE INTERIOR BLM State Director, Nevada. essential for resource protection. Bureau of Land Management • Wilderness zone—Those lands that Dated: May 7, 2008. are intended to provide an Mike Pool, [WY–030–1430–FR; WYW 0323440] undeveloped, primitive, and self- BLM State Director, California. directed visitor experience without [FR Doc. E8–15172 Filed 7–7–08; 8:45 am] Notice of Realty Action: Recreation and Public Purposes Act Classification motorized or mechanized access and BILLING CODE 4310–HC–P where facilities are nonexistent. of Public Lands in Carbon County, WY Minimal vegetation damage—rushing AGENCY: Bureau of Land Management, by foot or vehicle tires or the physical DEPARTMENT OF THE INTERIOR Interior. removal with hand tools of herbaceous ACTION: Notice. vegetation or woody vegetation less than Bureau of Land Management 18 inches tall necessary for the parking [WY–923–1310–FI; WYW143963] SUMMARY: The Bureau of Land of one or more motorized vehicles, Management (BLM) has examined and establishment of a campsite, or Wyoming: Notice of Proposed found suitable for classification for providing for a safe campfire. The Reinstatement of Terminated Oil and conveyance under the provisions of the physical removal or damage of woody Gas Lease Recreation and Public Purposes (R&PP) vegetation taller than 18 inches is Act, as amended, approximately 140 AGENCY: considered more than minimal damage. Bureau of Land Management, acres of public land in Carbon County, Motorized equipment—Any machine Interior. Wyoming. The City of Rawlins proposes that uses or is activated by a motor, ACTION: Notice of Proposed to continue the use of the land as the engine, or other non-living power Reinstatement of Terminated Oil and Rawlins landfill. Gas Lease. source. DATES: Interested parties may submit Motorized vehicle—Any vehicle that comments regarding the proposed is self-propelled by a non-living power SUMMARY: Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR conveyance or classification of the lands source, including electric power, but not until August 22, 2008. operated upon rails or upon water. 3108.2–3(a) and (b)(1), the Bureau of Rock climbing—Ascending or Land Management (BLM) received a ADDRESSES: Send written comments to descending a rock face using rope and petition for reinstatement from Prima the Field Manager, Rawlins Field Office, devices such as pitons, bolts, chocks, Exploration, Inc., Gunlikson Petroleum, 1300 North Third Street, Rawlins, camming devices and webbing. Inc., and Niwot Resources, LLC for Wyoming 82301. Surface protecting device—A device competitive oil and gas lease FOR FURTHER INFORMATION CONTACT: to prevent campfires from coming into WYW143963 for land in Converse Patrick Madigan, Field Manager, Bureau direct contact with the ground surface, County, Wyoming. The petition was of Land Management, Rawlins Field such as an elevated platform, open grill, filed on time and was accompanied by Office, at (307) 328–4200. fire blanket, or fire pan for the purpose all the rentals due since the date the SUPPLEMENTARY INFORMATION: In of preventing fire scars on the surface of lease terminated under the law. accordance with Section 7 of the Taylor the Black Rock Desert playa. FOR FURTHER INFORMATION CONTACT: Grazing Act, (43 U.S.C. 315f), and Vehicle—Every device in, upon, or by Bureau of Land Management, Pamela J. Executive Order No. 6910, the following which a person or property is or may be Lewis, Chief, Branch of Fluid Minerals described public land in Carbon County, transported or drawn on land, except Adjudication, at (307) 775–6176. Wyoming, has been examined and

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found suitable for classification for and zoning, or if the use is consistent The amount of oil and gas produced conveyance under the provisions of the with State and Federal programs. in Cook Inlet continues to decline and R&PP Act, as amended, (43 U.S.C. 869 Application Comments: Interested with changing economic conditions et seq.): parties may submit comments regarding there is renewed interest in finding the specific use proposed in the Sixth Principal Meridian, Wyoming additional hydrocarbon resources for application and plan of development, the South Central Alaska. T. 22 N., R. 87 W., whether the BLM followed proper This Request for Information (RFI) Sec. 34, N1⁄2SE1⁄4E1⁄2SW1⁄4SE1⁄4,SE1⁄4SE1⁄4. administrative procedures in reaching seeks to determine the level of industry The land described contains 140 acres, the decision to convey under the R&PP more or less. interest, whether it is focused on a few Act, or any other factor not directly blocks or prospects or if there is The above described public land was related to the suitability of the land for industry interest in a larger portion of previously classified for lease only R&PP use. the planning area. under the R&PP Act on August 22, 1966, Confidentiality of Comments: Before We are also seeking comments from and has been leased to the City of including your address, phone number, tribal, local, State, and Federal agencies, Rawlins for landfill purposes since e-mail address, or other personal and the general public to evaluate December 15, 1966. identifying information in your whether MMS should proceed with In accordance with the R&PP Act, the comment, you should be aware that further evaluations pursuant to the City of Rawlins filed an application for your entire comment—including your Outer Continental Shelf Lands Act the above-described 140 acres of public personal identifying information—may (OCSLA), the National Environmental land to be conveyed to Rawlins for be made publicly available at any time. Policy Act (NEPA), the Endangered continued use as the Rawlins landfill. While you can ask us in your comment Species Act (ESA), the Coastal Zone Additional detailed information to withhold your personal identifying Management Act (CZMA) and all other pertaining to this application, plan of information from public review, we applicable laws and regulations. We development, and site plan is in case cannot guarantee that we will be able to will consider the level of industry file WYW 0323440, located in the BLM do so. Only written comments interest and other issues and concerns Rawlins Field Office at the above submitted by postal service or overnight reflected in comments in our address. mail to the Field Manager—BLM determination on how to proceed. The The land is not needed for any Rawlins Field Office will be considered decision to proceed with further Federal purpose. The conveyance is properly filed. Electronic mail, facsimile evaluation of this special interest sale or consistent with the Rawlins Resource or telephone comments will not be to issue another RFI in 2009 will be Management Plan and would be in the considered properly filed. made after consideration of the public interest. The patent, when Any adverse comments will be comments received and the indication issued, will be subject to the provisions reviewed by the State Director. In the of industry interest in response to this of the R&PP Act and applicable absence of any adverse comments, the RFI. This RFI does not indicate a regulations of the Secretary of the classification of the land described in preliminary decision to lease in the Interior, and will contain the following this notice will become effective Program Area. reservations to the United States: September 8, 2008. The lands will not DATES: Responses to the RFI on 1. A right-of-way thereon for ditches be available for conveyance until after proposed Cook Inlet Sale 211 must be or canals constructed by the authority of the classification becomes effective. the United States, Act of August 30, received no later than October 6, 2008. Authority: 43 CFR part 2740. 1890 (43 U.S.C. 945); and Submittals should be labeled 2. All minerals, together with the right Dated: June 18, 2008. ‘‘Comments on Proposed Special- to prospect for, mine, and remove such Patrick Madigan, Interest Sale 211.’’ deposits from the same under applicable Field Manager, Rawlins, WY. FOR FURTHER INFORMATION CONTACT: law and such regulations as the [FR Doc. E8–15366 Filed 7–7–08; 8:45 am] Please contact Dr. Cleve Cowles, Secretary of the Interior may prescribe. BILLING CODE 4310–22–P Regional Supervisor, Office of Leasing The patent will be subject to all valid and Environment, Minerals existing rights documented on the Management Service, Alaska OCS official public land records at the time DEPARTMENT OF THE INTERIOR Region, 3801 Centerpoint Drive, Suite of patent issuance. 500, Anchorage, Alaska 99503–5820, On August 22, 1966, the land Minerals Management Service phone (907) 334–5233, regarding described above was segregated from all questions on the RFI for this special other forms of appropriation under the Outer Continental Shelf (OCS), Alaska interest sale. public land laws, including the general OCS Region, Cook Inlet Planning Area, mining laws, except for conveyance Proposed Oil and Gas Lease Sale 211 Request for Information under the R&PP Act, leasing under the for OCS Oil and Gas Leasing Program 1. Authority: This RFI is published mineral leasing laws, and disposals for 2007–2012 pursuant to the OCSLA as amended (43 under the mineral material disposal AGENCY: Minerals Management Service U.S.C. 1331–1356, (1994)), and the laws. The conveyance classification (MMS), Interior. regulations issued thereunder (30 CFR continues the existing segregative effect. ACTION: Request for Interest. 256); and in accordance with the 5-Year Classification Comments: Interested OCS Oil and Gas Leasing Program for parties may submit comments involving SUMMARY: The OCS Oil and Gas Leasing 2007–2012. the suitability of the land for a landfill. Program for 2007–2012 identifies two 2. Purpose of RFI: This RFI seeks to Comments on the classification are potential ‘‘special-interest’’ sales for the determine the level of industry interest; restricted to whether the land is Cook Inlet Planning Area in Alaska. The whether it is focused on a few blocks or physically suited for the proposal, Cook Inlet area is a proven oil and gas prospects; or if there is industry interest whether the use will maximize the province, but past industry interest in in a larger portion of the planning area. future use or uses of the land, whether the federal offshore area has been We are also seeking comments from the use is consistent with local planning limited. tribal, local, State, and Federal agencies

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and the general public to evaluate Following Area Identification, the index.htm. Official Protraction Diagrams whether MMS should proceed with Alaska OCS Region will prepare the numbers located in the Cook Inlet further evaluations pursuant to the appropriate NEPA analysis of potential Planning Area are identified on both the OCSLA, NEPA, ESA, Coastal Zone environmental effects of oil and gas page-sized and large-scale Call maps Management Act (CZMA) and all other exploration, development, and available for no charge at the Web site: applicable laws and regulations. production in the proposed sale area http://www.mms.gov/ld/alaska.htm. This information-gathering step is and its vicinity. 4. Instructions on RFI: Specific important for ensuring that all pertinent 3. Background and Description of the nominations demonstrating industry information is provided in response to Area: Four Federal sales have been held interest are being sought regarding the this RFI so it can be assessed in in the Cook Inlet Planning Area. In oil and gas industry area(s) of interest determining whether to proceed with October 1977, Sale CI resulted in 88 for potential exploration and further evaluation of the ‘‘special- leases being issued. In September 1981, development and production. interest’’ leasing process pursuant to the Sale 60 resulted in 13 leases being Comments on the RFI are requested OCSLA and regulations at 30 CFR part issued. A reoffering sale, Sale RS–2, was concerning any environmental, social, 256 or whether MMS should reissue held in August 1982, but no bids were or economic information or issues another RFI in 2009. A ‘‘special- received and no leases resulted from commenters believe will assist the MMS interest’’ leasing option allows MMS to this sale. Sale 149, held in June 1997 in making its decision. consider for further evaluation a very resulted in 2 leases issued. In June 2002, Responses to this RFI must be focused (or larger) area of the Cook Inlet the Department of the Interior issued the received by October 6, 2008. Submittals Program Area. If companies are OCS Oil and Gas Leasing Program for should indicate ‘‘Responses to RFI for interested, they should identify the 2002–2007. Two Cook Inlet Sales, 191 Proposed Cook Inlet Special-Interest specific blocks of interest to MMS in and 199, were included. The EIS for Lease Sale 211.’’ The RFI Map writing to the Regional Supervisor, Sales 191 and 199 was issued in nominations and specific indications of Office of Leasing and Environment, December 2002, and all other pre-sale interest, and/or comments must be ATTN: Cook Inlet RFI, Alaska OCS steps completed by early 2004. The sale submitted to the Regional Supervisor, Region, Minerals Management Service, was scheduled for May 2004. However, Leasing and Environment as noted 3801 Centerpoint Drive, Ste. 500, no bids were submitted for Sale 191. below. Anchorage, Alaska 99503–5823. If The MMS issued other solicitations to The RFI may be submitted by any one companies believe a larger area should determine industry interest in Cook of the following methods: be considered, they should explicitly Inlet, but company interest remained • Mail or hand-deliver comments to explain their interest, including a low. Lease Sale 199 was canceled. the Regional Supervisor, Office of summary of the geologic and economic Over the years, there have been 13 Leasing and Environment; ATTN: Cook information about the larger area. This exploratory wells drilled on Federal Inlet RFI; Alaska OCS Region, Minerals letter of interest may include maps, and leases in Cook Inlet and all have been Management Service; 3801 Centerpoint should include a company contact permanently plugged and abandoned. Drive, Suite 500; Anchorage, Alaska name, address, and phone number(s) if Two leases from Sale 149 (part of the 99503–5823. MMS needs additional information or Cosmopolitan Unit) are under • Submit comments by Internet clarification. suspension of operations. Exploration through MMS Public Connect at As part of this information gathering activities for the unit are occurring from http://ocsconnect.mms.gov/pcs-public/. request, we are also seeking comments onshore. The Alaska OCS Region • Fax comments to the Regional and supporting information from tribal, document ‘‘Undiscovered Oil and Gas Supervisor, Office of Leasing and local, State, and Federal agencies and Resources, Alaska Federal Offshore, Environment; Alaska OCS Region, the general public to determine whether December 2006 Update’’ estimates the Minerals Management Service at (907) MMS should consider any further mean undiscovered technically 334–5242. evaluation of a focused area or larger recoverable resources for the planning Please submit Internet comments as portion of the Cook Inlet Program Area area at 1.01 billion barrels of oil and an ASCII file, avoiding the use of special pursuant to the OCSLA and other condensate and 1.2 trillion cubic feet of characters and any form of encryption. applicable laws and regulations. After gas. http://www.mms.gov/alaska/re/ Please also include your name and the 90-day RFI comment period closes, reports/2006Asmt/index.HTM. return address in your Internet message. MMS will decide whether to continue The Cook Inlet Program Area is If you do not receive a confirmation the process after considering the located offshore the State of Alaska just from the system that we have received comments received. If industry interest south of Kalgin Island and the Barren your Internet message, please contact us reflected in comments to the RFI does Islands and continues south through directly at 1–800–764–2627. not support further evaluation at this Shelikof Strait to just above the Company comments about specific time a RFI will be issued again in 2009 southern tip of Kodiak Island (see levels of interest and/or specific areas of and yearly thereafter through the 5-year attached map). The Cook Inlet Program interest will be considered proprietary schedule until a sale is held or the 5- Area consists of approximately 1,093 and confidential information, although year schedule expires. If sufficient whole and partial blocks covering about the identities of those submitting industry interest is received during the 2.1 million hectares (about 5.3 million nominations become a matter of public RFI process, including nominations of acres). It extends offshore from 3 to record. To avoid inadvertent release of specific blocks in response to the RFI approximately 60 nautical miles in proprietary information, please mark all and after reviewing and considering the water depths from about 30 feet to documents ‘‘Confidential—Contains other information provided, MMS may approximately 650 feet. A page-size map Proprietary Information’’ on every page recommend to the Assistant Secretary, of the Program Area accompanies this containing such information. Land and Minerals Management RFI. A large scale RFI map showing the Respondents are requested to comment (ASLM) whether the sale process should boundaries of the Program Area on a on the area of the Federal boundaries of be continued as well as the size of the block-by-block basis is available on the the Cook Inlet Planning Area. area to be considered for further MMS Web site at http://www.mms.gov/ Respondents should rank areas in evaluation (Area Identification). alaska/cproject/cookinlet211/ which they have nominations according

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to priority of interest; for example, are requested to list block numbers or level of industry interest is such that priority 1 (high) or 2 (medium) on a outline the subject area on the RFI Map. MMS recommends proceeding with large-sale RFI map available at http:// Our practice is to make comments, the special-interest sale; www.mms.gov/cproject/cookinlet211/ including names and addresses of —Develop lease terms and conditions/ index.htm. Respondents are encouraged respondents, available for public review mitigating measures; and to be specific in indicating blocks by during regular business hours. —Identify potential conflicts between priority and be prepared to discuss their Individual respondents may request that oil and gas activities and the Alaska range of interest and activity regarding we withhold their address from the CMP. the nominated area(s). Please provide rulemaking record, which we will honor 6. Existing Information: An extensive the telephone number and name of a to the extent allowable by law. There environmental, social, and economic person to contact in the organization’s also may be circumstances in which we Studies Program has been underway in response. The Alaska OCS Regional would withhold a respondent’s identity, the Alaska OCS Region since 1976, Office may contact this person to set up to the extent allowable by law. If you including studies in this area. The a mutually agreeable meeting to more wish us to withhold your name or emphasis has been on environmental fully review the company’s level of address, you must state this characterization of biologically sensitive interest. prominently at the beginning of your habitats, endangered whales and marine Comments and information are sought comment. However, we will not mammals, physical oceanography, from all interested parties about consider anonymous comments. We ocean-circulation modeling, subsistence particular geological (including natural will make all submissions from uses, and ecological and socio-cultural hazard areas), environmental, biological, organizations or businesses, and from effects of oil and gas activities. archaeological, and socioeconomic individuals identifying themselves as Environmental Impact Statements were conditions or potential conflicts, or representatives or officials of prepared for each of the OCS sales held other information that might bear upon organizations or businesses, available in the Cook Inlet Planning Area. the potential leasing, exploration, and for public inspection in their entirety. Information on the MMS development of the program area and Any specific information submitted by Environmental Studies Program, vicinity. Comments and information are industry about their interest will remain completed studies, and a program status also sought on possible conflicts proprietary when marked as such. report for continuing studies in this area between future OCS oil and gas 5. Use of RFI Information: Information are available on the MMS Web site activities that may result from the submitted in response to this RFI will be http://www.mms.gov/alaska/, or may be proposed sale and the standards of the used for several purposes. Responses obtained from the Chief, Environmental Alaska Coastal Management Program will be used to: Studies Section, Alaska OCS Region, by (CMP) and the enforceable policies of an —Determine whether to proceed with telephone request at (907) 334–5230, or approved local district coastal the leasing process for a special- by written request to: Chief, management plan. These comments interest oil and gas lease sale in the Environmental Studies Section; ATTN: should identify specific CMP policies of Cook Inlet Program Area; Cook Inlet RFI; Alaska OCS Region, concern, the nature of the conflict —Identify specific areas of interest for Minerals Management Service; 3801 foreseen, and steps that MMS could take oil and/or gas exploration and Centerpoint Drive, Suite 500; to avoid or mitigate the potential development; Anchorage, Alaska 99503–5823. A conflict. Comments may be in terms of —Identify potential environmental request may also be made via the Alaska broad areas or restricted to particular effects and potential use conflicts; OCS Region Web site to blocks or areas of concern. Those —Develop the appropriate level of [email protected]. submitting comments and information environmental analysis needed if the BILLING CODE 4310–MR–P

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Dated: June 13, 2008. Randall B. Luthi, Director, Minerals Management Service. [FR Doc. E8–15444 Filed 7–7–08; 8:45 am] BILLING CODE 4310–MR–C

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DEPARTMENT OF THE INTERIOR Interagency Panel will evaluate the Only the 14 properties currently adequacy of the nominations, the included in U.S. Tentative List are National Park Service significance of the properties and eligible to be considered for nomination whether the nominations should be by the United States to the World Drafting of U.S. Nominations to the forwarded to the World Heritage Centre Heritage List. Brief descriptions of the World Heritage List to be considered for listing. Final properties appear in a copy of the press AGENCY: Department of the Interior, submittal to the World Heritage Centre release announcing the Tentative List, National Park Service. by the Department of the Interior which is linked to the site just noted through the Department of State is above. The U.S. Tentative List report on ACTION: Second Notice and Request for the 14 sites in the form submitted to the Comment required by January 30, 2009, if the properties are to be considered in the UNESCO World Heritage Centre on SUMMARY: This notice constitutes the current cycle of nominations to the January 24, 2008, appears in its entirety Second Notice referred to in Sec. 73.7(c) World Heritage List. Submittal of final on the Internet at http://www.nps.gov/ of the World Heritage Program nominations must be made no later than oia/topics/worldheritage/tentativelist/ regulations (36 CFR Part 73), and sets that date for the World Heritage WHTentList.doc. The full applications forth the decision to request that draft Committee to be able to consider them submitted to the National Park Service World Heritage nominations for at its annual meeting in the summer of for the candidate sites can be viewed at Papahanaumokuakea Marine National 2010. http://www.nps.gov/oia/NewWebpages/ Monument, Hawaii, and Mount Vernon, Protective measures must be in place ApplicantsTentativeList.html.) To Virginia, be prepared. before a property may be nominated. If request paper copies of documents On March 19, 2008, the Department of a nomination cannot be completed in discussed in this notice, please contact the Interior requested public comment accordance with this timeline, work April Brooks, Office of International on whether any properties identified on may continue into the following year(s) Affairs, National Park Service, 1201 Eye the U.S. Tentative List should be for subsequent submission to UNESCO. Street, NW., (0050) Washington, DC _ nominated to the World Heritage List, The public is invited to comment on 20005. E-mail: April [email protected]. and in particular whether the decision to nominate the two sites Summary of Public Comments: On Papahanaumokuakea Marine National up to and including 30 days from the March 19, 2008, the Department Monument, Hawaii, and Mount Vernon, publication of this notice. published the new Tentative List, which consists of properties that appear to Virginia, should be nominated. After ADDRESSES: Please provide all review of the comments provided by the additional comments directly to qualify for World Heritage status and which may be considered for public and consultation with the Jonathan Putnam, Office of International nomination by the United States to the Federal Interagency Panel on World Affairs, National Park Service, 1201 Eye World Heritage List, in the Federal Heritage, the Department, in accordance Street, NW., (0050) Washington, DC Register (Volume 73, Number 54, pages with 36 CFR part 73, has selected 20005 or by E-mail to: 14835–14838), along with the request Papahanaumokuakea National [email protected]. Phone: for public comment on the Monument and Mount Vernon as 202–354–1809. Fax 202–371–1446. Papahanaumokuakea Marine National proposed nominations to the World All comments will be a matter of Monument, Mount Vernon, and the Heritage List. With the assistance of the public record and, if received in a twelve other sites on the List. Comments Department, the owners of these sites timely manner, will be shared with were accepted through April 3, fifteen are encouraged to prepare complete property owners to assist in preparing days after the date of publication of the nomination documents for the sites in the World Heritage nominations. Before notice in the Federal Register. including your address, phone number, accordance with 36 CFR Part 73 and the Respondents were asked to address the e-mail address, or other personal nomination format required by the qualifications of the Tentative List identifying information in your World Heritage Committee. A properties for nomination by the United discussion of the decision and comment, you should be aware that States to the World Heritage List. comments received follows. your entire comment—including your A summary of the 19 public DATES: Draft World Heritage personal identifying information—may comments on the proposal to prepare nominations for Papahanaumokuakea be made publicly available at any time. nominations of sites from the Tentative Marine National Monument and Mount While you can ask us in your comment List in 2008 appears below, along with Vernon must be prepared and submitted to withhold your personal identifying the Department’s responses as in substantially complete draft form to information from public review, we appropriate. The comments were also the National Park Service by July 15, cannot guarantee that we will be able to available to the Federal Interagency 2008. (The World Heritage nomination do so. Panel on World Heritage and to the format may be found at the World FOR FURTHER INFORMATION CONTACT: Department of the Interior officials who Heritage Centre Web site at http:// Jonathan Putnam, 202–354–1809 or have selected the initial U.S. World whc.unesco.org/en/nominationform.) April Brooks, 202–354–1808. For Heritage nominations. The full texts of The National Park Service will summary information on the U.S. all the comments are available upon coordinate the review and evaluation of Tentative List and how it was request. the draft nominations. developed, please see the March 19, In some cases, respondents offered Submission of interim draft 2008, Federal Register notice (Volume site-specific or general comments that nominations to the World Heritage 73, Number 54, pages 14835–14838). addressed other issues, such as the Centre must be made by September 30, Complete information about U.S. merits of particular properties and 2008. The Centre is to provide technical participation in the World Heritage advice on and priorities for revision of comments by November 14, 2008. The Program and the process used to the Tentative List. Those comments Federal Interagency Panel for World develop the Tentative List is posted on have been retained and will remain on Heritage will review draft nominations the Office of International Affairs Web file to be considered in due course. in a phone conference tentatively site at: http://www.nps.gov/oia/topics/ Sites on the Tentative List for which scheduled for November 19, 2008. The worldheritage/tentativelist.htm. no specific comments were received

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regarding their nomination this year are primary basis for nomination under the Regarding Mount Vernon, the Panel not discussed. World Heritage cultural criteria. acknowledged that it shared the The Western Pacific Regional Fishery concerns voiced by a few public Cultural Sites Management Council (WPRFMC) respondents about the prospects for Mount Vernon, Virginia recommended that Papahanaumokuakea completing a nomination of Mount The Accokeek Foundation, a Virginia not be nominated, based on their Vernon this year that would State Senator and two members of the concerns that World Heritage successfully address the World Heritage Virginia House of Delegates expressed designation would lead to increased criteria. The World Heritage their strong support of the proposed tourism and associated impacts on the Committee’s practice of generally nomination. US/ICOMOS expressed Monument’s natural resources. The discouraging the listing of sites doubts about the prospects that the Department understands that the associated with prominent individuals was referenced in that regard. It was World Heritage Committee will find that Monument does not plan to increase agreed that those concerns would be the Mount Vernon site meets the World visitation to the site, nor does World shared with the Mount Vernon staff who Heritage criteria. The Department Heritage designation require public are working on the proposed acknowledges this concern and has access. nomination. It was also noted that the provided Mount Vernon management WPRFMC also expressed concerns property has considerable importance as with the comments. about the National Park Service becoming involved in the management an historic landscape important in Poverty Point National Monument and of the Monument. The National Park colonial history and as a prime State Historic Site, Louisiana Service will not be involved in the illustration of plantation life and Four Members of Congress wrote to Monument’s management. economy, but that more documentation recommend that this site be nominated WPRFMC requested additional time may be needed to establish its this year. The Department believes that for comment and stated doubts preeminence in that regard. After the two other sites being proposed for regarding the extent of support in discussion, the Panel concurred in the this year would better diversify the Hawaii for the proposed nomination. effort to draft a nomination for Mount Vernon. portfolio of United States sites. The Department anticipates that the The Panel reviewed the public US/ICOMOS recommended that this co-trustees of the Monument (the State suggestions for nominations for other site be considered as part of a serial or of Hawaii, the U.S. National Oceanic properties this year from the U.S. joint nomination with other similar and Atmospheric Administration and Tentative List but did not recommend sites. the U.S. Fish and Wildlife Service) will the preparation of nominations for any San Antonio Franciscan Missions, address the concerns raised by the additional or alternate properties. It was Texas WPRFMC during the balance of the year acknowledged that, although the United as the World Heritage nomination is The San Antonio Conservation States is eligible to nominate two sites being prepared. Also, as noted this year, it might be preferable to Society wrote in strong support of this elsewhere, the National Park Service site being nominated. submit only one nomination. Panel will continue to take comments on the members emphasized concern that it US/ICOMOS proposed this site as an two proposed draft nominations up to alternative nomination to Mount would be undesirable to have any of the and including 30 days from the first nominations made by the United Vernon. The Department will consider publication of this notice. this recommendation for future years. States since 1994 be unsuccessful. One respondent expressed concerns Recommendations of the Federal The Panel’s next meeting this fall about the name of this proposed Interagency Panel for World Heritage (tentatively scheduled for November 19, nomination and desires that the Native 2008) will review and recommend on The Federal Interagency Panel for draft nominations for American role at the missions be fully World Heritage assists the Department and sensitively emphasized in any Papahanaumokuakea Marine National of the Interior in implementing the Monument and Mount Vernon, if they nomination, including in its name. This Convention by making recommendation will be taken into are completed on schedule. recommendations on U.S. World In addition, in response to certain account. Another respondent expressed Heritage policy, procedures, and public comments and the opinions of his concern that the Alamo not come nominations. The Panel is chaired by Panel members, the Panel agreed to under United Nations authority. The the Assistant Secretary for Fish and place the topic of the process for future United Nations does not have any role Wildlife and Parks and includes revisions of the U.S. Tentative List, in the management of existing or representatives from various Federal noting specific comments in that regard potential U.S. World Heritage sites. Departments and agencies with Federal by US/ICOMOS, on the agenda for the Mixed Natural and Cultural Site land management and policymaking Panel’s next meeting. responsibilities. The Panel made its Papahanaumokuakea Marine National recommendations to the Department on Decision To Encourage the Preparation Monument, Hawaii the U.S. Tentative List in a conference of Two U.S. World Heritage Strongly supportive comments for this call on April 8, 2008. Nominations site were received from US/ICOMOS, The Panel agreed by consensus to The Department considered both the Trust for Public Land and several support the preparation of a nomination public comments received during the individuals. US/ICOMOS also this year for Papahanaumokuakea comment period and the advice of the recommended that consideration be Marine National Monument. It took note Federal Interagency Panel for World given to treatment of the Battle of of the comments and concerns raised by Heritage in making the decisions to draft Midway and its associated shipwrecks the Western Pacific Regional Fishery two U.S. World Heritage nominations. and aircraft. This important history will Management Council and were Both properties meet the initial be included in appropriate descriptive informed that those comments would be prerequisites for nomination by the and historical sections of the shared with the co-trustees of the site United States to the World Heritage List. nomination but will not be treated as a who intend to draft a nomination. They appear to meet one or more of the

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World Heritage criteria and all owners nomination and have assembled a team Heritage List at its annual meeting each support the nomination of these to prepare the documentation. summer. nationally significant properties to the There are 851 sites in 140 of the 185 Mount Vernon, Virginia World Heritage List. signatory countries. Currently there are Brief descriptions are provided for George Washington’s long-time home, 20 World Heritage Sites in the United these potential nominations. The with its associated gardens and grounds, States. Department will make final decisions on forms a remarkably well-preserved and U.S. participation and the roles of the whether to nominate these two sites to extensively documented example of a Department of the Interior and the the World Heritage List based on plantation landscape of the 18th-century National Park Service are authorized by complete draft World Heritage American South. Mount Vernon also Title IV of the Historic Preservation Act nominations for them. The Department has importance in the history of Amendments of 1980 and conducted in encourages all interested parties to agronomy. accordance with 36 CFR 73—World comment and make recommendations It was based on English models but Heritage Convention. The National Park as the nomination process continues. modified and adapted to its American Service provides the technical and staff Draft World Heritage nominations context, which included slave labor as support to the Assistant Secretary for will be requested for the following sites: an economic basis. There is a core of 16 Fish and Wildlife and Parks, who has the lead role for the U.S. Government in Papahanaumokuakea Marine National surviving 18th-century structures set in the implementation of the Convention. Monument, Hawaii a landscape of gardens, fences, lanes, walkways, and other features, situated The National Park Service manages all This 1,200-mile-long string of islands, along the Potomac River, that changed or parts of 17 of the 20 U.S. World atolls, coral reefs and adjacent waters, and developed over many years in Heritage Sites currently listed, including running northwest from the main Washington’s family. The Mount Yellowstone National Park, Everglades Hawaiian islands and encompassing Vernon Ladies’ Association, which has National Park, and the Statue of Liberty. over 89 million acres, is one of the owned and maintained the property for A Tentative List is a national list of world’s largest and most significant 150 years, is strongly supportive of the natural and cultural properties marine protected areas. Scattered in the site’s nomination to the World Heritage appearing to meet the World Heritage deep ocean are some 10 small islands List. Committee eligibility criteria for along with extensive reefs and shoals. In George Washington’s Mount Vernon nomination to the World Heritage List. this remote and still relatively pristine is being selected for the drafting of a A country cannot nominate a property part of the Pacific, marine life World Heritage nomination primarily unless it has been on its Tentative List flourishes, and the area is home to a because it likewise could fill a for a minimum of a year. Countries are large number of species found nowhere significant gap in the U.S. cultural site limited to nominating no more than two else in the world, including a wide array list. Colonial expressions of architecture sites in any given year. that are threatened and endangered. Neither inclusion in the Tentative List and landscape are also poorly Large populations of seabirds nest on nor inscription as a World Heritage Site represented on the World Heritage List isolated sandy shores and the waters imposes legal restrictions on owners or as a whole. Mount Vernon is a harbor impressive numbers of large neighbors of sites, nor does it give the particularly outstanding example of a predatory fish. The geology of the United Nations any management type of colonial landscape that was tied islands is also highly significant—the authority or ownership rights in U.S. to the plantation economy based on chain represents the longest, clearest, World Heritage Sites, which continue to slavery that prevailed in the American and oldest example of island formation be subject exclusively to U.S. law. South during the colonial and early and atoll evolution in the world. Inclusion in the Tentative List merely Federal periods. It is also the primary Native Hawaiians reached these indicates that the property may be illustration of the early historic islands at least 1,000 years before any further examined for possible World preservation movement in the United other people and established Heritage nomination in the future. settlements on some of them. The States. The World Heritage Committee’s islands, along with their significant SUPPLEMENTARY INFORMATION: Operational Guidelines ask participating archeological sites, retain great cultural nations to provide Tentative Lists, Background and spiritual significance to Native which aid in evaluating properties for Hawaiians. Midway Atoll and its The World Heritage List is an the World Heritage List on a environs was also the site of a major international list of cultural and natural comparative international basis and battle of World War II. properties nominated by the signatories help the Committee to schedule its work Papahanaumokuakea Marine National to the World Heritage Convention over the long term. The Guidelines Monument is selected for nomination (1972). The United States was the prime recommend that a nation review its because, among other factors, it will, as architect of the Convention, an Tentative List at least once every a marine site and a mixed cultural and international treaty for the preservation decade. natural site in the Pacific, fill of natural and cultural heritage sites of In order to guide the U.S. World conspicuous gaps in the United States global significance proposed by Heritage Program effectively and in a portfolio of World Heritage Sites. President Richard M. Nixon in 1972, timely manner, the National Park Similar gaps likewise exist in the World and the United States was the first Service prepared and submitted Heritage List as a whole, wherein few nation to ratify it. In 2005, the United (through the Secretary of the Interior marine, Pacific, or mixed sites are listed. States was elected to a fourth term on and the Secretary of State) a new Its merits on both cultural and natural the World Heritage Committee and will Tentative List to the World Heritage criteria are regarded as particularly serve until 2009. The Committee, Centre of UNESCO on January 24, 2008. outstanding. In addition, its co-trustees composed of representatives of 21 Submittal of nominations must be made (the State of Hawaii, the U.S. Fish and nations elected as the governing body of no later than January 30, 2009, for the Wildlife Service, and the U.S. National the World Heritage Convention, makes World Heritage Committee to be able to Oceanic and Atmospheric the final decisions on which consider them at its annual meeting in Administration) strongly support its nominations to accept on the World the summer of 2010.

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Authority: 16 U.S.C. 470 a–1, a–2, d; 36 knowledge gained and regulatory downloaded from the Internet at: CFR 73. developments since FLAG 2000, the http://www2.nature.nps.gov/air/ Lyle Laverty, FLMs believe certain revisions to FLAG permits/flag/index.cfm. Assistant Secretary for Fish and Wildlife and 2000 are now appropriate. The draft Mail comments to: John Bunyak, Air Parks. revised report now available for public Resources Division, National Park [FR Doc. E8–15402 Filed 7–7–08; 8:45 am] review and comment (FLAG 2008) Service, P.O. Box 25287, Denver, reflects those changes. The most BILLING CODE 4312–52–P Colorado 80225. E-mail comments can significant changes proposed in the be sent to [email protected]. draft FLAG 2008 revision are FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE INTERIOR summarized as follows: John • Adopts similar criteria derived from Bunyak at the above address or by National Park Service EPA’s 2005 Best Available Retrofit calling (303) 969–2818. Technology (BART) guidelines for the Dated: June 26, 2008. Federal Land Managers’ Air Quality Regional Haze Rule to screen out from John Bunyak, Related Values Work Group (FLAG) AQRV review those sources with Acting Chief, Air Resources Division. relatively small amounts of emissions AGENCY: National Park Service, Interior. [FR Doc. E8–15397 Filed 7–7–08; 8:45 am] located a large distance from a Class I ACTION: Notice of availability. area (i.e., Q/D ≤ 10). BILLING CODE 4312–25–P • SUMMARY: The National Park Service, in Utilizes the most recent EPA estimates to determine average annual cooperation with the U.S. Fish and DEPARTMENT OF THE INTERIOR Wildlife Service and the U.S. and 20% best natural visibility Department of Agriculture Forest conditions for Class I areas, using the National Park Service new EPA-approved algorithm. Service, is announcing the availability • of, and accepting comments on, the Adopts criteria derived from the National Register of Historic Places; draft FLAG Phase I Report—REVISED. 2005 BART guidelines that utilizes Notification of Pending Nominations The Federal Land Managers’ Air monthly average relative humidity and Related Actions Quality Related Values Work Group adjustment factors to minimize the (FLAG) was formed (1) to develop a affects of weather events (i.e., short-term Nominations for the following more consistent and objective approach meteorological phenomena) on modeled properties being considered for listing visibility impacts. or related actions in the National for the Federal Land Managers (FLMs), • i.e., National Park Service, U.S. Fish and Adopts criteria derived from the Register were received by the National Wildlife Service, and U.S. Department 2005 BART guidelines that sets a 98th Park Service before June 21, 2008. of Agriculture Forest Service, to percentile value to screen out roughly Pursuant to § 60.13 of 36 CFR Part 60 evaluate air pollution effects on their air seven days of haze-type visibility written comments concerning the impairment per year. significance of these properties under quality related values (AQRVs); and (2) • to provide State permitting authorities Includes deposition analysis the National Register criteria for and potential permit applicants thresholds and concern thresholds for evaluation may be forwarded by United consistency on how to assess the nitrogen and sulfur deposition impacts States Postal Service, to the National on vegetation, soils, and water. Register of Historic Places, National impacts of new and existing sources on • AQRVs. The FLAG effort focuses on the Increases transparency and Park Service, 1849 C St., NW., 2280, effects of the air pollutants that could consistency of factors considered for Washington, DC 20240; by all other affect the health and status of resources adverse impact determinations. carriers, National Register of Historic in areas managed by the three agencies, The agencies are soliciting comments Places, National Park Service, 1201 Eye primarily such pollutants as ozone, on the merits of adopting the EPA BART St., NW., 8th floor, Washington, DC particulate matter, nitrogen dioxide, approach in assessing new source 20005; or by fax, 202–371–6447. Written sulfur dioxide, nitrates, and sulfates. impacts to the federal lands that they or faxed comments should be submitted FLAG formed subgroups that administer. For example, the agencies by July 23, 2008. are soliciting comments on exclusively concentrated on four issues: (1) J. Paul Loether, Terrestrial effects of ozone; (2) aquatic using monthly relative humidity adjustment factors (parallel to Method 6 Chief, National Register of Historic Places/ and terrestrial effects of wet and dry National, Historic Landmarks Program. pollutant deposition; (3) visibility; and in the CALPUFF post processor) or also (4) process and policy issues. In allowing an option for the use of short- ARKANSAS December 2000, after undergoing a term average relative humidity adjustment factors (parallel to Method 2 Arkansas County public review and comment process that Crocketts Bluff Hunting Lodge, End of dirt included a 90-day public comment in the CALPUFF post processor used in FLAG 2000). Rd. N. of pt. at which Hwy. 153 turns S., period announced in the Federal Crocketts Bluff, 08000723. Register and a public meeting, the FLMs DATES: Written comments on the FLAG published a final Phase I report (FLAG 2008 draft report must be received by Miller County 2000), along with an accompanying September 8, 2008. Adams, Wallace, Service Station (Historic ‘‘Response to Public Comments’’ If there is sufficient interest, the FLMs Buildings of Texarkana, Arkansas, MPS), document. will conduct a public meeting to discuss 523 E. 23rd St., Texarkana, 08000726. FLAG 2000 has been a useful tool to the proposed changes to the FLAG Cotton Belt Railroad Office Building, the FLMs, State permitting authorities, report. Please contact John Bunyak at (Historic Buildings of Texarkana, Arkansas, MPS), 312 E. Broad St., Texarkana, and permit applicants. It was intended the address below if you would like the FLMs to conduct such a public meeting. 08000727. to be a working document that would be East Broad Street Historic District (Historic revised as necessary as the FLMs learn ADDRESSES: A copy of the draft FLAG Buildings of Texarkana, Arkansas, MPS), more about how to better assess the Phase I Report—Revised can be 100 block E. Broad St., Texarkana, health and status of AQRVs. Based on obtained from John Bunyak or 08000729.

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Hopkins Feed and Seed Store (Historic SOUTH CAROLINA INTERNATIONAL TRADE Buildings of Texarkana, Arkansas, MPS), Anderson County COMMISSION 301 E. 3rd St., Texarkana, 08000728. Swift Building (Historic Buildings of North Anderson Historic District, E. and W. [Investigation Nos. 731–TA–986–987 (Final)] Texarkana, Arkansas, MPS), 410 E. Broad North Ave. between Boundary St. and St., Texarkana, 08000725. Mauldin Dr., including parts of Edgewood Ferrovanadium From China and South Dr. Blair St., Central Ave., Anderson, Africa Mississippi County 08000733. AGENCY: Hale Avenue Historic District Boundary United States International Increase II (Osceola MRA), 100 and 200 Greenville County Trade Commission. blocks W. Hale Ave.; 100, 200 blocks E. Allen Temple A.M.E. Church, 109 Green ACTION: Revised schedule for the subject Hale Ave.; 100 block N. Poplar, Osceola, Ave., at jct. with S. Markley St., Greenville, reviews. 08000722. 08000748 DATES: Effective Date: July 1, 2008. Perry County Greenwood County FOR FURTHER INFORMATION CONTACT: Wallace Bridge (Historic Bridges of Arkansas Tabernacle Cemetery, Tabernacle Cemetery Edward Petronzio (202–205–3176), MPS), Perry Co. Rd. 18, Nimrod, 08000724. Rd., just E. of SC Hwy. 254, Greenwood, Office of Investigations, U.S. COLORADO 08000736. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Orangeburg County Las Animas County Hearing-impaired persons can obtain White School (Rural School Buildings in Trinity Lutheran Church, 390 Hampton St., information on this matter by contacting Colorado MPS), Jct. of Co. Rd. 191 and Co. Elloree, 08000721. the Commission’s TDD terminal on 202– Rd. 30, Kim, 08000740. Richland County 205–1810. Persons with mobility INDIANA impairments who will need special Good Samaritan—Waverly Hospital assistance in gaining access to the (Segregation in Columbia, South Carolina Benton County Commission should contact the Office MPS), 2204 Hampton St., Columbia, Benton County Courthouse, 706 E. 5th St., of the Secretary at 202–205–2000. 08000738. Fowler, 08000741. General information concerning the Newton County SOUTH CAROLINA Commission may also be obtained by accessing its internet server (http:// Newton County Courthouse, One Courthouse York County Square, Kentland, 08000742. www.usitc.gov). The public record for Laurelwood Cemetery (Rock Hill MPS), these reviews may be viewed on the KENTUCKY Bordered by Laurel, W. White, Stewart, Commission’s electronic docket (EDIS) and W. Main Sts., Rock Hill, 08000746. Campbell County at http://edis.usitc.gov. Fort Thomas Commercial District, 1011–1123 TENNESSEE SUPPLEMENTARY INFORMATION: On May 22, 2008, the Commission established a Fort Thomas Ave., 9–11 River Rd., 12–28 Giles County Midway Ct., Ft. Thomas, 08000751. schedule for the conduct of the subject Noblit—Lytle, House, 1311 Sugar Creek Rd., reviews (73 FR 31711, June 3, 2008). LOUISIANA Minor Hill, 08000734. Subsequently, the parties submitted a Jackson Parish TEXAS request to postpone the hearing date. Palace Theatre, 125 Jimmy Davis Blvd., The Commission, therefore, is revising Lipscomb County Jonesboro, 08000731. its schedule to conform with the parties’ Lipscomb County Courthouse, Courthouse requests. West Baton Rouge Parish Square, Lipscomb, 08000730. The Commission’s new schedule for Antonia (Louisiana’s French Creole the reviews is as follows: requests to VERMONT Architecture MPS), 4626 S. River Rd., Port appear at the hearing must be filed with Allen, 08000743. Lamoille County the Secretary to the Commission not MISSOURI Moscow Village Historic District, Moscow later than September 29, 2008; the prehearing conference will be held at Jackson County Rd., Shaw Hill Rd., Adams Mill Rd., River Rd., Stowe, 08000744. the U.S. International Trade Valentine on Broadway Hotel, 3724 Commission Building at 9:30 a.m. on Broadway Blvd., Kansas City, 08000745. WISCONSIN October 2, 2008; the hearing will be St. Louis Independent City Oneida County held at the U.S. International Trade Commission Building at 9:30 a.m. on Oehler Brick Buildings, 3542–48 S. Miller, Marshall D., Boathouse, 7304 October 7, 2008; the deadline for filing Broadway, St. Louis, 08000749. Campground Rd., Three Lakes, 08000747. posthearing briefs is October 17, 2008; Wetzell, Zebediah F. Mary H., House, 3741 Trunck, Joseph and Augusta, Boathouse, Washington Ave., St. Louis, 08000739. 1000 Leatzow Rd., Three Lakes, 08000750. the Commission will make its final release of information on November 5, NEW MEXICO Request for removal has been made for the following resources: 2008; and final party comments are due Santa Fe County on November 7, 2008. ARIZONA El Zaguan, 545 Canyon Rd., Santa Fe, For further information concerning 08000732. Maricopa County these reviews see the Commission’s notice cited above and the NORTH DAKOTA Archeological Site AZ U: 10:60 (ASM) Commission’s Rules of Practice and (Hohokam Land Use and Settlement along Stark County Procedure, part 201, subparts A through the Northern Queen Creek Delta MPS), E (19 CFR part 201), and part 207, Dickinson (Carnegie Area) Public Library Address Restricted, Mesa, 95000752. (Philanthropically Established Libraries in subparts A and C (19 CFR part 207). North Dakota MPS), 139 3rd St. W., [FR Doc. E8–15367 Filed 7–7–08; 8:45 am] Authority: These reviews are being Dickinson, 08000735. BILLING CODE 4310–70–P conducted under authority of title VII of the

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Tariff Act of 1930; this notice is published By order of the Commission. Criminal Background Check System pursuant to section 207.21 of the Marilyn R. Abbott, (NICS) Section will be submitting the Commission’s rules. Secretary to the Commission. following information collection request Issued: July 2, 2008. [FR Doc. E8–15405 Filed 7–7–08; 8:45 am] to the Office of Management and Budget By order of the Commission. BILLING CODE 7020–02–P (OMB) for review and approval in Marilyn R. Abbott, accordance with the Paperwork Secretary to the Commission. Reduction Act of 1995. The proposed information collection is published to [FR Doc. E8–15407 Filed 7–7–08; 8:45 am] INTERNATIONAL TRADE COMMISSION obtain comments from the public and BILLING CODE 7020–02–P affected agencies. This proposed [USITC SE–08–017] information collection was previously INTERNATIONAL TRADE Government in the Sunshine Act published in the Federal Register COMMISSION Meeting Notice Volume 73, Number 83, Pages 23273 on April 29, 2008, allowing for a 60-day AGENCY HOLDING THE MEETING: United comment period. The purpose of this [Investigation No. 731–TA–1115 (Final)] States International Trade Commission. notice is to allow for an additional 30 Certain Steel Nails From the United TIME AND DATE: July 9, 2008 at 9:30 a.m. days for public comment until August 7, 2008. This process is conducted in Arab Emirates PLACE: Room 101, 500 E Street SW., accordance with Title 5, Code of Federal Washington, DC 20436, Telephone: Regulations (CFR), Section 1320.10. AGENCY: United States International (202) 205–2000. Written comments and/or suggestions Trade Commission. STATUS: Open to the public. regarding the items contained in this ACTION: Termination of investigation. MATTERS TO BE CONSIDERED: notice, especially the estimated public 1. Agenda for future meetings: none. burden and associated response time, SUMMARY: On June 16, 2008, the 2. Minutes. should be directed to the Office of Department of Commerce published 3. Ratification List. Management and Budget, Office of notice in the Federal Register of a 4. Inv. No. 731–TA–1114 (Final) Information and Regulatory Affairs, negative final determination of sales at (Certain Steel Nails from China)— Attention: Department of Justice Desk less than fair value in connection with briefing and vote. (The Commission Officer, Washington, DC 20503. the subject investigation (73 FR 33985). is currently scheduled to transmit Additionally, comments may be Accordingly, pursuant to 19 U.S.C. its determination and submitted to OMB via facsimile to (202) 1673d(b)(1) and section 207.40(a) of the Commissioners’ opinions to the 395–7285. Commission’s Rules of Practice and Secretary of Commerce on or before Written comments and suggestions Procedure (19 CFR 207.40(a)), the July 21, 2008.) from the public and affected agencies antidumping investigation concerning 5. Outstanding action jackets: none. concerning the proposed collection of certain steel nails from the United Arab In accordance with Commission information are encouraged. Your Emirates (investigation No. 731–TA– policy, subject matter listed above, not comments should address one or more 1115 (Final)) is terminated. disposed of at the scheduled meeting, of the following four points: may be carried over to the agenda of the (1) Evaluate whether the proposed DATES: Effective Date: July 2, 2008. following meeting. collection of information is necessary FOR FURTHER INFORMATION CONTACT: Fred By order of the Commission. for the proper performance of the functions of the agency/component, Ruggles (202–205–3187 or Issued: July 1, 2008. [email protected]), Office of including whether the information will Marilyn R. Abbott, have practical utility; Investigations, U.S. International Trade Secretary to the Commission. Commission, 500 E Street, SW., (2) Evaluate the accuracy of the [FR Doc. E8–15369 Filed 7–7–08; 8:45 am] Washington, DC 20436. Hearing- agency’s/component’s estimate of the impaired individuals are advised that BILLING CODE 7020–02–P burden of the proposed collection of the information on this matter can be information, including the validity of obtained by contacting the the methodology and assumptions used; Commission’s TDD terminal on 202– DEPARTMENT OF JUSTICE (3) Enhance the quality, utility, and clarity of the information to be 205–1810. Persons with mobility Federal Bureau of Investigation impairments who will need special collected; and (4) Minimize the burden of the assistance in gaining access to the [OMB Number 1110–0043] collection of information on those who Commission should contact the Office are to respond, including the use of of the Secretary at 202–205–2000. Criminal Justice Information Services appropriate automated, electronic, General information concerning the Division; National Instant Criminal mechanical, or other technological Commission may also be obtained by Background Check System Section; collection techniques or other forms of accessing its internet server (http:// Agency Information Collection information technology, e.g., permitting www.usitc.gov). The public record for Activities: Existing Collection, electronic submission of responses. this investigation may be viewed on the Comments Requested Commission’s electronic docket (EDIS) Overview of This Information ACTION: 30-Day Notice of Information at http://edis.usitc.gov. Collection Under Review: Approval of (1) Type of Information Collection: Authority: This investigation is being an existing collection; The Voluntary Approval of an existing collection. terminated under authority of title VII of the Appeal File (VAF) Brochure. (2) Title of the Forms: The Voluntary Tariff Act of 1930; this notice is published Appeal File (VAF) Brochure. pursuant to section 201.10 of the The Department of Justice (DOJ), FBI, (3) Agency Form Number, if any, and Commission’s rules (19 CFR 201.10). Criminal Justice Information Services the applicable component of the Issued: July 2, 2008. (CJIS) Division’s National Instant department sponsoring the collection:

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Form Number: 1110–0043. Patrick Henry Building, 601 D Street, whether the information will have Sponsor: Criminal Justice Information NW., Washington, DC 20530. practical utility; Services (CJIS) Division of the FBI, Dated: July 1, 2008. —Evaluate the accuracy of the agencies Department of Justice (DOJ). Lynn Bryant, estimate of the burden of the (4) Affected Public who will be asked proposed collection of information, Department Clearance Officer, United States or required to respond, as well as a brief Department of Justice. including the validity of the abstract: methodology and assumptions used; [FR Doc. E8–15381 Filed 7–7–08; 8:45 am] Primary: Any individual requesting —Enhance the quality, utility, and entry into the FBI’s Criminal Justice BILLING CODE 4410–02–P clarity of the information to be Information Services (CJIS) Division’s collected; and National Instant Criminal Background DEPARTMENT OF JUSTICE —Minimize the burden of the collection Check System (NICS) Section’s of information on those who are to Voluntary Appeal File (VAF). Office of Justice Programs respond, including through the use of Brief Abstract: Under 28 CFR, Part appropriate automated, electronic, [OMB Number 1121–NEW] 25.9(b)(1), (2), (3), the NICS must mechanical, or other technological destroy all identifying information on Agency Information Collection collection techniques or other forms allowed transactions within 24 hours of Activities: Proposed Collection; of information technology, e.g., the Federal Firearm Licensee (FFL) Comments Requested permitting electronic submission of being notified of the transaction’s responses. proceed status. If a potential purchaser ACTION: 60-Day Emergency Notice of Overview of This Information is delayed or denied a firearm, then Information Collection Under Review: (1) Type of information collection: successfully appeals the decision, the National Institute of Justice Voluntary New collection. NICS Section cannot retain a record of Compliance Testing Program. (2) The title of the form/collection: NIJ the overturned appeal or the supporting Body Armor Compliance Testing documentation. If the record cannot be The Department of Justice, Office of Program. This collection consists of five updated, the purchaser continues to be Justice Programs, will be submitting the forms: Compliance Testing Program delayed or denied, and if that individual following information collection request Applicant Agreement; Ballistic Body appeals the decision, the documentation to the Office of Management and Budget Armor Model Application and Body must be resubmitted for every (OMB) for review and clearance in Armor Build Sheet; Declaration for subsequent purchase. As such, the VAF accordance with emergency review Ballistic Body Armor; Compliance was mandated to be created and procedures of the Paperwork Reduction Testing Program Conformity Assessment maintained by the NICS Section for the Act of 1995. The proposed information Follow-up Agreement; NIJ-Approved purpose of preventing future lengthy collection is published to obtain Laboratory Application and Agreement. delays or erroneous denials of a firearm comments from the public and affected (3) Agency Form Number: None. transfer. An individual wishing to agencies. If granted, the emergency Component Sponsoring Collection: request entry into the VAF may obtain approval is only valid for 180 days. National Institute of Justice, Office of a VAF brochure from the NICS Section, Comments should be directed to OMB, Justice Programs, Department of Justice. an FFL, or the NICS Section Web site at Office of Information and Regulation (4) Affected public who will be asked the Internet address: http://www.fbi.gov/ Affairs, Attention: Department of Justice or required to respond, as well as a brief programs/nics/index.htm. Desk Officer, Washington, DC 20503. abstract. Primary: Body Armor (5) An estimate of the total number of Comments are encouraged and will be Manufacturers and Testing Laboratories. respondents and the amount of time accepted for 60 days until September 8, Other: None. The purpose of the NIJ estimated for an average respondent to 2008. Voluntary Compliance Testing Program respond: It is estimated that 12,500 During the first 60 days of this same (CTP) is to ensure to the degree possible individuals will request entry into the review period, a regular review of this that body armor used for law VAF. It takes an average of 5 minutes to information collection is also being enforcement and corrections read and complete all areas of the undertaken. All comments and applications is safe, reliable, and meets application, an estimated 2 hours for the suggestions, or questions regarding performance requirements over the process of fingerprinting including additional information, to include declared performance period. Body travel, and 25 minutes to mail the form obtaining a copy of the proposed armor models that are successfully for a total of 2.5 hours estimated burden information collection instrument with tested by the CTP and listed on the NIJ to the respondent. instructions, should be directed to Kris Compliant Products List are eligible for (6) An estimate of the total public Brambila, Attorney-Advisor, Office of purchase with grant funding through the burden (in hours) associated with the General Counsel, Office of Justice Ballistic Vest Partnership. collection: The number of persons Programs, Department of Justice, 810 (5) An estimate of the total number of requesting entry into the VAF is 7th Street, NW., Washington, DC 20531, respondents and the amount of time estimated to be 12,500 individuals. The or e-mail, estimated for an average respondent to time it takes each individual to [email protected]. respond/reply: Total of 60 respondents complete the process is 2.5 hours. The Written comments and suggestions estimated. total public burden hours is 12,500 from the public and affected agencies CTP Applicant Agreement: Estimated 50 respondents multiplied by 2.5 hours concerning the proposed collection of respondents; 1 hour each; which equals 31,250 total burden hours. information are encouraged. Your Ballistic Body Armor Model Application If additional information is required, comments should address one or more and Body Armor Build Sheet: contact: Ms. Lynn Bryant, Department of the following four points: Estimated 50 respondents (estimated Clearance Officer, United States —Evaluate whether the proposed 250 responses) at 30 minutes each; Department of Justice, Information collection of information is necessary Declaration for Ballistic Body Armor: Management and Security Staff, Justice for the proper performance of the Estimated 50 respondents (estimated Management Division, Suite 1600, functions of the agency, including 250 responses) at 15 minutes each;

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CTP Conformity Assessment Follow-up Dated: June 25, 2008. goals, and effectiveness, efficiency, and Agreement: Estimated 50 respondents Cranston J. Mitchell, performance measures in order to (estimated 250 responses) at 15 Vice Chairman, U.S. Parole Commission. address the critical issues facing the minutes each; [FR Doc. E8–15305 Filed 7–7–08; 8:45 am] provision of job training and education NIJ-Approved Laboratory Application BILLING CODE 4410–01–M to the youth population that it serves. and Agreement: Estimated 8 to 10 The Committee may provide other respondents at 1 hour each. advice and recommendations with DEPARTMENT OF LABOR regard to identifying and overcoming (6) An estimate of the total public problems, planning program or center burden (in hours) associated with the Office of Job Corps; Advisory development or strengthening relations collection: The estimated total public Committee on Job Corps; Meeting between Job Corps and agencies, burden associated with this information institutions, or groups engaged in is 310 hours in the first year and 100 AGENCY: Office of Job Corps. related activities. hours each subsequent year. ACTION: Notice of Advisory Committee Agenda: The agenda for the meeting If additional information is required meeting. will be the continuation of report outs contact: Lynn Bryant, Department from the Committee’s two SUMMARY: Clearance Officer, United States On August 22, 2006, the subcommittees—subcommittee on Department of Justice, Justice Advisory Committee on Job Corps facilities and subcommittee on safety Management Division, Policy and (ACJC) was established in accordance and security. Planning Staff, Patrick Henry Building, with the provisions of the Workforce Public Participation: The meeting will Suite 1600, 601 D Street, NW., Investment Act and the Federal be open to the public. Seating will be Washington, DC 20530. Advisory Committee Act. The available to the public on a first-come Committee was established to advance Dated: July 2, 2008. first-served basis. Seats will be reserved Job Corps’ new vision for student for the media. Individuals with Lynn Bryant, achievement aimed at 21st century high- disabilities should contact the Job Corps Department Clearance Officer, Department of growth employment. This Committee official listed above, if special Justice. will also evaluate Job Corps program accommodations are needed. [FR Doc. E8–15404 Filed 7–7–08; 8:45 am] characteristics, including its purpose, Signed at Washington, DC, this 18th day of BILLING CODE 4410–18–P goals, and effectiveness, efficiency, and performance measures in order to June 2008. address the critical issues facing the Esther R. Johnson, DEPARTMENT OF JUSTICE provision of job training and education National Director, Office of Job Corps. to the youth population that it serves. [FR Doc. E8–15332 Filed 7–7–08; 8:45 am] Parole Commission The Committee may provide other BILLING CODE 4510–23–P Record of Vote of Meeting Closure advice and recommendations with (Pub. L. 94–409) (5 U.S.C. 552b) regard to identifying and overcoming problems, planning program or center DEPARTMENT OF LABOR development or strengthening relations I, Edward F. Reilly, Jr., Chairman of Office of the Secretary the United States Parole Commission, between Job Corps and agencies, was present at a meeting of said institutions, or groups engaged in Research on Forced Labor in the Commission, which started at related activities. Production of Goods in Selected approximately 12:30 p.m., on Tuesday, DATES: The meeting will be held on July Countries May 13, 2008, at the U.S. Parole 22–23, 2008 from 8 a.m. to 12 noon on Commission, 5550 Friendship July 22 and from 8 a.m. to 10 a.m. on AGENCY: Bureau of International Labor Boulevard, 4th Floor, Chevy Chase, July 23. The Committee will be visiting Affairs, U.S. Department of Labor. Maryland 20815. The purpose of the three Job Corps Centers—Treasure ACTION: New. Notice of Availability of meeting was to decide four petitions for Island, San Jose and Sacramento. Funds and Solicitation for Cooperative reconsideration pursuant to 28 CFR ADDRESSES: The Advisory Committee Agreement Applications (SGA). The full 2.27. Four Commissioners were present, meeting will be held at the Westin St. announcement is posted on http:// constituting a quorum when the vote to Francis (San Francisco), 335 Powell www.grants.gov and DOL/ILAB’s Web close the meeting was submitted. Street, San Francisco, California 94102. site at http://www.dol.gov/ILAB/grants/ main.htm. Public announcement further Telephone: (866) 497–2788. describing the subject matter of the FOR FURTHER INFORMATION CONTACT: Funding Opportunity Number: SGA meeting and certifications of General Crystal Woodard, Office of Job Corps, 08–07 Counsel that this meeting may be closed 202–693–3000 (this is not a toll-free Catalog of Federal Domestic by vote of the Commissioners present number). Assistance (CFDA) Number: Not were submitted to the Commissioners SUPPLEMENTARY INFORMATION: On August applicable. prior to the conduct of any other 22, 2006 the Advisory Committee on Job SUMMARY: The U.S. Department of business. Upon motion duly made, Corps (71 FR 48949) was established in Labor, Bureau of International Labor seconded, and carried, the following accordance with the provisions of the Affairs (ILAB), will award up to USD Commissioners voted that the meeting Workforce Investment Act, and the 1.25 million over three years through a be closed: Edward F. Reilly, Jr., Federal Advisory Committee Act. The cooperative agreement to a qualified Cranston J. Mitchell, Isaac Fulwood, Jr., Committee was established to advance organization and/or Association to carry and Patricia Cushwa. Job Corps’ new vision for student out research in eight (8) countries on In witness whereof, I make this achievement aimed at 21st century high- forced labor in the production of goods, official record of the vote taken to close growth employment. This Committee and to develop strategies to assist this meeting and authorize this record to will also evaluate Job Corps program governments, industries, and/or third be made available to the public. characteristics, including its purpose, parties in taking action to address these

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problems. Four (4) countries are combating forced labor. 22 U.S.C. (3) if in the opinion of the Certifying required for research, and applicants 7112(b). Today, OCFT develops policy, Officer, a mis-interpretation of facts or must choose four (4) additional conducts research, and implements of the law justified reconsideration of countries. The solicitation provides a technical cooperation projects to the decision. list of eleven (11) countries from which eradicate exploitive child labor, The negative TAA determination these four (4) additional countries trafficking in persons, and forced labor issued by the Department for workers of should be chosen, but applicants may worldwide. Springs Global, US, Inc., Springs Direct propose four (4) alternate countries and Since 1994, ILAB has published over provide justifications for these choices. 20 congressionally mandated reports on Tunnel Road Store Division, Asheville, Projects funded under SGA 08–07 will international child labor. In addition to North Carolina was based on the finding involve gathering and analyzing data to its own research, USDOL has funded that the worker group does not produce answer the research questions outlined projects aimed at building the an article within the meaning of Section in the solicitation. The research will aim knowledge base on child labor, forced 222 of the Trade Act of 1974. to complement and expand upon labor and human trafficking world wide The petitioner states that the workers existing research on the use of forced for the purposes of improving program of the subject firm ‘‘answered the labor in the production of goods. planning, policy design and impact needs’’ in ‘‘providing means for the Application and Submission measurement. Research projects have buyer to return damaged goods, Information: The full-text version of included the collection of child labor overstocks, slow sellers and items they SGA 08–07 is available on http:// data through national surveys, rapid wish to discontinue.’’ The petitioner www.grants.gov and USDOL/ILAB’s assessments, baseline studies; special further states that the subject firm Web site at http://www.dol.gov/ILAB/ and thematic studies; comprehensive grants/main.htm. All applications for ‘‘provided a profitable avenue’’ and literature reviews on forced labor, child supported sales and orders for the funding under SGA 08–07 must be labor and human trafficking; and the submitted electronically to USDOL via production division and that the subject development of creative and innovative firm is ‘‘specifically designed for direct http://www.grants.gov. Any application methodologies to measure child labor, support of production.’’ The petitioner sent by mail or other delivery services, forced and bonded labor, and human alleges that because other facilities of e-mail, telegram, or facsimile (FAX) will trafficking. not be accepted. Springs Global have been certified Key Dates: The deadline for Signed at Washington, DC, this 1st day of eligible for TAA, workers of the subject submission of applications is August 8, July 2008. firm who are engaged in retail should be 2008. All technical questions regarding Lisa Harvey, certified eligible for TAA. SGA 08–07 must be sent by July 18, Grant Officer. The investigation revealed that 2008 in order to receive a response. [FR Doc. E8–15398 Filed 7–7–08; 8:45 am] workers of Springs Global, US, Inc., USDOL will publish its responses to BILLING CODE 4510–28–P these technical questions on SGA 08–07 Springs Direct Tunnel Road Store by July 28, 2008. Any questions Division, Asheville, North Carolina are regarding the electronic assembly of DEPARTMENT OF LABOR engaged in activities at retail outlet store application packages must be sent at that sold close-out home furnishings least one week prior to the application Employment and Training merchandise. These functions, as deadline. USDOL will make all Administration described above, are not considered production of an article within the cooperative agreement awards on or [A–W–63,206] before September 30, 2008. meaning of Section 222 of the Trade Agency Contacts: All technical Springs Global, US, Inc., Springs Act. questions regarding SGA 08–07 should Direct Tunnel Road Store Division, Conclusion be sent to Ms. Lisa Harvey, Grant Asheville, NC; Notice of Negative Officer, U.S. Department of Labor’s Determination Regarding Application After review of the application and Office of Procurement Services, via e- for Reconsideration investigative findings, I conclude that mail (e-mail address: there has been no error or [email protected]; telephone: (202) By application dated June 5, 2008, a misinterpretation of the law or of the 693–4592—this is not a toll-free- petitioner requested administrative number). reconsideration of the Department’s facts which would justify Background Information: ILAB negative determination regarding reconsideration of the Department of conducts research and commissions eligibility to apply for Trade Adjustment Labor’s prior decision. Accordingly, the studies to inform and formulate Assistance (TAA), applicable to workers application is denied. international economic, trade and labor and former workers of the subject firm. Signed in Washington, DC, this 24th day of policies in collaboration with other U.S. The denial notice was signed on April June 2008. government agencies, and provides 28, 2008 and published in the Federal Elliott S. Kushner, technical assistance to countries abroad Register on May 15, 2008 (73 FR 28167). Certifying Officer, Division of Trade in support of foreign labor policy Pursuant to 29 CFR 90.18(c) Adjustment Assistance. objectives. OCFT, formerly the reconsideration may be granted under International Child Labor Program the following circumstances: [FR Doc. E8–15341 Filed 7–3–08; 8:45 am] (ICLP), was created at the request of (1) If it appears on the basis of facts BILLING CODE 4510–FN–P Congress in 1993 to specifically research not previously considered that the and report on child labor around the determination complained of was world. More recently Congress, through erroneous; the Trafficking Victims Protection (2) if it appears that the determination Reauthorization Act (TVPRA) of 2005, complained of was based on a mistake directed ILAB to include, among its in the determination of facts not responsibilities, monitoring and previously considered; or

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DEPARTMENT OF LABOR declines, and to the subject workers’ TAA Criterion: Absolute Sales and/or separations. Production Declines at the Subject Firm Employment and Training By letter dated July 3, 2007, the or Appropriate Subdivision Administration Department informed the workers that During the remand investigation, the [TA–W–61,180] the request for reconsideration was Department received new information dismissed on the basis that insufficient which revealed that, although sales and Welex, Inc., Blue Bell, Pennsylvania; evidence was provided to warrant production at the subject firm increased Notice of Revised Determination on administrative reconsideration. On July in calendar year 2006 from calendar Remand 9, 2007, the Department issued a Notice year 2005 levels, sales orders decreased On March 28, 2008, the United States of Dismissal of Application for in the latter part of 2006 and into the Court of International Trade (USCIT) Reconsideration. The Department’s earlier part of 2007. Thus, the granted the Department of Labor’s Notice of dismissal was published in the Department determines that subject firm motion for voluntary remand for further Federal Register on July 17, 2007 (72 FR sales and production declined investigation in Former Employees of 39080). absolutely. In the complaint to the USCIT, dated Welex, Inc. v. United States, Court No. TAA Criterion: Increased Imports August 16, 2007, the Plaintiff alleged 07–00314. Contributed Importantly to Subject that the subject firm relocated to ‘‘the The worker-filed petition for Trade Firm Sales/Production Declines and less expensive south’’ in order to Adjustment Assistance (TAA) and Workers’ Separations Alternative Trade Adjustment ‘‘compete with the Chinese.’’ The Assistance (ATAA), dated March 26, Plaintiff also alleged that ‘‘increased 29 CFR section 90.2 states that 2007, stated that workers at Welex, Inc., imports contributed importantly to an increased imports ‘‘means that imports Blue Bell, Pennsylvania (the subject actual decline in sales or production have increased either absolutely or firm) produced ‘‘extruders and sheet and to our permanent layoff.’’ relative to domestic production takeoffs (plastic production)’’ and To be certified for TAA based on compared to a representative base alleged that foreign competition increased imports, the petitioning period. The representative base period contributed to the closure of the subject workers must meet the group eligibility shall be one year consisting of the four firm on January 31, 2007. criteria: quarters immediately preceding the date Documentation provided by the which is twelve months prior to the date A. A significant number or proportion of petitioners stated that ‘‘Welex of the petition.’’ 29 CFR 90.16(b)(3) the workers in such workers’ firm, or an states that ‘‘contributed importantly equipment makes PET, polypropylene appropriate subdivision of the firm, have and polystyrene sheet for packaging, become totally or partially separated, or are means a cause which is important but such as fast food drink cups, lids for threatened to become totally or partially not necessarily more important than any disposable coffee cups and clear separated; and other cause.’’ clamshell boxes.’’ B. the sales or production, or both, of such The TAA/ATAA petition date is On April 18, 2007, the Department of firm or subdivision have decreased March 26, 2007. Therefore, the Labor (Department) issued a negative absolutely; and Department must determine whether determination regarding eligibility to C. increased imports of articles like or imports of plastic extrusion equipment directly competitive with articles produced apply for TAA/ATAA for workers and (or articles like or directly competitive by such firm or subdivision have contributed with the plastic extrusion equipment former workers of the subject firm. importantly to such workers’ separation or The initial investigation revealed that threat of separation and to the decline in produced at the subject firm) have the subject workers produced plastic sales or production of such firm or increased during March 26, 2006 extrusion equipment; the subject firm subdivision. through March 25, 2007 (relevant did not import plastic extrusion period) compared to the base period (the equipment or shift production of plastic On remand, the Department sent four quarters immediately prior to extrusion equipment to any foreign supplemental information requests for March 26, 2006). If the Department finds country; subject firm sales and additional information and clarification increased imports, the Department must production of plastic extrusion regarding the subject firm’s sales and then determine whether the increased equipment increased in 2006 compared production process, conducted several imports contributed importantly to the with 2005; and the dominant cause of lengthy discussions with the subject subject firm’s sale and/or production separations at the subject firm was the firm, and contacted a trade association declines and workers’ separations. complete transfer of plastic extrusion to gain insight into this industry. As a result of these efforts, the Department Increased Imports of Plastic Extrusion equipment production to a new Equipment domestic manufacturing facility. The was able to obtain crucial information Department’s initial negative which was not previously available. In previous submissions, the subject determination was based on the findings TAA Criterion: Worker Separations at firm indicated that it did not import that increased imports did not the Subject Firm plastic extrusion equipment or any contribute importantly to subject firm articles like or directly competitive with sales and/or production declines and to During the remand investigation, the them and that customer purchases are workers’ separations. Department confirmed that the subject intermittent. The Department’s Notice of negative firm ceased operations in January 2007 On remand, the subject firm determination was published in the and permanently closed. Therefore, the confirmed that, because plastic Federal Register on May 9, 2007 (72 FR Department determines that a extrusion equipment is not purchased 26425). significant number or proportion of the regularly by customers, there are no In the request for administrative workers in such workers’ firm, or an major customers that constitute a reconsideration, dated May 18, 2007, appropriate subdivision of the firm, majority of the subject firm’s sales/ three workers alleged that increased have become totally or partially production declines. The Department imports contributed importantly to separated, or are threatened to become was also informed by the subject firm subject firm sales and production totally or partially separated. that they do not bid on production

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projects but fulfill sales orders eligibility requirements of Section 246 of the Trade Act of 1974 (‘‘the Act’’) and (customers contact the subject firm, the have been met. are identified in the Appendix to this subject firm quotes a price, and if an A significant number of workers at the notice. Upon receipt of these petitions, order is placed, the subject firm builds firm are age 50 or over and possess the Director of the Division of Trade the equipment per order specifications). skills that are not easily transferable. Adjustment Assistance, Employment Based on the above facts, the Competitive conditions within the and Training Administration, has Department determines that a customer industry are adverse. instituted investigations pursuant to survey would be unlikely to produce Conclusion Section 221(a) of the Act. any meaningful results. Further, the Department determined that, since the After careful review of the facts The purpose of each of the subject firm is a major domestic developed in the remand investigation, investigations is to determine whether producer and accounts for a significant I determine that there was a total the workers are eligible to apply for portion of the domestic plastic extrusion separation of a significant number or adjustment assistance under Title II, equipment market, aggregate U.S. proportion of workers at the subject Chapter 2, of the Act. The investigations import data would better reflect the firm, that there were subject firm sales will further relate, as appropriate, to the impact of increased U.S. imports on the and production declines, and that determination of the date on which total subject firm. increased imports of articles like or or partial separations began or During the remand investigation, the directly competitive with plastic threatened to begin and the subdivision Department conducted research on U.S. extrusion equipment produced at the of the firm involved. shipments and U.S. imports of plastic subject firm contributed importantly to extrusion equipment during 2005, 2006, the subject firm declines and the The petitioners or any other persons and January through April 2007. The workers’ separations. showing a substantial interest in the Department’s research revealed a In accordance with the provisions of subject matter of the investigations may significant increase in imports of plastic the Act, I make the following request a public hearing, provided such extrusion equipment (and articles like certification: request is filed in writing with the or directly competitive with plastic ’’All workers of Welex, Inc., Blue Bell, Director, Division of Trade Adjustment extrusion equipment produced at the Pennsylvania, who became totally or Assistance, at the address shown below, subject firm) during January through partially separated from employment on or not later than July 18, 2008. April 2007 as compared to estimated after March 26, 2006, through two years from Interested persons are invited to the issuance of this revised determination, imports during January through April submit written comments regarding the 2006. are eligible to apply for Trade Adjustment Assistance under Section 223 of the Trade subject matter of the investigations to Increased Imports Contributed Act of 1974, and are eligible to apply for the Director, Division of Trade Importantly to Subject Firm Sales and/ alternative trade adjustment assistance under Adjustment Assistance, at the address or Production Declines and Worker Section 246 of the Trade Act of 1974.’’ shown below, not later than July 18, Separations Signed at Washington, DC this 26th day of 2008. As previously stated, subject firm June 2008. The petitions filed in this case are sales orders declined in the latter part Elliott S. Kushner, available for inspection at the Office of of 2006 into early 2007 and the subject Certifying Officer, Division of Trade the Director, Division of Trade Adjustment Assistance. firm sales constitute a meaningful Adjustment Assistance, Employment portion of the U.S. plastic extrusion [FR Doc. E8–15338 Filed 7–7–08; 8:45 am] and Training Administration, U.S. equipment market. Further, the period BILLING CODE 4510–FN–P Department of Labor, Room C–5311, 200 of increased imports corresponds with Constitution Avenue, NW., Washington, the period during which subject firm DC 20210. sales orders declined. Therefore, DEPARTMENT OF LABOR increased U.S. imports would likely Signed at Washington, DC, this 25th day of Employment and Training have had a significant impact on the June 2008. Administration subject firm. Linda G. Poole, In accordance with Section 246 the Investigations Regarding Certifications Certifying Officer, Division of Trade Trade Act of 1974 (26 U.S.C. 2813), as of Eligibility To Apply for Worker Adjustment Assistance. amended, the Department herein Adjustment Assistance and Alternative presents the results of its investigation Trade Adjustment Assistance regarding certification of eligibility to apply for ATAA. The Department has Petitions have been filed with the determined in this case that the group Secretary of Labor under Section 221(a)

APPENDIX [TAA petitions instituted between 6/16/08 and 6/20/08]

Subject firm Date of Date of TA–W (petitioners) Location institution petition

63541 ...... Avery Dennison (Comp) ...... Fontana, CA ...... 06/16/08 06/13/08 63542 ...... Home Depot (State) ...... Opelousas, LA ...... 06/16/08 06/13/08 63543 ...... Pliant Plastic Company (UE) ...... South Deerfield, MA ...... 06/17/08 06/12/08 63544 ...... ITW Alma (Comp) ...... Kennesaw, GA ...... 06/17/08 06/16/08 63545 ...... T. W. Lamination (Woodbridge) (Comp) ...... Del Rio, TX ...... 06/17/08 06/11/08 63546 ...... BBDO Detroit (State) ...... Troy, MI ...... 06/17/08 06/12/08 63547 ...... Lapeer Metal Stamping (Wkrs) ...... Lapeer, MI ...... 06/17/08 06/16/08

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APPENDIX—Continued [TAA petitions instituted between 6/16/08 and 6/20/08]

Subject firm Date of Date of TA–W (petitioners) Location institution petition

63548 ...... Colville Indian Plywood and Veneer Co. of Omak, WA ...... 06/17/08 06/04/08 Omak (Comp). 63549 ...... CEVA Logistics—Contract 10164 (Comp) ..... Miamisburg, OH ...... 06/17/08 06/10/08 63550 ...... Pazvenu Apparel, Inc. (Wkrs) ...... New York, NY ...... 06/17/08 06/01/08 63551 ...... Culp, Inc. Culp Weaving Plant (Comp) ...... Graham, NC ...... 06/17/08 06/13/08 63552 ...... Maxim Integrated Products—San Jose San Jose, CA ...... 06/17/08 06/13/08 (Comp). 63553 ...... Maxim Integrated Products—Sunnyvale Sunnyvale, CA ...... 06/17/08 06/13/08 (Comp). 63554 ...... Cranford Wood Carving/McCrorie Group, Hickory, NC ...... 06/18/08 06/17/08 LLC (Comp). 63555 ...... Hurd Window and Door (Wkrs) ...... Medford, WI ...... 06/18/08 06/17/08 63556 ...... Intel Corporation, California Corporate Serv- Santa Clara, CA ...... 06/18/08 06/16/08 ices Group (Comp). 63557 ...... Royal Home Fashions (Comp) ...... Henderson, NC ...... 06/18/08 06/17/08 63558 ...... Park Shirt Company (AFLCIO) ...... Jamestown, TN ...... 06/18/08 06/17/08 63559 ...... Shieldalloy Metallurgical Corporation (Wkrs) Newfield, NJ ...... 06/18/08 05/20/08 63560 ...... Artisans, Inc. (Comp) ...... Glen Flora, WI ...... 06/18/08 06/17/08 63561 ...... United Airlines (Wkrs) ...... El Segundo, CA ...... 06/18/08 06/07/08 63562 ...... Winchester Electronics—Rock Hill (Comp) ... Rock Hill, SC ...... 06/18/08 06/16/08 63563 ...... Winchester Electronics—Franklin (Comp) ..... Franklin, MA ...... 06/18/08 06/16/08 63564 ...... Sensormatic Electronic Corporation (State) .. San Antono, PR ...... 06/18/08 06/17/08 63565 ...... Four Season (Comp) ...... Grapevine, TX ...... 06/19/08 06/18/08 63566 ...... Plastech (Comp) ...... Moraine, OH ...... 06/19/08 06/18/08 63567 ...... Huber Engineered Woods, LLC (Wkrs) ...... Broken Bow, OK ...... 06/19/08 05/01/08 63568 ...... Jockey International, Inc. (Comp) ...... Mocksville, NC ...... 06/19/08 06/18/08 63569 ...... Leggett and Platt (Wkrs) ...... Tupelo, MS ...... 06/19/08 06/18/08 63570 ...... Blue Angel’s Fashion (Wkrs) ...... San Francisco, CA ...... 06/20/08 06/19/08 63571 ...... West Point Home (Comp) ...... New York, NY ...... 06/20/08 06/19/08 63572 ...... Narraganett Jewerly, Inc. d/b/a C & J Jew- Providence, RI ...... 06/20/08 06/19/08 elry Co. (Comp). 63573 ...... Avon Products, Inc. (Wkrs) ...... Suwanee, GA ...... 06/20/08 06/19/08 63574 ...... Albany International Research Company Mansfield, MA ...... 06/20/08 06/19/08 (Rep). 63575 ...... Philips Consumer Lifestyles (Comp) ...... Ledgewood, NJ ...... 06/20/08 06/18/08 63576 ...... Matador Tool and Die, Inc. (Comp) ...... Grand Rapids, MI ...... 06/20/08 06/19/08

[FR Doc. E8–15337 Filed 7–7–08; 8:45 am] Signed at Washington, DC, this 27th day of determination issued on May 15, 2008, June 2008. BILLING CODE 4510–FN–P was based on the finding that imports of Richard Church, metal stampings did not contribute Certifying Officer, Division of Trade importantly to worker separations at the DEPARTMENT OF LABOR Adjustment Assistance. subject firm and no shift of production [FR Doc. E8–15342 Filed 7–7–08; 8:45 am] to a foreign source occurred. The denial Employment and Training BILLING CODE 4510–FN–P notice was published in the Federal Administration Register on May 29, 2008 (73 FR 30978). In the request for reconsideration, the [TA–W–63,424] DEPARTMENT OF LABOR petitioner provided new information regarding a customer of the subject firm, Ferguson Aluminum, Olmsted, IL; Employment and Training which was recently certified eligible for Notice of Termination of Investigation Administration TAA. Upon further investigation it was [TA–W–63,011] Pursuant to Section 221 of the Trade determined that B. Walter and Act of 1974, as amended, an B. Walter and Company, Wabash, IN; Company, Wabash, Indiana supplied investigation was initiated on May 22, Notice of Revised Determination on metal stampings that were used in the production of wooden furniture, and a 2008 in response to a worker petition Reconsideration loss of business with domestic filed by a company official on behalf of By application dated May 26, 2008, a manufacturers (whose workers were workers at Ferguson Aluminum, petitioner requested administrative certified eligible to apply for adjustment Olmsted, Illinois. reconsideration of the Department’s assistance) contributed importantly to The petitioner has requested that negative determination regarding the workers separation or threat of petition be withdrawn. Consequently, eligibility to apply for Trade Adjustment separation. The parts supplied were the investigation has been terminated. Assistance (TAA), applicable to workers related to the articles that were the basis and former workers of the subject firm. of certification. The initial investigation initiated on In accordance with Section 246 of the March 17, 2008, resulted in a negative Trade Act of 1974 (26 U.S.C. 2813), as

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amended, the Department herein Signed at Washington, DC, this 24th day of Signed at Washington, DC, this 26th day of presents the results of its investigation June 2008. June 2008. regarding certification of eligibility to Elliott S. Kushner, Richard Church, apply for Alternative Trade Adjustment Certifying Officer, Division of Trade Certifying Officer, Division of Trade Assistance (ATAA) for older workers. Adjustment Assistance. Adjustment Assistance. In order for the Department to issue [FR Doc. E8–15344 Filed 7–7–08; 8:45 am] [FR Doc. E8–15345 Filed 7–7–08; 8:45 am] a certification of eligibility to apply for BILLING CODE 4510–FN–P BILLING CODE 4510–FN–P ATAA, the group eligibility requirements of Section 246 of the Trade Act, as amended, must be met. DEPARTMENT OF LABOR DEPARTMENT OF LABOR The Department has determined in this case that the requirements of Section Employment and Training Employment and Training 246 have been met. Administration Administration A significant number of workers at the firm are age 50 or over and possess [TA–W–63,601] [TA–W–63,566] skills that are not easily transferable. Competitive conditions within the General Ribbon Corporation, Plastech, Moraine, OH; Notice of industry are adverse. Chatsworth, CA; Notice of Termination Termination of Investigation Conclusion of Investigation Pursuant to Section 221 of the Trade After careful review of the additional Pursuant to Section 221 of the Trade Act of 1974, as amended, an facts obtained on reconsideration, I Act of 1974, as amended, an investigation was initiated on June 19, determine that workers of B. Walter and investigation was initiated on June 25, 2008, in response to a worker petition Company, Wabash, Indiana qualify as 2008 in response to a worker petition filed by a company official on behalf of adversely affected secondary workers filed on behalf of workers of General workers at Plastech, Moraine, Ohio. under Section 222 of the Trade Act of Ribbon Corporation, Chatsworth, The petitioner has requested that the 1974, as amended. In accordance with California. the provisions of the Act, I make the petition be withdrawn. Consequently, The petitioning group of workers is following certification: the investigation has been terminated. covered by an active certification (TA– All workers of B. Walter and Company, W–63,601) which expires on November Signed at Washington, DC, this 26th day of June 2008. Wabash, Indiana, who became totally or 30, 2008. Consequently, further partially separated from employment on or Elliott S. Kushner, after March 10, 2007, through two years from investigation in this case would serve no purpose, and the investigation has Certifying Officer, Division of Trade the date of this certification, are eligible to Adjustment Assistance. apply for adjustment assistance under been terminated. [FR Doc. E8–15346 Filed 7–7–08; 8:45 am] Section 223 of the Trade Act of 1974, and are Signed at Washington, DC, this 27th day of also eligible to apply for alternative trade June 2008. BILLING CODE 4510–FN–P adjustment assistance under Section 246 of Richard Church, the Trade Act of 1974. Certifying Officer, Division of Trade DEPARTMENT OF LABOR Signed in Washington, DC, this 24th day of Adjustment Assistance. June 2008. [FR Doc. E8–15336 Filed 7–7–08; 8:45 am] Employment and Training Elliott S. Kushner, BILLING CODE 4510–FN–P Administration Certifying Officer, Division of Trade Adjustment Assistance. [TA–W–63,485] [FR Doc. E8–15340 Filed 7–3–08; 8:45 am] DEPARTMENT OF LABOR BILLING CODE 4510–FN–P Trans-Ocean Products, Inc., Salem, Employment and Training OR; Notice of Termination of Administration DEPARTMENT OF LABOR Investigation Employment and Training [TA–W–63,534] Pursuant to Section 221 of the Trade Administration Act of 1974, as amended, an Novtex Division of Trimtex Co., Inc., investigation was initiated on June 5, [TA–W–63,508] Adams, MA; Notice of Termination of 2008, in response to a worker petition Investigation Bedford Logistics, Inc., Bedford, IN; filed by a company official and a State Notice of Termination of Investigation agency representative on behalf of Pursuant to Section 221 of the Trade workers at Trans-Ocean Products, Inc., Pursuant to Section 221 of the Trade Act of 1974, as amended, an Salem, Oregon. Act of 1974, as amended, an investigation was initiated on June 3, 2008, in response to a worker petition The petitioners have requested that investigation was initiated on June 9, the petition be withdrawn. 2008 in response to a worker petition filed by a company official on behalf of workers of Novtex Division of Trimtex Consequently, the investigation has filed on behalf of workers of Bedford been terminated. Logistics, Inc., Bedford, Indiana. Co., Inc., Adams, Massachusetts. The petitioning group of workers is The petitioning group of workers is Signed at Washington, DC, this 27th day of covered by an active certification (TA– covered by an active certification (TA– June 2008. W–62,626) which expires on February W–63,085A) which expires on April 24, Linda G. Poole, 27, 2010. Consequently, further 2010. Consequently, further Certifying Officer, Division of Trade investigation in this case would serve investigation in this case would serve Adjustment Assistance. no purpose, and the investigation has no purpose, and the investigation has [FR Doc. E8–15343 Filed 7–7–08; 8:45 am] been terminated. been terminated. BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR online at http://www.regulations.gov. Industry alert employees to the presence For further information on submitting and types of electrical hazards in the Occupational Safety and Health comments see the ‘‘Public workplace, thereby preventing serious Administration Participation’’ heading in the section of injury and death by electrocution. The this notice titled SUPPLEMENTARY information collection requirements in [Docket No. OSHA–2008–0017] INFORMATION. the standards involve the following: The Electrical Standards for Construction Docket: To read or download employer using electrical equipment and General Industry; Extension of the comments or other material in the that is marked with the manufacturer’s Office of Management and Budget’s docket, go to http://www.regulations.gov name, trademark, or other descriptive (OMB) Approval of the Information or the OSHA Docket Office at the markings that identify the producer of Collection (Paperwork) Requirements address above. All documents in the the equipment, and marking the docket (including this Federal Register equipment with the voltage, current, AGENCY: Occupational Safety and Health notice) are listed in the http:// wattage, or other ratings necessary; Administration (OSHA), Labor. www.regulations.gov index; however, requiring each disconnecting means for ACTION: Request for public comment. some information (e.g., copyrighted motors and appliances to be marked material) is not publicly available to legibly to indicate its purpose, unless SUMMARY: OSHA solicits comments read or download through the Web site. located and arranged so the purpose is concerning its request for an extension All submissions, including copyrighted evident; requiring the entrances to of the information collection material, are available for inspection rooms and other guarded locations requirements contained in the Electrical and copying at the OSHA Docket Office. containing exposed live parts to be Standards for Construction (29 CFR part You may also contact Theda Kenney at marked with conspicuous warning signs 1926, subpart K) and for General the address below to obtain a copy of forbidding unqualified persons from Industry (29 CFR part 1910, subpart S). the ICR. entering; and, for construction The Standards address safety FOR FURTHER INFORMATION CONTACT: employers only, establishing and procedures for installation and Theda Kenney or Todd Owen, implementing the assured equipment maintenance of electric utilization Directorate of Standards and Guidance, grounding conductor program instead of equipment that prevent death and OSHA, U.S. Department of Labor, Room using ground-fault circuit interrupters. serious injuries among construction and N–3609, 200 Constitution Avenue, NW., II. Special Issues for Comment general industry employees in the Washington, DC 20210; telephone (202) workplace caused by electrical hazards. 693–2222. OSHA has a particular interest in DATES: comments on the following issues: Comments must be submitted SUPPLEMENTARY INFORMATION: • (postmarked, sent, or received) by Whether the proposed information September 8, 2008. I. Background collection requirements are necessary for the proper performance of the ADDRESSES: The Department of Labor, as part of its Agency’s functions, including whether Electronically: You may submit continuing effort to reduce paperwork the information is useful; comments and attachments and respondent (i.e., employer) burden, • The accuracy of OSHA’s estimate of electronically at http:// conducts a preclearance consultation the burden (time and cost) of the www.regulations.gov, which is the program to provide the public with an information collection requirements, Federal eRulemaking Portal. Follow the opportunity to comment on proposed including the validity of the instructions online for submitting and continuing information collection methodology and assumptions used; comments. requirements in accordance with the • The quality, utility, and clarity of Facsimile: If your comments, Paperwork Reduction Act of 1995 (44 the information collected; and including attachments, are not longer U.S.C. 3506(c)(2)(A)). This program • Ways to minimize the burden on than 10 pages, you may fax them to the ensures that information is in the employers who must comply; for OSHA Docket Office at (202) 693–1648. desired format, reporting burden (time example, by using automated or other Mail, hand delivery, express mail, and costs) is minimal, collection technological information collection messenger, or courier service: When instruments are clearly understood, and and transmission techniques. using this method, you must submit OSHA’s estimate of the information three copies of your comments and collection burden is accurate. The III. Proposed Actions attachments to the OSHA Docket Office, Occupational Safety and Health Act of OSHA is proposing to combine the Docket No. OSHA–2008–0017, U.S. 1970 (the OSH Act) (29 U.S.C. 651 et information collection requirements Department of Labor, Occupational seq.) authorizes information collection contained in the Design Safety Systems Safety and Health Administration, by employers as necessary or for Electrical Systems (29 CFR Room N–2625, 200 Constitution appropriate for enforcement of the Act 1910.302–.308 and 1910.399 (OMB Avenue, NW., Washington, DC 20210. or for developing information regarding Control No. 1218–0256) with the Deliveries (hand, express mail, the causes and prevention of information collection requirements messenger, and courier service) are occupational injuries, illnesses, and contained in the Electrical Standards for accepted during the Department of accidents (29 U.S.C. 657). The OSH Act Construction (29 CFR part 1926, subpart Labor’s and Docket Office’s normal also requires that OSHA obtain such K) and for General Industry (29 CFR part business hours, 8:15 a.m. to 4:45 p.m., information with minimum burden 1910, subpart S) (OMB Control No. e.t. upon employers, especially those 1218–0130). In doing so, the Agency is Instructions: All submissions must operating small businesses, and to proposing to adjust the total burden include the Agency name and OSHA reduce to the maximum extent feasible hours of these subparts from 92,644 docket number for the ICR (OSHA– unnecessary duplication of efforts in hours to 151,172 hours; a total increase 2008–0017). All comments, including obtaining information (29 U.S.C. 657). of 58,528 hours. The burden hours have any personal information you provide, The information collection increased primarily due to an increase are placed in the public docket without requirements specified by the Electrical in the total number of jobsites for change, and may be made available Standards for Construction and General construction from 42,750 to 45,000. The

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Agency will summarize the comments Comments and submissions are electronically at http:// submitted in response to this notice, posted without change at http:// www.regulations.gov, which is the and will include this summary in the www.regulations.gov. Therefore, OSHA Federal eRulemaking Portal. Follow the request to OMB to extend the approval cautions commenters about submitting instructions online for submitting of the information collection personal information such as social comments. requirements contained in the security numbers and date of birth. Facsimile: If your comments, standards. Although all submissions are listed in including attachments, are not longer Type of Review: Extension of a the http://www.regulations.gov index, than 10 pages, you may fax them to the currently approved collection. some information (e.g., copyrighted OSHA Docket Office at (202) 693–1648. Title: Electrical Standards for material) is not publicly available to Mail, hand delivery, express mail, Construction (29 CFR part 1926, subpart read or download through this website. messenger, or courier service: When K) and General Industry (29 CFR part All submissions, including copyrighted using this method, you must submit 1910, subpart S). material, are available for inspection three copies of your comments and OMB Number: 1218–0130. and copying at the OSHA Docket Office. attachments to the OSHA Docket Office, Affected Public: Business or other for- Information on using the http:// Docket No. OSHA–2008–0021, U.S. profit; not-for-profit institutions; Federal www.regulations.gov Web site to submit Department of Labor, Occupational Government; State, local, or tribal comments and access the docket is Safety and Health Administration, governments. available at the Web site’s ‘‘User Tips’’ Room N–2625, 200 Constitution Number of Respondents: 500,000. link. Contact the OSHA Docket Office Avenue, NW., Washington, DC 20210. Frequency of Response: Occasionally. for information about materials not Deliveries (hand, express mail, Total Responses: 2,331,135. available through the website, and for messenger, and courier service) are Average Time per Response: Varies assistance in using the Internet to locate accepted during the Department of from three minutes (.08 hour) to post docket submissions. Labor’s and Docket Office’s normal and construct each sign to four hours to V. Authority and Signature business hours, 8:15 a.m. to 4:45 p.m., document a hazardous classified e.t. Edwin G. Foulke, Jr., Assistant Instructions: All submissions must location by a certified electrical Secretary of Labor for Occupational engineer. include the Agency name and OSHA Safety and Health, directed the docket number for the ICR (OSHA– Estimated Total Burden Hours: preparation of this notice. The authority 151,172. 2008–0021). All comments, including for this notice is the Paperwork any personal information you provide, Estimated Cost (Operation and Reduction Act of 1995 (44 U.S.C. 3506 Maintenance): $7,500. are placed in the public docket without et seq.) and Secretary of Labor’s Order change, and may be made available IV. Public Participation—Submission of No. 5–2007 (72 FR 31159). online at http://www.regulations.gov. Comments on this Notice and Internet Signed at Washington, DC, on July 1, 2008. For further information on submitting Access to Comments and Submissions Edwin G. Foulke, Jr., comments see the ‘‘Public You may submit comments in Assistant Secretary of Labor for Occupational Participation’’ heading in the section of response to this document as follows: Safety and Health. this notice titled SUPPLEMENTARY (1) Electronically at http:// [FR Doc. E8–15392 Filed 7–7–08; 8:45 am] INFORMATION. www.regulations.gov, which is the BILLING CODE 4510–26–P Docket: To read or download Federal eRulemaking Portal; (2) by comments or other material in the facsimile (FAX); or (3) by hard copy. All docket, go to http://www.regulations.gov comments, attachments, and other DEPARTMENT OF LABOR or the OSHA Docket Office at the material must identify the Agency name address above. All documents in the Occupational Safety and Health docket (including this Federal Register and the OSHA docket number for the Administration ICR (Docket No. OSHA–2008–0017). notice) are listed in the http:// You may supplement electronic [Docket No. OSHA–2008–0021] www.regulations.gov index; however, submissions by uploading document some information (e.g., copyrighted files electronically. If you wish to mail Standard on Vinyl Chloride; Extension material) is not publicly available to additional materials in reference to an of the Office of Management and read or download through the Web site. electronic or facsimile submission, you Budget’s (OMB) Approval of All submissions, including copyrighted must submit them to the OSHA Docket Information Collection (Paperwork) material, are available for inspection Office (see the section of this notice Requirements and copying at the OSHA Docket Office. titled ADDRESSES). The additional AGENCY: Occupational Safety and Health You may also contact Theda Kenney at materials must clearly identify your Administration (OSHA), Labor. the address below to obtain a copy of the ICR. electronic comments by your name, ACTION: Request for public comment. date, and the docket number so the FOR FURTHER INFORMATION CONTACT: Agency can attach them to your SUMMARY: OSHA solicits public Theda Kenney or Todd Owen, comments. comment concerning its proposal to Directorate of Standards and Guidance, Because of security procedures, the extend OMB approval of the OSHA, U.S. Department of Labor, Room use of regular mail may cause a information collection requirements N–3609, 200 Constitution Avenue, NW., significant delay in the receipt of specified in the Standard on Vinyl Washington, DC 20210; telephone (202) comments. For information about Chloride (29 CFR 1910.1017). 693–2222. security procedures concerning the DATES: Comments must be submitted SUPPLEMENTARY INFORMATION: delivery of materials by hand, express (postmarked, sent, or received) by delivery, messenger, or courier service, September 8, 2008. I. Background please contact the OSHA Docket Office ADDRESSES: The Department of Labor, as part of its at (202) 693–2350 (TTY (877) 889– Electronically: You may submit continuing effort to reduce paperwork 5627). comments and attachments and respondent (i.e., employer) burden,

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conducts a preclearance consultation (C) Medical Surveillance Affected Public: Business or other for- program to provide the public with an (§ 1910.1017(k)) profits. opportunity to comment on proposed Paragraph (k) requires employers to Number of Respondents: 32. and continuing information collection develop a medical surveillance program Total Responses: 1,108. requirements in accordance with the for employees exposed to VC in excess Frequency: On occasion. Paperwork Reduction Act of 1995 (44 of the action level. Examinations must Estimated Time per Response: Varies U.S.C. 3506(c)(2)(A)). This program be provided in accordance with this from 5 minutes (.08 hour) for employers ensures that information is in the paragraph at least annually. Employers to maintain records to 12 hours for desired format, reporting burden (time must also obtain, and provide to each employers to update their compliance and costs) is minimal, collection employee, a copy of a physician’s plans. instruments are clearly understood, and statement regarding the employee’s Total Burden Hours: 1,758. OSHA’s estimate of the information suitability for continued exposure to Estimated Cost (Operation and collection burden is accurate. The VC, including use of protective Maintenance): $48,928. Occupational Safety and Health Act of equipment and respirators, if appropriate. IV. Public Participation—Submission of 1970 (the OSH Act) (29 U.S.C. 651 et Comments on this Notice and Internet seq.) authorizes information collection (D) Recordkeeping (§ 1910.1017(m)) Access to Comments and Submissions by employers as necessary or appropriate for enforcement of the OSH Employers must maintain employee You may submit comments and Act or for developing information exposure and medical records. The VC supporting materials in response to this regarding the causes and prevention of standard requires that employers make notice by (1) Hard copy, (2) FAX available monitoring, measuring, and occupational injuries, illnesses, and transmission (facsimile), or (3) medical records at the request of the accidents (29 U.S.C. 657). The OSH Act electronically through the OSHA Assistant Secretary (usually an OSHA also requires that OSHA obtain such Webpage. Because of security-related compliance officer). problems, there may be a significant information with minimum burden delay in the receipt of comments by upon employers, especially those II. Special Issues for Comment regular mail. Please contact the OSHA operating small businesses, and to OSHA has a particular interest in Docket Office at (202) 693–2350 (TTY reduce to the maximum extent feasible comments on the following issues: (877) 889–5627) for information about unnecessary duplication of efforts in • Whether the proposed information security procedures concerning the obtaining information (29 U.S.C. 657). collection requirements are necessary delivery of submissions by express The Standard specifies a number of for the proper performance of the delivery, hand delivery and courier paperwork requirements. The following Agency’s functions, including whether service. is a brief description of the collection of the information is useful; All comments, submissions and • information requirements contained in The accuracy of OSHA’s estimate of background documents are available for the Vinyl Chloride (VC) Standard. the burden (time and costs) of the inspection and copying at the OSHA information collection requirements, Docket Office at the above address. (A) Exposure Monitoring including the validity of the Comments and submissions posted on (§ 1910.1017(d)) methodology and assumptions used; OSHA’s Webpage are available at • The quality, utility, and clarity of Paragraph 1910.1017(d)(2) requires http://www.OSHA.gov. Contact the the information collected; and OSHA Docket Office for information employers to conduct exposure • Ways to minimize the burden on about materials not available through monitoring at least quarterly if the employers who must comply; for the OSHA Webpage and for assistance results show that employee exposures example, by using automated or other using the Webpage to locate docket are above the permissible exposure limit technological information collection submissions. (PEL), while those exposed at or above and transmission techniques. Electronic copies of this Federal the Action Level (AL) must be III. Proposed Actions Register notice as well as other relevant monitored no less than semiannually. documents are available on OSHA’s Paragraph (d)(3) requires that employers OSHA is requesting that OMB extend Webpage. Since all submissions become perform additional monitoring its approval of the collection of public, private information such as whenever there has been a change in VC information requirements contained in social security numbers should not be production, process or control that may the Standard on Vinyl Chloride (29 CFR submitted. result in an increase in the release of 1910.1017). The Agency is requesting to VC. reduce its current burden hour estimate V. Authority and Signature associated with the Standard from 1,758 (B) Written Compliance Plan Edwin G. Foulke, Jr., Assistant hours to 712 hours for a total reduction Secretary of Labor for Occupational (§ 1910.1017(f)(2) and (f)(3)) of 1,046 hours. This decrease (based on Safety and Health, directed the new data obtained by the Agency) is a preparation of this notice. The authority Paragraph (f)(2) requires employers result of reducing the number of VC and whose engineering and work practice for this notice is the Paperwork PVC establishments from 77 to 32 Reduction Act of 1995 (44 U.S.C. 3506 controls cannot sufficiently reduce establishments. The Agency will employee VC exposures to a level at or et seq.) and Secretary of Labor’s Order include this summary in its request to No. 5–2007 (72 FR 31159). below the PEL to develop and OMB to extend the approval of these implement a plan for doing so. collection of information requirements. Signed at Washington, DC, on July 1, 2008. Paragraph (f)(3) requires employers to Type of Review: Extension of a Edwin G. Foulke, Jr., develop this written plan and provide it currently approved collection. Assistant Secretary of Labor for Occupational upon request to OSHA for examination Title: Vinyl Chloride (29 CFR Safety and Health. and copying. These plans must be 1910.1017). [FR Doc. E8–15393 Filed 7–7–08; 8:45 am] updated annually. OMB Number: 1218–0010. BILLING CODE 4510–26–P

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NUCLEAR REGULATORY Comments and questions should be Notice of Consideration of Issuance of COMMISSION directed to the OMB reviewer listed Amendments to Facility Operating below by August 7, 2008. Comments Licenses, Proposed No Significant Agency Information Collection received after this date will be Hazards Consideration Determination, Activities: Submission for the Office of considered if it is practical to do so, but and Opportunity for a Hearing Management and Budget (OMB) assurance of consideration cannot be The Commission has made a Review; Comment Request given to comments received after this proposed determination that the AGENCY: U.S. Nuclear Regulatory date. following amendment requests involve Commission (NRC). Nathan J. Frey, Office of Information no significant hazards consideration. ACTION: Notice of the OMB review of and Regulatory Affairs (3150–0114), Under the Commission’s regulations in information collection and solicitation NEOB–10202, Office of Management 10 CFR 50.92, this means that operation of the facility in accordance with the of public comment. and Budget, Washington, DC 20503. proposed amendment would not (1) SUMMARY: The NRC has recently Comments can also be e-mailed to Involve a significant increase in the submitted to OMB for review the [email protected] or probability or consequences of an following proposal for the collection of submitted by telephone at (202) 395– accident previously evaluated; or (2) information under the provisions of the 7345. create the possibility of a new or Paperwork Reduction Act of 1995 (44 different kind of accident from any U.S.C. Chapter 35). The NRC hereby The NRC Clearance Officer is Margaret A. Janney, (301) 415–7245. accident previously evaluated; or (3) informs potential respondents that an involve a significant reduction in a agency may not conduct or sponsor, and Dated at Rockville, Maryland, this 27th day margin of safety. The basis for this that a person is not required to respond of June 2008. proposed determination for each to, a collection of information unless it For the Nuclear Regulatory Commission. amendment request is shown below. displays a currently valid OMB control Gregory Trussell, The Commission is seeking public number. The NRC published a Federal Acting NRC Clearance Officer, Office of comments on this proposed Register Notice with a 60-day comment determination. Any comments received period on this information collection on Information Services. [FR Doc. E8–15410 Filed 7–7–08; 8:45 am] within 30 days after the date of March 24, 2008. publication of this notice will be 1. Type of submission, new, revision, BILLING CODE 7590–01–P considered in making any final or extension: Extension. determination. 2. The title of the information Normally, the Commission will not NUCLEAR REGULATORY collection: NRC Form 450, ‘‘General issue the amendment until the COMMISSION Assignment.’’ expiration of 60 days after the date of 3. Current OMB approval number: Notice; Applications and Amendments publication of this notice. The 3150–0114. Commission may issue the license 4. The form number if applicable: to Facility Operating Licenses amendment before expiration of the 60- NRC Form 450. Involving Proposed No Significant day period provided that its final 5. How often the collection is Hazards Considerations and determination is that the amendment required: Once during the closeout Containing Sensitive Unclassified Non- involves no significant hazards process. Safeguards Information or Safeguards 6. Who will be required or asked to consideration. In addition, the Information and Order Imposing Commission may issue the amendment report: Contractors, Grantees, and Procedures for Access to Sensitive Cooperators. prior to the expiration of the 30-day Unclassified Non-Safeguards comment period should circumstances 7. An estimate of the number of Information or Safeguards Information annual responses: 100. change during the 30-day comment 8. The estimated number of annual I. Background period such that failure to act in a respondents: 100. timely way would result, for example in 9. An estimate of the total number of Pursuant to section 189a. (2) of the derating or shutdown of the facility. hours needed annually to complete the Atomic Energy Act of 1954, as amended Should the Commission take action requirement or request: 200. (the Act), the U.S. Nuclear Regulatory prior to the expiration of either the 10. Abstract: During the contract Commission (the Commission or NRC comment period or the notice period, it closeout process, the NRC requires the staff) is publishing this notice. The Act will publish in the Federal Register a contractor to execute a NRC Form 450, requires the Commission publish notice notice of issuance. Should the General Assignment. Completion of the of any amendments issued, or proposed Commission make a final No Significant form grants the government all rights, to be issued and grants the Commission Hazards Consideration Determination, titles, and interest to refunds arising out the authority to issue and make any hearing will take place after of the contractor performance. immediately effective any amendment issuance. The Commission expects that A copy of the final supporting to an operating license upon a the need to take this action will occur statement may be viewed free of charge very infrequently. determination by the Commission that at the NRC Public Document Room, One Written comments may be submitted such amendment involves no significant White Flint North, 11555 Rockville by mail to the Chief, Rulemaking, Pike, Room O–1 F21, Rockville, MD hazards consideration, notwithstanding Directives and Editing Branch, Division 20852. OMB clearance requests are the pendency before the Commission of of Administrative Services, Office of available at the NRC worldwide Web a request for a hearing from any person. Administration, U.S. Nuclear Regulatory site: http://www.nrc.gov/public-involve/ This notice includes notices of Commission, Washington, DC 20555– doc-comment/omb/index.html. The amendments containing sensitive 0001, and should cite the publication document will be available on the NRC unclassified non-safeguards information date and page number of this Federal home page site for 60 days after the (SUNSI) or safeguards information Register notice. Written comments may signature date of this notice. (SGI). also be delivered to Room 6D44, Two

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White Flint North, 11545 Rockville to the proceeding; (3) the nature and A request for hearing or a petition for Pike, Rockville, Maryland, from 7:30 extent of the requestor’s/petitioner’s leave to intervene must be filed in a.m. to 4:15 p.m. Federal workdays. property, financial, or other interest in accordance with the NRC E-Filing rule, Copies of written comments received the proceeding; and (4) the possible which the NRC promulgated in August may be examined at the Commission’s effect of any decision or order which 28, 2007 (72 FR 49139). The E-Filing Public Document Room (PDR), located may be entered in the proceeding on the process requires participants to submit at One White Flint North, Public File requestor’s/petitioner’s interest. The and serve documents over the internet Area O1F21, 11555 Rockville Pike (first petition must also set forth the specific or in some cases to mail copies on floor), Rockville, Maryland. The filing of contentions which the petitioner/ electronic storage media. Participants requests for a hearing and petitions for requestor seeks to have litigated at the may not submit paper copies of their leave to intervene is discussed below. proceeding. filings unless they seek a waiver in Within 60 days after the date of Each contention must consist of a accordance with the procedures publication of this notice, person(s) may specific statement of the issue of law or described below. file a request for a hearing with respect fact to be raised or controverted. In To comply with the procedural to issuance of the amendment to the addition, the petitioner/requestor shall requirements of E-Filing, at least ten subject facility operating license and provide a brief explanation of the bases (10) days prior to the filing deadline, the any person whose interest may be for the contention and a concise petitioner/requestor must contact the affected by this proceeding and who statement of the alleged facts or expert Office of the Secretary by e-mail at wishes to participate as a party in the opinion which support the contention [email protected], or by calling proceeding must file a written request and on which the petitioner/requestor (301) 415–1677, to request (1) a digital via electronic submission through the intends to rely in proving the contention ID certificate, which allows the NRC E-Filing system for a hearing and at the hearing. The petitioner/requestor participant (or its counsel or a petition for leave to intervene. must also provide references to those representative) to digitally sign Requests for a hearing and a petition for specific sources and documents of documents and access the E-Submittal leave to intervene shall be filed in which the petitioner is aware and on server for any proceeding in which it is accordance with the Commission’s which the petitioner/requestor intends participating; and/or (2) creation of an ‘‘Rules of Practice for Domestic to rely to establish those facts or expert electronic docket for the proceeding Licensing Proceedings’’ in 10 CFR Part opinion. The petition must include (even in instances in which the 2. Interested person(s) should consult a sufficient information to show that a petitioner/requestor (or its counsel or current copy of 10 CFR 2.309, which is genuine dispute exists with the representative) already holds an NRC- available at the Commission’s PDR, applicant on a material issue of law or issued digital ID certificate). Each located at One White Flint North, Public fact. Contentions shall be limited to petitioner/requestor will need to File Area 01F21, 11555 Rockville Pike matters within the scope of the download the Workplace Forms (first floor), Rockville, Maryland, or at amendment under consideration. The Viewer(tm) to access the Electronic http://www.nrc.gov/reading-rm/doc- contention must be one which, if Information Exchange (EIE), a collections/cfr/part002/part002– proven, would entitle the petitioner/ component of the E-Filing system. The 0309.html. Publicly available records requestor to relief. A petitioner/ Workplace Forms Viewer(tm) is free and will be accessible from the Agencywide requestor who fails to satisfy these is available at http://www.nrc.gov/site- Documents Access and Management requirements with respect to at least one help/e-submittals/install-viewer.html. 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/adams.html. If a request for parties to the proceeding, subject to any site-help/e-submittals/apply- a hearing or petition for leave to limitations in the order granting leave to certificates.html. intervene is filed within 60 days, the intervene, and have the opportunity to Once a petitioner/requestor has Commission or a presiding officer participate fully in the conduct of the obtained a digital ID certificate, had a designated by the Commission or by the hearing. docket created, and downloaded the EIE 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

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that they wish to participate in the Licensing Board, or a Presiding Officer. line break (SLB), locked rotor, and control proceeding, so that the filer need not Participants are requested not to include rod ejection accident evaluations. Loss-of- serve the documents on those personal privacy information, such as coolant accident (LOCA) conditions cause a participants separately. Therefore, social security numbers, home compressive axial load to act on the tube. Therefore, since the LOCA tends to force the applicants and other participants (or addresses, or home phone numbers in tube into the tubesheet rather than pull it out, their counsel or representative) must their filings. With respect to copyrighted it is not a factor in this amendment request. apply for and receive a digital ID works, except for limited excerpts that Another faulted load consideration is a safe certificate before a hearing request/ serve the purpose of the adjudicatory shutdown earthquake (SSE); however, the petition to intervene is filed so that they filings and would constitute a Fair Use seismic analysis of Model F steam generators can obtain access to the document via application, participants are requested has shown that axial loading of the tubes is the E-Filing system. not to include copyrighted materials in negligible during an SSE. A person filing electronically may their submission. At normal operating pressures, leakage from PWSCC [primary water stress-corrosion seek assistance through the ‘‘Contact For further details with respect to this Us’’ link located on the NRC Web site cracking] below 17 inches from the TTS [top amendment action, see the application of tubesheet] is limited by both the tube-to- at http://www.nrc.gov/site-help/e- for amendment which is available for tubesheet crevice and the limited crack submittals.html or by calling the NRC public inspection at the Commission’s opening permitted by the tubesheet technical help line, which is available PDR, located at One White Flint North, constraint. Consequently, negligible normal between 8:30 a.m. and 4:15 p.m., Public File Area 01F21, 11555 Rockville operating leakage is expected from cracks Eastern Time, Monday through Friday. Pike (first floor), Rockville, Maryland. within the tubesheet region. The help line number is (800) 397–4209 Publicly available records will be For the SGTR event, the required structural or locally, (301) 415–4737. accessible from the ADAMS Public margins of the steam generator tubes is [are] Participants who believe that they maintained by limiting the allowable Electronic Reading Room on the Internet ligament size for a circumferential crack to have a good cause for not submitting at the NRC Web site, http:// documents electronically must file a remain in service to 203 degrees below 17 www.nrc.gov/reading-rm/adams.html. If inches from the TTS for the subsequent motion, in accordance with 10 CFR you do not have access to ADAMS or if operating cycle. Tube rupture is precluded 2.302(g), with their initial paper filing there are problems in accessing the for cracks in the hydraulic expansion region requesting authorization to continue to documents located in ADAMS, contact due to the constraint provided by the submit documents in paper format. the PDR Reference staff at 1 (800) 397– tubesheet. The potential for tube pullout is Such filings must be submitted by: (1) 4209, (301) 415–4737 or by e-mail to mitigated by limiting the allowable crack size First class mail addressed to the Office [email protected]. to 203 degrees for the subsequent operating of the Secretary of the Commission, U.S. cycle. These allowable crack sizes take into Nuclear Regulatory Commission, Dominion Nuclear Connecticut Inc., et account eddy current uncertainty and crack Washington, DC 20555–0001, Attention: al., Docket No. 50–423, Millstone Power growth rate. It has been shown that a Rulemaking and Adjudications Staff; or Station, Unit No. 3, New London circumferential crack with an azimuthal County, Connecticut extent of 203 degrees for the 18-month SG (2) courier, express mail, or expedited tubing eddy current inspection interval meets delivery service to the Office of the Date of amendment request: May 8, the performance criteria of NEI 97–06, Rev. Secretary, Sixteenth Floor, One White 2008. 2, ‘‘Steam Generator Program Guidelines’’ Flint North, 11555 Rockville Pike, Description of amendment request: and Draft Regulatory Guide (RG) 1.121, Rockville, Maryland 20852, Attention: This amendment request contains ‘‘Bases for Plugging Degraded PWR Rulemaking and Adjudications Staff. sensitive unclassified non-safeguards [pressurized-water reactor] Steam Generator Participants filing a document in this information (SUNSI). The proposed Tubes.’’ Therefore, the margin against tube manner are responsible for serving the burst/pullout is maintained during normal changes would allow for interim and postulated accident conditions and the document on all other participants. alternate steam generator tube repair Filing is considered complete by first- proposed change does not result in a criterion, as specified in the Millstone significant increase in the probability or class mail as of the time of deposit in Power Station, Unit 3 (MPS3) technical consequence of a SGTR. the mail, or by courier, express mail, or specifications. The interim alternate The probability of a SLB is unaffected by expedited delivery service upon repair criterion would be for the the potential failure of a SG tube as the depositing the document with the upcoming refueling outage and the failure of a tube is not an initiator for a SLB provider of the service. subsequent operating cycle. The event. SLB leakage is limited by leakage flow Non-timely requests and/or petitions proposed request would also add three restrictions resulting from the leakage path and contentions will not be entertained above potential cracks through the tube-to- reporting criteria to the MPS3 technical absent a determination by the tubesheet crevice. The leak rate during specifications for steam generator tube Commission, the presiding officer, or postulated accident conditions (including inspections. the Atomic Safety and Licensing Board locked rotor and control rod ejection) has Basis for proposed no significant been shown to remain within the accident that the petition and/or request should hazards consideration determination: analysis assumptions for all axial or be granted and/or the contentions As required by 10 CFR 50.91(a), the circumferentially oriented cracks occurring should be admitted, based on a licensee has provided its analysis of the 17 inches below the top of the tubesheet. balancing of the factors specified in 10 issue of no significant hazards Since normal operating leakage is limited to CFR 2.309(c)(1)(i)–(viii). To be timely, consideration, which is presented 150 gpd (approximately 0.10 gpm), the attendant accident condition leak rate, filings must be submitted no later than below: 11:59 p.m. Eastern Time on the due assuming all leakage to be from indications date. 1. Does the proposed [amendment] involve below 17 inches from the top of the Documents submitted in adjudicatory a significant increase in the probability or tubesheet, would be bounded by 0.35 gpm. proceedings will appear in NRC’s consequences of an accident previously This value is within the accident analysis evaluated? assumptions for the limiting design basis electronic hearing docket which is Response: No accident for MPS3, which is the postulated available to the public at http:// _ Of the various accidents previously SLB event. ehd.nrc.gov/EHD Proceeding/home.asp, evaluated, the proposed changes affect only Based on the above, the performance unless excluded pursuant to an order of the steam generator tube rupture (SGTR) criteria of NEI–97–06, Rev. 2 and Draft the Commission, an Atomic Safety and event evaluation and the postulated steam Regulatory Guide (RG) 1.121 continue to be

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met and the proposed change does not satisfied. Therefore, the NRC staff power range monitor], OPRM [oscillation involve a significant increase in the proposes to determine that the power range monitor], RBM [rod block probability or consequences of an accident amendment request involves no monitor], and 3D MONICORE [core previously evaluated. significant hazards consideration. monitoring] systems [are] not significantly 2. Does the proposed [amendment] create Attorney for licensee: Lillian M. affected by the proposed surveillance interval the possibility of a new or different [kind of] increase. As such, the probability of accident from any accident previously Cuoco, Senior Counsel, Dominion occurrence of a previously evaluated evaluated? Resources Services, Inc., Building 475, accident is not increased. Response: No 5th Floor, Rope Ferry Road, Waterford, The radiological consequences of an The proposed change does not introduce CT 06385. accident can be affected by the thermal limits any changes or mechanisms that create the NRC Branch Chief: Harold K. existing at the time of the postulated possibility of a new or different kind of Chernoff. accident; however, LPRM chamber exposure accident. Tube bundle integrity is expected has no significant effect on the calculated to be maintained for all plant conditions Exelon Generation Company, LLC, thermal limits since LPRM accuracy does not upon implementation of the interim alternate Docket Nos. 50–352 and 50–353, significantly deviate with exposure. For the repair criteria. The proposed change does not Limerick Generating Station, Units 1 LPRM extended calibration interval, the total introduce any new equipment or any change and 2, Montgomery County, [bundle] power uncertainty remains [within to existing equipment. No new effects on Pennsylvania the accuracy assumptions of the thermal existing equipment are created nor are any limit calculation]. Therefore, the thermal new malfunctions introduced. Date of amendment request: October limit calculation is not significantly affected Therefore, based on the above evaluation, 19, 2007, supplemented by letters dated by LPRM calibration frequency, and thus the the proposed changes do not create the March 14, 2008, and March 26, 2008. radiological consequences of any accident possibility of a new or different kind of Description of amendment request: previously evaluated are not significantly accident from any accident previously This amendment request contains increased. evaluated. sensitive unclassified non-safeguards Therefore, based on the above information, 3. Does the proposed [amendment] involve information (SUNSI). The proposed the proposed change does not involve a a significant reduction in a margin of safety? significant increase in the probability or changes would increase the allowed consequences of an accident previously Response: No. interval between local power range The proposed change maintains the evaluated. required structural margins of the steam monitor (LPRM) calibrations from 1000 2. Does the proposed amendment create generator tubes for both normal and accident effective full power hours (EFPH) to the possibility of a new or different kind of conditions. NEI 97–06, Rev. 2 and RG 1.121 2000 EFPH as specified in the Limerick accident from any accident previously are used as the basis in the development of Generating Station (LGS), Units 1 and 2, evaluated? the limited tubesheet inspection depth technical specifications. The proposed Response: No. methodology for determining that steam interval increase is enabled by The performance of the APRM, OPRM, generator tube integrity considerations are improvements in core monitoring RBM, and 3D MONICORE systems is not maintained within acceptable limits. RG significantly affected by the proposed LPRM processes and nuclear instrumentation surveillance interval increase. The proposed 1.121 describes a method acceptable to the that have occurred since LGS, Units 1 NRC staff for meeting GDC 14, 15, 31, and 32 change does not affect the control parameters by reducing the probability and and 2, were originally licensed. governing unit operation or the response of consequences of an SGTR. RG 1.121 Basis for proposed no significant plant equipment to transient conditions. The concludes that by determining the limiting hazards consideration determination: proposed change does not change or safe conditions of tube wall degradation As required by 10 CFR 50.91(a), the introduce any new equipment, modes of beyond which tubes with unacceptable licensee has provided its analysis of the system operation or failure mechanisms. cracking, as established by inservice issue of no significant hazards Therefore, based on the above information, inspection, should be removed from service consideration, which is presented, with the proposed change does not create the or repaired, the probability and consequences NRC staff annotations in brackets, possibility of a new or different kind of accident from any accident previously of a SGTR are reduced. This RG uses safety below: factors on loads for tube burst that are evaluated. consistent with the requirements of Section 1. Does the proposed amendment involve 3. Does the proposed amendment involve III of the ASME Code. a significant increase in the probability or a significant reduction in a margin of safety? For axially oriented cracking located consequences of an accident previously Response: No. within the tubesheet, tube burst is precluded evaluated? The proposed change has no impact on due to the presence of the tubesheet. For Response: No. equipment design or fundamental operation, circumferentially oriented cracking in a tube The proposed amendment revises the and there are no changes being made to or the tube-to-tubesheet weld, Reference 4 surveillance interval for the Local Power safety limits or safety system allowable defines a length of remaining tube ligament Range Monitor (LPRM) calibrations from values that would adversely affect plant that provides the necessary resistance to tube 1000 Effective Full Power Hours (EFPH) to safety as a result of the proposed LPRM pullout due to the pressure induced forces 2000 EFPH. Increasing the frequency interval surveillance interval increase. The (with applicable safety factors applied). between required LPRM calibrations is performance of the APRM, OPRM, RBM, and Additionally, it is shown that application of acceptable due to improvements in core 3D MONICORE systems is not significantly the limited tubesheet inspection depth monitoring processes and nuclear affected by the proposed change. The margin criteria will not result in unacceptable instrumentation and therefore, the revised of safety can be affected by the thermal limits primary-to-secondary leakage during all plant surveillance interval continues to ensure that existing at the time of the postulated conditions. the LPRM detector signal is adequately accident; however, uncertainties associated Based on the above, it is concluded that the calibrated. with LPRM chamber exposure have no proposed changes do not result in any This proposed change will not alter the significant effect on the calculated thermal reduction of margin with respect to plant operation of process variables, structures, limits. The thermal limit calculation is not safety as defined in the Updated Final Safety systems, or components as described in the significantly affected since LPRM sensitivity Analysis Report or bases of the plant LGS Updated Final Safety Analysis Report. with exposure is well defined. LPRM Technical Specifications. The proposed change does not alter the accuracy, [even when including an allowance initiation conditions or operational for an increased uncertainty associated with The NRC staff has reviewed the parameters for the LPRM system and there is the LPRM update interval] remains within licensee’s analysis and, based on this no new equipment introduced by the the [assumptions] in the thermal analysis review, it appears that the three extension of the LPRM calibration interval. basis; thereby maintaining thermal limits and standards of 10 CFR 50.92(c) are The performance of the APRM [average the safety margin. The proposed change does

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not affect safety analysis assumptions or perform a channel operational test therefore, do not increase the probability of initial conditions and therefore, the margin of (COT) on Power Range and Intermediate any accident previously evaluated. The safety in the original safety analyses are Range Instruments.’’ Also, the proposed proposed changes do not change the response maintained. amendments would revise the of the plant to any accidents and do not have Therefore, based on the above information, a significant impact on the reliability of the the proposed change does not involve a Completion Times of limiting condition RTS and ESFAS signals. The RTS and ESFAS significant reduction in a margin of safety. for operation (LCO) 3.3.1, Condition F will remain highly reliable, and the proposed from 2 hours to 24 hours consistent with changes will not result in a significant The NRC staff has reviewed the changes approved by the NRC in increase in the risk of plant operation. This licensee’s analysis and, based on this Industry/TSTF STS Change Traveler is demonstrated by showing that the impact review, with changes in the areas noted 246, Revision 0, ‘‘RTS Instrumentation, on plant safety as measured by the increase above, it appears that the three 3.3.1 Condition F Completion Time.’’ in core damage frequency (CDF) is less than standards of 10 CFR 50.92(c) are Finally, the proposed amendments 1.0E–06 per year and the increase in large satisfied. Therefore, the NRC staff early release frequency (LERF) is less than would provide for minor editorial 1.0E–07 per year. In addition, for the proposes to determine that the changes. amendment request involves no Completion Time changes, the incremental Basis for proposed no significant conditional core damage probabilities significant hazards consideration. hazards consideration determination: (ICCDP) and incremental conditional large Attorney for licensee: J. Bradley As required by 10 CFR 50.91(a), the early release probabilities (ICLERP) are less Fewell, Esquire, Associate General licensee has provided its analysis of the than 5.0E–07 and 5.0E–08, respectively. Counsel, Exelon Generation Company, issue of no significant hazards These changes meet the acceptance criteria in LLC, 4300 Winfield Road, Warrenville, consideration, which is presented Regulatory Guides 1.174 and 1.177. IL 60555. Therefore, since the RTS and ESFAS will below: NRC Branch Chief: Harold K. continue to perform their functions with high Chernoff. 1. Do the proposed changes involve a reliability as originally assumed, and the significant increase in the probability or increase in risk as measured by DCDF, Southern Nuclear Operating Company, consequences of an accident previously DLERF, ICCDP, ICLERP risk metrics is within Inc., Docket Nos. 50–348 and 50–364, evaluated? the acceptance criteria of existing regulatory Joseph M. Farley Nuclear Plant, Units 1 Response: No guidance, there will not be a significant and 2, Houston County, Alabama Overall protection system performance will increase in the consequences of any remain within the bounds of the previously accidents. Date of amendment request: performed accident analyses since no The proposed changes do not adversely December 20, 2007. hardware changes are proposed. The same affect accident initiators or precursors nor Description of amendment request: reactor trip system (RTS) and engineered alter the design assumptions, conditions, or This amendment request contains safety features actuation system (ESFAS) configuration of the facility or the manner in sensitive unclassified non-safeguards instrumentation will continue to be used. which the plant is operated and maintained. information (SUNSI). The proposed The protection systems will continue to The proposed changes do not alter or prevent amendment would revise Technical function in a manner consistent with the the ability of structures, systems, and Specification (TS) 3.3.1, ‘‘Reactor Trip plant design basis. These changes to the components (SSCs) from performing their System (RTS) Instrumentation,’’ TS Technical Specifications do not result in a intended function to mitigate the condition where the design, material, or consequences of an initiating event within 3.3.2, ‘‘Engineered Safety Feature construction standards that were applicable the assumed acceptance limits. The proposed Actuation System (ESFAS) prior to the change are altered. changes do not affect the source term, Instrumentation,’’ TS 3.3.6, The proposed changes will not modify any containment isolation, or radiological release ‘‘Containment Purge and Exhaust system interface. The proposed changes will assumptions used in evaluating the Isolation Instrumentation,’’ TS 3.3.7, not affect the probability of any event radiological consequences of an accident ‘‘Control Room Emergency Filtration/ initiators. There will be no degradation in the previously evaluated. The proposed changes Pressurization System (CREFS) performance of or an increase in the number are consistent with safety analysis Actuation Instrumentation,’’ and TS of challenges imposed on safety-related assumptions and resultant consequences. 3.3.8, ‘‘Penetration Room Filtration equipment assumed to function during an Therefore, the proposed changes do not accident situation. There will be no change involve a significant increase in the (PRF) System Actuation to normal plant operating parameters or probability or consequences of an accident Instrumentation’’ to adopt Completion accident mitigation performance. The previously evaluated. Time, bypass test time, and Surveillance proposed changes will not alter any (2) Do the proposed changes create the Requirement (SR) Frequency changes assumptions or change any mitigation actions possibility of a new or different kind of approved by the Nuclear Regulatory in the radiological consequence evaluation in accident from any accident previously Commission (NRC) in WCAP–14333–P– the updated [final safety analysis report] evaluated? A, Revision 1, ‘‘Probabilistic Risk FSAR. Response: No. Analysis of the reactor protection The determination that the results of the The proposed changes will not affect the system (RPS) and ESFAS Test Times proposed changes are acceptable was normal method of plant operation. No established in the NRC Safety Evaluations performance requirements will be affected or and Completion Times,’’ October 1998 prepared for WCAP–14333–P–A (issued by eliminated. The proposed changes will not and WCAP–15376–P–A, Revision 1, letter dated July 15, 1998) and for WCAP– result in any hardware changes or physical ‘‘Risk-Informed Assessment of the RTS 15376–P–A (issued by letter dated December alteration to any plant system, nor will there and ESFAS Surveillance Test Intervals 20, 2002). Implementation of the proposed be any change in the method by which any and Reactor Trip Breaker Test and changes will not result in a significant risk safety-related plant system performs its safety Completion Times,’’ March 2003. In impact. Applicability of these conclusions function. There will be no setpoint changes addition, the proposed amendments has been verified through plant-specific or changes to accident analysis assumptions. would revise SR 3.3.1.8 to adopt reviews and implementation of the generic No new accident scenarios, transient Surveillance Frequency changes analysis results in accordance with the precursors, failure mechanisms, or limiting respective NRC Safety Evaluation conditions. single failures are introduced as a result of approved by the NRC in Industry/ The proposed changes to the Completion these changes. There will be no adverse effect Technical Specification Task Force Times, bypass test times, and Surveillance or challenges imposed on any safety-related (TSTF) Standard Technical Frequencies reduce the potential for system as a result of these changes. Specification (STS) Change Traveler inadvertent reactor trips and spurious ESF Therefore, the proposed changes do not 242, Revision 1, ‘‘Increase the time to [engineered safety feature] actuations, and create the possibility of a new or different

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kind of accident from any accident review, it appears that the three of the Secretary and the Office of the previously evaluated. standards of 10 CFR 50.92(c) are General Counsel are (3) Do the proposed changes involve a satisfied. Therefore, the NRC staff [email protected] and significant reduction in a margin of safety? proposes to determine that the [email protected], respectively.1 The Response: No. The proposed changes do not affect the amendment request involves no request must include the following acceptance criteria for any analyzed event significant hazards consideration. information: nor is there a change to any Safety Analysis Attorney for licensee: M. Stanford a. A description of the licensing Limit. There will be no effect on the manner Blanton, Esq., Balch and Bingham, Post action with a citation to this Federal in which safety limits, limiting safety system Office Box 306, 1710 Sixth Avenue Register notice of opportunity for settings (LSSS), or limiting conditions for North, Birmingham, Alabama 35201. hearing; operation are determined nor will there be NRC Branch Chief: Melanie C. Wong. b. The name and address of the any effect on those plant systems necessary potential party and a description of the to assure the accomplishment of protection Order Imposing Procedures for Access potential party’s particularized interest functions. There is no impact on the to Sensitive Unclassified Non- that could be harmed by the action supporting RTS and ESFAS setpoint Safeguards Information (SUNSI) and identified in (a); uncertainty calculations or the LSSS trip Safeguards Information (SGI) for setpoint safety margin. There will be no c. If the request is for SUNSI, the impact on the overpower limit, DNBR Contention Preparation identity of the individual requesting [departure from nucleate boiling ratio] limits, Dominion Nuclear Connecticut Inc., et access to SUNSI and the requester’s FQ, FDH, LOCA [loss-of-coolant accident] al., Docket No. 50–423, Millstone Power need for the information in order to PCT [peak cladding temperature], peak local Station, Unit No. 3, New London meaningfully participate in this power density, or any other margin of safety. County, Connecticut adjudicatory proceeding, particularly The radiological dose consequence why publicly available versions of the acceptance criteria listed in the Standard Exelon Generation Company, LLC, application would not be sufficient to Review Plan will continue to be met. Docket Nos. 50–352 and 50–353, provide the basis and specificity for a Redundant RTS and ESFAS trains are Limerick Generating Station, Units 1 maintained, and diversity with regard to the proffered contention; signals that provide reactor trip and and 2, Montgomery County, d. If the request is for SGI, the identity engineered safety features actuation is also Pennsylvania of the individual requesting access to maintained. All signals credited as primary Southern Nuclear Operating Company, SGI and the identity of any expert, or secondary, and all operator actions Inc., Docket Nos. 50–348 and 50–364, consultant or assistant who will aid the credited in the accident analyses will remain Joseph M. Farley Nuclear Plant, Units 1 requester in evaluating the SGI, and the same. The proposed changes will not and 2, Houston County, Alabama information that shows: result in plant operation in a configuration (i) Why the information is outside the design basis. The calculated 1. This order contains instructions indispensable to meaningful impact on risk is not significant and meets regarding how potential parties to the participation in this licensing the acceptance criteria contained in proceedings listed above may request Regulatory Guides 1.174 and 1.177. Although proceeding; and there was no attempt to quantify any positive access to documents containing (ii) The technical competence human factors benefit due to increased sensitive unclassified information (demonstrable knowledge, skill, Completion Times and bypass test times, it (SUNSI and SGI). experience, training or education) of the is expected that there would be a net benefit 2. Within ten (10) days after requester to understand and use (or due to a reduced potential for spurious publication of this notice of opportunity evaluate) the requested information to reactor trips and actuations associated with for hearing, any potential party as provide the basis and specificity for a testing. defined in 10 CFR 2.4 who believes proffered contention. The technical Implementation of the proposed changes is access to SUNSI or SGI is necessary for expected to result in an overall improvement competence of a potential party or its in safety, as follows: a response to the notice may request counsel may be shown by reliance on a (a) Reduced testing will result in fewer access to SUNSI or SGI. A ‘‘potential qualified expert, consultant or assistant inadvertent reactor trips, less frequent party’’ is any person who intends or who demonstrates technical competence actuation of ESFAS components, and less may intend to participate as a party by as well as trustworthiness and frequent distraction of operations personnel, demonstrating standing and the filing of reliability, and who agrees to sign a non- without significantly affecting RTS and an admissible contention under 10 CFR disclosure affidavit and be bound by the ESFAS reliability. 2.309. Requests submitted later than ten terms of a protective order; and (b) Improvements in the effectiveness of (10) days will not be considered absent e. If the request is for SGI, Form SF– the operating staff in monitoring and a showing of good cause for the late controlling plant operation will be realized. 85, ‘‘Questionnaire for Non-Sensitive This is due to less frequent distraction of the filing, addressing why the request could Positions,’’ Form FD–258 (fingerprint operators and shift supervisor to attend to not have been filed earlier. card), and a credit check release form instrumentation Required Actions with short 3. The requester shall submit a letter completed by the individual who seeks Completion Times. requesting permission to access SUNSI access to SGI and each individual who (c) The Completion Time extensions for the and/or SGI to the Office of the Secretary, will aid the requester in evaluating the reactor trip breakers will provide additional U.S. Nuclear Regulatory Commission, SGI. For security reasons, Form SF–85 time to complete test and maintenance Washington, DC 20555–0001, Attention: can only be submitted electronically, activities while at power, potentially Rulemakings and Adjudications Staff, reducing the number of forced outages through a restricted-access database. To related to compliance with reactor trip and provide a copy to the Associate obtain online access to the form, the breaker Completion Times, and provide General Counsel for Hearings, requester should contact the NRC’s consistency with the Completion Times for Enforcement and Administration, Office Office of Administration at 301–415– the logic trains. of the General Counsel, Washington, DC Therefore, the proposed changes do not 20555–0001. The expedited delivery or 1 See footnote 6. While a request for hearing or involve a significant reduction in a margin of courier mail address for both offices is petition to intervene in this proceeding must safety. comply with the filing requirements of the NRC’s U.S. Nuclear Regulatory Commission, ‘‘E-Filing Rule,’’ the initial request to access SUNSI The NRC staff has reviewed the 11555 Rockville Pike, Rockville, MD and/or SGI under these procedures should be licensee’s analysis and, based on this 20852. The e-mail address for the Office submitted as described in this paragraph.

