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Contents Federal Register Vol. 73, No. 194

Monday, October 6, 2008

Agriculture Department Department of Defense Ammunition and Explosives Safety See Forest Service Standards; Revision of DoD 6055.09-STD, 58212 Meetings: Architect of the Capitol Defense Advisory Board for Employer Support of the NOTICES Guard and Reserve, 58212–58213 Proposed Small Business Set Aside Program, 58110 Economic Development Administration Army Department NOTICES See Engineers Corps Petitions by Firms for Determination of Eligibility to Apply for Trade Adjustment Assistance, 58110–58111 Board of Directors of the HOPE for Homeowners Program RULES Education Department HOPE for Homeowners Program: NOTICES Program Regulations, 58418–58426 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 58214–58215 Centers for Disease Control and Prevention RULES Energy Department Medical Examination of Aliens; Revisions to Medical See Federal Energy Regulatory Commission Screening Process, 58047–58058 NOTICES Agency Information Collection Activities; Proposals, Children and Families Administration Submissions, and Approvals, 58215–58216 NOTICES Meetings: Agency Information Collection Activities; Proposals, National Coal Council, 58216 Submissions, and Approvals, 58245–58246 Family Violence Prevention Fund; Award Supplemental Engineers Corps Grants, 58246 NOTICES Mentoring Children of Prisoners; Replacement Grants Environmental Impact Statements; Availability, etc.: Award, 58246 Permit Application for the Sanitation Districts of Los Mentoring of Children of Prisoners; 27 Expansion Angeles County’s Clearwater Program in Supplements Awards, 58246–58247 County, CA, 58213–58214 National Latino Alliance for the Elimination of Domestic Violence; Award Supplemental Grants, 58247 Environmental Protection Agency Noncompetitive Successor Award to Department RULES of Public Health, 58247–58248 Treatment of Data Influenced by Exceptional Events (Exceptional Event Rule): Guard Revised Exceptional Event Data Flagging Submittal and PROPOSED RULES Documentation Schedule to Support Initial Area Drawbridge Operation Regulations: Designations for the 2008 Ozone NAAQS, 58042– Intracoastal Waterway (ICW) Thorofare, Atlantic 58047 City, NJ, 58070–58073 PROPOSED RULES Approval and Promulgation of Implementation Plans: Commerce Department ; Prevention of Significant Deterioration and See Economic Development Administration Nonattainment New Source Review Rules; Extension See Industry and Security Bureau of Comment Period, 58084–58085 See International Trade Administration North Carolina; Prevention of Significant Deterioration See National Oceanic and Atmospheric Administration and Nonattainment New Source Review Rules; Extension of Comment Period, 58084 Consumer Product Safety Commission National Emission Standards for Hazardous Air Pollutants: PROPOSED RULES Chemical Manufacturing Area Sources, 58352–58385 Labeling Requirement for Toy and Game Advertisements, Requirements for Transboundary Shipments of Wastes 58063–58070 Between OECD Countries, Requirements for Export Shipments of Spent Lead-Acid Batteries, etc., 58388– Copyright Office, Library of Congress 58416 PROPOSED RULES Treatment of Data Influenced by Exceptional Events Exemption to Prohibition on Circumvention of Copyright (Exceptional Event Rule): Protection Systems for Access Control Technologies, Revised Exceptional Event Data Submittal and 58073–58079 Documentation Schedule for Monitoring Data Used in Designations for the 2008 Ozone NAAQS, 58080– Defense Department 58084 See Engineers Corps NOTICES NOTICES Environmental Assessment and Coastal Health Act; 36(b)(1) Arms Sales Notification, 58131–58212 National List of Beaches, 58229–58230

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Certain New Chemicals; Receipt and Status Information, Proposed Willamette Valley Native Prairie Habitat 58230–58235 Programmatic Safe Harbor Agreement: Fenders Blue Butterfly in Benton, Lane, Linn, Marion, Executive Office of the President Polk, and Yamhill Counties, OR, 58263–58264 See Presidential Documents Food and Drug Administration Federal Aviation Administration NOTICES RULES Agency Information Collection Activities; Proposals, Airworthiness Directives: Submissions, and Approvals, 58248 Rolls-Royce Deutschland Ltd & Co KG (RRD) Dart 528, 529, 532, 535, 542, and 552 Series Turboprop Forest Service Engines; Correction, 58032–58033 NOTICES NOTICES Meetings: Intent to Rule on Request to Release Airport Land: Eastern Washington Cascades Provincial Advisory Nenana Airport, Nenana, AK, 58293–58294 Committee and the Yakima Provincial Advisory Committee, 58110 Federal Deposit Insurance Corporation NOTICES Health and Human Services Department Agency Information Collection Activities; Proposals, See Centers for Disease Control and Prevention Submissions, and Approvals, 58235–58236 See Children and Families Administration See Food and Drug Administration Federal Energy Regulatory Commission See National Institutes of Health NOTICES NOTICES Applications: Declaration under the Public Readiness and Emergency Magnum Gas Storage, LLC, 58216–58217 Preparedness Act October 1, 2008, 58239–58242 Mississippi 24 Hydro, LLC, 58217 Determination and Declaration Regarding Emergency Use of Combined Notice of Filings, 58218–58223 Doxycycline Hyclate Tablets Accompanied by Combine Notice of Filings, 58217–58218 Emergency Use Information, 58242–58243 Environmental Impact Statements; Availability, etc.: Meetings: Gas Transmission, LLC; Fayetteville Shale National Committee on Vital and Health Statistics, Compression Project, 58223–58225 58243–58244 TransCanada PipeLine USA, Ltd., et al.; Pathfinder Secretary’s Advisory Committee on Re-designation of Pipeline Project and Bison Pipeline Project, 58225– Head Start Grantees, 58244–58245 58228 Filings: Homeland Security Department Swisher, Keith L., 58228 See Coast Guard Records Governing Off-the Record Communications, 58228– See U.S. Customs and Border Protection 58229 Housing and Urban Development Department Federal Highway Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Buy America Waiver Notification, 58294–58295 Submissions, and Approvals: Moving to Work Demonstration, 58253–58254 Federal Reserve System Allocations, Application Procedures, Regulatory Waivers RULES Granted to and Alternative Requirements for Rules of Practice for Hearings, 58031–58032 Emergency Assistance: NOTICES Redevelopment of Abandoned and Foreclosed Homes Change in Bank Control Notices; Acquisition of Shares of Grantees, 58330–58349 Bank or Bank Holding Companies, 58236–58237 Privacy Act; Systems of Records, 58254–58259 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies that are Engaged in Industry and Security Bureau Permissible Nonbanking Activities, 58237 RULES Revisions to the Export Administration Regulations based Federal Trade Commission upon a Systematic Review of the CCL, 58033–58041 NOTICES Granting of Request for Early Termination of the Waiting Interior Department Period Under the Premerger Notification Rules, 58237– See Fish and Wildlife Service 58239 See Land Management Bureau See National Park Service Fish and Wildlife Service See Reclamation Bureau NOTICES Draft Revised Comprehensive Conservation Plan and International Trade Administration Environmental Assessment: NOTICES Koyukuk/Nowitna National Wildlife Refuges, Galena, AK, Antidumping Duty Order: 58259–58261 Steel Wire Garment Hangers from the People’s Republic Endangered and Threatened Wildlife and Plants: of , 58111–58112 5-Year Reviews of Three Wildlife Species and Eight Plant Environmental Technologies Trade Advisory Committee, Species in the Mountain-Prairie Region, 58261–58262 Request for Nominations, 58112–58113

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Extension of Time Limits for the Preliminary Results of the National Oceanic and Atmospheric Administration Antidumping Duty Administrative Review and New RULES Shipper Reviews: Fisheries of the Caribbean, Gulf of , and South Wooden Bedroom Furniture from the Peoples Republic of Atlantic: China, 58113 Atlantic Coastal Fisheries Cooperative Management Act Final Results and Final Rescission, In Part, of Antidumping Provisions; Atlantic Coast Red Drum Fishery off the Duty Administrative Review: Atlantic States; Transfer of Management Authority, Certain Tissue Paper Products from the Peoples Republic 58059–58061 of China, 58113–58115 Reef Fish Fishery of the Gulf of Mexico; Reopening of the Preliminary Results of Antidumping Duty Administrative 2008 Deepwater Grouper and Tilefish Commercial Review and Intent to Rescind Review in Part: Fisheries, 58058–58059 Freshwater Crawfish Tail Meat From the People’s Fisheries of the Exclusive Economic Zone Off Alaska: Republic of China, 58115–58121 Pacific Cod by Vessels Catching Pacific Cod for Preliminary Results of Countervailing Duty Administrative Processing by the Inshore Component in the Central Review: Regulatory Area of the Gulf of Alaska, 58061–58062 Lined Paper Products from , 58121–58126 PROPOSED RULES Atlantic Coastal Fisheries Cooperative Management Act International Trade Commission Provisions: NOTICES American Lobster Fishery, 58099–58109 Investigation: NOTICES Welded Stainless Steel Pressure Pipe from China, 58265– Indirect Cost Rates for the Office of National Marine 58267 Sanctuaries (Fiscal Year 2006), 58126–58127 Meetings: Gulf of Mexico Fishery Management Council, 58127– Justice Department 58128 See Justice Programs Office Pacific Fishery Management Council; Public Hearings, NOTICES 58128–58129 Consent Decree: Scientific Data Stewardship Project Office (2009), 58129– Merit Energy Company, LLC and Shell Exploration & 58131 Production Co., 58267 National Park Service Justice Programs Office NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Meetings: Blackstone River Valley, MA and RI; Special Resource Federal Advisory Committee on Juvenile Justice, 58267– Study, 58264–58265 58268 Curecanti National Recreation Area, CO; Resource Protection Study, 58265 Land Management Bureau NOTICES Nuclear Regulatory Commission Filing of Plat of Survey: PROPOSED RULES Louisiana, 58264 Medical Use of Byproduct Material: North Carolina, 58264 Amendments/Medical Event Definitions; Extension of Comment Period, 58063 Library of Congress NOTICES See Copyright Office, Library of Congress Advisory Committee on Reactor Safeguards; Procedures for Meetings, 58268–58269 National Highway Traffic Safety Administration Issuance and Availability of Draft Regulatory Guide, DG- NOTICES 5026, and Cancellation of Public Meeting, 58269–58270 Petition for Exemption from the Federal Motor Vehicle Meetings: Theft Prevention Standard: Advisory Committee on Reactor Safeguards; Chrysler LLC, 58295–58297 Subcommittee on US-APWR, 58270

National Institutes of Health Personnel Management Office NOTICES RULES Meetings: Testimony by OPM Employees Relating to Official Center for Scientific Review, 58248–58250 Information and Production of Official Records in Legal Eunice Kennedy Shriver National Institute of Child Proceedings, 58019–58023 Health and Human Development, 58250 National Cancer Institute, 58250–58251 Presidential Documents National Institute of Allergy and Infectious Diseases, PROCLAMATIONS 58252 Special observances: National Institute of Environmental Health Sciences, National Breast Cancer Awareness Month (Proc. 8297), 58251–58252 58427–58430 National Institute of Mental Health, 58252–58253 National Disability Employment Awareness Month (Proc. National Institute of Mental Health; Amended, 58252– 8298), 58431–58432 58253 National Domestic Violence Awareness Month (Proc. National Institute on Drug Abuse, 58251 8299), 58433–58434

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Reclamation Bureau NOTICES PROPOSED RULES Rights and Protections Available Under the Federal Bureau of Reclamation Loan Guarantees, 58085–58099 Antidiscrimination and Whistleblower Protection Laws, 58292–58293 Securities and Exchange Commission RULES Treasury Department Foreign Issuer Reporting Enhancements, 58300–58327 NOTICES NOTICES Agency Information Collection Activities; Proposals, Applications: Submissions, and Approvals, 58297–58298 H&Q Healthcare Investors, et al., 58271–58274 MCG Capital Corp., et al., 58274–58276 U.S. Customs and Border Protection Meetings; Sunshine Act, 58276 RULES Meetings; Sunshine Act; Cancellation, 58276–58277 Issuance of a Visa and Authorization for Temporary Self-Regulatory Organizations; Proposed Rule Changes: Admission into the for Certain International Securities Exchange, LLC, 58277–58279 Nonimmigrant Aliens Infected with HIV, 58023–58031 NASDAQ OMX PHLX, Inc., 58279–58281 NOTICES NASDAQ Stock Market LLC, 58281–58283 Agency Information Collection Activities; Proposals, New York Stock Exchange LLC, 58283–58285 Submissions, and Approvals, 58253 NYSE Arca, Inc., 58285–58288 Small Business Administration NOTICES Separate Parts In This Issue Disaster Declarations: , 58288 Part II Indiana, 58288–58289 Securities and Exchange Commission, 58300–58327 Iowa, 58289 Mississippi, 58289–58290 Part III Pennsylvania, 58290 Housing and Urban Development Department, 58330–58349 Meetings: Region II Buffalo District Advisory Council, 58290 Part IV Seeking Exemption Under Section 312 of the Small Environmental Protection Agency, 58352–58385 Business Investment Act, Conflicts of Interest: Emergence Capital Partners SBIC, L.P., 58291–58292 Part V Environmental Protection Agency, 58388–58416 State Department RULES Part VI ; Amendment to the International Arms Traffic in Board of Directors of the HOPE for Homeowners Program, Arms Regulations, 58041–58042 58418–58426 NOTICES Intent to Establish the Global AIDS Coordinator’s Expert Part VII Panel on Prevention of Mother-to-Child Transmission Executive Office of the President, Presidential Documents, of HIV, 58292 58427–58434 Performance Review Board Members, 58292 Surface Transportation Board NOTICES Reader Aids Abandonment Exemption: Consult the Reader Aids section at the end of this issue for Buffalo & Pittsburgh Railroad, Inc.; Erie and Cattaraugus phone numbers, online resources, finding aids, reminders, Counties, NY, 58297 and notice of recently enacted public laws.

Transportation Department To subscribe to the Federal Register Table of Contents See Federal Aviation Administration LISTSERV electronic mailing list, go to http:// See Federal Highway Administration listserv.access.gpo.gov and select Online mailing list See National Highway Traffic Safety Administration archives, FEDREGTOC-L, Join or leave the list (or change See Surface Transportation Board settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR Proclamations: 8297...... 58429 8298...... 58431 8299...... 58433 5 CFR 295...... 58019 8 CFR 100...... 58023 212...... 58023 10 CFR Proposed Rules: 35...... 58063 12 CFR 263...... 58031 14 CFR 39...... 58032 15 CFR 742...... 58033 744...... 58033 774...... 58033 16 CFR Proposed Rules: 1500...... 58063 17 CFR 230...... 58300 239...... 58300 240...... 58300 249...... 58300 22 CFR 126...... 58041 24 CFR 4001...... 58418 33 CFR Proposed Rules: 117...... 58070 37 CFR Proposed Rules: 201...... 58073 40 CFR 50...... 58042 Proposed Rules: 50...... 58080 51...... 58080 52 (2 documents) ...... 58084 63...... 58352 262...... 58388 264...... 58388 265...... 58388 266...... 58388 271...... 58388 42 CFR 34...... 58047 43 CFR Proposed Rules: 403...... 58085 50 CFR 622 (2 documents) ...... 58058, 58059 679...... 58061 697...... 58059 Proposed Rules: 697...... 58099

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Rules and Regulations Federal Register Vol. 73, No. 194

Monday, October 6, 2008

This section of the FEDERAL REGISTER litigation in which OPM is not a party. adopting changes in this final rule from contains regulatory documents having general Often these subpoenas and requests are the rule as proposed based upon those applicability and legal effect, most of which for OPM records that are not available comments because employees and are keyed to and codified in the Code of to the public under the Freedom of former employees are already on notice Federal Regulations, which is published under Information Act. Also, OPM sometimes of and subject to penalties for violating 50 titles pursuant to 44 U.S.C. 1510. receives subpoenas and requests for the precepts established herein. The Code of Federal Regulations is sold by OPM employees to appear as witnesses However, in order to clarify the the Superintendent of Documents. Prices of in litigation in conjunction with a application of this rule, OPM has new books are listed in the first FEDERAL request for nonpublic records. decided to revise the proposed part REGISTER issue of each week. Requesters have sought information, for heading to make express that it applies example, on retirement records, pay to testimony by OPM employees issues, and other program matters, ‘‘relating to official information’’ (as OFFICE OF PERSONNEL under OPM jurisdiction. Responding to opposed to private matters), as well as MANAGEMENT such demands and requests can result in to the production of official records in a significant disruption to OPM legal proceedings. In addition, OPM has 5 CFR Part 295 employees’ work schedules. The result determined to add a reference to 31 RIN 3206–AL22 is that employees may be diverted from U.S.C. 9701 to the new part 295 performing their official duties in order authority citation. This statute Testimony by OPM Employees to respond to requests from parties in authorizes agencies to issue regulations Relating to Official Information and litigation. In order to address this providing for fair and cost-based fees Production of Official Records in Legal problem, many agencies over the years and charges. Proceedings have issued regulations that are similar Briefly summarized, this final rule to this proposed regulation, governing prohibits disclosure of nonpublic AGENCY: U.S. Office of Personnel the circumstances and manner in which official records or testimony by OPM Management (OPM). an employee may respond to demands employees unless there is compliance ACTION: Final rule. for testimony or for the production of with the rule (295.201 and 295.203). documents. Such a regulation was The rule identifies the factors that OPM SUMMARY: The U.S. Office of Personnel sustained by the United States Supreme will consider in making determinations Management is adopting as final a Court in United States ex rel. Touhy v. in response to such requests and what proposed rule, with certain minor Ragen, 340 U.S. 462 (1951). information requesters must provide changes, that sets forth procedures that In Touhy, the Supreme Court held (295.202 and 295.203). On its own requesters have to follow when making that a U.S. Department of Justice (DOJ) initiative, OPM has added ‘‘otherwise demands on or requests to an OPM official, acting on order of the Attorney protected information’’ to the types of employee to produce official records General, could not be held in contempt sensitive information enumerated in and information, and provide testimony for declining to produce records in paragraph (i) of 295.202. The rule also relating to official information, in response to a subpoena. The employee’s specifies when the request should be connection with a legal proceeding in refusal was based upon a DOJ regulation submitted (295.203), the time period for which OPM is not a party. This final that prohibited disclosure of agency review (295.205), potential fees rule establishes procedures to respond files, documents, records, or (295.301), and, if a request is granted, to such demands and requests in an information without the express any restrictions that may be placed on orderly and consistent manner. The approval of the Attorney General. The the disclosure of records or the rule, among other benefits, will promote Court sustained the validity of the DOJ appearance of an OPM employee as a uniformity in decisions, protect regulations, reasoning that it was witness (295.207 and 295.208). OPM is confidential information, provide appropriate for the Attorney General to also adopting in this final rule two other guidance to requesters, and reduce the prescribe regulations not inconsistent changes on its own initiative. First, potential for both inappropriate with law for the custody, use and OPM is adding the phrase ‘‘when disclosures of official information and preservation of records, papers, and necessary’’ to the procedure provided in wasteful allocation of agency resources. property pertaining to the Department of 295.209 for informing the court or other DATE: Effective October 6, 2008. Justice. competent authority and seeking a stay FOR FURTHER INFORMATION CONTACT: R. On June 23, 2008, OPM published in when a decision is not made prior to the Alan Miller, Associate General Counsel, the Federal Register its own proposed time a response is required. This U.S. Office of Personnel Management, Touhy regulation, for codification in a modification from the section as Room 7353, 1900 E Street, NW., new part 295 of 5 CFR (See 73 FR proposed recognizes that at times there Washington, DC 20415 or by electronic 35354) which provided for a 60-day can be informal resolution of such mail at [email protected]. public comment period. OPM received matters short of seeking a stay. The SUPPLEMENTARY INFORMATION: suggestions on the rule as proposed second change is that OPM is adding the from one commenter, whose comments phrase ‘‘unless otherwise advised by the Background were directed to the penalties section General Counsel’’ to the procedure The U.S. Office of Personnel [295.401] and to OPM’s authority to provided in 295.210 for personal Management (OPM) occasionally regulate the conduct of former appearance of an OPM employee when receives subpoenas and requests for employees. As noted below in the a stay of a demand (or, as now added OPM employees to provide evidence in summary of this final rule, we are not by OPM, a request) is denied. This

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change likewise recognizes that such minimize the possibility of involving Civil Justice Reform, and certify that it denials can sometimes be resolved OPM in issues unrelated to its meets the applicable standards provided instead by written response (see the responsibilities, promote uniformity in therein. section’s last sentence) or otherwise. responding to such requests and The commenter generally objected to subpoenas, and maintain the Paperwork Reduction Act penalizing employees who fail to impartiality of OPM in matters that are The Paperwork Reduction Act (44 comply with this rule (295.401), upon in dispute between other parties. It will U.S.C. chapter 35) does not apply the grounds that the language of also serve OPM’s interest in protecting because this final regulation does not subsection 401 would appear to sensitive, confidential, and privileged contain information collection penalize an employee, even if OPM did information and records that are requirements that require approval by not have an opportunity to appear and generated in response to the the Office of Management and Budget. be heard by the court in question. requirements in the ethics laws and OPM expects the collection of Additionally, the commenter questions regulations. information that is called for by the final penalizing employees who are trying to This final OPM rule is internal (not regulation would involve fewer than ten be helpful and provide responses to branch-wide), and is essentially persons each year. informal inquiries from outside parties procedural, not substantive. It does not that seek clarification. OPM is not create a right to obtain official records List of Subjects in 5 CFR Part 295 changing the penalty section based or the official testimony of an OPM upon these comments. First, the employee and it does not create any Administrative practice and penalties section (295.401) does not additional right or privilege not already procedures, Conflict of Interests, Courts, impose penalties a priori. Rather, as available to OPM to deny any demand Government employees, Records, with any potential disciplinary matter, or request therefor. However, any failure Subpoenas, Testimony. it provides that employees may be to comply with the procedures in this U.S. Office of Personnel Management. subject to discipline for violation of the rule would be a basis for denying a Michael W. Hager, rule. Moreover, employees and former demand or request submitted to OPM. employees are already subject to the Acting Director. provisions of the statutes cited in the Regulatory Flexibility Act ■ Accordingly, for the reasons set forth subsection. Additionally, the rule does For purposes of the Regulatory in the preamble, the U.S. Office of not apply to mere informal requests for Flexibility Act (5 U.S.C. chapter 6), this Personnel Management hereby adds a clarification. Instead, as set out in final rule will not have a significant new part 295 to 5 CFR to read as subsections 101 and 102, it applies to economic impact on a substantial follows: demands or requests for official records number of small entities. The final rule or information in a legal proceeding in addresses only the procedures to be PART 295—TESTIMONY BY OPM which OPM is not a party, while followed in the production or disclosure EMPLOYEES RELATING TO OFFICIAL recognizing that requests may be of OPM materials and information in INFORMATION AND PRODUCTION OF received informally. Moreover, as set litigation where OPM is not a party. OFFICIAL RECORDS IN LEGAL out in subsections 209 and 210, an Accordingly, OPM has determined that PROCEEDINGS employee is given guidance as to how a Regulatory Flexibility Analysis is not to respond if OPM has not had the required. Subpart A—General Provisions opportunity to be heard by the court. Sec. The charges for witnesses are the Unfunded Mandates Reform Act 295.101 Scope and purpose. same as those provided by the Federal For purposes of the Unfunded 295.102 Applicability. courts; and the fees related to Mandates Reform Act of 1995 (2 U.S.C. 295.103 Definitions. production of records are the same as chapter 25, subchapter II), the final rule Subpart B—Requests for Testimony and those charged under FOIA. The charges would not significantly or uniquely Production of Documents for time spent by an employee to affect small governments and would not prepare for testimony and for result in increased expenditures by 295.201 General prohibition certification of records by OPM are State, local, and tribal governments, in 295.202 Factors OPM will consider. 295.203 Filing requirements for demands or authorized under 31 U.S.C. 9701, which the aggregate, or by the private sector, of permits an agency to charge for services requests for documents or testimony. $100 million or more (as adjusted for 295.204 Service of subpoenas or requests. or things of value that are provided by inflation). the agency. 295.205 Processing demands or requests. This final rule applies to a broad Executive Order 12866 295.206 Final determination. 295.207 Restrictions that apply to range of matters in any legal proceeding In issuing this final regulation, OPM in which OPM is not a named party. It testimony. has adhered to the regulatory 295.208 Restrictions that apply to released also applies to former and current OPM philosophy and the applicable records. employees (as well as OPM consultants principles of regulation as set forth in 295.209 Procedure when a decision is not and advisers). Former OPM employees section 1 of Executive Order 12866, made prior to the time a response is are prohibited from testifying about Regulatory Planning and Review. This required. specific matters for which they had final rule has not been reviewed by the 295.210 Procedure in the event of an responsibility during their active Office of Management and Budget under adverse ruling. employment unless permitted to testify that Executive Order since it is not a as provided in the rule. They would not significant regulatory action with the Subpart C—Schedule of Fees be barred from appearing to testify about meaning of the Executive Order. 295.301 Fees. general matters unconnected with the Subpart D—Penalties specific matters for which they had Executive Order 12988 responsibility. As Acting Director of OPM, I have 295.401 Penalties. This final regulation will ensure a reviewed this final regulation in light of Authority: 5 U.S.C. App. (Sec. 1103, Civil more efficient use of OPM resources, section 3 of Executive Order 12988, Service Reform Act of 1978; 31 U.S.C. 9701).

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Subpart A—General Provisions § 295.103 Definitions. Subpart B—Requests for Testimony and Production of Documents § 295.101 Scope and purpose. Demand means a subpoena, or an order or other command of a court or § 295.201 General prohibition. (a) This part sets forth policies and other competent authority, for the procedures you must follow when you production, disclosure, or release of No employee may produce official submit a demand or request to an records or for the appearance and records and information or provide any employee of the U.S. Office of Personnel testimony of an OPM employee that is testimony relating to official Management (OPM) to produce official issued in a legal proceeding. information in response to a demand or records and information, or provide request without the prior, written General Counsel means the General testimony relating to official approval of the General Counsel. information, in connection with a legal Counsel of OPM or a person to whom proceeding. You must comply with the General Counsel has delegated § 295.202 Factors OPM will consider. these requirements when you request authority under this part. The General Counsel, in his or her the release or disclosure of official Legal proceeding means any matter sole discretion, may grant an employee records and information. before a court of law, administrative permission to testify on matters relating (b) OPM intends these provisions to: board or tribunal, commission, to official information, or produce (1) Promote economy and efficiency administrative law judge, hearing official records and information, in in its programs and operations; officer, or other body that conducts a response to an appropriate demand or (2) Minimize the possibility of legal or administrative proceeding. request. Among the relevant factors that involving OPM in controversial issues Legal proceeding includes all phases of the General Counsel may consider in not related to our functions; litigation. making this decision are whether: (3) Prevent the misuse of OPM OPM means the U.S. Office of (a) The purposes of this part are met; employees as involuntary expert Personnel Management. (b) Allowing such testimony or witnesses for private interests or as OPM employee or employee means: production of records would be inappropriate expert witnesses as to the necessary to prevent a miscarriage of state of the law; (1) Any current or former officer or employee of OPM; justice; (4) Maintain OPM’s impartiality (c) OPM has an interest in the among private litigants where neither (2) Any other individual hired decision that may be rendered in the OPM nor any other Federal entity is a through contractual agreement by or on legal proceeding; named party; and behalf of the OPM or who has (d) Allowing such testimony or (5) Protect sensitive, confidential performed or is performing services production of records would assist or information and the deliberative under such an agreement for OPM; and hinder OPM in performing its statutory processes of OPM. (3) Any individual who served or is duties or use OPM resources in a way (c) In providing for these serving in any consulting or advisory that will interfere with the ability of requirements, OPM does not waive the capacity to OPM, whether formal or OPM employees to do their regular sovereign immunity of the United informal. work; States. (4) Provided, that this definition does (e) Allowing such testimony or (d) This part provides guidance for not include persons who are no longer the internal operations of OPM. It does production of records would be in the employed by OPM and who are retained not create any right or benefits, best interest of OPM or the United or hired as expert witnesses or who substantive or procedural, that a party States; agree to testify about general matters may rely upon in any legal proceeding (f) The records or testimony can be available to the public, or matters with against the United States. obtained from other sources; which they had no specific involvement (g) The demand or request is unduly § 295.102 Applicability. or responsibility during their burdensome or otherwise inappropriate This part applies to demands and employment with OPM. under the applicable rules of discovery requests to employees of OPM in legal Records or official records and or the rules of procedure governing the proceedings in which OPM is not a information mean: case or matter in which the demand or named party, for factual or expert (1) All documents and materials request arose; testimony relating to official which are OPM agency records under (h) Disclosure would violate a statute, information or for production of official the Freedom of Information Act, 5 Executive order or regulation; records or information. However, it does U.S.C. 552; (i) Disclosure would reveal confidential, sensitive, or privileged not apply to: (2) All other documents and materials information, trade secrets or similar, (a) Demands upon or requests for a contained in OPM files; and current OPM employee to testify as to confidential commercial or financial (3) All other information or materials facts or events that are unrelated to his information, otherwise protected acquired by an OPM employee in the or her official duties or that are information, or would otherwise be performance of his or her official duties unrelated to the functions of OPM; inappropriate for release; (b) Demands upon or requests for a or because of his or her official status. (j) Disclosure would impede or former OPM employee to testify as to Request means any informal request, interfere with an ongoing law matters in which the former employee by whatever method, for the production enforcement investigation or was not directly or materially involved of records and information or for proceedings, or compromise while at OPM; testimony which has not been ordered constitutional rights; (c) Requests for the release of records by a court or other competent authority. (k) Disclosure would result in OPM under the Freedom of Information Act, Testimony means any written or oral appearing to favor one private litigant 5 U.S.C. 552, or the Privacy Act, 5 statements, including depositions, over another private litigant; U.S.C. 552(a); and answers to interrogatories, affidavits, (l) Disclosure relates to documents (d) Congressional or Government declarations, recorded interviews, and that were produced by another agency; Accountability Office (GAO) demands statements made by an individual in (m) A substantial Government interest and requests for testimony or records. connection with a legal proceeding. is implicated;

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(n) The demand or request is within require with each OPM employee for demand or request, and any conditions the authority of the party making it; time spent by the employee to prepare that the General Counsel may impose on (o) The demand improperly seeks to for testimony, in travel, and for the release of records or information, or compel an OPM employee to serve as an attendance in the legal proceeding. on the testimony of an OPM employee. expert witness for a private interest; (c) The Office of Personnel (p) The demand improperly seeks to Management reserves the right to § 295.207 Restrictions that apply to testimony. compel an OPM employee to testify as require additional information to to a matter of law; complete your request where (a) The General Counsel may impose (q) The demand or request is appropriate. conditions or restrictions on the sufficiently specific to be answered. (d) Your request should be submitted testimony of OPM employees including, at least 45 days before the date that for example, limiting the areas of § 295.203 Filing requirements for demands testimony or requiring the requester and or requests for documents or testimony. records or testimony is required. Requests submitted in less than 45 days other parties to the legal proceeding to You must comply with the following agree that the transcript of the testimony requirements whenever you issue before records or testimony is required must be accompanied by a written will be kept under seal or will only be demands or requests to an OPM used or made available in the particular employee for official records and explanation stating the reasons for the late request and the reasons for legal proceeding for which testimony information or testimony. was requested. The General Counsel (a) Your request must be in writing expedited processing. may also require a copy of the transcript and must be submitted to the General (e) Failure to cooperate in good faith of testimony at the requester’s expense. Counsel. If you serve a subpoena on to enable the General Counsel to make (b) OPM may offer the employee’s OPM or an OPM employee before an informed decision may serve as the written declaration in lieu of testimony. submitting a written request and basis for a determination not to comply (c) If authorized to testify pursuant to receiving a final determination, OPM with your request. this part, an employee may testify as to will oppose the subpoena on grounds § 295.204 Service of subpoenas or facts within his or her personal that your request was not submitted in request. knowledge, but, unless specifically accordance with this subpart. (b) You written request must contain Subpoenas or requests for official authorized to do so by the General the following information: records or information or testimony Counsel, the employee shall not: (1) The caption of the legal must be served on the General Counsel, (1) Disclose confidential or privileged proceeding, docket number, and name U.S. Office of Personnel Management, information; and address of the court or other 1900 E Street, NW., Washington, DC (2) Testify as to facts when the authority involved. 20415. General Counsel determines such (2) A copy of the complaint or testimony would not be in the best § 295.205 Processing demands or interest of OPM or the United States; or equivalent document setting forth the requests. assertions in the case and any other (3) For a current OPM employee, pleading or document necessary to (a) After service of a demand or testify as an expert or opinion witness show relevance; request to testify, the General Counsel with regard to any matter arising out of (3) A list of categories of records will review the demand or request and, the employee’s official duties or the sought, a detailed description of how in accordance with the provisions of functions of OPM unless testimony is the information sought is relevant to the this subpart, determine whether, or being given on behalf of the United issues in the legal proceeding, and a under what conditions, to authorize the States. specific description of the substance of employee to testify on matters relating to official information and/or produce § 295.208 Restrictions that apply to the testimony or records sought; released records. (4) A statement as to how the need for official records and information. the information outweighs the need to (b) OPM will process requests in the (a) The General Counsel may impose maintain any confidentiality of the order in which they are received. conditions or restrictions on the release information and outweighs the burden Absent exigent or unusual of official records and information, on OPM to produce the records or circumstances, OPM will respond including the requirement that parties to provide testimony; within 45 days from the date that we the proceeding obtain a protective order (5) A statement indicating that the receive it. The time for response will or execute a confidentiality agreement information sought is not available from depend upon the scope of the request. to limit access and any further another source, from other persons or (c) The General Counsel may grant a disclosure. The terms of the protective entities, or from the testimony of waiver of any procedure described by order or of a confidentiality agreement someone other than an OPM employee, this subpart where a waiver is must be acceptable to the General such as a retained expert; considered necessary to promote a Counsel. In cases where protective (6) If testimony is requested, the significant interest of OPM or the orders or confidentiality agreements intended use of the testimony, a general United States or for other good cause. have already been executed, OPM may summary of the desired testimony, and condition the release of official records § 295.206 Final determination. a showing that no document could be and information on an amendment to provided and used in lieu of testimony; The General Counsel makes the final the existing protective order or (7) A description of all prior determination on demands and requests confidentiality agreement. decisions, orders, or pending motions in to employees for production of official (b) If the General Counsel so the case that bear upon the relevance of records and information or testimony. determines, original OPM records may the requested records or testimony; All final determinations are within the be presented for examination in (8) The name, address, and telephone sole discretion of the General Counsel. response to a demand or request, but number of counsel to each party in the The General Counsel will notify the they are not to be presented as evidence case; and requester and the court or other or otherwise used in a manner by which (9) An estimate of the amount of time authority of the final determination, the they could lose their identify as official that the requester and other parties will reasons for the grant or denial of the OPM records, and they are not to be

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marked or altered. In lieu of the original location where the witness will appear. DEPARTMENT OF HOMELAND records, certified copies will be Such fees will include cost of time spent SECURITY presented for evidentiary purposes (see by the witness to prepare for testimony, 28 U.S.C. 1733). in travel, and for attendance in the legal 8 CFR Parts 100 and 212 § 295.209 Procedure when a decision is proceeding. [USCBP–2007–0084; CBP Dec. 08–41] not made prior to the time a response is (d) Payment of fees. You must pay RIN 1651–AA71 required. witness fees for current OPM employees If a response to a demand or request and any records certification fees by Issuance of a Visa and Authorization is required before the General Counsel submitting to the General Counsel a for Temporary Admission Into the can make the determination referred to check or money order for the United States for Certain in Sec.295.206, the General Counsel, appropriate amount made payable to the Nonimmigrant Aliens Infected With HIV when necessary, will provide the court Treasury of the United States. In the or other competent authority with a AGENCY: Customs and Border Protection; case of testimony by former OPM DHS. copy of this part, inform the court or employees, you must pay applicable other competent authority that the ACTION: Final rule. fees directly to the former employee in demand or request is being reviewed, accordance with 28 U.S.C. 1821 or other SUMMARY: The Department of Homeland and seek a stay of the demand or request Security (DHS) is amending its pending a final determination. applicable statutes. (e) Certification (authentication) of regulations to provide, on a limited and categorical basis, a more streamlined § 295.210 Procedure in the event of an copies of records. The U.S. Office of adverse ruling. process for nonimmigrant aliens Personnel Management may certify that infected with the human If the court or other competent records are true copies in order to authority fails to stay the demand, the immunodeficiency virus (HIV) to enter facilitate their use as evidence. If you employee upon whom the demand or the United States as visitors on seek certification, you must request request is made, unless otherwise temporary visas (for business or advised by the General Counsel, will certified copies from OPM at least 45 pleasure) for up to 30 days. appear at the stated time and place, days before the date they will be Nonimmigrant aliens who do not meet produce a copy of this part, state that needed. The request should be sent to the specific requirements of the rule or the employee has been advised by the General Counsel. You will be who do not wish to consent to the counsel not to provide the requested charged a certification fee of $15.00 for conditions imposed by this rule may testimony or produce documents, and each document certified. elect to seek admission under current respectfully decline to comply with the (f) Waiver or reduction of fees. The procedures and obtain a case-by-case demand, citing United States ex rel. General Counsel, in his or her sole determination of their eligibility for a Touhy v. Ragen, 340 U.S. 462 (1951). A discretion, may, upon a showing of waiver of the nonimmigrant visa written response may be offered to a reasonable cause, waive or reduce any requirements concerning inadmissibility request, or to a demand, if permitted by fees in connection with the testimony, for aliens who are infected with HIV. the court or other competent authority. production, or certification of records. DATES: This rule is effective on October 6, 2008. Subpart C—Schedule of Fees (g) De minimis fees. Fees will not be FOR FURTHER INFORMATION CONTACT: assessed if the total charge would be Michael D. Olszak, Customs and Border § 295.301 Fees. $10.00 or less. (a) Generally. The General Counsel Protection, Office of Field Operations, may condition the production of records Subpart D—Penalties (703) 261–8424. or appearance for testimony upon SUPPLEMENTARY INFORMATION: § 295.401 Penalties. advance payment of a reasonable Table of Contents estimate of the costs to OPM. (a) An employee who discloses I. Background and Purpose (b) Fees for records. Fees for official records or information or gives producing records will include fees for II. The Final Rule testimony relating to official III. Discussion of Comments searching, reviewing, and duplicating information, except as expressly A. Objections to the Inadmissibility of HIV- records, costs of attorney time spent in Positive Aliens reviewing the demand or request, and authorized by OPM or as ordered by a Federal court after OPM has had the B. Opposition to Admission of HIV- expenses generated by materials and Positive Aliens equipment used to search for, produce, opportunity to be heard, may face the C. Asylees and the Required Waiver of and copy the responsive information. penalties provided in 18 U.S.C. 641 and Adjustment of Status Costs for employee time will be other applicable laws. Additionally, D. Privacy Rights/Annotation of Visas calculated on the basis of the hourly pay former OPM employees are subject to E. Whether the Rule Is More Stringent the restrictions and penalties of 18 Than the Existing Process of the employee (including all pay, F. Sufficient Insurance and Medication allowance, and benefits). Fees for U.S.C. 207 and 216. G. Human Rights Concerns duplication will be the same as those (b) A current OPM employee who H. Public Health Reasons for the Rule charged by OPM in its Freedom of testifies or produces official records and I. Disparate Treatment Applied to Information Act regulations at 5 CFR information in violation of this part may Contagious Diseases J. The 30-Day Temporary Admission Limit part 294. be subject to disciplinary action. (c) Witness fees. Fees for attendance K. Extension of the Comment Period by a witness will include fees, expenses, [FR Doc. E8–23605 Filed 10–3–08; 8:45 am] L. Vagueness in Criteria and Medical Expertise of Consular Officers and allowances prescribed by the BILLING CODE 6325–48–P M. Negative Impact on United States court’s rules. If no such fees are Citizens prescribed, witness fees will be N. Focus on Illegal Aliens determined based upon the rule of the O. Aliens Who Are Unaware of Their HIV Federal district court closest to the Status

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P. Appeal of Decision The current process requires the criminal law violations (if any), and the Q. Future Bar Due to Noncompliance Department of State (DOS) to make nature of the reason for travel. See R. Effect on Naturalization and Aliens individual recommendations to DHS, Matter of Hranka, 16 I&N Dec. 491 (BIA From Visa Waiver Countries which must make a case-by-case 1978). These are general criteria S. Returning Permanent Residents IV. Statutory and Regulatory Reviews evaluation and decision to authorize the applicable to any application for issuance of the visa and the applicant’s authorization of a visa under INA I. Background and Purpose temporary admission. This process takes section 212(d)(3)(A), 8 U.S.C. Section 212 of the Immigration and significant time. In fiscal year (FY) 2007, 1182(d)(3)(A). Nationality Act (INA) makes ineligible the average processing time for DHS to DHS currently allows otherwise for admission into the United States any make decisions on such consular inadmissible aliens to apply for nonimmigrant alien ‘‘who is determined nonimmigrant recommendations (for admission on a case-by-case basis by (in accordance with regulations issuance of visas and authorization for employing a balancing test involving prescribed by the Secretary of Health temporary admission) was 18 days. This several factors that incorporates the and Human Services) to have a final rule streamlines this process and criteria required under Hranka communicable disease of public health will make visa authorization and (regardless of whether the authorization significance.’’ See INA section issuance available to many aliens who is applied for before a consular officer, 212(a)(1)(A)(i); 8 U.S.C. 1182(a)(1)(A)(i); are HIV-positive on the same day as the Secretary of State, or directly to 42 CFR 34.2.1 The Secretary of their interview with the consular officer. DHS). As discussed in the proposed rule, DHS applies these criteria to HIV- Homeland Security may authorize visa II. The Final Rule issuance and temporary admission of positive aliens seeking admission to the such nonimmigrants despite existing An alien who is HIV-positive is United States on a temporary basis by grounds of inadmissibility, subject to currently inadmissible to the United considering whether: (1) The danger to conditions prescribed by the Secretary. States under INA section 212(a)(1)(A)(i), the public health from admission of the See INA section 212(d)(3)(A); 8 U.S.C. 8 U.S.C. 1182(a)(1)(A)(i), as nonimmigrant alien is minimal; (2) the 1182(d)(3)(A). implemented through 42 CFR 34.2. As possibility of the transmission of the On December 1, 2006, the President more fully discussed in the proposed infection is minimal; and (3) any cost directed the Secretaries of State and rule, such aliens have been, and are will be incurred by any level of Homeland Security to initiate a currently, able to apply for admission to government agency in the United States rulemaking action to propose a the United States pursuant to INA (local, State, or Federal) without the categorical authorization to allow HIV- section 212(d)(3)(A), 8 U.S.C. prior consent of that agency. Consular positive nonimmigrant aliens to enter 1182(d)(3)(A), and applicable DHS officers must find (based on evidence the United States through a streamlined regulations (8 CFR 212.4(a)), which provided by the applicant that satisfies process. See White House, Fact Sheet: allow the Secretary of Homeland reviewing officials) that the first two World AIDS Day 2006, (December 1, Security to authorize issuance of a visa factors are no more than minimal and 2006), http://www.whitehouse.gov/ and temporary admission despite that there will not be a cost to an agency news/releases. On November 6, 2007, certain grounds for inadmissibility. 72 absent prior consent. DHS published a notice of proposed FR 62593, 62594–5 (Nov. 6, 2007). This final rule incorporates these rulemaking proposing a streamlined These existing processes require criteria, as well as additional factors process for HIV-infected nonimmigrant specific, individualized action by DHS applied under current policy that were aliens to more easily enter the United upon submission of eligibility developed in a series of instructions States through a streamlined process. information by the alien (the same kind from the former Immigration and See 72 FR 62593. of information that is required under the Naturalization Service (INS) and the This final rule adopts the proposed proposed regulations) that must be Department of Justice (DOJ). amendments to the regulations and reviewed, evaluated, and ruled upon on Nonimmigrant aliens who are HIV- simplifies the process for authorization a case-by-case basis. In contrast, the positive who do not meet the specific of admission with some modifications process established in this final rule circumstances of these clarifying in light of the public comments would authorize a consular officer or instructions or who do not wish to received. Under the final rule, DHS will the Secretary of State to categorically consent to the conditions imposed by allow aliens who are HIV-positive to grant a nonimmigrant visa and authorize this rule may still elect a case-by-case enter the United States as visitors (for the applicant to apply for admission determination of their eligibility for business or pleasure) for a temporary into the United States, notwithstanding issuance of nonimmigrant visas and period not to exceed 30 days, without an applicant’s inadmissibility due to admission. being required to seek such admission HIV infection, if the applicant meets This final rule provides an additional under the current, more complex applicable requirements and conditions, avenue for temporary admission of HIV- (individualized, case-by-case) process without the additional step of seeking positive nonimmigrant aliens while provided under the current DHS review and decision by DHS prior to the minimizing costs to the government and procedures. granting of the nonimmigrant visa. This the risk to public health. These goals are categorical authorization provides a accomplished by setting requirements 1 At the time the proposed rule was published, more streamlined and rapid process for and conditions that govern an alien’s INA section 212a(1)(A)(i) specifically listed the obtaining temporary admission under admission, affect certain aspects of his etiologic agent that causes acquired immune INA section 212(d)(3)(A)(i), 8 U.S.C. or her activities while in the United deficiency syndrome. That language was deleted by 1182(d)(3)(A)(i). States (e.g., using proper medication the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, Under current criteria for authorizing when medically appropriate, avoiding and Malaria Reauthorization Act of 2008, Public admission of otherwise inadmissible behavior that can transmit the Law 110–293, section 305, 122 Stat. 2918 (July 30, nonimmigrant aliens generally, DHS infection), and ensure his or her 2008). As Discussed below, however, the must take into consideration the risk of departure after a short stay. This final Department of Health and Human Services (HHS) regulatory text implementing the deleted harm to society if the applicant is rule facilitates the temporary admission prohibition continues to exist at the time of admitted into the United States, the to the United States of HIV-positive promulgation of this final rule. seriousness of any immigration law or nonimmigrant aliens.

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This final rule is consistent with status under the asylum statute and commenter suggested that the United Congress’ humanitarian purpose in regulations. However, nothing within States mirror ’s approach to enacting the limited waiver of INA the rule exempts the alien from the admitting HIV-positive aliens (described section 212(d)(3)(A), 8 U.S.C. requirement that the alien establish his only as less restrictive). Several 1182(d)(3)(A), and complies with the or her eligibility to adjust under INA commenters stated that international statute regarding aliens inadmissible section 209, 8 U.S.C. 1159. Specifically, AIDS conferences are not held in the due to health reasons by prescribing nothing within this rule waives any of United States as a result of the ‘‘conditions * * * to control and the requirements for adjustment of inadmissibility of HIV-positive aliens. regulate the admission and return of status including, but not limited to, the Some commenters objected to the inadmissible aliens applying for requirements in 8 CFR part 209. governing statute’s inadmissibility temporary admission.’’ INA section Additionally, the short duration provision that imposes the travel and 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). raised a number of questions about immigration ban on HIV-positive aliens Thus, under the final rule, an HIV- extensions. After further consideration, and to the proposed rule which, they positive applicant for a nonimmigrant DHS has decided to permit an claimed, creates the impression that the visitor visa would be required to satisfy additional period or periods of alleged discriminatory statute can be criteria designed to ensure that the risk satisfactory departure in exigent mitigated by the proposed process for to the public health is minimized to the circumstances under a provision temporary admission of these aliens. greatest reasonable extent and that no modeled after the Visa Waiver Program. Some comments called upon the cost will be imposed on any level of See 8 CFR 212.4(f)(5) of this final rule. Secretary of Homeland Security and the government in the United States (local, Some commenters questioned President to withhold publication of a State, or Federal). The short duration of whether aliens who receive this visa final rule and support repeal of the admission under the amended authorization will receive visas that statute that imposes this inadmissibility. regulation, and the various conditions identify them as HIV-positive. The visa Repeal of the statutory inadmissibility designed to control the alien’s will not be annotated in a manner that provision (the admission ban) temporary stay and ensure his or her would allow the public to identify the applicable to HIV-positive aliens is return (departure from the United alien as HIV-positive. within the province of Congress as a States), minimize the risk of disease This final rule does not create the matter of law, and the President recently transmission in the United States, as provision for temporary admission of signed legislation that removes from well as the risk of increased burden on HIV-positive aliens; such a provision applicable law the language requiring our public health resources. HIV- exists in statute and regulation. This that HIV must be included in the list of positive aliens not meeting the criteria rule merely provides an alternative, communicable diseases of public health under the amended regulation would quicker process for obtaining admission significance. See Public Law 110–293, still be able to seek individualized (case- to the United States under INA section 122 Stat. 2918 (July 30, 2008). The INA, by-case) consideration for admission 212(d)(3)(A)(i) 8 U.S.C. as amended, makes inadmissible to the pursuant to INA section 212(d)(3)(A), 8 1182(d)(3)(A)(i).2 United States any alien ‘‘who is U.S.C. 1182(d)(3)(A), under current DHS determined (in accordance with policy. See 8 CFR 212.4(a) or (b). III. Discussion of Comments regulations prescribed by the Secretary The final rule includes specific The proposed rule solicited public of Health and Human Services) to have requirements (based in large part on the comments over a 30-day comment a communicable disease of public existing criteria) discussed in the period. DHS received over 700 health significance * * *’’ INA section proposed rule. 72 FR at 62595–6. After comments. 212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i). consultation with the HHS’ Centers for Although Public Law 110–293 Disease Control and Prevention, and A. Objections to the Inadmissibility of eliminates the requirement that HIV be National Institutes of Health, and HIV-Positive Aliens included in the list of communicable careful consideration of the comments By far the most numerous of all the diseases of public health significance (as received from the public on the comments are those objecting to the defined at 42 CFR 34.2), HIV remains on proposed rule, DHS has determined not inadmissibility of HIV-positive aliens. that list until HHS amends its to change the criteria relating to medical Many of these commenters objected to regulation. See 42 CFR 34.2. HHS has etiology, personal understanding, the proposed rule’s process and called indicated its intention to do so by limited potential health danger, for repeal of the governing statute’s ban rulemaking; pending such action, any continuity of health care, temporary on HIV-positive aliens for various alien who is HIV-positive is still admission, general enforcement, and reasons, including the following: It is inadmissible to the United States. general duration. DHS has made several unnecessary and ineffective to protect This regulation will permit short-term modifications in light of the public the American public; it is admission while HHS completes a comments, as discussed more fully discriminatory; it is unconstitutional; it rulemaking to remove HIV from the list below. is outdated and does not reflect current of communicable diseases of public Several commenters questioned medical science. Others among these health significance. 42 CFR 34.2. whether it was appropriate to impose a commenters expressed approval of the B. Opposition to Admission of HIV- waiver of adjustment of status pursuant proposed process to streamline Positive Aliens to a grant of asylum under INA section temporary admission for these aliens as 208, 8 U.S.C. 1158. After further a first step but also stated that the rule A few commenters expressed consideration, DHS agrees that asylees does not go far enough to make it easier objection to admission of HIV-positive have continued eligibility for permanent for these aliens to travel to the United aliens under the discretionary authority resident status; therefore, under the States. These latter commenters called provision of the governing statute and final rule, an alien who has been also for the repeal of the statute’s HIV urged its repeal. granted asylum after having been admission ban as a next step. One In the statute that imposed the ban on admitted pursuant to the proposed admission of aliens with communicable categorical authorization will have 2 The final rule adopts, without change, the diseases of public health significance, continued eligibility to apply to adjust technical amendments to 8 CFR 212.4(e). Congress also provided for the

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discretionary exercise of authority to entering the United States under the provisions serve to protect disclosures admit these aliens (among others) for a proposed categorical authorization, an made as part of an application for a temporary period under certain application for a change of nonimmigrant visa by an alien who is circumstances. INA section nonimmigrant status or extension of HIV-positive. Moreover, under the final 212(d)(3)(A), 8 U.S.C 1182(d)(3)(A). stay. rule’s categorical authorization process, Congress restricted the availability of DHS agrees that asylees obtain a unlike the existing process, there is no this discretionary authority by special status under INA section 208, 8 need for DHS to make case-by-case precluding its application to aliens who U.S.C. 1158, that, where possible, determinations on individual are inadmissible due to several of the should be recognized consistently. recommendations from the DOS. DHS security and related grounds; Congress Therefore, DHS has modified the will necessarily create the same records imposed no such restriction on aliens adjustment of status waiver in the final relative to aliens receiving authorization inadmissible on other grounds, rule to clarify that applicants for the for visa issuance under the process (e.g., including health-related reasons. Also, categorical authorization will not be electronic records), as DHS normally Congress has made available a waiver of required to waive the opportunity to creates for all aliens with visas who gain inadmissibility for immigrants seeking apply for adjustment of status should temporary admission as nonimmigrants. admission to the United States who are they be granted asylum after entering DHS will not maintain a separate inadmissible due to a communicable the United States via the categorical database of aliens who are admitted disease listed by HHS. INA sections process. The final rule will retain the under the categorical authorization 209(c) and 212(g), 8 U.S.C. 1159(c) and required waivers relating to change of process. 1182(g). nonimmigrant status, extension of stay, DOS scrupulously adheres to the This rule does not create a new and adjustment of status other than statutory requirement regarding the regulatory provision allowing HIV- through the asylum process. Any alien confidentiality of information submitted positive aliens to enter the United States who is unwilling to agree to these during the consular interview process. temporarily; the rule merely provides an waivers may apply for temporary Record information on applicants will alternative process in the regulations to admission under the existing process of be maintained by the DOS in streamline issuance of nonimmigrant 8 CFR 212.4(a) which is not conditioned accordance with confidentiality and visas to, and the temporary admission on the making of these waivers. security requirements, as well as any of, HIV-positive aliens under existing However, this waiver is for admission as DOS System of Records Notices and statutory authority within the a nonimmigrant. These visas are not Privacy Impact Assessments relative to Secretary’s discretion. While the available for aliens who intend to stay any applicable systems covering this existing process provides for case-by- permanently in the United States as data collection. case authorization (by DHS) for issuing immigrants. Aliens seeking permanent E. Whether the Rule Is More Stringent visas and authorizing temporary resident status must apply for Than the Existing Process admission, the authorization process immigrant visas and fulfill the provided in this rule is categorical, i.e., requirement for immigrants set out in Many commenters contended that the authorization is granted through this the INA. requirements and conditions of the rulemaking to any alien applicant who proposed process make it more stringent D. Privacy Rights/Annotation of Visas meets the requirements and conditions. than the existing process. These The Secretary may exercise his Many commenters expressed concern commenters therefore questioned that it discretion by rulemaking rather than on about the privacy of applicants for the is a ‘‘streamlined’’ process. Some a case-by-case basis and is doing so proposed categorical authorization. recommended simplifying the process. here. Lopez v. Davis, 531 U.S. 230, 243– Primarily, the concern relates to One commenter suggested that DHS not 44 (2001) (quoting American Hosp. whether the alien’s visa (included make any change to the regulations, Ass’n v. NLRB, 499 U.S. 606, 612 (1999)) within his or her passport) would be leaving the existing case-by-case process (emphasis added); Yang v. INS, 79 F.3d annotated to indicate admission under as the sole option. 932, 936 (9th Cir.), cert. denied, 519 the rule’s categorical authorization The characterization of the categorical U.S. 824 (1996). process. These commenters emphasized authorization process under the The final rule contains several the stigma attached to HIV status and proposed rule and this final rule as requirements to minimize to the greatest the risk that annotation could subject ‘‘streamlined’’ refers to the fact that the reasonable extent public health risks these aliens to discrimination. Some of process, unlike the existing process, and risk of cost to any agency of any these commenters expressed privacy does not require the alien’s application level of government in the United concerns relative to a DHS database for for a visa and temporary admission to be States. The final rule also imposes HIV-positive aliens. submitted to DHS with the consular conditions to control and regulate the Some commenters questioned officer’s recommendation. Under the admission and return (to their home whether aliens who receive this visa existing process, DHS must make a case- countries) of beneficiaries of the authorization will receive visas that by-case evaluation and decision to categorical authorization. identify them as HIV-positive. The visa authorize the issuance of the visa and will not be annotated in a manner that the applicant’s temporary admission. C. Asylees and the Required Waiver of would allow the public to identify the This step in the process necessarily Adjustment of Status alien as HIV-positive. takes time. In FY 2007, the average DHS Several commenters objected to the Section 222(f) of the INA, 8 U.S.C. processing time for all consular requirement of the proposed rule that an 1202(f), provides that DOS records nonimmigrant recommendations (for applicant must waive his right to file for pertaining to visa issuance or refusal are issuance of visas and authorization for an adjustment of status to that of lawful confidential, and shall be used only for temporary admission) was 18 days. The permanent resident if he applied for and the formulation, amendment, categorical authorization process under was granted asylum in the United administration, or enforcement of the this final rule does not require that step, States. Some commenters objected also immigration and other laws of the and, therefore, the rule is less to the requirement that an applicant United States, with exceptions not cumbersome and permits consular must waive his right to file, after relevant here. These confidentiality officers to issue visas on the same day

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the alien applies for the visa in many asked about unanticipated expenses, State or Federal agencies and, as a cases. The process is, therefore, more and objected to requiring assets for these matter of policy, do not make provisions streamlined. expenses. Lastly, several commenters for collecting fees from patients DHS is authorizing issuance of visas suggested that this rule is racist because accepted for treatment. If an applicant and temporary admission on a HIV-positive populations from establishes, through documentation categorical basis only to those aliens developing countries are less likely to provided by a medical facility, that the who meet the rule’s specific have access to medication and medical facility has agreed to provide the requirements and conditions. An alien insurance. applicant services without may choose to apply for temporary The requirement to demonstrate reimbursement, or that its free services admission under the existing case-by- availability of assets, such as through are available to the applicant or to case decision process if he or she proof of insurance, is a reasonable similarly situated persons (such as wishes. condition meant to ensure that the nonimmigrant aliens) without specific The existing process also imposes applicant’s short-term visit will not mention of the applicant, the applicant conditions that an applicant must meet cause a financial burden to the is eligible for visa issuance and to gain temporary admission, many of American public and that there will be temporary admission even if the facility which are the same or similar to the no cost to any agency of the United is supported by public funds. conditions of this final rule’s process. States without that agency’s prior An applicant may have sufficient The conditions of the existing process consent. An alien who is likely to personal assets to cover anticipated have been developed through become a public charge is inadmissible treatment. The assets must be available adjudication (see Matter of Hranka, 16 to the United States under INA section in the United States within the time I&N Dec. 491 (BIA 1978)) and several 212(a)(4), 8 U.S.C. 1182(a)(4). The frame required for payment by the instructions issued by the former INS. totality of circumstances must be medical facility. Assets can be With this final rule, DHS is considered in determining whether or established by commonly available consolidating into one transparent not a person is likely to become a public documentation. Sponsors (individuals source, the conditions and instructions charge. The requirement that an alien or organizations) may offer to cover applicable to HIV-positive aliens who possess an adequate supply of potential medical expenses. Such wish to apply for categorical medication (if medically appropriate), sources should be able to provide authorization for admission to the or have access to such a supply in the documentation of intent and capability United States; the same conditions that United States, would reduce this risk. to provide that coverage. Finally, short- have historically governed discretionary DHS is aware that prescribed term medical trip insurance may be temporary admission under INA section medication is not always necessary; the available to cover medical costs that the 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). The treatment protocol is determined by the applicant may incur during the process implemented under this final patient’s medical service provider. As relatively short (30-day) period of rule retains the same evidentiary with other medical determinations for admission. In every instance above, the requirements as the existing process visa purposes, the appropriateness of applicant must, and should be able to, while providing an alternative to the the alien’s treatment protocol is subject satisfy the consular officer that assets case-by-case review by DHS that is to review by DOS’ panel physicians. will be available within the United required under the existing regulation. The requirement that the applicant not States to cover anticipated expenses. The rule, however, adds restrictions on currently be exhibiting symptoms of an Again, an alien may seek admission application for extension of stay, change active, contagious infection with AIDS under the existing process if he is of nonimmigrant status, and adjustment is also relevant to this determination. unwilling or unable to meet the of status to that of permanent resident Another consideration in deciding conditions of this final rule’s process. (other than through asylum). These whether to exercise discretion favorably The existing process, through the restrictions are necessary to control the for an applicant for categorical consular officer interview and DHS admission and return of these aliens authorization is whether any cost will review, involves many similar since DHS is not performing a case-by- be incurred by any agency of the United requirements relating to the applicant’s case review. States (including State and local health and ability to cover expenses. government) without that agency’s prior F. Sufficient Insurance and Medication Regarding unanticipated medical written consent. Thus, applicants who expenses, the likelihood of such Many commenters objected to the do not have sufficient assets to cover the expenses is judged by the totality of requirement in the proposed rule (8 CFR cost of their stay will not benefit from circumstances in each applicant’s case. 212.4(f)(2)(v)), that an alien admitted this new provision. Any written offer by Offers of support from individuals and under the proposed process for a United States agency to provide organizations, as well as personal assets, categorical authorization have medication and/or funding that is will be given consideration. possession of or access to an adequate adequate for the applicant’s travel will DHS and DOS will make every effort supply of antiretroviral drugs (if be considered a favorable factor. Any to ensure that these regulations are medically appropriate) for the length of credible offer from any other financially applied consistently without regard to anticipated stay, and sufficient assets, stable source to provide medication inappropriate considerations, such as an such as medical insurance, to cover any and/or funding that is adequate for the applicant’s race. medical care that may be necessary applicant’s travel will also be while in the United States. Some of considered a favorable factor. In G. Human Rights Concerns these commenters mentioned that an addition, the nature and duration of the Some commenters pointed out that alien may not have insurance or enough applicant’s travel plan and his or her the United States is one of only a few money to cover a medical event, some present health are factors for countries in the world that restricts referring particularly to aliens from poor consideration. travel for those who are HIV-positive. countries. Others questioned how an An applicant may establish that These commenters contended that this alien could establish adequate assets, resources are available to cover medical is a violation of basic human rights (to some referring again to aliens from poor expenses through several means. First, travel) and that DHS and HHS should or third world countries. Still others some medical facilities are operated by remove HIV infection from the list of

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contagious diseases of public health that disqualifies a carrier of the disease two applications for admission during significance. from admission to the United States the 12-month period of the visa validity. As discussed in the proposed rule, (subject to exception), DHS utilized a This reasonable condition of visa historically, Congress clearly expressed lengthy detailed process for determining issuance and admission to the United its intent that HIV infection be listed as whether to grant temporary admission. States applies to the majority of a communicable disease of public Accordingly, DHS proposed an nonimmigrants traveling to the United health significance in enacting a statute alternative, streamlined process for HIV- States (regardless of particular to that effect. Because Public Law 110– positive aliens to be granted temporary nonimmigrant status). For those who 293 eliminated a mandatory listing from admission into the United States anticipate traveling in other the INA, HHS has indicated that it is pending completion of HHS rulemaking. nonimmigrant categories or for longer beginning the process of removing HIV The HHS list does not cover all than 30 days, the processes described in from the list of communicable diseases communicable diseases, but HHS is 8 CFR 212.4(a) and (b) remain available. of public health significance by charged with the responsibility and has Moreover, many of the admissions rulemaking. However, while that the expertise to make distinctions. Some under the existing process for HIV- process is developing, through diseases are on the list, including some positive aliens have been more narrowly rulemaking, DHS is providing a STDs (HIV, gonorrhea), while others are limited to periods corresponding to a streamlined process for these aliens to not. That a given disease is placed on particular event in the United States, be granted temporary admission into the the list while others are not is not, by such as a seminar or convention. United States as an immediate interim itself, evidence of discrimination, nor Typically, these admissions have been option, pending HHS’s plan to remove does it show that the disease is for less than 30 days. Admission under HIV from the list of communicable wrongfully on the list. Other non-STDs the existing discretionary authorization diseases of public significance. covered include leprosy (infectious) and process also has been more restrictive tuberculosis (active). Other STDs for nonimmigrant aliens seeking to enter H. Public Health Reasons for the Rule covered include chancroid, granuloma the United States for general tourism Several commenters contended that inguinale, lymphogranuloma vereneum, purposes. In these respects, the final the proposed process, with its and syphilis (infectious stage). As HIV rule’s process is more advantageous to requirements and conditions, is not remains on the HHS list pending further HIV-positive aliens seeking to enter the supported by medical science, i.e., that action, publishing a final rule to put United States. the need for the limitations in admitting into place a streamlined process for However, DHS recognizes that HIV-positive aliens is not based on temporary admission is appropriate. emergencies do occur and, accordingly, sound public health reasons. has added to this final rule a provision The final rule’s process was J. The 30-day Temporary Admission Limit for authorizing an additional period or developed in consultation with HHS’s periods of stay, as appropriate and as Centers for Disease Control and A few commenters objected to the 30- deemed necessary by appropriate DHS Prevention and National Institutes of day limit imposed by the rule for HIV- officials, where an alien admitted under Health. DHS relied on those positive aliens entering the United the final rule’s process experiences knowledgeable agencies to provide States under the rule’s categorical exigent circumstances that prevent his input based on current science. HHS authorization process. These or her departure from the United States. continues to list HIV as a communicable commenters contended that this period This provision is modeled after the disease of public health significance and is needlessly short. ‘‘satisfactory departure’’ provision DHS must continue to apply the DHS has previously granted blanket under the Visa Waiver Program statutory provisions regarding authorizations under INA section regulations. 8 CFR 217.3(a); see 8 CFR inadmissibility and discretionary 212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), for 212.4(f)(5) as adopted in this final rule. authority for temporary admission in a specific, limited purposes, such as to manner appropriate to safeguard the permit HIV-positive aliens to attend K. Extension of the Comment Period public from what is still recognized particular events, including the Salt A few commenters requested under the current statute and regulation Lake City , the United additional time to file comments on the as a disease of public health Nations General Assembly Special proposed rule. significance. Session on HIV/AIDS in 2001, various The comment period was open for 30 Universal Fellowship of Metropolitan days, and over 700 persons submitted I. Disparate Treatment Applied to Community Churches events, and the comments. The comments submitted Contagious Diseases 2006 Games in . Since 1990, come from a wide variety of persons and A few commenters contended that the aliens who are HIV-positive have rarely appear to cover a wide breadth of statutes and regulations pertaining to been given blanket authorizations for an relevant issues and objections. DHS inadmissibility, discretionary admission of greater than 10 days. This concludes that there was adequate authorization, and process that limit new process will allow admissions for opportunity for public participation and admission to the United States treat HIV up to 30 days, which is in line with 30- does not see the need to extend the infection differently than other day admissions often authorized under comment period. communicable diseases, including the individualized, case-by-case sexually transmitted diseases (STDs). process. L. Vagueness in Criteria and Medical These commenters questioned the The final rule describes a new Expertise of Consular Officers rationale for this disparate treatment (alternative) option for nonimmigrant One commenter stated that the criteria and contended that the statute aliens with HIV who wish to enter the of the rule’s categorical authorization discriminated against aliens who are United States in B–1/B–2 status for process that must be met are vague and HIV-positive. periods of time that do not exceed 30 cannot be administered consistently When the statute treated HIV days (but a provision for authorization because consular officers are not able to infection (whether or not it is of satisfactory departure in exigent assess the medical conditions the considered a STD) as a communicable circumstances is included in this final proposal vaguely puts forward. disease of public health significance rule). Moreover, the final rule authorizes Similarly, four commenters suggested

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that consular officers are not trained to Q. Future Bar Due to Noncompliance permanent resident alien is subject to handle medical issues. One commenter contended that an any applicable ground of DHS disagrees. DOS has extensive alien who fails to comply with a inadmissibility. experience processing applications condition of admission under the final IV. Statutory and Regulatory Reviews under the existing HIV authorization rule’s process should not be barred from process. In order to ensure consistent seeking authorization under the process A. Administrative Procedure Act application of the criteria, DOS has in the future. The Administrative Procedure Act, 5 issued specific instructions to consular DHS disagrees and believes that this U.S.C. 553(d), generally requires that a officers regarding how to evaluate is a reasonable condition to ensure that final rule becomes effective no less than applications for admission to the United nonimmigrant aliens comply with the 30 days from the date of publication. States, including medical issues such as conditions for admission under this Rules that grant or recognize an those in question. In addition, consular rule’s process. In addition, an alien who exception or relieve a restriction, officers may consult with panel is ineligible for authorization under however, can be made effective physicians to assist with medical issues these regulations because he or she has immediately upon publication. This when necessary. previously failed to comply with a rule does not add new requirements or M. Negative Impact on United States condition for admission, or for other restrictions; instead it codifies existing Citizens reasons, can still seek authorization criteria for nonimmigrant aliens infected under the existing case-by-case process. with HIV to obtain a short-term visa One commenter stated that the This is similar to the restriction of authorization. This final rule also proposal would have a negative effect previous violators of the Visa Waiver removes certain procedural obstacles in on United States citizens. Program (VWP) from being able to use the process and provides a more DHS disagrees with this comment. the VWP program again for admission. streamlined procedure for HIV-positive This rule only affects nonimmigrant See INA section 217(a)(7), 8 U.S.C. aliens to seek admission into the United alien visitors to the United States and 1187(a)(7). In both of these situations, States. DHS therefore believes that this has no direct effect on United States the violator may still apply for a visa; rule relieves current restrictions on the citizens. he or she is only barred from using the admissibility to the United States of streamlined process of this regulation or HIV-positive nonimmigrant aliens. N. Focus on Illegal Aliens VWP, respectively. Accordingly, this final rule will become effective immediately upon publication One commenter suggested that DHS R. Effect on Naturalization and Aliens in the Federal Register. should focus its resources on the illegal from Visa Waiver Countries alien population in the United States. One commenter expressed concern B. Regulatory Flexibility Act DHS is committed to enforcing the regarding the effect of the proposed laws within its purview, including those DHS has reviewed the final rule in regulations on a permanent resident’s laws that relate to illegal immigration accordance with the Regulatory ability to become a United States and those laws that relate to public Flexibility Act (5 U.S.C. 601 et seq.), citizen. Several commenters expressed health concerns. and, by approving it, certifies that this concern regarding the effect of the rule will not have a significant O. Aliens Who Are Unaware of Their proposed regulations on travelers from economic impact on a substantial HIV Status visa waiver countries. number of small entities. The individual The rule’s process does not affect the non-immigrant aliens to whom this rule One commenter suggested that DHS eligibility of a permanent resident to applies are not small entities as that should focus its resources on those qualify for naturalization. In addition, term is defined in 5 U.S.C. 601(6). Thus, aliens seeking admission to the United these regulations do not change the RFA does not apply. States who are not yet aware that they eligibility for aliens seeking admission are HIV-positive. Another commenter to the United States under the Visa C. Unfunded Mandates Reform Act of suggested that DHS focus on education Waiver Program. 1995 and the prevention of AIDS. The final rule will not result in the S. Returning Permanent Residents In order to determine whether expenditure by State, local, and tribal undiagnosed nonimmigrant aliens are One commenter objected that an HIV- governments, in the aggregate, or by the HIV-positive, a medical examination positive alien with permanent resident private sector, of $100 million or more would be required for all nonimmigrant status could never travel outside the in any one year, and it will not visa applicants. DHS is not proposing to United States because he would not be significantly or uniquely affect small require such an examination as part of allowed to return. governments. Therefore, no actions were this rulemaking. However, the U.S. An alien with status as a permanent deemed necessary under the provisions government is committed to preventing resident of the United States who travels of the Unfunded Mandates Reform Act the global spread of AIDS through temporarily outside the United States of 1995. education and other measures. and returns is not considered to be D. Executive Order 12866 P. Appeal of Decision applying for admission for immigration purposes unless one of the six This rule has been determined to be One commenter objected because the conditions delineated in INA section a significant regulatory action under proposed regulation does not 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), Executive Order 12866, section 3(f), specifically provide for appeal of a apply. Therefore, absent any of one of Regulatory Planning and Review. consular officer’s decision. If an alien is the six conditions, a permanent resident Accordingly, this regulation has been denied a visa and temporary admission alien who travels outside the United submitted to the Office of Management under the rule’s process, he or she may States will not be subject to any of the and Budget for review. There are no seek admission under the existing grounds of inadmissibility found at INA new costs to the public associated with process for a case-by-case determination section 212(a), 8 U.S.C. 1182(a). If one this rule. This rule does not create any of eligibility. of the six conditions applies, the new or additional requirements.

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E. Executive Order 13132 Authority: 8 U.S.C. 1101 and note, 1102, (iv) The applicant’s admission poses a 1103, 1182 and note, 1184, 1187, 1223, 1225, The final rule will not have minimal risk of danger to the public 1226, 1227; 8 U.S.C. 1185 note (section 7209 health in the United States and poses a substantial direct effects on the States, of Pub. L. 108–458). on the relationship between the national minimal risk of danger of transmission government and the States, or on the ■ 4. Section 212.4 is amended by: of the infection to any other person in distribution of power and ■ a. In paragraph (e), removing the the United States; (v) The applicant will have in his or responsibilities among the various citation ‘‘212(a)(1)’’ the first time it her possession, or will have access to, levels of government. Therefore, in appears and replacing it with as medically appropriate, an adequate accordance with section 6 of Executive ‘‘212(a)(1)(A)(iii)’’, and removing the supply of antiretroviral drugs for the Order 13132, this rule does not have citation ‘‘212(a)(1) of the Act’’ and anticipated stay in the United States and sufficient federalism implications to replacing it with ‘‘212(a)(1)(A)(iii)(I) or possesses sufficient assets, such as warrant the preparation of a federalism (II) of the Act due to a mental disorder insurance that is accepted in the United summary impact statement. and associated threatening or harmful behavior’’; States, to cover any medical care that F. Executive Order 12988 ■ b. Redesignating paragraphs (f), (g), the applicant may require in the event The final rule meets the applicable (h), and (i) as paragraphs (g), (h), (i), and of illness at any time while in the standards set forth in sections 3(a) and (j) and adding new paragraph (f) to read United States; (vi) The applicant’s admission will 3(b)(2) of Executive Order 12988, Civil as follows: Justice Reform. not create any cost to the United States, § 212.4 Applications for the exercise of or a state or local government, or any G. Paperwork Reduction Act discretion under section 212(d)(1) and agency thereof, without the prior Under the Paperwork Reduction Act 212(d)(3). written consent of the agency; of 1995, Public Law 104–13, all * * * * * (vii) The applicant is seeking Departments are required to submit to (f) Inadmissibility under section admission solely for activities that are OMB, for review and approval, any 212(a)(1) for aliens inadmissible due to consistent with the B–1 (business reporting and recordkeeping HIV. visitor) or B–2 (visitor for pleasure) requirements inherent in a rule. This (1) General. Pursuant to the authority nonimmigrant classification; (viii) The applicant is aware that no rule does not impose any new reporting in section 212(d)(3)(A)(i) of the Act, any single admission to the United States or recordkeeping requirements under alien who is inadmissible under section will be for a period that exceeds 30 days the Paperwork Reduction Act. 212(a)(1)(A)(i) of the Act due to infection with the etiologic agent for (subject to paragraph (f)(5) of this List of Subjects acquired immune deficiency syndrome section); (ix) The applicant is otherwise 8 CFR Part 100 (HIV infection) may be issued a B–1 (business visitor) or B–2 (visitor for admissible to the United States and no Organization and functions pleasure) nonimmigrant visa by a other ground of inadmissibility applies; (Government agencies). (x) The applicant is aware that he or consular officer or the Secretary of State, she cannot be admitted under section 8 CFR Part 212 and be authorized for temporary 217 of the Act (Visa Waiver Program); Administrative practice and admission into the United States for a (xi) The applicant is aware that any procedure, Aliens, Immigration, period not to exceed 30 days, subject to failure to comply with any condition of Passports and visas. authorization of an additional period or admission set forth under this paragraph periods under paragraph (f)(5) of this (f) will thereafter make him or her Amendments to the Regulations section, provided that the authorization ineligible for authorization under this is granted in accordance with ■ For the reasons stated in the preamble, paragraph; and paragraphs (f)(2) through (f)(7) of this parts 100 and 212 of chapter I of title 8 (xii) The applicant, for the purpose of section. Application under this of the Code of Federal Regulations (8 admission pursuant to authorization paragraph (f) may not be combined with CFR parts 100 and 212) are amended as under this paragraph (f), waives any any other waiver of inadmissibility. follows: opportunity to apply for an extension of (2) Conditions. An alien who is HIV- nonimmigrant stay (except as provided PART 100—STATEMENT OF positive who applies for a in paragraph (f)(5) of this section), a ORGANIZATION nonimmigrant visa before a consular change of nonimmigrant status, or officer may be issued a B–1 (business ■ adjustment of status to that of 1. The general authority citation for visitor) or B–2 (visitor for pleasure) permanent resident. part 100 continues to read as follows: nonimmigrant visa and admitted to the (A) Nothing in this paragraph (f) Authority: 8 U.S.C. 1103; 8 CFR part 2. United States for a period not to exceed precludes an alien admitted under this 30 days, provided that the applicant paragraph (f) from applying for asylum § 100.7 [Amended] establishes that: pursuant to section 208 of the Act. (i) The applicant has tested positive ■ 2. Section 100.7 is amended by (B) Any alien admitted under this for HIV; removing the citation ‘‘212.4(g)’’ in the paragraph (f) who applies for (ii) The applicant is not currently list of parts and sections and replacing adjustment of status under section 209 exhibiting symptoms indicative of an it with the citation ‘‘212.4(h)’’. of the Act after being granted asylum active, contagious infection associated must establish his or her eligibility to PART 212—DOCUMENTARY with acquired immune deficiency adjust status under all applicable REQUIREMENTS; NONIMMIGRANTS; syndrome; provisions of the Act and 8 CFR part WAIVERS; ADMISSION OF CERTAIN (iii) The applicant is aware of, has 209. Any applicable ground of INADMISSIBLE ALIENS; PAROLE been counseled on, and understands the inadmissibility must be waived by nature, severity, and the approval of an appropriate waiver(s) ■ 3. The general authority citation for communicability of his or her medical under section 209(c) of the Act and 8 part 212 continues to read as follows: condition; CFR 209.2(b).

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(C) Nothing within this paragraph (f) visa under this paragraph (f), the Labor Statistics—All Urban Consumers constitutes a waiver of inadmissibility applicant may elect to utilize the tables, in which the period 1982–84 was under section 209 of the Act or 8 CFR process described in either paragraph (a) equal to 100, to get the CPI values. part 209. or (b) of this section, as applicable. The calculations performed for the (3) Nonimmigrant visa. A 2008 adjustment consisted of four nonimmigrant visa issued to the Michael Chertoff, categories, depending on the year in applicant for purposes of temporary Secretary. which the penalty was last set or admission under section 212(d)(3)(A)(i) [FR Doc. E8–23287 Filed 10–3–08; 8:45 am] adjusted. For penalties that changed in of the Act and this paragraph (f) may not BILLING CODE 9111–14–P 2004, the relevant CPIs were June 2007 be valid for more than 12 months or for (208.352) and June 2004 (189.7), more than two applications for resulting in a CPI increase of 9.8 admission during the 12-month period. FEDERAL RESERVE SYSTEM percent. For penalties that were last The authorized period of stay will be for changed in 2000, the relevant CPIs were 30 calendar days calculated from the 12 CFR Part 263 June 2007 (208.352) and June 2000 initial admission under this visa. (172.4), resulting in a CPI increase of [Docket No. R–1333] (4) Application at U.S. port. If 20.9 percent. For penalties that were last otherwise admissible, a holder of the Rules of Practice for Hearings changed in 1996, the relevant CPIs were nonimmigrant visa issued under section June 2007 (208.352) and June 1996 212(d)(3)(A)(i) of the Act and this AGENCY: Board of Governors of the (156.7), resulting in a CPI increase of paragraph (f) is authorized to apply for Federal Reserve System. 33.0 percent. One penalty did not exist admission at a United States port of ACTION: Final rule. at the time of the last adjustment and entry at any time during the period of became effective in December 2005. For validity of the visa in only the B–1 SUMMARY: The Board of Governors of the that penalty, the relevant CPIs were June (business visitor) or B–2 (visitor for Federal Reserve System (the Board) is 2007 (208.352) and June 2005 (194.5), pleasure) nonimmigrant categories. amending its rules of practice and resulting in a CPI increase of 7.1 (5) Admission limited; satisfactory procedure to adjust the maximum percent. departure. Notwithstanding any other amount, as set by statute, of each civil Section 5 of the FCPIA Act provides provision of this chapter, no single money penalty (CMP) within its that the adjustment amount must be period of admission under section jurisdiction to account for inflation. rounded before adding it to the existing 212(d)(3)(A)(i) of the Act and this This action is required under the penalty amount. The rounding paragraph (f) may be authorized for Federal Civil Penalties Inflation provision depends on the size of the more than 30 days; if an emergency Adjustment Act of 1990, as amended by penalty being adjusted. For example, if prevents a nonimmigrant alien admitted the Debt Collection Improvement Act of the penalty is greater than $100 but less under this paragraph (f) from departing 1996. than or equal to $1,000, the increase is from the United States within his or her DATES: Effective Date: October 12, 2008. rounded to the nearest $100; if it is period of authorized stay, the director greater than $1,000 but less than or FOR FURTHER INFORMATION CONTACT: (or other appropriate official) having equal to $10,000, the increase is Katherine H. Wheatley, Associate jurisdiction over the place of the alien’s rounded to the nearest $1,000. Because General Counsel (202/452–3779), or Jodi temporary stay may, in his or her of this rounding rule, six penalty C. Remer, Senior Counsel (202/452– discretion, grant an additional period amounts are not changing at this time. 6403), Legal Division, Board of (or periods) of satisfactory departure, For example, the penalty under 12 each such period not to exceed 30 days. Governors of the Federal Reserve U.S.C. 3909(d) prior to the 2008 If departure is accomplished during that System, 20th and C Streets, NW., adjustment was $1,100. As this penalty period, the alien is to be regarded as Washington, DC 20551. For users of was last changed in 1996, the 33 percent having satisfactorily accomplished the Telecommunication Device for the Deaf adjustment would be $363. Rounding visit without overstaying the allotted (TDD) only, contact 202/263–4869. that increase to the nearest $1,000 time. SUPPLEMENTARY INFORMATION: The results in an increase of $0. The (6) Failure to comply. No Federal Civil Penalties Inflation penalties that are not adjusted at this authorization under section Adjustment Act of 1990, as amended by time because of this rounding formula 212(d)(3)(A)(i) of the Act and this the Debt Collection Improvement Act of will be subject to adjustment at the next paragraph (f) may be provided to any 1996, 28 U.S.C. 2461 note (FCPIA Act), adjustment cycle to take account of the alien who has previously failed to requires each Federal agency to adjust entire period between the time of their comply with any condition of an each CMP within its jurisdiction by a last adjustment (1996, 2000, or 2004) admission authorized under this prescribed cost-of-living adjustment at and the next adjustment date. These paragraph. least once every four years. This cost-of- unadjusted penalties include the (7) Additional limitations. The living adjustment is based on the inadvertently late or misleading reports Secretary of Homeland Security or the formula described in section 5(b) of the under 12 U.S.C. 324; 12 U.S.C. 1832(c); Secretary of State may require FCPIA Act. The Board made its last Tier I penalty of 12 U.S.C. 1847(d), additional evidence or impose adjustment in October 2004 (see 69 FR 3110(c); 12 U.S.C. 334, 374a, 1884; 12 additional conditions on granting 56929). U.S.C. 3909(d); and 42 U.S.C. authorization for temporary admissions The required cost-of-living adjustment 4012(a)(f)(5). under this paragraph (f) as international formula is based on the difference In accordance with section 6 of the (or other relevant) conditions may between the Consumer Price Index (CPI) FCPIA Act, the increased penalties set indicate. for June of the year preceding the forth in this amendment apply only to (8) Option for case-by-case adjustment (in this case, June 2007) and violations that occur after the date the determination. If the applicant does not the CPI for June of the year when the increase takes effect. meet the criteria under this paragraph CMP was last set or adjusted. To Public Law 104–134, title III, (f), or does not wish to agree to the calculate the adjustment, the Board used § 31001(s)(2), April 21, 1996, 110 Stat. conditions for the streamlined 30-day the Department of Labor, Bureau of 1321–272 amended the FCPIA Act and

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provided that ‘‘[t]he first adjustment of amends 12 CFR part 263 to read as (i) 15 U.S.C. 78u–2(b)(1)—$7,500 for a a civil monetary penalty * * * may not follows: natural person and $70,000 for any exceed 10 percent of such penalty.’’ other person. Although there is one penalty for which PART 263—RULES OF PRACTICE FOR (ii) 15 U.S.C. 78u–2(b)(2)—$70,000 for an initial adjustment is being made, 12 HEARINGS a natural person and $350,000 for any U.S.C. 1820(k)(6)(A)(ii), due to the effect ■ 1. The authority citation for part 263 other person. of the rounding rules, the calculated is revised to read as follows: (iii) 15 U.S.C. 78u–2(b)(3)—$140,000 dollar amount increase in the penalty is for a natural person and $675,000 for the same as a 10 percent increase in this Authority: 5 U.S.C. 504; 12 U.S.C. 248, any other person. case. 324, 504, 505, 1817(j), 1818, 1820(k), 1828(c), (10) 42 U.S.C. 4012a(f)(5): 1831o, 1831p–1, 1847(b), 1847(d), 1884(b), (i) For each violation—$385. Public Comment Not Required 1972(2)(F), 3105, 3107, 3108, 3907, 3909; 15 U.S.C. 21, 78o–4, 78o–5, 78u–2; and 28 (ii) For the total amount of penalties This rule is not subject to the U.S.C. 2461 note. assessed under 42 U.S.C 4012a(f)(5) provisions of 5 U.S.C. 553 requiring ■ 2. Section 263.65 is revised to read as against an institution or enterprise notice, public participation, and during any calendar year—$135,000. deferred effective date. The FCPIA Act follows: By order of the Board of Governors of the provides Federal agencies with no § 263.65 Civil penalty inflation Federal Reserve System, October 1, 2008. discretion in the adjustment of CMPs to adjustments. Jennifer J. Johnson, the rate of inflation, and it also requires (a) Inflation adjustments. In that adjustments be made at least every Secretary of the Board. accordance with the Federal Civil [FR Doc. E8–23527 Filed 10–3–08; 8:45 am] four years. Moreover, this regulation is Penalties Inflation Adjustment Act of BILLING CODE 6210–01–P ministerial and technical. For these 1990 (28 U.S.C. 2461 note), the Board reasons, the Board finds good cause to has set forth in paragraph (b) of this determine that public notice and section adjusted maximum penalty DEPARTMENT OF TRANSPORTATION comment for this new regulation is amounts for each civil money penalty unnecessary, impractical, and contrary provided by law within its jurisdiction. Federal Aviation Administration to the public interest, pursuant to the The adjusted civil penalty amounts Administrative Procedure Act (APA), 5 provided in paragraph (b) of this section 14 CFR Part 39 U.S.C. 553(b)(3)(B). These same reasons replace only the amounts published in also provide the Board with good cause the statutes authorizing the assessment [Docket No. FAA–2006–24825; Directorate to adopt an effective date for this of penalties and the previously-adjusted Identifier 2006–NE–17–AD; Amendment 39– regulation that is less than 30 days after amounts adopted as of October 12, 2004, 15623; AD 2008–16–05] the date of publication in the Federal October 12, 2000, and October 24, 1996. RIN 2120–AA64 Register, pursuant to the APA, 5 U.S.C. The authorizing statutes contain the 553(d). complete provisions under which the Airworthiness Directives; Rolls-Royce Regulatory Flexibility Act Board may seek a civil money penalty. Deutschland Ltd & Co KG (RRD) Dart The increased penalty amounts apply 528, 529, 532, 535, 542, and 552 Series The Regulatory Flexibility Act applies only to violations occurring after the Turboprop Engines; Correction only to rules for which an agency effective date of this rule. publishes a general notice of proposed AGENCY: Federal Aviation (b) Maximum civil money penalties. rulemaking pursuant to 5 U.S.C. 553(b). Administration (FAA), DOT. The maximum civil money penalties as See 5 U.S.C. 601(2). Because the Board set forth in the referenced statutory ACTION: Final rule; correction. has determined for good cause that the sections are as follows: APA does not require public notice and SUMMARY: The FAA is correcting (1) 12 U.S.C. 324: comment on this final rule, we are not airworthiness directive (AD) 2008–16– publishing a general notice of proposed (i) Inadvertently late or misleading 05. That AD applies to RRD Dart 528, rulemaking. Thus, the Regulatory reports, inter alia—$2,200. 529, 532, 535, 542, and 552 Series Flexibility Act does not apply to this (ii) Other late or misleading reports, turboprop engines. We published that final rule. inter alia—$32,000. AD in the Federal Register on July 31, (iii) Knowingly or recklessly false or 2008 (73 FR 44630). The superseded AD Paperwork Reduction Act misleading reports, inter alia— number in paragraph (b) in the In accordance with the Paperwork $1,375,000. regulatory section is incorrect. This Reduction Act of 1995 (44 U.S.C. Ch. 35; (2) 12 U.S.C. 504, 505, 1817(j)(16), document corrects that superseded AD 5 CFR Part 1320 Appendix A.1), the 1818(i)(2) and 1972(2)(F): number. In all other respects, the Board reviewed the final rule under the (i) First tier—$7,500. original document remains the same. authority delegated to the Board by the (ii) Second tier—$37,500. (iii) Third tier—$1,375,000. DATES: Effective Date: Effective October Office of Management and Budget. No 6, 2008. collections of information pursuant to (3) 12 U.S.C. 1820(k)(6)(A)(ii)— the Paperwork Reduction Act are $275,000. FOR FURTHER INFORMATION CONTACT: contained in the final rule. (4) 12 U.S.C. 1832(c)—$1,100. Jason Yang, Aerospace Engineer, Engine (5) 12 U.S.C. 1847(b), 3110(a)— Certification Office, FAA, Engine and List of Subjects in 12 CFR Part 263 $37,500. Propeller Directorate, 12 New England Administrative practice and (6) 12 U.S.C. 1847(d), 3110(c): Executive Park, Burlington, MA 01803; procedure, Claims, Crime, Equal Access (i) First tier—$2,200. e-mail: [email protected]; telephone to Justice, Lawyers, Penalties. (ii) Second tier—$32,000. (781) 238–7747; fax (781) 238–7199. (iii) Third tier—$1,375,000. SUPPLEMENTARY INFORMATION: On July Authority and Issuance (7) 12 U.S.C. 334, 374a, 1884—$110. 31, 2008 (73 FR 44630), we published a ■ For the reasons set forth in the (8) 12 U.S.C. 3909(d)—$1,100. final rule AD, FR Doc, E8–17423, in the preamble, the Board of Governors (9) 15 U.S.C. 78u–2: Federal Register. That AD applies to

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RRD Dart 528, 529, 532, 535, 542, and ‘‘RIN 0694–AE33’’ in the subject line of divided into four types of revisions in 552 Series turboprop engines. We need the message. this background section of the preamble: to make the following correction: • Fax: (202) 482–3355. Please alert (I) Clarifications to Existing Controls, (II) the Regulatory Policy Division, by Eliminating Redundant or Outdated § 39.13 [Corrected] calling (202) 482–2440, if you are faxing Controls, (III) Establishing More Focused On page 44631, in the second column, comments. and Rationalized Controls, and (IV) in paragraph (b) of the regulatory • Mail or Hand Delivery/Courier: Adding Additional Controls for Clarity section, ‘‘2007–02–17’’ is corrected to Timothy Mooney, U.S. Department of or for Consistency with International read ‘‘2007–02–07’’. Commerce, Bureau of Industry and Regimes. Issued in Burlington, , on Security, Regulatory Policy Division, As a part of the implementation phase September 29, 2008. 14th St. & Pennsylvania Avenue, NW., of the CCL review, the agency has also Thomas A. Boudreau, Room 2705, Washington, DC 20230, taken other non-regulatory actions to Acting Manager, Engine and Propeller Attn: RIN 0694–AE33. improve the public’s understanding of Directorate, Aircraft Certification Service. Send comments regarding the the CCL. These BIS actions have [FR Doc. E8–23511 Filed 10–3–08; 8:45 am] collection of information associated involved publishing certain advisory opinions and creating new web BILLING CODE 4910–13–P with this rule, including suggestions for reducing the burden, to Jasmeet Seehra, guidance to provide greater clarity to Office of Management and Budget exporters and reexporters regarding (OMB), by e-mail to existing provisions of the CCL. BIS has DEPARTMENT OF COMMERCE [email protected], or by fax to (202) also created a new process whereby it has stated its intention to conduct Bureau of Industry and Security 395–7285; and to the U.S. Department of Commerce, Bureau of Industry and similar types of systematic reviews of the CCL in the future in order to 15 CFR Parts 742, 744 and 774 Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., continuously improve the CCL. [Docket No. 080307397–81237–01] Room 2705, Washington, DC 20230. This rule makes the following Comments on this collection of revisions to the Export Administration RIN 0694–AE33 information should be submitted Regulations (EAR): separately from comments on the final 1. In Supplement No. 7 to part 742 Revisions to the Export Administration (Description of Major Weapons Regulations Based Upon a Systematic rule (i.e. RIN 0694–AE33)—all comments on the latter should be Systems), under paragraph (7)(c) Review of the CCL (Missiles and Missile Launchers), this submitted by one of the three methods rule adds the phrase ‘‘except model AGENCY: Bureau of Industry and outlined above. Security, Commerce. airplanes’’ to clarify that the unmanned FOR FURTHER INFORMATION CONTACT: aerial vehicles (UAVs) subject to this ACTION: Final rule. Timothy Mooney, Office of Exporter paragraph do not include model Services, Bureau of Industry and airplanes. SUMMARY: This rule amends the Export Security, U.S. Department of Commerce; Administration Regulations (EAR) to 2. In § 744.21 (Restrictions on Certain by telephone: (202) 482–2440; or by fax: Military End-Uses in the People’s make revisions to the EAR as a result of 202–482–3355. Republic of China (PRC)), this rule a systematic review of the Commerce SUPPLEMENTARY INFORMATION makes two changes under paragraph (a) Control List (CCL) that was conducted (General Prohibition) to clarify the by the Bureau of Industry and Security Background intended scope of the items subject to (BIS). This rule is the second phase of This rule amends the EAR to make this end-use control. Under the the regulatory implementation of the various revisions as a result of a introductory text of paragraph (a), this results of a review of the CCL that was systematic review of the CCL that was rule clarifies that the items that are conducted by BIS starting in 2007. The conducted by BIS. This rule is the subject to the general prohibition are BIS CCL review benefited from input second phase of the regulatory any items listed in Supplement No. 2 to received from BIS’s Technical Advisory implementation of the results of that part 744 that are subject to the EAR. Committees (TACs) and comments that systematic review of the CCL that was Adding the phrase ‘‘subject to the EAR’’ were received from the interested public conducted by BIS beginning in 2007. will clarify that this prohibition does in response to the publication of a BIS The CCL review benefited from input not extend to items that are not subject notice of inquiry on July 17, 2007. The received from BIS’s Technical Advisory to the EAR, such as information that is revisions in this rule include Committees (TACs) and public publicly available. This change is clarifications to existing controls, comments received in response to a needed because the § 772.1 definition of eliminating redundant or outdated notice of inquiry (July 17, 2007, 72 FR the term ‘‘item’’ does not distinguish controls, establishing more focused and 39052). between those items that are subject to rationalized controls, and adding On April 18, 2008, BIS published the the EAR and those that are not. Given additional controls for clarity or for first phase of the regulatory this broad definition, in this paragraph consistency with international regimes. implementation of the CCL review in a the term ‘‘item’’ should be qualified DATES: Effective Date: This rule is rule titled, ‘‘Technical Corrections to the with the phrase ‘‘subject to the EAR’’. effective: October 6, 2008. Although Export Administration Regulations The Commerce Control List (CCL) there is no formal comment period, based upon a Systematic Review of the (Supplement No. 1 to Part 774 of the public comments on this regulation are CCL’’ (73 FR 21035). The first CCL EAR) is amended by making various welcome on a continuing basis. review rule focused on making needed substantive revisions to the CCL that are ADDRESSES: You may submit comments, technical corrections and clarifications divided below into four types of identified by RIN 0694–AE33, by any of to the CCL. This rule, the second CCL revisions: (I) Clarifications to Existing the following methods: review rule, makes substantive revisions Controls, (II) Eliminating Redundant or • E-mail: to the EAR, including the CCL. The Outdated Controls, (III) Establishing [email protected] Include revisions to the CCL in this rule are More Focused and Rationalized

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Controls, and (IV) Adding Additional involve revising and moving text from B. Removal of Outdated ‘‘Related Controls for Clarity or for Consistency the ‘‘Related Controls’’ paragraph to Controls’’ References in CCL Entries with International Regimes. new License Requirement notes for The revisions made to the ‘‘Related I: Clarifications to Existing Controls those CCL entries. These revisions make Controls’’ paragraphs under the no change to the scope of the items following six (6) CCL entries: 1D001, 1. Revisions to the ‘‘Headings’’ of controlled under those CCL entries. 4E992, 2B119, 7D001, 7D002 and 7E002 Existing CCL Entries However, it was determined during the all involve removing nonexistent ECCNs This rule is making revisions to the CCL review, that those ‘‘Related that were listed as ‘‘Related Controls’’ headings of three (3) CCL entries: Controls’’ under those CCL entries could references under those CCL entries. 2B351, 4D993 and 6A995, to clarify the be better characterized as ‘‘License ECCN 1D001 had an outdated ‘‘Related items controlled under those CCL Requirement Notes’’. Given that Controls’’ reference to the nonexistent entries. determination, BIS decided it would be 1D102. ECCN 2B119 referred to a ECCN 2B351 is amended by revising helpful to move those ‘‘Related nonexistent 2B219, and 4E992 referred the heading to clarify the items Controls’’ references to new ‘‘License to a nonexistent 4E994. Under ECCNs controlled under this CCL entry by Requirement Notes’’ to better assist 7D001, 7E001 and 7E002 outdated adding the phrases ‘‘as follows’’ and exporters and reexporters when references to the nonexistent 7A007 are ‘‘see List of Items Controlled’’. classifying their items. all removed with this rule. ECCN 4D993 is amended by adding ECCN 1C351 is amended by moving 3. Revisions to ‘‘Items’’ Paragraphs in the phrase, ‘‘see List of Items subparagraphs (2) through (4) from the CCL Entries Controlled’’ at the end of the heading of ‘‘Related Controls’’ paragraph to the the CCL entry. This rule also makes This rule makes revisions to the newly created ‘‘License Requirement revisions to the ‘‘Items’’ paragraph of ‘‘Items’’ paragraphs under the following Notes’’ and redesignating subparagraph this ECCN by adding the conjunction two (2) CCL entries: 1C350 and 2B350 (5) of the ‘‘Related Controls’’ paragraph ‘‘or’’ between ‘‘Items’’ paragraphs (b) to provide greater clarity regarding the and (c) to clarify the scope of the items as a subparagraph (2). items controlled under those CCL controlled under this CCL entry. ECCN 1C352 is amended by moving entries. These changes include adding ECCN 6A995 is amended by revising subparagraph (1) from the ‘‘Related additional text under some of these CCL the heading to remove the phrase ‘‘not Controls’’ paragraph to the newly entries, rearranging text of some of these controlled by 0B001.h.6, 6A005 or created ‘‘License Requirement Note’’ CCL entries to improve readability, or 6A205’’, and replacing that with the and redesignating subparagraph (2) of revising the ‘‘Items’’ paragraphs of these phrase, ‘‘see List of Items Controlled’’ to the ‘‘Related Controls’’ paragraph. This CCL entries to clarify the intended the heading of this CCL entry. This rule also makes some minor revisions scope of the control. Specifically, these revision is intended to clarify the scope for clarity in the text of the new revisions include the following: of the control. ‘‘License Requirement Note’’. ECCN 1C350 is amended by adding a sentence at the end of ‘‘Note 2’’ of the 2. Revisions to ‘‘Related Controls’’ in ECCN 1C353 is amended by moving ‘‘License Requirement Notes’’ section to CCL Entries the first sentence from the ‘‘Related make persons aware that although This rule revises the ‘‘Related Controls’’ paragraph to the newly certain mixtures as described in this Controls’’ paragraphs in the List of Items created ‘‘License Requirement Note’’, note may be classified EAR99, a license Controlled section in the following and leaving the second sentence, which may still be required for reasons set twelve (12) CCL entries: 1C351, 1C352, references related controls from the forth elsewhere in the EAR. This is 1C353, 1C354, 1C360, 2B119, 2B350, Centers for Disease Control and stated in other parts of the EAR, but this 4E992, 7D001, 7D002, 7E002, and 7E101 Prevention (CDC), U.S. Department of additional text being added to this CCL by adding additional related control Health and Human Services controls entry will help make persons aware that references or making changes for greater and the Animal and Plant Health although their commodity may not be specificity for the related controls Inspection Service (APHIS), U.S. controlled under this CCL entry, it still references. BIS includes related control Department of Agriculture, in the may require a license under other parts references in CCL entries to assist ‘‘Related Controls’’ paragraph. of the EAR. exporters in classifying items on the ECCN 1C354 is amended by moving ECCN 2B350 is amended by CCL and in some cases provides cross- subparagraph (1) from the ‘‘Related reordering the ‘‘Items’’ paragraph in the references for items that are listed on Controls’’ paragraph to the newly List of Items Controlled Section in order the CCL, but are under the export created ‘‘License Requirement Note’’ to improve the readability of the control jurisdiction of other U.S. and redesignating subparagraph (2) of ‘‘Items’’ paragraph. This rule makes no Government agencies. Several of the the ‘‘Related Controls’’ paragraph. This changes to the items that are controlled under ECCN 2B350. This reordering of public comments received by BIS, as a rule also makes some minor revisions the ‘‘Items’’ paragraph for parallelism part of the CCL review process, for clarity to the text of the new helps improve the readability of the requested that BIS add these types of ‘‘License Requirement Note’’. additional related controls references to ‘‘Items’’ paragraph of that ECCN entry. better assist the public in classifying ECCN 1C360 is amended by moving BIS is making this change to better assist their items using the CCL. subparagraph (1) from the ‘‘Related the public in classifying their materials Controls’’ paragraph to the newly under this ECCN. In addition, this rule (A) Converting ‘‘Related Controls’’ created ‘‘License Requirement Note’’ redesignates the ‘‘Technical Note’’ at the Paragraphs Into License Requirement and redesignating subparagraphs (2) and end of the ‘‘Items’’ paragraph in the List Notes (3) in the ‘‘Related Controls’’ paragraph of Items Controlled section, as The revisions being made to the as subparagraphs (1) and (2). This rule ‘‘Technical Note 1’’, and adds a ‘‘Related Controls’’ paragraphs under also makes some minor revisions for ‘‘Technical Note 2’’ to define the term these six (6) CCL entries: 1C351, 1C352, clarity for the text in the new ‘‘License ‘‘alloy’’. This new definition of ‘‘alloy’’ 1C353, 1C354, 1C360, and 2B350 also Requirement Note’’. clarifies to the public that the metal

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alloys in 2B350 are those containing a would be helpful to the public to add a another ECCN entry, were no longer higher percentage by weight of the new note at the beginning of Category 1 commonly used by industry or the stated metal than any other element. to make the public more aware that general public). Lastly, under this CCL entry, this rule these other agencies of the U.S. III. Establishing More Focused and moves the text of the ‘‘Related Controls’’ Government may also apply controls to Rationalized Controls paragraph to a new ‘‘License these items. This note makes no changes Requirement Note’’ to clarify the to the items subject to the EAR. 1. ECCN 1E001 is amended by adding intended scope of the control. II. Eliminating Redundant or Outdated Australia and to the list of 4. Clarifications to ‘‘Items’’ Paragraphs Controls countries that are eligible to receive To Conform With Multilateral Regimes technology controlled under this ECCN 1.ECCN 4A994 is amended by making under the provisions of License This rule makes clarifications to the various revisions to the ‘‘Items’’ Exception TSR (Technology and ‘‘Items’’ paragraphs in these two (2) CCL paragraph of this CCL entry to remove software restricted) (§ 740.6), as entries: 4A101and 4A980 to clarify what technically outdated controls and to described under paragraphs (a) or (b) of items are controlled under those entries update certain technical control the License Exception TSR paragraph in and to better conform those entries to parameters to better reflect current the License Exceptions section of this the language used in multilateral control industry standards. Specifically, this ECCN entry. Prior to publication of this lists. rule deletes paragraphs (d), (e), (g), (h), rule, there were seventeen countries that ECCN 4A101 is amended by adding a and (k)(1) of the ‘‘Items’’ paragraph in were eligible for License Exception TSR new note at the end of the ‘‘Items’’ the List of Items Controlled section of under this CCL entry. When this list of paragraph in the List of Items Controlled this CCL entry. This change is being seventeen countries eligible for License section to provide a definition for made because these controls are Exception TSR was added to the CCL ‘‘radiation hardened’’. ‘‘Radiation technically outdated, so these entry on January 15, 1998 (63 FR 2482), hardened’’ is used in paragraph (b) of commodities no longer need to be Australia and Norway were the ‘‘Items’’ paragraph, but no definition controlled under this CCL entry. Under inadvertently not included, which is was provided, prior to publication of paragraph (b) of the ‘‘Items’’ paragraph, being corrected with this rule. With the this rule, for this term. This new note this rule clarifies the types of digital addition of Australia and Norway, clarifies that under this CCL entry, computers that are controlled under this nineteen countries are now eligible to ‘‘radiation hardened’’ means that the CCL entry and increases the Weighted receive technology under License component or equipment is designed or TeraFLOPS (WT) control threshold for Exception TSR. As with any EAR list- rated to withstand radiation levels this paragraph (b) from 0.00001 WT to based license exception, the provisions which meet or exceed a total irradiation 0.0128 WT. In addition, under of § 740.2 and the specific provisions of dose of 5 × 10 5 rads (Si). This revision paragraph (c) of the ‘‘Items’’ paragraph, the list-based license exception, in this will assist the public in understanding this rule deletes the technically the types of analog computers, ‘‘digital outdated control parameter that was case License Exception TSR, determine computers’’ and differential analyzers listed under paragraph (c)(2) prior to whether a list-based license exception that are controlled under this ECCN publication of this rule. This change to can be used to authorize a specific entry. paragraph (c) will specify that transaction. ECCN 4A980 is amended by adding a ‘‘electronic assemblies’’ covered under 2. ECCN 2B018 is amended by new note at the end of the ‘‘Items’’ this paragraph are those that are removing an advisory note from the paragraph to clarify the existing control. designed to be capable of aggregation in ‘‘Items’’ paragraph and converting that This note clarifies that ECCN 4A980 configurations of 16 or more processors. note into License Exception GBS does not control equipment limited to Finally, under paragraph (k), this rule eligibility (Shipments to Country Group one finger and designed for user clarifies the types of ‘‘hybrid B Countries) (15 CFR 740.4). The items authentication or access control. computers’’ and ‘‘electronic assemblies’’ that were described in that advisory and specially designed components that note, prior to publication of this rule, 5. Other Assorted Clarifications to are controlled under this CCL entry. will now be eligible for License Existing Controls 2.ECCN 5A991 is amended by Exception GBS, provided the Category 1 (Materials, Chemicals, removing three outdated entries from transaction meets the terms and ‘‘Microorganisms,’’ and Toxins) of the the ‘‘Items’’ paragraph under paragraphs conditions of License Exception GBS CCL, is amended by adding a new note (b)(8), (c)(2), and (c)(4) of this CCL entry. and § 740.2. Under ECCN 2B018, the to the beginning of the category to make In the public comments, people asked entire entry is controlled for national the public more aware that the Food and for clarifications regarding what security reasons under NS column 1 and Drug Administration (FDA) and the commodities were controlled under regional stability reasons under RS Drug Enforcement Administration these three ‘‘Items’’ paragraphs under column 2, among others reasons for (DEA) may control exports of items ECCN 5A991. However, in reviewing control. To be eligible for License subject to the EAR and on the CCL. these three technical parameters, BIS Exception GBS, the ultimate destination Public comments submitted for the CCL determined that for each of the must be subject to a license requirement review suggested that BIS add commodities controlled under this for national security reasons only on the additional cross-references on the CCL ECCN, the commodities were either Commerce Country Chart and the to the FDA and DEA regulations. covered under another ECCN (meaning destination must be listed in Country Supplement No. 3 to Part 730 (Other these entries were merely empty boxes Group B in Supplement No. 1 to Part U.S. Government Departments and on the CCL), or the commodities that 740 of the EAR. The only countries Agencies with Export Control were controlled under one of these three listed in Country Group B that do not Responsibilities) and certain ECCN ‘‘Items’’ paragraphs were outdated and require a license under RS column 2 are cross-references to other agencies’ should appropriately be designated Australia, , New and controls already accomplish the same EAR99 (meaning the commodities countries in North Atlantic Treaty type of thing. However, in conducting controlled under these three paragraphs, Organization (NATO). Therefore, this the CCL review, BIS determined it that were not already controlled under new License Exception GBS availability

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under this ECCN entry is limited to implementing the MTCR Plenary change 5. The other changes made under this these countries in Country Group B. was made to the EAR, but it was rule are nonsubstantive changes that do inadvertently left off. This technology not meet the criteria noted in the IV. Adding Additional Controls for for ECCN 9C110 is a current control preceding paragraph. For these Clarity or for Consistency With within the MTCR and should be nonsubstantive changes described in International Regimes reflected on the CCL under ECCN this paragraph, the Department finds This rule adds new reasons for control 9E101. This rule corrects that that there is good cause under 5 U.S.C. to one (1) existing CCL entry: 1E002. inadvertent error by adding this new 553(b)(B) to waive the provisions of the This existing CCL entry was intended to MT control to the CCL. Administrative Procedure Act requiring have this control at an earlier time, but Although the Export Administration prior notice and the opportunity for this control was inadvertently not added Act expired on August 20, 2001, the public comment because they are to the entry when changes were made to President, through Executive Order unnecessary. The changes made by this other parts of the EAR (e.g., a NP or MT 13222 of August 17, 2001, 3 CFR, 2001 rule described under this paragraph are item was added to the CCL, but the Comp., p. 783 (2002), as extended by the not substantive changes, but rather are corresponding change to control the Notice of July 23, 2008, 73 FR 43603 clarifications to existing controls. These related technology or software was not (July 25, 2008), has continued the nonsubstantive changes are described made at that time). This rule adds a new Export Administration Regulations in under Part I: Clarifications to Existing item to one (1) existing CCL entry: effect under the International Controls in the Background section of 9E101. The EAR were previously Emergency Economic Powers Act. this rule. These nonsubstantive changes amended to include new commodities include: Revisions to the headings of controlled for MT reasons. However, the Rulemaking Requirements existing CCL entries; removal of EAR omitted the corresponding control 1. This final rule has been determined outdated ‘‘Related Controls’’ references on the ‘‘technology’’ related to those to be not significant for purposes of E.O. in CCL entries; nonsubstative revisions commodities. 12866. to ‘‘items’’ paragraphs in CCL entries to 1. New Reasons for Control Being Added 2. Notwithstanding any other improve things, such as readability; and to Existing CCL Entry provision of law, no person is required additions of ‘‘items’’ paragraphs for ECCN 1E002 is amended by adding a to respond to, nor shall any person be certain items subject to the licensing new NP reason for control to this ECCN. subject to a penalty for failure to comply requirements of the U.S. Department of This new NP reason for control applies with a collection of information, subject State. This rule does not alter any right, to ‘‘technology’’ for items controlled by to the requirements of the Paperwork obligation or prohibition that applies to 1A002 for NP reasons. This corrects an Reduction Act, unless that collection of any person under the Export inadvertent omission from the CCL of information displays a currently valid Administration Regulations (EAR). this NP reason for control. The intent of Office of Management and Budget Because these revisions are not the U.S. Government was to have a NP Control Number. This rule contains a substantive changes, it is unnecessary to technology control on the NP portion of collection of information subject to the provide notice and opportunity for 1E002.f applicable to the NP portion of Paperwork Reduction Act of 1980 (44 public comment. In addition, the 30-day 1A002, but in an earlier revision to the U.S.C. 3501 et seq.). This collection has delay in effectiveness required by 5 CCL this change had not been been approved by the Office of U.S.C. 553(d) is not applicable because implemented into the EAR, as intended. Management and Budget under control this rule is not a substantive rule. This rule corrects that inadvertent number 0694–0088, ‘‘Multi-Purpose Because a notice of proposed omission by adding this NP reason for Application,’’ which carries a burden rulemaking and an opportunity for control to this existing ECCN. hour estimate of 58 minutes for a public comment are not required to be manual or electronic submission. given for this rule under the 2. New Items Added to Existing CCL 3. This rule does not contain policies Administrative Procedure Act or by any Entry with Federalism implications as that other law, the analytical requirements of ECCN 9E101 is amended by adding term is defined under E.O. 13132. the Regulatory Flexibility Act (5 U.S.C. 9C110 to the heading of 9E101 to correct 4. The provisions of the 601 et seq.) are not applicable. an inadvertent error that occurred when Administrative Procedure Act (5 U.S.C. List of Subjects 9C110 was added to the CCL. ECCN 553) requiring notice of proposed 9C110 was added to the CCL on April rulemaking, the opportunity for public 15 CFR Part 742 2, 2003 (68 FR 16144) to implement a participation, and a delay in effective Exports, Terrorism. Missile Technology Control Regime date, are inapplicable because this (MTCR) Plenary change. However, at the regulation involves a military and 15 CFR Part 744 time that change was implemented in foreign affairs function of the United Exports, Reporting and recordkeeping the EAR, ECCN 9E101 was not amended States (5 U.S.C. 553(a)(1)). Further, no requirements, Terrorism. to add a Missile Technology (MT) other law requires that a notice of technology control for this new MT proposed rulemaking and an 15 CFR Part 774 commodity controlled under ECCN opportunity for public comment be Exports, Reporting and recordkeeping 9C110. Prior to publication of this rule, given for this final rule. Because a requirements. ECCN 9E101 controlled ‘‘technology’’ notice of proposed rulemaking and an ■ Accordingly, parts 742, 744 and 774 according to the General Technology opportunity for public comment are not of the Export Administration Note for the ‘‘development’’ or required to be given for this rule under Regulations (15 CFR parts 730–774) are ‘‘production’’ of commodities or the Administrative Procedure Act or by amended as follows: software controlled by 9A012, 9A101, any other law, the analytical 9A104 to 9A111, 9A115 to 9A119, requirements of the Regulatory PART 742—[AMENDED] 9D101, 9D103, 9D104 or 9D105. ECCN Flexibility Act (5 U.S.C. 601 et seq.) are 9C110 should have been added to the not applicable. Therefore, this ■ 1. The authority citation for 15 CFR heading in 9E101 when the change regulation is issued in final form. part 742 continues to read as follows:

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Authority: 50 U.S.C. app. 2401 et seq.; 50 Authority: 50 U.S.C. app. 2401 et seq.; 50 ‘‘Microorganisms,’’ and ‘‘Toxins,’’ U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. Export Control Classification Number 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et (ECCN) 1C351 is amended by adding U.S.C. 7210; Sec 1503, Pub. L. 108–11, 117 seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); three ‘‘License Requirement Notes,’’ at Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; the end of the ‘‘License Requirements’’ 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. section, and by revising the ‘‘Related FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. Controls’’ paragraph, in the ‘‘List of 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Items Controlled’’ section, to read as 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of July 23, 2008, 73 FR follows: Comp., p. 783; Presidential Determination 43603 (July 25, 2008). 2003–23 of May 7, 2003, 68 FR 26459, May 1C351 Human and zoonotic pathogens and 16, 2003; Notice of July 23, 2008, 73 FR Supplement No. 1 to Part 774— ‘‘toxins’’, as follows (see List of Items 43603 (July 25, 2008); Notice of November 8, [Amended] Controlled). 2007, 72 FR 63963 (November 13, 2007). ■ 6. In Supplement No. 1 to part 774 License Requirements ■ 2. Supplement No. 7 to Part 742 is (the Commerce Control List), Category * * * * * amended by revising paragraph (7)(c), to 1—Materials, Chemicals, License Requirement Notes read as follows: ‘‘Microorganisms,’’ and ‘‘Toxins,’’ is 1. All vaccines and ‘‘immunotoxins’’ are Supplement No. 7 to Part 742— amended by adding a new Note, excluded from the scope of this entry. Certain medical products and diagnostic and food Description of Major Weapons Systems immediately following the heading of Category 1, to read as follows: testing kits that contain biological toxins * * * * * controlled under paragraph (d) of this entry, (7) Missiles and Missile Launchers: Category 1—Materials, Chemicals, with the exception of toxins controlled for ‘‘Microorganisms’’ & ‘‘Toxins’’ * * * * * CW reasons under d.5 and d.6, are excluded (c) Unmanned Aerial Vehicles (UAVs) of Note: The Food and Drug Administration from the scope of this entry. Vaccines, any type, including sensors for guidance and (FDA) and the Drug Enforcement ‘‘immunotoxins’’, certain medical products, control of these systems, except model Administration (DEA) may control exports of and diagnostic and food testing kits excluded airplanes. items subject to the EAR and on the from the scope of this entry are controlled Commerce Control List. BIS provides cross under ECCN 1C991. * * * * * references to these other agency controls for 2. For the purposes of this entry, only convenience only. Therefore, please consult saxitoxin is controlled under paragraph d.6; PART 744—[AMENDED] relevant FDA and DEA regulations for other members of the paralytic shellfish poison family (e.g. neosaxitoxin) are ■ 3. The authority citation for 15 CFR guidance related to the item you wish to export and do not rely solely on the EAR for designated EAR99. part 744 continues to read as follows: information about other agency export 3. Clostridium perfringens strains, other Authority: 50 U.S.C. app. 2401 et seq.; 50 control requirements. See Supplement No. 3 than the epsilon toxin-producing strains of U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; to part 730 (Other U.S. Government Clostridium perfringens described in c.14, 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 Departments and Agencies with Export are excluded from the scope of this entry, U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, Control Responsibilities) for more since they may be used as positive control 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, information. cultures for food testing and quality control. 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 * * * * * List of Items Controlled FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. ■ 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 7. In Supplement No. 1 to part 774 Unit: *** 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 (the Commerce Control List), Category Related Controls: (1) Certain forms of ricin Comp., p. 228; E.O. 13099, 63 FR 45167, 3 1—Materials, Chemicals, and saxitoxin in 1C351.d.5. and d.6 are CWC CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR ‘‘Microorganisms,’’ and ‘‘Toxins,’’ Schedule 1 chemicals (see § 742.18 of the 44025, 3 CFR, 2001 Comp., p. 783; E.O. Export Control Classification Number EAR). The U.S. Government must provide 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. (ECCN) 1C350 is amended by revising advance notification and annual reports to 786; Notice of July 23, 2008, 73 FR 43603 paragraph (b) of Note 2 (Mixtures), in the OPCW of all exports of Schedule 1 chemicals. See § 745.1 of the EAR for (July 25, 2008); Notice of November 8, 2007, the ‘‘License Requirement Notes’’ of the 72 FR 63963 (November 13, 2007). notification procedures. See 22 CFR part 121, ‘‘License Requirements’’ section, to read Category XIV and § 121.7 for additional CWC ■ 4. Section 744.21 is amended by as follows: Schedule 1 chemicals controlled by the revising the introductory text of 1C350 Chemicals that may be used as Department of State. paragraph (a) to read as follows: precursors for toxic chemical agents. (2) The Animal and Plant Health Inspection Service (APHIS), U.S. Department § 744.21 Restrictions on certain military License Requirements of Agriculture, and the Centers for Disease end-uses in the People’s Republic of China * * * * * Control and Prevention (CDC), U.S. (PRC). License Requirement Notes Department of Health and Human Services, (a) General prohibition. In addition to maintain controls on the possession, use, and * * * * * the license requirements for items transfer within the United States of certain 2. Mixtures: items controlled by this ECCN (for APHIS, specified on the Commerce Control List a. * * * (CCL), you may not export, reexport, or see 7 CFR 331.3(c), 9 CFR 121.3(c), and 9 b. A license is not required under this CFR 121.4(c); for CDC, see 42 CFR 73.3(c) transfer any item subject to the EAR ECCN for a mixture, when the controlled and 42 CFR 73.4(c)). listed in Supplement No. 2 to Part 744 chemical in the mixture is a normal to the PRC without a license if, at the ingredient in consumer goods packaged for * * * * * time of the export, reexport, or transfer, retail sale for personal use. Such consumer ■ 9. In Supplement No. 1 to part 774 you know, meaning either: goods are designated EAR99. However, a (the Commerce Control List), Category license may be required for reasons set forth 1—Materials, Chemicals, * * * * * elsewhere in the EAR. ‘‘Microorganisms,’’ and ‘‘Toxins,’’ PART 774—[AMENDED] * * * * * Export Control Classification Number ■ 8. In Supplement No. 1 to part 774 (ECCN) 1C352 is amended by adding a ■ 5. The authority citation for 15 CFR (the Commerce Control List), Category ‘‘License Requirement Note,’’ at the end part 774 continues to read as follows: 1—Materials, Chemicals, of the ‘‘License Requirements’’ section,

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and by revising the ‘‘Related controls’’ ‘‘License Requirement Note,’’ at the end 1E001 ‘‘Technology’’ according to the paragraph, in the ‘‘List of Items of the ‘‘License Requirements’’ section, General Technology Note for the Controlled section,’’ to read as follows: and by revising the ‘‘Related controls’’ ‘‘development’’ or ‘‘production’’ of items paragraph, in the ‘‘List of Items controlled by 1A001.b, 1A001.c, 1A002, 1C352 Animal pathogens, as follows (see 1A003, 1A004, 1A005, 1A101, 1B (except List of Items Controlled). Controlled’’ section, to read as follows: 1B999), or 1C (except 1C018, 1C355, 1C980 License Requirements 1C354 Plant pathogens, as follows (see List to 1C984, 1C988, 1C990, 1C991, 1C992, * * * * * of Items Controlled). 1C995 to 1C999). * * * * * License Requirement Note License Requirements License Exceptions All vaccines are excluded from the scope * * * * * of this ECCN. See ECCN 1C991 for vaccines. License Requirement Note CIV: N/A TSR: Yes, except for the following: All vaccines are excluded from the scope List of Items Controlled (1) Items controlled for MT reasons; or of this ECCN. See ECCN 1C991 for vaccines. Unit: *** (2) Exports and reexports to destinations Related Controls: The Animal and Plant List of Items Controlled outside of Australia, , , Health Inspection Service (APHIS), U.S. Unit: $ value. , , , , , Department of Agriculture, and the Centers Related Controls: The Animal and Plant , , , Japan, , the for Disease Control and Prevention (CDC), Health Inspection Service (APHIS), U.S. , Norway, , , U.S. Department of Health and Human Department of Agriculture, maintains , or the of Services, maintain controls on the controls on the possession, use, and transfer ‘‘technology’’ for the ‘‘development’’ or possession, use, and transfer within the within the United States of certain items production’’ of the following: United States of certain items controlled by controlled by this ECCN (see 7 CFR 331.3(c), (a) Items controlled by 1C001; or this ECCN (for APHIS, see 7 CFR 331.3(c), 9 9 CFR 121.3(c), and 9 CFR 121.4(c)). (b) Items controlled by 1A002.a which are CFR 121.3(c), and 9 CFR 121.4(c); for CDC, composite structures or laminates having an see 42 CFR 73.3(c) and 42 CFR 73.4(c)). * * * * * organic ‘‘matrix’’ and being made from ■ * * * * * 12. In Supplement No. 1 to part 774 materials listed under 1C010.c or 1C010.d. ■ (the Commerce Control List), Category * * * * * 10. In Supplement No. 1 to part 774 1—Materials, Chemicals, (the Commerce Control List), Category ■ 14. In Supplement No. 1 to part 774 ‘‘Microorganisms,’’ and ‘‘Toxins,’’ (the Commerce Control List), Category 1—Materials, Chemicals, Export Control Classification Number ‘‘Microorganisms,’’ and ‘‘Toxins,’’ 1—Materials, Chemicals, (ECCN) 1C360 is amended by adding a ‘‘Microorganisms,’’ and ‘‘Toxins,’’ Export Control Classification Number ‘‘License Requirement Note,’’ at the end (ECCN) 1C353 is amended by adding a Export Control Classification Number of the ‘‘License Requirements’’ section, (ECCN) 1E002 is amended by revising ‘‘License Requirement Note,’’ at the end and by revising the ‘‘Related controls’’ of the ‘‘License Requirements’’ section, the ‘‘License Requirements’’ section to paragraph, in the ‘‘List of Items read as follows: and by revising the ‘‘Related controls’’ Controlled’’ section, to read as follows: paragraph, in the ‘‘List of Items 1E002 Other ‘‘technology’’, as follows (see Controlled’’ section, to read as follows: 1C360 Select agents not controlled under List of Items Controlled). ECCN 1C351, 1C352, or 1C354. 1C353 Genetic elements and genetically- License Requirements License Requirements modified organisms, as follows (see List of Reason for Control: NS, MT, NP, AT Items Controlled). * * * * * License Requirements License Requirement Note Control(s) Country Chart * * * * * All vaccines are excluded from the scope of this ECCN. See ECCN 1C991 for vaccines. NS applies to entire entry, NS Column 1. License Requirement Note except 1E002.g. Vaccines that contain genetic elements or * * * * * NS applies to 1E002.g ...... NS Column 2. genetically modified organisms identified in List of Items Controlled MT applies to 1E002.e ...... MT Column 1. NP applies to ‘‘technology’’ NP Column 1. this ECCN are controlled by ECCN 1C991. Unit: $ value. for items controlled by List of Items Controlled Related Controls: (1) Also see ECCNs 1A002 for NP reasons. 1C351 (AG-controlled human and zoonotic Unit: *** AT applies to entire entry .. AT Column 1. Related Controls: The Animal and Plant pathogens and ‘‘toxins’’), 1C352 (AG- Health Inspection Service (APHIS), U.S. controlled animal pathogens), and 1C354 (AG-controlled plant pathogens). (2) The * * * * * Department of Agriculture, and the Centers ■ for Disease Control and Prevention (CDC), Animal and Plant Health Inspection Service 15. In Supplement No. 1 to part 774 U.S. Department of Health and Human (APHIS), U.S. Department of Agriculture, and (the Commerce Control List), Category Services, maintain controls on the the Centers for Disease Control and 2—Materials Processing, Export Control possession, use, and transfer within the Prevention (CDC), U.S. Department of Health Classification Number (ECCN) 2B018 is United States of certain items controlled by and Human Services, maintain controls on amended: this ECCN, including (but not limited to) the possession, use, and transfer within the ■ a. By revising the ‘‘License United States of items controlled by this genetic elements, recombinant nucleic acids, Exceptions’’ section; and and recombinant organisms associated with ECCN (for APHIS, see 7 CFR 331.3(b), 9 CFR ■ 121.3(b), and 9 CFR 121.4(b); for CDC, see 42 b. By removing the ‘‘Advisory Note’’ the agents or toxins in ECCN 1C360 (for at the end of the ‘‘Items’’ paragraph, in APHIS, see 7 CFR 331.3(c), 9 CFR 121.3(c), CFR 73.3(b) and 42 CFR 73.4(b)). the ‘‘List of Items Controlled’’ section, to and 9 CFR 121.4(c); for CDC, see 42 CFR * * * * * read as follows: 73.3(c) and 42 CFR 73.4(c)). ■ 13. In Supplement No. 1 to part 774 * * * * * (the Commerce Control List), Category 2B018 Equipment on the Wassenaar ■ 11. In Supplement No. 1 to part 774 1—Materials, Chemicals, Arrangement Munitions List. (the Commerce Control List), Category ‘‘Microorganisms,’’ and ‘‘Toxins,’’ * * * * * 1—Materials, Chemicals, Export Control Classification Number License Exceptions ‘‘Microorganisms,’’ and ‘‘Toxins,’’ (ECCN) 1E001 is amended by revising LVS: $3,000, except N/A for . Export Control Classification Number the ‘‘License Exceptions’’ section, to GBS: Yes, as follows, except N/A for (ECCN) 1C354 is amended by adding a read as follows: Rwanda, MT-controlled items, or

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destinations for which a license is required flow of the chemical weapons precursors d.2. Nickel or alloys with more than 40% for RS reasons: Equipment used to determine controlled by 1C350. nickel by weight; the safety data of explosives as required by * * * * * d.3. Fluoropolymers; the International Convention on the d.4. Glass (including vitrified or enameled Transport of Dangerous Goods (C.I.M.) List of Items Controlled coatings or glass lining); Articles 3 and 4 in Annex 1 RID, provided Unit: *** d.5. Tantalum or tantalum alloys; that such equipment will be used only by the Related Controls: N/A d.6. Titanium or titanium alloys; railway authorities of current C.I.M. Related Definitions: *** d.7. Zirconium or zirconium alloys; members, or by the Government-accredited Items: d.8. Niobium (columbium) or niobium testing facilities in those countries, for the a. Reaction vessels or reactors, with or alloys; testing of explosives to transport safety without agitators, with total internal d.9. Graphite or carbon-graphite; standards, of the following description: (geometric) volume greater than 0.1 m3 (100 d.10. Silicon carbide; or a. Equipment for determining the ignition liters) and less than 20 m3 (20,000 liters), d.11. Titanium carbide. and deflagration temperatures; where all surfaces that come in direct contact e. Distillation or absorption columns of b. Equipment for steel-shell tests; with the chemical(s) being processed or internal diameter greater than 0.1 m, and c. Drophammers not exceeding 20 kg in contained are made from any of the following liquid distributors, vapor distributors or weight for determining the sensitivity of materials: liquid collectors designed for such explosives to shock; a.1. Alloys with more than 25% nickel and distillation or absorption columns, where all d. Equipment for determining the friction 20% chromium by weight; surfaces that come in direct contact with the sensitivity of explosives when exposed to a.2. Nickel or alloys with more than 40% chemical(s) being processed are made from charges not exceed 36 kg in weight. nickel by weight; any of the following materials: CIV: N/A a.3. Fluoropolymers; e.1. Alloys with more than 25% nickel and a.4. Glass (including vitrified or enameled 20% chromium by weight; * * * * * coating or glass lining); e.2. Nickel or alloys with more than 40% ■ 16. In Supplement No. 1 to part 774 a.5. Tantalum or tantalum alloys; nickel by weight; (the Commerce Control List), Category a.6. Titanium or titanium alloys; e.3. Fluoropolymers; 2—Materials Processing, Export Control a.7. Zirconium or zirconium alloys; or e.4. Glass (including vitrified or enameled Classification Number (ECCN) 2B119 is a.8. Niobium (columbium) or niobium coatings or glass lining); amended by revising the ‘‘Related alloys. e.5. Tantalum or tantalum alloys; Controls’’ paragraph, in the ‘‘List of b. Agitators for use in reaction vessels or e.6. Titanium or titanium alloys; Items Controlled’’ section, to read as reactors described in 2B350.a, and impellers, e.7. Zirconium or zirconium alloys; blades or shafts designed for such agitators, e.8. Niobium (columbium) or niobium follows: where all surfaces that come in direct contact alloys; or 2B119 Balancing machines and related with the chemical(s) being processed or e.9. Graphite or carbon-graphite. equipment, as follows (see List of Items contained are made from any of the following f. Remotely operated filling equipment in Controlled). materials: which all surfaces that come in direct contact * * * * * b.1. Alloys with more than 25% nickel and with the chemical(s) being processed are 20% chromium by weight; made from any of the following materials: List of Items Controlled b.2. Nickel or alloys with more than 40% f.1. Alloys with more than 25% nickel and Unit: *** nickel by weight; 20% chromium by weight; or Related Controls: See also 7B101. b.3. Fluoropolymers; f.2. Nickel or alloys with more than 40% Related Definitions: *** b.4. Glass (including vitrified or enameled nickel by weight. Items: coatings or glass lining); g. Valves with nominal sizes greater than * * * * * b.5. Tantalum or tantalum alloys; 1.0 cm (d in.), and casings (valve bodies) or b.6. Titanium or titanium alloys; preformed casing liners designed for such ■ 17. In Supplement No. 1 to part 774 b.7. Zirconium or zirconium alloys; or valves, in which all surfaces that come in (the Commerce Control List), Category b.8. Niobium (columbium) or niobium direct contact with the chemical(s) being 2—Materials Processing, Export Control alloys. processed or contained are made from any of Classification Number (ECCN) 2B350 is c. Storage tanks, containers or receivers the following materials: amended: with a total internal (geometric) volume g.1. Alloys with more than 25% nickel and ■ a. By adding a ‘‘License Requirement greater than 0.1 m3 (100 liters) where all 20% chromium by weight; Note,’’ at the end of the ‘‘License surfaces that come in direct contact with the g.2. Nickel or alloys with more than 40% chemical(s) being processed or contained are nickel by weight; Requirements’’ section; ■ made from any of the following materials: g.3. Fluoropolymers; b. By revising the ‘‘Related Controls’’ c.1. Alloys with more than 25% nickel and g.4. Glass or glass lined (including vitrified paragraph, in the ‘‘List of Items 20% chromium by weight; or enameled coatings); Controlled’’ section; and c2. Nickel or alloys with more than 40% g.5. Tantalum or tantalum alloys; ■ c. By revising the ‘‘Items’’ paragraph, nickel by weight; g.6. Titanium or titanium alloys; in the ‘‘List of Items Controlled’’ c.3. Fluoropolymers; g.7. Zirconium or zirconium alloys; or section, to read as follows: c.4. Glass (including vitrified or enameled g.8. Niobium (columbium) or niobium coatings or glass lining); alloys. 2B350 Chemical manufacturing facilities c.5. Tantalum or tantalum alloys; h. Multi-walled piping incorporating a leak and equipment, except valves controlled by c.6. Titanium or titanium alloys; detection port, in which all surfaces that 2A226 or 2A292, as follows (see List of Items c.7. Zirconium or zirconium alloys; or come in direct contact with the chemical(s) Controlled). c.8. Niobium (columbium) or niobium being processed or contained are made from License Requirements alloys. any of the following materials: * * * * * d. Heat exchangers or condensers with a h.1. Alloys with more than 25% nickel and heat transfer surface area of less than 20 m2, 20% chromium by weight; License Requirement Note but greater than 0.15 m2, and tubes, plates, h.2. Nickel or alloys with more than 40% This ECCN does not control equipment coils or blocks (cores) designed for such heat nickel by weight; that is both: (1) Specially designed for use in exchangers or condensers, where all surfaces h.3. Fluoropolymers; civil applications (e.g., food processing, pulp that come in direct contact with the h.4. Glass (including vitrified or enameled and paper processing, or water purification) chemical(s) being processed are made from coatings or glass lining); and (2) inappropriate, by the nature of its any of the following materials: h.5. Tantalum or tantalum alloys; design, for use in storing, processing, d.1. Alloys with more than 25% nickel and h.6. Titanium or titanium alloys; producing or conducting and controlling the 20% chromium by weight; h.7. Zirconium or zirconium alloys;

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h.8. Niobium (columbium) or niobium amended by revising the ‘‘Items’’ a. The ‘‘digital computers’’ or related alloys; or paragraph, in the ‘‘List of Items equipment are essential for the operation of h.9. Graphite or carbon-graphite. Controlled’’ section, to read as follows: the other equipment or systems; i. Multiple-seal and seal-less pumps with b. The ‘‘digital computers’’ or related manufacturer’s specified maximum flow-rate 4A101 Analog computers, ‘‘digital equipment are not a ‘‘principal element’’ of greater than 0.6 m 3/hour, or vacuum pumps computers’’ or digital differential analyzers, the other equipment or systems; and, with manufacturer’s specified maximum other than those controlled by 4A001 N.B. 1: The control status of ‘‘signal flow-rate greater than 5 m 3/hour (under designed or modified for use in ‘‘missiles’’, processing’’ or ‘‘image enhancement’’ standard temperature (273 K (0 °C)) and having any of the following (see List of Items equipment specially designed for other pressure (101.3 kPa) conditions), and casings Controlled). equipment with functions limited to those (pump bodies), preformed casing liners, * * * * * required for the other equipment is impellers, rotors or jet pump nozzles determined by the control status of the other designed for such pumps, in which all List of Items Controlled equipment even if it exceeds the ‘‘principal surfaces that come into direct contact with Unit: *** element’’ criterion. the chemical(s) being processed are made Related Controls: *** N.B. 2: For the control status of ‘‘digital from any of the of the following materials: Related Definitions: *** computers’’ or related equipment for i.1. Alloys with more than 25% nickel and Items: telecommunications equipment, see Category 20% chromium by weight; a. Rated for continuous operation at 5, Part 1 (Telecommunications). c. The ‘‘technology’’ for the ‘‘digital i.2. Nickel or alloys with more than 40% temperatures from below 228 K (¥45 °C) to computers’’ and related equipment is nickel by weight; above 328 K (+55 °C); or determined by 4E. i.3. Fluoropolymers; b. Designed as ruggedized or ‘radiation a. Electronic computers and related i.4. Glass (including vitrified or enameled hardened’. equipment, and ‘‘electronic assemblies’’ and coatings or glass lining); Note: ‘Radiation hardened’ means that the specially designed components therefor, i.5. Tantalum or tantalum alloys; component or equipment is designed or rated rated for operation at an ambient temperature i.6. Titanium or titanium alloys; to withstand radiation levels which meet or above 343 K (70 °C); i.7. Zirconium or zirconium alloys; exceed a total irradiation dose of 5 × 105 rads b. ‘‘Digital computers’’, including i.8. Niobium (columbium) or niobium (Si). equipment of ‘‘signal processing’’ or image alloys. enhancement’’, having an ‘‘Adjusted Peak i.9. Graphite or carbon-graphite; ■ 20. In Supplement No. 1 to part 774 Performance’’ (‘‘APP’’) equal to or greater i.10. Ceramics; or (the Commerce Control List), Category than 0.0128 Weighted TeraFLOPS (WT); i.11. Ferrosilicon. 4—Computers, Export Control c. ‘‘Electronic assemblies’’ that are j. Incinerators designed to destroy chemical specially designed or modified to enhance warfare agents, chemical weapons precursors Classification Number (ECCN) 4A980 is amended by revising the ‘‘Items’’ performance by aggregation of processors, as controlled by 1C350, or chemical munitions follows: having specially designed waste supply paragraph, in the ‘‘List of Items c.1. Designed to be capable of aggregation systems, special handling facilities and an Controlled’’ section, to read as follows: in configurations of 16 or more processors; average combustion chamber temperature 4A980 Computers for fingerprint c.2. [Reserved]; greater than 1000 °C in which all surfaces in equipment, n.e.s. Note 1: 4A994.c applies only to ‘‘electronic the waste supply system that come into * * * * * assemblies’’ and programmable direct contact with the waste products are interconnections with a ‘‘APP’’ not exceeding made from or lined with any of the following List of Items Controlled the limits in 4A994.b, when shipped as materials: Unit: *** unintegrated ‘‘electronic assemblies’’. It does j.1. Alloys with more than 25% nickel and Related Controls: *** not apply to ‘‘electronic assemblies’’ 20% chromium by weight; inherently limited by nature of their design j.2. Nickel or alloys with more than 40% Related Definitions: *** Items: for use as related equipment controlled by nickel by weight; or 4A994.k. j.3. Ceramics. The list of items controlled is contained in Technical Note 1: Carbon-graphite is a the ECCN heading. Note 2: 4A994.c does not control any composition consisting primarily of graphite Note: 4A980 does not control equipment ‘‘electronic assembly’’ specially designed for and amorphous carbon, in which the graphite limited to one finger and designed for user a product or family of products whose maximum configuration does not exceed the is 8 percent or more by weight of the authentication or access control. limits of 4A994.b. composition. Technical Note 2: The metal alloys in ■ 21. In Supplement No. 1 to part 774 d. [Reserved]; 2B350 are those containing a higher e. [Reserved]; (the Commerce Control List), Category f. Equipment for ‘‘signal processing’’ or percentage by weight of the stated metal than 4—Computers, Export Control of any other element. ‘‘image enhancement’’ having an ‘‘Adjusted Classification Number (ECCN) 4A994 is Peak Performance’’ (‘‘APP’’) equal to or * * * * * amended by revising the ‘‘Items’’ greater than [0.0128] Weighted TeraFLOPS ■ 18. In Supplement No. 1 to part 774 paragraph, in the ‘‘List of Items WT]; (the Commerce Control List), Category Controlled’’ section, to read as follows: g. [Reserved]; 2—Materials Processing, Export Control h. [Reserved]; 4A994 Computers, ‘‘electronic assemblies’’, Classification Number (ECCN) 2B351 is i. Equipment containing ‘‘terminal and related equipment not controlled by interface equipment’’ exceeding the limits in amended by revising the ECCN heading 4A001 or 4A003, and specially designed 5A991; to read as follows: components therefor. j. Equipment specially designed to provide 2B351 Toxic gas monitoring systems that * * * * * external interconnection of ‘‘digital computers’’ or associated equipment that operate on-line and dedicated detectors List of Items Controlled therefor, as follows, except those systems and allows communications at data rates detectors controlled by ECCN 1A004.c (see Unit: *** exceeding 80 Mbyte/s. List of Items Controlled). Related Controls: *** Note: 4A994.j does not control internal Related Definitions: *** * * * * * interconnection equipment (e.g., backplanes, Items: buses) passive interconnection equipment, ■ 19. In Supplement No. 1 to part 774 Note 1: The control status of the ‘‘digital ‘‘network access controllers’’ or (the Commerce Control List), Category computers’’ and related equipment described ‘‘communication channel controllers’’. 4—Computers, Export Control in 4A994 is determined by the control status k. ‘‘Hybrid computers’’ and ‘‘electronic Classification Number (ECCN) 4A101 is of other equipment or systems provided: assemblies’’ and specially designed

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components therefor containing analog-to- ■ a. By removing paragraph (b)(8) from Control Classification Number (ECCN) digital converters having all of the following the ‘‘Items’’ paragraph in the ‘‘List of 7E002 is amended by removing the characteristics: Items Controlled’’ section; ECCN reference ‘‘7A007,’’ from the k.1. 32 channels or more; and, ■ b. By removing and reserving second sentence of the ‘‘Related k.2. A resolution of 14 bit (plus sign bit) paragraphs (c)(2) and (c)(4) of the Controls’’ paragraph in the ‘‘List of or more with a conversion rate of 200,000 ‘‘Items’’ paragraph in the ‘‘List of Items Items Controlled’’ section. conversions/s or more. Controlled’’ section, and ■ 29. In Supplement No. 1 to part 774 ■ c. By revising the ‘‘Note’’ at the end (the Commerce Control List), Category ■ 22. In Supplement No. 1 to part 774 of paragraph (c)(4) of the ‘‘Items’’ 7—Navigation and Avionics, Export (the Commerce Control List), Category paragraph in the ‘‘List of Items Control Classification Number (ECCN) 4—Computers, Export Control Controlled’’ section, to read as follows: 7E101 is amended by revising the Classification Number (ECCN) 4D993 is ‘‘Related Controls’’ paragraph, in the amended by revising the ECCN heading 5A991 Telecommunication equipment, not ‘‘List of Items Controlled’’ section, to and by revising paragraphs (b) and (c) of controlled by 5A001. read as follows: the ‘‘Items’’ paragraph, in the ‘‘List of * * * * * Items Controlled’’ section, to read as List of Items Controlled 7E101 ‘‘Technology’’, according to the General Technology Note for the ‘‘use’’ of follows: Unit: *** equipment controlled by 7A001 to 7A006, Related Controls: *** 4D993 ‘‘Program’’ proof and validation 7A101 to 7A107, 7A115 to 7A117, 7B001, Related Definitions: *** ‘‘software’’, ‘‘software’’ allowing the 7B002, 7B003, 7B101, 7B102, 7B103, or Items: automatic generation of ‘‘source codes’’, and 7D101 to 7D103. operating system ‘‘software’’ not controlled * * * * * * * * * * by 4D003 that are specially designed for real c. ‘‘Stored program controlled’’ * * * time processing equipment (see List of Items Note: Statistical multiplexers with digital List of Items Controlled Controlled). input and digital output which provide Unit: *** * * * * * switching are treated as ‘‘stored program Related Controls: The ‘‘technology’’ related controlled’’ switches. to 7A003.b, 7A005, 7A103.b, 7A105, 7A106, List of Items Controlled c.1. ‘‘Data (message) switching’’ equipment 7A115, 7A116, 7A117, 7B103, software Unit: *** or systems designed for ‘‘packet-mode specified in the Related Controls paragraph Related Controls: *** operation’’ and assemblies and components of ECCN 7D101, 7D102.a, or 7D103 are Related Definitions: *** therefor, n.e.s. subject to the export licensing authority of Items: c.2. [Reserved]; the U.S. Department of State, Directorate of * * * * * c.3. Routing or switching of ‘datagram’ Defense Trade Controls. (See 22 CFR part 121.) b. ‘‘Software’’ allowing the automatic packets; Related Definitions: *** generation of ‘‘source codes’’ from data c.4. [Reserved] Items: acquired on line from external sensors Note: The restrictions in 5A991.c.3 do not described in the Commerce Control List; or apply to networks restricted to using only * * * * * c. Operating system ‘‘software’’ specially ‘‘network access controllers’’ or to ‘‘network ■ 30. In Supplement No. 1 to part 774 designed for ‘‘real time processing’’ access controllers’’ themselves. (the Commerce Control List), Category equipment that guarantees a ‘‘global interrupt * * * * * 9—Propulsion Systems, Space Vehicles latency time’’ of less than 20 microseconds. ■ 25. In Supplement No. 1 to part 774 and Related Equipment, Export Control Classification Number (ECCN) 9E101 is ■ 23. In Supplement No. 1 to part 774 (the Commerce Control List), Category 6—Sensors and Lasers, Export Control amended by revising the ECCN heading, (the Commerce Control List), Category to read as follows: 4—Computers, Export Control Classification Number (ECCN) 6A995 is Classification Number (ECCN) 4E992 is amended by revising the ECCN heading, 9E101 ‘‘Technology’’ according to the amended by revising the ‘‘Related to read as follows: General Technology Note for the ‘‘development’’, ‘‘production’’, or ‘‘use’’ of Controls’’ paragraph, in the ‘‘List of 6A995 ‘‘Lasers’’ (see List of Items commodities or software controlled by Items Controlled’’ section, to read as Controlled). 9A012, 9A101, 9A104 to 9A111, 9A115 to follows: * * * * * 9A119, 9C110, 9D101, 9D103, 9D104 or 4E992 ‘‘Technology’’ other than that ■ 26. In Supplement No. 1 to part 774 9D105. controlled in 4E001 for the ‘‘development’’, (the Commerce Control List), Category * * * * * ‘‘production’’, or ‘‘use’’ of equipment 7—Navigation and Avionics, Export Dated: September 29, 2008. controlled by 4A994 and 4B994, materials Control Classification Number (ECCN) Christopher R. Wall, controlled by 4C994, or ‘‘software’’ controlled 7D001 is amended by removing the by 4D993 or 4D994. Assistant Secretary for Export ECCN reference ‘‘7A007,’’ from the Administration. * * * * * second sentence of the ‘‘Related [FR Doc. E8–23289 Filed 10–3–08; 8:45 am] List of Items Controlled Controls’’ paragraph in the ‘‘List of BILLING CODE 3510–33–P Unit: *** Items Controlled’’ section. ■ Related Controls: N/A 27. In Supplement No. 1 to part 774 (the Commerce Control List), Category Related Definitions: *** DEPARTMENT OF STATE Items: 7—Navigation and Avionics, Export Control Classification Number (ECCN) * * * * * 22 CFR Part 126 7E001 is amended by removing the ■ 24. In Supplement No. 1 to part 774 ECCN reference ‘‘7A007,’’ from the [Public Notice: 6384] (the Commerce Control List), Category second sentence of the ‘‘Related 5—Telecommunications and Controls’’ paragraph in the ‘‘List of Amendment to the International Arms ‘‘Information Security’’, Part 1 Items Controlled’’ section. Traffic in Arms Regulations: Eritrea ■ Telecommunications, Export Control 28. In Supplement No. 1 to part 774 AGENCY: Department of State. Classification Number (ECCN) 5A991 is (the Commerce Control List), Category ACTION: Final Rule. amended: 7—Navigation and Avionics, Export

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SUMMARY: The Department of State is government and the States, or on the embargoes are normally the subject of a adding Eritrea to its regulations on distribution of power and State Department notice published in prohibited exports and sales to certain responsibilities among the various the Federal Register. The exemptions countries as a result of its designation as levels of government. Therefore, in provided in the regulations in this a country not cooperating fully with accordance with Executive Order 13132, subchapter, except § 123.17 of this antiterrorism efforts. it is determined that this amendment subchapter, do not apply with respect to DATES: This rule is effective October 3, does not have sufficient federalism articles originating in or for export to 2008. implications to require consultations or any proscribed countries, areas, or FOR FURTHER INFORMATION CONTACT: warrant the preparation of a federalism persons in this § 126.1. Nicholas Memos, Office of Defense summary impact statement. The * * * * * Trade Controls Policy, Department of regulations implementing Executive Order 12372 regarding Dated: September 25, 2008. State, Telephone (202) 663–2804 or Fax John C. Rood, (202) 261–8199; E-mail intergovernmental consultation on Acting Under Secretary for Arms Control and [email protected]. Federal programs and activities do not apply to this amendment. International Security, Department of State. SUPPLEMENTARY INFORMATION: On May [FR Doc. E8–23575 Filed 10–3–08; 8:45 am] Executive Order 12866 14, the Deputy Secretary of State BILLING CODE 4710–25–P determined that six countries, , This amendment is exempt from Eritrea, , , and review under Executive Order 12866, , are not cooperating fully but has been reviewed internally by the ENVIRONMENTAL PROTECTION with anti-terrorism efforts (73 FR Department of State to ensure AGENCY 29172). As a result of this consistency with the purposes thereof. determination, Section 40A of the Arms 40 CFR Part 50 Export Control Act, as amended (22 Paperwork Reduction Act U.S.C. 2781), prohibits the sale or This rule does not impose any new [EPA–HQ–OAR–2005–0159; FRL–8725–5] licensing for export of defense articles reporting or recordkeeping requirements RIN 2060–AP28 and defense services to those countries subject to the Paperwork Reduction Act, effective October 1. This rule adds 44 U.S.C. Chapter 35. The Treatment of Data Influenced by Exceptional Events (Exceptional Event Eritrea to the list of countries identified List of Subjects in 22 CFR Part 126 in 22 CFR 126.1(a). Rule): Revised Exceptional Event Data Arms and munitions, Exports. Flagging Submittal and Documentation Regulatory Analysis and Notices ■ Accordingly, for the reasons set forth Schedule To Support Initial Area Administrative Procedure Act above, Title 22, Chapter I, Subchapter Designations for the 2008 Ozone M, Part 126 is amended as follows: NAAQS This amendment involves a foreign affairs function of the United States and, PART 126—GENERAL POLICIES AND AGENCY: Environmental Protection therefore, is not subject to the PROVISIONS Agency (EPA). procedures contained in 5 U.S.C. 553 ACTION: Direct final rule. and 554. ■ 1. The authority citation for Part 126 continues to read as follows: Regulatory Flexibility Act SUMMARY: EPA is taking direct final Authority: Secs. 2, 38, 40, 42 and 71, Pub. action to amend the Exceptional Events Since this amendment is not subject L. 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, Rule to provide a revised exceptional to the procedures in 5 U.S.C. 553, it 2780, 2791 and 2797); E.O. 11958, 42 FR event data flagging and documentation does not require analysis under the 4311; 3 CFR, 1977 Comp., p.79; 22 U.S.C. schedule for ozone data that may be Regulatory Flexibility Act. 2651a; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p.899; Sec. 1225, used for designations under the 2008 Unfunded Mandates Act of 1995 Pub. L. 108–375. ozone national ambient air quality standards (NAAQS). The Exceptional This amendment does not involve a ■ 2. Section 126.1 is amended by Events Rule states that when EPA sets mandate that will result in the revising paragraph (a) as follows: a NAAQS for a new pollutant or revises expenditure by state, local, and tribal the NAAQS for an existing pollutant, governments, in the aggregate, or by the § 126.1 Prohibited exports and sales to certain countries. EPA may revise or set a new schedule private sector, of $100 million or more for flagging data for those NAAQS. EPA in any year and it will not significantly (a) General. It is the policy of the recently revised the primary and or uniquely affect small governments. United States to deny licenses and other secondary ozone NAAQS to protect Therefore, no actions were deemed approvals for exports and imports of public health and welfare; the revised necessary under the provisions of the defense articles and defense services, standards became effective on May 27, Unfunded Mandates Reform Act of destined for or originating in certain 2008. Consistent with the process 1995. countries. This policy applies to , Cuba, Eritrea, Iran, North envisioned in the Exceptional Events Small Business Regulatory Enforcement Korea, Syria, and Venezuela. This Rule, this direct final action revises the Fairness Act of 1996 policy also applies to countries with dates for flagging data and submitting This amendment has been found not respect to which the United States documentation regarding exceptional to be a major rule within the meaning maintains an arms embargo (e.g., Burma, events under the revised ozone NAAQS. of the Small Business Regulatory China, , and ) or whenever This revised schedule allows EPA to Enforcement Fairness Act of 1996. an export would not otherwise be in fully consider state requests for furtherance of world peace and the exceptional event concurrence prior to Executive Orders 12372 and 13132 security and foreign policy of the United EPA making final designations. This amendment will not have States. Information regarding certain DATES: The direct final rule is effective substantial direct effects on the States, other embargoes appears elsewhere in on December 22, 2008 without further on the relationship between the national this section. Comprehensive arms notice, unless EPA receives adverse

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comment by November 20, 2008. If EPA cannot read your comment due to I. National Technology Transfer receives an adverse comment, we will technical difficulties and cannot contact Advancement Act publish a timely withdrawal in the you for clarification, EPA may not be J. Executive Order 12898: Federal Actions To Address Environmental Justice in Federal Register informing the public able to consider your comment. Minority Populations and Low-Income that this direct final rule will not take Electronic files should avoid the use of Populations effect. special characters and any form of K. Congressional Review Act ADDRESSES: Submit your comments, encryption, and be free of any defects or L. Judicial Review viruses. For additional information identified by Docket ID No. EPA–HQ– I. Why Is EPA Using a Direct Final about EPA’s public docket visit the EPA OAR–2005–0159, by one of the Rule? following methods: Docket Center homepage at http:// • http://www.regulations.gov: Follow www.epa.gov/epahome/dockets.htm. This action provides for a revised the on-line instructions for submitting Docket: All documents in the docket schedule to flag data and submit comments. are listed in the http:// documentation related to exceptional • E-mail: [email protected]. www.regulations.gov index. Although events that influence ozone data which Attention Docket ID No. EPA–HQ– listed in the index, some information is may affect designations under the OAR–2005–0159. not publicly available, e.g., CBI or other recently revised ozone NAAQS. This • Fax: (202) 566–9744. Attention information whose disclosure is action creates no additional regulatory Docket ID No. EPA–HQ–OAR–2005– restricted by statute. Certain other requirements. We are publishing this 0159. material, such as copyrighted material, direct final rule because we view this as • Mail: EPA Docket Center, EPA West will be publicly available only in hard a noncontroversial action and anticipate (Air Docket), Attention Docket ID No. copy. Publicly available docket no adverse comment. In the ‘‘Proposed Rules’’ section of EPA–HQ–OAR–2005–0159, materials are available either this Federal Register, we are publishing Environmental Protection Agency, electronically in http:// a separate document that will serve as Mailcode: 2822T, 1200 Pennsylvania www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC, EPA the proposed rule for this action to Ave., NW., Washington, DC 20460. revise the schedule for flagging and • Hand Delivery: EPA Docket Center West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public documenting ozone exceptional events (Air Docket), Attention Docket ID No. data if relevant adverse comments are Reading Room is open from 8:30 a.m. to EPA–HQ–OAR–2005–0159, received on this direct final rule. We 4:30 p.m., Monday through Friday, Environmental Protection Agency, 1301 will not institute a second comment excluding legal holidays. The telephone Constitution Avenue, NW., Room 3334; period on this action. Any parties number for the Public Reading Room is Washington, DC. Such deliveries are interested in commenting must do so at (202) 566–1744, and the telephone only accepted during the Docket’s this time. For further information about number for the EPA Docket Center is normal hours of operation, and special commenting on this rule, see the (202) 566–1742. arrangements should be made for ADDRESSES section of this document. deliveries of boxed information. FOR FURTHER INFORMATION CONTACT: If EPA receives an adverse comment, Instructions: Direct your comments to Thomas E. Link, Air Quality Planning we will publish a timely withdrawal in Docket ID No. EPA–HQ–OAR–2005– Division, Office of Air Quality Planning the Federal Register informing the 0159. EPA’s policy is that all comments and Standards, Mail Code C539–04, public that this direct final rule will not received will be included in the public Environmental Protection Agency, take effect. We will address all public docket without change and may be Research Triangle Park, North Carolina comments in any subsequent final rule made available online at http:// 27711; telephone number: 919–541– based on the proposed rule. www.regulations.gov, including any 5456; fax number: 919–541–0824; e-mail personal information provided, unless address: [email protected]. II. Does This Action Apply to Me? the comment includes information SUPPLEMENTARY INFORMATION: States are responsible for identifying claimed to be Confidential Business air quality data that they believe warrant Information (CBI) or other information Outline special consideration, including data whose disclosure is restricted by statute. I. Why Is EPA Using a Direct Final Rule? affected by exceptional events. States Do not submit information that you II. Does This Action Apply to Me? identify such data by flagging (making a consider to be CBI or otherwise III. What Should I Consider As I Prepare My notation in a designated field in the protected through http:// Comments? electronic data record) specific values in www.regulations.gov or e-mail. The IV. What Is the Availability of Related the Air Quality System (AQS) database. http://www.regulations.gov Web site is Information? States must flag the data and submit a an ‘‘anonymous access’’ system, which V. What Is the Background for This Action? justification that the data are affected by means EPA will not know your identity VI. What Is This Direct Final Rule? VII. Statutory and Executive Order Reviews exceptional events if they wish EPA to or contact information unless you A. Executive Order 12866: Regulatory consider excluding the data in provide it in the body of your comment. Planning and Review determining whether or not an area is If you send an e-mail comment directly B. Paperwork Reduction Act attaining the revised ozone NAAQS. to EPA without going through http:// C. Regulatory Flexibility Act All states that include areas that could www.regulations.gov your e-mail D. Unfunded Mandates Reform Act exceed the ozone NAAQS, and could address will be automatically captured E. Executive Order 13132: Federalism therefore be designated as and included as part of the comment F. Executive Order 13175: Consultation nonattainment for the ozone NAAQS, that is placed in the public docket and and Coordination With Indian Tribal have the potential to be affected by this made available on the Internet. If you Governments rulemaking. Therefore, this action G. Executive Order 13045: Protection of submit an electronic comment, EPA Children From Environmental Health applies to all states; to local air quality recommends that you include your and Safety Risks agencies to which a state has delegated name and other contact information in H. Executive Order 13211: Actions That relevant responsibilities for air quality the body of your comment and with any Significantly Affect Energy Supply, management including air quality disk or CD–ROM you submit. If EPA Distribution, or Use monitoring and data analysis; and, to

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Tribal air quality agencies where submitted electronically as described 107(b), state Governors must provide appropriate. The Exceptional Events below). A public version of this record, their recommendations to EPA by Rule describes in greater detail to whom including printed, paper versions of March 12, 2009, on designating areas as the Rule applies in 72 FR at 13562– electronic comments, which does not attainment, nonattainment, or 13563 (March 22, 2007). include any information claimed as CBI, unclassifiable with the new standards. is available for inspection from 8:30 States will base their recommendations III. What Should I Consider as I a.m. to 4:30 p.m., Monday through on the three most recent years of Prepare My Comments? Friday, excluding legal holidays. The quality-assured ozone data, which could A. Submitting CBI official rulemaking record is located at be data collected between calendar the address provided in ADDRESSES at years 2006–2008, or 2005–2007. EPA Do not submit this information to EPA the beginning of this document. must complete final area designations through http://www.regulations.gov or for these new standards by March 12, e-mail. Clearly mark the part or all of V. What Is the Background for This 2010. EPA will base its designations the information that you claim to be Action? decisions on the three most recent years CBI. For CBI information in a disk or The Exceptional Events Rule of quality-assured air quality data for CD–ROM that you mail to EPA, mark (Treatment of Data Influenced by each area, which would be ozone data the outside of the disk or CD–ROM as Exceptional Events (72 FR 13560, March collected during calendar years 2007– CBI and then identify electronically 22, 2007)) sets a general schedule for 2009 where states have submitted within the disk or CD–ROM the specific states to flag monitored data affected by quality-assured data for calendar year information that is claimed as CBI. In exceptional events in AQS and for them 2009. However, in some cases the most addition to one complete version of the to submit documentation to demonstrate recent complete data may cover 2006– comment that includes information that the flagged data were impacted by 2008 or 2005–2007. In this example, the claimed as CBI, a copy of the comment an exceptional event. Under this general general exceptional event flagging that does not contain the information schedule, a state must initially notify schedule for 2005 and 2006 data has claimed as CBI must be submitted for EPA that data have been affected by an already passed and the flagging deadline inclusion in the public docket. exceptional event by July 1 of the year for exceptional events that occurred in Information so marked will not be after the data are collected; this is 2007 would be July 1, 2008— disclosed except in accordance with accomplished by flagging the data in approximately 33 days after the effective procedures set forth in 40 CFR part 2. AQS. The state must also include an date of the revised NAAQS. In addition, B. Tips for Preparing Your Comments initial description of the event when the general schedule would require flagging the data. In addition, the state states to submit demonstrations for 2009 When submitting comments, is required to submit a full data influenced by exceptional events remember to: demonstration to justify exclusion of • no later than March 12, 2009, one year Identify the rulemaking by docket such data within three years after the before the final designation decisions. number and other identifying quarter in which the data were This is clearly not possible for air information (subject heading, Federal collected, or if a regulatory decision quality data collected from March 13, Register date and page number). based on the data (such as a designation • 2009 to December 31, 2009. Follow directions—The agency may action) is anticipated, the demonstration EPA is, therefore, using the authority ask you to respond to specific questions must be submitted to EPA no later than provided in the Exceptional Events Rule or organize comments by referencing a one year before the regulatory decision at 40 CFR 50.14(c)(2)(v), to modify the Code of Federal Regulations (CFR) part is to be made. schedule for data flagging and or section number. However, the rule also authorizes EPA submission of demonstration for • Explain why you agree or disagree; to revise data flagging and exceptional events data considered for suggest alternatives and substitute documentation schedules for the initial initial designations under the 2008 language for your requested changes. designation of areas under a new or revised ozone NAAQS. • Describe any assumptions and revised NAAQS. This general schedule, provide any technical information and/ while appropriate for the period after VI. What Is This Direct Final Rule? or data that you used. initial designations have been made This direct final rule amends the • If you estimate potential costs or under a NAAQS, may need adjustment Exceptional Events Rule by providing a burdens, explain how you arrived at when a new or revised NAAQS is revised exceptional event data flagging your estimate in sufficient detail to promulgated because until the level and and documentation schedule regarding allow for it to be reproduced. form of the NAAQS have been claimed exceptional events affecting • Provide specific examples to promulgated a state would not have ozone monitoring data that will be illustrate your concerns, and suggest complete knowledge of the criteria for compared to the 2008 revised ozone alternatives. excluding data. In these cases the NAAQS for the purpose of initial ozone • Explain your views as clearly as general schedule may preclude states designations. In some cases, EPA is possible, avoiding the use of profanity from submitting timely flags and extending the otherwise applicable or personal threats. associated documentation for otherwise deadline for states to flag data and • Make sure to submit your approvable exceptional events. This submit documentation. In other cases, comments by the comment period could, if not modified, result in some EPA is shortening (for this purpose deadline identified. areas receiving a nonattainment only) the otherwise applicable schedule designation when the NAAQS to assure that the exceptional events IV. What Is the Availability of Related violations were legitimately due to claims can be fully considered by EPA Information? exceptional events. in the designations decisions. The official record for this For example, EPA finalized new For air quality data collected in the rulemaking, as well as the public standards for ozone of 0.075 pounds per years 2005 through 2007, this revised version, has been established under billion (ppb) on March 12, 2008, with an schedule extends the general schedule Docket ID No. EPA–HQ–OAR–2005– effective date of May 27, 2008. In for flagging data (and providing a brief 0159 (including comments and data accordance with Clean Air Act Section initial description of the event) from

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July 1 of the year following the year the 2008 and 2009 this would give a state period to prepare the justifications, and data are collected, to December 31, less time, but EPA believes still EPA a reasonable period to consider the 2008. For data collected in 2008, the sufficient time, to decide what 2008 and information submitted by the state. With revised schedule extends the general 2009 data to flag, and would allow EPA this direct final action EPA amends schedule for flagging data and providing to have access to the flags and § 50.14(c)(2)(v) to add a tabular schedule a brief initial description of the event to supporting data in time for EPA to of data submittal deadlines, by March 12, 2009, to coincide with the develop its own proposed and final pollutant, for new or revised NAAQS deadline for state Governors to submit plans for designations. (If EPA extends standards. (PM2.5 data submittal designation recommendations to EPA. the designations date beyond March schedules revised in March 2007 and The deadline for submitting to EPA a 2010 due to insufficient information, a presented in this table are for detailed demonstration to justify new event flagging deadline and informational purposes only. EPA is not exclusion of data collected in 2005 detailed documentation submission

through 2008 is also being set to March deadline will be published.) While the taking further comment on the PM2.5 12, 2009. The deadline for submitting to new deadlines for submission of a data submittal schedule published in 72 EPA flagged data with initial state’s demonstration for data collected FR 13560, March 22, 2007.) EPA descriptions and a detailed in 2009 is less than a year before the anticipates providing amendments to demonstration to justify exclusion of designation decisions would be made, the following table to add data data collected in 2009 is being set to EPA believes it is a reasonable approach submission schedules for new or revised January 8, 2010. For data collected in between giving states a reasonable NAAQS standards in the future.

TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS

Air quality data NAAQS pollutant standard/(level)/promulgation date collected for cal- Event flagging and initial Detailed documentation endar year description deadline submission deadline

3 a a PM2.5/24-Hr Standard (35 µg/m ) Promulgated October 17, 2004–2006 October 1, 2007 ...... April 15, 2008 . 2006. Ozone/8-Hr Standard (0.075 ppb) Promulgated March 12, 2005–2007 December 31, 2008 b ...... March 12, 2009 b. 2008. 2008 March 12, 2009 b ...... March 12, 2009 b. 2009 January 8, 2010 b ...... January 8, 2010 b. a These dates are unchanged from those published in the original rulemaking, and are shown in this table for informational purposes. b Indicates change from general schedule in 40 CFR 50.14. Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final initial designations for new or re- vised NAAQS. The general schedule applies for all other purposes, most notably, for data used by EPA for redesignations to attainment.

VII. Statutory and Executive Order Therefore, it does not impose an After considering the economic Reviews information collection burden. impacts of this final on small entities, I certify that this action will not have a A. Executive Order 12866: Regulatory C. Regulatory Flexibility Act significant economic impact on a Planning and Review The Regulatory Flexibility Act (RFA) substantial number of small entities. Under Executive Order (EO) 12866 generally requires an agency to prepare This rule modifies previously (58 FR 51735, October 4, 1993), this a regulatory flexibility analysis of any established deadlines under the action is a ‘‘significant regulatory rule subject to notice and comment Exceptional Events Rule and does not action’’ because it is likely to raise novel rulemaking requirements under the impose any new obligations or legal or policy issues arising out of legal Administrative Procedure Act or any enforceable duties on any State, local or mandates, the President’s priorities, or other statute unless the agency certifies tribal governments or the private sector. Thus, it does not impose any the principles set forth in the Executive that the rule will not have a significant Order. Accordingly, EPA submitted this requirements on small entities. economic impact on a substantial action to the Office of Management and number of small entities. Small entities D. Unfunded Mandates Reform Act Budget (OMB) for review under EO include small businesses, small 12866 and any changes made in This action contains no Federal organizations, and small governmental response to OMB recommendations mandates under the provisions of Title jurisdictions. have been documented in the docket for II of the Unfunded Mandates Reform this action. For purposes of assessing the impacts Act of 1995 (URMA), 2 U.S.C. 1531– of this rule on small entities, small 1538 for State, local, or tribal B. Paperwork Reduction Act entity is defined as: (1) A small business governments or the private sector. This This action does not impose an as defined by the Small Business action imposes no enforceable duty on information collection burden under the Administration’s (SBA) regulations at 13 any State, local or tribal governments or provisions of the Paperwork Reduction CFR 121.201; (2) a small governmental the private sector. This action modifies Act, 44 U.S.C. 3501 et seq., where jurisdiction that is a government of a previously established deadlines under burden is defined at 5 CFR 1320.3(b). city, county, town, school district or the Exceptional Events Rule and does This rule modifies previously special district with a population of less not impose any new obligations or established deadlines under the than 50,000; and (3) a small enforceable duties on any State, local or Exceptional Events Rule and does not organization that is any not-for-profit tribal governments or the private sector. impose any new obligations or enterprise which is independently Therefore, this action is not subject to enforceable duties on any State, local or owned and operated and is not the requirements of sections 202 and tribal governments or the private sector. dominant in its field. 205 of the UMRA.

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This action is also not subject to the 13045 because it does not establish an Congress and to the Comptroller General requirements of section 203 of URMA environmental standard intended to of the United States. EPA will submit a because it contains no regulatory mitigate health or safety risks. report containing this rule and other requirements that might significantly or required information to the U.S. Senate, H. Executive Order 13211: Actions That uniquely affect small governments. This the U.S. House of Representatives, and Significantly Affect Energy Supply, rule modifies previously established the Comptroller General of the United Distribution, or Use deadlines under the Exceptional Events States prior to publication of the rule in Rule and does not impose any new This action is not a ‘‘significant the Federal Register. A Major rule obligations or enforceable duties on any energy action’’ as defined in Executive cannot take effect until 60 days after it small governments. Order 13211 (66 FR 28355 (May 22, is published in the Federal Register. 2001)), because it is not likely to have E. Executive Order 13132: Federalism This action is not a ‘‘major rule’’ as a significant adverse effect on the defined by 5 U.S.C. 804(2). This rule Executive Order 13132, entitled supply, distribution, or use of energy. will be effective December 22, 2008. ‘‘Federalism’’ (64 FR 43255, August 10, Further, we have concluded that this 1999), requires EPA to develop an rule is not likely to have any adverse L. Judicial Review accountable process to ensure effects because this action modifies Under CAA section 307(b), judicial ‘‘meaningful and timely input by state previously established deadlines under review of this final action is available and local officials in the development of the Exceptional Events Rule. only by filing a petition for review in regulatory policies that have federalism the U.S. Court of Appeals for the District I. National Technology Transfer implications.’’ Policies that have of Columbia Circuit on or before Advancement Act federalism implications’’ is defined in December 5, 2008. Under CAA section the Executive Order to include This action does not involve technical 307(d)(7)(B), only those objections to the regulations that have ‘‘substantial direct standards. Therefore, EPA did not final rule that were raised with effects on the states, on the relationship consider the use of any voluntary specificity during the period for public between the national government and consensus standards. comment may be raised during judicial the states, or on the distribution of J. Executive Order 12898: Federal review. Moreover, under CAA section power and responsibilities among the Actions To Address Environmental 307(b)(2), the requirements established various levels of government. Justice in Minority Populations and by this final rule may not be challenged This direct final does not have Low-Income Populations separately in any civil or criminal federalism implications. It will not have proceedings brought by EPA to enforce substantial direct effects on the states, Executive Order 12898 (59 FR 7629 these requirements. on the relationship between the national (Feb. 16, 1994)) establishes Federal government and the states, or on the executive policy on environmental List of Subjects in 40 CFR Part 50 distribution of power and justice. Its main provision directs Environmental protection, Air responsibilities among the various Federal agencies, to the greatest extent pollution control, National parks, levels of government, as specified in practicable and permitted by law, to Wilderness areas. make environmental justice part of their Executive Order 13132. This rule Dated: September 30, 2008. modifies previously established mission by identifying and addressing, Stephen L. Johnson, deadlines under the Exceptional Events as appropriate, disproportionately high Rule and does not impose any new and adverse human health or Administrator. obligations or enforceable duties on any environmental effects of their programs, ■ For the reasons set forth in the state, local or tribal governments or the policies, and activities on minority preamble, part 50 of chapter I of title 40 private sector. Thus, Executive Order populations and low-income of the Code of Federal Regulations is 13132 does not apply to this rule. populations in the United States. amended as follows: EPA has determined that this direct F. Executive Order 13175: Consultation final will not have disproportionately PART 50—[AMENDED] and Coordination With Indian Tribal high and adverse human health or Governments ■ 1. The authority citation for part 50 environmental effects on minority or continues to read as follows: This action does not have tribal low-income populations because it will implications, as specified in Executive not affect the level of protection Authority: 42 U.S.C. 7401 et seq. Order 13175 (65 FR 67249, November 9, provided to human health or the ■ 2. Section 50.14 is amended by 2000). This rule modifies previously environment. This rule modifies revising paragraph (c)(2)(v) to read as established deadlines under the previously established deadlines under follows: Exceptional Events Rule and does not the Exceptional Events Rule and does impose any new obligations or not impose any new obligations or § 50.14 Treatment of air quality monitoring enforceable duties on tribal enforceable duties on any state, local or data influenced by exceptional events. governments. Thus, Executive Order tribal governments or the private sector. * * * * * 13175 does not apply to this rule. It will neither increase nor decrease (c) * * * environmental protection. (2) * * * G. Executive Order 13045: Protection of (v) When EPA sets a NAAQS for a Children From Environmental Health K. Congressional Review Act new pollutant or revises the NAAQS for and Safety Risks The Congressional Review Act, 5 an existing pollutant, it may revise or This action is not subject to EO 13045 U.S.C. 801 et seq., as added by the Small set a new schedule for flagging (62 F.R. 19885, April 23, 1997) because Business Regulatory Enforcement exceptional event data, providing initial the Agency does not believe the Fairness Act of 1996, generally provides data descriptions and providing detailed environmental health risks or safety that before a rule may take effect, the data documentation in AQS for the risks addressed by this action present a agency promulgating the rule must initial designations of areas for those disproportionate risk to children. This submit a rule report, which includes a NAAQS: Table 1 provides the schedule action is not subject to Executive Order copy of the rule, to each House of the for submission of flags with initial

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descriptions in AQS and detailed influence the initial designation of areas accommodate revised data submission documentation and the schedule shall for those NAAQS. EPA anticipates schedules for new or revised NAAQS. apply for those data which will or may revising Table 1 as necessary to

TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS

Air quality data NAAQS pollutant/standard/(level)/promulgation date collected for cal- Event flagging and initial Detailed documentation endar year description deadline submission deadline

3 a a PM2.5/24-Hr Standard (35 µg/m ) Promulgated October 17, 2004–2006 October 1, 2007 ...... April 15, 2008 . 2006. Ozone/8-Hr Standard (0.075 ppb) Promulgated March 12, 2005–2007 December 31, 2008 b ...... March 12, 2009 b. 2008. 2008 March 12, 2009 b ...... March 12, 2009 b. 2009 January 8, 2010 b ...... January 8, 2010 b. a These dates are unchanged from those published in the original rulemaking, and are shown in this table for informational purposes. b Indicates change from general schedule in 40 CFR 50.14. Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final initial designations for new or re- vised NAAQS. The general schedule applies for all other purposes, most notably, for data used by EPA for redesignations to attainment.