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0320.2 The other completed forms must necessary) an inspection to confirm that should notify the presiding officer be signed in original ink, accompanied the recipient’s information protection within ten (10) days, describing the by a check or money order payable in systems are sufficient to protect SGI obstacles to the agreement. the amount of $191.00 to the U.S. from inadvertent release or disclosure. 9. If the request for access to SUNSI Nuclear Regulatory Commission for Recipients may opt to view SGI at the is denied by the NRC staff or a request each individual, and mailed to the: NRC’s facility rather than establish their for access to SGI is denied by NRC staff Office of Administration, Security own SGI protection program to meet SGI either after a determination on standing Processing Unit, Mail Stop T–6E46, U.S. protection requirements. and need to know or, later, after a Nuclear Regulatory Commission, 7. A request for access to SUNSI or determination on trustworthiness and Washington, DC 20555–0012. SGI will be granted if: reliability, the NRC staff shall briefly These forms will be used to initiate a. The request has demonstrated that state the reasons for the denial. Before the background check, which includes there is a reasonable basis to believe that the Office of Administration makes an fingerprinting as part of a criminal a potential party is likely to establish adverse determination regarding access, history records check. standing to intervene or to otherwise the proposed recipient must be participate as a party in this proceeding; provided an opportunity to correct or Note: Copies of these forms do not need to b. The proposed recipient of the be included with the request letter to the explain information. The requester may Office of the Secretary, but the request letter information has demonstrated a need for challenge the NRC staff’s adverse should state that the forms and fees have SUNSI or a need to know for SGI, and determination with respect to access to been submitted as described above. that the proposed recipient of SGI is SUNSI or with respect to standing or trustworthy and reliable; need to know for SGI by filing a 4. To avoid delays in processing c. The proposed recipient of the requests for access to SGI, all forms challenge within ten (10) days of receipt information has executed a Non- of that determination with (a) The should be reviewed for completeness Disclosure Agreement or Affidavit and and accuracy (including legibility) presiding officer designated in this agrees to be bound by the terms of a proceeding; (b) if no presiding officer before submitting them to the NRC. Protective Order setting forth terms and Incomplete packages will be returned to has been appointed, the Chief conditions to prevent the unauthorized Administrative Judge, or if he or she is the sender and will not be processed. or inadvertent disclosure of SUNSI and/ 5. Based on an evaluation of the unavailable, another administrative or SGI; and information submitted under items 2 judge, or an administrative law judge d. The presiding officer has issued a with jurisdiction pursuant to 10 CFR and 3.a through 3.d, above, the NRC protective order concerning the staff will determine within ten days of 2.318(a); or (c) if another officer has information or documents requested.4 been designated to rule on information receipt of the written access request Any protective order issued shall whether (1) there is a reasonable basis access issues, with that officer. In the provide that the petitioner must file same manner, an SGI requester may to believe the petitioner is likely to SUNSI or SGI contentions 25 days after establish standing to participate in this challenge an adverse determination on receipt of (or access to) that information. trustworthiness and reliability by filing NRC proceeding, and (2) there is a However, if more than 25 days remain legitimate need for access to SUNSI or a challenge within fifteen (15) days of between the petitioner’s receipt of (or receipt of that determination. need to know the SGI requested. For access to) the information and the In the same manner, a party other SGI, the need to know determination is deadline for filing all other contentions than the requester may challenge an made based on whether the information (as established in the notice of hearing NRC staff determination granting access requested is necessary (i.e., or opportunity for hearing), the to SUNSI whose release would harm indispensable) for the proposed petitioner may file its SUNSI or SGI that party’s interest independent of the recipient to proffer and litigate a contentions by that later deadline. proceeding. Such a challenge must be specific contention in this NRC 8. If the request for access to SUNSI 3 filed within ten (10) days of the proceeding and whether the proposed or SGI is granted, the terms and notification by the NRC staff of its grant recipient has the technical competence conditions for access to sensitive of such a request. (demonstrable knowledge, skill, unclassified information will be set If challenges to the NRC staff training, education, or experience) to forth in a draft protective order and determinations are filed, these evaluate and use the specific SGI affidavit of non-disclosure appended to procedures give way to the normal requested in this proceeding. a joint motion by the NRC staff, any process for litigating disputes 6. If standing and need to know SGI other affected parties to this concerning access to information. The are shown, the NRC staff will further proceeding,5 and the petitioner(s). If the availability of interlocutory review by determine based upon completion of the diligent efforts by the relevant parties or the Commission of orders ruling on background check whether the proposed petitioner(s) fail to result in an such NRC staff determinations (whether recipient is trustworthy and reliable. agreement on the terms and conditions granting or denying access) is governed The NRC staff will conduct (as for a draft protective order or non- by 10 CFR 2.311.6 disclosure affidavit, the relevant parties 10. The Commission expects that the 2 The requester will be asked to provide his or her NRC staff and presiding officers (and full name, social security number, date and place to the proceeding or the petitioner(s) of birth, telephone number, and e-mail address. any other reviewing officers) will After providing this information, the requester 4 If a presiding officer has not yet been consider and resolve requests for access usually should be able to obtain access to the online designated, the Chief Administrative Judge will form within one business day. issue such orders, or will appoint a presiding officer 6 As of October 15, 2007, the NRC’s final ‘‘E- 3 Broad SGI requests under these procedures are to do so. Filing Rule’’ became effective. See Use of Electronic thus highly unlikely to meet the standard for need 5 Parties/persons other than the requester and the Submissions in Agency Hearings (72 FR 49139; to know; furthermore, staff redaction of information NRC staff will be notified by the NRC staff of a Aug. 28, 2007). Requesters should note that the from requested documents before their release may favorable access determination (and may participate filing requirements of that rule apply to appeals of be appropriate to comport with this requirement. in the development of such a motion and protective NRC staff determinations (because they must be These procedures do not authorize unrestricted order) if it concerns SUNSI and if the party/person’s served on a presiding officer or the Commission, as disclosure or less scrutiny of a requester’s need to interest independent of the proceeding would be applicable), but not to the initial SUNSI/SGI know than ordinarily would be applied in harmed by the release of the information (e.g., as requests submitted to the NRC staff under these connection with an already-admitted contention. with proprietary information). procedures.

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to SUNSI and/or SGI, and motions for for processing and resolving requests For the Nuclear Regulatory Commission. protective orders, in a timely fashion in under these procedures. Annette L. Vietti-Cook, order to minimize any unnecessary Dated at Rockville, Maryland, this 30th day Secretary of the Commission. delays in identifying those petitioners of June 2008. Attachment 1—General Target who have standing and who have Schedule for Processing and Resolving propounded contentions meeting the Requests for Access to Sensitive specificity and basis requirements in 10 Unclassified Non-Safeguards CFR Part 2. Attachment 1 to this Order Information (SUNSI) and Safeguards summarizes the general target schedule Information (SGI) in This Proceeding

Day Event/Activity

0 ...... Publication of Federal Register notice of proposed action and opportunity for hearing, including order with instructions for ac- cess requests. 10 ...... Deadline for submitting requests for access to SUNSI and/or SGI with information: supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate meaning- fully in an adjudicatory proceeding; demonstrating that access should be granted (e.g., showing technical competence for ac- cess to SGI); and, for SGI, including application fee for fingerprint/background check. 60 ...... Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formulation does not require access to SUNSI and/or SGI (+25 Answers to petition for intervention; +7 petitioner/requestor reply). 20 ...... NRC staff informs the requester of the staff’s determination whether the request for access provides a reasonable basis to be- lieve standing can be established and shows (1) need for SUNSI or (2) need to know for SGI. (For SUNSI, NRC staff also in- forms any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the infor- mation.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents). If NRC staff makes the finding of need to know for SGI and like- lihood of standing, NRC staff begins background check (including fingerprinting for a criminal history records check), informa- tion processing (preparation of redactions or review of redacted documents), and readiness inspections. 25 ...... If NRC staff finds no ‘‘need,’’ ‘‘need to know,’’ or likelihood of standing, the deadline for petitioner/requester to file a motion seeking a ruling to reverse the NRC staff’s denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds ‘‘need’’ for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff’s grant of access. 30 ...... Deadline for NRC staff reply to motions to reverse NRC staff determination(s). 40 ...... (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI. 190 ...... (Receipt +180) If NRC staff finds standing, need to know for SGI, and trustworthiness and reliability, deadline for NRC staff to file motion for Protective Order and draft Non-disclosure Affidavit (or to make a determination that the proposed recipient of SGI is not trustworthy or reliable). Note: Before the Office of Administration makes an adverse determination regarding ac- cess, the proposed recipient must be provided an opportunity to correct or explain information. 205 ...... Deadline for petitioner to seek reversal of a final adverse NRC staff determination either before the presiding officer or another designated officer. A ...... If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final ad- verse determination by the NRC staff. A + 3 ...... Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI and/or SGI consistent with decision issuing the protective order. A + 28 ...... Deadline for submission of contentions whose development depends upon access to SUNSI and/or SGI. However, if more than 25 days remain between the petitioner’s receipt of (or access to) the information and the deadline for filing all other conten- tions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI or SGI contentions by that later deadline. A + 53 ...... (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI and/or SGI. A + 60 ...... (Answer receipt +7) Petitioner/Intervenor reply to answers B ...... Decision on contention admission.

[FR Doc. E8–15301 Filed 7–7–08; 8:45 am] NUCLEAR REGULATORY ACTION: Issuance of Environmental BILLING CODE 7590–01–P COMMISSION Assessment and Finding of No Significant Impact for License [Docket No. 030–17205] Amendment. Notice of Availability of Environmental Assessment and Finding of No FOR FURTHER INFORMATION CONTACT: Significant Impact for License Thomas K. Thompson, Sr. Health Amendment to Byproduct Nuclear Physicist, Commercial, Research and Materials License No. 06–19244–01, for Development Branch, Division of Termination of the License and Nuclear Materials Safety, Region I, 475 Unrestricted Release of the Delta Allendale Road, King of Prussia, Lighting Corporation Facility in Pennsylvania 19406; telephone (610) Stamford, CT 337–5303; fax number (610) 337–5269; or by e-mail: [email protected]. AGENCY: Nuclear Regulatory Commission. SUPPLEMENTARY INFORMATION:

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I. Introduction decommissioning plan to the NRC ML042320379, and ML042330385). The The U.S. Nuclear Regulatory because worker cleanup activities and staff finds there were no significant Commission (NRC) is considering the procedures are consistent with those environmental impacts from the use of issuance of an amendment to byproduct approved for routine operations. The radioactive material at the Facility. The materials License No. 06–19244–01. Licensee conducted surveys of the NRC staff reviewed the docket file This license is held by Delta Lighting Facility and provided information to the records and the final status survey Corporation (the Licensee), for its NRC to demonstrate that it meets the report to identify any non-radiological facility located at 200 Henry Avenue, criteria in Subpart E of 10 CFR Part 20 hazards that may have impacted the Stamford, Connecticut (the Facility). for unrestricted release and for license environment surrounding the Facility. Issuance of the amendment would termination. No such hazards or impacts to the authorize release of the Facility for Need for the Proposed Action environment were identified. The NRC unrestricted use and termination of the The Licensee has ceased conducting has identified no other radiological or NRC license. The Licensee requested licensed activities at the Facility, and non-radiological activities in the area this action in a letter dated October 15, seeks the unrestricted use of its Facility that could result in cumulative 2007. The NRC has prepared an and the termination of its NRC materials environmental impacts. Environmental Assessment (EA) in license. Termination of its license The NRC staff finds that the proposed support of this proposed action in would end the Licensee’s obligation to accordance with the requirements of release of the Facility for unrestricted pay annual license fees to the NRC. Title 10, Code of Federal Regulations use and the termination of the NRC (CFR), Part 51 (10 CFR Part 51). Based Environmental Impacts of the Proposed materials license is in compliance with on the EA, the NRC has concluded that Action 10 CFR 20.1402. Based on its review, the staff considered the impact of the a Finding of No Significant Impact The historical review of licensed (FONSI) is appropriate with respect to residual radioactivity at the Facility and activities conducted at the Facility concluded that the proposed action will the proposed action. The amendment shows that such activities involved use not have a significant effect on the will be issued to the Licensee following of the following radionuclides with half- quality of the human environment. the publication of this FONSI and EA in lives greater than 120 days: hydrogen-3. the Federal Register. The Licensee conducted a final status Environmental Impacts of the II. Environmental Assessment survey on August 16, 2007. This survey Alternatives to the Proposed Action covered the areas of use in the Facility. Identification of Proposed Action The final status survey report was Due to the largely administrative The proposed action would approve attached to the Licensee’s amendment nature of the proposed action, its the Licensee’s October 15, 2007, license request dated October 15, 2007. The environmental impacts are small. amendment request, resulting in release Licensee demonstrated compliance with Therefore, the only alternative the staff of the Facility for unrestricted use and the radiological criteria for unrestricted considered is the no-action alternative, the termination of its NRC materials release as specified in 10 CFR 20.1402 under which the staff would leave license. License No. 06–19244–01 was by using the screening approach things as they are by simply denying the issued on May 30, 1980, pursuant to 10 described in NUREG–1757, amendment request. This no-action CFR Part 30, and has been amended ‘‘Consolidated Decommissioning alternative is not feasible because it periodically since that time. This Guidance,’’ Volume 2. The conflicts with 10 CFR 30.36(d), license authorized the Licensee to use radionuclide-specific derived requiring that decommissioning of sealed sources containing hydrogen-3 to concentration guideline levels (DCGLs), byproduct material facilities be assemble equipment that was developed by the NRC, which comply completed and approved by the NRC distributed to the Department of with the dose criterion in 10 CFR after licensed activities cease. The Defense. 20.1402, were not exceeded. These NRC’s analysis of the Licensee’s final The Facility is comprised of a 5-story DCGLs define the maximum amount of status survey data confirmed that the building, approximately 635 feet long residual radioactivity on building Facility meets the requirements of 10 and 68 foot wide, consisting of office surfaces, equipment, and materials, and CFR 20.1402 for unrestricted release and space and laboratories. Within the in soils, that will satisfy the NRC for license termination. Additionally, Facility, use of licensed materials was requirements in Subpart E of 10 CFR denying the amendment request would confined to the east end of the third Part 20 for unrestricted release. The result in no change in current floor of the building. The Facility is Licensee’s final status survey results environmental impacts. The were below these DCGLs and are in located in a mixed residential/ environmental impacts of the proposed compliance with the As Low As commercial area. Within the Facility, action and the no-action alternative are Reasonably Achievable (ALARA) the radionuclide of concern was therefore similar, and the no-action requirement of 10 CFR 20.1402. The hydrogen-3 because the half-life of this alternative is accordingly not further isotope is greater than 120 days. NRC thus finds that the Licensee’s final considered. On August 16, 2007, the Licensee status survey results are acceptable. ceased licensed activities and initiated a Based on its review, the staff has Conclusion survey of the affected areas of the determined that the affected Facility. Based on the Licensee’s environment and any environmental The NRC staff has concluded that the historical knowledge of the site and the impacts associated with the proposed proposed action is consistent with the conditions of the Facility, the Licensee action are bounded by the impacts NRC’s unrestricted release criteria determined that only routine evaluated by the ‘‘Generic specified in 10 CFR 20.1402. Because decontamination activities, in Environmental Impact Statement in the proposed action will not accordance with the NRC-approved Support of Rulemaking on Radiological significantly impact the quality of the operating radiation safety procedures, Criteria for License Termination of NRC- human environment, the NRC staff would be required. The Licensee was Licensed Nuclear Facilities’’ (MUREG– concludes that the proposed action is not required to submit a 1496) Volumes 1–3 (ML042310492, the preferred alternative.

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Agencies and Persons Consulted Inspection report dated June 2005 Week of July 21, 2008—Tentative (ML051880266); NRC provided a draft of this Wednesday, July 23, 2008 Environmental Assessment to the State NUREG–1757, ‘‘Consolidated NMSS 1:30 p.m. of Connecticut, Department of Decommissioning Guidance;’’ Discussion of Security Issues Environmental Protection, Division of Title 10 Code of Federal Regulations, (Closed—Ex. 1 & 3). Radiation, for review on January 3, Part 20, Subpart E, ‘‘Radiological 2008. On April 17, 2008, the State of Criteria for License Termination;’’ Thursday, July 24, 2008 Title 10, Code of Federal Regulations, Connecticut responded by electronic 1:30 p.m. Part 51, ‘‘Environmental Protection mail. The State agreed with the Discussion of Security Issues Regulations for Domestic Licensing conclusions of the EA, and otherwise (Closed—Ex. 1 & 3). had no comments. and Related Regulatory Functions;’’ The NRC staff has determined that the NUREG–1496, ‘‘Generic Environmental Week of July 28, 2008—Tentative proposed action is of a procedural Impact Statement in Support of There are no meetings scheduled for nature, and will not affect listed species Rulemaking on radiological Criteria the week of July 28, 2008. or critical habitat. Therefore, no further for License Termination of NRC- consultation is required under Section 7 Licensed Nuclear Facilities.’’ Week of August 4, 2008—Tentative of the Endangered Species Act. The If you do not have access to ADAMS, There are no meetings scheduled for NRC staff has also determined that the or if there are problems in accessing the the week of August 4, 2008. proposed action is not the type of documents located in ADAMS, contact Week of August 11, 2008—Tentative activity that has the potential to cause the NRC Public Document Room (PDR) effects on historic properties. Therefore, Reference staff at 1–800–397–4209, 301– Tuesday, August 12, 2008 no further consultation is required 415–4737, or by e-mail to [email protected]. 1:30 p.m. under Section 106 of the National These documents may also be viewed Historic Preservation Act. Meeting with FEMA and State and electronically on the public computers Local Representatives on Offsite III. Finding of No Significant Impact located at the NRC’s PDR, O 1F21, One Emergency Preparedness Issues White Flint North, 11555 Rockville The NRC staff has prepared this EA in (Public Meeting) (Contact: Chris Pike, Rockville, MD 20852. The PDR Miller, 301 415–1086). support of the proposed action. On the reproduction contractor will copy This meeting will be Webcast live at basis of this EA, the NRC finds that documents for a fee. there are no significant environmental the Web address—http://www.nrc.gov. Dated at King of Prussia, Pennsylvania this impacts from the proposed action, and Thursday, August 14, 2008 that preparation of an environmental 26th day of June 2008. impact statement is not warranted. For the Nuclear Regulatory Commission. 1:30 p.m. Accordingly, the NRC has determined James P. Dwyer, Meeting with Organization of that a Finding of No Significant Impact Chief, Commercial, Research and Agreement States (OAS) and is appropriate. Development Branch, Division of Nuclear Conference of Radiation Control Materials Safety, Region I. Program Directors (CRCPD) (Public IV. Further Information [FR Doc. E8–15409 Filed 7–7–08; 8:45 am] Meeting) (Contact: Andrea Jones, Documents related to this action, BILLING CODE 7590–01–P 301 415–2309). including the application for license This meeting will be Webcast live at amendment and supporting the Web address—http://www.nrc.gov. documentation, are available NUCLEAR REGULATORY *The schedule for Commission electronically at the NRC’s Electronic COMMISSION meetings is subject to change on short Reading Room at http://www.nrc.gov/ notice. To verify the status of meetings, Sunshine Federal Register Notice reading-rm/adams.html. From this site, call (recording)—(301) 415–1292. you can access the NRC’s Agencywide Contact person for more information: AGENCY HOLDING THE MEETINGS: Nuclear Document Access and Management Regulatory Commission. Michelle Schroll, (301) 415–1662. System (ADAMS), which provides text The NRC Commission Meeting and image files of NRC’s public DATE: Weeks of July 7, 14, 21, 28, Schedule can be found on the Internet documents. The documents related to August 4, 11, 2008. at: http://www.nrc.gov/about-nrc/policy- this action are listed below, along with PLACE: Commissioners’ Conference making/schedule.html. their ADAMS accession numbers. Room, 11555 Rockville Pike, Rockville, The NRC provides reasonable NRC License No. 06–19244–01 Maryland. accommodation to individuals with (ML013040402); STATUS: Public and closed. disabilities where appropriate. If you Termination request dated October 15, need a reasonable accommodation to 2007 (ML072970647); Week of July 7, 2008 participate in these public meetings, or Additional information on termination There are no meetings scheduled for need this meeting notice or the request October 31, 2007 the week of July 7, 2008. transcript or other information from the (ML073120241); public meetings in another format (e.g., Additional information on termination Week of July 14, 2008—Tentative braille, large print), please notify the request dated December 3, 2007 Thursday, July 17, 2008 NRC’s Disability Program Coordinator, (ML073410648); Rohn Brown, at 301–492–2279, TDD: License application dated December 5, 1 p.m. 301–415–2100, or by e-mail at 1979 (ML073520073); Briefing on Fire Protection Issues [email protected]. Determinations on License application dated March 25, (Public Meeting) (Contact: Alex requests for reasonable accommodation 1980 (ML073520085); Klein, 301 415–2822). will be made on a case-by-case basis. License application dated July 30, 2001 This meeting will be Webcast live at This notice is distributed by mail to (ML012220088); the Web address—http://www.nrc.gov. several hundred subscribers; if you no

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longer wish to receive it, or would like describes the distribution as a capital the application.7 The staff estimates to be added to the distribution, please gains distribution (the ‘‘notice that, on average, outside counsel spends contact the Office of the Secretary, requirement’’).3 Rule 19b–1(e) (17 CFR 10 hours preparing a rule 19b–1(e) Washington, DC 20555 (301–415–1969). 270.19b–1(e)) permits a fund to apply to application, including eight hours by an In addition, distribution of this meeting the Commission for permission to associate and two hours by a partner. notice over the Internet system is distribute long-term capital gains more Outside counsel billing arrangements available. If you are interested in than once a year if the fund did not and rates vary based on numerous receiving this Commission meeting foresee the circumstances that created factors. Based on conversations with schedule electronically, please send an the need for the distribution. The outside counsel and average billing rates electronic message to [email protected]. application must set forth the pertinent of outside counsel the staff estimates Dated: July 2, 2008. facts and explain the circumstances that that the average cost of outside counsel 4 preparation of the 19b–(e) exemptive R. Michelle Schroll, justify the distribution. An application that meets those requirements is application is $5,000. Thus, the staff Office of the Secretary. deemed to be granted unless the estimates that the total annual cost [FR Doc. 08–1420 Filed 7–3–08; 10:41 am] Commission denies the request within burden imposed by the exemptive BILLING CODE 7590–01–P 15 days after the Commission receives application requirements of rule the application. 19b–1(e) is $25,000.8 Commission staff estimates that, on The Commission staff estimates that SECURITIES AND EXCHANGE 9 average, each year five funds file an there are approximately 6030 UITs, COMMISSION application under rule 19b–1(e). The which may rely on rule 19b–1(c) to make capital gains distributions. The Proposed Collection; Comment staff understands that funds that file an application generally use outside staff estimates that, on average, these Request UITs rely on rule 19b–1(c) once a year counsel to prepare the application. The 10 Upon Written Request, Copies Available cost burden of using outside counsel is to make a capital gains distribution. In From: Securities and Exchange discussed below. The staff estimates most cases, the trustee of the UIT is responsible for preparing and sending Commission, Office of Investor that, on average, the fund’s investment the notices that must accompany a Education and Advocacy, adviser spends approximately four capital gains distribution under rule Washington, DC 20549–0213. hours to review an application, 19b–1(c)(2). These notices require including 3.5 hours by an assistant Extension: limited preparation, the cost of which general counsel, at a cost of $371 per Rule 19b–1, SEC File No. 270–312, OMB accounts for only a small, indiscrete Control No. 3235–0354. hour, and 0.5 hours by an portion of the comprehensive fee administrative assistant, at a cost of $65 Notice is hereby given that, pursuant charged by the trustee for its services to per hour.5 Thus, the Commission staff to the Paperwork Reduction Act of 1995 the UIT. The staff believes that as a estimates that the annual hour burden of (44 U.S.C. 3501–3520), the Securities matter of good business practices, and the collection of information imposed and Exchange Commission for tax preparation reasons, UITs would by rule 19b–1 is approximately four (‘‘Commission’’) is soliciting comments collect and distribute the capital gains hours per fund, at a cost of $1331, for on the collection of information information required to be sent to unit a total burden of 20 hours at a cost of summarized below. The Commission holders under rule 19b–1(c) even in the $6655.6 plans to submit the existing collection absence of the rule. The staff estimates of information to the Office of The Commission staff estimates that that the cost of preparing a notice for a Management and Budget (‘‘OMB’’) for there is no hour burden associated with capital gains distribution under rule extension and approval. complying with the collection of 19b–1(c)(2) is approximately $50. There Section 19(b) of the Investment information component of rule 19b–1(c). is no separate cost to mail the notices Company Act of 1940 (the ‘‘Act’’) (15 As noted above, the Commission staff because they are mailed with the capital U.S.C. 80a–19(b)) authorizes the understands that funds that file an gains distribution. Thus, the staff Commission to regulate registered application under rule 19b–1(e) estimates that the capital gains investment company (‘‘fund’’) generally use outside counsel to prepare distribution notice requirement imposes distributions of long-term capital gains an annual cost on UITs of made more frequently than once every 3 The notice requirement in rule 19b–1(c)(2) (17 approximately $301,500.11 The staff twelve months. Rule 19b–1 under the CFR 270.19b–1(c)(2)) supplements the notice therefore estimates that the total cost Act 1 prohibits funds from distributing requirement of section 19(a) [15 U.S.C. 80a–19(a)] and rule 19a–1 [17 CFR 270.19a–1], which requires long-term capital gains more than once any distribution in the nature of a dividend 7 This understanding is based on conversations every twelve months unless certain payment made by a fund to its investors to be with representatives from the fund industry. conditions are met. Rule 19b–1(c) (17 accompanied by a notice disclosing the source of 8 This estimate is based on the following CFR 270.19b–1(c)) permits unit the distribution. calculation: $5,000 multiplied by 5 (funds) equals investment trusts (‘‘UITs’’) engaged 4 Rule 19b–1(e) also requires that the application $25,000. comply with rule 0–2 [17 CFR 270.02], which sets 9 The Investment Company Institute, Unit exclusively in the business of investing forth the general requirements for papers and Investment Trust Data (April, 2008). in certain eligible fixed-income applications filed with the Commission. 10 The number of times UITs rely on the rule to securities to distribute long-term capital 5 These hourly rate estimates are derived from make capital gains distributions depends on a wide gains more than once every twelve annual salaries reported in: Securities Industry and range of factors and, thus, can vary greatly across Financial Markets Association, Management and years. A number of UITs are organized as grantor months, if: (i) The capital gains Professional Earnings in the Securities Industry trusts, and therefore do not generally make capital distribution falls within one of several (2007) and Securities Industry and Financial gains distributions under rule 19b–1(c), or may not categories specified in the rule 2 and (ii) Markets Association, Office Salaries in the rely on rule 19b–1(c) as they do not meet the rule’s the distribution is accompanied by a Securities Industry (2007). requirements. Other UITs may distribute capital report to the unit holder that clearly 6 This estimate is based on the following gains biannually, annually, quarterly, or at other calculations: $1298.50 (3.5 hours × $371 = $1298.5) intervals. plus $32.50 (0.5 hours × $65 = $32.50) equals 11 This estimate is based on the following 1 17 CFR 270.19b–1. $1331.00 (cost of one application); $1331 × 5 calculation: 6030 UITs multiplied by $50 equals 2 17 CFR 270.19b–1(c)(1). applications = $6655 total cost. $301,500.

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imposed by rule 19b–1 is $326,500 0095, SEC File No. 270–118. SECURITIES AND EXCHANGE ($301,500 plus $25,000 equals Notice is hereby given that, pursuant COMMISSION $326,500). to the Paperwork Reduction Act of 1995 Submission for OMB Review; Based on these calculations, the total (44 U.S.C. 3501 et seq.), the Securities Comment Request number of respondents for rule 19b–1 is and Exchange Commission estimated to be 6035 (6030 UIT (‘‘Commission’’) has submitted to the Upon written request, copies available portfolios + 5 funds filing an application Office of Management and Budget the under rule 19b–1(e)), the total annual from: Securities and Exchange request for extension of the previously Commission, Office of Investor hour burden is estimated to be 20 hours, approved collection of information and the total annual cost burden is Education and Advocacy, discussed below. Washington, DC 20549–0213. estimated to be $326,500. These Rule 236 (17 CFR 230.236) under the estimates of average annual burden Securities Act of 1933 (‘‘Securities Act’’) Extension: Regulation S–T; OMB Control No. hours and costs are made solely for (15 U.S.C. 77a et seq.) requires issuers 3235–0424; SEC File No. 270–375 purposes of the Paperwork Reduction choosing to rely on an exemption from Notice is hereby given that, pursuant Act. The collections of information Securities Act registration for the required by 19b–1(c) and 19b–1(e) are to the Paperwork Reduction Act of 1995 issuance of fractional shares, scrip (44 U.S.C. 3501 et seq.), the Securities necessary to obtain the benefits certificates or order forms, in described above. Responses will not be and Exchange Commission connection with a stock dividend, stock (‘‘Commission’’) has submitted to the kept confidential. An agency may not split, reverse stock split, conversion, conduct or sponsor, and a person is not Office of Management and Budget a merger or similar transaction, to furnish request for extension of the previously required to respond to, a collection of specified information to the information unless it displays a approved collection of information Commission in writing at least 10 days discussed below. currently valid control number. prior to the offering. The information is Regulation S–T (17 CFR 232.10— Written comments are invited on: (a) needed to provide public notice that an 232.313 and 232.401—232.402 and Whether the collection of information is issuer is relying on the exemption. 232.501) sets forth the general rules and necessary for the proper performance of Public companies are the likely regulations for electronic filings. the functions of the Commission, respondents. The information is needed Registrants who have to file including whether the information has to establish qualification for reliance on electronically are the likely practical utility; (b) the accuracy of the the exemption. The information respondents. Regulation S–T is only Commission’s estimate of the burden of provided by Rule 236 is required to assigned one burden hour for the collection of information; (c) ways to obtain or retain benefits. All information administrative convenience because it enhance the quality, utility, and clarity provided to the Commission is available does not directly impose any of the information collected; and (d) to the public for review upon request. information collection requirements. ways to minimize the burden of the Approximately 10 respondents file the The electronic filing requirement is collection of information on information required by Rule 236 at an mandatory for all companies required to respondents, including through the use estimated 1.5 hours per response for a file electronically. All information of automated collection techniques or total of 15 annual burden hours (1.5 provided to the Commission is available other forms of information technology. hours per response × 10 responses). Consideration will be given to to the public for review. An agency may not conduct or comments and suggestions submitted in sponsor, and a person is not required to An agency may not conduct or writing within 60 days of this respond to, a collection of information sponsor, and a person is not required to publication. unless it displays a currently valid respond to, a collection of information Please direct your written comments control number. unless it displays a currently valid to R. Corey Booth, Director/Chief Written comments regarding the control number. Information Officer, Securities and above information should be directed to Written comments regarding the Exchange Commission, C/O Shirley the following persons: (i) Desk Officer above information should be directed to Martinson, 6432 General Green Way, for the Securities and Exchange the following persons: (i) Desk Officer Alexandria, VA 22312; or send an Commission, Office of Information and for the Securities and Exchange e-mail to: [email protected]. Regulatory Affairs, Office of Commission, Office of Information and Dated: June 30, 2008. Management and Budget, Room 10102, Regulatory Affairs, Office of Florence E. Harmon, New Executive Office Building, Management and Budget, Room 10102, Acting Secretary. Washington, DC 20503 or send an e- Executive Office Building, Washington, [FR Doc. E8–15356 Filed 7–7–08; 8:45 am] mail to DC 20503 or send an e-mail to: BILLING CODE 8010–01–P [email protected]; and [email protected]; and (ii) R. Corey Booth, Director/Chief (ii) R. Corey Booth, Director/Chief Information Officer, Securities and Information Officer, Securities and SECURITIES AND EXCHANGE Exchange Commission, c/o Shirley Exchange Commission, C/O Shirley COMMISSION Martinson, 6432 General Green Way, Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an Alexandria, VA 22312; or send an e- Submission for OMB Review; e-mail to: [email protected]. mail to: [email protected]. Comment Request Comments must be submitted to OMB Comments must be submitted to OMB Upon Written Request, Copies Available within 30 days of this notice. within 30 days of this notice. From: Securities and Exchange Dated: June 30, 2008. Dated: June 30, 2008. Commission, Office of Investor Florence E. Harmon, Florence E. Harmon, Education and Advocacy, Acting Secretary. Acting Secretary. Washington, DC 20549–0213. [FR Doc. E8–15357 Filed 7–7–08; 8:45 am] [FR Doc. E8–15361 Filed 7–7–08; 8:45 am] Extension: Rule 236, OMB Control No. 3235– BILLING CODE 8010–01–P BILLING CODE 8010–01–P

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SECURITIES AND EXCHANGE U.S. custodian bank as agent to access collection and corporate action COMMISSION DTC for position management as it processing on securities held in DTC’s currently does for all other U.S. issues omnibus account at ECB in accordance [Release No. 34–58055; File No. SR–DTC– eligible for settlement at ECB. 2007–12] with ECB procedures. DTC in turn Participants of ECB and DTC have the would provide its participants with Self-Regulatory Organizations; The ability to reposition their inventory of principal and income payment and Depository Trust Company; Order NYSE Euronext common stock between corporate actions services without the Granting Approval of a Proposed Rule ECB and DTC through this arrangement. need for its participants to interact Change Relating to DTC Opening an The proposed rule change allows a directly with ECB. Omnibus Account at Euroclear Bank similar arrangement with ECB for The primary benefits of the rule custody and repositioning movements change are that it should facilitate the June 27, 2008. of non-U.S. dually-listed securities held expanded dual listing programs of on deposit with ECB to the extent such I. Introduction marketplaces operating in the U.S. and securities are made eligible for listing Europe and that it should help to reduce On September 12, 2007, The and trading on U.S. domestic markets. the number of transactions that fail on Depository Trust Company (‘‘DTC’’) Under the new rule, ECB would act as settlement date because of inefficient filed with the Securities and Exchange DTC’s custodian for issues on deposit at methods of inventory repositioning. The Commission (‘‘Commission’’) proposed ECB-controlled CSDs as well as at other realization of these benefits would be rule change SR–DTC–2007–12 pursuant CSDs in ECB’s subcustody network. consistent with DTC’s objectives of to Section 19(b)(1) of the Securities This arrangement would enable DTC providing efficient book-entry clearance Exchange Act of 1934 (‘‘Act’’).1 Notice participants to settle trades in foreign and settlement facilities and of reducing of the proposal was published in the issues in U.S. dollars executed on a U.S. risk to DTC participants by Federal Register on November 1, 2007.2 domestic market through the normal immobilizing certificates. One comment letter was received. For clearance and DTC book-entry the reasons discussed below, the settlement processes. Further, DTC/ECB III. Comments Commission is granting approval of the common participants would be able to The Commission received one proposed rule change. reposition share balances between their comment to the proposed rule change.3 DTC account and their ECB account II. Description The comment letter was written on either directly or through their behalf of the Operations Committee of The proposed rule change allows DTC custodian agent to facilitate settlements the Securities Industry and Financial to open an omnibus account at of trades in these dually-listed foreign Markets Association (‘‘SIFMA’’). The Euroclear Bank NA/SV (‘‘ECB’’) in order issues executed in either marketplace. comment letter strongly supported the to facilitate the repositioning of Specifically, the new account would proposed rule change and stated that it inventory between European markets allow for European securities that are would facilitate the efficient processing and U.S. markets. This would enable listed in the U.S. to be custodied by ECB of cross-border securities transactions more efficient inventory positioning by for DTC. The securities would be and reduce the risk and cost of such participants of DTC and ECB as needed credited to an account that is transactions. in order to settle securities at ECB and maintained by or on behalf of ECB at a at DTC. European CSD. The process for creating IV. Discussion The rule change is designed to a position at DTC would be initiated by Section 17A(b)(3)(F) of the Act accommodate dual listing of certain a participant of the European CSD requires that the rules of a clearing foreign and domestic securities on both delivering the securities free to ECB’s agency be designed to promote the U.S. and European trading platforms. account or to the account of ECB’s agent prompt and accurate clearance and One recent example of such a dual at the European CSD. ECB would credit settlement of securities transactions and listing is the common stock of NYSE DTC’s account at ECB, and DTC would to assure the safeguarding of securities Euronext Group. This U.S.-issued then credit the securities to the DTC and funds in the custody or control of security, which resulted from the participant account designated by the the clearing agency or for which it is merger of the NYSE Group and delivering participant. The securities responsible.4 The proposed rule change Euronext, is currently registered, listed, would then be available for use at DTC would allow DTC to establish an and traded in the U.S. on the New York (e.g., to satisfy settlements at DTC). To omnibus account with ECB so that DTC Stock Exchange (‘‘NYSE’’) and in the extent participants need to move participant can reposition securities that position back to Europe to, for among Europe on the Euronext platform. It is are listed on both U.S. and European other reasons, facilitate settlements eligible for settlement at both DTC and securities markets for settlement there, the process would be reversed. ECB. When traded on the NYSE, the without physically moving certificates Under this arrangement, for a security security is cleared and settled in the outside of DTC’s system. This for which physical certificates have continuous net settlement (‘‘CNS’’) arrangement should reduce much of the been issued, there would be no need for system operated by National Securities time, expense, costs, and risks transporting the physical certificates to Clearing Corporation (‘‘NSCC’’) with the associated with physically moving or from DTC. Any reregistration of associated security movements taking certificates between ECB and DTC. securities from one holder to another place at DTC. When traded on Euronext, The Commission also believes that that is required due to the market the transaction is eligible for clearance DTC has established the omnibus practices of any particular market would through the facilities of LCHClearnet SA account with ECB in a manner that is be processed by the European registrar and settlement effected by ECB through consistent with its safeguarding for the issue. Any position at DTC the local central securities depository obligations under the Act. In order to (‘‘CSD’’). ECB utilizes the services of a would be represented by securities that are registered in the name of the 3 Letter from Noland Cheng, Chairman, 1 15 U.S.C. 78s(b)(1). European CSD, ECB or ECB’s agent. Operations Committee, Securities Industry and 2 Securities Exchange Act Release No. 56706 ECB would provide subcustody Financial Markets Association (July 17, 2007). (October 26, 2007). 72 FR 61923. services such as principal and income 4 15 U.S.C. 78q–1(b)(3)(F).

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assure itself that the linking with ECB change to amend NYSE Arca Equities, Violations of Rule 6.1(b) would be is safe and prudent, DTC completed an Inc. (‘‘NYSE Arca Equities’’) Rule 10.12 eligible for MRP disposition. extensive review of such things as: (1) (Minor Rule Plan) (‘‘MRP’’) and related Rule 6.18—Supervision ECB’s operational controls, financial rules that underlie the MRP. On April strength, technology capabilities, and 17, 2008, the Exchange submitted The current language of Rule 6.18(b) audit arrangements; (2) Belgian Amendment No. 1 to the proposed rule provides that only ETP Holders for regulation of ECB; and (3) application change. The proposed rule change, as whom the Exchange is the Designated and effect of Belgian laws as they amended, was published for comment Examining Authority (‘‘DEA’’) are pertain to the account. in the Federal Register on April 29, subject to its supervisory requirements. Accordingly, the Commission finds 2008.3 The Commission received no The Exchange proposed to amend Rule that the proposed rule change is comments on the proposal. On June 11, 6.18 to provide that all ETP Holders, designed to promote the prompt and 2008, the Exchange filed Amendment regardless of DEA, are subject to accurate clearance and settlement of No. 2 to the proposed rule change.4 This Exchange’s supervisory requirements. securities transactions and to assure the notice and order solicits comments from The Exchange also proposed to make safeguarding of securities and funds in interested persons on Amendment No. 2 violations of Rule 6.18 eligible for MRP the custody or control of the DTC or for and approves the proposal, as modified disposition. which it is responsible. by Amendment No. 2, on an accelerated Rule 7.38(c)—Odd and Mixed Lots— V. Conclusion basis. Prohibitions On the basis of the foregoing, the II. Description of the Amended The Exchange proposed to replace the Commission finds that the proposed Proposal language in the current paragraph (c) of rule change is consistent with the Rule 7.38 that presently states that all The Exchange proposed to amend its requirements of the Act and in odd-lot violations shall be considered Minor Rule Plan and related rules that particular Section 17A of the Act and conduct inconsistent with just and 5 underlie the MRP, including Rules the rules and regulations thereunder. equitable principles of trade and to 5.2(b)(1) (Notification Requirements for It is therefore ordered, pursuant to provide instead that it shall be Offering of Securities), 6.1 (Adherence Section 19(b)(2) of the Act, that the prohibited for ETP Holders, any to Law), 6.18 (Supervision), 7.38(c) proposed rule change (File No. SR– associated persons thereof, and any (Odd and Mixed Lots—Prohibitions), DTC–2007–12) be and hereby is other participants to engage in these and 9.2(c) (Customer Records). approved. violations. The Exchange stated that For the Commission by the Division of Rule 5.2(b)(1)—Notification many violations of Exchange odd-lot Trading and Markets, pursuant to delegated Requirements for Offering of Securities rules do not necessarily involve the bad authority.6 faith or unethical conduct. Florence E. Harmon, The Exchange proposed to correct an Acting Secretary. error that was inadvertently created Rule 9.2(c)—Customer Records [FR Doc. E8–15354 Filed 7–7–08; 8:45 am] when the NYSE Arca Rules were The Exchange proposed to change BILLING CODE 8010–01–P updated to replace the obsolete term Rule 9.2(c) by adding the word ‘‘Member’’ with the term ‘‘ETP Holder.’’ ‘‘current,’’ to clarify and reiterate the The Exchange stated that the intended obligation that firms with customer SECURITIES AND EXCHANGE reference in this rule is to all members accounts must not only keep records of COMMISSION of a syndicate and proposed, therefore, their customer accounts, but also must to reinsert the correct term ‘‘members.’’ keep them current. [Release No. 34–58066; File No. SR– NYSEArca–2008–32] Rule 6.1—Adherence to Law and Good Rule 10.12—Minor Rule Plan Business Practices Self-Regulatory Organizations; NYSE The Exchange proposed several Arca, Inc.; Notice of Filing of modifications to the MRP, including to: The Exchange designated existing • Amendment No. 2 to Proposed Rule Rule 6.1 as Rule 6.1(a) and substituted Make several trading rules and Change Relating to the Minor Rule the word ‘‘fair’’ in the rule’s record keeping rules eligible for MRP Plan and Order Granting Accelerated disposition; 6 requirement that certain actions of ‘‘any • Approval to the Proposed Rule Change ETP Holder shall at all times comply Modify the Recommended Fine as Modified by Amendment No. 2 with fair and equitable principles of Schedule in Rule 10.12(i) so that MRP trade’’ with the word ‘‘just.’’ The fines are escalated based not on the June 30, 2008. Exchange also proposed to adopt Rule number of violations but on the number I. Introduction 6.1(b), which would require all ETP of times the Exchange has imposed one or more MRP fines upon an ETP Holder On March 18, 2008, NYSE Arca, Inc. Holders, their associated persons, and other participants to adhere to the for the violation of a particular rule; (‘‘NYSE Arca’’ or the ‘‘Exchange’’) filed • Allow Exchange enforcement staff, with the Securities and Exchange principles of good business practice in the conduct of their business affairs.5 as part of an MRP disposition of certain Commission (‘‘Commission’’), pursuant supervisory-related offenses, not only to to Section 19(b)(1) of the Securities impose a monetary fine, but also to 1 3 Exchange Act of 1934 (‘‘Act’’) and Rule See Securities Exchange Act Release No. 56733 require the violator to make specified 19b–4 thereunder,2 a proposed rule (April 22, 2008), 73 FR 23287 (‘‘Notice’’). 4 See partial Amendment dated June 11, 2008 changes to its supervisory or other (‘‘Amendment No. 2’’). The text of Amendment No. compliance procedures; 5 In approving the proposed rule change, the 2 is available on the Commission’s Web site • Enable the Exchange to require Commission considered the proposal’s impact on (http://www.sec.gov/rules/sro/nysearca.shtml ), at violators of Rule 2.21 (Employees of efficiency, competition and capital formations. 15 the Commission’s Public Reference Room, at NYSE U.S.C. 78c(f). Arca’s principal office, and on NYSE Arca’s Web ETP Holders Registration) to remit all 6 17 CFR 200.30–3(a)(12). site (http://www.nyse.com). 1 15 U.S.C. 78s(b)(1). 5 This rule is based on the current NYSE Rule 6 See Notice, 73 FR at 23288, for a detailed 2 17 CFR 240.19b–4. 401(a). description of these additions.

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the fees that they should have paid in in view of the minor nature of the Paper Comments connection with the registration particular violation. • pursuant to Rule 2.21, in addition to any Send paper comments in triplicate In approving this proposed rule to Secretary, Securities and Exchange MRP fines; and change, the Commission in no way • Remove from Rule 10.12(f) the Commission, 100 F Street, NE., minimizes the importance of provision requiring the Business Washington, DC 20549–1090. compliance with NYSE Arca rules and Conduct Committee to review the all other rules subject to the imposition All submissions should refer to File issuance of ‘‘each citation’’ as the Number SR–NYSEArca–2008–32. This concept of ‘‘floor citations’’ does not of fines under the MRP. The Commission believes that the violation file number should be included on the exist under the equity rules and was subject line if e-mail is used. To help the inadvertently inserted into the MRP. of any self-regulatory organization’s rules, as well as Commission rules, is a Commission process and review your II. Discussion serious matter. However, the Exchange comments more efficiently, please use The Commission finds that the provides a reasonable means of only one method. The Commission will proposed rule change is consistent with addressing rule violations that do not post all comments on the Commission’s the requirements of the Act and the rise to the level of requiring formal Internet Web site (http://www.sec.gov/ rules and regulations thereunder, disciplinary proceedings, while rules/sro.shtml). Copies of the applicable to a national securities providing greater flexibility in handling submission, all subsequent exchange.7 In particular, the certain violations. The Commission amendments, all written statements Commission believes that the proposed expects that the Exchange would with respect to the proposed rule rule change relating to both the MRP continue to conduct surveillance with change that are filed with the and the related underlying rules is due diligence and make a determination Commission, and all written consistent with Section 6(b)(5) of the based on its findings, on a case-by-case communications relating to the Act,8 which requires that the rules of an basis, whether a fine of more or less proposed rule change between the exchange be designed to promote just than the recommended amount is Commission and any person, other than and equitable principles of trade, to appropriate for MRP disposition or those that may be withheld from the remove impediments to and to perfect whether a violation requires formal public in accordance with the the mechanism of a free and open disciplinary action. provisions of 5 U.S.C. 552, will be market and a national market system, available for inspection and copying in The Commission also finds good and, in general, to protect investors and the Commission’s Public Reference cause for approving the proposed rule the public interest. Room, 100 F Street, NE., Washington, The Commission further believes that change, as modified by Amendment No. DC 20549, on official business days the proposed changes to the Exchange’s 2, prior to the thirtieth day after between the hours of 10 a.m. and 3 p.m. MRP are consistent with Sections 6(b)(1) publishing notice of Amendment No. 2 Copies of such filing also will be and 6(b)(6) of the Act,9 which require in the Federal Register. In Amendment available for inspection and copying at that the rules of an exchange enforce No. 2, the Exchange eliminated the principal office of NYSE Arca. All compliance with, and provide references to Rule 6.15 (Miscellaneous comments received will be posted appropriate discipline for, violations of Prohibitions), which it originally without change; the Commission does Commission and Exchange rules. In planned to include in this proposed rule not edit personal identifying addition, because the MRP provides change but will instead handle in a information from submissions. You procedural rights to contest the fine and separate rule filing. In addition, in should submit only information that permits disciplinary proceedings on the Amendment No. 2, the Exchange you wish to make available publicly. All matter, the Commission believes that proposed certain technical and non- submissions should refer to File the MRP, as amended by this proposal, substantive changes to the proposal. Number SR–NYSEArca–2008–32 and provides a fair procedure for the These changes do not raise any new or should be submitted on or before July disciplining of members and persons substantial issues. Accordingly, the 29, 2008. associated with members, consistent Commission believes good cause exists with Sections 6(b)(7) and 6(d)(1) of the to approve the proposal, as modified by III. Conclusion 10 Act. Finally, the Commission finds Amendment No. 2, on an accelerated It is therefore ordered, pursuant to that the proposal is consistent with the basis. Section 19(b)(2) of the Act 12 and Rule public interest, the protection of B. Solicitation of Comments 19d–1(c)(2) under the Act 13 that the investors, or otherwise in furtherance of proposed rule change (SR–NYSEArca– the purposes of the Act, as required by Interested persons are invited to 2008–32), as modified by Amendment 11 Rule 19d–1(c)(2) under the Act, which submit written data, views, and No. 2 be, and it hereby is, approved on governs minor rule violation plans. The arguments concerning Amendment No. an accelerated basis and declared Commission believes that the proposed 2, including whether Amendment No. 2 effective. rule change would strengthen the is consistent with the Act. Comments Exchange’s ability to carry out its For the Commission, by the Division of may be submitted by any of the Trading and Markets, pursuant to delegated oversight and enforcement following methods: responsibilities as a self-regulatory authority.14 organization in cases where full Electronic Comments Florence E. Harmon, disciplinary proceedings are unsuitable Acting Secretary. • Use the Commission’s Internet [FR Doc. E8–15355 Filed 7–7–08; 8:45 am] 7 In approving this proposal, the Commission has comment form (http://www.sec.gov/ considered its impact on efficiency, competition, rules/sro.shtml); or BILLING CODE 8010–01–P and capital formation. See 15 U.S.C. 78c(f). • Send an e-mail to rule- 8 15 U.S.C. 78f(b)(5). 12 15 U.S.C. 78s(b)(2). 9 15 U.S.C. 78f(b)(1) and 78f(b)(6). [email protected]. Please include File 13 17 CFR 240.19d–1(c)(2). 10 15 U.S.C. 78f(b)(7) and 78f(d)(1). Number SR–NYSEArca–2008–32 on the 14 17 CFR 200.30–3(a)(12) and 17 CFR 200.30– 11 17 CFR 240.19d–1(c)(2). subject line. 3(a)(44).

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SECURITIES AND EXCHANGE System (‘‘DRS’’) Limited Participants allow for the coverage of larger COMMISSION (‘‘Limited Participants’’) and brokers transactions under a single Surety Bond. that are DRS Participants DTC is proposing to provide Users of [Release No. 34–58042; File No. SR–DTC– (‘‘Participants’’ and, together with Profile an option to procure a Surety 2008–04] Limited Participants, ‘‘Users’’).5 Profile Bond with a higher coverage limit then Self-Regulatory Organizations; The allows Participants to submit an currently offered. Under the proposal, Depository Trust Company; Notice of investor’s instruction to move a share the Surety Bond with the higher Filing and Immediate Effectiveness of position from the investor’s Limited coverage limit will have a limit of $7.5 Proposed Rule To Establish an Participant account to the Participant’s million per occurrence and an annual Alternate Choice in DTC Profile Surety account at DTC (‘‘Electronic Participant aggregate limit of $15 million. Users of Instruction’’). Profile also allows Providers this surety provider will be required to Limited Participants to submit an pay an annual premium of $6,000 to a June 26, 2008. investor’s instruction to move a share surety provider and a DTC Pursuant to Section 19(b)(1) of the position from the Participant’s account administration fee of $250. The intent of Securities Exchange Act of 1934 at DTC to an account maintained by the this program is to account for the larger (‘‘Act’’),1 notice is hereby given that on Limited Participant (‘‘Electronic Limited value Profile transactions that DRS June 5, 2008, the Depository Trust Participant Instruction’’ and, together currently handles, to provide alternate Company (‘‘DTC’’) filed with the with Electronic Participant Instruction, surety options to Users, and for Securities and Exchange Commission ‘‘Electronic Instructions’’). A User contingency planning. Users will be (‘‘Commission’’) the proposed rule submitting an Electronic Instruction permitted to participate with each change described in Items I, II, and III through Profile is required to agree to a surety provider, but will be required to below, which items have been prepared Participant Terminal System (‘‘PTS’’) select only one provider per Profile primarily by DTC. DTC filed the screen indemnity (‘‘Screen transaction. 6 proposal pursuant to Section Indemnity’’). The surety company issuing the 19(b)(3)(A)(iii) of the Act 2 and Rule Under DTC’s Profile Surety Program Surety Bond will either be a company (‘‘PSP’’),7 all Users of Profile must 19b–4(f)(4) 3 thereunder so that the selected by DTC as the administrator of procure a surety bond relating to their proposal was effective upon filing with such program or a surety company obligations under such indemnity.8 PSP the Commission. The Commission is selected by the DRS User. If a User requires a surety bond to back the publishing this notice to solicit elects to use a surety company other representations a User makes under the comments on the rule change from than the one DTC has selected, the Screen Indemnity in the case of a User interested parties. surety company selected will be breaching its representation of authority required to issue its Surety Bond in a I. Self-Regulatory Organization’s to initiate the transaction (‘‘Surety form consistent with the bond issued by Statement of the Terms of Substance of Bond’’). Participation in PSP requires the surety company selected by DTC. the Proposed Rule Change the payment of an annual premium of $3,150 to a surety provider and a DTC The proposed rule change is The purpose of the rule change is to 9 administration fee of $250. The current consistent with Section 17A of the Act, establish an alternate choice in DTC as amended, because it modifies an Surety Providers. PSP surety provider provides for a coverage limit of $3 million per existing service by establishing an II. Self-Regulatory Organization’s occurrence, with an annual aggregate alternate choice for surety providers to Statement of the Purpose of, and limit of $6 million, which may not provide a broader range of options to Statutory Basis for, the Proposed Rule safeguard transactions processed within Change 5 For a description of Profile, see Securities the service. Exchange Act Release No. 41862 (September 10, In its filing with the Commission, 1999), 64 FR 51162 (September 21, 1999) (order (B) Self-Regulatory Organization’s DTC included statements concerning approving implementation of Profile). Statement on Burden on Competition 6 the purpose of and basis for the The Screen Indemnity protects, among others, DTC does not believe that the proposed rule change and discussed any the party receiving the share position from liability in connection with the transaction arising from a proposed rule change will have any comments it received on the proposed User’s breach of the representation of authority and impact or impose any burden on rule change. The text of these statements consent to initiate the transaction. For a broader competition. may be examined at the places specified description of the Screen Indemnity, see Securities Exchange Act Release No. 42704 (April 19, 2000), (C) Self-Regulatory Organization’s in Item IV below. DTC has prepared 65 FR 24242 (April 25, 2000) (order approving summaries, set forth in sections (A), (B), modification of Profile to incorporate use of the Statement on Comments on the and (C) below, of the most significant Screen Indemnity). Proposed Rule Change Received From aspects of these statements.4 7 For a description of PSP, see Securities Members, Participants, or Others Exchange Act Release No. 43586 (November 17, (A) Self-Regulatory Organization’s 2000), 65 FR 70745 (November 27, 2000). Written comments relating to the Statement of the Purpose of, and 8 Pursuant to the DTC Profile Modification proposed rule change have not yet been Statutory Basis for, the Proposed Rule System Indemnity Insurance Program (‘‘Indemnity solicited or received. DTC will notify Insurance Program’’), Users of Profile may procure the Commission of any written Change Profile Modification System Indemnity Insurance (‘‘Insurance’’) relating to a particular transaction comments received by DTC. DTC’s Profile Modification System according to the value of each individual securities (‘‘Profile’’) is an electronic transaction rather than procuring a Surety Bond. III. Date of Effectiveness of the communication hub between transfer The Insurance option provides a coverage limit of Proposed Rule Change and Timing for agents that are Direct Registration $25 million per occurrence per policy and an Commission Action annual aggregate limit of $100 million. In addition to any pass-through fee from the insurer, DTC The foregoing proposed rule change 1 15 U.S.C. 78s(b)(1). charges Users participating in the Indemnity has become effective upon filing 2 15 U.S.C. 78s(b)(3)(A)(iii). Insurance Program an annual administration fee of pursuant to Section 19(b)(3)(A)(iii) of 3 17 CFR 240.19b–4(f)(4). $250 and a $2.50 per transaction fee. Securities 4 The Commission has modified the text of the Exchange Release Act No. 52422 (September 14, summaries prepared by DTC. 2005), 70 FR 55196 (September 20, 2005). 9 15 U.S.C. 78q-1.

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the Act 10 and Rule 19b-4(f)(4) 11 the Commission’s Public Reference Primary Counties: (Physical Damage thereunder because the proposed rule Section, 100 F Street, NE., Washington, and Economic Injury Loans): change effects a change in an existing DC 20549, on official business days Hendricks, Tippecanoe. service of a registered clearing agency between the hours of 10 a.m. and 3 p.m. Contiguous Counties: (Economic Injury that: (i) Does not adversely affect the Copies of such filings also will be Loans Only): safeguarding of securities or funds in available for inspection and copying at Indiana: Benton, Carroll, White. the custody or control of the clearing the principal office of DTC and on All other information in the original agency or for which it is responsible and DTC’s Web site at http://www.dtcc.com/ declaration remains unchanged. (ii) does not significantly affect the downloads/legal/rule_filings/2008/dtc/ respective rights or obligations of the 2008–04.pdf. All comments received (Catalog of Federal Domestic Assistance clearing agency or persons using the will be posted without change; the Numbers 59002 and 59008) service. At any time within sixty days Commission does not edit personal Herbert L. Mitchell, of the filing of the proposed rule change, identifying information from Associate Administrator for Disaster the Commission may summarily submissions. You should submit only Assistance. abrogate such rule change if it appears information that you wish to make [FR Doc. E8–15420 Filed 7–7–08; 8:45 am] to the Commission that such action is available publicly. All submissions BILLING CODE 8025–01–P necessary or appropriate in the public should refer to File Number SR-DTC– interest, for the protection of investors, 2008–04 and should be submitted on or or otherwise in furtherance of the before July 29, 2008. SMALL BUSINESS ADMINISTRATION purposes of the Act. For the Commission by the Division of IV. Solicitation of Comments Trading and Markets, pursuant to delegated [Disaster Declaration # 11308] authority.12 Interested persons are invited to Florence E. Harmon, Illinois Disaster # IL–00016 submit written data, views, and Acting Secretary. arguments concerning the foregoing, AGENCY: U.S. Small Business including whether the proposed rule [FR Doc. E8–15353 Filed 7–7–08; 8:45 am] Administration. BILLING CODE 8010–01–P change is consistent with the Act. ACTION: Notice. Comments may be submitted by any of the following methods: SUMMARY: This is a Notice of the SMALL BUSINESS ADMINISTRATION Electronic Comments Presidential declaration of a major disaster for Public Assistance Only for • [Disaster Declaration # 11286 and # 11287] Use the Commission’s Internet the State of Illinois (FEMA–1771–DR), comment form (http://www.sec.gov/ Indiana Disaster Number IN–00019 dated 06/24/2008. rules/sro.shtml) or Incident: Severe Storms and Flooding. • AGENCY: U.S. Small Business Send an e-mail to rule- Incident Period: 06/01/2008 and Administration. [email protected]. Please include File continuing. Number SR–DTC–2008–04 on the ACTION: Amendment 5. Effective Date: 06/24/2008. subject line. SUMMARY: This is an amendment of the Physical Loan Application Deadline Paper Comments Presidential declaration of a major Date: 08/25/2008. • Send paper comments in triplicate disaster for the State of Indiana (FEMA– ADDRESSES: Submit completed loan to Secretary, Securities and Exchange 1766–DR), dated 06/11/2008. applications to: U.S. Small Business Commission, 100 F Street, NE., Incident: Severe Storms, Flooding, Administration, Processing and Washington, DC 20549–1090. and Tornadoes. Disbursement Center, 14925 Kingsport All submissions should refer to File Incident Period: 05/30/2008 and Road, Fort Worth, TX 76155. Number SR–DTC–2008–04. This file continuing. FOR FURTHER INFORMATION CONTACT: Effective Date: 06/30/2008. number should be included on the Alan Escobar, Office of Disaster Physical Loan Application Deadline subject line if e-mail is used. To help the Assistance, U.S. Small Business Date: 08/11/2008. Commission process and review your EIDL Loan Application Deadline Date: Administration, 409 3rd Street, Suite comments more efficiently, please use 03/11/2009. 6050, Washington, DC 20416. only one method. The Commission will ADDRESSES: Submit completed loan SUPPLEMENTARY INFORMATION: Notice is post all comments on the Commission’s hereby given that as a result of the Internet Web site (http://www.sec.gov/ applications to: U.S. Small Business Administration, Processing and President’s major disaster declaration on rules/sro.shtml). Copies of the 06/24/2008, applications for Private submission, all subsequent Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. Non-Profit organizations that provide amendments, all written statements essential services of a governmental FOR FURTHER INFORMATION CONTACT: A. with respect to the proposed rule nature may file disaster loan Escobar, Office of Disaster Assistance, change that are filed with the applications at the address listed above U.S. Small Business Administration, Commission, and all written or other locally announced locations. communications relating to the 409 3rd Street, SW., Suite 6050, Washington, DC 20416. The following areas have been proposed rule change between the determined to be adversely affected by SUPPLEMENTARY INFORMATION: Commission and any person, other than The notice the disaster: those that may be withheld from the of the Presidential disaster declaration public in accordance with the for the State of INDIANA, dated 06/11/ Primary Counties: provisions of 5 U.S.C. 552, will be 2008 is hereby amended to include the Adams, Calhoun, Clark, Coles, available for inspection and copying in following areas as adversely affected by Crawford, Cumberland, Hancock, the disaster: Henderson, Jasper, Lawrence, 10 15 U.S.C. 78s(b)(3)(A)(iii). Mercer, Pike, Rock Island. 11 17 CFR 240.19b-4(f)(4). 12 17 CFR 200.30–3(a)(12). The Interest Rates are:

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Percent Contiguous Counties (Economic Injury FOR FURTHER INFORMATION CONTACT: A. Loans Only): Escobar, Office of Disaster Assistance, Other (Including Non-Profit Orga- Illinois: Boone, Brown, Champaign, U.S. Small Business Administration, nizations) With Credit Available Clay, Cook, Dekalb, Effingham, 409 3rd Street, SW., Suite 6050, Elsewhere ...... 5.250 Henry, Knox, Mcdonough, Washington, DC 20416. Businesses and Non-Profit Orga- Mchenry, Moultrie, Ogle, Piatt, SUPPLEMENTARY INFORMATION: The notice nizations Without Credit Avail- Pike, Richland, Rock Island, able Elsewhere ...... 4.000 of the Presidential disaster declaration Schuyler, Shelby, Stephenson, for the State of Iowa, dated 05/27/2008 The number assigned to this disaster Vermilion, Wabash, Warren. is hereby amended to include the Iowa: Des Moines, Lee, Louisa. for physical damage is 11308. following areas as adversely affected by Indiana: Knox, Sullivan, Vermillion, the disaster: (Catalog of Federal Domestic Assistance Vigo. Number 59008) Primary Counties: (Physical Damage Missouri: Clark, Lewis, Marion. and Economic Injury Loans): Boone, Wisconsin: Green, Kenosha, Rock. Herbert L. Mitchell, Franklin, Hamilton, Wright, Associate Administrator for Disaster The Interest Rates are: Webster, Scott. Assistance. Contiguous Counties: (Economic Injury Percent [FR Doc. E8–15451 Filed 7–7–08; 8:45 am] Loans Only): Iowa: Calhoun, Greene. BILLING CODE 8025–01–P Homeowners With Credit Avail- able Elsewhere ...... 5.375 All other information in the original Homeowners Without Credit declaration remains unchanged. SMALL BUSINESS ADMINISTRATION Available Elsewhere ...... 2.687 (Catalog of Federal Domestic Assistance Businesses With Credit Available [Disaster Declaration # 11306 and # 11307] Numbers 59002 and 59008) Elsewhere ...... 8.000 Illinois Disaster # IL–00015 Businesses & Small Agricultural Herbert L. Mitchell, Cooperatives Without Credit Associate Administrator for Disaster AGENCY: U.S. Small Business Available Elsewhere ...... 4.000 Assistance. Other (Including Non-Profit Orga- Administration. [FR Doc. E8–15499 Filed 7–7–08; 8:45 am] nizations) With Credit Available ACTION: Notice. Elsewhere ...... 5.250 BILLING CODE 8025–01–P Businesses and Non-Profit Orga- SUMMARY : This is a Notice of the nizations Without Credit Avail- Presidential declaration of a major able Elsewhere ...... 4.000 SMALL BUSINESS ADMINISTRATION disaster for the State of Illinois (FEMA– [Disaster Declaration # 11310] 1771–DR), dated 06/25/2008. (Catalog of Federal Domestic Assistance Incident: Severe Storms, and Numbers 59002 and 59008) Minnesota Disaster # MN–00015 Flooding. Incident Period: 06/01/2008 and Herbert L. Mitchell, AGENCY: U.S. Small Business continuing. Associate Administrator for Disaster Administration. Assistance. Effective Date: 06/25/2008. ACTION: Notice. Physical Loan Application Deadline [FR Doc. E8–15455 Filed 7–7–08; 8:45 am] Date: 08/25/2008. BILLING CODE 8025–01–P SUMMARY: This is a Notice of the Economic Injury (EIDL) Loan Presidential declaration of a major Application Deadline Date: 03/23/2009. disaster for Public Assistance Only for SMALL BUSINESS ADMINISTRATION ADDRESSES: Submit completed loan the State of Minnesota (FEMA–1772– DR), dated 06/25/2008. applications to: U.S. Small Business [Disaster Declaration #11264 and #11265] Incident: Severe Storms and Flooding. Administration, Processing and Iowa Disaster Number IA–00015 Incident Period: 06/07/2008 and Disbursement Center, 14925 Kingsport continuing. Road, Fort Worth, TX 76155. AGENCY: U.S. Small Business Effective Date: 06/25/2008. FOR FURTHER INFORMATION CONTACT: Administration. Physical Loan Application Deadline Alan Escobar, Office of Disaster ACTION: Amendment 5. Date: 08/25/2008. Assistance, U.S. Small Business ADDRESSES: Submit completed loan Administration, 409 3rd Street, SW., SUMMARY: This is an amendment of the applications to: U.S. Small Business Suite 6050, Washington, DC 20416. Presidential declaration of a major Administration, Processing and SUPPLEMENTARY INFORMATION: Notice is disaster for the State of Iowa (FEMA– Disbursement Center, 14925 Kingsport hereby given that as a result of the 1763–DR), dated 05/27/2008. Road, Fort Worth, TX 76155. President’s major disaster declaration on Incident: Severe Storms, Tornadoes, FOR FURTHER INFORMATION CONTACT: 06/25/2008, applications for disaster and Flooding. Alan Escobar, Office of Disaster loans may be filed at the address listed Incident Period: 05/25/2008 and Assistance, U.S. Small Business above or other locally announced continuing. Administration, 409 3rd Street, Suite locations. DATES: Effective Date: 06/25/2008. 6050, Washington, DC 20416. The following areas have been Physical Loan Application Deadline SUPPLEMENTARY INFORMATION: Notice is determined to be adversely affected by Date: 07/28/2008. hereby given that as a result of the the disaster: EIDL Loan Application Deadline Date: President’s major disaster declaration on Primary Counties (Physical Damage and 02/27/2009. 06/25/2008, applications for Private Economic Injury Loans): ADDRESSES: Submit completed loan Non-Profit organizations that provide Adams, Clark, Coles, Crawford, applications to: U.S. Small Business essential services of a governmental Cumberland, Douglas, Edgar, Administration, Processing and nature may file disaster loan Hancock, Henderson, Jasper, Lake, Disbursement Center, 14925 Kingsport applications at the address listed above Lawrence, Mercer, Winnebago. Road, Fort Worth, TX 76155. or other locally announced locations.

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The following areas have been Primary Counties: disaster as beginning 05/22/2008 and determined to be adversely affected by Andrew, Atchison, Buchanan, Cape continuing through 06/24/2008. the disaster: Girardeau, Clark, Holt, Jefferson, All other information in the original Primary Counties: Lewis, Lincoln, Marion, declaration remains unchanged. Fillmore, Freeborn, Houston, Mower. Mississippi, New Madrid, (Catalog of Federal Domestic Assistance The Interest Rates are: Nodaway, Pemiscot, Perry, Pike, Platte, Ralls, Saint Charles, Saint Number 59008) Percent Louis, Saint Louis City, Sainte Herbert L. Mitchell, Genevieve, Scott. Associate Administrator for Disaster Other (Including Non-Profit Orga- The Interest Rates are: Assistance. nizations) With Credit Available Elsewhere ...... 5.250 [FR Doc. E8–15403 Filed 7–7–08; 8:45 am] Percent Businesses and Non-Profit Orga- BILLING CODE 8025–01–P nizations Without Credit Avail- Other (Including Non-Profit Orga- able Elsewhere ...... 4.000 nizations) With Credit Available Elsewhere ...... 5.250 SMALL BUSINESS ADMINISTRATION The number assigned to this disaster Businesses and Non-Profit Orga- for physical damage is 11310. nizations Without Credit Avail- [Disaster Declaration # 11297 and # 11298] (Catalog of Federal Domestic Assistance able Elsewhere ...... 4.000 Number 59008) Nebraska Disaster Number NE–00020 The number assigned to this disaster Herbert L. Mitchell, for physical damage is 11309. AGENCY: U.S. Small Business Associate Administrator for Disaster Administration. Assistance. (Catalog of Federal Domestic Assistance Number 59008) [FR Doc. E8–15452 Filed 7–7–08; 8:45 am] ACTION: Amendment 1. BILLING CODE 8025–01–P Herbert L. Mitchell, Associate Administrator for Disaster SUMMARY: This is an amendment of the Assistance. Presidential declaration of a major SMALL BUSINESS ADMINISTRATION [FR Doc. E8–15453 Filed 7–7–08; 8:45 am] disaster for the State of Nebraska (FEMA–1770–DR), dated 06/20/2008. [Disaster Declaration # 11309] BILLING CODE 8025–01–P Incident: Severe Storms, Tornadoes, Missouri Disaster # MO–00029 and Flooding. SMALL BUSINESS ADMINISTRATION AGENCY: U.S. Small Business Incident Period: 05/22/2008 and Administration. [Disaster Declaration # 11299] continuing through 06/24/2008. ACTION: Notice. Nebraska Disaster Number NE–00021 Effective Date: 06/24/2008. SUMMARY: This is a Notice of the Physical Loan Application Deadline AGENCY: Presidential declaration of a major U.S. Small Business Date: 08/19/2008. Administration. disaster for Public Assistance Only for EIDL Loan Application Deadline Date: the State of Missouri (FEMA–1773–DR), ACTION: Amendment 1. 03/20/2009. dated 06/25/2008. SUMMARY: This is an amendment of the Incident: Severe Storms and Flooding. ADDRESSES: Submit completed loan Incident Period: 06/01/2008 and Presidential declaration of a major applications to: U.S. Small Business continuing. disaster for Public Assistance Only for Administration, Processing and Effective Date: 06/25/2008. the State of Nebraska (FEMA–1770–DR), Disbursement Center, 14925 Kingsport Physical Loan Application Deadline dated 06/20/2008. Road, Fort Worth, TX 76155. Date: 08/25/2008. Incident: Severe Storms, Tornadoes, FOR FURTHER INFORMATION CONTACT: A. ADDRESSES: Submit completed loan and Flooding. Incident Period: 05/22/2008 through Escobar, Office of Disaster Assistance, applications to: U.S. Small Business U.S. Small Business Administration, Administration, Processing and 06/24/2008. Effective Date: 06/24/2008. 409 3rd Street, SW., Suite 6050, Disbursement Center, 14925 Kingsport Washington, DC 20416. Road, Fort Worth, TX 76155. Physical Loan Application Deadline Date: 08/19/2008. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: The notice Alan Escobar, Office of Disaster ADDRESSES: Submit completed loan of the President’s major disaster Assistance, U.S. Small Business applications to: U.S. Small Business declaration for the State of Nebraska, Administration, 409 3rd Street, Suite Administration, Processing and dated 06/20/2008 is hereby amended to 6050, Washington, DC 20416. Disbursement Center, 14925 Kingsport establish the incident period for this Road, Fort Worth, TX 76155. SUPPLEMENTARY INFORMATION: Notice is disaster as beginning 05/22/2008 and hereby given that as a result of the FOR FURTHER INFORMATION CONTACT: A. continuing through 06/24/2008. President’s major disaster declaration on Escobar, Office of Disaster Assistance, All other information in the original 06/25/2008, applications for Private U.S. Small Business Administration, declaration remains unchanged. Non-Profit organizations that provide 409 3rd Street, SW., Suite 6050, Washington, DC 20416. (Catalog of Federal Domestic Assistance essential services of a governmental Numbers 59002 and 59008) nature may file disaster loan SUPPLEMENTARY INFORMATION: The notice applications at the address listed above of the President’s major disaster Herbert L. Mitchell, or other locally announced locations. declaration for Private Non-Profit Associate Administrator for Disaster The following areas have been organizations in the State of Nebraska, Assistance. determined to be adversely affected by dated 06/20/2008, is hereby amended to [FR Doc. E8–15406 Filed 7–7–08; 8:45 am] the disaster: establish the incident period for this BILLING CODE 8025–01–P

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SMALL BUSINESS ADMINISTRATION Incident: Severe Storms, Tornadoes, owned small businesses or SBA’s 8(a) and Flooding. Business Development Program. [Disaster Declaration # 11288 and # 11289] Incident Period: 06/05/2008 and DATES: This waiver is effective July 23, Wisconsin Disaster Number WI–00013 continuing. 2008. Effective Date: 06/26/2008. FOR FURTHER INFORMATION CONTACT: AGENCY: U.S. Small Business Physical Loan Application Deadline Edith G. Butler, Program Analyst, by Administration. Date: 08/13/2008. telephone at (202) 619–0422; by FAX at ACTION: Amendment 3. EIDL Loan Application Deadline Date: (202) 481–1788; or by e-mail 03/13/2009. SUMMARY: This is an amendment of the [email protected]. ADDRESSES: Submit completed loan Presidential declaration of a major SUPPLEMENTARY INFORMATION: Section disaster for the State of Wisconsin applications to: U.S. Small Business Administration, Processing and 8(a)(17) of the Small Business Act (Act), (FEMA—1768—DR), dated 06/14/2008. 15 U.S.C. 637(a)(17), requires that Incident: Severe Storms, Tornadoes, Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. recipients of Federal contracts set aside and Flooding. for small businesses, service-disabled FOR FURTHER INFORMATION CONTACT: A. Incident Period: 06/05/2008 and veteran-owned small businesses, or Escobar, Office of Disaster Assistance, continuing. SBA’s 8(a) Business Development Effective Date: 06/24/2008. U.S. Small Business Administration, Program provide the product of a small Physical Loan Application Deadline 409 3rd Street, SW., Suite 6050, business manufacturer or processor, if Date: 08/13/2008. Washington, DC 20416. the recipient is other than the actual EIDL Loan Application Deadline Date: SUPPLEMENTARY INFORMATION: The notice 03/13/2009. manufacturer or processor of the of the Presidential disaster declaration product. This requirement is commonly ADDRESSES: Submit completed loan for the State of Wisconsin, dated 06/14/ referred to as the Nonmanufacturer applications to: U.S. Small Business 2008 is hereby amended to include the Rule. The SBA regulations imposing Administration, Processing and following areas as adversely affected by this requirement are found at 13 CFR Disbursement Center, 14925 Kingsport the disaster: 121.406(b). Section 8(a)(17)(b)(iv) of the Road, Fort Worth, TX 76155. Primary Counties: (Physical Damage Act authorizes SBA to waive the FOR FURTHER INFORMATION CONTACT: A and Economic Injury Loans): Nonmanufacturer Rule for any ‘‘class of Escobar, Office of Disaster Assistance, Adams, Calumet, Green Lake, products’’ for which there are no small U.S. Small Business Administration, Jefferson, La Crosse, Walworth. business manufacturers or processors 409 3rd Street, SW., Suite 6050, Contiguous Counties: (Economic Injury available to participate in the Federal Washington, DC 20416. Loans Only): market. SUPPLEMENTARY INFORMATION: The notice Minnesota: Winona. As implemented in SBA’s regulations of the Presidential disaster declaration Wisconsin: Brown, Portage, at 13 CFR 121.1202(c), in order to be for the State of Wisconsin, dated 06/14/ Trempealeau, Jackson, Wood. considered available to participate in 2008 is hereby amended to include the All other information in the original the Federal market for a class of following areas as adversely affected by declaration remains unchanged. products, a small business manufacturer the disaster: must have submitted a proposal for a Primary Counties: (Physical Damage (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) contract solicitation or received a and Economic Injury Loans): Dane, contract from the Federal government Juneau, Ozaukee. Herbert L. Mitchell, within the last 24 months. The SBA Contiguous Counties: (Economic Injury Associate Administrator for Disaster defines ‘‘class of products’’ based on six Loans Only): Assistance. digit coding system. The coding system Wisconsin: Jackson. Wood. [FR Doc. E8–15478 Filed 7–7–08; 8:45 am] is the Office of Management and Budget All other information in the original BILLING CODE 8025–01–P North American Industry Classification declaration remains unchanged. System (NAICS). The second is the (Catalog of Federal Domestic Assistance Product and Service Code required as a Numbers 59002 and 59008) SMALL BUSINESS ADMINISTRATION data entry field by the Federal Procurement Data System. Herbert L. Mitchell, Small Business Size Standards: The SBA received a request on May Associate Administrator For Disaster Waiver of the Nonmanufacturer Rule Assistance. 20, 2008, to waive the Nonmanufacturer Rule for Televisions. In response, on [FR Doc. E8–15408 Filed 7–7–08; 8:45 am] AGENCY: U.S. Small Business Administration. June 4, 2008, SBA published in the BILLING CODE 8025–01–P ACTION: Notice to grant Waiver of the Federal Register a notice of intent to Nonmanufacturer Rule for Televisions. waive the Nonmanufacturer Rule for SMALL BUSINESS ADMINISTRATION Televisions. SBA explained in the SUMMARY: The U.S. Small Business notice that it was soliciting comments [Disaster Declaration # 11288 and # 11289] Administration (SBA) is granting a and sources of small business waiver of the Nonmanufacturer Rule for manufacturers of this class of products. Wisconsin Disaster Number WI–00013 Televisions. The basis for waiver is that In response to this notice, no AGENCY: U.S. Small Business no small business manufacturers are comments were received from interested Administration. supplying this class of product to the parties. SBA has determined that there ACTION: Amendment 4. Federal government. The effect of a are no small business manufacturers of waiver would be to allow otherwise this class of product, and is therefore SUMMARY: This is an amendment of the qualified regular dealers to supply the granting the waiver of the Presidential declaration of a major products of any domestic manufacturer nonmanufacturer Rule for Televisions disaster for the State of Wisconsin on a Federal contract set aside for small under NAICS code 334220 and product (FEMA–1768–DR), dated 06/14/2008. businesses; service-disabled veteran- number 5820.

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Dated: July 1, 2008. For more information, please visit our The Interest Rates are: Karen C. Hontz, Web site at http://www.sba.gov/ Director for Government Contracting. ombudsman. Percent [FR Doc. E8–15384 Filed 7–7–08; 8:45 am] Cherylyn Lebon, Homeowners With Credit Avail- BILLING CODE 8025–01–P SBA Committee Management Officer. able Elsewhere ...... 5.375 [FR Doc. E8–15391 Filed 7–7–08; 8:45 am] Homeowners Without Credit Available Elsewhere ...... 2.687 SMALL BUSINESS ADMINISTRATION BILLING CODE 8025–01–P Businesses With Credit Available Elsewhere ...... 8.000 Region VII Regulatory Fairness Board Businesses & Small Agricultural SMALL BUSINESS ADMINISTRATION Cooperatives Without Credit AGENCY: U.S. Small Business [Disaster Declaration # 11295 and # 11296] Available Elsewhere ...... 4.000 Administration, Office of the National Other (Including Non-Profit Orga- Ombudsman. West Virginia Disaster # WV–00009 nizations) With Credit Available Elsewhere ...... 5.250 ACTION: Notice of Federal Regulatory AGENCY: U.S. Small Business Businesses and Non-Profit Orga- Fairness Hearing. Administration. nizations Without Credit Avail- able Elsewhere ...... 4.000 SUMMARY: The SBA is issuing this notice ACTION: Notice. to advise the public of a Federal The number assigned to this disaster Regulatory Fairness Hearing in Kansas SUMMARY: This is a Notice of the Presidential declaration of a major for physical damage is 112956 and for City, MO. The hearing is open to the economic injury is 112960. public however, advance notice of disaster for the State of West Virginia attendance is requested. (FEMA–1769–DR), dated 06/19/2008. (Catalog of Federal Domestic Assistance Incident: Severe Storms, Tornadoes, Numbers 59002 and 59008) DATES: The hearing will be held on Flooding, Mudslides, and Landslides. Herbert L. Mitchell, Tuesday, July 22, 2008 from 1:30 p.m. Incident Period: 06/03/2008 through to 4 p.m. Central Standard Time. 06/07/2008. Associate Administrator for Disaster Assistance. ADDRESS: The hearing will be held at the Effective Date: 06/19/2008. Kansas City District Office, U.S. Small Physical Loan Application Deadline [FR Doc. E8–15421 Filed 7–7–08; 8:45 am] Business Administration, 1000 Walnut, Date: 08/19/2008. BILLING CODE 8025–01–P Suite 500 (Fifth Floor), Kansas, City, Economic Injury (EIDL) Loan MO 64106. Application Deadline Date: 03/17/2009. DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: Pursuant ADDRESSES: Submit completed loan to section 10(a)(2) of the Federal applications to: U.S. Small Business Office of the Secretary Advisory Committee Act (5 U.S.C., Administration, Processing and Appendix 2), SBA Regional Regulatory Disbursement Center, 14925 Kingsport [Docket No. DOT–OST–2008–0202] Fairness Board and the Office of the Road, Fort Worth, TX 76155. National Ombudsman hold Regulatory FOR FURTHER INFORMATION CONTACT: Senior Executive Service Performance Fairness hearings across the nation. Alan Escobar, Office of Disaster Review Boards Membership Issues addressed at these hearings will Assistance, U.S. Small Business AGENCY: Office of the Secretary, be directed to the appropriate Federal Administration, 409 3rd Street, SW., Department of Transportation (DOT). regulatory agency for a high-level Suite 6050, Washington, DC 20416. ACTION: Notice of Performance Review review of fairness of the enforcement SUPPLEMENTARY INFORMATION: Notice is Board (PRB) appointments. action. hereby given that as a result of the The purpose of the hearing is for President’s major disaster declaration on SUMMARY: DOT publishes the names of Business Organizations, Trade 06/19/2008, applications for disaster the persons selected to serve on the Associations, Chambers of Commerce loans may be filed at the address listed various Departmental PRBs as required and related organizations serving small above or other locally announced by 5 U.S.C. 4314(c)(4). business concerns to report experiences locations. FOR FURTHER INFORMATION CONTACT: regarding unfair or excessive Federal The following areas have been Nancy A. Mowry, Director, regulatory enforcement issues affecting determined to be adversely affected by Departmental Office of Human Resource their members. the disaster: Management, (202) 366–4088. FOR FURTHER INFORMATION CONTACT: Gary Primary Counties (Physical Damage and SUPPLEMENTARY INFORMATION: The Cook, District Director, SBA, Kansas Economic Injury Loans): Barbour, persons named below have been City District Office, 1000 Walnut, Suite Doddridge, Gilmer, Harrison, selected to serve on one or more 500, Kansas City, MO 64106, telephone: Jackson, Jefferson, Marion, Taylor, Departmental PRBs. (816) 426–4900, fax: (202) 481–2024, e- Tyler. mail: [email protected]. Anyone Issued in Washington, DC, on June 30, Contiguous Counties (Economic Injury 2008. wishing to testify and/or make a Loans Only): Linda J. Washington, presentation to the Regulatory Fairness West Virginia: Berkeley, Braxton, Board must contact Gary Cook by July Calhoun, Kanawha, Lewis, Mason, Assistant Secretary for Administration. 21, by fax or e-mail in order to be placed Monongalia, Pleasants, Preston, Department of Transportation on the agenda. Putnam, Randolph, Ritchie, Roane, Additionally, if you need Tucker, Upshur, Wetzel, Wirt, Federal Highway Administration accommodations because of a disability Wood. Alston, Sherri Y., Baxter, John R., or require additional information, please Maryland: Washington. Brown, Janice W., Conner, Clara H., contact Gary Cook at the information Ohio: Meigs, Monroe, Washington. Ewen, Paula D., Fong, Gene K., Furst, above. Virginia: Clarke, Frederick, Loudoun. Anthony T., Gee, King W., Gibbs, David

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C., Grossman, Ian M., Halladay, Michael Lee, Charles H., Leng, Rebecca C., DEPARTMENT OF TRANSPORTATION L., Henderson, Gary L., Hochman, Jill L., Tornquist, David, Zabarsky, Mark H. Holian, Thomas P., Horne, Dwight A., Federal Aviation Administration Office of the Secretary Johnson, Christine M., Judycki, Dennis [Docket No. FAA–2008–0713] C., Liff, Diane R., Lindley, Jeffrey A., Allen, Bernestine, Brosnahan, Jennifer Lwin, Myint, Marchese, April, McElroy, R., Cumber, Husein, DeCarme, David G., Notice of Interim Operating Authority Regina, Paniati, Jeffrey F., Phillips, Mary DeHaan, Robert A., Eisner, Neil R., Granted to Commercial Air Tour B., Prosperi, Patricia A., Ray, James D., Fields, George C., Geier, Paul M., Operators Over National Parks and Ridenour, Melisa, Row, Shelley J., Gretch, Paul L., Gros, Simon C., Henry, Tribal Lands Within or Abutting Shepherd, Gloria M., Sheridan, Margo, J. Richard, Herlihy, Thomas W., Heup, National Parks Skaer, Frederick C., Smith, Willie H., Ellen L., Homan, Todd M., Horn, AGENCY: Federal Aviation Stephanos, Peter J., Suarez, Ricardo, Donald H., Horner, David B., Howard, Toole, Joseph S., Toole, Patricia, Administration (FAA), DOT. Laurie, Huntley, Clarence Byrne, ACTION: Notice. Trentacoste, Michael. Hurdle, Lana T., Jones, Mary N., Kaleta, Federal Motor Carrier Safety Judith S., Kendall, Quintin C., Knapp, SUMMARY: On October 25, 2002, the Administration Rosalind A., Lawson, Linda L., Lowder, Federal Aviation Administration (FAA) Michael W., McDermott, Susan E., published the final rule for Title 14, Griffith, Michael S., Hartman, Daniel, Code of Federal Regulations part 136, Horan, Charles A., Hugel, David, Mintz, Dan, Mowry, Nancy A., Neff, Lawrence Ira, Patillo, Jacquelyn R., National Parks Air Tour Management McMurray, Rose A., Minor, Larry W., (67 FR 65662). The rule became Pelcovits, Pamela M., Quade, William Petrosino-Woolverton, Marie, Podberesky, Samuel, Privett, Lee A., effective on January 23, 2003. On A., Rohde, Suzanne Tebeau, Shelton, January 27, 2005, the FAA published a Terry T. Reynolds, Michael W., Rodriguez- Lopez, Denise, Schmidt, Robert T., notice of opportunity for commercial air Federal Railroad Administration Shaw, Michael E., Trujillo, J Michael, tour operators granted interim operating authority (IOA) under the National Cothen, Grady C., Eby, Clifford, El- Turmail, Brian G., Washington, Linda J., Parks Air Tour Management Act of 2000 Sibaie, Magdy A., Haley, Michael T., Wells, John V. (the Act) to review and self correct Leeds, John G., Lindsey, Seth M., Logue, Pipeline and Hazardous Materials annual authorizations (70 FR 3972). The Michael J., Pritchard, Edward W., Reid, Safety Administration results were published by operator in Margaret B., Strang, Jo E., Tessler, Mark, the Federal Register on Thursday, June Yachmetz, Mark E. Brigham, Edward A., Edwards, Krista, 23, 2005, (70 FR 36456). The comment Gerard, Stacey L., Kunz, David E., Federal Transit Administration due date was set for 70 FR 36456 and Richard, Robert, Wiese, Jeffrey D., Biehl, Scott A., Borinsky, Susan C., the IOA republished in the Federal Willke, Theodore L. Register on Friday, October 7, 2005 by Doyle, Richard H., Hynes-Cherin, park instead of by operator (70 FR Brigid, Irvin, John W., Linnertz, Ann M., Research and Innovative Technology 58778). This Notice is pursuant to the Little, Sherry E., Patrick, Robert C., Administration review and accepting of five (5) New Rogers, Leslie T., Schruth, Susan E., Brecht-Clark, Jan M., Chang, William Entrant applications and seeks public Simon, Marisol, Taylor, Yvette, J., Coonley, Philip S., Dillingham, comment regarding this matter from Thompson, Letitia, Tuccillo, Robert J. Steven D., Ennis, Eileen, Keeler, Nelson interested parties. Maritime Administration H., Leone, Kelly, O’Donoghue, Thomas, DATES: Comments must be received by Bohnert, Roger V., Brohl, Helen, Tompkins, Curtis J. the FAA by August 7, 2008. Byrne, Joseph, Caponiti, James E., St. Lawrence Seaway Development ADDRESSES: Comments must be Harrelson, Thomas W., Jones, Taylor E., Corporation identified by Docket Number FAA– Kumar, Shashi N., McKeever, Jean E., 2008–0713 using the following method: • McMahon, Christopher J., Megginson, Middlebrook, Craig H., Pisani, Federal eRulemaking Portal: Go to Elizabeth R., Pixa, Rand, Rivait, David Salvatore L. http://www.regulations.gov and follow J., Stewart, Joseph D., Weaver, Janice G. the online instructions for sending your Office of Inspector General (not comments electronically. National Highway Traffic Safety Department of Transportation FOR FURTHER INFORMATION CONTACT: Administration employees) Norman R. Elrod, Air Transportation Abraham, Julie, Amoni, Marilena, John Hartman, Department of Energy; Division, 135 Air Carrier Operations Beuse, Nathaniel M., Carra, Joseph S., Michael Delgado, Department of the Branch, AFS–250, Federal Aviation Cooke, Anthony, Demeter, Kathleen C., Treasury; Melissa Heist, Environmental Administration, 800 Independence Guerci, Lloyd S., Harris, Claude H., Protection Agency; Sara B. Gibson, Avenue, SW., Washington, DC 20591; Kanianthra, Joseph N., Kratzke, Stephen Federal Deposit Insurance Corporation; telephone (202) 493–5562; e-mail R., Markison, Marlene K., McLaughlin, Steve Hardsgrove, Department of the [email protected], or, Edwin D. Brian, McLaughlin, Susan, Medford, Interior; Robert Taylor, Department of Miller, Air Transportation Division, 135 Ronald L., Michael, Jeffrey P., Monk, the Treasury; Robert Young, Department Air Carrier Operations Branch, AFS– Michael W., O’Brien, Margaret, of Agriculture; Karen L. Ellis, 250, Federal Aviation Administration, Pennington, Rebecca A., Ports, James F., Department of Agriculture; Ben Wagner, 800 Independence Avenue, SW., Jr., Saul, Roger A., Simons, James F., Tennessee Valley Authority; Adrienne Washington, DC 20591; telephone (202) Smith, Daniel C., Walter, Gregory A., Rish, U.S. Agency for International 267–8166; e-mail [email protected]. Wood, Stephen P. Development; and Andrew Patchan, SUPPLEMENTARY INFORMATION: Office of Inspector General General Services Administration. Background Alves, Theodore P., Beitel, Richard C., [FR Doc. E8–15415 Filed 7–7–08; 8:45 am] Provision(s) for new entrant air tour Dettelbach, Brian A., Dobbs, David A., BILLING CODE 4910–9X–P operators are specified in Section 803 of

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the Act under (c) Interim Operating operators (A), (B), & (C). The five new Authority, (3) New entrant air tour entrants seeking IOA are listed below:

Operator name DBA National park unit/Abutting tribal land IOA

Kanab, Utah Air Service ...... NA ...... Zion NP ...... 120 Bryce Canyon NP ...... 120 Rainbow Bridge NM ...... 120 Canyon Lands NP ...... 120 Arches NP ...... 120 Cedar Breaks NM ...... 120 Mauiscape Helicopters ...... NA ...... Haleakala NP ...... 4,140 Skycraft Air Service ...... NA ...... Volcanoes NP ...... 600 Wings Air ...... NA ...... Statue of Liberty NM ...... 1,500 Zip Aviation ...... NA ...... Statue of Liberty NM ...... 12,000

Discussion Transportation—District 3, 1991 DEPARTMENT OF TRANSPORTATION Industrial Park Road, Baxter, Minnesota The operators cited above applied for Federal Highway Administration New Entrant IOA between January of 56425, Telephone (218) 828–5797; (651) 296–9930 TTY. 2003 and November 2005. The FAA, Environmental Impact Statements: having evaluated the applications, is SUPPLEMENTARY INFORMATION: The National Summary of Rescinded now prepared to move forward with the FHWA, in cooperation with the Notices of Intent application process. This notice fulfills Minnesota Department of AGENCY: Federal Highway that statutory requirement that Transportation (Mn/DOT) has Administration (FHWA), DOT. mandates the IOA granted under the Act terminated the EIS process begun in ACTION: to be published in the Federal Register 2000 to address transportation demand, Notice. for notice and opportunity for comment. safety problems, access management, SUMMARY: The FHWA is issuing this Issued in Washington, DC, on July 1, 2008. interregional corridor status, design notice to advise the public that 11 States Gary Davis, deficiencies and pavement condition on have rescinded Notices of Intent (NOI) Air Transportation Division, Acting Manager TH 169 from the intersection of TH 27 to prepare 19 Environmental Impact of AFS–200. north of Onamia, Mille Lacs County, Statements (EISs) for proposed highway [FR Doc. E8–15441 Filed 7–7–08; 8:45 am] Minnesota to the Garrison, Crow Wing projects. FHWA Division Offices, in BILLING CODE 4910–13–P County, Minnesota. The Draft EIS for consultation with the State Departments the project was approved on January 25, of Transportation (State DOT), 2002 and included five build determined that 15 of these projects DEPARTMENT OF TRANSPORTATION alternatives and the no-build were no longer viable projects and have formally cancelled the projects. No Federal Highway Administration alternative. On May 11, 2006, Mn/DOT notified federal, state and local agencies; resources will be expended on these Environmental Impact Statement: Crow tribal governments; interested parties; projects; the environmental review Wing and Mille Lacs Counties, MN and the public that work on the EIS was process has been terminated. Four being discontinued due to a lack of projects in four States have been AGENCY: Federal Highway identified funding for any of the build reduced in scope and now meet the Administration (FHWA), DOT. alternatives. Mn/DOT will proceed with criteria for an Environmental Assessment (EA) rather than an EIS, or ACTION: Notice of Intent to Terminate implementing more affordable and a revised NOI will be issued restarting EIS. timely safety improvements on existing the EIS process. TH 169. Therefore, the EIS for this SUMMARY: The FHWA is issuing this FOR FURTHER INFORMATION CONTACT: project has been terminated. notice to advise the public that the Lamar Smith, Office of Project Environmental Impact Statement (EIS) (Catalog of Federal Domestic Assistance Development and Environmental process for proposed highway Program Number 20.205, Highway Planning Review, (202) 366–8994; Janet Myers, improvements to Trunk Highway (TH) and Construction. The regulations Office of the Chief Counsel, (202) 366– 169 in Crow Wing and Mille Lacs implementing Executive Order 12372 2019; Federal Highway Administration, Counties, Minnesota is terminated. The regarding intergovernmental consultation on 1200 New Jersey Avenue, SE., original Notice of Intent for this EIS Federal programs and activities apply to this Washington, DC 20590. process was published in the Federal program.) SUPPLEMENTARY INFORMATION: Register on July 17, 2000. A Revised Issued on: June 27, 2008. Notice of Intent to revise the northern Electronic Access Cheryl B. Martin, terminus was published in the Federal An electronic copy of this document Register on February 4, 2002. Environmental Engineer, Federal Highway Administration, St. Paul, Minnesota. may be downloaded by accessing the FOR FURTHER INFORMATION CONTACT: [FR Doc. E8–15190 Filed 7–7–08; 8:45 am] Federal Register’s home page at: Cheryl Martin, Environmental Engineer, http://www.archives.gov and the Federal Highway Administration, BILLING CODE 4910–22–M Government Printing Office’s Web page Galtier Plaza, Suite 500, 380 Jackson at http://www.gpoaccess.gov/nara. Street, St. Paul, Minnesota 55101, Telephone (651) 291–6120; or James Background Haligren, P.E., Project Manager, The FHWA, as lead Federal agency Minnesota Department of under the National Environmental

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Policy Act and in furtherance of its available resources as well as the an EIS, or a revised NOI will be issued oversight and stewardship expectations of the public. restarting the environmental review responsibilities under the Federal-aid The FHWA is issuing this notice to process. The South Stockton Six-Lane Highway Program, has requested that its advise the public that 11 States Project in Joaquin County, California, Division Offices review, with the State (Alabama, California, Florida, North and the NE Novelty Hill project in King DOTs, the status of all EISs and place Carolina, Oregon, Pennsylvania, County, Washington, have been reduced those projects that are not actively Tennessee, Texas, Utah, Virginia, and in scope and will undergo analysis as progressing in a timely manner in an Washington) have recently rescinded EAs. The Mid-Currituck Sound Bridge previously issued NOIs for 19 EISs for inactive project status. The FHWA Project in Currituck and Dare Counties, proposed highway projects. A listing of maintains lists of active and inactive North Carolina, issued a notice on June these projects, general location, original projects on its Web site at http:// NOI date of publication in the Federal 3, 2008, rescinding the original July 6, www.environment.fhwa.dot.gov/. The Register, and the date that the NOI was 1995, NOI as well as the January 1998 FHWA has determined that inactive formally rescinded by notice published Draft EIS due to project changes projects that are no longer a priority or in the Federal Register, is provided including the adaptation of the project that lack resources should be rescinded below. The FHWA Division Offices, in by the North Carolina Turnpike with a Federal Register notice notifying consultation with the State DOTs, Authority. A new NOI for this project is the public that project activity has been determined that 15 of these projects expected. The South Padre Island terminated. As always, FHWA were no longer viable projects and have Second Access Project in Cameron encourages State DOTs to work with formally cancelled those projects. Four County, Texas, issued a revised NOI to their FHWA Division Office to projects in California, North Carolina, rescind the original July 11, 2003, NOI determine when it is most prudent to Texas, and Washington have been and start the environmental review initiate an EIS in order to best balance reduced in scope and now meet the process again with an April 23, 2008, criteria for performing an EA rather than NOI.

Rescinded State Project name—location NOI date date

AL ...... West Mobile Loop—Mobile County ...... 8/28/2002 5/7/2008 AL ...... Birmingham Northern Beltline Extension—St. Clair County ...... 8/2/2006 4/7/22008 CA ...... South Stockton Six-Lane Project—Joaquin County ...... 1/29/2002 3/13/2008 FL ...... Suncoast Parkway 2—Hernando and Citrus Counties ...... 6/11/2002 3/11/2008 FL ...... Upper Manatee River Road—Manatee County ...... 1/21/2004 3/14/2008 NC ...... Mid-Currituck Sound Bridge Project—Currituck and Dare Counties ...... 7/6/1995 6/3/2008 OR ...... Astoria Bypass—Clatsop County ...... 9/28/1994 4/7/2008 PA ...... Ligonier Truck Route—Westmoreland County ...... 1/29/1993 2/20/2008 TN ...... Appalachian Development Highway System Corridor K—Polk County ...... 10/28/1999 5/21/2008 TX ...... South Padre Island Second Access Project—Cameron County ...... 7/11/2003 4/23/2008 TX ...... Bolivar Bridge—Galveston County ...... 2/10/2006 1/30/2008 TX ...... SH 122 Roadway between SH 6 and SH99—Fort Bend County ...... 9/16/2002 3/14/2008 UT ...... I–15 North Corridor—Salt Lake City to Kaysville ...... 1/22/1997 4/10/2008 VA ...... Outer Connector—Stafford and Spotsylvania Counties ...... 6/1/1995 5/22/2008 VA ...... I–77/I–81 Improvement Project—Wythe County ...... 5/10/2001 5/22/2008 VA ...... Interstate 66 Multimodal Transportation and Environmental Study—Fairfax and 1/11/2002 5/22/2008 Prince William Counties. VA ...... Route 29 South Bypass Improvement Project—near Lynchburg ...... 3/4/2002 5/22/2008 VA ...... Spotsylvania Parkway—Spotsylvania County ...... 11/15/2002 5/22/2008 WA ...... NE Novelty Hill—King County ...... 1/18/2001 4/2/2008

(Catalog of Federal Domestic Assistance DEPARTMENT OF TRANSPORTATION durability, efficiency, environmental Program Number 20.205, Highway Planning impact, productivity and safety aspects and Construction. The regulations Federal Highway Administration of highway and intermodal implementing Executive Order 12372 [FHWA Docket No. FHWA–2008–0070] transportation systems. regarding intergovernmental consultation on The purpose of this notice is to Federal programs and activities apply to this Exploratory Advanced Research program.) announce exploratory advanced Program research that will take place under the Issued on: June 30, 2008. AGENCY: Federal Highway EARP, to encourage interest in such James D. Ray, Administration (FHWA), DOT. work by organizations or individuals Acting Federal Highway Administrator. ACTION: Notice; Request for comments. conducting related work or anticipating [FR Doc. E8–15476 Filed 7–7–08; 8:45 am] the results of such work, and to solicit BILLING CODE 4910–22–P SUMMARY: Section 502 of title 23 of the comments about the long-term impact of United States Code directs the Secretary such work on future research, technical of Transportation (Secretary) to innovation, or transportation industry establish an Exploratory Advanced practices. Research Program (EARP). The stated purpose of the EARP is to DATES: FHWA requests comments on or address longer-term and higher-risk before October 6, 2008 in order to research with potentially dramatic consider and plan for coordination of breakthroughs for improving the research.