* * * * * to be consistent with current medical Migration and Quarantine, Centers for [FR Doc. E8–23520 Filed 10–3–08; 8:45 am] knowledge and practice. Disease Control and Prevention, U.S. BILLING CODE 6560–50–P These changes will reduce the health- Department of Health and Human security threat to the United States from Services, 1600 Clifton Road, NE., E03, emerging diseases without imposing an , GA 30333; telephone 404–498– DEPARTMENT OF HEALTH AND undue burden on either the aliens or the 1600. HUMAN SERVICES health-care system in U.S. resettlement SUPPLEMENTARY INFORMATION: The communities. Preamble to this interim rule is Centers for Disease Control and DATES: The interim rule is effective on organized as follows: Prevention October 6, 2008. Interested parties must I. Legal Authority submit written comments on or before II. Background 42 CFR Part 34 December 5, 2008. HHS/CDC will III. Summary of Changes to 42 CFR Part 34 consider comments received after this [Docket No. CDC–2008–0002] IV. Revised Definition of Communicable period only to the extent practicable. Disease of Public Health Significance RIN 0920–AA20 ADDRESSES: You may submit written V. Revised Scope of Medical Examination comments, identified by Docket No. VI. Updating Tuberculosis Screening Medical Examination of Aliens— CDC–2008–0002, to the following Requirements Revisions to Medical Screening address: Division of Global Migration VII. Urgent Need for Regulatory Change Process VIII. Analysis of Impacts and Quarantine, Centers for Disease IX. Paperwork Reduction Act of 1995 AGENCY: Centers for Disease Control and Control and Prevention, U.S. X. References Prevention, U.S. Department of Health Department of Health and Human and Human Services. Services, ATTN: Part 34 Comments, I. Legal Authority ACTION: Interim final rule with comment 1600 Clifton Road, NE., E03, Atlanta, HHS/CDC is promulgating this rule period. GA 30333. under the authority of 42 U.S.C. 252 and Comments will be available for public 8 U.S.C. 1182 and 1222. SUMMARY: The Centers for Disease inspection from Monday through Control and Prevention (CDC), within Friday, except for legal holidays, from 9 II. Background the U.S. Department of Health and a.m. until 5 p.m., Eastern Time, at 1600 Under section 212(a)(1) of the Human Services (HHS), is amending its Clifton Road, NE., Atlanta, GA 30333. Immigration and Nationality Act (INA) regulations that govern medical Please call ahead to 1–866–694–4867, (8 U.S.C. 1182(a)(1)), any alien examinations that aliens must undergo and ask for a representative in the determined to have a specified health- before they may be admitted to the Division of Global Migration and related condition is inadmissible to the United States. HHS/CDC is amending Quarantine to schedule your visit. United States. Those aliens outside the the definition of communicable disease Comments are also available for United States with a specified health- of public health significance. HHS/CDC viewing at the following Internet related condition (see below) are is also amending the provisions that addresses: http://www.cdc.gov/ncidod/ ineligible to receive a visa and ineligible describe the scope of the medical dq and http://www.globalhealth.gov. to be admitted into the United States. examination for aliens by incorporating You may submit written comments The grounds of inadmissibility for a more flexible, risk-based approach, electronically via the Internet at the specified health-related conditions also based on medical and epidemiologic following address: http:// pertain to aliens in the United States factors. This approach will assist HHS/ www.regulations.gov, or via e-mail to who are applying for adjustment of CDC in determining which diseases the [email protected]. immigration status to that of a lawful medical screening, testing, and To download an electronic version of permanent resident. treatment of aliens should include in the rule, please go to the following Aliens are currently inadmissible into areas of the world that are experiencing Internet address: http:// the United States if they have a unforeseen outbreaks of those diseases. www.regulations.gov. communicable disease of public health In addition, HHS/CDC is updating the FOR FURTHER INFORMATION, CONTACT: significance, defined as follows: Active screening requirements for tuberculosis Stacy M. Howard, Division of Global tuberculosis, infectious syphilis,

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gonorrhea, infectious leprosy, alien who seeks admission as an The highest rates of tuberculosis chancroid, lymphogranuloma immigrant, or seeks adjustment of among immigrants and refugees are for venereum, granuloma inguinale, and immigration status to legal permanent those born in sub-Saharan African and HIV infection. resident, is inadmissible if the alien fails Southeast Asian countries, with rates of Medical examinations, including a to present documentation of having at least 250 cases per 100,000. By physical and mental evaluation, to received vaccination against mumps, comparison, the rate in the United determine whether an alien may have measles, rubella, polio, tetanus and States is fewer than five cases per such a health-related condition, are diphtheria toxoids, pertussis, 100,000. Overall, approximately one- authorized under section 232 of the INA Haemophilus influenzae type B, third of the world’s population has the (8 U.S.C. 1222). Under sections 212(a)(1) hepatitis B and any other vaccination infection, and over 50 percent of TB and 232 of the INA, and section 325 of recommended by the Advisory cases in the United States are in foreign- the Public Health Service (PHS) Act (42 Committee for Immunization Practices. born residents. U.S.C. 252), the Secretary of Health and Annually, the U.S. Government Panel physicians miss up to 67 per Human Services promulgates admits more than 1,000,000 immigrants cent of tuberculosis (TB) cases based on regulations to establish the requirements and refugees to reside permanently in the current scope of medical for the medical examination and to list this country. The majority arrives from examination requirements. the health-related conditions that make , Africa and Central and South Implementation of these revisions to the aliens ineligible for entry into the America, regions with recently reported regulations would ensure the methods United States. The regulations, outbreaks of emerging, infectious for screening and testing TB used during administered by HHS/CDC, are diseases, including yellow fever, the medical examination of aliens promulgated at 42 FR part 34. dengue, Ebola and Marburg hemorrhagic reflect the most current medical As currently listed in § 34.1, the fevers and the H5N1 strain of highly practice. provisions in this part apply to the pathogenic avian influenza. These The resettlement of these populations, medical examination of (1) aliens regular outbreaks, many of which affect many of which are coming from high- outside the United States who are both urban and rural areas, and the risk countries, is a strong argument for applying for an immigrant visa at an movement of large population an immediate implementation of the embassy or consulate of the United resettlements from these regions, changes in the list of communicable States; (2) aliens arriving in the United highlight the serious threat to public diseases of public health significance to States; (3) aliens required by the U.S. health in the United States to which the reduce the potential of emerging disease Department of Homeland Security Centers for Disease Control and threats in this higher-risk caseload. (DHS) [formerly required by the Prevention (CDC) within the U.S. Urgent changes to this list are needed to Immigration and Naturalization Service Department of Health and Human prevent importing communicable (INS)] to have a medical examination in Services (HHS) has to respond on very diseases into our country. The current connection with the determination of short notice. regulations do not address emerging and their admissibility into the United In the recent past, the demographics re-emerging diseases in immigrant or States; and (4) applicants in the United of U.S.-bound refugees have shifted to refugee populations. HHS is adding States who apply for adjustment of their populations that are at higher risk for diseases to the communicable diseases immigration status to that of permanent communicable diseases. These newer of public health significance that better resident. groups of refugees have lower baseline reflect the true threats that our Nation Panel physicians, designated by rates of vaccination, higher rates of faces, including cholera, diphtheria, consular officers of the U.S. Department parasitic infections and more limited plague, smallpox, yellow fever, viral of State, perform medical examinations access to basic medical care and hemorrhagic fevers, and severe acute abroad, and civil surgeons, designated preventive health interventions before respiratory syndrome (SARS). These by the U.S. Citizenship and Immigration resettlement. Between 1996 and 2003, at diseases currently exist in the list of Services, perform medical examinations least half of all arriving refugees were quarantinable, communicable diseases for aliens who are already present in the European. In 1998, 70 percent were defined by Presidential Executive Order, United States. Aliens determined to European. Beginning in 2003, however, but do not appear on the list of have a communicable disease of public the numbers of refugees from communicable diseases of public-health health significance may request a waiver rapidly declined. In 2008, only three significance. These diseases cause to enter the United States under sections percent of all refugees arriving in the severe illness and death in regions of 212(d)(3)(a) and 212(g) of the INA (8 United States were European. At the the world that are home to large U.S.C. 1182(d)(3)(a) and 1182(g)). same time, a larger proportion of numbers of immigrants and refugees Aliens are inadmissible if they are refugees have come from countries with bound for the United States. determined: (1) To have a poorer economies, weaker health In addition, the revision to part 34 is communicable disease of public health infrastructure, and limited access to consistent with relevant provisions of significance; (2) to have a physical or basic medical care. As a result, these the revised International Health mental disorder and behavior associated refugees have a higher incidence of Regulations (2005), which came into with the disorder that may pose, or has major infectious diseases. force in July of 2007. posed, a threat to the property, safety, or This demographic shift is one of the HHS/CDC also issues technical welfare of the alien or others; (3) to have most important factors that have led to instructions and provides technical had a physical or mental disorder and the substantial increase in the number consultation and guidance to panel a history of behavior associated with the and nature of outbreaks of physicians and civil surgeons who disorder, which has posed a threat to communicable diseases that have conduct the medical examinations of the property, safety, or welfare of the affected refugee resettlements. These aliens. The HHS/CDC Technical alien or others and which is likely to new populations bring new diseases but Instructions for Medical Examination of recur or lead to other harmful behavior; the diseases for which individuals are Aliens, including the most current or (4) to be a drug abuser or addict. In inadmissible into the United States have updates, which panel physicians and addition, except for certain adopted remained much the same as at the end civil surgeons must follow in children 10 years of age or younger, any of the nineteenth century. accordance with these regulations, are

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available to the public on the HHS/CDC revised International Health Regulations examination, laboratory testing, Web site, located at the following of 2005. radiologic exam, or other diagnostic Internet address: http://www.cdc.gov/ testing as determined by HHS/CDC. Section 34.3 Scope of Examinations ncidod/dq/technica.htm. HHS/CDC will Section 34.3(c)(4) and (5) indicate that also post and maintain a list of all HHS/CDC is publishing section 34.3 additional medical screening and testing medical conditions and locations for in its entirety for clarity, including will continue until HHS/CDC which additional screening republication of some provisions that determines such activity is not requirements are in effect pursuant to are unchanged. HHS/CDC has revised necessary, based on medical and this rule. This list will be available at section 34.3 to include screening and epidemiologic factors, and that HHS/ the same Internet address: http:// testing for the updated list of CDC will provide medical examiners www.cdc.gov/ncidod/dq/technica.htm, communicable diseases of public health with information pertaining to all and http://www.globalhealth.gov. significance, as defined in § 34.2(b). additional screening and testing HHS/CDC has also revised section 34.3 requirements, and will also post the III. Summary of Changes to 42 CFR Part to require additional medical screening information on the HHS/CDC Web site. 34 and testing using a more flexible risk- Section 34.3(d) is entitled Risk-based HHS/CDC is amending the definition based approach for those medical approach, and provides the medical and of a communicable disease of public examinations performed outside of the epidemiological factors that HHS/CDC health significance. Current United States. HHS/CDC has also will use to determine whether a disease communicable diseases of public health revised the specific requirements as specified in § 34.2(b)(3)(ii) is a significance are: active tuberculosis, concerning the required evaluation for communicable disease of public health infectious syphilis, gonorrhea, tuberculosis. significance, which diseases in infectious leprosy, chancroid, The U.S. Department of Homeland §§ 34.2(b)(2) and (b)(3) merit additional lymphogranuloma venereum, Security (DHS) currently is the entity screening and testing, and the granuloma inguinale, and HIV infection. responsible for administering the geographic area in which HHS/CDC will The definition of a communicable immigration authority and functions require this screening. These factors disease of public health significance in previously administered by the include the seriousness of the disease’s this rule remains as those diseases Immigration and Naturalization Service public health impact; whether the currently listed in § 34.2(b), plus the (INS), which was within the U.S. emergence of the disease was unusual or addition of (1) quarantinable diseases Department of Justice. The revised rule unexpected; the risk of the spread of the designated by Presidential Executive text changes the reference to INS in disease to the United States; the Order, and (2) those diseases that meet existing § 34.3(b)(2)(i) to U.S. transmissibility and virulence of the the criteria of a public health emergency Department of Homeland Security in disease; the impact of the disease at the of international concern which require new § 34.3(e)(3)(i). geographic location of medical notification to the World Health Specific Changes to the Scope of the screening; and other specific pathogenic Organization (WHO) under the revised Medical Examination, and the Risk- factors that would bear on a disease’s International Health Regulations of Based Approach ability to threaten the health security of 2005. A delay in implementing these the United States. updates to Part 34 poses a risk of further The title of § 34.3(b) has changed to severe illness for refugees and Scope of all medical examinations, and Specific Changes to Tuberculosis immigrants as they move into receiving provides that all medical examinations Screening Requirements U.S. communities and presents will include a general physical HHS/CDC has revised § 34.3 to American taxpayers with elevated examination and medical history, require testing for tuberculosis of medical costs. Updating the list of evaluation for tuberculosis, serologic children under the age of 15 years old communicable diseases of public health testing for syphilis and HIV, and also a when they have symptoms of significance will diminish complex and physical examination and medical tuberculosis, a history of tuberculosis, costly measures such as vaccination, history for diseases specified in or possible exposure to a transmissible chemoprophylaxis and isolation, and §§ 34.2(b)(1) and 34.2(b)(4) through tuberculosis case in a household or lessen illness and death among the 34.2(b)(10). The unindented paragraph other enclosed environment for a affected migrating populations. currently at the end of § 34.3(a) has been prolonged period. With regard to The following is a section-by-section moved to § 34.3(b)(2). additional testing requirements for an analysis of proposed changes: The title of § 34.3(c) has been changed applicant that has a radiograph that to Additional medical screening and indicates an abnormality suggestive of Section 34.2 Definitions testing for examinations performed tuberculosis disease, HHS/CDC has The revision updates the definition outside of the United States and revised § 34.3 to require additional provided in § 34.2(b) for a provides that HHS/CDC may require testing for tuberculosis. Specific communicable disease of public health additional screening and testing for changes regarding the required significance to include two new medical examinations performed evaluation for tuberculosis appear categories of disease. The first category, outside the United States for diseases below. added as § 34.2(b)(2), is the specified in §§ 34.2(b)(2) and 34.2(b)(3) Section 34.3(b), entitled Persons quarantinable, communicable diseases by applying the risk-based medical and subject to requirement for chest x-ray specified by the President in Executive epidemiologic factors listed in examination and serologic testing is Order, as provided under Section 361(b) § 34.3(d)(2). It provides that such now § 34.3(e). The revision adds of the Public Health Service Act. The examinations shall be conducted in a § 34.3(e)(2)(ii) to include a chest x-ray second category, added as § 34.2(b)(3), is defined population, in a geographic examination for applicants under 15 any communicable disease that requires region or area outside the United States, years of age if they have symptoms of notification to the World Health for a period of time as determined by tuberculosis, a history of tuberculosis, Organization as an event that may HHS/CDC. Additional medical or evidence of possible exposure to a constitute a public health emergency of screening and testing shall include a transmissible tuberculosis case in a international concern, pursuant to the medical interview, physical household or other enclosed

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environment for a prolonged period. these sections which are otherwise Quarantinable Communicable Diseases The paragraph describing requirements republished unchanged. Specified by Presidential Executive for tuberculin skin test (TST) Order, as Provided Under Section 361(b) examination is now § 34.3(e)(3), and has IV. Revised Definition of of the Public Health Service Act been renamed Immune response to Communicable Disease of Public Health Significance Section 361 of the Public Health Mycobacterium tuberculosis antigens to Service Act authorizes the Secretary of reflect updated, current equivalent tests As stated in Section 212(a)(1) of the HHS to enact rules and regulations for that are increasingly used in clinical INA, aliens are inadmissible into the preventing the introduction, settings and may eventually be used as United States if they are determined to transmission, and spread of an alternative to the tuberculin skin test have a specified health condition, communicable diseases from foreign for refugee and immigrant screening. which includes a communicable disease countries into the United States, and The Quantiferon-TB Gold (QFT–G) test of public health significance. Currently, from one State or possession into is one recommended method for another. Executive Order 13295 of April screening for tuberculosis in clinical medical examinations require the screening of all aliens subject to these 4, 2003, as amended by Executive Order practice in most circumstances instead 13375 of April 1, 2005, contains the of the TST. The incorporation of requirements for all listed communicable diseases of public health most recent list of quarantinable, Immune Globulin Release Assays communicable diseases, and includes (IGRAs), which include QFT–G, is significance. Regulations have historically defined the term the following: Cholera, yellow fever, under consideration by CDC for plague, viral hemorrhagic fevers, screening for tuberculosis in aliens. This communicable disease of public health significance by listing specific diseases. diphtheria, infectious tuberculosis, change will insure that current, updated smallpox, severe acute respiratory The current definition in 42 CFR 34.2(b) medical technology will be used, as syndrome (SARS), and influenza caused includes chancroid, gonorrhea, appropriate, by panel physicians and by novel or re-emergent influenza granuloma inguinale, human civil surgeons conducting the medical viruses that are causing, or have the immunodeficiency virus (HIV) examinations. This section also includes potential to cause, a pandemic the addition of § 34.3(e)(3)(iii) which infection, infectious leprosy, (pandemic influenza). HHS/CDC is requires a tuberculin skin test, or an lymphogranuloma venereum, adding diseases listed by Presidential equivalent test for showing an immune infectious-stage syphilis, and active Executive Order to the definition of response to Mycobacterium tuberculosis tuberculosis. communicable diseases of public health antigens, for applicants outside of the Recent experience has demonstrated significance, subject to screening and United States who are required to have that a fixed list of diseases does not testing requirements outlined in the a medical examination and, if indicated, allow HHS/CDC the flexibility it needs section on the scope of examinations. a chest x-ray examination, if the to rapidly respond to unanticipated applicant is of sufficient age to be Any Communicable Disease That emerging or re-emerging outbreaks of considered contagious. Requires Notification to the World disease. Rather, HHS/CDC requires an Health Organization as an Event That Section 34.3(e)(3)(iv) requires both a approach based on potential risks and tuberculin skin test, or an equivalent May Constitute a Public Health consequences instead of a static list that test for showing an immune response to Emergency of International Concern, does not reflect the potential for future Mycobacterium tuberculosis antigens, Pursuant to the Revised International outbreaks of novel diseases. National and a chest x-ray examination for any Health Regulations of 2005 applicant outside of the United States, and international health agencies have recently developed guidelines for In May 2005, the World Health regardless of age, if the applicant has Assembly adopted the revised defining diseases of public health symptoms of tuberculosis, a history of International Health Regulations (IHR significance that threaten global health tuberculosis, or possible exposure to a (2005)). These regulations entered into security and require an urgent response. transmissible tuberculosis case in a force for most of the Member States of household or other enclosed This guidance provides the framework the WHO in June 2007 and for the U.S. environment for a prolonged period. to update the list of communicable in July 2007. The purpose and scope of Section 34.3(e)(4), entitled Additional diseases of public health significance for the IHR (2005) are to prevent, protect testing requirements, indicates that all the United States to screen and test against, control and provide a public applicants subject to the chest x-ray aliens during disease outbreaks in real health response to the international examination and for whom the time. spread of disease, while minimizing radiograph shows an abnormality HHS/CDC is adding the following two interference with world travel and trade. suggestive of tuberculosis disease must disease categories to the current list of Annex 2 of the IHR (2005) contains an undergo additional testing for communicable diseases of public health algorithm for identifying a public health tuberculosis. This change allows for the significance: emergency of international concern, and use of the most current testing (1) Quarantinable, communicable can be located at the following Internet procedures for tuberculosis disease. address: http://www.who.int/gb/ghs/ diseases specified by Presidential References to the Attorney General in pdf/IHR_IGWG2_ID4-en.pdf. Executive Order, as provided under existing §§ 34.3(b)(4) and (e) are The IHR (2005) define a public health Section 361(b) of the Public Health changed to the Secretary of Homeland emergency of international concern as Security in new §§ 34.3(e)(5) and (h) to Service Act; and an extraordinary event which is reflect the creation of DHS in 2003 and (2) Any communicable disease that determined: (i) To constitute a public its assumption of applicable authorities requires notification to the World health risk to other [Member] States and responsibilities. Reference to INS in Health Organization as an event that through the international spread of existing § 34.3(b)(2)(i) is changed to U.S. may constitute a public health disease and (ii) to potentially require a Department of Homeland Security in emergency of international concern, coordinated international response. new § 34.3(e)(3)(i). These ministerial pursuant to the revised International Under the IHR (2005), Member States corrections are the only amendments to Health Regulations of 2005. must notify the World Health

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Organization of any disease event that international concern, because these a disease of public health significance, fulfills the criteria presented in the three diseases have demonstrated the ability HHS/CDC will immediately advise the categories of the algorithm in Annex 2. to cause serious public health impact physicians who conduct medical The definition in the revised part 34 and to spread rapidly internationally: examinations of the additional medical rule text is intended to capture those —Cholera; screening or testing required for the diseases that require notification by any —Pneumonic plague; identified disease(s) via electronic country to the WHO under the IHR —Yellow fever; notification, coordination with (2005) and determined to be an event —Viral hemorrhagic fevers (Ebola, embassies, consulates and the that may constitute a public health Lassa, Marburg); International Organization for emergency of international concern. The —West Nile fever; and Migration, by publication on the HHS/ revised part 34 rule text references IHR —Other diseases that are of special CDC Web site, and publication of a (2005) category (1), below, in national or regional concern (e.g. notice in the Federal Register. HHS/ § 34.2(b)(3)(i), and categories (2) and (3), dengue fever, Rift Valley fever, and CDC will also provide any required below, together in § 34.2(b)(3)(ii). meningococcal disease). disease notifications to appropriate DOS HHS/CDC is adding diseases listed in bureaus. HHS/CDC will also maintain a (1) Diseases Listed in the IHR (2005) for this category to the definition of a current list of diseases and locations Which a Single Case Requires communicable disease of public health subject to additional medical screening Notification Through the Use of the IHR significance, subject to screening and and will update addenda to the (2005) Algorithm testing requirements and risk-based Technical Instructions for Medical Annex 2 of the IHR (2005) specifies factors outlined in the section on the Examination of Aliens regarding these that smallpox, poliomyelitis from wild- scope of examinations. diseases, available to the public on the type poliovirus, pandemic influenza Ongoing threats in this category HHS/CDC Division of Global Migration and severe acute respiratory syndrome include Ebola hemorrhagic fever, a and Quarantine Web site, located at the (SARS) are diseases with serious public severe, often fatal disease, easily spread following Internet address: http:// health impact, and that a single case, through close personal contact. An www.cdc.gov/ncidod/dq/technica.htm, irrespective of context, requires outbreak of Ebola in the Democratic and also at http://www.globalhealth.gov. immediate notification to the WHO. , confirmed in The HHS/CDC Division of Global HHS/CDC is adding diseases listed in September 2007, resulted in 26 Migration and Quarantine is the current this category to the definition of a laboratory-confirmed cases of illness as name of the former Division of communicable disease of public health of October 2007. There have been a total Quarantine used in existing § 34.3(f), significance, subject to screening and of 264 suspected cases, and Ebola is and section 34.3(i) of the revised rule testing requirements outlined in the believed to have killed up to 187 people text uses the correct name. The section section on the scope of examinations. over eight months. A subsequent is otherwise republished unchanged. The impact of the SARS outbreak outbreak of Ebola in the Republic of demonstrates the importance of using produced 149 suspect cases and V. Revised Scope of Medical the IHR (2005) algorithm to quickly killed 37 people. Cholera, which can Examination detect and identify emerging and re- cause severe diarrhea and death, also HHS/CDC is amending the scope of emerging pathogens in this category. continues to be active. From August the medical examination in 42 CFR 34.3 SARS coronavirus is a droplet-spread 2007 through November 2007, an to allow greater agility to respond to illness that rapidly emerged as a global outbreak spread throughout Iraq and significant outbreaks of communicable threat in 2003, caused more than 8,000 caused over 4500 cases of illness and 23 diseases of public health significance for cases and 800 deaths, and required deaths. applicants examined in geographic isolation and quarantine control locations where these diseases exist, (3) Other Unspecified Diseases That measures. Although now contained, the and for which importation into the Require Notification Through the Use of disease (or one similar to it) could re- United States would pose a threat. HHS/ the IHR (2005) Algorithm emerge at any time. The use of the IHR CDC believes a risk-based approach that (2005) process for disease notification to Annex 2 also refers to any event of uses medical and epidemiologic factors the WHO will ensure the earliest potential international health concern, to detect additional diseases of public possible protection of citizens in the including those of unknown causes or health significance provides a flexible, United States through medical screening sources, and those that involve events or fair and practical means to address of a pathogen like SARS when the next diseases, other than the IHR (2005) infectious disease threats among at-risk outbreak occurs. Smallpox, which single-case notifiable and other aliens without placing an undue burden causes high mortality and morbidity, is specified notifiable diseases (listed in on other applicants. another disease in this category. (1) and (2) above), that lead to use of the Beginning on the effective date of this Because smallpox is now successfully IHR (2005) algorithm. HHS/CDC is rule, HHS/CDC will also make a eradicated, it poses an ongoing threat as adding diseases listed in this category to distinction between the medical a bioterrorism agent. the definition of a communicable examinations performed for aliens disease of public health significance, outside the United States, and those (2) Other Diseases Listed in the IHR subject to screening and testing performed for aliens already in the (2005) for Which Notification Is requirements and risk-based factors United States who are applying for Required Through the Use of the IHR outlined in the section on scope of adjustment of status to that of (2005) Algorithm examinations. Addition of this last permanent resident, in that the risk- In addition to the single-case category to the definition of diseases of based approach to detect additional notification diseases, Annex 2 indicates public health significance allows HHS/ diseases of public health significance that an event that involves the following CDC to respond rapidly to emerging will apply only to medical examinations diseases shall always lead to the use of disease threats in a way that adding outside the United States and only in the IHR (2005) algorithm to determine specific diseases to a fixed list does not. those geographic areas where the risk is whether the disease occurrence amounts Once HHS/CDC acknowledges an high. Applicants already within the to a public health emergency of event from the IHR (2005) algorithm as United States who apply for adjustment

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of immigration status will not be subject diseases included by WHO in the future, International Health Regulations to additional screening or testing using as communicable diseases of public algorithm (other than diseases for which the risk-based approach. Disease health significance and subject to a single case requires notification) as outbreaks in aliens who are within the medical screening through physical communicable diseases of public health United States primarily fall under the examination and medical history. HHS/ significance when they meet one or jurisdiction of state and local public CDC will also consider imposing more of the criteria listed above, and for health authorities. For both groups of additional screening and testing, as which HHS/CDC determines (A) a threat aliens, those applying for status determined by the specific exists for importation into the United adjustment from within the United circumstances of the event, for diseases States, and (B) such diseases may States and those applying for admission in this category that meet requirements potentially affect the health of the from outside the United States, the of the risk-based approach composed of American public. medical screening examination will medical and epidemiologic factors This risk-based approach will continue to consist of a general physical (shown below in this section) and for facilitate a meaningful public health examination and medical history, which HHS/CDC determines a threat response to existing and emerging evaluation for tuberculosis, and exists for importation into the United threats, without overwhelming the serologic testing for syphilis and HIV. In States, and that may potentially affect entire health system with needless addition, under the new risk-based the health of the American public. testing. The changes to the scope of the examination will allow HHS/CDC to approach, HHS/CDC may require aliens (2) Other Diseases That Require outside the United States applying for tailor testing requirements to those areas Notification to WHO as an Event That where the severity of communicable U.S. immigration to undergo additional May Constitute a Public Health screening and testing for specific diseases of public health concern are Emergency of International Concern actually affecting populations at the communicable diseases of public health Through the Use of the IHR (2005) significance. time of the medical examination. Algorithm (Includes Categories (2) and When HHS/CDC requires screening Quarantinable, Communicable Diseases (3) of the IHR (2005) Algorithm for additional communicable diseases of Specified by Presidential Executive Referenced Previously in Section IV— public health significance for applicants Order as Provided Under Section 361(b) Revised Definition of a Communicable from specific geographic areas, HHS/ of the Public Health Service Act Disease of Public Health Significance) CDC may require additional screening, Medical screening for these diseases HHS/CDC will consider the diseases including additional medical will be achieved through physical in this category as communicable interviews, a physical examination, examination and medical history. diseases of public health significance laboratory testing, radiologic exams, or Accomplish HHS/CDC may require and subject to medical screening other diagnostic procedures. additional screening or testing for these through physical examination and Screening and testing for newly diseases for aliens receiving medical medical history if they meet one or more identified diseases as a part of the list examinations at the specific location or of the risk-based criteria of medical and of communicable diseases of public area where outbreaks of the disease or epidemiologic factors (shown below in health significance will continue until diseases may be occurring. This this section), and HHS/CDC determines HHS/CDC determines the particular additional screening and testing will (1) a threat exists for importation into situation does not warrant this designation, based on factors such as the involve applying the defined risk-based the United States, and (2) such diseases results of disease investigations; approach by using medical and may potentially affect the health of the response efforts; the effectiveness of epidemiologic factors (shown below in American public. HHS/CDC will also containment and control measures; and this section.) consider imposing additional screening the current determination or This change addresses diseases in and testing for diseases in this category, termination of the public health immigrant and refugee populations as determined by the specific emergency of international concern by (and, in extreme cases, non-immigrant circumstances of the event. the Director General of the WHO. aliens) outside the United States, and Risk-Based Approach of Medical and HHS/CDC will provide physicians the ensures the lists of quarantinable Epidemiologic Factors technical instructions regarding the diseases and inadmissible conditions HHS/CDC will determine which required additional medical screening remain consistent. Whenever this diseases merit additional screening and and testing to perform for a disease as Executive Order is amended in the testing, and the geographic area in part of the examination. In most future to add additional diseases, HHS/ which HHS/CDC will require this instances, additional medical screening CDC will be able to immediately begin screening, by applying a risk-based and testing may only consist of testing and screening for these diseases. approach that takes into account the epidemiologic questions and further Any Communicable Disease That following medical and epidemiologic physical examination relating to the Requires Notification to the World factors: (a) The seriousness of the disease. HHS/CDC will also update the Health Organization as an Event That disease’s public health impact; (b) Technical Instructions for Medical May Constitute a Public Health whether the emergence of the disease Examination of Aliens, as needed, Emergency of International Concern, was unusual or unexpected; (c) the risk regarding the additional medical Pursuant to the Revised International of the spread of the disease to the screening and testing protocol for a Health Regulations of 2005 United States; (d) the transmissibility disease, and this information will also and virulence of the disease; (e) the be immediately available to the public (1) Diseases Under the IHR (2005) for impact of the disease at the geographic on the HHS/CDC Division of Global Which a Single Case Requires location of medical screening; and (f) Migration and Quarantine Web site, Notification to WHO as an Event That other, specific pathogenic factors that located at the following Internet May Constitute a Public Health would bear on a disease’s ability to address: http://www.cdc.gov/ncidod/dq/ Emergency of International Concern threaten the health security of the technica.htm; and at http:// HHS/CDC will consider all the United States. HHS/CDC will consider www.globalhealth.gov. A listing of diseases in this category, including diseases identified through the current documents regarding the

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additional medical screening and testing The current, outdated rule requires epidemiologic factors. The current protocol for specific diseases will also sputum smears for anyone with signs, or regulations do not have a process for be available on the HHS/CDC Web site. x-ray findings, suggestive of allowing HHS/CDC to adapt rapidly to tuberculosis. Current medical guidelines new health threats, and they reference VI. Updating Tuberculosis Screening require mycobacterial culture, which is outdated public health practices that do Requirements three times as sensitive as a sputum not take advantage of the latest HHS/CDC is amending the medical smear for detecting active tuberculosis. biomedical knowledge and examination rule for aliens by updating HHS/CDC is also updating language epidemiologic data. Changes are needed the screening requirements for in 34.3(e) and (f) to replace x-ray film now to reduce the potential for tuberculosis, to be consistent with with x-ray image. This change is needed significant harm from emerging diseases current medical knowledge and to reflect updated radiology technology and outbreaks of infectious diseases that practice. HHS/CDC is amending 42 CFR such as CD–R and laser-printed x-ray currently threaten U.S. health security. 34.3(b) by revising the requirement for formats. Language concerning chest x- Newly emerging communicable a chest X-ray examination to include rays being attached to the alien’s visa in disease threats are arising with applicants under the age of fifteen years such a manner to be readily detached at increased frequency because of multiple old, when there is reason to suspect the U.S. port of entry has also been factors, such as increases in global travel tuberculosis infection. The practical deleted since x-rays are not required to and mobility, migration patterns, human effect of this change is to expand this be presented at the port of entry. susceptibility to novel infections, and microbial adaptation and mutation, as testing protocol to alien applicant VII. Urgent Need for Regulatory Change children under the age of 15, when cited in the latest report of the U.S. medically appropriate. This change will The U.S. Department of State Institute of Medicine on emergence of allow HHS/CDC the flexibility to ensure proposed 80,000 refugee admissions for infectious diseases, Microbial Threats to the tuberculosis screening and testing Fiscal Year 2008 under the requirements Health: Emergence, Detection and of Section 207(e)(1)–(7) of the methods used for medical examination Response, National Academies Press, Immigration and Nationality Act. This is of aliens are current and effective. 2003. Infectious disease outbreaks (e.g., greater than a ten percent increase from HHS/CDC is amending § 34.3(b)(1)(v) SARS in 2003) or potential threats like FY 2007 projections. As of June 2008, pandemic influenza are evidence that by adding the expanded tuberculin skin approximately 35,000 refugees have test requirement, or an equivalent test virulent diseases with short incubation been resettled, and around 27,000 still periods can be carried over a border for showing an immune response to expected by the end of September 2008. Mycobacterium tuberculosis antigens, to before signs of illness can be observed. Major diseases of concern in these Additionally, when disease outbreaks the exceptions that may be authorized incoming refugee populations include for good cause upon application occur in refugees or immigrants coming multi-drug-resistant tuberculosis (MDR to the United States, public health approved by the Director of CDC. TB), measles, highly pathogenic avian control actions such as vaccination, HHS/CDC is amending § 34.3(b)(2) to influenza, and cholera. The potential for treatment, chemoprophylaxis and indicate that any alien applicant outside transmitting viral hemorrhagic fevers, isolation must be implemented the United States shall have a tuberculin such as Ebola and Marburg, also exists immediately to prevent the importation skin test or an equivalent test for among some of the African populations of disease into the United States. showing an immune response to being resettled. In addition, several Annually, approximately 1,000,000 Mycobacterium tuberculosis antigens vector-borne (animal-transmitted) immigrants and refugees enter the and, if indicated, a chest X-ray diseases including chikungunya, dengue United States to reside here examination if the applicant is of and, possibly, Rift Valley fever, are permanently. The majority arrive from sufficient age to be considered circulating in refugee camps with Asia, Africa and Central and South contagious. Additionally, any alien populations bound for the United America, regions with recently reported applicant outside the United States, States. Vectors (i.e. mosquitoes) outbreaks of emerging infectious regardless of age, shall have both a prevalent in the United States are diseases, including yellow fever, dengue tuberculin skin test or an equivalent test capable of widely spreading these and the H5N1 strain of avian influenza. for showing an immune response to diseases. The 50,000–80,000 refugees who resettle Mycobacterium tuberculosis antigens, Allowing serious diseases to enter in the United States each year are the and a chest X-ray examination if the into the United States can result in most vulnerable populations, as they applicant has symptoms of tuberculosis significant harm to both the American often come from difficult environmental disease, has a history of tuberculosis, or public and American business. The conditions with limited water, has exposure to a transmissible existing definition of communicable sanitation and health care. Living tuberculosis case in a household or diseases of public health significance conditions for many refugees include other enclosed environment for a and the evaluation criteria for poor to nonexistent health and public prolonged period. HHS/CDC is tuberculosis in the current regulation health infrastructure; thus, it is difficult amending this section to make it are outdated and no longer in keeping to have adequate knowledge of their consistent with current medical with current medical knowledge. current and potential medical problems. knowledge and practice. Therefore, immediate changes are In refugee camps, disease surveillance HHS/CDC is amending § 34.3 by needed to improve the ability of the and laboratory resources are often adding a new provision, entitled United States to prevent the limited, which increases the difficulty Additional Testing Requirements, with introduction and spread of infectious of maintaining good health and the following rule text: All applicants diseases that are currently causing preventing outbreaks of infectious subject to the chest X-ray examination severe illness and death abroad. The diseases. Historically, outbreaks of requirement and for whom the scope of examination for medical communicable diseases have occurred radiograph shows an abnormality screening is also outdated, and needs frequently in refugee camps. These suggestive of tuberculosis disease shall immediate changes to allow for medical regular outbreaks, and the inherent be required to undergo additional screening by using a risk-based nature of large population resettlements, testing for tuberculosis disease. approach that considers medical and highlight the health threats to which

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HHS/CDC has to respond on very short cholera in Iraq in August; yellow fever mosquitoes are another potential risk notice. in in February, and in and from this outbreak. The shift in the demographics of in December; and 85 animal- —October 2007 to the present: at least refugee and immigrant populations to-human cases of the highly pathogenic 12 cases of cholera have been reported bound for the United States and H5N1 strain of avian influenza in several thousand U.S.-bound consequent changes in their health risks throughout the year. These outbreaks refugees from the Dadaab refugee mandate a change in the definition of a have been of diseases that do not camp in , which led to a communicable disease of public health naturally occur in the United States, or temporary suspension of resettlement. significance, because of the current occur rarely, which could result in This was the second outbreak of uncertainty of global disease trends. disability and death in U.S.-bound cholera in this camp in 2007; an This demographic shift is the single immigrants and refugees and secondary earlier outbreak affected more than most important cause of the substantial spread in the communities in the United 200 refugees in June 2007. increase in the number and nature of States that receive immigrants. —July 2007 to the present: cholera in outbreaks of communicable diseases The WHO classifies yellow fever as a Mae La refugee camp in , among immigrants who are resettling disease that has demonstrated the with over 200 cases reported as of into the United States. ability to cause serious public health October 2007. HHS/CDC is unable to forecast impact, and is a good example of a —April to June 2007: 288 cases of constantly changing migration patterns, threat to the health security of the cholera were reported in Dadaab and thus must have the flexibility to United States. The Ministry of Health in refugee camp in Kenya. These cases respond swiftly as unpredictable, Togo reported an outbreak of yellow included four deaths and necessitated problematic health and humanitarian fever to the WHO that lasted from a five-day holding period for U.S.- crises arise. The current definition of a December 2006 through February 2007. bound refugees before travel. communicable disease of public health Moreover, Sudan, , , Coˆte —January to May 2007: A measles significance does not adequately d’Ivoire, , , Brazil, outbreak affected over 100 persons in accommodate the demographic shifts , Paraguay, and Dadaab refugee camp in Kenya and that have dramatically altered the have also reported ongoing outbreaks of showed unusual epidemiology: 43 pattern of diseases among new arrivals yellow fever to the WHO. In total, the percent of cases were in persons 15 in the United States. WHO considers 46 countries, including years of age and older (measles HHS/CDC has found that the origins 33 African countries and 11 countries in usually affects only children, and thus of U.S.-bound populations are Central and South America, to be most vaccination campaigns only increasingly unpredictable, and these currently at risk of yellow fever. cover those under 5 years of age). populations increasingly originate in Substantial numbers of U.S.-bound —November 2006 to May 2007: Rift areas with challenging and immigrants and refugees originate from Valley Fever in Kenya (including in unpredictable communicable diseases of areas in which yellow fever is endemic, the Dadaab camp), , and the public health significance. Immigration and therefore pose a risk of the United Republic of , with statistics (http://www.dhs.gov/ximgtn/ importation of this disease. Since over 300 deaths. statistics) show more U.S.-bound mosquitoes that spread yellow fever —October 2006: A case of polio reported refugees and immigrants now come exist in the United States, and areas of in the Dadaab refugee camp in Kenya, from regions with a higher risk for our country experienced outbreaks of in the first reported local transmission communicable diseases. In recent years, the disease throughout the nineteenth of wild poliovirus for over 20 years in the disease burden to the United States century, importation could potentially Kenya; only quick action by HHS/ has increased as the proportion of result in sustained transmission in this CDC avoided the importation of wild refugees resettling from Africa and Asia country. Yellow fever is not currently poliovirus (WPV) into the United has increased (http://www.state.gov/g/ included in the specific disease list in States. (The last indigenous case of prm/refadm/rls/85970.htm). As an the regulation, but HHS/CDC would be WPV in the United States was in example, the proportion of refugees classify it as a communicable disease of 1979, and the last imported case of resettled to the United States from public health significance under the WPV was in 1993.) Africa have increased in the recent past. newly proposed definition, because it is Vector-borne diseases involve a African refugee arrivals have averaged a quarantinable disease by Presidential pathogen transmitted from an infected 16,000 per year since FY 2005. These Executive Order and a disease that individual or animal, usually by an newer groups of refugees have lower requires notification to WHO as an insect or other arthropod such as a baseline rates of vaccination, higher event that may constitute a public mosquito or tick. There are several rates of malaria and other parasitic health emergency of international vector-borne diseases that are infections (unfamiliar to most American concern under the IHR (2005). circulating in areas with U.S.-bound clinicians), and very limited access to The examples below enumerate some immigrants and refugees, all of which basic medical care and preventive of the most recent (and largely could spread into the U.S. population. health interventions before resettlement. unpredictable) disease outbreaks These include exotic illnesses like Failure to address these conditions encountered as refugees resettle into the chikungunya, dengue, and possibly Rift adequately because of the outdated United States: Valley fever. definition of communicable diseases of —March 2007 to the present: Imported public health significance has meant malaria outbreak in Burundian Pandemic Influenza that HHS/CDC has had to respond to at refugees from Tanzania. Over 40 cases The changes in the medical screening least 25 outbreaks of disease among of malaria have occurred as of rules will also provide HHS/CDC U.S.-bound refugees since 2004. October 2007 in more than 12 U.S. officials with the authority to screen Major outbreaks of dangerous, states, including 18 cases in children applicants that are coming into the communicable diseases around the less than 10 years old, despite the United States from areas affected by a world in 2007 included Ebola in the administration of a pre-departure drug possible pandemic influenza. The World Democratic Republic of the Congo in treatment regimen. Single cases or Health Report 2007—A safer future: September, and in Uganda in December; small domestic outbreaks through global public health security in the 21st

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century, issued by the WHO, an average of 36,000 deaths annually in finds that good cause exists to waive emphasizes the danger of an influenza the United States. Modeling studies prior notice and comment and a 30 day pandemic. A pandemic strain of suggest that, in the absence of effective delay in effective date on this rule is influenza would be far more contagious control measures, a medium-level impracticable and contrary to the public than SARS, since it spreads by coughing pandemic (in which 15 to 35 percent of interest. It is critical, for the reasons and sneezing, and is transmitted with a the population of the United States stated above, that HHS/CDC act quickly short incubation period that reduces the develops influenza) could result in to ensure appropriate response, now time for tracing the spread of disease 89,000 to 207,000 deaths, between and in the immediate future, to urgent and isolating patients. An influenza 314,000 and 734,000 hospitalizations, disease threats that could have pandemic could extend the enormous 18 to 42 million outpatient visits, and significant consequences in the United health consequences seen with SARS in 20 to 47 million sick people. The States. As noted, CDC is eager to Asia and Canada to every corner of the associated economic impact in the consider public comment and will world within a matter of months. United States alone could range revise the rule as appropriate after Although HHS/CDC cannot predict between $71.3 and $166.5 billion. receiving and analyzing any comments the timing and exact strain, science and The H5N1 virus that is currently submitted. history suggest the world will suffer at circulating in Asia, Africa and Europe least one influenza pandemic this provides an example of the immense VIII. Analysis of Impacts century, which has the potential to have potential impact of an emerging A. Review Under Executive Order a rapid and immense impact on all influenza virus. As of March 19, 2008, 12866, the Regulatory Flexibility Act, segments of the U.S. population and our the H5N1 strain of influenza virus has and the Unfunded Mandates Act of economy. In the 20th century, the killed over 63 percent of the 373 1995 greatest influenza pandemic occurred in humans affected, and authorities fear 1918–1919, which caused an estimated the disease could mutate into a form HHS/CDC has examined the impact of 40–50 million deaths worldwide. A that could pass quickly and efficiently the Interim Final Rule under Executive severe pandemic, as happened in 1918, from human to human, which could Order 12866, the Regulatory Flexibility could now have a much greater impact. spark a global pandemic. The 14 Act, and the Unfunded Mandates When pandemic strains emerge, they countries that have reported laboratory- Reform Act (UMRA) of 1995. sweep through nations with frightening confirmed human cases of H5N1 Executive Order 12866 directs velocity. The three pandemics of the infection as of March 19, 2008, are agencies to assess all costs and benefits 20th century each encircled the world , The People’s Republic of of available regulatory alternatives and, within months of their emergence into China, , Thailand, , when regulation is necessary, to select humans. Based on the current speed and , , , , regulatory approaches that maximize volume of international movement of , , Burma, , and net benefits. people and animals, there is no reason Iraq. Before the next pandemic virus HHS/CDC commissioned an analysis to think the next pandemic would becomes well-adapted to humans, there of the rule, which is included in the spread any slower. is an urgent need for the United States docket. The analysis examined the Although health care has improved in to be prepared to detect human cases, increased costs to immigrants, refugees the past decades, the WHO is predicting and to prevent a novel influenza virus and other entities, and the benefits of that today an influenza pandemic could from being imported to the United additional screening in preventing the result in 2–7.4 million deaths globally. 1 States. One of the most effective ways to spread of disease in the U.S. population. The WHO estimates that if a pandemic protect the American population is the Based on recent history of disease virus emerged now, the spread of the preventive medical screening of aliens outbreaks worldwide, the analysis disease would be rapid. Based on which would thereby help avert the estimates an additional cost of $4 experiences with past pandemics, some entry and importation of a pandemic million per year to immigrants and experts have predicted an illness that strain, or at least delay its arrival. refugees. Immigrants will bear the could affect around 25 percent of the HHS/CDC is implementing these new additional medical testing costs for world’s population—more than 1.5 provisions immediately because the themselves, and the U.S. government billion people. Should these forecasts United States needs to respond will bear the additional medical testing prove accurate, the impact an influenza effectively to any potential emerging costs for refugees. The benefit to the pandemic would have on national and communicable disease. HHS/CDC is U.S. population associated with reduced international public health, and on taking this immediate action because incidence of secondary infections is economic and political security, would the existing definition of communicable estimated to be $30 million. be enormous. Even if the virus caused diseases of public health significance These estimates only reflect the costs relatively mild symptoms, the economic and the scope of medical screening do and benefits based on recent history. and social disruption that would arise not adequately reflect current threats or The study examined the benefits and from sudden surges of illness in so protect against the significant harm to costs associated with a new or re- many people—occurring almost the American public currently ongoing emerging disease separately, but did not simultaneously throughout the world— and future outbreaks represent. include them in the annualized values would be incalculable.2 Changing our approach to identifying, because of the inherent inability to Interpandemic (seasonal) influenza screening and testing for communicable estimate the frequency of an results in more than 200,000 diseases of public health significance unknowable event. hospitalizations every year and causes will greatly improve our ability to Based on the analysis, HHS/CDC has detect, treat, and mitigate the potential determined that the rule is not 1 Pandemic influenza preparedness and introduction into—and spread economically significant, as defined mitigation in refugee and displaced populations, throughout our country—of newly under Executive Order 12866. WHO guidelines for humanitarian agencies, May emerging and re-emerging diseases. HHS/CDC considered the proposed 2006. 2 The World Health Report 2007—A safer future: Under the provisions of the regulation’s effects on small entities, as global public health security in the 21st century, Administrative Procedure Act at 5 required by the Regulatory Flexibility WHO, August 2007. U.S.C. 553(b)(3)(B) and (d)(3), HHS/CDC Act, and certifies that the final rule will

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not have a significant economic impact ■ For the reasons stated in the preamble, (9) Syphilis, infectious stage. on small entities. the Centers for Disease Control and (10) Tuberculosis, active. HHS/CDC evaluated the rule Prevention (CDC), within the U.S. * * * * * requirements for compliance with the Department of Health and Human ■ 3. Section 34.3 is revised to read as UMRA of 1995. This rule does not Services (HHS), is amending 42 CFR follows: contain Federal mandates under the part 34 as follows: regulatory provisions of Title II of the § 34.3 Scope of examinations. UMRA for State, local or tribal PART 34—[AMENDED] (a) General. In performing governments, nor for the private sector. ■ 1. The authority citation for part 34 is examinations, medical examiners shall Finally, the rule’s provisions will not amended to read as follows: consider those matters that relate to the affect small governments. following: Authority: 42 U.S.C. 252; 8 U.S.C. 1182 B. Environmental Impact and 1222. (1) A communicable disease of public health significance; HHS has determined that provisions ■ 2. Amend § 34.2 by revising paragraph (2)(i) A physical or mental disorder that amend 42 CFR part 34 will not have (b) to read as follows: and behavior associated with the a significant impact on the human disorder that may pose, or has posed, a § 34.2 Definitions. environment. threat to the property, safety, or welfare * * * * * C. Federalism of the alien or others; (b) Communicable disease of public (ii) A history of a physical or mental In accordance with Executive Order health significance. Any of the disorder and behavior associated with 13132, HHS/CDC determines that this following diseases: the disorder, which behavior has posed rule does not have sufficient federalism (1) Chancroid. a threat to the property, safety, or (2) Communicable diseases as listed implications to warrant the preparation welfare of the alien or others and which in a Presidential Executive Order, as of a federalism summary impact behavior is likely to recur or lead to provided under Section 361(b) of the statement. other harmful behavior; Public Health Service Act. The current (3) Drug abuse or addiction; and D. Civil Justice Reform revised list of quarantinable (4) Any other physical abnormality, communicable diseases is available at HHS/CDC has reviewed this rule disease, or disability serious in degree http://www.cdc.gov and http:// under Executive Order 12988, on Civil or permanent in nature amounting to a Justice Reform. This rule (1) preempts www.archives.gov/federal-register. (3) Communicable diseases that may substantial departure from normal well- all State and local laws and regulations being. that are inconsistent with this rule; (2) pose a public health emergency of international concern if it meets one or (b) Scope of all medical examinations. has no retroactive effect; and (3) does (1) All medical examinations will not require administrative proceedings more of the factors listed in § 34.3(d) and for which the CDC Director has include the following: before parties may file suit in court to (i) A general physical examination challenge this rule. determined (A) a threat exists for importation into the United States, and and medical history, evaluation for IX. Paperwork Reduction Act of 1995 (B) such disease may potentially affect tuberculosis, and serologic testing for syphilis and HIV. The Paperwork Reduction Act applies the health of the American public. The (ii) A physical examination and to the data collection requirements determination will be made consistent medical history for diseases specified in found in 42 CFR part 34. The U.S. with criteria established in Annex 2 of §§ 34.2(b)(1), and 34.2(b)(4) through Department of State (DoS) is responsible the revised International Health 34.2(b)(10). for providing forms to panel physicians Regulations (http://www.who.int/csr/ (2) The scope of the examination shall to document the medical examination ihr/en/), as adopted by the Fifty-Eighth include any laboratory or additional and screening information for aliens. World Health Assembly in 2005, and as studies that are deemed necessary, The Office of Management and Budget entered into effect in the United States either as a result of the physical (OMB) last approved this data collection in July, 2007, subject to the U.S. examination or pertinent information under OMB Control No. 1405–0113, on Government’s reservation and elicited from the alien’s medical history, September 30, 2007. DoS will update its understandings: for the examining physician to reach a information collection request to reflect (i) Any of the communicable diseases conclusion about the presence or the changes made to the forms by this for which a single case requires absence of a physical or mental Interim Final Rule. notification to the World Health Organization (WHO) as an event that abnormality, disease, or disability. X. References may constitute a public health (c) Additional medical screening and The following references are available emergency of international concern, or testing for examinations performed at the following Internet address: (ii) Any other communicable disease outside the United States. (1) HHS/CDC http://www.who.int. the occurrence of which requires may require additional medical screening and testing for medical 1. Pandemic influenza preparedness and notification to the WHO as an event that may constitute a public health examinations performed outside the mitigation in refugee and displaced United States for diseases specified in populations, WHO guidelines for emergency of international concern. humanitarian agencies, May 2006. HHS/CDC’s determinations will be §§ 34.2(b)(2) and 34.2(b)(3) by applying 2. The World Health Report 2007—A safer announced by notice in the Federal the risk-based medical and future: global public health security in the Register. epidemiologic factors in paragraph 21st century, WHO, August 2007. (4) Gonorrhea. (d)(2) of this section. (2) Such examinations shall be List of Subjects in 42 CFR Part 34 (5) Granuloma inguinale. (6) Human immunodeficiency virus conducted in a defined population in a Aliens, Health Care, Scope of (HIV) infection. geographic region or area outside the Examination, Passports and Visas, (7) Leprosy, infectious. United States as determined by HHS/ Public Health. (8) Lymphogranuloma venereum. CDC.

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(3) Additional medical screening and authority to have a medical show an immune response to testing shall include a medical examination; Mycobacterium tuberculosis antigens, if interview, physical examination, (iii) Applicants outside the United there is evidence of contact with a laboratory testing, radiologic exam, or States who apply for refugee status; person known to have tuberculosis or other diagnostic procedure, as (iv) Applicants in the United States other reason to suspect tuberculosis. In determined by HHS/CDC. who apply for adjustment of their status the event of a positive tuberculin (4) Additional medical screening and under the immigration statute and reaction, a chest X-ray examination testing will continue until HHS/CDC regulations. shall be required. If the chest radiograph determines such screening and testing is (2) Chest X-ray examination and is consistent with tuberculosis, the alien no longer warranted based on factors serologic testing. Except as provided in shall be referred to the local health such as the following: Results of disease paragraph (e)(2)(iv) of this section, authority for evaluation. Evidence of outbreak investigations and response applicants described in paragraph (e)(1) this evaluation shall be provided to the efforts; effectiveness of containment and of this section shall be required to have civil surgeon before a medical control measures; and the status of an the following: notification may be issued. applicable determination of public (i) For applicants 15 years of age and (iii) Aliens outside the United States health emergency of international older, a chest x-ray examination; required to have a medical examination (ii) For applicants under 15 years of concern declared by the Director shall be required to have a tuberculin age, a chest x-ray examination if the General of the WHO. skin test, or an equivalent, appropriate applicant has symptoms of tuberculosis, (5) HHS/CDC will directly provide test to show an immune response to a history of tuberculosis, or evidence of medical examiners information Mycobacterium tuberculosis antigens, possible exposure to a transmissible pertaining to all applicable additional and, if indicated, a chest radiograph. tuberculosis case in a household or requirements for medical screening and (iv) Aliens outside the United States other enclosed environment for a testing, and will post these at the required to have a medical examination prolonged period; following Internet addresses: http:// shall be required to have a tuberculin (iii) For applicants 15 years of age and skin test, or an equivalent, appropriate www.cdc.gov/ncidod/dq/technica.htm older, serologic testing for syphilis and and http://www.globalhealth.gov. test to show an immune response to HIV. Mycobacterium tuberculosis antigens, (d) Risk-based approach. (1) HHS/ (iv) Exceptions. Serologic testing for and a chest radiograph, regardless of CDC will use the medical and syphilis and HIV shall not be required age, if they have symptoms of epidemiological factors listed in if the alien is under the age of 15, unless tuberculosis, a history of tuberculosis, paragraph (d)(2) of this section to there is a reason to suspect infection or evidence of possible exposure to a determine the following: with syphilis or HIV. HHS/CDC may transmissible tuberculosis case in a (i) Whether a disease as specified in authorize exceptions to the requirement household or other enclosed § 34.2(b)(3)(ii) is a communicable for a tuberculin skin test, an equivalent environment for a prolonged period. disease of public health significance. test for showing an immune response to (4) Additional testing requirements. (ii) Which diseases in §§ 34.2(b)(2) Mycobacterium tuberculosis antigens, or All applicants subject to the chest and (b)(3) merit additional screening chest X-ray examination for good cause, radiograph requirement, and for whom and testing, and the geographic area in upon application approved by the the radiograph shows an abnormality which HHS/CDC will require this Director. suggestive of tuberculosis disease, shall screening. (3) Immune Response to be required to undergo additional (2) Medical and epidemiological Mycobacterium tuberculosis antigens. (i) testing for tuberculosis. factors include the following: All aliens 2 years of age or older in the (5) How and where performed. All (i) The seriousness of the disease’s United States who apply for adjustment chest radiograph images used in public health impact; of status to permanent residents, under medical examinations performed under (ii) Whether the emergence of the the immigration laws and regulations, or the regulations in this Part shall be large disease was unusual or unexpected; other aliens in the United States who enough to encompass the entire chest (iii) The risk of the spread of the are required by the U.S. Department of (approximately 14 by 17 inches; disease in the United States; Homeland Security to have a medical 35.6x43.2 cm.). Serologic testing for HIV (iv) The transmissibility and virulence examination in connection with a shall be a sensitive and specific test, of the disease; determination of their admissibility, confirmed when positive by a test such (v) The impact of the disease at the shall be required to have a tuberculin as the Western blot test or an equally geographic location of medical skin test or an equivalent test for reliable test. For aliens examined screening; and showing an immune response to abroad, the serologic testing for HIV (vi) Other specific pathogenic factors Mycobacterium tuberculosis antigens. must be completed abroad, except that that would bear on a disease’s ability to Exceptions to this requirement may be the Secretary of Homeland Security after threaten the health security of the authorized for good cause upon consultation with the Secretary of State United States. application approved by the Director. In and the Secretary of Health and Human (e) Persons subject to requirement for the event of a positive tuberculin Services may in emergency chest X-ray examination and serologic reaction, a chest X-ray examination circumstances permit serologic testing testing. (1) As provided in paragraph shall be required. If the chest radiograph of refugees for HIV to be completed in (e)(2) of this section, a chest X-ray is consistent with tuberculosis, the alien the United States. examination, and serologic testing for shall be referred to the local health (6) Chest X-ray, laboratory, and syphilis and serologic testing for HIV authority for evaluation. Evidence of treatment reports. The chest radiograph shall be required as part of the this evaluation shall be provided to the reading and serologic test results for examination of the following: civil surgeon before a medical syphilis and HIV shall be included in (i) Applicants for immigrant visas; notification may be issued. the medical notification. When the (ii) Students, exchange visitors, and (ii) Aliens less than 2 years old shall medical examiner’s conclusions are other applicants for non-immigrant be required to have a tuberculin skin based on a study of more than one chest visas required by a U.S. consular test, or an equivalent, appropriate test to X-ray image, the medical notification

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shall include at least a summary DEPARTMENT OF COMMERCE (200,000 kg) for the current fishing year, statement of findings of the earlier January 1 through December 31, 2008. images, followed by a complete reading National Oceanic and Atmospheric Under 50 CFR 622.43(a), NMFS is of the last image, and dates and details Administration required to close the commercial fishery of any laboratory tests and treatment for for a species or species group when the tuberculosis. 50 CFR Part 622 quota for that species or species group is reached, or is projected to be reached, [Docket No. 040205043–4043–01] (f) Procedure for transmitting records. by filing a notification to that effect with For aliens issued immigrant visas, the RIN 0648–XK40 the Office of the Federal Register. medical notification and chest X-ray NMFS projected the fisheries for images, if any, shall be placed in a Fisheries of the Caribbean, Gulf of deepwater grouper and tilefishes would separate envelope which shall be sealed. Mexico, and South Atlantic; Reef Fish reach their respective quotas on May 10, When more than one chest X-ray image Fishery of the Gulf of Mexico; 2008, and closed the fisheries on that is used as a basis for the examiner’s Reopening of the 2008 Deepwater date (73 FR 24883, May 6, 2008). Based conclusions, all images shall be Grouper and Tilefish Commercial on current statistics, NMFS has included. Fisheries determined that only 89 percent of the available commercial quotas for (g) Failure to present records. When a AGENCY: National Marine Fisheries deepwater grouper and tilefishes were determination of admissibility is to be Service (NMFS), National Oceanic and landed. Based on 2008 daily landings made at the U.S. port of entry, a medical Atmospheric Administration (NOAA), rates and the pounds remaining on each Commerce. hold document shall be issued pending quota (approximately 100,000 lb (45,359 completion of any necessary ACTION: Temporary rule; reopening. kg) for deepwater grouper and 46,000 lb examination procedures. A medical (20,865 kg) for tilefishes), NMFS has SUMMARY: NMFS reopens the hold document may be issued for aliens determined these fisheries can reopen commercial fishery for deepwater who: for 10 days. Accordingly, NMFS is grouper (misty grouper, snowy grouper, reopening the commercial deepwater (1) Are not in possession of a valid yellowedge grouper, warsaw grouper, grouper and tilefish fisheries in the Gulf medical notification, if required; and speckled hind) and tilefishes in the of Mexico EEZ from 12:01 a.m., local (2) Have a medical notification which exclusive economic zone (EEZ) of the time, on November 1, 2008, until 12:01 is incomplete; Gulf of Mexico. NMFS previously a.m., local time, on November 11, 2008. (3) Have a medical notification which determined that the quotas for these The fisheries will then be closed until is not written in English; commercial fisheries would be reached 12:01 a.m., local time, on January 1, by May 10, 2008. The latest estimates 2009. November 1 was chosen as the (4) Are suspected to have an for deepwater grouper and tilefish excludable medical condition. opening day based on feedback from the landings indicate the quotas were not fishing industry and weather concerns. (h) The Secretary of Homeland reached by that date. Consequently, Many fishers indicated that this was the Security, after consultation with the NMFS will reopen these fisheries for 10 most productive time for the reopening. Secretary of State and the Secretary of days. The purpose of this action is to NMFS also chose to wait until after the Health and Human Services, may in allow the fisheries to maximize harvest peak of hurricane season to promote emergency circumstances permit the benefits and at the same time protect the safety at sea, consistent with National medical examination of refugees to be deepwater grouper and tilefish Standard 10 of the Magnuson-Stevens completed in the United States. resources. Act. (i) All medical examinations shall be DATES: The reopening is effective 12:01 The operator of a vessel with a valid carried out in accordance with such a.m., local time, November 1, 2008, commercial vessel permit for Gulf reef technical instructions for physicians until 12:01 a.m., local time, on fish may not fish for or possess deepwater grouper or tilefishes prior to conducting the medical examination of November 11, 2008. The fisheries will 12:01 a.m., local time, November 1, aliens as may be issued by the Director. then be closed until 12:01 a.m., local 2008, and must have landed and Copies of such technical instructions are time, January 1, 2009. FOR FURTHER INFORMATION CONTACT: bartered, traded, or sold such deepwater available upon request to the Director, grouper or tilefishes prior to 12:01 a.m., Division of Global Migration and Susan Gerhart, telephone 727–824– 5305, fax 727–824–5308, e-mail local time, November 11, 2008. Quarantine, Mailstop E03, HHS/CDC, During the closure, the bag and [email protected]. Atlanta GA 30333. possession limits specified in 50 CFR Dated: June 25, 2008. SUPPLEMENTARY INFORMATION: The reef 622.39(b) apply to all harvest or fish fishery of the Gulf of Mexico is possession of deepwater grouper and Michael O. Leavitt, managed under the Fishery tilefishes in or from the Gulf of Mexico Secretary, Department of Health and Human Management Plan for the Reef Fish EEZ, and the sale or purchase of Services. Resources of the Gulf of Mexico (FMP). deepwater grouper and tilefishes taken [FR Doc. E8–23485 Filed 10–3–08; 8:45 am] The FMP was prepared by the Gulf of from the EEZ is prohibited. The BILLING CODE 4163–18–P Mexico Fishery Management Council prohibition on sale or purchase does not and is implemented under the authority apply to sale or purchase of deepwater of the Magnuson-Stevens Fishery grouper or tilefishes that were Conservation and Management Act harvested, landed ashore, and sold prior (Magnuson-Stevens Act) by regulations to 12:01 a.m., local time, November 11, at 50 CFR part 622. Those regulations 2008, and were held in cold storage by set the commercial quota for deepwater a dealer or processor. Vessels with grouper in the Gulf of Mexico at 1.02 commercial quantities of Gulf reef fish million lb (463,636 kg) and for tilefish on board are prohibited from retaining in the Gulf of Mexico at 440,000 lb a recreational bag limit of Gulf reef fish.

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Thus, such a vessel may only have a Atmospheric Administration (NOAA), via the Commission process. The repeal commercial quantity of reef fish other Commerce. of the Council FMP would occur at the than deepwater grouper or tilefishes or ACTION: Final rule. same time as this rule is implemented. a recreational bag limit of Gulf reef fish. On April 3, 2008, NMFS published a SUMMARY: NMFS issues this final rule to proposed rule for the transfer of Classification repeal the Atlantic Coast Red Drum management authority of Atlantic red This action responds to the best Fishery Management Plan (FMP) and to drum and requested public comment available information recently obtained transfer the management authority of (73 FR 18253). The rationale for this from the fishery. The Assistant Atlantic red drum in the exclusive action, including the statute giving Administrator for Fisheries, NOAA, economic zone (EEZ) from the South authority to the Commission to manage (AA), finds good cause to waive the Atlantic Fishery Management Council Atlantic red drum in the EEZ, the requirement to provide prior notice and (South Atlantic Council), in cooperation purpose and need for transfer of opportunity for public comment with the Mid-Atlantic Fishery management authority, and the benefits pursuant to the authority set forth at 5 Management Council (Mid-Atlantic of this transfer are included in the U.S.C. 553(b)(B) as such prior notice Council), under the Magnuson-Stevens preamble to the proposed rule and are and opportunity for public comment is Conservation and Management Act not repeated here. (Magnuson-Stevens Act) to the Atlantic unnecessary. Prior notice and Comments and Responses opportunity for public comment on the States Marine Fisheries Commission reopening is unnecessary because the (Commission) under the Atlantic The following is a summary of the rule establishing the annual quota has Coastal Fisheries Cooperative comments NMFS received on the already been subject to notice and Management Act (Atlantic Coastal Act), proposed rule and NMFS’ responses. comment, and all that remains is the as requested by the Councils and the Three comments were received on this annual administrative act of notifying Commission. The intent of this final action. One comment was in favor of the the public of where harvest stands in rule is to enhance the effectiveness and transfer of management authority, one relation to the quota, and in this case efficiency of managing Atlantic red comment was opposed to the transfer of that additional time is needed to harvest drum. authority, and one comment was in the established quota. The rule contains DATES: This final rule is effective favor of the transfer of authority but did a routine determination relative to November 5, 2008. not agree that regulations under the harvest levels for the fishing year that ADDRESSES: Copies of the environmental Atlantic Coastal Act are comparable to are relatively insignificant in nature and assessment (EA), which describes the the current Magnuson-Stevens Act impact to the industry and to the public impacts of the transfer of management regulations. as a whole. authority, may be obtained from Kate Comment 1: The first commenter For the aforementioned reasons, the Michie, NMFS, Southeast Regional stated the transfer of authority will AA also finds good cause to waive the Office, 263 13th Avenue South, St. result in more efficient and effective 30-day delay in the effectiveness of this Petersburg, FL 33701; telephone 727– management for Atlantic red drum. Response: The purpose of this action action under 5 U.S.C. 553(d)(3). 824–5305; fax 727–824–5308. is to manage Atlantic red drum under This action is taken under 50 CFR FOR FURTHER INFORMATION CONTACT: Kate one FMP rather than two, thus 622.43(a) and is exempt from review Michie, telephone: 727–824–5305. minimizing management costs and under Executive Order 12866. SUPPLEMENTARY INFORMATION: The eliminating unnecessary duplication of Authority: 16 U.S.C. 1801 et seq. Atlantic red drum fishery off the South management efforts. This transfer of Dated: September 29, 2008. Atlantic and Mid-Atlantic coastal states management authority furthers Alan D. Risenhoover, is currently managed under two Magnuson-Stevens Act national separate FMPs. Atlantic red drum Director, Office of Sustainable Fisheries, standard 7, which states ‘‘Conservation National Marine Fisheries Service. located in the EEZ are managed under and management measures shall, where the Atlantic Coast Red Drum FMP [FR Doc. E8–23582 Filed 10–3–08; 8:45 am] practicable, minimize costs and avoid prepared by the South Atlantic Council, BILLING CODE 3510–22–S unnecessary duplication.’’ in cooperation with the Mid-Atlantic Comment 2: The second commenter Council (Council FMP), and stated the changes being proposed are DEPARTMENT OF COMMERCE implemented under the authority of the anti-environmental in nature, and Magnuson-Stevens Act by regulations at NMFS in particular is biased toward National Oceanic and Atmospheric 50 CFR part 622. The Council FMP ‘‘fish profiteers.’’ Administration prohibits harvest or possession of red Response: This rule will not change drum in the South Atlantic and Mid- existing restrictions prohibiting the 50 CFR Parts 622 and 697 Atlantic EEZ. Atlantic red drum located harvest or possession of red drum in the in state waters are managed under the EEZ. NMFS and the U.S. Coast Guard [Docket No. 080221249–81231–02] Interstate Fishery Management Plan will continue to enforce those (ISFMP) for Red Drum by the Atlantic prohibitions. Repealing the Council RIN 0648–AT13 coast states (New Jersey through FMP under the Magnuson-Stevens Act Fisheries of the Caribbean, Gulf of Florida) and the Commission. This final and simultaneously implementing Mexico, and South Atlantic; Atlantic rule repeals the Council FMP and comparable regulations under the Coastal Fisheries Cooperative implementing regulations issued under Commission FMP under the Atlantic Management Act Provisions; Atlantic the Magnuson-Stevens Act and Coastal Act, will provide for a more Coast Red Drum Fishery off the simultaneously replaces them with efficient and timely rebuilding of the Atlantic States; Transfer of substantially identical regulations under Atlantic red drum resource. Management Authority the Atlantic Coastal Act. The Atlantic Comment 3: One commenter stated Coastal Act allows the Federal the regulations under the Atlantic AGENCY: National Marine Fisheries government to better coordinate its Coastal Act intended to replace those Service (NMFS), National Oceanic and management practices with the states under the Magnuson-Stevens Act are

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not comparable, and the EA does not administration over the wildlife clearly includes habitat conservation acknowledge some of the essential fish resources...with a view to the among its intended goals with regards to habitat (EFH) designated for red drum conservation of wildlife resources by state-federal cooperation by stating: will be eliminated, nor does it mention preventing loss of and damage to such ‘‘The Secretary in cooperation with the the loss of habitat areas of particular resources...’’ Further, the Fish and Secretary of the Interior shall develop concern (HAPC). Wildlife Coordination Act allows the and implement a program to support the Response: NMFS does not believe that Secretary to make recommendations to interstate fishery management efforts of adoption of this rule will result in an the Federal agency on alternative the Commission. The program shall appreciable loss of habitat protection for ‘‘...means and measures that should be include activities to support and red drum. adopted to prevent the loss of or damage enhance State cooperation in collection, As a preliminary matter, red drum to such wildlife resources...’’ (16 U.S.C. management, and analysis of fishery EFH, including habitat areas of 661–667e). Accordingly, although EFH data; law enforcement, habitat particular concern, substantially is a technical term unique to the conservation; fishery research, overlaps the EFH of other species. Magnuson-Stevens Act and EFH including biological and socioeconomic Accordingly, even if red drum EFH consultation is a process reserved to research; and fishery management designations are necessarily withdrawn species managed under the Magnuson- planning’’ (16 U.S.C. 5103). in the transfer, NMFS would still likely Stevens Act, it does not necessarily recommend the same protective follow that comparable habitat Classification measures through its EFH consultations protection would be altogether lost if The Administrator, Southeast Region, on other species. In other words, red drum were managed under an NMFS, determined that the transfer of although red drum habitat protections alternative statute. Federal agencies management authority is necessary for would be incidental to EFH would still be required to consult with the conservation and management of the consultations on other species, red NMFS on the potential impacts of their Atlantic red drum fishery and that it is drum habitat would nevertheless still be actions to red drum habitat, but simply consistent with the Magnuson-Stevens protected. For example, the South under a different statute. Act and other applicable laws. Atlantic Coastal Migratory Pelagics FMP Comment 4: One of the above (CMP FMP) includes EFH areas that commenters also stated that the EA does This final rule has been determined to overlap areas previously designated as not discuss Executive Order (E.O.) be not significant for purposes of EFH for red drum, namely, barrier 13449, (72 FR 60531, October 24, 2007), Executive Order 12866. island ocean-side waters from the surf to regarding the protection of striped bass The Chief Counsel for Regulation of the shelf break zone, all coastal inlets, and red drum, and the rule would not the Department of Commerce certified and all state-designated nursery habitats establish consistent EFH consultation to the Chief Counsel for Advocacy of the of particular importance to coastal requirements between red drum stocks Small Business Administration during migratory pelagics. Under the CMP FMP of the Gulf of Mexico and Atlantic. the proposed rule stage that this action the surf zone is not referred to as a Response: The commenter is would not have a significant economic ‘‘high-salinity’’ surf zone as it is in the concerned this rule will establish impact on a substantial number of small red drum EFH description; however, the inconsistent regulations between the red entities. The factual basis for the same meaning for each is inferred. drum stocks of the Gulf of Mexico and certification was published in the Additionally, the South Atlantic Shrimp the Atlantic. Gulf of Mexico red drum proposed rule and is not repeated here. FMP (Shrimp FMP) does use the term stocks are already managed No comments were received regarding ‘‘tidal freshwater’’ in its designation of independently of the Atlantic red drum this certification. As a result, a EFH for penaeid shrimp. The Shrimp stocks. The ability of the NMFS to regulatory flexibility analysis was not FMP includes inshore nursery areas in consult and provide consistent required, and none was prepared. its designation of EFH for penaeid recommendations for the conservation shrimp and defines this habitat as tidal and preservation of habitats utilized by List of Subjects freshwater, estuarine, and marine red drum under the Fish and Wildlife 50 CFR Part 622 emergent wetlands (e.g., intertidal Coordination Act will not change. marshes); tidal palustrine forested areas; Additionally, because NMFS will Fisheries, Fishing, , mangroves, tidal freshwater, estuarine, continue to consult and provide Reporting and recordkeeping and submerged aquatic vegetation (SAV) conservation recommendations for EFH requirements, Virgin Islands. (e.g., seagrass); and subtidal and of all other Council-managed species, 50 CFR Part 697 intertidal non-vegetated flats. This the ability to consistently protect and Fisheries, Fishing. designation of EFH for penaeid shrimp conserve fishery habitats, including all Dated: September 30, 2008. applies from North Carolina through the habitats utilized by red drum, will not Samuel D. Rauch III, Florida Keys. be significantly changed. Further, to the extent that protection NMFS understands this rule to be Deputy Assistant Administrator For is lost under the Magnuson-Stevens Act consistent with the spirit and intent of Regulatory Programs, National Marine Fisheries Service. in the transfer, NMFS believes that such E.O. 13449, because comparable EFH loss is mitigated by comparable protections for Atlantic red drum will ■ For the reasons set out in the protections that would remain under be maintained under previously noted preamble, 50 CFR parts 622 and 697, are other statutes. Specifically, the Fish and FMPs for Council-managed species, and amended as follows: Wildlife Coordination Act, similar to the comparable fishery management Magnuson-Stevens Act, requires Federal regulations under the Atlantic Coastal PART 622—FISHERIES OF THE agencies to first consult with NMFS Act will take the place of current CARIBBEAN, GULF, AND SOUTH before taking an action that might regulations under the Magnuson- ATLANTIC impact NMFS trust resources. The Fish Stevens Act, and because comparable and Wildlife Coordination Act requires habitat consultation will occur under ■ 1. The authority citation for part 622 that the Federal agency ‘‘...shall consult the Fish and Wildlife Coordination Act. continues to read as follows: with...the head of the agency exercising Furthermore, the Atlantic Coastal Act Authority: 16 U.S.C. 1801 et seq.

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§ 622.1 [Amended] point being the intersection of the New allowable catch (TAC) of Pacific cod ■ 2. In § 622.1, Table 1, the entries for Jersey/New York boundary with the 3– allocated to vessels catching Pacific cod ‘‘Atlantic Coast Red Drum FMP’’ are nm line denoting the seaward limit of for processing by the inshore removed. state waters, and north of the component of the Central Regulatory demarcation line between the South Area of the GOA. § 622.32 [Amended] Atlantic Fishery Management Council DATES: Effective 1200 hrs, Alaska local ■ 3. In § 622.32, remove paragraph and the Gulf of Mexico Fishery time (A.l.t.), October 3, 2008, until 2400 (b)(3), and redesignate paragraph (b)(4) Management Council described in hrs, A.l.t., December 31, 2008. as paragraph (b)(3); remove newly § 600.105(c) of this chapter. FOR FURTHER INFORMATION CONTACT: redesignated paragraph (b)(3)(iii), and (2) Fail to release immediately Obren Davis, 907–586–7228. redesignate newly redesignated without further harm, all Atlantic red SUPPLEMENTARY INFORMATION: NMFS drum caught in the EEZ area described paragraphs (b)(3)(iv) through (vi) as manages the groundfish fishery in the in paragraph (f)(1) of this section. paragraphs (b)(3)(iii) through (v). GOA exclusive economic zone ■ 8. In § 697.22, the introductory text according to the Fishery Management § 622.48 [Amended] and paragraph (a)(1) are revised to read Plan for Groundfish of the Gulf of ■ 4. In § 622.48, remove paragraph (k), as follows: and redesignate paragraphs (l) and (m) Alaska (FMP) prepared by the North as paragraphs (k) and (l), respectively. § 697.22 Exempted fishing. Pacific Fishery Management Council The Regional Administrator or under authority of the Magnuson– PART 697—ATLANTIC COASTAL Director may exempt any person or Stevens Fishery Conservation and FISHERIES COOPERATIVE vessel from the requirements of this part Management Act. Regulations governing MANAGEMENT for the conduct of exempted fishing fishing by U.S. vessels in accordance beneficial to the management of the with the FMP appear at subpart H of 50 ■ 5. The authority citation for part 697 CFR part 600 and 50 CFR part 679. continues to read as follows: American lobster, weakfish, Atlantic red drum, Atlantic striped bass, Atlantic The 2008 TAC of Pacific cod allocated Authority: 16 U.S.C. 5101 et seq. sturgeon, or horseshoe crab resource or to vessels catching Pacific cod for ■ 6. In § 697.2, the definition of fishery, pursuant to the provisions of processing by the inshore component of ‘‘Atlantic red drum’’ is added and the § 600.745 of this chapter. the Central Regulatory Area of the GOA definition of ‘‘Regional Administrator’’ (a) * * * is 25,583 metric tons (mt) as established is revised, in alphabetical order, to read (1) Have a detrimental effect on the by the 2008 and 2009 harvest as follows: American lobster, weakfish, Atlantic red specifications for groundfish of the GOA drum, Atlantic striped bass, Atlantic (73 FR 10562, February 27, 2008). § 697.2 Definitions. In accordance with § 679.20(d)(1)(i), * * * * * sturgeon, or horseshoe crab resource or fishery; or the Administrator, Alaska Region, Atlantic red drum, also called redfish, NMFS (Regional Administrator), has means Sciaenops ocellatus, or a part * * * * * determined that the 2008 TAC of Pacific thereof, found in the waters of the [FR Doc. E8–23586 Filed 10–3–08; 8:45 am] cod allocated to vessels catching Pacific Atlantic Ocean off the Atlantic coastal BILLING CODE 3510–22–S cod for processing by the inshore states, to the outer boundary of the EEZ, component of the Central Regulatory as specified in § 600.10 of this chapter, Area of the GOA will soon be reached. from the boundary of the United States DEPARTMENT OF COMMERCE Therefore, the Regional Administrator is and Canada, to the boundary between establishing a directed fishing the South Atlantic Fishery Management National Oceanic and Atmospheric Administration allowance of 24,583 mt, and is setting Council and the Gulf of Mexico Fishery aside the remaining 1,000 mt as bycatch Management Council, as specified in 50 CFR Part 679 to support other anticipated groundfish § 600.105(c) of this chapter. fisheries. In accordance with * * * * * [Docket No. 071106671–8010–02] § 679.20(d)(1)(iii), the Regional Regional Administrator, means Administrator finds that this directed RIN 0648–XK86 Regional Administrator, Northeast fishing allowance has been reached. Region, NMFS, or Regional Fisheries of the Exclusive Economic Consequently, NMFS is prohibiting Administrator, Southeast Region, Zone Off Alaska; Pacific Cod by directed fishing for Pacific cod by NMFS, whichever has the applicable Vessels Catching Pacific Cod for vessels catching Pacific cod for jurisdiction, or a respective designee. Processing by the Inshore Component processing by the inshore component in * * * * * in the Central Regulatory Area of the the Central Regulatory Area of the GOA. ■ 7. In § 697.7, paragraph (f) is added to Gulf of Alaska After the effective date of this closure read as follows: the maximum retainable amounts at AGENCY: National Marine Fisheries § 679.20(e) and (f) apply at any time § 697.7 Prohibitions. Service (NMFS), National Oceanic and during a trip. * * * * * Atmospheric Administration (NOAA), (f) Atlantic red drum fishery. In Commerce. Classification addition to the prohibitions set forth in ACTION: Temporary rule; closure. This action responds to the best § 600.725 of this chapter, it is unlawful available information recently obtained for any person to do any of the SUMMARY: NMFS is prohibiting directed from the fishery. The Assistant following: fishing for Pacific cod by vessels Administrator for Fisheries, NOAA (1) Harvest or possess Atlantic red catching Pacific cod for processing by (AA), finds good cause to waive the drum in the EEZ south of a line the inshore component in the Central requirement to provide prior notice and extending in a direction of 115° from Regulatory Area of the Gulf of Alaska opportunity for public comment true north commencing at a point at (GOA). This action is necessary to pursuant to the authority set forth at 5 40°29.6′ N. lat., 73°54.1′ W. long., such prevent exceeding the 2008 total U.S.C. 553(b)(B) as such requirement is

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impracticable and contrary to the public providing time for public comment This action is required by § 679.20 interest. This requirement is because the most recent, relevant data and is exempt from review under impracticable and contrary to the public only became available as of September Executive Order 12866. interest as it would prevent NMFS from 29, 2008. Authority: 16 U.S.C. 1801 et seq. responding to the most recent fisheries The AA also finds good cause to data in a timely fashion and would waive the 30 -day delay in the effective Dated: September 30, 2008. delay the closure of Pacific cod by date of this action under 5 U.S.C. Emily H. Menashes vessels catching Pacific cod for 553(d)(3). This finding is based upon Acting Director, Office of Sustainable processing by the inshore component of the reasons provided above for waiver of Fisheries, National Marine Fisheries Service. the Central Regulatory Area of the GOA. prior notice and opportunity for public [FR Doc. E8–23550 Filed 10–1–08; 4:15 pm] NMFS was unable to publish a notice comment. BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 194

Monday, October 6, 2008

This section of the FEDERAL REGISTER line of your comments. Comments on located in ADAMS, contact the PDR contains notices to the public of the proposed rulemakings submitted in writing or in Reference staff at 1–800–397–4209, 301– issuance of rules and regulations. The electronic form will be made available 415–4737 or by e-mail to purpose of these notices is to give interested to the public in their entirety on the [email protected]. persons an opportunity to participate in the NRC’s Web site in the Agencywide rule making prior to the adoption of the final FOR FURTHER INFORMATION CONTACT: rules. Documents Access and Management Edward M. Lohr, Office of Federal and System (ADAMS) and at http:// State Materials and Environmental www.regulations.gov. Personal Management Programs, U.S. Nuclear NUCLEAR REGULATORY information, such as your name, Regulatory Commission, Washington, COMMISSION address, telephone number, e-mail DC 20555–0001, telephone 301–415– address, etc., will not be removed from 0253, e-mail, [email protected]. 10 CFR Part 35 your submission. You may submit comments by any one of the following Dated at Rockville, Maryland, this 30th day [NRC–2008–0071] of September 2008. methods. For the Nuclear Regulatory Commission. RIN 3150–AI26 Electronically: Via the Federal eRulemaking Portal (Docket ID NRC– Annette Vietti-Cook, Medical Use of Byproduct Material— 2008–0071) and follow instructions for Secretary of the Commission. Amendments/Medical Event submitting comments. Address [FR Doc. E8–23534 Filed 10–3–08; 8:45 am] Definitions; Extension of Comment questions about this docket to Carol BILLING CODE 7590–01–P Period Gallagher 301–415–5905; e-mail AGENCY: Nuclear Regulatory [email protected]. Commission. Mail comments to: Secretary, U.S. CONSUMER PRODUCT SAFETY ACTION: Proposed rule: Extension of Nuclear Regulatory Commission, COMMISSION comment period. Washington, DC 20555–0001, ATTN: Rulemakings and Adjudications Staff. 16 CFR Part 1500 SUMMARY: On August 6, 2008 (73 FR E-mail comments to: Rulemaking. 45635), the Nuclear Regulatory Labeling Requirement for Toy and [email protected]. If you do not Game Advertisements Commission (NRC) published for public receive a reply e-mail confirming that comment a proposed rule that would we have received your comments, AGENCY: Consumer Product Safety amend its regulations in 10 CFR Part 35, contact us directly at 301–415–1966. Commission. ‘‘Medical Use of Byproduct Material’’ to Hand deliver comments to: 11555 ACTION: Notice of proposed rulemaking. change medical event definitions. The Rockville Pike, Rockville, Maryland public comment period for this 20852, between 7:30 a.m. and 4:15 p.m. SUMMARY: Section 105 of the Consumer proposed rule was to have expired on Federal workdays. (Telephone 301–415– Product Safety Improvement Act of October 20, 2008. 1966). 2008, (‘‘CPSIA’’), directs the By letter dated September 16, 2008, Fax comments to: Secretary, U.S. Commission to promulgate regulations the NRC’s Advisory Committee on the Nuclear Regulatory Commission at 301– to effectuate this section with respect to Medical Use of Isotopes (ACMUI) 415–1101. advertising for certain toys and games in requested an extension to November 7, You may submit comments on the catalogues and other printed materials 2008. As explained in the letter, the fall information collections by the methods not later than 90 days after enactment. meeting of the ACMUI is scheduled for indicated in the Paperwork Reduction The Commission invites public October 27 and 28, 2008, and the subject Act Statement. comment on this proposal. matter in the proposed rule is on the Publicly available documents related DATES: Written comments concerning agenda for discussion at this public to this rulemaking may be viewed the advertisement requirements with meeting. ACMUI believes that it will be electronically on the public computers respect to catalogues and other printed able to provide better comment on the located at the NRC’s Public Document materials must be received by October proposed rule following this discussion. Room (PDR), Room O–1 F21, One White 20, 2008. Written comments concerning Due to the complex nature of the Flint North, 11555 Rockville Pike, the requirements with respect to proposed medical rule and the high Rockville, Maryland. The PDR Internet advertisements must be public interest of the medical reproduction contractor will copy received by November 20, 2008. community, the NRC has decided to documents for a fee. ADDRESSES: Comments should be e- extend the comment period until Publicly available documents created mailed to [email protected], and should November 7, 2008. or received at the NRC after November be captioned ‘‘ADVERTISING DATES: The comment period has been 1, 1999, are available electronically at REQUIREMENTS NPR.’’ Comments may extended and now expires on November the NRC’s Electronic Reading Room at also be mailed, preferably in five copies, 7, 2008. Comments received after this http://www.nrc.gov/reading-rm/ to the Office of the Secretary, Consumer date will be considered if it is practical adams.html. From this site, the public Product Safety Commission, Room 502, to do so, but the NRC is able to assure can gain entry into ADAMS, which 4330 East-West Highway, Bethesda, consideration only for comments provides text and image files of NRC’s Maryland 20814, or delivered to the received on or before this date. public documents. If you do not have same address (telephone (301) 504– ADDRESSES: Please include the following access to ADAMS or if there are 0800). Comments also may be filed by number RIN 3150–AI26 in the subject problems in accessing the documents facsimile to (301) 504–0127.

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FOR FURTHER INFORMATION CONTACT: the CPSIA be prominently displayed in characteristics of the toy or game being Barbara E. Parisi, Project Manager, a manner consistent with 16 CFR part advertised. Office of General Counsel, Consumer 1500. The CPSIA also provides the 2. Abbreviated Warnings for Product Safety Commission, 4330 East- Commission with the authority to Catalogues and Other Printed Materials. West Highway, Bethesda, Maryland; promulgate a regulation concerning the The Commission recognizes that it telephone (301) 504–7879 or e-mail: size and placement of the required may be difficult to include the full [email protected]. cautionary statements. The Commission cautionary statements as spelled out in sections 24(a) and (b) of the FHSA next SUPPLEMENTARY INFORMATION: believes that the requirements in 16 CFR 1500.121 are consistent with commonly to each product in a catalogue or other A. Background accepted hazard-labeling guidelines and printed material requiring a cautionary Section 24(a) of the Federal are appropriate as guidelines for the statement. ANSI Z535.6 (2006) allows Hazardous Substances Act (FHSA) cautionary statements in the advertising, for the use of section safety messages in prescribes cautionary labeling with a few modifications, as described product manuals, instructions, and requirements for toys or games that are below. other collateral materials. Although intended for use by children from 3 to 1. Minimum Type Size for advertising and promotional materials 6 years old and contain small parts. The Advertisements in Catalogues and Other are not included within the scope of cautionary statement warns potential Printed Material. ANSI Z535.6, this voluntary standard purchasers that these products are not The minimum type-size requirements appears to be the most relevant to these for children under 3 years old due to specified in 16 CFR 1500.121 are based materials. Section safety messages are choking hazards. Section 24(b) of the on the area of the principal display those that apply to entire sections, FHSA prescribes similar requirements panel of a hazardous substance. For subsections, or multiple paragraphs or for balloons, small balls, and marbles purposes of labeling advertisements in procedures within a document, and intended for children 3 years and older, catalogues or other printed materials, typically appear at the beginning of the or any toy or game which contains such these type-size requirements would be section to which they apply. One of the a balloon, small ball, or marble. determined based on the size of the intended functions of section safety Section 105 of the CPSIA, Public Law advertisement for the specific toy or messages is to avoid the unnecessary 110–314, 122 Stat. 3016 (August 14, game to which it applies. For small repetition of safety information while 2008), amends section 24 of the FHSA advertisements-ones no more than 2 allowing users to access the other to require that, when a product’s square inches-16 CFR 1500.121 would information more easily and efficiently. packaging requires a cautionary permit signal words and hazard If this concept were applied directly to statement, advertising for the product statements with letter heights as small advertisements in catalogues or other that provides a direct means for as 3⁄64 inch, or less than 5 points; the printed materials, a single version of a purchase or order of the product letter heights of other cautionary cautionary statement could be placed at (including catalogues, other printed material in the label could be as small the beginning of a page or section of materials, and Internet Web sites) must as 1⁄32 inch, or about 3 points. advertised products that includes only bear the same cautionary statement. The Commission has preliminarily toys and games that would require the Section 105 provides some guidelines determined, based on research, that same cautionary statements. This might on the format of the cautionary such small or fine-print risk disclosures be difficult to implement, however, in statement. Specifically, it must be in product advertising would be those cases in which a toy or game prominently displayed in the primary ineffective because people are unlikely requires multiple cautionary statements. language used in the advertisement, in to read them. Based on research Additionally, research has shown that conspicuous and legible type in contrast regarding the legibility and readability warnings generally should be located by typography, layout, or color with of text and numerals, the Commission where consumers are likely to be other material printed or displayed in has preliminarily determined that the looking when the information is needed, the advertisement, and in a manner proposed rule should refer to the and a single relevant cautionary consistent with 16 CFR part 1500. minimum type sizes specified in 16 CFR message at the beginning of a multi-page Section 105 of the CPSIA also allows 1500.121, but include the requirement section could be missed easily. To the Commission to provide a grace that the sizes employed cannot be address these concerns, the Commission period of no more than 180 days for smaller than 0.08 inches, or about 5/64 proposes that shorthand, or abbreviated, catalogues and other printed material inch. versions of the required warnings be printed prior to the effective date. In ANSI 2535.6 (2006), the primary U.S. permitted in each product addition, the Commission is directed to voluntary consensus standard on advertisement, provided that these are determine the applicability of the product safety information in product defined with the full warning at the requirements to catalogues and other manuals, instructions, and other bottom or top of each page—or printed material distributed solely collateral materials, specifies that safety extending across two facing pages if between businesses and not to message text be no smaller than the both pages contain products to which individual consumers. majority of other non-safety text, other the warnings apply—of the catalogues. Section 105(2) of the CPSIA exempts than headings, immediately The bottom or top of each page or two- the Commission from conducting a surrounding it. The Commission agrees page spread must provide the definition, Regulatory Flexibility Act and with this specification and has applied or full cautionary statement, for each Paperwork Reduction Act analysis for this general principle to the cautionary abbreviated warning on that page. The this rulemaking. labeling of advertisements in catalogues proposed text of the rule contains the or other printed materials by requiring abbreviated statements appropriate for B. Proposed Regulation cautionary statements to be the larger of each cautionary statement. Following is a brief description of the (1) a certain minimum type size based 3. Internet Warnings. principal provisions of the on the size of the advertisement (but no Section 105 of the CPSIA stipulates Commission’s proposed regulation. smaller than 0.08 inches), or (2) the size that the Commission shall promulgate a The CPSIA directs that the cautionary of the largest text in the advertisement final rule ‘‘with respect to catalogues statements required by section 105 of that describes the function, use, or and other printed material’’ by

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November 12, 2008. The CPSIA does not applicable to business to business schools, day care centers, churches, and mandate that the Commission catalogues. recreational facilities. promulgate a final rule with regard to Some retailers that specialize in The Commission seeks further input requirements for Internet advertising. products for young children might be on whether advertising requirements for Nonetheless, the Commission has wary of carrying products that contain catalogues and other printed materials proposed requirements for Internet small parts or balloons. These retailers should also apply to materials advertising, as detailed below and might value being provided cautionary distributed solely between businesses included in the proposed rule. statements before they order the product and not to ultimate consumers, and if The comment period with respect to from their suppliers. However, Section not, how the Commission can requirements for Internet advertising is 105 of the CPSIA already requires distinguish catalogues distributed solely longer than that for requirements for manufacturers, importers and other between businesses from those intended catalogues and other printed materials. suppliers to inform retailers of any for final distribution to ultimate Comments on Internet advertising cautionary statements that are required consumers, which may include requirements must be received by to be included in catalogues and other institutions such as schools and day November 20, 2008. Regardless of printed advertisements for the products care centers. they supply. Specifying just how this whether and when the Commission C. Effective Date issues a final rule on the Internet information must be supplied (e.g. , Section 105 of the CPSIA provides advertising requirements, the through a catalogue), would reduce the that the requirements for Internet requirements for Internet flexibility of manufacturers and other advertising shall take effect December advertisements as implemented by suppliers in determining how best to 12, 2008. It provides that the Section 105 of the CPSIA will go into supply the required information. If the requirements will apply to catalogues effect on December 12, 2008. As with requirements were not applied to and other printed materials published or catalogues and other printed materials, catalogues distributed solely between businesses, the manufacturers and other distributed on or after February 10, most of the requirements specified in 16 2009. This includes catalogues that were CFR 1500.121 may be applied to the suppliers would have the flexibility to develop less costly means of providing printed prior to February 10, 2009 but cautionary labeling of advertisements on not distributed until after February 10, Internet Web sites. The minimum type- the information to their retailers. Moreover, because retailers typically do 2009. The CPSIA authorizes the size requirements specified in 16 CFR Commission to provide a grace period of 1500.121, however, cannot be applied not provide young children with direct access to the products, it is likely that not more than 180 days for catalogues readily since they are based on the area and other printed material printed prior of the principal display panel, and the applying these requirements to catalogues distributed solely among to February 10, 2009, during which time analogous area for an Internet businesses would prevent very few distribution of such catalogues and advertisement could be limited by the injuries, if any. This would reduce the other printed materials shall not be size of the consumer’s Internet browser value of applying the requirements to considered a violation of the standard. application window or by the computer catalogues distributed solely to retailers The Commission staff has determined monitor or display area which could and similar businesses relative to the that there can be relatively long lead vary considerably. The Commission value of including them in catalogues times for developing and printing proposes that the type size of the distributed to consumers. There would catalogues, and some publishers expect cautionary statements must be at least be some costs associated with applying to distribute catalogues for as long as equal to the size of the largest text in the the advertising requirements to business two years after printing. Thus, it is advertisement that describes the to business catalogues, including costs likely that there are catalogues in function, use, or characteristics of the associated with changing the page circulation now, or that have been toy or game advertised (for example, the layouts to include cautionary printed, or will be printed over the next product description). statements. It will require some time several weeks, that do not contain the Research has found that risk and effort by the publishers to cautionary statements, but that are information that is placed below the determine how the cautionary intended for distribution after February page scroll of a Web site is unlikely to statements can best be added to their 10, 2009. If the Commission did not be seen. To reduce the likelihood of this catalogues and then to proof the copy provide for a grace period, the retailers, occurring, the Commission is proposing once the changes are made. manufacturers, and importers who that the required cautionary statement If an exemption were included for published the catalogues would have to be located immediately before any other business to business catalogues and stop distributing them on February 10, statements in the advertisement that cautionary statements were not 2009. The catalogues still in stock describes the function, use, or included in catalogues that were would have to be discarded and characteristics of the toy or game being distributed to organizations or replacement catalogues would have to advertised. Further, the Commission establishments such as schools, day care be printed, a cost to the publishers both preliminarily finds that the use of centers, churches, and recreational in terms of discarding of the catalogues abbreviated warnings in place of full facilities as a result of the exemption, and in the possible loss in sales if the text warnings is neither necessary nor the intent of section 105 of the CPSIA business experienced delays in desirable for Internet advertisements. could be thwarted. This is because such obtaining reprinted catalogues. 4. Business to Business Catalogues. organizations often act as ‘‘ultimate The cost of providing a grace period— The CPSIA directs the Commission to consumers,’’ purchasing the toys and that some consumers may purchase determine the applicability of the games for the use of children and not for games or toys from catalogues that they advertising requirements to catalogues resale. Thus, any exemption provided would not have purchased had they and other printed materials that are would need to distinguish between seen the cautionary labeling—though distributed solely among businesses. catalogues distributed solely between difficult to quantify, is likely to be The Commission has analyzed the businesses and those intended for final small. The same cautionary statements benefits and costs associated with distribution to ultimate consumers, are required on the products’ packaging, having the advertising requirements which may include institutions such as and a parent could return or keep the

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product out of reach until the children materials distributed solely between printed. The effective date of this are older if need be. businesses and not to ultimate standard with respect to Internet Web Even with a grace period of 180 days, consumers, and, if not, how the sites is December 12, 2008. all catalogues distributed after August 9, Commission can distinguish catalogues (c) Definitions. For the purposes of 2009, which includes all catalogues distributed solely between businesses this section, the following definitions distributed in anticipation of the 2009 from those intended for final shall apply. holiday shopping season, will have to distribution to ultimate consumers, (1) Ball means a spherical, ovoid, or contain the required cautionary which may include institutions such as ellipsoidal object that is designed or statements. schools, churches, day care centers, and intended to be thrown, hit, kicked, Because of the significant lead time recreational facilities. rolled, dropped, or bounced. The term involved in printing catalogues and the Comments should be e-mailed to ‘‘ball’’ includes any spherical, ovoid, or relatively small cost of providing a grace [email protected] and should be ellipsoidal object that is attached to a period of 180 days, the Commission captioned ‘‘ADVERTISING toy or article by means of a string, preliminarily finds that a grace period of REQUIREMENTS NPR.’’ Comments may elastic cord, or similar tether. The term 180 days is warranted. also be mailed, preferably in five copies, ‘‘ball’’ also includes a multi-sided object formed by connecting planes into a D. Environmental Considerations to the Office of the Secretary, Consumer Product Safety Commission, Room 502, generally spherical, ovoid, or ellipsoidal As a labeling rule, the proposed rule 4330 East-West Highway, Bethesda, MD shape that is designated or intended to falls within the provisions of 16 CFR 20814, or delivered to the same address be used as a ball, and any novelty item 1021.5(c) which designates categories of (telephone (301) 504–0800). Comments of a generally spherical, ovoid, or actions conducted by the Consumer also may be filed by telefacsimile to ellipsoidal shape that is designated or Product Safety Commission that (301) 504–0127. All comments and intended to be used as a ball. The term normally have little or no potential for submissions should be received no later ‘‘ball’’ does not include dice, or balls affecting the human environment. It is than October 20, 2008. permanently enclosed inside pinball true that, if no grace period were machines, mazes, or similar other provided, the requirements in Section List of Subjects in 16 CFR Part 1500 containers. A ball is permanently 105 of the CPSIA would apply to all Consumer protection, labeling. enclosed if, when tested in accordance catalogues or other printed materials with 16 CFR 1500.53, it is not removed distributed after February 10, 2009, so Conclusion from the outer container. that materials printed prior to this date Under authority of section 3 and (2) Small ball means a ball that, under that did not have the cautionary section 105 of the Consumer Product the influence of its own weight, passes statements could not be distributed and Safety Improvement Act, Public Law in any orientation, entirely through a would have to be discarded. This would 110—314, 122 Stat. 3016 (August 14, circular hole with a diameter of 1.75 increase the volume of material entering 2008), the Commission proposes to inches (44.4 mm) in a rigid template the waste stream. However, the increase amend Title 16, Chapter II, Subchapter 1⁄4 inches (6 mm) thick. In testing to would be small relative to the total C, Part 1500 as set forth below. evaluate compliance with this volume of materials that enter the waste regulation, the diameter of opening in stream each year. Providing a grace PART 1500—HAZARDOUS the Commission’s test template shall be period would further reduce this SUBSTANCES AND ARTICLES; no greater than 1.75 inches (44.4 mm). impact. Based on this, the Commission ADMINISTRATION AND (3) Latex balloon means a toy or preliminarily finds that neither an ENFORCEMENT REGULATIONS decorative item consisting of a latex bag that is designed to be inflated by air or environmental assessment nor an 1. The authority citation for part 1500 gas. The term does not include environmental impact statement is continues to read as follows: required. inflatable children’s toys that are used Authority: 15 U.S.C. 1261–1278. in aquatic activities such as rafts, water E. Request for Information and 2. Section 1500.20 is added to read as wings, swim rings, or other similar Comments follows: items. Interested persons are invited to (4) Marble means a ball made of hard submit comments regarding this § 1500.20 Labeling requirement for material, such as glass, agate, marble, or proposal. The Commission specifically advertising toys and games. plastic, that is used in various children’s seeks comments on the following: (a) Scope. This section applies to games, generally as a playing piece or 1. The abbreviated versions and the advertisements (including catalogues, marker. The term ‘‘marble’’ does not minimum type-size and placement other printed materials, and Internet include a marble permanently enclosed requirements of the cautionary Web sites), which provide a direct in a toy or game. A marble is statements as proposed in this rule; means of purchase or order of products permanently enclosed if, when tested in 2. The impact of the proposals on requiring cautionary labeling under accordance with 16 CFR 1500.53, it is minimum type-size and placement in sections 24(a) and (b) of the FHSA. not removed from the toy or game. catalogues and other printed materials (b) Effective Date. The effective date (5) Small part means any object on businesses; of this standard with respect to which, when tested in accordance with 3. How often catalogues or other catalogues and other printed materials is the procedures contained in 16 CFR written materials are published and how February 10, 2009. The Commission is 1501.4(a) and 1501.4(b)(1), fits entirely much lead time is required to prepare providing a grace period of 180 days, or within the cylinder shown in Figure 1 these materials for publication; until August 9, 2009, during which appended to 16 CFR part 1501. The use 4. The cost of publishing new catalogues and other printed materials and abuse testing provisions of 16 CFR catalogues to meet these requirements printed prior to February 10, 2009 may 1500.51 through 1500.53 and without the 180 day grace period; be distributed. All catalogues and other 1501.4(b)(2) do not apply to this 5. Whether the advertising printed materials distributed on or after definition. requirements for catalogues and other August 9, 2009 must comply with the (6) Direct means of purchase or order printed materials should also apply to standard, regardless of when they were means any method of purchase that

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allows consumers to order the product product online or through the use of a direct means for the consumer to without being in the physical presence telephone number or fax number purchase or order the product. of the product. Advertising that provided on the Internet Web site. (1) The advertising for any article that (d) Advertising requirements. Any toy provides a direct means of purchase or is a toy or game intended for use by order of a product would include or game that requires a cautionary children who are at least three years old catalogues or other printed advertising statement about the choking hazard but less than six years of age shall bear material that contain order blanks, associated with small parts, balloons, telephone numbers or fax numbers for small balls, or marbles must bear that or contain the following cautionary placing orders, and Internet Web sites cautionary statement in the product’s statement if the toy or game includes a that enable consumers to purchase a advertising if the advertising provides a small part:

(2) The advertising for any latex latex balloon, shall bear the following balloon, or toy or game that contains a cautionary statement:

(3)(i) The advertising for any small age or older shall bear the following ball intended for children three years of cautionary statement:

(ii) The advertising for any toy or least three years old but less than eight shall bear the following cautionary game intended for children who are at years of age that contains a small ball statement:

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(4)(i) The advertising for any marble or older shall bear the following intended for children three years of age cautionary statement:

(ii) The advertising for any toy or years of age that contains a marble shall game intended for children who are at bear the following cautionary statement: least three years old but less than eight

(e) Abbreviated warnings for full cautionary statements at the bottom (1) If abbreviated cautionary catalogues and other printed materials. or top of each catalogue page (or statements are used in each individual Abbreviated versions of the required extending across the bottom or top of product advertisement, the following cautionary statements are permitted in two facing catalogue pages if both pages cautionary statements shall be used: each individual product advertisement, contain products available for (i) For any article that would require provided that these abbreviated purchase). the cautionary statement specified in 16 cautionary statements are defined with CFR 1500.20(d)(1):

(ii) For any article that would require the cautionary statement specified in 16 CFR 1500.20(d)(2):

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(iii) For any article that would require the cautionary statement specified in 16 CFR 1500.20(d)(3)(i) or (ii):

(iv) For any article that would require the cautionary statement specified in 16 CFR 1500.20(d)(4)(i) or (ii):

(2) If abbreviated cautionary across the bottom or top of two facing (i) For any article that would require statements are used in each individual catalogue pages if both pages contain the cautionary statement specified in 16 product advertisement, the following products available for purchase) that CFR 1500.20(d)(1): definitions shall appear at the bottom or includes the abbreviated cautionary top of each catalogue page (or extending statement:

(ii) For any article that would require the cautionary statement specified in 16 CFR 1500.20(d)(2):

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(iii) For any article that would require the cautionary statement specified in 16 CFR 1500.20(d)(3)(i) or (ii):

(iv) For any article that would require the cautionary statement specified in 16 CFR 1500.20(d)(4)(i) or (ii):

(f) Prominence and conspicuousness shall be an equilateral triangle. The Parisi, Regulatory Affairs Attorney, of labeling statements. The requirements height of the safety alert symbol shall be Office of the General Counsel, ‘‘Size and of 16 CFR 1500.121 relating to the equal to or exceed the height of the Placement of Cautionary Statements prominence and conspicuousness of letters of the signal word ‘‘WARNING’’. Specified in Section 105, Labeling precautionary labeling statements for The height of the exclamation point Requirement for Advertising Toys and hazardous substances shall apply to any inside the triangle shall be at least half Games, of the Consumer Product Safety labeling statement required under 16 the height of the triangle, and the Improvement Act of 2008,’’ September CFR 1500.20(d) and (e), with the exclamation point shall be centered 15, 2008. following clarifications and vertically in the triangle. The safety alert Dated: September 30, 2008. symbol shall be separated from the modifications. Todd A. Stevenson, (1) Catalogues and other printed signal word by a distance no larger than materials. the space occupied by the first letter of Secretary, Consumer Product Safety Commission. (i) All labeling statements shall be the signal word. In all other respects, printed in type that is not smaller than the safety alert symbol shall conform [FR Doc. E8–23543 Filed 10–3–08; 8:45 am] 0.08 inches. generally to the provisions of 16 CFR BILLING CODE 6355–01–P (ii) All labeling statements shall be 1500.121 relating to signal words. printed in type that is not smaller than Note: The following appendix will not the largest of any other statements or appear in the Code of Federal DEPARTMENT OF HOMELAND text, other than the product or article Regulations: SECURITY name, in the individual and adjacent List of Relevant Documents product advertisements. Coast Guard (2) Internet Web sites. 1. Memorandum from Robert (i) All labeling statements shall be Franklin, Directorate for Economic 33 CFR Part 117 printed in type that is not smaller than Analysis, to Barbara E. Parisi, Attorney, [USCG–2008–0995] the largest of any other statements or Office of General Counsel, ‘‘Economic text, other than the product or article Issues Associated with Section 105 of RIN 1625–AA09 the Consumer Product Safety name, in the advertisement. Drawbridge Operation Regulations; (ii) All labeling statements shall be Improvements Act of 2008 (Concerning Intracoastal Waterway (ICW) Beach located immediately before any other the inclusion of Cautionary Labeling for Thorofare, Atlantic City, NJ statements or text in the advertisement Toys and Games in Catalogs and Other that describes the function, use, or Printed Materials),’’ September 16, AGENCY: Coast Guard, DHS. characteristics of the article being 2008. ACTION: Notice of proposed rulemaking. advertised (for example, the product 2. Memorandum from Timothy P. description). Smith, Engineering Psychologist, SUMMARY: The Coast Guard proposes to (3) Safety Alert Symbol. Any safety Division of Human Factors, Directorate change the drawbridge operation alert symbol required by this section for Engineering Sciences, to Barbara regulations of the Route 30 Bridge, at

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ICW mile 67.2, across Beach Thorofare applies, and give the reason for each that one would aid this rulemaking, we at Atlantic City, NJ. This proposal comment. We recommend that you will hold one at a time and place to be would allow for the drawbridge to open include your name and a mailing specified in a notice published in the on signal every hour during high transit address, an e-mail address, or a phone Federal Register. periods in the summer months and to number in the body of your document Background and Purpose operate on an advance notice basis at all so that we can contact you if we have other times. The proposed changes questions regarding your submission. The New Jersey Department of would result in more efficient use of the You may submit your comments and Transportation (NJDOT) is responsible bridge. material by electronic means, mail, fax, for the operation of the Route 30 Bridge, DATES: Comments and related material or delivery to the Docket Management at ICW mile 67.2, across Beach must reach the Coast Guard on or before Facility at the address under ADDRESSES; Thorofare at Atlantic City, NJ. December 5, 2008. but please submit your comments and In the closed-to-navigation position, material by only one means. If you the Route 30 Bridge has a vertical ADDRESSES: You may submit comments clearance of 20 feet, above mean high identified by Coast Guard docket submit them by mail or delivery, submit them in an unbound format, no larger water. The existing operating regulation number USCG–2008–0995 to the Docket than 81⁄2 by 11 inches, suitable for is set out in 33 CFR 117.733(e) which Management Facility at the U.S. copying and electronic filing. If you requires the draw to open on signal Department of Transportation. To avoid submit them by mail and would like to except that, year-round from 11 p.m. to duplication, please use only one of the know that they reached the Facility, 7 a.m. and, from November 1 through following methods: please enclose a stamped, self-addressed March 31 from 3 p.m. to 11 p.m., the (1) Online: http:// postcard or envelope. We will consider draw need only open if at least four www.regulations.gov. hours notice is given. (2) Mail: Docket Management Facility all comments and material received during the comment period. We may The NJDOT requested changes to the (M–30), U.S. Department of existing regulations for the Route 30 Transportation, West Building Ground change this proposed rule in view of them. Bridge in an effort to provide more Floor, Room W12–140, 1200 New Jersey scheduled openings to accommodate the Avenue, SE., Washington, DC 20590– Viewing Comments and Documents ever-increasing casino workforce and 0001. To view comments, as well as tourists and by limiting the number of (3) Hand Delivery: Room W12–140 on documents mentioned in this preamble openings to minimize vehicular traffic the Ground Floor of the West Building, as being available in the docket, go to delays and accidents that may result 1200 New Jersey Avenue, SE., http://www.regulations.gov at any time. from backups due to more frequent Washington, DC 20590, between 9 a.m. Enter the docket number for this vessel openings, by requiring the hourly and 5 p.m., Monday through Friday, rulemaking (USCG–2008–0995) in the openings of draw span during the spring except Federal holidays. The telephone Search box, and click ‘‘Go>>.’’ You may and summer months and to operate on number is 202–366–9329. also visit either the Docket Management an advance notice basis in the fall and (4) Fax: 202–493–2251. Facility in Room W12–140 on the winter months. FOR FURTHER INFORMATION CONTACT: If ground floor of the DOT West Building, A review of the bridge logs for the you have questions on this proposed 1200 New Jersey Avenue, SE., past three years supplied by NJDOT rule, call Terrance Knowles, Washington, DC 20590, between 9 a.m. revealed the morning rush (7 a.m. to 9 Environmental Protection Specialist, and 5 p.m., Monday through Friday, a.m.) is averaging a total of 11 openings/ Fifth Coast Guard District, at (757) 398– except Federal holidays or at year from June through September and 6587. If you have questions on viewing Commander (dpb), Fifth Coast Guard the evening rush (4 p.m. to 6 p.m.) is or submitting material to the docket, call District, Federal Building, 1st Floor, 431 averaging a total of 15 openings/year Renee V. Wright, Program Manager, Crawford Street, Portsmouth, VA from June through September. The Docket Operations, telephone 202–366– 233704–5004 between 8 a.m. and 4 average daily traffic count from 7 a.m. 9826. p.m., Monday through Friday, except and 8 p.m. for the same period revealed SUPPLEMENTARY INFORMATION: Federal holidays. between 700 and 3800 vehicles. This excess traffic causes increased bottle- Public Participation and Request for Privacy Act Comments necks and safety hazards. Anticipated Anyone can search the electronic bridge openings on the hour will help We encourage you to participate in form of all comments received into any to decrease delays to the local workforce this rulemaking by submitting of our dockets by the name of the and tourists. comments and related materials. All individual submitting the comment (or For the past three years, during the comments received will be posted, signing the comment, if submitted on fall and winter months, the draw span without change, to http:// behalf of an association, business, labor averaged 23 vessel openings per year www.regulations.gov and will include union, etc.). You may review the from November 1 through March 31 any personal information you have Department of Transportation’s Privacy between 7 a.m. and 3 p.m. provided. We have an agreement with Act Statement in the Federal Register Based on the above information, the Department of Transportation (DOT) published on April 11, 2000 (65 FR NJDOT has proposed to change the to use the Docket Management Facility. 19477), or you may visit http:// regulations to improve efficiency. Please see DOT’s ‘‘Privacy Act’’ DocketsInfo.dot.gov. Discussion of Proposed Rule paragraph below. Public Meeting The Coast Guard proposes to amend Submitting Comments We do not now plan to hold a public 33 CFR 117.733(e) by requiring hourly If you submit a comment, please meeting. However, you may submit a vessel openings of the draw span from include the docket number for this request for one to the Docket 7 a.m. to 11 p.m. from April 1 through rulemaking (USCG–2008–0995), Management Facility at the address October 31. At all other times, the draw indicate the specific section of this under ADDRESSES explaining why one will continue to open on signal if four document to which each comment would be beneficial. If we determine hours notice is given. This change will

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result in a more efficient use of the If you think that your business, Constitutionally Protected Property bridge. organization, or governmental Rights. jurisdiction qualifies as a small entity Regulatory Analysis Civil Justice Reform and that this rule would have a We developed this proposed rule after significant economic impact on it, This proposed rule meets applicable considering numerous statutes and please submit a comment (see standards in sections 3(a) and 3(b)(2) of executive orders related to rulemaking. ADDRESSES) explaining why you think it Executive Order 12988, Civil Justice Below we summarize our analyses qualifies and how and to what degree Reform, to minimize litigation, based on 13 of these statutes or this rule would economically affect it. eliminate ambiguity, and reduce executive orders. burden. Assistance for Small Entities Regulatory Planning and Review Protection of Children Under section 213(a) of the Small This proposed rule is not a Business Regulatory Enforcement We have analyzed this proposed rule ‘‘significant regulatory action’’ under Fairness Act of 1996 (Pub. L. 104–121), under Executive Order 13045, section 3(f) of Executive Order 12866, we want to assist small entities in Protection of Children from Regulatory Planning and Review, and understanding this proposed rule so that Environmental Health Risks and Safety does not require an assessment of they can better evaluate its effects on Risks. This rule is not an economically potential costs and benefits under them and participate in the rulemaking. significant rule and would not create an section 6(a)(3) of that Order. The Office If the rule would affect your small environmental risk to health or risk to of Management and Budget has not business, organization, or governmental safety that might disproportionately reviewed it under that Order. jurisdiction and you have questions affect children. We expect the economic impact of concerning its provisions or options for Indian Tribal Governments this proposed rule to be so minimal that compliance, please contact Waverly W. a full Regulatory Evaluation is Gregory, Jr., Bridge Administrator, Fifth This proposed rule does not have unnecessary. We reached this Coast Guard District, (757) 398–6222. tribal implications under Executive conclusion based on the fact that the The Coast Guard will not retaliate Order 13175, Consultation and proposed changes have only a minimal against small entities that question or Coordination with Indian Tribal impact on maritime traffic transiting the complain about this rule or any policy Governments, because it would not have bridge. Mariners can plan their trips in or action of the Coast Guard. a substantial direct effect on one or accordance with the scheduled bridge more Indian tribes, on the relationship openings to minimize delays. Collection of Information between the Federal Government and Additionally, vessels that can safely This proposed rule would call for no Indian tribes, or on the distribution of transit under the bridge while the draw new collection of information under the power and responsibilities between the span is in a closed position may do so Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. at any time. U.S.C. 3501–3520). Energy Effects Small Entities Federalism We have analyzed this proposed rule Under the Regulatory Flexibility Act A rule has implications for federalism under Executive Order 13211, Actions (5 U.S.C. 601–612), we have considered under Executive Order 13132, Concerning Regulations That whether this proposed rule would have Federalism, if it has a substantial direct Significantly Affect Energy Supply, a significant economic impact on a effect on State or local governments and Distribution, or Use. We have substantial number of small entities. would either preempt State law or determined that it is not a ‘‘significant The term ‘‘small entities’’ comprises impose a substantial direct cost of energy action’’ under that order because small businesses, not-for-profit compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ organizations that are independently this proposed rule under that Order and under Executive Order 12866 and is not owned and operated and are not have determined that it does not have likely to have a significant adverse effect dominant in their fields, and implications for federalism. on the supply, distribution, or use of governmental jurisdictions with energy. The Administrator of the Office populations of less than 50,000. Unfunded Mandates Reform Act of Information and Regulatory Affairs The Coast Guard certifies under 5 The Unfunded Mandates Reform Act has not designated it as a significant U.S.C. 605(b) that this proposed rule of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not would not have a significant economic Federal agencies to assess the effects of require a Statement of Energy Effects impact on a substantial number of small their discretionary regulatory actions. In under Executive Order 13211. entities. particular, the Act addresses actions Technical Standards This proposed rule could affect the that may result in the expenditure by a following entities, some of which might State, local, or tribal government, in the The National Technology Transfer be small entities: The owners or aggregate, or by the private sector of and Advancement Act (NTTAA) (15 operators of vessels needing to transit $100,000,000 or more in any one year. U.S.C. 272 note) directs agencies to use through the bridge. Though this proposed rule will not voluntary consensus standards in their This action will not have a significant result in such an expenditure, we do regulatory activities unless the agency economic impact on a substantial discuss the effects of this rule elsewhere provides Congress, through the Office of number of small entities for the in this preamble. Management and Budget, with an following reasons. Vessels that can explanation of why using these safely transit under the bridge while the Taking of Private Property standards would be inconsistent with draw span is in a closed position may This proposed rule would not affect a applicable law or otherwise impractical. do so at any time. All other mariners taking of private property or otherwise Voluntary consensus standards are can plan their trips in accordance with have taking implications under technical standards (e.g., specifications the scheduled bridge openings to Executive Order 12630, Governmental of materials, performance, design, or minimize delays. Actions and Interference with operation; test methods; sampling

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procedures; and related management LIBRARY OF CONGRESS should be addressed as follows: Office systems practices) that are developed or of the General Counsel, U.S. Copyright adopted by voluntary consensus Copyright Office Office, James Madison Memorial standards bodies. Building, Room LM–401, 101 37 CFR Part 201 This proposed rule does not use Independence Avenue, SE., Washington, DC 20559–6000. If hand technical standards. Therefore, we did [Docket No. RM 2008–8] not consider the use of voluntary delivered by a commercial courier, an consensus standards. Exemption to Prohibition on original and ten copies of any comment Circumvention of Copyright Protection must be delivered to the Congressional Environment Systems for Access Control Courier Acceptance Site located at Technologies Second and D Streets, NE., Washington, We have analyzed this proposed rule DC, between 8:30 a.m. and 4 p.m. The under Commandant Instruction AGENCY: Copyright Office, Library of envelope should be addressed as M16475.lD and the Department of Congress. follows: Copyright Office General Homeland Security Management ACTION: Notice of inquiry. Counsel, Room LM–403, James Madison Directive 5100.1, which guides the Memorial Building, 101 Independence Coast Guard in complying with the SUMMARY: The Copyright Office of the Avenue, SE., Washington DC. If National Environmental Policy Act of Library of Congress is preparing to delivered by means of the United States 1969 (NEPA) (42 U.S.C. 4321–4370f), conduct proceedings in accordance with Postal Service (see section 3 of the and have made a preliminary provisions added by the Digital SUPPLEMENTARY INFORMATION determination that this action is not Millennium Copyright Act which about continuing delays), comments likely to have a significant effect on the provide that the Librarian of Congress should be addressed to Copyright GC/ human environment because it simply may exempt certain classes of works I&R, PO Box 70400, Washington, DC promulgates the operating regulations or from the prohibition against 20024–0400. See SUPPLEMENTARY procedures for drawbridges. We seek circumvention of technological INFORMATION section for information any comments or information that may measures that control access to about requirements and formats of lead to the discovery of a significant copyrighted works. The purpose of this submissions. Comments may not be environmental impact from this rulemaking proceeding is to determine delivered by means of overnight proposed rule. whether there are particular classes of delivery services such as Federal works as to which users are, or are Express, United Parcel Service, etc., due List of Subjects in 33 CFR Part 117 likely to be, adversely affected in their to delays in processing receipt of such ability to make noninfringing uses due deliveries. Bridges. to the prohibition on circumvention. FOR FURTHER INFORMATION CONTACT: For the reasons discussed in the This notice requests written comments preamble, the Coast Guard proposes to from all interested parties, including Robert Kasunic, Principal Legal amend 33 CFR part 117 as follows: representatives of copyright owners, Advisor, Office of the General Counsel, educational institutions, libraries and Copyright GC/I&R, PO Box 70400, PART 117—DRAWBRIDGE archives, scholars, researchers and Washington, DC 20024–0400. OPERATION REGULATIONS members of the public, in order to elicit Telephone: (202) 707–8380; telefax: evidence on whether noninfringing uses (202) 707–8366. 1. The authority citation for part 117 of certain classes of works are, or are SUPPLEMENTARY INFORMATION: continues to read as follows: likely to be, adversely affected by this 1. Mandate for Rulemaking Proceeding Authority: 33 U.S.C. 499; 33 CFR 1.05–1; prohibition on the circumvention of The Digital Millennium Copyright Department of Homeland Security Delegation measures that control access to Act, Pub. L. 105–304 (1998), amended No. 0170.1. copyrighted works. title 17 of the United States Code to add DATES: Written comments must be Chapter 12, which among other things 2. Revise § 117.733(e) to read as received no later than December 2, prohibits circumvention of access follows: 2008. A notice of proposed rulemaking control technologies employed by or on § 117.733 New Jersey Intracoastal will be published in December 2008 that behalf of copyright owners to protect Waterway. will identify proposed classes of works their works. and solicit comments on those proposed Specifically, subsection 1201(a)(1)(A) * * * * * classes, which will be due no later than provides, inter alia, that ‘‘No person (e) The draw of the Route 30 Bridge February 2, 2009. shall circumvent a technological across Beach Thorofare, mile 67.2 at ADDRESSES: Electronic submissions measure that effectively controls access Atlantic City, shall open on signal should be made through the Copyright to a work protected under this title.’’ except that from April 1 through Office website: http:// Subparagraph (B) limits this October 31 from 7 a.m. to 11 p.m., the www.copyright.gov/1201/comment– prohibition. It provides that prohibition draw need only open on the hour; At all forms; see section 3 of the against circumvention ‘‘shall not apply other times, the draw need only open if SUPPLEMENTARY INFORMATION to persons who are users of a at least four hours notice is given. section for file formats and other copyrighted work which is in a * * * * * information about electronic and non– particular class of works, if such electronic filing requirements. If a non– persons are, or are likely to be in the Dated: September 25, 2008. electronic submission is hand delivered succeeding 3–year period, adversely N.O. Buschman, by a private party, an original and ten affected by virtue of such prohibition in Captain, Acting Commander, Fifth Coast copies of any comment must be their ability to make noninfringing uses Guard District. delivered to Room LM–401 of the James of that particular class of works under [FR Doc. E8–23604 Filed 10–3–08; 8:45 am] Madison Memorial Building between this title’’ as determined in this BILLING CODE 4910–15–P 8:30 a.m. and 5 p.m. and the envelope rulemaking.

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Subparagraph (C) provides that every history of Title I, see Exemption to B. Scope of the Rulemaking three years, the Librarian of Congress, Prohibition on Circumvention of The statutory focus of this rulemaking upon the ecommendation of the Register Copyright Protection Systems for Access is limited to one subsection of section of Copyrights (who is to consult with Control Technologies, 64 FR 66139, 1201: the prohibition on the conduct of the Assistant Secretary for 66140 (1999) [http://www.loc.gov/ circumvention of technological Communications and Information of the copyright/fedreg/1999/64fr66139.html]. measures that control access to Department of Commerce) must ‘‘make Section 1201 of title 17 of the United copyrighted works. 17 U.S.C. the determination in a rulemaking States Code prohibits two general types 1201(a)(1)(C) [http:// proceeding for purposes of of activity: (1) the conduct of www.copyright.gov/title17/ subparagraph (B) of whether persons ‘‘circumvention’’ of technological 92chap12.htmlι1201]. The Librarian of who are users of a copyrighted work are, protection measures that control access Congress has no authority to limit either or are likely to be in the succeeding 3– to copyrighted works and (2) trafficking of the anti–trafficking provisions year period, adversely affected by the in any technology, product, service, contained in subsections 1201(a)(2) or prohibition under subparagraph (A) in device, component, or part thereof that 1201(b). 17 U.S.C. 1201(a)(1)(E). their ability to make noninfringing uses protects either ‘‘access’’ to a copyrighted Moreover, for a proposed exemption to under this title of a particular class of work or that protects the ‘‘rights of the be considered in this rulemaking, there copyrighted works.’’ The Librarian, on copyright owner,’’ if that device or must be a causal connection between the recommendation of the Register, has service meets one of three conditions. the prohibition in 1201(a)(1) and the thus far made three determinations as to The first type of activity, the conduct of adverse effect on noninfringing uses. classes of works to be exempted from circumvention, is prohibited in section This rulemaking addresses only the the prohibition. The exemptions 1201(a)(1). The latter activities, prohibition on the conduct of promulgated by the Librarian in the first trafficking in devices or services that circumventing measures that control rulemaking were in effect for the 3–year circumvent ‘‘access’’ or ‘‘the rights of ‘‘access’’ to copyrighted works, e.g., period from October 28, 2000, through the copyright owner,’’ are contained in decryption or hacking of access controls October 28, 2003. See Exemption to sections 1201(a)(2) and 1201(b) such as passwords or serial numbers. Prohibition on Circumvention of respectively. In addition to these The structure of section 1201 is such Copyright Protection Systems for Access prohibitions, section 1201 also includes that there exists no comparable Control Technologies, 65 FR 64556, a series of section–specific limitations prohibition on the conduct of 64564 (2000) (hereinafter Final Reg. and exemptions to the prohibitions of circumventing technological measures 2000). On October 28, 2003, the section 1201. Librarian of Congress published the that protect the ‘‘rights of the copyright second determination as to classes of A. The Anticircumvention Provision at owner,’’ e.g., the section 106 rights to works to be exempted from the Issue reproduce, adapt, distribute, publicly prohibition. Exemption to Prohibition perform, or publicly display a work. on Circumvention of Copyright Subsection 1201(a)(1) applies when a Circumventing a technological measure Protection Systems for Access Control person who is not authorized by the that protects these section 106 rights of Technologies, 68 FR 62011, 62013 copyright owner to gain access to a work the copyright owner is governed not by (2003) (hereinafter Final Reg. 2003). The does so by circumventing a section 1201, but rather by the four exemptions created in the second technological measure put in place with traditional copyright rights and the anticircumvention rulemaking remained the authority of the copyright owner to applicable limitations in the Copyright in effect for a 3–year period. On control access to the work. See the Act. For example, if a person having November 27, 2006, the Librarian of Report of the House Committee on lawful access to a work circumvents a Congress published the third Commerce on the Digital Millennium measure that prohibits printing or determination. Exemption to Copyright Act of 1998, H.R. Rep. No. saving an electronic copy of an article, Prohibition on Circumvention of 105–551, pt. 2, at 36 (1998) (hereinafter there is no provision in section 1201 Copyright Protection Systems for Access Commerce Comm. Report). that precludes this activity. Instead, it Control Technologies, 71 FR 68472, That section provides that ‘‘No person would be actionable as copyright 68480 (2006) (hereinafter Final Reg. shall circumvent a technological infringement of the section 106 right of 2006). The six exemptions established measure that effectively controls access reproduction unless an applicable in the third anticircumvention to a work protected under this title.’’ 17 limitation applied, e.g., fair use. The rulemaking will remain in effect until U.S.C. 1201(a)(1)(A) (1998). trafficking in, inter alia, any device or October 28, 2009. All three of the The relevant terms are defined: service that enabled others to circumvent such a technological previous determinations by the (3) As used in this subsection– Librarian of Congress were made upon protection measure may, however, be the recommendation of the Register of (A) to ‘‘circumvent a technological actionable under section 1201(b). Copyrights following extensive measure’’ means to descramble a On the other hand, because there is a rulemaking proceedings. This notice scrambled work, to decrypt an prohibition on the act of circumventing announces the initiation of the fourth encrypted work, or otherwise to avoid, a technological measure that controls section 1201 rulemaking required under bypass, remove, deactivate, or impair a access to a work, and since traditional 17 U.S.C. 1201(a)(1)(C). technological measure, without the Copyright Act limitations are not 2. Background authority of the copyright owner; and defenses to the act of circumventing a Title I of the Digital Millennium (B) a technological measure technological measure that controls Copyright Act was, inter alia, the ‘‘effectively controls access to a work’’ access, Congress chose to create the congressional fulfillment of obligations if the measure, in the ordinary course of current rulemaking proceeding as a of the United States under the WIPO its operation, requires the application of ‘‘fail–safe mechanism’’ to monitor the Copyright Treaty and the WIPO information, or a process or a treatment, effect of the anticircumvention Performances and Phonograms Treaty. with the authority of the copyright provision in section 1201(a)(1)(A). For additional information on the owner, to gain access to the work. 17 Commerce Comm. Report, at 36. This historical background and the legislative U.S.C. 1201(a)(3). anticircumvention rulemaking is

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authorized to monitor the effect of the Circumstantial evidence may also The facts and argument that supported prohibition against ‘‘access’’ support a claim of present or likely an exemption during any given 3–year circumvention on noninfringing uses of harm, but such evidence must also period may be insufficient within the copyrighted works. In this triennial reasonably demonstrate that a measure context of the marketplace in a different rulemaking proceeding, effects on protecting access was the cause of the 3–year period. Similarly, proposals that noninfringing uses that are unrelated to harm and that the adversely affected use were not found to justify an exemption section 1201(a)(1)(A) may not be was, in fact, noninfringing. ‘‘Likely’’ in any particular rulemaking could find considered. 17 U.S.C. 1201(a)(1)(C). adverse effects may also support an factual support in the context and on exemption. This standard of the record of another rulemaking. C. Burden of Proof ‘‘likelihood’’ requires proof that adverse Evidence in support or in opposition In the first rulemaking, the Register effects are more likely than not to occur. to an exemption should be contained in concluded from the language of the Claims based on ‘‘likely’’ adverse effects the initial comments or, after statute and the legislative history that a cannot be supported by speculation publication of the proposed classes in determination to exempt a class of alone. See Staff of House Committee on the Federal Register, in the comments works from the prohibition on the Judiciary, 105th Cong., Section–By– on the proposed exemptions. The circumvention must be based on a Section Analysis of H.R. 2281 as Passed purpose of this rulemaking is to survey showing that the prohibition has or is by the United States House of interested parties in the digital likely to have a substantial adverse Representatives on August 4, 1998, environment to discover whether effect on noninfringing uses of a (hereinafter House Manager’s Report), at section 1201(a)(1) is adversely affecting particular class of works. It was 6, (an exemption based on ‘‘likely’’ noninfringing uses of particular classes determined that proponents of an future adverse impacts during the of copyrighted works. The proposals exemption bear the burden of proof that applicable period should only be made received in the initial comments will an exemption is warranted for a ‘‘in extraordinary circumstances in frame the inquiry throughout the rest of particular class of works and that the which the evidence of likelihood is the rulemaking process. The comments prohibition is presumed to apply to all highly specific, strong and submitted in response to this Notice of classes of works unless an adverse persuasive.’’). Conjecture alone is Inquiry will be posted on the Copyright impact has been shown. See Commerce insufficient to support a finding of Office website shortly after submission, Comm. Report, at 37 and see also, Final ‘‘likely’’ adverse effect. Final Reg. 2000, and a Notice of Proposed Rulemaking Reg. 2000, 65 FR at 64558. 65 FR at 64559. Although a showing of identifying the classes of works The ‘‘substantial’’ adverse ‘‘likely’’ adverse impact will necessarily proposed will be published in the requirement has also been described as involve prediction, the burden of Federal Register shortly thereafter.1 The a requirement that the proponent of an proving that the expected adverse effect Notice of Proposed Rulemaking will exemption must demonstrate ‘‘distinct, is more likely than other possible invite copyright owners and other verifiable, and measurable impacts,’’ outcomes rests firmly on the proponent interested parties to offer their and more than ‘‘de minimis impacts.’’ of the exemption. comments in support of or opposition to See Final Reg. 2003, 68 FR at 62013. The identification of existing or likely the proposed classes. Comments Whatever label one uses, proponents of problems is not, however, the end of the responsive to the proposed classes may an exemption bear the burden of analysis. In order for an exemption of a also propose modest refinements to the providing sufficient evidence under this particular class of works to be proposed classes and supply additional standard to support an exemption. How warranted, a proponent must show that evidence, but may not propose much evidence is sufficient will vary such problems justify an exemption in completely new classes of works. Since with the factual context of the alleged light of all of the relevant facts. The opponents to exemptions have only one harm. Further, proof of harm is never identification of isolated or anecdotal comment period to provide written the only consideration in the problems will be generally insufficient responses to the exemptions proposed, rulemaking process, and therefore the to warrant an exemption. Similarly, the opponents should have sufficient notice sufficiency of the evidence of harm will mere fact that the digital format would of the exemptions to be addressed in the always be relative to other be more convenient to use for rulemaking. Copyright owners and other considerations, such as, the availability noninfringing purposes is generally interested parties, however, should be of the affected works for use, the insufficient factual support for an vigilant in monitoring classes proposed availability of the works for nonprofit exemption. Further, purely theoretical in the initial comment period that may archival, preservation, and educational critiques of section 1201 cannot satisfy implicate their interests as such classes purposes, the impact that the the requisite showing. House Manager’s may be further refined in the ensuing prohibition has on criticism, comment, Report, at 6. Proponents of exemptions rulemaking process. news reporting, teaching, scholarship, must show sufficient harm to warrant an The Office will post all of the or research, the effect of circumvention exemption from the default rule comments, hearing transcripts, and on the market for or value of established by Congress – the other relevant material in this copyrighted works, and any other prohibition against circumvention. rulemaking proceeding, as the Office relevant factors. There is a presumption that the has done since the inception of this In order to meet the burden of proof, section 1201 prohibition will apply to rulemaking proceeding, on the proponents of an exemption must any and all classes of works, including Copyright Office’s website at: provide evidence either that actual harm previously exempted classes, unless a www.copyright.gov/1201.2 currently exists or that it is ‘‘likely’’ to new showing is made that an exemption occur in the ensuing 3–year period. is warranted. Final Reg. 2000, 65 FR at 1 See infra for a discussion of proposals raised Actual instances of verifiable problems 64558. Exemptions are reviewed de after the initial comment period has expired. occurring in the marketplace are novo and prior exemptions will expire 2 If a comment includes attached material that generally necessary in order to prove unless sufficient new evidence is appears to be protected by copyright and there is no indication that the material was attached with actual harm. The most compelling cases presented in each rulemaking that the permission of the copyright owner, the attached of actual harm will be based on first– prohibition has or is likely to have an material will not be placed on the Office’s website. hand knowledge of such problems. adverse effect on noninfringing uses. Continued

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The Copyright Office will also contrast to a particular ‘‘copy’’ of a assume that the standards developed conduct a series of hearings on the work) is available in a format without thus far will continue to apply in the proposed exemptions in the Spring in technological protection measures may current proceeding. Of course, Washington, DC and at a location or be significant because the unprotected commenters may argue for adoption of locations to be determined in California. formats might allow the public to make alternative approaches,3 but a These hearings will offer proponents noninfringing uses of the work even persuasive case will have to be made to and opponents of exemptions an though other formats of the work would warrant reconsideration of previous opportunity to present arguments and not. For example, in the first decisions regarding interpretation of answer questions from the Register and rulemaking, many users claimed that section 1201. her staff. These hearings–the time, date the technological measures on motion In the first rulemaking, the Register and subject matter of which will be pictures contained on Digital Versatile elicited views on the scope and meaning announced early in 2009–will not Disks (DVDs) restricted noninfringing of the term ‘‘class of works.’’ After provide a forum in which to raise new uses of the motion pictures. A balancing review of the statutory language, the proposals or to submit wholly new consideration was that the record legislative history and the extensive evidence. Evidence that demonstrates revealed at that time that the vast record in the proceeding [see Final Reg., how a technological measure operates majority of these works were also 65 FR at 64557 for a description of the and affects noninfringing uses as well as available in analog format on VHS tapes. record in the last rulemaking evidence that is responsive to earlier Final Reg. 2000, 65 FR at 64568. Thus, proceeding], the Register reached disputes raised in the comment process the full range of availability of a work certain conclusions on the scope of this is welcomed, and is encouraged, at for use is necessary to consider in term. [For a more detailed discussion, these hearings. However, the hearings assessing the need for an exemption to see Final Reg., 65 FR at 64559.] may not be used as a vehicle for surprise the prohibition on circumvention. The Register found that the statutory or to present untimely proposals. Another consideration relating to the language required that the Librarian The Register is also likely to pose availability for use of copyrighted works identify a ‘‘class of works’’ primarily post–hearing questions to specific is whether the measure supports a based upon attributes of the works parties or witnesses that participated in distribution model that benefits the themselves, and not by reference to the rulemaking proceeding. These public generally. For example, while a some external criteria such as the questions have historically sought measure may limit the length of time intended use or the users of the works. clarification of legal and factual that a work may be accessed (time– The phrase ‘‘class of works’’ connotes questions, including specific requests to limited) or may limit the scope of access that the shared, common attributes of explain the operation of a technological (scope–limited), e.g., access to only a the ‘‘class’’ relate to the nature of measure at issue. Such post–hearing portion of work, those limitations may authorship in the ‘‘works.’’ Thus a questions should not be construed as a benefit the public by providing ‘‘use– ‘‘class of works’’ was intended to be a general public post–hearing comment facilitating’’ models that allow users to ‘‘narrow and focused subset of the broad phase–there simply will not be obtain access to works at a lower cost categories of works of authorship *** sufficient time to consider another than they would otherwise be charged identified in section 102.’’ Commerce round of general public comments by were such restrictions not in place. If Comm. Report, at 38. The starting point the statutory deadline for the there is sufficient evidence that for a proposed exemption of a particular announcement of the newly exempted particular classes of works would not be class of works must be the section 102 classes–but rather are invitations offered at all without the protection categories of authorship: literary works; addressed to specific witnesses who afforded by technological protection musical works; dramatic works; have offered testimony on an issue to measures that control access, this pantomimes and choreographic works; provide further clarification in response evidence must be considered. House pictorial, graphic and sculptural works; to specific questions from the Register. Manager’s Report, at 6. Accord, Final motion pictures and other audiovisual The questions and the responses to the Reg. 2000, 65 FR at 64559. Thus, the works; sound recordings; and questions will be posted on the Register’s inquiry must assess any architectural works. This determination is supported by Copyright Office’s website after the benefits to the public resulting from the the House Manager’s Report which responses have been received. prohibition as well as the adverse effects that may be established. discussed the importance of D. Availability of Works in appropriately defining the proper scope Unprotected Formats E. The Scope of the Term ‘‘Class of of the exemption. House Manager’s Works’’ Other statutory considerations must Report, at 7. The legislative history also be balanced with evidence of Section 1201 does not define a critical stated that it would be highly unlikely adverse effects attributable to the term for the rulemaking process: a for all literary works to be adversely prohibition. In making her ‘‘class of works.’’ With respect to this affected by the prohibition and recommendation to the Librarian, the issue and others, commenters should therefore, determining an appropriate familiarize themselves with the Register is instructed to consider the subcategory of the works in this Register’s recommendation and the availability for use of copyrighted category would be the goal of the Librarian’s determination in the first works. 17 U.S.C. 1201(a)(1)(C)(i). This rulemaking. Id. rulemaking and in the subsequent two Therefore, the Register concluded that inquiry demands that the Register rulemakings, since many of the issues the starting point for identifying a consider whether ‘‘works’’ protected by which were unsettled at the start of the particular ‘‘class of works’’ to be technological measures that control first rulemaking have been addressed exempted must be one of the section access are also available in the and developed in the three 102 categories. Final Reg., 65 FR at marketplace in formats that are determinations. While the approach unprotected. The fact that a ‘‘work’’ (in taken in resolving the issues raised in 3 Proponents of an exemption may do so in their these rulemakings may continue to comments proposing exemptions. Opponents of an If such material is available on the Internet, the exemption should do so in their comments filed in comment should identify where the material may develop in this and subsequent response to the forthcoming Notice of Proposed be found. proceedings, interested parties should Rulemaking.

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64559–64561. From that starting point, Content Scrambling System (CSS) likely harm. An appropriately fashioned it is likely that the scope or boundaries contained on most commercially exemption will assist users and of a particular class would need to be released DVDs was an access control copyright owners alike, by temporarily further limited to remedy the particular system that prevented the making of a suspending the prohibition on harm to noninfringing uses identified in compilation of film clips for classroom circumvention for appropriately tailored the rulemaking. use. Although opponents of the adversely affected classes, while In the first anticircumvention exemption demonstrated a DVD player preserving the prohibition in all other rulemaking, the Register recommended that was alleged to meet the pedagogical classes. and the Librarian agreed that two needs of educators, the device presented The exemptions published for each classes of works should be exempted: obstacles for classroom use that were three–year period are temporary and 1) Compilations consisting of lists of found to be more than a mere expire when the succeeding websites blocked by filtering software inconvenience for a subset of users – determination of the Librarian of applications; and film and media studies professors. Congress is published. This rulemaking 2) Literary works, including The proponents met their burden of will examine adverse effects existing in computer programs and databases, proving that section 1201(a)(1) was the marketplace or likely to exist in the protected by access control mechanisms adversely affecting film and media next three–year period to determine that fail to permit access because of studies educators’ ability to engage in whether any exemptions to the malfunction, damage or obsoleteness. noninfringing uses for the ensuing 3– prohibition on circumvention of While the first class exempted fits year period and that no reasonable technological protection measures that comfortably within the approach to substitute for the pedagogically effectively control access to copyrighted classification discussed above, the beneficial digital content was available works are warranted by the evidence second class includes the entire or likely to become available in the next raised during this rulemaking. category of literary works, but narrows three years. The opponents of the F. Considerations to Address within a the exemption by reference to attributes proposal expressed concern that if the Comment of the technological measures that proposed class of works–audiovisual controls access to the works. works included in the educational This notice requests written In the 2006 rulemaking, the Register library of a college or university’s film comments from all interested parties. In determined that a further refinement of or media studies department and that addition to the necessary showing the approach to determining a particular are protected by technological measures discussed above, in order to make a class of works was warranted. Even that prevent their educational use–was prima facie case for a proposed though a class must begin, as its starting based only on attributes of the work exemption, certain critical points point, by reference to one of the itself, the exemption would necessarily should be established. First, a categories of authorship enumerated in exempt a much broader range of uses proponent should identify the section 102 of the Copyright Act (or than those in which the film professors technological measure that is the some subset thereof), that class should wished to engage. Moreover, copyright ultimate source of the alleged problem, be further tailored to address the harm owners were concerned that such an and the proponent should explain how (actual or likely) alleged. The proper exemption would create public the technological measure effectively tailoring of a class will depend on the confusion about the circumstances in controls access to a copyrighted work. specific facts, but in some cases, the which circumvention was appropriate. Second, a proponent must specifically most appropriate manner of further Given the expanse of such a class of explain what noninfringing activity the tailoring the category or sub–category works and the adverse effects that could prohibition on circumvention is may be to limit the class in relation to occur as a result of confusion about the preventing. Third, a proponent should particular uses or users. class, copyright owners argued that establish that the prevented activity is, The impetus for this refinement was overall harm of such an exemption in fact, a noninfringing use under a proposed exemption for film and would outweigh the marginal benefits to current law. A proponent should also media studies professors. The this subset of educators. demonstrate why the access–protected proponents of the exemption The Register concluded that a further copy of a work is needed for the demonstrated that the reproduction and refinement of the scope of a class of noninfringing use and why alternate public performance of short portions of works was the proper balance to the means of engaging in the noninfringing motion pictures or other audiovisual valid concerns of both educators and uses (including use of available copies works in the course of face–to–face copyright owners. By delineating the of the work in unprotected formats), if teaching activities of a film or media class in relation to the relevant they exist, are an insufficient substitute studies course would generally noninfringing use proven to be, or likely for accomplishing the noninfringing constitute a noninfringing use. The to be, adversely affected by the use. proponents further demonstrated that prohibition on circumvention, film and The nature of the Librarian’s inquiry the digital version of the motion media studies educators’ needs could be is further delineated by the statutory pictures distributed on DVDs was not met while leaving the statutory areas to be examined by the Register of merely a preferred format, but that the prohibition against circumvention intact Copyrights: digital version of these works was the for that class with respect to other uses. (i) the availability for use of only version of the work that met the In all proposed exemptions, the copyrighted works; pedagogical needs of the film and media starting point for a class of works must (ii) the availability for use of works studies professors. The proponents of be a section 102 category of authorship, for nonprofit archival, preservation, and the exemption also demonstrated that or a subset thereof. That category or educational purposes; their otherwise noninfringing uses of subset should then be tailored by other (iii) the impact that the prohibition the digital versions of these motion criteria as appropriate under the on the circumvention of technological pictures were adversely affected by the particular facts presented. The goal is to measures applied to copyrighted works prohibition on circumvention of fashion an exemption that is neither too has on criticism, comment, news technological measures protecting narrow nor too broad to remedially reporting, teaching, scholarship, or access to these works, because the address the evidence of present and research;

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(iv) the effect of circumvention of measures protecting access has had or is comment will not be received at the technological measures on the market likely to have an adverse effect on Copyright Office in time to be for or value of copyrighted works; and noninfringing uses. It would also be considered. Electronic filing or hand– (v) such other factors as the Librarian useful for the commenter to quantify the delivery will help ensure timely receipt considers appropriate. adverse effects in order to explain the of comments by the Office. Electronic 17 U.S.C. 1201(a)(1)(C). scope of the present or likely problem. comments successfully submitted These statutory considerations require Comments subsequently submitted in through the Office’s website will examination and careful balancing. The response to exemptions proposed in the generate a confirmation receipt to the harm identified by a proponent of an first round of comments should provide submitter. exemption must be balanced with the factual information and legal argument 4. Submission of Comments harm that would result from an addressing whether or not a proposed Comments may be submitted in the exemption. In some circumstances, the exemption should be adopted. Since the following ways: adverse effect of a proposed exemption comments in this second round are If submitted through the Copyright in light of these considerations may be intended to be responsive to the initial Office’s website: The Copyright Office’s greater than the harm posed by the comments, commenters must identify website will contain a submission page prohibition on circumvention of works which proposal(s) they are responding at: http://www.copyright.gov/1201/ in the proposed class. Perhaps the to, whether in opposition, support, comment–forms. Approximately thirty proper balance can be resolved by amplification or correction. As with days prior to each applicable deadline carefully tailoring the scope of the class, initial comments, these responsive (see DATES), the form page will be but ultimately, the determination of the comments should first identify the activated on the Copyright Office Librarian must take all of these factors proposed class or classes to which the website allowing information to be into account. comment is responsive, provide a entered into the required fields, 3. Written Comments summary of the argument, and then including the name of the person In the first rulemaking, the Register provide the factual and/or legal support making the submission, mailing determined that the burden of proof is for their argument. This format of class/ address, telephone number, and email on the proponent of an exemption to summary/facts and/or legal argument address. There will also be non– come forward with evidence supporting should be repeated for each comment required fields for, e.g., the commenter’s an exemption for a particular class of responsive to a particular class of work title, the organization that the works. In this fourth triennial proposed. commenter is representing, whether the rulemaking, the Register shall continue Regardless of the mode of submission commenter is likely to request to testify with the procedure adopted in the (see section 4 below), all comments at public hearings and if so, whether the second and third rulemakings: must, at a minimum, contain the legal commenter is likely to prefer to testify Comments submitted in the initial name of the submitter and the entity, if in Washington, DC, or a location in comment period should be confined to any, on whose behalf the comment was California. In addition, commenters proposals for exempted classes. They submitted. If persons do not wish to proposing classes of works in the first should specifically identify particular have their address, telephone number, round of comments will be required to classes of works adversely affected by or email address publicly displayed on fill in two additional fields: (1) the the prohibition and provide evidentiary the Office’s website, comments should proposed class or classes of copyrighted support for the need for the proposed not include such information on the work(s) to be exempted, and (2) a brief exemptions (see section F above). document itself but should only include summary of the argument(s). For each particular class of works that the legal name of the commenter. The Commenters submitting comments in a commenter proposes for exemption, Office prefers that all comments be response to the initial proposals will the commenter should first identify that submitted in electronic form and the similarly be required to fill in two class, followed by a summary of the electronic form will provide a place to additional required fields: (1) the class argument in favor of exempting that provide the required information or classes to which the comment is proposed class. The commenter should separately from the attached comment responsive, including the initial then specify the facts and evidence submission. However, the Office comment numbers, and (2) a brief providing a basis for this exemption. recognizes that persons may be unable summary of the argument. This factual information should ideally to submit their comments through the All comments submitted include the technological measure that Office’s website or to deliver their electronically must be sent as an controls access and the manner in comments in person. Therefore, attachment, and must be in a single file which this technological measure comments may also be delivered in either Adobe Portable Document File operates to control access to a through the United States Postal (PDF) format (preferred), Microsoft copyrighted work. Finally, the Service, addressed to the Office of the Word Version 2003 or earlier, commenter should state any legal General Counsel, Copyright GC/I&R, PO WordPerfect 12.0 or earlier, Rich Text arguments in support of the exemption, Box 70400, Washington, DC 20024– Format (RTF), or ASCII text file format. including the activity that is claimed to 0400. A comment submitted by mail or There will be a browse button on the be noninfringing, the legal basis for this hand–delivery should include a cover form that will allow submitters to attach claim, and why this noninfringing sheet that includes the required the comment file to the form and then activity cannot be accomplished in information about the submitter (e.g., to submit the completed form to the other ways. This format of class/ address, telephone, and email) and Office. summary/ facts/argument should be should not include this information in The personal information entered into sequentially followed for each class of the comment itself if such information the required fields on the form page will work proposed as necessary. is not desired to be placed on the not be publicly posted on the Copyright As discussed above, the best evidence Copyright Office’s website. Due to mail Office website, but the Office intends to in support of an exemption would screening on Capitol Hill and possible post on its website the name of the consist of concrete examples or specific delays in delivery, submission by means proponent, the proposed class and the instances in which the prohibition on of the United States Postal Service is summary of the argument, as well as the circumvention of technological discouraged and there is a risk that the entire, attached comment document.

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Only the commenter’s name is required must be included in some form, e.g., on To provide sufficient flexibility in this on the comment document itself and a the website form or in a cover letter proceeding, in the event that unforeseen commenter who does not want other with the submission. All submissions developments occur after the deadlines personal information posted on the must also include the class/summary/ for the filing of initial comments, a Office’s website should avoid including factual and/or legal argument format in person wishing to propose an other personal information on the the comment itself for each class of exemption for a particular class of comment itself. Except in exceptional work proposed or for each comment works after the specified deadline for circumstances, changes to the submitted responsive to a proposed exemption. initial comments may petition the comment will not be allowed and it will Comments will be accepted for a 30– Register to consider an additional become a part of the permanent public day period, and a form will be placed exemption. A petition, including record of this rulemaking. on the Copyright Office website at least proposed new classes of works to be If submitted by means of the United 30 days prior to the deadline for exempted, must be in writing and must States Postal Service or hand delivery: submission. Initial comments will be set forth the reasons why the a. Electronic copies: Send, to the accepted from November 3, 2008, until information could not have been made appropriate address listed above, two December 2, 2008, at 5:00 P.M. Eastern available earlier and why it should be copies, each on a 3.5–inch write– Standard Time, at which time the protected diskette or CD–ROM, labeled considered by the Register after the submission form will be removed from deadline. A petition must also be with the legal name of the person the website. The deadline for the second making the submission and the entity accompanied by ten copies of a round of comments will be announced comment that meets the requirements on whose behalf the comment was in the Notice of Proposed Rulemaking to submitted, if any. The document itself for initial comments set forth in section be published in December, and will 3 above, any new proposed exemption must be in a single file in either Adobe probably be on or about February 2, Portable Document File (.pdf) format that includes the proposed class of 2008. works to be exempted, a summary of the (preferred), Microsoft Word Version 5. Hearings 2007 or earlier (.doc or .docx), argument, the factual basis for such an As mentioned above, after the WordPerfect Version 12.0 or earlier exemption and the legal argument conclusion of the comment periods, the (.wpd) , Rich Text Format (.rtf), or ASCII supporting such an exemption. These Register intends to hold public hearings text file (.txt) document. If the comment materials must be delivered to the in the Spring in Washington, DC and in is hand delivered or mailed to the Office Copyright Office at the address listed California. The Washington, DC and the submitter does not wish to have above. A person wishing to file any hearings will most likely take place in the address, telephone number, or email other untimely submission may also the James Madison Memorial Building address publicly displayed on the petition the Register to consider such of the Library of Congress. The dates Office’s website, the comment should submission, but such untimely and confirmed location of hearings in not include such information on the submissions will be disfavored. Washington, DC and California, have document itself, but only the name and Exceptional or unforeseen affiliation, if any, of the commenter. In not yet been determined. A separate notice for details on all hearings in this circumstances generally entail that case, a cover letter should be information that did not exist at the included with the comment that rulemaking proceeding will be published at a later time in the Federal time of the comment periods. The contains the commenter’s address, Register will make a determination phone number, email address, and for Register and on the Copyright Office’s website. In order to assist the Copyright whether to accept a petition based on initial comments, the proposed class of the stage of the rulemaking process at copyrighted work to be exempted and a Office in identifying the number of days for hearings, the comment form page which the request is made and the brief summary of the argument. merits of the petition. A substantively b. Paper copies: Anyone who is will contain non–required fields asking meritorious petition may be denied if unable to submit a comment in whether the commenter is likely to the petition comes so late in the process electronic form (on the website as an request to testify and if so, in which that adequate notice and comment attachment or by means of the United location. Formal requests to testify will States Postal Service or hand delivery be solicited early in 2009. cannot be accommodated within the on disk or CD–ROM) should submit an As noted above, following the statutory time frame of the rulemaking original and ten paper copies by hand hearings, the Copyright Office may process. The mere fact that an interested or by means of the United States Postal request additional information from party was unaware of this proceeding or Service to the appropriate address listed parties who have been involved in the of any particular exemptions proposed above. It may not be feasible for the rulemaking process. Such requests for in this proceeding is not a valid Office to place these comments on its responses to questions will take the justification for a late submission. If a website. form of a letter from the Copyright petition is accepted, the Register will General Requirements for all Office and will be addressed to publish the proposal in the Federal submissions: All submissions (in either particular parties involved in an issue in Register and announce deadlines for electronic or non–electronic form which more information is sought. comments. If a petition is denied, the delivered through the website, by means These inquiries will include deadlines Register will set forth the reasons for the of the United States Postal Service by based on when the requests for denial in a letter to the petitioner. All hand–delivery or by courier) must information are sent. After the receipt of petitions and responses will become contain on the comment itself, the name all responses to all inquiries from the part of the public record in this of the person making the submission Copyright Office, the Office will post rulemaking process. and his or her title and affiliation, if the the questions, the parties to whom the October 1, 2008 comment is being submitted on behalf questions were sent, and the responses of that organization. The mailing on the Copyright Office’s website. Marybeth Peters, address, telephone number, fax number, 6. Process for Untimely Submissions Register of Copyrights. if any, and email address need not be based on Exceptional or Unforeseen [FR Doc. E8–23576 Filed 10–3–08; 8:45 am] included on the comment itself, but Circumstances BILLING CODE 1410–33–S

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ENVIRONMENTAL PROTECTION • E-mail: [email protected]. listed in the index, some information is AGENCY Attention Docket ID No. EPA–HQ– not publicly available, e.g., CBI or other OAR–2005–0159. information whose disclosure is 40 CFR Parts 50 and 51 • Fax: (202) 566–9744. Attention restricted by statute. Certain other [EPA–HQ–OAR–2005–0159; FRL–8725–4] Docket ID No. EPA–HQ–OAR–2005– material, such as copyrighted material, 0159. will be publicly available only in hard RIN 2060–AP28 • Mail: EPA Docket Center, EPA West copy. Publicly available docket (Air Docket), Attention Docket ID No. materials are available either The Treatment of Data Influenced by EPA–HQ–OAR–2005–0159, electronically in http:// Exceptional Events (Exceptional Event Environmental Protection Agency, www.regulations.gov or in hard copy at Rule): Revised Exceptional Event Data Mailcode: 2822T, 1200 Pennsylvania the EPA Docket Center EPA/DC, EPA Flagging Submittal and Documentation Ave., NW., Washington, DC 20460. West, Room 3334, 1301 Constitution Schedule for Monitoring Data Used in • Hand Delivery: EPA Docket Center Ave., NW., Washington, DC. The Public Designations for the 2008 Ozone (Air Docket), Attention Docket ID No. Reading Room is open from 8:30 a.m. to NAAQS EPA–HQ–OAR–2005–0159, 4:30 p.m., Monday through Friday, Environmental Protection Agency, 1301 AGENCY: Environmental Protection excluding legal holidays. The telephone Constitution Avenue, NW., Room 3334; Agency (EPA). number for the Public Reading Room is Washington, DC. Such deliveries are ACTION: Proposed rule. (202) 566–1744, and the telephone only accepted during the Docket’s number for the EPA Docket Center is SUMMARY: EPA is proposing to amend normal hours of operation, and special (202) 566–1742. arrangements should be made for the Exceptional Events Rule to provide FOR FURTHER INFORMATION CONTACT: a revised exceptional event data flagging deliveries of boxed information. Instructions: Direct your comments to Thomas E. Link, Air Quality Planning and documentation schedule for ozone Docket ID No. EPA–HQ–OAR–2005– Division, Office of Air Quality Planning data that may be used for designations 0159. EPA’s policy is that all comments and Standards, Mail Code C539–04, under the 2008 ozone national ambient received will be included in the public Environmental Protection Agency, air quality standards (NAAQS). The docket without change and may be Research Triangle Park, North Carolina Exceptional Events Rule states that made available online at http:// 27711; telephone number: 919–541– when EPA sets a NAAQS for a new www.regulations.gov, including any 5456; fax number: 919–541–0824; e-mail pollutant or revises the NAAQS for an personal information provided, unless address: [email protected]. existing pollutant, EPA may revise or set the comment includes information SUPPLEMENTARY INFORMATION: a new schedule for flagging data for claimed to be Confidential Business Outline those NAAQS. EPA recently revised the Information (CBI) or other information primary and secondary ozone NAAQS whose disclosure is restricted by statute. I. Why Is EPA Issuing This Proposed Rule? to protect public health and welfare; the Do not submit information that you II. Does This Action Apply to Me? revised standards became effective May consider to be CBI or otherwise III. What Should I Consider as I Prepare My 27, 2008. Consistent with the process protected through http:// Comments for EPA? IV. What Information Should I Know About envisioned in the Exceptional Events www.regulations.gov or e-mail. The Rule, this proposal revises the dates for the Public Hearing? http://www.regulations.gov Web site is V. What Is the Background for This Action? flagging data and submitting an ‘‘anonymous access’’ system, which documentation regarding exceptional VI. What Is This Proposed Rule? means EPA will not know your identity VII. Statutory and Executive Order Reviews events under the revised ozone NAAQS. or contact information unless you A. Executive Order 12866: Regulatory This revised schedule allows EPA to provide it in the body of your comment. Planning and Review fully consider state requests for If you send an e-mail comment directly B. Paperwork Reduction Act exceptional event concurrence prior to to EPA without going through http:// C. Regulatory Flexibility Act EPA making final designations. www.regulations.gov your e-mail D. Unfunded Mandates Reform Act In the ‘‘Rules’’ section of this Federal address will be automatically captured E. Executive Order 13132: Federalism Register, we are issuing this action as a F. Executive Order 13175: Consultation and included as part of the comment and Coordination With Indian Tribal direct final rule without a prior that is placed in the public docket and proposed rule. If we receive no adverse Governments made available on the Internet. If you G. Executive Order 13045: Protection of comment, we will not take further submit an electronic comment, EPA Children From Environmental Health action on this proposed rule. recommends that you include your and Safety Risks DATES: Comments. Written comment name and other contact information in H. Executive Order 13211: Actions That must be received November 20, 2008. the body of your comment and with any Significantly Affect Energy Supply, Public Hearing. If anyone contacts us disk or CD–ROM you submit. If EPA Distribution, or Use requesting a public hearing by October cannot read your comment due to I. National Technology Transfer Advancement Act 16, 2008, we will hold a public hearing technical difficulties and cannot contact approximately 30 days after publication J. Executive Order 12898: Federal Actions you for clarification, EPA may not be To Address Environmental Justice in in the Federal Register. Additional able to consider your comment. Minority Populations and Low-Income information about the hearing would be Electronic files should avoid the use of Populations published in a subsequent Federal special characters and any form of Register notice. encryption, and be free of any defects or I. Why Is EPA Issuing This Proposed Rule? ADDRESSES: Submit your comments, viruses. For additional information identified by Docket ID No. EPA–HQ– about EPA’s public docket visit the EPA This action provides for a revised OAR–2005–0159, by one of the Docket Center homepage at http:// schedule to flag data and submit following methods: www.epa.gov/epahome/dockets.htm. documentation related to exceptional • http://www.regulations.gov: Follow Docket: All documents in the docket events that influence ozone data which the on-line instructions for submitting are listed in the http:// may affect designations under the comments. www.regulations.gov index. Although recently revised ozone NAAQS. This

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action creates no additional regulatory information in a disk or CD ROM that planning to attend should be prepared requirements compared to those already you mail to EPA, mark the outside of the to show valid picture identification to promulgated in the Exceptional Events disk or CD ROM as CBI and then the security staff in order to gain access Rule. We have published a direct final identify electronically within the disk or to the meeting room. rule making such amendments in the CD ROM the specific information that is If held, the public hearing will begin ‘‘Rules’’ section of this Federal Register claimed as CBI. In addition to one at 10 a.m. and end 1 hour after the last because we view this as a complete version of the comment that registered speaker has spoken. The noncontroversial action and anticipate includes information claimed as CBI, a hearing will be limited to the subject no adverse comment. We have copy of the comment that does not matter of this document. Oral testimony explained our reasons for this action in contain the information claimed to be will be limited to 5 minutes. The EPA the preamble to the direct final rule. CBI must be submitted for inclusion in encourages commenters to provide If EPA receives an adverse comment, the public docket. Information so written versions of their oral testimony we will take no further action on this marked will not be disclosed except in either electronically (on computer disk proposed rule. If we receive adverse accordance with procedures set forth in or CD ROM) or in paper copy. Verbatim comment, we will withdraw the direct 40 CFR part 2. transcripts and written statements will final rule and it will not take effect. We 2. Tips for Preparing Your Comments. be included in the rulemaking docket. would address all public comments in When submitting comments, remember A public hearing would provide any subsequent final rule based on the to: interested parties the opportunity to proposed rule. We do not intend to • Identify the rulemaking by docket present data, views, or arguments institute a second comment period on number and other identifying concerning issues addressed in this this action. Any parties interested in information (subject heading, Federal notice. The EPA may ask clarifying commenting must do so at this time. Register date and page number). questions during the oral presentations, The regulatory test for this proposal is • Follow directions—The agency may but would not respond to the identical to that for the direct final rule ask you to respond to specific questions presentations or comments at that time. published in the ‘‘Rules’’ section of this or organize comments by referencing a Written statements and supporting Federal Register. For further Code of Federal Regulations (CFR) part information submitted during the information and detailed rationale for or section number. comment period will be considered this proposal, see the information • Explain why you agree or disagree; with the same weight as any oral provided in the direct final rule. suggest alternatives and substitute comments and supporting information presented at a public hearing. II. Does This Action Apply to Me? language for your requested changes. • Describe any assumptions and States are responsible for identifying V. What Is the Background for This provide any technical information and/ Action? air quality data that they believe warrant or data that you used. special consideration, including data • If you estimate potential costs or The Exceptional Events Rule affected by exceptional events. States burdens, explain how you arrived at (Treatment of Data Influenced by identify such data by flagging (making a your estimate in sufficient detail to Exceptional Events (72 FR 13560, March notation in a designated field in the allow for it to be reproduced. 22, 2007)) sets a schedule for states to electronic data record) specific values in • Provide specific examples to flag monitored data affected by the Air Quality System (AQS) database. illustrate your concerns, and suggest exceptional events in AQS and for them States must flag the data and submit a alternatives. to submit documentation to demonstrate justification that the data are affected by • Explain your views as clearly as that the flagged data were impacted by exceptional events if they wish EPA to possible, avoiding the use of profanity an exceptional event. Under this consider excluding the data in or personal threats. schedule, a state must initially notify determining whether or not an area is • Make sure to submit your EPA that data have been affected by an attaining the revised ozone NAAQS. comments by the comment period exceptional event by July 1 of the year All states that include areas that could deadline identified. after the data are collected; this is exceed the ozone NAAQS and could accomplished by flagging the data in IV. What Information Should I Know therefore be designated as AQS. The state must also include an About the Public Hearing? nonattainment for the ozone NAAQS initial description of the event when have the potential to be affected by this EPA will hold a hearing only if a flagging the data. In addition, the state rulemaking. Therefore, this action party notifies EPA by October 16, 2008, is required to submit a full applies to all states; to local air quality expressing its interest in presenting oral demonstration to justify exclusion of agencies to which a state has delegated testimony on issues addressed in this such data within three years after the relevant responsibilities for air quality notice. Any person may request a quarter in which the data were management including air quality hearing by calling Mrs. Pamela Long at collected, or if a regulatory decision monitoring and data analysis; and, to (919) 541–0641 before 5 p.m. by October based on the data (such as a designation Tribal air quality agencies where 16, 2008. Persons interested in action) is anticipated, the demonstration appropriate. The Exceptional Events presenting oral testimony should must be submitted to EPA no later than Rule describes in greater detail to whom contact Mrs. Pamela Long at (919) 541– one year before the decision is to be the Rule applies in 72 FR at 13562– 0641. Any person who plans to attend made. 13563 (March 22, 2007). the hearing should also contact Mrs. However, the rule also authorizes EPA Pamela S. Long at (919) 541–0641 to to revise data flagging and III. What Should I Consider as I learn if a hearing will be held. documentation schedules for the initial Prepare My Comments for EPA? If a public hearing is held on this designation of areas under a new or 1. Submitting CBI. Do not submit this notice, it will be held at the EPA, revised NAAQS. This generic schedule, information to EPA through http:// Building C, 109 T.W. Alexander Drive, while appropriate for the period after www.regulations.gov or e-mail. Clearly Research Triangle Park, NC 27709. initial designations have been made mark the part or all of the information Because the hearing will be held at a under a NAAQS, may need adjustment that you claim to be CBI. For CBI U.S. Government facility, everyone when a new or revised NAAQS is

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promulgated because until the level and states to submit demonstrations for 2009 The deadline for submitting to EPA a form of the NAAQS have been data influenced by exceptional events detailed demonstration to justify promulgated a state would not have no later than March 12, 2009, one year exclusion of data collected in 2005 complete knowledge of the criteria for before the final designation decisions. through 2008 is also being set to March excluding data. In these cases the This is clearly not possible for air 12, 2009. The deadline for submitting to generic schedule may preclude states quality data collected from March 13, EPA flagged data with initial from submitting timely flags and 2009 to December 31, 2009. descriptions and a detailed associated documentation for otherwise EPA is, therefore, using the authority demonstration to justify exclusion of approvable exceptional events. This provided in the Exceptional Events Rule data collected in 2009 is being set to could, if not modified, result in some at 40 CFR 50.14(c)(2)(v), to modify the January 8, 2010. For data collected in areas receiving a nonattainment schedule for data flagging and 2008 and 2009 this would give a state designation when the NAAQS submission of demonstration for less time, but EPA believes still violations were legitimately due to exceptional events data considered for sufficient time, to decide what 2008 and exceptional events. initial designations under the 2008 2009 data to flag, and would allow EPA For example, EPA finalized new revised ozone NAAQS. to have access to the flags and standards for ozone of 0.075 ppb on VI. What Is This Proposed Rule? supporting data in time for EPA to March 12, 2008 with an effective date of develop its own proposed and final May 27, 2008. In accordance with CAA This proposed rule amends the plans for designations. (If EPA has Section 107(b), state Governors must Exceptional Events Rule by providing a insufficient information and extends the provide their recommendations to EPA revised exceptional event data flagging by March 12, 2009 on designating areas and documentation schedule regarding designations date beyond March 2010, a as attainment, nonattainment, or claimed exceptional events affecting new event flagging deadline and unclassifiable with the new standards. ozone monitoring data that will be detailed documentation submission States will base their recommendations compared to the 2008 revised ozone deadline will be published.) While the on the three most recent years of NAAQS for the purpose of initial ozone new deadlines for submission of a quality-assured air quality data, which designations. In some cases, EPA is state’s demonstration for data collected could be ozone data collected between extending the otherwise applicable in 2009 is less than a year before the calendar years 2006–2008, or 2005– deadline for states to flag data and designation decisions would be made, 2007. EPA must complete final area submit documentation. In other cases, EPA believes it is a reasonable approach designations for these new standards by EPA is shortening the otherwise between giving states a reasonable March 12, 2010. EPA will base its applicable schedule to assure that the period to prepare the justifications, and designations decisions on the three most exceptional events claims can be fully EPA a reasonable period to consider the recent years of quality-assured air considered by EPA in the designations information submitted by the state. With quality data for each area which would decisions. this proposed rule EPA amends section be ozone data collected during calendar For air quality data collected in the 50.14(c)(2)(v) to add a tabular schedule years 2007–2009 where states have years 2005 through 2007, this revised of data submittal deadlines, by submitted quality assured ozone data for schedule extends the generic schedule pollutant, for new or revised NAAQS 2009. However, in some cases the most for flagging data (and providing a brief standards. (PM2.5 data submittal recent complete data may cover 2006– initial description of the event) from schedules revised in March 2007 and 2008 or 2005–2007. In this example the July 1 of the year following the year the presented in this table are for generic exceptional event flagging data are collected, to December 31, informational purposes only. EPA is not schedule for 2005 and 2006 data has 2008. For data collected in 2008, the taking further comment on the PM2.5 already passed and the flagging deadline revised schedule extends the generic data submittal schedule published in 72 for exceptional events that occurred in schedule for flagging data and providing FR 13560, March 22, 2007.) EPA 2007 would be July 1, 2008— a brief initial description of the event to anticipates providing amendments to approximately 33 days after the effective March 12, 2009, to coincide with the the following table to add data date of the revised NAAQS. In addition, deadline for state Governors to submit submission schedules for new or revised the generic schedule would require designation recommendations to EPA. NAAQS standards in the future.

TABLE 1—SCHEDULE FOR EXCEPTIONAL EVENT FLAGGING AND DOCUMENTATION SUBMISSION FOR DATA TO BE USED IN DESIGNATIONS DECISIONS FOR NEW OR REVISED NAAQS

Air quality data Detailed documentation NAAQS pollutant/standard/(level)/promulgation date collected for Event flagging & initial submission calendar year description deadline deadline

a a PM2.5 24-Hr Standard (35 µg/m3) Promulgated October 17, 2006 2004–2006 October 1, 2007 ...... April 15, 2008 . Ozone/8-Hr Standard (0.075 ppb) Promulgated March 12, 2008 ... 2005–2007 December 31, 2008 b ...... March 12, 2009 b. 2008 March 12, 2009 b ...... March 12, 2009 b. 2009 January 8, 2010 b ...... January 8, 2010 b.

a These dates are unchanged from those published in the original rulemaking, and are shown in this table for informational purposes. b Indicates change from general schedule in 40 CFR 50.14. Note: EPA notes that the table of revised deadlines only applies to data EPA will use to establish the final initial designations for new or re- vised NAAQS. The general schedule applies for all other purposes, most notably, for data used by EPA for redesignations to attainment.

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VII. Statutory and Executive Order established deadlines under the deadlines under the Exceptional Events Reviews Exceptional Events Rule and does not Rule and does not impose any new impose any new obligations or A. Executive Order 12866: Regulatory obligations or enforceable duties on any enforceable duties on any state, local or Planning and Review state, local or tribal governments or the tribal governments or the private sector. private sector. Thus, Executive Order Under Executive Order (EO) 12866 Thus, it does not impose any 13132 does not apply to this rule. (58 FR 51735, October 4, 1993), this requirements on small entities. action is a ‘‘significant regulatory We continue to be interested in the F. Executive Order 13175: Consultation action’’ because it is likely to raise novel potential impacts of the proposed rule and Coordination With Indian Tribal legal or policy issues arising out of legal on small entities and welcome Governments mandates, the President’s priorities, or comments on issues related to such the principles set forth in the Executive impacts. This action does not have tribal Order. Accordingly, EPA submitted this implications, as specified in Executive D. Unfunded Mandates Reform Act action to the Office of Management and Order 13175 (65 FR 67249, November 9, Budget (OMB) for review under EO This action contains no Federal 2000). This rule modifies previously 12866 and any changes made in mandates under the provisions of Title established deadlines under the response to OMB recommendations II of the Unfunded Mandates Reform Exceptional Events Rule and does not have been documented in the docket for Act of 1995 (URMA), 2 U.S.C. 1531– impose any new obligations or this action. 1538 for State, local, or tribal enforceable duties on tribal governments or the private sector. This governments. Thus, Executive Order B. Paperwork Reduction Act action imposes no enforceable duty on 13175 does not apply to this rule. This action does not impose an any state local or tribal governments or EPA specifically solicits additional information collection burden under the the private sector. This action modifies provisions of the Paperwork Reduction previously established deadlines under comment on this proposed action from Act, 44 U.S.C. 3501 et seq., where the Exceptional Events Rule and does tribal officials. burden is defined at 5 CFR 1320.3(b). not impose any new obligations or G. Executive Order 13045: Protection of This rule modifies previously enforceable duties on any state, local or Children From Environmental Health established deadlines under the tribal governments or the private sector. and Safety Risks Exceptional Events Rule and does not Therefore, this action is not subject to impose any new obligations or the requirements of sections 202 and This action is not subject to EO 13045 enforceable duties on any state, local or 205 of the UMRA. (62 FR 19885, April 23, 1997) because tribal governments or the private sector. This action is also not subject to the the Agency does not believe the Therefore, it does not impose an requirements of section 203 of URMA environmental health risks or safety information collection burden. because it contains no regulatory risks addressed by this action present a requirements that might significantly or C. Regulatory Flexibility Act disproportionate risk to children. This uniquely affect small governments. This action is not subject to Executive Order The Regulatory Flexibility Act (RFA) rule modifies previously established 13045 because it does not establish an generally requires an agency to prepare deadlines under the Exceptional Events environmental standard intended to a regulatory flexibility analysis of any Rule and does not impose any new mitigate health or safety risks. rule subject to notice and comment obligations or enforceable duties on any rulemaking requirements under the small governments. The public is invited to submit Administrative Procedure Act or any comments or identify peer-reviewed other statute unless the agency certifies E. Executive Order 13132: Federalism studies and data that assess effects of that the rule will not have a significant Executive Order 13132, entitled modifying previously established economic impact on a substantial ‘‘Federalism’’ (64 FR 43255, August 10, deadlines under the Exceptional Events number of small entities. Small entities 1999), requires EPA to develop an Rule. include small businesses, small accountable process to ensure H. Executive Order 13211: Actions That organizations, and small governmental ‘‘meaningful and timely input by state Significantly Affect Energy Supply, jurisdictions. and local officials in the development of For purposes of assessing the impacts regulatory policies that have federalism Distribution, or Use of this rule on small entities, small implications.’’ Policies that have This action is not a ‘‘significant entity is defined as: (1) A small business federalism implications’’ is defined in energy action’’ as defined in Executive as defined by the Small Business the Executive Order to include Order 13211(66 FR 28355 (May 22, Administration’s (SBA) regulations at 13 regulations that have ‘‘substantial direct 2001)), because it is not likely to have CFR 121.201; (2) a small governmental effects on the states, on the relationship a significant adverse effect on the jurisdiction that is a government of a between the national government and supply, distribution, or use of energy. city, county, town, school district or the states, or on the distribution of Further, we have concluded that this special district with a population of less power and responsibilities among the rule is not likely to have any adverse than 50,000; and (3) a small various levels of government. effects because this action modifies organization that is any not-for-profit This proposal does not have previously established deadlines under enterprise which is independently federalism implications. It will not have the Exceptional Events Rule. owned and operated and is not substantial direct effects on the states, dominant in its field. on the relationship between the national I. National Technology Transfer After considering the economic government and the states, or on the Advancement Act impacts of this proposal on small distribution of power and entities, I certify that this action will not responsibilities among the various This action does not involve technical have a significant economic impact on levels of government, as specified in standards. Therefore, EPA did not a substantial number of small entities. Executive Order 13132. This rule consider the use of any voluntary This rule modifies previously modifies previously established consensus standards.

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J. Executive Order 12898: Federal North Carolina State Implementation ENVIRONMENTAL PROTECTION Actions To Address Environmental Plan (SIP) submitted by the State of AGENCY Justice in Minority Populations and North Carolina in three submittals dated Low-Income Populations November 30, 2005, March 16, 2007, 40 CFR Part 52 Executive Order 12898 (59 FR 7629 and June 20, 2008. The proposed [EPA–R04–OAR–2006–0649; FRL–8725–2] (Feb. 16, 1994)) establishes Federal revisions modify North Carolina’s executive policy on environmental Prevention of Significant Deterioration Approval and Promulgation of justice. Its main provision directs and Nonattainment New Source Review Implementation Plans; Georgia; Federal agencies, to the greatest extent permitting regulations in the SIP to Prevention of Significant Deterioration practicable and permitted by law, to address changes to the federal New and Nonattainment New Source make environmental justice part of their Source Review (NSR) regulations, which Review Rules; Extension of Comment mission by identifying and addressing, were promulgated by EPA on December Period as appropriate, disproportionately high 31, 2002, and reconsidered with minor changes on November 7, 2003 AGENCY: Environmental Protection and adverse human health or Agency (EPA). environmental effects of their programs, (collectively, these two final actions are ACTION: policies, and activities on minority referred to as the ‘‘2002 NSR Reform Extension of public comment populations and low-income Rules’’). In addition, the proposed period. populations in the United States. revisions address an update to the NSR regulations promulgated by EPA on SUMMARY: EPA is extending the EPA has determined that this comment period for a proposed rule proposal will not have November 29, 2005 (‘‘Ozone Implementation NSR update’’) relating published September 4, 2008 (73 FR disproportionately high and adverse 51606). On September 4, 2008, EPA human health or environmental effects to the implementation of the 1997 8- hour ozone National Ambient Air proposed to partially approve and on minority or low-income populations disapprove portions of revisions to the because it will not affect the level of Quality Standards (NAAQS). At the request of several commentors, EPA is Georgia State Implementation Plan (SIP) protection provided to human health or submitted by the State of Georgia in the environment. This rule modifies extending the comment period through November 10, 2008. three submittals dated October 31, 2006, previously established deadlines under March 5, 2007, and August 22, 2007. the Exceptional Events Rule and does DATES: Written comments must be The proposed revisions modify not impose any new obligations or received on or before November 10, Georgia’s Prevention of Significant enforceable duties on any state, local or 2008. Deterioration and Nonattainment New tribal governments or the private sector. Source Review permitting rules in the ADDRESSES: Comments should be It will neither increase nor decrease SIP to address changes to the federal environmental protection. submitted to: Ms. Yolanda Adams, Air Permits Section, Air Planning Branch, New Source Review (NSR) regulations, List of Subjects in 40 CFR Part 50 Air, Pesticides and Toxics Management which were promulgated by EPA on Division, U.S. Environmental Protection December 31, 2002, and reconsidered Environmental protection, Air with minor changes on November 7, pollution control, National parks, Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. 2003 (collectively, these two final Wilderness areas. actions are referred to as the ‘‘2002 NSR Dated: September 30, 2008. Telephone number: (404) 562–9214; e- mail address: [email protected]. Reform Rules’’). At the request of Stephen L. Johnson, Additional instructions to comment can several commentors, EPA is extending Administrator. be found in the notice of proposed the comment period through November [FR Doc. E8–23524 Filed 10–3–08; 8:45 am] rulemaking published September 9, 5, 2008. BILLING CODE 6560–50–P 2008 (73 FR 52226). DATES: Written comments must be received on or before November 5, 2008. FOR FURTHER INFORMATION CONTACT: For ADDRESSES: Comments should be information regarding the North ENVIRONMENTAL PROTECTION submitted to: Ms. Kelly Fortin, Air Carolina State Implementation Plan, AGENCY Permits Section, Air Planning Branch, contact Ms. Nacosta Ward, Regulatory Air, Pesticides and Toxics Management 40 CFR Part 52 Development Section, Air Planning Division, U.S. Environmental Protection Branch, Air, Pesticides and Toxics [EPA–R04–OAR–2005–0534; FRL–8725–3] Agency, Region 4, 61 Forsyth Street, Management Division, U.S. SW., Atlanta, Georgia 30303–8960. Environmental Protection Agency, Approval and Promulgation of Telephone number: (404) 562–9117; Region 4, 61 Forsyth Street, SW., Implementation Plans North Carolina: e-mail address: [email protected]. Atlanta, Georgia 30303–8960. Prevention of Significant Deterioration Additional instructions to comment can Telephone number: (404) 562–9140; e- and Nonattainment New Source be found in the notice of proposed mail address: [email protected]. Review Rules; Extension of Comment rulemaking published September 4, For information regarding New Source Period 2008 (73 FR 51606). Review, contact Ms. Yolanda Adams, AGENCY: Environmental Protection Air Permits Section, at the same address FOR FURTHER INFORMATION CONTACT: For Agency (EPA). above. Telephone number: (404) 562– information regarding the Georgia State ACTION: Extension of public comment 9214; e-mail address: Implementation Plan, contact Ms. Stacy period. [email protected]. Harder, Regulatory Development Section, Air Planning Branch, Air, Dated: September 26, 2008. SUMMARY: EPA is extending the Pesticides and Toxics Management comment period for a proposed rule J. I. Palmer, Jr., Division, U.S. Environmental Protection published September 9, 2008 (73 FR Regional Administrator, Region 4. Agency Region 4, 61 Forsyth Street, 52226). On September 9, 2008, EPA [FR Doc. E8–23553 Filed 10–3–08; 8:45 am] SW., Atlanta, Georgia 30303–8960. proposed to approve revisions to the BILLING CODE 6560–50–P Telephone number: (404) 562–9042;

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e-mail address: [email protected]. projects. The Act provides that, subject FOR FURTHER INFORMATION CONTACT: For information regarding New Source to the availability of appropriations, the Randy Christopherson, Bureau of Review, contact Ms. Kelly Fortin, Air Secretary of the Interior may provide Reclamation, P.O. Box 25007, Mail Permits Section, at the same address loan guarantees for eligible projects. The Code: 84–55000, Denver, CO 80225. above. Telephone number: (404) 562– Act requires the Secretary to develop Telephone: (303) 445–2729. E-mail: 9117; e-mail address: criteria for determining the eligibility of [email protected]. [email protected]. a project for financial assistance, and to Dated: September 26, 2008. publish them in the Federal Register. SUPPLEMENTARY INFORMATION: The intent of this rulemaking is to meet J.I. Palmer, Jr., I. Background this requirement, as well as to define for Regional Administrator, Region 4. potential participants how the loan [FR Doc. E8–23554 Filed 10–3–08; 8:45 am] The Act, enacted as Title II of Public guarantee will be administered. Law 109–451 on December 22, 2006, BILLING CODE 6560–50–P Reclamation will administer the authorizes the Secretary to issue loan program. Reclamation will take into guarantees to assist non-federal account the comments on this rule in DEPARTMENT OF THE INTERIOR borrowers in financing (A) rural water developing final regulations. supply projects; (B) extraordinary Reclamation recognizes that the rule Bureau of Reclamation maintenance and rehabilitation of will be modified in the future to more Reclamation project facilities; and (C) specifically address category (A) 43 CFR Part 403 improvements to infrastructure directly projects and to address modifications in related to a Reclamation project. For RIN 1006–AA53 administration as a result of experience gained through the first requests. purposes of these loan guarantees, the Act defines the authorized non-federal Bureau of Reclamation Loan DATES: Submit comments on the rule by borrower as (a) a State (including a Guarantees November 5, 2008. The Office of department, agency, or political Management and Budget has up to 60 AGENCY: Bureau of Reclamation, subdivision of a State); or (b) a days to approve the information Interior. conservancy district, irrigation district, collection in this rule, but may respond ACTION: Notice of proposed rulemaking. company, water users’ association, after 30 days; therefore public comment Indian tribe, an agency created by SUMMARY: The Bureau of Reclamation on the information collection must be interstate compact, or any other entity (Reclamation) proposes this rule received on or before November 5, 2008. establishing eligibility criteria and Reclamation plans to hold informational that has the capacity to contract with program requirements for loan meetings on the proposed rule and the United States. guarantees authorized by the Twenty- program. Authority and responsibility for first Century Water Works Act (Title II ADDRESSES: You may submit comments implementing the provisions of the Act of Pub. L. 109–451; 43 U.S.C. 2421– on this rule, identified by the number are delegated to Reclamation. 2434) (Act). This rule is intended to 1006–AA53, by one of the following Reclamation’s rulemaking will establish define for potential participants how the methods: the eligibility criteria and program loan guarantees authorized by the Act requirements for loan guarantees —Use of the Federal rulemaking Web will be administered. The Act site: http://www.regulations.gov. authorized by the Act. Reclamation authorizes the Secretary of the Interior Search on docket identification expects to supplement these rules in the (Secretary) to make loan guarantees for number BOR–2008–0005 when future with eligibility criteria and three categories of projects: submitting comments on this rule. program requirements specific to those Category (A) projects are rural water Follow the instructions for submitting projects described in the Rural Water supply projects as defined in section comments. Supply Act of 2006 that are also deemed 102(9) of the Reclamation Rural Water —By mail to: Bureau of Reclamation, eligible for loan guarantees in Supply Act of 2006 (Title I of Pub. L. Denver Federal Center, P.O. Box accordance with section 202(6)(A). 109–451; 43 U.S.C.2401–2409) (Rural 25007, Building 67, Denver CO 80225, Section 202(6)(A) provides authority to Water Supply Act of 2006); Attention: Randy Christopherson, issue loan guarantees for rural water A category (B) project is an supply programs (category A projects). extraordinary operation and Mail Code 84–55000. Please include The Rural Water Supply Act of 2006 maintenance activity for, or the the number 1006–AA53 in your defines the term rural water supply rehabilitation or replacement of, a correspondence. project to include incidental facility that is authorized by Federal Please submit comments on the noncommercial livestock watering and reclamation laws and constructed by the information collection to the Desk United States under such law; or in Officer for the Department of the noncommercial irrigation of vegetation connection with which there is a Interior at the Office of Management and and small gardens of less than 1 acre, repayment or water service contract Budget, Office of Information and and projects to improve rural water executed by the United States under Regulatory Affairs, via facsimile to (202) infrastructure. Rural water projects must Federal reclamation law; or 395–6566, or e-mail to OIRA_DOCKET@ receive approval from the Congress A category (C) project is an omb.eop.gov. A copy of your comments prior to construction and are subject to improvement to water infrastructure should also be directed to the Bureau of the availability of appropriations. directly associated with a reclamation Reclamation, attention Randy Accordingly, Reclamation expects to project that, based on a determination of Christopherson at the contact target initial solicitations for guaranteed the Secretary improves water information. loans pursuant to the Act on Category B management; and fulfills other Federal You can obtain copies of the and Category C projects and on goals. information collection forms by assistance for operation and For purposes of this rule, these will be contacting us as specified in the FOR maintenance rather than assistance with referred to as category (A), (B), or (C) FURTHER INFORMATION CONTACT section. new construction.