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ADDRESSES: David Kuehn, Office of In 2005, FHWA conducted advanced advancedresearch/ Corporate Research, Technology and research think-tank forums in research.cfm#upcoming. Innovation Management, (202) 493– Cambridge, Massachusetts; Title: Greatly Increased Use of Fly 3414, [email protected]; or Grace Minneapolis, Minnesota; and Berkeley, Ash in Hydraulic Cement Concrete for Reidy, Office of the Chief Counsel, (202) California, bringing together a range of Pavement Layers and Transportation 366–6226; Federal Highway stakeholders to explore future advanced Structures—This study will explore the Administration, 1200 New Jersey research possibilities relevant to the attributes of fly ash to understand how Avenue, SE., Washington, DC 20590. mission of FHWA. These forums it can be utilized in greater quantities. Office hours are from 7:45 a.m. to 4:15 provided a foundation for FHWA to The outcome of the study could p.m., Monday through Friday, except announce and select an initial group of accelerate the identification of Federal holidays. exploratory advanced research projects technology and innovations to allow the massive use of fly ash from coal-burning SUPPLEMENTARY INFORMATION: in 2007. Also during 2007, research offices that either does not meet current Electronic Access within FHWA began meeting with concrete materials specifications or is You may submit or retrieve comments research partners to further define areas not used because of practical technical online through the Document of investigation for exploratory concerns. The fly-ash drawback is the Management System (DMS) at: http:// advanced research. Once specific slower set and strength gain. Advanced dms.dot.gov/submit. The DMS is research problems were defined, FHWA research is needed to understand potential acceleration techniques to available 24 hours each day, 365 days worked with outside experts from conceive of empirical testing and each year. Electronic submission and academic institutions, State and local performance prediction models for these retrieval help and guidelines are departments of transportation and the uses. We anticipate that research in this available under the help section of the private sector to provide technical area will answer several questions, Web site. An electronic copy of this assessments of exploratory advanced including whether there are chemical notice may be downloaded from the research proposals. FHWA plans to activation methods that can be used and Office of the Federal Register’s home move forward with proposals that have whether we could eliminate use of any page at http://www.archives.gov and the strong scientific and technical merit. metal that corrodes in concrete in favor Government Printing Office’s Web site Depending on the research area, some proposals leverage existing facilities, of more efficient chloride accelerators. at http://www.access.gpo.gov. Anyone is Title: Volumetric Particle Image equipment and talent at the Turner able to search the electronic form of all Velocimetry (VPIV) System for Fairbank Highway Research Center comments received into any of our experimental Bridge Scour Research—A dockets by the name of the individual (TFHRC). The research focuses on proposed high resolution VPIV system submitting the comment (or signing the providing solutions to complex would allow measurement of comment, if submitted on behalf of an technical problems through the instantaneous flow volumes around association, business, labor union, etc.). development of more economical, bridge pier models, leading to more You may review DOT’s complete environmentally sensitive designs; more precise scour predictive models. It Privacy Act Statement in a Federal efficient, quality-controlled construction presently is practically impossible, by Register published on April 11, 2000 practices; and more durable materials. means of laboratory experiments, to (70 FR 19477), or you may visit The TFHRC is federally owned and visualize and to measure the entire http://dms.dot.gov. operated and provides FHWA and the instantaneous flow field around a bridge world highway community with unique Background pier. Recent experimental investigations capabilities for the development of using Laser Doppler Velocimetry and Section 5201(g) of the Safe, highway research, development and Particle Image Velocimetry (PIV) have Accountable, Flexible, Efficient technology. increased our understanding of the Transportation Equity Act: A Legacy for The FHWA is issuing this notice to intricate flow structures around bridge Users (SAFETEA–LU) (Pub. L. 109–59, announce five research proposals that piers; a detailed quantitative description 119 Stat. 1144), directed the Secretary to will take place at TFHRC and to of the of necklace vortices at the base of establish an EARP. The program is encourage organizations that are piers and of the turbulent near wake codified in 23 U.S.C. 502(e). conducting related work or are region is still lacking. Laser Doppler Section 502(e) specifies that the EARP interested in the results of such work to Anemometry (LDA) is only capable of should address longer-term, higher risk comment on this notice. The FHWA measuring point velocities, and PIV is research aimed at breakthroughs to seeks methods to share information and limited to single recording plains. LDA improve the durability, efficiency, to coordinate with other organizations and PIV are both based on optical flow environmental impact, productivity and who are conducting related work in the diagnostics using the interaction of light safety aspects of highway and interests of mutual benefit and scientific refraction and scattering with intermodal transportation systems. advancement. Methods may include inhomogeneous media. Research at the Section 502(e) also provides that the informal coordination as well as more TFHRC Hydraulics Laboratory has Secretary should seek to develop formal agreements for providing access focused on using a PIV system partnerships with public and private to facilities and equipment or sharing developed in-house for measuring sector entities. Further, the FHWA laboratory data and technical expertise. instantaneous flow fields around bridge Corporate Master Plan for Research and Further information about the EARP is pier models. The existing PIV system Deployment of Technology & Innovation located at http://www.fhwa.dot.gov/ also has the capability to map the out- identifies engaging stakeholders advancedresearch/research.cfm. of-plane velocity components using two throughout the research and technology Following is a summary of the five synchronized cameras to measure the process as one of seven guiding proposals FHWA plans to undertake as velocity in complex flow situations. The principles. An electronic copy of the part of a second round of exploratory current PIV system has two major Corporate Master Plan is available at advanced research. For more detailed limitations: (1) Resolution (sampling http://www.fhwa.dot.gov/legsregs/ descriptions of the proposals, see rate 15 Hz); and (2) only one recording directives/policy/cmp/03077.htm. http://www.fhwa.dot.gov/ plane. Therefore, there is a need to

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develop a high resolution VPI system geosynthetic soil composites has created claim seeking judicial review of the that can capture and quantify complex, a new engineering material with a niche Federal agency actions on the highway highly three-dimensional and unsteady in earthwork. Fundamental project will be barred unless the claim flow fields for small-scale bridge scour understanding of GRS properties will is filed on or before January 5, 2009. If experiments. allow for development of improved the Federal law that authorizes judicial Title: Flexible Skin Areal Shear Stress design and construction guidance with review of a claim provides a time period and Pressure Sensing System for the potential to lead to considerable of less than 180 days for filing such Experimental Bridge Scour Research— change in the industry and an claim, then that shorter time period still This study will explore ways to directly affordable, quick alternative to the applies. measure instantaneous boundary shear current practice. FOR FURTHER INFORMATION CONTACT: For stresses and pressure fields for small Title: Advanced Digital Imaging for FHWA: Mr. Adam Johnson, Highway scale bridge scour experiments, in order Accident Prevention and Reducing Engineer, Federal Highway to advance the understanding of bridge Traffic Congestion—This research Administration, 200 North High Street, scour problems. A direct method to would explore extended range imaging Columbus, Ohio 43215; telephone: (614) measure boundary shear stress and techniques from scientific, art and 280–6843; e-mail: Adam.Johnson@ boundary pressure fluctuations in astronomical photography for fhwa.dot.gov. The FHWA Ohio Division experimental scour research has application to traffic safety and control. Office’s normal business hours are 8 historically been a challenge. In Current video imaging has limitations a.m. to 4:30 p.m. (eastern time). For addition, available turbulence models for use in safety, including erroneous USACE: Ms. Deborah Wegmann, cannot account very well for the effect early detection, late detection, failed Program Manager, Ohio Regulatory of bed roughness, which is detection and false positive detections. Transportation Office, Building 10, fundamentally important for any Attempts to resolve these problems by Section 10, 3990 East Broad Street Computational Fluid Dynamics upgrading existing video technologies Columbus, Ohio 43218; telephone 614– simulation. A mechanical shear sensor have not been successful. A radically 692–4660; e-mail: Deborah.Wegmann@ device that was developed by the different approach using advanced lrh01.usace.army.mil. For the Ohio TFHRC Hydraulics Research team to digital imaging technologies might Department of Transportation: Mr. measure directly wall shear stress has provide a foundation on which to build Timothy Hill, Ohio Department of several limitations. One major challenge solid reliable detection technologies Transportation, 1980 West Broad Street, is that the sensor only measures point with radically lower signal-to-noise Columbus, Ohio 43223; telephone: (614) shear stresses. The sensor plate has to be ratios. This research might provide the 644–0377 e-mail: aligned horizontally with the channel foundation for a different approach to [email protected]. bed and cannot be used to measure wide-area sensing using scientific- SUPPLEMENTARY INFORMATION: shear stress in preformed scour holes. imaging technologies rather than video- Notice is Therefore, there is a need to develop a broadcasting technologies. hereby given that the FHWA, USACE, and other Federal agencies have taken sensing system that can measure Authority: 23 U.S.C. 502. instantaneous areal boundary shear final agency actions by issuing licenses, stresses and pressure fields for small Issued on: July 1, 2008. permits, and approvals for the following scale bridge scour experiments. The James D. Ray, highway project in the State of Ohio: FHWA desires a sensing system with Acting Federal Highway Administrator. Beginning from the south along I–75 at the flexibility to measure the change in [FR Doc. E8–15477 Filed 7–7–08; 8:45 am] the Detroit Avenue Interchange shear-stress and pressure when the BILLING CODE 4910–22–P (Delaware Avenue bridge and CSX scour hole forms. railroad over I–75 not included), thence Title: The Composite Behavior and north to the systems interchange. the Design Requirements of DEPARTMENT OF TRANSPORTATION Continuing on to about 1,800 ft past the Geosynthetic Reinforced Soil (GRS) Lagrange Street Bridge over I–75. The Structures—This research will seek to Federal Highway Administration project length along I–75 is understand how geosynthetic approximately 7.0 miles. Beginning Notice of Final Federal Agency Actions from the west along I–475, just west of reinforcement interacts with compacted on Proposed Highway in Ohio soil to allow for more effective and the Douglas Road bridge over I–475, rational design guidance of GRS walls AGENCY: Federal Highway thence east to the systems interchange. for highway applications. Many Administration (FHWA), DOT. The project length along I–475 is engineers have learned there are several ACTION: Notice of Limitation on Claims approximately 2.1 miles. The proposed fundamental discrepancies between for Judicial Review of Actions by project will generally be on existing current Material Science Engineering FHWA, Army Corps of Engineers alignment and involves upgrading of a design methodology and the observed (USACE), and Other Federal Agencies. systems interchange, reconfiguration of behavior of full-scale GRS earth- two full interchanges and one partial geosynthetic composite walls SUMMARY: This notice announces actions interchange, construction of one new (alternating close layers of geosynthetic taken by the FHWA, USACE, and other interchange, rehabilitation and reinforcement and compacted fill). The Federal agencies that are final within reconstruction of 13 existing bridges, research will improve the the meaning of 23 U.S.C. 139(l)(1). The and 9 proposed bridges. The actions by understanding of reinforced soil actions relate to a proposed highway the Federal agencies, and the laws technology and support a paradigm shift project, the Interstate Routes 75 and 475 under which such actions were taken, into GRS technology. The Material systems interchange, in the City of are described in the Environmental Science Engineering wall industry and Toledo, Lucas County, in the State of Assessment (EA) for the project, related theory is mature to a point Ohio. Those actions grant licenses, approved on October 16, 2006, in the where there is reluctance to permits, and approvals for the project. Finding of No Significant Impact acknowledge any modified wall design DATES: By this notice, the FHWA is (FONSI) issued on March 21, 2008, and using geosynthetics. However, the advising the public of final agency in other documents in the FHWA evolution of GRS technology using actions subject to 23 U.S.C. 139(l)(1). A administrative record. The EA, FONSI,

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and other documents in the FHWA and Construction. The regulations Supplementary Information section of administrative record file are available implementing Executive Order 12372 this document. Note that all comments by contacting the FHWA or the Ohio regarding intergovernmental consultation on received will be posted without change Department of Transportation at the Federal programs and activities apply to this to http://www.regulations.gov, including addresses provided above. The EA and program.) any personal information provided. FONSI can be viewed at the Toledo— Authority: 23 U.S.C. 139(l)(1). Please see the Privacy Act heading Lucas County Public Libraries (Main, Issued on: June 30, 2008. below. Sanger, West Toledo, Kent, and Herman D. Rodrigo, Privacy Act: Anyone is able to search the electronic form of all comments Lagrange Branches), the City of Director of Engineering and Operations, Toledo—Division of Transportation Columbus, Ohio. received into any of our dockets by the name of the individual submitting the Office, ODOT District 2 Office in [FR Doc. E8–15385 Filed 7–7–08; 8:45 am] Bowling Green, City of Toledo—Clerk of comment (or signing the comment, if Council Office, City of Toledo—Division BILLING CODE 4910–RY–P submitted on behalf of an association, of Streets, Bridges, and Harbor, and the business, labor union, etc.). You may Toledo Metropolitan Area Council of DEPARTMENT OF TRANSPORTATION review DOT’s complete Privacy Act Governments (TMACOG). Statement in the Federal Register This notice applies to all Federal National Highway Traffic Safety published on April 11, 2000 (65 FR agency decisions as of the issuance date Administration 19477–78) or you may visit http:// of this notice and all laws under which DocketInfo.dot.gov. such actions were taken, including but [Docket No. NHTSA 2008–0113; Notice 1] Docket: For access to the docket to not limited to: read background documents or Request for Public Comments on 1. General: National Environmental comments received, go to http:// Guidance and Recommended Best Policy Act (NEPA) [42 U.S.C. 4321– www.regulations.gov and follow the Importer Practices To Enhance the 4351]; Federal-Aid Highway Act [23 online instructions for accessing the Safety of Imported Motor Vehicles and U.S.C. 109]. docket or visit the docket at the street Motor Vehicle Equipment 2. Air: Clean Air Act, 42 U.S.C. 7401– address listed above. 7671(q). AGENCY: National Highway Traffic FOR FURTHER INFORMATION CONTACT: 3. Land: Section 4(f) of the Safety Administration (NHTSA), DOT. Clint Lindsay, Office of Vehicle Safety Department of Transportation Act of ACTION: Request for public comments. Compliance, National Highway Traffic 1966 [49 U.S.C. 303.] Safety Administration, 1200 New Jersey 4. Wildlife: Endangered Species Act SUMMARY: This notice solicits comments Avenue, SE., Washington, DC 20590 [16 U.S.C. 1531–1544 and Section from the public, from importers and (202–366–5288). 1536], Fish and Wildlife Coordination manufacturers of motor vehicles and SUPPLEMENTARY INFORMATION: Act [16 U.S.C. 661–667(d)], Migratory motor vehicle equipment, and from Bird Treaty Act [16 U.S.C. 703–712]. other interested parties concerning best I. Background 5. Historic and Cultural Resources: practices to be followed by importers of Section 106 of the National Historic A. National Highway Traffic Safety motor vehicles and motor vehicle Preservation Act of 1966, as amended Administration equipment to reduce the likelihood of [16 U.S.C. 470(f) et seq.]; Archeological The National Highway Traffic Safety importing products that contain defects Resources Protection Act of 1977 [16 Administration (NHTSA) administers related to motor vehicle safety or do not U.S.C. 470(aa)–11]; Archeological and the National Traffic and Motor Vehicle comply with applicable Federal motor Historic Preservation Act [16 U.S.C. Safety Act of 1966, as amended, 49 vehicle safety standards. 469–469(c)]. U.S.C. chapter 301 (the Vehicle Safety 6. Social and Economic: Civil Rights DATES: You should submit your Act). Under that authority, NHTSA Act of 1964 [42 U.S.C. 2000(d)– comments early enough to ensure that issues and enforces Federal motor 2000(d)(1)]; Farmland Protection Policy Docket Management receives them not vehicle safety standards (FMVSS) that Act (FPPA) [7 U.S.C. 4201–4209]. later than August 7, 2008. apply to motor vehicles and to certain 7. Wetlands and Water Resources: ADDRESSES: Comments should refer to items of motor vehicle equipment. Clean Water Act, 33 U.S.C. 1251–1377 the docket and notice numbers above NHTSA also monitors motor vehicles (Section 404, Section 401, Section 319); and be submitted by any of the and items of motor vehicle equipment Land and Water Conservation Fund following methods: that are imported into the United States (LWCF), 16 U.S.C. 4601–4604; Safe • Federal eRulemaking Portal: Go to for compliance with applicable FMVSS. Drinking Water Act (SDWA), 42 U.S.C. http://www.regulations.gov. Follow the In recent years, an ever-increasing 300(f)–300(j)(6); Rivers and Harbors Act online instructions for submitting number of motor vehicles and motor of 1899, 33 U.S.C. 401–406; Wild and comments. vehicle equipment items sold in the Scenic Rivers Act, 16 U.S.C. 1271–1287; • Mail: Docket Management Facility: United States have been imported. For TEA–21 Wetlands Mitigation, 23 U.S.C. U.S. Department of Transportation, 1200 example, in 1996 imported tires 103(b)(6)(m), 133(b)(11); Flood Disaster New Jersey Avenue, SE., West Building comprised just 19 percent of the 282 Protection Act, 42 U.S.C. 4001–4128. Ground Floor, Room W12–140, million tires sold that year in the United 8. Executive Orders: E.O. 11990 Washington, DC 20590–0001. States. By 2006, imported tires rose to Protection of Wetlands; E.O. 11988 • Hand Delivery or Courier: West 46 percent of all tire sales, with 140 Floodplain Management; E.O. 12898, Building Ground Floor, Room W12–140, million tires being imported. Nearly all Federal Actions to Address 1200 New Jersey Avenue, SE., between motorcycle helmets are now imported, Environmental Justice in Minority 9 a.m. and 5 p.m. ET, Monday through as is the case for a large percentage of Populations and Low Income Friday, except Federal holidays. vehicle lighting equipment sold in this Populations; E.O. 11593 Protection and • Fax: 202–493–2251. country. Enhancement of Cultural Resources. Instructions: For detailed instructions NHTSA’s enforcement program has (Catalog of Federal Domestic Assistance on submitting comments, see the Public two major elements, compliance testing Program Number 20.205, Highway Planning Participation heading of the and defects investigation. As the volume

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of motor vehicle and equipment imports promotes taking a cost-effective, risk- with the subject heading Increase has increased, NHTSA’s scrutiny of based approach that has the following Accountability, Enforcement, and those imports through both compliance key principles: Deterrence, acknowledges that while it testing and defect investigations has (1) Prevention—Prevent harm in the is important to remember that industry also grown. However, recent experience first place. The Strategic Framework has a financial interest to sell safe has demonstrated that companies recognizes that the Federal government products to consumers, all stakeholders importing products regulated by must work with the private sector and involved in the production, distribution, NHTSA, particularly motor vehicle with foreign governments to adopt an and sale of imports must be held equipment, play an especially important approach to import safety that builds accountable to ensure that imported role in ensuring that those items comply safety into the manufacturing and products meet Federal safety standards with the FMVSS and are not likely to be distribution processes; in the United States. The Action Plan defective. At the same time, both (2) Intervention—Intervene when recommended that Federal agencies NHTSA’s recent experience and that of risks are identified. The Strategic ‘‘work with the importing community other agencies with regulatory authority Framework encourages Federal, state, and other members of the public to over the safety of imported goods local, and foreign governments, along develop Good Importer Practices and indicate that the entire importing with foreign manufacturers and the issue guidance with respect to particular community could benefit by following importing community, to adopt more product categories.’’ 3 Although some practices that help ensure the safety of effective techniques for identifying members of the importing community imported products and reduce the potential noncompliant and/or defective have established best practices on their likelihood of unsafe products entering products. When problems are identified, own, the majority of importers do not the United States. the Strategic Framework recognizes that have available best practices that are focused on ensuring product safety. The B. The Interagency Working Group government officials must act swiftly, Working Group believes that by Report—Strategic Framework and in a coordinated manner, to seize, destroy or otherwise prevent developing best importer practices, the On July 18, 2007, the President issued noncompliant and/or defective products entire importing community may Executive Order 13439 to establish the from advancing beyond the point-of- benefit from taking appropriate steps to Interagency Working Group on Import entry; and ensure the safety of imported products Safety (the ‘‘Working Group’’). The (3) Response—Respond rapidly after and to reduce the likelihood of unsafe Department of Transportation, including harm has occurred. In the event that an products entering the United States. NHTSA, participated in the Working unsafe imported product makes its way II. NHTSA’s Implementation of the Group. As part of its mission, the into domestic commerce, the Strategic Working Group identified strategies that Working Group’s Recommendation on Framework recommends swift action to Best Importer Practices could be pursued within existing limit potential exposure and harm to the resources to promote the safety of American public. The Action Plan encourages Federal imported products. To begin identifying agencies to work with the importing best practices for import safety, the C. Working Group—Action Plan community to develop best importer Working Group held consultations with The Working Group promised to practices that will provide strategies for the private sector, reviewed current solicit extensive comments and evaluating foreign suppliers and import safety procedures and methods, recommendations from the public, and imported products. The Food and Drug surveyed the authorities and practices of to provide an action plan by mid- Administration (FDA) is in the process Federal agencies, and worked with the November. On November 6, 2007, the of issuing a set of Good Importer importing community. The Working Working Group submitted its report Practice recommendations on behalf of Group recognized that U.S. importers entitled ‘‘Action Plan for Import Safety: select Federal agencies and departments are responsible for ensuring the safety of A roadmap for continual improvement’’ that are members of the Interagency regulated products they import into the (the ‘‘Action Plan’’).2 As described in Working Group on Import Safety. Those United States and should follow best the Action Plan, that document departments and agencies include the practices to assure safety through represents the culmination of thousands Consumer Product Safety Commission, methods that include: (1) Selecting of hours of research and analysis, as the Environmental Protection Agency, foreign manufacturers to produce their well as public comment received from the U.S. Department of Agriculture, the products; (2) inspecting foreign hundreds of stakeholders. In the Action U.S. Department of Commerce, the U.S. manufacturing facilities; (3) inspecting Plan, the Working Group set forth 14 Department of Health and Human goods produced on their behalf either broad recommendations and 50 specific Services, the U.S. Department of before export or before distribution in action steps based on the key principles Homeland Security, and the U.S. the United States; (4) identifying the described above—Prevention, Department of Transportation (DOT). As product’s country of origin; and (5) Intervention, and Response. For each of the DOT representative to this working safeguarding the supply chain. these key principles, the Action Plan group, NHTSA has participated in the In September 2007, the Working identifies the cross-cutting building development of the Good Importer Group published a report entitled blocks that departments and agencies Practice recommendations that are ‘‘Protecting American Consumers Every should use to guide their import safety awaiting issuance by the FDA. Those Step of the Way: A Strategic Framework programs. Building Block Number 2, recommendations are intended to be for Continual Improvement in Import generic in nature, and not specific to the Safety’’ (the ‘‘Strategic Framework’’), Way: A strategic framework for continual products that are regulated by any which inaugurated the process of improvement in import safety’’ (Washington, DC, particular Federal agency. In contrast, identifying action steps needed to September 2007) http://www.importsafety.gov/ the Best Importer Practice report/report.pdf. recommendations that are the subject of enhance the safety of imported 2 1 Interagency Working Group on Import Safety, products. The Strategic Framework ‘‘Action Plan for Import Safety: A roadmap for this notice are intended for importers of continual improvement’’ (Washington, DC, 1 Interagency Working Group on Import Safety, November 2007) http://www.importsafety.gov/ 3 The Action Plan, Recommendation 3.1, pp. 20– ‘‘Protecting American Consumers Every Step of the report/actionplan.pdf. 21.

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motor vehicles and motor vehicle standard setting and oversight/ How Can I Be Sure That My Comments equipment, the products that are enforcement role and may issue Were Received? regulated by NHTSA. The FDA will be guidance that provides valuable If you wish Docket Management to publishing a Federal Register notice in information to the affected notify you upon its receipt of your the future to solicit public comments on communities. U.S. consumers provide comments, enclose a self-addressed, the generic Good Importer Practices valuable feedback to manufacturers and stamped postcard in the envelope recommendations. to NHTSA, which has a hotline for containing your comments. Upon In this notice, NHTSA begins the consumers to report problems with receiving your comments, Docket process of assembling for guidance and motor vehicles and motor vehicle Management will return the postcard by informative purposes a set of suggested equipment. To further this objective, the mail. best practices for importers of motor agency is asking the public, the vehicles and motor vehicle equipment. How Do I Submit Confidential Business importing community, and both foreign Information? NHTSA is not establishing a binding set and domestic fabricating manufacturers of rules on best practices or even of motor vehicles and motor vehicle If you wish to submit any information suggesting that a single set of best equipment to provide comments and under a claim of confidentiality, you practices would apply in all situations. recommendations that address the must follow the procedures found in 49 The agency fully realizes that best CFR part 512. Requests for confidential agency’s initial thoughts on the practices may vary widely depending on treatment are submitted to the Chief suggested guidance regarding best the item being imported and the scale of Counsel, NHTSA, (NCC–111), Room an importer’s operations. We also importer practices set forth below. W41–227, 1200 New Jersey Avenue, SE., recognize that such practices must We are confident that capable and Washington, DC 20590. Each request remain fluid to account for changes in responsible manufacturers possess a must be made in writing, explain the safety regulations and the global body of knowledge about their basis for the request and describe the economic environment. Importers respective products that, if shared, materials for which confidential remain free to choose the practices that could benefit the importing community. treatment is sought. Confidential best fit their needs in ensuring We also welcome comments and information must be properly marked compliant and defect-free products. recommendations from accreditation and accompanied by a certification Moreover, these recommended practices and certification bodies, as well as attesting to the confidential nature of do not establish any defenses to any professional organizations with interests the materials. Each request for violations of the statutes and regulations relating to best practices, particularly in confidential treatment should include that NHTSA administers. the area of monitoring engineering two copies of the confidential material In the paragraphs that follow, we have design and manufacturing processes and and one copy from which the presented our proposed facilities, recordkeeping incident to information claimed as confidential has recommendations on best importer those activities, assessing safety defects been removed. In addition, you should practices under the following headings: submit two additional copies of the • and noncompliances and taking needed Fully Understand the Importer’s corrective actions, and facilitating information without the claimed Obligations under Motor Vehicle Safety continual process improvements. confidential business information to Statutes and Regulations; Commenters who recommend specific Docket Management at the address • Exercise Great Care in Selecting best practices should be careful to given above under ADDRESSES. Foreign Manufacturers; • Inspect Foreign Manufacturing address the practical impacts that those Will the Agency Consider Late Facilities; practices may have on businesses of Comments? • Inspect Goods Either Before They differing size and the relative costs and We will consider all comments that Are Exported to or Distributed in the benefits of implementing various Docket Management receives before the United States; practices. close of business on the comment • Identify the Product’s Country of IV. Public Participation closing date identified at the beginning Origin; of this notice under DATES. To the extent • Establish a Consumer Service How Do I Prepare and Submit possible, we will also consider Program; Comments? comments that Docket Management • Contact NHTSA Concerning receives after that date. Manufacturer/Importer Reporting Your comments must be written in Requirements, Safety Compliance, and English. To ensure that your comments How Can I Read the Comments Defect Issues; and are correctly filed in the Docket, please Submitted by Other People? • General Assistance with Federal include the docket number of this You may read the comments received Regulations. document in your comments. by Docket Management at the address After receiving comments, we will Your comments must not be more and times given at the beginning of this issue a subsequent notice delineating a than 15 pages long (49 CFR 553.21). We document under ADDRESSES. final set of recommended best practices established this limit to encourage you You may also see the comments on for informative purposes. We will also to write your primary comments in a the Internet. To read the comments on post those best practices on the agency’s concise fashion. However, you may the Internet, take the following steps: Web site for easy reference. attach necessary additional documents (1) Go to the Federal Docket Management System (FDMS) Web page III. Comments and Recommendations to your comments. There is no limit on the length of the attachments. http://www.regulations.gov. Requested (2) On that page, click on ‘‘search for Under the Vehicle Safety Act, Please submit two copies of your dockets.’’ manufacturers, including importers, are comments, including the attachments, (3) On the next page (http:// responsible for the safety of their to Docket Management identified at the www.regulations.gov/fdmspublic/ products that are sold in or otherwise beginning of this document, under component/main), select NATIONAL enter the United States. NHTSA has a ADDRESSES. HIGHWAY TRAFFIC SAFETY

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ADMINISTRATION from the drop- (3) materially alter the budgetary Guidance and Recommended Best down menu in the Agency field, enter impacts of entitlements, grants, user fees Practices for Importers of Motor the Docket ID number and title shown or loan programs or the rights or Vehicles and Motor Vehicle Equipment at the heading of this document, and obligations of recipients thereof; or, The National Highway Traffic Safety select ‘‘NOTICES’’ from the drop-down (4) raise novel legal or policy issues Administration (NHTSA) is the U.S. menu in the Type field. arising out of legal mandates, the government agency responsible for (4) After entering that information, President’s priorities, or the principles implementing and enforcing the click on ‘‘submit.’’ set forth in this Executive order. National Traffic and Motor Vehicle (5) The next page contains docket Today’s proposed ‘‘Best Importer Safety Act of 1966, as amended, 49 summary information for the docket you Practices’’ document does not meet any U.S.C. chapter 301 (the Vehicle Safety selected. Click on the comments you of the four stated criteria for a guidance Act), and certain other laws relating to wish to see. You may download the document to be ‘‘significant.’’ In fact, motor vehicle safety. Those laws impose comments. Although the comments are one purpose of this draft document is to distinct duties on manufacturers, imaged documents, instead of the word help manufacturers and importers of including importers, of motor vehicles processing documents, the ‘‘pdf’’ motor vehicles and motor vehicle and motor vehicle equipment intended versions of the documents are word equipment to understand the for on-road use in the United States. searchable. Please note that even after coordinated roles of NHTSA and U.S. Companies that import these products the comment closing date, we will Customs and Border Protection in the must ensure that the products comply continue to file relevant information in import process. Therefore, this with Federal motor vehicle safety the Docket as it becomes available. document is not subject to E.O. 13422, standards (FMVSS). If a product does Further, some people may submit late E.O. 12866, or to OMB Bulletin 07–02. not comply with an applicable FMVSS comments. Accordingly, we recommend For this reason, no economic analysis of or contains a defect related to motor that you periodically search the Docket this document has been prepared. vehicle safety, including a defect that for new material. However, since NHTSA recognizes manifests itself after considerable V. Executive Order 12866 on the public interest in this document, we operation in the field, the manufacturer ‘‘Significant Guidance’’ solicit public comment, before issuing a must recall it. Obviously, it is best if the final ‘‘Best Importer Practices’’ motor vehicle or equipment complies On January 18, 2007, the President document. We hope to publish a final with applicable FMVSS and does not issued Executive Order (E.O.) 13422, guidance document that will be as manifest defects. To reduce the ‘‘Further Amendment to Executive understandable and as user-friendly as likelihood of defects and Order 12866 on Regulatory Planning possible for manufacturers and noncompliances, manufacturers, and Review.’’ On the same day, in importers of motor vehicles and motor including importers, should become connection with E.O. 13422, the vehicle equipment. familiar with the best practices Director of the Office of Management In writing this draft ‘‘Best Practices’’ suggested here and adapt them to their and Budget (OMB) issued OMB Bulletin document, we have also voluntarily specific needs. NHTSA is also very No. 07–02 on ‘‘Agency Good Guidance sought to incorporate E.O. 12866’s willing to work closely with individual Practices.’’ The primary focus of E.O. principles (applicable to rules) that importers to explain our standards, 13422 and OMB Bulletin No. 07–02 is agencies write in ‘‘plain language.’’ reporting requirements, regulatory to improve the way the Federal Application of the principles of plain program, and enforcement process. government does business with respect language includes consideration of the (1) Fully Understand the Importer’s to guidance documents—by increasing following questions: their quality, transparency, Obligations under Motor Vehicle Safety • Have we organized the material to accountability, and coordination. Statutes and Regulations suit the public’s needs? Both Executive Order 13422 and OMB • Does this document contain Before importing motor vehicles or Bulletin No. 07–02 define ‘‘guidance technical language or jargon that is not motor vehicle equipment into the documents’’ as ‘‘an agency statement of clear? United States, it is essential that the general applicability and future effect, importer understand its obligations • Would a different format (grouping other than a regulatory action, that sets under Federal statutes and regulations and order of sections, use of headings, forth a policy on a statutory, regulatory, governing vehicle safety. This section paragraphing) make this document or technical issue or an interpretation of summarizes those obligations stemming a statutory or regulatory issue.’’ easier to understand? • from the Vehicle Safety Act, which the Guidance documents that are not Would more (but shorter) sections NHTSA administers.4 ‘‘significant’’ are not covered by E.O.s be better? 13422, 12866, or Bulletin No. 07–02. • Could we improve clarity by adding (a) Certification of Motor Vehicles and A ‘‘significant’’ guidance document is tables, lists, or diagrams? Equipment to the Federal Motor Vehicle one disseminated to regulated entities or • What else could we do to make this Safety Standards the general public that may reasonably document easier to understand? The Safety Act authorizes NHTSA to be anticipated to: Comments on how this draft issue the FMVSS, which set minimum (1) Lead to an annual effect of $100 document may be made more performance requirements for motor million or more or adversely effect in a understandable to manufacturers and vehicles and for certain items of motor material way the economy, a sector of importers of motor vehicles and motor vehicle equipment. See 49 CFR part 571. the economy, productivity, competition, vehicle equipment and to the general In general, motor vehicles are vehicles jobs, the environment, public health or public are solicited. driven or drawn by mechanical power safety, or State, local, or tribal In light of the foregoing, NHTSA governments or communities; proposes the following guidance and 4 It is wise for manufacturers and importers to become familiar with other laws not administered (2) create a serious inconsistency or recommended best practices for by NHTSA, such as State tort laws, which could otherwise interfere with an action taken importers of motor vehicles and motor impact the decision to sell products in the United or planned by another agency; vehicle equipment: States.

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and manufactured primarily for use on equipment sold in the United States. affected products, with notification of public roads. Motor vehicles have the NHTSA does not issue type approval the defect or noncompliance and must following type classifications: certifications and does not certify any remedy the defect or noncompliance, • Buses; motor vehicles or motor vehicle usually without charge. The notification • low-speed vehicles; equipment as complying with and remedy process is commonly • motorcycles; applicable FMVSS. Instead, we have a referred to as a ‘‘safety recall campaign’’ • multipurpose passenger vehicles; ‘‘self-certification’’ process, which or more simply as a ‘‘recall.’’ There is • passenger cars; places responsibility on the fabricating a limited exception under which a • trailers; and manufacturer to certify the vehicle or manufacturer that has reported a • trucks. equipment item as complying with the noncompliance to NHTSA may petition The following motor vehicle applicable FMVSS. Self-certification the agency for a determination that the equipment items are also subject to the reduces the cost and time associated noncompliance is inconsequential as it FMVSS: with lengthy, government-mandated relates to motor vehicle safety.6 See 49 • Tires; testing that is required under type CFR part 556. NHTSA monitors the • rims; approval. Self-certification also reduces remedy program to ensure its successful • brake hoses; regulatory costs and facilitates completion. The agency is not • brake fluid; international trade because it allows authorized to expend its funds on • seat belt assemblies; manufacturers to quickly bring to recalls; the expense of notifying owners • lamps, reflective devices, and market vehicles and equipment items and providing a remedy must be borne associated equipment; that incorporate safety and technology by the manufacturer and/or importer of • glazing (automotive glass and advancements. the products found to contain the defect plastics); The Vehicle Safety Act requires the or noncompliance. See 49 U.S.C. 30118– • motorcycle helmets; manufacturer to exercise ‘‘reasonable 30120. • child restraint systems (child safety care’’ when issuing its certification. See (d) Importers’ Recall Obligations seats); 49 U.S.C. 30115. To this end, NHTSA • platform lift systems for the encourages manufacturers to conduct Under the Vehicle Safety Act, mobility impaired; tests in accordance with the tests importers of motor vehicles and motor • rear impact guards for trailers; specified in the FMVSS. See 49 CFR vehicle equipment for resale are • triangular reflective warning part 571. considered ‘‘manufacturers.’’ See 49 devices, and; U.S.C. 30102(a)(5). Therefore, importers • compressed natural gas containers. (b) Noncompliance with a FMVSS or a must recognize that they have The Vehicle Safety Act requires Safety-Related Defect obligations under the Vehicle Safety manufacturers to certify that motor Notwithstanding the certification of a Act, which continue after motor vehicles and regulated items of motor product, a manufacturer may vehicles or items of motor vehicle vehicle equipment they produce for sale subsequently determine that a safety- equipment are sold to consumers within in the United States comply with all related defect or a noncompliance with the United States. If an importer applicable FMVSS. See 49 U.S.C. 30115. a FMVSS exists in a motor vehicle or a becomes aware that a vehicle or Motor vehicle equipment items that are motor vehicle equipment item it has equipment item it has imported not subject to the FMVSS do not require produced. Manufacturers have a duty to contains a defect related to motor certification; however, such items may notify NHTSA if they learn the vehicle vehicle safety or does not comply with be found (by either NHTSA or the or equipment contains a defect and in an applicable FMVSS, it must provide manufacturer) to have a safety-related good faith they decide that the defect is NHTSA, as well as owners and dealers defect, and if so, the manufacturer will related to motor vehicle safety, or in of the affected vehicles or equipment, have an obligation to furnish owners of good faith they decide that the vehicle with notification of the defect or the equipment with notification of, and or equipment does not comply with an noncompliance and must remedy the a remedy for, the defect, usually at no applicable FMVSS. See 49 U.S.C. defect or noncompliance, usually charge to the consumer. 30118(c). The manufacturer must notify without charge. An importer also has Type approval 5 is not required for NHTSA within five working days after notification and remedy responsibility if motor vehicles and motor vehicle determining the existence of a safety- NHTSA determined the existence of the related defect or noncompliance. See 49 defect or noncompliance and ordered it 5 In many countries, before motor vehicles or CFR 573.6. Alternately, NHTSA may to undertake a notification and remedy motor vehicle equipment items may be sold to determine the existence of a safety- campaign. consumers, the fabricating manufacturer must prove related defect or noncompliance in a If a fabricating manufacturer is not that these items comply with safety regulations and located in the United States and does receive pre-approval from a government agency. particular motor vehicle or motor This approach is commonly referred to as ‘‘type vehicle equipment item and order not conduct business operations in this approval.’’ Under type approval, a manufacturer manufacturers to recall those items. See country, including through a subsidiary submits production samples and specifications to 49 U.S.C. 30118(b). or other controlled entity, the U.S. an approved laboratory and if the product complies judicial system likely will not be able to with the standards, the government issues a type (c) Notification and Remedy for a approval certificate of compliance. Because this can effectively compel the foreign take many months, the manufacturer begins the Safety-Related Defect or Noncompliance process of obtaining type approval well in advance Regardless of whether the safety- 6 The National Traffic and Motor Vehicle Safety of bringing the product to market. After type Act of 1966 gives NHTSA the authority to exempt approval is granted, the manufacturer ensures that related defect or noncompliance with an manufacturers from the requirement to provide each vehicle or equipment item is produced in FMVSS is determined to exist by the notification and remedy for safety-related defects or conformance with the specifications that were manufacturer or by NHTSA, the noncompliances if the agency determines that the submitted for approval. If countries enter into manufacturer must provide NHTSA, as defect or noncompliance is inconsequential as it international agreements covering vehicle safety relates to motor vehicle safety. See 49 U.S.C. 30118, regulations, one country’s type approval may be well as owners and dealers of the 30120. The procedures for implementing this valid for another member country. For example, the statutory authority are set forth in 49 CFR part 556, Vehicle Certification Agency, an Executive Agency administers type approval in the U.K. See: http:// Exemption for Inconsequential Defect or of the United Kingdom Department for Transport, www.vca.gov.uk/index.asp. Noncompliance.

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manufacturer to conduct a recall. In that original (i.e. ‘‘fabricating’’) equipment items such as brake hoses, case, the burden of providing manufacturer. To be lawfully imported, glazing (automotive glass and plastics), notification to owners and dealers and a new or used item of motor vehicle and tires must label its products with a free remedy will fall solely upon the equipment that is subject to an FMVSS identification numbers assigned to the importer, unless the fabricating must, as originally manufactured, manufacturer by NHTSA.7 manufacturer voluntarily supports the conform to the standard and be so recall. certified by its original manufacturer. (h) Penalties See 49 U.S.C. 30112 and 30115. As Manufacturers and importers may be (e) NHTSA Defect Investigations noted above, items of motor vehicle subject to substantial civil penalties for In addition to the actions of the equipment that are subject to the failure to meet the requirements of the manufacturers and importers in FMVSS include tires, rims, brake hoses, statutes and regulations that NHTSA recalling noncompliant and defective brake fluid, seat belt assemblies, lamps, administers. See 49 U.S.C. 30165. motor vehicles and motor vehicle reflective devices, and associated Currently, those penalties can be as high equipment, NHTSA investigates equipment, glazing (automotive glass as $6,000 for each violation with a suspected noncompliances and safety- and plastics), motorcycle helmets, child maximum of $16,375,000 for a related related defects in motor vehicles and restraint systems (child safety seats), series of violations. See 49 CFR part motor vehicle equipment items. Before platform lift systems for the mobility 578. initiating an investigation of a suspected impaired, rear impact guards for trailers, (2) Exercise Great Care in Selecting safety-related defect, NHTSA ordinarily triangular reflective warning devices, Foreign Manufacturers reviews consumer complaints that are and compressed natural gas containers. submitted to the agency and other In most instances, the manufacturer’s International trade presents unique available information to determine certification of compliance with the risks. A company engaged in importing whether a defect trend exists. Among applicable FMVSS for regulated safety foreign manufactured goods or the other information the agency equipment is evidenced by the symbol considering becoming an importer reviews is Early Warning Reporting ‘‘DOT’’ either inscribed on the should have a complete and detailed (EWR) information submitted by equipment item in a prescribed location, business plan. The plan should reflect manufacturers under regulations issued or placed on the outside of the container careful consideration of the following pursuant to the Transportation Recall in which the equipment item is questions: Enhancement, Accountability, and shipped. • Who will determine the Documentation (TREAD) Act of 2000. As previously noted, NHTSA has specifications for the product? These regulations require authority to investigate possible safety- • On what basis will the product manufacturers, including by definition, related defects in a motor vehicle specifications be developed? importers, to submit information that equipment item regardless of whether • Who will design the product? could assist the agency in determining the item is subject to the FMVSS. When • Who will verify the product’s whether a safety-related defect exists in an item is subject to a FMVSS, design? a vehicle or in specified items of motor compliance with the standard does not • What laboratory and field tests will vehicle equipment. See 49 CFR part 579, ensure that the item is free of a safety- be undertaken? subpart C. Under the EWR rules, related defect. NHTSA investigates • Who will test product prototypes? • manufacturers must generally report numerous vehicles and items of What entity will fabricate various claims they receive on incidents equipment each year for possible parts? • resulting in fatalities or injuries defects. What manufacturing quality control allegedly caused by a defect in their will be undertaken? vehicles or motor vehicle equipment (g) Procedural Requirements for • How will manufacturing quality items used in the United States or Fabricating Manufacturers control be maintained? • deaths allegedly caused by a defect in Before offering a vehicle or motor How often will products be tested their identical or substantially similar vehicle equipment item for sale in the to ensure continued compliance with vehicles or equipment used in a foreign United States, the fabricating the FMVSS? • country. Moreover, depending on the manufacturer must: (1) Designate a U.S. What documentation will be resident as its an agent for service of generated? level of annual production and the type • of product, manufacturers may also be process if the manufacturer is not What documentation will be located in the United States (49 CFR maintained? required to provide NHTSA with • information on production, property part 551, Subpart D Service of Process Who will maintain the on Foreign Manufacturers and documentation? damage claims, consumer complaints, • warranty claims, field reports, as well as Importers) and (2) submit to NHTSA Who will check the documentation? Compliance with FMVSS is only a other information. identifying information on itself and the products it manufactures to the FMVSS, part of the considerations. Motor (f) Compliance Needed to Import Motor not later than 30 days after the vehicles operate in harsh conditions Vehicles and Equipment manufacturing process begins (49 CFR over many miles and some abuse must As part of its safety mandate, NHTSA part 566 Manufacturer Identification). be assumed; therefore, avoidance of monitors motor vehicles and items of The fabricating manufacturer of a motor safety-related defects is critical. motor vehicle equipment that are vehicle must also submit to NHTSA Selecting a capable and responsible imported into the United States for information the agency will need to overseas business partner is one of the compliance with applicable FMVSS. To decipher the manufacturer’s vehicle best ways to minimize risks. Before be imported free of restriction, a motor identification number or ‘‘VIN’’ format selecting a business partner in another vehicle less than 25 years old must be not later than 60 days prior to offering country, it is wise to investigate the originally manufactured to comply with the first vehicle for sale in the United 7 See 49 CFR 571.106, paragraph S5.2.2(b), all applicable FMVSS and bear a label States (49 CFR part 565 Vehicle relating to brake hoses; 49 CFR 571.205, paragraph certifying such compliance that is Identification Number Requirements). S6.2, relating to glazing; and 49 CFR 574.5, relating permanently affixed by the vehicle’s The manufacturer of certain regulated to tires.

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supplier’s reputation using readily agency regulations pertaining to Materials or ASTM), and the Society of available public source information manufacturers located outside the Automotive Engineers, International. (such as the Internet) or, if possible, by United States. It is reasonable to discuss See: http://www.sae.org. Manufacturers interviewing other customers of the with the prospective manufacturer at of certain automotive replacement parts supplier. It is advisable for a prospective the outset the need for incorporating the such as lighting equipment may wish to importer to check many references and requirements of the applicable FMVSS visit the Web site of the Certified not to limit its inquiries to references into the product’s design because it is Automotive Parts Association (CAPA) that the prospective supplier identifies. far less expensive to change the for more information about that If the country in which a manufacturer product’s design in the planning stage organization’s certification program. See is located has an established than after the product is manufactured, http://www.capacertified.org/home.asp. government agency to oversee product when tooling must be changed or an These examples are not intended to be safety, that agency’s public records may expensive safety recall conducted. If the all-inclusive. It may be desirable for an contain useful information on the importer intends to have the importer to contact other standard- company’s history of recalls and manufacturer produce a replacement setting and certification organizations regulatory compliance. Importers may part for a motor vehicle, the part associated with the type of products it also wish to consider requesting the installed as original equipment may be wishes to have manufactured, should potential supplier’s catalogs and sample used as a reference, keeping in mind the such organizations exist. products for evaluation. The U.S. need to avoid infringing on any Some manufacturers use other Department of Commerce also offers an applicable patent. systematic analysis tools such as a International Company Profile Report The importer and manufacturer may Failure Modes and Effects Analysis that may assist importers in evaluating wish to consider conducting a review of (FMEA) 11 to identify potential safety potential foreign partners. This report the product’s design (a ‘‘design review’’) hazards and to improve their products summarizes the financial strength of a that involves examining the product’s over time by reducing or eliminating company and provides useful configuration, the materials used in its failures. Using FMEA, failures can be information gleaned from the local fabrication, and its labeling and prioritized according to how serious press, industry contacts, and other packaging.8 Importers without staff their consequences are, how frequently sources. More information about this expertise and experience in design they may occur, and how easily they service is available on the Department of review may consider hiring a qualified can be detected.12 Commerce Web site. See http:// consultant. It may be worthwhile for the It may be advisable to have parties www.export.gov/salesandmarketing/ design review to include a foreseeable with expertise in standards and ICP.asp. use analysis,9 which involves regulations compliance, in-use At a minimum, it is prudent for integrating safety into the product’s durability, quality assurance, and importers to use existing sources of design. An effective foreseeable use customer service examine the results of information to ensure that they will analysis may reveal substantial safety the importer’s product design review. purchase, import, distribute, and sell hazards that involve risks of injury or Importers and manufacturers that do not motor vehicles and motor vehicle impairment of health that are related to have in-house expertise may consider equipment items subject to the FMVSS the product’s characteristics or using an accredited test laboratory to that are produced by foreign deficiencies. evaluate the safety of a product.13 manufacturers who: Apart from FMVSS, if any, that apply Importers should consider creating 1. Properly identify themselves and to the product, the importer may wish records that identify changes in the their products to NHTSA (49 CFR part to measure the product’s design against product’s design or in the production 566); a known set of objectives for the product process and to incorporate changes that 2. designate a U.S. resident as their and compare the product’s design to affect the product’s use into the agent for service of process (49 CFR part that of similar products produced by documents that accompany the product 551, subpart D); other manufacturers. When no FMVSS when sold. When changes are made to 3. furnish NHTSA with VIN- apply, it may also be sensible to the product’s design or to the deciphering information (if they measure the product’s design against production process, importers should manufacture ‘‘motor vehicles’’) (49 CFR accepted product standards such as a set obtain additional test data to assure the part 565); and of voluntary industry standards, should product continues to comply with stated 4. certify their products as complying one exist.10 To find applicable technical specifications and with all with all applicable FMVSS and so label standards, importers and manufacturers applicable FMVSS. For traceability 14 or their products (49 U.S.C. 30115). may wish to check the Web sites of recall reasons, changed products can be It would be advisable for the importer standard-setting bodies for products of identified by being marked or stamped to focus on the specifications for and the type at issue, such as the with ‘‘date’’ or ‘‘lot’’ codes, or in another design of the product and the Underwriters Laboratories Inc. (UL), manner that distinguishes new products requirements of all applicable FMVSS American National Standards Institute from old. It makes good sense to use covering the product that it wishes to (ANSI), American Welding Society current versions of the supporting import before beginning negotiations (AWS), ASTM International (originally technical documentation such as with a prospective overseas business the American Society for Testing and drawings; replacement parts data; partner. The importer should be well instructions for the product’s informed about U.S. import regulations 8 U.S. Consumer Product Safety Commission production, inspection, testing, and and any FMVSS requirements that cover (CPSC), ‘‘Handbook For Manufacturing Safer Consumer Products’’ (Washington, DC, July 2006), 11 the products the importer intends to p. 9. http://www.cpsc.gov/businfo/intl/ The FMEA process was originally developed by import. Before discussions take place handbookenglishaug05.pdf. Note: many of our the U.S. military in the 1940s. See: American with a prospective manufacturer, it may suggestions are based on CPSC’s Handbook, which Society for Quality, http://www.asq.org/learn- about-quality/process-analysis-tools/overview/ be worthwhile for the importer to have provides a wealth of helpful ideas that are generally applicable to various types of manufacturing fmea.html. translated into the language used by that processes. 12 CPSC, Handbook, p. 10. manufacturer the FMVSS that are 9 Ibid, p. 10. 13 Ibid, p. 10. applicable to the product and the 10 Ibid, p. 26. 14 Ibid, p. 25.

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repair; as well as operating handbooks, efforts are many independent provide guidance and conduct product and to remove from use obsolete organizations such as the U.S. Chamber inspections. documents and data.15 of Commerce, which represents more The importer should obtain sound than three million businesses.18 legal guidance before entering into an (3) Inspect Foreign Manufacturing It is advisable to reach agreement with agreement. Following execution of the Facilities a prospective supplier on what contract, it is wise to adhere to the Before entering into a written constitutes substandard or defective contract provisions or risk the costs of contract, we believe it is prudent for the products, and on who will be a legal dispute in a foreign country. The U.S. importer to personally visit the responsible for conducting recalls of importer should obey all laws and supplier’s facility and to determine products that have a safety-related regulations of the foreign country and be whether the manufacturer is properly defect or a noncompliance with a wary of any offer by the partner to licensed by the appropriate government FMVSS. Of particular importance in this ignore or avoid those laws. Also, the agencies. Several trips may be necessary context are the importer’s obligations importer may wish to become familiar to conduct an objective evaluation of the under the Vehicle Safety Act to make with U.S. Department of Commerce, company, its factory, and its determinations as to whether a product Bureau of Industry and Security (BIS) management. To reduce the potential for contains a safety-related defect or does regulations relating to the transfer of fraud, it is preferable to deal directly not comply with a FMVSS. The dual use technology to certain foreign with the manufacturer and to avoid importer should make clear to the countries. U.S. statutes prohibit transfer dealing with representatives (such as foreign fabricating manufacturer that the of some sensitive technologies without trade groups) that claim to represent a importer makes the determination of a a license. See http://www.bis.doc.gov/2. manufacturer. When dealing with a safety-related defect or noncompliance It may be imprudent to assume that business partner of the manufacturer, it under U.S. law regardless of the the overseas operations will run by is generally advisable to determine fabricating manufacturer’s views. The themselves and visits to the foreign whether the partner is a subsidiary of a importer must recognize that its liability manufacturer on a frequent basis may be larger company 16 and whether the to conduct a recall when the facts so needed to evaluate the state of affairs. importer has recourse against the parent warrant under the Vehicle Safety Act is During these visits, the importer should, company if the subsidiary defaults on joint and several and the willingness of if possible, talk to employees to learn of its obligations. It may also be reasonable the foreign fabricating manufacturer to any substitutions of materials, to hire a consultant if the importer has pay for all or some of the costs of the modifications of the product’s design, limited knowledge of, or experience recall is not relevant. Nonetheless, the and manufacturing problems that were with, the culture and trade practices of importer may wish to include encountered. The importer should a foreign country. provisions in the contract with the verify that the manufacturer is While visiting a manufacturer’s foreign fabricating manufacturer that complying with contractual foreign facilities, the importer may covers contingencies, including recalls. requirements by inspecting the consider asking the manufacturer’s All aspects of the product’s design facilities, production operations, production managers to identify the and the production process may be inspection and test records, supplies, quality control mechanisms that are in considered for inclusion in the written and audit results. The importer should place (e.g., ISO 9000 series quality contract, such as inspection and testing also ensure the product’s continued assurance compliance) and it may be procedures and any documentation the compliance with the standards by helpful to observe whether there is importer requires, including work having performed ongoing FMVSS evidence of good quality workmanship. orders, operation sheets, inspection compliance tests. This inspection and During the on-site visit, the importer logs, repair logs, and test procedure testing will provide feedback into the should look for counterfeit commodities checklists.19 The contract may also nature of the operation and is part of the or evidence of trademark or copyright specify under what circumstances the importer’s oversight of the operation violations such as fraudulent seals made product’s design may be changed (if at and its quality assurance/quality to look like those produced by all), what equipment must be used for control. The importer should not delay certification organizations. While particular manufacturing operations, taking corrective action with the NHTSA does not have authority to product traceability measures to be manufacturer when circumstances 20 enforce statutes that prohibit counterfeit employed, and the types of forms to be necessitate such action. products from being imported and the used for recording quantitative data (4) Inspect Goods Either Before They agency is aware that in some situations such as test readings. It is useful for the Are Exported to or Distributed in the counterfeit products may, in fact, contract to specify exact terms of United States comply with applicable FMVSS, payment, performance standards, and Different products, designs, and importers should avoid business timelines for deliveries and payments. fabrication processes will require dealings with known or suspected Other arrangements that are reached various levels of precision and accuracy counterfeiters. Importers should be between the importer and supplier of manufacturing equipment and aware that many Federal departments should also be made in writing, such as tooling.21 In all manufacturing and agencies are working with industry those covering the importer’s rights to processes, there is a need to monitor to stop the proliferation of counterfeit visit the production facility in order to products.17 Also assisting in these how well the products meet given specifications because products will (STOP!), to fight billions of dollars in global trade 15 Ibid, p. 24. in pirated and counterfeit goods that cheat deviate from specifications for reasons 16 For example, see U.S. Department of Commerce American innovators and manufacturers, hurt the such as new tooling, aging machinery, (DOC), ‘‘Essential China Advice’’ (Washington, DC, U.S. economy and endanger consumers worldwide. and human error. Manufacturers of 2001–2008) http://www.buyusa.gov/china/en/ See: http://www.stopfakes.gov or call 1–866–999– quality products use mathematical HALT. chinabiztips.html (February 22, 2008). models for calibrating production 17 The Office of the U.S. Trade Representative and 18 The U.S. Chamber of Commerce sponsors the the Departments of Commerce, State, Justice, and Coalition Against Counterfeiting and Piracy. See Homeland Security lead a government-wide http://www.thetruecosts.org/. 20 Ibid, p. 10. initiative, the Strategy Targeting Organized Piracy 19 CPSC, Handbook, p. 28. 21 Ibid, p. 28.

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equipment, controlling the output of the It is desirable to have an inspection prevent potentially dangerous products manufacturing process, and auditing plan to specify exactly what is to be from being delivered to consumers, it production processes to attain inspected, how an inspection will be may be desirable for importers and improvements. Therefore, importers conducted and how often, and the types manufacturers to discuss the need for may wish to carefully consider of gauges, tools, or instruments that will prompt corrective actions and to agree instituting a quality control program at be used. If inspections are particularly on those in advance. These actions may the outset. critical to product safety, the inspection include determining what caused the It would be wise for an importer to plan may require that they be performed problem, how to prevent future bear in mind that even though a product by designated specialized or certified problems, and the removal of problem appears to be well manufactured, this personnel.23 It would be advisable to products from the production and does not necessarily mean that it also include inspection procedures in the distribution channels before they reach complies with applicable FMVSS and contract and any changes should be consumers.26 Locating products within will not prove to be defective in actual mutually agreed upon so that a record the production and distribution system use. While it is important to produce of changes is maintained. We also is crucial to preventing hazardous quality products, it is crucial that suggest that the contract clearly state products from being delivered to manufacturers test, on a continuing how the costs of quality control consumers after safety-defects become basis, their products to verify inspection and any need to redesign a apparent. compliance with the FMVSS. To better product or process based on such The importer might consider being shoulder the costs of any testing needed inspections will be apportioned. prepared to provide the overseas partner to assure compliance, smaller importers From the moment products leave the with training and technical assistance to 27 may wish to consider consortium manufacturer until they are acquired by assure product quality. This purchasing, which would allow them to consumers, they are exposed to commitment to quality control may pool their resources. numerous contingencies that can affect minimize defect costs and maintain To ensure that product requirements their safety or usability. For these profits by ensuring the end user’s are within tolerances, it is sensible to reasons, it is best not to terminate satisfaction, thereby enhancing the collect product samples at quality control measures at the port and prospect for repeat business. On the predetermined intervals and inspect the prudent importer might consider other hand, neglecting oversight may them for compliance with any instituting quality control measures at result in compromised product quality specifications that are identified in storage locations and throughout the and could possibly lead to legal advance. The purpose of the inspection domestic distribution process. consequences at home and abroad. It is is to ensure that the products safely Distribution practices directly influence worth noting that the foreign country’s perform their intended functions. the safety of consumer products so it is court system may not be relied on to wise to exercise control over packaging Inspection procedures may include a offer a legal settlement consistent with and shipping operations. This control 28 visual examination, testing with U.S. practice. includes the selection of adequate appropriate instruments, measuring, or packaging materials, design of methods (5) Identify the Product’s Country of other forms of evaluation.22 of packaging that preclude damage in Origin Manufacturers collect production shipment, and selection of shipping It is generally required that an samples for inspection based on methods consistent with the physical imported product be properly marked mathematical models, which are beyond properties of the product. Packaging and with its country of origin. The pertinent the scope of this notice, but that are shipping techniques may need to be statute requires that, unless excepted, critical to ensuring the quality of the revised as experience dictates. In those every article of foreign origin (or its end products. Test programs that are instances where distributors are container) imported into the United based on statistically sound sampling involved in assembly or test operations States must be marked with the article’s techniques will increase the probability before delivery to the consumer it is country of origin. See section 304, Tariff that problems will be quickly identified wise to provide them with current and Act of 1930, as amended (19 U.S.C. and remedied before the products are adequate assembly and test instructions 1304). The purpose of the marking shipped. Obviously, it is preferable from and the importer may wish to ensure requirement is to inform the ultimate a cost perspective for nonconforming or that these instructions are followed.24 purchaser in the United States of the substandard products to be discovered When quality control problems are country in which the imported article by the manufacturer before shipping encountered, it may be useful to was produced. costs are incurred. determine what has caused the problem Articles that are not marked at the It is generally expected that quality and to collaborate with the time of importation with the English control issues will be greater within the manufacturer and participants in the name of their country of origin may be first batch of products made by the new distribution process to remediate the subject to additional duties unless they manufacturer. After the initial cause and prevent similar future are properly marked after importation, production run, the importer and problems. We believe it is wise to keep or are exported or destroyed under CBP manufacturer may want to conduct an in mind that reputable manufacturers supervision. CBP allows importers, inspection to determine whether the want to be apprised of problems and where administratively practicable, to initial products function as intended, will work for compliance with the mark goods that are not marked at the whether their dimensions are within importer’s requirements. time of importation, prior to their tolerances, and whether their Developing and nurturing personal release from CBP’s control or custody. appearance is satisfactory. The importer relationships with the business partner This rule does not apply to an importer and manufacturer may consider may be helpful and may pay dividends that has repeatedly violated the country conducting comprehensive tests of if problems are encountered.25 To of origin marking requirements after representative products to ensure compliance with design specifications. 23 Ibid, p. 36. 26 CPSC, Handbook, p. 45. 24 Ibid, p. 40. 27 U.S. DOC, Essential Advice. 22 Ibid, p. 35. 25 U.S. DOC, Essential Advice. 28 Ibid.

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receiving written notification from CBP the product for consumers to call if they identifying all retail purchasers of a that the goods are required to be marked have questions regarding the product. particular consumer product, the prior to importation. importer may wish to make a reasonable (c) Recordkeeping It is also important to keep in mind effort in that direction by requesting that any person who removes, destroys, An effective consumer service distributors, dealers or retailers to alters, covers, or obliterates, with the program will include a records system maintain such records or by including intent of concealing, the country of that identifies a product by serial with products self-addressed mailing origin marking on an imported article number, model, and date of cards for consumers to use, if they so could be subject to criminal manufacture and that identifies its choose, to register their ownership of prosecution.29 location in the distribution system and the product.31 Where it is a requirement after sale to a consumer. Importers to maintain records identifying retail (6) Establish a Consumer Service should be aware that recordkeeping Program purchasers of a product, such as is the becomes very important for notifying case for tires and for motor vehicles, the It is wise for importers to establish consumers, retailers, and distributors of importer must ensure that distributors, and maintain an effective consumer products when a safety recall is dealers, and retailers understand their service program because good service announced. obligations under existing regulations. leads to satisfied customers and repeat business. An effective consumer service (d) Safety Recall Plan For example, see 49 CFR part 574 Tire program may also assist the importer in An effective consumer service Identification and Recordkeeping. quickly identifying quality control and program will include a plan for the (g) Business Process Monitoring safety-related problems and allow the rapid recall of imported products from importer to remedy those problems consumers, distributors, and dealers. Other than complaints received before they become widespread. The plan should include procedures to directly from the importer’s consumer Importers should consider establishing a inform consumers how the importer service program, information that could consumer service program that includes will respond to safety defects or assist in identifying safety-related the following elements: noncompliances with the FMVSS that defects or noncompliances with the are determined to exist in a product.30 FMVSS includes insurance claims, (a) Consumer Education The recall plan should also establish lawsuits, product return data from An effective consumer service procedures for notifying NHTSA about business partners, the results of ongoing program will inform consumers using safety-related defects or quality assurance testing, and product manuals or instructions on how noncompliances with the FMVSS, as information about products that share products are to be assembled, installed, required by agency regulations. The common parts or platforms. The and operated to prevent safety hazards. recall plan should be periodically importer should also pay close attention For example, NHTSA recommends that evaluated and amended as necessary. to the EWR data it submits to NHTSA consumers read the instruction manual (e) Intervention because that information may be very provided with a newly purchased child useful in identifying safety-related safety seat as well as the seat belt and If a noncompliance or safety-related problems early in the product’s history. child seat installation section of their defect becomes apparent, an effective vehicle owner’s manual before consumer service program will assist an (7) Contact NHTSA Concerning attempting to install and use a child importer in locating products within the Manufacturer/Importer Reporting safety seat. production and distribution system and Requirements, Safety Compliance, and help to prevent problem products from Defect Issues (b) Product Service being delivered to consumers. An effective consumer service Enhanced product safety for imported program will make it easy for consumers (f) Notification motor vehicles and equipment will to obtain replacement parts and will In the event of a recall, the most result from a collaborative effort inform consumers how and where to important factor is the ability to inform between the importer community, take the product for servicing, as many owners, dealers, retailers, and manufacturers, and NHTSA. To this particularly for deficiencies or distributors of the product as possible. end, we offer the following agency malfunctions that are potential causes of Notifying owners will be the importer’s contact numbers and Internet resources safety hazards. Importers may consider responsibility. While it may be to help answer questions about these providing a U.S. telephone number with impractical to maintain records recommended best importer practices.

Office of Vehicle Safety Compliance Topic NHTSA Office/Internet Telephone No.

General questions about importing vehicles and equipment items ...... Import and Certification Division ...... (202) 366–5291

General Importation Information ...... http://www.nhtsa.dot.gov/cars/rules/import/

Questions about how a manufacturer informs NHTSA about its company and the Import and Certification Division ...... (202) 366–5291 products it manufactures. Questions about how to provide NHTSA with the manufacturer’s vehicle identi- Import and Certification Division ...... (202) 366–5291 fication number deciphering information.

29 U.S. Customs and Border Protection (CBP), www.cbp.gov/xp/cgov/toolbox/publications/trade/ 30 CPSC, Handbook, p. 42. ‘‘Marking of Country of Origin’’ (Washington, DC, (February 22, 2008). 31 Ibid, p. 45. December 2004) Publication # 0000–0539 http://

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Office of Vehicle Safety Compliance Topic NHTSA Office/Internet Telephone No.

Questions about NHTSA ID numbers that are assigned to equipment manufac- Equipment Division ...... (202) 366–5322 turers of brake hoses, glazing (glass), and tires.

Information to Assist New Manufacturers ...... http://www.nhtsa.dot.gov/cars/rules/maninfo/

Questions about FMVSS as they relate to equipment items (i.e., tires, rims, brake Equipment Division ...... (202) 366–5322 hoses, brake fluid, seat belt assemblies, lighting equipment, glazing (auto- motive glass and plastics), motorcycle helmets, child restraint systems (child safety seats), platform lift systems for the mobility impaired, rear impact guards for trailers, triangular reflective warning devices, and compressed natural gas containers).

Federal motor vehicle safety standards (FMVSS) ...... http://www.nhtsa.dot.gov/cars/rules/

NHTSA’s Manufacturer Databases ...... www.nhtsa.dot.gov/cars/rules/manufacture

Government Vehicle Safety Information ...... http://www.safercar.gov/

Office of Defects Investigation Topic NHTSA Office/Internet Telephone No.

Questions about Early Warning Reporting (EWR) ...... Early Warning Division ...... (202) 366–4238

Early Warning Reporting ...... http://www-odi.nhtsa.dot.gov/ewr/ewr.cfm

Questions about Defects and Recalls ...... Office of Defects Investigation ...... (202) 366–5210

Defects Investigations ...... http://www-odi.nhtsa.dot.gov/

Office of Chief Counsel Topic NHTSA Office/Internet Telephone No.

Questions about how the statutes and regulations administered by Office of Chief Counsel ...... Requests for interpretations should NHTSA are interpreted. be made in writing.

NHTSA Chief Counsel interpretive letters ...... http://isearch.nhtsa.gov/

NHTSA Statutory Authorities ...... http://www.nhtsa.dot.gov/nhtsa/Cfc_title49/index.html

NHTSA Regulations ...... http://www.nhtsa.dot.gov/cars/rules/

Questions about how to designate a U.S. resident as an agent for Office of Chief Counsel ...... (202) 366–1834. service of process.

Suggested Designation of Agent for Service of Process 49 CFR Part http://www.nhtsa.dot.gov/cars/rules/manufacture/agent/customer.html 551, Subpart D.

(8) General Assistance with Federal www.business.gov/contacts/federal/. Issued on: July 1, 2008. Regulations U.S. Customs and Border Protection Daniel C. Smith, The Office of Management and (CBP), an agency of the U.S. Department Associate Administrator for Enforcement. Budget, in conjunction with the U.S. of Homeland Security, has also [FR Doc. E8–15494 Filed 7–7–08; 8:45 am] Small Business Administration, published ‘‘Importing into the United BILLING CODE 4910–59–P publishes a one-stop Internet resource to States: A Guide for Commercial make it easier for importers to Importers,’’ which provides wide- understand Federal regulations, ranging information about the importing DEPARTMENT OF THE TREASURY including those administered by process and import requirements. See: NHTSA. The Web site provides a point http://www.cbp.gov/xp/cgov/toolbox/ Open Meeting of the Advisory of contact at each agency to answer publications/trade/. Committee on the Auditing Profession specific questions.32 See: http:// Authority: E.O. 13439, 72 FR 40051. AGENCY: Office of the Undersecretary for 32 The Small Business Paperwork Relief Act of Domestic Finance, Treasury. 2002 (SBPRA) requires each Federal agency to ACTION: Notice of meeting. establish a point of contact to act as a liaison between the agency and small businesses. In SUMMARY: addition, SBPRA requires the Office of Management The Department of the and Budget (OMB), in conjunction with the Small a list of compliance assistance resources available Treasury’s Advisory Committee on the Business Administration, to publish on the Internet at Federal agencies for small businesses. Auditing Profession will convene a

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meeting on Tuesday, July 22, 2008, in U.S.C. App. 2 and the regulations Service, room 6129, 1111 Constitution the Cash Room of the Main Department thereunder, David G. Nason, Designated Avenue, NW., Washington, DC 20224. Building, 1500 Pennsylvania Avenue, Federal Officer of the Advisory FOR FURTHER INFORMATION CONTACT: NW., Washington, DC, beginning at 1 Committee, has ordered publication of Requests for additional information or p.m. Eastern Time. The meeting will be this notice that the Advisory Committee copies of the forms and instructions open to the public. will convene a meeting on Tuesday, July should be directed to Carolyn N. Brown, DATES: The meeting will be held on 22, 2008, in the Cash Room in the Main (202) 622–6688, or at Internal Revenue Tuesday, July 22, 2008, at 1 p.m. Eastern Department Building, 1500 Service, room 6129, 1111 Constitution Time. Pennsylvania Avenue, NW., Avenue, NW., Washington, DC 20224, ADDRESSES: The Advisory Committee Washington, DC, beginning at 1 p.m. or through the internet, at will convene a meeting in the Cash Eastern Time. The meeting will be open [email protected]. to the public. Because the meeting will Room of the Main Department Building, SUPPLEMENTARY INFORMATION: be held in a secured facility, members 1500 Pennsylvania Avenue, NW., Title: Short Form Return of of the public who plan to attend the Washington, DC. The public is invited Organization Exempt From Income Tax. meeting must contact the Office of to submit written statements with the OMB Number: 1545–1150. Domestic Finance, at (202) 622–4944, by Advisory Committee by any of the Form Number: 990–EZ. following methods: 5 p.m. Eastern Time on July 18, 2008, Abstract: An annual return is required to inform the Department of the desire Electronic Statements by Internal Revenue Code section 6033 to attend the meeting and to provide the for organizations exempt from income • Use the Department’s Internet information that will be required to tax under Code section 501(a). Form submission form (http://www.treas.gov/ facilitate entry into the Main 990–EZ is used by tax exempt offices/domestic-finance/acap/ Department Building. The agenda for organizations and nonexempt charitable comments); or this meeting consists of consideration of trusts whose gross receipts are less than Paper Statements a second draft of the Advisory $100,000 and whose total assets at the • Committee’s Final Report. Although the end of the year are less than $250,000 Send paper statements in triplicate Department has endeavored to provide to Advisory Committee on the Auditing to provide the IRS with the information advance notice of at least fifteen days required by Code section 6033. IRS uses Profession, Office of Financial prior to this meeting, because of the July Institutions Policy, Room 1418, the information from Form 990–EZ to 4 holiday, publication of this notice may ensure that tax exempt organizations are Department of the Treasury, 1500 be delayed. Pennsylvania Avenue, NW., operating within the limitations of their Washington, DC 20220. Dated: June 30, 2008. tax exemption. In general, the Department will post Taiya Smith, Current Actions: Form 990–EZ was all statements on its Web site (http:// Executive Secretary. modified to allow the use of new www.treas.gov/offices/domestic- [FR Doc. E8–15387 Filed 7–7–08; 8:45 am] Schedules A, C, E, G, L and N of the finance/acap/comments) without BILLING CODE 4810–25–P 2008 Form 990. These schedules are change, including any business or used to report information currently personal information provided such as required by the Form 990–EZ. A total of names, addresses, e-mail addresses, or DEPARTMENT OF THE TREASURY 481 line items, 123 code references and telephone numbers. The Department 766,003 responses were added to this will also make such statements available Internal Revenue Service form due to the new filing requirement for public inspection and copying in the and additional schedules. Proposed Collection; Comment Department’s Library, Room 1428, Main Type of Review: Revision of a Request for Form 990–EZ Department Building, 1500 currently approved collection. Affected Public: Not-for-profit Pennsylvania Avenue, NW., AGENCY: Internal Revenue Service (IRS), Washington, DC 20220, on official Treasury. institutions. business days between the hours of 10 Estimated Number of Respondents: ACTION: Notice and request for 412,315. a.m. and 5 p.m. Eastern Time. You can comments. make an appointment to inspect Estimated Time per Respondent: 105 hrs., 48 min. statements by telephoning (202) 622– SUMMARY: The Department of the Estimated Total Annual Burden 0990. All statements, including Treasury, as part of its continuing effort Hours: 43,656,636. attachments and other supporting to reduce paperwork and respondent The following paragraph applies to all materials, received are part of the public burden, invites the general public and of the collections of information covered record and subject to public disclosure. other Federal agencies to take this by this notice: You should submit only information opportunity to comment on proposed An agency may not conduct or that you wish to make available and/or continuing information sponsor, and a person is not required to publicly. collections, as required by the respond to, a collection of information Paperwork Reduction Act of 1995, FOR FURTHER INFORMATION CONTACT: unless the collection of information Public Law 104–13 (44 U.S.C. Kristen E. Jaconi, Senior Policy Advisor displays a valid OMB control number. 3506(c)(2)(A)). Currently, the IRS is to the Under Secretary for Domestic Books or records relating to a collection soliciting comments concerning Form Finance, Department of the Treasury, of information must be retained as long 990–EZ, Short Form Return of Main Department Building, 1500 as their contents may become material Organization Exempt From Income Tax. Pennsylvania Avenue, NW., in the administration of any internal Washington, DC 20220, at (202) 927– DATES: Written comments should be revenue law. Generally, tax returns and 6618. received on or before September 8, tax return information are confidential, SUPPLEMENTARY INFORMATION: In 2008, to be assured of consideration. as required by 26 U.S.C. 6103. accordance with section 10(a) of the ADDRESSES: Direct all written comments Request for Comments: Comments Federal Advisory Committee Act, 5 to R. Joseph Durbala, Internal Revenue submitted in response to this notice will

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be summarized and/or included in the (b) the accuracy of the agency’s estimate technology; and (e) estimates of capital request for OMB approval. All of the burden of the collection of or start-up costs and costs of operation, comments will become a matter of information; (c) ways to enhance the maintenance, and purchase of services public record. Comments are invited on: quality, utility, and clarity of the to provide information. (a) Whether the collection of information to be collected; (d) ways to Approved: June 27, 2008. information is necessary for the proper minimize the burden of the collection of R. Joseph Durbala, performance of the functions of the information on respondents, including IRS Reports Clearance Officer. agency, including whether the through the use of automated collection [FR Doc. E8–15462 Filed 7–7–08; 8:45 am] information shall have practical utility; techniques or other forms of information BILLING CODE 4830–01–P

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Part II

Department of Energy Federal Energy Regulatory Commission

18 CFR Part 37 Preventing Undue Discrimination and Preference in Transmission Service; Final Rule

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DEPARTMENT OF ENERGY determinations in Order Nos. 890 and in the rules applicable to planning and 890–A, granting rehearing and use of the transmission system. Federal Energy Regulatory clarification regarding certain revisions DATES: Effective Date: This rule will Commission to its regulations and the pro forma become effective September 8, 2008. open-access transmission tariff, or FOR FURTHER INFORMATION CONTACT: 18 CFR Part 37 OATT, adopted in Order Nos. 888 and W. Mason Emnett (Legal Information), [Docket Nos. RM05–17–003 and RM05–25– 889 to ensure that transmission services 003; Order No. 890–B] Office of the General Counsel—Energy are provided on a basis that is just, Markets, Federal Energy Regulatory reasonable, and not unduly Commission, 888 First Street, NE., Preventing Undue Discrimination and discriminatory. The reforms affirmed in Preference in Transmission Service Washington, DC 20426, (202) 502– this order are designed to: Strengthen 6540. Issued June 23, 2008. the pro forma OATT to ensure that it Daniel Hedberg (Technical Information), AGENCY: Federal Energy Regulatory achieves its original purpose of Office of Energy Market Regulation, Commission. remedying undue discrimination; Federal Energy Regulatory ACTION: Order on rehearing and provide greater specificity to reduce Commission, 888 First Street, NE., clarification. opportunities for undue discrimination Washington, DC 20426, (202) 502– and facilitate the Commission’s 6243. SUMMARY: The Federal Energy enforcement; and increase transparency Regulatory Commission affirms its basic SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS

Paragraph Number

I. Introduction ...... 1 II. Reforms of the OATT ...... 7 A. Consistency and Transparency of ATC Calculations ...... 7 1. Consistency ...... 8 2. Transparency ...... 25 B. Transmission Pricing ...... 38 1. Energy and Generation Imbalances ...... 38 2. Credits for Network Customers ...... 46 3. Capacity Reassignment ...... 68 4. Operational Penalties ...... 87 5. ‘‘Higher Of’’ Pricing Policy ...... 102 6. Other Ancillary Services ...... 109 C. Non-Rate Terms and Conditions ...... 116 1. Modifications to Long-Term Firm Point-to-Point Service ...... 116 2. Rollover Rights ...... 141 3. Acquisition of Transmission Service ...... 155 4. Designation of Network Resources ...... 162 5. Clarifications Related to Network Service ...... 216 6. OATT Definitions ...... 220 III. Information Collection Statement ...... 250 IV. Document Availability ...... 251 V. Effective Date and Congressional Notification ...... 254 Appendix A: Petitioners’ Acronyms Appendix B: Pro Forma Open Access Transmission Tariff

Before Commissioners: Joseph T. Kelliher, pro forma OATT was intended to foster by reforming the terms and conditions Chairman; Suedeen G. Kelly, Marc Spitzer, greater competition in wholesale power of the pro forma OATT in several Philip D. Moeller, and Jon Wellinghoff. markets by reducing barriers to entry in critical areas, including the calculation Order on Rehearing and Clarification the provision of transmission service. In of available transfer capability (ATC), the ten years since Order No. 888, the planning of transmission facilities, I. Introduction however, flaws in the pro forma OATT and the conditions of services offered by 1. On February 16, 2007, the undermined its ability to realize the each transmission provider. 1 Commission issued Order No. 890, core objective of remedying undue 2. In Order No. 890–A, the addressing and remedying opportunities discrimination. The Commission acted Commission largely affirmed the for undue discrimination under the pro in Order No. 890 to correct these flaws reforms adopted in Order No. 890. The forma Open Access Transmission Tariff Commission noted that work was well (OATT) adopted in Order No. 888.2 The Costs by Public Utilities and Transmitting Utilities, underway to develop consistent Order No. 888, 61 FR 21540 (May 10, 1996), FERC practices governing the calculation of 1 Preventing Undue Discrimination and Stats. & Regs. ¶ 31,036 (1996), order on reh’g, Order Preference in Transmission Service, Order No. 890, No. 888–A, 62 FR 12274 (Mar. 14, 1997), FERC ATC in coordination with the North 72 FR 12266 (March 15, 2007), FERC Stats. & Regs. Stats. & Regs. ¶ 31,048 (1997), order on reh’g, Order American Electric Reliability ¶ 31,241 (2007) (Order No. 890), order on reh’g, No. 888–B, 81 FERC ¶ 61,248 (1997), order on reh’g, Corporation (NERC) and the North Order No. 890–A, 73 FR 2984 (Jan. 16, 2008), FERC Order No. 888–C, 82 FERC ¶ 61,046 (1998), aff’d in American Energy Standards Board Stats. & Regs. ¶ 31,261 (2007) (Order No. 890–A). relevant part sub nom. Transmission Access Policy 2 Promoting Wholesale Competition Through Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000) (NAESB). When complete, the reliability Open Access Non-discriminatory Transmission (TAPS v. FERC), aff’d sub nom. New York v. FERC, standards developed through NERC and Services by Public Utilities; Recovery of Stranded 535 U.S. 1 (2002). the business practices developed

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through NAESB will eliminate the broad Commission’s determinations in Order consistency of all ATC components 4 discretion that transmission providers No. 890–A.3 and certain definitions, data inputs, data have in calculating ATC, increasing 6. The Commission largely affirms the exchange, and modeling assumptions in nondiscriminatory access to the grid determinations reached in Order No. order to reduce the potential for undue and ensuring that customers are treated 890–A, granting limited rehearing and discrimination in the provision of fairly in seeking alternative power clarification to address certain specific transmission service. In response to supplies. matters raised by petitioners. Revisions petitioner requests, the Commission to the pro forma OATT are required to clarified that adjacent transmission 3. The Commission also noted the implement several of these providers must coordinate and exchange substantial resources that transmission determinations, although none disturb data and assumptions to achieve providers have dedicated to the the fundamental nature of the reforms consistent ATC values on either side of development of transmission planning adopted in Order No. 890. We therefore a single interface, regardless of whether processes in response to Order No. 890. do not anticipate any difficulty in their they use the same or different ATC Transmission planning is critical implementation or disruption in on- methodologies. The Commission also because it is the means by which going compliance efforts. We direct reiterated that its regulations require the customers consider and access new transmission providers that have not posting of ATC values associated with a sources of energy and have an been approved as RTOs or ISOs, and particular path, not available flowgate opportunity to explore the feasibility of whose facilities are not in the footprint capacity (AFC) values associated with a non-transmission alternatives. It is of an RTO or ISO, to submit a Federal flowgate. The Commission clarified, therefore vital for each transmission Power Act (FPA) section 206 filing that however, that a transmission provider is provider to open its transmission contains the revised non-rate terms and free to post both ATC and AFC values. planning process to customers, conditions of the pro forma OATT The Commission further clarified that coordinate with customers regarding stated in Appendix B within 60 days of transmission-owning utilities in an RTO future system plans, and share publication of this order in the Federal region can request waiver of the necessary planning information with Register. We direct RTO and ISO requirement to convert AFC calculations customers. transmission providers, transmission into ATC for posting purposes in the 4. In addition, transmission providers providers whose facilities are in the event the RTO has been granted such a have implemented new service options footprint of an RTO or ISO, and WSPP waiver. to submit an FPA section 206 filing that for long-term firm point-to-point contains the revised non-rate terms and Requests for Rehearing and Clarification customers and adopted modifications to conditions of the pro forma OATT as 9. Duke, EEI, and E.ON U.S. object to other services. Instead of denying a stated in Appendix B within 90 days of the requirement that ATC values be long-term request for point-to-point publication of this order in the Federal consistent on either side of an interface service because as little as one hour of Register. and suggest alternatively that service is unavailable, transmission transmission providers be required to II. Reforms of the OATT providers now consider their ability to achieve consistent TTC values on either offer a modified form of planning A. Consistency and Transparency of side of the interface. Duke contends that redispatch or a new conditional firm ATC Calculations achieving consistency in TTC values option to accommodate the request. 7. In Order No. 890–A, the will not necessarily result in consistent This increases opportunities to Commission affirmed its conclusion in ATC values. EEI agrees, arguing that efficiently utilize transmission by Order No. 890 that the lack of ATC will be identical on both sides of eliminating artificial barriers to use of consistency and transparency in the an interface only in the unlikely event the grid. Charges for energy and methodology for calculating ATC that the transmission providers each generation imbalances also have been creates the potential for undue simultaneously receive and process standardized, including relaxed discrimination in the provision of open corresponding transmission requests penalties for intermittent resources. access transmission service. To remedy and schedules for the same type of This standardization reduces the this lack of consistency and product. EEI contends that transmission potential for undue discrimination, transparency, the Commission directed providers therefore will have to expend increases transparency, and reduces public utilities, working through the substantial effort and resources to confusion in the industry that resulted NERC reliability standards and NAESB constantly monitor and investigate from the prior lack of consistency. business practices development differences in ATC values, the burden of 5. The Commission concluded that, processes, to produce workable which EEI argues outweighs any benefit realized. taken together, these and other reforms solutions to implement ATC-related 10. Joined by E.ON U.S., Southern adopted in Order No. 890 will better reforms adopted by the Commission. A suggests that the Commission clarify enable the pro forma OATT to achieve number of petitioners seek rehearing that ‘‘consistent ATC values’’ does not the core objective of remedying undue and/or clarification regarding the Commission’s ATC-related mean that ATC or TTC values on either discrimination in the provision of side of an interface must be identical. transmission service. The Commission determinations in Order No. 890–A, which we address below. Southern argues that interpreting therefore rejected requests to eliminate, ‘‘consistent’’ to mean ‘‘identical’’ would or substantially modify, the various 1. Consistency be contrary to reliable planning and not reforms adopted in Order No. 890. The a. Necessary Degree of and Process To reasonably achievable. Southern Commission did, however, grant Achieve Consistency contends that there are a number of rehearing and clarification regarding reasons why adjacent transmission certain revisions to its regulations and 8. The Commission affirmed the the pro forma OATT. decision in Order No. 890 to require 4 The ATC components are total transfer Several petitioners have sought capability (TTC), existing transmission 3 A list of petitioners filing requests for rehearing commitments (ETC), capacity benefit margin (CBM), further rehearing and clarification of the and/or clarification is provided in Appendix A. and transmission reserve margin (TRM).

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providers may have varying ATC and Order Nos. 890 or 890–A. If the the Commission explained in Order No. TTC values on an interface, including Commission intended in Order No. 890– 890, if all of the ATC components and partial path transmission service, CBM A to modify the requirements for certain data inputs and assumptions are and TRM, and the impacts of multiple posting ATC, or reverse its consistent, the ATC calculation interfaces. determination that the scenario analyzer methodologies being finalized by NERC 11. EEI and E.ON U.S. also request the complies with the posting requirements, through the reliability standards Commission clarify that the process of Entergy requests clarification regarding development process should produce achieving consistency of TTC values what specific actions are required of predictable and sufficiently accurate, should occur through the ongoing NERC transmission providers that rely on the consistent, equivalent, and replicable and NAESB processes. They argue that AFC process. Entergy also asks that results.8 We therefore disagree that the the Commission in Order No. 890 only those transmission providers be allowed directive to coordinate and exchange required the consistency of components, to continue using the scenario analyzer data and assumptions to achieve definitions, data and assumptions with until those measures are in place. consistent ATC values on either side of respect to ATC and its components, Entergy states that the sole purpose of an interface was newly imposed in including TTC. They contend that the the scenario analyzer has been to Order No. 890–A. The Commission Commission did not require consistency comply with the Commission’s posting simply clarified that the requirement requirements and that transmission in ATC values or provide for a means stated in Order No. 890 applies equally providers should not be required to to reconcile differences in ATC to calculations of ATC on either side of maintain two different and duplicative calculations performed by multiple an interface. transmission providers. EEI and E.ON systems for meeting those requirements. U.S. suggest that it may take additional 14. E.ON U.S. requests clarification 16. Public utilities have already been time for NERC and NAESB to develop that all transmission-owning utilities directed to work through the NERC and standards and business practices to within an RTO region can request NAESB processes to achieve such achieve consistency in TTC values or waiver of the requirement to convert consistency in ATC and TTC values. In reconcile differences between ATC AFC calculations into ATC for posting response to Duke, the Commission will values at common interfaces. Duke purposes in the event the RTO has been address whether the resulting reliability requests confirmation that compliance granted such a waiver, and not just standards and business practices with the NERC and NAESB transmission-owning utilities that are adequately satisfy this consistency methodologies regarding TTC and members of the RTO. E.ON U.S. states requirement on review of those related calculations, once they have that many of its neighboring systems reliability standards and business been adopted and implemented, is utilize AFC instead of ATC, requiring it practices. We note that public utilities sufficient to comply with the to calculate AFC in order to transact were recently granted an extension of consistency requirement imposed in with the adjacent RTO members, to time to finalize their work through the Order No. 890–A. alleviate seams issues with these NERC and NAESB processes. In Order 12. Entergy requests the Commission neighboring systems, and increase No. 890, the Commission directed each to clarify that Order No. 890–A was not transparency for across the border transmission provider to file a revised intended to reverse the Commission’s transactions. E.ON U.S. contends that Attachment C to its OATT to AFC calculations are much more prior determination that Entergy and incorporate any changes associated with accurate means to determine if capacity other transmission providers can rely on the revised reliability standards and is available on a flowgate than are ATC the scenario analyzer to satisfy the ATC business practices within 60 days of calculations. If the Commission declines posting requirements in part 37 of the completion of the NERC and NAESB Commission’s regulations.5 Although to grant the requested clarification, E.ON U.S. seeks rehearing on the processes. We clarify that these revised Entergy uses an AFC methodology, it Attachment C filings are due 60 days posts ATC values on a path-specific grounds that the Commission is creating new seams where they do not currently after the date on which the relevant basis by providing transmission reliability standards or business customers a scenario analyzer tool that exist by requiring transmission capacity to be calculated differently on both practices takes effect, not their allows them to instantaneously evaluate submission for Commission review. transfer capability on a source-to-sink sides of the border for such transactions. basis. Entergy states that its scenario Commission Determination 17. We grant the clarification requested by Entergy regarding the analyzer is also relied on by other 15. The Commission affirms the transmission providers, such as the Commission’s February 11, 2004 clarification provided in Order No. determination that Entergy’s AFC Southwest Power Pool, Inc. and the 890–A that adjacent transmission Midwest Independent Transmission methodology meets the minimum providers must coordinate and exchange posting requirements for transmission System Operator, Inc. Entergy states that data and assumptions to achieve the scenario analyzer will notify the capability set forth in Order No. 889.9 consistent ATC values on either side of The Commission did not amend in customer the proposed request could be 7 a single interface. We disagree with Order Nos. 890 or 890–A the obligation approved if sufficient AFC exists. petitioners arguing that ‘‘consistent’’ 13. Entergy notes that the Commission for transmission providers to post ATC ATC values should not be interpreted as has previously concluded that values associated with a particular path identical. We recognize that factors such ‘‘Entergy’s AFC methodology meets the instead of AFC values associated with a as timing of reservation requests, established minimum posting flowgate.10 Prior determinations by the acceptances, and confirmations, and requirements for transmission capability Commission that a particular practice multiple interfaces between and among set forth in Order No. 889,’’ 6 which satisfies that obligation, or waiving that transmission providers, can make it Entergy argues were not changed in difficult to achieve coincidental, 8 identical postings of ATC values on See Order No. 890 at P 210. 5 Citing Entergy Servs., Inc., 106 FERC ¶ 61,115 9 See Entergy Servs., Inc., 106 FERC ¶ 61,115 at (2004); 18 CFR 37.6(b)(2)(i) (2007). both sides of an interface. However, as P 50. 6 See Entergy Servs., Inc., 106 FERC ¶ 61,115 at 10 See 18 CFR 37.6(b)(1)(i); see also Order No. 890 P 50. 7 See Order No. 890–A at P 52. at P 211; Order No. 890–A at P 51.

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obligation altogether, therefore remain called upon CBM to meet a generation receive an inappropriate credit for non- intact.11 deficit emergency in six years, resulting firm use of capacity set aside for CBM. 18. We disagree with E.ON U.S. that in that capacity consistently being made Further clarification is unnecessary. non-member transmission-owning available to non-firm customers. 24. With regard to reserve sharing utilities within an RTO region are Southern argues that non-firm arrangements, the Commission clearly similarly situated to member customers therefore directly benefit stated in Order No. 890–A that TRM is transmission-owning utilities, which the from CBM and should bear transmission the appropriate category for reserve Commission noted in Order No. 890–A charges that include the cost of the sharing arrangements and that, in may request waiver of the requirement capacity they are actually utilizing. If comparison, CBM is used to meet to convert AFC calculations into ATC the Commission does not wish to make generation reliability criteria in times of for posting purposes in the event the a generic determination, Southern asks emergency generation deficiencies.16 RTO has been granted such a waiver. the Commission to clarify that the issue Therefore, transmission providers must RTO members that have retained control of whether non-firm customers benefit use TRM, not CBM, for reserve sharing over certain transmission facilities from CBM will be addressed on a case- arrangements and make ATC set aside operate those transmission facilities in by-case basis. for that purpose available to all LSEs on coordination with the RTO. In 21. TDU Systems request clarification a comparable basis for any reserve comparison, non-RTO members provide of the Commission’s statement in Order sharing arrangements they may have. transmission service independently and, No. 890–A that TRM is the appropriate 2. Transparency therefore, for purposes of ATC category for reserve sharing calculation are similar to a transmission arrangements. TDU Systems request 25. In Order No. 890–A, the provider outside the RTO region. confirmation that, if a transmission Commission clarified that all data used Nevertheless, we reiterate that a provider is using another form of set- to calculate ATC and TTC for any transmission provider is free to post aside for reserve sharing purposes, such constrained paths and any system both ATC and AFC values if it believes as CBM, the transmission providers’ planning studies or specific network such postings provide additional customers are entitled to comparable impact studies performed for customers transparency.12 use of the form of set-aside. TDU are to be made available on request, regardless of whether the customer is b. ATC Components—CBM and TRM Systems argue that comparability cannot be achieved where the transmission non-affiliated or affiliated with the 19. In Order No. 890–A, the provider does not offer use of transmission provider. The Commission Commission affirmed the decision in transmission capacity set-asides to LSE also clarified that underlying load Order No. 890 to require public utilities, customers comparable to the use that forecast assumptions to be posted on working through NERC and NAESB, to the transmission provider allows itself. OASIS should include economic and develop clear standards and business weather-related assumptions. The practices for how the CBM value is Commission Determination Commission concluded that posting determined, allocated across 22. The Commission affirms the load forecast and actual load data on a transmission paths and flowgates, and requirement adopted in Order No. 890, control area and LSE level does not raise used. The Commission also affirmed the and affirmed in Order No. 890–A, that serious competitive implications. The requirement that transmission providers transmission providers design their Commission stated that it would design their transmission charges so that transmission charges so that the class of consider requests for exemption from the class of customers not benefiting customers not benefiting from the CBM this posting requirement on a case-by- from the CBM set-aside, i.e., point-to- set-aside, i.e., point-to-point customers, case basis if there is customer-specific point customers, does not pay a does not pay a transmission charge that information deemed confidential by the transmission charge that includes the includes the cost of the CBM set-aside.13 affected customer that impedes the cost of the CBM set-aside. The We disagree with Southern that non- ability of the transmission provider to Commission explained that only firm customers benefit directly from the post this data.17 network customers and the transmission CBM set-aside. The Commission 26. The Commission further clarified provider on behalf of its native load may acknowledged in Order No. 890–A that that transmission providers must make request that transmission capacity be set capacity set aside for CBM may be made available, upon request and subject to aside as CBM and, therefore, only those available to non-firm customers when appropriate confidentiality protections users of the system should bear its costs. not otherwise in use.14 That benefit, and CEII requirements, certain modeling The Commission also rejected requests however, is indirect and inferior to the data including load flow base cases and to use CBM for reserve-sharing direct benefits enjoyed by those entities generation dispatch methodology and, arrangements, reiterating that TRM is that have the exclusive right to request subject to additional reasonable and the appropriate category for reserve- the set-aside in the first instance. applicable generator confidentiality sharing. 23. The Commission acknowledged in limitations, production cost models (including assumptions, settings, study Requests for Rehearing and Clarification Order No. 890–A that use of capacity set aside for CBM by non-firm customers results, input data, etc.). The 20. Southern requests rehearing of the may result in revenues that are credited Commission declined to require Commission’s statement that non-firm to the transmission provider’s cost of transmission providers to post this point-to-point transmission customers service, to the benefit of point-to-point information on OASIS. only receive an indirect benefit from 15 customers. The Commission stated its Requests for Rehearing and Clarification CBM. Southern contends that under expectation that transmission providers normal conditions without generation would address in rate design filings any 27. Duke seeks clarification of the deficiencies, non-firm point-to-point possibility for particular customers to requirement to post information customers may use CBM set-aside requested by an affiliate when that capacity. Southern states that it has not 13 See Order No. 890 at P 263; Order No. 890–A information is already available to the at P 86. 11 See Order No. 890–A at P 36. 14 See Order No. 890–A at P 87. 16 Id. P 85. 12 See Order No. 890–A at P 51. 15 Id. 17 Id. P 143.

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public. Duke suggests that only a notice 31. Southern seeks clarification of the information is already publicly that an affiliate requested a publicly- requirement to make available, on available. available study needs to be posted, and request, the modeling data identified in 34. We affirm the requirement that not the actual study, because the paragraph 148 of Order No. 890–A. each transmission provider post on a additional effort of posting the actual Southern states that it does not use all daily basis its load forecast, including study would be redundant, burdensome, of the specified modeling data to underlying assumptions, and actual and without purpose. calculate ATC, TTC, CBM and/or TRM. daily peak load for the prior day.19 In 28. Duke, EEI and Southern request In particular, Southern argues that the NOPR, the Commission specifically rehearing to eliminate the requirement neither production cost models nor raised the possibility of requiring to post the underlying assumptions used special protection systems and transmission providers to make to develop load forecasts on a daily operation guides are used in its ATC available their underlying load forecast basis, including economic and weather- calculations and that production cost assumptions for all ATC calculations.20 related assumptions. They claim that models in particular are not even The Commission adopted that proposal the requirement is a substantial maintained by its transmission function in Order No. 890, but failed to amend modification of regulations adopted in given its highly sensitive nature. its regulations accordingly.21 The Order No. 890, is unduly burdensome, Southern asks the Commission to clarify Commission corrected that oversight in 22 and may cause transmission providers that transmission providers are required Order No. 890–A. We therefore to violate their contractual obligations to provide only the specified modeling disagree with Duke that transmission by releasing proprietary assumptions data actually used in performing those providers were not on notice that and forecasts obtained from forecasting calculations and that a transmission posting of load forecast data and related service providers. Southern also provider is not required to manufacture assumptions might be required. complains that it is unclear what is and/or produce the data in the event it 35. We clarify, however, that the meant by ‘‘economic assumptions’’ and does not use a particular input in its Commission intended for transmission any requirement to provide daily ATC calculations. providers to post the underlying factors used to make load forecasts that have a updates of such assumptions would be 32. Duke also argues that production significant impact on calculations, such unduly burdensome given the amount cost models and generation dispatch as temperature forecasts, not all of effort required and negligible benefit methodologies typically contain economic and other data that underlies that customers might gain from the commercially sensitive or proprietary each and every daily load forecast. information. information or information that should Transmission providers must post a not be released to the public. Duke 29. Duke argues that the description of their load forecast acknowledges that the Commission Commission’s expansion of posting method including how economic and requirements to include load forecast stated that availability of production weather assumptions are used in load assumptions daily is an entirely new cost models would be subject to forecasting. The Commission’s intent is requirement for which notice and reasonable and applicable generator 18 to increase transparency in the comment has not been provided. Duke confidentiality limitations, but argues transmission provider’s process of contends that Constellation’s request for that still would allow employees or forecasting, providing assurance to rehearing of Order No. 890 mentioning consultants of competing entities to be customers that loads are consistently load forecast assumptions was provided access to sensitive data. Duke being forecast using methodologies inadequate to provide notice because therefore asks the Commission to which are not subject to daily Constellation did not request that load confirm that reasonable and applicable manipulation to favor affiliates. forecast assumptions be posted on a generator confidentiality limitations 36. We also affirm the requirement to daily basis or that load forecast means that the proprietary/sensitive make available, upon request and assumptions unrelated to ATC information may be released only to subject to appropriate confidentiality calculations be posted. transmission function personnel that are protections and CEII requirements, 30. If the Commission declines to restricted from further disclosure, certain modeling data including load eliminate this posting requirement, including to their own merchant flow base cases and generation dispatch Duke suggests that it be amended to functions. Duke also requests methodology and, subject to additional require a one-time (i.e., not daily) clarification that the transmission reasonable and applicable generator posting of a list of factors that go into provider’s merchant/generation function confidentiality limitations, production the peak load forecast, such as day of and third-parties are to be treated cost models (including assumptions, the week, a day’s status as holiday or identically as to their right to classify settings, study results, input data, non-holiday, temperature, dew point, which information that they have given etc.).23 We clarify in response to precipitation forecast, etc. If the to a transmission provider is Southern that a transmission provider is Commission continues to require the proprietary/sensitive, in accordance not required under Order Nos. 890 or daily posting of information, Duke seeks with Commission policies. 890–A to manufacture or otherwise clarification regarding the granularity of Commission Determination make available modeling data that it such information given that it could does not use in its ATC calculations. vary widely over a control area. Duke 33. The Commission clarifies in However, if the specified modeling data questions whether, for example, PJM response to Duke that, when an affiliate are used for the calculation of ATC, or would have to post weather forecasts for requests information that is already any of its components, they must be each of its subregions. Until the available to the public, the transmission Commission grants the requested provider need only post a notice that an 19 18 CFR 37.6(b)(3)(iv) (2007). clarification, Duke argues that the affiliate requested the particular 20 See Preventing Undue Discrimination and posting requirement should be waived information, not the actual information. Preference in Transmission Services, Notice of Proposed Rulemaking, FERC Stats. & Regs. ¶ 32,603, or transmission providers should be This clarification applies, however, only at P 194 (2006) (NOPR). permitted to satisfy the requirement by to those instances in which the actual 21 See Order No. 890 at P 416. reference to commercial/government 22 See Order No. 890–A at P 143. weather websites. 18 Citing Order No. 890–A at P 148. 23 See Order No. 890–A at P 148.

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made available as required in Order No. the transmission provider must attempt obligation to provide generator 890–A. to procure alternatives to provide the imbalance service, the transmission 37. We agree with Duke that service, taking appropriate steps to offer provider must accept the use of production cost models and generation an option that customers can use to dynamic scheduling by a transmission dispatch methodologies may contain satisfy their obligation to acquire customer.25 The transmission provider commercially sensitive or proprietary generator imbalance service as a cannot, however, require the use of information. Transmission providers are condition of taking transmission service. dynamic scheduling, since the customer therefore permitted to condition the If no such resources are available, the may choose to make other alternative release of such information on transmission provider must accept the comparable arrangements to self supply appropriate confidentiality restrictions. use of dynamic scheduling to the extent generator imbalance service. If a With regard to production costs models, a transmission customer has negotiated customer chooses to use dynamic reasonable applicable generator an appropriate arrangement with a scheduling in this circumstance, it is the confidentiality limitations could neighboring control area. include, among other things, restrictions option and the responsibility of the on the release of proprietary and Request for Clarification transmission customer to seek out and commercially sensitive information to 40. E.ON U.S. seeks clarification of appropriately negotiate dynamic those engaged in the marketing, sale, or the time frame within which the scheduling with a neighboring control purchase of electric power at wholesale. transmission provider must post the area. The transmission provider is We agree that the transmission availability of service (e.g., an hourly, required to accommodate the use of provider’s merchant and/or generation 24-hour, or monthly interval). E.ON U.S. dynamic scheduling only to the extent personnel and third-parties are to be also asks the Commission to clarify the the transmission provider is unable to treated identically as to their right to time frame required for obtaining provide generator imbalance service and classify proprietary or commercially imbalance service from other sources the customer has negotiated appropriate sensitive information that they provide and the extent to which a transmission arrangements with the relevant control to a transmission provider, as well as provider is obligated to seek such areas. their right to receive such data from the resources. E.ON U.S. suggests that this transmission provider. obligation could be interpreted as b. Definition of Incremental Cost requiring only a single search or a 43. In Order No. 890–A, the B. Transmission Pricing constant search for resources over a long Commission granted rehearing of its period of time. E.ON U.S. seeks further 1. Energy and Generation Imbalances decision to calculate incremental costs clarification regarding the point in the a. Generator Imbalance Penalties for the purpose of assessing imbalance process when the transmission provider 38. In Order No. 890–A, the must inform the generator that it must charges based on the last 10 MW Commission affirmed the decision in arrange for dynamic scheduling because dispatched to supply the transmission Order No. 890 to adopt standardized no other option is available. provider’s native load. The Commission generator imbalance provisions in determined that it is more reasonable to Schedule 9 of the pro forma OATT. The Commission Determination base imbalance charges on the actual Commission clarified that a 41. The Commission affirms the cost to correct the imbalance, which transmission provider only has to decision in Order No. 890–A to allow a may be different than the cost of serving provide generator imbalance service transmission provider to post on its native load. Accordingly, the from its own resources to the extent that OASIS the maximum amount of Commission modified the definition to it is physically feasible to do so (i.e., the generator imbalance service it is able to require transmission providers to use transmission provider is able to manage offer without impairing reliability.24 To the cost of the last 10 MWs dispatched the additional potential imbalances the extent necessary, we clarify that a for any purpose, i.e., to serve native without compromising reliability). Each transmission provider must post the load, correct imbalances, or to make an transmission provider may state on its availability of generator imbalance off-system sale. OASIS the maximum amount of service and seek imbalance service from generator imbalance service that it is other sources in a manner that is Requests for Rehearing and Clarification able to offer from its resources based on reasonable in light of the transmission 44. EEI and Southern argue that the an analysis of the physical provider’s operations and the needs of Commission mistakenly used ‘‘i.e.’’ characteristics of its system. its imbalance customers. What is instead of ‘‘e.g.’’ when referring to the Alternatively, a transmission provider reasonable for some imbalance costs to be included in the calculation may consider requests for generator customers and transmission providers of charges for energy imbalance service imbalance service on a case-by-case may be unreasonable for others. We and generator imbalance service. EEI basis, performing as necessary a system therefore decline to set a specific time contends that the specified purposes impact study to determine the precise frame within which the transmission amount of additional generation it can provider must post the availability of exclude costs to serve other customers, accommodate and still reliably respond generator imbalance service. For the such as on-system customers who take to the imbalances that could occur. same reason, we decline to set a generic partial requirements service from the 39. The Commission clarified that time frame for obtaining imbalance transmission provider. EEI asks the neither of these options relieves the service from other sources in the event Commission to clarify that it meant to transmission provider of its obligation it is not physically feasible to offer use ‘‘e.g.’’ to indicate that the list of to provide generator imbalance service generator imbalance service using the examples provided were non-exclusive. if it is able to acquire additional transmission provider’s resources. Southern similarly requests that resources to do so. If it is not physically 42. In the event that there are no Schedules 4 and 9 of the pro forma feasible for the transmission provider to additional resources available to enable OATT be revised to use ‘‘e.g.’’ instead offer generator imbalance service using the transmission provider to meet its of ‘‘i.e.’’ its own resources, either because they do not exist or they are fully subscribed, 24 Order No. 890–A at P 289. 25 Id. P 290.

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Commission Determination show that its new facility is integrated overcome.’’ 30 These petitioners express 45. The Commission grants rehearing with the transmission provider’s system, concern, however, regarding the of the definition of incremental cost as provides additional benefits to the Commission’s statement that the described in the preamble of Order No. transmission grid in terms of capability integration standard for credits under 890–A and in Schedules 4 and 9 of the and reliability, and can be relied on by section 30.9 remains unchanged and pro forma OATT. Those schedules the transmission provider for the that precedents applying that standard 28 define incremental cost and coordinated operation of the grid. will continue to apply. They argue that decremental cost as ‘‘the Transmission 48. The Commission explained in those precedents establish and apply a Provider’s actual average hourly cost of Order No. 890–A that adoption of the significantly more stringent test for the last 10 MW dispatched for any presumption of credits in section 30.9 integration of customer-owned facilities than for facilities of the transmission purpose.’’ 26 We agree that use of the was necessary to ensure comparability provider.31 term ‘‘e.g.’’ instead of ‘‘i.e.’’ when between network customers and 50. TAPS suggests that the referring to the types of energy to be transmission providers serving load. To that end, the Commission clarified that Commission’s new policy for new included in the incremental cost transmission facilities must mean one of calculation better reflects the the presumption of integration is rebuttable as applied to both the three things. Its first and preferred Commission’s intent to include within possibility is that, in assessing whether that calculation the last 10 MW transmission provider and the network customer. A transmission provider may the new integration presumption has dispatched for any purpose. We revise been overcome, the Commission will the pro forma OATT accordingly.27 challenge the presumption that the customer’s facilities are integrated by apply a single integration standard to 2. Credits for Network Customers showing that the customer’s facilities do both the transmission provider and the transmission customer, i.e., the relaxed 46. In Order No. 890–A, the not actually meet the integration standard that has long applied in Commission affirmed its decision in standard, notwithstanding the fact that determining whether a transmission Order No. 890 to sever the link in the they are similar to facilities in the provider’s facilities should be rolled pro forma OATT between joint planning transmission provider’s rate base. into its rate base. Under a second and credits for new facilities owned by Similarly, a customer could challenge possibility, a single integration standard network customers. As the Commission the presumption that a transmission also would apply, but transmission explained in Order No. 890, the linkage provider’s facilities are integrated by providers would be held to the same between credits and joint planning gave showing that the facilities, for example, do not provide network benefits. As a strict integration standard to which the transmission provider an incentive transmission customers seeking section to deny coordinated planning to avoid result, the Commission clarified that denial of credits for a network customer 30.9 credits have long been subject. As granting credits for customer-owned a final interpretation, TAPS states that, facilities. The Commission concluded no longer triggers a need for the transmission provider to demonstrate to overcome the presumption applicable that any efficiencies that may be lost by to new transmission facilities, the severing that link should be offset by the that its own facilities satisfy the integration standard. Commission could continue to apply increased efficiencies resulting from the two different tests: The more stringent coordinated planning reforms adopted Requests for Clarification and Rehearing one applicable to customers seeking in Order No. 890, which the 49. NRECA and TAPS ask the credits and the more relaxed one for Commission noted will ensure that Commission to clarify whether it transmission providers to include most, if not all, transmission facilities intended to apply a single integration facilities in rate base. TAPS notes, are planned on a coordinated basis. however, that this would be 47. The Commission similarly standard to both transmission customer and transmission provider facilities and, inconsistent with Order No. 890–A’s affirmed the decision to adopt a revised repeated references to a single, test to determine whether a network if so, what standard will apply. These petitioners contend that several comparable integration standard that customer is eligible to receive credits for applies to both customer and new facilities. Under the revised section passages in Order No. 890–A suggest that the Commission will now apply a transmission providers. 30.9 of the pro forma OATT, customers 51. East Texas Cooperatives agree that are eligible for credits for those facilities single integration standard, no matter whose facilities are under consideration. the case law establishes a different and that are integrated with the operations harder test for integration of customer- of the transmission provider’s facilities; They note, for example, the Commission’s statement in paragraph owned facilities. East Texas provided, that integration will be Cooperatives state that, under that presumed for customer-owned facilities 353 of Order No. 890–A that ‘‘[a] transmission provider may overcome precedent, a transmission provider that, if owned by the transmission needs only to run the load flow study provider, would be eligible for inclusion the network customer’s presumed integration by demonstrating, with used in ETEC to challenge credits for a in the transmission provider’s annual customer-owned facility. East Texas transmission revenue requirement as reference to its own facilities that meet the integration standard, that the Cooperatives argue that this load flow specified in Attachment H of the pro study cannot be satisfied by any forma OATT. The Commission clarified network customer’s facilities do not meet the standard.’’ 29 They point to transmission facilities, since it takes out in Order No. 890 that this revision did both customer facilities and load and not alter the underlying integration another statement that it is ‘‘appropriate for both the transmission provider and asks if the grid can still run reliably. In standard. In order to satisfy the comparison, East Texas Cooperatives integration standard, the customer must its customers to be subject to the integration standard to the extent the 30 presumption of integration is Id. P 354. 26 Schedules 4, 9 of the pro forma OATT. 31 Citing East Texas Elec. Coop., Inc. v. Central & 27 We note in response to EEI, however, that the South West Services, Inc. 108 FERC ¶ 61,079 (2004), existing reference to native load in Schedules 4 and 28 Order No. 890 at P 754, n. 436 (citing reh’g denied, 114 FERC ¶ 61,027 (2006) (ETEC); 9 already includes on-system customers taking Southwest Power Pool, Inc., 108 FERC ¶ 61,078 Northeast Tex. Elec. Coop., Inc., 108 FERC ¶ 61,108, requirements service under section 1.23 of the pro (2004), reh’g denied, 114 FERC ¶ 61,028 (2006)). at P 48 (2004), reh’g denied, 111 FERC ¶ 61,189 forma OATT. 29 Order No. 890–A at P 353. (2005) (NTEC).

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contend that the cost of transmission purpose to those of the transmission process would allow the transmission provider facilities would continue to be provider that are in rates. provider an opportunity to coordinate presumptively rolled in subject to 54. Florida Power also requests with customers on facilities, while challenge unless a party can show that clarification of language in paragraph preventing any opportunities for undue those facilities are so isolated from the 353 of Order No. 890–A. Florida Power discrimination given the non- grid that they are and will likely remain asks the Commission to confirm that discretionary nature of the planning non-integrated and thus provide no this statement applies only to determine obligation. E.ON U.S. argues that failure benefit to the system. whether the customer is entitled to the to plan facilities through the 52. East Texas Cooperatives therefore presumption in the first place, not to Attachment K or similar process should argue that the Commission’s statement rebut of the presumption once trigger a presumption against receiving in Order No. 890–A regarding the established, and that the standard to credits for such facilities. continued applicability of integration which the Commission was referring is 57. Several petitioners request precedent mandates discrimination in whether the customer-owned facilities rehearing of the Commission’s favor of transmission provider facilities are similar in design and purpose to determination that denial of credits for in violation of the FPA. They contend facilities owned by the transmission a network customer would no longer that eligibility for rolled-in rate provider that are included in rates. trigger a need for the transmission treatment of the same facilities would Florida Power also asks the Commission provider to demonstrate that its own vary solely as a result of their to confirm that the transmission facilities satisfy the integration ownership, since customer-owned provider could oppose a customer’s standard. East Texas Cooperatives facilities that are found not to be initial attempt to establish a contend that this decision improperly integrated under a load flow integration presumption of credits by showing, by reverses the approach adopted in 35 test would become integrated if reference to the transmission provider’s FP&L and prohibits a network purchased by the transmission provider, own facilities that meet the integration customer from challenging the rolled-in which is subject to a more relaxed standard, that the customer-owned rate treatment of transmission provider application of the integration standard. facilities are not similar in design and facilities even when the customer’s own East Texas Cooperatives suggest that the purpose to facilities owned by the facilities are found ineligible for credits. Commission justified its application of transmission provider that are included TAPS contends that reversing this a more difficult test to network in rates. policy is inconsistent with notions of 55. With regard to rebutting the customers on a presumption that the comparability unless the Commission presumption once established, Florida customer-owned facilities are less clarifies, as requested above, that the Power requests confirmation that the integrated than transmission provider relaxed integration standard applies to transmission provider can overcome the facilities. Joined by NRECA and TAPS, both network customers and presumption by showing that the East Texas Cooperatives argue that transmission providers. If a network customer-owned facilities do not meet customer-owned facilities are built to customer’s facilities are disqualified the integration standard, i.e., that it does from eligibility for credits due to serve customer loads just as not need the network customer’s facility application of a more stringent transmission provider facilities are built to serve the network customer, the integration standard, TAPS and TDU to serve transmission provider loads. transmission provider’s other Systems argue that comparability These petitioners contend that there is transmission customers, or the requires the removal of the transmission no basis in the record for presuming that transmission provider’s retail provider’s similar facilities from rates. transmission provider facilities are more customers.33 Florida Power contends NRECA agrees, arguing that the integrated than customer facilities. that it would not be just and reasonable, transmission provider must be required 53. FMPA, NRECA and TDU Systems or consistent with the cost causation to remove its facilities from rates if contend that contradictory statements in principle, to shift the cost of customer- customer-owned facilities that are Order No. 890–A could be read to apply owned facilities if those facilities do not similar in design and purpose to those the more stringent integration standard benefit the transmission provider’s transmission provider facilities are to customer-owned facilities and a more system. found ineligible for credits under the relaxed integration standard for 56. E.ON U.S. argues that the integration standard. transmission provider facilities.32 In rebuttable presumption of integration 58. TAPS and FMPA ask the particular, these petitioners question should apply only to customer-owned Commission to clarify that removal of what standard the Commission was facilities that are planned through the the trigger applies only to denial of referring to in paragraph 353 of Order Attachment K or similar process. If the credit for new facilities to which the No. 890–A when it stated that the Commission’s expectation that most, if new presumption of integration applies. transmission provider may overcome not all, transmission upgrades eligible TAPS and FMPA point to language in the network customer’s presumed for credits will be planned in the paragraph 352 of Order No. 890–A integration by demonstrating, with Attachment K process is true, E.ON U.S. providing that ‘‘the denial of credits for reference to its own facilities that meet suggests that the rebuttable presumption a network customer no longer triggers a the integration standard, that the of integration most reasonably applies need for the transmission provider to network customer’s new facilities do not only to facilities planned through that demonstrate that its own facilities meet the standard, i.e., the ‘‘integration process.34 E.ON U.S. contends that satisfy the integration standard.’’ Both standard’’ or the ‘‘similar in purpose linking credits for customer-owned FMPA and TAPS interpret this language and design’’ standard. NRECA and TDU facilities to the Attachment K planning as applying to new facilities only. TAPS Systems argue that the appropriate contends that the Commission does not standard to apply when both claiming 33 Citing Southern California Edison Co., 108 and cannot offer any justification for and rebutting the presumption of FERC ¶ 61,085, at P 9 n.11 (2004); Southwest Power integration is whether the customer’s Pool, Inc., 108 FERC ¶ 61,078, at P 18 n.7 (2004), 35 Florida Mun. Power Agency v. Florida Power facilities are similar in design and reh’g denied, 114 FERC ¶ 61,028 (2006); ETEC, 108 and Light Co., 74 FERC ¶ 61,006, at 61,010 (1996), FERC ¶ 61,079, at P 26 n.11; Northern States Power reh’g denied, 96 FERC ¶ 61,130, at 61,544–45 Co., 87 FERC ¶ 61,121 at 61,488 (1999). (2001), aff’d sub nom. Florida Mun. Power Agency 32 Citing Order No. 890–A at P 351–52. 34 Citing Order No. 890–A at P 426. v. FERC, 315 F.3d 362 (D.C. Cir. 2003) (FP&L).

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dispensing with the trigger in cases note, the integration standard has integration standard applied to involving requests for credits for historically been applied differently to customer-owned facilities was applied existing facilities, in which the network customers and transmission to the transmission provider’s presumption of integration adopted in providers.39 Transmission facilities facilities.44 This again demonstrates that Order No. 890 does not apply. TAPS is owned by the transmission provider the same underlying integration concerned that transmission providers enjoyed a presumption of rolled-in rate standard has applied to all facilities, will seek to remove the trigger for treatment so long as any degree of regardless of ownership, existing facilities, relying, inter alia, on integration was shown, while network notwithstanding the presumed the more general reference in Order No. customers were required to demonstrate integration generally enjoyed by the 890–A to elimination of trigger. affirmatively that their facilities were transmission provider. 59. Finally, FMPA seeks clarification relied upon by the transmission 63. In light of the planning-related on how the Commission’s provider to provide service to its reforms implemented in Order No. 890, determinations on transmission credits customers.40 The Commission therefore the Commission determined it is now will affect pending cases. FMPA asks described the test for integration for appropriate to grant the same the Commission to confirm that Order network customer facilities as being presumption of integration to new No. 890–A will not be applied to deny more stringent than the test applied to customer-owned facilities that are or weaken the comparability transmission provider facilities.41 The similar in scope and design to those requirement for facilities at issue in application of the integration standard transmission provider facilities that are Docket No. ER93–465–000, et al. FMPA was, in fact, more stringent as applied in rates. Implementation of planning- also asks the Commission to clarify that to network customers because they did related reforms will now ensure that the transmission credit policy not enjoy the benefit of presumed most, if not all, transmission facilities articulated in Order No. 890 and Order integration, as did the transmission are planned on a coordinated basis.45 No. 890–A will not preclude FMPA’s provider. The underlying integration However, only those new customer- ability to obtain full relief if the D.C. standard, however, has been and owned facilities that are similar in Circuit remands the Commission’s continues to be the same for all design and purpose to the transmission decisions at issue in Fla. Mun. Power transmission facilities. Only those provider’s facilities that are in rates will Agency v. FERC regarding charges for facilities that are, in fact, integrated with be eligible for the presumption of rolled- transmission that a network customer is the transmission grid and used by the in rate treatment. Other customer- physically unable to use.36 transmission provider to serve owned facilities will be eligible for customers should be subject to rolled-in credits only if the network customer is Commission Determination rate treatment. It is in this sense that the able to make an affirmative showing that 60. The Commission affirms the precedent continues to apply, providing the facilities satisfy the integration decision in Order Nos. 890 and 890–A guidance regarding the treatment of standard, i.e., that the facilities are to revise the test for determining facilities that benefit from the nonetheless integrated notwithstanding whether a network customer is eligible presumption of integration and those their ineligibility for the presumption of to receive credits for new facilities. that do not. integration.46 Under the revised section 30.9 of the 62. The presumption of integration 64. To be clear, if the transmission pro forma OATT, a network customer is enjoyed by the transmission provider provider disagrees that the customer- eligible for credits if it demonstrates that has never been absolute. Customers owned facilities are similar in design its facilities are integrated with the have always been able to challenge the and purpose to its own facilities, it may operations of the transmission inclusion of certain transmission challenge the threshold application of provider’s facilities, provided that provider facilities by showing that the the presumption with a comparative integration will be presumed for new facilities did not actually provide a analysis of its facilities and those for customer-owned facilities that, if owned systemwide benefit to the transmission which credits are claimed. Neither the by the transmission provider, would be grid.42 In most instances, however, this transmission provider nor the network eligible for inclusion in the transmission has not been the case given that the customer need analyze complete provider’s annual transmission revenue transmission provider generally plans, satisfaction of the integration standard requirement as specified in Attachment constructs and owns its facilities, from in order to determine whether, as a H of the pro forma OATT. As the the very beginning, to meet delivery threshold matter, the presumption of Commission explained in Order No. obligations, which justifies the integration applies. Assuming that the 890–A, the adoption of this presumption of integration.43 In the network customer prevails in its claim presumption ensures comparability event the transmission provider denied for presumed integration, then the between network customers and credits to a network customer, however, network customer will enjoy the same transmission providers serving native the transmission provider lost the rolled-in rate treatment enjoyed by the load given that transmission providers benefit of the presumption and the same transmission provider for its similar are now obligated to plan their systems facilities. As the Commission explained on an open and coordinated basis.37 39 Compare Utah Power & Light Co., 27 FERC in Order No. 890, this is appropriate to 61. Several petitioners question how ¶ 61,258, at 61,485–87 (1984), reh’g denied, 28 ensure comparability between the this revised test is consistent with the FERC ¶ 61,088, at 61,165 (1984) (citing Utah Power transmission provider and network & Light Co., Opinion No. 113, 14 FERC ¶ 61,112, customer now that all transmission Commission’s statements that the reh’g denied, 15 FERC ¶ 61,076 (1981)) with ETEC, integration standard applicable to new 114 FERC ¶ 61,027 at P 42. facilities will be planned pursuant to an 47 facilities remains unchanged and that 40 NTEC, 111 FERC ¶ 61,189 at P 17. open and coordinated process. Commission precedent regarding 41 Id. P 15. application of that standard will 42 See Idaho Power Co., 3 FERC ¶ 61,108 (1978), 44 See Florida Power & Light Co., 105 FERC continue to apply.38 As these petitioners reh’g denied, 5 FERC ¶ 61,009 (1978); Minnesota ¶ 61,287, at P 16 (2003). Power & Light Co., 16 FERC ¶ 63,012 (1981), aff’d 45 See Order No. 890 at P 736; Order No. 890–A 21 FERC ¶ 61,233 (1982). at P 337. 36 No. 06–1285 (D.C. Cir. filed July 26, 2006). 43 See Niagara Mohawk Power Corp., 42 FERC 46 See, e.g., Ne. Tex. Elec. Coop., Inc., 111 FERC 37 See Order No. 890–A at P 350. ¶ 61,143, at 61,531 (1988); Otter Tail Power Co., 12 ¶ 61,189 at P 16. 38 See Order No. 890–A at P 349. FERC ¶ 61,169, at 61,420 (1980). 47 Order No. 890 at P 435.

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65. The transmission provider may correct by severing the link between such transactions no longer take place nevertheless overcome the presumption planning and credits in Order No. 890. pursuant to the authorization of that of integration by demonstrating, with We therefore affirm our decision to tariff. reference to its own facilities that meet sever the link between credits and joint Request for Rehearing the integration standard, that the planning. customer-owned facilities are not, in 67. To the extent necessary, we clarify 70. The APPA Joint Filers argue on fact, integrated and do not provide that none of the reforms regarding rehearing that the decision to remove benefits to the system. The same is true transmission credits adopted in Order the price cap for reassignments of of transmission provider facilities No. 890 were intended to apply to transmission capacity during the study previously presumed to be integrated. In facilities existing prior to the period is not supported by substantial either case, the challenging party will effectiveness of the revised section 30.9 evidence that the price cap has bear the burden in overcoming the nor to pending cases involving such discouraged development of a presumption of integration and rolled-in facilities. Denial of credits to a network secondary transmission market.51 The rate treatment. It is for this reason that customer’s previously existing facilities APPA Joint Filers also contend that it would no longer be appropriate to therefore still triggers review of the lifting the price cap on reassigned remove the presumption of integration transmission provider’s rate base. capacity will harm consumers by enjoyed by the transmission provider, Similarly, a network customer may not making transmission artificially scarce i.e., apply the more strict integration rely on the presumption of integration and overpriced. The APPA Joint Filers standard, upon denial of credits to a for its previously existing facilities. argue that the existence of congestion network customer. In the past, only the 3. Capacity Reassignment creates constrained regions within transmission provider enjoyed the which market power can be exercised. presumption of integration, which 68. In Order No. 890–A, the 71. To further protect consumers, the Commission granted rehearing of its justified elimination of the presumption APPA Joint Filers suggest that the decision in Order No. 890 to remove the in the event credits were denied to a Commission limit the experimental price cap on reassignments of network customer. Both transmission lifting of price caps to short-term transmission capacity, concluding that 52 providers and network customers now reassignments. The APPA Joint Filers it is more appropriate to allow enjoy the benefits of presumed state that long-term firm point-to-point reassignments above the cap only integration, and both may challenge transmission service is particularly during a study period ending on application of the presumption to each important to LSEs looking to secure October 1, 2010. The Commission other’s facilities. We continue to believe economic and reliable power supply directed staff to closely monitor the that this will ensure that all similar and that non-firm releases of development of the secondary market facilities that are, in fact, not part of the unscheduled transmission capacity will for transmission capacity during this not help those LSEs needing long-term integrated network that serves all period. To assist staff in this effort, the customers are excluded from rates.48 We firm service. The APPA Joint Filers also Commission affirmed the requirement argue that, by extending the experiment acknowledge that this approach departs for transmission providers to aggregate 49 to long-term sales, including from the approach adopted in FP&L. and summarize in an electronic Our departure is justified, however, reassignments by the transmission quarterly report (EQR) the data provider’s merchant function or because the presumption of integration contained in service agreements and is now shared with new customer- affiliate, the Commission has related OASIS schedules for reassigned discouraged needed transmission owned facilities, shifting to the capacity. The Commission also directed transmission provider the burden of construction. If the secondary market is staff to prepare a report on staff’s clearing at prices above the transmission demonstrating that credits for similar findings within 6 months of the receipt provider’s rate ceiling, the APPA Joint customer-owned facilities are not of two years worth of data, i.e., by May Filers contend that the parent warranted. 1, 2010. Upon review of the staff report corporation will have incentives to put 66. We reject the suggestion by E.ON and any feedback from the industry, the as much capacity in the hands of its U.S. to reestablish a link between Commission will determine whether it merchant function or affiliates as credits and joint planning by applying is appropriate to continue to allow possible and to avoid new transmission the presumption of integration only to reassignments of capacity above the construction. That result, the APPA upgrades planned through the price cap beyond the study period. In Joint Filers argue, would reduce the transmission provider’s Attachment K the absence of further Commission access of LSEs to the long-term firm process. Although we support action, the price cap will resume effect transmission service they require to coordinated, open, and transparent as of October 1, 2010 under section 23.1 meet their service obligations, in planning, transmission providers are not of the pro forma OATT. required to develop transmission plans 69. The Commission clarified in violation of FPA section 217(b)(4). The on a co-equal basis with customers.50 It Order No. 890–A that, as of the effective APPA Joint Filers suggest that the would therefore be unfair to network date of the reforms adopted in Order No. Commission can achieve its goal of customers to condition the receipt of 890, all reassignments of capacity must determining whether the price cap credits for new facilities on planning take place under the terms and encourages development of a secondary activities that are out of their control. conditions of the transmission market and whether there is Indeed, restablishing a link between provider’s OATT. As a result, there is no competition in such a market by lifting joint planning and credits would revive longer a need for the assigning party to the price cap only for short-term disincentives the Commission sought to have on file with the Commission a rate reassignments. 72. The APPA Joint Filers also schedule governing reassigned capacity. 48 contend that the affirmative obligation See Order No. 890–A at P 351. To the extent that a reseller has a 49 FP&L, 74 FERC at 61,010 (finding that the market-based rate tariff on file, the integration of facilities into the plans or operations 51 The APPA Joint Filers include: APPA, NRECA, of a transmitting utility is the proper test for cost provisions of that tariff, including a TAPS and TDU Systems. recognition). price cap or reporting obligations, will 52 Citing Interstate Natural Gas Ass’n of Am. v. 50 Order No. 890–A at P 188. not apply to the reassignment since FERC, 285 F.3d 18 (D.C. Cir. 2002).

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of the transmission provider to expand whether reservations by the ensure a complete record is developed its system in order to accommodate transmission provider’s merchant to support any further Commission requests for service is inadequate to function or affiliates increased, whether action. ensure customers are protected. The they reassigned the capacity reserved, Commission Determination APPA Joint Filers note that this and to whom and at what price they obligation has existed since 1996, yet reassigned service; indicate whether the 77. The Commission affirms its the Commission in Order No. 890 found transmission provider’s interactions decision to remove the price cap on that it had not succeeded in overcoming with affiliated resellers were covered by reassignments of transmission capacity transmission providers’ incentives to the Standards of Conduct; and, assess to accommodate a study period expiring avoid transmission investment, whether those needing transmission on October 1, 2010. For the reasons especially in favor of their own capacity were able to obtain it, whether stated in Order Nos. 890 and 890–A, we generation.53 The APPA Joint Filers in the primary or secondary market. continue to believe that lifting the price contend that the Commission has no 75. To the extent the EQR data or cap during the study period will foster factual basis to conclude that entry in other sources do not provide this the development of a more robust the form of expanded transmission information, the APPA Joint Filers secondary market for transmission capacity will be timely, likely and suggest that the Commission institute capacity.54 Point-to-point transmission sufficient to defeat price increases due data reporting and collection service customers will have increased to transmission market power. requirements to obtain that information. incentives to make their service 73. The APPA Joint Filers The APPA Joint Filers state particular available to others that place a higher acknowledge that Commission staff will concern regarding the elimination of the value on it, which in turn will send be monitoring the EQRs and other data reporting requirement under the more accurate signals that promote during the two-year period with the goal reseller’s market-based rate tariff. The efficient use of the transmission system of preparing its report, but argue that APPA Joint Filers contend that lifting by fostering the reassignment of unused this does not alleviate the Commission the price cap will allow market-based capacity. of its obligation to actively monitor sellers to use transmission capacity 78. Although the Commission agrees resale of transmission capacity during reassignment to support attempts to with the APPA Joint Filers that the period to ensure that rates for exercise market power in sales of transmission capacity, and in particular customers remain just and reasonable transmission, electricity, or both. long-term transmission capacity, is of and that there are no abuses of market Because a market-based seller no longer great importance to LSEs and other power. The APPA Joint Filers ask the needs to report its own transmission customers, we disagree that restricting Commission to explicitly establish its reassignments and because the transactions above the price cap only to intent to continue to exercise its transmission provider will report short-term reassignments is necessary to obligations under sections 205 and 206 reassignments only on an aggregate, preserve access to service under the pro throughout this period so that resellers summary basis, the APPA Joint Filers forma OATT. As the Commission are on notice that they cannot charge argue that the EQR data will not permit emphasized in Order Nos. 890 and 890– unjust and unreasonable rates. If the monitoring to detect patterns or conduct A, transmission providers are under an Commission discovers evidence of that suggest efforts to manipulate or affirmative obligation to offer all unjust and unreasonable rates at any exercise market power in transmission available capacity to customers on a time, the APPA Joint Filers urge the markets. The APPA Joint Filers contend non-discriminatory basis and to expand Commission to address this as it occurs, that, by separating data on the market- their systems as necessary to including if necessary by terminating based seller’s electricity sales from the accommodate additional requests for the experiment prior to October 1, 2010. data on the same seller’s transmission service.55 The pro forma OATT does 74. With regard to the staff report, the reassignments, the Commission has not, and will not, permit the APPA Joint Filers ask the Commission made it difficult to determine whether withholding of transmission capacity by to prescribe the parameters, procedures a market-based seller is manipulating the transmission provider and and data to be collected and provide transmission resales to favor its market- effectively establishes a price ceiling for guidance as to the issues that should be based sales because it will be impossible long-term reassignments at the addressed. The APPA Joint Filers to determine whether a particular transmission provider’s cost of suggest that the Commission direct staff capacity reassignment supported a expanding its system. The fact that a to address the following specific matters market-based sale. The APPA Joint transmission provider’s affiliate may in the report: Identify whether there is Filers therefore request that the profit from congestion on the system an increase in reassignments by Commission grant rehearing and retain does not relieve the transmission examining data on the amount of the requirement that all holders of provider of its obligation to offer all reassignments before and after the price market-based rate authority report both available transmission capacity and caps were lifted; examine prices both their electricity sales and their capacity expand its system as necessary to offered and accepted to determine the reassignments in the same EQR. accommodate requests for service. We level of market interest in reassigned 76. Finally, once the staff report is therefore disagree that allowing capacity, whether prices increased, the issued, the APPA Joint Filers ask that it reassignments of transmission capacity cause of price changes, and whether be noticed and that the public be above the price cap will reduce the prices remained within a zone of provided an opportunity to comment. access of any customer to service under reasonableness; examine whether The APPA Joint Filers contend that the the pro forma OATT. competition among resellers is sufficient data underlying the report must be 79. The APPA Joint Filers are to protect consumers from excessive made public, with sensitive information therefore incorrect that lifting the price rates; identify the kinds of products subject to appropriate confidentiality cap will make transmission capacity resold, such as the length of protections. If the Commission believes reassignments and whether reassigning that further extension of the experiment 54 Order No. 890 at P 808; Order No. 890–A at P customers redirected service; consider is merited, the APPA Joint Filers ask the 388–89. Commission to use full notice and 55 Order No. 890 at P 814; Order No. 890–A at P 53 Citing Order No. 890 at P 424. comment rulemaking procedures to 392.

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artificially scarce and overpriced during capacity available to others placing a that it would be useful to direct the study period. Transmission higher value on it. transmission providers to include providers must continue to make 82. We are nevertheless sensitive to certain additional information in their primary capacity available at the rates the concerns expressed regarding the EQRs. We direct transmission providers specified in their individual OATTs. potentially negative competitive effects to include in their EQRs the identity of Customers that do not wish to of lifting the price cap on reassignments the reseller and indicate whether the participate in the secondary market may of transmission capacity. It is for that reseller is affiliated with the continue to take service from the very reason that the Commission transmission provider. Each transmission provider directly, just as if granted rehearing in Order No. 890–A, transmission provider also must include the price cap had not been lifted. For at the request of the APPA Joint Filers, the rate that would have been charged those customers participating in the to limit the period in which the price under its OATT had the secondary secondary market, however, lifting the cap is lifted. During the study period, customer purchased primary service price cap will create additional continuing rate regulation of the from the transmission provider for the incentives for others to make service transmission provider’s primary term of the reassignment. We direct available, increasing the ability to obtain capacity, competition among resellers, transmission providers to submit this transmission capacity. and reforms to the secondary market for additional data for all resales during the 80. The APPA Joint Filers incorrectly transmission capacity, combined with study period and to update, as characterize the Commission’s enforcement proceedings, audits, and necessary, any previously-filed EQRs on statement in paragraph 392 of Order No. other regulatory controls, will assure or before the date they submit their next 890 as finding that the transmission that prices in the secondary market EQR. provider’s obligation to expand the remain within a zone of 85. We disagree that elimination of 59 system in response to service requests reasonableness. Should any customer the reporting requirement under the was inadequate to overcome incentives believe that capacity is being reseller’s market-based rate tariff will to avoid transmission investment. In the preferentially allocated to a impair the ability of staff to perform its passage cited, the Commission instead transmission provider’s affiliates, that analyses. All reassignments of found that this requirement was particular holders of transmission transmission capacity now take place inadequate to overcome incentives to capacity are attempting to exercise under the transmission provider’s exclude customers from the market power through hoarding or other OATT and, therefore, it is appropriate transmission planning process.56 tactics, or that the transmission provider for the transmission provider to report is failing to meet its expansion To remedy that disincentive, the those transactions on its EQR. We obligations, the customer should bring Commission required transmission reiterate that the EQR must contain all the matter to the Commission’s attention providers to implement open and relevant transaction data, whether stated through a complaint or other transparent planning processes that in the service agreement governing the appropriate procedural mechanisms. If allow customers and other stakeholders reassignment or in a related OASIS the Commission finds evidence of 61 to provide input in the development of schedule. Transmission providers market abuse, it can act to restrict the transmission plans. The Commission should not aggregate multiple ability of an offending reseller (and specifically noted that those planning transactions into single line items on the possibly its affiliates) to participate in obligations did not address or dictate EQR. All terms must instead be fully the secondary market or impose other which investments identified in a described and rates provided for each remedies, including civil penalties, as 62 transmission plan should be undertaken reassignment. appropriate to ensure that rates for by the transmission provider.57 86. Upon review of the staff report, secondary transmission capacity are just the Commission will determine whether 81. The APPA Joint Filers and reasonable. inappropriately discount the importance it is appropriate to institute further 83. With respect to our expectations rulemaking procedures to amend the of the transmission provider’s for the report to be prepared by affirmative obligation to expand its pro forma OATT to allow reassignments Commission staff, we clarify that staff of transmission capacity above the price system in response to requests for should focus on the competitive effects service. The Commission has cap after October 1, 2010. The report of removing the price cap for reassigned will be made public and subject to historically relied on these and other capacity. Staff should consider the obligations under the pro forma OATT comment, with sensitive information number of reassignments occurring over subject to appropriate confidentiality sufficient to mitigate the potential the study period, the magnitude and exercise of transmission market power protections. In the absence of variability of resale prices, the term of Commission action, the rate charged by by transmission providers and their the reassignments, and any relationship 58 the transmission provider for each affiliates. Lifting the price cap on between resale prices and price reassignments of transmission capacity reassignment, and the corresponding differentials in related energy markets. credit to the reseller, may not exceed the does not alter those obligations in any Staff should also examine the nature way and, therefore, does not impair the higher of (i) the original rate paid by the and scope of reassignments undertaken reseller, (ii) the transmission provider’s ability of load-serving entities to meet by the transmission provider’s affiliates their load service obligations. By lifting maximum rate on file at the time of the and include in its report any evidence assignment, or (iii) the reseller’s the price cap on capacity reassignments, of abuse in the secondary market for the Commission has instead enhanced transmission capacity, whether by those 61 See Order No. 890 at P 423, n.162. the options available to customers 60 affiliates or other customers. 62 See Order No. 890 at P 818, n.499. The seeking transmission service by 84. As requested by the Joint APPA Commission’s reference to ‘‘aggregate[ing] and increasing the incentives for customers Filers, we have reconsidered our summarize[ing] in an EWQ the data contained in with transmission reservations to make reporting requirements and determined the service agreements for reassigned capacity’’ in Order Nos. 890 and 890–A was intended to refer to the transmission provider’s obligation to compile 56 Id. P 424. 59 See Order No. 890 at P 811; Order No. 890–A reassignments involving multiple parties in a single 57 Id. P 438. at P 391. EQR, not consolidate multiple reassignments into 58 See Order No. 697 at P 408. 60 See id. P 406. single line items on the EQR.

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opportunity cost capped at the mere possibility of penalties did not require notice and hearing procedures transmission provider’s cost of justify extension of the 60-day study prior to application of penalties. If a expansion.63 period. Southern argues, however, that transmission provider fails to complete the notification and additional posting 90 percent of studies within a 60-day 4. Operational Penalties requirements are in and of themselves period, EEI suggests that the 87. In Order No. 890–A, the penalties, as are the requirements to transmission provider be rebuttably Commission affirmed the decision in then complete 90 percent of studies presumed to have failed to exercise due Order No. 890 to subject all within 60 days. diligence in processing request studies transmission providers, including RTOs 90. E.ON U.S., EEI, and Southern also and that penalties apply only after and ISOs, to operational penalties when ask the Commission to add a clearer due notice and an opportunity for hearing. they routinely fail to meet the deadlines diligence standard to section 19.9 of the 93. Southern suggests that the prescribed in sections 19.2, 19.4, 32.3 pro forma OATT. They contend that it explanation of extenuating and 32.4 of the pro forma OATT. The is necessary to specify in the tariff the circumstances in a notification filing Commission explained that the 60-day circumstances that will excuse the should automatically suspend the due diligence deadlines set forth in transmission provider from penalties. obligation to post additional metrics, the those sections serve as a good measure These petitioners argue that failure to obligation to process 90 percent of study of a transmission provider’s use of due articulate a clear standard gives the requests within 60 days, and the threat diligence since, in its experience, the Commission too much discretion in of monetary penalties until the vast majority of transmission studies applying penalties and leaves Commission determines that the can be completed in that time period. transmission providers guessing as to extenuating circumstances did not exist. 88. The Commission rejected requests what due diligence means. Southern Southern states that this would shift the to change section 19.9 of the pro forma argues that a lack of clarity violates due burden of proof to the Commission and OATT, concluding that transmission process and the Commission’s no longer treat transmission providers providers will have the ability to enforcement policies because as guilty until proven innocent. E.ON explain in notification filings the transmission providers do not have extenuating circumstances that lead to U.S. argues that deferring the obligation adequate notice of the circumstances to pay penalties until after the delay in processing transmission service that will subject them to penalties. request studies and, in turn, Commission has rejected the Southern contends that the risk of late transmission provider’s explanation for demonstrate their use of due diligence study penalties creates a guilty until notwithstanding the inability to meet delay would be more efficient because proven innocent standard that will transmission providers would not need the 60-day target. The Commission also result in transmission providers rejected requests to create broad to seek refunds from customers to whom favoring speed over accuracy, which it has made distribution of penalties for categories or lists of extenuating could harm reliability. delays the Commission later finds circumstances that would exempt 91. EEI agrees that failure to expressly justifiable. transmission providers from late study include a due diligence standard in penalties or related posting section 19.9 provides the Commission 94. E.ON U.S. seeks clarification that requirements. undue discretion to apply penalties not-for-profit transmission providers are responsible for processing transmission Requests for Rehearing and Clarification even if the transmission provider has used due diligence in processing request request studies within the same time 89. E.ON U.S., EEI, and Southern studies. EEI argues that the language of period prescribed for other transmission contend that the Commission has failed section 19.9 does not adequately reflect providers and are equally responsible to justify the use of 60 days as the time that the inability to complete a study for paying late study penalties. E.ON frame for processing transmission within the 60-day timeframe may be due U.S. argues that the ability to request service request studies with due to customer actions or the need to cost recovery of late study penalties on diligence. These petitioners argue that complete other interdependent studies. a case-by-case basis should not be used the Commission’s stated experience that At a minimum, EEI asks the to skirt the obligations established in the vast majority of studies are Commission to amend section 19.9(iii) Order No. 890. completed within 60 days is to state that the transmission provider 95. NYISO asks the Commission to unsupported by data or any other will not be subject to penalties if it clarify that it did not intend in Order evidence. Southern further argues that demonstrates that it exercised due No. 890–A to preclude transmission any experience regarding processing diligence but nonetheless failed to providers from proposing alternative times does not reflect the increased complete a sufficient percentage of its study deadlines pursuant to FPA section redispatch and conditional firm study studies within 60 days. EEI also requests 205. NYISO states that, because it obligations imposed under Order No. that the Commission provide additional provides a financial reservation based 890. Southern argues that transmission guidance in this proceeding as to what transmission service reservation, it does planners are also facing additional factors constitute due diligence that are not receive, or deny, requests for workforce pressures due to development sufficiently clear and specific that a transmission service in the way that of reliability standards, worker transmission provider can reasonably Order Nos. 888 and 890 contemplate. shortages, and Attachment K planning determine whether its actions satisfy NYISO states it conducts transmission processes. Southern suggests that the those guidelines. studies only in unusual situations, such Commission grant rehearing to allow for 92. E.ON U.S., EEI, and Southern as when a customer wants to explore an additional 30 days to process further argue that operational penalties whether it would be more economical to transmission studies or, at a minimum, should not be imposed until the pay congestion charges or to fund the to process conditional firm and Commission makes an affirmative construction of new transmission redispatch options. Southern finding that the transmission provider facilities in order to obtain incremental acknowledges that the Commission did not exercise due diligence in congestion hedging rights from NYISO. determined in Order No. 890–A that the processing request studies. EEI and As a result, only a handful of system Southern argue that due process and the impact study requests have been 63 See section 23.1 of the pro forma OATT. Commission’s enforcement policies submitted to the NYISO in the last nine

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years and, according to NYISO, each do not receive notice or have hearing meet the 60-day target. Transmission take substantial time to process. procedures prior to paying the penalty. providers are free to discuss in their 96. NYISO also requests clarification 99. At the same time, to ensure that notification filings any factors they regarding the transmission provider’s penalties are not applied to believe are relevant, including any of liability when delegating transmission providers when study the factors cited by Southern. responsibilities for conducting delays are justified, the Commission has 101. In response to E.ON U.S., we transmission studies. NYISO states that provided an opportunity for each affirm that all transmission providers, it has responsibility for conducting transmission provider to explain the including RTOs and ISOs, are bound by system impact studies under its OATT, extenuating circumstances that the 60-day timelines of sections 19.2, while its member transmission owning prevented it from meeting the 60-day 19.4, 32.3 and 32.4 and the utilities retained responsibility for study completion deadline. Upon requirements of section 19.9. The conducting facilities studies. NYISO review of the notification filing, the Commission clarifies, in response to asks the Commission to clarify that its Commission will waive the penalties if NYISO, that transmission providers are member transmission owning utilities a transmission provider establishes that free to make filings under FPA section are responsible for ensuring that its non-compliance is the result of 205 to seek variations from the pro facilities studies are conducted in a extenuating circumstances.65 If the forma OATT and demonstrate that timely manner. NYISO argues that it Commission is unable to act on the alternative tariff provisions are would be arbitrary and capricious to notification filing prior to the date on consistent with or superior to the pro hold NYISO responsible for failures by which the penalties would apply, the forma OATT. With regard to the the member transmission-owning transmission provider will remain liable allocation of study responsibilities utilities to comply with their own for paying the penalties, but is not between NYISO and its transmission obligations. required to distribute those penalties owning members, we note that the while the notification filing remains Commission Determination Commission in Docket No. OA08–13– pending.66 The Commission concluded 000 determined that the responsibility 97. The Commission affirms the in Order No. 890, and we affirm here, for facility studies, and penalties decision in Order Nos. 890 and 890–A that this adequately balances the associated with such studies, rests with to subject transmission providers to transmission provider’s due process the transmission owning members operational penalties when they rights with the need to provide an under the NYISO tariff.70 routinely fail to meet the 60-day due incentive to the transmission provider diligence deadlines prescribed in to complete studies on a timely basis.67 5. ‘‘Higher Of’’ Pricing Policy sections 19.2, 19.4, 32.3, and 32.4 of the It is therefore unnecessary, as 102. In Order No. 890, the pro forma OATT.64 Transmission petitioners argue, to amend the language Commission concluded that changes to providers must have a meaningful stake of section 19.9 of the pro forma OATT the pro forma OATT were not needed to in meeting study timeframes, and the to specifically include a due diligence address the practice by some operational penalty structure adopted standard or otherwise identify in the transmission providers of quoting by the Commission provides reasonable tariff or elsewhere the circumstances incremental rates as lump sum financial incentives for transmission that will excuse the transmission payments, a practice that is inconsistent providers to exercise due diligence in provider from penalties. Consideration with our ratemaking policy. The processing service requests in a timely of the particular extenuating Commission explained that the and nondiscriminatory manner. circumstances causing a transmission transmission provider must continue to 98. We disagree that the notice provider to repeatedly miss study include a proposed monthly procedures adopted in Order No. 890 deadlines is best left to a case-by-case incremental rate with its offer of service give inadequate opportunities to explain analysis. whenever it proposes to charge the why studies have been completed late. 100. We also affirm the decision in customer an incremental rate. The Due process does not require the use of Order No. 890–A not to extend the 60- transmission provider also must provide notice and hearing procedures prior to day deadline as petitioners request.68 cost support for the derivation of the applying operational penalties for The 60-day deadlines have existed for rate consistent with the cost support failing to exercise due diligence in many years.69 Although petitioners that the transmission provider would processing transmission service request challenge that conclusion as provide to the Commission in a section studies within the 60-day study period, unsupported, none dispute the 205 rate filing. nor must the Commission make an proposition that 60 days is generally 103. The Commission affirmed this affirmative finding regarding the sufficient to complete most transmission decision in Order No. 890–A, noting justifications provided in a notification studies and, instead, contend that that the capital costs of upgrades, as filing prior to the application of certain types of studies take longer or estimated in a facilities study and penalties. Section 19.9 of the pro forma that certain transmission providers have eventually specified in a service OATT requires the submission of a less ability to process studies within agreement through an incremental rate, notification filing and the application of that period. Yet that is precisely why are not subject to change once the penalties when certain clearly identified the Commission has provided an customer has executed the service triggering conditions occur, i.e., failure opportunity for each transmission agreement. The Commission explained to complete studies within the provider to demonstrate that that it would not be appropriate to vary prescribed timeframes. Transmission extenuating circumstances prevented it capital costs over the term of such providers therefore have adequate from timely processing the relevant contracts. notice of the actions that may lead to studies notwithstanding its inability to penalties. We note that transmission Request for Rehearing customers that pay other operational 65 See Order No. 890 at P 1343. 104. Duke, E.ON U.S., and EEI argue penalties, like unreserved use penalties, 66 See id. P 1349. that the Commission’s statement that 67 Id. 64 See Order No. 890 at P 1340; Order No. 890– 68 Order No. 890–A P 746. 70 See N.Y. Indep. Sys. Operator, Inc., 123 FERC A at P 741. 69 See Order No. 888–A at 30,324. ¶ 61,134 (2008).

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capital costs of network upgrades may provider to recover these additional Commission found that it would be not vary during the term of a service costs. inappropriate to require the agreement is inconsistent with other transmission provider to use its Commission Determination sections of the pro forma OATT. Duke resources to provide additional notes that section 19.4 of the pro forma 107. The Commission affirms the operating reserves to loads in other OATT requires execution (or filing) of a determination in Order No. 890 that control areas because the transmission service agreement a mere thirty days capital costs specified in a service providers in those control areas are after completion of the facilities study agreement are not subject to change under their own obligations to make and, therefore, the service agreement once the customer has executed the operating reserves available. The can only contain a good faith estimate service agreement.71 We clarify, Commission affirmed those obligations of network upgrade costs. EEI and E.ON however, that this statement was and stated that modifications to the pro U.S. agree, noting section 19.5 further intended to refer to agreements in which forma OATT were not necessary to allows for revisions to the good faith a customer and transmission provider enable generators to engage in firm estimate to reflect certain changed have specifically identified particular power sales to loads outside of their circumstances. EEI and E.ON U.S. upgrade costs to be paid by the control area. contend that transmission providers customer, allowing for a clear Request for Clarification generally are not able to determine the comparison of incremental costs to the actual cost of required facilities until transmission provider’s embedded cost 110. Sempra Global argues that the construction is completed, which is rate. In such instances, it would violate Commission did not fully appreciate the long after execution of the service fundamental concepts of contract law, problems faced by generators in agreement. as well as undermine the ‘‘higher of’’ obtaining operating reserves in the 105. EEI and E.ON U.S. argue that not pricing policy, to allow either the WECC. If transmission providers are not allowing capital costs of upgrades to customer or the transmission provider required to offer operating reserves vary after execution of the service to unilaterally change the costs when transmission service is used to agreement will result in the previously agreed to by the parties. The serve load outside the transmission transmission provider either under- Commission therefore explained in provider’s control area, Sempra Global recovering the cost of the incremental Order No. 890–A that it would not be asks that the Commission, at a facilities or the customer overpaying the appropriate to vary, i.e., change, capital minimum, clarify that generator cost of those facilities and, as a result, costs specified in such contracts. imbalance service under Schedule 9 of charges will not be just and reasonable. 108. Nothing in Order Nos. 890 or the pro forma OATT may be utilized to These petitioners suggest that the 890–A, however, altered the ability of provide sufficient imbalance energy to transmission provider be allowed to the transmission provider and keep a customer’s schedule whole for at modify a service agreement to reflect the transmission customer to negotiate least two hours following a generator actual costs of incrementally-charged alternative pricing arrangements such as derating or forced outage, if necessary to network upgrades after the facilities are recovering estimated costs subject to a allow the generator sufficient time to placed in service. Duke agrees, arguing true-up when upgrades are complete. find and schedule replacement energy. that providing for a true-up at a later The Commission did not mean to imply Sempra Global states that clarification is date is routine when facility costs are in Order No. 890–A that such needed because, if a generator trips directly assigned, rather than rolled in. alternative pricing arrangements are within 20 minutes prior to the Duke suggests that customers be free to necessarily prohibited. As the beginning of the hour, it is too late to negotiate the ability to terminate the Commission explained in Order No. schedule replacement energy for the service agreement if a cost estimate 890, application of the ‘‘higher of’’ hour that is about to begin. turns out to far understate actual costs. policy to particular cases, including 111. Sempra Global disagrees that the Duke contends that the Commission’s proposals to adopt flexible pricing existing requirements of the pro forma statement regarding the inability of arrangements, is largely fact-specific OATT are sufficient to ensure that capital costs to vary was merely a and best addressed on a case-by-case operating reserves are available to general observation and that the basis during particular rate merchant generators in the WECC, Commission should review rate changes proceedings.72 pointing to the differing definitions for on a case-by-case basis. ‘‘reserves’’ in the West. Sempra Global 6. Other Ancillary Services 106. Duke, EEI, and E.ON U.S. further explains that in the WECC ‘‘Operating argue that prohibiting recovery of 109. In Order No. 890–A, the Reserves’’ consist of two main additional capital costs that the Commission denied a request by components: Regulating Reserve and transmission provider is likely to incur Sempra Global to require the Contingency Reserve.73 According to when repairing or replacing portions of transmission provider to offer and make Sempra Global, WECC’s Regulating incrementally-charged upgrades during available operating reserves under Reserve could include, but would not the term of a service agreement denies schedules 5 and 6 of the pro forma necessarily be limited to, regulation the transmission provider of its rights OATT when transmission service is service offered under schedule 3 of the under section 205 of the FPA. While the used to serve load outside the pro forma OATT, while WECC’s incremental facilities on which the cost transmission provider’s control area. Contingency Reserve could include, but of service is based (e.g., a specific The Commission explained that would not necessarily be limited to, substation or line segment) should not operating reserves are needed to serve operating reserve services under be allowed to vary, EEI contends that load within the control area in the event Schedules 5 and 6 of the pro forma transmission providers should be of system contingencies and, unless OATT. allowed recover the additional capital alternative arrangements are made, the 112. Although independent power costs associated with repair or transmission provider provides these generators have access to regulation replacement of those facilities. EEI and reserves from its own resources. The service under schedule 3 and generator E.ON U.S. suggest that remedies such as formula rates or a section 205 filing 71 See Order No. 890–A at P 491. 73 Citing WECC Standard BAL–STD–002–0— should be available to a transmission 72 See Order No. 890–A at P 883. Operating Reserves.

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imbalance service under Schedule 9 negotiation with a customer, that the C. Non-Rate Terms and Conditions from their source balancing authority, customer acquire reserves from its 1. Modifications to Long-Term Firm Sempra Global states that they may not transmission provider. Point-to-Point Service have access to any Contingency Reserves for exports from their host Commission Determination 116. In Order No. 890, the balancing authority. Sempra Global Commission concluded that the 114. The Commission affirms the methods for evaluating requests for contends that it can be difficult, if not decision in Order No. 890-A not to impossible, for generators to contract for long-term point-to-point transmission require transmission providers to offer service may not be comparable to the Contingency Reserves from a third party and make available operating reserves without switching to that party’s manner in which transmission service is under Schedules 5 and 6 of the pro planned for bundled retail native load balancing authority or having a dynamic forma OATT when transmission is used schedule or other telemetry to enable and, therefore, may no longer be just, to serve load outside the transmission the provider of Contingency Reserves to reasonable and not unduly provider’s control area. As the know when the generator trips and to discriminatory. To remedy this potential Commission explained, operating have the reserves provider’s generation for undue discrimination, the reserves are needed to serve load within respond within ten minutes. Sempra Commission amended the pro forma the control area in the event of system Global contends that intra-hour OATT to modify planning redispatch schedule changes are not normally contingencies. Unless alternative requirements and require transmission allowed by most balancing authorities arrangements are made, the providers, other than most RTOs and in the West and that Operating and/or transmission provider would serve as ISOs, to offer a conditional firm option Contingency Reserve service can most the provider of last resort for these to long-term point-to-point customers. logically be provided to a balancing reserves. We continue to believe it The Commission affirmed that decision authority or reserve sharing group, not would be inappropriate to require the in Order No. 890–A and provided an individual customer. Sempra Global transmission provider to provide certain clarifications regarding the states that this complex type of additional operating reserves to loads in transmission provider’s obligation with arrangement could not be practicably other control areas because the regard to planning redispatch and implemented for short-term transmission providers in those areas conditional firm service. transactions, or when the output of a are under their own obligation to make a. Requirement To Offer Conditional generator is split between multiple operating reserves available. Firm Service buyers and ultimately delivered into 115. We appreciate Sempra Global’s 117. In Order No. 890–A, the multiple balancing authorities. concern that these obligations may be Commission denied rehearing of its 113. Even if a generator were able to insufficient to enable merchant decision not to require transmission contract with a third party to provide generators in the WECC to obtain providers to offer conditional firm operating reserves, Sempra Global states operating reserves in certain service to network customers. The that it is unaware of any workable circumstances. Since its adoption, Commission explained that network mechanism to assure a load (or ‘‘sink’’) however, the pro forma OATT has customers can designate network balancing authority that it will have placed the obligation to procure resources any time firm transmission is access to such reserves when needed. operating reserves squarely on load.74 It available and that the term of the Sempra Global also notes that a appears that market rules have designation can include periods of less generator, as a seller, may not developed in the WECC in a way that than a year. Network customers can also necessarily have a load since transfers that responsibility from use secondary network service to access transactions frequently involve transmission customers serving load to resources during times when firm numerous parties between the generator those providing resources. It does not service is not available. The and the load. Sempra Global states that follow, however, that the pro forma Commission concluded that this a generator may not know who the load OATT—a tariff of general flexibility to use designated network is until the NERC eTags are generated applicability—must be amended to resources and secondary network during the WECC pre-scheduling accommodate that regional practice. To service to access undesignated resources process, which typically takes place the the extent transmission providers in the already provides a service that is like day before the power flows. Even if the WECC wish to amend their tariffs to conditional firm that can be used to sink balancing authority is known at the accommodate the WECC market rules, integrate new resources. The time a long-term transaction is entered they may submit such variations to the Commission noted, however, that into, Sempra Global states that a Commission for consideration. transmission providers employ generator still may be unable to procure Alternatively, the market rules automatic devices, such as special operating reserves to support the themselves could be amended to reflect protection schemes, to take resources transaction. Sempra Global describes a the structure of obligations under the offline during certain system conditions. transaction it entered into in 2002 in pro forma OATT.75 The Commission determined that which none of the host transmission comparability requires the study of provider, the purchaser’s transmission 74 See Section 3 of the pro forma OATT. these automatic devices for network provider, nor the purchaser itself was 75 We understand that WECC is in the process of customers seeking to designate network willing to offer to provide Sempra developing a revised standard to address the resources and revised section 32.3 of the Global with operating reserves to responsibility for procuring contingency reserves. WECC Standard BAL–002–WECC–1—Contingency pro forma OATT to require the study of support the transaction. Since many Reserves, available at http://www.wecc.biz/ automatic devices at the request of a LSE purchasers in the West enter into documents/library/Standards/2007/BAL-002/BAL- network customer. firm energy import transactions 002-WECC-1_1-25-08.pdf. To the extent that there specifically to reduce their operating are any conflicts between the revised WECC Requests for Rehearing and Clarification standard and the pro forma OATT, Sempra Global reserves obligations, Sempra Global should raise those concerns when that revised 118. NRECA and TAPS repeat states that it would be rarely fruitful for standard is submitted for consideration by the arguments made on rehearing of Order a generator to request, as part of its Commission. No. 890 that the Commission must make

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conditional firm service available to network upgrade, which is an obligation providers in designating resources for network customers. NRECA contends not imposed on either the transmission their native loads.78 Further, Order No. that a transmission provider will not provider or the point-to-point customer. 890 provided that network customers reject a resource for its own bundled 121. TAPS agrees that the rights of may designate off-system resources retail load simply because it may be network customers are significantly supported by conditional firm point-to- unavailable for a few hours per year due inferior to those of conditional firm point service.79 All of these provisions to congestion. NRECA argues that a customers. TAPS contends that a collectively allow network customers to transmission provider will, however, network customer would be required to designate resources in the same manner reject a request by a network customer have perfect knowledge, at the time of that transmission providers designate to designate that same resource because a network resource designation, as to resources for their loads. We therefore of the same limited availability. NRECA the effects of constraints in order to reject arguments that denial of concludes that conditional firm network limit its decision to periods when conditional firm network service results service is therefore necessary to transmission is adequate to in network service that is inferior to the eliminate undue discrimination accommodate the request. TAPS argues transmission provider’s own use of the between network customers serving that information about constraints system to serve its load. network load and the transmission gained as a result of an initial 124. While we agree with NRECA that provider serving its load. designation request is of minimal value conditional firm customers will be able 119. NRECA acknowledges that since a reframed request would take a to request service in advance of network customers may designate later place in the queue. secondary network customers, we find network resources any time firm 122. TAPS also argues that the this provides no reason to create a new transmission is available and use clarification provided in Order 890–A conditional firm service for network secondary network service to access that excess capacity created by customers. Those seeking conditional resources when firm service is not transmission upgrades should be firm service should have the ability to available. NRECA notes, however, that allocated first to conditional firm request service ahead of secondary the Commission justified granting customers based on their initial order in network service, a non-firm service. conditional firm service to point-to- the queue further degrades the benefit of Network customers seeking to designate point customers by stating that it made network service. Even if network their resources and avoid the use of little sense to ask point-to-point customers could predict periods for secondary network service may request customers to cobble together a which to request secondary network the study of special protection schemes collection of firm and non-firm requests service and firm designations, TAPS in their system impact study. Taken when only the transmission provider argues that they still could not create a together, the rights of network has information about when service may service comparable to conditional firm customers are therefore not inferior to be available or unavailable.76 NRECA service given the potential benefit of those of conditional firm customers. argues that network customers should being firmed up by excess capacity Indeed, network customers enjoy not be required to cobble together produced by later upgrades. TAPS advantages over conditional firm service comparable to that enjoyed by contends that the exclusion of network customers, including access to the transmission provider by customers is discriminatory given the reliability redispatch to avoid designating a resource at some times Commission’s finding that transmission curtailment of their loads. In any event, and accessing it through secondary providers provide conditional service to we remind NRECA and TAPS that network service at others. themselves and the requirement under network service and point-to-point 120. NRECA also argues that the section 28.2 of the pro forma OATT that service were not designed to be Commission improperly assumed that transmission providers ‘‘designate identical and the rights and obligations secondary network service can provide resources and loads in the same manner of each type of customer need not be the a service that resembles conditional firm as any Network Customer under Part III same.80 Comparability does not require service. NRECA contends that the of this Tariff.’’ TAPS further asserts that the same service be made available to curtailment priority of secondary the Commission should clarify whether network customers and point-to-point network service is inferior to the customer supporting the upgrade is customers; rather, the concept applies to conditional firm service. NRECA protected from having its upgrade sized the service taken for transmission provides a scenario in which the to meet the needs of earlier-queued provider’s load by the transmission transmission provider, a conditional conditional firm customers. provider as compared to the service for firm customer and a network customer Commission Determination network customer loads. using secondary network service are 125. Additionally, we disagree with taking power from the same generator in 123. The Commission again affirms the conclusions that NRECA draws from a location that is constrained ten hours the decision not to create a conditional its hypothetical scenario involving a per year. NRECA argues that the firm network service.77 As the network customer using secondary network customer will be curtailed Commission explained in Order No. network service, a conditional firm before the transmission owner and 890–A, the flexibility to use designated customer, and the transmission provider before the conditional firm customer. network resources and secondary taking power from the same generator. NRECA adds that conditional firm network service to access undesignated NRECA’s assertion that the transmission customers are considered firm resources already provides a service that provider will not curtail its own customers and will be able to request is like conditional firm service that can deliveries from the resource incorrectly service far in advance and to the be used to integrate new resources. The assumes that the transmission provider detriment of secondary network Commission also revised section 32.3 of will employ redispatch instead of customers. NRECA concludes that a the pro forma OATT to make clear that something akin to conditional firm network customer can only protect itself network customers have the right to service. If the transmission provider is from loss of service and loss of request the study of special protection scheduling priority by paying for a schemes like those used by transmission 78 Id. P 559. 79 Order No. 890 at P 1091. 76 Citing Order No. 890 at P 925. 77 Order No. 890–A at P 558. 80 Order No. 890–A at P 559.

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designating network resources using encounter this series of events, they entities, as in E.ON U.S.’s case where service analogous to conditional firm should file, prior to completion of the Tennessee Valley Authority is the service, it will use a special protection transmission upgrades, proposed tariff reliability coordinator. scheme to curtail or limit the provisions to address the allocation of 130. E.ON U.S. asks for further transmission service for the resource at the transmission capacity. clarification that unexpected events that the same time a network customer’s b. Implementation of Planning are not incorporated into the calculation secondary network service is curtailed. Redispatch and Conditional Firm of annual curtailment hours for a The conditional firm customer also Service conditional firm customer do not impact should be curtailed about the same the number of hours the customer can amount as the secondary network (1) Characteristics of Service be curtailed. Although the Commission service customer because the 127. The Commission reiterated in acknowledged in Order No. 890–A the conditional firm service, by definition, Order No. 890–A that both the need for flexibility in modeling various should be subject to curtailment at the transmission provider and reliability conditions, E.ON U.S. notes the secondary network service level during coordinator play a role in ensuring that Commission did not specify a level of the forecast constraints.81 NRECA’s adequate reliability is maintained when appropriate risk factor to apply when objection to conditional firm service is a customer uses third-party provided making annual curtailment calculations therefore based on a misunderstanding reliability dispatch. The Commission and further found that unexpected of the new service and the way that stated that this would entail review of events should not be included in transmission providers use similar redispatch plans submitted by the calculating annual curtailment mechanisms to designate resources on customers, coordination between the analysis.86 E.ON U.S. requests that the their systems. transmission provider and reliability Commission clarify whether unexpected 126. In Order No. 890–A, the coordinator, and signaling third-party events that are not included in the Commission clarified that customers generators when the redispatch is curtailment hours calculation also do supporting upgrades have priority needed. It is the customer’s ultimate not count towards the annual access to the capability created by those responsibility, however, to ensure that curtailment hours for customers taking upgrades even if conditional firm any technical arrangements required by conditional firm service. customers earlier in the queue opt not the reliability coordinator are in place in to support upgrades.82 The Commission order to maintain reliability. Commission Determination also stated that ‘‘any capacity created in 128. With regard to the conditional 131. In Order No. 890, the excess of the service request should be firm option, the Commission reiterated Commission directed transmission allocated to those planning redispatch that transmission providers are allowed providers to modify their OASIS sites to and conditional firm customers earlier to add a risk factor to their calculation allow for posting of third-party offers for in the queue, based on their order in the of annual curtailment hours to account planning redispatch and to work with queue.’’ 83 TAPS requests clarification of for forecasting risks. The Commission NAESB to develop the OASIS the former determination and objects to clarified that the modeling of conditions functionality and any necessary the latter determination. We clarify that to determine the number of non-firm business practice standards to allow for customers supporting upgrades, curtailments for any conditional firm third-party planning redispatch.87 The whether through direct assignment or request should not incorporate Commission noted that provision of rolled-in pricing, will not have their unexpected events, such as hurricanes third-party planning redispatch required upgrades sized based on the needs of and ice storms. planning redispatch and conditional coordination between the customer, firm customers that opt not to support Requests for Rehearing and transmission provider and reliability upgrades. Upon further consideration, Clarification coordinator, but determined that the customer bears the burden to ensure we grant rehearing of Order No. 890–A 129. E.ON U.S. requests that the with regard to how excess capacity Commission clarify that the reliability that the necessary contractual and created by upgrades should be allocated coordinator oversees third-party- technical arrangements are in place to among transmission customers.84 We provided planning redispatch to ensure maintain reliability. conclude that it is premature to make there is no conflict with reliability 132. We clarify in response to E.ON this determination given that the redispatch. E.ON U.S. also states, U.S. that the role of the reliability complicated series of events leading to however, that third-party planning coordinator in coordinating third-party such an allocation may never come to redispatch may have a negative impact planning redispatch is very limited. The pass.85 Should transmission providers on system reliability and ATC and, transmission provider should have therefore, the transmission provider primary responsibility for overseeing 81 We note, however, that network customer load should not be completely separated the coordination of third-party planning is unlikely to be curtailed due to provision of from the third-party planning redispatch redispatch. For example, if third-party reliability redispatch. In contrast, conditional firm planning redispatch impacts ATC, as customers’ transactions are more likely to be process. E.ON U.S. nonetheless argues curtailed during conditional periods because that the reliability coordinator is in the E.ON U.S. suggests, the transmission reliability redispatch is not required for point-to- best position to monitor the reliability provider will make this determination point service. impacts of third-party planning and relay that information to the 82 Order No. 890–A at P 584. redispatch. E.ON U.S. notes that the customer. It is important to distinguish 83 Id. reliability coordinator and transmission reliability redispatch, for which 84 We note that the clarification provided in Order reliability coordinators generally play a No. 890–A with regard to the allocation of excess provider sometimes are separate capacity was not required to address the original larger role, from planning redispatch. issue raised by Southern. See id. P 571, 584. transmission upgrades to secure its service; (3) the Planning redispatch is used to create 85 For this circumstance to present itself, all of the upgrade construction is completed; (4) the upgrades additional transmission capacity in following, at a minimum, must occur: (1) create additional capacity that the customer order to accommodate a request for Conditional firm or planning redispatch service is supporting the upgrades did not request; and (5) the granted to a customer unwilling to support conditional firm or planning redispatch customer upgrades; (2) a customer seeking service over the will be taking service when construction is 86 Citing Order No. 890–A at P 588. same transmission capacity agrees to support completed. 87 Order No. 890 at P 1007.

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long-term firm transmission service.88 the rate calculation as a revenue credit. planning redispatch does not withstand The transmission provider or third-party The Commission stated that scrutiny. generation operator must plan to transmission providers may propose in 137. Southern also repeats arguments dispatch its generator(s) so that the an FPA section 205 filing any rate that the Commission incorrectly requested transmission service, design change that may be necessary concluded in Order No. 890–A that otherwise shown unavailable by the through an amendment to its formula planning redispatch creates additional transmission provider’s ATC model, rate or in a single rate case filing. transmission capacity and does not take may be granted. In comparison, away firm service from native load and Requests for Rehearing and Clarification reliability redispatch is used to relieve network customers. Southern contends actual system constraints that would 135. E.ON U.S. and EEI request that planning redispatch merely otherwise cause curtailment of network rehearing of the Commission’s pricing reallocates, rather than creates, customer or transmission provider provisions with respect to the crediting transmission capability by forcing loads. While the reliability coordinator of transmission revenues from planning certain generators to run and others not has a larger role to play in reliability redispatch. Both repeat arguments that to run, thereby changing power flows. redispatch, its role in coordinating the Commission has forced transmission Southern, raising a new argument, third-party provision of planning providers’ native load to bear the cost of asserts that the provision of planning redispatch is very limited. planning redispatch on behalf of point- redispatch could result in reduced 133. With regard to our determination to-point customers. They ask the subsequent, later-queued sales of long- that unexpected events should not be Commission to grant rehearing to term or short-term transmission service incorporated into the analysis to require that, when transmission that might have produced higher determine the number of annual revenues exceed the cost of planning transmission revenues than the curtailment hours applying in any redispatch on a monthly basis, only the provision of planning redispatch. transmission service agreement, we amount of the excess transmission Southern adds that planning redispatch clarify that whether such events impact revenues should be credited against the could prevent a network customer from the accounting for annual curtailment cost of transmission service and the designating a new network resource by hours depends on the curtailment remainder should be credited against taking all of the transmission capacity priority of the service at the time of the the fuel adjustment clause. In the near a generating source. Southern event. If an unexpected event occurs alternative, EEI asks the Commission to therefore contends that the when the conditional firm customer is clarify that, when the transmission Commission’s conclusion in Order No. curtailed pursuant to a firm curtailment revenues exceed the cost of redispatch, 890–A that the provision of planning priority, then the curtailment will not all of the revenues should be included redispatch provides purely incremental count against the annual hours. In as a credit in developing the service without effect to existing determining whether the annual transmission cost of service that is used transmission capacity is arbitrary and conditional curtailments are met, to determine the transmission rate, and capricious. transmission providers should count the generation redispatch costs should Commission Determination curtailments made when the service is be included as a debit in determining otherwise conditional, i.e., tagged with the transmission cost of service and also 138. The Commission grants a secondary network curtailment should be credited against the fuel clarification regarding the rate treatment priority, regardless of whether the adjustment clause. of generation-related revenues and curtailment occurred during an 136. Southern repeats arguments revenues from the embedded cost rate of unexpected event. made on rehearing of Order No. 890 that transmission associated with planning transmission providers should be able to redispatch. In Order No. 888, the (2) Pricing of Planning Redispatch charge planning redispatch customers Commission concluded that revenues 134. The Commission affirmed the the embedded costs of transmission as from direct assignment of redispatch determination in Order No. 890 that well as the generation-related costs of costs must be credited to the costs of customers taking long-term point-to- providing redispatch. Southern fuel and purchased power expense point service with planning redispatch contends that it is unduly included in the transmission provider’s will have the option of paying either (i) discriminatory and arbitrary and wholesale fuel adjustment clause.89 the higher of (a) actual incremental costs capricious to allow a transmission This rate treatment is appropriate for all of redispatch or (b) the applicable customer to be charged both the costs of generation-related incremental costs, embedded cost transmission rate on file generation redispatch and the whether the customer pays the with the Commission or (ii) a fixed rate embedded transmission rate when the embedded cost transmission rate or the for redispatch to be negotiated by the redispatch is provided by a third party, costs of planning redispatch in any transmission provider and customer and but not when redispatch is provided by particular month. Therefore, we direct subject to a cap representing the total the transmission provider. In months in that in months in which the embedded fixed and variable costs of the resources which redispatch costs are higher than cost transmission rate is higher than the expected to provide the service. The the embedded cost rate, Southern generation-related costs of providing Commission clarified that, in months in contends that the transmission provider redispatch, the revenues in excess of the which generation-related payments are is similarly situated to a third party generation-related costs should be collected for planning redispatch, these generator that provides redispatch credited against the costs of payments should be treated as a revenue because neither would receive transmission service and the remaining credit to offset the native load transmission revenues for the additional revenues, those representing the customers’ fuel adjustment clause. In transmission capability created by their monthly costs of reconfiguring months in which the embedded cost redispatch. Southern therefore argues generation resources, should be credited rate of transmission is collected for that the policy against ‘‘and pricing’’ is against the fuel adjustment clause. planning redispatch, those revenues unduly discriminatory as applied to 139. We affirm our decision in Order should be included in the numerator of transmission providers and that this No. 890–A to deny requests to depart disparate treatment of transmission 88 See Order No. 890–A at P 603. providers and third-party providers of 89 See Order No. 888 at 31,740.

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from our long-standing prohibition of generation markets support five-year network load. Entergy explains that the ‘‘and’’ pricing for planning redispatch power supply contracts. The transmission provider studies these service first adopted in Order No. 888 Commission explained that the purpose reservations as they are submitted and, and followed in Order No. 890.90 In of its reform of the rollover policy is to if they are deliverable to the relevant Order No. 890, the Commission align the rights and obligations of the network load on a firm basis, then they modified pre-existing planning customer with those of the transmission are designated as network resources. redispatch obligations and lessened the provider, not with the availability of 144. Entergy argues that granting impact on transmission providers (and supplies within a market or particular rollover rights based solely on the term their customers) with the continuing commercial practices in a region. The of a network service agreement, rather support of many transmission providers, Commission noted that a point-to-point than the term of the network resource including Southern. The Commission customer does not need to have a five- designation, would effectively ignore also modified pricing provisions to year power contract in order to secure the firm deliverability requirement allow for the comparison of monthly a five-year transmission service contract underlying all network resources, generation-related costs of planning and that the length of the network allowing a network customer to execute redispatch to determine the applicable customer’s service agreement, not the a multi-year service agreement and rate. In directing this monthly length of the power contract supporting obtain rollover rights even though it comparison, the Commission rejected a network resource designation, actually may have only designated the former provisions for basing the determines whether a customer is network resources for as little as one charge on a life of the contract eligible for rollover. day. Entergy contends that this is not comparison, concluding that it was 142. The Commission also affirmed the intent of allowing transmission appropriate to make planning the decision in Order No. 890 not to customers to designate network redispatch service more attractive for eliminate the requirement to match resources on a short-term basis and transmission providers to provide.91 competing requests in order to retain constitutes bad transmission policy and 140. We also affirm, as the rollover rights. With regard to the undermines reliability. Commission did in Order Nos. 890 and effectiveness of the rollover reforms, the 145. Cargill objects to the revision of 890–A, the determination in Order No. Commission acknowledged that section 2.2 of the pro forma OATT 888 that planning redispatch creates requiring a five-year contract term for requiring existing customers to match additional transmission capability.92 We pending transmission service requests the longest-term competing request in agree with Southern that provision of could cause significant disruption to order to rollover service. Cargill planning redispatch may have an those transmission customers already in contends that the Commission in Order impact on subsequent, later-queued the transmission queue at the time of No. 890 determined that a rollover requests to use the transmission grid. It the effective date of Order No. 890. The customer must agree to another five-year is the nature of networked transmission Commission therefore revised section contract term or match any longer-term grids that granting any firm point-to- 2.2 of the pro forma OATT to provide competing request in order to be eligible point or network service will impact the that the current one-year contract for a subsequent rollover,95 but imposed ability of those seeking to use the commitment requirement will continue no similar requirement when exercising system in the future. The impact of to apply to all transmission service a rollover right when a subsequent planning redispatch, or any other firm requests that were in a transmission rollover is not desired. Cargill argues service, on subsequent uses of the grid provider’s transmission queue as of the that the new requirement to match the does not provide a valid reason for effective date of the reforms adopted in longest-term competing request in order lifting the long-standing prohibition on Order No. 890 (i.e., July 13, 2007). to roll over service violates the first- ‘‘and’’ pricing, nor does it undermine Requests for Rehearing and Clarification come, first-served principles affirmed in the determination in Order No. 888–A Order No. 890. Cargill suggests, for that planning redispatch creates 143. Entergy objects to the example, that one potential customer additional transmission capacity. To the Commission’s statement in Order No. could submit a competing request well extent that Southern argues it could 890–A that the term of the network in advance of the incumbent’s rollover, collect additional revenues from customer’s underlying service followed by a second longer-term network customers’ designation of agreement establishes whether a competing request submitted by another additional resources were Southern not network service reservation is eligible potential customer closer in time to the providing planning redispatch, we find for rollover rights, rather than the term incumbent’s rollover. Cargill contends this unconvincing as network customers of the relevant designated network that the revision to section 2.2 would 93 are charged for service based on their resources. Entergy argues that this allow the second customer to effectively load not the number of resources determination is an unexplained preempt the earlier submitted designated. departure from existing rollover policy competing request simply because both providing that a network service are vying for capacity subject to the 2. Rollover Rights reservation’s eligibility for a rollover is incumbent’s rollover right. 141. In Order No. 890–A, the based on the term of the underlying 146. Cargill argues that the revised Commission affirmed the decision in network resource.94 Entergy argues that language of section 2.2 therefore violates Order No. 890 to limit rollover rights to network customers most often execute the first-come, first-served principle of contracts with a minimum term of five long-term service agreements, section 13.2 of the pro forma OATT and years. The Commission rejected requests sometimes up to as many as 30 years in Commission precedent regarding the to condition application of the length, that act as umbrella agreements application of rollover rights,96 minimum five-year term on a under which network customers nullifying the benefit of being the first demonstration that the relevant designate and undesignate different competitor to submit a competing network resources as needed to serve 90 See Order No. 890 at P 1028. 95 Citing Order No. 890 at P 1231. 91 Order No. 890 at P 1025. 93 Citing Order No. 890–A at P 645. 96 Citing Tenaska Power Services Co. v. Midwest 92 Order No. 888–A at 30,267; Order No. 890 at 94 Citing Wis. Pub. Power, Inc. v. Wis. Pub. Serv. ISO, 106 FERC ¶ 61,230 at P 28, reh’g denied, 107 P 1028; Order No. 890–A at P 602, n.241. Corp., 84 FERC ¶ 61,120, at 61,659 (1998) (WPPI). FERC ¶ 61,308 (2004) (Tenaska).

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request for capacity subject to a rollover rollover.98 In considering that issue, the customer.100 This obligation was right. Cargill contends that the Commission first addressed whether independent of the separate requirement Commission provided no justification in rollover rights are available to network for the rollover customer to request a Order No. 890–A for revising its rollover customers, concluding that all network term of at least one year in order to be policy to require a customer to match customers of the transmission system eligible for rollover rights on the new the longest-term competing request in are long-term users of the system and, service. In amending section 2.2 in order to rollover its service. Cargill also therefore, meet the minimum term Order No. 890, the Commission argues that the Commission provided no required to qualify for rollover rights. inadvertently misstated the matching notice or opportunity to comment on That determination was appropriate requirement as requiring the customer this change in Commission policy. when the one-year contract commitment to match the longer of the term of a 147. TranServ requests clarification of was in effect, since network service competing request or five years in order the Commission’s determination agreements are not short-term in nature. to roll over its service.101 That was regarding the application of the new However, when the Commission incorrect, as the requirement to commit rollover policies to customer requests extended the minimum contract to at least five years of service is queued prior to the effective date of the commitment for rollover rights from one relevant only to whether the new reforms adopted in Order 890. TranServ year to five years, it was necessary to service has rollover rights, not to states that there is continued confusion state more clearly that a network whether the customer may roll over its over exactly when customers would be customer’s threshold eligibility for existing service. required to request long-term service for rollover rights is linked to the term of 152. The Commission corrected this five years or longer to be granted its network service agreement. misstatement in Order No. 890–A by rollover rights. TranServ contends that amending section 2.2 to require 150. We disagree that this customers submitting long-term service customers rolling over the service to determination undermines the ability of requests after July 13, 2007, but prior to match the longest competing request.102 the transmission provider to study the the effectiveness of revised section 2.2 As Cargill points out, the Commission’s potential impact that future resource of the OATT, are not granted the right reference to the longest-term competing designations may have on the system. to rollover service under the previous request could require a rollover Although a network customer rolling one-year term rollover policy. TranServ customer taking long-term service to over its network service may match a suggests that it may be more appropriate match the length of any competing long- competing point-to-point request by to allow transmission customers that term request. Under the Commission’s submitted requests for one year or extending its network service agreement existing precedent regarding section 2.2 longer after July 13, 2007, but executed rather than the power contract of the pro forma OATT, however, there a service agreement prior to the effective supporting the resource designation, the would be only one potential competitor date of the revised section 2.2, to also Commission specifically noted that any for rollover customers seeking long-term be allowed to operate under the one- subsequent request to designate a service, i.e., the first customer in the year term rollover policy through their network resource would remain subject queue requesting competing service.103 first rollover date. to the requirements of the pro forma We did not intend to modify this policy OATT, as with any other request to and, therefore, revise the language of Commission Determination 99 designate a network resource. The section 2.2 to require customers rolling 148. The Commission affirms the transmission provider will therefore over their service to accept a contract determination in Order No. 890–A that continue to be able to consider the term at least equal to a competing the length of a network customer’s deliverability of a particular resource at request. Any such competing request network service agreement, not the the time of designation. We note that should be identified by the transmission length of a power contract supporting a this does not relieve the transmission provider consistent with the reservation network service agreement, determines provider of its obligation under section priorities stated in the pro forma OATT. whether the network customer is 28.2 of the pro forma OATT to plan, 153. We affirm the decision in Order eligible for rollover rights.97 A network construct, operate and maintain its No. 890–A to continue to apply the customer’s eligibility for rollover rights transmission system in order to provide current one-year contract commitment is distinct from its ability to rollover a the network customer with network requirement to all transmission service particular resource designation. In order service over the transmission system. requests that were in the transmission for a network customer to qualify for 151. We agree with Cargill, however, provider’s transmission queue as of the rollover rights, it must have a network that the revisions to the language of effective date of the reforms adopted in service agreement that satisfies the section 2.2 of the pro forma OATT Order No. 890, i.e., July 13, 2007.104 minimum term necessary for rollover adopted in Order No. 890–A do not This does not mean, as TranServ rights. The network customer may then properly reflect the obligation of implies, that the five-year contract continue to designate and undesignate customers rolling over their service to resources pursuant to that service match competing requests for service. 100 See Order No. 888 at 31,665. agreement, subject to the availability of Section 2.2 of the Order No. 888 pro 101 See Order No. 890 at Appendix C, pro forma adequate transmission capability to forma OATT required customers rolling OATT section 2.2. 102 See Order No. 890–A at P 695 (‘‘An existing accommodate the request. over their service to accept a contract customer may rollover its service for a term of less 149. This does not, as Entergy argues, term for their new service at least as than five years, but will not then retain a rollover depart from Commission precedent long as that offered by another potential right for this service. We revise section 2.2 of the regarding the network customer’s pro forma OATT to make these requirements clear.’’). eligibility for rollover rights. At issue in 98 See WPPI, 84 FERC at 61,659. 103 See Tenaska, 106 FERC ¶ 61,230 at P 48; see WPPI was whether a network customer 99 See Order No. 890–A at P 666, n.264. With also Cargill Power Marketers, LLC v. Southwest is required to compete with other firm regard to competing network resource designations, Power Pool, Inc., 122 FERC ¶ 61,068 (2008) uses of the system in order to continue the Commission affirmed in Order No. 890–A that (distinguishing the ‘‘equal to a competing request’’ the network customer seeking rollover must match language of section 2.2 of the pro forma OATT from its resource designation at the time of the term of the competing network resource power the ‘‘longest confirmed competing request’’ contract, consistent with WPPI. See Order No. 890– language of SPP’s tariff). 97 See Order No. 890–A at P 645. A at P 666. 104 See Order No. 890–A at P 691.

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commitment requirement applies to a to allow pre-confirmation by eligible b. Right of First Refusal and Preemption customer executing a service agreement customers that have not yet executed after that date, but prior to the service agreements. They argue that this 159. The Commission affirmed in effectiveness of rollover reforms for the revision is inconsistent with how Order No. 890–A the decision not to particular transmission provider. The service is reserved on the Phase I/II change the first-come, first-served Commission reiterated in Order No. HVDC–TR transmission system operated nature of the reservation process and the 890–A that the previously existing by ISO New England and Hydro-Quebec right of first refusal. In response to rollover provisions will remain in effect TransEnergie. The Schedule 20A comments that administration of the for the transmission provider until such Service Providers state that they have right of first refusal has the potential to time as the Commission accepts the therefore requested approval of a create complicated scenarios, such as transmission provider’s Attachment K variation from the pro forma OATT in when scarce capacity exists, the compliance filing.105 We therefore agree their October 11, 2007 compliance filing Commission declined to expand upon with TranServ that the one-year contract to accommodate their reservation the language of the pro forma OATT to commitment requirement continues to practices. account for every factual scenario that apply to any customer executing a 157. The Schedule 20A Service could arise. The Commission recognized service agreement prior to the effective Providers also argue more generally that that certain unique cases can present date of the transmission provider’s OASIS is not set up to take pre- difficult allocation issues, but revised section 2.2, regardless of when confirmed applications and, therefore, concluded that such cases arise the customer’s service request was there is no means by which an eligible infrequently and that sections 13.2 and submitted. customer that is not yet a transmission 14.2 of the pro forma OATT provide 154. Finally, we take this opportunity customer can request pre-confirmed adequate guidance for the vast majority to clarify the statement in Order No. service. They argue that limiting pre- of requests. 890–A that the transmission provider confirmation status to transmission may file the revised rollover language Request for Rehearing and Clarification only after the transmission provider’s customers does not preclude new Attachment K planning process is customers from seeking service on an 160. Duke asks the Commission to accepted by the Commission.106 equal footing since the obligation to clarify that a transmission provider need Transmission providers may file the execute a service agreement does not not offer a right of first refusal if it revised rollover language adopted in impose an undue burden. To the cannot be done in a single offering to this proceeding at any point after the contrary, they argue that substantial other eligible customers. Duke argues Commission has accepted the implementation difficulties would arise that it is unduly complicated to offer a transmission provider’s Attachment K if transmission providers are forced to right of first refusal when the offer compliance filing, even if such recognize pre-confirmation status for triggers other transmission customers’ acceptance is subject to further eligible customers that do not have rights of first refusal. If it is the compliance obligations, unless access to OASIS. The Schedule 20A Commission’s intention that the otherwise provided by the Commission Service Providers therefore ask the transmission provider offer cascading in the order addressing the Attachment Commission to grant rehearing to rights of first refusal, Duke requests K compliance filing. The effective date provide that the modifications to guidance that can be used by NAESB to of that revised tariff language should be sections 1.39, 17.2 and 18.2 of the pro develop adequate business practices. commensurate with the date of the filing forma changes are not necessary or containing the revised language. appropriate when applications are not a Commission Determination means for requesting service through 3. Acquisition of Transmission Service OASIS. 161. The Commission declines to address in this rulemaking proceeding a. Reservation Priority Commission Determination how transmission providers should 155. The Commission confirmed in resolve complicated and fact-specific 158. The Commission affirms the Order No. 890–A that longer duration scenarios such as the cascading rights of decision in Order No. 890–A to allow service requests will continue to have first refusal described by Duke. Sections eligible customers to submit pre- priority over shorter duration service 13.2 and 14.2 of the pro forma OATT confirmed requests for transmission requests, with pre-confirmation serving provide adequate guidance for service.107 The ability to submit pre- as a tie-breaker for requests of equal transmission providers to fairly confirmed requests should not be duration. Order No. 890–A also affirmed administer the vast majority of limited to existing short-term and non- the decision to limit priority for pre- competing requests, including priorities confirmation status to short-term firm firm transmission customers. To the extent this policy conflicts with the for determining which reservations or and long-term non-firm requests for requests trump one another as well as service. The Commission also revised operations of any given transmission provider, as the Schedule 20A Service the timeframes for eligible customers to sections 1.39, 17.2 and 18.2 of the pro respond to competing requests. As the forma OATT to make clear that pre- Providers suggest, the transmission provider may seek a variation from the Commission explained in Order No. confirmation service should be available 890–A, we expect that more complex to all eligible customers seeking short- terms and conditions of the pro forma circumstances such as those suggested term firm and non-firm transmission OATT as necessary to accommodate its by Duke will be relatively limited and, services. operations. We note, for example, that the Commission approved the variation therefore, are best addressed on a case- 109 Requests for Rehearing and Clarification requested by the Schedule 20A Service by-case basis. Transmission providers 156. Schedule 20A Service Providers Providers in Docket No. ER08–54– remain free, however, to develop request rehearing of the Commission’s 000.108 through the NAESB process standard decision to revise the pro forma OATT procedures for processing complicated 107 Order No. 890–A at P 790. request scenarios. 105 See id. P 684. 108 See ISO New England, Inc., 123 FERC ¶ 61,133 106 See id. (2008). 109 See Order No. 890–A at P 816.

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4. Designation of Network Resources for reasons other than reliability.110 being designated to the transmission Duke requests clarification that both a provider’s transmission system. If an 162. In Order No. 890–A, the make-whole provision and a restriction off-system power purchase is Commission clarified certain on the grounds for interruption, such as sufficiently firm to satisfy the determinations regarding the the restriction added to the WSPP designation requirements, the qualification, documentation and Schedule C agreement, are required for transmission provider need not be undesignation of resources by a network an LD contract to be eligible for network concerned with the upstream customer. A number of petitioners resource status. transmission leg(s) from the generator(s) request additional rehearing and to the point where the buyer takes title Commission Determination clarification regarding these issues. We of the firm power. The Commission address each of these issues in turn. 165. The Commission reiterates that a concluded that the firm contract itself is power purchase agreement must meet the resource being designated and, a. Qualification as a Network Resource all of the requirements for designation therefore, it is not necessary to (1) LD Contracts as a network resource in order to be demonstrate the firmness of the designated by the network customer or upstream transmission. 163. In Order No. 890, the transmission provider’s merchant Commission affirmed its existing policy function. The fact that a firm LD Requests for Rehearing and Clarification that a power purchase agreement may contract with a make whole provision is 168. Entergy requests clarification that be designated as a network resource sufficient to satisfy one aspect of these customers designating an LD contract as provided it is not interruptible for requirements does not mean that it can an off-system network resource must economic reasons, does not allow the be designated as a network resource. still arrange a firm transmission path seller to fail to perform under the The remaining requirements must also from the generator to the transmission contract for economic reasons, and be met.111 As the Commission made system in order for the purchase to requires the network customer to pay for clear in Order No. 890, one of those qualify as a network resource, regardless the purchase. The Commission other requirements is that such of where title of energy and/or capacity concluded that power purchases with a contracts expressly prohibit interruption actually passes. If the point where title firm liquidated damages (LD) provision for reasons other than reliability. to energy and/or capacity underlying a may be eligible for designation as a 166. We disagree with Duke that the network resource transfers is now network resource if the contract EEI firm LD product fails to prohibit relevant, Entergy argues that the obligates the supplier, in the case of interruptions for reasons other than Commission at a minimum should interruption for reasons other than force reliability. Duke raised a similar clarify how that information should be majeure, to make the aggrieved buyer argument in its NOPR comments, relayed to the transmission provider in financially whole by reimbursing them suggesting that the EEI firm LD product the network customer’s attestation and for the additional costs, if any, of allows power to be interrupted for any the procedures, if any, that the replacement power. The Commission reason. The Commission expressly transmission provider must undertake found that the ‘‘make whole’’ LD disagreed, finding that power cannot be in order to ensure the veracity of provisions in EEI’s Master Power interrupted for economic reasons under information provided regarding title. Purchase and Sale Agreement’s Firm LD the EEI firm LD product and that the Entergy argues that elimination of the product (EEI’s Firm LD Product) and the supplier is obligated to provide power requirement to support an LD contract WSPP Service Schedule C agreement except in cases of force majeure.112 with a firm transmission path from the satisfy this requirement. In Order No. Duke is therefore mistaken in implying source generator would violate the long- 890–A, the Commission affirmed its that the EEI firm LD product is not standing obligation that third-party finding that the make whole LD eligible for designation under transmission arrangements delivering provisions in the EEI Firm LD Product Commission policy because of its purchases be firm and depart from prior and the WSPP Service Schedule C interruptibility. governing precedent without a reasoned 113 agreement are sufficiently firm to make (2) Off-System Resources explanation. those agreements eligible for Commission Determination designation as a network resource. 167. In Order No. 890, the Commission modified section 29.2(v) to 169. The Commission affirms the Requests for Rehearing and Clarification state more clearly the information that determination in Order No. 890–A that must be provided for the designation of the requirement in section 29.2(v) of the 164. Duke asks the Commission to off-system network resources. Among pro forma OATT to identify the confirm that firm LD contracts that are other things, the network customer must transmission arrangements on external not strictly limited to interruption for provide its transmission arrangements systems applies only to the transmission reliability reasons, such as the EEI on the external transmission system(s). leg from the resource being designated Master Agreement Firm LD Product, no In Order No. 890–A, the Commission to the transmission provider’s longer can be designated as network clarified that this requirement applies to transmission system.114 If an off-system resources in the future. Duke contends the transmission leg from the resource power purchase is sufficiently firm to that the Commission’s statement in satisfy the designation requirements, Order No. 890–A that ‘‘the make whole 110 Citing Order No. 890–A at 832. then the transmission provider need not LD provisions in the EEI firm LD 111 See, e.g., id. P 864 (‘‘The Commission did not be concerned with the upstream product and WSPP Schedule C state that every firm LD contract can be designated transmission leg(s) from the generator(s) agreement are sufficiently firm to make as a network resource, but rather that they are eligible for designation.’’) (emphasis in original); to the point where the buyer takes title those agreements eligible for Order No. 890 at n. 869 and P 1460 (finding that of the firm power. As the Commission designation as a network resource’’ the then current WSPP Schedule C agreement, explained in Order No. 890–A, the implies that LD contracts with make- while meeting requirements for LD provisions, resource being designated is the firm whole provisions may serve as network otherwise allows interruptions for reasons other than reliability and, as a result, would not be resources, even if not coupled with eligible for designation as a network resource). 113 Citing WPPI, 84 FERC at 61,660. provisions that also restrict interruption 112 Order No. 890 at P 1452. 114 See Order No. 890–A at P 867.

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contract. The network customer b. General counting of resources. Fourth, Duke therefore must provide to the 172. In Order No. 890–A, the states concern regarding the transmission provider information Commission affirmed the decision to grandfathering of existing designations regarding its transmission arrangements allow off-system resources supported by for resources that may be curtailed by only from the point that the network conditional firm point-to-point service the seller for any reason. Finally, Duke customer takes title to the power to the to be designated as network resources. argues that the Commission’s attestation point of delivery to the transmission The Commission declined to require a requirement will not adequately curb provider’s transmission system, to the network customer with a designated off- the practice of designating unqualified extent such points are distinct. system resource supported by resources as network resources due to a 170. We disagree that this conditional firm service to obtain lack of audit resources. determination conflicts with the reserves or backup resources to cover 174. Duke requests clarification that Commission’s decision in WPPI. In that the periods when the resource transmission providers or their case, the Commission clarified that the supported with conditional firm point- merchant functions may make section transmission provider could require to-point transmission service might not 205 filings to provide for penalty rates network customers to document be delivered. The Commission for network customers that fail to compliance with specific requirements explained that, in the event conditional provide enough energy to serve load for obtaining tariff service and that such firm service is curtailed, the network because network resources were not documentation might include customer would be required to serve its delivered for reasons that could be contractual materials.115 The network load from other resources, just expected. Duke explains that the most Commission did not address whether as when the transmission provider severe penalty for energy imbalance those requirements include the curtails the network customer’s use of service under Schedule 4, 125 percent requirement to provide information secondary network service. The of incremental cost, is not particularly regarding transmission arrangements Commission reiterated that it is not the onerous and thus may be insufficient to between a designated power purchase responsibility of the transmission motivate appropriate behavior. Duke agreement and the source generator. The provider to ensure that the network suggests that a rate of two times system Commission concluded in Order No. customer has sufficient resources to incremental costs would be appropriate. 890–A that they do not, given that the meet its load. Commission Determination designated purchased power contract is itself firm.116 Entergy provides no Requests for Rehearing and Clarification 175. The Commission reiterates that it justification for granting rehearing of 173. Duke argues that the is not the responsibility of the this determination, which is well- Commission, in its finding that transmission provider to ensure that the founded in the record of this transmission providers are not to serve network customer has sufficient proceeding.117 as provider of last resort for their resources to meet its load. The 171. We disagree that a network network customers, did not explain how Commission has made clear that the customer must separately identify in its transmission providers can realistically requirements for the designation of attestation the location at which the avoid this role or how transmission network resources are not intended to network customer takes title of providers or their merchant function replace or replicate resource adequacy purchased power. Section 30.2 of the should be compensated in the likely requirements, which impose distinct pro forma OATT requires the network event that the transmission provider obligations on the transmission provider customer to attest that, among other will continue to provide power to and its customers.120 To that end, the things, the network customer owns or network customers that are short of Commission has determined that a has committed to purchase the resource energy resources. Duke argues that resource’s qualification for network being designated. Implicit in the several of the Commission’s policies on resource status does not necessarily identification of a resource, then, is the designation of network resources create mean that the resource can or should be requirement that the network customer or exacerbate risks that network counted as firm capacity for the has or has committed to acquire title to customers may at times be short of purposes of resource adequacy.121 We the resource at that location. As the resources. First, Duke cites the therefore disagree with Duke that the Commission explained in Order No. Commission’s decision to allow a Commission’s policies regarding the 890–A, it is the responsibility of the network customer to deliver power from designation of network resources creates network customer to assure that the off-system network resources using or exacerbates risks that inadequate requirements of the pro forma OATT are conditional firm point-to-point service, resources will be available to meet satisfied prior to requesting the which it argues may be curtailed with network load. designation of a network resource and much greater frequency than network 176. We decline to address Duke’s executing the attestation.118 Review of resources supported by firm point-to- suggestion that increased penalty rates the network customer’s power supply point service. Second, Duke cites the may be appropriate for network contracts by the transmission provider Commission’s rejection of requests to customers that fail to provide enough is therefore not necessary. Submitting allow transmission providers to verify energy to serve network load because an attestation with incorrect information that a network resource is supported by their network resources were not as to its ownership of purchased power firm transmission service upstream of delivered for reasons that could be would violate section 30.2, subjecting the location of the purchase. Third, expected. The Commission has already the network customer to potential Duke cites the Commission’s policy of made clear that it will consider on a penalties.119 allowing power sales contracts that case-by-case basis proposals to adopt permit interruption by the seller in enhanced imbalance penalties subject to 115 See WPPI, 84 FERC at 61,660. order to reliably serve native load to 116 See Order No. 890–A at P 867. qualify as network resources, arguing 120 See Order No. 890 at P 1584; Order No. 890– 117 See id. P 854–55. that such policy may permit double- A at P 835, 837. 118 See id. P 921. 121 Midwest Indep. Transmission Sys. Operator, 119 See Order No. 890 at P 1523–25. As we note customer’s compliance with a transmission Inc., 122 FERC ¶ 61,283, at PP 274–76 (2008), reh’g below, the Commission can audit a network provider’s OATT in a variety of circumstances. pending.

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a showing that they are necessary under held that language in the preamble of a providing the necessary assurance to the the circumstances.122 regulation is not controlling over the transmission provider that the language in the regulation itself.124 If designated resource is backed by firm c. Documentation for Network the Commission actually intended to transmission up to the point of delivery Resources require the attestation at the application to the provider’s system. 177. In Order No. 890, the stage, they request rehearing on the Commission Determination Commission required network grounds that a network customer cannot customers and the transmission be expected to commit to purchase a 182. The Commission grants rehearing provider’s merchant function to include resource before the resource has even to more accurately state the requirement a statement with each application for been studied by the transmission to provide an attestation supporting the network service or to designate a new provider. designation of network resources network resource that attests, for each 180. Duke states continued concern pursuant to sections 29.2(viii) and 30.2 new network resource identified, that regarding the effectiveness of the of the pro forma OATT. In order to (1) the transmission customer owns the attestation requirement submitted by designate a network resource, section resource, or has committed to purchase network customers that are not subject 30.7 of the Order No. 888 pro forma the resource pursuant to an executed to the Commission’s ratemaking OATT required each network customer contract or where execution of a jurisdiction. Duke maintains that, while to demonstrate that (i) it owns or has contract is contingent upon the the Commission plainly has the committed to purchase generation availability of transmission service, and authority to penalize nonjurisdictional pursuant to an executed contract or (ii) (2) the resource comports with the entities that submit false attestations, execution of a contract is contingent requirements for designated network the Commission has never routinely upon the availability of transmission resources. The Commission stated that audited such entities. Unless the service in order to designate a these attestations are not required to be Commission begins an audit program generating resource. In Order No. 890, submitted until the service request is that routinely reviews the designation the Commission adopted the attestation confirmed. In Order No. 890–A, the attestations and supporting contracts of requirement as the means by which the Commission affirmed the requirement nonjurisdictional network customers, network customer can make this that each network customer designating Duke argues that noncompliance could demonstration, revising sections 29.2 network resources must submit an be viewed as nearly risk-free. Duke and 30.2 accordingly. We affirm this attestation using the language set forth contends that this would be inequitable requirement, consistent with the in sections 29.2 and 30.2 of the pro given that merchant functions of network customer’s obligations under forma OATT. transmission providers are routinely section 30.7, and grant rehearing of the 178. The Commission also affirmed audited. If the Commission lacks the Commission’s statements in this the decision to require each resources to begin routine, random proceeding indicating that the transmission provider to verify that auditing of nonjurisdictional entities’ attestation can instead be submitted at third-party transmission arrangements attestations, Duke suggests that the the time a resource designation is used to deliver an off-system designated Commission consider permitting market confirmed, rather than requested. network resource to the transmission monitors or independent entities to at 183. We disagree with NRECA and provider’s system are firm. The least perform spot checks and report to TDU Systems that a customer Commission explained that, under the Commission if a questionable submitting an attestation pursuant to normal circumstances, this verification attestation has been made. section 29.2(viii) or 30.2 of the pro requirement should not present a 181. TranServ requests clarification of forma OATT must commit to purchase significant burden for the transmission the means by which a transmission the resources for which designation is provider because it only requires review provider may comply with its obligation requested irrespective of the outcome of of the transmission arrangements from to verify the firmness of off-system the network service request. Consistent the designated network resource to the transmission service to deliver with section 30.7, a network customer transmission provider’s system. designated network resources to the may attest that execution of a contract transmission provider’s system. is contingent upon the availability of Requests for Rehearing and Clarification TranServ requests that only long-term transmission service under Part III of the 179. NRECA and TDU Systems seek designations of network resources pro forma OATT. Network customers confirmation that network customers are should require an up-front verification are therefore not required to commit to not required to submit attestations until of any off-system transmission purchasing a resource prior to the customer confirms the service arrangements. For shorter-term submitting a request to designate that request on OASIS. These petitioners designations, TranServ suggests that it is resource. state that clarification is necessary sufficient for the transmission provider 184. In response to Duke, we disagree because some of their members have to verify that all transmission that it is necessary to establish audit been told by transmission providers that arrangements upstream of the provider’s programs specifically for this attestation is required at the time of system are supported by firm nonjurisdictional entities in order to application for service, despite the transmission at the time the transactions verify attestations supporting their Commission’s guidance in the from the resource are scheduled. network resource designations. The preambles of both Order Nos. 890 and TranServ contends that this would Commission could audit any network 890–A.123 NRECA and TDU Systems allow more flexibility on the part of the customer’s compliance with a contend that the language of section transmission customer in terms of transmission provider’s OATT in a 29.2 of the pro forma OATT is balancing the use of a portfolio of point- variety of circumstances. For instance, inconsistent with the preamble and to-point transmission rights, while still network customers (including should be amended because courts have nonjurisdictional entities) and the 124 Citing Wyoming Outdoor Council v. U.S. transmission provider’s merchant Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999) (citing 122 function could be asked to support Order No. 890 at P 676. Jurgensen v. Fairfax County, Va., 745 F.2d 868, 885 123 Citing Order No. 890 at P 1531; Order No. (4th Cir. 1984)) and Rowell v. Andrus, 631 F.2d 699, selected attestations during audits of the 890–A at P 909. 705 (10th Cir. 1980). transmission providers to whom the

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attestations were submitted. Thus, no Commission Determination from designated network resources are special audit programs are necessary. 188. In Order No. 890, the themselves designated as network 185. We deny TranServ’s request that Commission directed transmission resources by the buyer and, therefore, the firmness of transmission service providers to evaluate as a single request few system sales would require used to deliver short-term designations a request for temporary undesignation undesignation on a unit-by-unit basis. of network resources be verified at the and related requests for transmission Requests for Clarification and Rehearing time of scheduling, rather than at the service. Transmission providers were 191. Several petitioners request time of designation. The time of therefore directed to develop, working rehearing and clarification of the designation is when the transmission through NAESB, business practices requirement that generating units provider determines that power from a allowing for electronic identification of supporting a sale of system power that network resource is deliverable to related transmission service requests to is not designated as a network resource associated network load and, therefore, be evaluated concomitantly with the by the buyer must be undesignated by it is appropriate to require the request for temporary undesignation. the seller on a unit-by-unit basis.126 verification of related transmission This was appropriate in light of the Petitioners generally argue that a seller service at that time. Commission’s decision to allow network should not be required to undesignate customers to temporarily undesignate d. Undesignation of Network Resources individual resources used to support their network resources without (1) Risk to ATC Rights any system sale of power. forfeiting the right to use the resource at 192. Various petitioners argue that 186. In Order No. 890, the a specified point in the future, provided requiring unit-by-unit undesignations Commission clarified that a request for they pair the temporary undesignation by sellers for system sales to buyers who termination of a network resource that with a request to redesignate the use point-to-point service to deliver the is concurrently paired with a request to resource. redesignate that resource at a specific 189. We find that similar procedures power to their load has certain point in time will not result in the for permanent undesignations of undesirable effects, including increased network customer permanently network resources are unnecessary cost and administrative burden for forfeiting rights to use that resource as given the transmission provider’s system sales, increased tendency of a designated network resource. Any obligation to consider clustering sellers to discriminate against point-to- change in ATC that is determined by the transmission service requests at the point buyers, foreclosed opportunities transmission provider to have resulted request of customers. If a network for transactions, decreased liquidity, from the temporary termination shall be customer or the transmission provider’s decreased revenues for sellers, posted on OASIS during this temporary merchant function wishes for the decreased efficiency in transmission period. The Commission directed transmission provider to take into use, and further discouragement of transmission providers to develop consideration the effect of a request to network customers from making system OASIS functionality and, working terminate a network resource on a sales that do not qualify for designation by the buyer, such as sales into day- through NAESB, business standards concomitant request to designate 127 describing the procedures for submitting another network resource, it may ahead RTO markets. temporary terminations of network request the transmission provider to 193. Deseret argues that an LSE’s resources, including the identification cluster the requests. As TranServ access to system sales, rather than a of any related transmission service acknowledges, this will not alter the unit-specific or hub-based sales, further requests to be evaluated concomitantly priority of the network customer or the assures delivery of a product necessary with the request for temporary transmission provider’s merchant to fulfill native load requirements. termination. function with regard to any ATC that Deseret contends that limiting the may be made available by undesignating flexible undesignation of network Requests for Rehearing and Clarification the network resource. resources supporting system sales to 187. TranServ requests clarification of instances where the buyer designates the sequence of events and requirements (2) System Sales the purchase as a network resource is for releasing transmission capability as 190. In Order No. 890–A, the therefore contrary to section 217 of the a result of a customer’s request to Commission clarified the circumstances FPA. Deseret also argues that the undesignate one network resource and in which a network customer must Commission’s policy unduly replace it with an alternate resource. undesignate its resources on a unit- preferences buyers that designate the TranServ argues that the process should specific basis when making a system purchase as a network resource. Deseret be deemed similar in nature and sale. The Commission determined that contends that the Commission has failed treatment to a redirect of firm point-to- portions of the seller’s individual to justify why system sales to point-to- point service or a network service network resources supporting a sale of point customers are more problematic request related to the temporary system power do not need to be than sales to network customers, even termination of a resource designation, undesignated so long as the system sale where the two buyers would be using which must be evaluated is itself designated as a network the resource in the same way. Southern concomitantly.125 Although TranServ resource by the buyer. Instead, the seller agrees, arguing that there is no support acknowledges that network customers should undesignate a portion of its in the record for the Commission’s should not be ‘‘first-in-line’’ for ATC system equal to the amount of the determination regarding the made available from an undesignation, system sale, but which is not attributed undesignation of resources used for 128 it contends that transmission providers to any specific generators. If the system system sales. Duke states similar should evaluate simultaneous sale is not designated as a network concerns, noting that all commenters transmission service requests with the resource by the buyer, the seller must 126 E.g., Deseret, Duke, EEI, NRECA, Pacific knowledge that both resource submit undesignations for each portion Northwest IOUs, Southern, and TranServ. designations will not run concurrently. of each resource supporting the third- 127 E.g., Deseret, NRECA, Southern, and TAPS. party sale. The Commission stated that 128 Citing National Fuel Gas Supply Corp. v. 125 Citing Order No. 890 at P 1541. most, if not all, system sales sourced FERC, 468 F.3d 831 (D.C. Cir. 2006).

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addressing the issue took the opposite Northwest IOUs contend that the seller thus, would not know which position with regard to slice-of-system will designate those resources which it undesignation rule to apply. Petitioners sales, i.e., that in all cases the slice, not believes are necessary to serve its load also note confusion over what the units, should be undesignated. regardless of how a buyer chooses to use seller’s undesignation obligation would 194. Several petitioners challenge the a system sale from the seller. Southern be were the buyer to undesignate its Commission’s statement that buyers agrees, arguing that the costs associated purchase after the sale is made, taking advantage of system purchases with acquiring resources that meet all particularly when such activity is not are almost always network the requirements for designation serve known to the seller. E.ON U.S. requests customers.129 Deseret explains that, in as an appropriate economic incentive clarification that the seller in a slice-of- part due to the remote nature of its loads not to overdesignate. These petitioners system sale will not have violated the and the composition of the integrated note that the Commission already transmission provider’s OATT as a transmission grid in its region, it is more addressed concerns regarding over- result of its counterparty’s failure to efficient, both from a cost perspective designation of network resources in designate or undesignate the network and a transmission use perspective, for Order No. 888 by determining that ‘‘a resource as required, so long as the LSEs like itself to serve their loads using transmission customer, like a seller treated the slice-of-system sale point-to-point service, either pursuant transmission provider, has an incentive appropriately by relying on the to an OATT or under pre-Order No. 888 not to oversubscribe its capacity counterparty’s actions at the transmission arrangements. NRECA and requirements because the cost of commencement of the transaction. TAPS similarly argue that some LSEs excessive reserve margins will be Pacific Northwest IOUs question rely on point-to-point service instead of prohibitive.’’ 131 Pacific Northwest IOUs whether an undesignation may be made network service to serve their native argue that the procedural complexities on a project basis when the resource has loads. Pacific Northwest IOUs state that associated with designating network been designated on a project basis. the majority of system purchases they resources provide further incentives not 199. Several petitioners question the make are not designated as network to overdesignate and that such relevance of an off-system buyer’s resources, due at least in part to the fact incentives exist regardless of how a designation of a system sale as a that many purchases are imported for buyer uses a system purchase. network resource on another short-term balancing purposes where 197. EEI contends that a seller will transmission provider system. Duke flexibility is important. Southern agrees charge more for a power sale that it argues that a sale by its merchant that the bulk of system purchases occur cannot recall without paying a penalty, function to an off-system network in the short-term markets and suggests or that it cannot recall at all, than it will customer designating the purchase as a that buyers may simply not want to charge for a sale that it can recall. EEI resource and a sale by its merchant bother with designating the purchases argues that there is therefore an function to an off-system power as network resources. additional financial disincentive to marketer intending to resale the power 195. TAPS argues that the overdesignate network resources elsewhere must both be accomplished Commission’s assumption that unit- regardless of whether a seller by scheduling point-to-point service specific undesignations will rarely be undesignates a slice of its entire system from Duke to the neighboring system. required supports elimination of the or a portion of each generator involved Duke contends that it makes no sense to unit-specific undesignations for all in the sale. EEI acknowledges that require its merchant to undesignate transactions. TAPS argues that the better transmission service that the buyer takes generating units used to serve one sale but not the other, particularly since its course is to allow system-based in connection with a system sale might merchant would have no knowledge of undesignation for all system sales given affect ATC associated with the subsequent changes in the designation that the ATC refinement efforts remain transaction. EEI suggests, however, that status of the resource purchased by the under development by NERC and the Commission address any concerns off-system network customer. NAESB and the Commission will have about reservations of transmission service by buyers of slice-of-system 200. EEI states similar concern the opportunity to revisit the regarding the ability of a seller to know undesignation requirements once that energy directly through requirements that apply to buyers rather than sellers. the sink where energy from a system work is complete. power sale is delivered to an off-system 196. Some petitioners challenge the EEI argues that restricting the type of transmission service the buyer may buyer since the buyer may resell it to Commission’s underlying concern, as another customer. EEI contends that the expressed in Order No. 888 and choose with respect to a slice-of-system purchase violates the basic tenet of open seller may not have access to the OASIS referenced in Order No. 890–A, that of the transmission provider where the network customers may have an access transmission service that a transmission customer has the freedom buyer is located and, therefore, may not incentive to designate unlimited be able to determine whether the buyer generation resources absent a to take whatever transmission service is available to it under the pro forma has designated the purchase as a prohibition on network resources network resource. EEI notes that, while including any portion of a resource that OATT. 198. Some petitioners argue that the the Commission directed NERC and is committed for sale to a third party.130 policy of requiring resource-specific NAESB to develop processes to allow Pacific Northwest IOUs argue that a undesignations for system sales which transmission personnel to obtain access buyer’s decision as to whether or not to are not designated as network resources to the OASIS of other transmission designate a system sale as a network by the buyer creates implementation providers to verify the firmness of resource has no bearing on the seller’s problems.132 These petitioners state that transmission arrangements delivering incentive or disincentive to off-system designated network overdesignate network resources. Pacific the entity making the sale may have no knowledge as to whether the sale is resources, the Commission did not grant the same level of OASIS access to the 129 being used as a network resource and, E.g., Deseret, NRECA, Pacific Northwest IOUs, merchant function making sales of Southern, and TAPS. 130 E.g., EEI, Pacific Northwest IOUs, and 131 Quoting Order No. 888 at 31,754. system power. Southern (citing Order No. 888 at 31,753–53; Order 132 E.g., Duke, E.ON U.S., EEI, and Pacific 201. Pacific Northwest IOUs ask the No. 890 at P 951). Northwest IOUs. Commission to specifically clarify that

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the limitations stated in Order No. 890– sales, reiterating that the undesignation as a resource, the buyer will not be A apply only to on-system sales and that and redesignation requirements work using network service to take delivery of sellers may undesignate a slice of their together to promote reliability, prevent associated energy. In order for the buyer system used to support off-system sales undue discrimination, promote to schedule point-to-point service to regardless of how the buyer treats, comparable treatment of customers, and take delivery, the transmission customer designates, or uses the purchased increase the accuracy of ATC must identify the points of receipt and 135 power. Pacific Northwest IOUs state that calculations. In Order No. 890–A, delivery for the transaction, i.e., the this would be consistent with the however, the Commission clarified that points on the host transmission system Commission’s apparent focus on on- the requirement to undesignate on a where capacity and energy will be system sales in its discussion of this resource-by-resource basis does not received from the seller and delivered to apply to system sales in the event the issue in Order No. 890–A. In support of the buyer.139 The point-to-point buyer has also designated the purchase their request, Pacific Northwest IOUs transmission reservation and the as a network resource.136 This state that the off-system buyer’s use of corresponding resource-specific the system sale has no impact on the clarification was provided in response undesignation provide the transmission seller’s transmission system, including to complaints by various petitioners that provider with the information it needs ATC. keeping track of individual generating units and amounts of generation from regarding location of the particular Commission Determination each unit being used to support system resources being used by the seller to 202. The Commission affirms the sales is unduly burdensome or source the transaction in order to model determination in Order No. 890–A that impossible.137 the effect of the transaction on its a network customer and the 205. At the outset, we note that the transmission system and set aside ATC transmission provider’s merchant discussion in Order No. 890–A appears accordingly. Without this information, function must undesignate each portion to have caused confusion by not transmission capacity associated with of each resource that is used to support specifically stating that the exception to integrating the seller’s resources with its a sale of system power if the buyer has the requirement to undesignate capacity load could continue to be set aside for not designated the purchase as a supporting a system sale on a resource- the seller’s benefit, even though the network resource.133 The requirement by-resource basis for system sales that resources have been committed for sale that network customers undesignate are designated as network resources by to third parties on a firm basis.140 the buyer applies only to transactions in their network resources when making 207. We therefore disagree that there firm third-party sales was first imposed which the buyer and seller are located on the same transmission system. As the is no support for distinguishing sales of in Order No. 888 to ensure that all system power that have been designated designated network resources can, in Commission explained in Order No. 890–A, when a seller’s network as network resources by the buyer and fact, be called upon by the transmission those that have not. Several petitioners provider to serve network load: resources are used to support an on- system system sale, the buyer meets the argue that the individual undesignation Absent a requirement that network of network resources used to supply resources always be available to meet a informational requirements of section 29.2(v) simply by identifying the seller’s system sales will not have an effect on customer’s network loads, reliability of ATC or the reliable operation of the service to the network customer as well as to system as the resource, because the native load and other network customers detailed operating characteristics for transmission system regardless of the could be affected * * *. If a network those generators were already provided type of transmission service used to customer desires to enter into a firm sale when they were designated by the deliver the power to the buyer. EEI, from its designated network resource * * *, seller.138 The transmission provider is however, acknowledges that the type of it must eliminate the appropriate resources or therefore already modeling power transmission service used by the buyer portions thereof from its designated network transfers from those resources to the of system power may affect ATC resources pursuant to pro forma tariff section associated with the transaction, and we 30.[134] seller’s load. The designation of a system sale as a network resource by the agree. It is for that reason that the 203. The restriction on third-party buyer provides the transmission Commission directed transmission sales from designated network resources provider adequate information to also providers to address the effect on ATC therefore enhances the ability of the simulate power transfers from that of designating and undesignating transmission provider to plan and resource to the buyer’s load given that network resources as part of the on- operate its system to integrate the transmission provider already has going NERC/NAESB ATC designated resources with the information on the system resources customer’s loads. Without the resulting from the seller’s designation of 139 See pro forma OATT, sections 1.35, 1.36 and restriction, transmission providers the underlying resources. It is not 13.7. The Commission therefore stated in Order No. could reduce ATC by maintaining the necessary to require the seller to 890–A its expectation that most, if not all, system same existing transmission undesignate individual resources and, sales sources from designated network resources are commitments for anticipated uses of the themselves designated as network resources by the instead, the undesignation can be done buyer. See Order No. 890–A at P 947. Even if this network customer’s designated on a system basis, i.e., by undesignating is not the case, as a number of petitioners argue, the resources even though the network an aggregate portion of network Commission continues to be concerned that system customer has otherwise committed resources equal to the amount of the sales from units that are not designated by the buyer those same resources to other parties on as a network resource may impair the reliable system sale, but which is not attributed planning and operation of the transmission a firm basis. to any specific resource. provider’s system. 204. The Commission in Order No. 206. In comparison, when the buyer 140 We clarify in response to the Pacific 890 therefore retained the requirement does not designate the system purchase Northwest IOUs that the Commission’s reference to to undesignate network resources that the undesignation of ‘‘units’’ in paragraph 947 of Order No. 890–A was unintentionally narrow. The are used to support firm third-party 135 See Order No. 890 at P 1576. restriction on certain third-party sales from a 136 See Order No. 890–A at P 947. designated network resource applies to each 133 See Order No. 890–A at P 947. 137 See id. P 936–37. resource or portion thereof under section 30.4 of the 134 See Order No. 888–A at 30,326. 138 See id. P 889. pro forma OATT.

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standardization effort.141 This does not 210. We reiterate that, if the particular reasons such as planned or forced mean, as EEI suggests, that ATC methodology used by a outages, curtailments, or unit de-ratings. distinguishing the seller’s undesignation transmission provider allows for E.ON U.S. argues that, like reserve obligation on the actions of the buyer flexibility in implementing the sharing arrangements, back-up power undermines the buyer’s access to service undesignation requirements for system sales are made for reliability purposes under the pro forma OATT. The buyer sales, the transmission provider may and may require the provision of energy is free to request either network or propose a variation to the pro forma within a timeframe that is too short for point-to-point service as it believes best OATT in an FPA section 205 filing. In the seller to undesignate the resource. fits its needs in light of the resources it Order No. 890–A, the Commission E.ON U.S. states that back-up power wishes to deliver. stated that such requests should address sales are not limited to per se emergency 208. We disagree that it is unduly the Commission’s concern, as stated in situations, but rather are necessary to burdensome or complicated to Order No. 888, that network customers avert emergencies. condition the seller’s ability to make may have the incentive to designate 213. TDU Systems seek clarification system sales from designated network unlimited generation resources absent a of the determination in Order No. 890– resources on the buyer’s decision to prohibition on network resources A that network resources do not have to designate the purchase as a network including any portion of a resource that be undesignated before they are used to resource. As explained above, the is committed for sale to a third party.143 support the provision of reserve energy Commission has long prohibited firm Several petitioners argue that the under a Commission-approved reserve sales to third parties from any Commission mischaracterized the sharing agreement. TDU Systems designated network resource. The concern stated in Order No. 888, since question whether the Commission Commission has made an exception for there the Commission found that the intended to impose an additional system sales that also have been cost of excessive reserve margins acts as approval process for reserve-sharing designated as a network resource by a a financial disincentive to overdesignate agreements being made from designated buyer located on the same transmission resources.144 However, the reason the network resources. TDU Systems seek system. This increases, not decreases, cost of reserve margins acts as a guidance regarding which reserve opportunities for network customers disincentive to overdesignate resources sharing agreements qualify as and the transmission providers’ is because designated resources may be Commission-approved and what criteria merchant functions to engage in used only for certain specified purposes. a reserve sharing agreement must meet transactions. Although the Commission It therefore remains appropriate to in order to be approved. TDU Systems could further expand these require those seeking a variation from ask whether, for example, existing opportunities by eliminating the the pro forma OATT with respect to Commission-approved bilateral undesignation requirement altogether, eligibility for network resource status to interchange agreements providing for to do so could adversely affect the address the Commission’s concern emergency and maintenance services transmission provider’s ability to regarding overdesignation of resources. between and among utilities qualify. reliably plan and operate its system. In addition, to the extent necessary, we TDU Systems also seek clarification that Because the undesignation restrictions clarify that the transmission provider Order No. 890–A is not excluding from apply equally to all designated should also address the Commission’s this exception interchange agreements resources and are necessary to ensure concern, also stated in Order No. 888– or reserve-sharing agreements among that the transmission provider can A and reiterated above, that sales from non-jurisdictional entities. provide reliable service to all customers, designated network resources not Commission Determination impair the reliable planning and they are therefore consistent with our 214. The Commission declines to obligations under FPA section 217. operation of the transmission provider’s system. expand the categories of third-party 209. We also conclude that concerns sales that can be made from designated regarding the ability to verify or monitor (3) General network resources to include back-up the buyer’s decision to designate a 211. In response to requests for power sales, as requested by E.ON U.S. purchase of system power as a network Network customers and the resource are overstated in light of the rehearing, the Commission in Order No. 890–A amended sections 1.26 and 30.4 transmission provider’s merchant clarification that the buyer and seller function are permitted to use designated must be on the same transmission of the pro forma OATT to make clear that network resources do not have to be network resources to fulfill obligations system. In Order No. 890, the under reserve-sharing agreements given Commission directed transmission undesignated before they are used to support the provision of reserve energy the particular nature of those providers, working through NERC, to transactions, which involve the need to develop OASIS functionality for the under a Commission-approved reserve sharing agreement. deliver power to counterparties designation of network resources and promptly during emergency situations. for queries of information provided with Requests for Rehearing and Clarification E.ON. U.S. acknowledges that, unlike 142 designation requests. Parties to a sale 212. E.ON U.S. requests clarification reserve-sharing agreements, back-up of system power on the same that the exception to the requirement for power sales are not limited to transmission system will therefore have undesignation for resources used to emergency situations. E.ON U.S. has not ready access to the treatment of the support the provision of reserve energy justified further expanding the resource. Sellers also may rely on under a Commission-approved reserve categories of third-party sales that may commitments made by the buyer to sharing agreement also applies to back- be made from designated network designate the purchase as a network up power sales, which E.ON U.S. resources. resource. describes as long-term, cost-based sales 215. In response to TDU Systems, we aimed at substituting power for grant rehearing of Order No. 890–A to 141 See Mandatory Reliability Standards for the eliminate the requirement that a reserve Bulk-Power System, Order No. 693, FERC Stats. & generation that is not available for Regs. ¶ 31,242, at P 1041, order on reh’g, Order No. sharing program be approved by the 693–A, 120 FERC ¶ 61,053 (2007). 143 See Order No. 890–A at P 951. Commission in order for a network 142 See Order No. 890 at P 1477. 144 Quoting Order No. 888 at 31,754. customer or the transmission provider’s

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merchant function to use a designated balancing authority area, provided that the network customer’s load for network resource to meet its reserve the point-to-point service is acquired in purposes of calculating its load ratio sharing obligations.145 As TDU Systems addition to the customer’s network share payment obligations except to the explain, certain reserve sharing service payment obligation and extent the discrete load being served has arrangements may not be subject to our provided that all other conditions for been excluded in its entirety from jurisdiction, and the Commission did the use of point-to-point service are network service. In response to EEI and not intend in Order No. 890–A to satisfied. Pacific Northwest IOUs argue E.ON U.S., we clarify that the establish new criteria for reviewing and that, for certain compliance and Commission did not intend in Order No. approving reserve sharing arrangements commercial reasons (e.g., lack of 890–A to modify the obligation of in this proceeding. We clarify, however, sufficient allocated network service), transmission providers under section that, for purposes of sections 1.26 and point-to-point service can be an 28.2 of the pro forma OATT to endeavor 30.4 of the pro forma OATT, a reserve appropriate and important adjunct to to construct and place into service sharing program must limit service to network service even considering the sufficient transfer capability to deliver the sharing of contingency reserves added cost of the point-to-point the network customer’s network among the members for emergencies 146 purchase. Where load ratio share resources to serve its network load on a and the ability to use designated obligations are not at issue, Pacific basis comparable to the transmission network resources to support reserve Northwest IOUs argue that transmission provider’s delivery of its own generating sharing obligations does not extend to customers should be permitted to use and purchased resources to its native other types of third-party sales. Any use both point-to-point and network service. load customers. The statement of designated network resources for 218. EEI and E.ON U.S. request questioned by petitioners was made in reserve sharing events would be subject clarification of the Commission’s response to requests for an exception to justification during an audit. statement in Order No. 890–A that, once from load ratio pricing when a a load has been designated by the particular network load cannot be 5. Clarifications Related to Network network customer, it is the obligation of Service entirely served by the transmission the transmission provider to serve that provider’s system without upgrades.148 216. In Order No. 890–A, the load and to plan its system so that the The Commission rejected that request, Commission reiterated that the pro load can be accommodated in the explaining that the transmission 147 forma OATT permits transmission future. These petitioners ask the provider should be planning its system customers to exclude the entirety of a Commission to confirm that a to serve its network customers’ discrete load from network service and transmission provider has the obligation designated loads and that situations in serve such load with the customer’s to serve and plan for a network which a particular designated load behind the meter generation and customer’s load only to the extent that cannot be served are best addressed on through any needed point-to-point the customer has designated sufficient a case-by-case basis. We agree, however, service, thereby reducing the network network resources to serve that load. In that the obligation of the transmission customer’s load ratio share. In other their view, section 28.2 of the pro forma provider to adequately plan for the situations, use of point-to-point service OATT requires only that a transmission needs of its network customers is of by network customers is in addition to provider plan for and construct course dependent on the network network service and, therefore, does not transmission facilities sufficient to customer designating adequate network serve to reduce their network load. With deliver energy from the network resources as well as providing regard to concerns about insufficient customer’s network resources to meet information regarding its forecasted transmission to serve a network the customer’s network load on a basis loads and resources, as required under customers’ entire load, the Commission comparable to the transmission section 29.2 of the pro forma OATT. stated that it failed to understand how, provider’s delivery of its own generating under normal circumstances, the and purchased resources to its native 6. OATT Definitions transmission provider has no capacity to load customers. EEI contends that the a. Non-Firm Sales serve a load that has been designated by requirement of section 29.2(v) to the network customer. Once a load has provide projections of network 220. In Order No. 890, the been designated, it is the obligation of resources further confirms that the Commission adopted the following the transmission provider to serve that transmission provider is only required definition of Non-Firm Sales to identify load and to plan its system so that the to plan for and construct transmission more clearly those types of sales that are load can be accommodated in the facilities required to deliver the network permitted from designated network future. customer’s energy from resources resources: ‘‘An energy sale for which receipt or delivery may be interrupted Requests for Rehearing and Clarification designated or forecasted by the network customer. E.ON U.S. argues that failure for any reason or no reason, without 217. Pacific Northwest IOUs request to provide the requested clarification liability on the part of either the buyer clarification that there is no per se could result in transmission providers or seller.’’ The Commission concluded prohibition on a transmission customer having to guess where facilities will that it would be inappropriate to adopt using both point-to-point and network need to be built in order to serve load. commenter suggestions to relax the service to serve load in the same definition of a Non-Firm Sale to include Commission Determination any sale that is not otherwise firm 145 We also revise sections 29.2(viii), 30.1 and 219. The Commission clarifies, to the enough to be designated as a network 30.2 of the pro forma OATT to include references extent necessary, that there is no per se to the use of network resources to meet reserve resource. sharing obligations. These tariff revisions do not prohibition on a transmission customer 221. In Order No. 890–A, the relieve participants to an otherwise jurisdictional using both point-to-point and network Commission clarified that, under reserve sharing arrangement of any obligations they transmission service, but that any use of normal circumstances, a system sale may have under FPA section 205 to obtain point-to-point service by a network Commission approval for that arrangement. that permits curtailment without 146 See, e.g., Sw. Reserve Sharing Group, 83 FERC customer does not decrease the size of penalty to serve the seller’s native load ¶ 61,314 (1998), reh’g denied, 95 FERC ¶ 61,071 (2001). 147 See Order No. 890–A at P 971. 148 See Order No. 890–A at P 971.

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would fall within the definition of a neither firm nor non-firm sales by freeing up ATC since sales that are Non-Firm Sale since the seller would clarifying that sales that may be curtailable for reliability reasons may be have the right to rely on that capacity interrupted for any reason, but with designated as network resources by both in the event it is needed to serve native potential liability, do not fall within the the buyer and seller. TAPS contends load, which the Commission stated is definition of Non-Firm Sales. TAPS that dual designation potentially double the principle concern in restricting sales contends that finding a total bar on counts resources for ATC purposes, from designated network resources to recall for native load economic tying up firm ATC potentially on a long- non-firm sales. The Commission purposes, as in the case of curtailable term basis. In contrast, TAPS continues, disagreed with petitioners arguing that sales, to be less of a disincentive than day-ahead hourly sales that can be the definition of Non-Firm Sales the ability to recall for native load with interrupted for any or no reason, that includes transactions that permit potential liability, no matter how small, have been treated as non-firm, and that interruption with financial liability, defies common sense and is not are not and could not be designated as whether make whole or limited to supported by evidence. TAPS notes that network resources by the buyer require certain penalties, explaining that any commenters at the July 30 technical undesignation because the potential for interruption in service that would create conference in this proceeding stated that any financial consequence of liability on the part of the seller would sellers were moving away from interruption disqualifies them as Non- create conflicting incentives regarding participation in the Midwest ISO day- Firm Sales. TAPS argues that the only use of the network resource. ahead market because of uncertainties ATC that might be created by such 222. The Commission also denied about redesignation if an undesignated undesignations would be very short- requests to amend the definition of Non- resource selling into that market were term. Pending the results of on-going Firm Sales to accommodate the needed in real time to serve native load standards development work with particular market operations of each due to a real-time contingency. TAPS NERC and NAESB, TAPS contends it is RTO and ISO. The Commission argues that the obligation to pay the not clear whether such short-term acknowledged that centralized dispatch real-time locational marginal price undesignations will create firm capacity in those markets may very well (LMP) would not create a disincentive more useable than the unused non-firm eliminate any effect that temporary to recall the sale if needed for native capacity released by the transmission resource undesignations and load and, to the contrary, the flexibility provider without undesignation. redesignations have on dispatch or ATC to interrupt for any reason or no reason 227. TAPS objects to the calculations and, therefore, tailoring the to meet native load needs is so valuable Commission’s determination in Order rules governing the designation of that uncertainties associated with No. 890–A that issues related to sales network resources to each RTO/ISO undesignation deter sales into RTO into RTO markets should be dealt with market could be appropriate. markets from resources that are in the context of individual requests for Requests for Rehearing and Clarification designated within and outside the RTO. deviation from the pro forma OATT. 225. TAPS contends that Although issues pertaining to the ability 223. TAPS argues that the of a network customer within an RTO to Commission’s determinations in Order distinguishing between curtailable sales that may be made from designated use its network resources to participate No. 890 regarding the sales that may be in the RTO’s day-ahead market can be made from a network resource without network resources and fully interruptible sales that entail some addressed in the RTO tariff, TAPS undesignation leaves the OATT in a argues that restrictions on use by a state of confusion that will make financial liability runs counter to the fundamental principle that it is the network customer outside the RTO of its compliance by transmission providers network resources designated on and network customers hazardous. nature of the delivery obligation, not the LD provisions, that determine whether a another transmission provider’s system TAPS contends allowing sales that are cannot be addressed through curtailable for native load reliability resource is sufficiently firm to qualify 150 modifications to the RTO’s tariff. TAPS purposes, not economics, to be for designation as a network resource. TAPS states that Order No. 890 therefore argues that the Commission considered non-firm sales is in conflict can avoid discouraging network with the plain language of the suggested that the existence of any financial liability controls whether a customers (and transmission providers) definition, which is strictly limited to located outside an RTO from selling into sales that are interruptible for any or no sale may be deemed a non-firm sale, regardless of the nature of the seller’s the RTO’s day-ahead market only by reason. TAPS contends this modifies modifying the pro forma OATT. without explanation the Commission’s obligation to deliver, while Order No. 890–A relies on restrictions to warrant 228. TAPS maintains that the clarification provided in Order No. 890 Commission’s application and that energy sales that can be interrupted exclusion of unit contingent sales from the definition of Non-Firm Sales.151 interpretation of the Non-Firm Sales to maintain system reliability are definition creates new barriers to 149 TAPS argues that the Commission has considered firm sales. precisely the type of cross-border sales 224. TAPS argues that the failed to provide any consistently applied standard that network the Commission is trying to Commission’s focus in Order No. 890– 152 customers and transmission providers encourage. TAPS argues that supply A on the ability to curtail sales (without limitations resulting from applying liability) for native or network load is can use to determine whether a sale qualifies as a non-firm sale, much less undesignation requirements to sales into inconsistent with the Non-Firm Sales RTO day-ahead markets could definition and produces illogical results, one that conforms to the new definition. 226. TAPS also argues that the needlessly increase prices in such allowing the same recallable sale to be markets and potentially affect simultaneously both non-firm for the Commission’s determinations do not make sense from the standpoint of reliability. Those located outside RTO seller and firm for the buyer and, as a markets, TAPS continues, would be result, be designated twice. At the same 150 most reluctant to sell into RTO markets time, TAPS argues, the Commission Citing id. P 1452; Dynegy Midwest Generation, Inc. v. Commonwealth Edison Co., 101 FERC expanded the class of sales that are ¶ 61,295, at P 1 (2002), reh’g dismissed as moot, 108 152 Citing Wis. Pub. Serv. Corp. v. Midwest Indep. FERC ¶ 61,175 (2004). Transmission Sys. Operator, Inc., 120 FERC 149 Citing Order No. 890 at P 1688, 1692. 151 Citing Order No. 890–A at P 1016. ¶ 61,269, at P 58 (2007).

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during peak conditions, when consistently with the firmness of the 30.4 of the pro forma OATT, as transmission is scarce and there are delivery obligation and make clear that amended in this order, restricts the concerns about redesignation in the it takes more than the liabilities operation of a network customer’s event the energy is needed for native associated with sales into day-ahead, designated network resources such that load, thus depriving RTOs of supply and to eliminate any doubt same-day, the output of those facilities does not offers when they need them the most. RTO markets to disqualify such exceed the sum of the network 229. TAPS further argues that the lack interruptible sales from treatment as customer’s designated load, non-firm of clarity in the Commission’s Non-Firm Sales. Because of the sales, losses, and sales under a reserve application of the Non-Firm Sales importance of supporting short-term sharing agreement. This prohibits the definition may discourage sales into competitive markets, TAPS alternatively transmission provider or a network organized markets even in situations requests that the Commission make this customer from using a designated where there is a trivial financial clear by creating an additional resource for third-party sales that do not consequence to permissible exception to section 30.4 of the pro fall within one of the specified interruptions that the Commission forma OATT, like the new exception for categories. At times, the Commission could not rationally conclude would sales pursuant to Commission-approved has generally referred to this prohibition pose any disincentive to recall for reserve sharing agreements, to permit as a limitation on firm third-party sales network load needs. TAPS states that use of network resources without from designated network resources.154 RTO scheduling deadlines may result in undesignation for day-ahead and same- To be more specific, network customers some short period of liability for real- day sales that are subject to may not operate designated network time LMPs even where market interruptions, without regard to the resources except for those purposes participants retain rights to change their liabilities associated with such specified in section 30.4. bids and schedules. For example, TAPS interruptions. 235. The limitation on the use of explains, market participants submitting 232. At a bare minimum, TAPS designated network resources is closely offers into MISO’s real-time market from argues, the Commission should provide related to the restriction on the type of external generators must provide notice more realistic guidelines for the level of resources that may be designated for use prior to 30 minutes before the operating liability it views as providing incentives to serve network or native load. hour in order to make effective their that disqualify an interruptible sale from Together, these rules ensure that only right to change their offers in the real- being considered a Non-Firm Sale so the appropriate amount of network time market, i.e., to interrupt for any or that concerns about avoiding potential resources is designated and, in turn, that no reason. TAPS states that the network tariff violations do not discourage excessive amounts of transmission customer seeking to recall its transactions that the Commission capacity for network and native load interruptible sale would therefore be intends to permit without uses are not set aside and therefore subject to financial consequences during undesignation. TAPS suggests, for made unavailable to others seeking the notice period. TAPS questions example, that the Commission might transmission service. We recognize that whether that financial responsibility is reasonably conclude that liabilities there is a trade off between the long- sufficient to bar sales without restricted to notice periods applicable to term structural efficiencies promoted by undesignation. the interruption of a sale do not trigger the network resource rules and the real- 230. TAPS suggests that the the need for undesignation. TAPS time market efficiencies that would Commission reassess what it was argues that it is plainly inconsistent come from allowing alternative, flexible seeking to achieve through clarification with market realities for the use of designated network resources. In of the non-firm sales that can be made Commission to assume that any liability Order No. 888, the Commission from network resources without for interruption of a third-party sale, no balanced these considerations and undesignation, remove the definition of matter how insignificant, will create determined that concerns regarding the Non-Firm Sales, and enunciate clear incentives incompatible with the use of over-designation of resources and the and consistent principles for discerning network resources for network load. reliable operation of the system whether, considering the nature of the 233. E.ON U.S. agrees with TAPS that supported the more restrictive rules to delivery obligation, a sale can be made excluding sales into the Midwest ISO which TAPS objects. from a network resource without market is a disincentive for sellers to 236. In Order No. 888, the undesignation. Such principles, TAPS participate in that market because the Commission explained that restricting argues, should not assume that the mere Commission’s undesignation the ability to designate resources only to existence of any financial liability requirements are not easily adaptable to those resources that are owned or creates improper incentives, thereby such market activity. E.ON U.S. also committed for purchase provides a giving undue emphasis to what is likely asks the Commission to revise the financial incentive for network to be a minor factor affecting a network definition of Non-Firm Sales to include customers and the transmission customer’s ability to interrupt the sale sales into organized RTO markets. In the provider’s merchant function not to in favor of native load, assuming the alternative, E.ON U.S. requests that the oversubscribe their capacity contract permits interruption for any Commission clarify that it will consider requirements.155 Because a designated reason or no reason. TAPS contends that transmission providers’ modifications to network resource must be owned or the Commission should expressly the definition of Non-Firm Sales in committed for purchase and may be permit short-term sales, such as sales order to accommodate sales into RTO/ used only for certain purposes, network into organized day-ahead and real-time ISO markets. customers and the transmission markets, that involve no obligation to Commission Determination provider’s merchant function are deliver (and can be entered by virtual encouraged to designate only those traders with nothing to deliver) to be 234. The Commission affirms the resources that they anticipate needing to made from a network resource without decision in Order No. 890–A not to serve network load. Otherwise, costs undesignation. amend the definition of Non-Firm Sales 153 231. If the Commission retains the adopted in Order No. 890. Section 154 See NOPR at P 422; Order No. 890 at P 1539; Non-Firm Sale definition, TAPS asks Order No. 890–A at P 951. the Commission to construe it 153 See Order No. 890–A at P 1016. 155 See Order No. 888 at 31,754.

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would be incurred to acquire resources some circumstances, it may be load is but one of the concerns that could go unused. These financial substantial in others, particularly during underlying the Commission’s policy incentives are essential to ensuring just conditions when sellers are most likely restricting the type of third-party sales and reasonable transmission service to to want or need to recall such power. that can be made from network all customers since, each time a network The sales that TAPS argues are non-firm resources. resource is designated, the transmission enough to be made from a network 241. We acknowledge that, under the provider sets aside ATC as necessary to resource do have financial implications, Commission’s designation policies, allow that resource to be used to serve potentially creating disincentives to sales that may be curtailed without network or native load. If network interrupt delivery if capacity is actually penalty to serve native or network load customers and the transmission needed for native or network load, even may be designated as a network providers’ merchant function were though ATC may have otherwise been resource by both the seller and the allowed to earn revenues from set aside for that use. buyer.160 We also acknowledge that alternative sales without appropriate 239. We agree with TAPS, however, allowing these sales from designated limitations, the financial disincentive to that the language of the definition does network resources could be viewed as over-designate network resources would not accurately capture the clarification inconsistent with the policy be diminished. This in turn could provided in Order No. 890–A that considerations that cause us to negatively impact other customers since designated network resources may be otherwise limit the type of sales that an increase in the number of resource used to support third-party sales that may be made from those resources. We designations can decrease the amount of permit curtailment without penalty to conclude, however, that this exception ATC that is available for competing serve the seller’s network or native is necessary to ensure that the seller is uses. load.158 There the Commission stated able to access these resources during 237. TAPS fails to address this that such sales fall within the definition curtailment conditions, when power is broader policy consideration and, of Non-Firm Sales since the seller needed by the seller to meet its load. instead, focuses solely on the short-term would have the right to rely on that Curtailments are triggered by system benefits that may result from relaxing capacity in the event it is needed to reliability conditions, and requiring the the designation rules. We agree that serve native load. Upon further seller to redesignate a network resource more flexible use of designated network consideration, we conclude that such in order to recall a curtailed delivery resources could increase efficiencies in sales do not fall within the definition of would impede the seller’s ability to the short-term, but conclude that such Non-Firm Sales because they do not quickly respond to those conditions. We efficiencies would come at the expense permit interruption for any or no reason, note that transmission providers have of long-term efficiency in the operation as required by the definition. We been directed to address the effect on of the transmission system. Allowing therefore grant rehearing of the ATC of designating and undesignating designated network resources to be used determination that such sales fall within network resources as part of the on- for additional short-term purposes as the definition of Non-Firm Sales. going NERC/NAESB standardization proposed by TAPS would undermine 240. We nevertheless affirm the effort.161 Any concerns regarding the competing incentives not to over- underlying conclusion in Order No. proper modeling of designations designate resources in the first place 890–A that designated network involving resources that have been sold and could lead to transmission capacity resources may be used to support sales to others on a curtailable basis should being set aside for network and native that permit curtailment without penalty be addressed through the NERC/NAESB load use to the detriment of other to serve the seller’s native or network process. customers.156 load and amend section 30.4 of the pro 242. We disagree with TAPS that 238. In light of these competing forma OATT to make that clear. As the allowing sales that are curtailable considerations, the Commission in Commission explained in Order No. without penalty to be supplied from Order No. 890 carefully crafted the 890–A, those transactions give the seller designated network resources is definition of Non-Firm Sales to ensure the right to rely on the underlying inconsistent with Order No. 890. TAPS that, pursuant to section 30.4, network capacity in the event it is needed to contends that the Commission adopted resources are not used to support sales serve native or network load.159 In in Order No. 890 the NOPR proposal to in a way that creates conflicting Order No. 890–A, the Commission clarify that, for the purposes of applying incentives regarding the designation and characterized this as its principal section 30.4, energy sales that can only use of network resources.157 Petitioners concern in restricting sales from be interrupted to maintain system have failed to demonstrate that designated network resources to non- reliability would be considered firm elimination or amendment of this firm sales. TAPS misconstrues this sales.162 Although the Commission definition is either necessary or statement as indicating the Commission noted that proposal in Order No. 890, it appropriate. TAPS contends that the is not also concerned about competing did not specifically adopt it and, obligation of a seller to pay the real-time incentives created by third-party sales instead, simply adopted the proposed LMP if it fails to deliver in response to from designated network resources or definition of Non-Firm Sale and bids in a day-ahead market may be the effect of such sales on the incorporated that definition into section negligible and, therefore, such sales calculation of ATC. As we explain 30.4.163 Southern then requested should be considered non-firm for above, that is not the case and, to the clarification of Order No. 890 on this purposes of the network resource rules. extent necessary, we clarify that the issue, asking whether sales permitting While that obligation may be minimal in contractual ability of the seller to rely curtailment without penalty to serve the on capacity to serve native or network 156 Because rates for network service are 160 See WPPI, 84 FERC at 61,652 (contracts calculated on a load-ratio basis, the amount of 158 See Order No. 890–A at P 1016. curtailable by the seller to preserve service to native resources designated has no impact on the 159 See Order No. 890–A at P 1016. From the load are eligible for designation as a network transmission rate paid by the customer and, seller’s perspective, then, the resource satisfies the resource). therefore, does not discourage the over-designation definition of Network Resource in section 1.26 of 161 See Order No. 693 at P 1041. of resources by network customers. the pro forma OATT because it can be called upon 162 See NOPR at P 462. 157 See Order No. 890 at P 1691; Order No. 890– to meet the seller’s load on a non-interruptible basis 163 Compare Order No. 890 at P 1688 with id. P A at P 1017. during system reliability conditions. 1692.

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seller’s native load can be treated as outside the RTO/ISO regions. Even if Requests for Rehearing and Clarification 164 non-firm sales under section 30.4. such sales are fully interruptible by the 248. Southern requests rehearing of The Commission ultimately addressed seller, the competing economic the Commission’s definition of the issue, then, in Order No. 890–A by incentives that may arise from failure to Transmission Customer to include an stating that such sales could be treated deliver support the requirement to first eligible customer with an executed or as non-firm sales.165 The Commission undesignate the network resource prior proper unexecuted service agreement corrects that determination above, to using it to support such sales. As we under Part II or Part III of the pro forma resolving the potential inconsistency explain above, failing to require OATT. Southern contends that the cited by TAPS. undesignation could result in the host existing reference in the second 243. We also disagree that the transmission provider reducing ATC by sentence of the definition merely relates Commission’s treatment of sales maintaining the same existing to how the term is used in Part I and curtailable without penalty to serve transmission commitments for the that the proposed revision is therefore native or network load conflicts with seller’s use of the designated network necessary to avoid the implication that the determination in Order No. 890–A resource even though the seller is a transmission customer does not that, under normal circumstances, unit otherwise using the resource to support include network customers in other contingent sales would not fall within off-system sales. portions of the pro forma OATT. the definition of a Non-Firm Sale 246. We therefore continue to believe because delivery typically can be that it is reasonable to require sellers to Commission Determination interrupted only for the specific reasons undesignate resources being used to 249. The Commission did not propose identified in the underlying supply third-party sales for which there to amend the definition of Transmission agreement.166 While it is true that sales is liability for interruption except in Customer in the NOPR, nor did curtailable without penalty to serve those circumstances identified in commenters propose such an native or network load may be curtailed section 30.4 of the pro forma OATT. amendment in response to the NOPR. only for specified reasons, i.e., system However, we appreciate that the As a result, the definition of reliability conditions, it does not follow restrictions on the use of designated Transmission Customer was not that allowing those sales to be made network resources can have a negative addressed in Order Nos. 890 or 890–A. from designated network resources impact on real-time liquidity by limiting Southern’s request for rehearing is conflicts with disallowing unit the flexibility of network customers and therefore beyond the scope of this contingent sales. As we explain above, the transmission provider’s merchant proceeding. it is appropriate to allow curtailable function. Since adoption of the pro III. Information Collection Statement sales from designated network resources forma OATT, the Commission has because of the particular reliability- recognized that there may be 250. The Office of Management and related situations giving rise to the circumstances in which a transmission Budget (OMB) regulations require that seller’s ability and need to curtail provider believes that the pro forma OMB approve certain information deliveries for the benefit of native or OATT does not provide sufficient collection requirements imposed by an agency.170 The revisions to the network load. flexibility and, as a result, transmission information collection requirements for 244. We reiterate that the Commission providers have been given the transmission providers adopted in is not insensitive to concerns about the opportunity to propose superior non- Order No. 890 were approved under effect the undesignation policies may rate terms and conditions to address OMB Control Nos. 1902–0233. This have on RTO/ISO markets. As the such concerns.169 We encourage order further revises these requirements Commission explained in Order No. network customers and transmission in order to more clearly state the 890–A, RTOs and ISOs have adopted provider merchant functions to work obligations imposed in Order No. 890, many variations from the pro forma with their transmission providers to but does not substantively alter those OATT to facilitate development of their explore ways to accommodate the more markets, with some entirely eliminating requirements. OMB approval of this flexible use of designated network order is therefore unnecessary. the designation/undesignation resources suggested by TAPS without requirements for network resources.167 However, the Commission will send a adversely affecting other customers or copy of this order to OMB for The Commission has since specifically the reliable operation of the system. directed the Midwest ISO to revise its informational purposes only. OATT to eliminate the requirement that b. Transmission Customer IV. Document Availability network resources be undesignated 247. Section 1.49 of the pro forma 251. In addition to publishing the full prior to selling into the Midwest ISO OATT defines a Transmission Customer text of this document in the Federal markets, finding that undesignation is as ‘‘Any Eligible Customer (or its Register, the Commission provides all not necessary to account for effects on Designated Agent) that (i) executes a interested persons an opportunity to ATC because those markets are centrally Service Agreement, or (ii) requests in view and/or print the contents of this dispatched without regard to physical writing that the Transmission Provider 168 document via the Internet through transmission rights. file with the Commission, a proposed FERC’s Home Page (http://www.ferc.gov) 245. We disagree, however, that unexecuted Service Agreement to and in FERC’s Public Reference Room changes to the pro forma OATT are receive transmission service under Part during normal business hours (8:30 a.m. necessary to facilitate sales into the II of the Tariff. This term is used in the to 5 p.m. Eastern time) at 888 First organized day-ahead markets from Part I Common Service Provisions to Street, NE., Room 2A, Washington, DC designated network resources located include customers receiving 20426. transmission service under Part II and 252. From FERC’s Home Page on the 164 See Order No. 890–A at P 1011. Part III of this Tariff.’’ The Commission 165 Internet, this information is available on See id. P 1016. did not amend this definition in Order 166 See id. P 1016. eLibrary. The full text of this document 167 See id. P 1017. Nos. 890 or 890–A. is available on eLibrary in PDF and 168 See Midwest Indep. Sys. Operator, Inc., 123 FERC ¶ 61,154, at P 89 (2008). 169 Order No. 888 at 31,770. 170 5 CFR 1320 (2007).