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Discussion of Proposed Rule information the Secretary may request, the loan, consistent with the terms of Section 203 of the Act requires the including all documents and the Lender’s Agreement; to service the Secretary to develop criteria for information relied upon by the lender in loan consistent with the regulation and determining the eligibility of a project evaluating the non-federal borrower’s the Lender’s Agreement and notify for financial assistance, and to publish initial loan request. The Act specifies Reclamation promptly if it becomes them in the Federal Register. The intent eligibility criteria that must be included aware of any problems or irregularities of this rule is to provide program in subsection 203(a)(2). Section 203(b) concerning the project or the ability of requirements and eligibility criteria for of the Act, authorizes the Secretary to the borrower to make payment on the both the non-federal borrower and waive any of the criteria in subsection loan. We invite you to comment on the lenders. The eligibility criteria must 203(a)(2) that the Secretary determines proposed lender eligibility criteria and include (1) the lender’s submission of to be duplicative or unnecessary requirements. We are specifically an application to the Secretary; (2) because of an action already taken by interested in how the criteria and demonstration of the creditworthiness the United States. Reclamation would requirements would be applied should of the project, including a determination waive such criteria only in cases where the lender fall from eligibility after the by the Secretary that any financing for the criteria have already been loan has been originated. Comments are the project has appropriate security demonstrated to be satisfied. also invited on the potential additional Consistent with statutory features to ensure repayment; (3) efficiency or productivity benefits that requirement, demonstration of a may be realized by the improvement, demonstration by the non-federal borrowers’ ability to repay the debt and repair, or replacement of the borrower of its ability to repay the continue operations and maintenance of infrastructure, facilities, or asset. project financing from user fees or other its facility is a high priority of the loan The Act defines the term ‘‘project’’ to dedicated revenue sources; (4) guarantee program and must be include ‘‘an extraordinary operation and demonstration by the non-federal demonstrated to the satisfaction of the maintenance activity for, or the borrower of its ability to pay all Secretary. Reclamation will adopt rehabilitation or replacement of a operations, maintenance, and policies to further establish guidance to facility that is authorized by Federal replacement costs of the project ensure that borrowers and lenders use reclamation law and constructed by the facilities; and (5) other criteria as the their best efforts to ensure the success United States under such law; or in Secretary determines to be appropriate. of guaranteed loans. Reclamation will connection with which there is a Section 403.7 of this rule provides only offer loan guarantees to eligible repayment or water service contract generally the requirements regarding projects that demonstrate, to the executed by the United States’’ what information must be included in satisfaction of the Secretary, the (Category B). The statute does not define an application and section 403.10 creditworthiness of the project, the phrase ‘‘extraordinary operation and provides the criteria on which including a determination by the maintenance activity.’’ In section 403.2, Reclamation will evaluate a non-federal Secretary that any financing for the we propose to define ‘‘extraordinary borrower’s application. Section 403.11 project has appropriate security features operation and maintenance activity as identifies the prioritization criteria that to ensure repayment; the ability of the major, non-recurring maintenance to Reclamation will use to determine borrower to repay all project financing; Reclamation-owned or operated which loan guarantee applications will and pay all operations, maintenance, facilities, or facility components, that is be selected to participate in the loan and replacement costs of the project intended to ensure the continued safe, guarantee program. facilities. dependable, and reliable delivery of We invite you to comment on all the The statute explicitly defines the authorized reclamation project benefits; requirements set forth in this rule, scope of lenders that are eligible to and greater than 10 percent of the particularly regarding the appropriate participate in the program. This is borrower’s annual O & M budget for the requirements to provide protections to addressed in section 403.37 of this rule. facility, or greater than $100,000. the financial interests of the United A prospective lender must submit proof Reclamation developed this definition States. In addition, an information that it is eligible pursuant to the statute during its Managing for Excellence collection package has been prepared. and meet the requirements as set out in efforts. The definition, developed as The application for a loan guarantee this rule. A lender that meets the part of the public process associated identifies in more detail the supporting requirements and wishes to participate with these efforts, was vetted both documentation that must accompany it, in the program must execute an within Reclamation and with its water including: the current and previous 2 agreement with Reclamation and users, and it has been adopted in this years financial and income statements; thereupon will be considered an rule. We request comment on this the operating budget for the current approved lender for a period of 2 years. definition, the percentage and dollar operating cycle, a financial feasibility The requirements, as set out in thresholds, and the application and use analysis and projected budgets, §§ 403.37, 403.38, and 403.39 of this of the definition within the proposed including schedule of all current rule, are intended to ensure that the program. installment debt; preliminary project lender has the appropriate experience Project Costs. In section 403.2, we plans and detailed cost estimates; pro- and expertise to meet its fiduciary propose to define project costs as the forma cashflows; the proposed loan obligations in connection with the debt expected financial obligations which amortization schedule and documents guaranteed pursuant to the Act. It is may be incurred for the development outlining proposed terms and intended that lenders, who will bear at and support of the various features of an conditions of the debt to be guaranteed; least 20 percent of the risk of the eligible project, as specified in § 403.50. the non-federal borrower’s proposed guaranteed loan, will exercise a high The key elements of estimating eligible environmental compliance actions; level of care and diligence in the project costs are detailed in existing description of any debt; the lender’s underwriting and due diligence of the Reclamation policies. Section 204 of the credit evaluation; a description of any loans. As described in Section 403.39, Act provides that the Secretary shall not security available for the loan; we are proposing to require that lenders issue loan guarantees that exceed 90 authorizing resolutions of certificates; provide Reclamation periodic financial percent of the cost of the project, as and any other documents and reports on the status and condition of estimated at the time the loan guarantee

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is issued. Also, section 403.31 of this with regard to non-collateralized Termination of Authority. Section 215 rule provides that the United States will obligations of the borrower. This means of the Act provides that the Secretary’s guarantee up to 80 percent of eligible that in the event of a default, all non- authority to issue loan guarantees losses on a guaranteed loan, including secured lenders bear the risk of loss on terminates 10 years after the date of principal outstanding and interest a proportionate basis. Further, the non- enactment of the Act, which will be accrued as of the time of default by a guaranteed portion of a loan will not be December 2016. However, the borrower consistent with Federal credit paid first nor given any preference or termination of authority shall have no policies under OMB circular A–129. priority over the guaranteed portion. effect on any loans already guaranteed Section 403.50 of this rule identifies the Also, section 205(b)(2) of the Act states or on the administration of any loan type of project costs that will be that the rights of the Secretary, with guaranteed prior to the date of the considered eligible to be included under respect to any property acquired termination. a loan guarantee and which costs will pursuant to a loan guarantee or related Duplicative Assistance. With the not be considered eligible costs. agreement, shall be superior to the exception of Rural Water projects Defaults. Consistent with section 205 rights of any other person with respect authorized under Title I of Public Law of the Act, we are proposing in Subpart to the property. 109–451, loan guarantees under this F the options and processes that may be Prepayment and refinancing. The Act program cannot be paired with other available if a borrower defaults on an allows for prepayment and refinancing Federal assistance for the same project. obligation. Section 205 of the Act of the terms of a loan guarantee subject provides that, if a borrower defaults on to the consent of the Secretary. Section II. Procedural Requirement the obligation, the holder of the loan 403.53 of this rule recognizes that 1. Regulatory Planning and Review guarantee shall have the right to prepayment and refinancing terms of a (Executive Order (E.O.) 12866) demand claim payment from the loan may be negotiated between the Secretary per the terms of the Loan Note non-federal borrower and the lender, The Office of Management and Budget Guarantee Agreement. Section 403.66 of subject to the Secretary’s consent as part (OMB) has determined that this rule is this rule prescribes actions and of the overall approval of the loan to be a significant rule and has reviewed it timelines for default proceedings, guaranteed. Any changes to such terms under the requirements of E.O. 12866. reflecting requirements both for default must also be approved by the Secretary, The loan guarantee program proceedings against loans for which and to the extent such changes were not addressed by this rule will facilitate the collateral is pledged and against those captured in the original cost estimate for financing of extraordinary maintenance for which it is not. The timeline and the loan guarantee, such approval and rehabilitation needs of Reclamation proceedings are expected to be shorter would be subject to the availability of projects and improvements to facilities where there is no collateral, since appropriations, in addition to all other directly associated with them. liquidation is not a factor. applicable statutory and regulatory Beneficiaries already have financial Interest Rate. Section 204 of the Act requirements. responsibility for these costs, but often provides that an obligation shall bear Full Faith and Credit. Consistent with have significant difficulty meeting these interest at a rate that does not exceed a section 211 of the Act, we propose in responsibilities when the expenses are level that the Secretary determines to be section 403.3 of this rule to pledge the of an extraordinary nature. Facilitating appropriate, taking into account the full faith and credit of the United States the financing of these extraordinary prevailing rate of interest in the private to the payment of all guarantees issued, expenditures is a tool that may help to sector for similar loans and risks. In with respect to principal and interest. ensure the continued benefits currently section 403.52 of this rule, we propose Section 403.3 further proposes that the being generated by Reclamation projects to require loans to bear fixed interest at full faith and credit of the United States throughout the western United States. a rate or rates negotiated between the is not contestable except in the case of In implementing this rule, we plan to borrower and the lender. However, rates fraud or misrepresentation of which the use application forms very similar to charged should be similar to rates lender has actual knowledge, those currently used by the U.S. customarily charged to borrowers in the participates in, or condones. Department of Agriculture (USDA) for ordinary course of business. Interest Interagency coordination and its Rural Development Loan Guarantee rates are subject to Secretarial review cooperation. Section 209 of the Act Program (USDA Program). Review and and approval to determine requires the Secretary to consult with approval for the use of these forms is appropriateness. Reclamation will the Secretary of Agriculture prior to taking place concurrently with the consult with the Department of Treasury implementing a loan guarantee program. development of this rule. However, the on appropriate interest rates. Reclamation has been working closely facilities being repaired or rehabilitated Term of Loan. A loan guaranteed with the Department of Agriculture, and with financing assistance under our under the Act must provide for has gained valuable information on proposed loan guarantee program likely complete amortization within 40 years. carrying out such programs. Section 209 will not be the same types of facilities Section 403.48 of this rule recognizes also requires that a memorandum of whose construction is financed by the that lenders may offer shorter terms. agreement will be entered providing for USDA Program. Reclamation has Reclamation will not approve a loan the Department of Agriculture to carry consulted with USDA regarding the guarantee that exceeds the financial out financial appraisal functions and details of USDA’s related programs, and capability of the borrower, or for a term loan guarantee administration activities. will continue to do so. These that exceeds the useful life of the Both Departments are working toward consultations will likely result in USDA project. development of this agreement. It is not providing some assistance in the Nonsubordination and Superior the intent that this agreement will place administration of our programs under Rights. Consistent with section 205 of any undue burdens on the Titles I and II of Public Law 109–451. the Act, we propose in section 403.56 of implementation of the program; rather, this rule that no loan guaranteed under Reclamation will be afforded the 2. Regulatory Flexibility Act the Act shall be subordinated to other experience and help of the Department The Department of the Interior financing. We further propose that the of Agriculture, which has extensive (Interior) certifies that this action will lender must obtain a position of parity experience in issuing loan guarantees. not have a significant economic effect

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on a substantial number of small entities intergovernmental mandate’’ and under this rule, such application is under the Regulatory Flexibility Act (5 ‘‘Federal private sector mandate’’ for strictly voluntary. U.S.C. 601, et seq.). The entities eligible requirements that are a condition of 8. Paperwork Reduction Act for loan guarantees under this program Federal assistance or a duty arising from may include small entities defined in participation in a voluntary program. This rule would require applicants to the Regulatory Flexibility Act. However, Therefore, the Act does not apply to this provide information that will enable this rule does not impose a requirement rulemaking and a statement containing Reclamation to determine eligibility for for small businesses to report or keep information required by the Unfunded the program and creditworthiness. The records on any of the requirements Mandates Reform Act (2 U.S.C. 1531, et information will also be necessary to contained in this rule and does not seq.) is not required. evaluate the merits of applications and mandate participation. Therefore, we effectively administer any guaranteed have determined that the rule will not 4. Takings (E.O. 12630 and E.O. 13406) loans. The rule also proposes to require have a significant economic impact on Under the criteria in E.O. 12630 and that lenders submit information to allow a substantial number of small entities. E.O. 13406, this rule does not have any Reclamation to determine their significant takings implications. This eligibility for participation and to 3. Unfunded Mandates Reform Act rule sets forth the requirements for submit reports and other information Title II of the Unfunded Mandates requesting and obtaining loan related to loan guarantees and the Reform Act of 1995 (UMR Act) (2 U.S.C. guarantees from Reclamation to assist in borrower. Reclamation plans to use 1531 et seq.) requires each Federal financing eligible projects for which several forms very similar to those agency to prepare a written assessment Reclamation project beneficiaries are currently used for various USDA of the effects of any Federal mandate in already financially responsible. While Programs. The purpose of the forms will an agency rule that may result in the some of the project beneficiaries’ be to obtain relevant financial expenditure by State, local and tribal property may be pledged as collateral information including income and governments, in the aggregate, or by the for the loans to be guaranteed, the expenses, collateral assets, previous private sector, of $100 million or more property would only be transferred from credit history, and current loan status. (adjusted annually for inflation) in any the owner if default occurs and such a Following are further details regarding one year. The UMR Act also requires a situation would not constitute a taking. the information collection: Federal agency to develop an effective A Takings Implication Assessment is Title: Reclamation Loan Guarantees process to permit timely input by therefore not required. 43 CFR Part 403. elected officials of State, tribal, or local OMB No. 1006–NEW. governments on a proposed ‘‘significant 5. Federalism (E.O. 13132) Frequency: One-time voluntary intergovernmental mandate,’’ and Under the criteria in E.O. 13132, this application. requires an agency plan for giving notice rule does not have any federalism Respondents for loan applications and opportunity to provide timely input implications to warrant the preparation and participating lenders: Eligible to potentially affected small of a Federalism Assessment. The rule is entities (described in § 403.4 of the rule) governments before establishing any not associated with, nor will it have that desire to obtain a private loan requirements that might significantly or substantial direct effects on the States, guaranteed by Reclamation and eligible uniquely affect those small on the relationship between the lenders (described in § 403.37) that wish governments. National Government and the States, or to participate in the loan guarantee The term Federal mandate is defined on the distribution of power and program. in the UMR Act to mean a Federal responsibilities among the various Estimated Total Number of intergovernmental mandate or a Federal levels of government. A Federalism Respondents: 76. private sector mandate. Although this Assessment is not required. Estimated Number of Responses per rule will impose certain requirements Respondent: 1.2. on non-Federal governmental and 6. Civil Justice Reform (E.O. 12988) Estimated Total Annual Burden on private sector applicants for loan This rule complies with the Respondents, including form and non- guarantees, the UMR Act’s definitions of requirements of E.O. 12988. form requirements: 737 hours. the terms ‘‘Federal intergovernmental Specifically, this rule: Comments are Invited on: mandate’’ and ‘‘Federal private sector (a) Does not unduly burden the (a) Whether the proposed collection of mandate’’ exclude, among other things, judicial system; information is necessary for the proper any provision in legislation, statute, or (b) Meets the criteria of section 3(a) performance of our functions, including regulation that is a condition of Federal requiring that all regulations be whether the information will have assistance or a duty arising from reviewed to eliminate errors and practical use; participation in a voluntary program ambiguity and be written to minimize (b) The accuracy of our burden (2 U.S.C. 658(5) and (7), respectively). litigation; and estimate for the proposed collection of This rule does not impose an (c) Meets the criteria of section 3(b)(2) information, including the validity of unfunded mandate or a requirement to requiring that all regulations be written the methodology and assumptions used; expend monies on the part of State, in clear language and contain clear legal (c) Ways to enhance the quality, local, or tribal governments or standards. usefulness, and clarity of the communities, or the private sector. information collected; and Requests from any of these entities for 7. Consultation with Indian Tribes (E.O. (d) Ways to minimize the burden of loan guarantees under the proposed 13175) the collection of information on rules are strictly voluntary. Reclamation Under the criteria of E.O. 13175, respondents. is not imposing a duty, requirement, or Reclamation has evaluated this rule and As part of our continuing effort to mandate on State, local, or tribal determined that it would have no reduce paperwork and respondent governments or communities, or the substantial effects on Federally burdens, Reclamation invites the public private sector to request such financing recognized Indian tribes. While many and other Federal agencies to comment assistance. Thus this rule falls under the tribal entities may be eligible to apply on any aspect of the reporting and exceptions in the definitions of ‘‘Federal for loan guarantees from Reclamation recordkeeping burden. You may submit

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your comments directly to the Office of significant adverse effect on the supply, your entire comment—including your Information and Regulatory Affairs, distribution, or use of energy. While personal identifying information—may OMB. You should provide Reclamation loan guarantees will more commonly be be made publicly available at any time. with a copy of your comments so that extended to water supply facilities, any While you can ask us in your comment we can summarize all written comments extension of the guarantees to power to withhold your personal identifying and address them in the final rule production facilities would have the information from public review, we preamble. Refer to the ADDRESSES same beneficial effects of credit cannot guarantee that we will be able to section for instructions on submitting assistance. No adverse effects on these do so. comments. You may obtain a copy of facilities could result from the proposed List of Subjects in 43 CFR Part 403 the supporting statement for this new rule. A Statement of Energy Effects is collection of information by contacting therefore not required. Loan guarantee, Water supply. Reclamation’s Information Collection 12. Clarity of This Regulation Dated: September 29, 2008. Clearance Officer at (303) 445–2055. Kameran L. Onley, The PRA provides that an agency may We are required by E.O. 12866 and Acting Assistant Secretary—Water and not conduct or sponsor a collection of 12988, and by the Presidential Science. information unless it displays a Memorandum of June 1, 1998, to write For the reasons stated in the currently valid OMB control number. all rules in plain language. This means preamble, the Bureau of Reclamation Until OMB approves this collection of each rule we publish must: information and assigns an OMB control (a) Be logically organized; proposes to add a new part 403 to Title number and the regulation becomes (b) Use the active voice to address 43 of the Code of Federal Regulations as effective, you are not required to readers directly; follows: (c) Use clear language rather than respond. The OMB is required to make PART 403—RECLAMATION LOAN jargon; a decision concerning the collection of GUARANTEES information of this proposed regulation (d) Be divided into short sections and between 30 to 60 days after publication sentences; and Subpart A—Loan Guarantee Program of this document in the Federal (e) Use lists and tables wherever Overview Register. Therefore, a comment to OMB possible. Sec. is best assured of having its full effect If you believe we have not met these 403.1 What is the purpose of the program? if OMB receives it by November 5, 2008. requirements, please send comments to 403.2 What terms are used in this part? This does not affect the deadline for the Reclamation as instructed in the 403.3 Are loan guarantees supported by the ADDRESSES section. Please make your full faith and credit of the United States? public to comment to Reclamation on 403.4 Who is eligible for a loan guarantee? the proposed regulation. OMB has up to comments as specific as possible, referring to specific sections and how 403.5 What can I finance under the 60 days to approve the information program? collection in this rule, but may respond they could be improved. For example, 403.6 How do I obtain a loan guarantee? after 30 days; therefore public comment you should tell us the numbers of the 403.7 What must be included in an on the information collection must be sections or paragraphs that are unclearly application package? received on or before November 5, 2008. written, which sections or sentences are 403.8 [Reserved] too long, the sections where you believe 403.9 What are the criteria for program 9. National Environmental Policy Act of lists or tables would be useful, etc. eligibility? 1969 (NEPA) 403.10 How will Reclamation evaluate my 13. Public Comments application? This document has been reviewed in Reclamation believes a 30 day public 403.11 What criteria will be used to accordance with the Council on prioritize loan requests? Environmental Quality (CEQ) comment period is appropriate. The 403.12–403.15 [Reserved] regulations for implementing NEPA Loan Guarantee rule may provide a 403.16 What permits must I obtain? (40 CFR Parts 1500–1508). Reclamation helpful financial tool to help 403.17 Where can I get more information has determined that this action does not accomplish Reclamation’s goals. about loan guarantees? constitute a major Federal action Reclamation has encouraged public 403.18 Does this rule contain an information collection that requires significantly affecting the quality of the participation through public meetings and has incorporated into the proposed approval by OMB? human environment and, in accordance 403. 19 [Reserved] with the National Environmental Policy rule public input from these meetings. Act (NEPA) of 1969, 42 U.S.C. 4321 et The public was involved in developing Subpart B—Borrower Roles and Responsibilities seq., an Environmental Impact the framework documents which were Statement is not required. Loan utilized in preparing the rule. 403.20 As a borrower, what is my role in applications will be reviewed Reclamation specifically addressed the the loan guarantee program? Loan Guarantee program during public 403.21 What is my role in preparation of individually to determine compliance environmental compliance documents? with NEPA. meetings held in Salt Lake City, UT on September 19 and 20, 2006 and received 403.22 What is my role in preparing plans 10. Data Quality Act and specifications for the project? valuable feedback. Considering that 403.23–403.24 [Reserved] In developing this rule, there was no those interested in the proposed rule are 403.25 What are the application and need to conduct or use a study, already aware of the framework and contractual requirements if I apply for a experiment, or survey requiring peer have had opportunity to provide input guaranteed loan as a Joint Powers review under the Data Quality Act (Pub. through these public meetings, Authority (JPA)? L. 106–554). Reclamation believes 30 days provides 403.26–403.28 [Reserved] sufficient time to provide additional Subpart C—Reclamation Roles and 11. Effects on the Energy Supply (E.O. input on the proposal. Responsibilities 13211) Before including your name, address, 403.29 What is Reclamation’s role in the This rule is not a significant energy phone number, e-mail address, or other loan guarantee program? action under the definition in the E.O. personal identifying information in your 403.30 What information will Reclamation 13211, in that it is not likely to have a comment, you should be aware that maintain on the lender?

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403.31 How much of the loan will 403.68 What is the timeline for filing a statutory and regulatory requirements, Reclamation guarantee? Final Report of Loss? or other requirements specified in the 403.32 What is Reclamation’s role in 403.69 [Reserved] document, DOI, the Applicant, and the preparation of NEPA and other 403.70 What interest does the lender have lender may execute a Loan Note environmental compliance documents? in the guaranteed loan after Reclamation 403.33 Can Reclamation make exceptions to makes a loss payment? Guarantee Agreement: Provided that the requirements in this rule? 403.71 What will Reclamation do if a Secretary may terminate a Conditional 403.34–403.36 [Reserved] borrower defaults? Commitment for Guarantee for any Subpart D—Lender Criteria and 403.72 When does the Loan Note Guarantee reason at any time prior to the execution Responsibilities Agreement terminate? of the Loan Note Guarantee Agreement. 403.73 What happens if the non-Federal The Conditional Commitment is non- 403.37 Which lenders are eligible to party breaches the existing Loan Note binding. Reclamation will only offer participate in the program? Guarantee Agreement? 403.38 What other requirements must a Conditional Commitments for Guarantee lender meet to participate in the Authority: Pub. L. 109–451, 120 Stat. 3345 to the extent appropriations are program? (43 U.S.C. 2401 et seq.). available to support the loan guarantee. 403.39 What is the lender’s role in the Extraordinary operation and program? Subpart A—Loan Guarantee Program maintenance means major, non- 403.40 Can the lender cancel or modify a Overview recurring maintenance to Reclamation- Conditional Commitment for Guarantee, owned or operated facilities, or facility or transfer it to another lender? § 403.1 What is the purpose of the 403.41 Can a lender sell or transfer the Loan program? components, that is: Note Guarantee Agreement to another (a) The purpose of the loan guarantee (1) Intended to ensure the continued lender? program is to provide Federal assistance safe, dependable, and reliable delivery 403.42 Can a lender sell the debt obligation to eligible non-Federal borrowers for of authorized Reclamation project in a secondary market? eligible projects defined as follows: benefits; and 403.43 What fees and costs is the lender (2) Greater than 10 percent of the responsible for? (1) A rural water supply project; (2) An extraordinary operation and borrower’s annual O&M budget for the 403.44 Can Reclamation guarantee bonds facility, or greater than $100,000. sold to finance eligible projects? maintenance (O&M) activity for, or the 403.45–403.46 [Reserved] rehabilitation or replacement of, a Financial capability to repay loan facility— means the borrower’s ability to repay Subpart E—Guaranteed Loan Terms and the loan as determined by the Secretary. Details (i) That is authorized by Federal reclamation law and constructed by the Factors determining a borrower’s 403.47 What conditions must be met before financial capability may include, but are a Loan Note Guarantee Agreement is United States under such law; or (ii) In connection with which there is not limited to: Expenses as a ratio to issued? income, amount of current debts/ 403.48 What is the maximum term I can a repayment or water service contract obtain on a guaranteed loan? executed by the United States under liabilities, projected revenues, including 403.49 Is there a limit on the size of a Federal reclamation law; or user fees or other dedicated revenue guaranteed loan? (3) An improvement to water sources available to repay the 403.50 What project costs are eligible to be infrastructure directly associated with a guaranteed loan, the ability of covered by my guaranteed loan? reclamation project that, based on a Reclamation project beneficiaries to 403.51 What if my project cost exceeds the meet all operations, maintenance, and estimated loan guarantee amount? determination of the Secretary— (i) Improves water management; and rehabilitation costs of the subject 403.52 What interest rates and charges facilities and previous record of apply to my guaranteed loan? (ii) Fulfills other Federal goals. 403.53 Can I prepay or refinance a (b) The program does not include repaying obligations. guaranteed loan? loans for routine O&M work. Improvement to Water Infrastructure 403.54 When can an entity begin actual ‘‘on means a valuable addition made to the ground’’ work on the project to be § 403.2 What terms are used in this part? property, or an enhancement of its financed? The following definitions apply for condition, including modernization, 403.55 [Reserved] terms used in this part: upgrades or other enhancements meant 403.56 Can the repayment of a loan Applicant means a non-Federal entity to conserve water, increase water use guarantee be subordinated to any other efficiency, or enhance water financing? meeting the criteria in § 403.4 that seeks 403.57 Under what conditions would the to obtain a Reclamation-guaranteed loan management, and does not include United States not pay the guaranteed for a project meeting the criteria in routine maintenance. portion of a loan? § 403.5. The applicant is often referred Joint Financing means a situation 403.58 Will the requirements of the to as ‘‘you’’ in this part. where two or more lenders (or any Reclamation Reform Act of 1982 apply? Borrower means an Applicant who combination of lenders and other non- 403.59–403.62 [Reserved] has entered into a Loan Note Guarantee Federal financial sources) make Subpart F—Default Actions and Agreement with an eligible lender and separate, relatively contemporaneous Termination Reclamation. loans or grants to supply the funds 403.63 What options do I have if I have Collateral means non-Federal required by one borrower. problems repaying the guaranteed loan? property of value pledged as security for Joint Powers Authority (JPA) means a 403.64 How can Reclamation help me if I satisfaction of the debt. regional agency that: can’t resolve repayment problems with Conditional Commitment for (1) Represents two or more local my lender? Guarantee means a document issued by entities (e.g., Reclamation repayment or 403.65 What happens if I still can’t make Reclamation and accepted by the water service contractors); and my payments after working with the Applicant and the lender, with the (2) Exercises common powers as lender and Reclamation? 403.66 What are the actions and timelines understanding of the parties that if the authorized by the State in which the associated with default proceedings? Applicant thereafter satisfies all local entities operate (some States may 403.67 What is the process for liquidation specified and precedent funding refer to such regional agencies by where collateral has been pledged? obligations and all other contractual, another name).

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Lender means a non-Federal lending Project Costs means the expected regulation with respect to principal and institution meeting the criteria in financial obligations which may be interest. Issuance of a Loan Note § 403.40 that has an agreement with incurred for the development and Guarantee Agreement constitutes an Reclamation to participate in the loan support of the various features of an obligation supported by the full faith guarantee program. The lender requests eligible project, as specified in § 403.50. and credit of the United States and is a loan guarantee from Reclamation and The key elements of estimating eligible not contestable except for fraud or then works directly with the borrower to project costs are detailed in existing misrepresentation of which the lender originate and service the loan. Reclamation policy. Project costs do not has actual knowledge, participates in, or Lender’s Agreement means the signed include costs for the items set forth in condones. Some exceptions may apply agreement between Reclamation and the § 403.50(b). in cases where the lender does not lender providing proof of the lender’s Reclamation means the Bureau of perform reasonable and customary eligibility to participate in the loan Reclamation, also referred to in this part servicing of the loan, as described in guarantee program, and containing the as ‘‘us’’ and ‘‘we.’’ § 403.60. lender’s responsibilities as defined in Reclamation Project means a subpart D of this part. The Lender’s geographically-defined system of § 403.4 Who is eligible for a loan Agreement is a single document that is structures specifically authorized by guarantee? valid for two years, as indicated in Congress, such as the Central To be eligible for a loan guarantee § 403.38. Only one Lender’s Agreement Project or the Central Valley Project. under this part, an entity must be either: will be required for each eligible lender. Rehabilitation and Replacement (a) A State (including department, Loan Guarantee means any guarantee, means the processes of renovating a agency, or political subdivision of a insurance, or other pledge by facility or system where performance is State); or Reclamation to pay all or part of the failing to meet the original criteria and (b) A conservancy district, irrigation principal of and interest on a loan or needs of the Reclamation Project. This district, canal company, water users other debt obligation of a non-Federal process is generally significant in terms association, Indian tribe, an agency borrower to a lender. of magnitude of work involved and created by interstate compact or any Loan Guarantee Closing Report means related costs and, thus, also may benefit other entity that has the capacity to the Reclamation form prepared at the from the use of the loan guarantee contract with the United States under time a Loan Note Guarantee Agreement program. Replacements are typically Federal reclamation law (e.g., a rural is issued and upon payment of related to items with a defined service water association or a JPA). guaranteed loan fees, or when the terms life. Examples of this could include the or conditions of the loan guarantee replacement of a dam gate or valve that § 403.5 What can I finance under the change, such as the assumption or has met or exceeded its expected service program? assignment of guaranteed loans. This life, replacements of a reach of canal You can finance project costs as form must accompany all loan guarantee lining, or other work beyond the described in § 403.50(a) for any of the fee payments. The lender delivers this capability of the borrower to finance types of work listed in paragraphs (a), form and applicable fee to Reclamation. from annual O&M budgets or reserve (b), or (c) of this section. Loan Note Guarantee Agreement funds. (a) Construction of projects means a written agreement that, when Report of Loss means the Reclamation determined to be eligible under Title I entered into by Reclamation, a form used by lenders when reporting a of Public Law 109–451, The Rural Water borrower, and an eligible lender, loss on a Reclamation guaranteed loan. Supply Act of 2006. pursuant to the Act, establishes the Reserved Works means facilities (b) Extraordinary operation and obligation of Reclamation to guarantee owned, operated, and maintained by maintenance for, or the rehabilitation or the payment of all or a portion of the Reclamation, O&M costs of which may replacement of, a facility that: principal and interest on specified be paid in part by authorized (1) Is authorized by Federal guaranteed obligations of a borrower to Reclamation Project entities. reclamation law and constructed by the eligible lenders or other Holders subject Routine Operation and Maintenance United States under that law; or means recurring operation and to the terms and conditions specified in (2) Has in place a repayment or water maintenance activities such as minor the Loan Guarantee Agreement. service contract under Federal Project means: repairs and replacement of parts and reclamation law. In addition to facilities (1) A rural water supply project (as structural components, and other day- where Reclamation holds title, this defined in section 102(9) of Title I of to-day activities needed to preserve a would include facilities constructed and Public Law 109–451); facility so that it continues to provide operated by the U.S. Army Corps of (2) An extraordinary operation and acceptable services and achieves its Engineers, where irrigation water users maintenance activity for, or the expected life. It excludes extraordinary contract with Reclamation for use of the rehabilitation or replacement of, a operation and maintenance, water from the facilities and pay some facility— rehabilitation, and replacement. (i) That is authorized by Federal Transferred Works means facilities for portion of the O&M costs associated reclamation law and constructed by the which the management, funding (full or with those facilities. United States under such law; or partial), and operation and maintenance (c) Improvements to water (ii) In connection with which there is has been transferred to one or more of infrastructure directly associated with a a repayment or water service contract the Reclamation Project beneficiaries. Reclamation project. If you have executed by the United States under Reclamation still maintains ownership existing facilities that are physically Federal reclamation law; or of the facilities. connected to or receive water directly (3) An improvement to water from a Reclamation project, infrastructure directly associated with a § 403.3 Are loan guarantees supported by improvements to those facilities may reclamation project that, based on a the full faith and credit of the United States? qualify for financing under the program. determination of the Secretary— Yes. The full faith and credit of the Decisions on which facilities qualify (i) Improves water management; and United States is pledged to the payment under this section will be made on a (ii) Fulfills other Federal goals. of all guarantees issued under this case-by-case basis.

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§ 403.6 How do I obtain a loan guarantee? § 403.7 What must be included in an betterment to facilities owned by application package? (a) After receiving appropriations for Reclamation, or for facilities which are associated with a repayment or water the loan guarantee program, we will An application package must contain the following: service contract executed by the United issue solicitations to invite the (a) Application for Loan Guarantee on States under Federal Reclamation law; submission of Applications for loan Form 7–2580; (c) Be for improvements to water guarantees for eligible projects. We will (b) Proposed loan agreement between infrastructure directly associated with a issue a solicitation before proceeding you and the lender; Reclamation project; with other steps in the loan guarantee (c) A report containing an analysis of (d) Be prepared or reviewed by a process, including issuance of a loan the potential environmental impacts of certified professional engineer; guarantee. Each solicitation may include the project. The report should be (e) Have been reviewed by a financial programmatic, technical, financial and pursuant to the National Environmental institution for financial feasibility, and other factors we will use to evaluate Policy Act and in accordance with a letter of intent regarding the issuance applications and such other information appropriate Reclamation standards. of sufficient loan financing accompanies as we may deem appropriate. (d) Preliminary architectural and/or the proposal; (b) To obtain a loan guarantee under engineering report, including financial (f) Be accompanied by appropriate this rule, a proposed project must meet feasibility analysis (as appropriate); documentation prepared pursuant to the National Environmental Policy Act and the eligibility criteria described in (e) Project cost estimates as described in accordance with appropriate § 403.5 as well as any other criteria that in § 403.50; (f) Appraisal reports for real property Reclamation standards; may be identified in the solicitation. (g) Demonstrate approval, as serving as collateral, consistent with the (c) We recommend that you visit appropriate, of any party necessary for Uniform Standards of Professional several qualified lenders to discuss the the borrower to enter into a Loan Note Appraisal Practice, promulgated by the planned work, qualifications for a Guarantee Agreement; Appraisal Standards Board of the guaranteed loan, conditions or terms of (h) Demonstrate to the satisfaction of Appraisal Foundation and conducted by a loan, etc. See § 403.37 for descriptions the Secretary the creditworthiness of the a state licensed or certified appraiser; project, including a determination by of eligible lending institutions. Once (g) Credit reports; you determine which lending the Secretary that any financing for the (h) Pro-forma cashflows; project has appropriate security features institution to use, you will work directly (i) A loan schedule and ith the lender to secure its approval of to ensure repayment; documentation outlining the terms and (i) Demonstrate to the satisfaction of your loan request based on its own conditions of the loan to be guaranteed; financial analysis. the Secretary that the borrower has the (j) The lender’s credit analysis which ability to repay the project financing (d) Following a lender’s approval of shall include an analysis demonstrating from user fees or other dedicated your loan request, you and the lender that at the time of the application, there revenue sources; must prepare an application package to is reasonable prospect that the Borrower (j) Demonstrate to the satisfaction of submit to us, as detailed in § 403.7, to will be able to repay the guaranteed the Secretary that the borrower has the request consideration for a loan obligation (including interest) from user ability to pay all operation, guarantee. You and the lender may meet fees or other dedicated revenue sources, maintenance, and rehabilitation costs of with us at this point in the process to as well as an analysis demonstrating the project facilities; discuss the requirements of the that the borrower has the ability to pay (k) Describe the borrower’s efforts to application package. all operation, maintenance, and obtain alternative financing for the (e) When we receive your application, rehabilitation costs of the project proposed project; (l) Demonstrate that the borrower’s we will review it based on the criteria facilities; proposed activities will be well in § 403.10, and notify you and the (k) A full description of all security features (such as any project or non- managed, have clear deliverables, will lender whether we require additional project assets pledged as collateral to be accomplished on schedule and information or the application has been the obligation) that would ensure within budget; and denied. After completion of our review repayment; (m) Describe how these planned and evaluation, Reclamation may offer a (l) Proposed timeline for work activities will ensure the continued safe, conditional commitment for guarantee. accomplishment; and dependable, and reliable delivery of (f) You and the lender complete and (m) Any additional information authorized project benefits. sign the Acceptance of Conditions and required, as determined by Reclamation, return a copy to us. You will then § 403.10 How will Reclamation evaluate my including other information relied upon application? continue to work with the lender to by the lender in approving the (a) In addition to the amount of funds meet the conditions set forth in the borrower’s initial loan request. Conditional Commitment for Guarantee. available to use for loan guarantees, we § 403.8 [Reserved] will consider many different factors in (g) Once terms and conditions of the evaluating your loan guarantee Conditional Commitment (such as § 403.9 What are the criteria for program application and in determining whether NEPA compliance; necessary local, eligibility? to issue a Conditional Commitment for State, tribal, or Federal permits; and Section 403.4 defines who is eligible Guarantee and ultimately a Loan Note district election to approve for a loan guarantee. In addition to Guarantee Agreement. For projects indebtedness, if applicable), and any meeting the entity eligibility criteria, a described in §§ 403.5(b) and 403.5(c), other applicable statutory, regulatory, proposal must: the factors include, but are not limited and budgetary requirements are met, (a) Meet acceptable engineering, to, the information provided pursuant to and the Secretary determines that the financial, public health, and § 403.7 above, as well as: loan merits a guarantee, Reclamation, environmental standards; (1) Engineering need; you, and the lender will sign the Loan (b) Be for extraordinary repair, (2) Your historical diligence and Note Guarantee Agreement. rehabilitation, replacement or effectiveness in performance of O&M,

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and demonstration of financial (f) You may modify your application of O&M activities by the applicant, capability to meet routine O&M to correct deficiencies identified in supported by Reclamation’s RO&M and expenditures; paragraph (e) of this section and, in the Facility Review reports. An evaluation (3) Efficiency opportunities; case of paragraph (e)(3) of this section, will be made as to the applicant’s (4) Environmental effects/impacts; resubmit your application to us for re- diligence in operating and maintaining (5) Range of alternatives considered evaluation if allowed under the terms of the assets entrusted to them by (including a comparison of major the solicitation. We will not complete Reclamation. For all other projects with rehabilitation or repair versus our evaluation of an application until all existing history, evaluation will be replacement of the affected facilities, if identified deficiencies are resolved and made based on information provided in replacement is an appropriate resubmission of the application does not alternative)); and the application and any other available impose any obligation or requirement information sources. (6) Your financial capability to repay for us to offer a Conditional the guaranteed loan, assessed on the Commitment for Guarantee or a Loan (c) Efficiency Opportunities. basis of: Note Guarantee Agreement. Engineering analysis demonstrates that (i) Outstanding debts and all other (g) Any form of response or there is a significant opportunity to financial obligations; communication from us, or lack thereof, substantially reduce future routine O&M (ii) Amount of loan, rates, and terms; regarding your loan guarantee costs associated with the facility and/or (iii) Past performance in repaying conserve or more efficiently manage the loans or other debts; application shall not impose any water that would be otherwise lost to (iv) Collateral/equity as appropriate; obligation on us to issue a Conditional (v) Financial backing or support from Commitment for Guarantee. seepage, evaporation, or other factors local, State, or other non-Federal which directly result from facility § 403.11 What criteria will be used to deterioration due to age or use. The entities; and prioritize loan requests? (vi) Availability of reliable revenue expected amount of O&M cost reduction Applicants will be evaluated against sources, such as user fees and ad or water saved will be one of the other applicants and greater weight will valorem taxes. prioritization considerations. (b) While we do not expect to do so, be given to applicants with the greatest engineering need. After meeting the (d) Financial Strength/Need/ we may waive certain criteria consistent Feasibility. The overall financial with Title II of Public Law 109–451 program eligibility criteria provided in § 403.9, loan guarantee proposals will be strength of the proposed project, section 203(b) that we determine to be including the borrower’s capacity to duplicative or rendered unnecessary prioritized based on the following criteria. Applicants will be evaluated repay the loan and meet all other because of an action already taken by obligations (beyond demonstration to the United States. against other applicants and greater (c) For projects described in weight will be given to applicants with the satisfaction of the Secretary of the § 403.5(a), a determination of eligibility the greatest engineering need and any capacity to repay the loan and other under Title I of Public Law 109–451 will other factors that may be identified in financial eligibility requirements) will establish eligibility for participation in the solicitation, including those noted be considered in the prioritization as the loan guarantee program. Additional below. well. The proposal will also eligibility criteria and program (a) Engineering Need. (1) For category demonstrate the portion of the work to requirements for such projects will be (B) and (C) projects, a major factor in be funded by private sources, as well as published in the future as supplements prioritization of eligible applicants will any contribution expected from any to this part. be the extent to which engineering non-Federal governmental agency. The (d) As a part of our evaluation of your analysis demonstrates that the facilities proposal must demonstrate that it is loan application, we will use any face existing or potential conditions that infeasible for the applicant to finance additional information that we deem would severely impair their the project using its current resources appropriate to verify the data included performance (e.g., significant reduction (e.g., reserve funds, tax base, etc.). in your loan guarantee application in of service delivery or reliability). The analysis can be provided by the (e) Environmental Effects. The order to: potential for the proposed project to (1) Determine the eligibility of a applicant, a consultant to the applicant, further reduce existing negative project; or by Reclamation, in the case of (2) Establish a priority ranking of all facilities operated and maintained by environmental effects or to provide eligible projects; and Reclamation for which the applicant is environmental benefits. (3) Determine which projects we will required to share in the O&M costs. The (f) Alternatives Considered. The offer a Conditional Commitment for analysis should cite: proposal will document alternatives to Guarantee. (i) The time frame over which the the anticipated proposed work, (e) If your application fails to meet the impairment could reasonably be including the ‘‘no action’’ alternative, requirements of paragraph (a) of this expected; the estimated costs for such alternatives, section, we will notify you of the (ii) The consequences of impairment; and reasons those alternatives were not criteria we deem to be deficient and and selected. The extent to which all viable may take one or more of the following (iii) Risk factors that could be alternatives have been considered will actions: mitigated if the project is undertaken. also be taken into account in the (2) For Category (B) projects, (1) Request additional information to prioritization process. correct identified deficiencies; proposals should cite findings from (2) Request one or more meetings with Reclamation’s Review of Operation and (g) Best Management Practices. The you to address deficiencies; Maintenance (RO&M) Program and proposal demonstrates that the (3) Return the application and request Facility Review reports as support for borrower’s proposed activities have that you address identified deficiencies; the maintenance or rehabilitation need. clear deliverables, can reasonably be or (b) History of Operations and expected to be accomplished on (4) Eliminate your application from Maintenance. For Category (B) projects, schedule, within budget, and have further review. the proposal will document the history tangible performance targets.

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§§ 403.12–403.15 [Reserved] ensuring all contractual and other users or other constituents relative to requirements related to the project, the the proposed obligation; and § 403.16 What permits must I obtain? facility, and the loan guarantee are met; (3) Identify the authorities through Environmental compliance processes and which the participating entities will and other permits are required by law, (f) Be responsible for ensuring all assess and collect revenues necessary to and your project schedule and budget required documents are completed and repay through the JPA its share of the must account for this activity. You submitted as required in order to proposed loan obligation. should consult with your local complete your project. (b) You must supply required Reclamation office regarding details on financial information for each local the environmental compliance and § 403.21 What is my role in preparation of environmental compliance documents? entity. permitting process. The following (c) You must determine the allocation (a) NEPA and other documents may provides examples of permits and of the loan obligation among the various be prepared by Reclamation, by you, or approvals often required: entities of your JPA. by a consultant employed by you and (a) Federal—NEPA, Endangered (d) The participating entities must approved by Reclamation. You will Species Act, Fish and Wildlife formally acknowledge their respective work with your local Reclamation office Coordination Act, National Historic portions of the loan obligation and must to decide who will prepare these Preservation Act compliance, and Clean sign all applicable loan agreements. Water Act permits (401, 402, 404 documents. Regardless of who prepares permits); the NEPA documents, we must §§ 403.26–403.28 [Reserved] (b) State—rights-of-way, water use, independently evaluate them for mineral use permits, and State sufficiency before final approval. We Subpart C—Reclamation Roles and environmental compliance; will work closely with you and any Responsibilities (c) Tribal—rights-of-way, water use, consultant involved. (b) If the NEPA document is an § 403.29 What is Reclamation’s role in the cultural resources, mineral use permits, loan guarantee program? etc.; and Environmental Impact Statement, (d) Local/private—rights-of-way, Reclamation must select, alone or in Reclamation has general oversight and water use, mineral use permits, and cooperation with you, any NEPA administers the loan guarantee program. road use permits. contractor before they begin work on the In these capacities we: document. (a) Issue solicitations for loan § 403.17 Where can I get more information (c) We will allocate all costs guarantee applications, as described in about loan guarantees? associated with NEPA and other forms § 403.6(a); You may contact your nearest of required environmental compliance (b) Work with you and the lender Reclamation office for more information among the authorized purposes when you submit your request for a loan or assistance. Contact information may benefiting from the project for which the guarantee; be found at http://www.usbr.gov. loan guarantee is being sought, and you (c) Review all applications received will be responsible for your allocated and determine who will receive loan § 403.18 Does this rule contain an guarantees and for how much; information collection that requires share of those costs. approval by OMB? (d) Ensure appropriate completion of § 403.22 What is my role in preparing the project in accordance with plans Yes. It does contain an information plans and specifications for the project? and specifications; and collection that is approved by OMB, If your project meets the descriptions (e) Manage and ensure proper under Control Number 1006–XXXX. An in §§ 403.5(b) and 403.5(c), you may oversight of the overall loan guarantee agency may not conduct or sponsor, and request that we prepare the plans and program. a person is not required to respond to, specifications, you may hire a a collection of information unless it consultant to prepare them, or you may § 403.30 What information will displays a currently valid OMB control prepare them yourself. Regardless of Reclamation maintain on the lender? number. who prepares the documents, we must We will maintain an operational file review and approve them. Reclamation on each lender. This file will contain, 403.19 [Reserved] must be consulted on any subsequent among other things: Subpart B—Borrower Roles and changes to determine if further approval (a) Information on the guaranteed Responsibilities is required. You must pay us for all loans originated and serviced by the appropriate allocated costs incurred in lender; § 403.20 As a borrower, what is my role in this review and approval. If you ask us (b) Any correspondence between us the loan guarantee program? to prepare these documents, you must and the lender; As the borrower, you are the initiator also pay our costs for the preparation. (c) Any Conditional Commitments for of the loan guarantee process. You must Guarantee; §§ 403.23–403.24 [Reserved] do all of the following: (d) The Lender’s Agreement; (a) Apply for participation in the loan § 403.25 What are the application and (e) Any Loan Note Guarantee guarantee program; contractual requirements if I apply for a Agreements issued to the lender; and (b) Work with the lender for approval guaranteed loan as a Joint Powers (f) Any Loan Guarantee Closing and conditions/terms of the loan; Authority (JPA)? Report prepared for each loan. (c) Work with both the lender and us If you are a JPA, you must meet all of throughout the process and life of the the requirements of this section. § 403.31 How much of the loan will loan; (a) Your application must: Reclamation guarantee? (d) Be financially responsible to repay (1) Identify each of the participating We will guarantee up to 80 percent of the money borrowed under this local water entities responsible to your the principal and up to 90 days accrued program; JPA for revenues to repay the interest from the first missed payment (e) Be responsible for obtaining all guaranteed loan; for eligible losses, as set forth in Subpart necessary approvals, permits, or other (2) Identify each participating entity’s F and in the Lender’s Agreement. This conditions necessary for the project, and authority to act on behalf of its water guarantee is backed by the full faith and

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credit of the United States, provided the longer meet current eligibility criteria, and notify us of changes in status, as lender does not demonstrate negligence we will re-evaluate the lender’s required by paragraph (b) of this section. in loan origination and servicing. eligibility under the program. (a) The lender is responsible for all of (a) If the lender has losses or the following: § 403.32 What is Reclamation’s role in deficiencies in processing and servicing (1) Determining whether the loan preparation of NEPA and other guarantee applicants meet the general environmental compliance documents? any federally guaranteed loans, they must not be above a level that indicates eligibility requirements for a loan We will determine the appropriate an inability to properly process and guarantee, from its perspective; level of NEPA documentation for each service a loan guaranteed by (2) Performing underwriting, due project. The NEPA documentation may Reclamation. We may consult with diligence, and evaluating the be prepared by Reclamation, by you, or other Federal agencies to determine if creditworthiness of the project by a consultant employed by you and previous problems, as evidenced in consistent with the lender’s standard approved by us. We will work with you lending policies and considering all to decide who can best prepare the monitoring reports, excessive loss claims, or denial of loss claims, should relevant information; documentation. Regardless of who (3) Determining if the proposed prepares the NEPA documents, we must be considered in this determination. (b) The lender must be subject to borrower is delinquent on any debt (if independently evaluate them for the borrower is delinquent on any debt, sufficiency before final approval. credit examination and supervision by an acceptable State or Federal regulatory processing of the application may § 403.33 Can Reclamation make agency listed below. Examination will continue only with our written exceptions to requirements in this rule? normally include a review of the approval); Yes. The Secretary may waive any of lender’s asset quality, management (4) Disclosing to Reclamation any the eligibility criteria that he/she practices, financial condition, and business or ownership relationships determines to be duplicative or compliance with applicable laws and between principals of the lender and rendered unnecessary because of an regulations. Regulating agencies may borrower where the lender’s officers, action already taken by the United include: stockholders, directors, or partners, or States. Waivers will only be considered (1) Federal Deposit Insurance the borrower, its officers, stockholders, to the extent that the criteria have been Corporation (FDIC); directors, or partners own, or have demonstrated to be satisfied. (2) Office of Comptroller of the management responsibilities in each Currency; other (this does not necessarily preclude §§ 403.34–403.36 [Reserved] (3) Office of Thrift Supervision; such relationships); (5) Originating and servicing all Subpart D—Lender Criteria and (4) Federal Reserve Bank; (5) Farm Credit Administration (FCA); Reclamation guaranteed loans in its Responsibilities (6) National Credit Union portfolio in accordance with the § 403.37 Which lenders are eligible to Administration; and Lender’s Agreement, including all of the participate in the program? (7) State banking Commissions. requirements of paragraph (b) of this (a) An eligible lender is: (c) The lender and its principal section; (1) Any non-Federal qualified officers and staff must demonstrate (6) Assessing late charges of any kind institutional buyer (as defined in 17 capability to fulfill guaranteed loan including default charges and default CFR 230.144A(a), or any successor servicing responsibilities. interest in accordance with the terms regulation, known as Rule 144A(a) of (d) If the lender is regulated only by and conditions approved by the Securities and Exchange a State regulatory agency, and not a Reclamation under the Loan Note Commission); or Federal regulatory agency, then it must Guarantee Agreement (Note: None of (2) Any clean renewable energy bond also meet the following financial and these will be covered by the guarantee); lender (as defined in section 54(j)(2) of capital requirements: (7) Notifying us of any actions taken the Internal Revenue Code of 1986 (as (1) Have a record of successfully to cure a guaranteed loan experiencing in effect on the date of enactment of making at least three commercial loans repayment difficulties as discussed in Public Law 109–451)). annually for at least the most recent 3 § 403.63; (b) [Reserved] years, with delinquent loans not (8) Allowing us to inspect and make exceeding 2 percent of loans copies of any of the records of the § 403.38 What other requirements must a outstanding and historic losses not lender pertaining to the guaranteed lender meet to participate in the program? exceeding 1 percent of dollars loaned; loans. Such inspection and copying may A lender wishing to participate in the (2) Have tangible balance sheet equity be made during regular office hours of loan guarantee program must submit of at least eight percent of tangible the lender or at any other time the proof to us that they are an eligible assets and sufficient funds available to lender and Reclamation agree upon; lender under § 403.37 and that they disburse the guaranteed loans it (9) Obtaining written approval from meet the requirements of this section proposes to approve within the first 6 us before making any new loans to, or prior to submitting an application months of being approved as a additional expenditures on behalf of, package as described in § 403.7. Once a guaranteed lender; and the borrower, which approval is subject lender has executed a Lender’s (3) The lender, its officers, or agents to our discretion; Agreement with us, they will be must not be debarred or suspended from (10) Protecting the guaranteed loan considered an approved lender for a participation in government contracts or debt and any collateral securing it in period of two years provided that there programs and must not be delinquent on bankruptcy proceedings; is no adverse event that would affect the a Federal Government debt. (11) Advising Reclamation promptly status of the lender, such as those listed and in writing of any changes or in § 403.39(c), and need not resubmit § 403.39 What is the lender’s role in the conditions of the loan that may result in proof of eligibility for each subsequent program? delinquency, inability to pay, or default guaranteed loan application. At the end The lender must evaluate and by the borrower; and of this two-year period or upon administer the guaranteed loans as (12) Advising Reclamation promptly information that the lender may no required by paragraph (a) of this section and in writing of any financial problems

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or circumstances that the non-Federal (3) Has taken any action to cease (b) The new lender must agree in entity may have that would cause them operations, or to discontinue servicing writing to: to be delinquent in repayment of an its portfolio guaranteed by Reclamation; (1) Assume all servicing and other existing obligation. (4) Intends to sell the guaranteed loan responsibilities of the original lender (b) For purposes of paragraph (a) (4) to another entity; and to acquire both the guaranteed and of this section, originating and servicing (5) Changes its name, location, non-guaranteed portions of the loan; guaranteed loans includes all of the address, tax identification number, or (2) Execute a Lender’s Agreement if following: corporate structure; one is not in effect; and (3) Give the borrower written notice of (1) Servicing the entire loan in (6) Is or has been debarred, suspended, or sanctioned in connection the substitution. accordance with the Lender’s (c) The original lender must obtain Agreement. The un-guaranteed portion with its participation in any Federal loan guarantee program; or is or has written concurrence from the borrower of the loan will not be paid first nor if the rate or terms are changed (and given any preference or priority over the been debarred, suspended, or sanctioned by any Federal or State such changes have been approved). guaranteed portion of the loan; (d) The original lender must assign its licensing or certification authority. (2) Taking all servicing actions that a promissory note, lien instruments, loan prudent lender would perform in § 403.40 Can the lender cancel or modify agreements, and other documents to the servicing a portfolio of loans that are not a Conditional Commitment for Guarantee, new lender. guaranteed, including, but not limited or transfer it to another lender? to, collecting payments, obtaining § 403.42 Can a lender sell the debt (a) Once the Conditional Commitment obligation in a secondary market? compliance with the covenants and for Guarantee is issued and accepted, no A lender can sell the debt obligation provisions in the note, loan agreement, modifications may be made as to the in a secondary market (for example, as security instrument, or any scope and overall concept of the project a participation). However, the lender supplemental agreements, verifying the or the project purpose, use of the payment of taxes and insurance must: proceeds, or other significant terms and (a) Notify us of the sale, and the premiums as appropriate, maintaining conditions. necessary liens on any collateral, and associated holder information; (b) Before issuance of the Loan Note (b) Sell both the guaranteed and the notifying Reclamation of any violation Guarantee Agreement, Reclamation may non-guaranteed portions of the loan of the loan agreement with the borrower approve the transfer of the Conditional together proportionally; and within 30 days of such violation; Commitment for Guarantee to a new (c) Continue to service the loan. (3) Obtaining financial statements eligible lender, provided that: required by the Lender’s Agreement, (1) The former lender states in writing § 403.43 What fees and costs is the lender analyzing these statements, and why it does not wish to continue to be responsible for? providing the statements, along with the the lender for the project; The lender is responsible for: lender’s analysis of the financial (2) No substantive changes in (a) Paying a loan guarantee fee of 1 conditions of the borrower and ownership or control of the borrower percent to Reclamation; and supporting documentation, to us within have occurred; (b) At least 20 percent of the 120 days of the end of the borrowers (3) No substantive changes in the outstanding loan amount, if the fiscal year; borrower’s written plan, scope of work, borrower defaults on the loan. (c) The lender’s own costs associated (4) When applicable, requiring audits or changes in the purpose or intent of with the loan guarantee program, of the borrower in accordance with the project have occurred; including underwriting, servicing, and Office of Management and Budget (4) No substantive changes in the loan liquidation of a loan, including any circulars, available from the agreement with the borrower or the legal or other costs. Reclamation contacts listed in § 403.17; Conditional Commitment for Guarantee (5) Reporting monthly data on a are required; § 403.44 Can Reclamation guarantee quarterly basis to Reclamation the (5) The new lender is acceptable to bonds sold to finance eligible projects? outstanding principal and interest Reclamation, and has a current Lender’s No. Reclamation cannot guarantee balance on each guaranteed loan in its Agreement, or will have a Lender’s bonds. Bond issuers do not qualify as portfolio, and other information as Agreement in place prior to the sale; eligible lenders under § 403.37. specified in the Lender’s Agreement; and §§ 403.45–403.46 [Reserved] and (6) Such a transfer meets all other (6) Servicing delinquent loans in statutory, regulatory, and other Subpart E—Guaranteed Loan Terms accordance with the Lender’s requirements. and Details Agreement and reasonable and prudent § 403.41 Can a lender sell or transfer the § 403.47 What conditions must be met lending standards, to include monthly Loan Note Guarantee Agreement to another reporting to us on the status of before a Loan Note Guarantee Agreement is lender? issued? delinquent loans; and A lender can sell or transfer a (7) Inspecting any collateral as often The Loan Note Guarantee Agreement guaranteed loan to another lender if all may be issued only after the following as necessary to ensure the proper of the requirements of this section are maintenance of its value. have occurred: met. (a) All terms of the Conditional (c) The lender must immediately (a) We must approve the sale or Commitment for Guarantee have been notify us in writing if it: transfer in writing by executing a met, to the satisfaction of Reclamation; (1) Becomes insolvent; modification of the guarantee to identify (b) No changes have been made in the (2) Has filed for any type of the new lender and the amount of debt lender’s loan conditions and bankruptcy protection, has been forced at the time of the substitution. Any requirements since the issuance of the into involuntary bankruptcy, or has change must meet all applicable Conditional Commitment for Guarantee requested an assignment for the benefit statutory, regulatory, and budgetary except those approved by Reclamation of creditors; requirements for approval. in writing;

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(c) The lender certifies that there have estimated costs must be clearly notify us of the increase and justify the been no substantive adverse changes in described and documented in your increase to us. We will then determine the borrower’s financial condition or application for a loan guarantee. how such changes would affect any any other adverse change in the (a) Project Costs may include, but are applicable statutory, regulatory, and borrower during the period of time from not limited to: budgetary requirements, and whether to the issuance of the Conditional (1) Costs of acquisition, lease, or re-evaluate the revised project to receive Commitment for Guarantee to issuance rental of real property, including a loan guarantee, or reject your revised of the Loan Note Guarantee Agreement; engineering fees, surveys, title application. If we determine that we can (d) Land access and all necessary insurance, recording fees, and legal fees re-evaluate your project, we may require permits are obtained; incurred in connection with land you to make arrangements for additional (e) Environmental compliance has acquisition, lease or rental, site funds or financing which are agreeable been completed and approved by improvements, site restoration, access to us and the lender. Reclamation; roads, and fencing; (b) If your actual project costs exceed (f) Federal funds are available; (2) Costs of engineering, architectural, the amount specified in the Loan Note (g) Reclamation has approved final legal and bond fees, and insurance paid Guarantee Agreement, you will notify us plans and specifications; in connection with rehabilitating or and we will consult with you regarding (h) All applicable security, safety, and replacing the facility; including such cost increases to determine what health issues are resolved; materials, labor, services, travel and course of action to take, including (i) The lender has executed the transportation for facility design, requiring you to obtain additional funds Lender’s Agreement with us, paid the construction, and startup; to finish the project in a manner appropriate guarantee fee, and a Loan (3) Costs of equipment purchases; satisfactory to us and the lender. Guarantee Closing Report has been (4) Costs to provide equipment, (c) Any additional funding or completed; facilities, and services related to safety financing must be consistent with (j) All other applicable statutory, and environmental protection; Public Law 109–451, all requirements of regulatory, and budgetary requirements (5) Financial and legal services costs, this part, and any other statutory, have been met; including other professional services regulatory, or budgetary requirements (k) Reclamation, in consultation with and fees necessary to obtain required necessary for Reclamation approval. other Federal agencies determines that licenses and permits and to prepare the project is consistent with all § 403.52 What interest rates and charges environmental reports and data; apply to my guaranteed loan? applicable Federal and United States (6) Costs of necessary and appropriate (a) Your loan will bear interest at a Treasury policies and is in the best insurance and bonds of all types; rate or rates negotiated between you and interest of the Federal government; and (7) Contract costs and non-contract (l) The Secretary has approved the the lender. They must be fixed rates. costs, including appropriate loan for a Loan Note Guarantee Interest rates will be those rates contingencies, allowances for Agreement. customarily charged borrowers in procurement strategies, and cost similar circumstances in the ordinary escalation estimates; § 403.48 What is the maximum term I can course of business and are subject to our obtain on a guaranteed loan? (8) Capitalized interest necessary to review and approval. We will determine meet market requirements, reasonably A loan guarantee must provide for if the rate is reasonable after required reserve funds and other complete amortization of the loan consultation with the Treasury within the useful life of the project, but carrying costs during construction; and (9) Other necessary and reasonable Department, taking into account the not more than 40 years. Lenders may range of interest rates prevailing in the offer shorter terms. costs. (b) Project Costs do not include: private sector for similar obligations of § 403.49 Is there a limit on the size of a (1) Fees and commissions charged to comparable risk guaranteed by the guaranteed loan? borrower, including finder’s fees, for Federal government. (b) Any change in the interest rate Public Law 109–451 limits the size of obtaining Federal or other funds; the loan to 90 percent of eligible project (2) Parent corporation or other between the date of issuance of the costs. Reclamation would only affiliated entity’s general and Conditional Commitment for Guarantee guarantee up to 80% of that total loan administrative expenses, and non- and before the issuance of the Loan Note amount. project-related parent corporation or Guarantee Agreement must be approved affiliated entity assessments, including by us. § 403.50 What project costs are eligible to be covered by my guaranteed loan? organizational expenses; § 403.53 Can I prepay or refinance a (3) Costs that are excessive or are not guaranteed loan? Before issuing a Loan Note Guarantee directly required to carry out the Agreement, we will determine the You must negotiate any prepayment project, as determined by us, including or refinancing terms on a loan guarantee adequacy and appropriateness of but not limited to the cost of hedging estimated Project Costs for the project with the lender, subject to our consent. instruments; and All applicable statutory, regulatory, and that is the subject of the agreement. In (4) Operating costs. order for us to make that determination, budgetary requirements must be met for the application must include an § 403.51 What if my project cost exceeds Reclamation consent. estimate of project costs that complies the estimated loan amount? § 403.54 When can an entity begin actual with applicable Reclamation policy. If a project satisfies the criteria in ‘‘on the ground’’ work on the project to be Among other things, you must calculate §§ 403.5(b) or 403.5(c), and costs exceed financed? the sum of necessary, reasonable and the estimated, then: (a) An entity can begin actual work on customary costs that you have paid and (a) If your project cost estimate the facilities or components upon expect to pay, which are directly related increases after we issue a Conditional issuance of the Loan Note Guarantee to the project, including costs for Commitment for Guarantee, but before Agreement. escalation and contingencies, to we enter into the Loan Note Guarantee (b) Any work done by a water user estimate the total Project Costs. All Agreement, you will be required to entity more than 90 days before a Loan

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Note Guarantee Agreement is issued the lender to the extent that any loss is may, before default, enter into an may not be included in the eligible a result of fraud, violation of usury laws, agreement with your lender to pay the project costs. In addition, any work negligent servicing, or failure to obtain principal and interest payment you initiated by a water user entity 90 or any security designated in the Lender’s currently owe the lender. Although we fewer days prior to our issuing a Loan Agreement, regardless of when do not anticipate having sufficient funds Note Guarantee Agreement may or may Reclamation acquires knowledge of any or justification to exercise this option, not be included in the eligible project of the foregoing. we may consider this option if all of the costs and would be done at the risk of (b) For purposes of this provision, following conditions are met: not receiving the loan guarantee, even negligent servicing is defined as the (a) The non-Federal borrower is failure to perform those services which though such work may have been unable to meet the payment and is not a reasonably prudent lender would approved by us and included in the in default; Conditional Commitment for Guarantee. perform in servicing its own portfolio of loans that are not guaranteed. The term (b) We determine that it is in the § 403.55 [Reserved] includes not only the concept of a public interest that you be permitted to failure to act, but also not acting in a continue your project, and that the § 403.56 Can the repayment of a probable net benefit to the Federal guaranteed loan be subordinated to any reasonably timely manner, or acting other financing? significantly contrary to the manner in Government in making such payment on your behalf is greater than that which No. We will only guarantee a loan which a reasonable and prudent lender would to the time of loan would result if your guaranteed loan under this part subject to the condition defaulted; that the obligation is not subordinate to maturity, or until a final loss is paid. (c) Any losses occasioned will not be other financing. In addition: (c) We have sufficient funds enforceable by the lender to the extent (a) For projects without pledged specifically appropriated and available that loan funds are used for purposes collateral, the loan must be superior to for this purpose; other than those specifically approved any other financing for the project (as (d) The payment authorized is not by Reclamation in the Conditional approved by Reclamation) and on a Commitment for Guarantee and Loan greater than the amount of principal and position of parity with regard to other Note Guarantee Agreement. Reclamation interest that you are obligated to pay non-collateralized obligations of the will review all loss claims, and claims under the terms of the Loan Note borrower; i.e., in the event of a default, may be denied, for example, in cases Guarantee Agreement; all non-secured lenders are affected on where the lender does not perform (e) You agree to execute all written a proportionate basis. reasonable and customary servicing of agreements required by us for such (b) For all other eligible projects, the the loan or claims include amounts not purpose and reimburse us for the loan must be fully secured through covered under the terms of the Loan payment we make on terms and project facilities pledged as collateral for Note Guarantee Agreement. conditions satisfactory to us; and the loan and there shall be no other liens on such collateral. Consistent with § 403.58 Will the requirements of the (f) You will, and are financially able the requirements of the Act, the rights Reclamation Reform Act of 1982 apply? to, continue to make the scheduled of the Secretary, with respect to any No. The loan to be guaranteed is payments on the remaining portion of property acquired pursuant to a loan between the borrower and a private the principal and interest due and on guarantee or related agreement, shall be lending institution and therefore does other debt obligations of the project. superior to the rights of any other not meet the definition of a contract as § 403.65 What happens if I still can’t make person with respect to the property. provided in Section 202(1) of the my payments after working with the lender (c) Where joint financing of a project Reclamation Reform Act of 1982. and Reclamation? occurs, the loan for which a guarantee is sought from Reclamation must have at §§ 403.59–403.62 [Reserved] If you cannot make payments after least a parity position with the other working with the lender and with Subpart F—Default Actions and Reclamation under § 403.63, then the lender(s), such that in the event of Termination. default, each lender will be affected in lender may start default proceedings. proportion to the share of financing it § 403.63 What options do I have if I have § 403.66 What are the actions and provides. problems repaying the guaranteed loan? timelines associated with default (d) The non-guaranteed portion of the If you have problems paying your proceedings? loan will not be paid first nor given any loan, contact Reclamation and your The lender will notify us when your preference or priority over the lender for consideration of possible loan payment is 30 days past due. If the guaranteed portion. options. payment becomes 60 days past due, the § 403.57 Under what conditions would the § 403.64 How can Reclamation help me if lender will meet with you and us to United States not pay the guaranteed I can’t resolve repayment problems with my discuss default proceedings and portion of a loan? lender? potential resolution of the problem. The (a) The Loan Note Guarantee If you cannot resolve repayment timeframe for default proceedings are Agreement will not be enforceable by problems with your lender, Reclamation shown in the following table:

Timeframe (days from pmt due date) Action in the default process Collateral No collateral pledged pledged

Lender notifies Reclamation that loan is past due ...... 30 30 Lender meets with Reclamation and borrower to discuss default proceedings and potential resolution of the problem ...... 60 60 Reclamation, Borrower, and lender seek possible cures ...... 75 75

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Timeframe (days from pmt due date) Action in the default process Collateral No collateral pledged pledged

Reclamation and lender determine whether a cure is possible. If no cure can be found, the loan is in de- fault and any collateral pledged for the loan becomes eligible for liquidation ...... 90 90 Lender submits a proposed method of liquidation in writing ...... 120 N/A Reclamation informs lender if liquidation plan is approved ...... 150 N/A Lender files an estimated loss claim if liquidation will exceed 90 days ...... 180 N/A Lender files final Report of Loss ...... 210 120 Reclamation makes loss payment ...... 270 180

§ 403.67 What is the process for all rights with respect to the guaranteed note until the United States Treasury liquidation of pledged collateral? loan. The lender must sign and deliver has been paid in full. (a) Any of the following factors may to Reclamation an assignment of any [FR Doc. E8–23444 Filed 10–3–08; 8:45 am] lead to a decision to liquidate: rights it may have had with respect to (1) The loan has been delinquent 90 the guaranteed loan. BILLING CODE 4310–MN–P days; (2) Delaying liquidation will § 403.71 What will Reclamation do if a jeopardize recovery of the loan borrower defaults? DEPARTMENT OF COMMERCE collateral; or If a borrower defaults, we are required (3) Borrower or lender has been to notify the Attorney General. The National Oceanic and Atmospheric uncooperative in resolving the default; Attorney General will take appropriate Administration (b) The lender must, within 30 days action to recover the unpaid principal after a decision to liquidate, submit to and interest due from assets of the 50 CFR Part 697 Reclamation in writing a proposed defaulting non-Federal borrower [Docket No. 070717357–7593–02] method of liquidation. Reclamation will associated with the obligation, or any RIN 0648–AV77 not make any payments for estimated or other collateral pledged to secure the obligation. actual losses prior to final Report of Atlantic Coastal Fisheries Cooperative Loss. § 403.72 When does the Loan Note Management Act Provisions; American (c) Within 30 days after receiving the Guarantee Agreement terminate? Lobster Fishery liquidation plan, we will inform the A Loan Note Guarantee Agreement AGENCY: National Marine Fisheries lender in writing whether we concur. under this part will terminate (d) The lender will discontinue Service (NMFS), National Oceanic and automatically upon: interest accrual at the point of default, (a) Full Repayment of the guaranteed Atmospheric Administration (NOAA), or 90 days after the first payment was loan; Commerce. missed, whichever is earlier. (b) Full Payment of any loss ACTION: Proposed rule; request for (e) When the lender conducts the obligation or negotiated loss settlement comments. liquidation, it must account for funds as described in the Lender’s Agreement; during the period of liquidation and SUMMARY: NMFS proposes new Federal or American lobster (Homarus will provide us with reports at least (c) Written request from the lender to americanus) regulations that would quarterly on the progress of the Reclamation, upon return of the Loan implement a mandatory Federal lobster liquidation. Only expenses authorized Note Guarantee Agreement to dealer electronic reporting requirement, by Chapter 9 plans or Chapter 11 Reclamation. reorganizations, or Chapters 11 or 7 changes to the maximum carapace liquidations (United States Bankruptcy § 403.73 What happens if the non-Federal length regulations for several lobster Code) may be deducted from collateral party breaches the existing Loan Note conservation management areas proceeds, if any. Guarantee Agreement? (LCMAs/Areas), and a modification of The Federal Government reserves the the v-notch definition in certain § 403.68 What is the timeline for filing a right to prosecute both the borrower and LCMAs. This action responds to the Final Report of Loss? the lender to the fullest extent possible recommendations for Federal action in Within 30 days after liquidation of all under existing laws until full the Atlantic States Marine Fisheries collateral, the lender must prepare a recompense has been made and the Commission’s (Commission) Interstate final Report of Loss and submit it to us. conditions of the Loan Note Guarantee Fishery Management Plan for American We will not guarantee interest beyond Agreement have been fulfilled. In Lobster (ISFMP). Implementation of a the point of borrower default. We will addition, if a Loan Note Guarantee mandatory Federal lobster dealer pay the approved loss payment within Agreement is breached, the Borrower reporting requirement would be 60 days after reviewing the final Report will no longer be eligible to receive a consistent with the recommendations of Loss and accounting of the collateral. Federally-guaranteed loan for any of its for Federal action by the Commission in § 403.69 [Reserved] future activities or projects, and may not Addendum X to Amendment 3 of the be eligible for other Federal assistance. ISFMP and would assist in providing a § 403.70 What interest does the lender Furthermore, any lender in breach of a more comprehensive and consistent have in the guaranteed loan after Loan Note Guarantee Agreement will be coastwide accounting of lobster harvest Reclamation makes a loss payment? responsible for paying any additional data to facilitate stock assessment and When we receive a final Report of fees as determined necessary to the fishery management. Additionally, this Loss and pay the loss claim, we are Federal Government and will not be action intends to implement new and immediately subrogated to the lender in allowed to hold a Federal Government revise existing Federal lobster

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regulations to support the Commission’s of the collection-of-information improved fishery data collection and ISFMP by adopting v-notching and requirements contained in this proposed broodstock protection. The Commission maximum carapace length measures rule may be submitted to the mailing took action to address these issues (together referred to as broodstock address listed above and by e-mail to through the adoption of Addendum X protection measures) in several [email protected] or fax to and Addendum XI to Amendment 3 of management areas that are, for the most (202) 395–7285. the ISFMP. The focus of this rulemaking part, identical to those already enforced FOR FURTHER INFORMATION CONTACT: is on the mandatory dealer reporting by the states. The incorporation of these Peter Burns, Fishery Management requirements in Addendum X and the proposed broodstock protection Specialist, phone (978) 281–9144, fax broodstock protection measures of measures would support the (978) 281–9117. Addendum XI. As explained in greater Commission’s ISFMP by reducing detail later in this document and the SUPPLEMENTARY INFORMATION: confusion and facilitating enforcement associated draft environmental within and across management areas. Statutory Authority assessment completed for this action, Finally, the proposed action would The proposed regulations would NMFS analyzed three alternatives for expand the Commission’s recommended modify Federal lobster regulations in each of the three regulatory actions broodstock protection measures to proposed: mandatory dealer reporting the Exclusive Economic Zone (EEZ) include the Outer Cape Management requirements; the maximum carapace under the authority of section 803(b) of Area to provide further opportunities to size; and, revisions to the v-notch the Atlantic Coastal Fisheries protect lobster broodstock in this requirements. The three alternatives for Cooperative Management Act (Atlantic management area. each of the three proposed regulatory Coastal Act) 16 U.S.C 5101 et seq., actions included: a status quo (no DATES: Comments must be received no which states, in the absence of an action) alternative; an alternative that later than 5 p.m. eastern standard time approved and implemented Fishery would implement the Commission’s on or before November 20, 2008. Management Plan under the Magnuson- ISFMP recommendations in Addendum ADDRESSES: You may submit comments, Stevens Fishery Conservation and identified by RIN number 0648–AV77, X and XI; and a third modified Management Reauthorization Act alternative that would vary in certain by any of the following methods: (Magnuson-Stevens Act) (16 U.S.C. 1801 • Electronic Submissions: Submit all aspects from the Commission et seq.) and, after consultation with the recommendations, but would be electronic public comments via the appropriate Fishery Management Federal e-Rulemaking portal http:// compatible with the Commission’s Council(s), the Secretary of Commerce ISFMP. www.regulations.gov. may implement regulations to govern • Fax: (978) 281–9117, Attn: Peter fishing in the EEZ, i.e., from 3 to 200 Background Burns. • Mail: Harold Mears, Director, nautical miles (nm) offshore. The American lobsters are managed State, Federal and Constituent Programs regulations must be (1) compatible with within the framework of the Office, Northeast Regional Office, the effective implementation of an Commission. The Commission serves to NMFS, One Blackburn Drive, ISFMP developed by the Commission develop fishery conservation and Gloucester, MA 01930. Mark the outside and (2) consistent with the national management strategies for certain of the envelope: ‘‘Comments on Lobster standards set forth in section 301 of the coastal species and coordinates the Proposed Rule.’’ Magnuson-Stevens Act. efforts of the states and Federal Instructions: All comments received Purpose and Need for Management Government toward concerted are part of the public record and will sustainable ends. The Commission, generally be posted to http:// One purpose of this action is to under the provisions of the Atlantic www.regulations.gov without change. improve the availability and utility of Coastal Act, decides upon a All Personal Identifying Information (for fishery-dependent lobster data to meet management strategy as a collective and example, name, address, etc.) the need for a more comprehensive then forwards that strategy to the states voluntarily submitted may be publicly baseline for assessing the status of and Federal government, along with a accessible. Do not submit confidential lobster stocks coastwide. Additionally, recommendation that the states and business information or otherwise this proposed action would enhance Federal government take action (e.g., sensitive or protected information. lobster broodstock protection and enact regulations) in furtherance of this NMFS will accept anonymous facilitate enforcement of lobster strategy. The Federal government is comments (enter N/A in the required measures by revising American lobster obligated by statute to support the fields if you wish to remain maximum carapace size and v-notch Commission’s ISFMP and overall anonymous). Attachments to electronic requirements, consistent with the fishery management efforts. comments will be accepted via recommendations of the Commission in In support of the ISFMP, the National Microsoft Word, Microsoft Excel, the ISFMP. Finally, this proposed action Marine Fisheries Service (NMFS) WordPerfect, or Adobe PDF file formats would expand the curtain of protection proposes to revise Federal American only. on broodstock lobster traveling among lobster regulations in response to the Copies of the Environmental lobster management areas by extending Commission’s recommendations for Assessment (EA), including the the revised maximum carapace size and Federal action in Addenda X and XI. Regulatory Impact Review (RIR) and the v-notch requirements to the Outer Cape The addenda were themselves a Initial Regulatory Flexibility Analysis Management Area. response, at least in part, to conclusions (IRFA), prepared for this regulatory The need for action is rooted in the contained in the most recent lobster action may be obtained at the mailing most recent American lobster stock stock assessment. More specifically, the address specified above; telephone (978) assessment and in recommendations in 2005 stock assessment and peer review 281–9327. The documents are also a subsequent peer review panel report. process identified the dearth of landings available online at http:// The findings of the stock assessment data in the American lobster fishery as www.nero.noaa.gov. and peer review panel prompted the an inhibitor to the effective evaluation Written comments regarding the Commission to take action by adopting of the status of the lobster resource, that burden-hour estimates or other aspects measures to address the need for available data are woefully inadequate

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to fulfill the management needs of the that dealer is not required to report are not part of this proposed resource, and that a mandatory catch lobster or other seafood purchases to the rulemaking. reporting system is needed. Such Federal government. Based on the Both NMFS and the states acquire conclusions provided the impetus for analysis completed for this action, 148 dealer and harvester data, although the Addendum X’s mandatory reporting Federal lobster dealers (29 percent of all frequency and reporting requirements requirements, which has spawned the Federal lobster dealers) fall in this vary across state and Federal proposed Federal dealer reporting category and, therefore, are not jurisdictions. In an effort to achieve a requirement described in this proposed currently subject to Federal reporting common forum for collecting and rule. requirements. The remaining 71 percent assessing coastwide fishery data, NMFS This same assessment and peer of Federal lobster dealers hold another and its Atlantic states partners review process concluded that the Federal seafood dealer permit that developed the Atlantic Coastal Southern New England (SNE) lobster requires routine reporting. Such dealers Cooperative Statistics Program (ACCSP). stock is suffering from depleted stock are mandated to report all species ACCSP is a state and Federal fisheries abundance and recruitment with high purchased, including lobster. statistical data collection program. The dependence on new recruits. The SNE Accordingly, this proposed action data are compiled into a common stock component is in poor shape with would affect only those Federal lobster management system to facilitate fishery respect to spawning, recruit and full- dealers not currently required to report management and meet the needs of recruit abundance indices. The lobster sales based on reporting fishery managers, scientists and the assessment results also indicated that requirements mandated by other fishing industry. To more specifically the Georges Bank (GBK) lobster stock, federally-managed fisheries. Under this address the need for real-time landings although in a stable state with respect to requirement, all Federal lobster dealers data to assist in fisheries management, abundance and recruitment, is also would complete trip-level reports and the ACCSP established the Standard dependent on new entrants to the submit them electronically each week, Atlantic Fisheries Information System fishery a cause for concern that the consistent with current Federal dealer (SAFIS). Since 2003, SAFIS has evolved fishery is too reliant on newly recruited reporting requirements. This proposed to handle the fisheries data from state- lobster. Accordingly, the Commission measure differs from the Commission’s permitted dealers from participating adopted Addendum XI, which sought to recommendations because this proposed states along the Atlantic coast. Since protect SNE and GBK broodstock by measure would mandate electronic May 2004, SAFIS has incorporated creating new maximum carapace dealer reporting and would collect the Federal seafood dealer data. lengths and implementing a more data in a timelier manner (weekly vs. Although SAFIS was intended to be restrictive definition of a v-notch in monthly). the overall entry point and warehouse certain Lobster Management Areas. The Commission’s Expanded for state and Federal dealer data, NMFS Accordingly, NMFS proposes three Coastwide Data Collection Program set relies on its Commercial Fisheries independent regulatory actions: forth in Addendum X is intended to Database System (CFDBS), managed by (1) Requiring all Federal lobster increase the quality and quantity of the Northeast Fisheries Science Center, dealers to electronically report trip-level fisheries-dependent and fisheries- as the official warehouse for Federal lobster landings to NMFS on a weekly independent data collected at the state dealer data even though all Federal and basis; and Federal level. Federal fishery- state data are, ultimately, available on (2) Implementing a maximum independent data collection programs, the SAFIS database. The proposed carapace length restriction for lobster in such as sea sampling and port sampling Federal dealer reporting requirements Area 2, Area 3, Area 6, and the Outer activities, are longstanding and would be implemented consistent with Cape Management Area and revising the underway as implemented by NMFS, those reporting requirements currently maximum carapace length requirements contributing substantially to the pool of in place for Federal lobster dealers and for Areas 4 and 5; and information used for lobster stock other Federal seafood dealers who are (3) Revising the Federal definition of assessments, as are the trawl surveys already subject to mandatory electronic a standard v-notched lobster, applicable conducted by the Northeast Fisheries reporting requirements for fisheries to lobster in all areas, with the Science Center. NMFS believes that managed under the authority of the exception of Area 1. these Federal fisheries-independent data Magnuson-Stevens Act. The mandatory collection activities exceed those as electronic reporting requirements for Proposed Changes to the Current identified in Addendum X. Further, fisheries managed under the authority of Regulations with respect to fishery-dependent data the Magnuson-Stevens Act are set forth NMFS proposes to amend the Federal collection, Addendum X mandates in 50 CFR 648.6 and 50 CFR 648.7 of the lobster regulations by expanding participating states, and recommends Federal fisheries regulations and specify reporting requirements to all Federal that NMFS, require at least 10 percent the data elements and technological lobster dealers, and revising the of all lobster harvesters to report their requirements needed for electronic maximum carapace length regulations catch. Currently, approximately 61 reporting. As such, Federal lobster and v-notch definition for several percent of all Federal lobster vessels dealers who would be affected by the LCMAs. report their catch through the NMFS proposed reporting regulations would Vessel Trip Report (VTR) program, be required to submit their weekly Mandatory Federal Lobster Dealer exceeding the reporting threshold under reports into SAFIS. Electronic Reporting the ISFMP. Since these fishery- Federal lobster dealers affected by the Consistent with the Commission’s dependent and fishery-independent proposed action, similar to Federal recommendations in Addendum X, activities in place already exceed those dealers already required to report, NMFS proposes to implement recommended in Addendum X, NMFS would be required to submit electronic regulations to extend mandatory intends to take no further action in this reports to NMFS by selecting one of reporting coverage to all Federal lobster rulemaking to modify the current level three methods: direct real-time, online dealers. Currently, if a Federal dealer of harvester reporting. Consequently, data entry into SAFIS; off-line data holds a lobster dealer permit and no the harvester reporting and fishery- entry using software provided by NMFS, other Federal seafood dealer permits, independent elements of Addendum X followed by file upload to SAFIS; or