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Microsoft Word format for viewing, free at 1–866–208–3676) or e-mail at rehearing and clarification will become printing, and/or downloading. To access [email protected], or the effective September 8, 2008. this document in eLibrary, type the Public Reference Room at (202) 502– By the Commission. docket number excluding the last three 8371, TTY (202) 502–8659. E-mail the Nathaniel J. Davis, Sr., digits of this document in the docket Public Reference Room at number field. [email protected]. Deputy Secretary. 253. User assistance is available for V. Effective Date and Congressional The following appendices will not eLibrary and the FERC’s Web site during Notification appear in the Code of Federal Regulations: normal business hours from FERC 254. Changes to Order Nos. 890 and Online Support at 202–502–6652 (toll 890–A adopted in this order on Appendix A: Petitioners’ Acronyms

Abbreviation Petitioner names

APPA Joint Filers ...... American Public Power Association, National Rural Electric Cooperative Association, Transmission Access Policy Study Group, and Transmission Dependent Utility Systems. Cargill ...... Cargill Power Marketers, LLC. Deseret ...... Desert Generation & Transmission Co-operative, Inc. Duke ...... Duke Energy Corp. East Texas Cooperatives ...... East Texas Electric Cooperative, Inc.; Northeast Texas Electric Cooperative, Inc.; Sam Rayburn Generation and Electric Cooperative, Inc. and Tex-La Electric Cooperative of Texas, Inc. EEI ...... Edison Electric Institute. Entergy ...... Entergy Services, Inc. E.ON U.S...... E.ON U.S. LLC. East Texas Cooperatives ...... East Texas Electric Cooperative, Inc.; Northeast Texas Electric Cooperative, Inc.; Sam Rayburn Generation and Electric Cooperative, Inc. and Tex-La Electric Cooperative of Texas, Inc. FMPA ...... Florida Municipal Power Agency. Florida Power ...... Florida Power & Light Co. NRECA ...... National Rural Electric Cooperative Association. NYISO ...... New York Independent System Operator. Pacific Northwest IOUs ...... Avista Corp., Idaho Power Co., PacifiCorp, Portland General Electric Co., and Puget Sound Energy, Inc. Schedule 20A Service Providers ...... Bangor Hydro-Electric Co., Boston Edison Co., Commonwealth Electric Co., and Cambridge Electric Light Co. Sempra Global ...... Sempra Global. Southern ...... Southern Company Services, Inc. TranServ ...... TranServ International, Inc. TAPS ...... Transmission Access Policy Study Group. TDU Systems ...... Transmission Dependent Utilities Systems.

Appendix B—RM05–17–003 & RM05– 1.23 Network Load 1.52 Transmission Service 25–003 (Issued) 1.24 Network Operating Agreement 1.53 Transmission System 1.25 Network Operating Committee 2 Initial Allocation and Renewal Pro Forma Open Access Transmission 1.26 Network Resource Procedures Tariff 1.27 Network Upgrades 2.1 Initial Allocation of Available Table of Contents 1.28 Non-Firm Point-To-Point Transfer Capability Transmission Service 2.2 Reservation Priority For Existing Firm I. Common Service Provisions 1.29 Non-Firm Sale Service Customers 1 Definitions 1.30 Open Access Same-Time 3 Ancillary Services 1.1 Affiliate Information System (OASIS) 3.1 Scheduling, System Control and 1.2 Ancillary Services 1.31 Part I Dispatch Service 1.3 Annual Transmission Costs 1.32 Part II 3.2 Reactive Supply and Voltage Control 1.4 Application 1.5 Commission 1.33 Part III from Generation or Other Sources 1.6 Completed Application 1.34 Parties Service 1.7 Control Area 1.35 Point(s) of Delivery 3.3 Regulation and Frequency Response 1.8 Curtailment 1.36 Point(s) of Receipt Service 1.9 Delivering Party 1.37 Point-To-Point Transmission Service 3.4 Energy Imbalance Service 1.10 Designated Agent 1.38 Power Purchaser 3.5 Operating Reserve—Spinning Reserve 1.11 Direct Assignment Facilities 1.39 Pre-Confirmed Application Service 1.12 Eligible Customer 1.40 Receiving Party 3.6 Operating Reserve—Supplemental 1.13 Facilities Study 1.41 Regional Transmission Group (RTG) Reserve Service 1.14 Firm Point-To-Point Transmission 1.42 Reserved Capacity 3.7 Generator Imbalance Service Service 1.43 Service Agreement 4 Open Access Same-Time Information 1.15 Good Utility Practice 1.44 Service Commencement Date System (Oasis) 1.16 Interruption 1.45 Short-Term Firm Point-To-Point 5 Local Furnishing Bonds 1.17 Load Ratio Share Transmission Service 5.1 Transmission Providers That Own 1.18 Load Shedding 1.46 System Condition Facilities Financed by Local Furnishing 1.19 Long-Term Firm Point-To-Point 1.47 System Impact Study Bonds Transmission Service 1.48 Third-Party Sale 5.2 Alternative Procedures for Requesting 1.20 Native Load Customers 1.49 Transmission Customer Transmission Service 1.21 Network Customer 1.50 Transmission Provider 6 Reciprocity 1.22 Network Integration Transmission 1.51 Transmission Provider’s Monthly 7 Billing and Payment Service Transmission System Peak 7.1 Billing Procedure

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7.2 Interest on Unpaid Balances 17.4 Notice of Deficient Application 28.3 Network Integration Transmission 7.3 Customer Default 17.5 Response to a Completed Service 8 Accounting for the Transmission Application 28.4 Secondary Service Provider’s Use of the Tariff 17.6 Execution of Service Agreement 28.5 Real Power Losses 8.1 Transmission Revenues 17.7 Extensions for Commencement of 28.6 Restrictions on Use of Service 8.2 Study Costs and Revenues Service 29 Initiating Service 9 Regulatory Filings 18 Procedures for Arranging Non-Firm 29.1 Condition Precedent for Receiving 10 Force Majeure and Indemnification Point-To-Point Transmission Service Service 10.1 Force Majeure 18.1 Application 29.2 Application Procedures 10.2 Indemnification 18.2 Completed Application 29.3 Technical Arrangements To Be 11 Creditworthiness 18.3 Reservation of Non-Firm Point-To- Completed Prior to Commencement of 12 Dispute Resolution Procedures Point Transmission Service Service 12.1 Internal Dispute Resolution 18.4 Determination of Available Transfer 29.4 Network Customer Facilities Procedures Capability 29.5 Filing of Service Agreement 12.2 External Arbitration Procedures 19 Additional Study Procedures for Firm 30 Network Resources 12.3 Arbitration Decisions Point-To-Point Transmission Service 30.1 Designation of Network Resources 12.4 Costs Requests 30.2 Designation of New Network 12.5 Rights Under the Federal Power Act 19.1 Notice of Need for System Impact Resources II. Point-To-Point Transmission Service Study 30.3 Termination of Network Resources 13 Nature of Firm Point-To-Point 19.2 System Impact Study Agreement and 30.4 Operation of Network Resources Transmission Service Cost Reimbursement 30.5 Network Customer Redispatch 13.1 Term 19.3 System Impact Study Procedures Obligation 13.2 Reservation Priority 19.4 Facilities Study Procedures 30.6 Transmission Arrangements for 13.3 Use of Firm Transmission Service by 19.5 Facilities Study Modifications Network Resources Not Physically the Transmission Provider 19.6 Due Diligence in Completing New Interconnected With the Transmission 13.4 Service Agreements Facilities Provider 13.5 Transmission Customer Obligations 19.7 Partial Interim Service 30.7 Limitation on Designation of for Facility Additions or Redispatch 19.8 Expedited Procedures for New Network Resources Costs Facilities 30.8 Use of Interface Capacity by the 13.6 Curtailment of Firm Transmission 19.9 Penalties for Failure to Meet Study Network Customer Service Deadlines 30.9 Network Customer Owned 13.7 Classification of Firm Transmission 20 Procedures if the Transmission Transmission Facilities Service Provider is Unable To Complete New 31 Designation of Network Load 13.8 Scheduling of Firm Point-To-Point Transmission Facilities for Firm Point- 31.1 Network Load Transmission Service To-Point Transmission Service 31.2 New Network Loads Connected With 14 Nature of Non-Firm Point-To-Point 20.1 Delays in Construction of New the Transmission Provider Transmission Service Facilities 31.3 Network Load Not Physically 14.1 Term 20.2 Alternatives to the Original Facility Interconnected With the Transmission 14.2 Reservation Priority Additions Provider 14.3 Use of Non-Firm Point-To-Point 20.3 Refund Obligation for Unfinished 31.4 New Interconnection Points Transmission Service by the Facility Additions 31.5 Changes in Service Requests Transmission Provider 21 Provisions Relating to Transmission 31.6 Annual Load and Resource 14.4 Service Agreements Construction and Services on the Information Updates 14.5 Classification of Non-Firm Point-To- Systems of Other Utilities 32 Additional Study Procedures for Point Transmission Service 21.1 Responsibility for Third-Party Network Integration Transmission 14.6 Scheduling of Non-Firm Point-To- System Additions Service Requests Point Transmission Service 21.2 Coordination of Third-Party System 32.1 Notice of Need for System Impact 14.7 Curtailment or Interruption of Additions Study Service 22 Changes in Service Specifications 32.2 System Impact Study Agreement and 15 Service Availability 22.1 Modifications On a Non-Firm Basis Cost Reimbursement 15.1 General Conditions 22.2 Modification On a Firm Basis 32.3 System Impact Study Procedures 15.2 Determination of Available Transfer 23 Sale or Assignment of Transmission 32.4 Facilities Study Procedures Capability Service 32.5 Penalties for Failure To Meet Study 15.3 Initiating Service in the Absence of 23.1 Procedures for Assignment or Deadlines an Executed Service Agreement Transfer of Service 33 Load Shedding and Curtailments 15.4 Obligation to Provide Transmission 23.2 Limitations on Assignment or 33.1 Procedures Service that Requires Expansion or Transfer of Service 33.2 Transmission Constraints Modification of the Transmission 23.3 Information on Assignment or 33.3 Cost Responsibility for Relieving System, Redispatch or Conditional Transfer of Service Transmission Constraints Curtailment 24 Metering and Power Factor Correction 33.4 Curtailments of Scheduled 15.5 Deferral of Service at Receipt and Delivery Point(s) Deliveries 15.6 Other Transmission Service 24.1 Transmission Customer Obligations 33.5 Allocation of Curtailments Schedules 24.2 Transmission Provider Access to 33.6 Load Shedding 15.7 Real Power Losses Metering Data 33.7 System Reliability 16 Transmission Customer 24.3 Power Factor 34 Rates and Charges Responsibilities 25 Compensation for Transmission 34.1 Monthly Demand Charge 16.1 Conditions Required of Service 34.2 Determination of Network Transmission Customers 26 Stranded Cost Recovery Customer’s Monthly Network Load 16.2 Transmission Customer 27 Compensation for New Facilities and 34.3 Determination of Transmission Responsibility for Third-Party Redispatch Costs Provider’s Monthly Transmission System Arrangements III. Network Integration Transmission Service Load 17 Procedures for Arranging Firm Point- 28 Nature of Network Integration 34.4 Redispatch Charge To-Point Transmission Service Transmission Service 34.5 Stranded Cost Recovery 17.1 Application 28.1 Scope of Service 35 Operating Arrangements 17.2 Completed Application 28.2 Transmission Provider 35.1 Operation under the Network 17.3 Deposit Responsibilities Operating Agreement

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35.2 Network Operating Agreement common control with, such corporation, 1.9 Delivering Party 35.3 Network Operating Committee partnership or other entity. Schedule 1 The entity supplying capacity and Scheduling, System Control and Dispatch 1.2 Ancillary Services energy to be transmitted at Point(s) of Service Receipt. Those services that are necessary to Schedule 2 1.10 Designated Agent Reactive Supply and Voltage Control From support the transmission of capacity Generation Sources Service and energy from resources to loads Any entity that performs actions or Schedule 3 while maintaining reliable operation of functions on behalf of the Transmission Regulation and Frequency Response the Transmission Provider’s Provider, an Eligible Customer, or the Service Transmission System in accordance Transmission Customer required under Schedule 4 the Tariff. Energy Imbalance Service with Good Utility Practice. Schedule 5 1.3 Annual Transmission Costs 1.11 Direct Assignment Facilities Operating Reserve-Spinning Reserve Facilities or portions of facilities that Service The total annual cost of the are constructed by the Transmission Schedule 6 Transmission System for purposes of Provider for the sole use/benefit of a Operating Reserve-Supplemental Reserve Network Integration Transmission particular Transmission Customer Service Service shall be the amount specified in Schedule 7 requesting service under the Tariff. Attachment H until amended by the Long-Term Firm and Short-Term Firm Direct Assignment Facilities shall be Transmission Provider or modified by Point-To-Point specified in the Service Agreement that the Commission. Schedule 8 governs service to the Transmission Non-Firm Point-To-Point Transmission 1.4 Application Service Customer and shall be subject to Commission approval. Schedule 9 A request by an Eligible Customer for Generator Imbalance Service transmission service pursuant to the 1.12 Eligible Customer Attachment A Form of Service Agreement for Firm Point- provisions of the Tariff. i. Any electric utility (including the To-Point Transmission Service 1.5 Commission Transmission Provider and any power Attachment A–1 marketer), Federal power marketing Form of Service Agreement for the Resale, The Federal Energy Regulatory agency, or any person generating Reassignment or Transfer of Point-To- Commission. electric energy for sale for resale is an Point Transmission Service Eligible Customer under the Tariff. 1.6 Completed Application Attachment B Electric energy sold or produced by Form oF Service Agreement for Non-Firm Point-To-Point Transmission Service An Application that satisfies all of the such entity may be electric energy Attachment C information and other requirements of produced in the United States, Canada Methodology to Assess Available Transfer the Tariff, including any required or Mexico. However, with respect to Capability deposit. transmission service that the Attachment D Commission is prohibited from ordering Methodology for Completing a System 1.7 Control Area by section 212(h) of the Federal Power Impact Study Act, such entity is eligible only if the Attachment E An electric power system or combination of electric power systems service is provided pursuant to a state Index Of Point-To-Point Transmission requirement that the Transmission Service Customers to which a common automatic Attachment F generation control scheme is applied in Provider offer the unbundled Service Agreement for Network Integration order to: transmission service, or pursuant to a voluntary offer of such service by the Transmission Service 1. Match, at all times, the power Attachment G Transmission Provider. Network Operating Agreement output of the generators within the ii. Any retail customer taking Attachment H electric power system(s) and capacity unbundled transmission service Annual Transmission Revenue and energy purchased from entities pursuant to a state requirement that the Requirement for Network Integration outside the electric power system(s), Transmission Provider offer the Transmission Service with the load within the electric power transmission service, or pursuant to a Attachment I system(s); voluntary offer of such service by the Index of Network Integration Transmission 2. Maintain scheduled interchange Service Customers Transmission Provider, is an Eligible Attachment J with other Control Areas, within the Customer under the Tariff. limits of Good Utility Practice; Procedures for Addressing Parallel Flows 1.13 Facilities Study Attachment K 3. maintain the frequency of the Transmission Planning Process electric power system(s) within An engineering study conducted by Attachment L reasonable limits in accordance with the Transmission Provider to determine Creditworthiness Procedures Good Utility Practice; and the required modifications to the Transmission Provider’s Transmission I. Common Service Provisions 4. provide sufficient generating System, including the cost and 1 Definitions capacity to maintain operating reserves scheduled completion date for such in accordance with Good Utility modifications, that will be required to 1.1 Affiliate Practice. provide the requested transmission With respect to a corporation, 1.8 Curtailment service. partnership or other entity, each such other corporation, partnership or other A reduction in firm or non-firm 1.14 Firm Point-To-Point entity that directly or indirectly, transmission service in response to a Transmission Service through one or more intermediaries, transfer capability shortage as a result of Transmission Service under this controls, is controlled by, or is under system reliability conditions. Tariff that is reserved and/or scheduled

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between specified Points of Receipt and Transmission Provider’s Network Transmission Provider’s overall Delivery pursuant to Part II of this Integration Transmission Service under Transmission System for the general Tariff. Part III of the Tariff. benefit of all users of such Transmission System. 1.15 Good Utility Practice 1.22 Network Integration Transmission Any of the practices, methods and Service 1.28 Non-Firm Point-To-Point acts engaged in or approved by a The transmission service provided Transmission Service significant portion of the electric utility under Part III of the Tariff. Point-To-Point Transmission Service industry during the relevant time 1.23 Network Load under the Tariff that is reserved and period, or any of the practices, methods scheduled on an as-available basis and and acts which, in the exercise of The load that a Network Customer is subject to Curtailment or Interruption reasonable judgment in light of the facts designates for Network Integration as set forth in Section 14.7 under Part known at the time the decision was Transmission Service under Part III of II of this Tariff. Non-Firm Point-To- made, could have been expected to the Tariff. The Network Customer’s Point Transmission Service is available accomplish the desired result at a Network Load shall include all load on a stand-alone basis for periods reasonable cost consistent with good served by the output of any Network ranging from one hour to one month. business practices, reliability, safety and Resources designated by the Network expedition. Good Utility Practice is not Customer. A Network Customer may 1.29 Non-Firm Sale intended to be limited to the optimum elect to designate less than its total load An energy sale for which receipt or practice, method, or act to the exclusion as Network Load but may not designate delivery may be interrupted for any of all others, but rather to be acceptable only part of the load at a discrete Point reason or no reason, without liability on practices, methods, or acts generally of Delivery. Where an Eligible Customer the part of either the buyer or seller. accepted in the region, including those has elected not to designate a particular practices required by Federal Power Act load at discrete points of delivery as 1.30 Open Access Same-Time section 215(a)(4). Network Load, the Eligible Customer is Information System (OASIS) 1.16 Interruption responsible for making separate The information system and standards arrangements under Part II of the Tariff A reduction in non-firm transmission of conduct contained in Part 37 of the for any Point-To-Point Transmission Commission’s regulations and all service due to economic reasons Service that may be necessary for such pursuant to section 14.7. additional requirements implemented non-designated load. by subsequent Commission orders 1.17 Load Ratio Share 1.24 Network Operating Agreement dealing with OASIS. Ratio of a Transmission Customer’s An executed agreement that contains 1.31 Part I Network Load to the Transmission the terms and conditions under which Tariff Definitions and Common Provider’s total load computed in the Network Customer shall operate its Service Provisions contained in accordance with sections 34.2 and 34.3 facilities and the technical and of the Network Integration Transmission Sections 2 through 12. operational matters associated with the Service under Part III of the Tariff and implementation of Network Integration 1.32 Part II calculated on a rolling twelve month Transmission Service under Part III of basis. Tariff Sections 13 through 27 the Tariff. 1.18 Load Shedding pertaining to Point-To-Point 1.25 Network Operating Committee Transmission Service in conjunction The systematic reduction of system with the applicable Common Service demand by temporarily decreasing load A group made up of representatives from the Network Customer(s) and the Provisions of Part I and appropriate in response to transmission system or Schedules and Attachments. area capacity shortages, system Transmission Provider established to instability, or voltage control coordinate operating criteria and other 1.33 Part III technical considerations required for considerations under Part III of the Tariff Sections 28 through 35 Tariff. implementation of Network Integration Transmission Service under Part III of pertaining to Network Integration 1.19 Long-Term Firm Point-To-Point this Tariff. Transmission Service in conjunction Transmission Service with the applicable Common Service 1.26 Network Resource Provisions of Part I and appropriate Firm Point-To-Point Transmission Schedules and Attachments. Service under Part II of the Tariff with Any designated generating resource a term of one year or more. owned, purchased or leased by a 1.34 Parties Network Customer under the Network 1.20 Native Load Customers Integration Transmission Service Tariff. The Transmission Provider and the The wholesale and retail power Network Resources do not include any Transmission Customer receiving customers of the Transmission Provider resource, or any portion thereof, that is service under the Tariff. on whose behalf the Transmission committed for sale to third parties or 1.35 Point(s) of Delivery Provider, by statute, franchise, otherwise cannot be called upon to meet regulatory requirement, or contract, has the Network Customer’s Network Load Point(s) on the Transmission undertaken an obligation to construct on a non-interruptible basis, except for Provider’s Transmission System where and operate the Transmission Provider’s purposes of fulfilling obligations under capacity and energy transmitted by the system to meet the reliable electric a reserve sharing program. Transmission Provider will be made needs of such customers. available to the Receiving Party under 1.27 Network Upgrades Part II of the Tariff. The Point(s) of 1.21 Network Customer Modifications or additions to Delivery shall be specified in the An entity receiving transmission transmission-related facilities that are Service Agreement for Long-Term Firm service pursuant to the terms of the integrated with and support the Point-To-Point Transmission Service.

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1.36 Point(s) of Receipt 1.44 Service Commencement Date 1.51 Transmission Provider’s Monthly Transmission System Peak Point(s) of interconnection on the The date the Transmission Provider Transmission Provider’s Transmission begins to provide service pursuant to The maximum firm usage of the System where capacity and energy will the terms of an executed Service Transmission Provider’s Transmission be made available to the Transmission Agreement, or the date the Transmission System in a calendar month. Provider by the Delivering Party under Provider begins to provide service in 1.52 Transmission Service Part II of the Tariff. The Point(s) of accordance with Section 15.3 or Section Receipt shall be specified in the Service 29.1 under the Tariff. Point-To-Point Transmission Service Agreement for Long-Term Firm Point- provided under Part II of the Tariff on 1.45 Short-Term Firm Point-To-Point To-Point Transmission Service. a firm and non-firm basis. Transmission Service 1.37 Point-To-Point Transmission 1.53 Transmission System Service Firm Point-To-Point Transmission The facilities owned, controlled or Service under Part II of the Tariff with operated by the Transmission Provider The reservation and transmission of a term of less than one year. that are used to provide transmission capacity and energy on either a firm or 1.46 System Condition service under Part II and Part III of the non-firm basis from the Point(s) of Tariff. Receipt to the Point(s) of Delivery under A specified condition on the Part II of the Tariff. Transmission Provider’s system or on a 2 Initial Allocation and Renewal Procedures 1.38 Power Purchaser neighboring system, such as a constrained transmission element or 2.1 Initial Allocation of Available The entity that is purchasing the flowgate, that may trigger Curtailment of Transfer Capability capacity and energy to be transmitted Long-Term Firm Point-to-Point under the Tariff. Transmission Service using the For purposes of determining whether curtailment priority pursuant to Section existing capability on the Transmission 1.39 Pre-Confirmed Application 13.6. Such conditions must be identified Provider’s Transmission System is adequate to accommodate a request for An Application that commits the in the Transmission Customer’s Service firm service under this Tariff, all Eligible Customer to execute a Service Agreement. Completed Applications for new firm Agreement upon receipt of notification 1.47 System Impact Study transmission service received during the that the Transmission Provider can initial sixty (60) day period provide the requested Transmission An assessment by the Transmission commencing with the effective date of Service. Provider of (i) the adequacy of the the Tariff will be deemed to have been Transmission System to accommodate a 1.40 Receiving Party filed simultaneously. A lottery system request for either Firm Point-To-Point conducted by an independent party Transmission Service or Network The entity receiving the capacity and shall be used to assign priorities for Integration Transmission Service and energy transmitted by the Transmission Completed Applications filed (ii) whether any additional costs may be Provider to Point(s) of Delivery. simultaneously. All Completed incurred in order to provide Applications for firm transmission 1.41 Regional Transmission Group transmission service. (RTG) service received after the initial sixty 1.48 Third-Party Sale (60) day period shall be assigned a A voluntary organization of priority pursuant to Section 13.2. transmission owners, transmission users Any sale for resale in interstate and other entities approved by the commerce to a Power Purchaser that is 2.2 Reservation Priority for Existing Commission to efficiently coordinate not designated as part of Network Load Firm Service Customers transmission planning (and expansion), under the Network Integration Existing firm service customers operation and use on a regional (and Transmission Service. (wholesale requirements and interregional) basis. 1.49 Transmission Customer transmission-only, with a contract term 1.42 Reserved Capacity of five years or more), have the right to Any Eligible Customer (or its continue to take transmission service The maximum amount of capacity Designated Agent) that (i) executes a from the Transmission Provider when and energy that the Transmission Service Agreement, or (ii) requests in the contract expires, rolls over or is Provider agrees to transmit for the writing that the Transmission Provider renewed. This transmission reservation Transmission Customer over the file with the Commission, a proposed priority is independent of whether the Transmission Provider’s Transmission unexecuted Service Agreement to existing customer continues to purchase System between the Point(s) of Receipt receive transmission service under Part capacity and energy from the and the Point(s) of Delivery under Part II of the Tariff. This term is used in the Transmission Provider or elects to II of the Tariff. Reserved Capacity shall Part I Common Service Provisions to purchase capacity and energy from be expressed in terms of whole include customers receiving another supplier. If at the end of the megawatts on a sixty (60) minute transmission service under Part II and contract term, the Transmission interval (commencing on the clock Part III of this Tariff. Provider’s Transmission System cannot hour) basis. 1.50 Transmission Provider accommodate all of the requests for 1.43 Service Agreement transmission service, the existing firm The public utility (or its Designated service customer must agree to accept a The initial agreement and any Agent) that owns, controls, or operates contract term at least equal to a amendments or supplements thereto facilities used for the transmission of competing request by any new Eligible entered into by the Transmission electric energy in interstate commerce Customer and to pay the current just Customer and the Transmission and provides transmission service under and reasonable rate, as approved by the Provider for service under the Tariff. the Tariff. Commission, for such service; provided

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that, the firm service customer shall The Transmission Provider is Tariff. Three principal requirements have a right of first refusal at the end of required to provide (or offer to arrange apply to discounts for Ancillary such service only if the new contract is with the local Control Area Operator as Services provided by the Transmission for five years or more. The existing firm discussed below), to the extent it is Provider in conjunction with its service customer must provide notice to physically feasible to do so from its provision of transmission service as the Transmission Provider whether it resources or from resources available to follows: (1) Any offer of a discount will exercise its right of first refusal no it, Generator Imbalance Service when made by the Transmission Provider less than one year prior to the expiration Transmission Service is used to deliver must be announced to all Eligible date of its transmission service energy from a generator located within Customers solely by posting on the agreement. This transmission its Control Area. The Transmission OASIS, (2) any customer-initiated reservation priority for existing firm Customer using Transmission Service to requests for discounts (including service customers is an ongoing right deliver energy from a generator located requests for use by one’s wholesale that may be exercised at the end of all within the Transmission Provider’s merchant or an Affiliate’s use) must firm contract terms of five years or Control Area is required to acquire occur solely by posting on the OASIS, longer. Service agreements subject to a Generator Imbalance Service, whether and (3) once a discount is negotiated, right of first refusal entered into prior to from the Transmission Provider, from a details must be immediately posted on [the date of the Transmission Provider’s third party, or by self-supply. the OASIS. A discount agreed upon for filing adopting the reformed rollover The Transmission Customer may not an Ancillary Service must be offered for language herein in compliance with decline the Transmission Provider’s the same period to all Eligible Order No. 890] or associated with a offer of Ancillary Services unless it Customers on the Transmission transmission service request received demonstrates that it has acquired the Provider’s system. Sections 3.1 through prior to July 13, 2007, unless Ancillary Services from another source. 3.7 below list the seven Ancillary terminated, will become subject to the The Transmission Customer must list in Services. five year/one year requirement on the its Application which Ancillary first rollover date after [the date of the Services it will purchase from the 3.1 Scheduling, System Control and Transmission Provider’s filing adopting Transmission Provider. A Transmission Dispatch Service the reformed rollover language herein in Customer that exceeds its firm reserved The rates and/or methodology are compliance with Order No. 890]; capacity at any Point of Receipt or Point described in Schedule 1. provided that, the one-year notice of Delivery or an Eligible Customer that requirement shall apply to such service uses Transmission Service at a Point of 3.2 Reactive Supply and Voltage agreements with five years or more left Receipt or Point of Delivery that it has Control From Generation or Other in their terms as of the [date of the not reserved is required to pay for all of Sources Service Transmission Provider’s filing adopting the Ancillary Services identified in this The rates and/or methodology are the reformed rollover language herein in section that were provided by the described in Schedule 2. compliance with Order No. 890]. Transmission Provider associated with the unreserved service. The 3.3 Regulation and Frequency 3 Ancillary Services Transmission Customer or Eligible Response Service Ancillary Services are needed with Customer will pay for Ancillary Where applicable the rates and/or transmission service to maintain Services based on the amount of methodology are described in Schedule reliability within and among the Control transmission service it used but did not 3. Areas affected by the transmission reserve. service. The Transmission Provider is If the Transmission Provider is a 3.4 Energy Imbalance Service required to provide (or offer to arrange public utility providing transmission Where applicable the rates and/or with the local Control Area operator as service but is not a Control Area methodology are described in Schedule discussed below), and the Transmission operator, it may be unable to provide 4. Customer is required to purchase, the some or all of the Ancillary Services. In following Ancillary Services (i) this case, the Transmission Provider can 3.5 Operating Reserve—Spinning Scheduling, System Control and fulfill its obligation to provide Ancillary Reserve Service Dispatch, and (ii) Reactive Supply and Services by acting as the Transmission Where applicable the rates and/or Voltage Control from Generation or Customer’s agent to secure these methodology are described in Schedule Other Sources. Ancillary Services from the Control 5. The Transmission Provider is Area operator. The Transmission required to offer to provide (or offer to Customer may elect to (i) have the 3.6 Operating Reserve—Supplemental arrange with the local Control Area Transmission Provider act as its agent, Reserve Service operator as discussed below) the (ii) secure the Ancillary Services Where applicable the rates and/or following Ancillary Services only to the directly from the Control Area operator, methodology are described in Schedule Transmission Customer serving load or (iii) secure the Ancillary Services 6. within the Transmission Provider’s (discussed in Schedules 3, 4, 5, 6 and 3.7 Generator Imbalance Service Control Area (i) Regulation and 9) from a third party or by self-supply Frequency Response, (ii) Energy when technically feasible. Where applicable the rates and/or Imbalance, (iii) Operating Reserve— The Transmission Provider shall methodology are described in Schedule Spinning, and (iv) Operating Reserve— specify the rate treatment and all related 9. Supplemental. The Transmission terms and conditions in the event of an 4 Open Access Same-Time Customer serving load within the unauthorized use of Ancillary Services Information System (OASIS) Transmission Provider’s Control Area is by the Transmission Customer. required to acquire these Ancillary The specific Ancillary Services, prices Terms and conditions regarding Open Services, whether from the and/or compensation methods are Access Same-Time Information System Transmission Provider, from a third described on the Schedules that are and standards of conduct are set forth in party, or by self-supply. attached to and made a part of the 18 CFR part 37 of the Commission’s

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regulations (Open Access Same-Time 5.2 Alternative Procedures for organization on similar terms and Information System and Standards of Requesting Transmission Service conditions over facilities used for the Conduct for Public Utilities) and 18 CFR (i) If the Transmission Provider transmission of electric energy owned, part 38 of the Commission’s regulations determines that the provision of controlled or operated by the (Business Practice Standards and transmission service requested by an Transmission Customer and over Communication Protocols for Public Eligible Customer would jeopardize the facilities used for the transmission of Utilities). In the event available transfer tax-exempt status of any local electric energy owned, controlled or capability as posted on the OASIS is furnishing bond(s) used to finance its operated by the Transmission insufficient to accommodate a request facilities that would be used in Customer’s corporate Affiliates. for firm transmission service, additional providing such transmission service, it This reciprocity requirement applies studies may be required as provided by shall advise the Eligible Customer not only to the Transmission Customer this Tariff pursuant to Sections 19 and within thirty (30) days of receipt of the that obtains transmission service under 32. Completed Application. the Tariff, but also to all parties to a The Transmission Provider shall post (ii) If the Eligible Customer thereafter transaction that involves the use of on OASIS and its public Web site an renews its request for the same transmission service under the Tariff, electronic link to all rules, standards transmission service referred to in (i) by including the power seller, buyer and and practices that (i) relate to the terms tendering an application under Section any intermediary, such as a power and conditions of transmission service, 211 of the Federal Power Act, the marketer. This reciprocity requirement (ii) are not subject to a North American Transmission Provider, within ten (10) also applies to any Eligible Customer Energy Standards Board (NAESB) days of receiving a copy of the Section that owns, controls or operates copyright restriction, and (iii) are not 211 application, will waive its rights to transmission facilities that uses an otherwise included in this Tariff. The a request for service under Section intermediary, such as a power marketer, Transmission Provider shall post on 213(a) of the Federal Power Act and to to request transmission service under OASIS and on its public Web site an the issuance of a proposed order under the Tariff. If the Transmission Customer electronic link to the NAESB Web site Section 212(c) of the Federal Power Act. does not own, control or operate where any rules, standards and The Commission, upon receipt of the transmission facilities, it must include practices that are protected by copyright Transmission Provider’s waiver of its in its Application a sworn statement of may be obtained. The Transmission rights to a request for service under one of its duly authorized officers or Provider shall also post on OASIS and Section 213(a) of the Federal Power Act other representatives that the purpose of its public Web site an electronic link to and to the issuance of a proposed order its Application is not to assist an a statement of the process by which the under Section 212(c) of the Federal Eligible Customer to avoid the Transmission Provider shall add, delete Power Act, shall issue an order under requirements of this provision. or otherwise modify the rules, standards Section 211 of the Federal Power Act. 7 Billing and Payment and practices that are not included in Upon issuance of the order under this tariff. Such process shall set forth Section 211 of the Federal Power Act, 7.1 Billing Procedure the means by which the Transmission the Transmission Provider shall be Within a reasonable time after the first Provider shall provide reasonable required to provide the requested day of each month, the Transmission advance notice to Transmission transmission service in accordance with Provider shall submit an invoice to the Customers and Eligible Customers of the terms and conditions of this Tariff. Transmission Customer for the charges any such additions, deletions or for all services furnished under the modifications, the associated effective 6 Reciprocity Tariff during the preceding month. The date, and any additional A Transmission Customer receiving invoice shall be paid by the implementation procedures that the transmission service under this Tariff Transmission Customer within twenty Transmission Provider deems agrees to provide comparable (20) days of receipt. All payments shall appropriate. transmission service that it is capable of be made in immediately available funds 5 Local Furnishing Bonds providing to the Transmission Provider payable to the Transmission Provider, or on similar terms and conditions over by wire transfer to a bank named by the 5.1 Transmission Providers That Own facilities used for the transmission of Transmission Provider. Facilities Financed by Local Furnishing electric energy owned, controlled or Bonds operated by the Transmission Customer 7.2 Interest on Unpaid Balances This provision is applicable only to and over facilities used for the Interest on any unpaid amounts Transmission Providers that have transmission of electric energy owned, (including amounts placed in escrow) financed facilities for the local controlled or operated by the shall be calculated in accordance with furnishing of electric energy with tax- Transmission Customer’s corporate the methodology specified for interest exempt bonds, as described in Section Affiliates. A Transmission Customer on refunds in the Commission’s 142(f) of the Internal Revenue Code that is a member of, or takes regulations at 18 CFR 35.19a(a)(2)(iii). (‘‘local furnishing bonds’’). transmission service from, a power pool, Interest on delinquent amounts shall be Notwithstanding any other provision of Regional Transmission Group, Regional calculated from the due date of the bill this Tariff, the Transmission Provider Transmission Organization (RTO), to the date of payment. When payments shall not be required to provide Independent System Operator (ISO) or are made by mail, bills shall be transmission service to any Eligible other transmission organization considered as having been paid on the Customer pursuant to this Tariff if the approved by the Commission for the date of receipt by the Transmission provision of such transmission service operation of transmission facilities also Provider. would jeopardize the tax-exempt status agrees to provide comparable of any local furnishing bond(s) used to transmission service to the 7.3 Customer Default finance the Transmission Provider’s transmission-owning members of such In the event the Transmission facilities that would be used in power pool and Regional Transmission Customer fails, for any reason other than providing such transmission service. Group, RTO, ISO or other transmission a billing dispute as described below, to

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make payment to the Transmission 9 Regulatory Filings 11 Creditworthiness Provider on or before the due date as The Transmission Provider will described above, and such failure of Nothing contained in the Tariff or any Service Agreement shall be construed as specify its Creditworthiness procedures payment is not corrected within thirty in Attachment L. (30) calendar days after the affecting in any way the right of the Transmission Provider notifies the Transmission Provider to unilaterally 12 Dispute Resolution Procedures make application to the Commission for Transmission Customer to cure such a change in rates, terms and conditions, 12.1 Internal Dispute Resolution failure, a default by the Transmission charges, classification of service, Service Procedures Customer shall be deemed to exist. Agreement, rule or regulation under Any dispute between a Transmission Upon the occurrence of a default, the Section 205 of the Federal Power Act Customer and the Transmission Transmission Provider may initiate a and pursuant to the Commission’s rules Provider involving transmission service proceeding with the Commission to and regulations promulgated under the Tariff (excluding applications terminate service but shall not terminate thereunder. for rate changes or other changes to the service until the Commission so Tariff, or to any Service Agreement approves any such request. In the event Nothing contained in the Tariff or any Service Agreement shall be construed as entered into under the Tariff, which of a billing dispute between the shall be presented directly to the Transmission Provider and the affecting in any way the ability of any Party receiving service under the Tariff Commission for resolution) shall be Transmission Customer, the to exercise its rights under the Federal referred to a designated senior Transmission Provider will continue to Power Act and pursuant to the representative of the Transmission provide service under the Service Commission’s rules and regulations Provider and a senior representative of Agreement as long as the Transmission promulgated thereunder. the Transmission Customer for Customer (i) continues to make all resolution on an informal basis as payments not in dispute, and (ii) pays 10 Force Majeure and Indemnification promptly as practicable. In the event the into an independent escrow account the designated representatives are unable to 10.1 Force Majeure portion of the invoice in dispute, resolve the dispute within thirty (30) pending resolution of such dispute. If An event of Force Majeure means any days [or such other period as the Parties the Transmission Customer fails to meet act of God, labor disturbance, act of the may agree upon] by mutual agreement, these two requirements for continuation public enemy, war, insurrection, riot, such dispute may be submitted to of service, then the Transmission fire, storm or flood, explosion, breakage arbitration and resolved in accordance Provider may provide notice to the or accident to machinery or equipment, with the arbitration procedures set forth Transmission Customer of its intention any Curtailment, order, regulation or below. to suspend service in sixty (60) days, in restriction imposed by governmental 12.2 External Arbitration Procedures accordance with Commission policy. military or lawfully established civilian Any arbitration initiated under the authorities, or any other cause beyond a 8 Accounting for the Transmission Tariff shall be conducted before a single Party’s control. A Force Majeure event Provider’s Use of the Tariff neutral arbitrator appointed by the does not include an act of negligence or Parties. If the Parties fail to agree upon intentional wrongdoing. Neither the The Transmission Provider shall a single arbitrator within ten (10) days Transmission Provider nor the record the following amounts, as of the referral of the dispute to Transmission Customer will be outlined below. arbitration, each Party shall choose one considered in default as to any arbitrator who shall sit on a three- 8.1 Transmission Revenues obligation under this Tariff if prevented member arbitration panel. The two from fulfilling the obligation due to an arbitrators so chosen shall within Include in a separate operating event of Force Majeure. However, a twenty (20) days select a third arbitrator revenue account or subaccount the Party whose performance under this to chair the arbitration panel. In either revenues it receives from Transmission Tariff is hindered by an event of Force case, the arbitrators shall be Service when making Third-Party Sales Majeure shall make all reasonable knowledgeable in electric utility under Part II of the Tariff. efforts to perform its obligations under matters, including electric transmission this Tariff. 8.2 Study Costs and Revenues and bulk power issues, and shall not have any current or past substantial Include in a separate transmission 10.2 Indemnification business or financial relationships with operating expense account or The Transmission Customer shall at any party to the arbitration (except prior subaccount, costs properly chargeable to all times indemnify, defend, and save arbitration). The arbitrator(s) shall expense that are incurred to perform the Transmission Provider harmless provide each of the Parties an any System Impact Studies or Facilities from, any and all damages, losses, opportunity to be heard and, except as Studies which the Transmission claims, including claims and actions otherwise provided herein, shall Provider conducts to determine if it relating to injury to or death of any generally conduct the arbitration in must construct new transmission person or damage to property, demands, accordance with the Commercial facilities or upgrades necessary for its suits, recoveries, costs and expenses, Arbitration Rules of the American own uses, including making Third-Party court costs, attorney fees, and all other Arbitration Association and any Sales under the Tariff; and include in a obligations by or to third parties, arising applicable Commission regulations or separate operating revenue account or out of or resulting from the Regional Transmission Group rules. subaccount the revenues received for Transmission Provider’s performance of System Impact Studies or Facilities its obligations under this Tariff on 12.3 Arbitration Decisions Studies performed when such amounts behalf of the Transmission Customer, Unless otherwise agreed, the are separately stated and identified in except in cases of negligence or arbitrator(s) shall render a decision the Transmission Customer’s billing intentional wrongdoing by the within ninety (90) days of appointment under the Tariff. Transmission Provider. and shall notify the Parties in writing of

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such decision and the reasons therefor. the chronological sequence in which All Long-Term Firm Point-To-Point The arbitrator(s) shall be authorized each Transmission Customer has Transmission Service will have equal only to interpret and apply the requested service. reservation priority with Native Load provisions of the Tariff and any Service (ii) Reservations for Short-Term Firm Customers and Network Customers. Agreement entered into under the Tariff Point-To-Point Transmission Service Reservation priorities for existing firm and shall have no power to modify or will be conditional based upon the service customers are provided in change any of the above in any manner. length of the requested transaction or Section 2.2. The decision of the arbitrator(s) shall be reservation. However, Pre-Confirmed Applications for Short-Term Point-To- 13.3 Use of Firm Transmission Service final and binding upon the Parties, and by the Transmission Provider judgment on the award may be entered Point Transmission Service will receive in any court having jurisdiction. The priority over earlier-submitted requests The Transmission Provider will be decision of the arbitrator(s) may be that are not Pre-Confirmed and that subject to the rates, terms and appealed solely on the grounds that the have equal or shorter duration. Among conditions of Part II of the Tariff when conduct of the arbitrator(s), or the requests or reservations with the same making Third-Party Sales under (i) decision itself, violated the standards duration and, as relevant, pre- agreements executed on or after set forth in the Federal Arbitration Act confirmation status (pre-confirmed, September 8, 2008 or (ii) agreements and/or the Administrative Dispute confirmed, or not confirmed), priority executed prior to the aforementioned Resolution Act. The final decision of the will be given to an Eligible Customer’s date that the Commission requires to be arbitrator must also be filed with the request or reservation that offers the unbundled, by the date specified by the Commission if it affects jurisdictional highest price, followed by the date and Commission. The Transmission rates, terms and conditions of service or time of the request or reservation. Provider will maintain separate facilities. (iii) If the Transmission System accounting, pursuant to Section 8, for becomes oversubscribed, requests for any use of the Point-To-Point 12.4 Costs service may preempt competing Transmission Service to make Third- Each Party shall be responsible for its reservations up to the following Party Sales. conditional reservation deadlines: One own costs incurred during the 13.4 Service Agreements arbitration process and for the following day before the commencement of daily The Transmission Provider shall offer costs, if applicable: service, one week before the a standard form Firm Point-To-Point 1. The cost of the arbitrator chosen by commencement of weekly service, and Transmission Service Agreement the Party to sit on the three member one month before the commencement of (Attachment A) to an Eligible Customer panel and one half of the cost of the monthly service. Before the conditional when it submits a Completed third arbitrator chosen; or reservation deadline, if available Application for Long-Term Firm Point- 2. One half the cost of the single transfer capability is insufficient to To-Point Transmission Service. The arbitrator jointly chosen by the Parties. satisfy all requests and reservations, an Eligible Customer with a reservation for Transmission Provider shall offer a 12.5 Rights Under The Federal Power shorter term service or equal duration standard form Firm Point-To-Point Act service and lower price has the right of Transmission Service Agreement Nothing in this section shall restrict first refusal to match any longer term (Attachment A) to an Eligible Customer the rights of any party to file a request or equal duration service with a when it first submits a Completed Complaint with the Commission under higher price before losing its reservation Application for Short-Term Firm Point- relevant provisions of the Federal Power priority. A longer term competing To-Point Transmission Service pursuant Act. request for Short-Term Firm Point-To- to the Tariff. Executed Service Point Transmission Service will be Agreements that contain the information II. Point-To-Point Transmission Service granted if the Eligible Customer with the required under the Tariff shall be filed Preamble right of first refusal does not agree to with the Commission in compliance match the competing request within 24 with applicable Commission The Transmission Provider will hours (or earlier if necessary to comply regulations. An Eligible Customer that provide Firm and Non-Firm Point-To- with the scheduling deadlines provided uses Transmission Service at a Point of Point Transmission Service pursuant to in section 13.8) from being notified by Receipt or Point of Delivery that it has the applicable terms and conditions of the Transmission Provider of a longer- not reserved and that has not executed this Tariff. Point-To-Point Transmission term competing request for Short-Term a Service Agreement will be deemed, for Service is for the receipt of capacity and Firm Point-To-Point Transmission purposes of assessing any appropriate energy at designated Point(s) of Receipt Service. When a longer duration request charges and penalties, to have executed and the transfer of such capacity and preempts multiple shorter duration the appropriate Service Agreement. The energy to designated Point(s) of reservations, the shorter duration Service Agreement shall, when Delivery. reservations shall have simultaneous applicable, specify any conditional 13 Nature of Firm Point-To-Point opportunities to exercise the right of curtailment options selected by the Transmission Service first refusal. Duration, price and time of Transmission Customer. Where the response will be used to determine the Service Agreement contains conditional 13.1 Term order by which the multiple shorter curtailment options and is subject to a The minimum term of Firm Point-To- duration reservations will be able to biennial reassessment as described in Point Transmission Service shall be one exercise the right of first refusal. After Section 15.4, the Transmission Provider day and the maximum term shall be the conditional reservation deadline, shall provide the Transmission specified in the Service Agreement. service will commence pursuant to the Customer notice of any changes to the terms of Part II of the Tariff. curtailment conditions no less than 90 13.2 Reservation Priority (iv) Firm Point-To-Point Transmission days prior to the date for imposition of (i) Long-Term Firm Point-To-Point Service will always have a reservation new curtailment conditions. Concurrent Transmission Service shall be available priority over Non-Firm Point-To-Point with such notice, the Transmission on a first-come, first-served basis, i.e., in Transmission Service under the Tariff. Provider shall provide the Transmission

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Customer with the reassessment study require Curtailment, to the extent capacity is reserved by the Transmission and a narrative description of the study, practicable and consistent with Good Customer shall be set forth in the Firm including the reasons for changes to the Utility Practice, the Transmission Point-To-Point Service Agreement for number of hours per year or System Provider will curtail service to Network Long-Term Firm Transmission Service Conditions under which conditional Customers and Transmission Customers along with a corresponding capacity curtailment may occur. taking Firm Point-To-Point reservation associated with each Point Transmission Service on a basis of Receipt. Points of Receipt and 13.5 Transmission Customer comparable to the curtailment of service corresponding capacity reservations Obligations for Facility Additions or to the Transmission Provider’s Native shall be as mutually agreed upon by the Redispatch Costs Load Customers. All Curtailments will Parties for Short-Term Firm In cases where the Transmission be made on a non-discriminatory basis, Transmission. Each Point of Delivery at Provider determines that the however, Non-Firm Point-To-Point which firm transfer capability is Transmission System is not capable of Transmission Service shall be reserved by the Transmission Customer providing Firm Point-To-Point subordinate to Firm Transmission shall be set forth in the Firm Point-To- Transmission Service without (1) Service. Long-Term Firm Point-To-Point Point Service Agreement for Long-Term degrading or impairing the reliability of Service subject to conditions described Firm Transmission Service along with a service to Native Load Customers, in Section 15.4 shall be curtailed with corresponding capacity reservation Network Customers and other secondary service in cases where the associated with each Point of Delivery. Transmission Customers taking Firm conditions apply, but otherwise will be Points of Delivery and corresponding Point-To-Point Transmission Service, or curtailed on a pro rata basis with other capacity reservations shall be as (2) interfering with the Transmission Firm Transmission Service. When the mutually agreed upon by the Parties for Provider’s ability to meet prior firm Transmission Provider determines that Short-Term Firm Transmission. The contractual commitments to others, the an electrical emergency exists on its greater of either (1) the sum of the Transmission Provider will be obligated Transmission System and implements capacity reservations at the Point(s) of to expand or upgrade its Transmission emergency procedures to Curtail Firm Receipt, or (2) the sum of the capacity System pursuant to the terms of Section Transmission Service, the Transmission reservations at the Point(s) of Delivery 15.4. The Transmission Customer must Customer shall make the required shall be the Transmission Customer’s agree to compensate the Transmission reductions upon request of the Reserved Capacity. The Transmission Provider for any necessary transmission Transmission Provider. However, the Customer will be billed for its Reserved facility additions pursuant to the terms Transmission Provider reserves the right Capacity under the terms of Schedule 7. of Section 27. To the extent the to Curtail, in whole or in part, any Firm The Transmission Customer may not Transmission Provider can relieve any Transmission Service provided under exceed its firm capacity reserved at each system constraint by redispatching the the Tariff when, in the Transmission Point of Receipt and each Point of Transmission Provider’s resources, it Provider’s sole discretion, an emergency Delivery except as otherwise specified shall do so, provided that the Eligible or other unforeseen condition impairs or in Section 22. The Transmission Customer agrees to compensate the degrades the reliability of its Provider shall specify the rate treatment Transmission Provider pursuant to the Transmission System. The Transmission and all related terms and conditions terms of Section 27 and agrees to either Provider will notify all affected applicable in the event that a (i) compensate the Transmission Transmission Customers in a timely Transmission Customer (including Provider for any necessary transmission manner of any scheduled Curtailments. Third-Party Sales by the Transmission facility additions or (ii) accept the Provider) exceeds its firm reserved 13.7 Classification of Firm service subject to a biennial capacity at any Point of Receipt or Point Transmission Service reassessment by the Transmission of Delivery or uses Transmission Provider of redispatch requirements as (a) The Transmission Customer taking Service at a Point of Receipt or Point of described in Section 15.4. Any Firm Point-To-Point Transmission Delivery that it has not reserved. redispatch, Network Upgrade or Direct Service may (1) change its Receipt and Assignment Facilities costs to be Delivery Points to obtain service on a 13.8 Scheduling of Firm Point-To- charged to the Transmission Customer non-firm basis consistent with the terms Point Transmission Service on an incremental basis under the Tariff of Section 22.1 or (2) request a Schedules for the Transmission will be specified in the Service modification of the Points of Receipt or Customer’s Firm Point-To-Point Agreement prior to initiating service. Delivery on a firm basis pursuant to the Transmission Service must be submitted terms of Section 22.2. to the Transmission Provider no later 13.6 Curtailment of Firm Transmission (b) The Transmission Customer may than 10 a.m. [or a reasonable time that Service purchase transmission service to make is generally accepted in the region and In the event that a Curtailment on the sales of capacity and energy from is consistently adhered to by the Transmission Provider’s Transmission multiple generating units that are on the Transmission Provider] of the day prior System, or a portion thereof, is required Transmission Provider’s Transmission to commencement of such service. to maintain reliable operation of such System. For such a purchase of Schedules submitted after 10 a.m. will system and the system directly and transmission service, the resources will be accommodated, if practicable. Hour- indirectly interconnected with be designated as multiple Points of to-hour schedules of any capacity and Transmission Provider’s Transmission Receipt, unless the multiple generating energy that is to be delivered must be System, Curtailments will be made on a units are at the same generating plant in stated in increments of 1,000 kW per non-discriminatory basis to the which case the units would be treated hour [or a reasonable increment that is transaction(s) that effectively relieve the as a single Point of Receipt. generally accepted in the region and is constraint. Transmission Provider may (c) The Transmission Provider shall consistently adhered to by the elect to implement such Curtailments provide firm deliveries of capacity and Transmission Provider]. Transmission pursuant to the Transmission Loading energy from the Point(s) of Receipt to Customers within the Transmission Relief procedures specified in the Point(s) of Delivery. Each Point of Provider’s service area with multiple Attachment J. If multiple transactions Receipt at which firm transmission requests for Transmission Service at a

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Point of Receipt, each of which is under Customers that have already reserved Provider undertakes no obligation under 1,000 kW per hour, may consolidate shorter term service have the right of the Tariff to plan its Transmission their service requests at a common point first refusal to match any longer term System in order to have sufficient of receipt into units of 1,000 kW per request before being preempted. A capacity for Non-Firm Point-To-Point hour for scheduling and billing longer term competing request for Non- Transmission Service. Parties requesting purposes. Scheduling changes will be Firm Point-To-Point Transmission Non-Firm Point-To-Point Transmission permitted up to twenty (20) minutes [or Service will be granted if the Eligible Service for the transmission of firm a reasonable time that is generally Customer with the right of first refusal power do so with the full realization accepted in the region and is does not agree to match the competing that such service is subject to consistently adhered to by the request: (a) Immediately for hourly Non- availability and to Curtailment or Transmission Provider] before the start Firm Point-To-Point Transmission Interruption under the terms of the of the next clock hour provided that the Service after notification by the Tariff. The Transmission Provider shall Delivering Party and Receiving Party Transmission Provider; and, (b) within specify the rate treatment and all related also agree to the schedule modification. 24 hours (or earlier if necessary to terms and conditions applicable in the The Transmission Provider will furnish comply with the scheduling deadlines event that a Transmission Customer to the Delivering Party’s system provided in section 14.6) for Non-Firm (including Third-Party Sales by the operator, hour-to-hour schedules equal Point-To-Point Transmission Service Transmission Provider) exceeds its non- to those furnished by the Receiving other than hourly transactions after firm capacity reservation. Non-Firm Party (unless reduced for losses) and notification by the Transmission Point-To-Point Transmission Service shall deliver the capacity and energy Provider. Transmission service for shall include transmission of energy on provided by such schedules. Should the Network Customers from resources an hourly basis and transmission of Transmission Customer, Delivering other than designated Network scheduled short-term capacity and Party or Receiving Party revise or Resources will have a higher priority energy on a daily, weekly or monthly terminate any schedule, such party shall than any Non-Firm Point-To-Point basis, but not to exceed one month’s immediately notify the Transmission Transmission Service. Non-Firm Point- reservation for any one Application, Provider, and the Transmission Provider To-Point Transmission Service over under Schedule 8. shall have the right to adjust secondary Point(s) of Receipt and 14.6 Scheduling of Non-Firm Point- accordingly the schedule for capacity Point(s) of Delivery will have the lowest To-Point Transmission Service and energy to be received and to be reservation priority under the Tariff. Schedules for Non-Firm Point-To- delivered. 14.3 Use of Non-Firm Point-To-Point Point Transmission Service must be 14 Nature of Non-Firm Point-To-Point Transmission Service by the submitted to the Transmission Provider Transmission Service Transmission Provider no later than 2 p.m. [or a reasonable time that is generally accepted in the 14.1 Term The Transmission Provider will be subject to the rates, terms and region and is consistently adhered to by Non-Firm Point-To-Point conditions of Part II of the Tariff when the Transmission Provider] of the day Transmission Service will be available making Third-Party Sales under (i) prior to commencement of such service. for periods ranging from one (1) hour to agreements executed on or after Schedules submitted after 2 p.m. will be one (1) month. However, a Purchaser of September 8, 2008 or (ii) agreements accommodated, if practicable. Hour-to- Non-Firm Point-To-Point Transmission executed prior to the aforementioned hour schedules of energy that is to be Service will be entitled to reserve a date that the Commission requires to be delivered must be stated in increments sequential term of service (such as a unbundled, by the date specified by the of 1,000 kW per hour [or a reasonable sequential monthly term without having Commission. The Transmission increment that is generally accepted in to wait for the initial term to expire Provider will maintain separate the region and is consistently adhered to before requesting another monthly term) accounting, pursuant to Section 8, for by the Transmission Provider]. so that the total time period for which any use of Non-Firm Point-To-Point Transmission Customers within the the reservation applies is greater than Transmission Service to make Third- Transmission Provider’s service area one month, subject to the requirements Party Sales. with multiple requests for Transmission of Section 18.3. Service at a Point of Receipt, each of 14.4 Service Agreements which is under 1,000 kW per hour, may 14.2 Reservation Priority The Transmission Provider shall offer consolidate their schedules at a Non-Firm Point-To-Point a standard form Non-Firm Point-To- common Point of Receipt into units of Transmission Service shall be available Point Transmission Service Agreement 1,000 kW per hour. Scheduling changes from transfer capability in excess of that (Attachment B) to an Eligible Customer will be permitted up to twenty (20) needed for reliable service to Native when it first submits a Completed minutes [or a reasonable time that is Load Customers, Network Customers Application for Non-Firm Point-To- generally accepted in the region and is and other Transmission Customers Point Transmission Service pursuant to consistently adhered to by the taking Long-Term and Short-Term Firm the Tariff. Executed Service Agreements Transmission Provider] before the start Point-To-Point Transmission Service. A that contain the information required of the next clock hour provided that the higher priority will be assigned first to under the Tariff shall be filed with the Delivering Party and Receiving Party requests or reservations with a longer Commission in compliance with also agree to the schedule modification. duration of service and second to Pre- applicable Commission regulations. The Transmission Provider will furnish Confirmed Applications. In the event to the Delivering Party’s system the Transmission System is constrained, 14.5 Classification of Non-Firm Point- operator, hour-to-hour schedules equal competing requests of the same Pre- To-Point Transmission Service to those furnished by the Receiving Confirmation status and equal duration Non-Firm Point-To-Point Party (unless reduced for losses) and will be prioritized based on the highest Transmission Service shall be offered shall deliver the capacity and energy price offered by the Eligible Customer under terms and conditions contained provided by such schedules. Should the for the Transmission Service. Eligible in Part II of the Tariff. The Transmission Transmission Customer, Delivering

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Party or Receiving Party revise or Network Customers from resources 15.4 Obligation To Provide terminate any schedule, such party shall other than designated Network Transmission Service That Requires immediately notify the Transmission Resources will have a higher priority Expansion or Modification of the Provider, and the Transmission Provider than any Non-Firm Point-To-Point Transmission System, Redispatch or shall have the right to adjust Transmission Service under the Tariff. Conditional Curtailment accordingly the schedule for capacity Non-Firm Point-To-Point Transmission (a) If the Transmission Provider and energy to be received and to be Service over secondary Point(s) of determines that it cannot accommodate delivered. Receipt and Point(s) of Delivery will a Completed Application for Firm Point- 14.7 Curtailment or Interruption of have a lower priority than any Non-Firm To-Point Transmission Service because Service Point-To-Point Transmission Service of insufficient capability on its under the Tariff. The Transmission The Transmission Provider reserves Transmission System, the Transmission Provider will provide advance notice of Provider will use due diligence to the right to Curtail, in whole or in part, Curtailment or Interruption where such Non-Firm Point-To-Point Transmission expand or modify its Transmission notice can be provided consistent with System to provide the requested Firm Service provided under the Tariff for Good Utility Practice. reliability reasons when an emergency Transmission Service, consistent with or other unforeseen condition threatens 15 Service Availability its planning obligations in Attachment K, provided the Transmission Customer to impair or degrade the reliability of its 15.1 General Conditions Transmission System or the systems agrees to compensate the Transmission directly and indirectly interconnected The Transmission Provider will Provider for such costs pursuant to the with Transmission Provider’s provide Firm and Non-Firm Point-To- terms of Section 27. The Transmission Transmission System. Transmission Point Transmission Service over, on or Provider will conform to Good Utility Provider may elect to implement such across its Transmission System to any Practice and its planning obligations in Curtailments pursuant to the Transmission Customer that has met the Attachment K, in determining the need Transmission Loading Relief procedures requirements of Section 16. for new facilities and in the design and specified in Attachment J. The construction of such facilities. The Transmission Provider reserves the right 15.2 Determination of Available obligation applies only to those facilities to Interrupt, in whole or in part, Non- Transfer Capability that the Transmission Provider has the Firm Point-To-Point Transmission right to expand or modify. A description of the Transmission (b) If the Transmission Provider Service provided under the Tariff for Provider’s specific methodology for economic reasons in order to determines that it cannot accommodate assessing available transfer capability a Completed Application for Long-Term accommodate (1) a request for Firm posted on the Transmission Provider’s Transmission Service, (2) a request for Firm Point-To-Point Transmission OASIS (Section 4) is contained in Non-Firm Point-To-Point Transmission Service because of insufficient Attachment C of the Tariff. In the event Service of greater duration, (3) a request capability on its Transmission System, sufficient transfer capability may not for Non-Firm Point-To-Point the Transmission Provider will use due exist to accommodate a service request, Transmission Service of equal duration diligence to provide redispatch from its the Transmission Provider will respond with a higher price, (4) transmission own resources until (i) Network by performing a System Impact Study. service for Network Customers from Upgrades are completed for the non-designated resources, or (5) 15.3 Initiating Service in the Absence Transmission Customer, (ii) the transmission service for Firm Point-to- of an Executed Service Agreement Transmission Provider determines Point Transmission Service during through a biennial reassessment that it conditional curtailment periods as If the Transmission Provider and the can no longer reliably provide the described in Section 15.4. The Transmission Customer requesting Firm redispatch, or (iii) the Transmission Transmission Provider also will or Non-Firm Point-To-Point Customer terminates the service because discontinue or reduce service to the Transmission Service cannot agree on of redispatch changes resulting from the Transmission Customer to the extent all the terms and conditions of the reassessment. A Transmission Provider that deliveries for transmission are Point-To-Point Service Agreement, the shall not unreasonably deny self- discontinued or reduced at the Point(s) Transmission Provider shall file with provided redispatch or redispatch of Receipt. Where required, the Commission, within thirty (30) days arranged by the Transmission Customer Curtailments or Interruptions will be after the date the Transmission from a third party resource. made on a non-discriminatory basis to Customer provides written notification (c) If the Transmission Provider the transaction(s) that effectively relieve directing the Transmission Provider to determines that it cannot accommodate the constraint, however, Non-Firm file, an unexecuted Point-To-Point a Completed Application for Long-Term Point-To-Point Transmission Service Service Agreement containing terms and Firm Point-To-Point Transmission shall be subordinate to Firm conditions deemed appropriate by the Service because of insufficient Transmission Service. If multiple Transmission Provider for such capability on its Transmission System, transactions require Curtailment or requested Transmission Service. The the Transmission Provider will offer the Interruption, to the extent practicable Transmission Provider shall commence Firm Transmission Service with the and consistent with Good Utility providing Transmission Service subject condition that the Transmission Practice, Curtailments or Interruptions to the Transmission Customer agreeing Provider may curtail the service prior to will be made to transactions of the to (i) compensate the Transmission the curtailment of other Firm shortest term (e.g., hourly non-firm Provider at whatever rate the Transmission Service for a specified transactions will be Curtailed or Commission ultimately determines to be number of hours per year or during Interrupted before daily non-firm just and reasonable, and (ii) comply System Condition(s). If the transactions and daily non-firm with the terms and conditions of the Transmission Customer accepts the transactions will be Curtailed or Tariff including posting appropriate service, the Transmission Provider will Interrupted before weekly non-firm security deposits in accordance with the use due diligence to provide the service transactions). Transmission service for terms of Section 17.3. until (i) Network Upgrades are

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completed for the Transmission (d) The Transmission Customer agrees Completed Application may be Customer, (ii) the Transmission to pay for any facilities constructed and submitted by (i) transmitting the Provider determines through a biennial chargeable to such Transmission required information to the reassessment that it can no longer Customer under Part II of the Tariff, Transmission Provider by telefax, or (ii) reliably provide such service, or (iii) the whether or not the Transmission providing the information by telephone Transmission Customer terminates the Customer takes service for the full term over the Transmission Provider’s time service because the reassessment of its reservation; recorded telephone line. Each of these increased the number of hours per year (e) The Transmission Customer methods will provide a time-stamped of conditional curtailment or changed provides the information required by record for establishing the priority of the the System Conditions. the Transmission Provider’s planning Application. process established in Attachment K; 15.5 Deferral of Service 17.2 Completed Application and The Transmission Provider may defer (f) The Transmission Customer has A Completed Application shall providing service until it completes executed a Point-To-Point Service provide all of the information included construction of new transmission Agreement or has agreed to receive in 18 CFR 2.20 including but not limited facilities or upgrades needed to provide service pursuant to Section 15.3. to the following: Firm Point-To-Point Transmission (i) The identity, address, telephone Service whenever the Transmission 16.2 Transmission Customer number and facsimile number of the Provider determines that providing the Responsibility for Third-Party entity requesting service; requested service would, without such Arrangements (ii) A statement that the entity new facilities or upgrades, impair or Any scheduling arrangements that requesting service is, or will be upon degrade reliability to any existing firm may be required by other electric commencement of service, an Eligible services. systems shall be the responsibility of the Customer under the Tariff; (iii) The location of the Point(s) of 15.6 Other Transmission Service Transmission Customer requesting Receipt and Point(s) of Delivery and the Schedules service. The Transmission Customer shall provide, unless waived by the identities of the Delivering Parties and Eligible Customers receiving Transmission Provider, notification to the Receiving Parties; transmission service under other the Transmission Provider identifying (iv) The location of the generating agreements on file with the Commission such systems and authorizing them to facility(ies) supplying the capacity and may continue to receive transmission schedule the capacity and energy to be energy and the location of the load service under those agreements until transmitted by the Transmission ultimately served by the capacity and such time as those agreements may be Provider pursuant to Part II of the Tariff energy transmitted. The Transmission modified by the Commission. on behalf of the Receiving Party at the Provider will treat this information as 15.7 Real Power Losses Point of Delivery or the Delivering Party confidential except to the extent that at the Point of Receipt. However, the disclosure of this information is Real Power Losses are associated with required by this Tariff, by regulatory or all transmission service. The Transmission Provider will undertake reasonable efforts to assist the judicial order, for reliability purposes Transmission Provider is not obligated pursuant to Good Utility Practice or to provide Real Power Losses. The Transmission Customer in making such arrangements, including without pursuant to RTG transmission Transmission Customer is responsible information sharing agreements. The for replacing losses associated with all limitation, providing any information or data required by such other electric Transmission Provider shall treat this transmission service as calculated by information consistent with the the Transmission Provider. The system pursuant to Good Utility Practice. standards of conduct contained in Part applicable Real Power Loss factors are 37 of the Commission’s regulations; as follows: [To be completed by the 17 Procedures for Arranging Firm (v) A description of the supply Transmission Provider]. Point-To-Point Transmission Service characteristics of the capacity and 16 Transmission Customer 17.1 Application energy to be delivered; Responsibilities (vi) An estimate of the capacity and A request for Firm Point-To-Point energy expected to be delivered to the 16.1 Conditions Required of Transmission Service for periods of one Receiving Party; Transmission Customers year or longer must contain a written (vii) The Service Commencement Date Point-To-Point Transmission Service Application to: [Transmission Provider and the term of the requested shall be provided by the Transmission Name and Address], at least sixty (60) Transmission Service; Provider only if the following days in advance of the calendar month (viii) The transmission capacity conditions are satisfied by the in which service is to commence. The requested for each Point of Receipt and Transmission Customer: Transmission Provider will consider each Point of Delivery on the (a) The Transmission Customer has requests for such firm service on shorter Transmission Provider’s Transmission pending a Completed Application for notice when feasible. Requests for firm System; customers may combine their service; service for periods of less than one year requests for service in order to satisfy (b) The Transmission Customer meets shall be subject to expedited procedures the minimum transmission capacity the creditworthiness criteria set forth in that shall be negotiated between the requirement; Section 11; Parties within the time constraints (ix) A statement indicating that, if the (c) The Transmission Customer will provided in Section 17.5. All Firm Eligible Customer submits a Pre- have arrangements in place for any Point-To-Point Transmission Service Confirmed Application, the Eligible other transmission service necessary to requests should be submitted by Customer will execute a Service effect the delivery from the generating entering the information listed below on Agreement upon receipt of notification source to the Transmission Provider the Transmission Provider’s OASIS. that the Transmission Provider can prior to the time service under Part II of Prior to implementation of the provide the requested Transmission the Tariff commences; Transmission Provider’s OASIS, a Service; and

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(x) Any additional information 17.4 Notice of Deficient Application another Application after such required by the Transmission Provider’s If an Application fails to meet the withdrawal and termination. planning process established in requirements of the Tariff, the 17.7 Extensions for Commencement of Attachment K. Transmission Provider shall notify the Service The Transmission Provider shall treat entity requesting service within fifteen The Transmission Customer can this information consistent with the (15) days of receipt of the reasons for obtain, subject to availability, up to five such failure. The Transmission Provider standards of conduct contained in Part (5) one-year extensions for the will attempt to remedy minor 37 of the Commission’s regulations. commencement of service. The deficiencies in the Application through Transmission Customer may postpone 17.3 Deposit informal communications with the service by paying a non-refundable Eligible Customer. If such efforts are A Completed Application for Firm annual reservation fee equal to one- unsuccessful, the Transmission Provider Point-To-Point Transmission Service month’s charge for Firm Transmission shall return the Application, along with also shall include a deposit of either one Service for each year or fraction thereof any deposit, with interest. Upon receipt month’s charge for Reserved Capacity or within 15 days of notifying the of a new or revised Application that the full charge for Reserved Capacity for Transmission Provider it intends to fully complies with the requirements of extend the commencement of service. If service requests of less than one month. Part II of the Tariff, the Eligible during any extension for the If the Application is rejected by the Customer shall be assigned a new commencement of service an Eligible Transmission Provider because it does priority consistent with the date of the Customer submits a Completed not meet the conditions for service as new or revised Application. set forth herein, or in the case of Application for Firm Transmission requests for service arising in 17.5 Response to a Completed Service, and such request can be connection with losing bidders in a Application satisfied only by releasing all or part of Request For Proposals (RFP), said Following receipt of a Completed the Transmission Customer’s Reserved deposit shall be returned with interest Application for Firm Point-To-Point Capacity, the original Reserved Capacity less any reasonable costs incurred by Transmission Service, the Transmission will be released unless the following the Transmission Provider in Provider shall make a determination of condition is satisfied. Within thirty (30) connection with the review of the losing available transfer capability as required days, the original Transmission bidder’s Application. The deposit also in Section 15.2. The Transmission Customer agrees to pay the Firm Point- will be returned with interest less any Provider shall notify the Eligible To-Point transmission rate for its Reserved Capacity concurrent with the reasonable costs incurred by the Customer as soon as practicable, but not new Service Commencement Date. In Transmission Provider if the later than thirty (30) days after the date the event the Transmission Customer Transmission Provider is unable to of receipt of a Completed Application elects to release the Reserved Capacity, complete new facilities needed to either (i) if it will be able to provide service without performing a System the reservation fees or portions thereof provide the service. If an Application is previously paid will be forfeited. withdrawn or the Eligible Customer Impact Study or (ii) if such a study is decides not to enter into a Service needed to evaluate the impact of the 18 Procedures for Arranging Non-Firm Agreement for Firm Point-To-Point Application pursuant to Section 19.1. Point-To-Point Transmission Service Responses by the Transmission Provider Transmission Service, the deposit shall 18.1 Application be refunded in full, with interest, less must be made as soon as practicable to reasonable costs incurred by the all completed applications (including Eligible Customers seeking Non-Firm Transmission Provider to the extent applications by its own merchant Point-To-Point Transmission Service such costs have not already been function) and the timing of such must submit a Completed Application recovered by the Transmission Provider responses must be made on a non- to the Transmission Provider. discriminatory basis. Applications should be submitted by from the Eligible Customer. The entering the information listed below on Transmission Provider will provide to 17.6 Execution of Service Agreement the Transmission Provider’s OASIS. the Eligible Customer a complete Whenever the Transmission Provider Prior to implementation of the accounting of all costs deducted from determines that a System Impact Study Transmission Provider’s OASIS, a the refunded deposit, which the Eligible is not required and that the service can Completed Application may be Customer may contest if there is a be provided, it shall notify the Eligible submitted by (i) transmitting the dispute concerning the deducted costs. Customer as soon as practicable but no required information to the Deposits associated with construction of later than thirty (30) days after receipt Transmission Provider by telefax, or (ii) new facilities are subject to the of the Completed Application. Where a providing the information by telephone provisions of Section 19. If a Service System Impact Study is required, the over the Transmission Provider’s time Agreement for Firm Point-To-Point provisions of Section 19 will govern the recorded telephone line. Each of these Transmission Service is executed, the execution of a Service Agreement. methods will provide a time-stamped deposit, with interest, will be returned Failure of an Eligible Customer to record for establishing the service to the Transmission Customer upon execute and return the Service priority of the Application. expiration or termination of the Service Agreement or request the filing of an Agreement for Firm Point-To-Point unexecuted service agreement pursuant 18.2 Completed Application Transmission Service. Applicable to Section 15.3, within fifteen (15) days A Completed Application shall interest shall be computed in after it is tendered by the Transmission provide all of the information included accordance with the Commission’s Provider will be deemed a withdrawal in 18 CFR 2.20 including but not limited regulations at 18 CFR 35.19a(a)(2)(iii), and termination of the Application and to the following: and shall be calculated from the day the any deposit submitted shall be refunded (i) The identity, address, telephone deposit check is credited to the with interest. Nothing herein limits the number and facsimile number of the Transmission Provider’s account. right of an Eligible Customer to file entity requesting service;

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(ii) A statement that the entity consistently adhered to by the pursuant to Section 17.3, shall be requesting service is, or will be upon Transmission Provider]. returned with interest. commencement of service, an Eligible 19.2 System Impact Study Agreement Customer under the Tariff; 18.4 Determination of Available and Cost Reimbursement (iii) The Point(s) of Receipt and the Transfer Capability (i) The System Impact Study Point(s) of Delivery; Following receipt of a tendered (iv) The maximum amount of capacity Agreement will clearly specify the schedule the Transmission Provider will Transmission Provider’s estimate of the requested at each Point of Receipt and make a determination on a non- Point of Delivery; and actual cost, and time for completion of discriminatory basis of available transfer the System Impact Study. The charge (v) The proposed dates and hours for capability pursuant to Section 15.2. initiating and terminating transmission shall not exceed the actual cost of the Such determination shall be made as study. In performing the System Impact service hereunder. soon as reasonably practicable after In addition to the information Study, the Transmission Provider shall receipt, but not later than the following rely, to the extent reasonably specified above, when required to time periods for the following terms of practicable, on existing transmission properly evaluate system conditions, the service (i) thirty (30) minutes for hourly planning studies. The Eligible Customer Transmission Provider also may ask the service, (ii) thirty (30) minutes for daily will not be assessed a charge for such Transmission Customer to provide the service, (iii) four (4) hours for weekly existing studies; however, the Eligible following: service, and (iv) two (2) days for Customer will be responsible for charges (vi) The electrical location of the monthly service. [Or such reasonable associated with any modifications to initial source of the power to be times that are generally accepted in the existing planning studies that are transmitted pursuant to the region and are consistently adhered to reasonably necessary to evaluate the Transmission Customer’s request for by the Transmission Provider]. impact of the Eligible Customer’s service; and 19 Additional Study Procedures for request for service on the Transmission (vii) The electrical location of the System. ultimate load. Firm Point-to-Point Transmission Service Requests (ii) If in response to multiple Eligible The Transmission Provider will treat Customers requesting service in relation this information in (vi) and (vii) as 19.1 Notice of Need for System Impact to the same competitive solicitation, a confidential at the request of the Study single System Impact Study is sufficient Transmission Customer except to the for the Transmission Provider to extent that disclosure of this After receiving a request for service, accommodate the requests for service, information is required by this Tariff, by the Transmission Provider shall the costs of that study shall be pro-rated regulatory or judicial order, for determine on a non-discriminatory basis among the Eligible Customers. reliability purposes pursuant to Good whether a System Impact Study is (iii) For System Impact Studies that Utility Practice, or pursuant to RTG needed. A description of the the Transmission Provider conducts on transmission information sharing Transmission Provider’s methodology its own behalf, the Transmission agreements. The Transmission Provider for completing a System Impact Study is Provider shall record the cost of the shall treat this information consistent provided in Attachment D. If the System Impact Studies pursuant to with the standards of conduct contained Transmission Provider determines that a Section 20. in Part 37 of the Commission’s System Impact Study is necessary to regulations. accommodate the requested service, it 19.3 System Impact Study Procedures (viii) A statement indicating that, if shall so inform the Eligible Customer, as Upon receipt of an executed System the Eligible Customer submits a Pre- soon as practicable. Once informed, the Impact Study Agreement, the Confirmed Application, the Eligible Eligible Customer shall timely notify the Transmission Provider will use due Customer will execute a Service Transmission Provider if it elects to diligence to complete the required Agreement upon receipt of notification have the Transmission Provider study System Impact Study within a sixty (60) that the Transmission Provider can redispatch or conditional curtailment as day period. The System Impact Study provide the requested Transmission part of the System Impact Study. If shall identify (1) any system constraints, Service. notification is provided prior to tender identified with specificity by of the System Impact Study Agreement, transmission element or flowgate, (2) 18.3 Reservation of Non-Firm Point-to- the Eligible Customer can avoid the redispatch options (when requested by Point Transmission Service costs associated with the study of these an Eligible Customer) including an Requests for monthly service shall be options. The Transmission Provider estimate of the cost of redispatch, (3) submitted no earlier than sixty (60) days shall within thirty (30) days of receipt conditional curtailment options (when before service is to commence; requests of a Completed Application, tender a requested by an Eligible Customer) for weekly service shall be submitted no System Impact Study Agreement including the number of hours per year earlier than fourteen (14) days before pursuant to which the Eligible Customer and the System Conditions during service is to commence, requests for shall agree to reimburse the which conditional curtailment may daily service shall be submitted no Transmission Provider for performing occur, and (4) additional Direct earlier than two (2) days before service the required System Impact Study. For Assignment Facilities or Network is to commence, and requests for hourly a service request to remain a Completed Upgrades required to provide the service shall be submitted no earlier Application, the Eligible Customer shall requested service. For customers than noon the day before service is to execute the System Impact Study requesting the study of redispatch commence. Requests for service Agreement and return it to the options, the System Impact Study shall received later than 2 p.m. prior to the Transmission Provider within fifteen (1) identify all resources located within day service is scheduled to commence (15) days. If the Eligible Customer elects the Transmission Provider’s Control will be accommodated if practicable [or not to execute the System Impact Study Area that can significantly contribute such reasonable times that are generally Agreement, its application shall be toward relieving the system constraint accepted in the region and are deemed withdrawn and its deposit, and (2) provide a measurement of each

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resource’s impact on the system Facilities Study within a sixty (60) day 19.7 Partial Interim Service constraint. If the Transmission Provider period. If the Transmission Provider is If the Transmission Provider possesses information indicating that unable to complete the Facilities Study determines that it will not have any resource outside its Control Area in the allotted time period, the adequate transfer capability to satisfy could relieve the constraint, it shall Transmission Provider shall notify the the full amount of a Completed identify each such resource in the Transmission Customer and provide an Application for Firm Point-To-Point System Impact Study. In the event that estimate of the time needed to reach a Transmission Service, the Transmission the Transmission Provider is unable to final determination along with an Provider nonetheless shall be obligated complete the required System Impact explanation of the reasons that to offer and provide the portion of the Study within such time period, it shall additional time is required to complete requested Firm Point-To-Point so notify the Eligible Customer and the study. When completed, the Transmission Service that can be provide an estimated completion date Facilities Study will include a good accommodated without addition of any along with an explanation of the reasons faith estimate of (i) the cost of Direct facilities and through redispatch. why additional time is required to Assignment Facilities to be charged to However, the Transmission Provider complete the required studies. A copy of the Transmission Customer, (ii) the shall not be obligated to provide the the completed System Impact Study and Transmission Customer’s appropriate related work papers shall be made share of the cost of any required incremental amount of requested Firm available to the Eligible Customer as Network Upgrades as determined Point-To-Point Transmission Service soon as the System Impact Study is pursuant to the provisions of Part II of that requires the addition of facilities or complete. The Transmission Provider the Tariff, and (iii) the time required to upgrades to the Transmission System will use the same due diligence in complete such construction and initiate until such facilities or upgrades have completing the System Impact Study for the requested service. The Transmission been placed in service. an Eligible Customer as it uses when Customer shall provide the 19.8 Expedited Procedures for New completing studies for itself. The Transmission Provider with a letter of Facilities Transmission Provider shall notify the credit or other reasonable form of In lieu of the procedures set forth Eligible Customer immediately upon security acceptable to the Transmission completion of the System Impact Study Provider equivalent to the costs of new above, the Eligible Customer shall have if the Transmission System will be facilities or upgrades consistent with the option to expedite the process by adequate to accommodate all or part of commercial practices as established by requesting the Transmission Provider to a request for service or that no costs are the Uniform Commercial Code. The tender at one time, together with the likely to be incurred for new Transmission Customer shall have thirty results of required studies, an transmission facilities or upgrades. In (30) days to execute a Service ‘‘Expedited Service Agreement’’ order for a request to remain a Agreement or request the filing of an pursuant to which the Eligible Customer Completed Application, within fifteen unexecuted Service Agreement and would agree to compensate the (15) days of completion of the System provide the required letter of credit or Transmission Provider for all costs Impact Study the Eligible Customer other form of security or the request will incurred pursuant to the terms of the must execute a Service Agreement or no longer be a Completed Application Tariff. In order to exercise this option, request the filing of an unexecuted and shall be deemed terminated and the Eligible Customer shall request in Service Agreement pursuant to Section withdrawn. writing an expedited Service Agreement 15.3, or the Application shall be deemed covering all of the above-specified items 19.5 Facilities Study Modifications terminated and withdrawn. within thirty (30) days of receiving the Any change in design arising from results of the System Impact Study 19.4 Facilities Study Procedures inability to site or construct facilities as identifying needed facility additions or If a System Impact Study indicates proposed will require development of a upgrades or costs incurred in providing that additions or upgrades to the revised good faith estimate. New good the requested service. While the Transmission System are needed to faith estimates also will be required in Transmission Provider agrees to provide supply the Eligible Customer’s service the event of new statutory or regulatory the Eligible Customer with its best request, the Transmission Provider, requirements that are effective before estimate of the new facility costs and within thirty (30) days of the the completion of construction or other other charges that may be incurred, such completion of the System Impact Study, circumstances beyond the control of the estimate shall not be binding and the shall tender to the Eligible Customer a Transmission Provider that significantly Eligible Customer must agree in writing Facilities Study Agreement pursuant to affect the final cost of new facilities or to compensate the Transmission which the Eligible Customer shall agree upgrades to be charged to the Provider for all costs incurred pursuant to reimburse the Transmission Provider Transmission Customer pursuant to the to the provisions of the Tariff. The for performing the required Facilities provisions of Part II of the Tariff. Eligible Customer shall execute and Study. For a service request to remain return such an Expedited Service a Completed Application, the Eligible 19.6 Due Diligence in Completing New Agreement within fifteen (15) days of its Customer shall execute the Facilities Facilities receipt or the Eligible Customer’s Study Agreement and return it to the The Transmission Provider shall use request for service will cease to be a Transmission Provider within fifteen due diligence to add necessary facilities Completed Application and will be (15) days. If the Eligible Customer elects or upgrade its Transmission System deemed terminated and withdrawn. not to execute the Facilities Study within a reasonable time. The Agreement, its application shall be Transmission Provider will not upgrade 19.9 Penalties for Failure To Meet deemed withdrawn and its deposit, its existing or planned Transmission Study Deadlines pursuant to Section 17.3, shall be System in order to provide the Sections 19.3 and 19.4 require a returned with interest. Upon receipt of requested Firm Point-To-Point Transmission Provider to use due an executed Facilities Study Agreement, Transmission Service if doing so would diligence to meet 60-day study the Transmission Provider will use due impair system reliability or otherwise completion deadlines for System Impact diligence to complete the required impair or degrade existing firm service. Studies and Facilities Studies.

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(i) The Transmission Provider is 20 Procedures if the Transmission Tariff, the obligation to provide the required to file a notice with the Provider Is Unable To Complete New requested Firm Point-To-Point Commission in the event that more than Transmission Facilities for Firm Point- Transmission Service shall terminate twenty (20) percent of non-Affiliates’ to-Point Transmission Service and any deposit made by the Transmission Customer shall be System Impact Studies and Facilities 20.1 Delays in Construction of New Studies completed by the Transmission Facilities returned with interest pursuant to Provider in any two consecutive Commission regulations If any event occurs that will calendar quarters are not completed 35.19a(a)(2)(iii). However, the materially affect the time for completion Transmission Customer shall be within the 60-day study completion of new facilities, or the ability to deadlines. Such notice must be filed responsible for all prudently incurred complete them, the Transmission costs by the Transmission Provider within thirty (30) days of the end of the Provider shall promptly notify the calendar quarter triggering the notice through the time construction was Transmission Customer. In such suspended. requirement. circumstances, the Transmission (ii) For the purposes of calculating the Provider shall within thirty (30) days of 21 Provisions Relating to Transmission percent of non-Affiliates’ System Impact notifying the Transmission Customer of Construction and Services on the Studies and Facilities Studies processed such delays, convene a technical Systems of Other Utilities outside of the 60-day study completion meeting with the Transmission 21.1 Responsibility for Third-Party deadlines, the Transmission Provider Customer to evaluate the alternatives System Additions available to the Transmission Customer. shall consider all System Impact Studies The Transmission Provider shall not and Facilities Studies that it completes The Transmission Provider also shall make available to the Transmission be responsible for making arrangements for non-Affiliates during the calendar Customer studies and work papers for any necessary engineering, quarter. The percentage should be related to the delay, including all permitting, and construction of calculated by dividing the number of information that is in the possession of transmission or distribution facilities on those studies which are completed on the Transmission Provider that is the system(s) of any other entity or for time by the total number of completed reasonably needed by the Transmission obtaining any regulatory approval for studies. The Transmission Provider may Customer to evaluate any alternatives. such facilities. The Transmission provide an explanation in its Provider will undertake reasonable notification filing to the Commission if 20.2 Alternatives to the Original efforts to assist the Transmission it believes there are extenuating Facility Additions Customer in obtaining such circumstances that prevented it from When the review process of Section arrangements, including without meeting the 60-day study completion 20.1 determines that one or more limitation, providing any information or deadlines. alternatives exist to the originally data required by such other electric system pursuant to Good Utility (iii) The Transmission Provider is planned construction project, the Transmission Provider shall present Practice. subject to an operational penalty if it such alternatives for consideration by completes ten (10) percent or more of 21.2 Coordination of Third-Party the Transmission Customer. If, upon System Additions non-Affiliates’ System Impact Studies review of any alternatives, the and Facilities Studies outside of the 60- Transmission Customer desires to In circumstances where the need for day study completion deadlines for each maintain its Completed Application transmission facilities or upgrades is of the two calendar quarters subject to construction of the alternative identified pursuant to the provisions of immediately following the quarter that facilities, it may request the Part II of the Tariff, and if such upgrades triggered its notification filing to the Transmission Provider to submit a further require the addition of Commission. The operational penalty revised Service Agreement for Firm transmission facilities on other systems, will be assessed for each calendar Point-To-Point Transmission Service. If the Transmission Provider shall have quarter for which an operational penalty the alternative approach solely involves the right to coordinate construction on applies, starting with the calendar Non-Firm Point-To-Point Transmission its own system with the construction quarter immediately following the Service, the Transmission Provider shall required by others. The Transmission quarter that triggered the Transmission promptly tender a Service Agreement Provider, after consultation with the Provider’s notification filing to the for Non-Firm Point-To-Point Transmission Customer and Commission. The operational penalty Transmission Service providing for the representatives of such other systems, will continue to be assessed each service. In the event the Transmission may defer construction of its new quarter until the Transmission Provider Provider concludes that no reasonable transmission facilities, if the new completes at least ninety (90) percent of alternative exists and the Transmission transmission facilities on another all non-Affiliates’ System Impact Customer disagrees, the Transmission system cannot be completed in a timely manner. The Transmission Provider Studies and Facilities Studies within Customer may seek relief under the shall notify the Transmission Customer the 60-day deadline. dispute resolution procedures pursuant to Section 12 or it may refer the dispute in writing of the basis for any decision (iv) For penalties assessed in to the Commission for resolution. to defer construction and the specific accordance with subsection (iii) above, problems which must be resolved before the penalty amount for each System 20.3 Refund Obligation for Unfinished it will initiate or resume construction of Impact Study or Facilities Study shall Facility Additions new facilities. Within sixty (60) days of be equal to $500 for each day the If the Transmission Provider and the receiving written notification by the Transmission Provider takes to Transmission Customer mutually agree Transmission Provider of its intent to complete that study beyond the 60-day that no other reasonable alternatives defer construction pursuant to this deadline. exist and the requested service cannot section, the Transmission Customer may be provided out of existing capability challenge the decision in accordance under the conditions of Part II of the with the dispute resolution procedures

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pursuant to Section 12 or it may refer shall retain its priority for service at the Delivery, or a change in any other the dispute to the Commission for existing firm Receipt and Delivery specifications set forth in the original resolution. Points specified in its Service Service Agreement, the Transmission Agreement. Provider will consent to such change 22 Changes in Service Specifications subject to the provisions of the Tariff, 23 Sale or Assignment of Transmission 22.1 Modifications on a Non-Firm provided that the change will not impair Service Basis the operation and reliability of the Transmission Provider’s generation, The Transmission Customer taking 23.1 Procedures for Assignment or transmission, or distribution systems. Firm Point-To-Point Transmission Transfer of Service The Assignee shall compensate the Service may request the Transmission Subject to Commission approval of Transmission Provider for performing Provider to provide transmission service any necessary filings, a Transmission any System Impact Study needed to on a non-firm basis over Receipt and Customer may sell, assign, or transfer all evaluate the capability of the Delivery Points other than those or a portion of its rights under its Transmission System to accommodate specified in the Service Agreement Service Agreement, but only to another the proposed change and any additional (‘‘Secondary Receipt and Delivery Eligible Customer (the Assignee). The costs resulting from such change. The Points’’), in amounts not to exceed its Transmission Customer that sells, Reseller shall remain liable for the assigns or transfers its rights under its firm capacity reservation, without performance of all obligations under the Service Agreement is hereafter referred incurring an additional Non-Firm Point- Service Agreement, except as To-Point Transmission Service charge or to as the Reseller. Compensation to specifically agreed to by the executing a new Service Agreement, Resellers shall not exceed the higher of Transmission Provider and the Reseller subject to the following conditions. (i) the original rate paid by the Reseller, through an amendment to the Service (a) Service provided over Secondary (ii) the Transmission Provider’s Agreement. Receipt and Delivery Points will be non- maximum rate on file at the time of the firm only, on an as-available basis and assignment, or (iii) the Reseller’s 23.3 Information on Assignment or will not displace any firm or non-firm opportunity cost capped at the Transfer of Service service reserved or scheduled by third- Transmission Provider’s cost of In accordance with Section 4, all sales parties under the Tariff or by the expansion; provided that, for service or assignments of capacity must be Transmission Provider on behalf of its prior to October 1, 2010, compensation conducted through or otherwise posted Native Load Customers. to Resellers shall be at rates established on the Transmission Provider’s OASIS (b) The sum of all Firm and non-firm by agreement between the Reseller and on or before the date the reassigned Point-To-Point Transmission Service the Assignee. service commences and are subject to provided to the Transmission Customer The Assignee must execute a service Section 23.1. Resellers may also use the at any time pursuant to this section agreement with the Transmission Transmission Provider’s OASIS to post shall not exceed the Reserved Capacity Provider governing reassignments of transmission capacity available for in the relevant Service Agreement under transmission service prior to the date on resale. which such services are provided. which the reassigned service (c) The Transmission Customer shall commences. The Transmission Provider 24 Metering and Power Factor retain its right to schedule Firm Point- shall charge the Reseller, as appropriate, Correction at Receipt and Delivery To-Point Transmission Service at the at the rate stated in the Reseller’s Points(s) Receipt and Delivery Points specified in Service Agreement with the 24.1 Transmission Customer the relevant Service Agreement in the Transmission Provider or the associated Obligations amount of its original capacity OASIS schedule and credit the Reseller Unless otherwise agreed, the reservation. with the price reflected in the Transmission Customer shall be (d) Service over Secondary Receipt Assignee’s Service Agreement with the responsible for installing and and Delivery Points on a non-firm basis Transmission Provider or the associated maintaining compatible metering and shall not require the filing of an OASIS schedule; provided that, such communications equipment to Application for Non-Firm Point-To- credit shall be reversed in the event of accurately account for the capacity and Point Transmission Service under the non-payment by the Assignee. If the energy being transmitted under Part II of Tariff. However, all other requirements Assignee does not request any change in the Tariff and to communicate the of Part II of the Tariff (except as to the Point(s) of Receipt or the Point(s) of information to the Transmission transmission rates) shall apply to Delivery, or a change in any other term Provider. Such equipment shall remain transmission service on a non-firm basis or condition set forth in the original the property of the Transmission over Secondary Receipt and Delivery Service Agreement, the Assignee will Customer. Points. receive the same services as did the Reseller and the priority of service for 24.2 Transmission Provider Access to 22.2 Modification on a Firm Basis the Assignee will be the same as that of Metering Data Any request by a Transmission the Reseller. The Assignee will be The Transmission Provider shall have Customer to modify Receipt and subject to all terms and conditions of access to metering data, which may Delivery Points on a firm basis shall be this Tariff. If the Assignee requests a reasonably be required to facilitate treated as a new request for service in change in service, the reservation measurements and billing under the accordance with Section 17 hereof, priority of service will be determined by Service Agreement. except that such Transmission Customer the Transmission Provider pursuant to 24.3 Power Factor shall not be obligated to pay any Section 13.2. additional deposit if the capacity Unless otherwise agreed, the reservation does not exceed the amount 23.2 Limitations on Assignment or Transmission Customer is required to reserved in the existing Service Transfer of Service maintain a power factor within the same Agreement. While such new request is If the Assignee requests a change in range as the Transmission Provider pending, the Transmission Customer the Point(s) of Receipt or Point(s) of pursuant to Good Utility Practices. The

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power factor requirements are specified Load Customers. Network Integration 28.3 Network Integration Transmission in the Service Agreement where Transmission Service also may be used Service applicable. by the Network Customer to deliver The Transmission Provider will 25 Compensation for Transmission economy energy purchases to its provide firm transmission service over Service Network Load from non-designated its Transmission System to the Network resources on an as-available basis Rates for Firm and Non-Firm Point- Customer for the delivery of capacity without additional charge. Transmission To-Point Transmission Service are and energy from its designated Network service for sales to non-designated loads provided in the Schedules appended to Resources to service its Network Loads the Tariff: Firm Point-To-Point will be provided pursuant to the on a basis that is comparable to the Transmission Service (Schedule 7); and applicable terms and conditions of Part Transmission Provider’s use of the Non-Firm Point-To-Point Transmission II of the Tariff. Transmission System to reliably serve its Native Load Customers. Service (Schedule 8). The Transmission 28 Nature of Network Integration Provider shall use Part II of the Tariff to Transmission Service 28.4 Secondary Service make its Third-Party Sales. The Transmission Provider shall account for 28.1 Scope of Service The Network Customer may use the such use at the applicable Tariff rates, Transmission Provider’s Transmission pursuant to Section 8. Network Integration Transmission System to deliver energy to its Network Service is a transmission service that Loads from resources that have not been 26 Stranded Cost Recovery allows Network Customers to efficiently designated as Network Resources. Such The Transmission Provider may seek and economically utilize their Network energy shall be transmitted, on an as- to recover stranded costs from the Resources (as well as other non- available basis, at no additional charge. Transmission Customer pursuant to this designated generation resources) to Secondary service shall not require the Tariff in accordance with the terms, serve their Network Load located in the filing of an Application for Network conditions and procedures set forth in Transmission Provider’s Control Area Integration Transmission Service under FERC Order No. 888. However, the and any additional load that may be the Tariff. However, all other Transmission Provider must separately designated pursuant to Section 31.3 of requirements of Part III of the Tariff file any specific proposed stranded cost the Tariff. The Network Customer taking (except for transmission rates) shall charge under Section 205 of the Federal Network Integration Transmission apply to secondary service. Deliveries Power Act. Service must obtain or provide from resources other than Network Resources will have a higher priority 27 Compensation for New Facilities Ancillary Services pursuant to Section than any Non-Firm Point-To-Point and Redispatch Costs 3. Transmission Service under Part II of Whenever a System Impact Study 28.2 Transmission Provider the Tariff. performed by the Transmission Provider Responsibilities in connection with the provision of 28.5 Real Power Losses Firm Point-To-Point Transmission The Transmission Provider will plan, Real Power Losses are associated with Service identifies the need for new construct, operate and maintain its all transmission service. The facilities, the Transmission Customer Transmission System in accordance Transmission Provider is not obligated shall be responsible for such costs to the with Good Utility Practice and its to provide Real Power Losses. The extent consistent with Commission planning obligations in Attachment K in Network Customer is responsible for policy. Whenever a System Impact order to provide the Network Customer replacing losses associated with all Study performed by the Transmission with Network Integration Transmission transmission service as calculated by Provider identifies capacity constraints Service over the Transmission the Transmission Provider. The that may be relieved by redispatching Provider’s Transmission System. The applicable Real Power Loss factors are the Transmission Provider’s resources to Transmission Provider, on behalf of its as follows: [To be completed by the eliminate such constraints, the Transmission Provider]. Transmission Customer shall be Native Load Customers, shall be responsible for the redispatch costs to required to designate resources and 28.6 Restrictions on Use of Service loads in the same manner as any the extent consistent with Commission The Network Customer shall not use Network Customer under Part III of this policy. Network Integration Transmission Tariff. This information must be Service for (i) sales of capacity and III. Network Integration Transmission consistent with the information used by Service energy to non-designated loads, or (ii) the Transmission Provider to calculate direct or indirect provision of Preamble available transfer capability. The transmission service by the Network The Transmission Provider will Transmission Provider shall include the Customer to third parties. All Network provide Network Integration Network Customer’s Network Load in Customers taking Network Integration Transmission Service pursuant to the its Transmission System planning and Transmission Service shall use Point- applicable terms and conditions shall, consistent with Good Utility To-Point Transmission Service under contained in the Tariff and Service Practice and Attachment K, endeavor to Part II of the Tariff for any Third-Party Agreement. Network Integration construct and place into service Sale which requires use of the Transmission Service allows the sufficient transfer capability to deliver Transmission Provider’s Transmission Network Customer to integrate, the Network Customer’s Network System. The Transmission Provider economically dispatch and regulate its Resources to serve its Network Load on shall specify any appropriate charges current and planned Network Resources a basis comparable to the Transmission and penalties and all related terms and to serve its Network Load in a manner Provider’s delivery of its own generating conditions applicable in the event that comparable to that in which the and purchased resources to its Native a Network Customer uses Network Transmission Provider utilizes its Load Customers. Integration Transmission Service or Transmission System to serve its Native secondary service pursuant to Section

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28.4 to facilitate a wholesale sale that (i) The identity, address, telephone • Identification of the Network does not serve a Network Load. number and facsimile number of the Resource as an off-system resource party requesting service; • Amount of power to which the 29 Initiating Service (ii) A statement that the party customer has rights 29.1 Condition Precedent for requesting service is, or will be upon • Identification of the control area Receiving Service commencement of service, an Eligible from which the power will originate Customer under the Tariff; • Delivery point(s) to the Subject to the terms and conditions of (iii) A description of the Network Transmission Provider’s Transmission Part III of the Tariff, the Transmission Load at each delivery point. This System Provider will provide Network description should separately identify • Transmission arrangements on the Integration Transmission Service to any and provide the Eligible Customer’s best external transmission system(s) Eligible Customer, provided that (i) the estimate of the total loads to be served • Operating restrictions, if any Eligible Customer completes an at each transmission voltage level, and —Any periods of restricted operations Application for service as provided the loads to be served from each throughout the year under Part III of the Tariff, (ii) the Transmission Provider substation at the —Maintenance schedules Eligible Customer and the Transmission same transmission voltage level. The —Minimum loading level of unit Provider complete the technical description should include a ten (10) —Normal operating level of unit arrangements set forth in Sections 29.3 year forecast of summer and winter load —Any must-run unit designations and 29.4, (iii) the Eligible Customer and resource requirements beginning required for system reliability or executes a Service Agreement pursuant with the first year after the service is contract reasons to Attachment F for service under Part scheduled to commence; • Approximate variable generating III of the Tariff or requests in writing (iv) The amount and location of any cost ($/MWH) for redispatch that the Transmission Provider file a interruptible loads included in the computations; proposed unexecuted Service Network Load. This shall include the (vi) Description of Eligible Customer’s Agreement with the Commission, and summer and winter capacity transmission system: (iv) the Eligible Customer executes a requirements for each interruptible load • Load flow and stability data, such Network Operating Agreement with the (had such load not been interruptible), as real and reactive parts of the load, Transmission Provider pursuant to that portion of the load subject to lines, transformers, reactive devices and Attachment G, or requests in writing interruption, the conditions under load type, including normal and that the Transmission Provider file a which an interruption can be emergency ratings of all transmission proposed unexecuted Network implemented and any limitations on the equipment in a load flow format amount and frequency of interruptions. Operating Agreement. compatible with that used by the An Eligible Customer should identify Transmission Provider 29.2 Application Procedures the amount of interruptible customer • Operating restrictions needed for load (if any) included in the 10 year An Eligible Customer requesting reliability load forecast provided in response to • Operating guides employed by service under Part III of the Tariff must (iii) above; system operators submit an Application, with a deposit (v) A description of Network • Contractual restrictions or approximating the charge for one month Resources (current and 10-year committed uses of the Eligible of service, to the Transmission Provider projection). For each on-system Network Customer’s transmission system, other as far as possible in advance of the Resource, such description shall than the Eligible Customer’s Network month in which service is to commence. include: • Loads and Resources Unless subject to the procedures in Unit size and amount of capacity • Location of Network Resources Section 2, Completed Applications for from that unit to be designated as described in subsection (v) above Network Integration Transmission Network Resource • • 10 year projection of system Service will be assigned a priority VAR capability (both leading and expansions or upgrades according to the date and time the lagging) of all generators • • Transmission System maps that Application is received, with the Operating restrictions include any proposed expansions or earliest Application receiving the —Any periods of restricted operations upgrades highest priority. Applications should be throughout the year • Thermal ratings of Eligible submitted by entering the information —Maintenance schedules Customer’s Control Area ties with other listed below on the Transmission —Minimum loading level of unit Control Areas; Provider’s OASIS. Prior to —Normal operating level of unit (vii) Service Commencement Date and implementation of the Transmission —Any must-run unit designations the term of the requested Network Provider’s OASIS, a Completed required for system reliability or Integration Transmission Service. The Application may be submitted by (i) contract reasons minimum term for Network Integration transmitting the required information to • Approximate variable generating Transmission Service is one year; the Transmission Provider by telefax, or cost ($/MWH) for redispatch (viii) A statement signed by an (ii) providing the information by computations authorized officer from or agent of the telephone over the Transmission • Arrangements governing sale and Network Customer attesting that all of Provider’s time recorded telephone line. delivery of power to third parties from the network resources listed pursuant to Each of these methods will provide a generating facilities located in the Section 29.2(v) satisfy the following time-stamped record for establishing the Transmission Provider Control Area, conditions: (1) The Network Customer service priority of the Application. A where only a portion of unit output is owns the resource, has committed to Completed Application shall provide all designated as a Network Resource; purchase generation pursuant to an of the information included in 18 CFR For each off-system Network executed contract, or has committed to 2.20 including but not limited to the Resource, such description shall purchase generation where execution of following: include: a contract is contingent upon the

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availability of transmission service 29.4 Network Customer Facilities do not include any resources, or any under Part III of the Tariff; and (2) the The provision of Network Integration portion thereof, that are committed for Network Resources do not include any Transmission Service shall be sale to non-designated third party load resources, or any portion thereof, that conditioned upon the Network or otherwise cannot be called upon to are committed for sale to non- Customer’s constructing, maintaining meet the Network Customer’s Network designated third party load or otherwise and operating the facilities on its side of Load on a non-interruptible basis, cannot be called upon to meet the each delivery point or interconnection except for purposes of fulfilling Network Customer’s Network Load on a necessary to reliably deliver capacity obligations under a reserve sharing non-interruptible basis, except for and energy from the Transmission program. The Network Customer’s purposes of fulfilling obligations under Provider’s Transmission System to the request will be deemed deficient if it a reserve sharing program; and Network Customer. The Network does not include this statement and the (ix) Any additional information Customer shall be solely responsible for Transmission Provider will follow the required of the Transmission Customer constructing or installing all facilities on procedures for a deficient application as as specified in the Transmission the Network Customer’s side of each described in Section 29.2 of the Tariff. Provider’s planning process established such delivery point or interconnection. in Attachment K. 30.3 Termination of Network Unless the Parties agree to a different 29.5 Filing of Service Agreement Resources time frame, the Transmission Provider The Transmission Provider will file The Network Customer may terminate must acknowledge the request within Service Agreements with the the designation of all or part of a ten (10) days of receipt. The Commission in compliance with generating resource as a Network acknowledgement must include a date applicable Commission regulations. Resource by providing notification to by which a response, including a the Transmission Provider through Service Agreement, will be sent to the 30 Network Resources OASIS as soon as reasonably Eligible Customer. If an Application 30.1 Designation of Network Resources practicable, but not later than the firm fails to meet the requirements of this scheduling deadline for the period of section, the Transmission Provider shall Network Resources shall include all termination. Any request for notify the Eligible Customer requesting generation owned, purchased or leased termination of Network Resource status service within fifteen (15) days of by the Network Customer designated to must be submitted on OASIS, and receipt and specify the reasons for such serve Network Load under the Tariff. should indicate whether the request is failure. Wherever possible, the Network Resources may not include for indefinite or temporary termination. Transmission Provider will attempt to resources, or any portion thereof, that A request for indefinite termination of remedy deficiencies in the Application are committed for sale to non- Network Resource status must indicate through informal communications with designated third party load or otherwise the date and time that the termination the Eligible Customer. If such efforts are cannot be called upon to meet the is to be effective, and the identification unsuccessful, the Transmission Provider Network Customer’s Network Load on a and capacity of the resource(s) or shall return the Application without non-interruptible basis, except for portions thereof to be indefinitely prejudice to the Eligible Customer filing purposes of fulfilling obligations under terminated. A request for temporary a new or revised Application that fully a reserve sharing program. Any owned termination of Network Resource status complies with the requirements of this or purchased resources that were must include the following: section. The Eligible Customer will be serving the Network Customer’s loads (i) Effective date and time of assigned a new priority consistent with under firm agreements entered into on temporary termination; the date of the new or revised or before the Service Commencement (ii) Effective date and time of Application. The Transmission Provider Date shall initially be designated as redesignation, following period of shall treat this information consistent Network Resources until the Network temporary termination; with the standards of conduct contained Customer terminates the designation of (iii) Identification and capacity of in Part 37 of the Commission’s such resources. resource(s) or portions thereof to be regulations. 30.2 Designation of New Network temporarily terminated; (iv) Resource description and 29.3 Technical Arrangements to be Resources attestation for redesignating the network Completed Prior to Commencement of The Network Customer may designate resource following the temporary Service a new Network Resource by providing termination, in accordance with Section Network Integration Transmission the Transmission Provider with as much 30.2; and Service shall not commence until the advance notice as practicable. A (v) Identification of any related Transmission Provider and the Network designation of a new Network Resource transmission service requests to be Customer, or a third party, have must be made through the Transmission evaluated concomitantly with the completed installation of all equipment Provider’s OASIS by a request for request for temporary termination, such specified under the Network Operating modification of service pursuant to an that the requests for undesignation and Agreement consistent with Good Utility Application under Section 29. This the request for these related Practice and any additional request must include a statement that transmission service requests must be requirements reasonably and the new network resource satisfies the approved or denied as a single request. consistently imposed to ensure the following conditions: (1) The Network The evaluation of these related reliable operation of the Transmission Customer owns the resource, has transmission service requests must take System. The Transmission Provider committed to purchase generation into account the termination of the shall exercise reasonable efforts, in pursuant to an executed contract, or has network resources identified in (iii) coordination with the Network committed to purchase generation above, as well as all competing Customer, to complete such where execution of a contract is transmission service requests of higher arrangements as soon as practicable contingent upon the availability of priority. taking into consideration the Service transmission service under Part III of the As part of a temporary termination, a Commencement Date. Tariff; and (2) The Network Resources Network Customer may only redesignate

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the same resource that was originally Network Customers, and the such facilities are integrated into the designated, or a portion thereof. Transmission Provider. operations of the Transmission Requests to redesignate a different Provider’s facilities; provided however, 30.6 Transmission Arrangements for resource and/or a resource with the Network Customer’s transmission Network Resources Not Physically increased capacity will be deemed facilities shall be presumed to be Interconnected With the Transmission deficient and the Transmission Provider integrated if such transmission facilities, Provider will follow the procedures for a if owned by the Transmission Provider, deficient application as described in The Network Customer shall be would be eligible for inclusion in the Section 29.2 of the Tariff. responsible for any arrangements Transmission Provider’s annual necessary to deliver capacity and energy 30.4 Operation of Network Resources transmission revenue requirement as from a Network Resource not physically specified in Attachment H. Calculation The Network Customer shall not interconnected with the Transmission of any credit under this subsection shall operate its designated Network Provider’s Transmission System. The be addressed in either the Network Resources located in the Network Transmission Provider will undertake Customer’s Service Agreement or any Customer’s or Transmission Provider’s reasonable efforts to assist the Network other agreement between the Parties. Control Area such that the output of Customer in obtaining such those facilities exceeds its designated arrangements, including without 31 Designation of Network Load Network Load, plus Non-Firm Sales limitation, providing any information or 31.1 Network Load delivered pursuant to Part II of the data required by such other entity Tariff, plus losses, plus power sales pursuant to Good Utility Practice. The Network Customer must under a reserve sharing program, plus designate the individual Network Loads sales that permit curtailment without 30.7 Limitation on Designation of on whose behalf the Transmission penalty to serve its designated Network Network Resources Provider will provide Network Load. This limitation shall not apply to The Network Customer must Integration Transmission Service. The changes in the operation of a demonstrate that it owns or has Network Loads shall be specified in the Transmission Customer’s Network committed to purchase generation Service Agreement. Resources at the request of the pursuant to an executed contract in 31.2 New Network Loads Connected Transmission Provider to respond to an order to designate a generating resource With the Transmission Provider emergency or other unforeseen as a Network Resource. Alternatively, condition which may impair or degrade the Network Customer may establish The Network Customer shall provide the reliability of the Transmission that execution of a contract is the Transmission Provider with as much System. For all Network Resources not contingent upon the availability of advance notice as reasonably practicable physically connected with the transmission service under Part III of the of the designation of new Network Load Transmission Provider’s Transmission Tariff. that will be added to its Transmission System, the Network Customer may not System. A designation of new Network schedule delivery of energy in excess of 30.8 Use of Interface Capacity by the Load must be made through a the Network Resource’s capacity, as Network Customer modification of service pursuant to a specified in the Network Customer’s There is no limitation upon a Network new Application. The Transmission Application pursuant to Section 29, Customer’s use of the Transmission Provider will use due diligence to unless the Network Customer supports Provider’s Transmission System at any install any transmission facilities such delivery within the Transmission particular interface to integrate the required to interconnect a new Network Provider’s Transmission System by Network Customer’s Network Resources Load designated by the Network either obtaining Point-to-Point (or substitute economy purchases) with Customer. The costs of new facilities Transmission Service or utilizing its Network Loads. However, a Network required to interconnect a new Network secondary service pursuant to Section Customer’s use of the Transmission Load shall be determined in accordance 28.4. The Transmission Provider shall Provider’s total interface capacity with with the procedures provided in Section specify the rate treatment and all related other transmission systems may not 32.4 and shall be charged to the terms and conditions applicable in the exceed the Network Customer’s Load. Network Customer in accordance with event that a Network Customer’s Commission policies. 30.9 Network Customer Owned schedule at the delivery point for a Transmission Facilities 31.3 Network Load Not Physically Network Resource not physically The Network Customer that owns Interconnected With the Transmission interconnected with the Transmission Provider Provider’s Transmission System exceeds existing transmission facilities that are the Network Resource’s designated integrated with the Transmission This section applies to both initial capacity, excluding energy delivered Provider’s Transmission System may be designation pursuant to Section 31.1 using secondary service or Point-to- eligible to receive consideration either and the subsequent addition of new Point Transmission Service. through a billing credit or some other Network Load not physically mechanism. In order to receive such interconnected with the Transmission 30.5 Network Customer Redispatch consideration the Network Customer Provider. To the extent that the Network Obligation must demonstrate that its transmission Customer desires to obtain transmission As a condition to receiving Network facilities are integrated into the plans or service for a load outside the Integration Transmission Service, the operations of the Transmission Transmission Provider’s Transmission Network Customer agrees to redispatch Provider, to serve its power and System, the Network Customer shall its Network Resources as requested by transmission customers. For facilities have the option of (1) electing to include the Transmission Provider pursuant to added by the Network Customer the entire load as Network Load for all Section 33.2. To the extent practical, the subsequent to [the effective date of a purposes under Part III of the Tariff and redispatch of resources pursuant to this Final Rule in RM05–25–000], the designating Network Resources in section shall be on a least cost, non- Network Customer shall receive credit connection with such additional discriminatory basis between all for such transmission facilities added if Network Load, or (2) excluding that

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entire load from its Network Load and 32 Additional Study Procedures for (iii) For System Impact Studies that purchasing Point-To-Point Transmission Network Integration Transmission the Transmission Provider conducts on Service under Part II of the Tariff. To the Service Requests its own behalf, the Transmission Provider shall record the cost of the extent that the Network Customer gives 32.1 Notice of Need for System Impact System Impact Studies pursuant to notice of its intent to add a new Study Network Load as part of its Network Section 8. Load pursuant to this section the After receiving a request for service, 32.3 System Impact Study Procedures request must be made through a the Transmission Provider shall determine on a non-discriminatory basis Upon receipt of an executed System modification of service pursuant to a Impact Study Agreement, the new Application. whether a System Impact Study is needed. A description of the Transmission Provider will use due 31.4 New Interconnection Points Transmission Provider’s methodology diligence to complete the required for completing a System Impact Study is System Impact Study within a sixty (60) To the extent the Network Customer provided in Attachment D. If the day period. The System Impact Study desires to add a new Delivery Point or Transmission Provider determines that a shall identify (1) any system constraints, interconnection point between the System Impact Study is necessary to identified with specificity by Transmission Provider’s Transmission accommodate the requested service, it transmission element or flowgate, (2) System and a Network Load, the shall so inform the Eligible Customer, as redispatch options (when requested by Network Customer shall provide the soon as practicable. In such cases, the an Eligible Customer) including, to the Transmission Provider with as much Transmission Provider shall, within extent possible, an estimate of the cost advance notice as reasonably thirty (30) days of receipt of a of redispatch, (3) available options for practicable. Completed Application, tender a System installation of automatic devices to Impact Study Agreement pursuant to curtail service (when requested by an 31.5 Changes in Service Requests which the Eligible Customer shall agree Eligible Customer), and (4) additional Direct Assignment Facilities or Network to reimburse the Transmission Provider Under no circumstances shall the Upgrades required to provide the for performing the required System Network Customer’s decision to cancel requested service. For customers Impact Study. For a service request to or delay a requested change in Network requesting the study of redispatch remain a Completed Application, the Integration Transmission Service (e.g. options, the System Impact Study shall Eligible Customer shall execute the the addition of a new Network Resource (1) identify all resources located within System Impact Study Agreement and or designation of a new Network Load) the Transmission Provider’s Control return it to the Transmission Provider in any way relieve the Network Area that can significantly contribute within fifteen (15) days. If the Eligible Customer of its obligation to pay the toward relieving the system constraint Customer elects not to execute the costs of transmission facilities and (2) provide a measurement of each System Impact Study Agreement, its resource’s impact on the system constructed by the Transmission Application shall be deemed withdrawn Provider and charged to the Network constraint. If the Transmission Provider and its deposit shall be returned with possesses information indicating that Customer as reflected in the Service interest. Agreement. However, the Transmission any resource outside its Control Area Provider must treat any requested 32.2 System Impact Study Agreement could relieve the constraint, it shall change in Network Integration and Cost Reimbursement identify each such resource in the Transmission Service in a non- System Impact Study. In the event that (i) The System Impact Study the Transmission Provider is unable to discriminatory manner. Agreement will clearly specify the complete the required System Impact 31.6 Annual Load and Resource Transmission Provider’s estimate of the Study within such time period, it shall actual cost, and time for completion of Information Updates so notify the Eligible Customer and the System Impact Study. The charge provide an estimated completion date The Network Customer shall provide shall not exceed the actual cost of the along with an explanation of the reasons the Transmission Provider with annual study. In performing the System Impact why additional time is required to updates of Network Load and Network Study, the Transmission Provider shall complete the required studies. A copy of Resource forecasts consistent with those rely, to the extent reasonably the completed System Impact Study and included in its Application for Network practicable, on existing transmission related work papers shall be made Integration Transmission Service under planning studies. The Eligible Customer available to the Eligible Customer as Part III of the Tariff including, but not will not be assessed a charge for such soon as the System Impact Study is existing studies; however, the Eligible limited to, any information provided complete. The Transmission Provider Customer will be responsible for charges under section 29.2(ix) pursuant to the will use the same due diligence in associated with any modifications to Transmission Provider’s planning completing the System Impact Study for existing planning studies that are an Eligible Customer as it uses when process in Attachment K. The Network reasonably necessary to evaluate the Customer also shall provide the completing studies for itself. The impact of the Eligible Customer’s Transmission Provider shall notify the Transmission Provider with timely request for service on the Transmission Eligible Customer immediately upon written notice of material changes in System. completion of the System Impact Study any other information provided in its (ii) If in response to multiple Eligible if the Transmission System will be Application relating to the Network Customers requesting service in relation adequate to accommodate all or part of Customer’s Network Load, Network to the same competitive solicitation, a a request for service or that no costs are Resources, its transmission system or single System Impact Study is sufficient likely to be incurred for new other aspects of its facilities or for the Transmission Provider to transmission facilities or upgrades. In operations affecting the Transmission accommodate the service requests, the order for a request to remain a Provider’s ability to provide reliable costs of that study shall be pro-rated Completed Application, within fifteen service. among the Eligible Customers. (15) days of completion of the System

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Impact Study the Eligible Customer 32.5 Penalties for Failure To Meet 33.3 Cost Responsibility for Relieving must execute a Service Agreement or Study Deadlines Transmission Constraints request the filing of an unexecuted Section 19.9 defines penalties that Whenever the Transmission Provider Service Agreement, or the Application implements least-cost redispatch apply for failure to meet the 60-day shall be deemed terminated and procedures in response to a study completion due diligence withdrawn. transmission constraint, the deadlines for System Impact Studies 32.4 Facilities Study Procedures Transmission Provider and Network and Facilities Studies under Part II of Customers will each bear a If a System Impact Study indicates the Tariff. These same requirements and proportionate share of the total that additions or upgrades to the penalties apply to service under Part III redispatch cost based on their respective Transmission System are needed to of the Tariff. Load Ratio Shares. supply the Eligible Customer’s service request, the Transmission Provider, 33 Load Shedding and Curtailments 33.4 Curtailments of Scheduled within thirty (30) days of the 33.1 Procedures Deliveries completion of the System Impact Study, If a transmission constraint on the shall tender to the Eligible Customer a Prior to the Service Commencement Transmission Provider’s Transmission Facilities Study Agreement pursuant to Date, the Transmission Provider and the System cannot be relieved through the which the Eligible Customer shall agree Network Customer shall establish Load implementation of least-cost redispatch to reimburse the Transmission Provider Shedding and Curtailment procedures procedures and the Transmission for performing the required Facilities pursuant to the Network Operating Provider determines that it is necessary Study. For a service request to remain Agreement with the objective of to Curtail scheduled deliveries, the a Completed Application, the Eligible responding to contingencies on the Parties shall Curtail such schedules in Customer shall execute the Facilities Transmission System and on systems accordance with the Network Operating Study Agreement and return it to the directly and indirectly interconnected Agreement or pursuant to the Transmission Provider within fifteen with Transmission Provider’s Transmission Loading Relief procedures (15) days. If the Eligible Customer elects specified in Attachment J. not to execute the Facilities Study Transmission System. The Parties will Agreement, its Application shall be implement such programs during any 33.5 Allocation of Curtailments period when the Transmission Provider deemed withdrawn and its deposit shall The Transmission Provider shall, on a determines that a system contingency be returned with interest. Upon receipt non-discriminatory basis, Curtail the exists and such procedures are of an executed Facilities Study transaction(s) that effectively relieve the Agreement, the Transmission Provider necessary to alleviate such contingency. constraint. However, to the extent will use due diligence to complete the The Transmission Provider will notify practicable and consistent with Good required Facilities Study within a sixty all affected Network Customers in a Utility Practice, any Curtailment will be (60) day period. If the Transmission timely manner of any scheduled shared by the Transmission Provider Provider is unable to complete the Curtailment. and Network Customer in proportion to Facilities Study in the allotted time 33.2 Transmission Constraints their respective Load Ratio Shares. The period, the Transmission Provider shall Transmission Provider shall not direct notify the Eligible Customer and During any period when the the Network Customer to Curtail provide an estimate of the time needed Transmission Provider determines that a schedules to an extent greater than the to reach a final determination along transmission constraint exists on the Transmission Provider would Curtail with an explanation of the reasons that Transmission System, and such the Transmission Provider’s schedules additional time is required to complete constraint may impair the reliability of under similar circumstances. the study. When completed, the the Transmission Provider’s system, the 33.6 Load Shedding Facilities Study will include a good Transmission Provider will take faith estimate of (i) the cost of Direct whatever actions, consistent with Good To the extent that a system Assignment Facilities to be charged to Utility Practice, that are reasonably contingency exists on the Transmission the Eligible Customer, (ii) the Eligible necessary to maintain the reliability of Provider’s Transmission System and the Customer’s appropriate share of the cost the Transmission Provider’s system. To Transmission Provider determines that of any required Network Upgrades, and the extent the Transmission Provider it is necessary for the Transmission (iii) the time required to complete such Provider and the Network Customer to determines that the reliability of the construction and initiate the requested shed load, the Parties shall shed load in Transmission System can be maintained service. The Eligible Customer shall accordance with previously established by redispatching resources, the provide the Transmission Provider with procedures under the Network Transmission Provider will initiate a letter of credit or other reasonable Operating Agreement. form of security acceptable to the procedures pursuant to the Network Transmission Provider equivalent to the Operating Agreement to redispatch all 33.7 System Reliability costs of new facilities or upgrades Network Resources and the Notwithstanding any other provisions consistent with commercial practices as Transmission Provider’s own resources of this Tariff, the Transmission Provider established by the Uniform Commercial on a least-cost basis without regard to reserves the right, consistent with Good Code. The Eligible Customer shall have the ownership of such resources. Any Utility Practice and on a not unduly thirty (30) days to execute a Service redispatch under this section may not discriminatory basis, to Curtail Network Agreement or request the filing of an unduly discriminate between the Integration Transmission Service unexecuted Service Agreement and Transmission Provider’s use of the without liability on the Transmission provide the required letter of credit or Transmission System on behalf of its Provider’s part for the purpose of other form of security or the request no Native Load Customers and any making necessary adjustments to, longer will be a Completed Application Network Customer’s use of the changes in, or repairs on its lines, and shall be deemed terminated and Transmission System to serve its substations and facilities, and in cases withdrawn. designated Network Load. where the continuance of Network

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Integration Transmission Service would coincident peak usage of all Firm Point- real time data), (iii) use software endanger persons or property. In the To-Point Transmission Service programs required for data links and event of any adverse condition(s) or customers pursuant to Part II of this constraint dispatching, (iv) exchange disturbance(s) on the Transmission Tariff plus the Reserved Capacity of all data on forecasted loads and resources Provider’s Transmission System or on Firm Point-To-Point Transmission necessary for long-term planning, and any other system(s) directly or Service customers. (v) address any other technical and operational considerations required for indirectly interconnected with the 34.4 Redispatch Charge Transmission Provider’s Transmission implementation of Part III of the Tariff, System, the Transmission Provider, The Network Customer shall pay a including scheduling protocols. The consistent with Good Utility Practice, Load Ratio Share of any redispatch costs Network Operating Agreement will also may Curtail Network Integration allocated between the Network recognize that the Network Customer Transmission Service in order to (i) Customer and the Transmission shall either (i) operate as a Control Area limit the extent or damage of the Provider pursuant to Section 33. To the under applicable guidelines of the adverse condition(s) or disturbance(s), extent that the Transmission Provider Electric Reliability Organization (ERO) (ii) prevent damage to generating or incurs an obligation to the Network as defined in 18 CFR 39.1, (ii) satisfy its transmission facilities, or (iii) expedite Customer for redispatch costs in Control Area requirements, including all restoration of service. The Transmission accordance with Section 33, such necessary Ancillary Services, by Provider will give the Network amounts shall be credited against the contracting with the Transmission Customer as much advance notice as is Network Customer’s bill for the Provider, or (iii) satisfy its Control Area practicable in the event of such applicable month. requirements, including all necessary Curtailment. Any Curtailment of 34.5 Stranded Cost Recovery Ancillary Services, by contracting with another entity, consistent with Good Network Integration Transmission The Transmission Provider may seek Service will be not unduly Utility Practice, which satisfies the to recover stranded costs from the applicable reliability guidelines of the discriminatory relative to the Network Customer pursuant to this Transmission Provider’s use of the ERO. The Transmission Provider shall Tariff in accordance with the terms, not unreasonably refuse to accept Transmission System on behalf of its conditions and procedures set forth in Native Load Customers. The contractual arrangements with another FERC Order No. 888. However, the entity for Ancillary Services. The Transmission Provider shall specify the Transmission Provider must separately rate treatment and all related terms and Network Operating Agreement is file any proposal to recover stranded included in Attachment G. conditions applicable in the event that costs under Section 205 of the Federal the Network Customer fails to respond Power Act. 35.3 Network Operating Committee to established Load Shedding and A Network Operating Committee Curtailment procedures. 35 Operating Arrangements (Committee) shall be established to 34 Rates and Charges 35.1 Operation under the Network coordinate operating criteria for the Operating Agreement The Network Customer shall pay the Parties’ respective responsibilities under Transmission Provider for any Direct The Network Customer shall plan, the Network Operating Agreement. Each Assignment Facilities, Ancillary construct, operate and maintain its Network Customer shall be entitled to Services, and applicable study costs, facilities in accordance with Good have at least one representative on the consistent with Commission policy, Utility Practice and in conformance Committee. The Committee shall meet along with the following: with the Network Operating Agreement. from time to time as need requires, but no less than once each calendar year. 34.1 Monthly Demand Charge 35.2 Network Operating Agreement Schedule 1—Scheduling, System The terms and conditions under The Network Customer shall pay a Control and Dispatch Service monthly Demand Charge, which shall which the Network Customer shall be determined by multiplying its Load operate its facilities and the technical This service is required to schedule Ratio Share times one twelfth (1/12) of and operational matters associated with the movement of power through, out of, the Transmission Provider’s Annual the implementation of Part III of the within, or into a Control Area. This Transmission Revenue Requirement Tariff shall be specified in the Network service can be provided only by the specified in Schedule H. Operating Agreement. The Network operator of the Control Area in which Operating Agreement shall provide for the transmission facilities used for 34.2 Determination of Network the Parties to (i) operate and maintain transmission service are located. Customer’s Monthly Network Load equipment necessary for integrating the Scheduling, System Control and The Network Customer’s monthly Network Customer within the Dispatch Service is to be provided Network Load is its hourly load Transmission Provider’s Transmission directly by the Transmission Provider (if (including its designated Network Load System (including, but not limited to, the Transmission Provider is the Control not physically interconnected with the remote terminal units, metering, Area operator) or indirectly by the Transmission Provider under Section communications equipment and Transmission Provider making 31.3) coincident with the Transmission relaying equipment), (ii) transfer data arrangements with the Control Area Provider’s Monthly Transmission between the Transmission Provider and operator that performs this service for System Peak. the Network Customer (including, but the Transmission Provider’s not limited to, heat rates and Transmission System. The Transmission 34.3 Determination of Transmission operational characteristics of Network Customer must purchase this service Provider’s Monthly Transmission Resources, generation schedules for from the Transmission Provider or the System Load units outside the Transmission Control Area operator. The charges for The Transmission Provider’s monthly Provider’s Transmission System, Scheduling, System Control and Transmission System load is the interchange schedules, unit outputs for Dispatch Service are to be based on the Transmission Provider’s Monthly redispatch required under Section 33, rates set forth below. To the extent the Transmission System Peak minus the voltage schedules, loss factors and other Control Area operator performs this

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service for the Transmission Provider, of automatic generating control hourly to any energy imbalance that charges to the Transmission Customer equipment) and by other non-generation occurs as a result of the Transmission are to reflect only a pass-through of the resources capable of providing this Customer’s scheduled transaction(s) costs charged to the Transmission service as necessary to follow the will be netted on a monthly basis and Provider by that Control Area operator. moment-by-moment changes in load. settled financially, at the end of the The obligation to maintain this balance Schedule 2—Reactive Supply and month, at 100 percent of incremental or between resources and load lies with Voltage Control From Generation or decremental cost; (ii) deviations greater the Transmission Provider (or the ¥ Other Sources Service than +/ 1.5 percent up to 7.5 percent Control Area operator that performs this (or greater than 2 MW up to 10 MW) of In order to maintain transmission function for the Transmission Provider). the scheduled transaction to be applied voltages on the Transmission Provider’s The Transmission Provider must offer hourly to any energy imbalance that transmission facilities within acceptable this service when the transmission occurs as a result of the Transmission limits, generation facilities and non- service is used to serve load within its Customer’s scheduled transaction(s) generation resources capable of Control Area. The Transmission will be settled financially, at the end of providing this service that are under the Customer must either purchase this each month, at 110 percent of control of the control area operator are service from the Transmission Provider incremental cost or 90 percent of operated to produce (or absorb) reactive or make alternative comparable decremental cost, and (iii) deviations power. Thus, Reactive Supply and arrangements to satisfy its Regulation greater than +/¥7.5 percent (or 10 MW) Voltage Control from Generation or and Frequency Response Service of the scheduled transaction to be Other Sources Service must be provided obligation. The amount of and charges applied hourly to any energy imbalance for each transaction on the for Regulation and Frequency Response that occurs as a result of the Transmission Provider’s transmission Service are set forth below. To the Transmission Customer’s scheduled facilities. The amount of Reactive extent the Control Area operator transaction(s) will be settled financially, Supply and Voltage Control from performs this service for the at the end of each month, at 125 percent Generation or Other Sources Service Transmission Provider, charges to the of incremental cost or 75 percent of that must be supplied with respect to Transmission Customer are to reflect decremental cost. the Transmission Customer’s only a pass-through of the costs charged transaction will be determined based on For purposes of this Schedule, to the Transmission Provider by that incremental cost and decremental cost the reactive power support necessary to Control Area operator. maintain transmission voltages within represent the Transmission Provider’s limits that are generally accepted in the Schedule 4—Energy Imbalance Service actual average hourly cost of the last 10 region and consistently adhered to by Energy Imbalance Service is provided MW dispatched for any purpose, e.g., to the Transmission Provider. when a difference occurs between the supply the Transmission Provider’s Reactive Supply and Voltage Control scheduled and the actual delivery of Native Load Customers, correct from Generation or Other Sources energy to a load located within a imbalances, or make off-system sales, Service is to be provided directly by the Control Area over a single hour. The based on the replacement cost of fuel, Transmission Provider (if the Transmission Provider must offer this unit heat rates, start-up costs (including Transmission Provider is the Control service when the transmission service is any commitment and redispatch costs), Area operator) or indirectly by the used to serve load within its Control incremental operation and maintenance Transmission Provider making Area. The Transmission Customer must costs, and purchased and interchange arrangements with the Control Area either purchase this service from the power costs and taxes, as applicable. operator that performs this service for Transmission Provider or make Schedule 5—Operating Reserve— the Transmission Provider’s alternative comparable arrangements, Spinning Reserve Service Transmission System. The Transmission which may include use of non- Customer must purchase this service generation resources capable of Spinning Reserve Service is needed to from the Transmission Provider or the providing this service, to satisfy its serve load immediately in the event of Control Area operator. The charges for Energy Imbalance Service obligation. To a system contingency. Spinning Reserve such service will be based on the rates the extent the Control Area operator Service may be provided by generating set forth below. To the extent the performs this service for the units that are on-line and loaded at less Control Area operator performs this Transmission Provider, charges to the than maximum output and by non- service for the Transmission Provider, Transmission Customer are to reflect generation resources capable of charges to the Transmission Customer only a pass-through of the costs charged providing this service. The are to reflect only a pass-through of the to the Transmission Provider by that Transmission Provider must offer this costs charged to the Transmission Control Area operator. The service when the transmission service is Provider by the Control Area operator. Transmission Provider may charge a used to serve load within its Control Transmission Customer a penalty for Area. The Transmission Customer must Schedule 3—Regulation and Frequency either hourly energy imbalances under either purchase this service from the Response Service this Schedule or a penalty for hourly Transmission Provider or make Regulation and Frequency Response generator imbalances under Schedule 9 alternative comparable arrangements to Service is necessary to provide for the for imbalances occurring during the satisfy its Spinning Reserve Service continuous balancing of resources same hour, but not both unless the obligation. The amount of and charges (generation and interchange) with load imbalances aggravate rather than offset for Spinning Reserve Service are set and for maintaining scheduled each other. forth below. To the extent the Control Interconnection frequency at sixty The Transmission Provider shall Area operator performs this service for cycles per second (60 Hz). Regulation establish charges for energy imbalance the Transmission Provider, charges to and Frequency Response Service is based on the deviation bands as follows: the Transmission Customer are to reflect accomplished by committing on-line (i) Deviations within +/¥1.5 percent only a pass-through of the costs charged generation whose output is raised or (with a minimum of 2 MW) of the to the Transmission Provider by that lowered (predominantly through the use scheduled transaction to be applied Control Area operator.

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Schedule 6—Operating Reserve— any discount agreed upon for service on Provider must offer the same discounted Supplemental Reserve Service a path, from point(s) of receipt to transmission service rate for the same Supplemental Reserve Service is point(s) of delivery, the Transmission time period to all Eligible Customers on needed to serve load in the event of a Provider must offer the same discounted all unconstrained transmission paths system contingency; however, it is not transmission service rate for the same that go to the same point(s) of delivery available immediately to serve load but time period to all Eligible Customers on on the Transmission System. (6) Resales: The rates and rules rather within a short period of time. all unconstrained transmission paths governing charges and discounts stated Supplemental Reserve Service may be that go to the same point(s) of delivery above shall not apply to resales of provided by generating units that are on the Transmission System. (6) Resales: The rates and rules transmission service, compensation for on-line but unloaded, by quick-start governing charges and discounts stated which shall be governed by section 23.1 generation or by interruptible load or above shall not apply to resales of of the Tariff. other non-generation resources capable transmission service, compensation for of providing this service. The Schedule 9—Generator Imbalance which shall be governed by section 23.1 Transmission Provider must offer this Service of the Tariff. service when the transmission service is Generator Imbalance Service is used to serve load within its Control Schedule 8—Non-Firm Point-to-Point provided when a difference occurs Area. The Transmission Customer must Transmission Service between the output of a generator either purchase this service from the The Transmission Customer shall located in the Transmission Provider’s Transmission Provider or make compensate the Transmission Provider Control Area and a delivery schedule alternative comparable arrangements to for Non-Firm Point-To-Point from that generator to (1) another satisfy its Supplemental Reserve Service Transmission Service up to the sum of Control Area or (2) a load within the obligation. The amount of and charges the applicable charges set forth below: Transmission Provider’s Control Area for Supplemental Reserve Service are (1) Monthly delivery: $lll/KW of over a single hour. The Transmission set forth below. To the extent the Reserved Capacity per month. Provider must offer this service, to the Control Area operator performs this (2) Weekly delivery: $lll/KW of extent it is physically feasible to do so service for the Transmission Provider, Reserved Capacity per week. from its resources or from resources charges to the Transmission Customer (3) Daily delivery: $lll/KW of available to it, when Transmission are to reflect only a pass-through of the Reserved Capacity per day. Service is used to deliver energy from a costs charged to the Transmission The total demand charge in any week, generator located within its Control Provider by that Control Area operator. pursuant to a reservation for Daily Area. The Transmission Customer must delivery, shall not exceed the rate Schedule 7—Long-Term Firm and either purchase this service from the specified in section (2) above times the Short-Term Firm Point-to-Point Transmission Provider or make highest amount in kilowatts of Reserved alternative comparable arrangements, Transmission Service Capacity in any day during such week. which may include use of non- The Transmission Customer shall (4) Hourly delivery: The basic charge generation resources capable of compensate the Transmission Provider shall be that agreed upon by the Parties providing this service, to satisfy its each month for Reserved Capacity at the at the time this service is reserved and Generator Imbalance Service obligation. sum of the applicable charges set forth in no event shall exceed $lll/MWH. To the extent the Control Area operator below: The total demand charge in any day, performs this service for the (1) Yearly delivery: one-twelfth of the pursuant to a reservation for Hourly Transmission Provider, charges to the demand charge of $lll/KW of delivery, shall not exceed the rate Transmission Customer are to reflect Reserved Capacity per year. specified in section (3) above times the only a pass-through of the costs charged (2) Monthly delivery: $lll/KW of highest amount in kilowatts of Reserved to the Transmission Provider by that Reserved Capacity per month. Capacity in any hour during such day. Control Area Operator. The (3) Weekly delivery: $lll/KW of In addition, the total demand charge in Transmission Provider may charge a Reserved Capacity per week. any week, pursuant to a reservation for Transmission Customer a penalty for (4) Daily delivery: $lll/KW of Hourly or Daily delivery, shall not either hourly generator imbalances Reserved Capacity per day. exceed the rate specified in section (2) under this Schedule or a penalty for The total demand charge in any week, above times the highest amount in hourly energy imbalances under pursuant to a reservation for Daily kilowatts of Reserved Capacity in any Schedule 4 for imbalances occurring delivery, shall not exceed the rate hour during such week. during the same hour, but not both specified in section (3) above times the (5) Discounts: Three principal unless the imbalances aggravate rather highest amount in kilowatts of Reserved requirements apply to discounts for than offset each other. Capacity in any day during such week. transmission service as follows (1) Any The Transmission Provider shall (5) Discounts: Three principal offer of a discount made by the establish charges for generator requirements apply to discounts for Transmission Provider must be imbalance based on the deviation bands transmission service as follows (1) Any announced to all Eligible Customers as follows: (i) Deviations within +/¥1.5 offer of a discount made by the solely by posting on the OASIS, (2) any percent (with a minimum of 2 MW) of Transmission Provider must be customer-initiated requests for the scheduled transaction to be applied announced to all Eligible Customers discounts (including requests for use by hourly to any generator imbalance that solely by posting on the OASIS, (2) any one’s wholesale merchant or an occurs as a result of the Transmission customer-initiated requests for Affiliate’s use) must occur solely by Customer’s scheduled transaction(s) discounts (including requests for use by posting on the OASIS, and (3) once a will be netted on a monthly basis and one’s wholesale merchant or an discount is negotiated, details must be settled financially, at the end of each Affiliate’s use) must occur solely by immediately posted on the OASIS. For month, at 100 percent of incremental or posting on the OASIS, and (3) once a any discount agreed upon for service on decremental cost, (ii) deviations greater discount is negotiated, details must be a path, from point(s) of receipt to than +/¥1.5 percent up to 7.5 percent immediately posted on the OASIS. For point(s) of delivery, the Transmission (or greater than 2 MW up to 10 MW) of

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the scheduled transaction to be applied Application for Firm Point-To-Point lllllllllllllllllll hourly to any generator imbalance that Transmission Service under the Tariff. 3.0 Point(s) of Receipt: lllllll occurs as a result of the Transmission 3.0 The Transmission Customer has Delivering Party: llllllllll Customer’s scheduled transaction(s) provided to the Transmission Provider 4.0 Point(s) of Delivery: llllll will be settled financially, at the end of an Application deposit in accordance Receiving Party: llllllllll each month, at 110 percent of with the provisions of Section 17.3 of 5.0 Maximum amount of capacity and incremental cost or 90 percent of the Tariff. energy to be transmitted (Reserved Ca- decremental cost, and (iii) deviations 4.0 Service under this agreement shall pacity): llllllllllllll greater than +/¥7.5 percent (or 10 MW) commence on the later of (l) the 6.0 Designation of party(ies) subject to of the scheduled transaction to be requested service commencement date, reciprocal service obligation: applied hourly to any generator or (2) the date on which construction of lllllllllllllllllll imbalance that occurs as a result of the any Direct Assignment Facilities and/or lllllllllllllllllll Transmission Customer’s scheduled Network Upgrades are completed, or (3) lllllllllllllllllll transaction(s) will be settled at 125 such other date as it is permitted to 7.0 Name(s) of any Intervening percent of incremental cost or 75 become effective by the Commission. Systems providing transmission service: percent of decremental cost, except that Service under this agreement shall lllllllllllllllllll an intermittent resource will be exempt terminate on such date as mutually lllllllllllllllllll agreed upon by the parties. from this deviation band and will pay 8.0 Service under this Agreement may the deviation band charges for all 5.0 The Transmission Provider agrees to provide and the Transmission be subject to some combination of the deviations greater than the larger of 1.5 charges detailed below. (The percent or 2 MW. An intermittent Customer agrees to take and pay for Firm Point-To-Point Transmission appropriate charges for individual resource, for the limited purpose of this transactions will be determined in Schedule is an electric generator that is Service in accordance with the provisions of Part II of the Tariff and accordance with the terms and not dispatchable and cannot store its conditions of the Tariff.) fuel source and therefore cannot this Service Agreement. 6.0 Any notice or request made to or 8.1 Transmission Charge: llllll respond to changes in system demand 8.2 System Impact and/or Facilities or respond to transmission security by either Party regarding this Service Agreement shall be made to the Study Charge(s): llllllllll constraints. lllllllllllllllllll Notwithstanding the foregoing, representative of the other Party as indicated below. lllllllllllllllllll deviations from scheduled transactions 8.3 Direct Assignment Facilities in order to respond to directives by the Transmission Provider: Charge: llllllllllllll Transmission Provider, a balancing lllllllllllllllllll lllllllllllllllllll authority, or a reliability coordinator lllllllllllllllllll 8.4 Ancillary Services Charges: lll shall not be subject to the deviation lllllllllllllllllll lllllllllllllllllll bands identified above and, instead, lllllllllllllllllll shall be settled financially, at the end of Transmission Customer: lllllllllllllllllll the month, at 100 percent of lllllllllllllllllll lllllllllllllllllll incremental and decremental cost. Such lllllllllllllllllll lllllllllllllllllll directives may include instructions to lllllllllllllllllll lllllllllllllllllll correct frequency decay, respond to a reserve sharing event, or change output 7.0 The Tariff is incorporated herein Attachment A–1—Form of Service to relieve congestion. and made a part hereof. Agreement for the Resale, In witness whereof, the Parties have Reassignment or Transfer of Point-To- For purposes of this Schedule, caused this Service Agreement to be Point Transmission Service incremental cost and decremental cost executed by their respective authorized represent the Transmission Provider’s officials. 1.0 This Service Agreement, dated as actual average hourly cost of the last 10 of llllll, is entered into, by and MW dispatched for any purpose, e.g., to Transmission Provider: between llllll (the Transmission supply the Transmission Provider’s By: llllllllllllllll Provider), and llllll (the Native Load Customers, correct Name lllllllllllll Assignee). imbalances, or make off-system sales, Title llllllllllllllll 2.0 The Assignee has been determined based on the replacement cost of fuel, Date llllllllllllllll by the Transmission Provider to be an unit heat rates, start-up costs (including Eligible Customer under the Tariff any commitment and redispatch costs), Transmission Customer: pursuant to which the transmission incremental operation and maintenance By: llllllllllllllll service rights to be transferred were costs, and purchased and interchange Name lllllllllllll originally obtained. power costs and taxes, as applicable. Title llllllllllllllll 3.0 The terms and conditions for the transaction entered into under this Attachment A—Form of Service Date llllllllllllllll Service Agreement shall be subject to Agreement for Firm Point-To-Point Specifications for Long-Term Firm the terms and conditions of Part II of the Transmission Service Point-To-Point Transmission Service Transmission Provider’s Tariff, except 1.0 This Service Agreement, dated as 1.0 Term of Transaction: llllll for those terms and conditions of llllll, is entered into, by and Start Date: lllllllllllll negotiated by the Reseller of the between llllll (the Transmission Termination Date: llllllllll reassigned transmission capacity Provider), and llllll 2.0 Description of capacity and energy (pursuant to Section 23.1 of this Tariff) (‘‘Transmission Customer’’). to be transmitted by Transmission and the Assignee, to include: contract 2.0 The Transmission Customer has Provider including the electric Control effective and termination dates, the been determined by the Transmission Area in which the transaction amount of reassigned capacity or Provider to have a Completed originates. energy, point(s) of receipt and delivery.

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Changes by the Assignee to the lllllllllllllllllll representative of the other Party as Reseller’s Points of Receipt and Points lllllllllllllllllll indicated below. of Delivery will be subject to the 7.0 Name(s) of any Intervening Systems Transmission Provider: provisions of Section 23.2 of this Tariff. providing transmission service: 4.0 The Transmission Provider shall lllllllllllllllllll lllllllllllllllllll credit the Reseller for the price reflected 8.0 Service under this Agreement may lllllllllllllllllll in the Assignee’s Service Agreement or be subject to some combination of the lllllllllllllllllll charges detailed below. (The the associated OASIS schedule. Transmission Customer: 5.0 Any notice or request made to or appropriate charges for individual by either Party regarding this Service transactions will be determined in lllllllllllllllllll Agreement shall be made to the accordance with the terms and lllllllllllllllllll representative of the other Party as conditions of the Tariff.) lllllllllllllllllll indicated below. 8.1 Transmission Charge: llllll 7.0 The Tariff is incorporated herein and made a part hereof. Transmission Provider: lllllllllllllllllll 8.2 System Impact and/or Facilities In witness whereof, the Parties have lllllllllllllllllll Study Charge(s): caused this Service Agreement to be lllllllllllllllllll lllllllllllllllllll executed by their respective authorized lllllllllllllllllll lllllllllllllllllll officials. Assignee: 8.3 Direct Assignment Facilities Transmission Provider: Charge: lllllllllllllllllll llllllllllllllll lllllllllllllllllll By: lllllllllllllllllll lll Name lllllllllllllllllll 8.4 Ancillary Services Charges: lllllllllllllllllll lllllllllllllllllll 6.0 The Tariff is incorporated herein Title lllllllllllllllllll and made a part hereof. lllllllllllllllllll lllllllllllllllllll In witness whereof, the Parties have Date lllllllllllllllllll caused this Service Agreement to be lllllllllllllllllll lllllllllllllllllll executed by their respective authorized lllllllllllllllllll Transmission Customer: officials. 9.0 Name of Reseller of the reassigned By: llllllllllllllll Transmission Provider: transmission capacity: Name By: llllllllllllllll lllllllllllllllllll lllllllllllllllllll Name Attachment B—Form of Service Title lllllllllllllllllll lllllllllllllllllll Agreement for Non-Firm Point-To-Point Date Title Transmission Service lllllllllllllllllll lllllllllllllllllll Date 1.0 This Service Agreement, dated as of ll, is entered into, by and between Attachment C—Methodology To Assess Assignee: ll (the Transmission Provider), and Available Transfer Capability By: llllllllllllllll ll (Transmission Customer). The Transmission Provider must Name 2.0 The Transmission Customer has include, at a minimum, the following lllllllllllllllllll been determined by the Transmission information concerning its ATC Title Provider to be a Transmission Customer calculation methodology: lllllllllllllllllll under Part II of the Tariff and has filed (1) A detailed description of the Date a Completed Application for Non-Firm specific mathematical algorithm used to Point-To-Point Transmission Service in calculate firm and non-firm ATC (and Specifications For The Resale, accordance with Section 18.2 of the AFC, if applicable) for its scheduling Reassignment Or Transfer of Long-Term Tariff. horizon (same day and real-time), Firm Point-To-Point Transmission 3.0 Service under this Agreement shall operating horizon (day ahead and pre- Service be provided by the Transmission schedule) and planning horizon (beyond 1.0 Term of Transaction: lllllll Provider upon request by an authorized the operating horizon); Start Date: lllllllllllll representative of the Transmission (2) A process flow diagram that Termination Date: llllllllll Customer. illustrates the various steps through 2.0 Description of capacity and energy 4.0 The Transmission Customer agrees which ATC/AFC is calculated; and to be transmitted by Transmission to supply information the Transmission (3) A detailed explanation of how Provider including the electric Control Provider deems reasonably necessary in each of the ATC components is Area in which the transaction accordance with Good Utility Practice calculated for both the operating and originates. in order for it to provide the requested planning horizons. service. (a) For TTC, a Transmission Provider lllllllllllllllllll 5.0 The Transmission Provider agrees shall: (i) Explain its definition of TTC; llllllll 3.0 Point(s) of Receipt: to provide and the Transmission (ii) explain its TTC calculation llllllllll Delivering Party: Customer agrees to take and pay for methodology; (iii) list the databases lllllll 4.0 Point(s) of Delivery: Non-Firm Point-To-Point Transmission used in its TTC assessments; and (iv) llllllllll Receiving Party: Service in accordance with the explain the assumptions used in its TTC 5.0 Maximum amount of reassigned ca- provisions of Part II of the Tariff and assessments regarding load levels, pacity: lllllllllllllll this Service Agreement. generation dispatch, and modeling of 6.0 Designation of party(ies) subject to 6.0 Any notice or request made to or planned and contingency outages. reciprocal service obligation: by either Party regarding this Service (b) For ETC, a Transmission Provider lllllllllllllllllll Agreement shall be made to the shall explain: (i) Its definition of ETC;

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(ii) the calculation methodology used to (g) The Transmission Provider shall Transmission Customers and other determine the transmission capacity to explain its procedures for allowing the interested parties, including the be set aside for native load (including use of CBM during emergencies (with an coordination of such planning with network load), and non-OATT explanation of what constitutes an interconnected systems within its customers (including, if applicable, an emergency, the entities that are region, to ensure that the Transmission explanation of assumptions on the permitted to use CBM during System is planned to meet the needs of selection of generators that are modeled emergencies and the procedures which both the Transmission Provider and its in service); (iii) how point-to-point must be followed by the transmission Network and Firm Point-to-Point transmission service requests are providers’ merchant function and other Transmission Customers on a incorporated; (iv) how rollover rights load-serving entities when they need to comparable and nondiscriminatory are accounted for; (v) its processes for access CBM). If the Transmission basis. The Transmission Provider’s ensuring that non-firm capacity is Provider’s practice is not to set aside coordinated, open and transparent released properly (e.g., when real-time transfer capability for CBM, it shall so planning process shall be provided as schedules replace the associated state. an attachment to the Transmission transmission service requests in its real- Provider’s Tariff. Attachment D—Methodology for time calculations); and (vi) describe the The Transmission Provider’s planning Completing a System Impact Study step-by-step modeling study process shall satisfy the following nine methodology and criteria for adding or To be filed by the Transmission principles, as defined in the Final Rule eliminating flowgates (permanent and Provider in Docket No. RM05–25–000: temporary). Attachment E—Index of Point-To-Point Coordination, openness, transparency, (c) If a Transmission Provider uses an Transmission Service Customers information exchange, comparability, AFC methodology to calculate ATC, it dispute resolution, regional shall: (i) Explain its definition of AFC; lllllllllllllllllll participation, economic planning (ii) explain its AFC calculation Customer studies, and cost allocation for new methodology; (iii) explain its process for projects. The planning process shall also converting AFC into ATC for OASIS Date of Service Agreement llllll provide a mechanism for the recovery posting; (iv) list the databases used in its Attachment F—Service Agreement for and allocation of planning costs AFC assessments; and (v) explain the Network Integration Transmission consistent with the Final Rule in Docket assumptions used in its AFC Service No. RM05–25–000. assessments regarding load levels, The Transmission Provider’s planning generation dispatch, and modeling of To be filed by the Transmission process must include sufficient detail to planned and contingency outages. Provider enable Transmission Customers to (d) For TRM, a Transmission Provider Attachment G— Network Operating understand: shall explain: (i) Its definition of TRM; Agreement (i) The process for consulting with (ii) its TRM calculation methodology To be filed by the Transmission customers and neighboring transmission (e.g., its assumptions on load forecast Provider providers; errors, forecast errors in system topology (ii) The notice procedures and or distribution factors and loop flow Attachment H—Annual Transmission anticipated frequency of meetings; sources); (iii) the databases used in its Revenue Requirement for Network (iii) The methodology, criteria, and TRM assessments; (iv) the conditions Integration Transmission Service processes used to develop transmission under which the Transmission Provider 1. The Annual Transmission Revenue plans; uses TRM. A Transmission Provider that Requirement for purposes of the Net- (iv) The method of disclosure of does not set aside transfer capability for work Integration Transmission Service criteria, assumptions and data TRM must so state. shall be llllllllllllll underlying transmission system plans; (e) For CBM, the Transmission 2. The amount in (1) shall be effective (v) The obligations of and methods for Provider shall state a specific and self- until amended by the Transmission customers to submit data to the contained narrative explanation of its Provider or modified by the transmission provider; CBM practice, including: (i) An Commission. (vi) The dispute resolution process; identification of the entity who (vii) The transmission provider’s performs the resource adequacy analysis Attachment I—Index of Network study procedures for economic upgrades for CBM determination; (ii) the Integration Transmission Service to address congestion or the integration methodology used to perform generation Customers of new resources; and reliability assessments (e.g., lllllllllllllllllll (viii) The relevant cost allocation probabilistic or deterministic); (iii) an Customer procedures or principles. explanation of whether the assessment Attachment L—Creditworthiness method reflects a specific regional Date of Service Agreement llllll practice; (iv) the assumptions used in Procedures this assessment; and (v) the basis for the Attachment J—Procedures for For the purpose of determining the selection of paths on which CBM is set Addressing Parallel Flows ability of the Transmission Customer to aside. To be filed by the Transmission meet its obligations related to service (f) In addition, for CBM, a Provider hereunder, the Transmission Provider Transmission Provider shall: (i) Explain may require reasonable credit review its definition of CBM; (ii) list the Attachment K—Transmission Planning procedures. This review shall be made databases used in its CBM calculations; Process in accordance with standard and (iii) demonstrate that there is no The Transmission Provider shall commercial practices and must specify double-counting of contingency outages establish a coordinated, open and quantitative and qualitative criteria to when performing CBM, TTC, and TRM transparent planning process with its determine the level of secured and calculations. Network and Firm Point-to-Point unsecured credit.

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The Transmission Provider may protects the Transmission Provider changes in credit levels and collateral require the Transmission Customer to against the risk of non-payment. requirements; provide and maintain in effect during Additionally, the Transmission (4) A procedure for providing the term of the Service Agreement, an Provider must include, at a minimum, customers, upon request, a written unconditional and irrevocable letter of the following information concerning its explanation for any change in credit levels or collateral requirements; credit as security to meet its creditworthiness procedures: responsibilities and obligations under (5) A reasonable opportunity to (1) A summary of the procedure for the Tariff, or an alternative form of contest determinations of credit levels determining the level of secured and security proposed by the Transmission or collateral requirements; and unsecured credit; Customer and acceptable to the (6) A reasonable opportunity to post Transmission Provider and consistent (2) A list of the acceptable types of additional collateral, including curing with commercial practices established collateral/security; any non-creditworthy determination. by the Uniform Commercial Code that (3) A procedure for providing [FR Doc. E8–14948 Filed 7–7–08; 8:45 am] customers with reasonable notice of BILLING CODE 6717–01–P

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Part III

Department of Labor Employee Benefits Security Administration

Proposed Exemptions Involving; D–11082 & D–11109—Deutsche Bank, AG; D– 11263—Banc One Investment Advisors Corporation and J.P. Morgan Investment Management Inc.; D–11449—Pileco, Inc. Employees Profit Sharing Plan; and D– 11460—Mellon Bank N.A.; Notice

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DEPARTMENT OF LABOR comments received will be available for Section I. Covered Transactions public inspection in the Public If the proposed exemption is granted, Employee Benefits Security Documents Room of the Employee the restrictions of sections 406(a)(1)(A) Administration Benefits Security Administration, U.S. through (D) and 406(b)(1) and (b)(2) of [Application Nos. D–11082 & D–11109; D– Department of Labor, Room N–1513, the Act, and the taxes imposed by 11263; D–11449; and D–11460] 200 Constitution Avenue, NW., section 4975(a) and (b) of Code, by Washington, DC 20210. reason of section 4975(c)(1)(A) through Proposed Exemptions Involving; D– Notice to Interested Persons (E) of the Code, shall not apply to the 11082 & D–11109—Deutsche Bank, following foreign exchange transactions AG; D–11263—Banc One Investment Notice of the proposed exemption involving less developed currencies, Advisors Corporation and J.P. Morgan will be provided to all interested that are executed by Deutsche Bank or Investment Management Inc.; D– persons in the manner agreed upon by a current or future affiliate (domestic or 11449—Pileco, Inc. Employees Profit the applicant and the Department foreign) thereof that is a bank or broker- Sharing Plan; and D–11460—Mellon within 15 days of the date of publication dealer, acting as a local subcustodian in Bank N.A. in the Federal Register. Such notice connection with a determination by AGENCY: Employee Benefits Security shall include a copy of the notice of Deutsche Bank or its affiliates to invest Administration, Labor. proposed exemption as published in the the assets of a client plan, an in-house Federal Register and shall inform ACTION: Notice of Proposed Exemption. plan whose assets are invested in a interested persons of their right to separately managed account with SUMMARY: This document contains a comment and to request a hearing Deutsche Bank, or a pooled fund, in notice of pendency before the (where appropriate). foreign securities, if the conditions set Department of Labor (the Department) of SUPPLEMENTARY INFORMATION: The forth in Sections II, III and IV below are proposed exemptions from certain of the proposed exemption was requested in met with respect to: prohibited transaction restrictions of the applications filed pursuant to section (1) A trade-related currency Employee Retirement Income Security 408(a) of the Act and/or section conversion, or Act of 1974 (ERISA or the Act) and/or 4975(c)(2) of the Code, and in (2) An income item conversion. the Internal Revenue Code of 1986 (the accordance with procedures set forth in Code). Section II. General Conditions 29 CFR Part 2570, Subpart B (55 FR (a) At the time the foreign exchange Written Comments and Hearing 32836, 32847, August 10, 1990). transaction is entered into, the terms of Requests Effective December 31, 1978, section the transaction are not less favorable to 102 of Reorganization Plan No. 4 of All interested persons are invited to the client plan, in-house plan or pooled 1978, 5 U.S.C. App. 1 (1996), transferred submit written comments or requests for fund than the terms generally available the authority of the Secretary of the a hearing on the pending exemptions, in a comparable arm’s length foreign Treasury to issue exemptions of the type unless otherwise stated in the Notice of exchange transaction between unrelated requested to the Secretary of Labor. Proposed Exemption, within 45 days parties. Therefore, this notice of proposed from the date of publication of this (b) The exchange rate used for a exemption are issued solely by the Federal Register Notice. Comments and particular foreign exchange transaction Department. requests for a hearing should state: (1) does not deviate by more than 3 percent The name, address, and telephone The application contains (above or below) the interbank bid and number of the person making the representations with regard to the asked rates for such currency at the time comment or request, and (2) the nature proposed exemption which is of the transaction as displayed on an of the person’s interest in the exemption summarized below. Interested persons independent, nationally-recognized and the manner in which the person are referred to the application on file service that reports rates of exchange in would be adversely affected by the with the Department for a complete the foreign currency market for such exemption. A request for a hearing must statement of the facts and currency. also state the issues to be addressed and representations. (c) The covered transactions are include a general description of the Deutsche Bank, AG (Deutsche Bank or limited to those less developed evidence to be presented at the hearing. the Applicant) currencies in which a transaction is ADDRESSES: All written comments and executed with Deutsche Bank or its requests for a hearing (at least three Located in Germany, with Affiliates in affiliate acting as local subcustodian at copies) should be sent to the Employee New York, NY and Other Locations. the direction of the global custodian Benefits Security Administration [Application Nos. D–11082 and D–11109] because the global custodian either does (EBSA), Office of Exemption not make a market in such currency, or Determinations, Room N–5700, U.S. Proposed Exemption otherwise determines to execute with Department of Labor, 200 Constitution the local subcustodian because of The Department is considering Avenue, NW., Washington, DC 20210. market conditions, market restrictions, granting an exemption under the Attention: Application No. ll, stated illiquidity of the currency or similar authority of section 408(a) of the Act (or in each Notice of Proposed Exemption. exigencies. ERISA) and section 4975(c)(2) of the Interested persons are also invited to (d) Where a market is served by more Code, and in accordance with the submit comments and/or hearing than one subcustodian, Deutsche Bank, procedures set forth in 29 CFR Part requests to EBSA via e-mail or FAX. as asset manager, has no decision 2570, Subpart B (55 FR 32836, 32847, Any such comments or requests should making authority or role, or otherwise August 10, 1990).1 be sent either by e-mail to: makes no recommendations with [email protected], or by FAX to respect to the global custodian’s 1 For purposes of this proposed exemption, (202) 219–0204 by the end of the references to specific provisions of Title I of the selection of the subcustodian. scheduled comment period. The Act, unless otherwise specified, refer also to the (e) The foreign exchange transaction application for exemption and the corresponding provisions of the Code. is executed by Deutsche Bank or its

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affiliate thereof acting as subcustodian of such foreign exchange transactions to custodian considers in its selection of a at the direction of the global custodian determine whether the covered subcustodian. in the ordinary course of its business as transactions have been executed in (3) Notice that such foreign exchange global custodian. accordance with the terms of this transaction may be executed by (f) The decision to select Deutsche exemption. Such sample must include a Deutsche Bank or its affiliate as Bank or its affiliate as the subcustodian sufficient number of transactions to subcustodian, at the direction of a global is made by a global custodian which is ensure that each affected currency is custodian. unrelated to Deutsche Bank or any tested. (4) A list of the markets in which affiliate thereof. (2) Deutsche Bank or its affiliate plans or pooled funds may invest where (g) The selection of Deutsche Bank or provides such individual with the Deutsche Bank or its affiliate serves as its affiliate as subcustodian and any records (which may be provided a subcustodian. foreign exchange transactions executed electronically) described in Section (5) A list of the markets where by Deutsche Bank or its affiliate at the IV(a)(1)-(7), on an annual basis. currency transactions are executed by a direction of the global custodian are not (3) Such individual notifies Deutsche subcustodian, to the extent known. (6) Notice that Deutsche Bank or its part of any agreement, arrangement or Bank or its affiliate, the independent affiliate maintains records (described in understanding, written or otherwise, fiduciary of a client plan, the Section IV), and such records are designed to benefit Deutsche Bank, its independent fiduciary of an in-house reasonably available at their customary affiliate or any other party in interest. plan, the independent fiduciary of a location for examination in the U.S., (h) Deutsche Bank or its affiliate large pooled fund, the independent during normal business hours, by the appoints an independent fiduciary to fiduciary of an unrelated pooled fund, responsible reviewing individual, the represent the interests of (1) an in-house or the receiving fiduciary of a small independent fiduciary of a client plan, plan, or (2) plans investing in a large pooled fund, of its findings in a written the independent fiduciary of an in- pooled fund. report within 90 days after the period to house plan, the independent fiduciary (i) The decision to invest in a market which the periodic review relates. Such of a large pooled fund, the independent and to select Deutsche Bank or its report describes the steps performed by fiduciary of an unrelated pooled fund, affiliate as asset manager is part of an such individual during the course of the or the receiving fiduciary of a small investment strategy that is adopted by review, the level of compliance by pooled fund, any participant or an independent fiduciary of a client Deutsche Bank or its affiliate with the beneficiary of such plan or pooled fund, plan, the independent fiduciary of an terms and conditions of the exemption, or any duly authorized employee or in-house plan, the independent and any specific instances of non- representative of such participant or fiduciary of a large pooled fund, or the compliance by Deutsche Bank or its independent fiduciary of an unrelated beneficiary. affiliate with the terms and conditions (7) Copies of the notice of proposed pooled fund. of the exemption. (j) On an annual basis, the percentage exemption and the grant of final of assets of in-house plans and pooled Section III. Notice Requirements exemption with respect to the subject funds for which Deutsche Bank and/or transactions. (a) At the time Deutsche Bank or its (b) If the independent fiduciary fails its affiliates select the global custodian affiliate is retained as asset manager, or represent less than 20 percent of the to object in writing to Deutsche Bank or prior to the initial investment of the its affiliate within 30 days following total assets under custody by any such plan’s assets or pooled fund’s assets in global custodian. receipt of the information described in any foreign investments that may section III(a) by such fiduciary, then (k) Foreign affiliates of Deutsche Bank require the execution of a foreign who engage in the covered such fiduciary’s authorization of the exchange transaction by Deutsche Bank arrangement contemplated under this transactions— or its affiliate as subcustodian, Deutsche (1) Agree to submit to the jurisdiction exemption shall be presumed. Bank or its affiliate provides the of the United States; (c) Deutsche Bank or its affiliate shall independent fiduciary of a client plan, (2) Agree to appoint an agent for provide notification of any changes to the independent fiduciary of an in- service of process in the United States, the information required by Section III, house plan, the independent fiduciary which may be an affiliate (the Process including, but not limited to, the of a large pooled fund, the independent Agent); situation where Deutsche Bank or its (3) Consent to service of process on fiduciary of an unrelated pooled fund, affiliate replaces the global custodian the Process Agent; or the receiving fiduciary of a small with another independent entity or (4) Agree that they may be sued in the pooled fund, a written notice (which where there are changes in the markets United may be effected electronically) that in which currency transactions are States Courts in connection with the includes the following: executed by the subcustodian. If the covered transactions described in this (1) The reasons why Deutsche Bank or independent fiduciary fails to object in proposed exemption; its affiliate may consider a particular writing to Deutsche Bank or its affiliate (5) Agree that any judgment on behalf market to be an appropriate investment within 30 days following disclosure of of a plan or pooled fund may be for the plan or pooled fund. such changes, such fiduciary’s approval collected in the United States from (2) The factors considered by of these changes shall be presumed. Deutsche Bank; and Deutsche Bank or its affiliate in its (6) Agree to comply with, and be selection of global custodian (if Section IV. Recordkeeping subject to, all relevant provisions of the applicable) including: (i) the identity of Requirements Act. the global custodian; and (ii) a summary (a) Deutsche Bank or its affiliate (l) With respect to the covered of the global custodian’s policies and maintains, or causes to be maintained, transactions— procedures regarding the handling of for a period of six years from the date (1) Deutsche Bank or its affiliate foreign exchange transactions for plans of the covered transactions, the designates an individual responsible for or pooled funds with respect to which following records, as well as any records periodically (but no less frequently than Deutsche Bank or its affiliate is a necessary to enable the persons on an annual basis) reviewing a sample fiduciary and the factors that the global described in paragraph (c) of this

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Section IV, to determine whether the (2) None of the persons described house plan; or (4) Deutsche Bank or its conditions of this exemption have been above in paragraphs (ii) and (iii) of this affiliate in the case of a pooled fund met: paragraph (c)(1) of this Section IV shall established by Deutsche Bank or an (1) The account name, be authorized to examine trade secrets affiliate, for the purpose of holding and (2) The foreign exchange transaction of Deutsche Bank, or any commercial or safeguarding all assets of the client plan, execution date, financial information, which is in-house plan, or pooled fund, (3) The exchange rate, privileged or confidential. physically or through a depository, (4) The high and low on Reuters or through its branches or through its similar independent service on the date Section V. Definitions subcustodian network. of the transaction, For purposes of this proposed (g) The term ‘‘subcustodian’’ means a (5) The identity of the foreign exemption, bank or broker-dealer, selected by a currency sold or purchased, (a) The term ‘‘Deutsche Bank’’ means global custodian, to hold and safekeep (6) The amount of foreign currency Deutsche Bank AG. designated assets of the plan or pooled sold or purchased, (b) An ‘‘affiliate’’ of Deutsche Bank fund at securities depositories, foreign (7) The amount of U.S. dollars means any domestic or foreign bank or clearing agencies or other entities which exchanged, where the exchange is broker-dealer directly or indirectly act as securities depositories, and to between foreign currencies and U.S. through one or more intermediaries, execute foreign exchange transactions dollars or the amount of foreign controlling, controlled by, or under and income item conversions. A currency exchanged, where the common control with Deutsche Bank; subcustodian has no contractual exchange is between two foreign (c) The term ‘‘control’’ means the relationship with the global custodian’s currencies, and power to exercise a controlling clients, but only with the global (8) The annual report described in influence over the management or custodian. Section II(l). policies of a person other than an (h) The term ‘‘responsible reviewing (b) The following are exceptions to individual. individual’’ means a senior official paragraph (a) of this Section IV: (d) The term ‘‘bank’’ means a bank as appointed by Deutsche Bank who has at (1) If the records necessary to enable defined in section 202(a)(2) of the least 10 years experience with the the persons described in paragraph (c) Investment Advisers Act of 1940 (the fiduciary responsibility provisions of to determine whether the conditions of Investment Advisers Act), or an the Act, and appropriate compliance the exemption have been met are lost or institution that has substantially similar training. Such person is appointed by destroyed, due to circumstances beyond powers to a bank defined in section Deutsche Bank to review a sample of the the control of Deutsche Bank, then no 202(a) of the Investment Advisers Act, covered transactions periodically, but prohibited transaction will be and is — no less frequently than on an annual considered to have occurred solely on (i) Supervised by the United States or basis, in order to ensure compliance the basis of the unavailability of those a State; with the terms of the exemption on records; and (ii) Supervised and examined by the behalf of a client plan an in-house plan, (2) No party in interest, other than German banking authorities, or or a pooled fund. Deutsche Bank, shall be subject to the monitored and controlled pursuant to (i) The term ‘‘in-house plan’’ means a civil penalty that may be assessed under the statutory and regulatory standards of plan sponsored by Deutsche Bank or section 502(i) of the Act or to the taxes German law; or any person that directly or indirectly, imposed by section 4975(a) and (b) of (iii) Subject to regulation and through one or more intermediaries, the Code if the records are not oversight by governmental entities that controls or is controlled by, or is under maintained or are not available for are substantially similar to the common control with, Deutsche Bank. examination as required by paragraph regulatory oversight of banks present in (j) The term ‘‘client plan’’ means an (c) below. the United States. employee benefit plan, other than a plan (c)(1) Except as provided in paragraph (e) The term ‘‘broker-dealer’’ means a sponsored by Deutsche Bank, as (c)(2) of this Section IV and broker-dealer registered under the described in section 3(3) of the Act or notwithstanding the provisions of Securities Exchange Act of 1934, or is section 4975(e)(1) of the Code with subsections (a)(2) and (b) of section 504 engaged in the business of effecting respect to which Deutsche Bank or its of the Act, the records referred to above transactions in securities for the account affiliate acts as a fiduciary having full in paragraph (a) of this Section IV are of others, and is — investment discretion. unconditionally available for (i) Registered and regulated under the (k) The term ‘‘pooled fund’’ means a examination during normal business relevant securities laws of the United collective investment fund or a pooled hours at their customary location to the States; arrangement established for investment following persons or an authorized (ii) Registered and regulated under the on behalf of two or more unrelated representative thereof: relevant securities laws of Germany; or employee benefit plans by Deutsche (i) Any duly authorized employee or (iii) Registered and regulated under Bank or an affiliate or by a fund sponsor representative of the Department or the the relevant securities laws of a country other than Deutsche Bank or an affiliate Internal Revenue Service (the Service); with securities laws that are for which Deutsche Bank or its affiliate (ii) The independent fiduciary of a substantially similar to the securities acts as fiduciary with full investment client plan, the independent fiduciary of laws governing broker-dealers in the discretion. The assets of a pooled fund an in-house plan, the independent United States. may include the assets of (i) Client fiduciary of a large pooled fund, the (f) The term ‘‘global custodian’’ means plans, (ii) in-house plans of Deutsche independent fiduciary of an unrelated a bank or broker-dealer that is unrelated Bank or an affiliate, (iii) other pooled pooled fund, or the receiving fiduciary to Deutsche Bank or its affiliate, which funds in which Deutsche Bank or an of a small pooled fund, or is selected by (1) The named fiduciary affiliate is not the fund sponsor, and (iv) (iii) Any participant or beneficiary of of a client plan; (2) the sponsor (other other pooled funds in which Deutsche such plans or pooled funds or any duly than Deutsche Bank or its affiliate) of an Bank or an affiliate is the fund sponsor. authorized employee or representative unrelated pooled fund; (3) Deutsche (l) The term ‘‘large pooled fund’’ of such participant or beneficiary. Bank or its affiliate in the case of an in- refers to a pooled fund that is sponsored

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and managed by Deutsche Bank or an services business and significant (r) The term ‘‘foreign exchange’’ affiliate. A large pooled fund may experience in foreign currency trading transaction means the exchange of the include the assets of (i) Client plans, (ii) and pricing who certifies that the gross currency of one nation for the currency in-house plans of Deutsche Bank or an income received from Deutsche Bank of another nation. affiliate, (iii) other pooled funds in and its affiliates for the current year (s) The term ‘‘less developed which Deutsche Bank or an affiliate is does not exceed 5% of such fiduciary’s currencies’’ means those currencies in not the fund sponsor, and (iv) other gross income from all services for the which the global custodian does not pooled funds in which Deutsche Bank prior fiscal year. The independent make a market at the time of the or an affiliate is the fund sponsor. In a fiduciary represents that such fiduciary transaction and in which the global large pooled fund, the total invested is aware of its ERISA duties and custodian determines to purchase from assets of an in-house plan (or in-house responsibilities in acting as a fiduciary or sell to the plan’s or pooled fund’s plans), if aggregated (whether invested with respect to an in-house plan and the local subcustodian on behalf of a plan directly or indirectly through another covered transactions. or pooled fund because the currency is pooled fund), represent more than 20% (3) Notwithstanding anything to the difficult to trade, undeveloped or the of the total invested assets of such fund. contrary in this Section V(o), a plan subject of local government restrictions, Also, in a large pooled fund, Deutsche fiduciary is not independent if— or because of the volatility or lack of Bank will appoint an independent (i) Such fiduciary directly or liquidity in the market at the time of the fiduciary, as described in Section V(o) indirectly controls, is controlled by, or transaction. The term ‘‘less developed is under common control with Deutsche below, to represent the interests of all currencies’’ does not include the Bank, other than described herein; plans investing in such fund. following currencies: the Euro; the (m) The term ‘‘small pooled fund’’ (ii) Such fiduciary directly or indirectly receives any compensation or British pound; the Swiss franc, the refers to a pooled fund that is sponsored Canadian dollar; or the Japanese yen. and managed by Deutsche Bank or an other consideration from Deutsche Bank affiliate. A small pooled fund may for his own personal account in (t) The term ‘‘trade-related currency include the assets of (i) Client plans, (ii) connection with any transaction conversion’’ means the conversion of in-house plans of Deutsche Bank or an described in this exemption in excess of trade-related items (i.e., amounts affiliate, (iii) other pooled funds in the 5 percent gross income limitation set necessary for purchases or proceeds which Deutsche Bank or an affiliate is forth in Section V(o)(2) above; from sales) into foreign currency or into not the fund sponsor, and (iv) other (iii) Any officer, director or highly U.S. dollars in order to permit purchase pooled funds in which Deutsche Bank compensated employee (within the transactions to settle, and to permit or an affiliate is the fund sponsor. In a meaning of section 4975(e)(2)(H) of the proceeds of sales to be deployed in small pooled fund, the total invested Code) of Deutsche Bank or an affiliate other investments or to be used to make assets of an in-house plan (or in-house responsible for the transactions distributions. plans), if aggregated (whether invested described in Section I is an officer, (u) The term ‘‘income item directly or through another pooled director or highly compensated conversions’’ means the conversion of fund), represent less than 20% of the employee (within the meaning of income items (e.g., interest, dividends, total invested assets of such fund. section 4975(e)(2)(H) of the Code) of the tax reclaims or other distributions) (n) The term ‘‘unrelated pooled fund’’ client plan sponsor, the sponsor of an denominated in a foreign currency into refers to a pooled fund that is not unrelated pooled fund, or of the U.S. dollars or another foreign currency. sponsored by Deutsche Bank or an fiduciary responsible for the decision to Effective Date: If granted, this affiliate, but is managed by either of authorize or terminate authorization for proposed exemption will be effective as these entities. transactions described in Section I. of the date the proposed exemption is (o) The term ‘‘independent fiduciary’’ However, if such individual is a director published in the Federal Register. means — of the client plan sponsor, the sponsor (1) In the case of a client plan or an of an unrelated pooled fund, or of the Summary of Facts and Representations unrelated pooled fund, a plan fiduciary responsible fiduciary, and if he or she Deutsche Bank or the named fiduciary of a pooled fund abstains from participation in (A) the that is unrelated to, and independent of, choice of Deutsche Bank or an affiliate 1. Deutsche Bank is a German banking Deutsche Bank and it affiliates. For as the investment manager/adviser for corporation and commercial bank, purposes of this exemption, a plan the client plan or unrelated pooled fund which provides a wide range of services fiduciary will be deemed to be unrelated and (B) the decision to authorize or to various types of entities worldwide. to, and independent of, Deutsche Bank terminate authorization for transactions Deutsche Bank is a financial institution if such fiduciary represents that neither described in Section I, then Section that in 2006 managed approximately such fiduciary, nor any individual V(o)(3)(iii) shall not apply. $716 billion in assets either through responsible for the decision to authorize (p) The term ‘‘officer’’ means a collective trusts, separately managed or terminate authorization for the president, any vice president in charge accounts or mutual funds. Deutsche transactions described in Section I, is an of a principal business unit, division or Bank’s asset management clients officer, director, or highly compensated function (such as sales, administration include a number of employee benefit employee (within the meaning of or finance), or any other officer who plans covered by the Act, either in: section 4975(e)(2)(H) of the Code) of performs a policy-making function for (a) Separately managed accounts, Deutsche Bank and represents that such the entity. where the plan sponsor, and not the fiduciary must advise Deutsche Bank or (q) The term ‘‘receiving fiduciary’’ Applicant selects the global custodian, its affiliate if those facts change, or means a person or entity in a small (b) pooled funds, where the fund (2) In the case of an in-house plan or pooled fund who is designated to sponsor, and not the Applicant selects a large pooled fund, an individual or receive the disclosures described in the global custodian, and (c) pooled company is unrelated and independent Sections III and IV above, for funds where the Applicant selects the of Deutsche Bank and its affiliates if dissemination to the fiduciaries of plans global custodian, or (d) for its own such individual or company has at least or other pooled funds participating in plans, where the Applicant selects the 10 years experience in the financial such small pooled fund. global custodian.

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Regulatory Authority insurance program.3 According to the In addition, the Applicant states there is 2. The Applicant states that it is Applicant, this insurance program is little difficulty, either from a price or a subject to a comprehensive system of maintained by an institution separate settlement perspective, in doing so, with regulatory oversight and a mandatory from Deutsche Bank and is supervised respect to freely traded currencies, such insurance program. With respect to the by the BAFin. The program insures as the British pound, the Euro, and the Japanese yen. The Applicant represents regulatory and supervisory requirements deposits denominated in the currency of a European Economic Area member that in effecting foreign exchange applicable to Deutsche Bank, the state up to the lesser of 90 percent of the transactions in well-developed markets Applicant states that Deutsche Bank, its deposit amount or 20,000 Euros. for an account, the investment manager branches, and its subsidiary banks generally has two options: (a) to send worldwide are subject to regulatory Request for Exemptive Relief the transaction to the account’s global requirements and protections that are, 4. The Applicant seeks an exemption custodian, in which case the qualitatively, at least equal to those to permit plans, either directly or transactions are generally effected at the imposed on U.S.-domiciled banks.2 through pooled arrangements, to engage global custodian’s own proprietary desk Within the United States, the New York in certain trade-related and income- in the U.S. or at the global custodian’s branch of Deutsche Bank and Deutsche related foreign exchange transactions London branch; or (b) to find a Bank Trust Company Americas are through subcustodians selected by counterparty to effect the transaction, regulated and supervised by the New unaffiliated global custodians in other than the account’s global York State Banking Department. In connection with a determination by custodian. addition, certain activities of Deutsche Deutsche Bank and its affiliates to invest 7. The Applicant states that the Bank’s New York branch and Deutsche assets of a client plan, an in-house plan choices differ somewhat with respect to Bank Trust Company Americas (the or a pooled fund in foreign securities. emerging markets, which include much trustee of ERISA-covered bank As described below, in some cases, the of Central and South America, Africa, collective trusts) are regulated and subcustodians selected by such global and Asia.4 According to the Applicant, supervised by the Federal Reserve Bank custodian will be Deutsche Bank and its in markets where currency is hard to of New York. Deutsche Asset current and future affiliates. The trade, undeveloped, or subject to local Management Inc. and Deutsche Applicant notes that the requested restrictions, the investment manager Investment Management Americas Inc. exemption would not apply to foreign still chooses between routing the trade are investment advisers registered under exchange transactions for reasons other to its global custodian, or locating the Investment Advisers Act of 1940 than trade-related currency conversions, another counterparty, if it can find a and supervised by the Securities and or income item conversions. If granted, counterparty with adequate credit and Exchange Commission. With respect to the exemption would be effective as of performance. In many instances, an Deutsche Bank itself, globally, the bank the date the notice of proposed investment manager cannot locate a is regulated and supervised by the exemption is published in the Federal counterparty of its own, and these Bundesanstalt fu¨ r Register. instances generally occur in the same Finanzdienstleistungsaufsicht (the Global Strategy less developed currencies where the BAFin), in cooperation with the global custodian is unable or unwilling Bundesbank. The BAFin is a federal 5. As noted above, Deutsche Bank acts to make a market in that currency and institution with ultimate responsibility as an investment manager to numerous instead will usually rely on a to the German Ministry of Finance. The plans, many of which are managed in a subcustodian in the applicable market, Bundesbank, in turn, is the central bank global strategy. In such strategies, each which may be the Applicant’s affiliate. of the Federal Republic of Germany and time a transaction is entered into, or With respect to the option of locating a part of the European Central Banks. income on held securities is received, a another counterparty, the Applicant 3. The Applicant states that the BAFin foreign exchange transaction is required. states that the investment manager requires that it have procedures for For example, if the investment manager would need to locate a local bank or monitoring and controlling its decides to invest plan assets in a broker-dealer in the applicable market, worldwide activities through the Japanese security, a trade-related open a trading account after implementation of various statutory and currency conversion is required to investigating the bank or broker-dealer’s regulatory standards. Among those convert the plan’s U.S. dollars into the credit, and would then trade directly standards are requirements for adequate amount of Japanese yen required to with that bank or broker-dealer, while internal controls, oversight, purchase the security and settle the relying on the global custodian to settle administration, and financial resources. transaction. Similarly, each time a both the securities transaction and the The BAFin reviews compliance with Japanese fixed income instrument pays foreign exchange transaction. these operational and internal control interest (generally, semiannually or 8. According to the Applicant, in standards through an annual audit quarterly), that payment, which is made markets where the currency is illiquid, performed by the year-end auditor and in yen, will generally be converted back or the penalties for transaction failure through special audits ordered by the to U.S. dollars. are severe, an investment manager BAFin. In addition to the regulatory and 6. The Applicant states that in well- generally does not attempt to locate a supervisory arrangements described developed markets, such as the one counterparty in the local market. Rather, above, the Applicant states that described above, there are many banks the Applicant believes that it is very Deutsche Bank and its foreign branches and broker-dealers with which the often the practice of investment are covered under a mandatory deposit investment manager can effect managers to send foreign exchange transactions involving foreign currency. transactions to the global custodian for 2 In support of this, the Applicant notes that the execution, to obtain more certainty that U.S. Department of Treasury has accorded national 3 The Applicant states that, in addition, Deutsche treatment to German bank branches, and the Bank and its foreign branches are covered by a 4 The list of emerging market currencies may German Ministry of Finance has granted relief to voluntary deposit protection program called the change from time to time, as conditions change in branches of U.S. banks in Germany, in particular Deposit Protection Fund that safeguards liabilities the world market. For example, during recent years, with respect to ‘‘dotation’’ or endowment capital in excess of the thresholds guaranteed by the the Argentine peso has transitioned back and forth requirements and capital adequacy standards. European Union Program discussed above. from being freely traded to restricted.

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the underlying securities transaction, other accounts), but only with the global custodian uses in making such with its foreign exchange component, custodian. selections. Therefore, the decision to will settle in a timely fashion.5 The 11. According to the Applicant, one of select Deutsche Bank or its affiliate as Applicant states that not doing so raises the most important functions of a global subcustodian by the global custodian, the risk that the entire transaction will custodian is to provide a foreign and any foreign exchange transactions fail because the currency transaction exchange facility for its customers, executed by Deutsche Bank or its becomes separated from the securities either through a central global trading affiliate at the direction of the global transaction in a market that is either desk, for readily tradable currencies, or custodian, are not part of an very manual or where the settlement through its subcustody network, for less understanding, arrangement, agreement, period is very short. The Applicant developed currencies. The Applicant written or otherwise, designed to benefit represents that, in all cases where it acts represents that where the penalty for Deutsche Bank, its affiliates or another as investment manager for plan assets, failure is thousands of dollars or a party in interest.7 Furthermore, the a global custodian is solely in charge of suspension of one’s license to trade, it decision to invest in a market and to is particularly important that an asset selecting its subcustody network. The Applicant further represents that it is select Deutsche Bank or its affiliates as manager take all steps possible to avoid asset manager is part of an investment settlement failure. the responsibility of the global custodian to monitor its subcustodians strategy that is adopted by an Global Custody/Subcustody on all performance and credit issues. independent fiduciary of a client plan, Arrangements Generally, the asset manager for an an independent fiduciary of an in-house 9. The Applicant states that each plan account (or the trustee for a collective plan, an independent fiduciary of a generally appoints a ‘‘global custodian’’ investment fund) has no direct contact large pooled fund, or an independent other than Deutsche Bank or its affiliate at all with the subcustodian. fiduciary of an unrelated pooled fund. to hold and safekeep plan assets. A 12. With respect to selection of For example, the Applicant states that global custodian is typically a bank or subcustodians, the Applicant states that even in a market where more than one trust company, selected by an a global custodian may have more than subcustodian is available, assume that independent plan fiduciary for a client one option to choose from, and may, in the global custodian has a choice plan, a sponsor of an unrelated pooled, fact, use more than one subcustodian in between using the Applicant’s affiliate, a market, depending on its business or Deutsche Bank as asset manager for Large International Bank X, and several needs, but a particular account is only an in-house plan or a pooled fund. The local banks. The Applicant explains that subcustodied with one subcustodian Applicant further explains that assets if the global custodian preferred to are held either by the global custodian (i.e., all the assets of the plan in that market are held with one subcustodian). select the Applicant’s affiliate due to itself, or through a nominee, physically, past experience with the other banks, or through a depository, in the United The Applicant represents that generally, if the global custodian uses more than transaction costs, each bank’s credit States or outside of the United States, rating, or other factors, the global through its branches or through its one subcustodian (i.e., puts some clients with one and some with another, custodian may select the Applicant’s subcustody network, which generally affiliate. The Applicant states that the consists of foreign banks or branches of because of size, diversification of risk, price competition or credit concerns), global custodians use their own internal U.S. banks, including its own branches. the choice of which clients are assigned procedures and safeguards to select Accordingly, the Applicant states that to which subcustodian is made by the subcustodians for their clients, even though Deutsche Bank or its global custodian, not by the client. including any plans for which Deutsche affiliates, as trustee, may choose the However, the Applicant notes that it is Bank or its affiliate may serve as a global custodian in the case of a far more common for a global custodian trustee, investment manager, fiduciary collective investment fund or other to have one subcustodian. The pooled fund it sponsors (rather than an or other party in interest. The Applicant Applicant states that an account is held independent fiduciary of a client plan, represents that, in selecting a global at that subcustodian, and the investment in the case of a separately managed custodian, the trustee would generally manager knows its identity, because all account), the reasons for preferring look at such factors as price (including transactions are settled by the conversion through one’s global the cost of transactions inside and subcustodian, and information custodian are precisely the same for outside of the network, reputation, the regarding the subcustodian is required both types of accounts.6 size of the global custodian’s when giving counterparties settlement 10. The Applicant explains that a subcustody network, the number of instructions. markets in which the global custodian subcustodian is generally a bank or trust The Applicant explains that a company, foreign or domestic, which is has subcustodians, the number of subcustodian is not hired on a markets where interest is credited selected by a global custodian, to hold transaction by transaction basis, but and safekeep designated assets of the overnight, the global custodian’s error remains the subcustodian for an account rate and responsiveness, the number plan, including in its own name, at until the global custodian replaces the securities depositories, or at foreign and performance of cash sweep vehicles subcustodian for that entire account. offered by the global custodian, the clearing agencies or other entities which The Applicant represents that a global custodian’s securities lending act as securities depositories. The subcustodian’s relationship with the Applicant states that a subcustodian has global custodian is generally governed program, and the technology used by no contractual relationship with the by a standard contract which the global the global custodian and its global custodian’s clients (i.e., plans or custodian presents to all of its subcustodians, among many other subcustodians. Client accounts are not considerations. 5 When trades are routed to the global custodian, parties to the contract. it becomes responsible for ensuring that the 13. The Applicant represents that it 7 The Applicant notes that Deutsche Bank asset subcustodian settles both the foreign exchange management division is separate from the Deutsche conversion, and the underlying transaction. has no control or input with respect to Bank’s custody division, and this condition does 6 Deutsche Bank represents that since 2003, it has the subcustodians selected by a global not preclude the custody division from marketing not acted as global custodian for plans. custodian or the procedures the global its services to the global custodian.

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Trade-Related Currency Conversions distributions of such proceeds. custodian. The Applicant states that not 14. The Applicant seeks relief with According to the Applicant, in cases only does the investment manager have respect to certain trade-related foreign where the manager wants to avoid no control over the global custodian’s exchange transactions in markets with currency risk, or to convert funds to a selection of subcustodians, but it also less developed currencies or in different currency to experience higher cannot control which currencies a restricted markets. Specifically, returns (such as a conversion from global custodian chooses to deal in, Deutsche Bank is requesting that the foreign currency to U.S. dollars, in order which impacts whether the global proposed exemption apply to situations to experience higher returns available custodian has to send the foreign where Deutsche Bank (or its current or on a U.S. investment), it is important exchange transactions to its future affiliates) act as an investment that the investment manager be able to subcustodian in a particular market. The manager to a plan or pooled fund, and convert available funds quickly. Applicant further states that the 16. The Applicant states that there are the plan or pooled fund engages in investment manager is not necessarily generally no additional fees added to advised when a currency is added to the certain trade-related currency transactions executed within a global global custodian’s dealing desk, or conversions with the Applicant (or its custodian’s subcustody network, while deleted from it. affiliate), acting as a subcustodian with additional charges are often incurred for respect to the assets involved in the transactions done outside that network. Income-Related Transactions transaction. The Applicant notes that The Applicant represents that those 18. The Applicant also seeks relief, the requested relief would only apply to additional fees may make the currency with respect to certain income-related those currencies where the global conversion transaction disadvantageous foreign exchange transactions. The custodian does not itself make a to the plan for still another reason— covered transactions for which the principal market in the currency and price. In addition, the Applicant Applicant requests relief also involve where the global custodian has selected represents that, because the the Applicant or its affiliate, as a Deutsche Bank affiliate as subcustodian generally receives investment manager for a plan or pooled subcustodian and sends client trades to significant transaction flow from the fund, causing such plan or pooled fund that subcustodian. global custodian, which is also to engage in foreign exchange 15. According to the Applicant, trade- monitoring rates and performance, it is transactions with the Applicant’s related currency conversions may be more likely that the rates provided by affiliates, who may be acting as necessary in several situations. For the subcustodian will be at least as good subcustodian for the assets involved in example, the Applicant states that as might be available from a local bank the transaction. Specifically, the where plan assets managed by the or broker-dealer outside the global Applicant is requesting an exemption Applicant or its affiliate are custodian’s network. While the that would apply to income item subcustodied with its affiliate, Applicant is not a global custodian and conversions in all currencies, which exemptive relief is necessary for such cannot describe each global custodian’s would not be covered by PTE 98–54, for transactions to take place, because practices, the Applicant believes that it the same reasons that the exemption Prohibited Transaction Exemption (PTE) is customary for all custody client trades does not apply to trade-related foreign 98–54 (63 FR 63503, November 13, to be forwarded to a subcustodian at the exchange transactions. The Applicant 1998) does not provide relief for same time, and for the trades to be explains that as with trade-related managed accounts, or for the executed at the same rate as other trades transactions, an income-related Applicant’s foreign affiliates. PTE 98–54 received by the subcustodian at transaction is not itself an investment, requires that, in a purchase or sale approximately the same time. The but is an integral component of a plan’s transaction between a bank and a plan, Applicant notes that confirmations of or pooled fund’s foreign investment the bank (or any domestic affiliate the transactions do not always reflect activities. thereof) must be ‘‘supervised by the where the foreign exchange trade was 19. The Applicant states that the United States or a State thereof.’’ The executed. The investment manager purpose of income-related transactions Applicant further notes that, when generally does not know the rate before is to convert income items, such as operating outside the United States, a foreign exchange trade is executed, interest, dividends, tax reclaims, and Deutsche Bank is not supervised by a and the manager may know the range in other distributions, either from foreign State or by the United States. which it will fall and will approve that currency into U.S. dollars, or into The Applicant represents that trade- range. The Applicant states that the another foreign currency. For example, related currency conversions are investment manager is advised of the the Applicant states that the manager necessary with respect to both well- rate late in the day for western may wish to convert dividend income to developed and less developed hemisphere trades, and the next U.S. dollars to permit reinvestment, to currencies. However, in the absence of morning for the eastern hemisphere. enhance the plan’s liquidity, or because the requested relief, asset management The Applicant further represents that the earnings on U.S. dollar cash in emerging markets is nearly these rates can be verified using Reuters equivalents are higher than the potential impossible to undertake where the or a similar service. earnings on foreign cash equivalents. As global custodian has selected a Deutsche 17. According to the Applicant, in with trade-related foreign exchange Bank affiliate as subcustodian. As the effecting foreign exchange transactions, transactions, conversion may also be Applicant describes above, in order for the investment manager would desirable to avoid currency risk with a plan to purchase a foreign security or generally rely on PTE 84–14 (49 FR respect to income items. other investment, it is often necessary to 9494, March 13, 1984), or PTE 91–38 (67 20. According to the Applicant, global make a trade-related currency FR 9483, March 1, 2002). However, the banks typically repatriate income conversion in order to facilitate the Applicant states that neither exemption through a process called ‘‘auto- purchase transaction. In addition, the is available where the trade is routed to repatriation,’’ which minimizes the time Applicant states that such currency a subcustodian who is an affiliate of the that income receipts are held in foreign conversions may be necessary for Applicant. Thus, the Applicant seeks currency. The Applicant states that an purposes of investing sales proceeds in relief for foreign exchange transactions account owner (such as a plan sponsor) other investments, or for making where its affiliate is selected by a global would choose to use this process at the

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inception of its relationship with a income trades do not settle until 2 days cash management system. The global custodian, or its investment after the trade date. Thus, if auto- Applicant represents that most plans manager would select auto-repatriation repatriation is not used, the investment rely on their global custodian’s deposits instead, at the time that it commences manager must wait for foreign income to or its subcustodian deposits for its investment management be received into a plan account, where overnight interest in a particular responsibilities for the account. The the manager will actually see the currency. To the extent that the Applicant notes that disclosure income appear on the next day. economics and the inefficiencies of regarding the auto-repatriation process According to the Applicant, before doing small income trades are reasons to is generally found in the service level acting, the investment manager must leave foreign currency amounts agreements provided to customers by a first determine whether the amount of unconverted, the Applicant notes that global custodian. the foreign income payment is large the transactions which are the subject of Deutsche Bank further describes the enough to trade. If so, the trade will be the exemption would result in more typical auto-repatriation process as executed, but not settled until 2 days managed money being held in deposits follows: after the trade date. Therefore, the of the global custodian or the A global custodian using the auto- Applicant states that the account would subcustodian. receive lower interest (or no interest) on repatriation process contracts with a third- Summary of Exemption Request party vendor that electronically alerts the foreign income for up to 3 days after the global custodian to expected income foreign income payment is made. A 25. The Applicant states that the payments in all global fixed income and longer delay may result where the proposed exemption would apply solely equity securities. Generally, that notice is income payment is not large enough to in the context of a global custodian received in advance of the expected income trade (e.g., because, due to the amount which selects the Applicant’s local payment date. The global custodian’s of income involved, the transaction branch as a subcustodian, in a market recordkeeping system, which is linked to the costs would exceed the amount of the where the global custodian does not information feed, creates an ‘‘income map,’’ income receipt). make a market in the local currency or list of all the accounts (whether plan and, thus, the currency can be deemed accounts or not) that hold the security with In contrast, the Applicant represents respect to which an income payment is that when auto-repatriation is used, the to be ‘‘less developed’’ based on the expected, and the amount of the expected expected amount of income is sent to trading perspective of the global payment in the foreign currency for each the global custodian or subcustodian custodian. account. A ‘‘pending transaction’’ for the before settlement and is aggregated with The Applicant represents that the income receipt is created, and the income other income payments. As a result, the proposed exemption would apply only map aggregates all accounts expecting that Applicant explains that income-related when: (a) A client plan’s independent income payment and the total income trades are completed quickly and the fiduciary or the independent trustee of expected for the entire custody client base of account (including plan accounts) a pooled fund (other than Deutsche the global custodian. The aggregate amount begins to earn interest on funds as soon Bank or its affiliate) has chosen a global of expected foreign income is sent either to as possible. custodian which, in turn, selects a the global custodian’s own foreign exchange Deutsche Bank affiliate to act as a desk (in the case of developed currencies) or 22. As with trade-related foreign to the subcustodian (in the case of emerging exchange transactions, the Applicant subcustodian, or (b) Deutsche Bank or markets or less-developed currencies). In states that participation in auto- its affiliate, as trustee of a pooled fund addition, unexpected income items, such as repatriation may cause plan assets or for its in-house plans, chooses a tax reclaims, are also aggregated by currency, which are managed by Deutsche Bank or global custodian which selects a bundled with income trades involving non- its affiliate to be routed to an affiliate of Deutsche Bank affiliate to act as a plan clients of Deutsche Bank, and promptly Deutsche Bank which acts as a subcustodian. In either case, Deutsche executed and each aggregated account subcustodian for the plan. Thus, the Bank believes that exemptive relief receives the same foreign exchange prices as Applicant represents that if a plan holds under section 406(b) of the Act may be all other accounts. an investment in an emerging market, necessary for both trade-related and 21. Deutsche Bank believes that many and the investment produces an income income-related foreign exchange cash management programs item in that market’s currency, auto- transactions effected with its affiliate, if automatically sweep idle U.S. dollar repatriation of the income item to U.S. that affiliate is the subcustodian for a balances to their designated sweep dollars may result in the conversion plan or a pooled fund in an emerging vehicle at the end of each day. trade being directed to an affiliate of market, and the Applicant is aware that Therefore, the Applicant represents that Deutsche Bank, through the global transactions for foreign exchange in automatic repatriation allows the custodian’s auto-repatriation system. connection with securities or other account to experience no delay or gap 23. The Applicant explains that the investment transactions that are sent to in earning income on the U.S. dollar direction of trades to an affiliate through the global custodian will be effected equivalent of their income payments. auto-repatriation is not something that through the subcustodian. The Applicant opines that this is Deutsche Bank can control, nor would With respect to a client plan, the particularly beneficial in countries Deutsche Bank necessarily know about Applicant states that Deutsche Bank or where either no interest is credited on it in advance of the trade. Therefore, the its affiliate has no control over the foreign balances or where the interest Applicant states that the only way to selection of a global custodian by the credited on the foreign currency balance prevent these transactions is for the plan independent fiduciary. Furthermore, the is relatively low compared to the rate of not to repatriate income items using this Applicant states that Deutsche Bank or interest credited on U.S. dollar balances. process. The Applicant represents that, its affiliate has no control over: The The Applicant further represents that as a result, income items would have to subcustodian chosen by such global auto-repatriation also minimizes the be converted separately, most likely at custodian; the global custodian’s delays inherent in executing income a significant added cost to plans. arrangements with subcustodians; or the transactions on a piecemeal basis, so 24. According to the Applicant, the global custodian’s processes and that plans are able to realize investment inability to be part of the automatic procedures. Where Deutsche Bank or its returns on income more quickly. The income processing system may also affiliate acts as a trustee of a pooled Applicant states that generally, foreign have an unintended effect on the global fund or where it acts as a fiduciary for

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an in-house plan, the Applicant notes are the same as the benefits and costs and any specific instances of non- that Deutsche Bank or its affiliate selects experienced by other accounts. compliance by Deutsche Bank or its the global custodian, but has no control 28. The Applicant represents that the affiliate with the terms and conditions over that global custodian’s subcustody proposed exemption would not apply to of the exemption. network or arrangements with the foreign exchange transactions in which If the findings of the responsible subcustodians. the global custodian is the Applicant or reviewing individual disclose that 26. The Applicant states that the its affiliate. As noted above, the Deutsche Bank or its affiliate has failed proposed exemption is beneficial to Applicant states that it divested itself of to comply with the terms and plans because under current law, the its global custody business in 2003. In conditions of this exemption with only option which the Applicant is able all cases, the proposed exemption respect to multiple transactions to exercise is not to invest plan assets would require that the choice of the executed on an on-going basis, or there in certain emerging markets that have Applicant or its affiliate as a has been a material factual change to the less developed currencies. As a result, subcustodian be made by the unrelated representations contained in the the Applicant states that the investment global custodian, and not by the Summary of Facts and Representations opportunities and flexibility available to Applicant or its affiliate. of the proposed exemption, the plans or pooled funds clients are 29. The proposed exemption also exemption will no longer be available as severely limited. The Applicant includes a condition that requires that of the date of such noncompliance. In represents that it needs to be able to the assets of plans and pooled funds for the event the exemption is no longer trade in emerging markets for plan, or which Deutsche Bank and/or its effective, Deutsche Bank may apply for pooled funds, regardless of whom the affiliates select the global custodian be a new exemption seeking retroactive subcustodian is, so long as it is chosen less than 20 percent of the total assets relief from the date it comes back into by someone other than the Applicant or under the global custodian’s custody. compliance, provided that Deutsche its affiliates. As for other substantive safeguards, Bank: (a) Notifies the Department of the The Applicant states that the the foreign affiliates of Deutsche Bank period during which it was in proposed exemption is also beneficial to agree to submit to the jurisdiction of the noncompliance and the underlying facts plans or pooled funds because even in United States; agree to appoint a Process of such noncompliance, (b) files a Form markets where another subcustodian is Agent in the United States, which may 5330 with the Service and pays all available, plans may be faced with be an affiliate; consent to service of applicable excise taxes, (c) makes the higher transaction costs. Therefore, process on the Process Agent; agree that affected plan or pooled fund whole if using the Applicant’s subcustodian may it may be sued in the United States the plan or pooled fund has suffered a not be an option, even if it offers the Courts in connection with the covered loss as a result of such noncompliance, same rates as other subcustodians. The transactions described in this proposed and (d) develops and adopts appropriate Applicant opines that it is not practical exemption; agree that any judgment on policies and procedures to ensure all or commercially reasonable to require a behalf of a plan or pooled fund may be future transactions are executed in client plan’s global custodian to refrain collected in the United States from compliance with the terms and from using the Applicant’s affiliates as Deutsche Bank by the independent conditions of the exemption. In the subcustodians. In addition, the fiduciary to the extent applicable; and alternative, if the findings of the Applicant again emphasizes that it does agree to comply with, and be subject to, responsible reviewing individual not have the ability to control a global all relevant provisions of the Act. disclose that Deutsche Bank has failed custodian from including the In addition, Deutsche Bank or its to comply with the terms and Applicant’s affiliates in its subcustody affiliate will designate a senior official conditions of this exemption with networks. who has at least ten years experience respect to an isolated transaction, the 27. The Applicant represents that with the fiduciary responsibility exemption will continue to provide under the proposed exemption, at the provisions of the Act and appropriate exemptive relief for covered time a foreign exchange transaction is compliance training as the ‘‘responsible transactions apart from the non- entered into, the terms of the transaction reviewing individual.’’ Such individual recurring transaction as long as must be no less favorable to the plan or will review the covered transactions Deutsche Bank: (a) files a Form 5330 pooled fund than the terms generally periodically (but not less frequently with the Service and pays any available in a comparable arm’s length than on an annual basis) to ensure applicable excise taxes, and (b) makes foreign exchange transaction between compliance with the terms of the the affected plan or pooled fund whole unrelated parties. In addition, the exemption on behalf of a client plan, an if the plan or pooled fund has suffered exchange rate used for a particular in-house plan, or a large pooled fund. a loss as a result of such foreign exchange transaction must not Following such review, the responsible noncompliance.8 deviate by more than 3 percent (above reviewing individual will issue a With respect to the covered or below) the interbank bid and asked written report to Deutsche Bank, the transactions, Deutsche Bank will hire an rates for such currency at the time of the independent fiduciary of the client plan, independent fiduciary to represent the transaction as displayed on an the independent fiduciary of the in- interests of an in-house plan or a large independent, nationally-recognized house plan, the independent fiduciary pooled fund. This independent service that reports rates of exchange in of the large pooled fund, the fiduciary will be an individual or the foreign currency market for such independent fiduciary of the unrelated company that: (a) Is unrelated and currency. Further, the Applicant states pooled fund, or the receiving fiduciary independent of Deutsche Bank, with at that the transactions must be executed of the small pooled fund, within 90 days least 10 years experience in the with the Applicant or its affiliate after the period to which the periodic financial services business and through the global custodian, in the review relates. The report will describe course of the global custodian’s normal the steps performed by the responsible 8 The sole failure of a global custodian to comply transaction processing as global reviewing individual during the course with a condition of the exemption despite Deutsche Bank’s best efforts to ensure the global custodian’s custodian. The Applicant states that of the review, the level of compliance by compliance, shall not result in the loss of the these conditions are intended to ensure Deutsche Bank or its affiliate with the exemption with respect to Deutsche Bank provided that the benefits of and costs to the plan terms and conditions of the exemption, all other conditions have been met.

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significant experience in foreign Deutsche Bank or its affiliate may In addition, upon the request of the currency trading and pricing; (b) consider the investment appropriate for independent fiduciary, and within 90 certifies that the gross income such the plan; (b) the identity of the global days of such request, Deutsche Bank or fiduciary receives from Deutsche Bank custodian and the factors considered in its affiliate will provide compliance and its affiliates for the current year such global custodian’s selection; (c) reports (which may be transmitted does not exceed 5% of such fiduciary’s notice that such foreign exchange electronically) that demonstrate that the gross income from all services for the transaction may be executed by terms of the exemption have been met. prior fiscal year; and (c) represents that Deutsche Bank or its affiliate at the Such written reports will include the it understands its ERISA duties and direction of a global custodian, and full information described above. responsibilities in acting as a fiduciary disclosure of all fees that Deutsche Bank 31. In summary, the Applicant with respect to the plan(s) (or pooled or its affiliate may receive as a result of represents that the transactions will funds) and the covered transactions. the foreign exchange transaction; (d) in satisfy the statutory criteria for an The independent fiduciary will review those cases where Deutsche Bank or its exemption under section 408(a) of the the transactions executed under the affiliate selects the global custodian, a Act since, among other things: (a) At the time the foreign exchange exemption, ask Deutsche Bank summary of the global custodian’s transaction is entered into, the terms of questions that it may have regarding policies and procedures regarding the such transactions, and take appropriate the transaction will not be less favorable handling of foreign exchange action on behalf of the plans or pooled to the plan or pooled fund than the transactions for plans or pooled funds funds if it has concerns about the trades. terms generally available in comparable Further, Deutsche Bank or its affiliate with respect to which Deutsche Bank or arm’s length foreign exchange will maintain or cause to be maintained its affiliate is a fiduciary and the factors transactions between unrelated parties. for a period of six years from the date that the global custodian considers in its (b) The exchange rate used for a of the covered transactions written selection of a subcustodian; (e) a list of particular foreign exchange transaction records of the transaction to enable the markets in which Deutsche Bank or will not deviate by more than 3 percent persons such as: the responsible its affiliate serves as a subcustodian, and (above or below) the interbank bid and reviewing individual, independent whether a particular market is served by asked rates for such currency at the time fiduciaries of client plans, independent more than one subcustodian; (f) a list of of the transaction as displayed on an fiduciaries in-house plans, independent the markets where currency transactions independent, nationally-recognized fiduciaries of large pooled funds, are executed by a subcustodian, to the service that reports rates of exchange in independent fiduciaries of unrelated extent known; (g) notice that Deutsche the foreign currency market for such pooled funds, receiving fiduciaries of Bank or its affiliate maintains the currency. small pooled funds, participants, or required records, and such records are (c) The covered transactions will be representatives of the Department or the reasonably available at their customary limited to those currencies in which a Service to determine whether the location for examination in the U.S., transaction is executed with a Deutsche conditions of the exemption have been during normal business hours, by the Bank affiliate acting as local met. Such written records include: (a) responsible reviewing individual, the subcustodian at the direction of the The account name; (b) the foreign independent fiduciary of a client plan, global custodian because the global exchange transaction execution date; (c) the independent fiduciary of an in- custodian either does not make a market the exchange rate; (d) the high and low house plan whose assets are invested in in such currency, or otherwise on Reuters or similar service on the date a separately managed account with determines to execute with the local of the transaction; (e) the identity of the Deutsche Bank, the independent subcustodian because of market foreign currency sold or purchased; (f) fiduciary of a large pooled fund, the conditions, market restrictions, the amount of foreign currency sold or independent fiduciary of an unrelated illiquidity of the currency or similar purchased; (g) the amount of U.S. pooled fund, the receiving fiduciary of exigencies. dollars exchanged, where the exchange a small pooled fund, any participant or (d) Where a market is served by more is between foreign currencies and U.S. beneficiary of such plan or pooled fund, than one subcustodian, Deutsche Bank dollars or the amount of foreign or any duly authorized employee or or its affiliate will have no decision currency exchanged, where the representative of such participant or making authority or role with respect to exchange is between two foreign beneficiary; (h) the independent the global custodian’s selection of the currencies; and (h) the annual report fiduciary shall have 30 days to object in subcustodian. issued by the responsible reviewing (e) The global custodian will not be writing to Deutsche Bank or its affiliate, individual. Deutsche Bank or any affiliate thereof. 30. Additionally, the proposed following disclosure by Deutsche Bank (f) The foreign exchange transaction exemption includes a requirement that or its affiliate of the arrangement will be executed by Deutsche Bank or its prior to the investment of a plan’s or contemplated under the exemption. If affiliate thereof acting as subcustodian pooled fund’s assets in a foreign such fiduciary fails to object in writing at the direction of the global custodian investment, that may result in the within this period, then such fiduciary’s in its normal course of business as execution of a foreign exchange authorization of the arrangement shall global custodian. transaction with Deutsche Bank or its be presumed; (i) notification of any (g) The decision to select Deutsche affiliate as subcustodian, Deutsche Bank changes to the information described Bank or its affiliate as the subcustodian will provide written notice to the above, including, but not limited to, the will be made by an unrelated global independent fiduciary of a client plan, situation where Deutsche Bank or its custodian. the independent fiduciary of an in- affiliate replaces the global custodian (h) The selection of Deutsche Bank or house plan, the independent fiduciary with another independent entity; and (j) its affiliate as subcustodian and any of a large pooled fund, the independent copies of the notice of proposed foreign exchange transactions executed fiduciary of an unrelated pooled fund, exemption and grant of final exemption by Deutsche Bank or its affiliate at the or the receiving fiduciary of a small with respect to the subject transactions. direction of a global custodian will not pooled fund that includes the following Such report may be provided be part of an understanding, information: (a) The reasons why electronically. arrangement or agreement, written or

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otherwise, designed to benefit Deutsche (p) Deutsche Bank or its affiliate will forth in 29 CFR Part 2570, Subpart B (55 Bank, its affiliate or another party in maintain, or will cause to be FR 32836, 32847, August 10, 1990). interest. maintained, for a period of six years Section I—Retroactive Exemption for from the date of the covered (i) The decision to invest in a market the Acquisition, Holding, and transactions, certain records to enable and to select Deutsche Bank or its Disposition of JPMorgan Chase & Co. affiliate as asset manager will be part of such persons as: The responsible Stock an investment strategy that is adopted reviewing individual, the independent by an independent fiduciary of a client fiduciary of a client plan, or any duly If the proposed exemption is granted, plan, the independent fiduciary of an authorized representative of the the restrictions of sections 406(a)(1)(D), in-house plan, the independent Department or the Service, to determine 406(b)(1) and 406(b)(2) of the Act, and fiduciary of a large pooled fund, or the whether the conditions of this the sanctions resulting from the independent fiduciary of an unrelated exemption have been met. application of section 4975 of the Code pooled fund. by reason of section 4975(c)(1)(D) and Notice to Interested Persons (j) On an annual basis, the percentage (E) of the Code, shall not apply, as of of assets of plans and pooled funds for The Applicant represents that because January 14, 2004, until the date this which Deutsche Bank or its affiliates those potentially interested client plans proposed exemption is granted, to the select the global custodian will be less cannot all be identified at the time this acquisition, holding, and disposition of than 20 percent of the total assets under proposed exemption is published in the the common stock of JPMorgan Chase & the global custodian’s custody. Federal Register, the only practical Co. (the JPM Stock) by Index and (k) Foreign affiliates of Deutsche Bank means of notifying the independent Model-Driven Funds managed by who engage in the covered transaction fiduciaries of such plans of the JPMorgan, provided that the following will agree to submit to the jurisdiction proposed exemption is by publication of conditions and the general conditions in of the United States Courts and consent the notice of pendency in the Federal Section III are satisfied: (a) The acquisition or disposition of to service of process on the Process Register. However, with respect to the the JPM Stock is for the sole purpose of Agent for purposes of any lawsuits that fiduciaries of in-house plans (including maintaining strict quantitative may be brought in connection with the independent fiduciaries of large pooled conformity with the relevant index foreign exchange transactions, and funds, independent fiduciaries of upon which the Index or Model-Driven comply with, and be subject to, all unrelated pooled funds, or receiving fiduciaries of small pooled funds), the Fund is based. relevant provisions of the Act. (b) The acquisition or disposition of (l) Deutsche Bank or its affiliate will Applicant will provide copies of the proposed exemption to such interested the JPM Stock does not involve any designate an individual responsible for agreement, arrangement, or reviewing periodically a representative persons either by first class mail, hand delivery or electronic mail within 15 understanding regarding the design or sample of consummated foreign operation of the Fund acquiring the JPM exchange transactions, no less days of the publication of the proposed exemption in the Federal Register. Stock which is intended to benefit frequently than on an annual basis, to JPMorgan or any party in which determine whether the covered Therefore, written comments and/or requests for a public hearing must be JPMorgan may have an interest. transactions have been executed in (c) All aggregate daily purchases of received by the Department not later accordance with the terms of this JPM Stock by the Funds do not exceed, than 45 days from the date of exemption. on any particular day, the greater of: (m) Prior to the investment of the publication of this notice of proposed (1) Fifteen (15) percent of the plan’s assets in a foreign investment that exemption in the Federal Register. aggregate average daily trading volume may require the execution of a foreign If granted, this exemption will be for the JPM Stock occurring on the exchange transaction, Deutsche Bank or available to Deutsche Bank for as long applicable exchange and automated its affiliate will provide to the as the terms and conditions of the trading system (as described in independent fiduciary of a client plan, exemption are satisfied with respect to paragraph (d) below) for the previous the independent fiduciary of an in- the assets of client plans, in-house plans five business days, or house plan, the independent fiduciary or pooled funds that are engaged in the (2) Fifteen (15) percent of the trading of a large pooled fund, or the covered foreign exchange transactions. volume for the JPM Stock occurring on independent fiduciary of an unrelated FOR FURTHER INFORMATION CONTACT: the applicable exchange and automated pooled fund, a written notice (which Allison Padams-Lavigne, U.S. trading system on the date of the may be effected electronically) that will Department of Labor, telephone (202) transaction, both as determined by the include all relevant information 693–8564. (This is not a toll-free best available information for the trades pertaining to Deutsche Bank’s number.) occurring on that date or dates. investment strategy with respect to (d) All purchases and sales of JPM Banc One Investment Advisors foreign exchange transactions. Stock are either (i) Entered into on a Corporation (BOIA) and J.P. Morgan (n) On the basis of such information, principal basis in a direct, arm’s length Investment Management Inc. (JPMIM) the independent fiduciary will adopt transaction with a broker-dealer, in the and their Affiliates (Collectively, Deutsche Bank’s investment strategy ordinary course of its business, where JPMorgan) with respect to foreign exchange such broker-dealer is independent of JP transactions. Located in New York, New York. Morgan and is either registered under (o) Upon the request of the [Application No. D–11263] the Securities Exchange Act of 1934 (the independent fiduciary, and within 90 1934 Act), and thereby subject to days of such request, Deutsche Bank or Proposed Exemption regulation by the Securities and an affiliate will provide written The Department is considering Exchange Commission (SEC), (ii) compliance reports (which may be granting an exemption under the effected on an automated trading system transmitted electronically) that authority of section 408(a) of the Act (as defined in Section IV(i) below) demonstrate that the terms of the and section 4975(c)(2) of the Code, in operated by a broker-dealer independent exemption have been met. accordance with the procedures set of JPMorgan that is subject to regulation

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by the SEC, or an automated trading Model-Driven Funds managed by exchange (as defined in Section IV(j) system operated by a recognized U.S. JPMorgan, provided that the following below), pursuant to the applicable securities exchange (as defined in conditions and the general conditions in securities laws, and provides a Section IV(j) below), which, in either Section III are satisfied: mechanism for customer orders to be case, provides a mechanism for (a) The acquisition or disposition of matched on an anonymous basis customer orders to be matched on an JPM Stock is for the sole purpose of without the participation of a broker- anonymous basis without the maintaining strict quantitative dealer; and participation of a broker-dealer, or (iii) conformity with the relevant index (7) If the necessary number of shares effected on a recognized securities upon which the Index or Model-Driven of JPM Stock cannot be acquired within exchange (as defined in Section IV(j) Fund is based. 10 business days from the date of the below), so long as the broker is acting (b) The acquisition or disposition of event that causes the particular Fund to on an agency basis. JPM Stock does not involve any require JPM Stock, JPMorgan appoints a (e) No transactions by a Fund involve agreement, arrangement or fiduciary that is independent of purchases from, or sales to, JPMorgan understanding regarding the design or JPMorgan to design acquisition (including officers, directors, or operation of the Fund acquiring the JPM procedures and monitor JPMorgan’s employees thereof), or any party in Stock which is intended to benefit compliance with such procedures, in interest that is a fiduciary with JPMorgan or any party in which accordance with Representation 7 in the discretion to invest plan assets into the JPMorgan may have an interest. Summary of Facts and Representations. Fund (unless the transaction by the (c) All purchases of JPM Stock (d) For transactions subsequent to a Fund with such party in interest would pursuant to a Buy-up (as defined in Buy-up, all aggregate daily purchases of otherwise be subject to an exemption); Section IV(d)) occur in the following JPM Stock by the Funds do not exceed, however, this condition would not manner: on any particular day, the greater of: apply to purchases or sales on an (1) Purchases on a single trading day (1) Fifteen (15) percent of the exchange or through an automated are from, or through, only one broker or aggregate average daily trading volume trading system (described in paragraph dealer; for the JPM Stock occurring on the (d) of this Section) on a blind basis (2) Based on the best available applicable exchange and automated where the identity of the counterparty is information, purchases are not the trading system for the previous five (5) not known. opening transaction for the trading day; business days, or (f) No more than five (5) percent of the (3) Purchases are not effected in the (2) Fifteen (15) percent of the trading total amount of JPM Stock that is issued last half hour before the scheduled close volume for JPM Stock occurring on the and outstanding at any time is held in of the trading day; applicable exchange and automated the aggregate by Index and Model- (4) Purchases are at a price that is not trading system on the date of the Driven Funds managed by JPMorgan. higher than the lowest current transaction, as determined by the best (g) JPM Stock constitutes no more independent offer quotation, available information for the trades that than three (3) percent of any determined on the basis of reasonable occurred on such date. independent third party index on which inquiry from brokers that are not (e) All transactions in JPM Stock not the investments of an Index or Model- affiliates of JPMorgan (as defined in otherwise described in paragraph (c) Driven Fund are based. section IV(g)); above are either: (i) Entered into on a (h) A plan fiduciary which is (5) Aggregate daily purchases of JPM principal basis in a direct, arms-length independent of JPMorgan authorizes the Stock by the Funds do not exceed, on transaction with a broker-dealer, in the investment of such plan’s assets in an any particular day, the greater of: (i) ordinary course of its business, where Index or Model-Driven Fund which Fifteen (15) percent of the aggregate such broker-dealer is independent of purchases and/or holds JPM Stock, average daily trading volume for the JPMorgan and is registered under the pursuant to the procedures described security occurring on the applicable 1934 Act, and thereby subject to herein (see Paragraph 12 of the exchange and automated trading system regulation by the SEC, (ii) effected on an Summary of Facts and Representations, for the previous five business days, or automated trading system (as defined in below, regarding portfolio management (ii) fifteen (15) percent of the trading Section IV(i) below) operated by a services provided for particular plans). volume for the security occurring on the broker-dealer independent of JPMorgan (i) A fiduciary independent of applicable exchange and automated that is subject to regulation by the SEC, JPMorgan directs the voting of the JPM trading system on the date of the or an automated trading system Stock held by an Index or Model-Driven transaction, as determined by the best operated by a recognized securities Fund on any matter in which available information for the trades exchange (as defined in Section IV(j) shareholders of JPM Stock are required occurring on that date; below), which, in either case, provides or permitted to vote. (6) All purchases and sales of JPM a mechanism for customer orders to be Stock occur either (i) on a recognized matched on an anonymous basis Section II—Prospective Exemption for securities exchange (as defined in without the participation of a broker- the Acquisition, Holding, and Section IV(j) below), (ii) through an dealer, or (iii) effected through a Disposition of JPMorgan Chase & Co. automated trading system (as defined in recognized securities exchange (as Stock Section IV(i) below) operated by a defined in Section IV(j) below), so long If the proposed exemption is granted, broker-dealer independent of JPMorgan as the broker is acting on an agency the restrictions of sections 406(a)(1)(D), that is registered under the 1934 Act, basis. 406(b)(1) and 406(b)(2) of the Act, and and thereby subject to regulation by the (f) No transactions by a Fund involve the sanctions resulting from the SEC, which provides a mechanism for purchases from, or sales to, JPMorgan application of section 4975 of the Code customer orders to be matched on an (including officers, directors, or by reason of section 4975(c)(1)(D) and anonymous basis without the employees thereof), or any party in (E) of the Code, shall not apply, as of the participation of a broker-dealer, or (iii) interest that is a fiduciary with date this proposed exemption is through an automated trading system (as discretion to invest plan assets in the granted, to the acquisition, holding, and defined in Section IV(i) below) that is Fund (unless the transaction by the disposition of JPM Stock by Index and operated by a recognized securities Fund with such party in interest would

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otherwise be subject to an exemption); Internal Revenue Service or the (3) That involves no agreement, however, this condition would not Securities and Exchange Commission, arrangement, or understanding apply to purchases or sales on an (B) Any fiduciary of a plan regarding the design or operation of the exchange or through an automated participating in an Index or Model- Fund or the utilization of any specific trading system (described in paragraphs Driven Fund who has authority to objective criteria that is intended to (c) and (e) of this Section) on a blind acquire or dispose of the interests of the benefit JPMorgan or any party in which basis where the identity of the plan, or any duly authorized employee JPMorgan may have an interest. counterparty is not known. or representative of such fiduciary, (c) The term ‘‘Index’’ means a (g) No more than five (5) percent of (C) Any contributing employer to any securities index that represents the the total amount of JPM Stock that is plan participating in an Index or Model- investment performance of a specific issued and outstanding at any time is Driven Fund or any duly authorized segment of the public market for equity held in the aggregate by Index and employee or representative of such or debt securities in the United States Model-Driven Funds managed by employer, and and/or foreign countries, but only if — JPMorgan. (D) Any participant or beneficiary of (1) The organization creating and (h) JPM Stock constitutes no more any plan participating in an Index or maintaining the index is— than five (5) percent of any independent Model-Driven Fund, or a representative (A) Engaged in the business of third party index on which the of such participant or beneficiary. providing financial information, investments of an Index or Model- (2) None of the persons described in evaluation, advice or securities Driven Fund are based. subparagraphs (B) through (D) of this brokerage services to institutional (i) A plan fiduciary independent of paragraph (b) shall be authorized to clients, JPMorgan authorizes the investment of examine trade secrets of JPMorgan or (B) A publisher of financial news or such plan’s assets in an Index or Model- commercial or financial information information, or Driven Fund which purchases and/or that is considered confidential. (C) A public stock exchange or holds JPM Stock, pursuant to the association of securities dealers; and, procedures described herein (see Section IV—Definitions (2) The index is created and Paragraph 12 of the Summary of Facts (a) The term ‘‘Index Fund’’ means any maintained by an organization and Representations below regarding investment fund, account, or portfolio independent of JPMorgan; and, portfolio management services provided sponsored, maintained, trusteed, or (3) The index is a generally accepted for particular plans). managed by JPMorgan, in which one or standardized index of securities that is (j) A fiduciary independent of more investors invest, and— not specifically tailored for the use of JPMorgan directs the voting of the JPM (1) That is designed to track the rate JPMorgan. Stock held by an Index or Model-Driven of return, risk profile, and other (d) The term ‘‘Buy-up’’ means an Fund on any matter in which characteristics of an independently initial acquisition of JPM Stock by an shareholders of JPM Stock are required maintained securities Index, as Index or Model-Driven Fund which is or permitted to vote. described in Section IV(c) below, by necessary to bring the Fund’s holdings either (i) replicating the same of such stock either to its capitalization- Section III—General Conditions combination of securities that comprise weighted or other specified composition (a) JPMorgan maintains or causes to such Index, or (ii) sampling the in the relevant index, as determined by be maintained, for a period of six years securities that comprise such Index the independent organization from the date of the transaction, the based on objective criteria and data; maintaining such index, or to its correct records necessary to enable the persons (2) For which JPMorgan does not use weighting as determined by the model described in paragraph (b) of this its discretion, or data within its control, which has been used to transform the Section to determine whether the to affect the identity or amount of index. conditions of this exemption have been securities to be purchased or sold; (e) The term ‘‘JPMorgan’’ refers to met, except that (1) a prohibited (3) That contains ‘‘plan assets’’ subject Bank One Investment Advisors transaction will not be considered to to the Act; and, Corporation (BOIA) and J.P. Morgan have occurred if, solely due to (4) That involves no agreement, Investment Management Inc. (JPMIM), circumstances beyond the control of arrangement, or understanding and their respective Affiliates, as JPMorgan, the records are lost or regarding the design or operation of the defined in paragraph (f) below. destroyed prior to the end of the six- Fund which is intended to benefit (f) The term ‘‘Affiliate’’ means, with year period, and (2) no party in interest JPMorgan or any party in which respect to BOIA or JPMIM, an entity other than JPMorgan shall be subject to JPMorgan may have an interest. which, directly or indirectly, through the civil penalty that may be assessed (b) The term ‘‘Model-Driven Fund’’ one or more intermediaries, is under section 502(i) of the Act or to the means any investment fund, account, or controlling, controlled by, or under taxes imposed by section 4975(a) and (b) portfolio sponsored, maintained, common control with BOIA or JPMIM; of the Code if the records are not trusteed, or managed by JPMorgan, in (g) An ‘‘affiliate’’ of a person includes: maintained or are not available for which one or more investors invest, (1) Any person, directly or indirectly, examination as required by paragraph and— through one or more intermediaries, (b) below. (1) That is composed of securities, the controlling, controlled by or under (b)(1) Except as provided in paragraph identity of which and the amount of common control with the person; (b)(2) and notwithstanding any which are selected by a computer model (2) Any officer, director, employee or provisions of section 504(a)(2) and (b) of that is based on prescribed objective relative of such person, or partner of any the Act, the records referred to in criteria using independent third party such person; and paragraph (a) of this Section are data, not within the control of (3) Any corporation or partnership of unconditionally available at their JPMorgan, to transform an which such person is an officer, customary location for examination independently maintained Index, as director, partner, or employee. during normal business hours by — described in Section IV(c) below; (h) The term ‘‘control’’ means the (A) Any duly authorized employee or (2) That contains ‘‘plan assets’’ subject power to exercise a controlling representative of the Department, the to the Act; and influence over the management or

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policies of a person other than an Investment Banking; (v) Retail Financial structured investment strategies. In individual. Services; and (vi) Treasury & Securities addition to ERISA-covered plans, the (i) The term ‘‘automated trading Services. Only the first line of business Applicants’ clients include retirement system’’ means an electronic trading is relevant to the Applicants’ exemption plans with non-U.S. participants, system that functions in a manner request. governmental entities, governmental intended to simulate a securities Banc One Investment Advisors plans, church plans, endowments and exchange by electronically matching Corporation (BOIA) is an investment foundations, mutual funds, and other orders on an agency basis from multiple adviser registered under the Investment institutional investors. buyers and sellers, such as an Advisers Act of 1940 (the Advisers Act). 4. In its capacity as fiduciary of an ‘‘alternative trading system’’ within the BOIA acts as an investment manager to employee benefit plan, each of the meaning of the SEC’s Reg. ATS [17 CFR employee benefit plans subject to the Applicants is appointed by an 242.300], as such definition may be fiduciary responsibility provisions of independent plan fiduciary. The amended from time to time, or an ERISA, as well as governmental plans Applicants represent that their ‘‘automated quotation system’’ as and other trusts or funds that are discretionary authority over whether the described in Section 3(a)(51)(A)(ii) of exempt from taxation under section plan invests in particular Funds is the 1934 Act [15 U.S.C. 501(a) of the Code. restricted by guidelines adopted by an 78c(a)(51)(A)(ii)]. J.P. Morgan Investment Management, independent plan fiduciary, unless the (j) The term ‘‘recognized securities Inc. (JPMIM) is an investment adviser plan subscribes to the Applicants’ exchange’’ means a U.S. securities registered under the Advisers Act that portfolio management in Funds (PMF) exchange that is registered as a manages assets for a wide range of services (as discussed below). ‘‘national securities exchange’’ under institutional and private clients around 5. The Applicants request that Index Section 6 of the 1934 Act (15 U.S.C. the globe. As of December 31, 2005, and Model-Driven Funds be permitted 78f), as such definition may be amended JPMIM managed approximately $1.19 to invest in JPM Stock if such Stock is from time to time, which performs with trillion in assets for defined benefit and included among the securities listed in respect to securities the functions defined contribution plans, the index utilized by the Fund. The commonly performed by a stock endowments and foundations, and other Applicants represent that indices that exchange within the meaning of institutional clients, mutual funds, and include JPM Stock include the S&P 500 definitions under the applicable high net worth individuals. Index and the Russell 1000 Value Index, securities laws (e.g., 17 CFR 240.3b–16). Effective as of the date of the Merger, among others. These indices are (k) The term ‘‘Fund’’ means an Index BOIA and JPMIM are both wholly compiled by financial information Fund (as described in Section IV(a)) or owned subsidiaries of JPMC. BOIA, agencies, such as Standard & Poor’s and JPMIM and their Affiliates that are now a Model-Driven Fund (as described in Frank Russell. These agencies are or may, in the future, be engaged in IV(b)). engaged in the provision of financial providing asset management services to information or securities brokerage Summary of Facts and Representations ERISA-covered plans are collectively services to institutional investors and/or 1. On January 14, 2004, Bank One referred to as ‘‘JPMorgan.’’ Corporation (Bank One), a publicly 2. Prior to January 14, 2004, BOIA are publishers of financial information. traded bank holding company, and J.P. maintained and managed Index and In each instance, the indices are Morgan Chase & Co. (JPMC), a publicly Model-Driven Funds which held assets compiled by organizations that are traded bank holding company, entered of ERISA-covered employee benefit independent of JPMorgan and are into an agreement to effect a merger of plans. The Applicants represent that, as generally accepted standardized indices the assets and business operations of the a result of the Merger, an individual of securities that are not tailored for the two financial institutions (the Merger). exemption for the acquisition, holding, use of JPMorgan. While many of these The Merger became effective on July 1, and disposition of common stock of indices are not currently utilized by 2004, on which date each share of Bank JPMC (i.e., JPM Stock) is necessary to JPMorgan for its Index and Model- One common stock was exchanged for enable certain Index and Model-Driven Driven Funds, there is a possibility that 1.32 shares of the common stock of Funds managed by JPMorgan (formerly Funds holding assets of ERISA-covered JPMC. The combined company is managed by BOIA) to acquire, hold, and plans will be established in the future known as JPMorgan Chase & Co. (also dispose of JPM Stock. In this regard, that are based on these indices. referred to herein as JPMC) and there have been Funds that, since The Applicants represent that there continues its corporate existence under January 14, 2004, have acquired, held, were at least seven (7) different Index Delaware law. The common stock of and/or disposed of JPM Stock. The Funds maintained by Bank One that JPMC trades on the New York Stock Applicants request a retroactive included JPM Stock in their portfolios, exchange under the trading symbol exemption, effective as of January 14, as of January 14, 2004. These Funds ‘‘JPM.’’ 2004 to the date that this proposed were all separately managed accounts With assets of approximately $1.1 exemption is granted, to permit such that invest in either an S&P 500 or trillion and operations in more than 50 transactions by these Funds. The Russell 1000 Value Index strategy. countries, JPMC is a leader in Applicants are not requesting any 6. The Applicants state that the investment banking, financial services retroactive relief for any pre-Merger proposed exemption is desirable to for consumers and businesses, financial acquisition, holding or disposition of allow Funds holding ‘‘plan assets’’ to transaction processing, asset and wealth the common stock of Bank One. purchase and hold JPM Stock in order management, and private equity. The 3. The Applicants represent that they to replicate the capitalization-weighted headquarters for JPMC is located in New provide investment advisory and or other specified composition of JPM York. management services to ERISA-covered Stock in an independently maintained 9 JPMC is internally organized for plans through separately managed third party index used by an Index management reporting purposes into six accounts and through collective 9 According to the Applicants, various methods major lines of business: (i) Asset & investment vehicles. The Applicants’ other than capitalization-weighting that may be Wealth Management; (ii) Card Services; investment management services used to determine the composition of JPM Stock in (iii) Commercial Banking; (iv) include indexed, quantitative, and Continued

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Fund or to achieve the desired 7. In the case of a Buy-up, if the be detected. Should the trading transformation of an index used to necessary number of shares of JPM procedures need modifications due to create a portfolio for a Model-Driven Stock cannot be acquired within 10 days unforeseen events or consequences, the Fund.10 In addition, the Applicants from the date of the event that causes independent fiduciary will be required represent that there will be instances, the particular Fund to require JPM to consult with the Applicants and must once this proposed exemption is Stock, JPMorgan will appoint a approve in advance any alteration of the granted, when JPM Stock will be added fiduciary that is independent of trading procedures. to an index on which a Fund is based JPMorgan to design acquisition 8. Subsequent to initial acquisitions or will be added to the portfolio of a procedures and monitor JPMorgan’s pursuant to a Buy-up, all aggregate daily Fund which seeks to track an index that compliance with such procedures.13 purchases of JPM Stock by the Funds includes such Stock.11 In such The independent fiduciary and its will not exceed, on any particular day, instances, acquisitions of JPM Stock will principals will be completely the greater of: be necessary to bring the Fund’s independent from the Applicants. The (i) Fifteen (15) percent of the average holdings of such Stock either to its independent fiduciary will also be daily trading volume for the JPM Stock capitalization-weighted or other experienced in developing and occurring on the applicable exchange specified composition in the index, as operating investment strategies for and automated trading system (as determined by the independent individual and collective investment described herein) 14 for the previous five organization maintaining such index, or vehicles that track third party indices. (5) business days, or to the correct weighting for such Stock Furthermore, the independent fiduciary (ii) Fifteen (15) percent of the trading as determined by the computer model will not act as the broker for any volume for JPM Stock occurring on the that has been used to transform the purchases or sales of JPM Stock and will applicable exchange and automated index. If the Index or Model-Driven not receive any commissions as a result trading system (as described herein) on Fund holds ‘‘plan assets,’’ the of this initial acquisition program. the date of the transaction, as Applicants represent that all The independent fiduciary will have determined by the best available acquisitions of JPM Stock by such Fund as its primary goal the development of information for the trades that occurred will comply with the ‘‘Buy-up’’ trading procedures that minimize the on such date. conditions contained in Section II(c) of market impact of purchases made 9. JPMorgan represents that, as of this proposed exemption.12 pursuant to the initial acquisition January 14, 2004, until the date this program by the Funds. The Applicants proposed exemption is granted, all an index are as follows: (i) An index may weigh would expect that, under the trading purchases and sales of JPM Stock by the each of the securities that comprise the index procedures established by the Funds have occurred and will continue equally, regardless of the relative capitalization of independent fiduciary, the trading to occur in one of the following ways: the issuer; (ii) an index might use share weighting, (i) Through a direct, arms-length where the weighting of each stock is determined activities will be conducted in a low- based on the total number of shares of each issuer transaction entered into on a principal profile, mechanical, non-discretionary 15 available on the market; and (iii) in price weighting, manner and would involve a number of basis with a broker-dealer that is the weighting of each stock is based on the price independent of JPMorgan and is small purchases over the course of each of the stocks in the index, a stock with a higher registered under the 1934 Act, and price will have a greater weight in the index than day, randomly timed. The Applicants thereby subject to regulation by the SEC; a stock with a lower price. The Dow Jones further expect that such a program will Industrial Average is an example of a price (ii) through an automated trading allow the Applicants to acquire the weighted index. system (as defined in Section IV(i) 10 necessary shares of JPM Stock for the The Applicants are not requesting any relief above) operated by a broker-dealer from sections 406 or 407(a) of the Act in connection Funds with minimum impact on the independent of JPMorgan that is with the acquisition and holding of JPM Stock by market and in a manner that will be in registered under the 1934 Act, and any employee benefit plans established and the best interests of any employee maintained by JPMorgan for its own employees that thereby subject to regulation by the SEC, benefit plans that participate in such invest in the Applicants’ Index Funds. In this or an automated trading system regard, the Applicants represent that such Funds. transactions may be covered by the statutory The independent fiduciary will also operated by a recognized securities exemption under section 408(e) of the Act, if the be required to monitor the Applicants’ conditions of that exemption are met. However, the 14 The Department notes that the Act’s fiduciary Department expresses no opinion in this proposed compliance with the trading program responsibility provisions would apply to the exemption as to whether the conditions of section and procedures developed for the initial manager’s selection of a trading venue, including an 408(e) of the act have been or will be met. acquisition of JPM Stock. During the automated trading system, to effect purchases and 11 The Applicants represent that the inclusion or course of any initial acquisition sales of JPM Stock on behalf of its managed Index exclusion of JPM Stock from an index and the program, the independent fiduciary will and Model-Driven Funds. weighting or changes to the weighting of JPM Stock 15 The Department notes that no relief is provided in an index are based on data, criteria, and be required to review the activities herein for purchases and sales of securities between methodology determined by the organization that weekly to determine compliance with a Fund and a broker-dealer, acting as a principal, creates and maintains the index, which cannot be the trading procedures and notify the which may be considered prohibited transactions as varied by JPMorgan. Changes in the weighting of Applicants should any non-compliance a result of such broker-dealer being a party in JPM Stock in a Fund would occur when there is a interest, under section 3(14) of the Act, with respect change in factors underlying the applicable to any plans that are investors in the Fund. weighting methodology. Changes in index of purchases made by the Funds in any ‘‘Buy-up’’ However, such transactions may be covered by one weightings are, for the most part, triggered by of JPM Stock. or more of the Department’s existing class corporate actions (buying back shares, issuing more 13 In this regard, all Funds holding JPM Stock, as exemptions. For example, PTE 84–14 (49 FR 9497, shares or acquiring another company for stock). of January 14, 2004, that have continued to acquire, March 13, 1984, as amended 70 FR 49305 (Aug. 23 12 The Applicants anticipate that, generally, hold, and dispose of JPM Stock in order to track 2005)) permits, under certain conditions, parties in acquisitions of JPM Stock by an Index or Model- indices including JPM Stock will not need to have interest to engage in various transactions with plans Driven Fund in a ‘‘Buy-up’’ will occur within 10 daily transactions involving such Stock directed by whose assets are invested in an investment fund business days from the date of the event that causes an independent fiduciary. The Applicants state that managed by a ‘‘qualified professional asset the particular Fund to require the addition of JPM the amount of JPM Stock involved in such manager’’ (QPAM) who is independent of the Stock. The Applicants do not anticipate that the transactions has been and continues to be parties in interest (with certain limited exceptions) amounts of JPM Stock acquired by any Fund in a determined by the independent organization that and meets specified financial standards. The ‘‘Buy-up’’ will be significant. In this regard, the created and maintains the relevant index, and all Department expresses no opinion as to whether any Department notes that the conditions required other conditions required under this proposed of its class exemptions would provide relief in this herein are designed to minimize the market impact exemption have been met. circumstance.