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proprietary record-keeping software rulemaking on this proposed action, the implementing several management which could be uploaded to SAFIS. earliest NMFS would establish a 7–inch measures including a mandatory Those entering the data directly into the (17.78 cm) maximum size would be July electronic reporting requirement for SAFIS system could do so with a 1, 2009. Therefore, to be consistent with Federal lobster dealers and changes to personal computer and Internet access. the Commission and States’ the v-notch and maximum size Those who choose to enter the data recommended time frame for regulations in several LCMAs. The using a file upload system would also implementation and fully complement comment period closed on October 22, need a computer and Internet access. state regulations, this proposed action 2007. However, these respondents may be would implement the maximum size A total of eight entities commented in eligible to obtain the file upload recommended by the Commission for response to the ANPR. Some of the software through a NMFS contractor, at the second year of the three-year comments spoke to more than one of the no cost to the impacted dealer. The no- implementation schedule and proposed actions. The comments can be cost option could mitigate some of the implement the 6 7/8–inch (17.46 cm) categorized as follows: Six financial impact to Federal lobster maximum size in July 2009. Consistent commentators wrote in opposition of dealers who would be subject to with the ISFMP, the terminal maximum the mandatory electronic Federal lobster mandatory dealer reporting. However, size for Area 3 of 63⁄4 inches (17.15 cm) dealer reporting requirement; One all impacted lobster dealers would still would take effect on July 1, 2010. The commentator commented in favor of the be required to maintain a personal aforementioned measures would be proposed maximum size and v-notch computer and Internet connection to consistent with the Commission’s plan. requirements; Two commentators upload the data to NMFS. The Commission’s plan does not opposed the maximum size include a maximum size requirement requirements. Maximum Carapace Length for the Outer Cape Area, the only Area The dealer reporting comments were Requirements without a maximum size requirement received from three lobster dealers, the In support of the Commission’s under the Commission’s ISFMP. NMFS, State of Maine Department of Marine measures in Addendum XI to address however, in this regulatory action Resources, and two lobster fishermen’s the recommendations contained in the proposes to adopt a maximum carapace organizations. The general theme of stock assessment and peer review length requirement for the Federal these comments was that mandatory process, NMFS proposes to implement a waters of the Outer Cape Area, weekly electronic reporting would add maximum size of 51⁄4 inches (13.34 cm) consistent with the sizes and more administrative burden to lobster on all (male and female) lobsters in Area implementation time-line proposed for dealers and it would be redundant since 2 wherein there is currently no Area 3. It is anticipated that such action many dealers are already providing the maximum size requirement in the would provide additional conservation data to their respective state fisheries Federal regulations. In Area 4, the benefits for lobster migrating through agency. There were no comments in current Federal requirement of 51⁄4 this area from the other stock areas. favor of this measure. Two comments inches (13.34 cm) pertains to female opposing the maximum size lobster only. This proposed regulatory Modified Definition of V-Notch requirements were received by a mobile action would broaden the scope of the As approved by the Commission in gear fishermen’s group and a maximum size to include all lobsters Addendum XI, NMFS proposes to revise recreational group. The (male and female). In Area 5, the current the v-notch definition in Areas 2, 3, 4, comments and the NMFS response to Federal requirement is 51⁄2 inches (13.97 5 and 6 to apply to any female lobster each comment are provided here. cm), applicable only to female lobster. that bears a notch or indentation in the Comment 1: Three lobster dealers This proposed regulatory action would base of the flipper that is at least as deep from Maine wrote in opposition to the reduce the maximum size to 51⁄4 inches as 1⁄8 inches (0.32 cm), with or without mandatory electronic dealer reporting (13.97 cm) for both male and female setal hairs. In the proposed revision, v- requirement, generally stating that this lobster. Currently, the Federal lobster notched lobster also pertains to any measure would unnecessarily add to the regulations for Area 4 and Area 5 allow female which is mutilated in a manner reporting burden already mandated by recreational fishermen to retain one which could hide, obscure, or obliterate the state. One dealer is concerned that female lobster that exceeds the such a mark. Under the Commission’s this additional burden would cause the maximum size requirement as long as ISFMP, the zero tolerance v-notch business to have to hire additional office such lobster is not intended for definition for Area 1 would remain staff. commercial sale. This so-called unchanged, and the Outer Cape Area Response: NMFS understands that ‘‘trophy’’ lobster allowance in Area 4 would maintain the current definition of there might be a small amount of and Area 5 would be eliminated. In a v-notch (at least 1⁄4 inch (0.64 cm) in seeming redundancy for those Federally Area 6, this proposed action would depth, without setal hair). NMFS permitted dealers who also have a state establish a maximum size of 51⁄4 inches however, proposes in this regulatory dealer permit and who are thus already (13.34 cm) for all lobster harvested by action to also include the Outer Cape bound to report by virtue of their state Federal vessels in this area. Management Area under the revised v- permit. On balance, however, NMFS Additionally, this regulatory action notch definition as specified in the believes that the utility of electronic would establish a maximum carapace Commission’s ISFMP for Areas 2, 3, 4, reporting outweighs the minor burden size requirement in Area 3. The 5 and 6. associated with the minority of dealers Commission’s plan requires the states to who would have to report both have implemented a lobster maximum Comments and Responses electronically and by paper. More carapace length of 7 inches (17.78 cm) In response to the Commission’s specifically, the majority of Federal by July 1, 2008, reduced by 1⁄8 inch recommendations for Federal action in lobster permit dealers, approximately 71 (0.32) during each of two successive Addenda X and XI, NMFS published an percent, already have to report subsequent years until a terminal Advance Notice of Proposed electronically. Collection and assembly maximum size of 63⁄4 inches (17.15 cm) Rulemaking (ANPR) on September 21, of the requisite data likely the most time is in place in July 2010. Given the 2007 (72 FR 53978), to inform the public intensive task is a one-time event that timing associated with Federal that the agency is considering must occur regardless of the format in

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which the data is ultimately reported of collecting similar data sets for a program to complement the actions of (and such data is undoubtedly being single species by the same means. the states in enhancing the quality and collected by the business in some form Further, NMFS’s experience suggests quantity of lobster fishery data to assist as part of the dealer’s regular business that while overall compliance with in the management of this important practices). Although there might be Commission plans is excellent, states do fishery. some start-up costs associated with not always interpret, and are not always Comment 4: The State of Maine electronic reporting (See NMFS able to implement, the plans Department of Marine Resources Response to Comment 4), computer consistently and uniformly. responded in opposition to the reporting is intuitively more efficient Accordingly, NMFS believes it more proposed mandatory dealer reporting and less time intensive than having to prudent in this instance to mandate a measure, indicating that it would write the data out and submit it in paper single uniform Federal lobster dealer impact about 86 small dealers in Maine. format. Whether computer reporting reporting system rather than rely on the The Maine Department of Marine would ultimately result in new eleven states on the Lobster Board to Resources is already collecting trip-level efficiencies in every case is difficult to submit data for certain Federal dealers data from dealers on a monthly basis gauge and might be dependent on according to the individual state’s and believes that electronic reporting individuals on a case by case basis. reporting program. requirements would be too burdensome Nevertheless, NMFS has received no Comment 2: One dealer wrote that he on dealers who do not have access to information to suggest that its proposed purchases lobster from fishermen who the Internet or to a computer and are electronic reporting would be a drop off their catch on a floating lobster now able to provide this data on paper significant additional burden to the 29 car. The lobster are dropped off by trip tickets to fulfill state requirements. percent of the dealers who do not fishermen when the dealer is not there, The State of Maine believes this Federal presently report in such a format, much complicating the ability to garner action could jeopardize the relationship less that the burden would cause the specific data on where and when the that Maine has fostered with its dealers need to hire additional office staff. lobster where harvested. to facilitate the receipt of lobster landing In proposing electronic Federal Response: The Commission’s plan data. lobster dealer reporting, NMFS balances recommends that the dealer provide the Response: Maine’s industry outreach the relatively small additional burden statistical area where the lobster were to establish the cooperation and trust against the utility gained by the harvested. NMFS has considered but needed to acquire this important data is proposed action. First, there is great rejected this recommendation and, at laudable, as is the commitment of the utility for managers having access to, this time, does not propose that Federal lobster industry to provide invaluable and thus having their decisions guided dealers provide data on where the fishery-dependent data for management by, up-to-date harvest information. lobster they purchase were harvested. purposes. This relationship embodies Electronic reporting allows for far more NMFS is aware that some lobster dealers the concept of cooperative management speedy collection of data than can be in Maine acquire lobster without that is vital to the management accomplished through a paper reporting interacting directly with the harvester as framework for the lobster fishery. It is system. The submission of paper reports lobster are collected by the dealers from not clear, however, how a Federal is cumbersome and the data are not the harvesters’ lobster cars. NMFS reporting requirement would undermine consistently loaded by the states into believes that lobster harvesting industry cooperation at the state level. the SAFIS system in a timely manner. information is best provided by the Integration of an electronic reporting Some states require trip-level dealer harvester, not the dealer. program may enhance the relationship reports be submitted on a monthly basis Comment 3: One lobster cooperative between industry and public agencies at which time, state employees enter in manager commented that dealer by reducing the time and costs of both the data. Consequently, the data may reporting for lobster is not necessary providing and acquiring the data over not reach the SAFIS system until six since lobster is not a quota-managed time. weeks or more after a particular lobster species. NMFS realizes that although a Federal fishing trip which could hamper Response: Although the lobster electronic dealer reporting requirement fisheries management and assessment fishery is not managed by a quota would only impact a minority of lobster efforts. Conversely, under the proposed system, the benefits of consistent dealers (estimated to be 29 percent of all electronic reporting process, once fishery-dependent data in effectively Federal lobster dealers), a large portion received, the data is already in the managing the resource cannot be of the 29 percent come from Maine (88 system, with no data entry or handling overstated. The lobster fishery is the of the 148 non-reporting Federal lobster of paper reports needed. Some states most economically lucrative in the dealers are based in Maine, based on may even eliminate their paper-based Northwest Atlantic, with ex-vessel NMFS permit data). At the same time, reporting requirements for those state revenues totaling nearly $395 million in 36 dealers in Maine are successfully dealers who would be required under a 2006, sustaining numerous fishing reporting on an electronic basis. Federal mandatory reporting program to communities. Yet, only 61 percent of However, as the largest lobster report to NMFS on an electronic basis, Federal lobster harvesters and only 71 harvesting state by far, Maine harvest although such an outcome is percent of Federal lobster dealers data is critical to ensure the responsible speculative. provide landings data to NMFS. The management of the fishery. Second, NMFS believes that data most recent peer-reviewed lobster stock It is evident, both anecdotally and received through different systems can assessment indicated that improvements from some of the comments received undermine the integrity and usefulness to the quality and quantity of fishery- that some dealers, especially in more of the data. NMFS finds it advantageous dependent data, including dealer data, remote areas, may not use computers as for its data to be collected in consistent are needed to facilitate the assessment part of their business operations. fashion, not only for administrative of the lobster stocks. In the absence of Therefore, it is assumed that the State of efficiencies (NMFS already has a a mandatory Federal harvester reporting Maine and other states allow dealers the successful and tested electronic program NMFS is proposing to act on option of submitting either paper or reporting system in place for other the Commission’s recommendation to electronic reports to maintain current species), but for the statistical integrity implement a mandatory dealer reporting business practices and avoid the start-

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up and maintenance costs associated of limited access permits, and not further impact lobster vessels since with acquiring the technological means timeliness of electronic dealer reports they are already subject to the new to conduct business in an electronic represent additional benefits associated maximum sizes under state regulations. format. For the purposes of this with this proposed electronic dealer NMFS has proposed to implement the proposed rulemaking, NMFS estimates reporting action. NMFS also analyzed recommended maximum sizes for Area that the initial costs to dealers would be an option to allow dealers one year to 2, Area 3, Area 4, Area 5 and Area 6 about $580 for an adequate computer acquire the means necessary to provide consistent with the Commission’s plan and approximately $652 annually to electronic reports, however, it appears to diminish confusion that could occur support Internet access for those dealers that this approach would merely defer with differing state and Federal that currently do not have a computer the costs associated with acquiring the regulations in these areas and to support or Internet service. The potential impact necessary technology to the following the intent of these measures to provide that the cost of acquiring a computer year, with savings limited to the additional broodstock protection as and maintaining Internet access would uncommitted costs of Internet service. advised through the most recent have on affected Federal dealer business In general, the proposed measures are American lobster stock assessment peer income is uncertain. However, potential based upon the lobster ISFMP that was review process. Consistent with this impacts to lobster dealers with no other created and overseen by the states. conservation premise, NMFS is Federal permits could be assumed to be Further, the measures are the result of proposing to extend the Area 3 similar to Federal dealers who are addenda that were unanimously maximum size requirement to the Outer currently subject to mandatory reporting approved by the states, including the Cape Area. The intent of this proposed whose business is solely or primarily State of Maine, and are consistent with action would be to provide further comprised of lobster sales. Under this regulations already in place at the state protection for lobster broodstock in this assumption, the estimated first-year cost level. area which is known to be a corridor for of purchasing equipment and Internet Comment 5: A commercial lobster lobster moving between inshore and access would represent 0.47 percent of fishing industry association commented offshore areas and between stock and gross net sales assuming a 40 percent in favor of the proposed maximum size management areas. In other words, there markup (based on a NMFS economic and v-notching requirements as is the potential to undermine the analysis conducted on lobster fishery described in the ANPR. maximum size broodstock protection Response: NMFS agrees and believes transactions) and median purchases of benefits of these proposed measures if that the implementation of the proposed 134,000 pounds (60,909 kg) with net lobster are protected in one area (i.e., measures would be compatible with the gross sales valued at $245,000 during caught, but released back to the sea), Commission’s recommendations for 2007. These estimates are based on only to have that lobster caught and Federal action and would reduce dealer reports for all Federal lobster kept while transiting another area. In confusion on the part of the participants permit holders who were subject to addition, at-sea enforcement would be and regulatory agencies, and facilitate mandatory reporting during 2007. At significantly enhanced if the proposed these values, the annual cost of enforcement by aligning state and Federal lobster management measures. broodstock measures were implemented maintaining Internet access would be in all LCMAs. 0.27 percent of net gross sales. The Additionally, by expanding the scope of expected costs would be lower for any this action to include the Outer Cape The commentator has asked that the dealer who already has Internet access LCMA under the maximum size and v- economic impacts of this proposed and a computer meeting the minimum notching requirements as proposed, action to the non-trap sector be specifications. Further, the computer some unknown level of protection to addressed. Given previous state action and Internet service, having been transient lobster moving among to adopt the new maximum size purchased, would have great utility and different management areas may be requirements with the exception of the application to improve other aspects of realized. Further, this action could Outer Cape Area, the proposed Federal the dealer’s business in ways not reduce the potential for more directed action would only impact non-trap associated with data reporting. fishing effort into the Outer Cape LCMA lobster harvest of lobster greater than 6 Put another way, based on the that could occur if that area remained 3/4 inches (17.15 cm) taken from the assumed markup of 40 percent, dealers the only LCMA not governed by a Outer Cape Area. Based on NMFS would receive $1.83 per pound over the maximum size requirement and bound observer data, approximately 5.7 cost of purchasing lobster from to a less restrictive definition of a legal percent of the lobster taken by the non- harvesters. This translates into sales of v-notch . trap fleet in Area 521, used as a proxy 673 pounds (305.3 kg) of lobster to cover Comment 6: A commercial fishing for the Outer Cape Area, exceeded 63⁄4 the cost of purchasing equipment and industry group whose membership inches (17.15 cm). Based on this Internet access in year 1 and 356 includes vessels participating in the information and in consideration of pounds (161.8 kg) of lobster sales to non-trap lobster fishery sector wrote to average lobster price, NMFS estimates cover the cost of Internet access on an oppose the proposed maximum size that the three-year average value of ongoing basis. requirements in the ANPR. The reduced lobster landings for non-trap Electronic dealer reporting, as commentator adds that the non-trap vessels fishing in the Outer Cape Area proposed in this regulatory action, sector has a comparatively negligible would range from less than $1 to under despite the initial costs, could save time impact on lobster mortality although the $1,000 annually. The estimated median and money for dealers affected by this lobster bycatch of this sector provides loss of foregone lobster value would be requirement. Additionally, it has the an essential contribution to the about $117 annually per affected vessel. potential to save time for state agencies groundfish fleet. The commentator In terms of impacts on total fishing now devoting staff to hand-enter these requests that NMFS justify the revenue for affected non-trap vessels, paper reports for submission into the biological need for this restriction as these values translate into losses ranging SAFIS system. In addition to the well as the economic analysis of its from less than 0.01 percent to 1.2 potential benefits to industry impacts. percent. Therefore, the relative change participants, reporting consistency with Response: With the exception of the in total fishing income is much less than all other Federal dealers in possession Outer Cape Area, NMFS action would the expected change in Outer Cape Area

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landings since non-trap vessels may fish ISFMP that was created and is overseen proposed rule. A summary of the IRFA for lobster in other areas and because by the states. The proposed measures follows: they earn the majority of their fishing are the result of addenda that were The proposed (preferred) action income from species other than lobster. unanimously approved by the states, would implement a mandatory However, a survey of lobster vessels have been recommended by the states electronic Federal lobster dealer indicates that increased fuel costs have through the Commission, for Federal reporting requirement. In addition, it caused a reduction in the profit margin adoption, and are in place at the state would revise the current lobster for some fishing businesses. In the Outer level. Consequently, NMFS has maximum carapace length restrictions Cape Area the added effect of reduced consulted with the states in the creation in Area 4 and Area 5 and establish a revenue potential could compound the of the ISFMP which makes maximum size in Areas 2, 3, and 6. economic stress on the financial recommendations for Federal action. Beyond the scope of the ISFMP, the viability of lobster businesses operating Additionally, these proposed proposed Federal action would expand in the area. regulations do not pre-empt state law the Area 3 maximum size requirement Comment 7: A representative of a and do nothing to directly regulate the to the Outer Cape Area wherein the recreational diving club wrote to states. Federal regulations do not currently express concerns over the passage of This proposed rule contains a limit lobster harvest based on a Addendum XI wherein the Commission collection of information requirement maximum carapace length. adopted the revised maximum sizes to subject to review and approval by the Additionally, it would include the include both male and female lobster. Office of Management and Budget Outer Cape Area under the more This group submitted a proposal before (OMB) under the Paperwork Reduction restrictive 1/8–inch (0.32 cm) v-notch the Commission’s Lobster Management Act (PRA). This requirement has been requirement. Board after adoption of Addendum XI to submitted to OMB for approval. Public The proposed management measures request the recreational take of one reporting burden for the Mandatory would affect small entities engaged in oversized lobster per trip by divers. Federal Lobster Dealer Electronic several different aspects of the lobster Although discussed at several Board Reporting requirement is estimated to fishery. The affected entities include meetings, both prior to and after average four minutes per response, lobster dealers, party/charter vessel approval of Addendum XI, the proposal including the time for reviewing operators, and commercial fishers using was not approved by the Board. instructions, searching existing data trap and non-trap gears. The proposed Response: Although NMFS sources, gathering and maintaining the action would implement a mandatory acknowledges that the proposed rule data needed, and completing and electronic reporting program for Federal might have some impact on recreational reviewing the collection information. lobster dealers, a maximum carapace divers seeking so-called ‘‘trophy sized’’ Public comment is sought regarding: length limitation and a change in the lobster, NMFS believes that, on balance, whether this proposed collection of definition of a standard v-notched applying maximum sizes consistently to information is necessary for the proper lobster. Specifically, the latter two male and female lobster is prudent. As performance of the functions of the measures, intended for lobster a preliminary matter, maximum size agency, including whether the broodstock protection, would impact restrictions are known to protect larger information shall have practical utility; Federal vessels that fish in the Outer lobsters which, according to the best the accuracy of the burden estimate; Cape Area. available scientific information, are ways to enhance the quality, utility and more prolific breeders. Further, clarity of the information to be Economic Impacts of the Proposed Rule application of the standard to both male collected; and ways to minimize the on Small Entities burden of the collection of information, and female lobsters would make the Mandatory Federal Lobster Dealer including through the use of automated regulation more consistent, Electronic Reporting understandable, and enforceable. collection techniques or other forms of Additionally, the maximum size information technology. Send comments Federal lobster dealers are the entity restriction of 51⁄4 inches (13.34 cm) on these or any other aspects of the that would be most affected by this would still allow for the capture of large collection of information to the State, proposed requirement. According to the lobsters and NMFS has received no Federal and Constituent Programs Office Small Business Administration (SBA), information to suggest that divers at the ADDRESSES above, and by e-mail lobster dealers are considered small currently diving for oversized lobster to [email protected] or fax to entities when they employ less than 100 would not dive for lobsters in excess of (202) 395–7285. people. NMFS does not collect 5 inches (12.7 cm) which would still Notwithstanding any other provision employment data from Federally- remain legal under this proposed rule. of the law, no person is required to permitted lobster dealers in the Regardless of Federal action, respond to, and no person shall be Northeast region. However, based on recreational divers are already bound by subject to penalty for failure to comply review of data reported in the U.S. the proposed maximum size revisions with, a collection of information subject Census Bureau’s County Business by virtue of the states having approved to the requirements of the PRA, unless Patterns it is estimated that all regulated the restrictions of the Commission’s that collection of information displays a entities that specialize in lobster Addendum XI. currently valid OMB control number. wholesale trade, as well as those entities NMFS prepared an Initial Regulatory that may not specialize in the lobster Classification Flexibility Analysis (IRFA) as required trade yet would be required to comply This proposed rule has been by section 603 of the Regulatory with the proposed action, are presumed determined to be not significant for the Flexibility Act (RFA). The IRFA to be small entities for purposes of the purposes of Executive Order (E.O.) describes the economic impact this Regulatory Flexibility Act (RFA). 12866. proposed rule, if adopted, would have The proposed action would require all This proposed rule does not contain on small entities. A description of the federally-permitted lobster dealers to policies with Federalism implications as action, the reason for consideration, and report all seafood purchases, including defined in E.O. 13132. The proposed the legal basis are contained in the lobster, through an electronic reporting measures are based upon the lobster SUMMARY section of the preamble in this system. This action would only affect

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regulated lobster dealers who are not would be limited to the Federal also took recreational lobster fishing already required report by virtue of commercial lobster fishing vessels and trips only within the Mid-Atlantic area. holding at least one other Federal dealer party/charter dive vessels that fish, or None took a for-hire trip in the Outer permit requiring mandatory reporting. are permitted to fish, in the Outer Cape Cape Area. During 2007 there were 511 lobster Area. The Outer Cape Area has been These data suggest that participating dealers issued a Federal permit to characterized as fishing on a population for-hire lobster permit holders would purchase lobster. Of these dealers the of transient lobsters migrating between not be affected by the proposed action majority (71 percent) were already inshore and offshore areas. in the Outer Cape Area although these required to report leaving 148 regulated Party/Charter Vessels. Party/Charter permit holders may have been affected small entities that would be required to operators are classified with businesses by action already taken by individual comply with the proposed action. that offer sightseeing and excursion states. While the magnitude of any To comply with the electronic services where the vessel departs and impact associated with state action is reporting requirements, dealers would returns to the same location within the uncertain, it is likely to have been need a personal computer and Internet same day. Relevant to this proposed relatively small. In the areas where service. The required specifications for action, these businesses include party/ recreational lobster fishing was reported the personal computer are such that any charter recreational fishing vessels (corresponding to Area 4 and/or 5) a recently purchased computer, and most which offer SCUBA divers recreational maximum size for female lobsters has older computers would meet the opportunities to harvest lobsters for already been in place for several years. minimum specifications. For this personal use. The SBA size standard for Despite the state action and proposed reason, any dealer that currently owns this sector is $7 million in gross sales. Federal action to reduce the maximum a computer would not likely be required Although sales data are not available, size from 51⁄2 inches (13.97 cm) to 51⁄4 to purchase new equipment. The party/charter operators in the lobster inches (13.34 cm) in Area 5 and expand number of regulated lobster dealers who fishery tend to be small in size and do it to provide additional protection for do not now own a computer is uncertain not carry a large number of passengers male lobsters in Areas 4 and 5, these but is expected to be low. Those who on any given trip. For these reasons it areas represent the southern terminus of already have Internet access and a is expected that all regulated party/ the lobster resource. Therefore, computer would not have any specific charter operators holding a Federal eliminating the exemption for a trophy costs associated with this new reporting lobster permit would be classified as a lobster would have little impact on the requirement. It is estimated that the small entity for purposes of the RFA. All recreational fishery since the encounter average start-up costs for those lobster Federal lobster party/charter permit rate with lobsters of that size is expected dealers who do not have a computer holders are already required to abide by to be very low. would be about $580 to purchase a all state regulations under the most Federal Commercial Lobster Vessels. personal computer and monitor that restrictive rule of the ISFMP. This The SBA size standard for commercial would meet or exceed the specifications means that the proposed action would fishing businesses is $4 million in gross needed to participate in the electronic only affect party/charter operators that sales. According to dealer records, no dealer reporting program. Preliminary take passengers for hire in the Outer single lobster vessel would exceed $4 estimates of additional costs of about Cape Area since this is the only area in million in gross sales. Therefore, all $652 per year for Internet access would the proposed Federal action not operating units in the commercial bring the total start-up costs to included for a maximum size or a more lobster fishery are considered small approximately $1,232, with annual costs restrictive v-notch in the ISFMP and entities for purposes of analysis. The for Internet access continuing annually. therefore, not under such restrictions by economic impacts of the change in The unknown number of dealers any state. maximum size in the Outer Cape Area impacted by the proposed dealer During 2007 there were a total of 31 are uncertain since all vessels are not reporting program, whom already own a Federal permit holders with a party/ required to report their landings to computer but are not connected to the charter lobster permit. Of these vessels NMFS. Survey data collected during Internet, would assume the estimated all but one held at least one other 2005 by researchers at the Gulf of Maine annual fees for this service at about Federal party/charter permit (for Research Institute and made available to $652 annually. Based on data from another species), while the majority (24) NMFS included information on lobster dealers who are currently required to held four or more other Federal party/ business profitability for vessels report, these costs were estimated to be charter permits in addition to the lobster operating in Areas 1, 2, and 3. Operators 0.47 percent of gross net sales (i.e. sales permit. These data indicate nearly all in the Outer Cape Area were not less the cost of purchasing lobster) in lobster party/charter permit holders specifically sampled. However, it is the first year for the one-time cost of have at least one other Federal permit likely that these entities are of similar purchasing a computer and the first year requiring mandatory reporting. scale to operators that were sampled of Internet service. Ongoing costs were Available logbook (VTR) data show that and fish on a lobster stock that bear estimated to represent 0.27 percent of only 3 of the 31 lobster party/charter some similarities to operators in Area 1 gross net sales. permit holders reported taking although the size composition of catch passengers for hire during trips when tends to be larger than would be the Changes to Maximum Carapace Length lobster were kept during the 2007 case in Area 1. Subject to these caveats, Requirements and Revision to V-Notch fishing year. Of the trips that did report it was assumed that the cost and Definition landing lobsters none took place within earnings profile for Area 1 survey Since the states have already NMFS statistical area 521, used a proxy participants would be a suitable proxy implemented the maximum size and v- for the Outer Cape Area. In fact, all for- for financial performance of Outer Cape notch requirements for the affected hire recreational trips took place in Area trap participants. areas, with the exception of the Outer statistical areas in the Mid-Atlantic The survey data indicate that the Cape Area as proposed in this region. Although the number of majority of Area 1 lobster businesses rulemaking action, the small entities participating for-hire vessels was larger were able to cover operating costs with impacted by the maximum size and v- in Fishing Year (FY) 2005 (6 vessels) gross sales. However, net earnings for notch provisions proposed herein and FY 2006 (7 vessels), these vessels the majority of businesses were below

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median personal income for the New revenue these estimated revenue temporary relief to affected regulated England region and only about 20 impacts represent between 0.01 percent entities, but would only put off the cost percent of lobster businesses earned a and 1.2 percent of total fishing revenue of coming into compliance with the positive return to invested capital. Since for participating regulated non-trap gear proposed action for one year. Consistent 2005, fuel costs have more than doubled small entities. with the proposed action, it would cutting average net return by about 30 The added economic impact of the allow for the receipt of all trip-level percent; this is before taking into change in v-notch definition across all lobster data by all Federal lobster account the opportunity cost of the areas is highly uncertain. Although this dealers in a consistent and more timely owner’s labor or capital. Thus, profit change would result in an unknown fashion. However, it would allow the margins have shrunk significantly since level of reduced opportunities to retain industry more time to comply with the 2005 and even small changes in revenue legal lobsters it seems likely that this requirements. It would postpone the streams could place lobster businesses additional impact would have less start-up and maintenance costs in financial risk. However, as the impact on non-trap than trap vessels associated with the purchase of a following analysis describes, few vessels since non-trap vessels earn only a computer ($580) in cases where the rely exclusively on the Outer Cape Area portion of total fishing revenue from dealer does not currently own one, and for lobster fishing revenue. Further, only lobsters. The added effect on trap would postpone the costs of Internet a small percentage of the catch in the vessels is difficult to assess, but would service ($652 per year), as applicable. trap sector is expected to be impacted reduce potential revenue in addition to Maximum Carapace Length Measures by the proposed measures. that which may be associated with Trap Gear Vessels. The proposed either changes in existing maximum As with the dealer reporting Federal action would directly affect size or implementation of new requirement, NMFS analyzed a no only those Federal lobster vessels that maximum size regulations. Available action alternative and the Commission’s selected the Outer Cape Area. For the sea sampling data from the alternative in addition to the proposed 2007 fishing year, 184 Federal lobster Commonwealth of Massachusetts alternative selected for this rulemaking trap vessels selected the Outer Cape as indicate that between 2 percent and 4 action. Essentially, all Federal permit one of the potential trap fishing areas. percent of females encountered in the holders possess either a landing permit Federal Fisheries Observer data suggest, Outer Cape Area were v-notched. A or lobster fishing license from a state of in consideration of the terminal substantial portion of the Outer Cape landing. Under the Federal lobster maximum size proposed in the Area legal harvest is comprised of regulations (50 CFR part 697), Federal preferred alternative of 6 inches (17.15 females (64 percent), an unknown lobster vessels are subject to the most cm), trap vessels operating in this area proportion of which would be illegal restrictive of either state or Federal would expect a reduction in catch of under the preferred alternative. regulations, regardless of where the approximately 0.5 percent. Note, vessels fish. Therefore, in the absence of however, that a price premium is paid Economic Impacts of Non-Preferred Federal rules that mirror revised state for larger lobsters such that the realized Alternatives to the Proposed Action regulations based on the Commission’s plan, Federal vessels will be held to the economic impact on lobster fishing Mandatory Federal Dealer Electronic new state regulations for the respective businesses is likely to be proportionally Reporting larger than the expected change in lobster management areas, even if catch. NMFS analyzed two alternatives in fishing in Federal waters. So, the impact Non-Trap Gear Vessels. Based on a addition to the proposed alternative for is, theoretically, the same to Federal three-year average (2005–2007) overall this action: a no action alternative and vessels and to the resource, regardless of dependence on lobster for non-trap a one-year delay in the implementation whether the no action alternative or the vessels ranged from 0.03 percent to 30.6 of mandatory lobster dealer electronic Commission’s alternative is selected, percent in terms of annual value and reporting. With the no action assuming that states remain in from 0.01 percent to 10.6 percent in alternative, there would be no expected compliance with the ISFMP. However, volume. Few vessels relied exclusively economic impacts to Federal lobster in choosing the no action alternative, on the Outer Cape Area for lobster dealers. Those who are not required to differences in the state and Federal fishing revenue. Using statistical area report under the current Federal regulations across multiple management 521 as a proxy for the Outer Cape during requirements would not be required to areas could cause some confusion the 2005–2007 period, dependence on report lobster purchases to NMFS and among the industry and managers and lobster in value ranged from 0.01 would not suffer any associated may inhibit effective enforcement of percent to 19.4 percent, averaging 1.4 economic impacts. Specifically, 148 fisheries regulations. This could occur percent of overall value. In volume, Federal lobster dealers would not be since, without complementary Federal lobster harvested from area 521 ranged required to submit electronic trip-level action, nearly all the lobster from 0.002 percent to 5.7 percent, reports to NMFS on a weekly basis. This management areas within the scope of averaging 0.4 percent of overall volume. could impede the availability of an up- this action would have inconsistent The maximum expected annual to-date, comprehensive data set of trip- Federal and state maximum size economic impact of the 6-inch (17.15– level lobster landings from Federal requirements within each area. cm) maximum size in the Outer Cape dealers on a coastwide basis. NMFS Conversely, implementation of the Area on non-trap vessels is estimated to believes that the optimal situation from Commission recommendations, the be about $1,000, while the median a fishery monitoring and data second alternative that NMFS analyzed annual impact was estimated to be $117 management perspective would be one an has rejected in favor of the proposed per vessel. These values are reflective of wherein all Federal dealers report measures, would negate any the relatively low dependence on the electronically to NMFS, making this inconsistencies between state and Outer Cape Area for lobster fishing trip-level data available in a single Federal regulations. With the revenue and the low encounter rate format on a weekly basis. Commission’s alternative, the industry suggested by observer data of lobsters If the one-year delay in would not be impacted since they are above the 6-inch (17.15 cm) proposed implementation is selected, this already complying with these measures maximum size. In terms of total fishing alternative would provide some under state law. Under either of these

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rejected alternatives, Outer Cape lobster Dated: October 1, 2008. reporting requirement; date(s) of vessels would not be impacted and James W. Balsiger, purchases and receipts; units of measure could, with some exceptions, harvest Acting Assistant Administrator for Fisheries, and amount by species (by market lobster in the Outer Cape Area without National Marine Fisheries Service. category, if applicable); price per unit by regard to maximum carapace lengths. For the reasons set out in the species (by market category, if preamble, 50 CFR chapter VI, part 697, applicable); port landed; disposition of Revision to V-notch Definition is proposed to be amended as follows: the seafood product; and any other information deemed necessary by the The consequences associated with the PART 697—ATLANTIC COASTAL Regional Administrator. If no fish are Federal implementation of the v-notch FISHERIES COOPERATIVE purchased or received during a definition as recommended in the MANAGEMENT reporting week, a report so stating must Commission’s alternative and set forth be submitted. in the respective state regulations are 1. The authority citation for part 697 (ii) Exceptions. The following the same, in most respects, as no continues to read as follows: exceptions apply to reporting Federal action. The measures adopted Authority: 16 U.S.C. 5101 et seq. requirements for dealers permitted by the states would impact the Federal 2. In § 697.2(a), the definition for under this part: (A) Inshore Exempted Species, as permit holders since they are more ‘‘Standard v-shaped notch’’ is revised to defined in § 648.2 of this chapter, are restrictive than the current Federal read as follows: regulations. Implementing these not required to be reported under this measures at the Federal level would not § 697.2 Definitions. part; subject Federal lobster vessels to any (a) * * * (B) When purchasing or receiving fish from a vessel landing in a port located further economic burden since they * * * * * would already be subject to these outside of the Northeast Region (Maine, Standard V-shaped notch means a New Hampshire, Massachusetts, restrictions by standing state laws in the straight-sided triangular cut, with or Connecticut, Rhode Island, New York, 1 absence of Federal action. However, without setal hairs, at least ⁄8 inch (0.32 New Jersey, Pennsylvania, Maryland, there are benefits to Federal action in cm) in depth and tapering to a point. Delaware, Virginia and North Carolina), implementing the Commission’s * * * * * only purchases or receipts of species recommended measures compared to 3. In § 697.6, paragraphs (n) through managed by the Northeast Region under the no action alternative because (s) are added to read as follows: this part (American lobster), and part consistent state and Federal regulations 648 of this chapter, must be reported. § 697.6 Dealer permits. would limit confusion as to the Other reporting requirements may apply enforceable standards among * * * * * to those species not managed by the jurisdictions and management areas and (n) Lobster dealer recordkeeping and Northeast Region, which are not affected would facilitate the enforcement of reporting requirements—(1) Detailed by the provision; and these measures and foster their utility in report. All Federally-permitted lobster (C) Dealers issued a permit for augmenting egg production through dealers must submit to the Regional Atlantic bluefin tuna under part 635 of broodstock protection. Therefore, on Administrator or to the official designee this chapter are not required to report balance, the Commission’s alternative a detailed report of all fish purchased or their purchases or receipts of Atlantic received for commercial purposes, other would provide additional benefits to bluefin tuna under this part. Other than solely for transport on land, within industry participants and would allow reporting requirements, as specified in the time periods specified in paragraph for more effective enforcement than the § 635.5 of this chapter, apply to the (q) of this section, or as specified in no-action alternative. receipt of Atlantic bluefin tuna. § 648.7(f) of this chapter, whichever is (2) System requirements. All persons Socio-economic impacts would not be most restrictive, by one of the available required to submit reports under expected by choosing to maintain the electronic reporting mechanisms paragraph (n)(1) of this section are current Federal v-notching standards or approved by NMFS, unless otherwise required to have the capability to by implementing the Commission’s directed by the Regional Administrator. transmit data via the Internet. To ensure recommendations which would not The following information, and any compatibility with the reporting system include a revised v-notch for the Outer other information required by the and database, dealers are required to Cape Area. Federal vessels will be Regional Administrator, must be utilize a personal computer, in working subject to the more restrictive v-notch provided in each report: condition, that meets the minimum measures in place at the state level even (i) Required information. All dealers specifications identified by NMFS. The if NMFS maintains the status quo. Outer issued a Federal lobster dealer permit affected public will be notified of the Cape lobster fishers would not be under this part must provide the minimum specifications via a letter to impacted by a more restrictive v-notch following information, as well as any all Federal lobster dealer permit under either non-preferred alternative additional information as applicable holders. and could continue to harvest lobster under § 648.7(a)(1)(i) of this chapter: (3) Annual report. All persons issued Dealer name; dealer permit number; a permit under this part are required to under the current 1⁄4-inch (0.64–cm) v- name and permit number or name and submit the following information on an notch requirement, while vessels in hull number (USCG documentation annual basis, on forms supplied by the other management areas would remain 1 number or state registration number, Regional Administrator: All dealers and subject to the stricter ⁄8–inch (0.32–cm) whichever is applicable) of vessel(s) processors issued a permit under this v-notch standard. from which fish are purchased or part must complete all sections of the List of Subjects in 50 CFR Part 697 received; trip identifier for each trip Annual Processed Products Report for from which fish are purchased or all species that were processed during Fisheries, Fishing. received from a commercial fishing the previous year. Reports must be vessel permitted under part 648 of this submitted to the address supplied by chapter with a mandatory vessel trip the Regional Administrator.

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(o) Inspection. All persons required to (4) Annual reports for a calendar year Areas 2, 4, 5, and 6 is 51⁄4 inches (13.34 submit reports under this section, upon must be postmarked or received by cm). the request of an authorized officer, or February 10 of the following year. (5) Effective July 1, 2009, the by an employee of NMFS designated by Contact the Regional Administrator (see maximum carapace length for all the Regional Administrator to make Table 1 to § 600.502) for the address of American lobster harvested in or from such inspections, must make NMFS Statistics. EEZ Offshore Management Area 3 or the immediately available for inspection (r) Additional data and sampling. Outer Cape Lobster Management Area is Federally permitted dealers must allow copies of the required reports and the 67⁄8 inches (17.46 cm). records upon which the reports are or access to their premises and make available to an official designee or the (6) Effective July 1, 2009, the will be based. maximum carapace length for all (p) Record retention. Records upon Regional Administrator any fish American lobster landed, harvested, or which trip-level reports are based must purchased from vessels for the possessed by vessels issued a Federal be retained and be available for collection of biological data. Such data limited access American lobster permit immediate review for a total of 3 years include, but are not limited to, length fishing in or electing to fish in EEZ after the date of the last entry on the measurements of fish and the collection Offshore Management Area 3 or the report. Dealers must retain the required of age structures such as otoliths or Outer Cape Lobster Management Area is records at their principal place of scales. 67⁄8 inches (17.46 cm). business. (s) Additional dealer reporting (q) Submitting dealer reports. (1) requirements. (1) All persons issued a (7) Effective July 1, 2010, the Detailed dealer reports required by lobster dealer permit under this part are maximum carapace length for all paragraph (n)(1)(i) of this section must subject to the reporting requirements set American lobster harvested in or from be received by midnight of the first forth in paragraph (n) of this section, as EEZ Offshore Management Area 3 or the Tuesday following the end of the well as §§ 648.6 and 648.7 of this Outer Cape Lobster Management Area is 3 reporting week. If no fish are purchased chapter, whichever is most restrictive. 6 ⁄4 inches (17.15 cm). or received during a reporting week, the (2) [Reserved] (8) Effective July 1, 2010, the report so stating required under 4. In § 697.20, paragraphs (b)(3) maximum carapace length for all paragraph (n)(1)(i) of this section must through (b)(7), and paragraph (g)(3) are American lobster landed, harvested, or revised, and paragraph (b)(8) is added, be received by midnight of the first possessed by vessels issued a Federal to read as follows: Tuesday following the end of the limited access American lobster permit reporting week. § 697.20 Size, harvesting and landing fishing in or electing to fish in EEZ (2) Dealers who want to make requirements. Offshore Management Area 3 or the corrections to their trip-level reports via * * * * * Outer Cape Lobster Management Area is the electronic editing features may do so (b) * * * 63⁄4 inches (17.15 cm). for up to 3 business days following (3) Effective July 1, 2009, the * * * * * submission of the initial report. If a maximum carapace length for all (g) * * * correction is needed more than 3 American lobster harvested in or from (3) No person may possess any female business days following the submission one or more of the EEZ Nearshore lobster possessing a standard v-shaped of the initial trip-level report, the dealer Management Areas 2, 4, 5, and 6 is 51⁄4 notch harvested in or from the EEZ must contact NMFS directly to request inches (13.34 cm). an extension of time to make the (4) Effective July 1, 2009, the Nearshore Management Area 2, 4, 5, 6, correction. maximum carapace length for all and the Outer Cape Lobster (3) Price and disposition information American lobster landed, harvested, or Management Area or the EEZ Offshore may be submitted after the initial possessed by vessels issued a Federal Management Area 3. detailed report, but must be received limited access American lobster permit * * * * * within 16 days of the end of the fishing in or electing to fish in one or [FR Doc. E8–23568 Filed 10–3–08; 8:45 am] reporting week. more of EEZ Nearshore Management BILLING CODE 3510–22–S

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Notices Federal Register Vol. 73, No. 194

Monday, October 6, 2008

This section of the FEDERAL REGISTER ARCHITECT OF THE CAPITOL small business concerns is also contains documents other than rules or consistent with the policies and proposed rules that are applicable to the Notice of Proposed Small Business procedures of FAR Part 13, and this public. Notices of hearings and investigations, Set-Aside Program policy may adopt or incorporate those committee meetings, agency decisions and FAR Part 13 policies and procedures as rulings, delegations of authority, filing of AGENCY: Architect of the Capitol. appropriate. We also will apply this petitions and applications and agency SUMMARY: The Architect of the Capitol policy only when there is reasonable statements of organization and functions are invites comments on the proposed small expectation that offers will be received examples of documents appearing in this business set-aside program for use with from a least two responsible small section. small purchases awarded by the business concerns. Architect of the Capitol. Adoption of any existing procedure DATES: DEPARTMENT OF AGRICULTURE Interested persons are invited to should not infer application of the submit comments on or before Small Business Act, Administrative Forest Service November 5, 2008. Procedure Act, nor any of its FOR FURTHER INFORMATION CONTACT: Lisa implementing regulations upon the Eastern Washington Cascades Russell (Procurement Division), 202– AOC. The draft policies are available on Provincial Advisory Committee and the 226–1407, e-mail: http://www.aoc.gov/osdbu.cfm. Yakima Provincial Advisory Committee [email protected]. Comments on the policies should be Authority: 2 U.S.C. 1821 and 41 U.S.C. 5, directed to Lisa Russell at facsimile AGENCY: Forest Service, USDA. 41 U.S.C. 6a-1. 202–225–3221 or e-mail ACTION: Notice of Meeting. SUPPLEMENTARY INFORMATION: The AOC [email protected]. is interested in adopting a small Stephen T. Ayers, business set-aside program that includes SUMMARY: The Eastern Washington Acting Architect of the Capitol. many of the procedural principles Cascades Provincial Advisory [FR Doc. E8–23496 Filed 10–3–08; 8:45 am] Committee and the Yakima Provincial contained inthe Small Business Act and BILLING CODE 1182–00–M Advisory Committee will meet on as implemented in 13 CFR Part 121, 13 Thursday, October 23, 2008 at the CFR Part 124, 13 CFR Part 125, 13 CFR Okanogan-Wenatchee National Forest Part 126, and 13 CFR Part 134. This program is proposed for use in Headquarters office, 215 Melody Lane, DEPARTMENT OF COMMERCE Wenatchee, WA. This meeting will conjunction with the AOC’s existing begin at 9 a.m. and continue until 3 p.m. procurement authority for small Economic Development Administration During this meeting Provincial Advisory purchases. Committee members will share The AOC is not subject to the Notice of Petitions by Firms for information on new developments Administrative Procedure Act, however, Determination of Eligibility To Apply relating to the Northwest Forest Plan, the AOC Procurement Division seeks to for Trade Adjustment Assistance receive an update on the Access Travel solicit public comment on the new AGENCY: Economic Development Management Plan and the Recreation proposed program. The AOC’s threshold for small Administration, Department of Facilities Analysis Master Plan, and purchases is $100,000. The AOC is Commerce. offer input on the future role of the considering whether to limit each Provincial Advisory Committee. All ACTION: Notice and Opportunity for acquisition of supplies or services that Eastern Washington Cascades and Public Comment. has an anticipated dollar value greater Yakima Province Advisory Committee than $5,000 but not exceeding $100,000 Pursuant to Section 251 of the Trade meetings are open to the public. to small business concerns. Purchases Act of 1974 (19 U.S.C. 2341 et seq.), the FOR FURTHER INFORMATION CONTACT: less than $100,000 is one of the Economic Development Administration Direct questions regarding this meeting exceptions to the AOC’s full and open (EDA) has received petitions for to Becki Heath, Designated Federal competition requirement as noted under certification of eligibility to apply for Official, USDA, Okanogan-Wenatchee its procurement statute 41 U.S.C. 5 and Trade Adjustment Assistance from the National Forest, 215 Melody Lane, as revised by 41 U.S.C. 6a–1 and 2 firms listed below. EDA has initiated Wenatchee, Washington 98801, 509– U.S.C. 1821. The AOC’s policy for separate investigations to determine 664–9200. purchases of $5,000 and less is to treat whether increased imports into the them in the same manner as micro- United States of articles like or directly Dated: September 29, 2008. purchases in accordance with FAR Part competitive with those produced by Rebecca Lockett Heath, 13.2. We believe this contemplated each firm contributed importantly to the Designated Federal Official, Okanogan- policy to limit each acquisition of total or partial separation of the firm’s Wenatchee National Forest. supplies or services that has an workers, or threat thereof, and to a [FR Doc. E8–23406 Filed 10–3–08; 8:45 am] anticipated dollar value greater than decrease in sales or production of each BILLING CODE 3410–11–M $5,000 but not exceeding $100,000 to petitioning firm.

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LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT [9/1/2008 through 9/30/2008]

Date accepted Firm Address for filing Products

Reata Engineering & Machine 7822 South Wheeling , Engle- 9/19/2008 Precision machined parts and components, with specializa- Works. wood, CO 80112. tion in machine parts, special dies, machine tools, jigs and fixtures. Meta-Lite, Inc...... 93 Entin Road, Clifton, NJ 9/19/2008 Toll Booths, gates, rails, stairs, elevator enclosures, jail cells. 07014. Karthauser & Sons, Inc ...... W147 N11100 Fond Du, Ger- 9/19/2008 Cut flowers, potted plants and floral supplies. mantown, WI 53022. Eckman Lumber Company 1280 Main Road, Lehighton, 9/19/2008 Roof and floor trusses. d.b.a. Eckman Building. PA 18235. Troutman Chair Company, 134 Rocker Lane, Troutman, 9/29/2008 Rocking chairs, chairs and stools. LLC. NC 28166. The Fountainhead Group, Inc 23 Garden Street, New York, 9/17/2008 Fire pumps, lawn and garden sprayers and foggers. NY 13147. Wolfe Tool and Machine Co ... 210 Lafayette Street, PO, 9/30/2008 General job shop; pump housing; miscellaneous shafts, fix- York, PA 17405. tures; weldments; frames; mold tooling; axle shafts.

Any party having a substantial Department of its affirmative fashioned with paper covers or capes interest in these proceedings may determination of material injury to a (with or without printing) and/or request a public hearing on the matter. U.S. industry. See Steel Wire Garment nonslip features such as saddles or A written request for a hearing must be Hangers from China (Investigation No. tubes. These products may also be submitted to the Office of Performance 731–TA–1123 (Final), USITC referred to by a commercial designation, Evaluation, Room 7009, Economic Publication 4034, (September 2008) such as shirt, suit, strut, caped, or latex Development Administration, U.S. EFFECTIVE DATE: October 6, 2008. (industrial) hangers. Specifically Department of Commerce, Washington, excluded from the scope of this FOR FURTHER INFORMATION CONTACT: DC 20230, no later than ten (10) Julia investigation are wooden, plastic, and calendar days following publication of Hancock, AD/CVD Operations, Office 9, other garment hangers that are not made this notice. Please follow the procedures Import Administration, International of steel wire. The products subject to set forth in Section 315.9 of EDA’s final Trade Administration, U.S. Department this investigation are currently rule (71 FR 56704) for procedures for of Commerce, 14th Street and classified under HTSUS subheading requesting a public hearing. The Catalog Constitution Avenue NW, Washington, 7326.20.0020 and 7323.99.9060. of Federal Domestic Assistance official DC 20230; telephone: (202) 482–1394. Although the HTSUS subheading is program number and title of the SUPPLEMENTARY INFORMATION: provided for convenience and customs program under which these petitions are Background purposes, the written description of the submitted is 11.313, Trade Adjustment merchandise is dispositive. Assistance. In accordance with sections 735(d) and 777(i)(1) of the Tariff Act of 1930, Antidumping Duty Order Dated: September 30, 2008. as amended, (‘‘the Act’’), the On September 29, 2008, in accordance William P. Kittredge, Department published the final with section 735(d) of the Act, the ITC Program Officer for TAA. determination and amended final notified the Department of its final [FR Doc. E8–23535 Filed 10–3–08; 8:45 am] determination of sales at less than fair determination, pursuant to section BILLING CODE 3510–24–P value (‘‘LTFV’’) in the antidumping 735(b)(1)(A)(i) of the Act, that an investigation of steel wire garment industry in the United States is hangers from the People’s Republic of materially injured by reason of less– DEPARTMENT OF COMMERCE China (‘‘PRC’’). See Steel Wire Garment than-fair–value imports of subject International Trade Administration Hangers from the People’s Republic of merchandise from the PRC. Therefore, China: Final Determination of Sales at in accordance with section 736(a)(1) of [A–570–918] Less Than Fair Value, 73 FR 47587 the Act, the Department will direct U.S. (August 14, 2008) (‘‘Final Customs and Border Protection (‘‘CBP’’) Notice of Antidumping Duty Order: Determination’’); Steel Wire Garment to assess, upon further instruction by Steel Wire Garment Hangers from the Hangers from the People’s Republic of the Department, antidumping duties People’s Republic of China China: Amended Final Determination of equal to the amount by which the AGENCY: Import Administration, Sales at Less Than Fair Value, 73 FR normal value of the merchandise International Trade Administration, 53188 (September 15, 2008) (‘‘Amended exceeds the export price (or constructed Department of Commerce. Final Determination’’). export price) of the merchandise for all SUMMARY: Based on affirmative final relevant entries of certain steel nails Scope of the Order determinations by the Department of from the PRC. These antidumping Commerce (the ‘‘Department’’) and the The merchandise that is subject to duties will be assessed on all International Trade Commission this investigation is steel wire garment unliquidated entries of steel wire (‘‘ITC’’), the Department is issuing an hangers, fabricated from carbon steel garment hangers from the PRC entered, antidumping duty order on steel wire wire, whether or not galvanized or or withdrawn from the warehouse, for garment hangers from the People’s painted, whether or not coated with consumption on or after March 25, Republic of China (‘‘PRC’’). On latex or epoxy or similar gripping 2008, the date on which the Department September 29, 2008, the ITC notified the materials, and/or whether or not published its Preliminary

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Determination. See Preliminary Department’s Central Records Unit, (4) Environmental Engineering and Determination of Sales at Less Than Room 1117 of the main Commerce Consulting Services. Fair Value: Steel Wire Garment Hangers building, for copies of an updated list of (5) Financial Services. From the People’s Republic of China, 73 antidumping duty orders currently in (6) Process and Prevention FR 15726 (March 25, 2008) effect. Technologies. (‘‘Preliminary Determination’’). This order is published in accordance (7) Solid and Hazardous Waste Effective on the date of publication of with section 736(a) of the Act and 19 Equipment and Management. the ITC’s final affirmative injury CFR351.211. (8) Water and Wastewater Equipment determination, CBP will require, at the and Services. Dated: September 29, 2008. same time as importers would normally The Secretary of Commerce invites deposit estimated duties on this David M. Spooner, nominations to ETTAC of U.S. citizens merchandise, a cash deposit equal to the Assistant Secretary for Import who will represent U.S. environmental estimated weighted–average Administration. goods and services companies that trade antidumping duty margins as listed [FR Doc. E8–23569 Filed 10–3–08; 8:45 am] internationally, or trade associations below. See section 735(c)(3) of the Act. BILLING CODE 3510–DS–S whose members include U.S. companies The ‘‘PRC–wide’’ rate applies to all that trade internationally. Companies exporters of subject merchandise not must be at least 51 percent beneficially- DEPARTMENT OF COMMERCE specifically listed. The weighted– owned by U.S. persons. U.S.-based subsidiaries of foreign companies in average dumping margins are as follows: International Trade Administration general do not qualify for representation on the committee. STEEL WIRE GARMENT HANGERS Environmental Technologies Trade Nominees will be considered based FROM THE PRC – AMENDED DUMP- Advisory Committee (ETTAC), Request upon their ability to carry out the goals ING MARGINS for Nominations of ETTAC’s enabling legislation as further articulated in its charter. AGENCY: International Trade Weighted– ETTAC’s Charter is available on the Average Administration, Trade Development. Exporter & Producer Deposit Internet at http:// Rate SUMMARY: The Environmental www.environment.ita.doc.gov. Priority Technologies Trade Advisory will be given to a balanced Shanghai Wells Hanger Co., Ltd. 15.83 % Committee (ETTAC) was established representation in terms of point of view Shaoxing Metal Companies:. pursuant to provisions under Title IV of represented by various sectors, product Shaoxing Gangyuan Metal Man- the Jobs Through Trade Expansion Act, lines, firm sizes, and geographic areas. ufactured Co., Ltd...... 94.78 % 22. U.S.C. 2151, and under the Federal Appointments are made without Shaoxing Andrew Metal Manu- Advisory Committee Act, 5 U.S.C. App. regard to political affiliation. factured Co., Ltd.. 2. ETTAC was first chartered on May 31, Shaoxing Tongzhou Metal Man- Nominees must be U.S. citizens, ufactured Co., Ltd.. 1994. ETTAC serves as an advisory body representing U.S. environmental goods Company ‘‘X’’. to the Environmental Trade Working and services firms that trade Jiangyin Hongji Metal Products Group of the Trade Promotion internationally or provide services in Co., Ltd ...... 55.31 % Coordinating Committee (TPCC), direct support of the international Shaoxing Meideli Metal Hanger reporting directly to the Secretary of trading activities of other entities. Co., Ltd...... 55.31 % Commerce in his capacity as Chairman Self-nominations are accepted. If you Shaoxing Dingli Metal Clothes- of the TPCC. ETTAC advises on the are interested in nominating someone to horse Co., Ltd...... 55.31 % development and administration of become a member of ETTAC, please Shaoxing Liangbao Metal Manu- provide the following information (2 factured Co. Ltd...... 55.31 % policies and programs to expand United Shaoxing Zhongbao Metal Man- States exports of environmental pages maximum): ufactured Co. Ltd...... 55.31 % technologies, goods, and services and (1) Name. Shangyu Baoxiang Metal Manu- products that comply with United States (2) Title. factured Co. Ltd...... 55.31 % environmental, safety, and related (3) Work Phone; Fax; and, E-mail Zhejiang Lucky Cloud Hanger requirements. Address. (4) Company or Trade Association Co., Ltd...... 55.31 % Membership in a committee operating Name and Address including Web site Pu Jiang County Command under the Federal Advisory Committee Address. Metal Products Co., Ltd...... 55.31 % Act must be balanced in terms of Shaoxing Shunji Metal Clothes- (5) Short Bio of nominee including horse Co., Ltd...... 55.31 % economic subsector, geographic credentials and proof of U.S. Ningbo Dasheng Hanger Ind. location, and company size. Committee citizenship, and a list of citizenships to Co., Ltd...... 55.31 % members serve in a representative countries other than the U.S. Jiaxing Boyi Medical Device Co., capacity, and must be able to generally (6) Brief description of the company Ltd...... 55.31 % represent the views and interests of a or trade association and its business Yiwu Ao–Si Metal Products Co., certain subsector of the U.S. activities; company size (number of Ltd...... 55.31 % environmental industry. We are seeking Shaoxing Guochao Metallic employees and annual sales); and export senior executive-level company or markets served. Products Co., Ltd...... 55.31 % environmental technologies association PRC–Wide Rate1 ...... 187.25 % Please, do not send company or trade candidates. Members of the ETTAC association brochures or any other 1 The PRC-Wide entity includes Tianjin have experience in exporting the full information. Hongtong Metal Manufacture Co. Ltd. range of environmental technologies This information may be e-mailed to This notice constitutes the products and services including: [email protected] or faxed antidumping duty order with respect to (1) Air Pollution Control/Monitoring to the attention of Marc Lemmond at steel wire garment hangers from the PRC Equipment. 202–482–5665, and must be received pursuant to section 736(a) of the Act. (2) Analytic Services. before the deadline. Nominees selected Interested parties may contact the (3) Environmental Energy Sources. to ETTAC will be notified.

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Deadline: This request will be open China: Initiation of New Shipper DEPARTMENT OF COMMERCE until October 24, from the date of Reviews, 73 FR 12392 (March 7, 2008). publication in the Federal Register. On August 22, 2008, the Department International Trade Administration FOR FURTHER INFORMATION CONTACT: aligned the deadlines and the time [A–570–894] Marc Lemmond, Office of Energy & limits of the new shipper reviews of Environmental Industries, Room 4053, WBF with the 2007 administrative Certain Tissue Paper Products from U.S. Department of Commerce, 14th review of WBF. See Memorandum to the the People’s Republic of China: Final Street and Constitution Avenue, NW., File ‘‘Wooden Bedroom Furniture from Results and Final Rescission, in Part, Washington, DC 20230; phone 202–482– the People’s Republic of China: of Antidumping Duty Administrative 3889; fax 202–482–5665; e-mail Alignment of the 1/1/2007–12/31/2007 Review [email protected]. Annual Administrative Review and the AGENCY: Import Administration, Dated: September 30, 2008. 1/1/2007–12/31/2007 New Shipper International Trade Administration, Rachel Halpern, Review,’’ dated August 22, 2008. The Department of Commerce. Acting Director, Office of Energy and preliminary results of these reviews are SUMMARY: On April 4, 2008, the Environmental Industries. currently due no later than October 2, Department of Commerce (‘‘the [FR Doc. E8–23525 Filed 10–3–08; 8:45 am] 2008. Department’’) published the preliminary BILLING CODE 3510–DR–P results of the second administrative Extension of Time Limit of Preliminary review of the antidumping duty order Results on certain tissue paper products (‘‘tissue DEPARTMENT OF COMMERCE Section 751(a)(3)(A) of the Tariff Act paper’’) from the People’s Republic of China (‘‘PRC’’). See Certain Tissue International Trade Administration of 1930, as amended (‘‘the Act’’), requires the Department to issue Paper Products from the People’s [A–570–890] preliminary results within 245 days Republic of China: Preliminary Results after the last day of the anniversary and Partial Rescission of Antidumping Wooden Bedroom Furniture From the Duty Administrative Review, 73 FR month of an order. However, if it is not People’s Republic of China: Extension 18497 (April 4, 2008) (‘‘Preliminary practicable to complete the review of Time Limits for the Preliminary Results’’). We gave interested parties an Results of the Antidumping Duty within this time period, section opportunity to comment on the Administrative Review and New 751(a)(3)(A) of the Act allows the Preliminary Results. Based on our Shipper Reviews Department to extend the time period to analysis of the comments received, we a maximum of 365 days. Completion of have made changes to the surrogate AGENCY: Import Administration, the preliminary results of these reviews value for labor for the final results. We International Trade Administration, within the 245-day period is not find that Max Fortune Industrial Department of Commerce. practicable because the Department Limited and Max Fortune (FETDE) DATES: Effective Date: October 6, 2008. needs additional time to analyze Paper Products Co., Ltd. (collectively, FOR FURTHER INFORMATION CONTACT: Paul information pertaining to the Max Fortune), has not sold subject Stolz, AD/CVD Operations, Office 8, respondents’ sales practices, factors of merchandise at less than normal value Import Administration, International production, and corporate relationships, during the period of review (‘‘POR’’), Trade Administration, U.S. Department and to issue and review responses to March 1, 2006, through February 28, of Commerce, 14th Street and supplemental questionnaires. 2007. Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–4474. Because it is not practicable to DATES: Effective Date: October 6, 2008. complete these reviews within the time FOR FURTHER INFORMATION CONTACT: Background specified under the Act, we are fully Irene Gorelik, AD/CVD Operations, The Department of Commerce (‘‘the extending the time period for issuing Office 9, Import Administration, Department’’) published an the preliminary results of review to 365 International Trade Administration, antidumping duty order on wooden days until January 30, 2009, in U.S. Department of Commerce, 14th bedroom furniture (‘‘WBF’’) from the accordance with section 751(a)(3)(A) of Street and Constitution Avenue, NW., People’s Republic of China (‘‘PRC’’) on the Act. The final results continue to be Washington, DC 20230; telephone: (202) January 4, 2005. See Notice of Amended due 120 days after the publication of the 482–6905. Final Determination of Sales at Less preliminary results. SUPPLEMENTARY INFORMATION: Than Fair Value and Antidumping Duty This notice is published pursuant to Order: Wooden Bedroom Furniture Background sections 751(a) and 777(i) of the Act. From the People’s Republic of China, 70 We published the preliminary results FR 329 (January 4, 2005). On March 7, Dated: September 29, 2008. of the second administrative review on 2008, the Department published in the Stephen J. Claeys, April 4, 2008, in the Federal Register. Federal Register a notice of the Deputy Assistant Secretary for Import See Preliminary Results. On May 5, initiation of the antidumping duty Administration. 2008, Seaman Paper Company of administrative review of WBF from the [FR Doc. E8–23566 Filed 10–3–08; 8:45 am] Massachusetts (‘‘Petitioner’’) and Max PRC and new shipper reviews for the Fortune filed their case briefs. On May BILLING CODE 3510–DS–P period January 1, 2007 through 12, 2008, Petitioner and Max Fortune December 31, 2007. See Notice of filed rebuttal briefs. On June 30, 2008, Initiation of Administrative Review of the Department placed import entry the Antidumping Duty Order on packages obtained from U.S. Customs Wooden Bedroom Furniture From the and Border Protection (‘‘CBP’’) on the People’s Republic of China, 73 FR 12387 record of this administrative review. (March 7, 2008) and Wooden Bedroom The Department did not receive any Furniture from the People’s Republic of comments regarding the CBP entry

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packages. On July 14, 2008, the Harmonized Tariff Schedule of the companies made shipments to the Department extended the final results of United States (‘‘HTSUS’’). Subject United States of subject merchandise this administrative review. See Certain merchandise may be under one or more during the POR. Thus, in accordance Tissue Paper Products from the People’s of several different subheadings, with 19 CFR 351.213(d)(3) and Republic of China: Notice of Extension including: 4802.30; 4802.54; 4802.61; consistent with our practice, we are of Time Limit for Final Results of 4802.62; 4802.69; 4804.31.1000; rescinding this review with respect to Second Antidumping Duty 4804.31.2000; 4804.31.4020; Samsam Production Limited, Administrative Review, 73 FR 40295 4804.31.4040; 4804.31.6000; 4804.39; Guangzhou Baxi Printing Products (July 14, 2008). No parties requested a 4805.91.1090; 4805.91.5000; Limited, Guilin Samsam Paper Products hearing. 4805.91.7000; 4806.40; 4808.30; Ltd., Vietnam Quijiang Paper Co., Ltd., 4808.90; 4811.90; 4823.90; 4820.50.00; PT Grafitecindo Ciptaprima, PT Printec Analysis of Comments Received 4802.90.00; 4805.91.90; 9505.90.40. The Perkasa, PT Printec Perkasa II, PT All issues raised in the briefs are tariff classifications are provided for Sansico Utama, Foshan Sansico Co., addressed in the Memorandum to David convenience and customs purposes; Ltd., and Sansico Asia Pacific Limited. M. Spooner, Assistant Secretary for however, the written description of the Additionally, the Department is Import Administration, regarding Issues scope of this order is dispositive. rescinding the review with respect to and Decision Memorandum for the Excluded from the scope of this order Guilin Qifeng as no information was Final Results in the Second are the following tissue paper products: submitted on the record challenging our Administrative Review of Certain Tissue (1) Tissue paper products that are preliminary intent to rescind the review Paper Products from the People’s coated in wax, paraffin, or polymers, of for this company. Republic of China, dated October 1, a kind used in floral and food service 2008 (‘‘Issues and Decision applications; (2) tissue paper products Separate Rates Memorandum’’), which is hereby that have been perforated, embossed, or Max Fortune requested a separate, adopted by this notice. A list of the die-cut to the shape of a toilet seat, i.e., company-specific antidumping duty issues raised, all of which are in the disposable sanitary covers for toilet rate. In the Preliminary Results, we Issues and Decision Memorandum, is seats; (3) toilet or facial tissue stock, found that Max Fortune met the criteria attached to this notice as Appendix I. towel or napkin stock, paper of a kind for the application of a separate Parties can find a complete discussion used for household or sanitary antidumping duty rate. See Preliminary of all issues raised in the briefs and the purposes, cellulose wadding, and webs Results, 73 FR at 18500. The corresponding recommendations in this of cellulose fibers (HTSUS Department did not receive comments public memorandum, which is on file in 4803.00.20.00 and 4803.00.40.00). on this issue prior to these final results. the Central Records Unit, room 1117 of Moreover, we have not received any Partial Rescission of Administrative the Department of Commerce. In information since the Preliminary Review addition, a complete version of the Results with respect to Max Fortune that Issues and Decision Memorandum can In the Preliminary Results, the would warrant reconsideration of our be accessed directly on the Internet at Department issued a notice of intent to separate-rates determination. Therefore, http://ia.ita.doc.gov/frn/release/ rescind this administrative review with we continue to assign an individual release.html. The paper copy and respect to: (1) Samsam Production dumping margin to Max Fortune for this electronic version of the Issues and Limited, (2) Guangzhou Baxi Printing review period. Decision Memorandum are identical in Products Limited, (3) Guilin Samsam content. Paper Products Ltd., (4) Vietnam Changes Since the Preliminary Results Quijiang Paper Co., Ltd., (5) PT Based on comments received from the Scope of the Antidumping Duty Order Grafitecindo Ciptaprima, (6) PT Printec interested parties, we have revised the The tissue paper products subject to Perkasa, (7) PT Printec Perkasa II, (8) PT labor surrogate value used in Max this order are cut-to-length sheets of Sansico Utama, (9) Foshan Sansico Co., Fortune’s margin calculation. For the tissue paper having a basis weight not Ltd., and (10) Sansico Asia Pacific final results, we will continue to use exceeding 29 grams per square meter. Limited. Each of these companies regression-based wage data, but will use Tissue paper products subject to this certified that they did not export subject U.S. $1.04 as the revised wage for the order may or may not be bleached, dye- tissue paper from the PRC to the United PRC in the final results, which colored, surface-colored, glazed, surface States during the POR, which the continues to be based on the reported decorated or printed, sequined, Department corroborated by reviewing experience of several countries, but crinkled, embossed, and/or die cut. The PRC tissue paper import data applies the more recent 2007 tissue paper subject to this order is in maintained by CBP, and found no calculations, based on 2005 wage rate the form of cut-to-length sheets of tissue discrepancies with the statements made data, as published by the Department in paper with a width equal to or greater by these companies. See Preliminary May 2008. See Issues and Decision than one-half (0.5) inch. Subject tissue Results, 73 FR at 18499. Additionally, Memorandum, at Comment 4. paper may be flat or folded, and may be consistent with the Tariff Act of 1930, packaged by banding or wrapping with as amended (‘‘the Act’’) and Department Use of Facts Available paper or film, by placing in plastic or practice, we also preliminarily Sections 776(a)(1) and 776(a)(2)(B) of film bags, and/or by placing in boxes for rescinded the review with respect to the Act direct the Department to use distribution and use by the ultimate Guilin Qifeng Paper Co., Ltd. (‘‘Guilin facts available if necessary information consumer. Packages of tissue paper Qifeng’’) because the record showed no is not available on the record of an subject to this order may consist solely suspended entries of merchandise antidumping proceeding. We of tissue paper of one color and/or style, exported by Guilin Qifeng during the determined in the Preliminary Results or may contain multiple colors and/or POR. See Preliminary Results, 73 FR at that, pursuant to sections 776(a) and styles. 18500. 782(d) of the Act, Max Fortune did not The merchandise subject to this order Subsequent to the Preliminary provide certain information relevant to does not have specific classification Results, no information was submitted the Department’s analysis because it numbers assigned to them under the on the record indicating that the above failed to report ink and dye

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consumption on a color-specific basis. the date of publication of this notice in prior to liquidation of the relevant Max Fortune stated it does not maintain accordance with 19 CFR 351.224(b). entries during this review period. records for dye and ink consumption in Failure to comply with this requirement Assessment Rates the papermaking and paper printing could result in the Secretary’s stages of production on a color specific Upon issuance of the final results, the presumption that reimbursement of basis. Thus, Max Fortune could not Department will determine, and CBP antidumping duties occurred and in the report ink and dye consumption data in shall assess, antidumping duties on all subsequent assessment of double a manner requested by the Department. appropriate entries. The Department antidumping duties. As a result, we determined that it was intends to issue assessment instructions This notice also serves as the only necessary to apply facts otherwise to CBP 15 days after the date of reminder to parties subject to available to Max Fortune. Petitioner publication of the final results of administrative protective order (‘‘APO’’) argues that we should apply an adverse review. Pursuant to 19 CFR of their responsibility concerning the inference, pursuant to section 776(b) of 351.212(b)(1), we will calculate return/destruction or conversion to the Act, to Max Fortune’s calculation. importer-specific (or customer) ad judicial protective order of proprietary However, we have concluded that Max valorem duty assessment rates based on information disclosed under APO in Fortune acted to the best of its ability in the ratio of the total amount of the accordance with 19 CFR 351.305(a)(3). providing responses to the Department’s dumping margins calculated for the Failure to comply is a violation of the questionnaires. Thus, consistent with examined sales to the total entered APO. the Department’s application in the value of those same sales. We will This administrative review and this previous segment of the instant review instruct CBP to assess antidumping notice are published in accordance with and in the Preliminary Results, we will duties on all appropriate entries covered sections 751(a)(1) and 777(i)(1) of the not apply an adverse inference, but will by this review if any importer-specific Act and 19 CFR 351.221(b)(5). continue to apply the average Indian assessment rate calculated in the final results of this review is above de Dated: September 29, 2008. import values for three dye types, which David M. Spooner, are commonly used in the production of minimis. Assistant Secretary for Import tissue paper, to value the aggregate Cash Deposit Requirements Administration. amount of dye consumed in the The following cash deposit APPENDIX I production of the subject tissue paper. requirements will be effective upon See Issues and Decision Memorandum publication of these final results of this General Issues at Comment 1 for a detailed analysis. administrative review for all shipments Comment 1: Reporting of Ink and Dye Additionally, in the Preliminary of the subject merchandise entered, or Consumption Results, the Department invited withdrawn from warehouse, for Comment 2: Reporting Requirements for Ink comments from interested parties consumption on or after the publication and Dye regarding whether or not it should alter date, as provided for by section Comment 3: Steam Coal Surrogate Value its requirements for reporting ink and 751(a)(2)(C) of the Act: (1) For Max Comment 4: Labor Surrogate Value dye consumption in future segments. Comment 5: Treatment of Negative Dumping Fortune, the Department has calculated Margins (‘‘Zeroing’’) See Preliminary Results, 73 FR at 18501. a zero margin for these final results, and Upon analyzing the comments received therefore no cash deposit will be [FR Doc. E8–23588 Filed 10–3–08; 8:45 am] from interested parties with respect to required for this company; (2) for BILLING CODE 3510–DS–P the reporting requirement for ink and previously investigated or reviewed PRC dye consumption on a CONNUM- and non-PRC exporters not listed above specific basis, we have determined that that have separate rates, the cash DEPARTMENT OF COMMERCE the record does not contain sufficient deposit rate will continue to be the International Trade Administration evidence necessary to revise the model- exporter-specific rate published for the match criteria. Therefore, we will not most recent period; (3) for all PRC (A–570–848) make any changes, at this time, to the exporters of subject merchandise that model-match criteria and continue to have not been found to be entitled to a Freshwater Crawfish Tail Meat From require that companies in future separate rate, including those the People’s Republic of China: segments report ink and dye companies for which this review has Preliminary Results of Antidumping consumption on a CONNUM-specific been rescinded, the cash deposit rate Duty Administrative Review and Intent basis. See Issues and Decision will be the PRC-wide rate of 112.64 to Rescind Review in Part Memorandum at Comment 2, for a percent; and (4) for all non-PRC detailed analysis. exporters of subject merchandise which AGENCY: Import Administration, have not received their own rate, the International Trade Administration, Final Results of Review cash deposit rate will be the rate Department of Commerce. We determine that the following applicable to the PRC exporters that SUMMARY: In response to timely requests 1 antidumping duty margin exists: supplied that non-PRC exporter. These from one exporter and the petitioner, deposit requirements, when imposed, the Department of Commerce CERTAIN TISSUE PAPER FROM THE shall remain in effect until publication (Department) is conducting an administrative review of the PRC INDIVIDUALLY REVIEWED EX- of the final results of the next administrative review. antidumping duty order on freshwater PORTERS crawfish tail meat from the People’s Notification to Interested Parties Republic of China (PRC). The period of Max Fortune Industrial Ltd ...... 0.00% This notice also serves as the final review (POR) is September 1, 2006, reminder to importers of their through August 31, 2007. The Department will disclose responsibility under19 CFR 351.402(f) calculations performed for these final to file a certificate regarding the 1 The petitioner is the Crawfish Processors results to the parties within five days of reimbursement of antidumping duties Alliance (CPA).

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We have preliminarily determined Foods); Qingdao Zhengri Seafood Co., classifiable in the Harmonized Tariff that sales have not been made below Ltd. (Qingdao Seafood); Shanghai Now Schedule of the United States (HTSUS) normal value by the exporter Again International Trading Co., Ltd. under item numbers 1605.40.10.10 and participating in the administrative (Shanghai Now Again); Xiping Opeck 1605.40.10.90, which are the HTSUS review. If these preliminary results are Food Co., Ltd. (Xiping Opeck); Xuzhou; numbers for prepared foodstuffs, adopted in our final results of this Yancheng Hi-King Agriculture indicating peeled crawfish tail meat and review, we will instruct U.S. Customs Developing Co., Ltd. (Hi-King); other, as introduced by the CBP in 2000, and Border Protection (CBP) to liquidate Yancheng Yao Seafood Co., Ltd. and HTSUS numbers 0306.19.00.10 and entries of merchandise exported by (Yancheng Seafood). On October 17, 0306.29.00.00, which are reserved for Yancheng Hi-King Agriculture 2007, the CPA withdrew its requests for fish and crustaceans in general. The Developing Co., Ltd., during the POR administrative reviews for China HTSUS subheadings are provided for without regard to antidumping duties. Kingdom, Aquatic Foods, Qingdao convenience and customs purposes We invite interested parties to Seafood, and Yancheng Seafood. only. The written description of the comment on these preliminary results. On October 31, 2007, based on timely scope of this order is dispositive. Parties who submit comments in this requests for an administrative review, Intent to Rescind Review in Part review are requested to submit with the Department published a notice of each argument (1) a statement of the initiation of an administrative review of Record evidence indicates that issue and (2) a brief summary of the the antidumping duty order on Shanghai Now Again and Xiping Opeck argument. freshwater crawfish tail meat from the did not have any exports of subject merchandise during the POR. See the EFFECTIVE DATE: October 6, 2008. PRC. See Initiation of Antidumping and December 12, 2007, submission of FOR FURTHER INFORMATION CONTACT: Countervailing Duty Administrative Reviews, 72 FR 61621 (October 31, Shanghai Now Again and Xiping Opeck. Dmitry Vladimirov or Minoo Hatten, Moreover, we have reviewed the CBP AD/CVD Operations, Office 5, Import 2007). The review was initiated with respect to Anhui, Jingdezhen, Shanghai entry data for the POR and found no Administration, International Trade evidence of exports from these two Administration, U.S. Department of Now Again, Xiping Opeck, Xuzhou, and Hi-King.3 entities. See Memorandum to File Commerce, 14th Street and Constitution entitled ‘‘Placement of Certain Import Avenue, NW, Washington, DC 20230; The Department extended the deadline for the preliminary results of Data from the U.S. Customs and Border telephone: (202) 482–0665 and (202) Protection Automated Commercial 482–1690, respectively. this review from June 1, 2008, to September 29, 2008. See Freshwater System on the Record of the SUPPLEMENTARY INFORMATION: Crawfish Tail Meat from the People’s Administrative Review,’’ dated July 9, Background Republic of China: Notice of Extension 2008. Additionally, on February 12, 2008, we made a no-shipments inquiry On September 15, 1997, the of Time Limit for the Preliminary to CBP, requesting that, if any CBP Department published an amended final Results of the Antidumping Duty import office has contrary information, determination and antidumping duty Administrative Review, 73 FR 32289 appraising officers should report this order on freshwater crawfish tail meat (June 6, 2008), and Freshwater Crawfish information within 10 days of receipt of from the PRC. See Notice of Amendment Tail Meat from the People’s Republic of the message. To date, we have not to Final Determination of Sales at Less China: Notice of Extension of Time received any evidence that these two Than Fair Value and Antidumping Duty Limit for the Preliminary Results of the entities had any shipments to the Order: Freshwater Crawfish Tail Meat Antidumping Duty Administrative United States of subject merchandise From the People’s Republic of China, 62 Review, 73 FR 43913 (July 29, 2008). during the POR. Therefore, pursuant to FR 48218 (September 15, 1997). On The POR is September 1, 2006, 19 CFR 351.213(d)(3), the Department September 4, 2007, the Department through August 31, 2007. We are intends to rescind this review in part published a notice of opportunity to conducting this review in accordance with respect to Shanghai Now Again request an administrative review of the with section 751 of the Tariff Act of and Xiping Opeck. order. See Antidumping or 1930, as amended (the Act). Countervailing Duty Order, Finding, or Scope of Order Duty Absorption Suspended Investigation; Opportunity The product covered by this Section 751(a)(4) of the Act states to Request Administrative Review, 72 antidumping duty order is freshwater that, during any administrative review FR 50657 (September 4, 2007). initiated two or four years after the On September 28, 2007, Xuzhou crawfish tail meat, in all its forms (whether washed or with fat on, publication of an antidumping duty Jinjiang Foodstuffs Co., Ltd. (Xuzhou), order under section 736(a) of the Act, if an exporter and producer of crawfish whether purged or unpurged), grades, and sizes; whether frozen, fresh, or requested, the administering authority tail meat in the PRC, requested an shall determine whether antidumping administrative review. On October 1, chilled; and regardless of how it is packed, preserved, or prepared. duties have been absorbed by a foreign 2007, the petitioner requested an producer or exporter subject to the order administrative review of the following Excluded from the scope of the order are live crawfish and other whole crawfish, if the subject merchandise is sold in the 10 exporters and/or producers: Anhui United States through an importer who Tongxin Aquatic Product & Food Co., whether boiled, frozen, fresh, or chilled. Also excluded are saltwater crawfish of is affiliated with such foreign producer Ltd. (Anhui); China Kingdom Import & or exporter. Additionally, section Export Co., Ltd.2 (China Kingdom); any type, and parts thereof. Freshwater crawfish tail meat is currently 351.213(j)(1) of the Department’s Jingdezhen Garay Foods Co., Ltd. regulations states that, during any (Jingdezhen); Qingdao Jinyongxiang 3 On July 23, 2008, the Department rescinded this administrative review covering all or Aquatic Foods Co., Ltd. (Aquatic review with respect to Anhui, Jingdezhen, and part of a period falling between the first Xuzhou in accordance with 19 CFR 351.213(d)(1). and second or third and fourth 2 This company is also known as China Kingdoma See Freshwater Crawfish Tail Meat from the Import & Export Co., Ltd., and Zhongda Import and People’s Republic of China: Notice of Partial anniversary of the publication of a Export Co. Ltd. per the October 1, 2007, submission Rescission of Antidumping Duty Administrative determination under 19 CFR 351.218(d) of the CPA. Review, 73 FR 42771 (July 23, 2008). (sunset review), if requested by a

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domestic interested party within 30 773(c)(1) of the Act, the Department data on imports of live crawfish from days of the date of publication of the generally bases normal value on the Portugal into Spain as reported by notice of initiation of the review, the value of the NME producer’s factors of Agencia Tributaria, the Spanish Secretary will determine whether production (FOP). In accordance with government agency response for trade antidumping duties have been absorbed section 773(c)(4) of the Act, in valuing statistics. Spain is a significant producer by an exporter or producer subject to the the FOP, the Department uses, to the of comparable merchandise, i.e., whole review if the subject merchandise is extent possible, the prices or costs of processed crawfish, and there are sold in the United States through an FOP in one or more market-economy publicly available import statistics for importer that is affiliated with such countries that are at a level of economic Spain that are contemporaneous with exporter or producer. development comparable to that of the the POR.7 In a letter dated November 29, 2007, NME country and which are significant We have selected Indonesia as a the petitioner requested that the producers of merchandise comparable secondary surrogate country for Department conduct a duty-absorption to the subject merchandise. purposes of valuing the crawfish shell review of Jingdezhen, Shanghai Now The Department has determined that by-product because there are no Again, Xiping Opeck, Anhui, Xuzhou, India, Indonesia, the , appropriate Indian surrogate values for and Hi-King. As stated above, we have , and Thailand are countries crawfish shell by-product on the record rescinded or are announcing our intent that are at a level of economic of this review. We find that Indonesia is to rescind in part the review with development comparable to that of the at a level of economic development respect to Jingdezhen, Shanghai Now PRC.4 While none of these countries is comparable to the PRC, it has significant Again, Xiping Opeck, Anhui, and a significant producer of freshwater production of dried crab and shrimp Xuzhou. Thus, we will not make a duty- crawfish tail meat,5 India does have a shells, merchandise comparable to the absorption determination with respect seafood-processing industry that is shell by-product, and has publicly to these companies. comparable to the crawfish industry available data, i.e., a public price quote With respect to Hi-King, we find that, with respect to factory overhead, selling, from an Indonesian company that has although the instant review was not general, and administrative (SG&A) been used in prior segments of this initiated two or four years after the date expenses, and profit. Therefore, we have proceeding.8 No other parties of publication of the antidumping duty selected India as the primary surrogate commented on the selection of surrogate order, part of this administrative review country in which to value all inputs values. falls between the third and fourth with the exception of live crawfish, the Separate Rates anniversary of the publication of a primary input, and the by-product, determination under 19 CFR 351.218(d) crawfish scrap shell. Because India does In proceedings involving NME (sunset review). See Final Results of not have a fresh-crawfish industry countries, the Department has a Expedited Sunset Review: Freshwater (although it has a sea crawfish industry) rebuttable presumption that all Crawfish Tail Meat From the People’s and we have determined that other companies within the country are Republic of China, 67 FR 72645 forms of seafood are not sufficiently subject to government control and thus (December 6, 2002). There is no record comparable to crawfish to serve as should be assessed a single antidumping evidence indicating that the sole surrogates for live crawfish, we have duty rate. It is the Department’s policy remaining respondent in this review, valued live crawfish using the data to assign all exporters of merchandise Hi-King, sold subject merchandise in submitted by the CPA and the Louisiana subject to a proceeding involving an the United States through an affiliated Department of Agriculture and Forestry, NME country this single rate unless an importer. Thus, according to section which was obtained from the same exporter can demonstrate that it is 751(a)(4) of the Act and for the reason source that was used to value live sufficiently independent so as to be stated above, we have not investigated crawfish in several previous segments of entitled to a separate rate. The whether Hi-King absorbed duties. this proceeding.6 Both parties submitted Department assigns separate rates in NME proceedings only if respondents Non-Market-Economy Country Status 4 See Memorandum to Howard Smith from Carole can demonstrate the absence of both de The Department considers the PRC to Showers entitled ‘‘Administrative Review of jure and de facto government control be a non-market-economy (NME) Freshwater Crawfish Tail Meat From the People’s over export activities under a test country. In accordance with section Republic of China: Request for a List of Surrogate developed by the Department and 771(18)(C)(i) of the Act, any Countries,’’ dated January 15, 2008. 5 See Memorandum to Laurie Parkhill, Office described in Final Determination of determination that a country is an NME Director, AD/CVD Enforcement 5, entitled Sales at Less Than Fair Value: Sparklers country shall remain in effect until ‘‘Freshwater Crawfish Tail Meat from the People’s from the People’s Republic of China, 56 revoked by the administering authority. Republic of China: Selection of a Surrogate FR 20588 (May 6, 1991) (Sparklers), and See Brake Rotors From the People’s Country,’’ dated September 29, 2008 (Surrogate- Country Memorandum). Republic of China: Final Results and 6 See the March 7, 2008, submission by the CPA Antidumping Duty Administrative Review and Partial Rescission of the 2004/2005 regarding Freshwater Crawfish Tail Meat from the Preliminary Intent to Rescind 2005-2006 New Administrative Review and Notice of PRC: Surrogate Value Data. See Freshwater Shipper Reviews, 72 FR 57288 (October 9, 2007) Rescission of 2004/2005 New Shipper Crawfish Tail Meat From the People’s Republic of (unchanged in Freshwater Crawfish Tail Meat from China: Preliminary Results and Partial Rescission of the People’s Republic of China: Final Results and Review, 71 FR 66304 (November 14, the 2005-2006 Antidumping Duty Administrative Partial Rescission of the 2005-2006 Antidumping 2006). None of the parties to this Review and Preliminary Intent to Rescind 2005- Duty Administrative Review and Rescission of the proceeding has contested NME 2006 New Shipper Reviews, 72 FR 57288 (October 2005-2006 New Shipper Reviews, 73 FR 20249 treatment for the PRC. Therefore, in 9, 2007) (unchanged in Freshwater Crawfish Tail (April 15, 2008)). Meat from the People’s Republic of China: Final 7 See Surrogate-Country Memorandum. these preliminary results of review, we Results and Partial Rescission of the 2005-2006 8 See Memorandum to Barbara E. Tillman from have treated the PRC as an NME country Antidumping Duty Administrative Review and Christian Hughes and Adina Teodorescu through and applied our current NME Rescission of the 2005-2006 New Shipper Reviews, Maureen Flannery re: Surrogate Valuation of Shell methodology in accordance with section 73 FR 20249 (April 15, 2008)). For an example of Scrap: Freshwater Crawfish Tail Meat from the a previous segment of the proceeding where this People’s Republic of China, Administrative Review 773(c) of the Act. source was used, see Freshwater Crawfish Tail Meat 9/1/00-8/31/01 and New Shipper Reviews 9/1/00- In antidumping proceedings involving From the People’s Republic of China: Preliminary 8/31/01 and 9/1/00-10/15/01 (August 5, 2002), NME countries, pursuant to section Results and Partial Rescission of the 2005-2006 which was placed on the record of this review.