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exchange (as defined in Section IV(j) otherwise be subject to an exemption), upon which the Fund is based or, in the above), which, in either case, provides other than certain blind trades.17 case of a Model-Driven Fund, a a mechanism for customer orders to be 11. The Applicants state that no more modified version of such an index as matched on an anonymous basis than five (5) percent of the total amount created by a computer model based on without the participation of a broker- of JPM Stock that is issued and prescribed objective criteria and third dealer; or (iii) through a recognized outstanding at the time, will be held in party data.18 securities exchange as defined in the aggregate by Index and Model- 12. The Applicants state that plan Section IV(j) above so long as the broker Driven Funds managed by JPMorgan. fiduciaries independent of JPMorgan is acting on an agency basis. For purposes of the acquisition and have authorized and will continue to holding of JPM Stock by Funds from In addition, JPMorgan states that as of authorize the investment of any plan’s January 14, 2004 until the date this the date this proposed exemption is assets in an Index or Model-Driven proposed exemption is granted, such granted, all future transactions by the Fund that purchases and/or holds JPM Stock will constitute no more than three Funds involving JPM Stock which do Stock. (3) percent of any independent third not occur in connection with a Buy-up With respect to transactions involving party index on which the investments of of such Stock by a Fund, as described JPM Stock, the Applicants state that an Index or Model-Driven Fund are above, will be either: (i) Entered into on they may provide portfolio management based. For example, as of March 31, a principal basis with a broker-dealer services (i.e., PMF services) to a 2008, JPM Stock represents 1.27% of the particular plan (a PMF Plan). In this that is registered under the 1934 Act, S&P 500 Index and 2.31% of the Russell and thereby subject to regulation by the regard, the Applicants may exercise 1000 Value Index. Although some some discretion in allocating and SEC; (ii) effected on an automated indices may include JPM Stock in trading system (as defined in Section reallocating the plan’s assets among percentages that exceed three (3) various funds, including Index or IV(i) above) operated by a broker-dealer percent of the index, JPMorgan does not independent of JPMorgan subject to Model-Driven Funds that may hold JPM currently utilize such indices for its Stock. These allocations are based on a regulation by the SEC, or on an Index and Model-Driven Funds with automated trading system operated by a plan’s investment objectives, risk ‘‘plan assets’’ subject to the Act. profile, and market conditions. recognized securities exchange (as For purposes of future acquisitions However, the Applicants make the defined in Section IV(j) above) which, in and holdings of JPM Stock by such following representations with respect either case, provides a mechanism for Funds, if this proposed exemption is to the purchase, directly or indirectly, of customer orders to be matched on an granted, JPM Stock will constitute no JPM Stock by such plans: anonymous basis without the more than five (5) percent of any (a) The Applicants represent that any participation of a broker-dealer; or (iii) independent third party index on which prohibited transactions that might occur effected through a recognized securities the investments of an Index or Model- as a result of the discretionary allocation exchange (as defined in Section IV(j) Driven Fund are based. above), so long as the broker is acting on With respect to an index’s specified and reallocation of plan assets among an agency basis.16 composition of particular stocks in its collective investment funds will be exempt from the prohibitions of section 10. With respect to all acquisitions portfolio, the Applicants state that 406 of the Act by reason of section and dispositions of JPM Stock by the future Funds may track an index where 408(b)(8).19 Funds since January 14, 2004, the the appropriate weighting for stocks (b) Before JPM Stock is purchased by Applicants state that no such listed in the index is not capitalization- a Fund, the appropriate independent transactions have involved purchases weighted. Thus, the Applicants state fiduciary for each PMF Plan that is from or sales to JPMorgan (including that Funds maintained by JPMorgan and currently invested, or could be invested, officers, directors, or employees affiliates of JPMC may track indices in such Fund will be furnished an thereof), or any party in interest that is where the selection of a particular stock explanation and a simple form to return a fiduciary with discretion to invest by the index, and the amount of stock to JPMorgan for the purpose of plan assets in the Fund (except for to be included in the index, is not indicating either approval or purchases or sales on an exchange or established based on the market disapproval of investments in the Fund through an automated trading system on capitalization of the corporation issuing a blind basis where the identity of the such stock. Therefore, since an independent organization may choose to 18 The Applicants represent that JPMorgan does counterparty is not known). The not currently manage any Model-Driven Funds, but, Applicants represent that all future create an index where there are other consistent with prior similar exemption (e.g., see acquisitions and dispositions of JPM index weightings for stocks comprising PTE 2000–30 (65 FR 37165, June 13, 2000) granted Stock by any Index or Model-Driven the index, the Applicants request that to Barclays Bank PLC), JPMorgan would like to the proposed exemption allow for JPM retain the flexibility to do so in the future in Funds maintained by JPMorgan also reliance on this exemption, if granted. A Model- will not involve any purchases from or Stock to be acquired by a Fund in the Driven Fund would be composed of securities the sales to JPMorgan (including officers, amounts that are specified by the identity of which and the amount of which are directors, or employees thereof), or any particular index, subject to the other selected by a computer model that is based upon restrictions imposed by this proposed prescribed objective criteria using independent party in interest that is a fiduciary with third party data, not within the control of JPMorgan, discretion to invest plan assets in the exemption. The Applicants represent to transform an independently maintained index. In Fund (unless the transaction by the that, in all instances, acquisitions or managing a Model Driven Fund that includes JPM Fund with such party in interest would dispositions of JPM Stock by a Fund Stock, JPMorgan would maintain the weightings of will be for the sole purpose of JPM Stock in strict quantitative conformity with the maintaining strict quantitative weightings determined by the computer model. 16 PTE 86–128 (51 FR 41686, November 18, 1986) 19 The Department expresses no opinion in this provides a class exemption, under certain conformity with the relevant index proposed exemption as to whether the Applicants’ conditions, permitting persons who serve as discretionary allocation and reallocation services fiduciaries for employee benefit plans to effect or 17 As set forth in Section II(e), the condition for any collective investment funds maintained by execute securities transactions on behalf of such would not apply to purchases or sales on an the Applicants satisfy the requirements of section plans. The Department expresses no opinion as to exchange or through an automated trading system 408(b)(8) of the Act and is not proposing any whether the conditions of this exemption would be on a blind basis where the identity of the exemptive relief beyond that offered by section satisfied. counterparty is not known. 408(b)(8) for such transactions.

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including JPM Stock, together with a independent fiduciary with all automated trading system operated by a postage-paid return envelope. If the necessary information regarding the broker-dealer independent of JPMorgan form is not returned to the Applicants, Funds that hold JPM Stock, the amount that is subject to regulation by the SEC, the Applicants may obtain a verbal of JPM Stock held by the Funds on the or an automated trading system response by telephone. If a verbal record date for shareholder meetings of operated by a recognized securities response is obtained by telephone, the the Applicants, and all proxy and exchange, which, in either case, Applicants will confirm the fiduciary’s consent materials with respect to JPM provides a mechanism for customer decision in writing within five (5) Stock. The independent fiduciary will orders to be matched on an anonymous business days. In the event that no maintain records with respect to its basis without the participation of a response is obtained from a plan activities as an independent fiduciary broker-dealer, or (iii) effected through a fiduciary, the assets of the plan will not on behalf of the Funds, including the recognized securities exchange, so long be invested in any Fund that invests in number of shares of JPM Stock voted, as the broker is acting on an agency JPM Stock and any plan assets currently the manner in which they were voted, basis. invested in such Fund at that time will and the rationale for the vote. The (e) No transactions by a Fund involve be withdrawn. independent fiduciary will supply the purchases from or sales to JPMorgan (c) Each new management agreement Applicants with such information after (including officers, directors, or with such a plan will contain language each shareholder meeting. The employees thereof), or any party in specifically approving or disapproving independent fiduciary will be required interest that is a fiduciary with the investment in any Fund which to acknowledge that it will be acting as discretion to invest plan assets into the holds or might hold JPM Stock. The a fiduciary with respect to the plans that Fund (unless the transaction by the fiduciary for each such plan will be invest in the Funds that own JPM Stock, Fund with such party in interest would informed that the existing management when voting such Stock. otherwise be subject to an exemption); agreement could be modified in the 14. In summary, with respect to all however, this condition would not same way. However, if the fiduciary past acquisitions, holdings, and apply to purchases or sales on an does not specifically approve language dispositions of JPM Stock by the Funds exchange or through an automated in the agreement allowing the since January 14, 2004, the Applicants trading system on a blind basis where investment of plan assets in Funds represent that such transactions meet the identity of the counterparty is not which hold or might hold JPM Stock, the criteria of section 408(a) of the Act known; then no such investment will be made for the following reasons: (f) No more than five (5) percent of the by the Applicants. (a) Each Index or Model-Driven Fund total amount of JPM Stock issued and (d) Each such plan will be informed involved is based on an Index, as outstanding at any time is held in the on a quarterly basis of any investment defined in Section IV(c) above; aggregate by Index and Model-Driven in, or withdrawal from, any Fund (b) The acquisition, holding, and Funds managed by JPMorgan; holding JPM Stock. On an annual basis, disposition of the JPM Stock by the (g) JPM Stock constitutes no more the plan will be notified of its right to Index or Model-Driven Fund is for the than three (3) percent of any terminate the Applicants’ discretionary sole purpose of maintaining strict independent third party index on which authority to invest in or withdraw from quantitative conformity with the the investments of an Index or Model- such Funds. If the plan terminates the relevant index upon which the Fund is Driven Fund are based; Applicants’ authority to invest in or based, and does not involve any (h) A plan fiduciary independent of withdraw from the Funds, then the agreement, arrangement, or JPMorgan authorizes the investment of Applicants will effect the plan’s understanding regarding the design or such plan’s assets in an Index or Model- withdrawal from the Funds as soon as operation of the Fund acquiring the JPM Driven Fund which purchases and/or reasonably practicable after being Stock that is intended to benefit holds JPM Stock; and notified of such termination. JPMorgan or any party in which (i) A fiduciary independent of 13. The Applicants will appoint an JPMorgan may have an interest; JPMorgan directs the voting of the JPM independent fiduciary that will direct (c) All aggregate daily purchases of Stock held by an Index or Model-Driven the voting of JPM Stock held by the JPM Stock by the Funds do not exceed, Fund on any matter in which Funds. Currently, the independent on any particular day, the greater of: shareholders of JPM Stock are required fiduciary that directs the voting of JPM fifteen (15) percent of the aggregate or permitted to vote. Stock held by the Funds is Institutional average daily trading volume for such With respect to all prospective Shareholder Services, Inc.20 Stock occurring on the applicable acquisitions, holdings, and dispositions JPMorgan states that in all instances exchange and automated trading system of JPM Stock by the Funds after this the independent fiduciary chosen to for the previous five (5) business days, proposed exemption is granted, the vote JPM Stock for the Funds will be a or fifteen (15) percent of the trading Applicants represent that such consulting firm specializing in corporate volume for the Stock occurring on the transactions will meet the criteria of governance issues and proxy voting on applicable exchange and automated section 408(a) of the Act for the behalf of institutional investors with trading system on the date of the following reasons: large equity portfolios. The fiduciary transaction, both as determined by the (a) Each Index or Model-Driven Fund will develop and follow standard best available information for the trades involved will be based on an Index, as guidelines and procedures for the voting occurring on that date or dates; defined in Section IV(c) above; of proxies by institutional fiduciaries. (d) All purchases and sales of JPM (b) The acquisition or disposition of The Applicants will provide the Stock occur either (i) on a principal JPM Stock will be for the sole purpose basis in a direct, arms-length transaction of maintaining strict quantitative 20 See 29 CFR 2509.94–2—Interpretive bulletin with a broker-dealer, in the ordinary conformity with the relevant Index relating to written statements of investment policy, course of its business, where such upon which the Index or Model-Driven including proxy voting policy or guidelines. The broker-dealer is independent of Fund is based, and will not involve any Department further notes that the Act’s general standards of fiduciary conduct also would apply to JPMorgan and is registered under the agreement, arrangement, or the selection of a service provider specializing in 1934 Act, and thereby subject to understanding regarding the design or proxy voting. regulation by the SEC, (ii) effected on an operation of the Fund acquiring the JPM

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Stock that is intended to benefit otherwise be subject to an exemption); FOR FURTHER INFORMATION CONTACT: Ms. JPMorgan or any party in which however, this condition would not Karen Lloyd of the Department, JPMorgan may have an interest; apply to purchases or sales on an telephone (202) 693–8554. (This is not (c) Whenever JPM Stock is initially exchange or through an automated a toll-free number.) added to an index on which a Fund is trading system on a blind basis where Pileco, Inc. Employees Profit Sharing based, or initially added to the portfolio the identity of the counterparty is not Plan (the Plan) Located in Houston, of a Fund (i.e., a Buy-up), all known; Texas acquisitions of JPM Stock necessary to (g) No more than five (5) percent of bring the Fund’s holdings of such Stock the total amount of JPM Stock that is [Application No. D–11449] either to its capitalization-weighted or issued and outstanding at any time, will Proposed Exemption other specified composition in the be held in the aggregate by Index and relevant index, as determined by the Model-Driven Funds managed by The Department is considering independent organization maintaining JPMorgan; granting an exemption under the such index, or to its correct weighting (h) JPM Stock will constitute no more authority of section 408(a) of the Act as determined by the computer model than five (5) percent of any independent and section 4975(c)(2) of the Code and that has been used to transform the third party index on which the in accordance with the procedures set index, will be restricted by conditions investments of an Index or Model- forth in 29 CFR Part 2570, Subpart B (55 that are designed to prevent possible Driven Fund are based; FR 32836, 32847, August 10, 1990). If market price manipulations; (i) A plan fiduciary independent of the exemption is granted, the (d) Subsequent to acquisitions JPMorgan will authorize the investment restrictions of sections 406(a), 406(b)(1) necessary to bring a Fund’s holdings of of such plan’s assets in an Index or and(b)(2) of the Act and the sanctions JPM Stock to its specified weighting in Model-Driven Fund that purchases and/ resulting from the application of section the index or model, pursuant to the or holds JPM Stock pursuant to the 4975 of the Code, by reason of section restrictions noted in paragraph (c) procedures described herein, including 4975(c)(1)(A) through (E) of the Code, above, all aggregate daily purchases of those which relate to portfolio shall not apply to the proposed sale of JPM Stock by the Funds will not exceed, management services provided to certain unimproved real property (the on any particular day, the greater of: certain plans (see Item 12 of the Property) by the Plan to Pileco, Inc. fifteen (15) percent of the aggregate (Pileco or the Applicant), the sponsor of average daily trading volume for such Summary of Facts and Representations above); and the Plan, and a party in interest with Stock occurring on the applicable respect to the Plan, provided that the (k) A fiduciary independent of exchange and automated trading system following conditions are satisfied: JPMorgan will direct the voting of the for the previous five (5) business days, (a) The sale is a one-time transaction JPM Stock held by an Index or Model- or fifteen (15) percent of the trading for cash; volume for the Stock occurring on the Driven Fund on any matter in which (b) At the time of the sale, the Plan applicable exchange and automated shareholders of JPM Stock are required receives the greater of either: (1) trading system on the date of the or permitted to vote. $280,000; or (2) the fair market value of transaction, both as determined by the Notice to Interested Persons the Property as established by a best available information for the trades qualified, independent appraiser in an that occurred on such date or dates; Notice of the proposed exemption updated appraisal of such Property; (e) All transactions in JPM Stock, shall be mailed by first class mail to (c) The Plan pays no fees, other than acquisitions of such Stock in interested persons, including the commissions or other expenses a Buy-up described in paragraph (c) appropriate independent fiduciaries for associated with the sale; above, will be either: (i) Entered into on employee benefit plans currently (d) The terms and conditions of the a principal basis with a broker-dealer, in invested in the Index and/or Model- sale are at least as favorable to the Plan the ordinary course of its business, Driven Funds that acquire and hold JPM as those obtainable in an arm’s length where such broker-dealer is Stock. The notice shall contain a copy transaction with an unrelated third independent of JPMorgan and is of the proposed exemption as published party; and registered under the 1934 Act, and in the Federal Register and an (e) The Plan trustee (1) Determines, thereby subject to regulation by the SEC, explanation of the rights of interested among other things, whether it is in the (ii) effected on an automated trading parties to comment, or request a best interest of the Plan to proceed with system operated by a broker-dealer hearing, regarding the proposed the sale of the Property; (2) reviews and independent of JPMorgan subject to exemption. All notices should be sent to approves the methodology used in the regulation by the SEC, or by a interested persons within 15 days of the appraisal that is being relied upon; and recognized securities exchange which, publication of this proposed exemption (3) ensures that such methodology is in either case, provides a mechanism for in the Federal Register. Any written applied by the qualified independent customer orders to be matched on an comments and/or requests for a hearing appraiser in determining the fair market anonymous basis without the must be received by the Department value of the Property on the date of the participation of a broker-dealer, or (iii) from interested persons within 45 days sale. effected through a recognized securities of the publication of this proposed exchange (as defined herein), so long as exemption in the Federal Register. Summary of Facts and Representations the broker is acting on an agency basis; In addition, if this exemption is 1. The Plan is a defined contribution (f) No transactions by a Fund will granted, JPMorgan shall provide a copy profit sharing plan without a 401(k) involve purchases from or sales to of the proposed exemption and a copy feature. The Plan was effective as of JPMorgan (including officers, directors, of the final exemption upon request to October 1, 1974, and was most recently or employees thereof), or any party in all ERISA-covered plans that invest in restated effective May 8, 2004. As of interest that is a fiduciary with any Index or Model-Driven Fund that September 30, 2006, the Plan had a total discretion to invest plan assets into the will include JPM Stock in its portfolio of 27 participants, and approximately Fund (unless the transaction by the after the date the final exemption is $2.99 million in total assets. The Plan’s Fund with such party in interest would published in the Federal Register. current trustee is Mr. Otto Kammerer,

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who is also the Chairman of the Board shape. Mr. LaGrasta determined that the 6. The Applicant requests an of Directors of Pileco, as well as the Plan fair market value of the Property was individual exemption from the participant with the largest account $140,000 as of September 22, 2006. Department in order to purchase the balance. As of September 30, 2006, Mr. In his original appraisal, Mr. LaGrasta Property from the Plan. The Applicant Kammerer’s Plan account comprised did not attribute any special benefit to represents that the Property is being approximately 28% (or $837,200) of the the value of the Property from Pileco’s sold as part of a change in control in Plan’s total assets. ownership of the adjacent property due which 100% of the capital stock of 2. Pileco, which maintains its to a number of factors, including: (a) A Pileco was acquired on October 7, 2005 principal place of business in Houston, large amount of undeveloped land that by Bauer, which was then unaffiliated Texas, is primarily involved in the is available in the area for purchase; (b) with the pre-October 7, 2005 engineering, fabrication, sale, rental, the comparatively larger size of Pileco’s shareholders of Pileco. The Board of and servicing of diesel pile hammers. neighboring land in comparison to the Directors of Pileco has approved the Pileco is a wholly-owned subsidiary of size of the Property; (c) the less complete freeze and termination of the Bauer Mashinen, GmbH (Bauer), a desirable location of the Property in Plan coincident with the closing of such corporation organized under the laws of relation to Pileco’s neighboring land; an acquisition. In connection with the the Federal Republic of Germany. Bauer and (d) the Property’s lack of significant termination of the Plan, an application is a multinational firm, headquartered street frontage or other qualities that will be filed with the Internal Revenue in Schrobenhausen, Germany, that make it attractive for purposes of Service for a favorable determination specializes in engineering, construction, commercial development. Therefore, regarding the Plan’s status as a qualified and heavy equipment manufacturing. Mr. LaGrasta did not include any plan. Once such determination is 3. On March 26, 1980, the Plan premium for assemblage value.22 received, the Plan will be liquidated and purchased the Property from Richard 5. An updated appraisal of the all account balances under the Plan will and Christine Levinge, unrelated third Property was prepared by Mr. LaGrasta be distributed. Thus, the proposed parties, for $77,912.15. The on January 21, 2008, and it reflects the transaction is motivated, in part, by a consideration was paid in cash. The current market conditions. The Property need to increase the Plan’s liquidity in Property is a vacant and unimproved was again valued using the Sales anticipation of the distribution of 69,670 square foot parcel of land Comparison Approach. Mr. LaGrasta participants’ account balances. (consisting of 1.5994 acres) located east compared the Property to three other 7. It is also represented that the Plan of Madie Drive, and north of Berry Road similar properties sold within close has made efforts to sell the Property to in Houston, Texas (Harris County). The proximity to the Property since March unrelated third parties. To this end, the Property is adjacent to other 2007. He adjusted the sales price of the Plan listed the Property on the open unimproved property that is owned by comparable properties based upon the market for a number of years at a listing Pileco. Mr. Kammerer, as the Plan sales date, location, size and shape. Mr. price of $4.00 per square foot trustee, made the original decision to LaGrasta determined that the fair market ($278,680). However, this listing price purchase the Property as a long-term value of the Property was $270,000 as of was not based on a professional growth investment for the Plan.21 Since January 21, 2008. Based on its current appraisal of the Property. During the the time of acquisition, the Property has appraised value, the Property currently listing period, the Plan did not receive not been an income-producing asset. represents approximately 9% of the any offers from third-party purchasers to Mr. Kammerer represents that all Plan’s assets. purchase the Property. holding costs that have been incurred In the updated appraisal report, Mr. 8. The Plan will pay no real estate with respect to the Property since its LaGrasta again stated that the subject commissions or other expenses acquisition in 1980, including, but not Property does not enhance the value of associated with the sale. Pileco will pay limited to: Property taxes, liability the property currently owned by Pileco. the Plan in cash, the greater of either: (a) insurance premiums, and expenses He determined that the payment by $280,000; 23 or (b) the fair market value associated with securing the premises, Pileco of an adjacency premium for the of the Property, as established by a have been paid in full by Pileco. Property is not supported because: (a) qualified, independent appraiser on the 4. The Property was originally The Pileco tract has extensive frontage date of the transaction, as reflected in an appraised on September 22, 2006, by in its current configuration; (b) there is updated appraisal of such Property.24 Stephen M. LaGrasta, MAI, who is an other land available in the mixed use Further, the parties will enter into a real independent, state-certified real estate area and scarcity would not be an issue; estate contract to evidence the proposed appraiser in the State of Texas. Mr. (c) the Pileco property is not hampered sale transaction. LaGrasta is a principal in the real estate by size, visibility and street frontage; 9. As the Plan trustee, Mr. Kammerer, appraisal firm of Yates-LaGrasta, Inc. of and (d) the Pileco-owned property can will determine, among other things, Houston, Texas. In an appraisal report be easily developed without the whether it is in the best interest of the dated October 2, 2006, Mr. LaGrasta addition of the subject Property. Plan to go forward with the sale of the valued the Property using the Sales Further, Mr. LaGrasta pointed out that Property. In addition, Mr. Kammerer Comparison Approach. Mr. LaGrasta the addition of the Property would tend will review and approve the compared the Property to five other to lower the per square foot value of the properties sold within close proximity combined tract due to doubling in size. 23 Pileco proposes to pay the appraised fair to the Property between January 2005 Also, Mr. LaGrasta noted that the market value of the Property of $270,000, plus and September 2006. He adjusted the combined tract would still be $10,000 which would be paid in full, in cash, at a sale price of the comparable properties irregularly-shaped, which could hamper closing to be held within thirty (30) days of the publication in the Federal Register of the notice based upon sales date, location, size and development and make the site less granting the final exemption. functional. 24 The Applicant represents that, to the best of its 21 The Plan once owned another parcel of knowledge, to the extent the amount paid by Pileco property that was adjacent to the subject Property. 22 ‘‘Assemblage’’ value reflects the willingness of for the Property exceeds its fair market value, such This property was sold to Pileco for $152,678, a purchaser to pay above market value for a parcel excess amount (if treated as an employer pursuant to the Department’s expedited exemption of property in order to preserve such purchaser’s contribution) will not cause the annual additions to procedure (See E–00521; FAN 2006–12E, June 8, interest in their present holdings of other parcels the Plan to exceed the limitations prescribed by 2006). which are adjacent to such property. section 415 of the Code.

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methodology used in the appraisal that forth in 29 CFR part 2570, subpart B (55 specified in the Notes, BNYMC will is being relied upon, and he will ensure FR 32836, 32847, August 10, 1990). refund such excess amounts promptly to that such methodology is applied by a If the proposed exemption is granted, the Fund (after deducting all reasonable qualified independent appraiser in the restrictions of sections 406(a), expenses incurred in connection with determining the fair market value of the 406(b)(1) and 406(b)(2) of the Act and the recovery). Property on the date of the sale. the sanctions resulting from the (g) Mellon and its affiliates, as 10. In summary, it is represented that application of section 4975 of the Code, applicable, maintain, or cause to be the proposed transaction will satisfy the by reason of section 4975(c)(1)(A) maintained, for a period of six (6) years statutory criteria for an exemption through (E) of the Code, shall not apply from the date of any covered transaction under section 408(a) of the Act because: as of January 18, 2008, to the cash sale such records as are necessary to enable (a) The proposed sale will be a one- of certain medium term notes (the the persons described below in time transaction for cash; Notes) for $28,584,601.46 by the EB paragraph (h)(i), to determine whether (b) The Plan will receive the greater Daily Liquidity Money Market Fund the conditions of this exemption have of either: (the Fund) to The Bank of New York been met, except that— (i) $280,000; or (ii) the fair market Mellon Corporation (BNYMC), a party (i) No party in interest with respect to value for the Property, as established on in interest with respect to employee a plan which engages in the covered the date of the sale by an independent, benefit plans invested in the Fund, transactions, other than Mellon and its qualified appraiser in an updated provided that the following conditions affiliates, as applicable, shall be subject appraisal of such Property; are met. to a civil penalty under section 502(i) of (c) The Plan will pay no fees, (a) The sale was a one-time the Act or the taxes imposed by section commissions or other expenses transaction for cash payment made on a 4975(a) and (b) of the Code, if such associated with the sale; delivery versus payment basis in the records are not maintained, or not (d) The terms and conditions of the amount described in paragraph (b); available for examination, as required, sale will be at least as favorable to the (b) The Fund received an amount as below, by paragraph (h)(i); and Plan as those obtainable in an arm’s of the settlement date of the sale which (ii) A separate prohibited transaction length transaction with an unrelated was equal to the greatest of: shall not be considered to have occurred third party; and (i) The amortized cost of the Notes as solely because due to circumstances (e) The Plan trustee: (i) Will of the date of the sale, if the Fund has beyond the control of Mellon or its determine, among other things, whether been valued at amortized cost at any affiliate, as applicable, such records are it is in the best interest of the Plan to time within the preceding year; lost or destroyed prior to the end of the proceed with the sale of the Property; (ii) The price at which the Fund six-year period. (ii) will review and approve the purchased the Notes, if the Fund is (h)(i) Except as provided, below, in methodology used in the appraisal that valued at fair market value and the paragraph (h)(ii), and notwithstanding is being relied upon; and (iii) will Fund has not been valued at amortized any provisions of subsections (a)(2) and ensure that such methodology is applied cost at any time within the preceding (b) of section 504 of the Act, the records by the qualified independent appraiser year; or referred to, above, in paragraph (g) are in determining the fair market value of (iii) The fair market value of the Notes unconditionally available at their the Property on the date of the sale. as of the date of the sale, as determined customary location for examination Tax Consequences of the Proposed by an independent third party source or during normal business hours by— Transaction independent appraisal (in each case, (A) Any duly authorized employee or including accrued but unpaid interest); representative of the Department, the The Department of the Treasury has (c) The Fund did not bear any Internal Revenue Service, or the SEC; or determined that if a transaction between commissions or transaction costs with (B) Any fiduciary of any plan that a qualified employee benefit plan and respect to the sale; engages in the covered transactions, or its sponsoring employer (or affiliate (d) Mellon, as trustee of the Fund, any duly authorized employee or thereof) results in the plan either paying determined that the sale of the Notes representative of such fiduciary; or less than or receiving more than fair was appropriate for and in the best (C) Any employer of participants and market value, such excess may be interests of the Fund, and the employee beneficiaries and any employee considered to be a contribution by the benefit plans invested, directly or organization whose members are sponsoring employer to the plan and, indirectly, in the Fund, at the time of covered by a plan that engages in the therefore, must be examined under the transaction; covered transactions, or any authorized applicable provisions of the Internal (e) Mellon took all appropriate actions employee or representative of these Revenue Code, including sections necessary to safeguard the interests of entities; or 401(a)(4), 404 and 415. the Fund, and the employee benefit (D) Any participant or beneficiary of FOR FURTHER INFORMATION CONTACT: plans invested in the Fund, in a plan that engages in the covered Blessed Chuksorji-Keefe of the connection with the transactions; transactions, or duly authorized Department at (202) 693–8567. (This is (f) If the exercise of any of BNYMC’s employee or representative of such not a toll-free number). rights, claims or causes of action in participant or beneficiary; connection with its ownership of the (ii) None of the persons described, Mellon Bank N.A. (Mellon) Notes results in BNYMC recovering above, in paragraph (h)(i)(B)— Located in Pittsburgh, Pennsylvania. from the issuer of the Notes, or any third (D) Shall be authorized to examine [Application No. D–11460] party, an aggregate amount that is more trade secrets of Mellon, or commercial than the sum of: or financial information which is Proposed Exemption (i) The purchase price paid for the privileged or confidential; and The Department is considering Notes by BNYMC (i.e., $28.5 million); (iii) Should Mellon refuse to disclose granting an exemption under the and information on the basis that such authority of section 408(a) of the Act (ii) The interest due on the Notes from information is exempt from disclosure, and section 4975(c)(2) of the Code, in and after the date BNYMC purchased Mellon shall, by the close of the accordance with the procedures set the Notes from the Fund, at the rate thirtieth (30th) day following the

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request, provide a written notice (similar to a money market mutual fund) 6. On November 7, 2007, S&P placed advising that person of the reasons for with the result that units of the Fund are a ‘‘negative watch’’ on the Notes. On the refusal and that the Department may generally valued at a constant amount December 21, 2007, Moody’s request such information. equal to $1.00. The Fund’s net income downgraded the rating of the Notes to (including any accretion of discounts or ‘‘Baa3.’’ On January 7, 2008, S&P Summary of Facts and Representations amortization of premiums) is accrued downgraded the rating of the Notes to 1. Mellon Bank, N.A. (Mellon) is a daily and additional units are issued to ‘‘B-.’’ Responding to these events, subsidiary of The Bank of New York reflect such net income. Mellon, on behalf of the Fund, executed Mellon Corporation (BNYMC), a 3. The Fund purchased the Notes on an amendment to the security agreement Delaware financial services company January 27, 2007, for $28.5 million. The governing the Notes on January 7, 2008. that provides a wide range of banking Notes were two year bonds with a par Pursuant to this amendment, by and fiduciary services to a broad array value of $28.5 million, issued by providing notice (Election Notice) on or of clients, including employee benefit Stanfield Victoria Finance Ltd. (the before January 17, 2008, Mellon could plans subject to the Act. The Fund is a Issuer) on March 24, 2006, with a elect to have the pro-rata share of the collective investment fund established maturity date of March 27, 2008. collateral assets allocable the Notes held and maintained by Mellon, as trustee, Interest on the Notes was taxable and by the Fund excluded from any asset for the collective investment and payable quarterly at a variable rate sale by the collateral agent that would reinvestment of assets contributed which was reset each quarter based otherwise occur immediately upon the thereto by Mellon and its affiliates on upon the three-month London Interbank occurrence of an Enforcement Event. On behalf of their employee benefit plan Offered Rate (LIBOR). The principal January 8, 2008, as a result of the clients. The Fund is a group trust that amount and unpaid interest on the foregoing ratings down-grades, an is exempt from federal income tax Notes were payable at maturity. Enforcement Event occurred. On pursuant to Rev. Rul. 81–100. As of 4. The Issuer is a so-called structured January 10, 2008, the Issuer did not January 7, 2008, the value of the Fund’s investment vehicle (SIV) that raised repay certain notes maturing on that portfolio (including the Notes) was capital primarily by issuing various date. On January 14, 2008, Mellon approximately $1.39 billion. As of such types and classes of notes, including the submitted an Election Notice to the date, there were 25 direct investors in Notes. The capital raised was then collateral agent instructing the collateral the Fund, including 21 other collective utilized by the Issuer to purchase agent to exclude the Fund’s pro rata investment funds maintained by various financial assets, including other share of the Issuer’s assets from the asset Mellon, three employee benefit plans asset-backed securities and mortgage- sale triggered by the occurrence of the subject to the Act (including the Mellon backed securities. The assets acquired Enforcement Event on January 8, 2008. 401(k) Retirement Savings Plan) and one by the Issuer were pledged to secure On January 15, 2008, Moody’s further government plan. payment of certain of the notes issued downgraded its rating of the Notes to 2. The Fund is a short-term ‘‘B2.’’ On January 17, 2008, S&P further investment fund (‘‘STIF’’) that is by the Issuer, including the Notes, pursuant to a security agreement with downgraded its rating of the Notes to utilized as (i) a short-term investment ‘‘D.’’ vehicle for the uninvested cash held by an independent bank serving as collateral agent. This security agreement 7. Mellon’s election was based on other Mellon collective investment Mellon’s determination that the market funds and individual employee benefit provided that, as a general rule, upon the occurrence of an ‘‘Enforcement for the collateral assets securing the plan clients of Mellon and its affiliates, Notes was severely distressed and that Event,’’ as defined in the agreement, the and (ii) as an investment option for the inherent value of such assets was collateral agent was required to sell all 401(k) plan clients. As of January 7, substantially greater than the price that of the Issuer’s assets and distribute the 2008, the Fund’s dollar-weighted could have been obtained if such assets proceeds thereof. average duration/days to reset was 30.7 were sold currently by the collateral 5. The decision to invest Fund assets days. The Fund’s stated investment agent. Accordingly, Mellon determined in the Notes was made by Mellon as objective provides that the Fund is to that it was in the best interest of the trustee of the Fund. Prior to the achieve a high level of current income Fund to exclude such assets from a investment, Mellon conducted an consistent with stability of principal current sale. and liquidity. The assets of the Fund are investigation of the potential 8. While the units of the Fund are invested in a diversified portfolio of investment, examining and considering generally valued at $1.00, Mellon, as investment grade money market the economic and other terms of the Trustee of the Fund, obtains market instruments including, without Notes. Mellon represents that the Fund’s prices for all of the Fund’s assets to limitation, commercial paper (including investment in the Notes was consistent confirm that the fair market value of paper issued under Section 3(a)(3), with the Fund’s investment policies and such assets is substantially consistent Section 4(2) and Rule 144A of the objectives. At the time the Fund with the constant $1.00 value being Securities Act of 1933), the Mellon EB acquired the Notes, the Notes were rated utilized in the operation of the Fund. Temporary Investment Fund, notes, ‘‘AAA’’ by Standard & Poor’s Mellon utilizes an unrelated entity, repurchase agreements and other Corporation (‘‘S&P’’) and ‘‘Aaa’’ by Interactive Data Corporation (IDC), as a evidences of indebtedness which are Moody’s Investor Services, Inc. pricing service for this purpose. On payable on demand or which have a (‘‘Moody’s’’). Based on its consideration January 11, 2008, IDC reported the price maturity date not exceeding 13 months of the relevant facts and circumstances, of the Notes as being 99.0501 percent of from date of purchase, except for Mellon states that it was prudent and their par value. Mellon questioned the floating rate securities, which may have appropriate for the Fund to acquire the IDC price in light of the facts discussed a final maturity of up to two years from Notes.25 in paragraph 6 above and the fact that date of purchase. The Fund maintains a Credit Suisse First Boston had indicated dollar-weighted average portfolio 25 The Department is expressing no opinion in that the Notes were trading at distressed this proposed exemption regarding whether the maturity of 90 days or less. Consistent acquisition and holding of the Notes by the Fund levels. IDC announced on January 11, with the foregoing, the Fund utilizes so- violated any of the fiduciary responsibility 2008 that, effective January 15, 2008, it called amortized cost accounting provisions of Part 4 of Title I of the Act. would no longer price the Notes in view

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of the occurrence of an Enforcement prices for any actual trades being because: (a) The sale of the Notes by the Event and ‘‘the lack of current bid and substantially below the GFA value. On Fund was a one-time transaction for other verifiable market and/or credit the basis of this information, Mellon cash payment made on a delivery versus information pertaining’’ to the Notes. As determined that the purchase price paid payment basis; (b) the Fund received an a result of the events described in by BNYMC to the Fund exceeded the amount equal to the amortized cost of paragraph 6, an independent analysis of aggregate fair market value of the Notes the Notes, plus accrued but unpaid the Notes prepared by Gifford Fong as of the date of the transaction. interest, at the time of sale, which was Associates (GFA) was obtained on 12. Mellon, as trustee of the Fund, greater than the aggregate fair market January 11, 2008. The analysis believed that the sale of the Notes to value of the Notes as determined by an estimated the value of the Notes, as of BNYMC was in the best interests of the independent pricing service and an January 10, 2008, at 91 percent of their Fund, and the employee benefit plans independent valuation firm at the time par value. GFA’s determination of the invested in the Fund, at the time of the of sale; (c) the Fund did not pay any value of the Notes was based upon its transaction. Mellon states that any sale commissions or other expenses with analysis and evaluation of the of the Notes on the open market would respect to the sale; (d) Mellon, as trustee underlying assets of the Issuer relating have produced significant losses for the of the Fund, determined that the sale of to the Notes. Fund and for the participating investors the Notes to BNYMC was in the best 9. In view of the foregoing, Mellon in the Fund. Mellon represents that the interests of the Fund, and the employee determined that it would be appropriate sale of the Notes by the Fund to BNYMC benefit plans invested, directly or and in the best interest of the Fund for benefited the participating investors in indirectly, in the Fund, at the time of the Notes to be sold by the Fund for the Fund by placing such investors in the transaction; (e) Mellon took all their par value plus accrued interest. the same economic position they would appropriate actions necessary to Mellon also determined that the have occupied absent the deterioration safeguard the interests of the Fund in purchase of the Notes by BNYMC would in the value of the Notes due to their connection with the transactions; and (f) be permissible under applicable banking rating downgrades, the occurrence of an BNYMC will promptly refund to the law. Therefore, in order to protect the Enforcement Event and the general Fund any amounts recovered from the Fund and the participating investors disruption in the relevant markets. The Issuer or any third party in connection having an interest in the Fund from participating investors in the Fund with its exercise of any rights, claims or potential investment losses, Mellon benefited further because the purchase causes of action as a result of its determined that a sale of the Notes by price paid by BNYMC for the Notes ownership of the Notes, if such amounts the Fund to BNYMC at a price equal to substantially exceeded the aggregate fair are in excess of the sum of: (i) the the par value of the Notes plus accrued market value of the Notes, as purchase price paid for the Notes by interest would be in the best interest of determined by GFA. BNYMC (i.e. $28.5 million) and (ii) the the Fund and all of its participating In addition, Mellon states that the interest due on the Notes from and after investors. On January 17, 2008, notice of transaction was a one-time sale for cash the date BNYMC purchased the Notes this determination was provided to a in connection with which the Fund did from the Fund, at the rate specified in representative of each of the 25 not bear any brokerage commissions, the Notes. investors having a direct interest in the fees, or other expenses. Mellon Fund. represents that it took all appropriate Notice to Interested Persons 10. On January 18, 2008, BNYMC actions necessary to safeguard the Written notice will be provided to a purchased the Notes from the Fund for interests of the Fund and its representative of each of the 25 a lump sum cash payment of participating investors in connection investors having a direct interest in the $28,584,601.46. This sum represented with the sale of the Notes. Fund. The notice shall contain a copy the par value of the Notes (i.e. $28.5 13. Mellon states that the sale of the of the proposed exemption as published million) plus the accrued interest owing Notes by the Fund to BNYMC resulted in the Federal Register and an on the Notes (i.e. $84,601.46) as of in an assignment of all of the Fund’s explanation of the rights of interested January 17, 2008. Mellon represents that rights, claims, and causes of action parties to comment, or request a this amount equals the amortized cost of against the Issuer or any third party hearing, regarding the proposed the Notes plus accrued but unpaid arising in connection with or out of the exemption. Such notice will be interest. issuance of the Notes or the purchase of provided by personal or express 11. As noted in paragraph 8, prior to the Notes by the Fund. Mellon states delivery within 15 days of the issuance the consummation of the transaction, further that if the exercise of any of the of a proposed exemption. Any written valuations of the Notes were obtained foregoing rights, claims or causes of comments and/or requests for a hearing on January 11, 2008 (seven days prior to action results in BNYMC recovering must be received by the Department the sale) from an independent pricing from the Issuer or any third party an from interested persons within 45 days service, GFA, in addition to the most aggregate amount that is more than the of the publication of this proposed recent price available from IDC. GFA’s sum of (a) the purchase price paid for exemption in the Federal Register. valuation of the Notes reflected its the Notes by BNYMC (i.e. $28.5 FOR FURTHER INFORMATION CONTACT: Ms. estimation of the value of the Notes as million); and (b) the interest due on the Karen Lloyd of the Department, of January 10, 2008. Mellon states that Notes from and after the date BNYMC telephone (202) 693–8554. (This is not GFA is a highly-regarded independent purchased the Notes from the Fund, at a toll-free number.) valuation firm with respect to the the rate specified in the Notes, BNYMC pricing of securities such as the Notes. will refund such excess amounts General Information As noted in paragraph 8 above, the promptly to the Fund (after deducting The attention of interested persons is valuation of the Notes obtained from all reasonable expenses incurred in directed to the following: GFA was 91 percent of their par value. connection with the recovery). (1) The fact that a transaction is the Moreover, Mellon had obtained 14. In summary, the applicant subject of an exemption under section information from an independent represents that the transaction satisfied 408(a) of the Act and/or section broker-dealer that the market for the the statutory criteria of section 408(a) of 4975(c)(2) of the Code does not relieve Notes was in extreme distress with the Act and section 4975 of the Code a fiduciary or other party in interest or

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disqualified person from certain other (2) Before an exemption may be whether the transaction is in fact a provisions of the Act and/or the Code, granted under section 408(a) of the Act prohibited transaction; and including any prohibited transaction and/or section 4975(c)(2) of the Code, (4) The proposed exemption, if provisions to which the exemption does the Department must find that the granted, will be subject to the express not apply and the general fiduciary exemption is administratively feasible, condition that the material facts and responsibility provisions of section 404 in the interests of the plan and of its representations contained in each of the Act, which, among other things, participants and beneficiaries, and application are true and complete, and require a fiduciary to discharge his protective of the rights of participants that each application accurately duties respecting the plan solely in the and beneficiaries of the plan; describes all material terms of the interest of the participants and (3) The proposed exemption, if transaction which is the subject of the beneficiaries of the plan and in a granted, will be supplemental to, and exemption. prudent fashion in accordance with not in derogation of, any other section 404(a)(1)(b) of the Act; nor does provisions of the Act and/or the Code, Signed at Washington, DC, this 1st day of it affect the requirement of section including statutory or administrative July, 2008. 401(a) of the Code that the plan must exemptions and transitional rules. Ivan Strasfeld operate for the exclusive benefit of the Furthermore, the fact that a transaction Director of Exemption Determinations, employees of the employer maintaining is subject to an administrative or [FR Doc. E8–15320 Filed 7–7–08; 8:45 am] the plan and their beneficiaries; statutory exemption is not dispositive of BILLING CODE 4510–29–P

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Part IV

Securities and Exchange Commission 17 CFR Part 240 Exemption of Certain Foreign Brokers or Dealers; Proposed Rule

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SECURITIES AND EXCHANGE Reference Room, 100 F Street, NE., territorial approach in applying the COMMISSION Washington, DC 20549, on official broker-dealer registration requirements business days between the hours of 10 to the international operations of broker- 17 CFR Part 240 a.m. and 3 p.m. All comments received dealers.2 Under this approach, broker- [Release No. 34–58047; File No. S7–16–08] will be posted without change; we do dealers located outside the United not edit personal identifying States that induce or attempt to induce RIN 3235–AK15 information from submissions. You securities transactions with persons in should submit only information that the United States are required to register Exemption of Certain Foreign Brokers you wish to make available publicly. with the Commission, unless an or Dealers FOR FURTHER INFORMATION CONTACT: Erik exemption applies.3 Entities that AGENCY: Securities and Exchange R. Sirri, Director, Marlon Quintanilla conduct such activities entirely outside Commission. Paz, Senior Counsel to the Director, the United States do not have to register. ACTION: Proposed rule. Brian A. Bussey, Assistant Chief Because this territorial approach applies Counsel, Matthew A. Daigler, Special on an entity level, not a branch level, if SUMMARY: The Securities and Exchange Counsel, or Max Welsh, Attorney, Office a foreign broker-dealer establishes a Commission (‘‘Commission’’ or ‘‘SEC’’) of the Chief Counsel, Division of branch in the United States, broker- is proposing to amend a rule under the Trading and Markets, at (202) 551–5500, dealer registration requirements would Securities Exchange Act of 1934 at the Securities and Exchange extend to the entire foreign broker- (‘‘Exchange Act’’), which provides Commission, 100 F Street, NE., dealer entity.4 The registration conditional exemptions from broker- Washington, DC 20549–6628. requirements do not apply, however, to dealer registration for foreign entities SUPPLEMENTARY INFORMATION: The a foreign broker-dealer with an affiliate, engaged in certain activities involving Commission is requesting public such as a subsidiary, operating in the 5 certain U.S. investors. To reflect comment on the proposed amendments United States. Only the U.S. affiliate increasing internationalization in to Rule 15a–6 [17 CFR 240.15a–6] under must register and only the U.S. affiliate securities markets and advancements in the Exchange Act. may engage in securities transactions technology and communication and perform related functions on behalf services, the proposed amendments Table of Contents of U.S. investors.6 The territorial would update and expand the scope of I. Introduction and Background approach also requires registration of certain exemptions for foreign entities, II. The Regulatory Framework Under Rule foreign broker-dealers operating outside consistent with the Commission’s 15a–6 the United States that effect, induce or A. Unsolicited Trades attempt to induce securities transactions mission to protect investors, maintain B. Provision of Research Reports fair, orderly and efficient markets and C. Solicited Trades for any person inside the United States, facilitate capital formation. D. Counterparties and Specific Customers other than a foreign person temporarily 7 DATES: Comments should be received on III. Proposed Amendments to Rule 15a–6 within the United States. or before September 8, 2008. A. Extension of Rule 15a–6 to Qualified In response to numerous inquiries Investors seeking no-action relief and interpretive ADDRESSES: Comments may be B. Unsolicited Trades advice regarding whether certain submitted by any of the following C. Provision of Research Reports international securities activities methods: D. Solicited Trades required U.S. broker-dealer registration, Electronic Comments E. Counterparties and Specific Customers the Commission issued a release on June F. Familiarization With Foreign Options 14, 1988, to clarify the registration • Use the Commission’s Internet Exchanges comment form (http://www.sec.gov/ G. Scope of the Proposed Exemption rules/proposed.shtml); or IV. Preliminary Findings directly supervised and examined by state or • V. General Request for Comment federal banking authorities (with certain additional Send an e-mail to rule- requirements for banks and savings associations [email protected]. Please include File VI. Administrative Law Matters that are not chartered by a federal authority or a Number S7–16–08 on the subject line; VII. Statutory Basis member of the Federal Reserve System). 15 U.S.C. VIII. Text of Proposed Amendments or 78c(a)(6). Accordingly, foreign banks that act as • brokers or dealers within the jurisdiction of the Use the Federal eRulemaking Portal I. Introduction and Background United States are subject to U.S. broker-dealer (http://www.regulations.gov/). Follow Section 15(a) of the Exchange Act registration requirements. See Exchange Act Release No. 27017 (Jul. 11, 1989), 54 FR 30013, 30015 n.16 the instructions for submitting generally provides that, absent an comments. (Jul. 18, 1989) (‘‘1989 Adopting Release’’); and exception or exemption, a broker or Exchange Act Release No. 25801 (Jun. 14, 1988), 53 Paper Comments dealer that uses the mails or any means FR 23645 at n.1 (Jun. 23, 1988) (‘‘1988 Proposing of interstate commerce to effect Release’’). To the extent, however, that a foreign • Send paper comments in triplicate bank establishes a branch or agency in the United transactions in, or to induce or attempt to Secretary, Securities and Exchange States that is supervised and examined by a federal to induce the purchase or sale of, any Commission, 100 F Street, NE., or state banking authority and otherwise meets the security must register with the requirements of Section 3(a)(6), the Commission Washington, DC 20549–1090. Commission.1 The Commission uses a considers that branch or agency to be a ‘‘bank’’ for All submissions should refer to File purposes of the exceptions from the ‘‘broker’’ and ‘‘dealer’’ definitions. See 1989 Adopting Release, 54 Number S7–16–08. This file number 1 See 15 U.S.C. 78o(a)(1). Section 3(a)(4) of the FR at 30015 n.16. should be included on the subject line Exchange Act generally defines a ‘‘broker’’ as ‘‘any 2 See 1989 Adopting Release, 54 FR at 30016. person engaged in the business of effecting if e-mail is used. To help us process and 3 See id. transactions in securities for the account of others,’’ 4 review your comments more efficiently, but provides 11 exceptions for certain bank See id. at 30017. please use only one method. We will securities activities. Section 3(a)(5) of the Exchange 5 See id. post all comments on the Commission’s Act generally defines a ‘‘dealer’’ as ‘‘any person 6 See id. Internet Web site (http://www.sec.gov/ engaged in the business of buying and selling 7 See id. For contacts by foreign broker-dealers securities for his own account,’’ but includes with U.S. citizens domiciled abroad, the rules/proposed.shtml). Comments are exceptions for certain bank activities. 15 U.S.C. Commission generally does not require registration. also available for public inspection and 78c(a)(4). Exchange Act Section 3(a)(6) defines a Paragraph (a)(4)(v) of Rule 15a–6 specifically copying in the Commission’s Public ‘‘bank’’ as a bank or savings association that is addresses this situation.

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requirements for foreign-based broker- through execution of unsolicited B. Provision of Research Reports dealers, foreign affiliates of U.S. broker- securities transactions and the provision The provision of research to investors dealers, and other foreign financial of research reports to certain U.S. also may constitute solicitation by a 8 institutions. The release also proposed institutional investors and (ii) ‘‘direct’’ broker or dealer that would require Rule 15a–6, which provided conditional contacts, involving the execution of broker-dealer registration.19 Broker- exemptions from registration under transactions through a registered broker- dealers often provide research to Section 15(b) of the Exchange Act for dealer intermediary with or for certain customers with the expectation that the foreign broker-dealers that induce or U.S. institutional investors, and without customer eventually will trade through attempt to induce the purchase or sale this intermediary with or for certain the broker-dealer.20 Paragraph (a)(2) of of any security by certain U.S. entities such as registered broker-dealers Rule 15a–6 21 provides an exemption institutional investors, if the foreign and banks acting in a broker or dealer from U.S. broker-dealer registration for 11 broker-dealer satisfied certain capacity. foreign broker-dealers that provide conditions. The Commission adopted A. Unsolicited Trades research reports to certain institutional Rule 15a–6 on July 11, 1989, and it investors under conditions that are 9 As we explained in adopting Rule became effective August 15, 1989. designed to permit the flow of research 15a–6, a broker-dealer that solicits a While the rule has provided a useful without allowing foreign broker-dealers transaction with a U.S. investor must be framework for certain U.S. investors to to do more to solicit transactions with registered with the Commission.12 access foreign broker-dealers for almost U.S. investors.22 two decades, ever increasing market Because the Commission determined In particular, the rule exempts from globalization suggests that it is time to that, as a policy matter, registration is U.S. broker-dealer registration a foreign revisit that framework to consider not necessary if a U.S. investor initiated broker-dealer that provides research to whether it could be made more a transaction with a foreign broker- certain U.S. institutional investors if (i) workable, consistent with the dealer entirely by his or her own accord, 13 the research reports do not recommend Commission’s mission to protect paragraph (a)(1) of Rule 15a–6 that the investor use the foreign broker- investors, maintain fair, orderly and provides an exemption for a foreign- dealer to effect trades in any security, efficient markets and facilitate capital broker dealer that effects unsolicited (ii) the foreign broker-dealer does not formation. securities transactions with U.S. 14 initiate follow up contacts or otherwise As discussed below, the amendments persons. As the Commission induce or attempt to induce investors to we propose today would generally expressed in adopting Rule 15a–6, effect transactions in any security, (iii) expand the category of U.S. investors solicitation is construed broadly as ‘‘any transactions with the foreign broker- that foreign broker-dealers may contact affirmative effort by a broker or dealer dealer in securities covered by the for the purpose of providing research intended to induce transactional research reports are effected through a reports and soliciting securities business for the broker-dealer or its 15 registered broker-dealer according to the transactions. The proposed amendments affiliates.’’ For example, the provisions of paragraph (a)(3) of the would also reduce the role U.S. Commission views telephone calls to rule, described below, and (iv) the registered broker-dealers must play in U.S. investors, advertising circulated or provision of research is not pursuant to intermediating transactions effected by broadcast in the United States and an understanding that the foreign foreign broker-dealers on behalf of holding investment seminars in the broker-dealer will receive commission certain U.S. investors. Proposed new United States, regardless of whether the income from transactions effected by safeguards are intended to ensure that seminars were hosted by a registered 23 16 U.S. investors. the expanded exemptions would remain broker-dealer, as forms of solicitation. The exemption in paragraph (a)(2) of consistent with the Commission’s Solicitation also includes Rule 15a–6 is available only with statutory mandate. recommending the purchase or sale of securities to customers or prospective To Offer Securities, Solicit Securities Transactions, II. The Regulatory Framework Under customers for the purpose of generating or Advertise Investment Services Offshore’’ (Mar. Rule 15a–6 transactions.17 23, 1998), 63 FR 14806, 14813 (Mar. 27, 1998) As discussed below, Rule 15a–6 The exemption in paragraph (a)(1) is (stating that ‘‘[f]oreign broker-dealers that have Internet Web sites and that intend to rely on Rule provides conditional exemptions from intended to allow a foreign broker- 15a–6’s ‘unsolicited’ exemption should ensure that broker-dealer registration for foreign dealer to effect transactions with U.S. the ‘unsolicited’ customer’s transactions are not in broker-dealers that engage in certain investors when the foreign broker-dealer fact solicited, either directly or indirectly, through activities involving certain U.S. does not make any affirmative effort to customers accessing their Web sites.’’). 19 investors. Paragraph (b)(3) of the rule induce transactional activity with the See 1989 Adopting Release, 54 FR at 30021–22. U.S. investor. Because of the breadth of 20 See id. (‘‘Broker-dealers often provide research defines a ‘‘foreign broker-dealer’’ as to customers on a non-fee basis, with the ‘‘any non-U.S. resident person * * * the meaning of solicitation in the expectation that the customer eventually will trade that is not an office or branch of, or a broker-dealer registration context, this through the broker-dealer. They may provide natural person associated with, a exemption typically would not be a research to acquaint potential customers with their viable basis for a foreign broker-dealer existence, to maintain customer goodwill, or to registered broker-dealer, whose inform customers of their knowledge of specific securities activities, if conducted in the to conduct an ongoing business, which companies or markets, so that these customers will United States, would be described by would likely involve some form of be encouraged to use their execution services for the definition of ‘broker’ or ‘dealer’ in solicitation, in the United States.18 that company or those markets. In each instance, the basic purpose of providing the non-fee research 10 Section 3(a)(4) or 3(a)(5) of the Act.’’ is to generate transactional business for the broker- 11 See 1989 Adopting Release, 54 FR at 30013. Among the activities that foreign broker- dealer. In the Commission’s view, the deliberate 12 dealers may engage in under the rule See id. at 30017. transmission of information, opinions, or 13 17 CFR 240.15a–6(a)(1). are: (i) ‘‘Nondirect’’ contacts by foreign recommendations to investors in the United States, 14 See 1989 Adopting Release, 54 FR at 30017. whether directed at individuals or groups, could broker-dealers with U.S. investors 15 See id. result in the conclusion that the foreign broker- 16 See id. at 30017–18. dealer has solicited those investors.’’). 8 See 1988 Proposing Release. 17 See id. 21 17 CFR 240.15a–6(a)(2). 9 17 CFR 240.15a–6. See 1989 Adopting Release. 18 See id.; see also Exchange Act Release No. 22 See 17 CFR 240.15a–6(a)(2). 10 17 CFR 240.15a–6(b)(3). 39779, ‘‘Interpretation Re: Use of Internet Web Sites 23 See id.

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respect to research reports that are confirmations 29 and account statements protect U.S. investors and securities furnished to ‘‘major U.S. institutional to the U.S. institutional investor or markets.37 For example, the U.S. investors.’’ Paragraph (b)(4) of the rule major U.S. institutional investor. As the registered broker-dealer has an defines a ‘‘major U.S. institutional Commission explained, these obligation, as it has for all customer investor’’ as (i) a U.S. institutional documents are significant points of accounts, to review any Rule 15a–6(a)(3) investor 24 that has, or has under contact between the investor and the account for indications of potential management, total assets in excess of broker-dealer, and they provide problems.38 $100 million (which may include the important information for investors.30 This exemption in Rule 15a–6(a)(3) assets of any family of investment Also, as between the foreign broker- applies to transactions with major U.S. companies of which it is a part); or (ii) dealer and the U.S. registered broker- institutional investors, described above, an investment adviser registered with dealer, the latter is required to extend or as well as ‘‘U.S. institutional investors.’’ the Commission under Section 203 of arrange for the extension of any credit The rule defines a ‘‘U.S. institutional the Investment Advisers Act of 1940 to these investors in connection with investor’’ as (i) an investment company that has total assets under management the purchase of securities.31 In addition, registered with the Commission under in excess of $100 million.25 the U.S. registered broker-dealer is Section 8 of the Investment Company responsible for maintaining required Act of 1940; or (ii) a bank, savings and C. Solicited Trades books and records relating to the loan association, insurance company, As we discussed in adopting Rule transactions conducted under paragraph business development company, small 15a–6, although many foreign broker- (a)(3) of the rule, including those business investment company, or dealers have established registered required by Rules 17a–3 and 17a–4,32 employee benefit plan defined in Rule broker-dealer affiliates to deal with U.S. which facilitates Commission 501(a)(1) of Regulation D under the investors and trade in U.S. securities, supervision and investigation of these Securities Act of 1933 (‘‘Securities they may prefer to deal with transactions.33 Of course, the U.S. Act’’); a private business development institutional investors in the United registered broker-dealer also must company defined in Rule 501(a)(2); an States from their overseas trading desks, maintain sufficient net capital in organization described in Section where their dealer operations and compliance with Exchange Act Rule 501(c)(3) of the Internal Revenue Code, principal sources of current information 15c3–1,34 and receive, deliver and as defined in Rule 501(a)(3); or a trust on foreign market conditions and safeguard funds and securities in defined in Rule 501(a)(7).39 foreign securities are based.26 connection with the transactions in For D. Counterparties and Specific compliance with Exchange Act Rule similar reasons, many U.S. institutions Customers want direct contact with overseas 15c3–3.35 Furthermore, the U.S. traders. Except for limited instances of registered broker-dealer must take Paragraph (a)(4) of Rule 15a–6 40 unsolicited transactions, such contact responsibility for certain key sales provides an exemption for foreign would require the foreign broker-dealer activities, including ‘‘chaperoning’’ the broker-dealers that effect transactions in to register with the Commission. contacts of foreign associated persons securities with or for, or induce or Paragraph (a)(3) of Rule 15a–6 27 with certain U.S. institutional attempt to induce the purchase or sale provides an exemption for foreign investors.36 of securities by, five categories of broker-dealers that induce or attempt to In adopting Rule 15a–6, the persons: (1) Registered broker-dealers induce securities transactions by certain Commission pointed out that the U.S. (acting either as principal or for the institutional investors, if a U.S. registered broker-dealer’s account of others) or banks acting registered broker-dealer intermediates intermediation is intended to help pursuant to an exception or exemption certain aspects of the transactions by from the definition of ‘‘broker’’ or carrying out specified functions. In Adopting Release, 54 FR at 30025; cf. 1997 Staff ‘‘dealer’’ in Sections 3(a)(4)(B), particular, the U.S. registered broker- Letter. As a result, the treatment of U.S. securities 3(a)(4)(E), or 3(a)(5)(C) of the Exchange and foreign securities under paragraph (a)(3) of the Act or the rules thereunder; 41 (2) certain dealer is required to effect all aspects of rule differs. Specifically, with foreign securities the the transaction (other than negotiation foreign broker-dealer may not only negotiate the international organizations and their of the terms).28 It must issue all required terms, but also execute the transactions in the agencies, affiliates and pension funds; 42 circumstances specified in the Adopting Release. See 1989 Adopting Release, 54 FR at 30029 n.185; 24 See Part II.C., infra, for discussion of the 37 See 1989 Adopting Release, 54 FR at 30025. cf. NASD Rule 6620(g)(2) (trade reporting of definition of ‘‘U.S. institutional investor.’’ 38 See id. While the rule does not require the U.S. transactions in foreign equity securities not 25 registered broker-dealer to implement procedures to See 17 CFR 240.15a–6(b)(4); cf. Letter from required when the transaction is executed on and obtain positive assurance that the foreign broker- Richard R. Lindsey, Director, Division of Market reported to a foreign securities exchange or over the dealer is operating in accordance with U.S. Regulation, to Mr. Giovanni P. Prezioso, Cleary counter in a foreign country and reported to the requirements, the U.S. registered broker-dealer, in Gottlieb, Steen & Hamilton (Apr. 9, 1997) (‘‘1997 foreign regulator). With respect to U.S. securities, effecting trades arranged by the foreign broker- Staff Letter’’). however, the U.S. broker-dealer is required to 26 dealer, has a responsibility to review these trades See 1989 Adopting Release, 54 FR at 30024. execute the transactions and to comply with the for indications of possible violations of the federal 27 17 CFR 240.15a–6(a)(3). provisions of the federal securities laws, the rules securities laws. Id. 28 17 CFR 240.15a–6(a)(3)(iii)(A). In adopting thereunder and SRO rules applicable to the 39 Rule 15a–6, the Commission recognized that rules execution of transactions. See 17 CFR 240.15a–6(b)(7). 40 of foreign securities exchanges and over-the-counter 29 See Rule 10b–10, 17 CFR 240.10b–10. See 17 17 CFR 240.15a–6(a)(4). markets may require the foreign broker-dealer, as a CFR 240.15a–6(a)(3)(iii)(A)(2). 41 While the exemption allows foreign broker- member or market maker, to perform the actual 30 See 1989 Adopting Release, 54 FR at 30029. dealers to effect transactions with or for certain banks or registered broker-dealers, it does not allow physical execution of transactions in foreign 31 17 CFR 240.15a–6(a)(3)(iii)(A)(3). securities listed on those exchanges or traded in direct contact by foreign broker-dealers with the 32 17 CFR 240.17a–3 and 17a–4. See 17 CFR those markets. See 1989 Adopting Release, 54 FR U.S. customers of the registered broker-dealers or 240.15a–6(a)(3)(iii)(A)(4). at 30029 n.185. For this reason, the Commission banks. See 1989 Adopting Release, 54 FR at 30013 33 stated that, while it does not believe that it is See 1989 Adopting Release, 54 FR at 30029. n.202. appropriate to allow the U.S. registered broker- 34 17 CFR 240.15c3–1. See 17 CFR 240.15a– 42 The organizations are the African Development dealer to delegate the performance of its duties 6(a)(3)(iii)(A)(5). Bank, the Asian Development Bank, the Inter- under the rule to the foreign broker-dealer, it would 35 17 CFR 240.15c3–3. See 17 CFR 240.15a– American Development Bank, the International permit such delegation in the case of physically 6(a)(3)(iii)(A)(6); cf. 1997 Staff Letter. Bank for Reconstruction and Development, the executing foreign securities trades in foreign 36 See 17 CFR 240.15a–6(a)(3)(ii)(A) and International Monetary Fund, the United Nations. markets or on foreign exchanges. See 1989 (a)(3)(iii)(B); cf. 1997 Staff Letter. See 17 CFR 240.15a–6(a)(4)(ii).

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(3) foreign persons temporarily present foreign broker-dealer 46 could interact investor standard is well known to the in the United States with whom the under Rule 15a–6(a)(2) and would financial community. Section foreign broker-dealer had a pre-existing expand, with a few exceptions, the 3(a)(54)(A) defines a ‘‘qualified relationship; (4) any agency or branch of category of U.S. investors with which a investor’’ as: a U.S. person permanently abroad; and foreign broker-dealer could interact (i) Any investment company (5) U.S. citizens resident outside the under Rule 15a–6(a)(3) by replacing the registered with the Commission under United States, as long as the categories of ‘‘major U.S. institutional Section 8 of the Investment Company transactions occur outside the United investor’’ and ‘‘U.S. institutional Act of 1940 (‘‘Investment Company States and the foreign broker-dealer investor’’ with the category of ‘‘qualified Act’’); does not target solicitations at investor,’’ as defined in Section 3(a)(54) (ii) Any issuer eligible for an identifiable groups of U.S. citizens of the Exchange Act.47 In adopting the exclusion from the definition of resident abroad. definitions of ‘‘U.S. institutional investment company pursuant to investor’’ and ‘‘major U.S. institutional Section 3(c)(7) of the Investment III. Proposed Amendments to Rule 15a– investor,’’ the Commission expressed Company Act; 6 the view that institutions with the major (iii) Any bank (as defined in Section The pace of internationalization in U.S. institutional investor ‘‘level of 3(a)(6) of the Exchange Act), savings securities markets around the world has assets are more likely to have the skills association (as defined in Section 3(b) of continued to accelerate since we and experience to assess independently the Federal Deposit Insurance Act), adopted Rule 15a–6 in 1989. the integrity and competence of the broker, dealer, insurance company (as Advancements in technology and foreign broker-dealers providing [foreign defined in Section 2(a)(13) of the communication services have provided market] access.’’ 48 As discussed below, Securities Act), or business greater access to global securities we believe that advancements in development company (as defined in markets for all types of investors.43 U.S. communications and other technology Section 2(a)(48) of the Investment investors are seeking to take advantage have made it increasingly likely that a Company Act); of this increased access by seeking more broader range of persons would have (iv) Any small business investment direct contact with those expert in these skills and experience at a lower company licensed by the United States foreign markets and foreign securities. asset level. Small Business Administration under In addition, discussions over the years The proposed rule would give the Section 301(c) or (d) of the Small with industry representatives regarding term ‘‘qualified investor’’ the same Business Investment Act of 1958; Rule 15a–6 have suggested areas where meaning as set forth in Section 3(a)(54) (v) Any State sponsored employee 49 the rule could be revised to achieve its of the Exchange Act. The qualified benefit plan, or any other employee objectives more effectively without benefit plan, within the meaning of the 46 44 The definition of ‘‘foreign broker or dealer ’’in Employee Retirement Income Security jeopardizing investor protections. the proposed rule would be the same as in the In response to these developments current rule, except as described below. See Act of 1974, other than an individual and suggestions, the Commission is proposed Rule 15a–6(b)(2). retirement account, if the investment proposing to amend Rule 15a–6 to 47 The proposed rule would also eliminate the decisions are made by a plan fiduciary, definition of ‘‘family of investment companies,’’ as defined in Section 3(21) of that Act, remove barriers to access while which is currently used in the definition of ‘‘major maintaining key investor protections. In U.S institutional investor, ’’because it would no which is either a bank, savings and loan general, and as discussed more fully in longer be needed. See 17 CFR 240.15a–6(b)(1), (4) association, insurance company, or Part III.G. below, the proposed and (7). registered investment adviser; 48 1989 Adopting Release, 54 FR at 30027. In (vi) Any trust whose purchases of amendments would expand and proposing the definition of ‘‘U.S. institutional streamline the conditions under which investor,’’ the Commission stated that ‘‘[t]he securities are directed by a person a foreign broker-dealer could operate proposed asset limitation in the rule is based on the described in clauses (i) through (v) without triggering the registration assumption that direct U.S. oversight of the above; competence and conduct of foreign sales personnel (vii) Any market intermediary exempt requirements of Section 15(a)(1) or may be of less significance where they are soliciting 15B(a)(1) of the Exchange Act and the only U.S. institutional investors with high levels of under Section 3(c)(2) of the Investment reporting and other requirements of the assets. The $100 million asset level * * * is Company Act; designed to increase the likelihood that the Exchange Act (other than Sections (viii) Any associated person of a institution or its investment advisers have prior broker or dealer other than a natural 15(b)(4) and 15(b)(6)), and the rules and experience in foreign markets that provides insight regulations thereunder, that apply into the reliability and reputation of various foreign person; (ix) Any foreign bank (as defined in specifically to a broker-dealer that is not broker-dealers.’’ 1988 Proposing Release, 53 FR 23654. Section 1(b)(7) of the International registered with the Commission solely 49 15 U.S.C. 78c(54). The definition of ‘‘qualified Banking Act of 1978); 50 by virtue of its status as a broker or investor’’ was added to the Exchange Act by the (x) The government of any foreign dealer, while maintaining a regulatory Gramm-Leach-Bliley-Act of 1999 (Pub. L. 106–102, country; 51 structure designed to protect investors 113 Stat. 1338 (1999)) and has application to several of the bank exceptions from broker-dealer (xi) Any corporation, company, or and the public interest.45 registration, including: (1) the broker exception for partnership that owns and invests on a identified banking products when the product is an A. Extension of Rule 15a–6 to Qualified equity swap agreement (Section 206(a)(6) of Pub. L. Investors 106–102, 15 U.S.C. 78c note, as incorporated into 50 The definition of qualified investor includes Exchange Act Section 3(a)(4)(B)(ix), 15 U.S.C. any foreign bank. Unlike foreign governments (see The proposed rule would expand the 78c(a)(4)(B)(ix)); (2) the dealer exception for note 51, infra), foreign banks may establish a category of U.S. investors with which a identified banking products when the product is an permanent presence in the United States, such as equity swap agreement (Section 206(a)(6) of Pub. L. a branch, that would not qualify under Exchange 106–102, 15 U.S.C. 78c note, as incorporated into Act Section 3(a)(6) as a bank. See note 1, supra. 43 See, e.g., Spotlight On: Roundtable Discussions Exchange Act Section 3(a)(5)(C)(iv), 15 U.S.C. Foreign broker-dealers need to rely on Rule 15a–6 Regarding Mutual Recognition (Jun. 12, 2007) 78c(a)(5)(C)(iv)); and (3) the dealer exception for to effect transactions with such entities. (available at: http://www.sec.gov/spotlight/ asset-backed securities (Exchange Act Section 51 Of course, foreign broker-dealers currently do mutualrecognition.htm). 3(a)(5)(C)(iii), 15 U.S.C. 78c(a)(5)(C)(iii)). These not need to rely on Rule 15a–6 to effect transactions 44 See, e.g., id. exceptions permit banks to sell certain securities to with foreign governments because foreign 45 See Part III.G., infra, regarding the scope of the qualified investors without registering as broker- governments are neither located in the United exemption. dealers with the Commission. States nor U.S. persons resident abroad.

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discretionary basis not less than discretionary basis not less than the definition would help ensure a $25,000,000 in investments; $50,000,000 in investments. higher level of investing experience and (xii) Any natural person who owns The primary distinction between a sophistication than a $5 million asset and invests on a discretionary basis not major U.S. institutional investor and a threshold. Similarly, while a qualified less than $25,000,000 in investments; qualified investor is the threshold value investor applies to trusts whose (xiii) Any government or political of assets or investments owned or purchases are directed by certain subdivision, agency, or instrumentality invested and the inclusion of natural entities, the definition of ‘‘U.S. of a government that owns and invests persons. As a result, under the proposed institutional investor’’ does not impose on a discretionary basis not less than rule, the threshold would decline from that limitation, but instead applies to $50,000,000 in investments; or institutional investors that own or certain trusts with $5 million or more in (xiv) Any multinational or control greater than $100 million in assets. Also, while the proposed supranational entity or any agency or total assets to, among others, all definition (like the existing definition) instrumentality thereof. investment companies registered with would encompass business The Commission proposes to use the the Commission under Section 8 of the development companies as defined in definition of ‘‘qualified investor’’ in Investment Company Act and Section 2(a)(48) of the Investment section 3(a)(54) of the Exchange Act for corporations, companies, or Company Act, the definition of ‘‘U.S. several reasons primarily related to the partnerships that own or invest on a institutional investor’’ extends to sophistication and likely experience discretionary basis $25 million or more private business development with foreign securities and foreign in investments. In addition, under the companies defined in Section 202(a)(22) markets of the investors included in the proposed rule, natural persons who own of the Investment Advisers Act of 1940. definition. For example, the entities or invest on a discretionary basis not The definition of ‘‘U.S. institutional described in paragraphs (i) through (ix) less than $25,000,000 in investments investor,’’ unlike the definition of of Section 3(a)(54)(A) of the Exchange would be included. In adopting Rule ‘‘qualified investor,’’ further applies to Act, without limitation based on 15a–6, we explained that the $100 certain organizations described in ownership or investment, are all million asset level was designed ‘‘to Section 503(c) of the Internal Revenue engaged primarily in financial activities, increase the likelihood that [the investor Code with assets of $5 million or more. including the business of investing. The has] prior experience in foreign markets Proposing to require the higher level of persons in paragraphs (xi), (xii) and that provides insight into the reliability investing experience and sophistication (xiii) of Section 3(a)(54)(A) are not and reputation of various foreign broker- would be appropriate in light of the dealers.’’ 53 While we believe this is still primarily engaged in investing and may expanded activities in which foreign the right focus, increased access to have limited investment experience. broker-dealers would be permitted to information about foreign securities Thus, Congress established ownership engage under the proposed rule, as well markets due to advancements in and investment thresholds for those as the reduced role that would be communication technology suggest that latter persons as indicators of played by the U.S. registered broker- a broader spectrum of investors are investment experience and dealer. likely to have this type of The Commission requests comment sophistication.52 The Commission sophistication. on the proposed use of the definition of believes that Congress’ standard for We believe that the proposed use of ‘‘qualified investor’’ generally and, more investors with significant investment the definition of qualified investor specifically, whether allowing foreign experience and sophistication to deal would more accurately encompass broker-dealers to induce or attempt to with banks that are not registered as persons that have prior experience in induce transactions with the persons broker-dealers should ensure that these foreign markets and an appropriate level included in the proposed definition is investors would possess sufficient of investment experience and appropriate. Are the ownership and experience with financial matters to be sophistication overall. In certain investment thresholds applicable to able to enter into securities transactions instances, it would exclude persons that certain persons included in the with foreign broker-dealers under the are currently included in the definition proposed use of the definition of proposed exemption. Thus, the of U.S. institutional investor or major ‘‘qualified investor’’ appropriate? Does Commission believes that it would be U.S. institutional investor. In each such the definition encompass investors that appropriate and consistent with the instance, the proposed use of the likely would have an appropriate level protection of investors to extend the definition of qualified investor would of investing or business experience in relief in proposed Rules 15a–6(a)(2) and require greater investment experience of foreign markets? If not, why not? Should (a)(3) to a corporation, company, the entity than the current definition. the definition be tailored to include partnership that, or a natural person For example, with respect to only investors that have a demonstrated who, owns and invests on a employee benefit plans, the definition of pattern of appropriate transactional discretionary basis not less than qualified investor includes plans in activity with U.S. registered or foreign $25,000,000 in investments, and to a which investment decisions are made broker-dealers in foreign securities? If government or political subdivision, by certain plan fiduciaries. The so, how? agency or instrumentality of a definition of U.S. institutional investor The Commission also requests government that owns and invests on a does not require a fiduciary to make comment on whether the proposed use investment decisions and encompasses of the definition of ‘‘qualified investor’’ 52 See 15 U.S.C. 6801 et seq., Pub. L. 106–102, 113 plans with $5 million or more in assets. should include additional minimum Stat. 1338 (1999). Congress did not include an While there is no asset requirement in asset levels for any of the persons ownership or investment threshold for multinational or supranational entities, or any the employee benefit plan section in the included in Exchange Act Section agencies or instrumentalities thereof, presumably definition of qualified investor, the 3(a)(54). For example, should the regarding such entities as possessing sufficient Commission believes that proposing to proposed rule use a new definition that financial sophistication, net worth and knowledge require investment decisions to be made includes a requirement that a small and experience in financial matters to be considered a qualified investor. Exchange Act by plan fiduciaries as a qualification for business investment company own and Release No. 47364 (Feb. 13, 2003), 68 FR 8686, 8693 invest a certain amount of investments? (Feb. 24, 2003). 53 See 1989 Adopting Release, 54 FR at 30027. Should it include any of the omitted

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categories of persons from the definition the Commission is not proposing to inducement to trade with that foreign of ‘‘U.S. institutional investor’’? Are amend paragraph (a)(1) of the current broker-dealer.61 there any categories of investors rule, other than to add the title Since the time the current rule was included in the proposed use of the ‘‘Unsolicited Trades.’’ Notably, in order adopted, third-party quotation systems definition of qualified investor that to rely on this exemption, foreign have become increasingly global in should be excluded, such as market broker-dealers need to determine scope such that the distinction between intermediaries exempt under Section whether each transaction effected in systems that distribute quotations 3(c)(2) of the Investment Company Act? reliance on it has been solicited under primarily in the United States and those In addition, the Commission requests the proposed rule. that distribute quotations primarily in comment on whether the proposed use Because the Commission construes foreign countries is no longer a of the definition of ‘‘qualified investor’’ solicitation broadly and relatively few meaningful or workable distinction should include natural persons who transactions qualify for the unsolicited because most third-party quotation own or invest on a discretionary basis exemption,56 the Commission is systems no longer serve a primary at least $25,000,000 in investments. If 62 proposing to provide further location. As a result, under the not, should the Commission adopt a interpretive guidance related to Commission’s proposed interpretation, different threshold level of investments solicitation under the proposed rule the Commission’s previous guidance on or ownership? What criteria, if any, with respect to quotation systems. In U.S. distribution of foreign broker- should apply to help ensure that a adopting the current rule, we noted that dealers’ quotations by third-party natural person would have sufficient systems no longer would be limited to investment experience and access to foreign market makers’ quotations is of considerable interest to third-party systems that distributed sophistication specifically in foreign their quotations primarily in foreign securities? Are there additional registered broker-dealers and institutional investors that seek timely countries under the proposed rule. In safeguards for natural persons that other words, under the proposed would be appropriate to include in the information on foreign market conditions.57 The Commission also interpretation, U.S. distribution of rule, such as increasing the involvement foreign broker-dealers’ quotations by a of U.S. registered broker-dealers in stated that it generally would not consider a solicitation to have occurred third-party system (which did not allow transactions solicited by foreign broker- securities transaction to be executed dealers? For example, foreign broker- for purposes of Rule 15a–6 if there were a U.S. distribution of foreign broker- between the foreign broker-dealer and dealers could be required to make persons in the U.S. through the system) suitability determinations before sales to dealers’ quotations by third-party systems, such as systems operated by would not be viewed as a form of natural persons under the exemption. If solicitation, in the absence of other additional safeguards applied to foreign marketplaces or by private vendors, that distributed these contacts with U.S. investors initiated by transactions with natural persons who the third-party system or the foreign own or invest on a discretionary basis quotations primarily in foreign 58 broker-dealer. at least $25,000,000 in investments, countries. The Commission’s position applies only to third-party systems that The Commission seeks comment would foreign broker-dealers choose to regarding whether retaining the comply with those safeguards or choose do not allow securities transactions to be executed between the foreign broker- proposed Unsolicited Trades exemption not to do business directly with natural in paragraph (a)(1) is appropriate. Are persons under such a rule? Finally, dealer and persons in the United States 59 any modifications to this exemption should any of the dollar thresholds in through the systems. The Commission noted that it would have reservations necessary to reflect increasing the proposed use of the definition of internationalization in securities qualified investor be adjusted for about certain specialized quotation systems, which might constitute a more markets and advancements in inflation? If so, what mechanism should technology and communication services be used to make such adjustments? powerful inducement to effect trades because of the nature of the proposed since the exemption was adopted in B. Unsolicited Trades transactions.60 With respect to direct 1989? Commenters are invited to As we noted in adopting Rule 15a–6, dissemination of a foreign market provide information on the specific although the requirements of Section maker’s quotations to U.S. investors, circumstances in which foreign broker- 15(a) under the Exchange Act do not such as through a private quote system dealers use the exemption in paragraph distinguish between solicited and controlled by a foreign broker-dealer (as (a)(1) of the current rule and particularly unsolicited transactions, the distinct from a third-party system), the on the frequency of its use. The Commission does not believe, as a Commission noted in adopting the Commission also seeks comment on its policy matter, that registration is current rule that such conduct would proposed interpretation with respect to necessary if U.S. investors have sought not be appropriate without registration, third-party quotation systems under the out foreign broker-dealers outside the because the dissemination of these proposed rule. Are there other United States and initiated transactions quotations would be a direct, exclusive interpretive issues relating to third-party in foreign securities markets entirely of 61 See id. at 30019. In making the statement that 54 56 their own accord. In that event, U.S. See id. at 30021. the conduct would not be appropriate ‘‘without investors would have taken the 57 See id. at 30017. registration, ’’the Commission did not intend to initiative to trade outside the United 58 See id. preclude a foreign broker-dealer from directly States with foreign broker-dealers that 59 See id. inducing U.S. investors to trade with the foreign are not conducting activities within this 60 See id. at n.66. For example, the Commission broker-dealer via such a quotation system where the stated that a foreign broker-dealer whose quotations U.S. investor subscribes to the quotation system country and the U.S. investors would were displayed in a system that disseminated through a U.S. broker-dealer, the U.S. broker-dealer have little reason to expect these foreign quotes only for large block trades might well be has continuing access to the quotation system, the broker-dealers to be subject to U.S. deemed to have engaged in solicitation requiring foreign broker-dealer’s other contacts with the U.S. broker-dealer requirements.55 Therefore, broker-dealer registration, as opposed to a foreign investor are permissible under the current rule and broker-dealer whose quotes were displayed in a any resulting transactions are intermediated in system that disseminated the quotes of numerous accordance with the requirements of Rule 15a– 54 See 1989 Adopting Release, 54 FR at 30017. foreign dealers or market makers in the same 6(a)(3). 55 See id. security. See id. 62 Cf. 1997 Staff Letter.

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quotation systems, or proprietary Specifically, proposed paragraph (a)(2) how? Commenters are invited to quotation systems, that the Commission would be available, provided that: (1) provide information on the specific should address? Is guidance needed The research reports do not recommend circumstances in which foreign broker- under the Commission’s interpretation the use of the foreign broker-dealer to dealers use the exemption in paragraph of solicitation for other entities, such as effect trades in any security; (2) the (a)(2) of the current rule and on the third-party or proprietary systems that foreign broker-dealer does not initiate frequency of its use. provide indications of interest, for contact with the qualified investors to purposes of the proposed amendments follow up on the research reports and D. Solicited Trades of Rule 15a–6? does not otherwise induce or attempt to The proposed rule would significantly Because one of the requirements for induce the purchase or sale of any revise the conditions under which a being an alternative trading system security by the qualified investors; (3) if foreign broker-dealer could induce or under Regulation ATS 63 is to be the foreign broker-dealer has a attempt to induce the purchase or sale registered as a broker-dealer under relationship with a registered broker- of a security by certain U.S. investors Section 15(b) of the Exchange Act, a dealer that satisfies the requirements of under paragraph (a)(3) of Rule 15a–6. foreign broker-dealer relying on an paragraph (a)(3) of the proposed rule, Overall, and as discussed more fully exemption in proposed Rule 15a–6 any transactions with the foreign broker- below, the proposed rule would reduce would not be eligible to rely on the dealer in securities discussed in the and streamline the obligations of the exemption in Regulation ATS. The research reports are effected pursuant to U.S. registered broker-dealer in Commission solicits comment on the provisions of paragraph (a)(3); and connection with these transactions and, whether it should consider amending (4) the foreign broker-dealer does not in certain situations, permit a foreign Regulation ATS to allow a foreign provide research to U.S. persons broker-dealer to provide full-service broker-dealer relying on an exemption pursuant to any express or implied brokerage by effecting securities in proposed Rule 15a–6 to operate an understanding that those U.S. persons transactions on behalf of qualified alternative trading system in the United will direct commission income to the investors and maintaining custody of States so long as it otherwise complies foreign broker-dealer. We understand qualified investor funds and securities with the terms of Regulation ATS. from discussions with industry relating to any resulting transactions. representatives that these conditions C. Provision of Research Reports have been workable for both foreign 1. Customer Relationship The provision of research to investors broker-dealers and U.S. registered The proposed rule would require a also may constitute solicitation by a broker-dealers and we have no foreign broker-dealer that induces or broker-dealer, in part because broker- knowledge of investor protection attempts to induce the purchase or sale dealers often provide research to concerns having been raised with regard of any security by a qualified investor to customers on a non-fee basis, with the to foreign broker-dealers that operate in engage a U.S. registered broker-dealer expectation that the customers compliance with the current exemption. under one of two exemptive approaches, eventually will trade through the Accordingly, we do not propose to to which we will refer as Exemption broker-dealer.64 As we noted in amend them. (A)(1) and Exemption (A)(2), adopting Rule 15a–6, the Commission If these conditions are met, the corresponding to paragraphs does not wish to restrict the ability of Commission proposes to allow the (a)(3)(iii)(A)(1) and (A)(2) of the U.S. investors to obtain foreign research foreign broker-dealer to effect proposed rule.68 As explained below, reports in the United States if adequate transactions in the securities discussed under both proposed exemptions, the regulatory safeguards are present.65 in a research report at the request of a U.S. registered broker-dealer would Therefore, the Commission would retain qualified investor. The Commission have fewer obligations than under the current exemption for the provision believes that, under the proposed paragraph (a)(3) of the current rule and of research reports in paragraph (a)(2) of conditions, the direct distribution of the foreign broker-dealer would the current rule. However, for the research to qualified investors would be correspondingly be permitted to play a reasons discussed above,66 the consistent with the free flow of greater role in effecting any resulting Commission is proposing to expand the information across national boundaries transactions. Both proposed exemptions class of investors to which the foreign without raising substantial investor would allow qualified investors the broker-dealer could provide research protection concerns.67 more direct contact they seek with those reports directly from major U.S. The Commission seeks comment on expert in foreign markets and foreign institutional investors to qualified the proposed ‘‘Research Reports’’ securities, without certain barriers such investors. As proposed, paragraph (a)(2) exemption in paragraph (a)(2). Should as the chaperoning requirements that would permit a foreign broker-dealer, any of the conditions of the current may be unnecessary in light of other subject to the conditions discussed exemption be changed to address the protections and investor sophistication. below, to furnish research reports to proposed expansion of the class of Nevertheless, as explained below, both qualified investors and effect institutional investors to which research proposed exemptions would retain transactions in the securities discussed reports may be distributed directly, or to important measures of investor in the research reports with or for those reflect increasing internationalization in protection that the Commission believes qualified investors. securities markets and advancements in would, among other things, address the Paragraph (a)(2) of the proposed rule technology and communication services potential risks to qualified investors would retain the conditions in current since the exemption was adopted in related to contacts with foreign Rule 15a–6(a)(2), modified solely to 1989? If so, how? Similarly, should any associated persons with a disciplinary reflect the proposed expansion of the of the conditions of the current history and ensure that the books and class of investors to qualified investors. exemption be changed to more closely align with the proposed modifications records related to transactions for U.S. 63 See 17 CFR 242.300 et seq. to the requirements of paragraph (a)(3) investors are available to the 64 See 1989 Adopting Release, 54 FR at 30021. discussed below in Part III.D.? If so, Commission. 65 See id. 66 See Part III.A., supra. 67 See 1989 Adopting Release, 54 FR at 30021. 68 See proposed Rule 15a–6(a)(3)(iii)(A).

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There are two primary differences generate books and records relating to be required to effect all aspects of the between the two proposed exemptive the transactions. Proposed Exemption transaction.77 Thus, with respect to approaches. First, Exemption (A)(1) (A)(1) would allow the U.S. registered transactions effected pursuant to could only be used by foreign broker- broker-dealer to maintain such books Exemption (A)(1), the intermediating dealers that conduct a ‘‘foreign and records with the foreign broker- U.S. registered broker-dealer would no business,’’ 69 while Exemption (A)(2) dealer, provided that the U.S. registered longer be required to comply with the could be used by all foreign broker- broker-dealer makes a reasonable provisions of the federal securities laws, dealers. Second, the foreign broker- determination that copies of any or all the rules thereunder and SRO rules dealer would be permitted to custody of such books and records could be applicable to a broker-dealer effecting a funds and securities of qualified furnished promptly to the Commission transaction in securities, unless it were investors in connection with resulting and promptly provides any such books otherwise involved in effecting the transactions under Exemption (A)(1), and records to the Commission, upon transaction.78 However, if a foreign but not under Exemption (A)(2). These request.75 In making such a broker-dealer effects a transaction distinctions are discussed in the determination, the U.S. registered pursuant to Exemption (A)(1) on a U.S. following paragraphs. broker-dealer would need to consider, national securities exchange, through a among other things, the existence of any U.S. alternative trading system, or with a. Exemption (A)(1) legal limitations in the foreign a market maker or an over-the-counter i. Role of the U.S. Registered Broker- jurisdiction that might limit the ability dealer in the United States, as is Dealer of the foreign broker-dealer to disclose common with respect to U.S. securities, For transactions effected by a foreign information relating to transactions a U.S. registered broker-dealer would be broker-dealer pursuant to proposed conducted pursuant to proposed involved in effecting the transaction and Exemption (A)(1),70 a U.S. registered Exemption (A)(1) to the U.S. registered would be required to comply with the broker-dealer would be required to broker-dealer. Proposing to require U.S. provisions of the federal securities laws, maintain copies of all books and registered broker-dealers to make a the rules thereunder and SRO rules reasonable determination that the books applicable to such activity. In other records, including confirmations and and records could be furnished words, such provisions would apply statements issued by the foreign broker- promptly to the Commission is designed with respect to all transactions in U.S. dealer to the qualified investor, relating to ensure that the ability of the securities under Exemption (A)(1) other to any such transactions.71 As discussed Commission to obtain copies of the than certain over-the-counter below, the proposed rule would allow books and records would not be transactions that a foreign broker-dealer such books and records to be diminished. It should also significantly does not effect by or through a U.S. maintained by the U.S. registered reduce the U.S. registered broker- registered broker-dealer. broker-dealer in the form, manner and dealer’s cost of recordkeeping with The intermediating U.S. registered for the periods prescribed by the foreign respect to transactions effected pursuant broker-dealer also would no longer be securities authority (as defined in required to extend or arrange for the 72 to this exemption. Thus, the Section 3(a)(50) of the Exchange Act) extension of credit, issue confirmations 73 Commission believes that allowing U.S. regulating the foreign broker-dealer. registered broker-dealers to maintain and account statements, comply with The proposed rule would give the term books and records with a foreign broker- Rule 15c3–1 with respect to the ‘‘foreign securities authority’’ the same dealer would appropriately support the transactions, or receive, deliver and meaning as set forth in Section 3(a)(50) safeguard funds and securities in 74 Commission’s interest in the protection of the Exchange Act, which defines of investors—by being designed to connection with the transactions in ‘‘foreign securities authority’’ to mean ensure that the books and records compliance with Rule 15c3–3.79 In ‘‘any foreign government, or any related to transactions for U.S. investors addition, the intermediating U.S. governmental body or regulatory are available to the Commission—while registered broker-dealer would no organization empowered by a foreign avoiding the burden that might be longer be required to maintain accounts government to administer or enforce its placed on U.S. registered broker-dealers for the customers of foreign broker- laws as they relate to securities under the exemption by requiring the dealers relying on Exemption (A)(1),80 matters.’’ books and records to be maintained in or comply with the requirements Because proposed Exemption (A)(1) the form, manner and for the periods applicable to broker-dealers that would allow a foreign broker-dealer to prescribed by Rules 17a–3 and 17a–4 maintain such accounts. As a result, effect transactions for qualified under the Exchange Act,76 as if the U.S. among other requirements, the U.S. investors and custody their funds and registered broker-dealer had effected the registered broker-dealer may not have assets, the foreign broker-dealer would transactions under proposed Exemption obligations under Exchange Act Rule (A)(1). 17a–8 81 with respect to customers of 69 See Part III.D.1.a.ii., infra, for discussion of foreign broker-dealers relying on ‘‘foreign business.’’ Unlike under the current rule, under 70 As mentioned above and discussed more fully Exemption (A)(1), the intermediating Exemption (A)(1). Rule 17a–8 requires a below, only foreign broker-dealers that conduct a U.S. registered broker-dealer would not ‘‘foreign business ’’would be eligible to effect 77 See 17 CFR 240.15a–6(a)(3)(iii)(A) (requiring transactions on behalf of qualified investors 75 See Exchange Act Release No. 44992 (Oct. 26, the U.S. registered broker-dealer to effect all aspects pursuant to Exemption (A)(1). 2001), 66 FR 55818, 55825 & n.72 (Nov. 2, 2001) of a transaction other than negotiation of its terms) 71 See proposed Rule 15a–6(a)(3)(iii)(A)(1). Of (‘‘Generally, requests for records which are readily and proposed Rule 15a–6(a)(3)(iii)(A)(1); see also course, this would not prevent the U.S. registered available at the office (either on-site or note 28, supra, for a discussion of the differing broker-dealer from performing other aspects of the electronically) should be filled on the day the treatment of U.S. and foreign securities under transaction. request is made. If a request is unusually large or current Rule 15a–6(a)(3)(iii)(A)(1). 72 15 U.S.C. 78c(a)(50). complex, then the firm should discuss with the 78 See note 28, supra, for a discussion of the 73 See proposed Rule 15a–6(a)(3)(iii)(A)(1). Of regulator a mutually agreeable time-frame for differing treatment of U.S. and foreign securities course, this would not change any books and production. * * * Valid reasons for delays in under current Rule 15a–6(a)(3)(iii)(A)(1). recordkeeping obligations a U.S. registered broker- producing the requested records do not include the 79 See 17 CFR 240.15a–6(a)(3)(iii)(A)(1), (2), (3), dealer may have under Exchange Act Rules 17a–3 need to send the records to the firm’s compliance (4) and (5) and the discussion in Part II.C., supra. and 17a–4 (17 CFR 240.17a–3 and 17a–4). office for review prior to providing the records.’’). 80 See text accompanying note 38, supra. 74 15 U.S.C. 78c(a)(50). 76 See 17 CFR 240.17a–3 and 17a–4. 81 17 CFR 240.17a–8.

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U.S. registered broker-dealer to comply Commission requests comment on below,86 the foreign broker-dealer with the reporting, recordkeeping and whether the Commission should permit operating under proposed Exemption record retention requirements in the U.S. registered broker-dealers to (A)(1) would also be required to disclose regulations implemented under the maintain copies of books and records that U.S. segregation requirements (e.g., Bank Secrecy Act.82 As discussed resulting from transactions under the requirement that customer funds above, current Rule 15a–6 permits an paragraph Exemption (A)(1) with the and assets be segregated from the unregistered foreign broker-dealer to foreign broker-dealer. Should it depend broker-dealer’s own proprietary funds effect transactions directly with U.S. on the adequacy of the books and and assets), U.S. bankruptcy protections persons on an unsolicited basis,83 and to recordkeeping requirements to which (e.g., preference to creditors in solicit certain U.S. institutional the foreign broker-dealer is subject? bankruptcy) and protections under the investors by means of research reports Should the Commission provide more Securities Investor Protection Act and effect transactions in securities guidance on or should the proposed rule (‘‘SIPA’’) 87 will not apply to any funds discussed in such reports, subject to provide parameters for what would and securities of the qualified investor certain conditions,84 in either case constitute a reasonable determination? held by the foreign broker-dealer.88 without intermediation by a U.S. In lieu of the proposed requirement of These disclosure requirements are registered broker-dealer subject to Rule a reasonable determination by the U.S. intended to help to put qualified 17a–8. Would permitting a foreign registered broker-dealer under investors on notice that foreign broker- broker-dealer to effect securities Exemption (A)(1), should the dealers operating pursuant to transactions on a solicited basis with Commission condition the exemption certain U.S. persons under proposed Exemption (A)(1) of the proposed rule on the foreign broker-dealer filing a would not be subject to the same Exemption (A)(1) present any concerns written undertaking with the with respect to Rule 17a–8 or anti- regulatory requirements as U.S. Commission to furnish the books and registered broker-dealers. This notice money laundering obligations under the records to the U.S. registered broker- Bank Secrecy Act? How should these would be important because the dealer or the Commission upon request? proposed rule would eliminate the concerns, if any, be addressed? For Furthermore, the Commission example, are there specific current chaperoning requirements, as requests comment on whether the described below, and allow a foreign circumstances in which the Commission requirement under Exemption (A)(1) should consider imposing additional broker-dealer to effect transactions on that the U.S. registered broker-dealer behalf of qualified investors and obligations on the U.S. registered make a reasonable determination that broker-dealer or the foreign broker- custody qualified investor funds and books and records relating to any securities relating to any resulting dealer under proposed Exemption (A)(1) resulting transactions could be or alternatively prohibiting the use of transactions with more limited furnished promptly to the Commission participation in the transactions by a Exemption (A)(1)? upon request, and promptly provide The Commission requests comment U.S. registered broker-dealer. This such books and records to the generally on the proposed requirements should be sufficient notice given the Commission upon request, is the in Exemption (A)(1) of the proposed level of sophistication of the investors appropriate standard given the potential rule. In particular, the Commission with which the foreign broker-dealer time-zone differences and the fact that requests comment on whether the would be engaging in transactions under such records may be maintained in Commission should require the U.S. Exemption (A)(1). Specifically, paper form. If not, what is the registered broker-dealer to comply with proposing to require disclosure that the appropriate standard and why? any requirements with respect to foreign broker-dealer is regulated by a transactions under Exemption (A)(1) ii. Role of the Foreign Broker-Dealer foreign securities authority and not the other than the proposed requirement to Commission should alert qualified The proposed rule would limit the maintain books and records relating to investors that the foreign broker-dealer availability of Exemption (A)(1) to the transactions. Should the would not be subject to the full scope requirements differ based on whether foreign broker-dealers that are regulated of the Commission’s broker-dealer the securities are U.S. securities or for conducting securities activities (such regulatory framework. Proposing to foreign securities? If so, why and how? as effecting transactions in securities), require disclosure that U.S. segregation The Commission also requests comment including the specific activities in requirements, U.S. bankruptcy on whether the Commission should which the foreign broker-dealer engages protection and protections under the require the U.S. registered broker-dealer with the qualified investor, in a foreign SIPA would not apply to the funds and to maintain books and records relating country by a foreign securities securities of the qualified investor held 85 to the transactions in the form, manner authority. This requirement is by the foreign broker-dealer should alert and for the periods prescribed by Rules designed to ensure that only foreign the qualified investor that its funds and 17a–3 and 17a–4 under the Exchange entities that are legitimately in the assets would not receive the same Act as if the U.S. registered broker- business of conducting securities protections that they would under U.S. dealer had effected the transactions activities (such as effecting transactions law. under Exemption (A)(1). In addition, the in securities), and that are regulated in the conduct of those activities, could Exemption (A)(1) would only be available to foreign broker-dealers that 82 Currency and Foreign Transactions Reporting rely on Exemption (A)(1). Act of 1970 (commonly referred to as the Bank Both Exemption (A)(1) and Exemption Secrecy Act). See 31 U.S.C. 5311 et seq., 12 U.S.C. (A)(2) would require the foreign broker- 86 See Part III.D.b.ii., infra. 1829b and 12 U.S.C. 1951–1959. The Secretary of 87 15 U.S.C. 78aaa et seq. The SIPA created the the U.S. Department of Treasury has delegated dealer to disclose to the qualified Securities Investor Protection Corporation (‘‘SIPC’’), responsibility for the administration of the Bank investor that it is regulated by a foreign a nonprofit, private membership corporation to Secrecy Act to the Director of the Financial Crimes securities authority and not by the which most registered brokers and dealers are Enforcement Network (‘‘FinCEN’’), a bureau of the Commission. Unlike under Exemption required to belong, and established a fund U.S. Department of Treasury. See Treasury Order administered by SIPC designed to protect the 180–01 (Sep. 26, 2002). (A)(2), for the reasons discussed customers of brokers or dealers subject to the Act 83 See Part II.A., supra. from loss in case of financial failure of the member. 84 See Part II.B., supra. 85 See proposed Rule 15a–6(b)(2)(i). 88 See proposed Rule 15a–6(a)(3)(i)(D)(1) and (2).

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conduct a ‘‘foreign business.’’ 89 As States pursuant to Regulation S (17 CFR other derivative instruments that are explained below, the proposed rule 230.903 et seq.); 93 securities, the valuation would depend would define ‘‘foreign business’’ to (iv) A security that is a note, bond, on the product. For example, the value mean the business of a foreign broker- debenture or evidence of indebtedness of options on a security or group or dealer with qualified investors and issued or guaranteed by a foreign index of securities bought or sold would foreign resident clients 90 where at least government (as defined in 17 CFR be the premium paid by the buyer, not 85% of the aggregate value of the 230.405) that is eligible to be registered the value of the underlying security or securities purchased or sold in with the Commission under Schedule B securities. Similarly, the value of a transactions conducted pursuant to both of the Securities Act; and security future would be the price times paragraphs (a)(3) and (a)(4)(vi) of the (v) A derivative instrument on a the number of securities to be delivered proposed rule by the foreign broker- security described in subparagraph (i), at the time the transaction is entered dealer, calculated on a rolling two-year (ii), (iii), or (iv) of this paragraph.94 into. basis, is derived from transactions in The proposed rule would require the Foreign broker-dealers should be able foreign securities, as defined below.91 In foreign broker-dealer to compute the to use this valuation information to general, the Commission believes that absolute value of all transactions calculate the total, combined value of making Exemption (A)(1) available only pursuant to both paragraphs (a)(3) and the securities purchased or sold in to a foreign broker-dealer conducting a (a)(4)(vi) of the proposed rule (i.e., transactions conducted pursuant to both foreign business would provide U.S. without netting the transactions) each paragraphs (a)(3) and (a)(4)(vi) of the investors increased access to foreign year to determine the aggregate amount proposed rule to determine the securities and markets without creating for the previous two years. For example, percentage of foreign securities bought opportunities for regulatory arbitrage a foreign broker-dealer that sold 100 from, or sold to, U.S. investors. vis-a´-vis U.S. securities markets because shares of Security A at $10.00 per share The calculation of the composition of the foreign broker-dealer’s business in and bought 100 shares of Security A at the foreign broker-dealer’s business on a U.S. securities would be limited. $10.00 per share pursuant to paragraphs rolling, two-year basis would mean that, The proposed definition of foreign (a)(3) and (a)(4)(vi) of the proposed rule after the first year the foreign broker- securities would include both debt and would have an aggregate value of dealer relies on the exemption, the equity securities of foreign private securities bought and sold of $2000.00 foreign broker-dealer would calculate issuers and debt securities of issuers (or (100 × $10.00) + (100 × $10.00)). the aggregate value of securities organized or incorporated in the United We note that the definition of foreign purchased and sold for the prior two States but where the distribution is security would include, among other years to determine whether it has wholly outside the United States in things, derivative instruments on debt complied with the foreign business test compliance with Regulation S, as well and equity securities of foreign private to be eligible for proposed Exemption as certain securities issued by foreign issuers. Given that the proposed rule (A)(1). This proposed requirement governments. The proposed definition is would provide an exemption for foreign would allow for short-term fluctuations not restricted to certain types of broker-dealers that effect transactions in that otherwise could cause a foreign securities, rather, to the extent that securities, the proposed definition of broker-dealer to be out of compliance qualified investors are interested in ‘‘foreign securities’’ would not include with the exemption on isolated purchasing foreign securities, the derivative instruments that are not occasions. A foreign broker-dealer Commission believes that they should themselves securities. Thus, foreign would have the flexibility to elect to use be able to access a broad range of foreign broker-dealers would not need to a calendar year or the firm’s fiscal year securities. The proposed rule would include the value of swap agreements for purposes of complying with the define ‘‘foreign securities’’ to mean: that meet the definition of ‘‘swap foreign business test. In addition, to provide foreign broker-dealers sufficient (i) An equity security (as defined in agreement’’ in Section 206A of the time to obtain and verify the relevant 17 CFR 230.405) of a foreign private Gramm-Leach-Bliley Act (‘‘GLBA’’) in 92 aggregate value data, the proposed rule issuer (as defined in 17 CFR 230.405); the foreign business test calculation (ii) A debt security (as defined in 17 would allow foreign broker-dealers to because they are excluded from the CFR 230.902) of a foreign private issuer rely on the calculation made for the definition of security.95 In the case of (as defined in 17 CFR 230.405); prior year for the first 60 days of a new (iii) A debt security (as defined in 17 year.96 Hence, a foreign broker-dealer 93 Thus, debt securities of an issuer organized or CFR 230.902) issued by an issuer incorporated under the laws of the United States that had a foreign business over years 1 organized or incorporated in the United would not qualify as ‘‘foreign securities’’ if they and 2 would be deemed to have a States in connection with a distribution were offered and sold as part of a global offering foreign business for the first 60 days of conducted solely outside the United involving both an offer and sale of the securities in year 4, regardless of the result of the the United States and a contemporaneous distribution outside the United States. This would calculation for year 3. We believe that 89 See proposed Rule 15a–6(b)(2)(ii). be consistent with the purpose of the foreign 60 days would be an appropriate ‘‘grace 90 See Part III.E., infra. business test, as discussed below. period’’ because it would give a foreign 91 See proposed Rule 15a–6(b)(3). 94 See proposed Rule 15a–6(b)(5). broker-dealer time to make the 92 17 CFR 230.405 defines ‘‘foreign private issuer’’ 95 The GLBA defines ‘‘swap agreement,’’ in part, necessary calculation and to cease to mean any foreign issuer other than a foreign as an agreement between eligible contract government, except issuers that meet the following participants (as defined in Section 1a(12) of the relying on Exemption (A)(1) if the conditions: (1) More than 50 percent of the Commodity Exchange Act), the material terms of calculation revealed that it was no outstanding voting securities of such issuer directly which (other than price and quantity) are subject to longer conducting a foreign business. or indirectly owned of record by residents of the individual negotiation. Swap agreements may be Making Exemption (A)(1) available United States; and (2) any of the following: (i) the based on a wide range of financial and economic only to a foreign broker-dealer majority of the executive officers or directors are interests. Section 206B of the GLBA defines U.S. citizens or residents; (ii) more than 50 percent ‘‘security-based swap agreement’’ as a swap of the assets of the issuer are located in the United agreement of which ‘‘a material term is based on the agreements.’’ The Commission retains, however, States; or (iii) the business of the issuer is price, yield, value, or volatility of any security or antifraud authority (including authority over administered principally in the United States. The any group or index of securities, or any interest insider trading) over security-based swap rule sets forth guidelines for determining the therein.’’ Section 3A of the Exchange Act excludes agreements. See, e.g., Section 10(b) of the Exchange percentage of outstanding voting securities owned from the definition of security both security-based Act. of record by residents of the United States. swap agreements and ‘‘non-security-based swap 96 See proposed Rule 15a–6(b)(3).

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conducting a foreign business would seeks comment on whether the Should the proposed test exclude U.S. provide U.S. investors increased access proposed disclosures provide government securities from the to foreign securities and foreign markets appropriate notice to qualified investors percentage of business in U.S. securities without creating opportunities for that foreign broker-dealers would not be for purposes of computing the regulatory arbitrage vis-a´-vis U.S. subject to the same regulatory threshold? Is the proposed method of securities markets because the foreign requirements as U.S. registered broker- valuing options and security futures broker-dealer’s business in U.S. dealers. Would notice be sufficient? Are appropriate? Should we provide securities would be limited. We believe there other disclosures that should be examples of how to value other types of this is particularly important because, required, in particular if the foreign derivative instruments? under Exemption (A)(1), for the first jurisdiction does not require the The Commission requests comment time, a foreign broker-dealer would be segregation of qualified investor funds on whether the proposed 85% threshold able to provide full-service brokerage and assets or provide for bankruptcy would be sufficient to enable foreign services (including maintaining custody protection for those funds and assets? broker-dealers to effect transactions in of funds and securities from resulting Should the foreign broker-dealer be U.S. securities as an accommodation transactions) to certain U.S. investors. required to identify the foreign and engage in program trading with We are proposing an 85% percent securities authority or authorities qualified investors. Would compliance threshold for determining whether a regulating the foreign broker-dealer? with the threshold be easily foreign broker-dealer conducts a foreign Should disclosure of the applicable determinable? Should it be raised or business because we understand from dispute resolution system be required? lowered to better protect against industry representatives that foreign In addition, the Commission requests regulatory arbitrage or to achieve its broker-dealers currently effect comment regarding the proposed stated purposes? Commenters transactions pursuant to paragraph (a)(3) required form of these disclosures. suggesting a different threshold or a of Rule 15a–6 primarily in foreign Should the proposed disclosures be different method for determining securities and only do a small eliminated or modified in any way? If compliance with the threshold should percentage of business in U.S. securities so, how and why? explain why the Commission should (less than 10%, by most estimates). The The Commission solicits comment on choose that threshold or method. Commission has not been given any the proposed definition of foreign Instead of requiring foreign broker- indication that foreign broker-dealers broker-dealer. Should the proposed rule dealers to conduct a ‘‘foreign business,’’ would seek to use an expanded require a foreign broker-dealer to be should Exemption (A)(1) of the exemption to increase their business in regulated for conducting securities proposed rule instead permit foreign U.S. securities. The 85% threshold activities, including the specific broker-dealers to effect transactions in should accommodate existing business activities in which the foreign broker or foreign securities and U.S. government models and allow foreign broker-dealers dealer engages with the qualified securities, with a limited exemption for to continue to do a limited amount of investor, in a foreign country by a the purchase of U.S. securities by business in U.S. securities, whether as foreign securities authority? What if qualified persons as part of a program an accommodation to their clients or as foreign securities authorities do not trade, provided that the purchase or sale part of program trading (i.e., any trading apply their regulations to the activities of foreign securities predominates? of their broker-dealers outside their strategy involving the related purchase b. Exemption (A)(2) or sale of a group of stocks as part of a country or with non-residents? The coordinated trading strategy, which Commission also seeks comment on the Proposed Exemption (A)(2) is could include U.S. securities), without proposed definition of foreign designed to be used by foreign broker- causing those foreign broker-dealers to securities.99 Are there any other types of dealers that would like to solicit lose the benefit of the exemption. Any securities that should be included transactions from qualified investors lower threshold could allow a foreign within the definition? Should any types that have accounts, and custody their broker-dealer to conduct significant of securities be excluded? Will reference funds and securities, with U.S. business in U.S. securities with certain to the equity and debt securities of a registered broker-dealers. Because we U.S. investors without being subject to ‘‘foreign private issuer,’’ as that term is expect that qualified investors would the full scope of the Commission’s defined in 17 CFR 230.405, affect the likely select a foreign broker-dealer for broker-dealer regulatory framework. interest of foreign issuers to cross-list on its knowledge of local markets and/or its This, in turn, could hinder the ability of both foreign and U.S. exchanges? If so, ability to execute trades in particular the Commission to protect investors, how? Furthermore, will reference to the markets, as they would under maintain fair, orderly and efficient equity and debt securities of a ‘‘foreign Exemption (A)(1), but the foreign markets and facilitate capital private issuer,’’ as that term is defined broker-dealer would not be acting as formation,97 as well as affect the in 17 CFR 230.405, affect listings of custodian of the funds and securities of competitive positions of U.S. registered American Depositary Receipts issued by the qualified investor (i.e., not acting as broker-dealers and foreign broker- depositaries against the deposit of the a full-service broker), we do not believe dealers.98 securities of foreign issuers on U.S. it would be necessary for Exemption The Commission seeks comment on exchanges? If so, how? (A)(2) to include certain of the proposed Exemption (A)(1) generally. The Commission seeks comment on requirements proposed to be included We invite comment on the proposed the proposed definition of ‘‘foreign in Exemption (A)(1), particularly the limitation of foreign broker-dealers to business.’’ 100 Would the proposed test proposed requirement that the foreign those that are regulated for conducting be workable? Would it be relatively easy broker-dealer conduct a foreign securities activities by a foreign for foreign broker-dealers to make the business, as described above. foreign business test calculation? securities authority and that conduct a i. Role of the U.S. Registered Broker- Should the proposed test apply foreign business. The Commission also Dealer separately to debt and equity securities? 97 See Exchange Act Section 2, 15 U.S.C. 78b. Under Exemption (A)(2), the U.S. 98 See Exchange Act Section 3(f); see also Part 99 See proposed Rule 15a–6(b)(5). registered broker-dealer would be VI.C., infra. 100 See proposed Rule 15a–6(b)(3). responsible for maintaining books and

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records, including copies of all involved in effecting the transaction.105 disclosures to the qualified investor confirmations issued by the foreign However, if a foreign broker-dealer regarding segregation requirements, broker-dealer to the qualified investor, effects a transaction pursuant to bankruptcy protections and protections relating to any transactions effected Exemption (A)(2) on a U.S. national under SIPA. The Commission does not under this exemption.101 This securities exchange, through a U.S. believe these disclosures would be requirement is designed to ensure that alternative trading system, or with a necessary given that, under proposed the Commission would have access to market maker or an over-the-counter Exemption (A)(2), the U.S. registered books and records relating to resulting dealer in the United States, as is broker-dealer would be maintaining transactions, as well as copies of common with respect to U.S. securities, custody of funds and securities of confirmations issued by the foreign a U.S. registered broker-dealer would be qualified investors in connection with broker-dealer to the qualified investor. involved in effecting the transaction and the resulting transactions. Because the U.S. registered broker- would be required to comply with the As noted above, we expect that dealer would carry the account of the provisions of the federal securities laws, Exemption (A)(2) would be used by qualified investor under Exemption the rules thereunder and SRO rules qualified investors that would like to (A)(2), we understand from discussions applicable to such activity. In other access foreign broker-dealers but with industry representatives that it words, such provisions would apply nonetheless would like to have an would be consistent with current with respect to all transactions in U.S. account, and maintain custody of their business practices for the U.S. registered securities under Exemption (A)(2) other funds and securities, with a U.S. broker-dealer to maintain the books and than certain over-the-counter registered broker-dealer. Because a records for transactions effected under transactions that a foreign broker-dealer foreign broker-dealer would be selected this exemption. does not effect by or through a U.S. for its knowledge of local markets and/ Proposed Exemption (A)(2) would registered broker-dealer. or its ability to execute trades in also require the U.S. registered broker- particular markets, but would not be dealer to receive, deliver and safeguard ii. Role of the Foreign Broker-Dealer acting as custodian of the funds and funds and securities in connection with A foreign broker-dealer relying on securities of the qualified investor (i.e., the transactions on behalf of the Exemption (A)(2) would not be not acting as a full-service broker), we qualified investor in compliance with permitted to maintain custody of do not believe it would be necessary for Rule 15c3–3 under the Exchange Act.102 qualified investor funds and securities proposed Exemption (A)(2) to include As explained below, Exemption (A)(2) is relating to any resulting transactions. certain of the requirements contained in designed to permit qualified investors Because of this limitation, Exemption proposed Exemption (A)(1), particularly that have an account with a U.S. (A)(2) would be available to all foreign the requirement that the foreign broker- registered broker-dealer to have access broker-dealers and not just those that dealer conduct a foreign business, as to foreign broker-dealers regardless of conduct a foreign business. Because described above. the types of securities that are entities that meet the definition of The Commission requests comment involved.103 foreign broker-dealer under the on proposed Exemption (A)(2) Unlike under the current rule, under proposed rule could not operate full- generally. How would this exemption Exemption (A)(2), the intermediating service brokerage under this exception, likely be used and by whom? Should U.S. registered broker-dealer would not we believe that there is less risk of proposed Exemption (A)(2) be available be required to effect the transaction.104 regulatory arbitrage. when the U.S. registered broker-dealer Thus, with respect to transactions Like Exemption (A)(1), Exemption does not maintain custody of the effected pursuant to Exemption (A)(2), (A)(2) would only be available to foreign qualified investor’s funds and securities the intermediating U.S. registered broker-dealers that are regulated for (e.g., when a U.S. or foreign affiliate of broker-dealer would no longer be conducting securities activities, the U.S. registered broker-dealer required to comply with the provisions including the specific activities in custodies the funds and securities of the federal securities laws, the rules which the foreign broker-dealer engages otherwise than pursuant to Rule 15c3– 107 thereunder and SRO rules applicable to with the qualified investor, in a foreign 3 under the Exchange Act)? a broker-dealer effecting a transaction in country by a foreign securities The Commission also seeks comment securities, unless it were otherwise authority.106 This requirement is on whether the proposed rule should designed to ensure that only foreign require the U.S. registered broker-dealer 101 See proposed Rule 15a–6(a)(3)(iii)(A)(2)(i). entities that are legitimately in the to comply with any requirements with 102 17 CFR 240.15c3–3. See proposed Rule 15a– business of conducting securities respect to transactions under Exemption 6(a)(3)(iii)(A)(2)(ii). Securities received and activities (such as effecting transactions (A)(2) other than the proposed safeguarded under Exemption (A)(2) would be requirement to maintain books and securities carried for the account of a customer in securities), and that are regulated in under Rule 15c3–3(a)(2). 17 CFR 240.15c3–3(a)(2). the conduct of those activities, could records and maintain custody of 103 Under Exemption (A)(2), the foreign broker- rely on Exemption (A)(2). In addition, qualified investors’ funds and securities dealer would be permitted to clear and settle the relating to the transactions. Should the transactions on behalf of the U.S. registered broker- the foreign broker-dealer relying on Exemption (A)(2) would be required to requirements differ based on whether dealer. The Commission believes that this is the securities are U.S. securities or appropriate for transactions effected under disclose to the qualified investor that Exemption (A)(2) for investors that possess the the foreign broker-dealer is regulated by foreign securities? If so, why? sophistication of qualified investors, particularly In addition, the Commission seeks a foreign securities authority and not by given that the exemption would require a U.S. comment on whether the proposed the Commission. Unlike under registered broker-dealer to maintain books and disclosures would provide appropriate records and receive, deliver and safeguard funds Exemption (A)(1), however, the foreign notice to qualified investors that foreign and securities in connection with the transactions. broker-dealer relying on Exemption 104 broker-dealers would not be subject to See 17 CFR 240.15a–6(a)(3)(iii)(A) (requiring (A)(2) would not be required to provide the U.S. registered broker-dealer to effect all aspects the same regulatory requirements as of a transaction other than negotiation of its terms) U.S. registered broker-dealers. Would and proposed Rule 15a–6(a)(3)(iii)(A)(2); see also 105 See note 28, supra, for a discussion of the note 28, supra, for a discussion of the differing differing treatment of U.S. and foreign securities notice be sufficient? Are there are other treatment of U.S. and foreign securities under under current Rule 15a–6(a)(3)(iii)(A)(1). current Rule 15a–6(a)(3)(iii)(A)(1). 106 See proposed Rule 15a–6(b)(2)(i). 107 17 CFR 240.15c3–3.

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disclosures that should be required? In not limit a foreign broker-dealer’s ability The Commission requests comment particular, should the foreign broker- to have unchaperoned communications, on its proposed interpretation of what dealer be required to identify the foreign both oral and electronic, with qualified would constitute a visit. Should the securities authority or authorities investors, as part of a transaction Commission provide a bright-line regulating the foreign broker-dealer? pursuant to either exemption in definition of what constitutes a ‘‘visit’’ Should disclosure of the applicable paragraph (a)(3) of the proposed rule. In or is a more flexible approach dispute resolution system be required? addition, the proposed rule would appropriate? Is it appropriate to In addition, the Commission requests provide that a foreign associated person interpret ‘‘visit’’ as a specific number of comment regarding the proposed may conduct unchaperoned visits to days in a calendar year that a foreign required form of these disclosures. qualified investors within the United broker-dealer could be in the United Should the proposed disclosures be States, provided that transactions in any States? If so, is 180 days a calendar year eliminated or modified in any way? If securities discussed during visits by the appropriate? Or would a lower number so, how and why? foreign associated person with qualified such as 120, 90, 60, or 30 days a In general, the Commission seeks investors are effected pursuant to either calendar year be more appropriate? We comment on whether proposed exemption in paragraph (a)(3) of the also solicit comment on the factors for Exemption (A)(1) and Exemption (A)(2) proposed rule because these determining what qualifies as a ‘‘visit,’’ alternatives would provide a meaningful transactions would be viewed as being described above. In addition, the choice for qualified investors wishing to solicited.111 The Commission believes Commission requests comment on access foreign broker-dealers. What that increasing the ability of foreign eliminating the chaperoning would be the advantages and broker-dealers to have unchaperoned requirements of the current rule. Are disadvantages of using each alternative? contacts should provide greater unchaperoned contacts between foreign flexibility for both investors and 2. Sales Activities broker-dealers and their associated industry participants in conducting persons and qualified investors Both proposed Exemption (A)(1) and communications and that eliminating appropriate? proposed Exemption (A)(2) would the requirement to have a U.S. eliminate the requirements in current registered broker-dealer present for such 3. Establishment of Qualification Rule 15a–6(a)(3) for foreign associated communications should not result in Standards persons 108 to be accompanied by an any significant loss of safeguards for Foreign broker-dealers intending to associated person of a U.S. registered qualified investors because of the rely on proposed Rule 15a–6(a)(3) broker-dealer during in-person visits sophistication and experience standards would need to meet certain qualification with U.S. investors. The proposed rule in the definition of qualified investor requirements.112 As under the current also would eliminate the current and the proposed disclosure rule, the foreign broker-dealer would be requirement for an associated person of requirements in Exemption (A)(1) and required to provide the Commission, a U.S. registered broker-dealer to Exemption (A)(2). upon request or pursuant to agreement participate in communications between As noted above, the proposed rule between the Commission or the United foreign associated persons and U.S. would allow a foreign broker-dealer to States and any foreign securities investors, whether oral or electronic. have unchaperoned visits within the authority, information or documents From discussions with industry United States. Whether a foreign related to the foreign broker-dealer’s representatives, the staff understands associated person’s stay in the United activities in inducing or attempting to that the current chaperoning States would qualify as a ‘‘visit’’ for induce securities transactions by requirements have been criticized as purposes of the proposed rule would be qualified investors.113 This information impractical and that they have been a facts and circumstances determination would permit the Commission to viewed as imposing unnecessary based on factors including, but not monitor and follow up on transactional operational and compliance burdens limited to, the purpose, length and activity conducted under Rule 15a–6, as particularly for communications with frequency of any stays. The Commission necessary and appropriate. broker-dealers in time zones outside proposes to interpret a ‘‘visit’’ as one or The proposed rule also would require those of the United States. The current more trips to the United States over a the foreign broker-dealer to determine rule allows some unchaperoned calendar year that do not last more than that its associated persons that effect contacts, in part due to the existence of 180 days in the aggregate. The purpose transactions with qualified investors are other provisions of the rule that require of this proposed limitation regarding not subject to a statutory review of ‘‘the background of, foreign visits is to prevent foreign broker- disqualification under Section 3(a)(39) personnel who will contact U.S. dealers from essentially having a of the Exchange Act.114 This would be institutional investors.’’ 109 The permanent sales force in the United a change from the current rule, which proposed amendments would retain the States, which may result in foreign requires the U.S. registered broker- requirement that the background of broker-dealers essentially conducting a dealer intermediating the transaction to foreign personnel be reviewed, albeit by U.S. based business, similar to U.S. make this determination.115 the foreign broker-dealer,110 but would registered broker-dealers, without Specifically, current Rule 15a– expand the ability of foreign broker- appropriate regulatory oversight of these 6(a)(3)(ii)(B) requires a U.S. registered dealers to have unchaperoned contacts. foreign broker-dealers. We preliminarily broker-dealer to determine that the Specifically, the proposed rule would believe that 180 days strikes the proper foreign associated persons of a foreign balance between facilitating legitimate broker-dealer effecting transactions with 108 The proposed rule would retain the definition foreign broker-dealer activity in the U.S. institutional investors or major U.S. of ‘‘foreign associated person’’ that is in paragraph United States, such as investment institutional investors are not subject to (b)(2) of the current Rule 15a–6, but would banking, and the potential competitive substitute ‘‘qualified investor’’ for ‘‘U.S. issues with U.S. registered broker- institutional investor or major U.S. institutional 112 See proposed Rule 15a–6(a)(3)(i). investor’’ in the definition. See proposed Rule 15a– dealers and investor protection 113 See proposed Rule 15a–6(a)(3)(i)(A) and 17 6(b)(1). concerns. CFR 240.15a–6(a)(3)(i)(B). 109 See 1988 Proposing Release, 53 FR at 23653. 114 See proposed Rule 15a–6(a)(3)(i)(B). 110 See Proposed Rule 15a–6(a)(3)(i)(B) and (C). 111 See proposed Rule 15a–6(a)(3)(ii). 115 See 17 CFR 240.15a–6(a)(3)(ii)(B).

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a statutory disqualification specified in person was a cause of any disciplinary and each foreign associated person Section 3(a)(39) of the Exchange Act, or action or had violated any law; a record written consent to service of process for certain substantially equivalent foreign of any denial, suspension, expulsion or any civil action brought by or disciplinary actions. Because of revocation of membership or proceeding before the Commission or a subsequent legislation, the proposed registration of any foreign broker-dealer self-regulatory organization (as defined rule would no longer separately with which the foreign associated in Section 3(a)(26) of the Exchange describe the foreign equivalents of person was associated in any capacity Act).123 The U.S. registered broker- statutory disqualification.116 The when such action was taken; a record of dealer would also be responsible for Commission believes shifting the any permanent or temporary injunction obtaining from the foreign broker-dealer responsibility for making the statutory entered against the foreign associated a representation that the foreign broker- disqualification determination would be person or any foreign broker-dealer with dealer has determined that any foreign appropriate because the foreign broker- which the foreign associated person was associated person of the foreign broker- dealer is in possession of the relevant associated in any capacity at the time dealer effecting transactions with the information regarding its foreign such injunction was entered; a record of qualified investor is not subject to a associated persons. Thus, we believe, as any arrest or indictment for any felony statutory disqualification specified in a practical matter, foreign broker-dealers or foreign equivalent, or any Section 3(a)(39) of the Act, as required are already making this determination misdemeanor or foreign equivalent by paragraph (a)(3)(i)(B) of the proposed so that U.S. registered broker-dealers pertaining to securities, commodities, rule and discussed above.124 can comply with their obligations under banking, insurance or real estate In addition, the U.S. registered broker- the existing rule. As discussed below, (including, but not limited to, acting or dealer would be responsible for the proposed rule would require the being associated with a foreign broker- obtaining from the foreign broker-dealer U.S. registered broker-dealer to obtain a dealer), fraud, false statements or a representation that it has in its files, representation from the foreign broker- omissions, wrongful taking of property and the foreign broker-dealer would dealer that it has made this or bribery, forgery, counterfeiting or make available upon request by the U.S. determination. extortion, and the disposition of the registered broker-dealer or the Under the current rule, a U.S. foregoing; and a record of any other Commission, the types of information registered broker-dealer must obtain, name or names by which the foreign specified in Rule 17a–3(a)(12) under the with respect to each foreign associated associated person has been known or Act, as required by paragraph (a)(3)(i)(C) person, information specified in Rule which the foreign associated person has of the proposed rule and discussed 17a–3(a)(12) under the Exchange Act 117 used.120 above.125 Finally, the proposed rule that relates to activities under paragraph The proposed rule would provide that would require the U.S. registered (a)(3).118 The proposed rule would the information kept by the foreign broker-dealer to maintain records of require the foreign broker-dealer to broker-dealer as specified in Rule 17a– these written consents and maintain this information in its files and 3(a)(12)(i)(D) 121 must include representations and, as in the current make it available upon request by the documentation of sanctions imposed by rule, make these records available to the U.S. registered broker-dealer or the foreign securities authorities, foreign Commission upon request.126 These Commission.119 This information would exchanges, or foreign associations, proposed requirements are important include the foreign associated person’s including without limitation those because they are designed to ensure that name; address; social security number described in Section 3(a)(39) of the the Commission would be able to obtain or foreign equivalent; the starting date of Exchange Act.122 The Commission information regarding foreign associated employment or other association with believes shifting the responsibility persons if it were necessary in the the foreign broker-dealer; date of birth; would be appropriate because the context of an investigation into alleged a complete, consecutive statement of all foreign broker-dealer is in possession of misconduct by a foreign broker-dealer or the foreign associated person’s business the relevant information regarding its persons associated with the foreign connections for at least the preceding foreign associated persons. Thus, we broker-dealer. The Commission believes ten years, including whether the believe, as a practical matter, foreign that allowing U.S. registered broker- employment was part-time or full-time; broker-dealers are already making this dealers to rely upon the determinations a record of any denial of membership or determination so that U.S. registered and representations of foreign broker- registration, and of any disciplinary broker-dealers can comply with their dealers discussed above is a balanced action taken, or sanction imposed, upon obligations under the existing rule. As approach that should address the risks the foreign associated person by any discussed below, the proposed rule agency, or by any securities exchange or would require the U.S. registered 123 See proposed Rule 15a–6(a)(3)(iii)(B) and 17 securities association, including any broker-dealer to obtain a representation CFR 240.15a–6(a)(3)(iii)(C). As in the current rule, the consent would be required to provide that finding that the foreign associated from the foreign broker-dealer that it is process may be served on them by service on the maintaining the required information. registered broker-dealer in the manner set forth on 116 At the time the Commission adopted Rule Consistent with the current rule, the registered broker’s or dealer’s current Form BD. 15a–6, the definition of ‘‘statutory disqualification’’ proposed Rule 15a–6(a)(3) would This would put individuals on notice of the manner in Section 3(a)(39) did not include expulsions, require the U.S. registered broker-dealer in which process would be served. suspensions or other orders under foreign statutes 124 See proposed Rule 15a–6(a)(3)(iii)(C). or foreign equivalents of U.S. regulatory authorities. to obtain from the foreign broker-dealer 125 See id. The International Securities Enforcement 126 See proposed Rule 15a–6(a)(3)(i)(D). The Cooperation Act of 1990 amended Section 3(a)(39) 120 17 CFR 240.17a–3(a)(12). provisions of proposed Rules 15a–6(a)(3)(iii)(B) and to include certain foreign conduct and disciplinary 121 17 CFR 240.17a–3(a)(12)(i)(D) (requiring a (D) are similar to paragraphs (a)(3)(iii)(D) and (E) of action in the definition of ‘‘statutory broker-dealer to make and keep current a record of the current rule, although the proposed rule would disqualification’’, including each type of conduct or any denial of membership or registration, and of eliminate the requirement under current Rule 15a– disciplinary action described in paragraphs any disciplinary action taken, or sanction imposed, 6(a)(3)(iii)(E) that the registered broker-dealer (a)(3)(ii)(B)(1)(i)–(v), (a)(3)(ii)(B)(2) and upon the associated person by any federal or state maintain a written record of all records in (a)(3)(ii)(B)(3) of Rule 15a–6. See Pub. L. 101–550, agency, or by any national securities exchange or connection with trading activities of the qualified 104 Stat. 2714 (1990). national securities association, including any investor involving the foreign broker-dealer. This 117 17 CFR 240.17a–3(a)(12). finding that the associated person was a cause of requirement is subsumed in other sections of the 118 See 17 CFR 240.15a–6(a)(3)(iii)(C). any disciplinary action or had violated any law). proposed rule. See proposed Rule 15a– 119 See Proposed Rule 15a–6(a)(3)(i)(C). 122 See proposed Rule 15a–6(a)(3)(i)(C). 6(a)(3)(iii)(A)–(D).

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to qualified investors related to, among federal income tax purposes; (ii) any ‘‘broker’’ or ‘‘dealer,’’ 130 that acts in a other things, contacts with foreign natural person not a resident for federal fiduciary capacity for an account of a associated persons with a disciplinary income tax purposes; and (iii) any entity foreign resident client. Consistent with history. not organized or incorporated under the our understanding of the expectations of The Commission seeks comment on laws of the United States, 85 percent or foreign resident clients of a U.S. the qualification standards that would more of whose outstanding voting resident fiduciary, this proposed apply to foreign broker-dealers and U.S. securities are beneficially owned by exemption would be available only to a registered broker-dealers under the persons in subparagraphs (i) and (ii) of foreign broker-dealer that conducts a proposed rule. Commenters are invited this paragraph.’’ 128 Discussions with foreign business.131 As indicated above, to discuss whether reliance by a U.S. industry have indicated that these are this exemption would recognize that registered broker-dealer upon the the types of entities that would likely foreign resident clients would not determinations and representations of a use the proposed exemption. We expect that the broker-dealer through foreign broker-dealer appropriately selected the 85 percent threshold to which a U.S. resident fiduciary is addresses the potential risks to qualified capture foreign entities that are effecting transactions is regulated by the investors related to, among other things, predominantly foreign-owned, while Commission. Moreover, under the contacts with foreign associated persons accommodating a small amount of U.S. proposed rule, the foreign broker-dealer with a disciplinary history. Should any ownership.129 would be required to obtain a written of the responsibilities for making the For purposes of both the broker-dealer representation from the U.S. fiduciary statutory disqualification registration provisions of the Exchange that the account is managed in a determinations or obtaining consents be Act and the proposed exemption fiduciary capacity for a foreign resident shifted? Should the proposed rule provided by Rule 15a–6(a)(4)(vi), a U.S. client.132 This requirement is designed require that the foreign broker-dealer (or resident fiduciary is considered to be a to ensure that the U.S. fiduciary is the U.S. registered broker-dealer) U.S. person, regardless of the residence actually managing accounts for foreign determine whether the foreign of the owners of the underlying resident clients. associated persons are subject to accounts. Accordingly, absent an The Commission seeks comment statutory disqualifications? exemption, a foreign broker-dealer that generally on the exemptions in induces or attempts to induce a paragraph (a)(4) of the proposed rule for E. Counterparties and Specific securities transaction with a U.S. transactions with certain U.S. entities. Customers resident fiduciary would be required Are there entities or other categories of As in the current rule, proposed Rule either to register with the Commission entities that should be included? The 15a–6(a)(4) would provide exemptions or effect transactions in accordance with Commission particularly seeks comment for foreign broker-dealers that effect Rule 15a–6(a)(3). We understand, on the proposed exemption for transactions in securities with or for, or however, that foreign resident clients of transactions with U.S. fiduciaries of induce or attempt to induce the a U.S. resident fiduciary reasonably may accounts for foreign resident clients. Is purchase or sale of any security, by not expect the U.S. broker-dealer the requirement that a foreign broker- certain persons, including registered regulatory requirements to apply to their dealer conduct a foreign business broker-dealers, certain international transactions in foreign securities, in necessary or appropriate? Should the banks and bank organizations, certain large part simply because the rule apply to U.S. fiduciaries for foreign persons temporarily present in transactions are in foreign securities. accounts other than those of foreign the United States and certain U.S. Accordingly, the proposed rule would resident clients? The Commission persons or groups of U.S. persons permit a foreign broker-dealer to effect requests comment on the definition of abroad. We understand from transactions in, or induce or attempt to ‘‘foreign resident client,’’ in general, and discussions with industry that these induce the purchase or sale of, the 85 percent foreign ownership exemptions have been workable for both securities, with or for any U.S. person, threshold for entities not organized or foreign broker-dealers and the U.S. other than a registered broker-dealer or incorporated under the laws of the entities and we have no knowledge of a bank acting pursuant to an exception United States, in particular. Should it be investor protection concerns being or exemption from the definition of raised or lowered to better protect raised. Accordingly, we do not propose against regulatory arbitrage or to achieve to amend them. 128 See proposed Rule 15a–6(b)(4). its stated purposes? Commenters We do, however, propose to provide 129 The Commission considers a person to be a suggesting a different threshold or a an additional exemption for transactions control person if he or she directly or indirectly has the power to vote 25 percent or more of the voting different method for determining with U.S. resident fiduciaries of securities or interests of an entity. See, e.g., 17 CFR compliance with the threshold should accounts for ‘‘foreign resident clients’’ 240.12b–2. The concept of control, which is found explain why they would choose that because it is our understanding that in all the statutes administered by the Commission, threshold or method. foreign resident clients would not varies to some degree between statutes. Although the Exchange Act does not define ‘‘control,’’ Rule assume that the broker-dealer through F. Familiarization With Foreign Options 12b–2 under the Exchange Act defines ‘‘control’’ as Exchanges which a U.S. resident fiduciary is ‘‘the possession, direct or indirect, of the power to effecting transactions is regulated by the direct or cause the direction of the management and Over the years, foreign options Commission.127 The proposed rule policies of a person, whether through the exchanges have inquired regarding the ownership of voting securities, by contract, or would define ‘‘foreign resident client’’ otherwise.’’ This definition has been found to apply to mean ‘‘(i) any entity not organized or to all Exchange Act control determinations. In re 130 See Sections 3(a)(4)(B), 3(a)(4)(E) and incorporated under the laws of the Commonwealth Oil / Tesoro Petroleum Securities 3(a)(5)(C) of the Exchange Act. Foreign broker- dealers that want to effect transactions for registered United States and not engaged in a trade Litigation, 484 F. Supp. 253, 268 (W.D. Tex. 1979) (the right to vote 25 percent or more of the voting broker-dealers or banks acting pursuant to certain or business in the United States for securities or is entitled to 25 percent or more of the exceptions or exemptions from the definition of profits is presumed to control that company). The ‘‘broker’’ or ‘‘dealer’’ can do so under the exemption 127 Cf. Letter from Catherine McGuire, Chief 85 percent threshold in proposed paragraph in paragraph (a)(4)(i) of Rule 15a–6. See 17 CFR Counsel, Division of Market Regulation, to Giovanni (b)(4)(iii) is designed to ensure that entities with 240.15a–6(a)(4)(i). P. Prezioso, Cleary Gottlieb, Steen & Hamilton (Jan. U.S. control persons would not meet the proposed 131 See proposed Rule 15a–6(b)(2)(ii). 30, 1996). definition of ‘‘foreign resident client.’’ 132 See proposed Rule 15a–6(a)(4)(vi)(B).

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permissibility of limited activities exchange and representatives of the efficiencies and benefits available in an designed to familiarize U.S. entities that foreign options exchange could conduct exchange-traded market. In particular, have had prior actual experience with certain activities or communicate with a qualified investors would have greater traded options in U.S. options markets, qualified investor in a manner that opportunities to close out options such as U.S. registered broker-dealers might otherwise be considered a form of positions. In a typical OTC options and certain U.S. institutional investors, solicitation, as described below.136 transaction, a party must either with the existence and operations of, Transactions effected by or through the negotiate with its counterparty to close and options on foreign securities traded foreign broker-dealer with or for out the trade or enter into an offsetting on, such foreign options exchanges. qualified investors that result from these transaction to reduce its risk. In These exchanges have limited the activities or communications would not addition, OTC options processing activities conducted by their require registration or compliance with services would provide a means for representatives, who may be located in proposed Rule 15a–6(a)(3). However, qualified investors to reduce other risks a foreign office or in a representative while these activities would not that arise in trading in the OTC options office in the United States, and by their necessarily constitute a form of market, including credit risks, liquidity foreign broker-dealer members. solicitation, the Commission anticipates risks, legal risks and operational risks. that given the broad interpretation of By using an OTC options processing 1. Exchange Act Section 15(a) solicitation, it would be difficult, if not service, qualified investors would be Because the activities by a impractical, to conduct repeated able to access the benefits available in representative of a foreign options transactions with the same qualified the OTC options market while taking exchange may constitute solicitation,133 investor without the foreign broker- advantage of the benefits and decreased they raise potential registration dealer engaging in some form of risks available in the exchange-traded concerns for foreign broker-dealer communication that would constitute market. participants on the exchanges under solicitation. Therefore, the Commission The proposed rule would also permit Section 15(a).134 This is in part because anticipates that most transactions with a representative of a foreign options the activities are undertaken with the qualified investors resulting from these exchange to provide persons that the expectation that one or more U.S. activities or communications would representative of the foreign options registered broker-dealers or U.S. need to be completed pursuant to exchange reasonably believes are institutional investors will engage in proposed Rules 15a–6(a)(3). qualified investors with a disclosure foreign options transactions executed Paragraph (a)(5)(i) of proposed Rule document that provides an overview of through the exchange, and thus trade 15a–6 would set forth the limited the foreign options exchange and the through one or more foreign broker- activities in which a representative of a options on foreign securities traded on dealer members of the exchange. foreign options exchange located in a that exchange, including the differences Similarly, the activities of a foreign foreign office or a representative office from standardized options in the U.S. broker-dealer member of a foreign in the United States may engage vis-a`- options market and special factors options exchange may constitute vis qualified investors. The proposed relevant to transactions by U.S. entities solicitation under the Commission’s rule would allow the representative of a in options on the foreign options broad interpretation of solicitation. foreign options exchange to exchange.138 In addition, a The Commission recognizes the role communicate with persons that he or representative of a foreign options of these activities in making certain U.S. she reasonably believes are qualified exchange could make available to investors aware of foreign options investors regarding the foreign options persons that the representative of the markets and the options on foreign exchange, the options on foreign foreign options exchange reasonably securities traded on those markets. securities traded on the foreign options believes are qualified investors, solely Accordingly, the Commission is exchange, and, if applicable, the foreign upon the request of the investor, a list proposing a new exemption to provide options exchange’s ‘‘OTC options of participants on the foreign options legal certainty for the foreign broker- processing service,’’ as defined exchange permitted to take orders from dealer members and these foreign below.137 Such communications could the public and any U.S. registered options exchanges. Paragraph (a)(5) of include programs and seminars in the broker-dealer affiliates of such proposed Rule 15a–6 would allow a United States. participants.139 Moreover, paragraph foreign broker-dealer that is a member of Proposed Rule 15a–6(b)(6) would (5)(iii) would allow the foreign a foreign options exchange to effect define an ‘‘OTC options processing exchange to make available to qualified transactions in options on foreign service’’ as ‘‘a mechanism for submitting investors, through the foreign broker- securities listed on that exchange for a an options contract on a foreign security dealer, the exchange’s OTC options qualified investor that has not otherwise that has been negotiated and completed processing service.140 been solicited by the foreign broker- in an over-the-counter transaction to a In proposing to limit these activities, 135 dealer. Under this exemption, a foreign options exchange so that the the proposed rule is designed to ensure foreign broker-dealer, a foreign options foreign options exchange may replace that a foreign options exchange and its that contract with an equivalent representatives do not engage in 133 For a discussion of the Commission’s broad standardized options contract that is interpretation of solicitation, see Parts II.A. and solicitation on behalf of a particular III.B., supra. listed on the foreign options exchange foreign broker-dealer or limited group of 134 The fact that the activities are conducted by and that has the same terms and particular foreign broker-dealers. the exchanges through their representatives does conditions as the over-the-counter Paragraph (a)(5)(ii) of the proposed not necessarily eliminate the registration concerns options.’’ By utilizing an OTC options of the participants on those exchanges. See rule would set forth the activities in Exchange Act Section 20(b), 17 U.S.C. 78t(b) (‘‘It processing service, qualified investors which a foreign broker-dealer could shall be unlawful for any person, directly or would be able to take advantage of the engage in connection with transactions indirectly, to do any act or thing which it would flexible nature of the OTC options effected on a foreign options exchange be unlawful for such person to do under the provisions of this title or any rule or regulation market, while realizing certain thereunder through or by means of any other 138 See proposed Rule 15a–6(a)(5)(i)(B). person’’). 136 See proposed Rules 15a–6(a)(5)(i)–(iii). 139 See proposed Rule 15a–6(a)(5)(i)(C). 135 See proposed Rule 15a–6(a)(5). 137 See proposed Rule 15a–6(a)(5)(i)(A). 140 See proposed Rule 15a–6(a)(5)(iii).

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of which it is a member. A foreign foreign exchange would not be required contract on foreign securities, and the broker-dealer would be permitted to to register as a national securities foreign clearing organization would make available to qualified investors the exchange under Section 6 of the clear and settle these transactions for its foreign options exchange’s OTC options Exchange Act or be exempt from such foreign broker-dealer participants in the processing service.141 A foreign broker- registration if the foreign exchange, its same manner as any other transaction dealer would also be permitted to representatives, or its foreign broker- executed on the foreign options provide qualified investors, in response dealer members engaged in the limited exchange. to an otherwise unsolicited inquiry activities and communications Section 17A(b)(1) of the Exchange Act concerning foreign options traded on described in proposed paragraph (a)(5) prohibits any clearing agency from the foreign options exchange, with a of Rule 15a–6. The Commission’s directly or indirectly making ‘‘use of the disclosure document that provides an proposed interpretation is based on its mails or any means or instrumentality of overview of the foreign options preliminary view that, although a interstate commerce to perform the exchange and the options on foreign foreign exchange’s OTC options functions of a clearing agency with securities traded on that exchange, processing service may be a facility of respect to any security (other than an including the differences from an exchange,147 the OTC options exempted security),’’ unless it is standardized options in the U.S. processing service would not effect any registered with the Commission.150 The domestic options market and special transaction in a security or report any Commission may conditionally or factors relevant to transactions by U.S. such transaction.148 Accordingly, such unconditionally exempt any clearing entities in options on that exchange.142 activity would not trigger the agency if the Commission finds that 2. Exchange Act Sections 5 and 6 registration requirements of Section 6 of such exemption is consistent with the the Exchange Act.149 public interest, the protection of Section 5 of the Exchange Act makes The Commission seeks comment on investors and the purposes of Section it ‘‘unlawful for any broker, dealer, or its proposed interpretation that a foreign 17A.151 exchange, directly or indirectly, to make exchange would not be required to Previously, the Commission has use of the mails or any means or register as a national securities exchange required foreign clearing organizations instrumentality of interstate commerce under Section 6 of the Exchange Act if to obtain an exemption from clearing for the purpose of using any facility of the foreign exchange, its representatives, agency registration only when the an exchange with or subject to the or its foreign broker-dealer members foreign clearing organization provides jurisdiction of the United States to effect engage in the limited activities and clearance and settlement services for any transaction in a security, or to communications described in paragraph U.S. securities directly to U.S. entities. report any such transaction,’’ unless (a)(5) of proposed Rule 15a–6. Are any For example, the Commission granted such exchange is registered under additional conditions necessary or are Euroclear and Clearstream (formerly Section 6 of the Exchange Act or exempt there other interpretive issues relating to Cedel Bank) exemptions from clearing 143 from such registration. As described the circumstances under which a agency registration in order that they above, paragraph (a)(5) of proposed Rule foreign exchange would be required to could provide clearance and settlement 15a–6 would establish the limited register under Section 6 of the Exchange services for U.S. government securities activities and communications in which Act, or otherwise obtain an exemption to their U.S. participants.152 Because a representative of a foreign options from such registration requirements, only the foreign broker-dealer would exchange located in a foreign office or that the Commission should address? have direct access to the foreign clearing a representative office in the United organization to clear and settle foreign 3. Exchange Act Section 17A States may engage vis-a`-vis qualified securities transactions under proposed 144 investors, and in which a foreign Under proposed Rule 15a–6(a)(5), Rule 15a–6(a)(5), the Commission does broker-dealer may engage in connection qualified investors would not become not believe that relief under Section 17A with transactions effected on a foreign direct members of, or participants in, of the Exchange Act would be options exchange in which it is a the foreign options exchange or any necessary. The Commission solicits 145 member. In addition, a foreign associated foreign clearing organization. comment on whether any interpretive exchange could make available to Further, the foreign options exchange guidance is needed under Section 17A qualified investors, through a foreign would not trade nor would the foreign with respect to activities under broker-dealer, the exchange’s OTC clearing organization clear and settle proposed Rule 15a–6(a)(5). If so, what? options processing service.146 options on U.S. securities for a foreign The Commission is proposing to broker-dealer member or participant 4. Securities Act provide interpretive guidance that a relying on proposed paragraph (a)(5) for Foreign option transactions that are the transaction. The foreign broker- effected through the facilities of a 141 See proposed Rule 15a–6(a)(5)(ii)(A). dealer member or participant would foreign exchange will generally involve 142 See proposed Rule 15a–6(a)(5)(ii)(B). Exchange Act Rule 9b–1 requires an options market to file execute transactions in options on the offer and sale of a security by an 153 with the Commission an options disclosure foreign securities, or submit an options issuer of the security. As a result, document containing the information specified in Rule 19b–1(c). ‘‘Options markets’’ are defined in 147 See Section 3(a)(2) of the Exchange Act, 15 150 15 U.S.C. 78q–1(b)(1). Rule 19b–1 to include foreign securities exchanges. U.S.C. 78c(a)(2) (defining ‘‘facility’’ of an exchange). 151 Id. See Exchange Act Rule 19b–1(a)(1), 17 CFR 148 See note 143 and accompanying text, supra 152 See Exchange Act Release Nos. 43775 (Dec. 28, 240.19b–1(a)(1). The Commission would not view (discussing Section 5 of the Exchange Act, which 2000), 66 FR 819 (order exempting Euroclear Bank the provision of the options disclosure document, prohibits a broker, dealer, or exchange from using from clearing agency registration) and 39643 (Feb. which contains, among other things, a summary of a facility of an exchange to effect a transaction in 18, 1998), 63 FR 8232 (order exempting Euroclear the instruments traded and the mechanics of a security, or to report any such transaction, unless Bank’s predecessor, Morgan Guaranty Trust trading on that market, as a ‘‘research report’’ under such exchange is registered under Section 6 of the Company, as operator of the Euroclear system, from proposed Rule 15a–6(a)(2). See Parts II.B. and III.C., Exchange Act). clearing agency registration) and Exchange Act supra. 149 See Section 3(a)(1) of the Exchange Act, 15 Release No. 38328 (Feb. 24, 1997), 62 FR 9225 143 15 U.S.C. 78e. U.S.C. 78c (defining ‘‘exchange’’) and Rule 3b–16 (order exempting Clearstream Bank, formerly Cedel 144 See proposed Rule 15a–6(a)(5)(i). under the Exchange Act, 17 CFR 240–3b–16 (further Bank, from clearing agency registration). 145 See proposed Rule 15a–6(a)(5)(ii). elaborating on the definition of ‘‘exchange’’ 153 With exchange traded options, the clearing 146 See proposed Rule 15a–6(a)(5)(iii). contained in the Exchange Act). house is the issuer of the option security. See

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unless the foreign options were G. Scope of the Proposed Exemption solely by virtue of its status as a broker registered under the Securities Act, When we adopted Rule 15a–6 in or dealer rather than because of its foreign option transactions involving 1989, the Commission had authority, registration with the Commission. U.S. persons would be required to come under Section 15(a)(2) of the Exchange Under the proposed rule, as under the within an exemption from registration. Act, only to conditionally or current rule, however, foreign broker- To the extent that the activities unconditionally exempt from the dealers would not be exempt from undertaken by foreign options exchange broker-dealer registration requirements provisions of the Exchange Act, and the in the United States can be deemed to of Section 15(a)(1) any broker-dealer or rules and regulations thereunder, that constitute offers of foreign options class of broker-dealers, by rule or order, are not specific to broker-dealers, such under the Securities Act, such activities as it deems consistent with the public as Section 10(b) of the Exchange Act, or must also be undertaken in a fashion interest and the protection of Rule 10b–5 thereunder.159 Such rules that is consistent with the requirements investors.155 However, many of the apply to ‘‘persons’’ regardless of their of the applicable exemption.154 statutory and regulatory provisions registration status, and thus apply equally to registered broker-dealers, 5. Request for Comment under the Exchange Act actually are applicable by their terms to broker- unregistered broker-dealers and non- The Commission seeks comment on dealers regardless of their registration broker-dealers. We also do not propose the proposed exemption in paragraph status.156 To provide foreign broker- to exempt foreign broker-dealers from (a)(5) for transactions effected by a dealers relying on the exemptions in Exchange Act Sections 15(b)(4) and foreign broker-dealer on a foreign Rule 15a–6 with relief from these 15(b)(6), which give the Commission the options exchange of which it is a provisions, the Commission stated in authority to sanction broker-dealers and member. Should the Commission the 1989 Adopting Release, persons associated with broker-dealers, require a foreign broker-dealer or a ‘‘Nevertheless, the staff would not because these sections provide the representative of a foreign options recommend that the Commission take Commission with flexibility to impose a exchange to determine that the persons enforcement action against foreign bar against or place other limitations on with whom the representative broker-dealers for want of compliance associated persons or place limitations communicates or otherwise provides with those provisions, with the on broker-dealers in the circumstances information under proposed paragraphs exception of sections 15(b)(4) and specified in these sections. (a)(5)(i)(A)–(C) are, in fact, qualified 15(b)(6), if the foreign broker-dealers As discussed more fully below with investors? Should the exemption be were exempt from broker-dealer respect to each of the exemptions in the limited to unsolicited transactions? As a registration under the Rule.’’ 157 proposed rule, the Commission practical matter, because of the broad Since 1996, the Commission has had preliminarily believes that exempting interpretation of solicitation, would general exemptive authority under foreign broker-dealers from the foreign broker-dealers effecting Section 36 of the Exchange Act to registration requirements of Sections transactions with qualified investors conditionally or unconditionally 15(a)(1) and 15B(a)(1) of the Exchange that have been approached by the exempt any person, security, or Act and the reporting and other representatives of a foreign options transaction, or any class or classes of requirements of the Exchange Act (other exchange effect these transactions in persons, securities, or transactions, from than Sections 15(b)(4) and 15(b)(6)), and reliance on proposed paragraph (a)(3) of any provision or provisions of the the rules and regulations thereunder, Rule 15(a)(6)? If not, should the Exchange Act or any rule or regulation that apply specifically to a broker-dealer proposed exemption permit foreign thereunder, by rule, regulation or order, that is not registered with the broker-dealers to engage in additional to the extent that such exemption is Commission solely by virtue of its status limited solicitation activities, such as necessary or appropriate in the public as a broker or dealer would be necessary the types of contacts that would be interest and is consistent with the or appropriate in the public interest, expected in an ongoing customer protection of investors.158 and would be consistent with the relationship? In general, should foreign The Commission proposes to amend protection of investors. representatives of foreign options Rule 15a–6 to exempt foreign broker- 1. Proposed Rule 15a–6(a)(2) exchanges or foreign options exchanges dealers from not only the registration be permitted to engage in any other requirements of Section 15(a)(1) or As discussed above, proposed rule activities under the proposed rule? If so, 15B(a)(1) of the Exchange Act, but also 15a–6(a)(2) would permit a foreign what? Given the purpose of the from the reporting and other broker-dealer to provide research exemption to allow familiarization requirements of the Exchange Act (other reports to qualified investors, but not activities for foreign options exchanges, than Sections 15(b)(4) and 15(b)(6)), and otherwise induce or attempt to induce are there other types of markets for the rules and regulations thereunder, the purchase or sale of any security by which it would be appropriate to permit that apply specifically to a broker-dealer qualified investors.160 Based on familiarization activities? If so, which conversations with industry markets and what should the 155 See 15 U.S.C. 78o(a)(2); see also Section participants, we understand that foreign permissible range of activities be? 15B(a)(4) of the Exchange Act, 15 U.S.C. 78o–4(a)(4) broker-dealers rarely rely on current (giving the Commission similar authority with Should they be broader or narrower Rule 15a–6(a)(2). This is in part because respect to municipal securities dealers). of the limitations on solicitation, as well than the permissible range of activities 156 See 1989 Adopting Release, 54 FR at 30015 for foreign options exchanges? If so, n.22 (‘‘E.g., sections 15(b)(4) and 15(b)(6) of the as the requirement that if a foreign why? Commenters are requested to Exchange Act, 15 U.S.C. 78o(b)(4) and 78o(b)(6); broker-dealer has a relationship with a explain their views. Rules 15c3–1, 15c3–3, 17a–3, 17a–4, and 17a–5, 17 U.S. registered broker-dealer that CFR 240.15c3–1, 15c3–3, 17a–3, 17a–4, and 17a– satisfies the requirement of paragraph 5’’). Securities Act Release No. 8171 (Dec. 23, 2002), 68 157 See 1989 Adopting Release, 54 FR at 30015 (a)(3) of the current rule, any FR 188, 188 (Jan. 2, 2003). n.22. 154 For example, to the extent that reliance is 158 See 15 U.S.C. 78mm; see also Capital Markets 159 The proposed rule also would not affect any based on Securities Act Section 4(2), the activities Efficiency Act of 1996, Sec. 105(b), Pub. Law 104– obligations a foreign broker-dealer may have under of the foreign options exchange must not constitute 290, 110 Stat. 3416 (1996) (adding Section 36 to the any other law, including the Securities Act. a public offering of the securities. Exchange Act). 160 See Part III.C., supra.

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transactions with the foreign broker- as defined above.165 As explained custodian for any resulting dealer in securities discussed in the above, the Commission believes that transactions.166 As a result, a U.S. research reports must be effected making Exemption (A)(1) available only registered broker-dealer would hold the pursuant to the provisions of paragraph to a foreign broker-dealer conducting a funds and securities of the qualified (a)(3).161 foreign business would provide U.S. investor and be subject to the Given the de minimis volume of investors increased access to foreign Commission’s rules relating to the transactions that likely would be securities and markets without creating safeguarding of customer assets, such as conducted,162 and the level of financial opportunities for regulatory arbitrage Exchange Act Rule 15c3–3. As with sophistication of the investors that vis-a`-vis U.S. securities markets because proposed Exemption (A)(1), proposed could receive the research reports under the foreign broker-dealer’s business in Exemption (A)(2) would be limited to this proposed exemption, as well as the U.S. securities would be limited. transactions with qualified investors, fact that the foreign broker-dealer would Given the requirement that foreign which we believe are sophisticated not otherwise be permitted to induce or broker-dealers conduct a foreign investors that can be expected to attempt to induce the purchase or sale business and the sophistication of understand the risk of dealing with of any security by those investors under qualified investors, as well as the other foreign broker-dealers that are not the proposed exemption, the investor protections in the proposed regulated by the Commission. Commission preliminarily believes that rule, the Commission preliminarily Given the requirement that a U.S. it would be necessary or appropriate in believes that it would be necessary or registered broker-dealer maintain the public interest, and would be appropriate in the public interest, and custody of qualified investors’ funds consistent with the protection of would be consistent with the protection and securities from any resulting investors, to exempt foreign broker- of investors to exempt foreign broker- transactions and the sophistication of dealers relying on paragraph (a)(2) of the dealers relying on Exemption (A)(1) of qualified investors, as well as the other the proposed rule from the registration investor protections in the proposed proposed rule from the registration requirements of Sections 15(a)(1) and rule, the Commission preliminarily requirements of Sections 15(a)(1) and 15B(a)(1) of the Exchange Act and the believes that it would be necessary or 15B(a)(1) of the Exchange Act and the reporting and other requirements of the appropriate in the public interest, and reporting and other requirements of the Exchange Act (other than Sections would be consistent with the protection Exchange Act (other than Sections 15(b)(4) and 15(b)(6)), and the rules and of investors, to exempt foreign broker- 15(b)(4) and 15(b)(6)), and the rules and regulations thereunder, that apply dealers relying on Exemption (A)(2) of regulations thereunder, that apply specifically to a broker-dealer that is not the proposed rule from the registration specifically to a broker-dealer that is not registered with the Commission solely requirements of Sections 15(a)(1) and registered with the Commission solely by virtue of its status as a broker or 15B(a)(1) of the Exchange Act and the by virtue of its status as a broker or dealer. reporting and other requirements of the dealer. The Commission solicits comment on Exchange Act (other than Sections The Commission solicits comment on whether it would be necessary or 15(b)(4) and 15(b)(6)), and the rules and whether it would be necessary or appropriate in the public interest, and regulations thereunder, that apply appropriate in the public interest, and consistent with the protection of specifically to a broker-dealer that is not consistent with the protection of investors, to exempt foreign broker- registered with the Commission solely investors, to exempt foreign broker- dealers relying on Exemption (A)(1) by virtue of its status as a broker or dealers relying on paragraph (a)(2) of the from such rules and requirements. If dealer. proposed rule from such rules and not, which rules should apply and why? The Commission solicits comment on requirements. If not, which provisions Alternatively, and as under current Rule whether it would be necessary or or rules should apply and why? 15a–6(a)(3), should the intermediating appropriate in the public interest, and 2. Proposed Rule 15a–6(a)(3) U.S. registered broker-dealer be required consistent with the protection of to comply with certain rules in lieu of investors, to exempt foreign broker- a. Exemption (A)(1) the foreign broker-dealer? If so, which dealers relying on Exemption (A)(2) As discussed above, foreign broker- rules and why? Should the requirements from such rules and requirements. If dealers relying on proposed Exemption differ based on whether the securities not, which rules should apply and why? (A)(1) under Rule 15a–6(a)(3) would be are U.S. securities or foreign securities Alternatively, as under current Rule required to conduct a foreign and where the transactions are 15a–6(a)(3), should the intermediating business.163 The proposed rule would executed? Would exempting foreign U.S. registered broker-dealer be required define ‘‘foreign business’’ to mean the broker-dealers from such rules and to comply with certain rules in lieu of business of a foreign broker-dealer with regulations place U.S. registered broker- the foreign broker-dealer? If so, which qualified investors and foreign resident dealers at a competitive disadvantage? rules and why? Should the requirements differ based on whether the securities clients 164 where at least 85% of the b. Exemption (A)(2) aggregate value of the securities are U.S. securities or foreign securities Under proposed Exemption (A)(2), and where the transactions are purchased or sold in transactions qualified investors that have an account conducted pursuant to both paragraphs executed? Would exempting foreign with a U.S. registered broker-dealer broker-dealers from such rules and (a)(3) and (a)(4)(vi) of the proposed rule would have access to foreign broker- by the foreign broker-dealer, calculated regulations place U.S. registered broker- dealers regardless of the types of dealers at a competitive disadvantage? on a rolling two-year basis, is derived securities that are involved. Foreign from transactions in foreign securities, broker-dealers relying on proposed 3. Proposed Rule 15a–6(a)(4) Exemption (A)(2) would be permitted to As explained above, paragraph (a)(4) 161 See 17 CFR 240.15a–6(a)(2)(iii). effect transactions in securities, of proposed Rule 15a–6 would provide 162 This estimate is based on information the staff obtained in discussions with industry provided, among other things, that a an additional exemption for foreign representatives. U.S. registered broker-dealer acts as broker-dealers that effect transactions 163 See Part III.D.1.a., supra. 164 See Part III.E., supra. 165 See proposed Rule 15a–6(b)(3). 166 See Part III.D.1.b., supra.

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for certain classes of investors, namely, constitute solicitation. Therefore, the staff no-action relief under Rule 15a–6 U.S. persons that act in a fiduciary Commission anticipates that most would be superseded if the Commission capacity for an account of a foreign transactions with qualified investors were to adopt this proposed rule and resident client.167 resulting from these activities or interpretive guidance. Are there Because of the nature and/or location communications would need to be additional issues stemming from the of these persons, the Commission completed pursuant to proposed Rules 1989 Adopting Release or related staff preliminarily believes that it would be 15a–6(a)(3). guidance that are not addressed in the necessary or appropriate in the public Hence, for the reasons given above in proposal and that should be addressed interest, and would be consistent with the discussion of paragraphs (a)(2) and by this rule or interpretive guidance? the protection of investors, to exempt (a)(3) of the proposed rule, the Commenters are invited to provide foreign broker-dealers relying on Commission preliminarily believes that empirical data to support their views. paragraph (a)(4)(vi) of the proposed rule it would be necessary or appropriate in Comments are of the greatest assistance from the registration requirements of the public interest, and would be to our rulemaking initiatives if Sections 15(a)(1) and 15B(a)(1) of the consistent with the protection of accompanied by supporting data and Exchange Act and the reporting and investors to exempt foreign broker- analysis of the issues addressed, and if other requirements of the Exchange Act dealers relying on paragraph (a)(5) of the accompanied by alternative suggestions (other than Sections 15(b)(4) and proposed rule from the registration to our proposals when appropriate. 15(b)(6)), and the rules and regulations requirements of Sections 15(a)(1) and Commenters are also welcome to offer thereunder, that apply specifically to a 15B(a)(1) of the Exchange Act and the their views on any other issues raised by broker-dealer that is not registered with reporting and other requirements of the the proposed amendments to Rule 15a– the Commission solely by virtue of its Exchange Act (other than Sections 6. status as a broker or dealer. 15(b)(4) and 15(b)(6)), and the rules and The Commission solicits comment on regulations thereunder, that apply VI. Administrative Law Matters whether it would be necessary or specifically to a broker-dealer that is not A. Paperwork Reduction Act Analysis appropriate in the public interest, and registered with the Commission solely be consistent with the protection of by virtue of its status as a broker or Certain provisions of current Rule investors, to exempt foreign broker- dealer. 15a–6 contain ‘‘collection of dealers relying on paragraph (a)(4)(vi) of The Commission solicits comment on information’’ requirements within the the proposed rule from such rules and whether it would be necessary or meaning of the Paperwork Reduction requirements. If not, which rules should appropriate in the public interest, and Act of 1995.170 The Commission has apply and why? be consistent with the protection of previously submitted these information investors, to exempt foreign broker- collections to the Office of Management 4. Proposed Rule 15a–6(a)(5) dealers relying on paragraph (a)(5) of the and Budget (‘‘OMB’’) for review in As explained above, paragraph (a)(5) proposed rule from such rules and accordance with 44 U.S.C. 3507(d) and of proposed Rule 15a–6 would allow a requirements. If not, which rules should 5 CFR 1320.11. The revised collections foreign broker-dealer that is a member of apply and why? of information in the proposed a foreign options exchange to effect amendments would impose certain transactions in options on foreign IV. Preliminary Findings burdens on U.S. registered broker- securities listed on that exchange for a Section 15(a)(2) of the Exchange Act dealers, foreign broker-dealers and U.S. qualified investor that has not otherwise provides that the Commission, by rule persons acting as fiduciaries as been solicited by the foreign broker- or order, as it deems consistent with the described in proposed Rule 15a– dealer.168 Under this exemption, a public interest and the protection of 6(a)(4)(vi). The Commission has foreign broker-dealer, a foreign options investors, may conditionally or submitted the revised collections of exchange and representatives of the unconditionally exempt from Section information, entitled ‘‘Rule 15a–6 under foreign options exchange could conduct 15(a)(1) any broker or dealer or class of the Securities Exchange Act of 1934— certain activities or communicate with a brokers or dealers. Section 36 of the Exemption of Certain Foreign Brokers or qualified investor in a manner that Exchange Act provides general Dealers’’ (OMB control No. 3235–0371), might otherwise be considered a form of exemptive authority to the Commission to the OMB for review. An agency may solicitation, as described above.169 to exempt any person or class of persons not conduct or sponsor, and a person is Transactions effected by or through the or transactions from any provision of not required to respond to, a collection foreign broker-dealer with or for the Exchange Act, to the extent that of information unless it displays a qualified investors that result from these such exemption is necessary or currently valid OMB control number.171 activities or communications would not appropriate in the public interest and is 1. Related Collections of Information require registration or, in some consistent with the protection of Under Proposed Paragraphs (a)(3)(i)(B) situations, compliance with proposed investors. As described in Part III.G., and (C) and (a)(3)(iii)(C) and (D) Rule 15a–6(a)(3). However, while these above, the Commission preliminarily activities would not necessarily believes that the proposed exemptions Current paragraph (a)(3)(ii)(B) of Rule constitute a form of solicitation, the would be necessary or appropriate in 15a–6 requires a U.S. registered broker- Commission anticipates that given the the public interest and would be dealer to determine that the foreign broad interpretation of solicitation, it consistent with the protection of associated persons of a foreign broker- would be difficult, if not impractical, to investors. dealer effecting transactions with U.S. institutional investors or major U.S. conduct repeated transactions with the V. General Request for Comment same qualified investor without a institutional investors are not subject to foreign broker-dealer engaging in some In addition to the specific requests for a statutory disqualification as defined in form of communication that would comment above, the Commission seeks Section 3(a)(39) of the Exchange Act, or comment generally on all aspects of the certain substantially equivalent foreign 167 See Part III.E., supra. proposed amendments to Rule 15a–6 168 See Part III.F., supra. under the Exchange Act. The 170 44 U.S.C. 3501 et seq. 169 See proposed Rules 15a–6(a)(5)(i)–(iii). Commission anticipates that all prior 171 See 44 U.S.C. 3512.

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disciplinary actions. As described sanctions imposed by foreign securities Similarly, all U.S. registered broker- above, because the foreign equivalents authorities, foreign exchanges, or dealers engaged by foreign broker- of statutory disqualification are now foreign associations.177 Thus, each dealers to assume the responsibilities of included in Section 3(a)(39), the requires a collection of information by a U.S. registered broker-dealer under the proposed rule would no longer the foreign broker-dealer. proposed rule, under either exemption, separately describe them.172 In addition, Proposed paragraph (a)(3)(iii)(C) would be required to comply with the proposed rule would place the would require that a U.S. registered proposed paragraphs (a)(3)(iii)(C) and burden on the foreign broker-dealer to broker-dealer obtain a representation (D). The Commission estimates that determine that its foreign associated from the foreign broker-dealer that the approximately 40 U.S. registered broker- persons effecting transactions with a foreign broker-dealer has made the dealers would be engaged by foreign qualified investor are not subject to a determinations that would be required broker-dealers to assume the statutory disqualification as defined in by proposed paragraph (a)(3)(i)(B) and responsibilities under Exemption (A)(1) Section 3(a)(39) of the Exchange Act.173 has in its files the information that and approximately 18 U.S. registered Current paragraph (a)(3)(iii)(C) of Rule would be required by proposed broker-dealers would be engaged by 15a–6 requires a U.S. registered broker- paragraph (a)(3)(i)(C). Proposed foreign broker-dealers to assume the dealer to obtain from the foreign broker- paragraph (a)(3)(iii)(C) therefore would responsibilities under Exemption (A)(2) dealer, with respect to each foreign require a collection of information by under the proposed rule, for a total of associated person, the types of both the foreign broker-dealer and the approximately 58 U.S. registered broker- information specified in Rule 17a– U.S. registered broker-dealer in that the dealers assuming the responsibilities 3(a)(12) under the Exchange Act,174 foreign broker-dealer must provide the under paragraph (a)(3)(iii) and therefore provided that the information required representation and the U.S. registered be subject to the collection of by paragraph (a)(12)(i)(D) of that rule broker-dealer must obtain that information requirements in proposed includes sanctions imposed by foreign representation. paragraphs (a)(3)(iii)(C) and (D). Proposed paragraph (a)(3)(iii)(D) securities authorities, exchanges, or d. Reporting and Recordkeeping Burden associations, including statutory would require a U.S. registered broker- disqualification.175 Proposed paragraph dealer to maintain a record of the The Commission estimates for the (a)(3)(i)(C) of Rule 15a–6 would require representations it obtains pursuant to purposes of proposed paragraph that the foreign broker-dealer have such proposed paragraph (a)(3)(iii)(C). This (a)(3)(i)(B) that each of the information regarding its foreign proposed paragraph would require a approximately 700 foreign broker-dealer associated persons in its files. collection of information by the U.S. respondents would employ Proposed paragraphs (a)(3)(iii)(C) and registered broker-dealer. approximately 5 foreign associated persons that would effect transactions (D) of Rule 15a–6 would require that a b. Proposed Use of Information registered broker-dealer obtain and with qualified investors and would The collections of information under spend approximately 10 hours per year record a representation from the foreign proposed paragraphs (a)(3)(i)(B) and (C) broker-dealer that the foreign broker- determining that these foreign and proposed paragraphs (a)(3)(iii)(C) associated persons are not subject to a dealer has determined that its foreign and (D) are intended to protect U.S. associated persons effecting transactions statutory disqualification as defined in investors from contacts with foreign 179 with a qualified investor are not subject Section 3(a)(39) of the Exchange Act. associated persons with a disciplinary The Commission also estimates for the to a statutory disqualification as defined history. in Section 3(a)(39) of the Exchange Act purposes of proposed paragraph and has the information required by c. Respondents (a)(3)(i)(C) that each of the proposed paragraph (a)(3)(i)(C) of Rule As discussed above, proposed under the proposed rule. The Commission estimates 15a–6 in its files. paragraphs (a)(3)(i)(B) and (C) and that each of these 40 U.S. registered broker-dealers a. Collection of Information proposed paragraphs (a)(3)(iii)(C) and would do so for an average of 10 foreign broker- (D) of Rule 15a–6 would require dealers, so that an estimated total of 400 foreign Proposed paragraphs (a)(3)(i)(B) and broker-dealers would utilize Exemption (A)(1) collections of information by both under the proposed rule. The Commission also (C) and (a)(3)(iii)(C) and (D) of Rule 15a– foreign broker-dealers and U.S. estimates based on information the staff obtained in 6 all would require ‘‘collections of registered broker-dealers. All foreign discussions with industry that approximately 18 information,’’ as that term is defined in broker-dealers that take advantage of the U.S. registered broker-dealers would be engaged 44 U.S.C. 3502(3). Proposed paragraph under Exemption (A)(2) by foreign broker-dealers exemption from registration under the relying on the exemption provided by paragraph (a)(3)(i)(B) would require a foreign proposed rule would be required to (a)(3)(iii)(A)(2) of the proposed rule. The broker-dealer to make a determination comply with proposed paragraphs Commission believes that Exemption (A)(2) under that its foreign associated persons (a)(3)(i)(B) and (C) and proposed the proposed rule would be utilized by effecting transactions with a qualified approximately 300 foreign broker-dealers (an paragraph (a)(3)(iii)(C). The Commission average of 16.67 per each of the 18 U.S. registered investor are not subject to a statutory estimates that approximately 700 broker-dealers acting under Exemption (A)(2)— disqualification as defined in Section foreign broker-dealers would take assuming an even distribution of foreign broker- 176 3(a)(39) of the Exchange Act. advantage of the exemption from dealers per U.S. registered broker-dealer operating Proposed paragraph (a)(3)(i)(C) would under the exemption, some U.S. registered broker- registration under the proposed rule and dealers would do so for 16 foreign broker-dealers require that the foreign broker-dealer therefore be subject to the collection of and some would do so for 17 foreign broker- have in its files information specified in information requirements in proposed dealers). Therefore, the Commission estimates that Rule 17a–3(a)(12) under the Exchange paragraphs (a)(3)(i)(B) and (C) and a total of 700 foreign broker-dealers would take Act, including information related to 178 advantage of one or both exemptions from proposed paragraph (a)(3)(iii)(C). registration under the proposed rule. 179 As noted above, the bases for these estimates 172 See Part III.D.3., supra; see also proposed Rule 177 See proposed Rule 15a–6(a)(i)(C). come from information the staff obtained in 15a–6(a)(3)(i)(B). 178 Based on information the staff obtained in discussions with industry representatives. Unless 173 See proposed Rule 15a–6(a)(3)(i)(B). discussions with industry representatives, the otherwise indicated, each of the Commission’s 174 See Part III.D.3., supra. Commission estimates that approximately 40 U.S. estimates used for the purposes of calculating the 175 See 17 CFR 240.15a–6(a)(3)(iii)(C). registered broker-dealers would serve as U.S. number of respondents or the burden imposed upon 176 See proposed Rule 15a–6(a)(i)(B). registered broker-dealers under Exemption (A)(1) those respondents is based on such discussions.

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approximately 700 foreign broker-dealer (a)(12)(i)(D) of Rule 17a–3 shall include dealers operating pursuant to the respondents would spend information relating to sanctions exemption in Rule 15a–6(a)(3)(iii)(A)(1) approximately 10 hours per year imposed by foreign securities are not subject to the same regulatory complying with the terms of that authorities, foreign exchanges or foreign requirements as U.S. registered broker- proposed paragraph. Thus, the associations, including without dealers. This notice is important Commission estimates for the purposes limitation those described in Section because the proposed rule would of proposed paragraph (a)(3)(iii)(C) that 3(a)(39) of the Exchange Act. Proposed eliminate the current chaperoning each of the approximately 700 foreign paragraph (a)(3)(iii)(D) would require requirements, as described below, and broker-dealer respondents would spend U.S. registered broker-dealers to allow a foreign broker-dealer to effect approximately 5 hours per year maintain a written record of the transactions on behalf of qualified providing representations to U.S. representations obtained from foreign investors and custody qualified investor registered broker-dealers that they have broker-dealers, as required by proposed funds and securities relating to any complied with proposed paragraphs paragraph (a)(3)(iii)(C). resulting transactions with more limited (a)(3)(i)(B) and (C). Therefore, the All information related to transactions participation in the transaction by a U.S. annual burden imposed by proposed with qualified investors, whether kept registered broker-dealer.180 paragraphs (a)(3)(i)(B) and (C) and by U.S. registered broker-dealers or c. Respondents proposed paragraph (a)(3)(iii)(C) on each foreign broker-dealers, would be subject of the 700 foreign broker-dealers would to review and inspection by the As discussed above, the Commission be approximately 25 hours for an Commission and its representatives as estimates that approximately 400 aggregate annual burden on all foreign required in connection with foreign broker-dealers would rely on broker-dealers of 17,650 hours (700 examinations, investigations and Exemption (A)(1) of the proposed rule. foreign broker-dealers × 25 hours per enforcement proceedings. Such All 400 foreign broker-dealers would be foreign broker-dealer). information is not required to be required to comply with proposed The Commission estimates for the disclosed to the public and will be kept paragraph (a)(3)(i)(D). The Commission purposes of proposed paragraphs confidential by the Commission. also estimates that approximately 300 (a)(3)(iii)(C) and (D) that each U.S. foreign broker-dealers would rely on g. Record Retention Period registered broker-dealer acting under Exemption (A)(2) of the proposed rule. Exemption (A)(1) would spend Proposed paragraphs (a)(3)(i)(B) and These 300 foreign broker-dealers would approximately 5 hours each year (C) and proposed paragraphs only be required to comply with obtaining and recording representations (a)(3)(iii)(C) and (D) would not include proposed paragraph (a)(3)(i)(D)(1). record retention periods. However, the required by proposed paragraphs d. Reporting and Recordkeeping Burden (a)(3)(iii)(C) and (D). Similarly, the U.S. registered broker-dealers would Commission estimates that each U.S. have to retain the representations for the Each of the 700 foreign broker-dealers registered broker-dealer acting under period specified under 17 CFR 240.17a– that would rely on either Exemption Exemption (A)(2) would spend 4(b)(7), which requires broker-dealers to (A)(1) or Exemption (A)(2) of the approximately 8 hours each year preserve all written agreements they proposed rule would have to make obtaining and recording representations enter into relating to their business for certain disclosures required by required by proposed paragraphs a period of not less than three years, the proposed paragraph (a)(3)(i)(D) to each (a)(3)(iii)(C) and (D). Thus, the aggregate first two years in an easily accessible qualified investor from which the annual burden imposed by proposed place. foreign broker-dealer induces or paragraphs (a)(3)(i)(C) and (D) on all attempts to induce the purchase or sale 2. Collection of Information Under of any security. The Commission U.S. registered broker-dealers would be Proposed Paragraph (a)(3)(i)(D) approximately 344 hours (40 U.S. believes that such disclosures would be registered broker-dealers acting under a. Collection of Information conveyed in the course of other Exemption (A)(1) multiplied by 5 hours Proposed paragraph (a)(3)(i)(D) would communications between the foreign per broker-dealer plus 18 U.S. registered require ‘‘collections of information,’’ as broker-dealer and the qualified investor, broker-dealers acting under Exemption that term is defined in 44 U.S.C. such as the foreign broker-dealer’s (A)(2) multiplied by 8 hours per broker- 3502(3), by foreign broker-dealers. standard account-opening dealer). Proposed paragraph (a)(3)(i)(D) would documentation. Thus, we expect that require that a foreign broker-dealer the only collection of information e. Collection of Information Is relying on either Exemption (A)(1) or burden that proposed paragraph Mandatory Exemption (A)(2) disclose to qualified (a)(3)(i)(D) would impose on a foreign These collections of information investors that the foreign broker dealer broker-dealer would be the hour burden would be mandatory for foreign broker- is regulated by a foreign securities incurred in developing and updating as dealers that choose to rely on the authority and not by the Commission. necessary the standard documentation it exemptions in paragraph (a)(3) of the Foreign broker-dealers relying on will provide to qualified investors. In proposed rule and U.S. registered Exemption (A)(1) would also have to addition, the Commission does not broker-dealers that intermediate disclose to qualified investors whether believe that there would be a significant transactions for foreign broker-dealers U.S. segregation requirements, U.S. difference in the burden placed foreign that choose to rely on the exemptions in bankruptcy protections and protections broker-dealers relying on either paragraph (a)(3) of the proposed rule. under the SIPA would apply to any Exemption (A)(1) or Exemption (A)(2) of funds and securities held by the foreign the proposed rule by proposed f. Confidentiality broker-dealer. paragraph (a)(3)(i)(D). The Commission Proposed paragraph (a)(3)(i)(C) would require foreign broker-dealers to have in b. Proposed Use of Information 180 Similarly, because of the limited participation their files the type of information The collections of information of the U.S. registered broker-dealer and the lack of chaperoning requirements, the proposed rule would specified in Rule 17a–3(a)(12) under the required by proposed paragraph require that the foreign broker-dealer be regulated Exchange Act, provided that the (a)(3)(i)(D) are designed to put U.S. for conducting securities activities in a foreign information required by paragraph investors on notice that foreign broker- country by a foreign securities authority.

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estimates that each of the 700 foreign pursuant to proposed paragraph approximately 16.67 foreign broker- broker-dealers that would rely on either (a)(3)(iii)(B). dealers. Also as discussed above, the Exemption (A)(1) or Exemption (A)(2) of Commission estimates that each such b. Proposed Use of Information the proposed rule would spend foreign broker-dealer would have an approximately 2 hours per year in The collections of information under average of 5 foreign associated persons drafting, reviewing or updating as proposed paragraphs (a)(3)(iii)(B) and engaged in business under the proposed necessary their standard documentation (D) are designed to assist the rule. Therefore, proposed paragraphs for compliance with proposed Commission in its regulatory function (a)(3)(iii)(B) and (D) would require a paragraph (a)(3)(i)(D). Therefore, the by ensuring that foreign broker-dealers U.S. registered broker-dealer acting aggregate annual collection of and their foreign associated persons under Exemption (A)(2) to obtain a total information burden imposed by effecting transactions with qualified of 83.35 consents to service of process proposed paragraph (a)(3)(i)(D) on investors have consented to service of from foreign associated persons and foreign broker-dealers would be process. 16.67 consents to service of process approximately 1,400 hours (700 foreign c. Respondents from foreign broker-dealers.183 broker-dealers multiplied by 2 hours per The Commission further estimates All U.S. registered broker-dealers foreign broker-dealer). that each affected U.S. registered broker- engaged by foreign broker-dealers to dealer, acting under either exemption, e. Collection of Information Is assume the responsibilities of a U.S. would spend an average of 0.5 hours in Mandatory registered broker-dealer under the obtaining and recording one consent proposed exemption would be subject to This collection of information would under proposed paragraphs (a)(3)(iii)(B) the collections of information. As be mandatory for foreign broker-dealers and (D). Each U.S. registered broker- discussed above, the Commission that rely on either Exemption (A)(1) or dealer acting under Exemption (A)(1) estimates that approximately 40 U.S. Exemption (A)(2) of the proposed rule. would therefore spend an average of 35 registered broker-dealers would act hours per year in its efforts at f. Confidentiality under Exemption (A)(1) for foreign compliance with proposed paragraphs broker-dealers relying on the exemption The disclosures required by proposed (a)(3)(iii)(B) and (D) (0.5 hours per provided by paragraph (a)(3)(iii)(A)(1) of paragraph (a)(3)(i)(D) would be consent per representation multiplied the proposed rule and that conveyed to a qualified investor in the by the sum of 50 consents from foreign approximately 18 U.S. registered broker- course of communications between the associated persons plus 10 consents to dealers would act under Exemption foreign broker-dealer and the qualified service of process from foreign broker- (A)(2). Therefore, the Commission investor, such as the foreign broker- dealers plus 10 representations). estimates that a total of approximately dealer’s standard account-opening Similarly, each U.S. registered broker- 58 U.S. registered broker-dealers would documentation, and therefore would not dealer acting under Exemption (A)(2) have to comply with the collection of be confidential. would spend an average of 50.01 hours information requirements in proposed per year in its efforts at compliance with g. Record Retention Period paragraphs (a)(3)(iii)(B) and (D).182 proposed paragraphs (a)(3)(iii)(B) and Proposed paragraph (a)(3)(i)(D) would d. Reporting and Recordkeeping Burden (D) (0.5 hours per consent per not include a record retention period. As discussed above, the Commission representation multiplied by the sum of 3. Related Collections of Information estimates that each of the 40 U.S. 83.35 consents from foreign associated Under Proposed Paragraphs (a)(3)(iii)(B) registered broker-dealers that would persons plus 16.67 consents to service and (D) serve under Exemption (A)(1) for of process from foreign broker-dealers). Therefore, the Commission estimates an a. Collection of Information affiliated foreign broker-dealers under the proposed rule would do so for an annual aggregate reporting and Proposed paragraphs (a)(3)(iii)(B) and average of 10 foreign broker-dealers. The recordkeeping burden of 2,300.18 hours (D) would require ‘‘collections of Commission also estimates that each for compliance with proposed information,’’ as that term is defined in such foreign broker-dealer would have paragraphs (a)(3)(iii)(B) and (D) (35 44 U.S.C. 3502(3), by U.S. registered an average of 5 foreign associated hours per 40 registered broker-dealers broker-dealers. Proposed paragraph persons engaged in business under the acting under Exemption (A)(1) for a total (a)(3)(iii)(B) would require that a U.S. proposed rule. Therefore, proposed of 1,400 hours, plus 50.01 hours per 18 registered broker-dealer obtain from a paragraphs (a)(3)(iii)(B) and (D) would registered broker-dealers acting under foreign broker-dealer and each of the require each U.S. registered broker- Exemption (A)(2) for a total of 900.18 foreign broker-dealer’s foreign dealer acting under Exemption (A)(1) to hours). associated persons written consents to obtain and record a total of 50 consents e. Collection of Information Is service of process for any civil action to service of process from foreign Mandatory brought by or proceeding before the associated persons and 10 consents to Commission or a self-regulatory service of process from foreign broker- This collection of information would organization (as defined in Section dealers. be mandatory for U.S. registered broker- 3(a)(26) of the Exchange Act).181 As discussed above, the Commission dealers that intermediate transactions Proposed paragraph (a)(3)(iii)(D) would estimates that each of the 18 U.S. for foreign broker-dealers that choose to require that the U.S. registered broker- registered broker-dealers that would dealer maintain a written record of the serve under Exemption (A)(2) for 183 Assuming a relatively even distribution of the consents to service of process obtained estimated 300 foreign broker-dealers across the 18 qualified investors would do so for U.S. registered broker-dealers acting under Exemption (A)(2), proposed paragraphs (a)(3)(iii)(B) 181 The consent would indicate that process may 182 The Commission understands that U.S. and (D) would require some U.S. registered broker- be served on the foreign broker-dealer or foreign registered broker-dealers acting under Exemption dealers acting under Exemption (A)(2) to obtain and associated person by service on the U.S. registered (A)(2) are likely to also act under Exemption (A)(1) record 83 consents to service of process from broker-dealer in the manner set forth on the U.S. under the proposed rule. The Commission requests foreign associated persons and some to obtain and registered broker-dealer’s current Form BD. See comment regarding how frequently this would record 84 consents to service of process from proposed Rule 15a–6(a)(3)(iii)(B). occur. foreign associated persons.

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rely on the exemption in paragraph 44 U.S.C. 3502(3) in that it would with proposed paragraph (a)(4)(vi)(B). (a)(3) of the proposed rule. require foreign broker-dealers to obtain Therefore, the Commission estimates and maintain a representation for each that the aggregate burden imposed by f. Confidentiality account managed by a U.S. fiduciary proposed paragraph (a)(4)(vi)(B) on all The proposed rule would require that that the account is managed in a of the approximately 349 U.S. U.S. registered broker-dealers maintain fiduciary capacity for a foreign resident fiduciaries would be approximately a written record of the information and client. This would require foreign 1,745 hours per year (5 hours multiplied consents and make such records broker-dealers to obtain and record each by 349 U.S. fiduciaries). available to the Commission upon representation. The proposed paragraph The Commission also estimates that request. All information related to would also require a collection of each foreign broker-dealer would spend transactions with qualified investors, information by the U.S. fiduciary, which approximately 5 hours per year whether kept by U.S. registered broker- would be required to provide the obtaining and recording the dealers or foreign broker-dealers, would representation to the foreign broker- representations required by proposed be subject to review and inspection by dealer. paragraph (a)(4)(vi)(B) from U.S. the Commission and its representatives fiduciaries. Therefore, the Commission b. Proposed Use of Information as required in connection with estimates that the aggregate burden examinations, investigations and The collection of information in imposed by proposed paragraph enforcement proceedings. Such proposed paragraph (a)(4)(vi)(B) would (a)(4)(vi)(B) on all the approximately information is not required to be assist foreign broker-dealers seeking to 700 foreign broker-dealers would be disclosed to the public and will be kept rely on the exemption under proposed approximately 3,500 hours per year (5 confidential by the Commission. paragraph (a)(4)(vi) in complying with hours multiplied by 700 foreign broker- the terms of that exemption and would dealers). g. Record Retention Period provide the Commission with access to Proposed paragraphs (a)(3)(iii)(B) and such information. e. Collection of Information Is (D) would not include separate record Mandatory c. Respondents retention periods. However, the U.S. These collections of information registered broker-dealers would have to As discussed above, the Commission would be mandatory for U.S. fiduciaries retain the consents for the period estimates that approximately 700 and foreign broker-dealers that effect specified under 17 CFR 240.17a–4(b)(7), foreign broker-dealers that would take transactions according to the proposed which requires broker-dealers to advantage of either exemption under exemption in proposed paragraph preserve all written agreements they proposed paragraphs (a)(3)(iii)(A)(1) and (a)(4)(vi) of the proposed rule. enter into relating to their business for (2).186 The Commission believes that a period of not less than three years, the these estimated 700 foreign broker- f. Confidentiality first two years in an easily accessible dealers represent the number of foreign The proposed rule would require that place. broker-dealers that engage in a foreign broker-dealer maintain the international broker-dealer business and representations it would obtain from a 4. Related Collections of Information would take advantage of the exemption U.S. fiduciary regarding the U.S. Under Proposed Paragraph (a)(4)(vi)(B) in proposed paragraph (a)(4)(vi). Even fiduciary’s accounts. All information Under the proposed rule, a foreign though not all of these 700 foreign related to transactions with qualified broker-dealer would be exempt from the broker-dealers may actually utilize the investors, whether kept by U.S. registration, reporting and other exemption in proposed paragraph registered broker-dealers or foreign requirements of the Exchange Act to the (a)(4)(vi), for the purposes of broker-dealers, would be subject to extent that it effects transactions in determining the number of foreign review and inspection by the securities with or for, or induces or broker-dealer respondents for the Commission and its representatives as attempts to induce the purchase or sale collection of information in proposed required in connection with of any security by any U.S. person, other paragraph (a)(4)(vi)(B), the Commission examinations, investigations and than a registered broker-dealer or bank estimates that all 700 foreign broker- enforcement proceedings. Such acting pursuant to an exception or dealers that engage in international information is not required to be exemption from the definition of business and that would otherwise take disclosed to the public and will be kept ‘‘broker’’ or ‘‘dealer’’ in Section advantage of either exemption under confidential by the Commission. 3(a)(4)(B), 3(a)(4)(E), or 3(a)(5)(C) of the proposed paragraph (a)(3)(iii)(A)(1) or g. Record Retention Period Exchange Act or the rules thereunder, (2) would also utilize the exemption in that acts in a fiduciary capacity for an proposed paragraph (a)(4)(vi) and be Proposed paragraph (a)(4)(vi)(B) account of a foreign resident client.184 respondents for the purposes of the would not include a record retention As a condition of this exemption, the collection of information in proposed period. foreign broker-dealer would be required, paragraph (a)(4)(vi)(B). 5. Request for Comment among other things, to obtain and The Commission estimates that there maintain a representation from the U.S. are 349 U.S. fiduciaries that would be The Commission requests comment person that the account is managed in respondents for the purposes of the on the proposed collections of a fiduciary capacity for a foreign collection of information in proposed information in order to: (1) Evaluate resident client.185 paragraph (a)(4)(vi)(B). whether the proposed collection of information is necessary for the proper a. Collection of Information d. Reporting and Recordkeeping Burden performance of the functions of the Proposed paragraph (a)(4)(vi)(B) The Commission estimates that each Commission, including whether the would require ‘‘collections of U.S. fiduciary would spend information would have practical information’’ as that term is defined in approximately 5 hours per year utility; (2) evaluate the accuracy of the providing representations in accordance Commission’s estimates of the burden of 184 See proposed paragraph (a)(4)(vi). the proposed collections of information; 185 See proposed paragraph (a)(4)(vi)(B). 186 See note 178, supra. (3) determine whether there are ways to

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enhance the quality, utility and clarity of Section 15(a)(1) or 15B(a)(1) of the dealer’s activities, as described above. of the information to be collected; (4) Exchange Act. Among the benefits to As a result, the proposed rule should evaluate whether there are ways to U.S. investors would be expanded facilitate communications between minimize the burden of the collection of investment and diversification foreign broker-dealers and qualified information on those who respond, opportunities and lower cost of investors to communicate, while including through the use of automated accessing such opportunities. Because utilizing more efficient methods collection techniques or other forms of the proposed rule would broaden the designed to protect qualified investors. information technology; and (5) evaluate category of U.S. investors that may Second, the proposed rule would whether the proposed rules would have interact with foreign broker-dealers, the provide U.S. registered broker-dealers any effects on any other collection of expanded investment and and foreign broker-dealers with greater information not previously identified in diversification opportunities would be flexibility in how they conduct business this section. available to a greater number of U.S. under paragraph (a)(3) of Rule 15a–6. Persons who desire to submit investors that the Commission believes For instance, U.S. registered broker- comments on the collection of possess the investment experience to dealers acting under Exemption (A)(1) information requirements should direct effect transactions with or through would be allowed to maintain copies of their comments to OMB, Attention: unregistered broker-dealers under the books and records in the form Desk Officer for the Securities and safeguards imposed by the proposed prescribed by the foreign securities Exchange Commission, Office of rule. This also would be a benefit to authority and with the foreign broker- Information and Regulatory Affairs, foreign broker-dealers, which would dealer. In general, the proposed rule Washington, DC 20503, and should also have access to an expanded potential would allow a foreign broker-dealer to send a copy of their comments to client base without being required to effect transactions on behalf of qualified Secretary, Securities and Exchange register with the Commission as broker- investors and custody qualified investor Commission, 100 F Street, NE., dealers. funds and securities relating to any Washington, DC 20549–1090, and refer In addition, the Commission resulting transactions with more limited to File No. S7–16–08. OMB is required understands that the current participation in the transaction by a U.S. to make a decision concerning the chaperoning requirements have been registered broker-dealer. Among other collections of information between 30 criticized as impractical and imposing things, this would have the benefit of and 60 days after publication of this unnecessary operational and eliminating the need for the U.S. document in the Federal Register; compliance burdens, particularly for registered broker-dealer to ‘‘double therefore, comments to OMB are best communications with broker-dealers in book’’ transactions under current Rule assured of having full effect if OMB time zones outside those of the United 15a–6(a)(3). It would also allow the receives them within 30 days of this States. In this regard, the Commission foreign broker-dealer more flexibility in publication. Requests for the materials believes that the investor protections how it communicates with qualified submitted to OMB by the Commission intended to be provided by the presence investors, as described above. with regard to these collections of of associated persons of U.S. registered Third, while proposed Rule 15a–6 information should be in writing, refer broker-dealers during in-person or would impose certain costs on U.S. to File No. S7–16–08, and be submitted telephonic communications between registered broker-dealers acting under to the Securities and Exchange foreign associated persons of foreign either exemption, as discussed below, Commission, Records Management broker-dealers and U.S. investors, as these costs would be markedly less than Office, 100 F Street, NE, Washington, under the current rule, could be under current Rule 15a–6. Most DC 20549–1110. achieved by less operationally importantly, the proposed rule would challenging methods. Specifically, significantly reduce the cost for a U.S. B. Consideration of Benefits and Costs foreign associated persons that are registered broker-dealer to intermediate 1. Expected Benefits subject to statutory disqualification transactions under paragraph (a)(3) of The proposed rule would have several specified in Section 3(a)(39) of the Rule 15a–6. Under Exemption (A)(1), the U.S. important benefits. First, the proposed Exchange Act would be precluded from registered broker-dealer would not be rule would allow a broader category of contacting qualified investors and required to effect transactions—and U.S. investors 187 greater access to foreign broker dealers would be perform all of the functions associated foreign broker-dealers and foreign required to make disclosures to those with effecting transactions, including, markets by expanding and streamlining investors, placing them on notice that for example, compliance with recording the conditions under which a foreign the foreign broker-dealer is regulated by and recordkeeping rules, issuing broker-dealer could operate without a foreign securities authority and not by confirmations and maintaining custody triggering the registration requirements the Commission and, in the case of Exemption (A)(1), informing them that of customer funds and securities—on behalf of the qualified investor. Instead, 187 As noted above, the proposed rule would U.S. segregation requirements, U.S. expand the category of U.S. investors with which bankruptcy protections and protections under the proposed rule, the U.S. a foreign broker-dealer may interact under Rule under the SIPA would apply to any registered broker-dealer would only be 15a–6(a)(2) from major U.S. institutional investors funds and securities held by the foreign required to collect and make available to to qualified investors and generally expand the 188 the Commission certain limited category of U.S. investors with which a foreign broker-dealer. Accordingly, the broker-dealer may interact under Rule 15a–6(a)(3) proposed rule would allow a foreign information. Specifically, the proposed from major U.S. institutional investors and U.S. broker-dealer to have unchaperoned rule would require a U.S. registered institutional investors to qualified investors. This visits within the United States and broker-dealer acting under Exemption would allow foreign broker-dealers, for the first time, to interact with a corporation, company, or communications, both oral and (A)(1) to maintain certain books and partnership that owns and invests on a electronic, with qualified investors, as records, including confirmations and discretionary basis $25 million or more in long as a U.S. registered broker-dealer statements issued by the foreign broker- investments under paragraph (a)(3). In addition, assumes certain limited responsibilities dealer to the qualified investor, but under the proposed rule, natural persons who own or invest on a discretionary basis not less than in connection with the foreign broker- would permit the U.S. registered broker- $25,000,000 in investments would be included. See dealer to maintain those books and Part III.A., supra. 188 See proposed Rule 15a–6(a)(3)(i)(B) and (D). records in the form, manner and for the

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periods prescribed by the foreign meetings and have oral and electronic of U.S. registered broker-dealers. For securities authority regulating the communications with qualified example, shifting the responsibility for foreign broker-dealer and with the investors without the intermediation of clearing and settling from the U.S. foreign broker-dealer.189 The an U.S. registered broker-dealer. This registered broker-dealer to foreign Commission believes that all U.S. would result in significant cost savings. broker-dealers would reduce the registered broker-dealers acting under Second, the proposed rule would compensation received by U.S. Exemption (A)(1) in Rule 15a–6(a)(3) provide a foreign broker-dealer with the registered broker-dealers for these and relationships would take advantage of alternative of having a U.S. registered other services. The elimination of the this option, thereby significantly broker-dealer act under Exemption chaperoning requirements of the current lowering costs associated with (A)(1) or under Exemption (A)(2). These rule may also reduce income to U.S. collecting and maintaining books and alternatives would allow the foreign registered broker-dealers that perform records, including collection of broker-dealer and the U.S. registered such services for foreign broker-dealers. information burdens under the broker-dealer, as well as the qualified In addition, as described above, Paperwork Reduction Act and investors, to determine the most cost certain provisions of the proposed rule associated costs. There would also be effective method for complying with the would impose ‘‘collection of significant cost savings for U.S. rule. information’’ requirements within the meaning of the Paperwork Reduction registered broker-dealers acting under 2. Expected Costs Exemption (A)(1) because they would Act on foreign broker-dealers, U.S. not have to clear and settle transactions, Of course, reducing the cost of registered broker-dealers and U.S. safeguard customer funds and complying with paragraph (a)(3) of Rule fiduciaries.192 For each of the securities, or issue confirmations. 15a–6 may encourage more U.S. collections of information that would be In addition, regardless of whether the registered broker-dealers and foreign imposed by the proposed rule, the U.S. registered broker-dealer acts under broker-dealers to rely on the rule, which relevant respondent or respondents Exemption (A)(1) or Exemption (A)(2), would increase the overall costs would incur an hour burden in the proposed rule would eliminate the associated with complying with the complying with the collection of current rule’s requirement that the U.S. requirements of Rule 15a–6. As noted information requirements. For example, registered broker-dealer make certain above, the increased flexibility of the as described above, proposed paragraph determinations regarding the foreign proposed rule would provide U.S. (a)(3)(i)(B) would require that a foreign broker-dealer and its associated persons. investors with increased access to broker-dealer make a determination that Under the proposed rule, the U.S. foreign broker-dealers and foreign its foreign associated persons effecting registered broker-dealer would only be markets, which would presumably lead transactions with a qualified investor required to obtain representations from to increased transactional activity under are not subject to a statutory the foreign broker-dealer regarding that Rule 15a–6(a)(3). As a result, foreign disqualification. As explained, we information.190 This would be a broker-dealers may experience some estimate each foreign broker-dealer that significant cost savings with respect to incremental cost increase. In addition, takes advantage of the exemption under the current rule because the U.S. because some of the responsibilities the proposed rule would spend registered broker-dealer would not have under paragraph (a)(3) of the proposed approximately 10 hours per year in to make the determination itself for each rule would be shifted to the foreign making the determination required by foreign broker-dealer and its associated broker-dealer, foreign broker-dealers proposed paragraph (a)(3)(i)(B). While persons as under the current rule. may incur some greater costs, some of not a burden for the purposes of the Finally, the proposed rule would which are described below. We believe PRA, the foreign broker-dealer would reduce a foreign broker-dealer’s costs of these increased costs would be also incur certain costs related to the 10 meeting the conditions of the exemption insignificant. For example, because hours per year spent making the in two principal ways. First, the foreign broker-dealers, as members of determination required by proposed proposed amendments would make it foreign exchanges, typically are required paragraph (a)(3)(i)(B). Specifically, the less burdensome for foreign broker- to clear and settle transactions in foreign determination likely would be made by dealers to communicate directly with securities, regardless of the an employee of the foreign broker-dealer qualified investors. Currently, Rule 15a– requirements of Rule 15a–6(a)(3), to whom the broker-dealer must pay a 6 requires an associated person of a U.S. shifting the responsibility for clearing salary or hourly wage. Therefore, the registered broker-dealer to chaperone and settling from the U.S. registered salaries and wages foreign broker- certain in-person visits and oral broker-dealer to foreign broker-dealers dealers, U.S. registered broker-dealers communications between foreign would not increase their cost of and U.S. fiduciaries must pay to the associated persons and U.S. complying with Rule 15a–6. Similarly, employees who would perform the work institutional investors, with certain other foreign governments or securities required by the collections of exceptions, and chaperone in-person regulators may have laws or rules information imposed by the proposed visits between foreign associated comparable to the provisions in Section rule would be additional costs of persons and major U.S. institutional 3(a)(39) of the Exchange Act related to meeting the exemption in the proposed investors under certain conditions.191 statutory disqualification. Requiring rule. These costs are described in the The proposed rule would allow a foreign broker-dealers to review the following paragraphs. foreign broker-dealer to hold in-person fitness of their associated persons under the provisions of Section 3(a)(39), in a. Collection of Information Costs to Foreign Broker-Dealers 189 See proposed Rule 15a–6(a)(3)(iii)(A)(1) and addition to meeting the requirements of (2). equivalent foreign laws or rules, would As described above in the Paperwork 190 See proposed Rule 15a–6(a)(3)(iii)(C). impose an incremental cost on those Reduction Act Analysis, proposed 191 See 17 CFR 240.15a–6(a)(3)(ii)(A)(1) and foreign broker-dealers. paragraphs (a)(3)(i)(B), (a)(3)(i)(C), (iii)(B). This would be a cost savings for U.S. Shifting some of the responsibilities (a)(3)(i)(D), (a)(3)(iii)(C) and (a)(4)(vi)(B) registered broker-dealers as well, as they would no longer need to chaperone the in-person visits and under paragraph (a)(3) of the proposed each would impose collection of oral communications of foreign associated persons rule to foreign broker-dealers would with U.S. investors. have an effect on the business activities 192 See Part VI.A., supra.

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information requirements on foreign compliance attorneys at an hourly rate $270.00 per hour = $1,350.00 per broker-dealers. Other than proposed of (U.S.) $270.00. Based on the estimates year).197 paragraph (a)(3)(i)(C), these collections of the hourly burden imposed by 3. Comment Solicited of information would require the foreign proposed paragraphs (a)(3)(iii)(B), (C) broker-dealer to make certain legal and (D) on U.S. registered broker- We solicit comment on the costs and determinations, provide or obtain legal dealers, the Commission further benefits to U.S. investors, foreign representations or draft disclosures. estimates that U.S. registered broker- broker-dealers, U.S. registered broker- Therefore, the Commission believes that dealers intermediating transactions for dealers and others who may be affected the type of work required by each foreign broker-dealers relying on by the proposed amendments to Rule requirement would be performed by a Exemption (A)(1) would incur a total 15a–6. We request views on the costs and benefits described above as well as compliance attorney at each foreign cost of (U.S.) $10,800.00 per year on any other costs and benefits that broker-dealer. Proposed paragraph complying with the collection of could result from adoption of the (a)(3)(i)(C), however, is a record-keeping information requirements that would be proposed rule amendments. The requirement and the Commission imposed by those paragraphs.195 The Commission renews its request for believes that this type of work would be Commission estimates that U.S. performed by a compliance clerk at each comment on the Commission’s registered broker-dealers intermediating estimates of the hour burdens that foreign broker-dealer. transactions for foreign broker-dealers The Commission estimates that would be imposed by the collections of relying on Exemption (A)(2) would information in the proposed rule and foreign broker-dealers pay compliance incur a total cost of (U.S.) $13,527.00 attorneys at an hourly rate of (U.S.) also solicits comment on its calculation per year complying with the collection $270.00 and compliance clerks at an of the monetary cost of those burdens. of information requirements that would hourly rate of (U.S.) $62.00.193 Based on In particular, the Commission requests be imposed by those paragraphs.196 the estimates of the hourly burden comment on whether the work required imposed by proposed paragraphs c. Collection of Information Costs to by the collections of information would (a)(3)(i)(B), (a)(3)(i)(B), (a)(3)(i)(D), U.S. Fiduciaries be performed by the individuals (a)(3)(iii)(C) and (a)(4)(vi)(B) on foreign identified. For the cost of work that broker-dealers, the Commission further As described above in the Paperwork would be performed by employees of estimates that foreign broker-dealers Reduction Act Analysis, proposed foreign broker-dealers, is it reasonable to would incur a total cost of (U.S.) paragraph (a)(4)(vi)(B) would impose assume that such employees generally $6,560.00 per year complying with the collection of information requirements earn salaries and wages similar to collection of information requirements on U.S. fiduciaries in the form of a legal comparable employees of U.S. registered that would be imposed by those representation provided to foreign broker-dealers, after conversion to U.S. paragraphs.194 broker-dealers that, for each account dollars? Commenters are requested to managed by a U.S. fiduciary, the provide empirical data and other factual b. Collection of Information Costs to account is managed in a fiduciary support for their views, if possible. U.S. Registered Broker-Dealers capacity for a foreign resident client. C. Consideration of Burden on As described above in the Paperwork The Commission believes that these Competition, and on Promotion of Reduction Act Analysis, proposed legal representations would be made by Efficiency, Competition and Capital paragraphs (a)(3)(iii)(B), (C) and (D) each a compliance attorney at each U.S. Formation would impose collection of information fiduciary. requirements on U.S. registered broker- Section 3(f) of the Exchange Act The Commission estimates that U.S. dealers. These collections of requires the Commission, whenever it fiduciaries pay compliance attorneys at information would require the U.S. engages in rulemaking and is required to registered broker-dealer to obtain and an hourly rate of (U.S.) $270.00. Based consider or determine whether an action record certain legal representations on the estimates of the hourly burden is necessary or appropriate in the public made by foreign broker-dealers. The imposed by proposed paragraphs interest, to consider whether the action Commission believes that this type of (a)(4)(vi)(B) on U.S. fiduciaries, the would promote efficiency, competition work would be performed by a Commission further estimates that U.S. and capital formation.198 Exchange Act compliance attorney at each U.S. fiduciaries would incur a total cost of Section 23(a)(2) requires the registered broker-dealer. The (U.S.) $1,350.00 per year complying Commission, in making rules under the Commission estimates that U.S. with the collection of information Exchange Act, to consider the impact registered broker-dealers pay requirements that would be imposed by that any such rule would have on that paragraph (5 hours per year at competition. This section also prohibits 193 See Securities Industry and Financial Markets the Commission from adopting any rule Association’s ‘‘Management & Professional Earnings 195 5 hours per year at $270.00 per hour and 35 that would impose a burden on in the Securities Industry—2007’’ (available at: hours per year at $270.00 per hour. See id. competition not necessary or http://www.sifma.org/research/surveys/ 196 8 hours per year at $270.00 per hour and 50.1 professional-earning.shtml). The SIFMA study appropriate in furtherance of the hours per year at $270.00 per hour. See id. As 199 reflects a survey of U.S. earnings. We estimate that discussed above in the PRA analysis, U.S. registered purposes of the Exchange Act. the earnings of comparable employees at foreign broker-dealers intermediating transactions for The Commission believes the broker-dealers are similar, but solicit comment on foreign broker-dealers relying on Exemption (A)(1) proposed amendments would not whether foreign salaries vary and, if so, how. would spend different amounts of time complying impose any burden on competition not 194 10 hours per year at $270.00 per hour with the collection of information requirements of complying with proposed paragraph (a)(3)(i)(B), 10 proposed paragraphs (a)(3)(iii)(B), (C) and (D) than necessary or appropriate in furtherance hours per year at $62.00 per hour complying with U.S. registered broker-dealers intermediating of the Exchange Act. By streamlining proposed paragraph (a)(3)(i)(C), 2 hours per year at transactions for foreign broker-dealers relying on the conditions under which a foreign $270.00 per hour complying with proposed Exemption (A)(2). See Part VI.A., supra. Therefore, broker-dealer may operate without paragraph (a)(3)(i)(D), 5 hours per year at $270.00 the monetary costs incurred in complying with per hour complying with proposed paragraph these paragraphs would also be different for (a)(3)(iii)(C) and 5 hours per year at $270.00 per intermediating U.S. registered broker-dealers, 197 See id. hour complying with proposed paragraph depending on the exemption relied upon by the 198 15 U.S.C. 78c(f). (a)(4)(vi)(B). See Part VI.A., supra. foreign broker-dealer. See id. 199 15 U.S.C. 78w(a)(2).

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triggering the registration requirements to choose to invest in foreign markets other factual support for their views if of Section 15(a)(1) or 15B(a)(1) of the under the proposed rule. possible. Exchange Act and the reporting and The Commission also believes the D. Consideration of the Impact on the other requirements of the Exchange Act proposed amendments would promote Economy (other than Sections 15(b)(4) and efficiency. As U.S. investors 15(b)(6)), the proposed amendments to increasingly invest in securities whose For purposes of the Small Business Rule 15a–6 should promote competition primary market is outside the United Regulatory Enforcement Fairness Act of by enhancing the ability of foreign States, the ability of these investors to 1996, or ‘‘SBREFA,’’ 207 the Commission broker-dealers to compete with U.S. obtain ready access to foreign markets must advise the Office of Management registered broker-dealers in the U.S. has grown in importance.205 In some and Budget as to whether the proposed market, particularly with respect to cases, foreign broker-dealers may offer amendments to Rule 15a–6 constitute a transactions in foreign securities.200 such access to these U.S. investors by ‘‘major’’ rule. Under SBREFA, a rule is We note, in particular, that making more efficient means than a U.S. considered ‘‘major’’ where, if adopted, it Exemption (A)(1) available only to a registered broker-dealer could. For would result or is likely to result in: An foreign broker-dealer conducting a example, a foreign broker-dealer may annual effect on the economy of $100 predominantly foreign business would more efficiently provide a U.S. investor million or more (either in the form of an provide U.S. investors increased access with the means to execute trades increase or a decrease); a major increase to foreign expertise and foreign quickly in a wide range of foreign in costs or prices for consumers or securities and markets without creating securities markets. A foreign broker- individual industries; or a significant opportunities for regulatory arbitrage dealer may also offer expertise and adverse effect on competition, vis-a`-vis U.S. securities markets.201 As access to research reports concerning investment, or innovation. discussed above, this is particularly foreign companies, industries and If a rule is ‘‘major,’’ its effectiveness important because, under Exemption market environments.206 Allowing would generally be delayed for 60 days (A)(1), for the first time, a foreign foreign broker-dealers to provide these pending Congressional review. We broker-dealer would be able to provide services to certain classes of U.S. request comment on the potential full-service brokerage services investors without registering, but impact of the proposed amendments on (including maintaining custody of funds subject to the conditions of proposed the economy on an annual basis. and securities from resulting Rule 15a–6, would further stimulate the Commenters are requested to provide transactions) to U.S. investors.202 We competition and efficiencies promoted empirical data and other factual support are proposing an 85 percent threshold by the current rule. for their views to the extent possible. for determining whether a foreign The proposed amendments to Rule E. Regulatory Flexibility Certification broker-dealer conducts a predominantly 15a–6 are intended to promote foreign business because a lower efficiency by reducing the costs of Section 3(a) of the Regulatory threshold may allow a foreign broker- compliance for both U.S. registered Flexibility Act (‘‘RFA’’) requires the dealer to conduct significant business in broker-dealers and foreign broker- Commission to undertake an initial U.S. securities with U.S. investors dealers conducting transactions regulatory flexibility analysis of the without being regulated by the pursuant to paragraph (a)(3). As impact of a proposed rule on small Commission. While we believe that the discussed above, the proposed rule entities, unless the Commission certifies 85% threshold would be effective in should decrease the burden on U.S. that the rule, if adopted, would not have eliminating the opportunities for registered broker-dealers acting under a significant economic impact on a regulatory arbitrage, allowing foreign both Exemption (A)(1) and Exemption substantial number of small entities. broker-dealers to conduct any business (A)(2) for foreign broker-dealers. While The application of the RFA to proposed in U.S. securities could affect the some of this burden would be shifted to Rule 15a–6 is limited, because its competitive positions of U.S. registered foreign broker-dealers, overall the exemptive provisions would be broker-dealers and foreign broker- burden of complying with the proposed restricted to foreign broker-dealers, dealers.203 rule would be lessened. As a result, we which need not be considered under the Exemption (A)(2), which would not believe that the proposed rule would RFA. In addition, to the extent that the require a foreign broker-dealer to enable U.S. investors to more efficiently proposed rule, if adopted, would conduct a predominantly foreign gain access to foreign broker-dealers. impose any costs on U.S. registered business, would allow foreign broker- Although the proposed amendments broker-dealer affiliates of such foreign dealers to compete more directly with may facilitate capital formation and broker-dealers or on other domestic U.S. registered broker-dealers without capital raising by foreign broker-dealers broker-dealers, those costs are not limitation on the type of security, U.S. by increasing the available pool of U.S. significant and would not impact a or foreign. In order to preserve measures investors foreign broker-dealers can substantial number of small domestic of investor protection, however, the contact directly, the Commission does broker-dealers. Staff discussions with proposed rule would require a U.S. not believe that they would have any industry have indicated that small registered broker-dealer to keep books significant effect on capital formation. domestic broker-dealers generally are and records and act as custodian of We note that U.S. investors can not engaged in Rule 15a–6(a)(3) funds and securities.204 currently obtain access to foreign arrangements with foreign broker- We solicit comment on whether the securities through U.S. broker-dealers. dealers, and have not indicated that this proposed amendments would promote We solicit comment on whether the would change in the event the competition, including whether proposed amendments would impose a conditions of the rule were amended. investors would be more or less likely burden on competition or whether they Accordingly, the Commission certifies would promote efficiency, competition that the proposed rule, if adopted, 200 See generally, Part III.D.1., supra. and capital formation. Commenters are would not have a significant economic 201 See Part III.D.1.a., supra. requested to provide empirical data and 202 See id. 207 Pub. L. 104–121, Title II, 110 Stat. 857 (1996) 203 See Part III.D.1.a.ii., supra. 205 See Part III.A., supra. (codified in various sections of 5 U.S.C., 15 U.S.C. 204 See Part III.D.1.b.i., supra. 206 See generally, Part III.D.1., supra. and as a note to 5 U.S.C. 601).

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impact on a substantial number of small for those qualified investors, provided or dealer effecting transactions with the entities. that the following conditions are qualified investor is not subject to a satisfied: statutory disqualification specified in VII. Statutory Basis (i) The research reports do not section 3(a)(39) of the Act; Pursuant to the Exchange Act and recommend the use of the foreign broker (C) Has in its files, and will make particularly sections 3, 10, 15, 17, 23, 30 or dealer to effect trades in any security; available upon request by a registered and 36 thereof, 15 U.S.C. 78c, 78j, 78o, (ii) The foreign broker or dealer does broker or dealer satisfying the 78q, 78w, 78dd and 78mm, the not initiate contact with those qualified requirements described in paragraph Commission proposes to amend investors to follow up on the research (a)(3)(iii) of this section or the § 240.15a–6 of Title 17 of the Code of reports, and does not otherwise induce Commission, the types of information Federal Regulations in the manner set or attempt to induce the purchase or specified in § 240.17a–3(a)(12), forth below. sale of any security by those qualified provided that the information required investors; VIII. Text of Proposed Amendments by paragraph (a)(12)(i)(D) of § 240.17a– (iii) If the foreign broker or dealer has 3 shall include sanctions imposed by Lists of Subjects in 17 CFR Part 240 a relationship with a registered broker foreign securities authorities, foreign or dealer that satisfies the requirements exchanges, or foreign associations, Broker-dealers, Reporting and of paragraph (a)(3) of this section, any recordkeeping requirements, Securities. including without limitation those transactions with the foreign broker or described in section 3(a)(39) of the Act; In accordance with the foregoing, dealer in securities discussed in the Title 17, Chapter II of the Code of and research reports are effected pursuant to (D) Discloses to the qualified investor: Federal Regulations is proposed to be the provisions of paragraph (a)(3) of this (1) That the foreign broker or dealer amended as follows: section; and is regulated by a foreign securities (iv) The foreign broker or dealer does PART 240—GENERAL RULES AND authority and not by the Commission; not provide research to U.S. persons REGULATIONS, SECURITIES and pursuant to any express or implied EXCHANGE ACT OF 1934 understanding that those U.S. persons (2) Solely when the foreign broker or will direct commission income to the dealer is relying on paragraph 1. The authority citation for part 240 (a)(3)(iii)(A)(1) of this section, that U.S. continues to read in part as follows: foreign broker or dealer. (3) Solicited trades. The foreign segregation requirements, U.S. Authority: 15 U.S.C. 77c, 77d, 77g, 77j, broker or dealer induces or attempts to bankruptcy protections and protections 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, under the Securities Investor Protection 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, induce the purchase or sale of any security by a qualified investor, Act will not apply to any funds or 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, securities held by the foreign broker or 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– provided that the following conditions 20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, are satisfied: dealer; 80b–11 and 7201 et seq.; and 18 U.S.C. 1350, (i) The foreign broker or dealer: (ii) The foreign associated person of unless otherwise noted. (A) Provides the Commission (upon the foreign broker or dealer effecting * * * * * request or pursuant to agreements transactions with the qualified investor 2. Revise § 240.15a–6 to read as reached between any foreign securities conducts all securities activities from follows: authority and the Commission or the outside the United States, except that U.S. government) with any information the foreign associated person may § 240.15a–6 Exemption of certain foreign or documents within the possession, conduct visits to qualified investors brokers or dealers. custody, or control of the foreign broker within the United States, provided that (a) A foreign broker or dealer shall be or dealer, any testimony of foreign transactions in any securities discussed exempt from the registration associated persons, and any assistance during visits by the foreign associated requirements of sections 15(a)(1) and in taking the evidence of other persons, person with qualified investors are 15B(a)(1) of the Act and the reporting wherever located, that the Commission effected pursuant to paragraph (a)(3) of and other requirements of the Act (other requests and that relates to transactions this section; and than sections 15(b)(4) and 15(b)(6)), and under paragraph (a)(3) of this section, (iii) A registered broker or dealer: the rules and regulations thereunder, except that if, after the foreign broker or (A) Is responsible for either: that apply specifically to a broker or dealer has exercised its best efforts to (1) Maintaining copies of all books dealer that is not registered with the provide the information, documents, and records, including confirmations Commission solely by virtue of its status testimony, or assistance, including and statements issued by the foreign as a broker or dealer, with respect to a requesting the appropriate governmental broker or dealer to the qualified particular transaction or solicitation, to body and, if legally necessary, its investor, relating to any resulting the extent that the foreign broker or customers (with respect to customer transactions, except that such books and dealer operates in compliance with information) to permit the foreign records may be maintained: paragraph (a)(1), (a)(2), (a)(3), (a)(4) or broker or dealer to provide the (i) In the form, manner and for the (a)(5) of this section with respect to such information, documents, testimony, or periods prescribed by the foreign transaction or solicitation. assistance to the Commission, the securities authority regulating the (1) Unsolicited trades. The foreign foreign broker or dealer is prohibited foreign broker or dealer; and broker or dealer effects transactions in from providing this information, (ii) With the foreign broker or dealer, securities with or for persons that have documents, testimony, or assistance by provided that the registered broker or not been solicited by the foreign broker applicable foreign law or regulations, dealer makes a reasonable or dealer. then this paragraph (a)(3)(i)(A) shall not determination that copies of any or all (2) Research reports. The foreign apply and the foreign broker or dealer of such books and records can be broker or dealer furnishes research will be subject to paragraph (c) of this furnished promptly to the Commission, reports to qualified investors, and section; and promptly provides to the effects transactions in the securities (B) Determines that the foreign Commission any such books and discussed in the research reports with or associated person of the foreign broker records, upon request; or

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(2) (i) Maintaining books and records, transactions occur outside the United registered broker or dealer affiliates of including copies of all confirmations States, and that the foreign broker or such participants; issued by the foreign broker or dealer to dealer does not direct its selling efforts (ii) The foreign broker or dealer may: the qualified investor, relating to any toward identifiable groups of U.S. (A) Make available to qualified resulting transactions; and citizens resident abroad; or investors the foreign options exchange’s (ii) Receiving, delivering and (vi) Any U.S. person, other than a OTC options processing service; and safeguarding funds and securities in registered broker or dealer or a bank (B) Provide qualified investors, in connection with the transactions on acting pursuant to an exception or response to an unsolicited inquiry behalf of the qualified investor in exemption from the definition of concerning options on foreign securities compliance with § 240.15c3–3; ‘‘broker’’ or ‘‘dealer’’ in section traded on the foreign options exchange, (B) Obtains from the foreign broker or 3(a)(4)(B), 3(a)(4)(E), or 3(a)(5)(C) of the with a disclosure document that dealer and each foreign associated Act or the rules thereunder, that acts in provides an overview of the foreign person written consent to service of a fiduciary capacity for an account of a options exchange and the options on process for any civil action brought by foreign resident client, provided the foreign securities traded on that or proceeding before the Commission or foreign broker or dealer: exchange, including the differences a self-regulatory organization (as (A) Only effects transactions in from standardized options in the U.S. defined in section 3(a)(26) of the Act), securities with or for, or induces or domestic options market and special providing that process may be served on attempts to induce the purchase or sale factors relevant to transactions by U.S. them by service on the registered broker of securities by, the U.S. person in the persons in options on that exchange; or dealer in the manner set forth on the U.S. person’s capacity as a fiduciary to and registered broker’s or dealer’s current an account of a foreign resident client; (iii) The foreign exchange may make Form BD (17 CFR 249.501); and available to qualified investors through (C) Obtains from the foreign broker or (B) Obtains and maintains a the foreign broker or dealer the foreign dealer a representation that the foreign representation from the U.S. person that options exchange’s OTC options broker or dealer has complied with the the account is managed in a fiduciary processing service. requirements of paragraphs (a)(3)(i)(B) capacity for a foreign resident client. (b) Definitions. When used in this and (C) of this section; and (5) Familiarization with foreign section: (D) Maintains records of the written options exchanges. The foreign broker (1) The term foreign associated person consents required by paragraph or dealer effects transactions in options shall mean any natural person (a)(3)(iii)(B) and the representations on foreign securities listed on a foreign domiciled outside the United States required by paragraph (a)(3)(iii)(C) of options exchange of which it is a who is an associated person, as defined this section, and makes these records member for a qualified investor that has in section 3(a)(18) of the Act, of the available to the Commission upon not been solicited by the foreign broker foreign broker or dealer and who request. or dealer, except that: participates in the solicitation of a (4) Counterparties and specific (i) A representative of the foreign qualified investor under paragraph (a)(3) customers. The foreign broker or dealer options exchange located in a foreign of this section. effects transactions in securities with or office or a representative office in the (2) The term foreign broker or dealer for, or induces or attempts to induce the United States may: shall mean any non-U.S. resident person purchase or sale of any security by: (A) Communicate with persons that (including any U.S. person engaged in (i) A registered broker or dealer, the representative of the foreign options business as a broker or dealer entirely whether the registered broker or dealer exchange reasonably believes are outside the United States, except as is acting as principal for its own account qualified investors, including through otherwise permitted by this section) that or as agent for others, or a bank acting participation in programs and seminars is not an office or branch of, or a natural pursuant to an exception or exemption in the United States, regarding the person associated with, a registered from the definition of ‘‘broker’’ or foreign options exchange, the options on broker or dealer, whose securities ‘‘dealer’’ in section 3(a)(4)(B), 3(a)(4)(E), foreign securities traded on the foreign activities, if conducted in the United or 3(a)(5)(C) of the Act or the rules options exchange and, if applicable, the States, would be those of a ‘‘broker’’ or thereunder; foreign options exchange’s OTC options ‘‘dealer,’’ as defined in section 3(a)(4) or (ii) The African Development Bank, processing service; 3(a)(5) of the Act, and that: the Asian Development Bank, the Inter- (B) Provide persons that the (i) Solely for purposes of paragraph American Development Bank, the representative of the foreign options (a)(3) of this section, is regulated for International Bank for Reconstruction exchange reasonably believes are conducting securities activities, and Development, the International qualified investors with a disclosure including the specific activities in Monetary Fund, the United Nations and document that provides an overview of which the foreign broker or dealer their agencies, affiliates and pension the foreign options exchange and the engages with the qualified investor, in a funds; options on foreign securities traded on foreign country by a foreign securities (iii) A foreign person temporarily that exchange, including the differences authority; and present in the United States, with whom from standardized options in the U.S. (ii) Solely for purposes of paragraphs the foreign broker or dealer had a bona options market and special factors (a)(3)(iii)(A)(1) and (a)(4)(vi) of this fide, pre-existing relationship before the relevant to transactions by U.S. persons section, conducts a foreign business. foreign person entered the United in options on the foreign options (3) The term foreign business shall States; exchange; and mean the business of a foreign broker or (iv) Any agency or branch of a U.S. (C) Make available to persons that the dealer with qualified investors and person permanently located outside the representative of the foreign options foreign resident clients where at least United States, provided that the exchange reasonably believes are 85% of the aggregate value of the transactions occur outside the United qualified investors, solely upon request securities purchased or sold in States; of the investor, a list of participants on transactions conducted pursuant to both (v) U.S. citizens resident outside the the foreign options exchange permitted paragraphs (a)(3) and (a)(4)(vi) of this United States, provided that the to take orders from the public and any section by the foreign broker or dealer

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calculated on a rolling two-year basis is States in connection with a distribution (8) The term United States shall mean derived from transactions in foreign conducted solely outside the United the United States of America, including securities, except that the foreign broker States pursuant to Regulation S (17 CFR the States and any territories and other or dealer may rely on the calculation 230.903); areas subject to its jurisdiction. made for the prior year for the first 60 (iv) A security that is a note, bond, (c) Withdrawal of exemption. The days of a new year. debenture or evidence of indebtedness Commission, by order after notice and (4) The term foreign resident client issued or guaranteed by a foreign opportunity for hearing, may withdraw shall mean: government (as defined in 17 CFR the exemption provided in paragraph (i) Any entity not organized or 230.405) that is eligible to be registered (a)(3) of this section with respect to the incorporated under the laws of the with the Commission under Schedule B subsequent activities of a foreign broker United States and not engaged in a trade of the Securities Act of 1933; and or dealer or class of foreign brokers or or business in the United States for (v) A derivative instrument on a dealers conducted from a foreign federal income tax purposes; security described in paragraph (b)(5)(i), (ii) Any natural person not a U.S. country, if the Commission finds that (b)(5)(ii), (b)(5)(iii), or (b)(5)(iv) of this resident for federal income tax the laws or regulations of that foreign section. purposes; and country have prohibited the foreign (iii) Any entity not organized or (6) The term OTC options processing broker or dealer, or one of a class of incorporated under the laws of the service shall mean a mechanism for foreign brokers or dealers, from United States 85 percent or more of submitting an options contract on a providing, in response to a request from whose outstanding voting securities are foreign security that has been negotiated the Commission, information or beneficially owned by persons in and completed in an over-the-counter documents within its possession, paragraphs (b)(4)(i) and (b)(4)(ii) of this transaction to a foreign options custody, or control, testimony of foreign section. exchange so that the foreign options associated persons, or assistance in (5) The term foreign security shall exchange may replace that contract with taking the evidence of other persons, mean: an equivalent standardized options wherever located, related to activities (i) An equity security (as defined in contract that is listed on the foreign exempted by paragraph (a)(3) of this 17 CFR 230.405) of a foreign private options exchange and that has the same section. terms and conditions as the over-the- issuer (as defined in 17 CFR 230.405); Dated: June 27, 2008. counter options. (ii) A debt security (as defined in 17 By the Commission. CFR 230.902) of a foreign private issuer (7) The term registered broker or (as defined in 17 CFR 230.405); dealer shall mean a person that is Florence E. Harmon, (iii) A debt security (as defined in 17 registered with the Commission under Acting Secretary. CFR 230.902) issued by an issuer section 15(b), 15B(a)(2), or 15C(a)(2) of [FR Doc. E8–15000 Filed 7–7–08; 8:45 am] organized or incorporated in the United the Act. BILLING CODE 8010–01–P

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Reader Aids Federal Register Vol. 73, No. 131 Tuesday, July 8, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

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. 38895, 38898, 38900, 38905 3 CFR Presidential Documents 71 ...... 37797, 38109, 38313, Executive orders and proclamations 741–6000 Proclamations: 38314 The United States Government Manual 741–6000 8272...... 38297 97...... 37360 (Proc. 7912 of 6/29/ Other Services Proposed Rules: 2005 See: Proc. 39 ...... 37898, 37900, 37903, Electronic and on-line services (voice) 741–6020 8272) ...... 38297 38160, 38346, 38933, 38935, Privacy Act Compilation 741–6064 (Proc. 8213 of 12/20/ 38937 Public Laws Update Service (numbers, dates, etc.) 741–6043 2007 See: Proc. 71...... 37905 TTY for the deaf-and-hard-of-hearing 741–6086 8272) ...... 38297 (Proc. 8240 of 4/17/ 15 CFR 2008 See: Proc. 745...... 38908 ELECTRONIC RESEARCH 8272) ...... 38297 774...... 38908 World Wide Web Executive Orders: 13467...... 38103 17 CFR Full text of the daily Federal Register, CFR and other publications EO 10450 of 4/27/1953 210...... 38094 is located at: http://www.gpoaccess.gov/nara/index.html (see: EO 13467) ...... 38103 228...... 38094 Federal Register information and research tools, including Public EO 10577 of 11/23/ 229...... 38094 Inspection List, indexes, and links to GPO Access are located at: 1954 (see: EO 249...... 38094 http://www.archives.gov/federallregister 13467) ...... 38103 Proposed Rules: EO 10865 of 2/20/1960 230...... 37752 E-mail (see: EO 13467) ...... 38103 240...... 37752, 39182 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is EO 12171 of 11/19/ 18 CFR an open e-mail service that provides subscribers with a digital 1979 (Amended by: form of the Federal Register Table of Contents. The digital form EO 13467)...... 38103 37...... 39092 of the Federal Register Table of Contents includes HTML and EO 12333 of 12/4/1981 19 CFR PDF links to the full text of each document. (see: EO 13467) ...... 38103 EO 12829 of 1/6/1993 201...... 38316 To join or leave, go to http://listserv.access.gpo.gov and select 210...... 38316 Online mailing list archives, FEDREGTOC-L, Join or leave the list (see: EO 13467) ...... 38103 (or change settings); then follow the instructions. EO 12958 of 4/17/1995 21 CFR (see: EO 13467) ...... 38103 PENS (Public Law Electronic Notification Service) is an e-mail EO 12968 of 8/2/1995 530...... 38110 service that notifies subscribers of recently enacted laws. (Amended by: EO 25 CFR To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 13467) ...... 38103 Proposed Rules: EO 13381 of 6/27/2005 and select Join or leave the list (or change settings); then follow 293...... 37907 the instructions. (Revoked by: EO FEDREGTOC-L and PENS are mailing lists only. We cannot 13467) ...... 38103 26 CFR respond to specific inquiries. Administrative Orders: 1 ...... 37362, 37797, 38113, Memorandums: 38910 Reference questions. Send questions and comments about the Memorandum of June Federal Register system to: [email protected] 25...... 37362 26, 2008 ...... 37351 26...... 37362 The Federal Register staff cannot interpret specific documents or 7 CFR 31...... 37371 regulations. 53...... 37362 301...... 37775 55...... 37362 FEDERAL REGISTER PAGES AND DATE, JULY 989...... 38307 156...... 37362 Proposed Rules: 157...... 37362 37351–37774...... 1 253...... 38155 301 ...... 37362, 37804, 38915 37775–38108...... 2 602...... 37371 9 CFR 38109–38306...... 3 Proposed Rules: 38307–38882...... 7 Proposed Rules: 1 ...... 37389, 37910, 38162, 71...... 38343 38883–39212...... 8 38940 94...... 37892 26...... 37910 301...... 37910 10 CFR Proposed Rules: 29 CFR 430...... 38159 4003...... 38117 Proposed Rules: 14 CFR 4001...... 37390 39 ...... 37353, 37355, 37358, 4022...... 37390 37775, 37778, 37781, 37783, 4044...... 37390 37786, 37789, 37791, 37793, 37795, 38311, 38883, 38885, 30 CFR 38887, 38889, 38891, 38893, 938...... 38918

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Proposed Rules: 36 CFR Proposed Rules: 27...... 38955 948...... 38941 52...... 38163, 38353 Proposed Rules: 43...... 37911 7...... 38954 55...... 38356 73...... 38361 31 CFR 1195...... 38352, 38353 62...... 38954 Ch. V...... 37536 37 CFR 42 CFR 49 CFR 201...... 37838 Proposed Rules: 571...... 38331 32 CFR 202...... 37838 405...... 38502 Proposed Rules: 706...... 38921 203...... 37838 409...... 38502 171...... 38361 204...... 37838 410...... 38502 173...... 38164, 38361 Proposed Rules: 411...... 38502 199...... 38348 205...... 37838 177...... 38164 414...... 38502 726...... 38350 211...... 37838 178...... 38361 Proposed Rules: 415...... 38502 523...... 37922 1...... 38027 424...... 38502 531...... 37922 33 CFR 485...... 38502 533...... 37922 110...... 38922, 38924 38 CFR 486...... 38502 534...... 37922 536...... 37922 117...... 37806, 37809 Proposed Rules: 44 CFR 165 ...... 37809, 37810, 37813, 21...... 37402 537...... 37922 37815, 37818, 37820, 37822, 67...... 38132 571...... 38372 40 CFR 37824, 37827, 37829, 37833, 47 CFR 37835, 38120 52 ...... 37840, 37841, 37843, 1...... 37861, 37869 50 CFR Proposed Rules: 37844, 38122, 38124, 38328 165...... 38951 62...... 38925 32...... 37882 622...... 38139 63...... 37728 36...... 37882 635...... 38144 81...... 38124 43...... 37861, 37869 648...... 37382, 38340 34 CFR 86...... 38293 54...... 37882 679...... 38931 Proposed Rules: 174...... 37846 64...... 38928 Proposed Rules: 674...... 37694 180...... 37850, 37852 73 ...... 38138, 38139, 38331 17...... 38956 682...... 37694 261...... 37858 Proposed Rules: 404...... 38375 685...... 37694 266...... 37858 1...... 37911 622...... 38387

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REMINDERS by 7-15-08; published 5- ENVIRONMENTAL Reasonable and Timely The items in this list were 16-08 [FR E8-10918] PROTECTION AGENCY Deployment of Advanced editorially compiled as an aid Importation of Tomatoes from Agency Information Collection Services to All Americans, to Federal Register users. Souss-Massa, Morocco; Activities; Proposals, etc.; comments due by 7- Inclusion or exclusion from comments due by 7-15-08; Submissions, and Approvals; 17-08; published 7-2-08 [FR this list has no legal published 5-16-08 [FR E8- comments due by 7-14-08; E8-14875] significance. 10923] published 5-15-08 [FR E8- Promoting Diversification of 10898] AGRICULTURE Ownership in the Approval and Promulgation of DEPARTMENT Broadcasting Services; Air Quality Implementation comments due by 7-15-08; RULES GOING INTO Forest Service EFFECT JULY 8, 2008 Plans; Pennsylvania: published 5-16-08 [FR E8- Request for Comment; Determination of Attainment 11043] Availability: of the Fine Particle FEDERAL RESERVE COMMERCE DEPARTMENT Regulatory Flexibility Act Standard; comments due SYSTEM Industry and Security Assessment; Locatable by 7-14-08; published 6- Bureau Minerals Operations; 13-08 [FR E8-13340] Truth in Lending; comments due by 7-18-08; published Implementation of the comments due by 7-17- Environmental Statements; 5-19-08 [FR E8-10242] Understandings Reached at 08; published 6-17-08 [FR Notice of Intent: the April 2008 Australia E8-13446] Coastal Nonpoint Pollution Truth in Savings; comments due by 7-18-08; published Group Plenary Meeting; CIVIL RIGHTS COMMISSION Control Programs; States and Territories— 5-19-08 [FR E8-10243] Additions to the List of Supplemental Standards of Florida and South States Parties to the FEDERAL TRADE Ethical Conduct for Carolina; Open for Chemical Weapons COMMISSION Employees of the United comments until further Convention; published 7- Privacy Act; Systems of States Commission on Civil notice; published 2-11- Records; comments due by 8-08 Rights; comments due by 7- 08 [FR 08-00596] 7-14-08; published 6-12-08 DEFENSE DEPARTMENT 14-08; published 6-13-08 Intent to delete the Fourth [FR E8-13111] Navy Department [FR E8-13170] Street Abandoned Refinery GENERAL SERVICES Certifications and Exemptions COMMERCE DEPARTMENT Site from the National ADMINISTRATION under the International National Oceanic and Priorities List; comments Regulations Preventing Atmospheric Administration due by 7-14-08; published Civilian Agency Acquisition Collisions at Sea (1972); Fisheries in the Western 6-13-08 [FR E8-13371] Council and the Defense published 7-8-08 Pacific; Precious Corals Naphthalene Risk Acquisition Regulations Assessments; Availability, Council; comments due by INTERIOR DEPARTMENT Fisheries; Black Coral Quota and Gold Coral Moratorium; and Risk Reduction Options; 7-18-08; published 6-18-08 Surface Mining Reclamation comments due by 7-14-08; comments due by 7-14-08; [FR E8-13724] and Enforcement Office published 5-30-08 [FR E8- published 5-14-08 [FR E8- Federal Acquisition Regulation: 10830] Pennsylvania Regulatory 12127] Contractor Compliance National Oil and Hazardous Program; published 7-8-08 Program and Integrity DEFENSE DEPARTMENT Substances Pollution TREASURY DEPARTMENT Reporting; comments due Defense Acquisition Contingency Plan: by 7-15-08; published 5- Internal Revenue Service Regulations System National Priorities List; 16-08 [FR E8-11137] Change to Office to which Defense Federal Acquisition comments due by 7-14- Notices of Nonjudicial Sale Regulation Supplement: 08; published 6-13-08 [FR HEALTH AND HUMAN SERVICES DEPARTMENT Requests for Return of Excessive Pass-Through E8-13366] Wrongfully Levied Property Charges; comments due National Priorities List; Centers for Medicare & must be sent; published 7- by 7-14-08; published 5- comments due by 7-14- Medicaid Services 8-08 13-08 [FR E8-10666] 08; published 6-13-08 [FR Medicare Program: Elections Regarding Start-up E8-13369] DEFENSE DEPARTMENT Revisions to the Medicare Expenditures, Corporation National Priorities List Advantage and Federal Acquisition Regulation: Update; comments due by Organizational Expenditures Prescription Drug Benefit 7-14-08; published 6-13- and Partnership Contractor Compliance Program; comments due 08 [FR E8-13338] Organizational Expenses; Program and Integrity by 7-15-08; published 5- Pesticide Tolerances: published 7-8-08 Reporting; comments due 16-08 [FR 08-01244] by 7-15-08; published 5- Cyproconazole; comments 16-08 [FR E8-11137] due by 7-14-08; published HEALTH AND HUMAN COMMENTS DUE NEXT SERVICES DEPARTMENT Federal Acquisition Regulation; 5-14-08 [FR E8-10829] WEEK FAR Case 2007018, Protection of Stratospheric Food and Drug Organizational Conflicts of Ozone: Administration AGRICULTURE Interest; comments due by Revision of Refrigerant Defining Small Number of DEPARTMENT 7-18-08; published 6-18-08 Recovery Only Equipment Animals for Minor Use Animal and Plant Health [FR E8-13724] Standards; comments due Designation; comments due Inspection Service Privacy Act; Systems of by 7-18-08; published 6- by 7-16-08; published 3-18- Records; comments due by 18-08 [FR E8-13754] 08 [FR E8-05385] Importation of Baby Squash Protection of Stratospheric 7-18-08; published 5-19-08 HOMELAND SECURITY and Baby Courgettes from Ozone; Revision of [FR E8-11140] DEPARTMENT Zambia; comments due by Refrigerant Recovery Only 7-15-08; published 5-16-08 Transporter Proof of Delivery; Equipment Standards; Coast Guard [FR E8-10920] comments due by 7-18-08; comments due by 7-18-08; Anchorage Regulations; Port Importation of Horses, published 5-19-08 [FR E8- published 6-18-08 [FR E8- of New York; comments due Ruminants, Swine, and 11124] 13749] by 7-14-08; published 5-14- Dogs: ENERGY DEPARTMENT FEDERAL 08 [FR E8-10706] Remove Panama from Lists Assistance Regulations; COMMUNICATIONS Crewmember Identification of Regions Where comments due by 7-15-08; COMMISSION Documents; comments due Screwworm is Considered published 5-16-08 [FR E8- Development of Nationwide by 7-14-08; published 5-14- to Exist; comments due 11005] Broadband Data to Evaluate 08 [FR E8-10707]

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Escort Vessels in Certain U.S. LIBRARY OF CONGRESS Venetie, AK; comments due by 7-18-08; published 5-19- Waters; comments due by Copyright Office, Library of by 7-14-08; published 5- 08 [FR E8-10489] 7-14-08; published 4-15-08 Congress 29-08 [FR E8-11969] [FR E8-07935] Retransmission of Digital Proposed Revision of Class E Safety Zone: Broadcast Signals Pursuant Airspace: LIST OF PUBLIC LAWS Patchogue Bay, Patchogue, to the Cable Statutory Gulkana, AK; comments due NY; comments due by 7- License; comments due by by 7-14-08; published 5- This is a continuing list of 14-08; published 6-12-08 7-17-08; published 6-2-08 29-08 [FR E8-11976] [FR E8-11855] public bills from the current [FR E8-13143] Kake, AK; comments due Safety Zones: NATIONAL AERONAUTICS session of Congress which by 7-14-08; published 5- have become Federal laws. It Festival of Sail San AND SPACE 29-08 [FR E8-11973] may be used in conjunction Francisco, San Francisco, ADMINISTRATION Kivalina, AK; comments due with ‘‘PLUS’’ (Public Laws CA; comments due by 7- Civilian Agency Acquisition by 7-14-08; published 5- Update Service) on 202–741– 14-08; published 6-13-08 Council and the Defense 29-08 [FR E8-11978] 6043. This list is also [FR E8-13268] Acquisition Regulations Council; comments due by Prospect Creek, AK; available online at http:// HOMELAND SECURITY comments due by 7-14- www.archives.gov/federal- DEPARTMENT 7-18-08; published 6-18-08 [FR E8-13724] 08; published 5-29-08 [FR register/laws.html. Privacy Act of 1974: Federal Acquisition Regulation: E8-11972] Implementation of The text of laws is not Contractor Compliance Red Dog, AK; comments Exemptions; US-VISIT published in the Federal Program and Integrity due by 7-14-08; published Technical Reconciliation Register but may be ordered Reporting; comments due 5-29-08 [FR E8-11971] Analysis Classification in ‘‘slip law’’ (individual by 7-15-08; published 5- System (TRACS); comments TRANSPORTATION pamphlet) form from the 16-08 [FR E8-11137] due by 7-16-08; published DEPARTMENT Superintendent of Documents, 6-16-08 [FR E8-13386] TRANSPORTATION National Highway Traffic U.S. Government Printing INTERIOR DEPARTMENT DEPARTMENT Safety Administration Office, Washington, DC 20402 Federal Aviation Fish and Wildlife Service Proposed Decisions to Grant (phone, 202–512–1808). The Administration Draft Bexar County Karst Exemptions: text will also be made Airworthiness Directives: Invertebrates Recovery Plan; Average Fuel Economy available on the Internet from comments due by 7-15-08; Airbus Model A300, A310, Standards; Passenger GPO Access at http:// published 5-16-08 [FR E8- and A300-600 Series Automobile Average Fuel www.gpoaccess.gov/plaws/ 10996] Airplanes; comments due Economy Standards; index.html. Some laws may by 7-17-08; published 6- comments due by 7-17- not yet be available. Endangered and Threatened 17-08 [FR E8-13566] Wildlife and Plants: 08; published 6-17-08 [FR Airbus Model A330 E8-13505] 90-Day Finding on a Airplanes; and Model CORRECTION Petition To List the Ashy A340-200 and -300 TRANSPORTATION Storm-Petrel Airplanes; comments due DEPARTMENT In the List of Public Laws (Oceanodroma by 7-14-08; published 6- Pipeline and Hazardous printed in the Federal Register homochroa); comments 17-08 [FR E8-13568] Materials Safety on July 1, 2008, H.R. 2642, due by 7-14-08; published APEX Aircraft Model CAP Administration Public Law 110–252, was 5-15-08 [FR E8-10790] 10 B Airplanes; comments Hazardous Materials printed incorrectly. It should Initiation of Status Review due by 7-14-08; published Transportation; Registration read as follows: for the Northern Mexican 6-13-08 [FR E8-13319] and Fee Assessment Gartersnake (Thamnophis Boeing Model 767-200 and Program; comments due by H.R. 2642/P.L. 110–252 eques megalops); -300 Series Airplanes; 7-14-08; published 5-5-08 comments due by 7-14- Supplemental Appropriations comments due by 7-14- [FR E8-09815] Act, 2008 (June 30, 2008; 122 08; published 5-28-08 [FR 08; published 6-17-08 [FR E8-11756] TRANSPORTATION Stat. 2323) E8-13579] DEPARTMENT Proposed Removal of DG Flugzeugbau GmbH Last List July 2, 2008 Surface Transportation Erigeron Maguirei from Model DG-500MB Board the Federal List of Powered Sailplanes; Endangered and comments due by 7-14- Waybill Sample; comments Threatened Plants; 08; published 6-13-08 [FR due by 7-18-08; published Public Laws Electronic Availability of Post- E8-13324] 6-26-08 [FR E8-13677] Notification Service Delisting Monitoring Plan; Engine Components Inc. TREASURY DEPARTMENT (PENS) comments due by 7-15- Reciprocating Engine Internal Revenue Service 08; published 5-16-08 [FR Cylinder Assemblies; E8-09282] Determination of Minimum comments due by 7-18- PENS is a free electronic mail Endangered and Threatened Required Pension 08; published 5-19-08 [FR notification service of newly Wildlife and Plants; Special Contributions; comments E8-11116] enacted public laws. To Rule for the Polar Bear; due by 7-14-08; published Lockheed Model 382, 382B, subscribe, go to http:// comments due by 7-14-08; 4-15-08 [FR 08-01133] 382E, 382F, and 382G listserv.gsa.gov/archives/ published 5-15-08 [FR E8- Regulations Under Section Series Airplanes; publaws-l.html 11144] comments due by 7-14- 2642(g); comments due by 7-16-08; published 4-17-08 INTERIOR DEPARTMENT 08; published 6-13-08 [FR Note: This service is strictly [FR E8-08033] Surface Mining Reclamation E8-13322] for E-mail notification of new and Enforcement Office Proposed Establishment of VETERANS AFFAIRS laws. The text of laws is not West Virginia Regulatory Class E Airspace: DEPARTMENT available through this service. Program; comments due by Eek, AK; comments due by VA Veteran-Owned Small PENS cannot respond to 7-16-08; published 6-16-08 7-14-08; published 5-29- Business Verification specific inquiries sent to this [FR E8-13456] 08 [FR E8-11968] Guidelines; comments due address.

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