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Notice of Final Determination of Sales Meat From the People’s Republic of accountability for profits and losses. See at Less Than Fair Value: Silicon Carbide China; Final Results of New Shipper the December 21, 2007, submission by from the People’s Republic of China, 59 Review, 64 FR 27961 (May 24, 1999)). Hi-King at 4 and Exhibit A-5. Based on FR 22585 (May 2, 1994) (Silicon In addition, we have confirmed the foregoing, the Department has Carbide). previously that freshwater crawfish tail preliminarily determined that there is The Department’s separate-rate test is meat is not on the list of commodities an absence of de jure governmental used to determine whether an exporter with planned quotas in the 1992 PRC control over the export activities of Hi- and/or producer is independent from Ministry of Foreign Trade and Economic King. government control and does not Cooperation document entitled consider, in general, macroeconomic/ Temporary Provisions for Absence of De Facto Control border-type controls, e.g., export Administration of Export Commodities. Typically the Department considers licenses, quotas, and minimum export See Freshwater Crawfish Tail Meat the following four factors in evaluating prices, particularly if these controls are From The People’s Republic of China; whether each respondent is subject to imposed to prevent dumping. See Preliminary Results of New Shipper de facto governmental control of its Notice of Final Determination of Sales Review, 64 FR 8543, 8544 (February 22, export functions: (1) whether the export at Less Than Fair Value: Certain 1999) (unchanged in Freshwater prices are set by, or are subject to the Preserved Mushrooms from the People’s Crawfish Tail Meat from the People’s approval of, a governmental agency; (2) Republic of China, 63 FR 72255, 72256 Republic of China; Final Results of New whether the respondent has authority to (December 31, 1998) (Mushrooms). The Shipper Review, 64 FR 27961 (May 24, negotiate and sign contracts and other test focuses, rather, on controls over the 1999)). We found no evidence of de jure agreements; (3) whether the respondent investment, pricing, and output governmental control over Hi-King’s has autonomy from the government in decision-making process at the exportation of freshwater crawfish tail making decisions regarding the individual firm level. See Mushrooms, meat. selection of management; (4) whether 63 FR at 72256 (citing Notice of Final Moreover, the Department has found the respondent retains the proceeds of Determination of Sales at Less than Fair previously that the Company Law of the its export sales and makes independent Value: Certain Cut-to-Length Carbon People’s Republic of China, made decisions regarding disposition of Steel Plate From , 62 FR 61754, effective on July 1, 1994, with the profits or financing of losses. See Silicon 61758 (November 19, 1997), and amended version promulgated on Carbide, 59 FR at 22586–87; see also Tapered Roller Bearings and Parts August 28, 2004, states that a company Notice of Final Determination of Sales Thereof, Finished and Unfinished. from is an enterprise legal person, that at Less Than Fair Value: Furfuryl the People’s Republic of China: Final shareholders shall assume liability Alcohol from the People’s Republic of Results of Antidumping Administrative towards the company to the extent of China, 60 FR 22544, 22545 (May 8, Review, 62 FR 61276, 61279 (November their shareholdings, and that the 1995). The Department considers an 17, 1997)). company shall be liable for its debts to analysis of de facto control to be critical the extent of all its assets. See in determining whether a respondent is, Absence of De Jure Control Freshwater Crawfish Tail Meat From the in fact, subject to a degree of The Department considers the People’s Republic of China: Preliminary governmental control that would following de jure criteria in determining Results and Partial Rescission of the preclude the Department from assigning whether an individual company may be 2005–2006 Antidumping Duty the respondent a separate rate. granted a separate rate: (1) an absence of Administrative Review and Preliminary Hi-King has asserted the following: (1) restrictive stipulations associated with Intent to Rescind 2005–2006 New it establishes its own export prices; (2) an individual exporter’s business and Shipper Reviews, 72 FR 57288 (October it negotiates contracts without guidance export licenses; (2) any legislative 9, 2007) (unchanged in Freshwater from any governmental entities or enactments decentralizing control of Crawfish Tail Meat from the People’s organizations; (3) it makes its own companies; (3) other formal measures by Republic of China: Final Results and personnel decisions; (4) it retains the the government decentralizing control Partial Rescission of the 2005–2006 proceeds of its export sales, uses profits of companies. See Sparklers, 56 FR at Antidumping Duty Administrative according to its business needs, and has 20589. Hi-King stated that it is an Review and Rescission of the 2005–2006 the authority to sell its assets and to independent legal entity and provided New Shipper Reviews, 73 FR 20249 obtain loans. Based upon the record copies of its business license, which (April 15, 2008)). Additionally, certain information, the Department has allows the company to engage in the laws which were placed on the record preliminarily determined that there is exportation of freshwater crawfish tail of this review also indicate a lack of de an absence of de facto governmental meat. See the December 21, 2007, jure government control. Hi-King control over the export activities of Hi- submission by Hi-King at 7. Hi-King provided copies of the PRC’s Enterprise King. Given that the Department has also reported that no export quotas Legal Person Registration found that Hi-King operates free of de apply to crawfish. See the December 21, Administrative Regulations, which jure and de facto governmental control, 2007, submission by Hi-King at 2–3, 5, allows companies with a business it has preliminarily determined that Hi- and Exhibit A–6. Prior verifications license to make deals, enter into King has satisfied the criteria for a have confirmed that there are no contracts, open bank accounts, and separate rate. commodity-specific export licenses conduct business activities. See the required and no quotas for the seafood December 21, 2007, submission by Hi- U.S. Price category ‘‘Other,’’ which includes King at 3, 5–6, and Exhibit A–3. Hi-King In accordance with section 772(a) of crawfish, in China’s Tariff and Non- also submitted copies of the Foreign the Act, we based Hi-King’s U.S. price Tariff Handbook for 1996. See Trade Law of the PRC, which identifies on export price because the first sales to Freshwater Crawfish Tail Meat From the rights and responsibilities of unaffiliated purchasers were made prior The People’s Republic of China; organizations engaged in foreign trade, to importation and constructed export Preliminary Results of New Shipper grants autonomy to foreign-trade price was not otherwise warranted by Review, 64 FR 8543 (February 22, 1999) operators in management decisions and the facts on the record. In accordance (unchanged in Freshwater Crawfish Tail establishes the foreign trade operator’s with section 772(c) of the Act, we

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calculated export price by deducting, States, 117 F.3d 1401, 1407–1408 (Fed. Republic of China, 67 FR 6482 where applicable, foreign inland freight Cir. 1997). We increased the calculated (February 12, 2002), and accompanying expenses and foreign brokerage and costs of the FOP for surrogate general Issues and Decision Memorandum at handling expenses from the starting expenses and profit. See Memorandum Comment 1. See also Notice of price (gross unit price) charged to the to the File, entitled ‘‘2006–2007 Preliminary Determination of Sales at first unaffiliated customer in the United Administrative Review of Freshwater Less Than Fair Value, Postponement of States. We based all movement expenses Crawfish Tail Meat from the People’s Final Determination, and Affirmative on surrogate values because a PRC Republic of China: Factor Valuation,’’ Preliminary Determination of Critical company provided the movement dated September 29, 2008 (Factor-Value Circumstances: Certain Color Television services (see the ‘‘Normal Value’’ Memorandum). Receivers From the People’s Republic of section of this notice for further details). China, 68 FR 66800, 66808 (November Surrogate Values 28, 2003) (unchanged in Notice of Final Normal Value In selecting surrogate values, we Determination of Sales at Less Than Section 773(c)(1) of the Act provides followed, to the extent practicable, our Fair Value and Negative Final that the Department shall determine practice of choosing publicly available Determination of Critical normal value using an FOP values which are non-export averages, Circumstances: Certain Color Television methodology if the merchandise is representative of a range of prices in Receivers From the People’s Republic of exported from an NME country and the effect during the POR, or over a period China, 69 FR 20594 (April 16, 2004)). available information does not permit as close as possible in time to the POR, Additionally, we excluded from our the calculation of normal value using product-specific, and tax-exclusive. See, calculations imports that were labeled home-market prices, third-country e.g., Notice of Preliminary as originating from an unspecified prices, or constructed value under Determination of Sales at Less Than country because we could not determine section 773(a) of the Act. The Fair Value, Negative Preliminary whether they were from an NME Department uses an FOP methodology Determination of Critical Circumstances country. because the presence of government and Postponement of Final We used the following surrogate controls on various aspects of NMEs Determination: Certain Frozen and values in our margin calculations for renders price comparisons and the Canned Warmwater Shrimp From the these preliminary results of review. We calculation of production costs invalid Socialist Republic of Vietnam, 69 FR valued coal and packing materials using under its normal methodologies. See 42672, 42682 (July 16, 2004) September 2006–August 2007 weighted- Tapered Roller Bearings and Parts (unchanged in Final Determination of average Indian import values derived Thereof, Finished and Unfinished, from Sales at Less Than Fair Value: Certain from the World Trade Atlas online the People’s Republic of China: Frozen and Canned Warmwater Shrimp (WTA). The Indian import statistics that Preliminary Results of Antidumping From the Socialist Republic of Vietnam, we obtained from the WTA were Duty Administrative Review and Notice 69 FR 71005 (December 8, 2004)). We published by the Directorate General of of Intent to Rescind in Part, 70 FR also considered the quality of the source Commercial Intelligence & Statistics, 39744, 39754 (July 11, 2005) of surrogate information in selecting Ministry of Commerce of India, and are (unchanged in Tapered Roller Bearings surrogate values. See Manganese Metal contemporaneous with the POR. We and Parts Thereof, Finished and From the People’s Republic of China; valued whole live crawfish using the Unfinished, from the People’s Republic Final Results and Partial Rescission of publicly available data for Spanish of China: Final Results of 2003–2004 Antidumping Duty Administrative imports of whole live crawfish from Administrative Review and Partial Review, 63 FR 12440 (March 13, 1998). Portugal submitted by the CPA and the Rescission of Review, 71 FR 2517 Where we could only obtain surrogate Louisiana Department of Agriculture (January 17, 2006 )). Thus, we values that were not contemporaneous and Forestry. We valued the crawfish calculated normal value by adding with the POR, we inflated the surrogate shell by-product using a 2001 price together the value of the FOP, general values using, where appropriate, the quote from Indonesia for wet crab and expenses, profit, and packing costs.9 Indian Wholesale Price Index (Indian shrimp shells and inflated this value Specifically, we valued material, labor, WPI) and the Indonesian Wholesale using the Indonesian WPI to make it energy, and packing by multiplying the Price Index (Indonesian WPI) as contemporaneous with the POR. amount of the factor consumed in published in the International Financial We valued water using data from the producing the subject merchandise by Statistics of the International Monetary Maharashtra Industrial Development the average unit surrogate value of the Fund. See Memorandum to the File Corporation (www.midcindia.org) factor. In addition, we added freight entitled ‘‘Fresh Crawfish Tail Meat from because this source includes a wide costs to the surrogate costs that we the People’s Republic of China: range of industrial water tariffs. calculated for material inputs. We Surrogate-Value Memorandum,’’ dated Specifically, this source provides 386 calculated freight costs by multiplying September 29, 2008 (Surrogate-Value industrial water rates within the surrogate freight rates by the shorter of Memo). Maharashtra province from June 2003 In calculating surrogate values from the reported distance from the domestic (193 for the ‘‘inside industrial areas’’ import statistics and in accordance with supplier to the factory that produced the usage category and 193 for the ‘‘outside our practice, we disregarded statistics subject merchandise or the distance industrial areas’’ usage category). We for imports from NME countries and from the nearest seaport to the factory inflated the surrogate value for water countries deemed to maintain broadly that produced the subject merchandise, using the Indian WPI to make it available, non-industry-specific as appropriate. This adjustment is in contemporaneous with the POR. We subsidies which may benefit all accordance with the decision by the valued electricity using price data for exporters to all export markets (i.e., United States Court of Appeals for the small, medium, and large industries, as Indonesia, , and Thailand). Federal Circuit in Sigma Corp. v. United published by the Central Electricity See, e.g., Final Determination of Sales at Authority of the Government of India in 9 We based the values of the FOPs on surrogate Less Than Fair Value: Certain its publication entitled Electricity Tariff values (see ‘‘Selected Surrogate Values’’ section Automotive Replacement Glass & Duty and Average Rates of Electricity below). Windshields From The People’s Supply in India, dated July 2006. These

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electricity rates represent actual 2018, 2021 (January 12, 2006) Yancheng Hi-King Agriculture country-wide, publicly available (unchanged in Certain Hot-Rolled Developing Co., Ltd., and its Affiliated information on tax-exclusive electricity Carbon Steel Flat Products From India: Suppliers,’’ dated June 17, 2008 rates charged to industries in India. Final Results of Antidumping (Collapsing Memo). Because the electricity rates are not Administrative Review, 71 FR 40694 As we have found before, ‘‘{i}t is the contemporaneous with the POR, we (July 18, 2006). Because data reported Department’s long-standing practice to inflated the values using Indian WPI to by Agro Dutch, Kejriwal, and Essar were calculate a separate dumping margin for make it contemporaneous with the POR. not contemporaneous with the POR, we each manufacturer or exporter We valued non-refrigerated truck inflated the surrogate value for domestic investigated.’’ See Final Determinations freight expenses using a per-unit brokerage and handling expenses using of Sales at Less than Fair Value; Certain average rate calculated from data on the the Indian WPI. See Surrogate-Value Hot-Rolled Carbon Steel Flat Products, following website: http:// Memo for further details on the Certain Cold-Rolled Carbon Steel Flat www.infobanc.com/logistics/ surrogate values we used for these Products, and Certain Corrosion- logtruck.htm. The logistics section of preliminary results. Resistant Carbon Steel Flat Products this website contains inland freight Consistent with 19 CFR 351.408(c)(3), from Japan, 58 FR 37154, 37159 (July 9, truck rates between many large Indian we valued direct, indirect, and packing 1993). Because we calculate margins on cities. We valued refrigerated-truck labor using the most recently calculated a company-specific basis, we must freight expenses based on price regression-based wage rate which relies ensure that we review the entire on 2004 data. This wage rate can quotations for April 2004 from CTC producer or reseller, not merely a part currently be found on the Department’s Freight Carriers of Delhi, India, placed of it. We review the entire entity due to website on Import Administration’s on the record of the antidumping our concerns regarding price and cost home page, Import Library, Expected investigation of certain frozen warm- manipulation. See, e.g., Dongkuk Steel Wages of Selected NME Countries, water shrimp from the PRC. As the Mill Co. v. United States, Court No. 04– revised in January 2007, available at values for both non-refrigerated and 00190, slip op. 2005–75 at 15 (CIT 2005) http://ia.ita.doc.gov/wages/index.html. refrigerated truck freight expenses are (‘‘ Commerce considers both actual The source of these wage-rate data on not contemporaneous with the POR, we manipulation in the past and the the Import Administration’s website is inflated/deflated, as appropriate, these possibility of future manipulation, the Yearbook of Labour Statistics, ILO, surrogate values using the Indian WPI. which does not require evidence of Chapter 5B: Wages in Manufacturing. To value brokerage and handling, we actual manipulation during the period We applied the same wage rate to all used publicly summarized versions of of review.’’); see also Antidumping skill levels and types of labor reported the average values for brokerage and Duties; Countervailing Duties; Final by Hi-King because this regression- handling expenses reported in the Rule, 62 FR at 27296, 27346 (May 19, based wage rate does not separate the following sources: Agro Dutch 1997) (‘‘The standard based on the labor rates into different skill levels or Industries Ltd.’s (Agro Dutch’s) May 25, potential for manipulation focuses on types of labor. 2005, Section C submission (taken from We valued SG&A expenses, factory what may transpire in the future.’’). the 2004–2005 administrative review of overhead costs, and profit using the Because of this concern, we consider the antidumping duty order on 2002–2003 financial statements of whether affiliated parties, including preserved mushrooms from India); Nekkanti Sea Foods Ltd., an Indian exporters and producers, should be Kejriwal Paper Ltd.’s (Kejriwal’s) seafood processor. See Factor-Value treated as a single entity for purposes of January 9, 2006, Section C submission Memorandum. calculating antidumping margins. When (taken from the antidumping affiliated producers have production investigation of certain lined paper from Currency Conversion facilities for similar or identical India); Essar Steel Ltd.’s (Essar’s) We made currency conversions into products that would not require February 28, 2005, Section C U.S. dollars, in accordance with section substantial retooling of either facility in submission (taken from the 2003–2004 773A(a) of the Act, based on the order to restructure manufacturing administrative review of the exchange rates in effect on the dates of priorities and there is evidence antidumping duty order on carbon steel the U.S. sales as certified by the Federal indicating a significant potential for the flat products from India). See Certain Reserve Bank. These exchange rates are manipulation of price and production, Preserved Mushrooms From India: Final available on the Import Administration we ‘‘collapse’’ related companies; that Results of Antidumping Duty web site at http://ia.ita.doc.gov/ is, we treat the affiliated entities as a Administrative Review, 71 FR 10646 exchange/index.html. single entity for purposes of calculating (March 2, 2006); see also Notice of the dumping margin. See 19 CFR Preliminary Determination of Sales at Treatment of Affiliated Parties as a 351.401(f). See also Nihon Cement Co., Less Than Fair Value, Postponement of Single Entity Ltd. v. United States, Slip Op. 93–80 Final Determination, and Affirmative Our analysis of Hi-King’s responses to (CIT May 25, 1993). As detailed in our Preliminary Determination of Critical our questionnaires and the factual Collapsing Memo, we find that Hi-King Circumstances in Part: Certain Lined information on the record led us to is affiliated with its producers in Paper Products From India, 71 FR 19706 determine that Hi-King and its affiliated accordance with sections 771(33)(B) and (April 17, 2006), unchanged in Notice of producers Yancheng Seastar Seafood (E) of the Act. We also find that these Final Determination of Sales at Less Co., Ltd., Yancheng Hi-King Frozen affiliated producers have production Than Fair Value, and Negative Food Co., Ltd., and Jiangxi Hi-King facilities for similar or identical Determination of Critical Poyang Lake Seafood Co., Ltd., should products that would not require Circumstances: Certain Lined Paper be treated as a single entity for the substantial retooling of either facility in Products from India, 71 FR 45012 purpose of calculating an antidumping order to restructure manufacturing (August 8, 2006), and Certain hot-Rolled duty margin. See Memorandum to priorities. As detailed in our Collapsing Carbon Steel Flat Products From India: Laurie Parkhill, entitled ‘‘Freshwater Memo, we find that a potential for the Preliminary Results of Antidumping Crawfish Tail Meat from the People’s manipulation of price and production Duty Administrative Review, 71 FR Republic of China - Collapsing of exists with respect to Hi-King and its

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affiliated producers pursuant to 19 CFR statutes, regulations, and cases cited. occurred and the subsequent assessment 351.401(f)(2). Therefore, we have treated See 19 CFR 351.309(c)(2). of double antidumping duties. Hi-King and the affiliated entities in The Department will issue the final This administrative review and this question as a single entity for purposes results of this administrative review, notice are in accordance with sections of this review. including the results of its analysis of 751(a)(1) and 777(i) of the Act. issues raised in any such written briefs Dated: September 29, 2008. Preliminary Results of the Review or at the hearing, if held, not later than David M. Spooner, As a result of our review, we 120 days after the date of publication of this notice. See section 751(a)(3)(A) of Assistant Secretary for Import preliminarily determine that the Administration. the Act. following percentage weighted-average [FR Doc. E8–23572 Filed 10–3–08; 8:45 am] dumping margin exists for the period Assessment Rates BILLING CODE 3510–DS–S September 1, 2006, through August 31, 2007: Upon issuance of the final results, the Department will determine, and CBP DEPARTMENT OF COMMERCE Percent shall assess, antidumping duties on all Manufacturer/Exporter appropriate entries. The Department Margin International Trade Administration intends to issue assessment instructions Yancheng Hi-King Agriculture to CBP 15 days after the date of [C–533–844] Developing Co., Ltd...... 0.00 publication of the final results of review. If these preliminary results are Certain Lined Paper Products From Comments adopted in our final results of review, India: Notice of Preliminary Results of because we calculated a margin of zero Countervailing Duty Administrative We will disclose the calculations used Review in our analysis to parties in this review percent for Hi-King, we will instruct within five days of the date of CBP to liquidate the entries of AGENCY: Import Administration, publication of this notice in accordance merchandise exported by Hi-King International Trade Administration, with 19 CFR 351.224(b). Interested without regard to antidumping duties. Department of Commerce. parties may submit publicly available Cash Deposit Requirements SUMMARY: The Department of Commerce information to value factors no later The following cash deposit (the Department) is conducting an than 20 days after the date of requirements will be effective upon administrative review of the publication of these preliminary results publication of the final results of this countervailing duty (CVD) order on of review. See 19 CFR 351.301(c)(3)(ii). review for all shipments of the subject certain lined paper products from India Any interested party may request a merchandise entered, or withdrawn for the period February 15, 2006, hearing within 30 days of the date of from warehouse, for consumption on or through December 31, 2006, the period 1 publication of this notice. See 19 CFR after the publication date, as provided of review (POR). For information on 351.310. Interested parties who wish to by section 751(a)(2)(C) of the Act: (1) for the net subsidy rate for the reviewed request a hearing or to participate in a subject merchandise exported by Hi- company, Navneet Publications (India) hearing if one is requested must submit King, the cash-deposit rate will be that Limited (Navneet), see the ‘‘Preliminary a written request to the Assistant established in the final results of review; Results of Review’’ section of this Secretary for Import Administration (2) for previously reviewed or notice. Interested parties are invited to within 30 days of the date of publication investigated companies not listed above comment on these preliminary results. of this notice. Requests should contain that have separate rates, the cash- See the ‘‘Public Comment’’ section of the following: (1) the party’s name, deposit rate will continue to be the this notice. address, and telephone number; (2) the company-specific rate published for the DATES: Effective Date: October 6, 2008. number of participants; (3) a list of most recent period; (3) for all other PRC FOR FURTHER INFORMATION CONTACT: issues to be discussed. See 19 CFR exporters of subject merchandise which Jolanta Lawska or John Conniff, AD/ 351.310(c). have not been found to be entitled to a CVD Operations, Office 3, Import Issues raised in the hearing will be separate rate, the cash-deposit rate will Administration, International Trade limited to those raised in the case and be PRC-wide rate of 223.01 percent; (4) Administration, U.S. Department of rebuttal briefs. See 19 CFR 351.310(c). for all non-PRC exporters of subject Commerce, Room 4014, 14th Street and Case briefs from interested parties may merchandise the cash-deposit rate will Constitution Avenue, NW., Washington, be submitted not later than 30 days after be the rate applicable to the PRC entity the date of publication of this notice of that supplied that exporter. These 1 Pursuant to 19 CFR 351.213(e)(2)(ii), because the preliminary results of review. See 19 deposit requirements, when imposed, Department received Navneet’s request during the CFR 351.309(c)(1)(ii). Rebuttal briefs first anniversary month after publication of the shall remain in effect until further order, this administrative review covers entries from interested parties, limited to the notice. from February 15, 2006, the date of suspension of issues raised in the case briefs, may be liquidation through December 31, 2006, the end of submitted not later than five days after Notification to Importers the most recently completed calendar year. (The the time limit for filing the case briefs date of suspension of liquidation corresponds to the This notice also serves as a publication in the Federal Register of the Notice of or comments. See 19 CFR 351.309(d)(1). preliminary reminder to importers of Preliminary Affirmative Countervailing Duty If requested, any hearing will be held their responsibility under 19 CFR Determination and Preliminary Negative Critical two days after the scheduled date for 351.402(f)(2) to file a certificate Circumstances Determination: Certain Lined Paper submission of rebuttal briefs. See 19 Products from India, 71 FR 7916 (February 15, regarding the reimbursement of 2006) (Preliminary Determination of Lined Paper CFR 351.310(d). Parties who submit antidumping duties prior to liquidation Investigation). However, for purposes of this case briefs or rebuttal briefs in this of the relevant entries during this administrative review, we will analyze data proceeding are requested to submit with review period. Failure to comply with corresponding to calendar year 2006 (January 1, each argument a statement of the issue, 2006, through December 31, 2006) to determine the this requirement could result in the subsidy rate for exports of subject merchandise a summary of the arguments not Secretary’s presumption that made during the period in which liquidation of exceeding five pages, and a table of reimbursement of antidumping duties entries was suspended.

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DC 20230; telephone: (202) 482–8362 or On January 17, 2008, petitioners 4 for measurement purposes, pages with (202) 482–1009, respectively. submitted information on a new subsidy tapered or rounded edges shall be SUPPLEMENTARY INFORMATION: allegation. On April 30, 2008, the measured at their longest and widest Department initiated an investigation of points. Subject lined paper products Background the new subsidy allegation. See the may be loose, packaged or bound using Memorandum to Melissa G. Skinner, any binding method (other than case On September 28, 2006, the Director, Office 3, from Jolanta Lawska, bound through the inclusion of binders Department published in the Federal Case Analyst, entitled, ‘‘New Subsidy board, a spine strip, and cover wrap). Register the CVD order on certain lined Allegations for Navneet Publications Subject merchandise may or may not paper products from India. See Notice of (India), Ltd. (Navneet),’’ a public contain any combination of a front Amended Final Determination of Sales document on file in the Central Records cover, a rear cover, and/or backing of at Less Than Fair Value: Certain Lined Unit (CRU), room 1117 of the main any composition, regardless of the Paper Products from the People’s Department building. On May 6, 2008, inclusion of images or graphics on the Republic of China; Notice of we issued a questionnaire on this new cover, backing, or paper. Subject Antidumping Duty Orders: Certain subsidy allegation to Navneet and the merchandise is within the scope of the Lined Paper Products from India, GOI. On May 19, 2008, and June 3, order whether or not the lined paper Indonesia and the People’s Republic of 2008, we received responses to the new and/or cover are hole punched, drilled, China; and Notice of Countervailing subsidy questionnaires from the GOI perforated, and/or reinforced. Subject Duty Orders: Certain Lined Paper and Navneet, respectively. On July 8, merchandise may contain accessory or Products from India and Indonesia, 71 2008, we issued a supplemental informational items including but not FR 56949 (September 28, 2006). On questionnaire to Navneet. On July 17, limited to pockets, tabs, dividers, September 4, 2007, the Department 2008, we received a Navneet’s response. closure devices, index cards, stencils, published a notice of opportunity to On May 16, 2008, the Department protractors, writing implements, request an administrative review of this published in the Federal Register an reference materials such as CVD order. See Antidumping or extension of the deadline for the mathematical tables, or printed items Countervailing Duty Order, Finding, or preliminary results of this review to no such as sticker sheets or miniature Suspended Investigation; Opportunity later than September 29, 2008. See calendars, if such items are physically to Request Administrative Review, 72 Certain Lined Paper Products from incorporated, included with, or attached FR 50657 (September 4, 2007) India: Extension of Time Limit for to the product, cover and/or backing (Opportunity to Request Review).2 On Preliminary Results of Countervailing thereto. Specifically excluded from the September 21, 2007, we received a Duty Administrative Review, 73 FR scope of this order are: timely request for review from Navneet, 28431 (May 16, 2008). • Unlined copy machine paper; an Indian producer and exporter of In accordance with 19 CFR • Writing pads with a backing subject merchandise. 351.213(b), this review covers only (including but not limited to products On October 31, 2007, the Department those producers or exporters for which commonly known as ‘‘tablets,’’ ‘‘note initiated an administrative review of the a review was specifically requested. The pads,’’ ‘‘legal pads,’’ and ‘‘quadrille CVD order on certain lined paper company subject to this review is pads’’), provided that they do not have products from India, covering the period Navneet. This review covers 15 federal a front cover (whether permanent or February 15, 2006, through December programs and 7 state programs. removable). This exclusion does not 31, 2006. See Initiation of Antidumping apply to such writing pads if they and Countervailing Duty Administrative Scope of Order consist of hole-punched or drilled filler Reviews, 72 FR 61621 (October 31, The scope of this order includes paper; 2007).3 certain lined paper products, typically • Three-ring or multiple-ring binders, The Department issued a school supplies, composed of or or notebook organizers incorporating questionnaire to the Government of including paper that incorporates such a ring binder provided that they do India (GOI) and Navneet (collectively, straight horizontal and/or vertical lines not include subject paper; the respondents) on November 6, 2007. on ten or more paper sheets, including • Index cards; • We received a questionnaire response but not limited to such products as Printed books and other books that from Navneet on December 8, 2007, and single- and multi-subject notebooks, are case bound through the inclusion of from the GOI on December 13, 2007. composition books, wireless notebooks, binders board, a spine strip, and cover Between March 31, 2008, and July 9, looseleaf or glued filler paper, graph wrap; 2008, we issued supplemental • Newspapers; paper, and laboratory notebooks, and • questionnaires to the respondents with the smaller dimension of the paper Pictures and photographs; • Desk and wall calendars and regarding programs addressed in the measuring 6 inches to 15 inches organizers (including but not limited to initial CVD questionnaire and received (inclusive) and the larger dimension of such products generally known as responses. Between April 8, 2008, and the paper measuring 83⁄4 inches to 15 ‘‘office planners,’’ ‘‘time books,’’ and July 17, 2008 we received supplemental inches (inclusive). Page dimensions are ‘‘appointment books’’); questionnaire responses from the GOI measured size (not advertised, stated, or • and Navneet. Telephone logs; ‘‘tear-out’’ size), and are measured as • Address books; they appear in the product (i.e., stitched • Columnar pads & tablets, with or 2 On October 1, 2007, we published a correction and folded pages in a notebook are without covers, primarily suited for the to the Opportunity to Request Review to correct the measured by the size of the page as it POR. See Antidumping or Countervailing Duty recording of written numerical business Order, Finding, or Suspended Investigation; appears in the notebook page, not the data; Opportunity to Request Administrative Review, 72 size of the unfolded paper). However, • Lined business or office forms, FR 55741 (October 1, 2007). including but not limited to: Preprinted 3 In the notice of initiation published October 31, 4 Petitioners are the Association of American 2007, we listed the POR for certain lined paper School Paper Suppliers and its members Mead business forms, lined invoice pads and products from India incorrectly. The correct POR is Westvaco Corporation, Top Flight Inc., and Norcom paper, mailing and address labels, listed above. Inc. manifests, and shipping log books;

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• Lined continuous computer paper; outside the coil diameter but inside the Subsidies Valuation Information • Boxed or packaged writing polyester covering. During construction, stationery (including but not limited to I. Benchmarks for Loans and Discount the polyester covering is sewn to the Rates products commonly known as ‘‘fine front and rear covers face to face business paper,’’ ‘‘parchment paper,’’ (outside to outside) so that when the In these preliminary results, we and ‘‘letterhead’’), whether or not book is closed, the stitching is require the use of rupee-denominated containing a lined header or decorative concealed from the outside. Both free long-term loans for purposes of our benchmark discount rate and long-term lines; ends (the ends not sewn to the cover • Stenographic pads (‘‘steno pads’’), benchmark rate. Pursuant to 19 CFR and back) are stitched with a turned Gregg ruled,5 measuring 6 inches by 9 351.524(d)(3)(i), the Department will edge construction. The flexible inches; use, when available, the company- Also excluded from the scope of this polyester material forms a covering over specific cost of long-term, fixed-rate order are the following trademarked the spiral wire to protect it and provide loans (excluding loans deemed to be products: a comfortable grip on the product. The countervailable subsidies) as a discount • Fly TM lined paper products: A product must bear the valid trademarks rate for allocating non-recurring benefits notebook, notebook organizer, loose or FiveStar R Advance TM.8 over time. Similarly, pursuant to 19 CFR glued note paper, with papers that are • FiveStar Flex TM: A notebook, a 351.505(a), the Department will printed with infrared reflective inks and notebook organizer, or binder with normally use the actual cost of readable only by a Fly TM; plastic polyolefin front and rear covers comparable commercial borrowing by a • Pen-top computer. The product joined by a 300 denier polyester spine company as a loan benchmark, when must bear the valid trademark Fly TM; 6 • cover extending the entire length of the available. According to 19 CFR Zwipes TM: A notebook or 351.505(a)(2)(i), a comparable notebook organizer made with a spine and bound by a 3-ring plastic commercial loan is defined as one that, blended polyolefin writing surface as fixture. The polyolefin plastic covers are when compared to the loan being the cover and pocket surfaces of the of a specific thickness; front cover is examined, has similarities in the notebook, suitable for writing using a 0.019 inches (within normal structure of the loan (e.g., fixed interest specially-developed permanent marker manufacturing tolerances) and rear rate vs. variable interest rate), the and erase system (known as a Zwipes cover is 0.028 inches (within normal maturity of the loan (e.g., short-term vs. TM pen). This system allows the marker manufacturing tolerances). During long-term), and the currency in which portion to mark the writing surface with construction, the polyester covering is the loan is denominated. a permanent ink. The eraser portion of sewn to the front cover face to face However, when there are no the marker dispenses a solvent capable (outside to outside) so that when the comparable commercial loans, the of solubilizing the permanent ink book is closed, the stitching is Department may use a national average allowing the ink to be removed. The concealed from the outside. During interest rate as a benchmark discount product must bear the valid trademark construction, the polyester cover is 7 rate and long-term benchmark rate, Zwipes TM. sewn to the back cover with the outside • FiveStar R Advance TM: A pursuant to 19 CFR 351.524(d)(3)(i)(B) of the polyester spine cover to the inside notebook or notebook organizer bound and 19 CFR 351.505(a)(3)(ii), by a continuous spiral, or helical, wire back cover. Both free ends (the ends not respectively. In addition, 19 CFR and with plastic front and rear covers sewn to the cover and back) are stitched 351.505(a)(2)(ii) states that the made of a blended polyolefin plastic with a turned edge construction. Each Department will not consider a loan material joined by 300 denier polyester, ring within the fixture is comprised of provided by a government-owned coated on the backside with PVC (poly a flexible strap portion that snaps into special purpose bank for purposes of vinyl chloride) coating, and extending a stationary post which forms a closed selecting a benchmark rate. the entire length of the spiral or helical binding ring. The ring fixture is riveted Navneet reported rupee-denominated wire. The polyolefin plastic covers are with six metal rivets and sewn to the and dollar-denominated commercial back plastic cover and is specifically short-term loans that were outstanding of specific thickness; front cover is 10 0.019 inches (within normal positioned on the outside back cover. during the POR. However, Navneet manufacturing tolerances) and rear The product must bear the valid did not report any comparable long-term loans from commercial banks during the cover is 0.028 inches (within normal trademark FiveStar Flex TM.9 manufacturing tolerances). Integral with years under consideration that the Merchandise subject to this order is Department could use for our the stitching that attaches the polyester typically imported under headings spine covering, is captured both ends of benchmark discount rate and long-term 4820.10.2050, 4810.22.5044, a 1″ wide elastic fabric band. This band benchmark rate. Therefore, in 4811.90.9090, 4820.10.2010, accordance with 19 CFR is located 23⁄8″ from the top of the front plastic cover and provides pen or pencil 4820.10.2020, and 4820.10.4001 of the 351.524(d)(3)(i)(B) and 19 CFR storage. Both ends of the spiral wire are Harmonized Tariff Schedule of the 351.505(a)(3)(ii), we used India’s prime cut and then bent backwards to overlap United States (HTSUS). The HTSUS lending rate (PLR) as published by the with the previous coil but specifically headings are provided for convenience Reserve Bank of India (RBI), as our long- and customs purposes; however, the term benchmark interest rate. The use of 5 ‘‘Gregg ruling’’ consists of a single- or double- written description of the scope of this the PLR is consistent with the margin vertical ruling line down the center of the order is dispositive. Department’s practice in prior Indian page. For a six-inch by nine-inch stenographic pad, proceedings. See, e.g., Final Results of the ruling would be located approximately three Countervailing Duty Administrative inches from the left of the book. 8 Products found to be bearing an invalidly Review: Certain Hot-Rolled Carbon Steel 6 Products found to be bearing an invalidly licensed or used trademark are not excluded from licensed or used trademark are not excluded from Flat Products from India, 69 FR 26549 the scope. the scope. 7 Products found to be bearing an invalidly 9 Products found to be bearing an invalidly 10 In these preliminary results we are examining licensed or used trademark are not excluded from licensed or used trademark are not excluded from a countervailable program that requires the use of the scope. the scope. long-term benchmarks.

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(May 13, 2004) (Final Results of First consumed in the production of an Determination of CTL Plate HRC Review), and accompanying Issues export product. DEPS credits are valid Investigation), at Comment 4 and Decision Memorandum (Final for 12 months and are transferable after (explaining that for programs such as Results of First HRC Review Decision the foreign exchange is realized from the the DEPS, ‘‘We calculate the benefit on Memorandum) at I.B. ‘‘Benchmarks for export sales on which the DEPS credits an ‘earned’ basis (that is upon export) Loans and Discount Rate.’’ are earned. With respect to subject where it is provided as a percentage of merchandise, the GOI has established a the value of the exported merchandise II. Allocation Period SION for the lined paper industry. on a shipment-by-shipment basis and Under 19 CFR 351.524(d)(2)(i), we The Department has previously the exact amount of the exemption is presume the allocation period for non- determined that DEPS is a known’’). recurring subsidies to be the average countervailable program. See, e.g., To calculate the benefit, we summed useful life (AUL) of renewable physical Notice of Final Affirmative the credits that Navneet earned during assets for the industry concerned, as Countervailing Duty Determination and the POR on each export shipment to the listed in the Internal Revenue Service’s Final Negative Critical Circumstances United States during the POR. We then 1977 Class Life Asset Depreciation Determination: Certain Lined Paper subtracted as an allowable offset the Range System (IRS tables), as updated Products from India, 71 FR 45034 actual amount of application fees paid by the U.S. Department of the Treasury. (August 8, 2006) (Final Determination of for each license in accordance with This presumption will apply unless a Lined Paper Investigation), and section 771(6) of the Act. party claims and establishes that the IRS accompanying Issues and Decision Because DEPS credits are earned on a tables do not reasonably reflect the AUL Memorandum (Final Determination of shipment-by-shipment basis, in of the renewable physical assets for the Lined Paper Investigation Decision calculating the net subsidy rate under company or industry under review, and Memorandum) at IV. A.3. ‘‘Duty the DEPS program, we normally divide the party can establish that the Entitlement Passbook Scheme.’’ the DEPS credits, or benefits, earned on difference between the company- Specifically, we determined that under exports of subject merchandise to the specific or country-wide AUL for the DEPS, a financial contribution, as United States during the POR by the industry under review is significant, defined under section 771(5)(D)(ii) of total sales of subject merchandise to the pursuant to 19 CFR 351.524(d)(2)(i). For the Tariff Act of 1930, as amended (the United States during the POR. However, assets used to manufacture products Act), is provided because (1) the GOI in the case of Navneet, the U.S. sales on such as lined paper products, the IRS provides credits for the future payment which the company earned the DEPS tables prescribe an AUL of 15 years. of import duties, and (2) the GOI does credits during the POR pertained to both In its questionnaire responses, not have in place and does not apply a subject and non-subject merchandise. Navneet did not rebut the regulatory system that is reasonable and effective Therefore, in these preliminary results, presumption of a 15-year AUL. We, for determining what imports are we calculated the net subsidy rate by therefore, used a 15-year AUL to consumed in the production of the dividing the benefit by Navneet’s total allocate any non-recurring subsidies for exported product and in what amounts. export sales to the United States during purposes of these preliminary results. Id. Therefore, under section 771(5)(E) of the POR. See, e.g., Final Determination Further, for non-recurring subsidies, the Act and 19 CFR 351.519(a)(4), we of Lined Paper Investigation Decision we have applied the ‘‘0.5 percent test’’ determined that the entire amount of Memorandum at IV.A.3. ‘‘Duty described in 19 CFR 351.524(b)(2). import duty exemption earned during Entitlement Passbook Scheme.’’ Under this test, we compare the amount the POR constitutes a benefit. We also On this basis, we preliminarily of subsidies approved under a given found DEPS to be specific under section calculate the net countervailable program in a particular year to sales 771(5A)(A) of the Act because the subsidy from the DEPS program to be (total sales or total export sales, as program is limited to exporters. See 6.93 percent ad valorem. appropriate) for the same year. If the Final Determination of Lined Paper 2. Export Promotion Capital Goods amount of subsidies is less than 0.5 Investigation Decision Memorandum at Scheme (EPCGS) percent of the relevant sales, then the IV.A.3. ‘‘Duty Entitlement Passbook benefits are allocated to the year of Scheme.’’ No new information or The EPCGS provides for a reduction receipt rather than allocated over the evidence of changed circumstances has or exemption of customs duties and an AUL period. been presented in this review to warrant exemption from excise taxes on imports reconsideration of the Department’s of capital goods. Under this program, Analysis Of Programs finding. producers may import capital I. Programs Preliminarily Determined To We have previously determined that equipment at a reduced customs duty, Be Countervailable this program provides a recurring subject to an export obligation equal to benefit under 19 CFR 351.519(c). See, eight times the duty saved to be fulfilled 1. Duty Entitlement Passbook Scheme e.g., Preliminary Determination of Lined over a period of eight years (12 years (DEPS) Paper Investigation, 71 FR 7916, 7920 where the CIF value is Rs. 100 Crore) 11 India’s DEPS was enacted on April 1, (unchanged in Final Determination of from the date the license was issued. 1997, as a successor program to the Lined Paper Investigation). See also 19 For failure to meet the export obligation, Passbook Scheme (PBS). DEPS enables CFR 351.524(c). In accordance with past a company is subject to payment of all exporting companies to earn import practice and pursuant to 19 CFR or part of the duty reduction, depending duty exemptions in the form of 351.519(b)(2), we preliminarily find that on the extent of the export shortfall, passbook credits rather than cash. All benefits from the DEPS program are plus penalty interest. exporters are eligible to earn DEPS conferred as of the date of exportation The Department has previously credits on a post-export basis, provided of the shipment for which the DEPS determined that the import duty that the GOI has established a standard credits are earned. See, e.g., Final reductions provided under the EPCGS input/output norm (SION) for the Affirmative Countervailing Duty constitute a countervailable export exported product. DEPS credits can be Determination: Certain Cut-to-Length subsidy. See, e.g., Polyethylene used for any subsequent imports, Carbon-Quality Steel Plate from India, regardless of whether they are 64 FR 73131 (December 29, 1999) (Final 11 A crore is equal to 10,000,000 rupees.

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Terephthalate Film, Sheet, and Strip Results of 3rd PET Film Review Decision year in which the GOI waived the from India: Final Results of Memorandum at ‘‘Export Promotion contingent liability on the import duty Countervailing Duty Administrative Capital Goods Scheme;’’ see also Final exemptions. See, e.g., Final Review, 72 FR 6530 (February 12, 2007) Determination of Lined Paper Determination of Lined Paper (Final Results of 3rd PET Film Review), Investigation Decision Memorandum at Investigation Decision Memorandum. In and accompanying Issues and Decision IV.A.2. ‘‘Export Promotion Capital accordance with 19 CFR 351.524(b)(2), Memorandum (Final Results of 3rd PET Goods Scheme.’’ for each of the grant amounts related to Film Review Decision Memorandum) at For those EPCGS licenses for which the particular license, we performed the ‘‘Export Promotion Capital Good Navneet has not yet met the export ‘‘0.5 percent test’’ to determine whether Scheme.’’ See also Final Determination obligations specified in the licenses by the benefit should be fully expensed in of Lined Paper Investigation Decision the end of the POR, we preliminarily the year of receipt or allocated over the Memorandum at IV.A.2. ‘‘Export find that the company had outstanding AUL used in this proceeding pursuant Promotion Capital Goods Scheme.’’ contingent liabilities during the POR. to the grant allocation methodology set Specifically, the Department has We further determine that the amount of forth in 19 CFR 351.524(d)(1). In all found that under the EPCGS program, the contingent liability will be treated as cases, the grant amounts of the licenses the GOI provides a financial an interest-free loan in the amount of exceeded 0.5 percent of Navneet’s contribution under section 771(5)(D)(ii) the import duty reduction or exemption. relevant sales. Therefore, we allocated of Act, in the form of revenue foregone Accordingly, for those unpaid duties the grant amounts over time using the that otherwise would be due. See, e.g., for which Navneet has yet to fulfill their methodology set forth under 19 CFR Final Determination of Lined Paper export obligations, we preliminarily 351.524(d)(i). Investigation Decision Memorandum at find the benefit to be the interest that To calculate the subsidy rate for this IV.A.2. ‘‘Export Promotion Capital Navneet would have paid during the program, we summed the benefits from Goods Scheme.’’ The Department also POR had it borrowed the full amount of the waived licenses, which we found this program to be specific under the duty reduction at the time of import. determined confer a benefit in the form section 771(5A)(A) of the Act because it Pursuant to 19 CFR 351.505(d)(1), we of a grant, and from those licenses that is contingent upon export performance. used a long-term interest rate as our have yet to be waived, which we We further found that the EPCGS benchmark to calculate the benefit of a determined confer a benefit in the form conferred a benefit under section contingent liability interest-free loan of contingent liability loans. We then 771(5)(E) of the Act. Id. No new because the event upon which divided the total benefits received by information or evidence of changed repayment of the duties depends (i.e., Navneet’s total export sales for the POR. circumstances has been provided with the date of expiration of the time period On this basis, we preliminarily respect to this program. Therefore, we for the company to fulfill its export determine the net countervailable continue to find that import duty commitments) occurs at a point in time subsidy from this program to be 1.35 reductions provided under the EPCGS more than one year after the date the percent ad valorem. are countervailable export subsidies. capital goods were imported. Navneet reported that it received Specifically, we used the long-term 3. The Government of India’s Income import duty exemptions under the benchmark interest rates as described in Deduction Program (80IB Tax Program) EPCGS program. For these preliminary the ‘‘Subsidies Valuation’’ section, Pursuant to the Income Tax Act of results, we have determined the benefit supra. The rate used corresponds to the 1961, as amended by the Finance Act for Navneet in accordance with our year in which Navneet imported the 2007, Chapter VIA, 80IB(4) (India) findings and treatment of this program items under the program. (2007), the GOI has implemented a tax in other Indian CVD proceedings. See, The second benefit is the waiver of policy to foster economic development e.g., Final Results of 3rd PET Film duty on imports of capital equipment of certain ‘‘industrially backward’’ Review Decision Memorandum at covered by those EPCGS licenses for regions in India. The tax exemptions ‘‘Export Promotion Capital Good which the export requirement has been allowed under the 80IB Tax Program are Scheme;’’ See also Final Determination met. For certain licenses, Navneet only available to companies located in of Lined Paper Investigation and Final reported that it had completed its export designated geographical areas (referred Determination of Lined Paper obligation under the EPCGS program, to as ‘‘backward areas’’ by the GOI) Investigation Decision Memorandum at thereby eliminating the outstanding within India.12 Under the 80IB Tax IV.A.2. ‘‘Export Promotion Capital contingent liabilities on the Program, the GOI allows domestic Goods Scheme.’’ Under the corresponding duty exemptions. companies that invest in economically However, as explained above, in Department’s approach, there are two less developed areas of India to reduce keeping with our practice, we have only types of benefits under the EPCGS their corporate taxable income by up accepted those claims that are program. The first benefit is the amount 100 percent of profit gained at accompanied by official letters from the of unpaid duties that would have to be production facilities located in GOI indicating that the company met its paid to the GOI if the export designated geographical areas for a export obligation. Thus, for purposes of requirements are not met. The period of five years and by up to 30 calculating the benefit, we treated repayment of this liability is contingent percent for the next five years. The licenses without accompanying letters on subsequent events, and in such benefit is applied to the gross total from the GOI demonstrating satisfaction instances, it is the Department’s practice income of the tax payer and is claimed of the company’s export obligations as to treat any balance on an unpaid when a company files its income tax contingent liabilities. liability as an interest-free loan. See 19 return at the end of every financial year. For those licenses for which Navneet CFR 351.505(d)(1). We preliminarily determine that the demonstrated that it had fulfilled the Further, consistent with our policy, 80IB Tax Program is a countervailable export obligations, we followed our absent acknowledgment in the form of program. Specifically, we preliminarily an official letter from the GOI that the methodology set forth in the Final liability has been eliminated, we treat Determination of Lined Paper 12 ‘‘Industrially backward’’ states are states and benefits from these licenses as Investigation and treated the import union territories specified in the Eight Schedule of contingent liabilities. See, e.g., Final duty savings as grants received in the the Indian tax code.

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determine that a financial contribution B. Programs Administered by the State submit written comments in response to is provided under this program, in the Governments these preliminary results within 30 days form of foregone tax revenue, within the State Government of Gujarat after the publication date of these meaning of section 771(5)(D)(ii) of the Programs: preliminary results. Rebuttal briefs, Act. We further preliminarily determine 1. State Government of Gujarat limited to arguments raised in case that the GOI provided a benefit under Provided Tax Incentives. briefs, must be submitted no later than this program in an amount equal to the State Government of Maharashtra five days after the time limit for filing tax savings under section 771(5)(E) of Programs: case briefs, unless otherwise specified the Act. In addition, we preliminarily 2. Sales Tax Program from by the Department, pursuant to 19 CFR determine that the program is limited to Maharashtra. 351.309(d)(1). Parties who submit enterprises in geographically limited 3. Electricity Duty Exemptions Under argument in this proceeding are areas and, therefore, is specific within the State Government of Mahatrashtra’s requested to submit with the argument: the meaning of section 771(5A)(D)(iv) of (SGM) Package Scheme of Incentives of (1) A statement of the issues, (2) a brief the Act. 1993. summary of the argument, and (3) a One of Navneet’s manufacturing 4. Refunds of Octroi Under the PSI of table of statutes, regulations and case plants operates in a region that is 1993, Maharashtra Industrial Policy citied. Parties submitting case and/or designated by the GOI as an (MIP of 2001) and Maharashtra rebuttal briefs are requested to provide ‘‘industrially backward’’ territory of Industrial Policy (MIP of 2006). the Department copies of the public India and therefore, the company is 5. Infrastructure Subsidies to Mega version on disk. Case and rebuttal briefs eligible for the tax incentives described Projects. must be served on interested parties in above. Navneet reported that it received 6. Land for Less than Adequate accordance with 19 CFR 351.303(f). tax deductions under this program Remuneration (for firms operating in Also, pursuant to 19 CFR 351.310(c), during the POR on its 2006 corporate areas outside of the Bombay and Pune within 30 days of the date of publication income tax return, which was the return metropolitan areas). of this notice, interested parties may filed by the company during the POR. 7. Loan Guarantees Based on Octroi request a public hearing on arguments The Department typically treats a tax Refunds by the SGM. to be raised in the case and rebuttal deduction as a recurring benefit in briefs. Unless the Secretary specifies accordance with 19 CFR 351.524(c)(1). Preliminary Results of Review otherwise, the hearing, if requested, will Under 19 CFR 351.509(a), the benefit is In accordance with 19 CFR be held two days after the date for equal to the difference between the 351.221(b)(4)(i), we have calculated a submission of rebuttal briefs, that is, 37 income tax that the company would subsidy rate for Navneet for the period days after the date of publication of have paid absent the program and the February 15, 2006, through December these preliminary results. income tax the company paid under the 31, 2006. We preliminarily determine Pursuant to section 751(a)(3)(A) of the program. Therefore, to calculate the the total estimated net countervailable Act and 19 CFR 351.213(h), the benefit, we subtracted the amount of subsidy rate for Navneet is 8.75 percent Department will publish the final 2006 income tax Navneet paid under the ad valorem for 2006. results of this administrative review program from the amount of income tax If the final results of this review within 120 days after the publication Navneet would have paid absent the remain the same as these preliminary date of preliminary results including the program. results, the Department intends to issue results of its analysis of arguments made To calculate the net subsidy rate, we assessment instructions to U.S. Customs in any case or rebuttal briefs. divided the benefit by Navneet’s total and Border Protection (CBP) 15 days These preliminary results of review sales for POR. On this basis, we after the date of publication of the final are issued and published in accordance preliminarily calculated an ad valorem results of review. We will instruct CBP with sections 751(a)(1) and 777(i)(1) of rate of 0.47 percent. to collect cash deposits for Navneet at the Act and 19 CFR 351.221(b)(4). the CVD rate indicated above of the Free II. Programs Preliminarily Determined Dated: September 29, 2009. On Board (F.O.B.) invoice price on all Not To Be Used David M. Spooner, shipments of the subject merchandise A. Programs Administered by the entered, or withdrawn from warehouse, Assistant Secretary for Import Administration. Government of India for consumption on or after the date of publication of the final results of this [FR Doc. E8–23565 Filed 10–3–08; 8:45 am] 1. Duty Replenishment Certificate review. We will also instruct CBP to BILLING CODE 3510–DS–P Scheme. continue to collect cash deposits for 2. Advance License Program. non-reviewed companies at the most DEPARTMENT OF COMMERCE 3. Export Processing Zones and recent company-specific or country- Export Oriented Units. wide rate applicable to the company. National Oceanic and Atmospheric 4. Target Plus Scheme. These deposit requirements, when Administration 5. Export Processing Zones. imposed, shall remain in effect until 6. Income Tax Exemption Scheme further notice. Notice of Indirect Cost Rates for the (Sections 10A, 10B, and 80HHC). Public Comment Office of National Marine Sanctuaries 7. Market Development Assistance. for Fiscal Year 2006 Pursuant to 19 CFR 351.224(b), the 8. Status Certificate Program. Department will disclose to parties to AGENCY: National Oceanic and 9. Market Access Initiative. the proceeding any calculations Atmospheric Administration (NOAA), 10. Loan guarantees from the GOI. performed in connection with these Commerce. 11. Exemption of Export Credit from preliminary results not later than ten ACTION: Notice of indirect cost rates for Interest Taxes. days after the public announcement of the Office of National Marine 12. Pre and Post-shipment Export this notice. Pursuant to 19 CFR Sanctuaries for Fiscal Year 2006. Financing. 351.309(c)(ii), interested parties may

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SUMMARY: The National Oceanic and required to account for and report the The ONMS Indirect Cost Rates and Atmospheric Administration’s full costs of its programs and activities. Policies (NOAA’s) Office of National Marine Further, the ONMS is authorized by law The ONMS will apply the indirect Sanctuaries (ONMS) is announcing the to recover reasonable costs of damage cost rates for FY 2006 as recommended establishment of new indirect cost rates assessment and restoration activities by C&C for each of the ONMS on the recovery of indirect costs for its under CEROLA, OPA, and the NMSA. component organizations as provided in component organizations involved in Within the constraints of these legal the following table: natural resource damage assessment and provisions and their regulatory restoration activities for fiscal year (FY) applications, the ONMS has the FY 2006 2006. The indirect cost rates for this ONMS component discretion to develop indirect cost rates organization indirect rate fiscal year and dates of implementation (percent) for its component organizations and are provided in this notice. More formulate policies on the recover of information on these rates and the Office of National Marine Sanctuaries (ONMS) ...... 137.35 NMSP policy can be obtained from the indirect cost rates subject to its requirements. ONMS Florida Keys National address provided below. Marine Sanctuary FOR FURTHER INFORMATION CONTACT: The ONMS Indirect Cost Effort (FKNMS) ...... 216.43 Harriet Sopher, 301–713–3125, ext. 271; (FAX: 301–713–0404; e-mail: In October 2002, the ONMS hired the The FY 2006 rates identified in this [email protected]. public accounting firm Cotton & policy will be applied to all damage Company (C&C) to: (1) Evaluate the cost SUPPLEMENTARY INFORMATION: The assessment and restoration case costs mission of the ONMS with respect to accounting system and allocation incurred between October 1, 2005 and Natural Resource Damage Assessment is practices; (2) recommend the present, using the Direct Labor Cost base to restore injuries to sanctuary resources appropriate indirect cost allocation allocation methodology. The ONMS will caused by releases of hazardous methodology; and, (3) determine the use the FY 2006 rates for future fiscal substances or oil under the indirect cost rates for the organizations years until year-specific rates can be Comprehensive Environmental that comprise the ONMS. developed. For cases that have been Response, Compensation, and Liability The ONMS requested an analysis of settled and for costs claims paid prior to Act (CERCLA) (42 U.S.C., 9601 et seq.) its indirect costs for fiscal year 2002. the effective date of the fiscal year in or the Oil Pollution Act of 1990 (OPA) The goal was to develop the most question, the ONMS will not re-open (33 U.S.C., 2701 et seq.), or physical appropriate indirect cost rate allocation any resolved matters for the purpose of applying the rates in this policy. For injuries under the National Marine methodology and rates for the ONMS cases not settled and cost claims not Sanctuaries Act (NMSA) (16 U.S.C., component organizations. C&C has paid prior to the effective date of the 1431 et seq.). The NOAA ONMS continued its assessment of the ONMS consists of the following component fiscal year in question, costs will be indirect cost rate system and structure recalculated using the rates in this organizations: Thirteen National Marine annually from FY2002 through FY2006. Sanctuaries and one National policy. Monument within NOAP’s National C&C concluded that the cost Dated: September 25, 2008. accounting system and allocation Ocean Service. The ONMS conducts Daniel J. Basta, practices of the ONMS component Natural Resource Damage Assessments Director, Office of National Marine (NRDA) as a basis for recovering organizations are consistent with Sanctuaries. Federal accounting requirements. C&C damages from responsible parties and [FR Doc. E8–23453 Filed 10–3–08; 8:45 am] also determined that the most uses the funds recovered to restore BILLING CODE 3510–NK–M injured sanctuary resources. appropriate indirect allocation method When addressing NRDA incidents, was the Direct Labor Cost Base for all the costs of the damage assessment are ONMS component organizations. The DEPARTMENT OF COMMERCE recoverable from responsible parties Direct Labor Cost Base is computed by who are potentially liable for an allocating total indirect costs over the National Oceanic and Atmospheric incident. Costs include direct and sum of direct labor dollars plus the Administration indirect costs. Direct costs are costs for application of NOAA’s leave surcharge RIN: 0648–XK87 activities that are clearly and readily and benefits rates to direct labor. The attributable to a specific output. In the indirect cost rates that C&C has Gulf of Mexico Fishery Management context of the ONMS, outputs may be computed for the ONNS component Council; Public Meetings associated with damage assessment organizations were further assessed as cases, or may be represented by other being fair and equitable. A report on AGENCY: National Marine Fisheries program products such as damage C&C’s effort, their assessment of the Service (NMFS), National Oceanic and assessment regulations. In contrast, ONMS’s cost accounting system and Atmospheric Administration (NOAA), Commerce. indirect costs reflect the costs for practice, and their determination activities that collectively support the respecting the most appropriate indirect ACTION: Notice of a public meeting. ONMS’s mission and operations. For cost methodology and rates can be example, indirect costs include general SUMMARY: The Gulf of Mexico Fishery obtained from: Harriet Sopher, ONMS Management Council will convene a administrative support and traditional 1305 East West Highway, Silver Spring, overheads. Although these costs may public meeting of the Ad Hoc MD 20910. not be readily traced back to a specific Recreational Red Snapper Advisory direct activity, indirect costs may be C&C reaffirmed that the Direct Labor Panel (AP). allocated to direct activities using an Cost Base is the most appropriate DATES: The meeting will convene at 9 indirect cost distribution rate. indirect allocation method for the a.m. on Monday, October 20, 2008 and Consistent with standard Federal development of the FY 2006 indirect conclude no later than 3 p.m. on accounting requirements, the ONMS is cost rates. Tuesday, October 21, 2008.

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ADDRESSES: This meeting will be held at DEPARTMENT OF COMMERCE St. Petersburg, FL the LaQuinta Inn, 2610 Williams 263 13th Ave. S., St Petersburg, FL National Oceanic and Atmospheric Boulevard, Kenner, LA 70062; 33701, Contact: Karolyn Potter, Administration telephone: (504) 466–1401. telephone: (727) 551–5705; Council address: Gulf of Mexico Fishery Management Council, 2203 RIN: 0648–XK88 , FL North Lois Avenue, Suite 1100, Tampa, 75 Virginia Beach Dr., Miami, FL Gulf of Mexico Fishery Management FL 33607. 33149, Contact: Sonia Prevo, telephone: Council (Council); Public Meetings FOR FURTHER INFORMATION CONTACT: (305) 361–4200; and Steven Atran, Population Dynamics AGENCY: National Marine Fisheries City, FL Statistician; Gulf of Mexico Fishery Service (NMFS), National Oceanic and Management Council; telephone: (813) Atmospheric Administration (NOAA), 3500 Delwood Beach Rd., Panama 348–1630. Commerce. City, FL 32408, Contact: Janice Hamm, telephone: (850) 234–6541. ACTION: SUPPLEMENTARY INFORMATION: The Notice of a public meeting. Special Accommodations Council previously reviewed 27 SUMMARY: The Gulf of Mexico Fishery recommendations from the AP for Management Council to convene its The listening stations are physically improving recreational red snapper Standing SSC via conference call. accessible to people with disabilities. management, and selected four of the Requests for sign language DATES: The conference call will be held recommendations for further review. interpretation or other auxiliary aids October 21, 2008, at 9:30 a.m. EDT. Those recommendations include: (1) should be directed to Tina O’Hern at the regional management of recreational red ADDRESSES: The meeting will be held Council (see ADDRESSES) at least 5 snapper fishing; (2) recreational reef fish via conference call and listening working days prior to the meeting. stations will be available. For specific permitting system with red snapper Dated: October 1, 2008. endorsement; (3) limited access locations, see SUPPLEMENTARY Tracey L. Thompson, privilege programs in the for-hire and INFORMATION. private recreational sectors; and (4) Council address: Gulf of Mexico Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. catch cards and fish tag systems. At this Fishery Management Council, 2203 meeting, the AP will discuss issues and North Lois Avenue, Suite 1100, Tampa, [FR Doc. E8–23546 Filed 10–3–08; 8:45 am] possible alternatives to consider for FL 33607. BILLING CODE 3510–22–S each of these ideas, and will provide FOR FURTHER INFORMATION CONTACT: Dr. Richard Leard, Interim Executive recommendations back to the Council DEPARTMENT OF COMMERCE for possible further development. Director, Gulf of Mexico Fishery Although other non-emergencyissues Management Council; telephone: (813) National Oceanic and Atmospheric not on the agenda may come before the 348–1630. Administration panel for discussion, in accordance with SUPPLEMENTARY INFORMATION: The the Magnuson-Stevens Fishery Standing SSC will discuss and develop RIN: 0648–XK89 Conservation and Management Act recommendations for the Council on a (Magnuson-Stevens Act), those issues 5-year research plan for fisheries Pacific Fishery Management Council; may not be the subject of formal panel managed by the Council. Once approved Public Hearings action during this meeting. Panel action by the Council at its October 2008 AGENCY: will be restricted to those issues meeting, the 5-year research plan will be National Marine Fisheries specifically identified in the agenda and submitted to the NMFS for Service (NMFS), NationalOceanic and any issues arising after publication of implementation and funding. Atmospheric Administration (NOAA), this notice that require emergency Although other non-emergency issues Commerce. action under Section 305(c) of the not on the agenda may come before the ACTION: Notice of public hearings. Magnuson-Stevens Act, provided the Standing SSC for discussion, in SUMMARY: The Pacific Fishery public has been notified of the Council’s accordance with the Magnuson-Stevens Management Council (Council) will intent to take action to address the Fishery Conservation and Management hold public hearings on draft emergency. Act (Magnuson-Stevens Act), those issues may not be the subject of formal Amendment 20 (Trawl Rationalization) A copy of the agenda can be obtained to its groundfish fishery management by calling (813) 348–1630. action during the meeting. Actions will be restricted to the issue specifically plan (FMP). These hearings are Special Accommodations identified in the agenda and any issues preparatory to the final Council decision on Amendment 20, scheduled for the This meeting is physically accessible arising after publication of this notice that require emergency action under November 2–7, 2008 Council meeting, to people with disabilities. Requests for in San Diego, CA. sign language interpretation or other Section 305(c) of the Magnuson-Stevens Act, provided the public has been DATES: The hearings will be held on auxiliary aids should be directed to Tina October 27–29, 2008. O’Hern at the Council (see ADDRESSES) notified of the Standing SSC’s intent to at least 5 working days prior to the take action to address the emergency. ADDRESSES: Hearing locations will be meeting. The conference call will begin at 9:30 held in Newport, OR, Olympia, WA, a.m. EDT and conclude no later than Eureka, CA, Astoria, OR, and Santa Dated: October 1, 2008. 12:30 p.m. EDT. Listening stations are Cruz, CA. See SUPPLEMENTARY Tracey L. Thompson, available at the following locations: INFORMATION for specific addresses. Acting Director, Office of Sustainable The Gulf Council office (see Council address: Pacific Fishery Fisheries, National Marine Fisheries Service. ADDRESSES), and the National Marine Management Council, 7700 NE [FR Doc. E8–23545 Filed 10–3–08; 8:45 am] Fisheries Service (NMFS) offices as Ambassador Place, Suite 101, Portland, BILLING CODE 3510–22–S follows: OR 97220.

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FOR FURTHER INFORMATION CONTACT: Mr. DEPARTMENT OF COMMERCE Oceanic and Atmospheric Jim Seger, telephone: (503) 820–2280. Administration (NOAA) has a SUPPLEMENTARY INFORMATION: These National Oceanic and Atmospheric responsibility to provide the Nation public hearings are being held in Administration with objective data and tools to help preparation for a Council final decision [Docket No. 0809181225–81227–01] characterize, understand, predict, on trawl rationalization scheduled for mitigate and coordinate its Climate Data its November 2008 meeting. The agenda Scientific Data Stewardship Project Record (CDR) activities with other for the November 2008 Council meeting Office for 2009 agencies through the U.S. adapt to will be published in a subsequent climate change and variability. To help AGENCY: National Environmental Federal Register, prior to the actual fulfill that responsibility, NOAA has Satellite Data and Information Service begun Climate Change Science Program meeting. The analytical package Program Office (NESDISPO), National supporting the Council deliberations (CCSP). The National Research Council Environmental Satellite Data and defines a CDR as ‘‘a time series of (including a preliminary draft Information Service (NESDIS), National environmental impact statement) is measurements of sufficient length, Oceanic and Atmospheric consistency, and continuity to available from the Council web site Administration (NOAA), Commerce. (www.pcouncil.org) and on request from determine climate variability and ACTION: Notice of funding availability. the Council office. change.’’ NOAA’s National Climatic Data Center (NCDC) initiated the SUMMARY: The Scientific Data Schedule for Public Hearings Scientific Data Stewardship (SDS) Stewardship (SDS) Project seeks to Project (hereafter referred to as the Public hearings will be held to receive support the development and Project) to lead the Agency’s CDR comments on the draft Amendment 20 stewardship of Climate Data Records activities and to coordinate with the at the following dates, times and (CDRs) for the atmosphere, cryosphere, locations: partner agencies. Given that early oceans, and land surface. The Project algorithm development is supported October 27, 2008 (2 P.M): follows the National Research Council’s elsewhere, the Project is focused on the 2004 distinction between Fundamental •Best Western Agate Beach Inn, (2 generalization and application of mature and Thematic Climate Data Records, sections of Ballroom TBD), 3019 N. algorithms to multiple satellites and and is initially focused on Fundamental Coast Highway, Newport, OR, sensors which together span climate- CDRs and lower complexity Thematic telephone: (541) 265–9411. relevant time periods. It also supports CDRs. The SDS Project is managed by development of Climate Information October 28, 2008 (Olympia, 3 P.M., NOAA, but is informed by other Records (CIRs), defined as time series Eureka, 2 P.M.): government agencies such that its derived from CDRs and related long- •Washington Dept. of Fish Wild, results represent a government-wide term measurements that provide Natural Resources Building, 1st Floor, contribution to climate change specific information (e.g., drought area, Room 172, 1111 Washington Street NE, detection, assessment, understanding, hurricane trends) about complex Olympia, WA 98504. adaptation and/or mitigation. environmental phenomena in a manner •Red Lion, Evergreen Ballroom, 1929 DATES: Letters of Intent should be useful to a variety of applications and Fourth Street, Eureka, CA. received no later than 5 p.m. Eastern user communities. Together, the various Time, October 31, 2008. Full proposals SDS products serve a wide range of October 29, 2008 (3 P.M.): must be received no later than 5 p.m. scientific, commercial, decision support •Holiday Inn Express, Riverview 1 Eastern Time, December 15, 2008. and policy-making needs. Various CDRs and 2, 205 West Marine Drive, Astoria, ADDRESSES: Applications are available have been developed in the past, most OR. at http://www.grants.gov. If the notably through the NOAA–NASA •University Inn and Conf Center, applicant does Internet it take several Pathfinder Program in the 1990s. NOAA Sierra Room, 611 Ocean Street, Santa weeks, involving multiple steps. In intends to leverage lessons from such Cruz, CA. order to allow sufficient time for this efforts into a more systematic, These hearings are exclusively for the process, applicants should register as comprehensive and sustained program. purpose of receiving public comment on soon as possible, even if they are not yet To help achieve this, the Project plans draft Amendment 20 to the groundfish ready to submit their proposal. If an to execute its responsibilities in FMP and the accompanying analytical applicant has problems downloading partnership with the larger scientific package. No formal actions will be taken the application package from community through regular NOAA at the hearings. Grants.gov, contact Grants.gov Customer Announcements of Opportunity as well as through community reviews and Special Accommodations Support at (800) 518–4726 or [email protected]. working groups. The Project represents The hearings are physically accessible FOR FURTHER INFORMATION CONTACT: one of NOAA’s primary contributions to to people with disabilities. Requests for SDSPO Grants Manager: Linda S. the CCSP’s climate data goals. sign language interpretation or other Electronic Access: The full text of the Statler, NOAA Scientific Data auxiliary aids should be directed to Ms. full funding opportunity announcement Stewardship Project Office, 151 Patton Carolyn Porter at (503) 820–2280 for this program can be accessed via the Ave., Asheville, NC 28801; Phone: 828– (voice), or (503) 820–2299 (fax) at least Grants.gov Web site at http:// 5 days prior to the meeting date. 271–4657; E-mail: Linda.S.Statler-at- www.grants.gov. The announcement noaa.gov. SDSPO Project Manager: Jeff will also be available by contacting the Authority: 16 U.S.C. 1801 et seq. Privette, NOAA Scientific Data program officials identified under FOR Dated: October 1, 2008. Stewardship Project Office, 151 Patton FURTHER INFORMATION CONTACT. Tracey L. Thompson, Ave., Asheville, NC28801; Phone: 828– Applicants must comply with all Acting Director, Office of Sustainable 271–4331; E-mail: Jeff.Privette-at- requirements contained in the full Fisheries, National Marine Fisheries Service. noaa.gov. funding opportunity announcement. [FR Doc. E8–23548 Filed 10–3–08; 8:45 am] SUPPLEMENTARY INFORMATION: As part of Statutory Authority: 49 U.S.C. BILLING CODE 3510–22–S its climate mandate, the National 44720(b) and 33 U.S.C. 883d.

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CFDA: 11.440, Environmental criteria for full applications will have peer panel reviewers for that proposal Sciences, Applications, Data, and different weights and details. Further will be averaged to produce a single Education. information about the evaluation criteria numerical score for the proposal. The Funding Availability: The total and selection factors can be found in the average score for each proposal will be anticipated federal funding in FY 2009 full funding opportunity announcement. used to determine rank of proposals. is $2.6M for new awards. The Evaluation Criteria for Projects: 1. The Project Manager will recommend anticipated number of new awards, Importance and/or relevance and proposals to the Selecting Official in pending adequate proposals of merit, is applicability of proposed project to the numerical rank order unless the from 5 to 15. Please be advised that program goals (40%). This ascertains proposal is justified to be selected out actual funding levels will depend upon whether there is intrinsic value in the of rank order based upon additional the final FY 2009 budget appropriations. proposed work and/or relevance to documented requirements of any Current plans assume that 100% of the NOAA, Federal, regional, Project, selection factor listed in section C. total resources provided through the NOAA and CCSP CDR goals, and if the below. The Project Manager will review present FY 2009 SDS Announcement work is applicable to the FY 2009 the amounts requested for each selected will support extramural efforts that Priority State, or local activities. For the proposal (including costs for computing include the broad academic, non-profit, SDS competition, this includes and networking services) and federal and commercial communities. In relevance to the SDS CDRs or activities. recommend the total duration and the FY 2007, the first year of SDS grants, the 2. Technical/Scientific Merit (40%). amount of funding, which may be less Project made eight awards totaling This assesses whether the approach is than the proposal and budget requested. approximately $800K. In FY 2008, the technically sound and/or innovative, if The Selecting Official will review the Project expanded total funding to nearly the methods are appropriate, and recommendations. $1,000K, which included funding for whether there are clear project goals and Selection Factors for Projects: The three new starts. Past or current grantees objectives. 3. Overall Qualifications of Selecting Official shall award in rank funded under this announcement are Applicants (10%). This ascertains order unless a proposal is justified to be eligible to apply for a new award, which whether the applicant possesses the selected out of rank order based upon builds on previous activities or areas of necessary education, experience, any of the following factors: 1. research not covered in the previous training, facilities, and administrative Availability of funding 2. Balance/ award. Current grantees should not resources to accomplish the project. 4. distribution of funds a. Geographically request supplementary funding for Project Costs (10%). The budget is b. By type of institutions c. By type of ongoing research through this evaluated to determine if it is realistic partners d. By research area e. By announcement. The exact amount of and commensurate with the project project types 3. Duplication of other funds that may be representatives. needs and time-frame. 5. Outreach and projects funded or considered for Awards are to be up to three years in Education (0%). NOAA assesses funding by NOAA/federal agencies 4. length except where noted otherwise whether this project provides a focused SDS Project priorities and policy factors awarded will be determined in pre- and effective education and outreach 5. Applicant’s prior award performance award negotiations between the strategy regarding NOAA’s mission to 6. Partnerships with/participation of applicant and NOAA by the Project. protect the Nation’s natural resources. targeted group 7. Adequacy of Eligibility: Eligible applicants are For the SDS competition, this criterion information necessary for NOAA staff to institutions of higher education; other is not scored. make a NEPA determination and draft nonprofits; for profits; commercial Review and Selection Process: Once a necessary documentation before organizations; international full application has been received by recommendations for funding are made organizations; state, local and Indian SDSPO, an initial administrative review to the Grants Officer. The Selecting tribal governments; and Federal is conducted to determine compliance Official makes final recommendations agencies. Applications from non-Federal with requirements and completeness of for award to the Grants Officer who is and Federal applicants will be the application. Independent peer mail authorized to obligate the funds. competed against each other. Please reviewers, and/or independent peer Intergovernmental Review: Note: Before non-NOAA Federal panel reviewers consisting of Federal, or Applications under the SDS Project are applicants may be funded, they must a combination of both Federal and non- not subject to Executive Order 12372, demonstrate that they have legal Federal experts, will evaluate full ‘‘Intergovernmental Review of Federal authority to receive funds from another proposals in accordance with the Programs.’’ Federal agency in excess of their evaluation criteria. If peer mail review Limitation of Liability: In no event appropriation. The only exception to and peer panel review are both will NOAA or the Department of this is governmental research facilities conducted, the mail reviews will be Commerce be responsible for proposal for awards issued under the authority of provided to the panel for use in its preparation costs if these programs fail 49 U.S.C. 44720(b). Because this deliberations prior to providing its to receive funding or are cancelled announcement is not proposing to ratings. If only a peer mail review is because of other agency priorities. procure goods or services from conducted, the Project Manager will use Publication of this announcement does applicants, the Economy Act (31 U.S.C. the rank numerical order of the mail not oblige NOAA to award any specific 1535) is not an appropriate legal basis. reviews to determine funding project or to obligate any available Cost Sharing Requirements: This recommendations. If only a peer panel funds. competition does not have Cost Sharing review or both a peer panel review and National Environmental Policy Act requirements. However, applicants are a peer mail review are conducted, the (NEPA): NOAA must analyze the welcome to describe applicable cost- Project Manager will use the numerical potential environmental impacts, as sharing when relevant. rank order of the peer review panel to required by the National Environmental Evaluation and Selection Procedures: determine funding recommendations. Policy Act (NEPA), for applicant The general evaluation criteria and Occasionally a reviewer may, due to projects or proposals which are seeking selection factors that apply to full lack of familiarity in a particular area, NOAA federal funding opportunities. applications to this funding opportunity choose not to score a particular Detailed information on NOAA are summarized below. The evaluation proposal. The scores from remaining compliance with NEPA can be found at

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the following NOAA NEPA Web site: The Department of Commerce Pre- other law, the analytical requirements http://www.nepa.noaa.gov/, including Award Notification Requirements for for the Regulatory Flexibility Act (5 our NOAA Administrative Order 216–6 Grants and Cooperative Agreements: U.S.C. 601 et seq.) are inapplicable. for NEPA, http://www.nepa.noaa.gov/ The Department of Commerce Pre- Therefore, a regulatory flexibility NAO216_6_TOC.pdf, and the Council Award Notification Requirements for analysis has not been prepared. on Environmental Quality Grants and Cooperative Agreements implementation regulations, http:// contained in the Federal Register notice Mary E. Kicza, ceq.eh.doe.gov/nepa/regs/ceq/ of February 11, 2008 (73 FR 7696), are Assistant Administrator for Satellite and toc_ceq.htm. applicable to this solicitation. Information Services. Consequently, as part of an Paperwork Reduction Act: This [FR Doc. E8–23516 Filed 10–3–08; 8:45 am] applicant’s package, and under their document contains collection-of- BILLING CODE 3510–22–P description of their program activities, information requirements subject to the applicants are required to provide Paperwork Reduction Act (PRA). The detailed information on the activities to use of Standard Forms 424, 424A, 424B, be conducted, locations, sites, species and SF–LLL and CD–346 has been DEPARTMENT OF DEFENSE and habitat to be affected, possible approved by the Office of Management Office of the Secretary construction activities, and any and Budget (OMB) under the respective environmental concerns that may exist control numbers 0348–0043, 0348–0044, (e.g., the use and disposal of hazardous 0348–0040, 0348–0046, and 0605–0001. [Transmittal Nos. 08–85] or toxic chemicals, introduction of non- Notwithstanding any other provision of 36(b)(1) Arms Sales Notification indigenous species, impacts to law, no person is required to, nor shall endangered and threatened species, a person be subject to a penalty for AGENCY: Department of Defense, Defense aquaculture projects, and impacts to failure to comply with, a collection of Security Cooperation Agency. coral reef systems). In addition to information subject to the requirements ACTION: Notice. providing specific information that will of the PRA unless that collection of serve as the basis for any required information displays a currently valid SUMMARY: The Department of Defense is impact analyses, applicants may also be OMB control number. publishing the unclassified text of a requested to assist NOAA in drafting of Executive Order 12866: This notice section 36(b)(1) arms sales notification. an environmental assessment, if NOAA has been determined to be not This is published to fulfill the determines an assessment is required. significant for purposes of Executive requirements of section 155 of Public Applicants will also be required to Order 12866. Law 104–164 dated 21 July 1996. Executive Order 13132 (Federalism): cooperate with NOAA in identifying FOR FURTHER INFORMATION CONTACT: Ms. feasible measures to reduce or avoid any It has been determined that this notice B. English, DSCA/DBO/CFM, (703) 601– identified adverse environmental does not contain policies with 3740. impacts of their proposal. The failure to Federalism implications as that term is The following is a copy of a letter to do so shall be grounds for not selecting defined in Executive Order 13132. the Speaker of the House of Administrative Procedure Act/ an application. In some cases if Representatives, Transmittals 08–85 Regulatory Flexibility Act: Prior notice additional information is required after with attached transmittal, policy and an opportunity for public comment an application is selected, funds can be justification, and Sensitivity of are not required by the Administrative withheld by the Grants Officer under a Technology. special award condition requiring the Procedure Act or any other law for rules recipient to submit additional concerning public property, loans, Dated: September 25, 2008. environmental compliance information grants, benefits, and contracts (5 U.S.C. Patricia L. Toppings, sufficient to enable NOAA to make an 553(a)(2)). Because notice and OSD Federal Register Liaison Officer, assessment on any impacts that a project opportunity for comment are not Department of Defense. may have on the environment. required pursuant to 5 U.S.C. 553 or any BILLING CODE 5001–06–M

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[FR Doc. E8–23331 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–87 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–87] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23332 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–97 publishing the unclassified text of a with attached transmittal and policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification. Office of the Secretary This is published to fulfill the Dated: September 25, 2008. requirements of section 155 of Public Patricia L. Toppings, [Transmittal Nos. 08–97] Law 104–164 dated 21 July 1996. Federal Register Liaison Officer, Department 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. of Defense. B. English, DSCA/DBO/CFM, (703) 601– AGENCY: Department of Defense, Defense BILLING CODE 5001–06–M 3740. Security Cooperation Agency.

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[FR Doc. E8–23333 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–84 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–84] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23334 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–16 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(l) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–16] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency.

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[FR Doc. E8–23335 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–19 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–19] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23337 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–26 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–26] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCAIDBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23344 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–36 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(l) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–36] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCAIDBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23345 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–62 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–62] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23348 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–64 publishing the unclassified text of a with attached transmittal, and policy DEPARTMENT OF DEFENSE section 36(b)(l) arms sales notification. justification. Office of the Secretary This is published to fulfill the Dated: September 25, 2008. requirements of section 155 of Public Patricia L. Toppings, [Transmittal Nos. 08–64] Law 104–164 dated 21 July 1996. OSD Federal Register Liaison Officer, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. Department of Defense. B. English, DSCA/DBO/CFM, (703) 601– AGENCY: Department of Defense, Defense BILLING CODE 5001–06–M 3740. Security Cooperation Agency.

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[FR Doc. E8–23349 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–71 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–71] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23351 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–72 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–72] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23352 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–75 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–75] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCAIDBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23353 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–79 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public Dated: September 25, 2008. [Transmittal Nos. 08–79] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23354 Filed 10–3–08; 8:45 am] ACTION: Notice. The following is a copy of a letter to BILLING CODE 5001–06–C the Speaker of the House of SUMMARY: The Department of Defense is Representatives, Transmittals 08–82 publishing the unclassified text of a with attached transmittal, policy DEPARTMENT OF DEFENSE section 36(b)(1) arms sales notification. justification, and Sensitivity of Technology. Office of the Secretary This is published to fulfill the requirements of section 155 of Public September 25, 2008. [Transmittal Nos. 08–82] Law 104–164 dated 21 July 1996. Patricia L. Toppings, 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. OSD Federal Register Liaison Officer, B. English, DSCA/DBO/CFM, (703) 601– Department of Defense. AGENCY: Department of Defense, Defense 3740. Security Cooperation Agency. BILLING CODE 5001–06–M

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[FR Doc. E8–23355 Filed 10–3–08; 8:45 am] and to preventing hazardous conditions • Expands Glossary to include new BILLING CODE 5001–06–C from arising to endanger life and terms used in the revised Chapter 12, property inside or outside of storage and new Chapters 15 and 16 reservations,’’ the DDESB (formerly • Removes the exception for quantity- DEPARTMENT OF DEFENSE known as the Ammunition Safety distance (QD) application to roll-on and Board) has periodically revised or roll-off ammunition and explosives Office of the Secretary updated the Standard based on new operations scientific or technical information and • Establishes criteria for the siting of Revision of the DoD 6055.09–STD, explosives safety experience. The and authorized operations at reduced ‘‘Department of Defense Ammunition implementation of a change to DoD QD magazines and Explosives Safety Standards’’ 6055.09–STD depends on formal • Expands the criteria for application AGENCY: Department of Defense. publication of a change to DoD 6055.09– of no QD to ammunition and explosives ACTION: Notice of change. STD. In order to ensure compliance, the stored in ships’ magazines and intended DoD Components modify their for the service of shipboard armament or SUMMARY: The Chairman, Department of implementing procedures and standards aircraft Defense Explosives Safety Board accordingly. In adopting these changes, the (DDESB), is today announcing several This revision to the 5 October 2004 Chairman, DDESB has determined that changes to DoD 6055.9–STD, dated 5 version of DoD 6055.09–STD the Standards, as changed, are at least October 2004. The DDESB is incorporates, as appropriate, as protective as the previous Standards. republishing the Standard (now DoD recommendations made by Voting Dated: September 29, 2008. 6055.09–STD) with changes deliberated Board members at the 327th DDESB by the Voting Board members from meeting held on December 14, 2004, Patricia L. Toppings, October 5, 2004 to July 18, 2005. and the 328th DDESB meeting held on OSD Federal Register Liaison Officer, The DDESB is taking this action July 18, 2005, and included in their Department of Defense. pursuant to its statutory authority as set replies to DDESB vote by [FR Doc. E8–23522 Filed 10–3–08; 8:45 am] forth in Title 10, United States Code, correspondence memoranda dated BILLING CODE 5001–06–P Section 172 (10 U.S.C. 172) and DoD March 11, 2005 and June 30, 2005. Directive 6055.9E, ‘‘Explosives Safety The changes included herein address Management and the Explosives Safety the following: DEPARTMENT OF DEFENSE Board (DDESB),’’ August 19, 2005. The • Replaces Chapter 12 ‘‘Real Property Office of the Secretary Standard is applicable to the Office of Contaminated with Ammunition, the Secretary of Defense, the Military Explosives or Chemical Agents’’ with Notification of Upcoming Meeting of Departments, the Office of the Chairman completely revised Chapter 12 ‘‘Real the Defense Advisory Board for of the Joint Chiefs of Staff, the Property Known or Suspected to Employer Support of the Guard and Contain Munitions and Explosives of Combatant Commands, the Office of the Reserve (DAB–ESGR) Inspector General of the Department of Concern and Chemical Agents’’ that Defense, the Defense Agencies, the DoD includes explosives safety standards for AGENCY: Department of Defense. Field Activities, and all other the identification and control of areas ACTION: Notice of open meeting. organizational entities in the known or suspected to contain Department of Defense (hereafter Munitions and Explosives of Concern SUMMARY: This notice announces a referred to collectively as the ‘‘DoD (MEC) or Chemical Agents (CA), meeting of the DAB–ESGR. This Components’’). addresses explosives and CA safety meeting will focus on the response to a Through DoD 6055.09–STD, the aspects of response actions as well as recommendation to create a single point DDESB establishes minimum explosives special considerations, provides criteria communication system to notify safety requirements for storing and for required safety submissions as well employers of Guard and Reserve handling ammunition and explosives. as for amendments and corrections to members. This meeting is open to the Copies of the revised Standard dated these submissions, provides criteria for public. February 29, 2008, may be downloaded after action reports, provides criteria for DATES: November 19, 2008 (0830–1630 from the DoD Directives Program Web transfer of real property outside of DoD hours). site at http://www.dtic.mil/whs/ control ADDRESSES: Crystal Gateway Marriott, directives. • Relocates criteria for the termination of use of facilities storing 1700 Jefferson Davis Highway, FOR FURTHER INFORMATION CONTACT: For ammunition and explosives from the Arlington VA 22202. more detailed information on specific previous Chapter 12 to Chapter 1 The public is asked to pre-register aspects of this Standard, contact Dr. • Includes a new Chapter 15 three weeks in advance of the meeting Jerry M. Ward, phone: (703) 325–2525; ‘‘Unexploded Ordnance (UXO)’’ that due to security and or seating e-mail: [email protected]; provides criteria for the disposition of limitations (see below information for DDESB, 2461 Eisenhower Avenue, UXO, addresses special considerations, pre-registration). Room 856C, Alexandria, VA 22331– provides criteria for access to areas FOR FURTHER INFORMATION: Interested 0600. known or suspected to contain UXO and attendees may contact MAJ Elaine M. SUPPLEMENTARY INFORMATION: Dating for identification and control of such Gullotta at 703–696–1385 ext 540, or e- back to 1928 when Congress directed areas, provides minimum separation mail at [email protected]. the Secretaries of the military distances for UXO, addresses other SUPPLEMENTARY INFORMATON: departments to establish a joint board of considerations officers to ‘‘keep informed on stored • Includes a new Chapter 16 Agenda supplies of ammunition and ‘‘Material Potentially Presenting an 0830 Convene (Mr. James G. Rebholz, components thereof * * *, with Explosives Hazard (MPPEH)’’ that Chairman). particular regard to keeping those provides explosives safety standards for 0835 Oath of Office (Mr. Frank supplies properly dispersed and stored MPPEH Wilson).

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0840 Minutes approval, Due Outs from least three weeks prior to the meeting construction of a new ocean outfall last meeting and subcommittee date so that the comments may be made structure extending from the coastline update (Mr. James G. Rebholz, available to the Board for consideration in the vicinity of White Point, Point Chairman). prior to the meeting. Written comments Fermin, or the Port of Los Angeles up 0850 Discussion, Response to Board should be supplied MAJ Elaine Gullotta to approximately 7 miles seaward of San Recommendation (Mr. James G. in one of the following formats (Word, Pedro Bay in the Pacific Ocean. The Rebholz, Chairman). PDF) via mail or email at least two construction of the structure would 1030 Break. weeks prior to the meeting. Please Note: entail discharge of dredged and fill 1045 Honorable Thomas F. Hall, The Board operates under the material in waters of the United States, Assistant Secretary of Defense provisions of the Federal Advisory work in navigable waters of the United Reserve Affairs. Committee Act, as amended, all public States, and potentially the transport of 1200 Lunch. presentations will be treated as public dredged material for ocean disposal. 1330 Public Comment. documents and will be made available Accordingly, the Sanitation Districts 1340 Discussion of Public Comment. 1400 Review and discussion of DAB for public inspection, up to and intend to submit a Department of Army Recruitment Efforts, way ahead (Mr. including being posted on the Federal application pursuant to Section 404 of James G. Rebholz, Chairman). Advisory Committee Web site. the Clean Water Act (CWA), Section 10 1515 Break. Written comments may be sent to: of the Rivers and Harbors Act (RHA), 1545 Summary of Proceedings, Employer Support of the Guard and and if necessary Section 103 of the Administrative Announcements, Reserve, 1555 Wilson Blvd, Suite 200, Marine Protection, Research, and Subcommittee Due Outs. Arlington, VA 22209, Attention: MAJ Sanctuaries Act (MPRSA). 1615 Awards, Photos. Elaine Gullotta. For Additional Information Contact: 1630 Adjourn. Dated: September 29, 2008. Kenneth Wong, Project Manager, at (213) 452–3290 (a) Background Patricia L. Toppings, ([email protected]), U.S. The purpose of the Board is to OSD Federal Register Liaison Officer, Department of Defense. Army Corps of Engineers, Los Angeles provide independent advice and [FR Doc. E8–23513 Filed 10–3–08; 8:45 am] District, P.O. Box 532711, Los Angeles, recommendations to the Secretary of CA 90053–2325. BILLING CODE 5001–06–P Defense on matters that arise from the SUPPLEMENTARY INFORMATION: military obligation of members of the 1. Project Purpose and Need: The National Guard and Reserve members DEPARTMENT OF DEFENSE Sanitation Districts currently utilize two and the impact on their civilian tunnels and four ocean outfall structures employment. Department of the Army; Corps of to convey effluent from their Joint Water (b) Availability of Materials for the Engineers Pollution Control Plant (JWPCP) in the Meeting city of Carson to the Pacific Ocean. The Intent To Prepare a Draft two tunnels were constructed in 1937 Please see the Federal Advisory Environmental Impact Statement/ Committee Act website for copies of any and 1958 and have not been inspected Environmental Impact Report (DEIS/ in nearly 50 years. Inspection of the available materials, including draft EIR) for a Permit Application for the agendas for the meeting and background tunnels is not possible due to their Sanitation Districts of Los Angeles overall length, limited access, lack of information. (http://www.fido.gov/ County’s (Sanitation Districts) facadatabase/form_meetings.asp ). separation between the tunnels, and the Clearwater Program in Los Angeles overall flow through the tunnels. The (c) Procedures for Providing Public County, CA project need is to inspect and upgrade Comments AGENCY: U.S. Army Corps of Engineers, aging infrastructure, and to It is the policy of the DAB–ESGR to DoD. accommodate the projected increase in accept written public comments of any ACTION: Notice of Intent (NOI). wastewater flows. The project purpose length, and to accommodate oral public is to improve existing infrastructure and comments whenever possible. To SUMMARY: In compliance with the increase wastewater treatment capacity facilitate Board discussion at its National Environmental Policy Act to accommodate estimated 2050 flows, meetings, the Board may not accept oral (NEPA) of 1969, 40 CFR 1508.22, and 33 while complying with all applicable comments at all meetings, The Board CFR Parts 230 and 325, and in water quality standards. As a part of Staff expect that public statements conjunction with the Sanitation planned infrastructure improvements, presented at Board meetings will be Districts, the U.S. Army Corps of the Sanitation Districts propose to focused on the Board’s statutory charter Engineers (Corps) is announcing its construct a new tunnel and ocean and any working group topics. intent to prepare a DEIS/EIR for the outfall structure. Oral Comments: Speaking times will Clearwater Program. The Clearwater The new ocean outfall would be be confirmed by Board staff on a ‘‘first- Program is a strategic planning initiative composed of onshore and offshore come/first-served basis. To to identify wastewater conveyance, components. The onshore component accommodate as many speakers as wastewater treatment, effluent would entail construction of a 4- to 7- possible, oral public comments must be management, solids processing, and mile long underground tunnel no longer than 3 minutes. Because the biosolids management needs for the approximately up to 200 feet below Board members may ask questions, Sanitation Districts’ Joint Outfall System ground from the JWPCP to one of three reserved times will be approximate. through the year 2050. The Clearwater areas (White Point, Point Fermin, or the Interested parties must contact MAJ Program will entail the preparation of a Port of Los Angeles) from where the Elaine Gullotta in writing (via mail or e- new Master Facilities Plan (MFP), tunnel will make the onshore-to- mail) at least three weeks prior to the which will guide the management, and offshore transition. Once offshore, the meeting. upgrade/development of the Sanitation tunnel may extend up to 7 miles Written Comments: Written comments Districts’ infrastructure. A major seaward and connect to a diffuser via a should be received by the Board staff at component of the MFP is the riser. Alternatively, once offshore, the

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tunnel may transition to the ocean floor seafloor pipeline(s) may extend up to 7 and circulated in fall 2009, and a public via a riser to seafloor pipeline(s), which miles offshore. The No Federal Action meeting will be held after its would connect to the diffuser structure. Baseline Alternative would result in publication. Depending on the location of the implementation of the recommended Dated: September 23, 2008. diffuser, the seafloor pipeline(s) may projects within the MFP without the David J. Castanon, extend up to 7 miles offshore. new ocean outfall and other Chief, Regulatory Division Corps of Engineers. 2. Proposed Action: The offshore infrastructure upgrades that require component of the new ocean outfall Department of Army permits. Under the [FR Doc. E8–23528 Filed 10–3–08; 8:45 am] could entail excavation of an No Action Alternative, there would be BILLING CODE 3710–KF–P approximately 105-foot-wide trench up no upgrade and development of the to 7 miles long requiring dredging of Sanitation Districts’ infrastructure, approximately 950,000 cubic yards of including the new ocean outfall, to DEPARTMENT OF EDUCATION sediment. Once excavated, outfall accommodate wastewater management Notice of Proposed Information pipe(s), diffuser pipes, bedding, ballast, needs through 2050. These alternatives Collection Requests dredged material, and armor stone will be further formulated and would be discharged into the trench. developed during the scoping process. AGENCY: Department of Education. Dredged material not used for trench Additional alternatives that may be SUMMARY: The IC Clearance Official, backfill could be designated for ocean developed during the scoping process Regulatory Information Management disposal or beach nourishment will also be considered in the DEIS/EIR. Services, Office of Management, invites depending on sediment chemistry. 5. Scoping Process: The Corps’ comments on the proposed information Dredging, pipe laying, trenching, and scoping process for the DEIS/EIR will collection requests as required by the other construction activities within the involve soliciting written comments and Paperwork Reduction Act of 1995. Pacific Ocean, a navigable water of the a public meeting. Potential significant DATES: Interested persons are invited to United States, would be subject to issues to be addressed in the DEIS/EIR submit comments on or before Section 10 of the Rivers and Harbors include aesthetics; air quality; biological December 5, 2008. Act. The discharge of dredged and fill resources; cultural resources; geology; materials associated with pipe laying hydrology; hazards and hazardous SUPPLEMENTARY INFORMATION: Section activities in the Pacific Ocean, a water materials; water quality; public health; 3506 of the Paperwork Reduction Act of of the United States, would also be land use and planning; marine 1995 (44 U.S.C. Chapter 35) requires subject to Section 404 of the Clean environment (marine hydrology, water that the Office of Management and Water Act. The transportation and quality, public health, and biological Budget (OMB) provide interested discharge of dredged material for the resources); noise; population, Federal agencies and the public an early purpose of ocean disposal, if required, employment, and housing/ opportunity to comment on information would be subject to Section 103 of the environmental justice; public services; collection requests. OMB may amend or Marine Protection, Research, and recreation; transportation and traffic; waive the requirement for public Sanctuaries Act. utilities, service systems, and energy; consultation to the extent that public The geographic jurisdiction of Section and cumulative and growth-inducing participation in the approval process 10 RHA and Section 404 CWA extends impacts. Additional environmental would defeat the purpose of the 3 geographic miles seaward (33 CFR impacts may be identified during the information collection, violate State or Part 329.12(a)). However, a wider zone scoping process. Furthermore, the DEIS/ Federal law, or substantially interfere of geographic jurisdiction out to the EIR will assess the consistency of the with any agency’s ability to perform its Outer Continental Shelf (200 miles Proposed Action with the Coastal Zone statutory obligations. The IC Clearance seaward) is recognized when a project Management Act and potential water Official, Regulatory Information entails placement of devices on the quality impacts pursuant to Section 401 Management Services, Office of seabed (33 CFR 322.3(b)). Because the of the Clean Water Act. Comments are Management, publishes that notice project entails placement of a pipeline invited from the public and affected containing proposed information up to 7 miles on the seabed, the entire agencies, including, but not limited to, collection requests prior to submission length of the project is subject to both the U.S. Environmental Protection of these requests to OMB. Each Section 10 RHA and Section 404 CWA Agency, U.S. Fish and Wildlife Service, proposed information collection, jurisdictions. National Marine Fisheries Service, U.S. grouped by office, contains the 3. Alternatives Considered: The Coast Guard, California Department of following: (1) Type of review requested, feasibility of several alternatives is being Fish and Game, California State Water e.g. new, revision, extension, existing or considered and will be addressed in the Resources Control Board, California reinstatement; (2) Title; (3) Summary of DEIS/EIR. Those considered feasible State Lands Commission, California the collection; (4) Description of the will be analyzed in equal detail to the Coastal Commission, and the city of Los need for, and proposed use of, the Proposed Action. Alternatives for the Angeles. information; (5) Respondents and proposed project would evaluate Public Meeting: A public scoping frequency of collection; and (6) alternate onshore and offshore tunnel meeting to receive input on the scope of Reporting and/or Recordkeeping alignments; alternate tunnel shaft site the DEIS/EIR will be conducted on burden. OMB invites public comment. locations; and alternate diffuser Thursday, November 6, 2008 at 6:30 The Department of Education is locations. Furthermore, alternate p.m. at Crowne Plaza Hotel, 601 South especially interested in public comment offshore project designs would be Palos Verdes Street, San Pedro, addressing the following issues: (1) Is evaluated. One design would extend the California. If you have any questions this collection necessary to the proper tunnel up to 7 miles offshore and regarding the meeting, please contact functions of the Department; (2) will connect to the diffuser via a riser. Steven Highter, Supervising Engineer, this information be processed and used Alternatively, the tunnel may transition Sanitation Districts, at in a timely manner; (3) is the estimate via a riser to seafloor pipeline(s), which [email protected]. of burden accurate; (4) how might the would connect to a diffuser. Depending 6. Availability of the Draft EIS: The Department enhance the quality, utility, on the location of the diffuser, the DEIS/EIR is expected to be published and clarity of the information to be

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collected; and (5) how might the information under the provisions of the to the Senate on May 9, 2002 for the Department minimize the burden of this Paperwork Reduction Act of 1995. The Senate’s advice and consent to collection on the respondents, including proposed collection will enable the DOE ratification, and the Senate approved a through the use of information to develop its part of the U.S. resolution providing such advice and technology. Government Declaration to the consent on March 31, 2004. Legislation Dated: September 30, 2008. International Atomic Energy Agency to implement the U.S. AP was enacted (IAEA) under the Additional Protocol on December 18, 2006, and is codified Angela C. Arrington, (AP) to the U.S.-IAEA International at 22 U.S.C. 1801, et seq. Entry into IC Clearance Official, Regulatory Information Safeguards Agreement. force of the U.S. AP will take place Management Services, Office of Management. DATES: Comments regarding this when the President deposits the Institute of Education Sciences collection must be received on or before instrument of ratification with the Type of Review: Reinstatement. November 5, 2008. If you anticipate that IAEA. The Department of Energy (DOE) is Title: Teacher Follow-Up Survey. you will be submitting comments, but the Lead Agency for implementing the Frequency: Other: One time. find it difficult to do so within the Additional Protocol at locations owned, Affected Public: Individuals or period of time allowed by this notice, operated, or leased by or for DOE, household. please advise the OMB Desk Officer as including Nuclear Regulatory Reporting and Recordkeeping Hour soon as possible of your intention to Commission (NRC)-licensed or certified Burden: make a submission. The Desk Officer’s activities on DOE installations, and, in Responses: 4,910. telephone number is 202–395–4650. ADDRESSES: Written comments should coordination with the Department of Burden Hours: 1,831. Defense, non-military locations on Abstract: The Teacher Follow Up be sent to the DOE Desk Officer, Office of Information and Regulatory Affairs, installations that store or process naval Survey is a follow-up to the School and reactor fuel (collectively known as Staffing Survey and it is a survey of Office of Management and Budget, New Executive Office Building, Room 10102, ‘‘DOE Locations’’). This collection of teachers with the main purpose of information affects only those persons providing a one year teacher attrition 735 17th Street, NW., Washington, DC 20503, and to JoAnna Sellen, Office of performing activities at DOE Locations rate. that would be declarable to the IAEA Requests for copies of the proposed International Regimes and Agreements (NA–243), National Nuclear Security under the U.S. AP. The NRC is the Lead information collection request may be Agency for locations that are subject to accessed from http://edicsweb.ed.gov, Administration, 1000 Independence Ave., SW., Washington, DC 20585 or by the regulatory authority of the NRC, by selecting the ‘‘Browse Pending pursuant to the NRC’s regulatory Collections’’ link and by clicking on fax at 202–586–1348, or by e-mail at [email protected]. jurisdiction under the Atomic Energy link number 3856. When you access the Act of 1954, as amended (42 U.S.C. 2011 information collection, click on FOR FURTHER INFORMATION CONTACT: et seq. ), with the exception of those ‘‘Download Attachments’’ to view. Requests for additional information or NRC-licensed or NRC-certified facilities Written requests for information should copies of the information collection at DOE Locations. The Department of be addressed to U.S. Department of instrument and instructions should be Commerce (DOC) is the Lead Agency for Education, 400 Maryland Avenue, SW., directed to JoAnna Sellen. all other locations in the United States, LBJ, Washington, DC 20202–4537. SUPPLEMENTARY INFORMATION: This except DOE Locations and those Requests may also be electronically information collection request contains: locations for which the NRC is the Lead mailed to [email protected] or faxed (1) OMB No. {’’New’’}; (2) Information Agency. All persons, including DOE to 202–401–0920. Please specify the Collection Request Title: U.S. contractors performing declarable complete title of the information Declaration under Protocol Additional activities at locations other than those collection when making your request. to the U.S.-IAEA Safeguards Agreement for which DOE is the Lead Agency, Comments regarding burden and/or (‘‘Additional Protocol’’); (3) Type of would submit their declarations for the collection activity requirements Request: {New collection.} (4) Purpose: these activities at non-DOE locations to should be electronically mailed to Develop Information for Inclusion by either the NRC or DOC, as appropriate. [email protected]. Individuals who the Department of Energy in the United The Department of Energy proposes to use a telecommunications device for the States Declaration to the International collect information that is required for deaf (TDD) may call the Federal Atomic Energy Agency (IAEA) under submission under the U.S. AP. Information Relay Service (FIRS) at 1– the Additional Protocol to the U.S.- Collecting this information from those 800–877–8339. IAEA International Safeguards persons who are actually performing [FR Doc. E8–23512 Filed 10–3–08; 8:45 am] Agreement. declarable activities at DOE Locations This proposed collection of provides the most effective and efficient BILLING CODE 4000–01–P information is pursuant to way for DOE to identify such declarable implementing the provisions of the activities and the locations associated Protocol Additional to the Agreement with such activities, and to compile DEPARTMENT OF ENERGY Between the United States of America accurate and timely information on such Proposed Agency Information and the IAEA for the Application of activities. Collection Safeguards in the United States of All reporting requirements that are America (the ‘‘Additional Protocol’’ or applicable to respondents making their AGENCY: U.S. Department of Energy. AP). The Additional Protocol is a declarations through DOE can be found ACTION: Notice and Request for OMB supplement to the existing U.S.-IAEA in Article 2.a of the U.S. AP. These Review and Comment. Safeguards Agreement, which entered activities are considered to be funded, into force in 1980, and the U.S. AP will specifically authorized or controlled by, SUMMARY: The Department of Energy become part of the Safeguards or carried out on behalf of, the United (DOE) has submitted to the Office of Agreement once the U.S. AP enters into States, by virtue of the fact that the Management and Budget (OMB) for force. The United States signed the U.S. Department of Energy, as an agency of clearance, a proposal for collection of AP in 1998, President Bush submitted it the U.S. Government controls all

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activities, regardless of performer, that FOR FURTHER INFORMATION CONTACT: Mr. DEPARTMENT OF ENERGY occur at its installations. Robert Kane, Phone: (202) 586–4753, (5) Type of Respondents: Respondents U.S. Department of Energy, Office of Federal Energy Regulatory will primarily include DOE Fossil Energy, Washington, DC 20585. Commission Management and Operations (M&O) SUPPLEMENTARY INFORMATION: [Docket No. CP08–478–000] contractors operating DOE installations Purpose of the Committee: The and facilities. (6) Estimated Number of purpose of the National Coal Council is Magnum Gas Storage, LLC; Notice of Respondents: DOE estimates that the to provide advice, information, and Application number of respondents submitting their recommendations to the Secretary of declaration under the U.S. AP through September 30, 2008. Energy on matters relating to coal and Take notice that on September 24, DOE will range from 10–15. The number coal industry issues: will fluctuate on an annual basis. 2008, Magnum Gas Storage, LLC (MGS), Tentative Agenda: However, any person performing a 2150 South, 1300 East, Suite 500, Salt Æ Call to Order and Opening Remarks declarable activity at a location for Lake City, Utah 84106, filed with the by Mr. Michael G. Mueller, Chair Commission a petition for Exemption of which DOE is the Lead Agency must Æ report that activity through DOE, and Remarks by Mr. Samuel W. Temporary Acts and Operations from Bodman, Secretary of Energy (Invited) Certificate Requirements, pursuant to the identity of such persons might Æ change from year to year as declarable Council Business section 7(c)–(1)–(B) of the Natural Gas activities are initiated or terminated. (7) Status report on issues papers and Act (NGA), and Rule 207–(a)–(5) of the Estimated Number of Burden Hours: information manual—Jerry Commission’s Rules of Practice and The burden in person-hours of Hollinden & Jackie Bird, Co-Chairs/ Procedures. MGS requests an exemption responding to the proposed collection of Project Work Group for the temporary and limited purpose of drilling up to two test wells and to information will depend on the number Æ Presentation of Guest Speaker re: of declarable activities at the perform other activities to assess the Overview of the World Energy optimal manner in which to develop an respondent’s location. This estimate Markets—Frank Clemente, Penn State includes the effort required to identify underground natural gas storage facility University in the Magnum Salt Structure, located these activities, collect information on Æ Presentation of Guest Speaker re: in the Millard County, Utah. All as more them, complete the declarations, and Status of Coal-to-Liquids and Coal-to- fully set forth in the application which submit them to DOE. This effort per Natural Gas Technologies—James is on file with the Commission and open collection might range from as low as 40 Childress, Gasification Research Council to public inspection. The filing may also hours, for a person with one or two Æ Presentation of Guest Speaker re: be viewed on the Web at http:// declarable activities, to as many as 400 Election 2008: The Impact on Coal—Hal www.ferc.gov using the ‘‘eLibrary’’ link. hours, for a person with 30–40 Quinn, National Mining Association Enter the docket number excluding the declarable activities. This effort Æ Other Business last three digits in the docket number includes annual effort expended in Æ Adjourn field to access the document. For maintaining and training with the assistance, please contact FERC Online software provided by DOE to collect and Public Participation: The meeting is open to the public. The Chairman of the Support at report the information as well as making [email protected] or toll the declaration. NCC will conduct the meeting to facilitate orderly business. If you would free at (866) 208–3676, or TTY, contact Statutory Authority: 22 U.S.C. 1801, et seq. like to file a written statement with the (202) 502–8659. Issued in Washington, DC, on September Committee, you may do so either before Any questions regarding the petition 30, 2008. or after the meeting. If you would like should be directed to counsel for MGS, Kurt Siemon, to make oral statements regarding any of James F. Bowe, Jr., Dewey & LeBoeuf Acting Assistant Deputy Administrator for the items on the agenda, you should LLP, 1101 New York Avenue, NW., nonproliferation And International Security. contact Mr. Robert Kane at the address Suite 1100, Washington, DC 20006, or [FR Doc. E8–23541 Filed 10–3–08; 8:45 am] and telephone number listed above. You via telephone at (202) 346–7999, facsimile number (202) 346–8102, or e- BILLING CODE 6450–01–P must make your request for an oral statement at least five business days mail [email protected]. prior to the meeting, and reasonable Pursuant to Section 157.9 of the DEPARTMENT OF ENERGY provisions will be made to include the Commission’s rules, 18 CFR 157.9, presentation on the agenda. Public within 90 days of this Notice the National Coal Council; Notice of Open comment will follow the 10 minute rule. Commission staff will either: complete Meeting Minutes: The minutes will be its environmental assessment (EA) and available for public review and copying place it into the Commission’s public AGENCY: Department of Energy, Office of record (eLibrary) for this proceeding; or Fossil Energy. within 30 days at the Freedom of Information Public Reading Room, 1G– issue a Notice of Schedule for ACTION: Notice of open meeting. 033, Forrestal Building, 1000 Environmental Review. If a Notice of Schedule for Environmental Review is SUMMARY: This notice announces a Independence Avenue, SW., Washington, DC, between 9 a.m. and issued, it will indicate, among other meeting of the National Coal Council milestones, the anticipated date for the (NCC). Federal Advisory Committee Act 4 p.m., Monday through Friday, except Federal holidays. Commission staff’s issuance of the final (Pub. L. 92–463, 86 Stat. 770) requires environmental impact statement (FEIS) notice of these meetings be announced Issued in Washington, DC on October 1, or EA for this proposal. The filing of the in the Federal Register . 2008. EA in the Commission’s public record DATES: Friday, November 14, 2008 Rachel Samuel, for this proceeding or the issuance of a 9 a.m.–12 Noon. Deputy Committee Management Officer. Notice of Schedule for Environmental ADDRESSES: Westin Grand Hotel, 2350 [FR Doc. E8–23542 Filed 10–3–08; 8:45 am] Review will serve to notify federal and M Street, NW., Washington, DC. BILLING CODE 6450–01–P state agencies of the timing for the

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completion of all necessary reviews, and Commission) and will not have the right (without notices of intent), or notices of the subsequent need to complete all to seek court review of the intent to file competing applications: 60 federal authorizations within 90 days of Commission’s final order. days from the issuance of this notice. the date of issuance of the Commission The Commission strongly encourages Comments, motions to intervene, staff’s FEIS or EA. electronic filings of comments, protests notices of intent, and competing There are two ways to become and interventions in lieu of paper using applications may be filed electronically involved in the Commission’s review of the ‘‘eFiling’’ link at http:// via the Internet. See 18 CFR this project. First, any person wishing to www.ferc.gov. Persons unable to file 385.2001(a)(1)(iii) and the instructions obtain legal status by becoming a party electronically should submit an original on the Commission’s Web site under the to the proceedings for this project and 14 copies of the protest or ‘‘e-Filing’’ link. If unable to be filed should, on or before the comment date intervention to the Federal Energy electronically, documents may be paper- stated below, file with the Federal regulatory Commission, 888 First Street, filed. To paper-file, an original and eight Energy Regulatory Commission, 888 NE., Washington, DC 20426. copies should be mailed to: Kimberly D. First Street, NE., Washington, DC 20426, Comment Date: October 14, 2008. Bose, Secretary, Federal Energy a motion to intervene in accordance Nathaniel J. Davis, Sr., Regulatory Commission, 888 First with the requirements of the Deputy Secretary. Street, NE., Washington, DC 20426. For Commission’s Rules of Practice and [FR Doc. E8–23501 Filed 10–3–08; 8:45 am] more information on how to submit Procedure (18 CFR 385.214 or 385.211) these types of filings please go to the BILLING CODE 6717–01–P and the Regulations under the NGA (18 Commission’s Web site located at CFR 157.10). A person obtaining party http://www.ferc.gov/filing- status will be placed on the service list DEPARTMENT OF ENERGY comments.asp. More information about maintained by the Secretary of the this project can be viewed or printed on Commission and will receive copies of Federal Energy Regulatory the ‘‘eLibrary’’ link of Commission’s all documents filed by the applicant and Commission Web site at by all other parties. A party must submit http://www.ferc.gov/docs-filing/ [Project No. 13127–000] 14 copies of filings made with the elibrary.asp. Enter the docket number Commission and must mail a copy to (P–13127) in the docket number field to the applicant and to every other party in Mississippi 24 Hydro, LLC; Notice of Preliminary Permit Application access the document. For assistance, the proceeding. Only parties to the call toll-free 1–866–208–3372. proceeding can ask for court review of Accepted for Filing and Soliciting Commission orders in the proceeding. Comment, Motions To Intervene, and Nathaniel J. Davis, Sr., However, a person does not have to Competing Applications Deputy Secretary. intervene in order to have comments September 30, 2008. [FR Doc. E8–23503 Filed 10–3–08; 8:45 am] considered. The second way to Mississippi 24 Hydro, LLC filed an BILLING CODE 6717–01–P participate is by filing with the application on March 3, 2008, pursuant Secretary of the Commission, as soon as to section 4(f) of the Federal Power Act, possible, an original and two copies of proposing to study the feasibility of the DEPARTMENT OF ENERGY comments in support of or in opposition Mississippi River Lock and Dam No. 24 Federal Energy Regulatory to this project. The Commission will Hydroelectric Project, which would be Commission consider these comments in located near the town of Clarksville on determining the appropriate action to be the Mississippi River at the existing U.S. Combined Notice of Filings taken, but the filing of a comment alone Army Corps of Engineers’ Lock and Dam will not serve to make the filer a party No. 24 and Reservoir in Calhoun October 1, 2008. to the proceeding. The Commission’s County, and Pike County, Take notice that the Commission has rules require that persons filing Missouri. The proposed project would received the following Natural Gas comments in opposition to the project utilize federal lands. Pipeline Rate and Refund Report filings: provide copies of their protests only to The proposed Mississippi River Lock Docket Numbers: RP08–634–000. the party or parties directly involved in and Dam No. 24 Hydroelectric Project Applicants: Young Gas Storage the protest. would utilize the U.S. Army Corps of Company, Ltd. Persons who wish to comment only Engineers’ Lock and Dam No. 24 and Description: Operational Purchases on the environmental review of this would consist of the following new and Sales Annual Report of Young Gas project should submit an original and facilities: (1) An intake structure, (2) a Storage Company, Ltd. two copies of their comments to the powerhouse containing 3 generating Filed Date: 09/30/2008. Secretary of the Commission. units with a total installed capacity of Accession Number: 20080930–5013. Environmental commentors will be 22.3 MW, (3) a 5-mile-long, 46 kV Comment Date: 5 p.m. Eastern Time placed on the Commission’s underground transmission line, on Tuesday, October 14, 2008. environmental mailing list, will receive connecting to an existing power line, Docket Numbers: RP08–635–000 copies of the environmental documents, and (4) appurtenant facilities. The Applicants: Carolina Gas and will be notified of meetings project would have an annual Transmission Corporation associated with the Commission’s generation of 241 gigawatts-hours, Description: Carolina Gas environmental review process. which would be sold to a local utility. Transmission Corp submits a report Environmental commentors will not be Applicant Contact: Mr. Brent Smith, containing proposed Fuel Retainage required to serve copies of filed Mississippi 24 Hydro, LLC, 975 South Percentages for the period beginning 11/ documents on all other parties. State Highway, Logan, UT 84321; 1/08 and Fourth Revised Sheet 10 et al. However, the non-party commentors phone: (435) 752–2580. to FERC Gas Tariff, Original Volume 1. will not receive copies of all documents FERC Contact: Tom Papsidero, (202) Filed Date: 09/30/2008. filed by other parties or issued by the 502–6002. Accession Number: 20081001–0056. Commission (except for the mailing of Deadline for filing comments, motions Comment Date: 5 p.m. Eastern Time environmental documents issued by the to intervene, competing applications on Tuesday, October 14, 2008.

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Docket Numbers: RP08–636–000. Docket Numbers: RP96–272–081. Persons unable to file electronically Applicants: Gas Transmission Applicants: Northern Natural Gas should submit an original and 14 copies Northwest Corporation. Company. of the intervention or protest to the Description: Gas Transmission Description: Northern Natural Gas Federal Energy Regulatory Commission, Northwest Corporation submits Company submits 52 Revised Sheet 66A 888 First St., NE., Washington, DC Fifteenth Revised Sheet 4 to its FERC to FERC Gas Tariff, Fifth Revised 20426. Gas Tariff, Third Revised Volume 1–A, Volume 1, to be effective 10/1/08. The filings in the above proceedings effective 11/1/08. Filed Date: 09/30/2008 are accessible in the Commission’s Filed Date: 09/30/2008. Accession Number: 20081001–0101. eLibrary system by clicking on the Accession Number: 20081001–0057. Comment Date: 5 p.m. Eastern Time appropriate link in the above list. They Comment Date: 5 p.m. Eastern Time on Tuesday, October 14, 2008. are also available for review in the on Tuesday, October 14, 2008. Docket Numbers: RP96–312–184. Commission’s Public Reference Room in Docket Numbers: RP08–637–000. Applicants: Tennessee Gas Pipeline Washington, DC. There is an Applicants: Hardy Storage Company, Company. eSubscription link on the Web site that LLC. Description: Tennessee Gas Pipeline enables subscribers to receive e-mail Description: Request for Extension of Co. submits a negotiated rate gas notification when a document is added Time to File Retainage Adjustment transportation agreement with Southern to a subscribed docket(s). For assistance mechanism of Hardy Storage Company, Connecticut Gas Co. with any FERC Online service, please e- LLC. Filed Date: 09/30/2008. mail [email protected], or Filed Date: 09/30/2008 Accession Number: 20081001–0110. call (866) 208–3676 (toll free). For TTY, Accession Number: 20080930–5087. Comment Date: 5 p.m. Eastern Time call (202) 502–8659. Comment Date: 5 p.m. Eastern Time on Tuesday, October 14, 2008. on Monday, October 6, 2008. Nathaniel J. Davis, Sr., Docket Numbers: RP96–320–096. Deputy Secretary. Docket Numbers: RP08–639–000. Applicants: Gulf South Pipeline Applicants: Iroquois Gas Company, LP. [FR Doc. E8–23538 Filed 10–3–08; 8:45 am] Transmission System, L.P. Description: Gulf South Pipeline Co, BILLING CODE 6717–01–P Description: Iroquois Gas LP submits several capacity release Transmission System, LP submits agreements. DEPARTMENT OF ENERGY Twenty-First Revised Sheet 4A to FERC Filed Date: 09/30/2008. Gas Tariff, First Revised Volume 1. Accession Number: 20081001–0109. Federal Energy Regulatory Filed Date: 09/30/2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20081001–0108. Commission on Tuesday, October 14, 2008. Comment Date: 5 p.m. Eastern Time on Tuesday, October 14, 2008. Any person desiring to intervene or to Combined Notice of Filings # 1 protest in any of the above proceedings Docket Numbers: RP08–640–000. September 18, 2008. Applicants: National Fuel Gas Supply must file in accordance with Rules 211 and 214 of the Commission’s Rules of Take notice that the Commission Corporation. received the following exempt Description: National Fuel Gas Supply Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern wholesale generator filings: Corporation submits 120th Revised Docket Numbers: EG08–92–000. Sheet 9 to FERC Gas Tariff, Fourth time on the specified comment date. It is not necessary to separately intervene Applicants: Ashtabula Wind, LLC. Revised Volume 1. Description: Ashtabula Wind, LLC Filed Date: 09/30/2008. again in a subdocket related to a Amendment to Self-Certification of Accession Number: 20081001–0107. compliance filing if you have previously Comment Date: 5 p.m. Eastern Time intervened in the same docket. Protests Exempt Wholesale Generator Status. on Tuesday, October 14, 2008. will be considered by the Commission Filed Date: 09/15/2008. in determining the appropriate action to Accession Number: 20080915–5141. Docket Numbers: RP08–643–000. Comment Date: 5 p.m. Eastern Time Applicants: Transcontinental Gas be taken, but will not serve to make on Monday, October 06, 2008. Pipe Line Corp. protestants parties to the proceeding. Take notice that the Commission Description: Transcontinental Gas Anyone filing a motion to intervene or received the following electric rate Pipe Line Corporation submits Twenty- protest must serve a copy of that filings: Ninth Revised Sheet 29 to FERC Gas document on the Applicant. In reference Docket Numbers: ER01–48–013. Tariff, Third Revised Volume 1, to be to filings initiating a new proceeding, Applicants: Powerex Corp. effective 11/1/08. interventions or protests submitted on Filed Date: 09/30/2008. or before the comment deadline need Description: Notice of Change in Accession Number: 20081001–0104. not be served on persons other than the Status. Comment Date: 5 p.m. Eastern Time Applicant. Filed Date: 09/15/2008. on Tuesday, October 14, 2008. The Commission encourages Accession Number: 20080915–5100. Comment Date: 5 p.m. Eastern Time Docket Numbers: RP08–644–000. electronic submission of protests and Applicants: Williston Basin Interstate interventions in lieu of paper, using the on Monday, October 6, 2008. Pipeline Co. FERC Online links at http:// Docket Numbers: ER01–1403–007; Description: Williston Basin Interstate www.ferc.gov. To facilitate electronic ER06–1443–004; ER04–366–006; ER01– Pipeline Company submits Ninth service, persons with Internet access 2968–009; ER01–845–007; ER05–1122– Revised Sheet 358I to FERC Gas Tariff, who will eFile a document and/or be 005; ER08–107–002. Second Revised Volume 1, to be listed as a contact for an intervenor Applicants: FirstEnergy Operating effective 9/30/08. must create and validate an Companies, Pennsylvania Power Filed Date: 09/30/2008. eRegistration account using the Company, Jersey Central Power & Light Accession Number: 20081001–0103. eRegistration link. Select the eFiling Co., FirstEnergy Solutions Corp., Comment Date: 5 p.m. Eastern Time link to log on and submit the FirstEnergy Generation Corporation, on Tuesday, October 14, 2008. intervention or protests. FirstEnergy Nuclear Generation

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Corporati, FirstEnergy Generation Docket Numbers: ER08–1524–000. Transmission Tariff setting forth a Mansfield Unit 1. Applicants: Duke Energy Carolinas, Deferral Recovery Charge to recover Description: FirstEnergy Corp submits LLC. regional transmission organization costs a recent telephone request of FERC Description: Duke Energy Carolinas, etc. Starff re Substitute First Revised Sheet LLC submits for filing Third Revised Filed Date: 09/12/2008. 16 et a to FERC Electric Tariff, Second Rate Schedule 317, the Second Accession Number: 20080916–0100. Revised Volume 2. Amended and Restated Partial Comment Date: 5 p.m. Eastern Time Filed Date: 09/11/2008. Requirements Power Purchase on Friday, October 3, 2008. Accession Number: 20080916–0089. Agreement with Rutherford Electric Docket Numbers: ER08–1541–000. Comment Date: 5 p.m. Eastern Time Membership Corp. Applicants: Alabama Power on Thursday, October 2, 2008. Filed Date: 09/11/2008. Company. Docket Numbers: ER08–951–002. Accession Number: 20080916–0202. Description: Alabama Power Applicants: PSEG Energy Resources & Comment Date: 5 p.m. Eastern Time Company submits an amended Trade LLC. on Thursday, October 2, 2008. Interconnection Agreement with Description: PSEG Energy Resources & Docket Numbers: ER08–1533–000. Tenaska Alabama II Partners LP etc. Trade, LLC submits a response to the 8/ Applicants: Tor Power, LLC. Filed Date: 09/12/2008. 14/08 deficiency letter issued by the Description: Tor Power, LLC submits Accession Number: 20080916–0101. Commission Staff concerning its 5/13/ notice cancelling its market-based rate Comment Date: 5 p.m. Eastern Time 08 filing of a new a rate schedule, as tariff, FERC Electric Tariff, First Revised on Friday, October 3, 2008. amended on 7/7/08, setting forth the Volume 1. Docket Numbers: ER08–1543–000. cost-based revenue etc. Filed Date: 09/15/2008. Applicants: Southwest Power Pool, Filed Date: 09/15/2008. Accession Number: 20080916–0086. Inc. Accession Number: 20080916–0093. Comment Date: 5 p.m. Eastern Time Description: Southwest Power Pool, Comment Date: 5 p.m. Eastern Time on Monday, October 6, 2008. Inc submits revised pages to their Open on Monday, October 6, 2008. Docket Numbers: ER08–1534–000. Access Transmission Tariff intended to Docket Numbers: ER08–1152–001. Applicants: Midwest Independent amend the rate changes for Westar Applicants: Potomac Electric Power System Transmission. Energy, Inc et al. Company. Description: Midwest Independent Filed Date: 09/15/2008. Description: Potomac Electric Power Transmission System Operator, Inc Accession Number: 20080917–0131. Co submits an executed Interconnection submits a Transmission to Transmission Comment Date: 5 p.m. Eastern Time Agreement with Panda-Brandywine, LP Interconnection Agreement among Great on Monday, October 6, 2008. in compliance with FERC’s 6/23/08 River Energy, a Minnesota cooperative Docket Numbers: ER08–1544–000. Order. corporation, Northern States Power Applicants: E. ON U.S. LLC. Filed Date: 09/15/2008. Company etc. Description: E. ON U.S., LLC on Accession Number: 20080916–0081. Filed Date: 09/15/2008. behalf of Louisville Gas and Electric Co Comment Date: 5 p.m. Eastern Time Accession Number: 20080916–0091. on Monday, October 6, 2008. et al. submits proposed revisions to its Comment Date: 5 p.m. Eastern Time OATT. Docket Numbers: ER08–1288–001. on Monday, October 6, 2008. Filed Date: 09/15/2008. Applicants: Wapsipinicon Wind Docket Numbers: ER08–1536–000. Accession Number: 20080917–0128. Project LLC. Applicants: Xcel Energy Services Inc. Comment Date: 5 p.m. Eastern Time Description: Wapsipinicon Wind Description: Northern States Power on Monday, October 6, 2008. Project, LLC responds to FERC Staff Company-MN submits the Consent and Request and request for shortened Docket Numbers: ER08–1546–000. Assignment Agreement dated 7/9/08 comment period. Applicants: Southwest Power Pool, with Moraine Wind, LLC et al pursuant Filed Date: 09/15/2008. Inc. Accession Number: 20080917–0125. to Order 614 designated as Supplement Description: Southwest Power Pool, Comment Date: 5 p.m. Eastern Time 1 to Original Agreement 206–NSP. Inc submits an executed Second on Friday, September 26, 2008. Filed Date: 09/15/2008. Amended Interchange Agreement with Accession Number: 20080916–0079. Associated Electric Cooperative, Inc et Docket Numbers: ER08–1425–002. Comment Date: 5 p.m. Eastern Time Applicants: ML Partnership, LLC. al. on Monday, October 6, 2008. Description: ML Partnership, LLC Filed Date: 09/16/2008. submits an updated Petition and FERC Docket Numbers: ER08–1538–000. Accession Number: 20080917–0243. Comment Date: 5 p.m. Eastern Time Electric tariff, Original Volume 1. Applicants: Northern States Power Filed Date: 09/15/2008. Company. on Tuesday, October 7, 2008. Accession Number: 20080916–0082. Description: Northern States Power Docket Numbers: ER08–1547–000. Comment Date: 5 p.m. Eastern Time Company-MN and Northern States Applicants: PacifiCorp. on Monday, October 6, 2008. Power Company-WI submits a Notice of Description: PacifiCorp submits Docket Numbers: ER08–1521–000. Cancellation for six Legacy Network Integration Transmission Applicants: American Electric Power Transmission Service Agreements. Service Agreement dated 8/19/08 with System Corp. Filed Date: 09/15/2008. Basin Electric Power Cooperative Description: AEP East Operating Accession Number: 20080916–0080. designated as Service Agreement 505, Companies et al submits its calculation Comment Date: 5 p.m. Eastern Time Seventh Revised Volume 11 OATT et al. of the revenue requirement for Reactive on Monday, October 6, 2008. Filed Date: 09/17/2008. Supply and Voltage Control from Docket Numbers: ER08–1540–000. Accession Number: 20080917–0241. Generation Sources Service. Applicants: Virginia Electric and Comment Date: 5 p.m. Eastern Time Filed Date: 09/11/2008. Power Company. on Wednesday, October 8, 2008. Accession Number: 20080916–0085. Description: Virginia Electric and Take notice that the Commission Comment Date: 5 p.m. Eastern Time Power Company submits a new received the following open access on Thursday, October 2, 2008. Attachment H–16E to their Open Access transmission tariff filings:

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Docket Numbers: OA07–115–002. notification when a document is added Comment Date: 5 p.m. Eastern Time Applicants: Alcoa Power Generating to a subscribed docket(s). For assistance on Monday, October 6, 2008. Inc. with any FERC Online service, please e- Docket Numbers: RP99–301–217. Description: Order No. 890 OATT mail [email protected], or Applicants: ANR Pipeline Company. Attachment C. call (866) 208–3676 (toll free). For TTY, Description: ANR Pipeline Company Filed Date: 09/15/2008. call (202) 502–8659. submits an amendment to Rate Accession Number: 20080915–5164. Schedule FTS–1 negotiated rate Comment Date: 5 p.m. Eastern Time Nathaniel J. Davis, Sr., Deputy Secretary. agreement with Public on Monday, October 6, 2008. Service Corporation (Contract No. [FR Doc. E8–23497 Filed 10–3–08; 8:45 am] Docket Numbers: OA08–156–000. 12000), to be effective 11/1/08. Applicants: Aquila, Inc. BILLING CODE 6717–01–P Filed Date: 09/24/2008. Description: Order No. 890–B Accession Number: 20080926–0076. Compliance Filing. DEPARTMENT OF ENERGY Comment Date: 5 p.m. Eastern Time Filed Date: 09/17/2008. on Monday, October 6, 2008. Accession Number: 20080917–5002. Federal Energy Regulatory Docket Numbers: RP99–301–218. Comment Date: 5 p.m. Eastern Time Commission Applicants: ANR Pipeline Company. on Wednesday, October 8, 2008. Description: ANR Pipeline Co submits Any person desiring to intervene or to Combined Notice of Filings an amendment to Rate Schedule ETS protest in any of the above proceedings negotiated rate agreement with Madison September 30, 2008. must file in accordance with Rules 211 Gas & Electric Co (Contract No. 106454), Take notice that the Commission has and 214 of the Commission’s Rules of to be effective 11/1/08. received the following Natural Gas Practice and Procedure (18 CFR 385.211 Filed Date: 09/24/2008. Pipeline Rate and Refund Report filings: and 385.214) on or before 5 p.m. Eastern Accession Number: 20080926–0075. Docket Numbers: RP99–176–168. time on the specified comment date. It Comment Date: 5 p.m. Eastern Time Applicants: Natural Gas Pipeline is not necessary to separately intervene on Monday, October 6, 2008. Company of America. again in a subdocket related to a Docket Numbers: RP99–301–219. compliance filing if you have previously Description: Natural Gas Pipeline Company of America, LLC submits Applicants: ANR Pipeline Company. intervened in the same docket. Protests Description: ANR Pipeline Company will be considered by the Commission Amendment 3 to the Transportation Rate Schedule FTS Agreement with a submits 1 Rate Schedule FTS–1 in determining the appropriate action to negotiated rate service agreement with be taken, but will not serve to make negotiated rate exhibit with Nicor Gas Co. Southwest Energy, LP, to be effective protestants parties to the proceeding. 11/1/08. Anyone filing a motion to intervene or Filed Date: 09/26/2008. Accession Number: 20080926–0173. Filed Date: 09/24/2008. protest must serve a copy of that Accession Number: 20080926–0074. document on the Applicant. In reference Comment Date: 5 p.m. Eastern Time on Wednesday, October 8, 2008. Comment Date: 5 p.m. Eastern Time to filings initiating a new proceeding, on Monday, October 6, 2008. interventions or protests submitted on Docket Numbers: RP99–301–214. or before the comment deadline need Applicants: ANR Pipeline Company. Docket Numbers: RP99–301–220. not be served on persons other than the Description: ANR Pipeline Company Applicants: ANR Pipeline Company. Applicant. submits 1 Rate Schedule FTS–1 Description: ANR Pipeline Co submits The Commission encourages negotiated rate service agreement Rate Schedule FTS–1 negotiated rate electronic submission of protests and between with Merrill Lynch service agreements with Oneok Energy interventions in lieu of paper, using the Commodities, Inc, to be effective Services Co, LP, to be effective 11/1/08. FERC Online links at http:// 11/1/08. Filed Date: 09/24/2008. www.ferc.gov. To facilitate electronic Filed Date: 09/24/2008. Accession Number: 20080926–0073. service, persons with Internet access Accession Number: 20080926–0079. Comment Date: 5 p.m. Eastern Time who will eFile a document and/or be Comment Date: 5 p.m. Eastern Time on Monday, October 6, 2008. listed as a contact for an intervenor on Monday, October 6, 2008. Docket Numbers: RP99–301–221. must create and validate an Docket Numbers: RP99–301–215. Applicants: ANR Pipeline Company. eRegistration account using the Applicants: ANR Pipeline Company. Description: ANR Pipeline Co submits eRegistration link. Select the eFiling Description: ANR Pipeline Company Rate Schedule FTS–1 negotiated rate link to log on and submit the submits four Rate Schedule FTS–1 service agreements with Nexen intervention or protests. negotiated rate service agreements with Marketing USA, Inc, to be effective Persons unable to file electronically Chevron USA Inc, to be effective 11/1/08. should submit an original and 14 copies 11/1/08. Filed Date: 09/24/2008. of the intervention or protest to the Filed Date: 09/24/2008. Accession Number: 20080926–0072. Federal Energy Regulatory Commission, Accession Number: 20080926–0078. Comment Date: 5 p.m. Eastern Time 888 First St., NE., Washington, DC Comment Date: 5 p.m. Eastern Time on Monday, October 6, 2008. 20426. on Monday, October 6, 2008. Docket Numbers: RP99–301–222. The filings in the above proceedings Docket Numbers: RP99–301–216. Applicants: ANR Pipeline Company. are accessible in the Commission’s Applicants: ANR Pipeline Company. Description: ANR Pipeline Co submits eLibrary system by clicking on the Description: ANR Pipeline Co submits Rate Schedule FTS–1 negotiated rate appropriate link in the above list. They an amendment to Rate Schedule NNS service agreements with CIMA Energy, are also available for review in the negotiated rate agreement with Ltd, to be effective 11/1/08. Commission’s Public Reference Room in Wisconsin Electric Power Co, to be Filed Date: 09/24/2008. Washington, DC. There is an effective 11/1/08. Accession Number: 20080926–0071. eSubscription link on the Web site that Filed Date: 09/24/2008. Comment Date: 5 p.m. Eastern Time enables subscribers to receive e-mail Accession Number: 20080926–0077. on Monday, October 6, 2008.

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Docket Numbers: RP99–301–223. Applicants: Texas Gas Transmission, and 214 of the Commission’s Rules of Applicants: ANR Pipeline Company. LLC. Practice and Procedure (18 CFR 385.211 Description: ANR Pipeline Co submits Description: Texas Gas Transmission, and 385.214) on or before 5 p.m. Eastern Rate Schedule FTS–1 negotiated rate LLC submits Substitute Original Sheet time on the specified comment date. It service agreements with ConocoPhillips 100 et al to its FERC Gas Tariff, Third is not necessary to separately intervene Co, to be effective 11/1/08. Revised Volume 1, and effective 9/15/ again in a subdocket related to a Filed Date: 09/24/2008. 08. compliance filing if you have previously Accession Number: 20080926–0070. Filed Date: 09/26/2008. intervened in the same docket. Protests Comment Date: 5 p.m. Eastern Time Accession Number: 20080926–0174. will be considered by the Commission on Monday, October 6, 2008. Comment Date: 5 p.m. Eastern Time in determining the appropriate action to Docket Numbers: RP99–301–224. on Wednesday, October 8, 2008. be taken, but will not serve to make Applicants: ANR Pipeline Company. Docket Numbers: RP08–630–000. protestants parties to the proceeding. Description: ANR Pipeline Co submits Applicants: Northern Natural Gas Anyone filing a motion to intervene or Rate Schedule FTS–1 negotiated rate Company. protest must serve a copy of that service agreements with Tenaska Description: Northern Natural Gas document on the Applicant. In reference Marketing Ventures, to be effective 11/ Co’s petition for a limited waiver of to filings initiating a new proceeding, 1/08. tariff provisions. interventions or protests submitted on Filed Date: 09/24/2008. Filed Date: 09/24/2008. or before the comment deadline need Accession Number: 20080926–0069. Accession Number: 20080925–0050. not be served on persons other than the Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time on Monday, October 6, 2008. on Monday, October 6, 2008. Applicant. Docket Numbers: RP00–632–031. Docket Numbers: RP08–631–000. The Commission encourages Applicants: Dominion Transmission, Applicants: Transcontinental Gas electronic submission of protests and Inc. Pipe Line Corp. interventions in lieu of paper, using the Description: Dominion Transmission, Description: Transcontinental Gas FERC Online links at http:// Inc submits Sub Third Revised Sheet Pipe Line Corp submits Fifty-Fifth www.ferc.gov. To facilitate electronic 1120 to FERC Gas Tariff, Third Revised Revised Sheet 27 et al to FERC Gas service, persons with Internet access Volume 1. Tariff, Third Revised Volume 1, to be who will eFile a document and/or be Filed Date: 09/25/2008. effective 10/1/08. listed as a contact for an intervenor Accession Number: 20080926–0067. Filed Date: 09/24/2008. must create and validate an Comment Date: 5 p.m. Eastern Time Accession Number: 20080925–0049. eRegistration account using the on Tuesday, October 7, 2008. Comment Date: 5 p.m. Eastern Time eRegistration link. Select the eFiling Docket Numbers: RP02–534–010. on Monday, October 6, 2008. link to log on and submit the Applicants: Guardian Pipeline, L.L.C. Docket Numbers: RP08–632–000. intervention or protests. Description: Guardian Pipeline, LLC Applicants: Gulf South Pipeline Persons unable to file electronically submits Original Sheet 9A to FERC Gas Company, LP. should submit an original and 14 copies Tariff, Original Volume 1, effective 10/ Description: Gulf South Pipeline Co, of the intervention or protest to the 24/08. LP submits Third Revised Sheet 1414 et Federal Energy Regulatory Commission, Filed Date: 09/24/2008. al to FERC Gas Tariff, Sixth Revised 888 First St., NE., Washington, DC Accession Number: 20080926–0080. Volume 1, to be effective 11/1/08. 20426. Comment Date: 5 p.m. Eastern Time Filed Date: 09/25/2008. on Monday, October 6, 2008. Accession Number: 20080926–0066. The filings in the above proceedings Docket Numbers: RP05–422–029. Comment Date: 5 p.m. Eastern Time are accessible in the Commission’s Applicants: El Paso Natural Gas on Tuesday, October 7, 2008. eLibrary system by clicking on the Company. Docket Numbers: RP08–633–000. appropriate link in the above list. They Description: El Paso Natural Gas Co Applicants: National Fuel Gas Supply are also available for review in the submits its supplemental Refund Report Corporation. Commission’s Public Reference Room in in accordance with the provisions of Description: Petition of National Fuel Washington, DC. There is an Section 154.201(e). Gas Supply Corp for waiver of tariff eSubscription link on the Web site that Filed Date: 08/28/2008. provisions under RP08–633. enables subscribers to receive e-mail Accession Number: 20080903–0049. Filed Date: 09/25/2008. notification when a document is added Comment Date: 5 p.m. Eastern Time Accession Number: 20080926–0065. to a subscribed dockets(s). For on Friday, October 3, 2008. Comment Date: 5 p.m. Eastern Time assistance with any FERC Online Docket Numbers: RP05–422–030. on Tuesday, October 7, 2008. service, please e-mail Applicants: El Paso Natural Gas Docket Numbers: CP06–416–005. [email protected]. or call Company. Applicants: Northwest Pipeline GP. (866) 208–3676 (toll free). For TTY, call Description: El Paso Natural Gas Description: Northwest Pipeline GP (202) 502–8659. Company submits a statement for submits First Revised Sheet 7, et al to informational purposes in response to FERC Gas Tariff, Fourth Revised Nathaniel J. Davis, Sr., FERC’s order issued on 9/5/08 re the Volume 1. Deputy Secretary. rate case settlement pursuant to Article Filed Date: 09/25/2008. [FR Doc. E8–23507 Filed 10–3–08; 8:45 am] 11.2. Accession Number: 20080929–0067. BILLING CODE 6717–01–P Filed Date: 09/22/2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20080925–0046. on Tuesday, October 7, 2008. Comment Date: 5 p.m. Eastern Time Any person desiring to intervene or to on Monday, October 6, 2008. protest in any of the above proceedings Docket Numbers: RP08–392–002. must file in accordance with Rules 211

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DEPARTMENT OF ENERGY Applicants: PJM Interconnection, Comment Date: 5 p.m. Eastern Time L.L.C.; Virginia Electric and Power on Friday, October 17, 2008. Federal Energy Regulatory Company. Docket Numbers: ER08–1577–000. Commission Description: Supplement to Applicants: Wolverine Power Supply Settlement Agreement and Offer of Cooperative, Inc. Combined Notice of Filings #1 Settlement submitted by Virginia Description: Wolverine Power Supply September 29, 2008. Electric and Power Company d/b/a Cooperative Inc submits new Amended Take notice that the Commission Dominion Virginia Power. and Restated Wholesale Power Contacts. received the following electric corporate Filed Date: 09/25/2008. Filed Date: 09/26/2008. Accession Number: 20080925–5050. filings: Accession Number: 20080929–0103. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Docket Numbers: EC08–91–001. on Thursday, October 9, 2008. Applicants: Horizon Asset on Friday, October 17, 2008. Docket Numbers: ER08–867–001. Management, Inc. Docket Numbers: ER08–1578–000. Applicants: New York Independent Description: Horizon Asset Applicants: Mirant California, LLC. System Operator, Inc. Management, Inc submits an Description: Mirant California, LLC Description: New York Independent Amendment to Petition for Disclaimer submits notice of cancellation of FERC System Operator, Inc submits its May of Jurisdiction, or in the Alternative, for Electric Tariff, First Revised Volume 1. 2007 Joint Operating Agreement with Blanket Authorization to Acquire Filed Date: 09/26/2008. the OJM and Schedule C to the JOA. Securities Under Section 203 of the Accession Number: 20080929–0104. Filed Date: 09/25/2008. Comment Date: 5 p.m. Eastern Time Federal Power Act. Accession Number: 20080929–0009. on Friday, October 17, 2008. Filed Date: 09/25/2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20080929–0010. on Thursday, October 16, 2008. Docket Numbers: ER08–1579–000. Comment Date: 5 p.m. Eastern Time Applicants: Duke Energy Carolinas, on Thursday, October 16, 2008. Docket Numbers: ER08–1543–001. Applicants: Southwest Power Pool, LLC. Take notice that the Commission Inc. Description: Duke Energy Carolinas, received the following exempt Description: Southwest Power Pool, LLC submits Rate Schedule 326 the First wholesale generator filings: Inc submits clean and redlined version Amended and Restated Power Purchase Docket Numbers: EG08–92–000. of the corrected Attachment E. Agreement Between Duke Energy Applicants: Ashtabula Wind, LLC. Filed Date: 09/25/2008. Carolinas, LLC and North Carolina Description: Ashtabula Wind, LLC Accession Number: 20080929–0008. Electric Membership Corporation dated Amendment to Self-Certification of Comment Date: 5 p.m. Eastern Time as of 8/11/08. Exempt Wholesale Generator Status. on Thursday, October 16, 2008. Filed Date: 09/26/2008. Accession Number: 20080929–0106. Filed Date: 09/15/2008. Docket Numbers: ER08–1553–001. Comment Date: 5 p.m. Eastern Time Accession Number: 20080915–5141. Applicants: PJM Interconnection, on Friday, October 17, 2008. Comment Date: 5 p.m. Eastern Time L.L.C. on Monday, October 6, 2008. Description: PJM Interconnection, Docket Numbers: ER08–1580–000. Docket Numbers: EG08–95–000. L.L.C. submits the instant errata filing to Applicants: Oklahoma Gas and Applicants: Flat Ridge Wind Energy, correct a typographical error in its 9/16/ Electric Company. LLC. 08 filing for an executed Description: Oklahoma Gas and Description: Amended Notice of Self interconnection service agreement Electric Company submits the Redbud Certification of Flat Ridge Wind Energy, among PJM, RPL Holdings, Inc and Generating Facility Ownership and LLC. Public Service Electric and Gas Operating Agreement by and Among Filed Date: 09/23/2008. Company. Grand River Dam Authority. Accession Number: 20080923–5045. Filed Date: 09/25/2008. Filed Date: 09/26/2008. Comment Date: 5 p.m. Eastern Time Accession Number: 20080929–0007. Accession Number: 20080929–0105. on Tuesday, October 14, 2008. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Take notice that the Commission on Thursday, October 16, 2008. on Friday, October 17, 2008. received the following electric rate Docket Numbers: ER08–1575–000. Docket Numbers: ER08–1581–000. filings: Applicants: PJM Interconnection, Applicants: Mint Farm Energy Center Docket Numbers: ER07–478–008. L.L.C. LLC. Applicants: Midwest Independent Description: PJM Interconnection Description: Mint Farm Energy Center Transmission System. L.L.C. submits revisions to Section 6.8 LLC submits a notice of cancellation of Description: Midwest Independent of Attachment DD of their Open-Access their FERC Electric Tariff, Original Transmission System Operator, Inc Transmission Tariff. Volume 1. submits proposed revisions to the Filed Date: 09/26/2008. Filed Date: 09/26/2008. Midwest ISO’s Open Access Accession Number: 20080929–0048. Accession Number: 20080929–0102. Transmission and Energy Markets Tariff Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time in order to amend its 6/16/08 on Friday, October 17, 2008. on Friday, October 17, 2008. compliance filing. Docket Numbers: ER08–1576–000. Any person desiring to intervene or to Filed Date: 09/26/2008. Applicants: Southern Company protest in any of the above proceedings Accession Number: 20080929–0101. Services, Inc. must file in accordance with Rules 211 Comment Date: 5 p.m. Eastern Time Description: Gulf Power Company and 214 of the Commission’s Rules of on Friday, October 17, 2008. submits a Notice of Cancellation of the Practice and Procedure (18 CFR 385.211 Docket Numbers: ER07–1421–004; Transmission Service Agreement with and 385.214) on or before 5 p.m. Eastern ER07–1422–004; ER08–549–003; ER08– Bay County, FL. time on the specified comment date. It 550–003; ER08–573–002; ER08–574– Filed Date: 09/26/2008. is not necessary to separately intervene 002. Accession Number: 20080929–0049. again in a subdocket related to a

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compliance filing if you have previously DEPARTMENT OF ENERGY their constituents of this planned intervened in the same docket. Protests project and encourage them to comment will be considered by the Commission Federal Energy Regulatory on their areas of concern. in determining the appropriate action to Commission A fact sheet prepared by the FERC be taken, but will not serve to make [Docket No. CP08–467–000] entitled ‘‘An Interstate Natural Gas protestants parties to the proceeding. Facility on My Land? What Do I Need Anyone filing a motion to intervene or Texas Gas Transmission, LLC; Notice To Know?’’ is available for viewing on protest must serve a copy of that of Intent To Prepare An Environmental the FERC Internet Web site (http:// document on the Applicant. In reference Assessment for the Proposed www.ferc.gov). This fact sheet addresses to filings initiating a new proceeding, Fayetteville Shale Compression a number of typically asked questions, interventions or protests submitted on Project and Request for Comments on including the use of eminent domain and how to participate in the FERC’s or before the comment deadline need Environmental Issues proceedings. not be served on persons other than the September 30, 2008. Applicant. The staff of the Federal Energy Summary of the Proposed Projects The Commission encourages Regulatory Commission (FERC or Texas Gas proposes to construct, own, electronic submission of protests and Commission) will prepare an operate, and maintain certain natural interventions in lieu of paper, using the environmental assessment (EA) that will gas transportation facilities within the FERC Online links at http:// address the environmental impacts of states of Arkansas and Mississippi. The www.ferc.gov. To facilitate electronic the Fayetteville Shale Compression general locations of the proposed Project (project) involving construction service, persons with Internet access compression facilities are shown in the and operation of facilities by Texas Gas 3 who will eFile a document and/or be figure included as Appendix 1. The Transmission, LLC (Texas Gas) in White listed as a contact for an intervenor purpose of the project is to facilitate the County, Arkansas, and Humpheys and transportation and delivery of natural must create and validate an Washington Counties, Mississippi.1 The eRegistration account using the gas from the Fayetteville Shale natural Commission will use the EA in its gas production fields in Arkansas via eRegistration link. Select the eFiling decision-making process to determine link to log on and submit the the Texas Gas system to markets in the whether or not to authorize the project. midwest, northeast, and southeast intervention or protests. This notice explains the scoping process United States. 2 Persons unable to file electronically we will use to gather environmental Texas Gas proposes to begin should submit an original and 14 copies input from the public and interested constructing the project in June 2009, of the intervention or protest to the agencies on the projects. Your input will and to place the project in service in Federal Energy Regulatory Commission, help the Commission determine the December 2009. The proposed facilities 888 First St. NE., Washington, DC issues that need to be evaluated in the are listed below. 20426. EA. Please note that the scoping period • The Bald Knob Compressor Station will close on November 14, 2008. in White County, Arkansas, near The filings in the above proceedings Details on how to submit written are accessible in the Commission’s milepost (MP) 65.8 of the Fayetteville comments are provided in the Public Lateral would include: eLibrary system by clicking on the Participation section of this notice. Æ 26,660 horsepower (hp) of appropriate link in the above list. They If you are a landowner receiving this compression consisting of two Solar notice, you may be contacted by a are also available for review in the Mars 100 turbines (T1 and T2) equipped pipeline company representative about Commission’s Public Reference Room in with SoLoNO (low nitrogen oxide the acquisition of an easement to X Washington, DC. There is an [NO ] burners); construct, operate, and maintain the X eSubscription link on the Web site that Æ A control building to house the proposed project facilities. The pipeline enables subscribers to receive e-mail compressors, an emergency backup company would seek to negotiate a notification when a document is added generator, heaters, and other equipment; mutually acceptable agreement for its to a subscribed docket(s). For assistance Æ An auxiliary building for the project. However, if the project is with any FERC Online service, please e- heating, ventilating, and air approved by the Commission, that mail [email protected]. or conditioning (HVAC) facilities; and approval conveys with it the right of call (866) 208–3676 (toll free). For TTY, Æ An 845-foot-long suction pipeline eminent domain. Therefore, if easement call (202) 502–8659. and a 746-foot-long discharge pipeline, negotiations fail to produce an both 36 inches in diameter between the Nathaniel J. Davis, Sr., agreement, the pipeline company could station and the Fayetteville Lateral. Deputy Secretary. initiate condemnation proceedings in • The Isola Compressor Station in [FR Doc. E8–23508 Filed 10–3–08; 8:45 am] accordance with state law. Humphreys County, Mississippi, near This notice is being sent to affected MP 27.0 of the Greenville Lateral would BILLING CODE 6717–01–P landowners; federal, state, and local include: government agencies; elected officials; environmental and public interest 3 The appendices referenced in this notice are not groups; Native American tribes; other being printed in the Federal Register. Copies of all interested parties; and local libraries appendices, other than Appendix 1 (maps), are and newspapers. We encourage available on the Commission’s Web site at the government representatives to notify ‘‘eLibrary’’ link or from the Commission’s Public Reference Room, 888 First Street, NE., Washington, DC 20426, or call (202) 502–8371. For instructions 1 Texas Gas’ application was filed with the on connecting to eLibrary refer to the Public Commission under section 7 of the Natural Gas Act Participation section of this notice. Copies of the and Part 157 of the Commission’s regulations. appendices were sent to all those receiving this 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the notice in the mail. Requests for detailed maps of the environmental staff of the FERC’s Office of Energy proposed facilities should be made directly to Texas Projects. Gas.

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Æ 13,330 hp of compression The EA Process docket number with your submission. consisting of one Solar Mars 100 turbine The National Environmental Policy The docket number can be found on the (T1) equipped with SoLoNOX (low NOX Act (NEPA) requires the Commission to front of this notice. The Commission burners); encourages electronic filing of Æ take into account the environmental A control building to house the impacts that could result from an action comments and has dedicated eFiling compressor, an emergency backup when it considers whether or not an expert staff available to assist you at (202) 502–8258 or [email protected]. generator, heaters, and other equipment; interstate natural gas pipeline should be Æ (1) You may file your comments An auxiliary building for the HVAC approved. The FERC will use the EA to electronically by using the Quick facilities; and consider the environmental impact that Æ A 675-foot-long suction pipeline Comment feature, which is located on could result if the project is authorized the Commission’s internet Web site at and a 535-foot-long discharge pipeline, under section 7 of the Natural Gas Act. both 36 inches in diameter between the http://www.ferc.gov under the link to NEPA also requires us to discover and Documents and Filings. A Quick station and the Fayetteville Lateral. address concerns the public may have • Comment is an easy method for The modifications to the existing about proposals to be considered by the Greenville Compressor Station in interested persons to submit text-only Commission. This process is referred to comments on a project. Washington County, Mississippi, would as ‘‘scoping.’’ The main goal of the include facilities to: (2) You may file your comments scoping process is to focus the analysis electronically by using the eFiling Æ Connect two existing reciprocating in the EA on the important feature, which is located on the compressors to the existing yard and environmental issues. With this Notice Commission’s internet Web site at station piping discharging to the of Intent, the Commission staff is http://www.ferc.gov under the link to Greenville Lateral; requesting public comments on the Documents and Filings. eFiling involves Æ Extend this yard and station piping scope of the issues to be addressed in preparing your submission in the same to attach the T–2 turbine compressor to the EA. All comments received will be manner as you would if filing on paper, allow it to discharge into the Greenville considered during preparation of the and then saving the file on your Lateral; and EA. Æ computer’s hard drive. You will attach Upgrade and expand an existing In the EA we will discuss impacts that that file as your submission. New check meter. could occur as a result of the eFiling users must first create an Land Requirement construction and operation of the account by clicking on ‘‘Sign up’’ or proposed project under these general ‘‘eRegister’’. You will be asked to select The total land requirement for the headings: the type of filing you are making. A project would be about 91.8 acres. • Geology and soils; comment on a particular project is Construction of the proposed new • Land use; considered a ‘‘Comment on a Filing.’’ compressor stations would be within • Water resources, fisheries, and (3) You may file your comments via 60-acre and 81-acre parcels of land wetlands; mail to the Commission by sending an Texas Gas would acquire for • Cultural resources; original and two copies of your letter to: construction and operation of the Bald • Vegetation and wildlife; Kimberly D. Bose, Secretary, Federal Knob and Isola Compressor Stations, • Threatened and endangered Energy Regulatory Commission, 888 respectively. Construction of the Bald species; First Street NE., Room 1A, Washington, Knob Compressor Station would require • Air quality and noise; DC 20426. about 41.8 acres, and about 8.9 acres of • Hazardous waste; and Label one copy of the comments for this total would be permanently • Public safety. the attention of Gas Branch 2, PJ11.2. required for operation. Permanent In the EA, we will also evaluate access to the site would be directly from possible alternatives to the proposed Becoming an Intervenor North Taylor Road; so no new access projects or portions of the projects, and In addition to involvement in the EA road would be required. make recommendations on how to scoping process, you may want to Construction of the proposed Isola lessen or avoid impacts on affected become an official party to the Compressor Station would require about resources. proceeding, or ‘‘intervenor’’. To become 49.7 acres for construction, and about an intervenor you must file a motion to 13.3 acres of this total would be Public Participation intervene according to Rule 214 of the required for operation. Included in the You can make a difference by Commission’s Rules of Practice and permanent acreage requirement would providing us with your specific Procedure (18 CFR 385.214). Intervenors be about 1.1 acres for a 1,996-foot-long, comments or concerns about the Project. have the right to seek rehearing of the 30-foot-wide permanent access road Your comments should focus on the Commission’s decision. Motions to extending from Beasley Bayou Road to potential environmental effects of the Intervene should be electronically the fenced station yard. proposal, reasonable alternatives, and submitted using the Commission’s Construction of the proposed facilities measures to avoid or lessen the eFiling system at http://www.ferc.gov. at the existing Greenville Compressor environmental impacts. The more Persons without Internet access should Station would require about 0.3 acre to specific your comments, the more useful send an original and 14 copies of their construct within the existing 45.8-acre, they will be. To ensure that your motion to the Secretary of the fenced station. comments are timely and properly Commission at the address indicated The disturbed areas would be restored recorded, please send in your comments previously. Persons filing Motions to following construction. Areas within the so that they will be received in Intervene on or before the comment proposed compressor stations that Washington, DC on or before November deadline indicated above must send a would be fenced and permanently 14, 2008. copy of the motion to the Applicant. All impacted by operation of the proposed For your convenience, there are three filings, including late interventions, facilities would be gravel-or concrete- methods which you can use to submit submitted after the comment deadline covered. Areas outside the fenced areas your comments to the Commission. In must be served on the Applicant and all would be seeded and restored. all instances please reference the project other intervenors identified on the

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Commission’s service list for this DEPARTMENT OF ENERGY lieu of, or in addition, to sending proceeding. Persons on the service list written comments, we also invite you to with e-mail addresses may be served Federal Energy Regulatory attend the public scoping meetings that electronically; others must be served a Commission have been scheduled in the Project area hard copy of the filing. [Docket Nos. PF08–22–000; PF08–23–000] during the week of October 13, 2008. Details on how to submit comments and Affected landowners and parties with additional details of the public scoping environmental concerns may be granted TransCanada PipeLine USA, Ltd.; Bison Pipeline, LLC; Notice of Intent meetings are provided in the Public intervenor status upon showing good To Prepare an Environmental Impact Participation section of this notice. cause by stating that they have a clear Statement for the Proposed Pathfinder The FERC will be the lead federal and direct interest in this proceeding Pipeline Project and Bison Pipeline agency in the preparation of an EIS that which would not be adequately Project; Request for Comments on will satisfy the requirements of the represented by any other parties. You do Environmental Issues and Notice of National Environmental Policy Act not need intervenor status to have your Public Meetings (NEPA) and will be used by the FERC environmental comments considered. to consider the environmental impacts September 30, 2008. that could result if the Commission Additional Information The Federal Energy Regulatory issues a Certificate of Public Additional information about the Commission (FERC or Commission) is Convenience and Necessity for the project is available from the in the process of preparing an Project under Section 7 of the Natural Commission’s Office of External Affairs, environmental impact statement (EIS) Gas Act. As a part of that review we will be preparing an EIS for the proposed at 1–866–208–FERC (3372) or on the on the environmental impacts of the Pathfinder Pipeline Project involving Project. FERC Internet Web site (http:// the construction and operation of a new The Bureau of Land Management www.ferc.gov) using the ‘‘eLibrary link.’’ underground natural gas pipeline (BLM) is participating as a cooperating Click on the eLibrary link, select proposed by TransCanada PipeLine agency in the preparation of the EIS ‘‘General Search’’ and enter the project USA, Ltd. (TransCanada). The because the Project would cross federal docket number excluding the last three Pathfinder project is under review in lands and resources administered by the digits (i.e., PF06–1) in the ‘‘Docket Docket No. PF08–22–000. White River, Little Snake, Lander, Number’’ field. Be sure you have A related pipeline project, the Rawlins, Casper, Buffalo, Miles City and selected an appropriate date range. For proposed Bison Pipeline Project (Bison) North Dakota Field Offices, for which assistance, please contact FERC Online is also currently under review in Docket the BLM has jurisdiction and/or special Support at No. PF08–23–000. The entire route of expertise with respect to environmental [email protected] or toll Bison is identical to that of the issues/impacts. The EIS will be used by free at 1–866–208–3676, or TTY, contact corresponding portion of Pathfinder the BLM to meet its NEPA (202) 502–8659. The eLibrary link on (Segment 2) from Dead Horse to responsibilities in considering the FERC Internet Web site also Compressor Station No. 6, as described TransCanada’s application for a Right- provides access to the texts of formal further in Summary of the Proposed of-Way Grant and Temporary Use documents issued by the Commission, Project section of this notice. Permit for the portion of the Project on such as orders, notices, and rule On September 3, 2008, TransCanada federal land. Although a formal application has not makings. announced that one of its subsidiaries acquired Bison Pipeline, LLC from been filed, the FERC has already In addition, the FERC now offers a Northern Border. With this acquisition, initiated its NEPA review under its pre- free service called eSubscription that TransCanada will provide shippers on filing process. A pre-filing docket allows you to keep track of all formal Bison the opportunity to transport their number has been assigned to the issuances and submittals in specific production on Pathfinder. TransCanada Pathfinder Pipeline Project (PF08–22– dockets. This can reduce the amount of proposes to build either Pathfinder or 000) and the Bison Pipeline Project time you spend researching proceedings Bison. Once TransCanada is in a (PF08–23–000). The purpose of the pre- by automatically providing you with position to confirm which of the two filing process is to encourage early notification of these filings, document Projects it will pursue, TransCanada involvement of interested stakeholders summaries, and direct links to the will file a request with the FERC to and to identify and resolve issues before documents. To register for this service, discontinue review of the other project. an application is filed with the FERC. go to http://www.ferc.gov/ While we 1 are requesting comments on This NOI is being sent to federal, esubscribenow.htm. both Pathfinder and Bison, we expect state, and local government agencies; that a single project will be proposed elected officials; affected landowners; Texas Gas has established an Internet environmental and public interest Web site for the project at and addressed in our EIS. This Notice of Intent (NOI) explains groups; Indian tribes and regional www.txgt.com, then click on expansion Native American organizations; projects. The Web site includes a the scoping process that will be used to gather input from the public and commentors and other interested description of the project, a map of the parties; and local libraries and proposed pipeline route, and contact interested agencies on the Project. Your input will help determine which issues newspapers. We encourage government information. You may also use Texas representatives to notify their Gas’ toll free telephone number, 1–866– will be evaluated in the EIS. Please note that the scoping period for this Project constituents of this proposed Project 462–6679 to ask questions about the will close on November 3, 2008. and encourage them to comment on project. Comments on the Project may be their areas of concern. If you are a landowner receiving this submitted in written form or verbally. In Nathaniel J. Davis, Sr., notice, you may be contacted by a Deputy Secretary. 1 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the TransCanada representative about the [FR Doc. E8–23504 Filed 10–3–08; 8:45 am] environmental staff of the FERC’s Office of Energy acquisition of an easement to construct, BILLING CODE 6717–01–P Projects. operate, and maintain the proposed

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facilities. TransCanada would seek to supply in the Green River Basin. Certain receivers, and one pig receiver on negotiate a mutually acceptable associated aboveground facilities are Segment 2; agreement. However, if the Project is also proposed. Mainline valves spaced • Approximately 36 mainline valves approved by the FERC, that approval at intervals along the pipeline as generally located at 20-mile intervals conveys with it the right of eminent defined by U.S. Department of along the pipeline; domain. Therefore, if easement Transportation regulations per the Code • Temporary pipe storage and negotiations fail to produce an of Federal Regulations (CFR) 49 Part contractor yards at various locations agreement, and the Project is ultimately 192, eight compressor stations, four along the pipeline for office trailers, approved by the FERC, TransCanada meter stations, and seven pig launcher parking, and pipe and equipment could initiate condemnation and receiver facilities are currently storage during construction; and proceedings in accordance with state proposed. • Temporary construction roadways law. More specifically, TransCanada and short permanent roads from existing A fact sheet prepared by the FERC proposes the following primary roads to meter station sites and other entitled ‘‘An Interstate Natural Gas components for the Pathfinder Project: aboveground facilities. Facility on My Land? What Do I Need • 673 miles of 36-inch diameter Bison would consist of approximately To Know?’’ is available for viewing on underground natural gas pipeline 297 miles of 24-inch-diameter natural the FERC Internet Web site (http:// consisting of four segments: gas pipeline and related pipeline system www.ferc.gov/for-citizens/citizen- ➢ Meeker Segment: 130 miles of facilities that would move gas guides.asp). This fact sheet addresses a pipeline from an existing gathering hub northeastward from Dead Horse across number of typically asked questions, near Meeker, Colorado to Wamsutter, the southeastern corner of Montana and including the use of eminent domain Wyoming; into central North Dakota where it and how to participate in FERC’s ➢ Segment 1: 236 miles of pipeline interconnects with the Northern Border proceedings. from Wamsutter, Wyoming to Dead pipeline system near Compressor Summary of the Proposed Project Horse in Campbell County, Wyoming; Station No. 6 in Morton County. The and entire route of Bison is identical to that TransCanada has announced its ➢ Segment 2: 297 miles of pipeline of the corresponding portion of proposal to construct and operate a new commencing in Dead Horse and Pathfinder (Segment 2) from Dead Horse natural gas pipeline and associated terminating at the Northern Border to Compressor Station No. 6. structures with a maximum capacity of Pipeline Company’s existing Location maps depicting the proposed 1.6 billion cubic feet per day. As shown Compressor Station No. 6 in Morton facilities are attached to this NOI as in Appendix 1,2 the Pathfinder Project County, North Dakota: and Appendix 1. would be located in portions of ➢ Wamsutter Segment: 11 miles of Colorado, Wyoming, Montana, and pipeline extending from the existing The EIS Process North Dakota and would consist of 673 Echo Springs gas plant to the NEPA requires the Commission to miles of 36-inch-diameter pipeline intersection of the Pathfinder Meeker take into account the environmental running from Meeker, Rio Blanco Segment and Segment 1 in Wamsutter, impacts that could result from an action County, Colorado to near Glen Ullin, Wyoming; when it considers whether or not a Morton County, North Dakota. The • A new 10,000 horsepower natural gas pipeline should be currently proposed pipeline route compressor station at milepost (MP) 0.0 approved. FERC will use the EIS to would travel across Rio Blanco and of the Wamsutter Segment near Echo consider the environmental impacts that Moffat Counties in Colorado; Carbon, Springs, Wyoming; could result if it issues a Project Sweetwater, Freemont, Natrona, • A new 30,000 horsepower authorization to TransCanada under Johnson, and Campbell Counties in compressor station at MP 153 in Section 7 of the Natural Gas Act. NEPA Wyoming; Powder River, Carter, and Sweetwater County, Wyoming; also requires us to discover and address Fallon Counties in Montana; and • A new 30,000 horsepower concerns the public may have about Bowman, Slope, Hettinger, Stark, Grant, compressor station at MP 221 in proposals. This process is referred to as and Morton Counties, North Dakota. Freemont County, Wyoming; ‘‘scoping.’’ The main goal of scoping is The pipeline would connect to the • A new 30,000 horsepower to focus the analysis in the EIS on the existing Northern Border mainline compressor station at MP 301 in important environmental issues. With pipeline system in southwest North Natrona County, Wyoming; this NOI, we are requesting public Dakota and would deliver natural gas to • A new 30,000 horsepower comments on the issues to be addressed primarily midwestern markets. The compressor station at MP 374 in in the EIS. All comments received will proposed Pathfinder Project includes an Campbell County, Wyoming; be considered during preparation of the 3 • 11-mile-long supply lateral, the A new 30,000 horsepower EIS. Wamsutter Segment, located near compressor station at MP 453 in Powder In the EIS we will discuss impacts Wamsutter, Sweetwater County, River County, Montana; that could occur as a result of the • Wyoming to connect the Pathfinder A new 30,000 horsepower construction, operation, and Pipeline Project mainline to natural gas compressor station at MP 535 in Fallon maintenance of the proposed Project County, Montana; under these general headings: 2 • The appendices referenced in this notice are not A new 30,000 horsepower • Geology and soils; printed in the Federal Register, but they are being compressor station at MP 619 in • Water resources; provided to all those who receive this notice in the Hettinger County, North Dakota; • Aquatic resources; mail. Copies of the NOI can be obtained from the • Commission’s Web site at the ‘‘eLibrary’’ link, from One meter station and one pig • Vegetation and wildlife; the Commission’s Public Reference Room, or by launcher on the Meeker Segment; one • Threatened and endangered calling (202) 502–8371. For instructions on meter station, one pig launcher, and one species; connecting to eLibrary, refer to the end of this pig receiver on the Wamsutter Segment; • Land use, recreation, and visual notice. 3 A lateral pipeline typically takes gas from the one meter station and three pig resources; main system to deliver it to a customer or receives launcher/receivers on Segment 1; and • Cultural resources; gas from a storage or supply source. two meter stations, two pig launcher/ • Socioeconomics;

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• Air quality and noise; Currently Identified Environmental are three methods which you can use to • Reliability and safety; Issues submit your written comments to the • Cumulative impacts. We have already identified issues that Commission. In all instances please In the EIS, we will also evaluate we think deserve attention based on our reference the Project docket number possible alternatives to the proposed previous experience with similar (PF08–22–000 or PF08–23–000) with Project or portions of the Project, and projects in the region. This preliminary your submission. The three methods make recommendations on how to list of issues, which is presented below, are: lessen or avoid impacts on affected may be revised based on your comments (1) You may file your comments resources. and our continuing analyses specific to electronically by using the Quick Our independent analysis of the the Pathfinder Project. Comment feature, which is located on issues will be included in a draft EIS. • Potential for disturbance to the Commission’s Internet Web site at The draft EIS will be mailed to federal, residents along pipeline construction http://www.ferc.gov under the link to state, and local government agencies; route, including noise and aesthetics; Documents and Filings. A Quick elected officials; affected landowners; • Potential impacts to the viewshed Comment is an easy method for environmental and public interest from construction activities and interested persons to submit text-only groups; Indian tribes and regional placement of aboveground facilities; comments on a project; Native American organizations; • Potential for geological hazards, (2) You may file your comments commentors; other interested parties; including seismic activity, to have electronically by using the eFiling local libraries and newspapers; and impacts on the pipeline; feature, which is located on the FERC’s official service list for this • Potential impacts of the pipeline on Commission’s Internet Web site at proceeding. There will be at minimum waterbodies and wetlands, including http://www.ferc.gov under the link to a 45-day comment period allotted for issues of erosion control; Documents and Filings. eFiling involves review of the draft EIS. We will consider • Potential impacts of the pipeline on preparing your submission in the same all comments on the draft EIS and revise vegetation, including the clearing and manner as you would if filing on paper, the document, if necessary, before revegetation of existing plant and then saving the file on your issuing a final EIS. We will then communities and, in particular, the computer’s hard drive. You will attach consider all comments on the final EIS clearing of riparian areas; that file as your submission. New before we make our recommendations to • Potential impacts of the pipeline on eFiling users must first create an the Commission. To ensure that your threatened and endangered species and account by clicking on ‘‘Sign up’’ or comments are considered, please follow wildlife habitat; ‘‘eRegister.’’ You will be asked to select the instructions in the Public • Potential impacts of the pipeline on the type of filing you are making. A Participation section of this NOI. cultural resources, including comment on a particular project is With this NOI, we are asking federal, paleontological resources and historic considered a ‘‘Comment on a Filing’’; or state, and local agencies with trails; and (3) You may file your comments via jurisdiction and/or special expertise • Potential impacts of the pipeline on mail to the Commission by sending an with respect to environmental issues to recreation and scenic resources. original and two copies of your letter to: formally cooperate with us in the preparation of the EIS. These agencies Public Participation Kimberly D. Bose, Secretary, Federal may choose to participate once they You can make a difference by Energy Regulatory Commission, 888 have evaluated the proposal relative to providing us with your specific First St., NE., Room 1A, Washington, DC their responsibilities. As previously comments or concerns about the 20426. discussed, the BLM has agreed to Pathfinder Project or Bison Project. Your Label one copy of the comments for become a cooperating agency and would comments should focus on the potential the attention of Gas Branch 3, PJ–11.3. use the EIS to fulfill its NEPA environmental effects, reasonable The public scoping meetings (dates, responsibilities in considering the alternatives, and measures to avoid or times, and locations listed below) are potential issuance of a Right-of-Way lessen environmental impacts. The more designed to provide another opportunity Grant and Temporary Use Permit for the specific your comments, the more useful to offer comments on the proposed portion of the Project on federal land. they will be. To ensure that your Project. Interested groups and Additional agencies that would like to comments are timely and properly individuals are encouraged to attend the request cooperating agency status recorded, please send in your comments meetings and to present comments on should follow the instructions for filing so that they will be received in the environmental issues that they comments provided under the Public Washington, DC on or before November believe should be addressed in the EIS. Participation section of this NOI. 3, 2008. A transcript of the meetings will be The EIS will examine the proposed Comments on the proposed Project generated so that your comments can be action and alternatives that require can be submitted to the FERC in written accurately recorded. All meetings are administrative or other actions by other form or verbally at the public scoping scheduled to run from 6 to 8 p.m., and federal agencies. meetings. For your convenience, there are scheduled as follows:

Date Location

Monday, October 13, 6 to 8 pm ...... Best Western Tower West Lodge, 109 N. U.S. Highway 14–16, Gillette, Wyoming 82716. Tuesday, October 14, 6 to 8 pm ...... Roosevelt High School, 140 East K Street, Casper, Wyoming 82601. Broadus High School, 500 North Trautman, Broadus, MT 59317. Wednesday, October 15, 6 to 8 pm ...... Jeffrey Memorial Center, 315 East Pine Street, Rawlins, Wyoming 82301. Bowman City Hall, 101 1st Street NE, Bowman, North Dakota 58623. Thursday, October 16, 6 to 8 pm ...... Holiday Inn Suites, 300 South Colorado Highway 13, Craig, Colorado 81625. Parish Hall—Sacred Heart Church, 204 Oak Avenue East, Glen Ullin, North Dakota 58631.

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The Commission encourages notification of these filings, document interventions in lieu of paper using the electronic filing of comments and has summaries, and direct links to the ‘‘eFiling’’ link at http://www.ferc.gov. dedicated eFiling expert staff available documents. To register for this service, Persons unable to file electronically to assist you at 202–502–8258 or go to http://www.ferc.gov/ should submit an original and 14 copies [email protected]. esubscribenow.htm. of the protest or intervention to the Once TransCanada formally files its Public meetings or site visits will be Federal Energy Regulatory Commission, application with the Commission, you posted on the Commission’s calendar 888 First Street, NE., Washington, DC may want to become an ‘‘intervenor,’’ located at http://www.ferc.gov/ 20426. which is an official party to the EventCalendar/EventsList.aspx along This filing is accessible on-line at proceeding. Intervenors play a more with other related information. Finally, http://www.ferc.gov, using the formal role in the process and are able TransCanada has established a Web site ‘‘eLibrary’’ link and is available for to file briefs, appear at hearings, and be for the Project at http:// review in the Commission’s Public heard by the courts if they choose to www.transcanada.com/company/ Reference Room in Washington, DC. appeal the Commission’s final ruling. pathfinder.html. The Web site includes There is an ‘‘eSubscription’’ link on the An intervenor formally participates in a a Project overview, timeline, safety and Web site that enables subscribers to Commission proceeding by filing a environmental information, and public receive e-mail notification when a request to intervene. Instructions for outreach. You can also request document is added to a subscribed becoming an intervenor are included in additional information by contacting docket(s). For assistance with any FERC the User’s Guide under the ‘‘e-filing’’ TransCanada directly at: Online service, please e-mail link on the Commission’s Web site. E-mail: [email protected]. [email protected], or call Please note that you may not request Mailing address: Pathfinder Pipeline (866) 208–3676 (toll free). For TTY, call intervenor status at this time. You must Project, PO Box 6160, Broomfield, CO (202) 502–8659. wait until a formal application is filed 80021. Comment Date: 5 p.m. Eastern Time with the Commission. Toll-free telephone: (866) 509–2270. on October 10, 2008. Environmental Mailing List Nathaniel J. Davis, Sr., Nathaniel J. Davis, Sr., Everyone who responds to this notice Deputy Secretary. Deputy Secretary. or provides comments throughout the [FR Doc. E8–23500 Filed 10–3–08; 8:45 am] [FR Doc. E8–23502 Filed 10–3–08; 8:45 am] EIS process will be retained on our BILLING CODE 6717–01–P BILLING CODE 6717–01–P mailing list for this Project. If you do not want to send comments at this time but want to stay informed and receive DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY copies of the draft and final EIS, you must return the Mailing List Retention Federal Energy Regulatory Federal Energy Regulatory Form (Appendix 2). If you do not send Commission Commission comments or return the Mailing List [Docket No. ID–5870–000] [Docket No. RM98–1–000] Retention Form asking to remain on the mailing list, you will be taken off the Swisher, Keith L.; Notice of Filing Records Governing Off-the Record mailing list. Communications; Public Notice September 30, 2008. Additional Information Take notice that on September 19, September 30, 2008. Additional information about the 2008, Keith L. Swisher submitted for This constitutes notice, in accordance Project is available from the filing an application for authority to with 18 CFR 385.2201(b), of the receipt Commission’s Office of External Affairs hold interlocking positions, pursuant to of prohibited and exempt off-the-record at 1–866–208–FERC (3372), or on the section 305(b) of the Federal Power Act, communications. FERC Internet Web site (http:// 16 U.S.C. 825d(b) (2008), Part 45 of Title Order No. 607 (64 FR 51222, www.ferc.gov) using the ‘‘eLibrary link.’’ 18 of the Code of Federal Regulations, September 22, 1999) requires Click on the eLibrary link, select 18 CFR Part 45 (2008), and Commission Commission decisional employees, who ‘‘General Search’’ and enter the Project Order No. 664 (2005). make or receive a prohibited or exempt docket number, excluding the last three Any person desiring to intervene or to off-the-record communication relevant digits (i.e., PF08–22) in the ‘‘Docket protest this filing must file in to the merits of a contested proceeding, Number’’ field. Be sure you have accordance with Rules 211 and 214 of to deliver to the Secretary of the selected an appropriate date range. For the Commission’s Rules of Practice and Commission, a copy of the assistance with eLibrary, the eLibrary Procedure (18 CFR 385.211, 385.214). communication, if written, or a helpline can be reached at 1–866–208– Protests will be considered by the summary of the substance of any oral 3676, TTY (202) 502–8659, or by e-mail Commission in determining the communication. at [email protected]. The appropriate action to be taken, but will Prohibited communications are eLibrary link on the FERC Web site also not serve to make protestants parties to included in a public, non-decisional file provides access to the texts of formal the proceeding. Any person wishing to associated with, but not a part of, the documents issued by the Commission, become a party must file a notice of decisional record of the proceeding. such as orders, notices, and rule intervention or motion to intervene, as Unless the Commission determines that makings. appropriate. Such notices, motions, or the prohibited communication and any In addition, the FERC now offers a protests must be filed on or before the responses thereto should become a part free service called eSubscription that comment date. On or before the of the decisional record, the prohibited allows you to keep track of all formal comment date, it is not necessary to off-the-record communication will not issuances and submittals in specific serve motions to intervene or protests be considered by the Commission in dockets. This can reduce the amount of on persons other than the Applicant. reaching its decision. Parties to a time you spend researching proceedings The Commission encourages proceeding may seek the opportunity to by automatically providing you with electronic submission of protests and respond to any facts or contentions

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

EXEMPT

Docket No. File date Presenter or requester

1. CP08–130–000, et al...... 9–16–08 Hon. Joe Barton. 2. CP08–429–000 ...... 9–17–08 Hon. Jon C. Porter. 3. EC08–124–000 ...... 9–17–08 Hon. Christopher S. Murphy. 4. ER08–1113–000 ...... 9–22–08 Hon. George Radanovich. 5. ER08–1281–000 ...... 9–16–08 Hon. Donald Kasprzak. 6. ER08–1281–000 ...... 9–18–08 Hon. Donald L. Carcieri. 7. ER08–1281–000 ...... 9–29–08 Hon. Charles Schumer.1 8. P–1864–083 ...... 9–29–08 Jean Potvin. 9. P–2210–169 ...... 9–30–08 Warren D. Price.2 Mollie H. Holmes. 10. P–13178–000 ...... 9/17/08 Roger Eddy. 11. PF08–6–000, CP08–431–000 ...... 9/23/08 Hon. George V. Voinovich. 12. PF08–6–000, CP08–431–000 9/19/08 Hon. Sherrod Brown. 1 Memo to file and record for September 17, 2008 meeting. 2 One of four letters/e-mails filed in the Smith Mountain Lake proceeding. The other commenters: John Lindsey, Karen and Jerry Over and Reba Dillon.

Nathaniel J. Davis, Sr., periodically as new information I. General Information Deputy Secretary. becomes available. The list specifies A. Interested Entities [FR Doc. E8–23505 Filed 10–3–08; 8:45 am] whether the waters are subject to a BILLING CODE 6717–01–P monitoring and notification program This notice may be of interest to State consistent with the performance criteria and local beach managers, the general (National Beach Guidance and Required public, and environmental organizations Performance Criteria for Grants June concerned with public health at ENVIRONMENTAL PROTECTION beaches. AGENCY 2002) EPA published under CWA section 406(a). The list contains B. What is the Statutory Authority for [OW–FRL–8725–1] information that coastal and Great Lakes the National List of Beaches? States made available to EPA as of Beaches Environmental Assessment The BEACH Act, signed into law on January 31, 2008, and it replaces the and Coastal Health Act October 10, 2000, incorporated new previous list that EPA published on May provisions in the Clean Water Act to AGENCY: Environmental Protection 4, 2004. The National List of Beaches reduce the risk of illness to users of the Agency (EPA). provides a national baseline of the nation’s coastal recreation waters. ACTION: Notice of Availability of extent of monitoring of waters adjacent Section 406(g) of the Clean Water Act, National List of Beaches under the to beaches or similar points of access, as amended by the BEACH Act, Public Beaches Environmental Assessment and which will allow EPA to measure State Law 106–284, 114 Stat. 970 (2000), Coastal Health Act. program performance in implementing states: the monitoring and notification ‘‘(g) LIST OF WATERS.— SUMMARY: This notice informs the public provisions of the BEACH Act. ‘‘(1) IN GENERAL.— Beginning not later that EPA has updated the National List than 18 months after the date of publication of Beaches pursuant to Section 406(g) of ADDRESSES: Address all inquiries concerning this document to Lars of performance criteria under subsection (a), the Clean Water Act (CWA) as amended based on information made available to the by the Beaches Environmental Wilcut, Environmental Scientist, Office Administrator, the Administrator shall Assessment and Coastal Health of Science and Technology, Mail Code identify, and maintain a list of, discrete (BEACH) Act. EPA is publishing this list 4305T, 1200 Pennsylvania Avenue, coastal recreation waters adjacent to beaches under the title National List of Beaches. NW., Washington, DC 20460. or similar points of access that are used by the public that— Section 406(g) requires EPA to publish FOR FURTHER INFORMATION CONTACT: Lars ‘‘(A) specifies any waters described in this a list of discrete coastal recreation Wilcut, (202) 566–0447, paragraph that are subject to a monitoring waters adjacent to beaches or similar [email protected]. and notification program consistent with the points of access that are used by the performance criteria established under public and to update the list SUPPLEMENTARY INFORMATION: subsection (a); and

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‘‘(B) specifies any waters described in this and integrate the National List of periodic status reports on the chemicals paragraph for which there is no monitoring Beaches with other program information under review and the receipt of notices and notification program (including waters such as frequency of monitoring and of commencement to manufacture those for which fiscal constraints will prevent the beach location and length. State or the Administrator from performing chemicals. This status report, which covers the period from August 18, 2008 monitoring and notification consistent with E. How may you look at or get a copy the performance criteria established under of this list? through September 12, 2008, consists of subsection (a)). the PMNs and TME, both pending or ‘‘(2) AVAILABILITY.—The Administrator The National List of Beaches is expired, and the notices of shall make the list described in paragraph (1) available on EPA’s Web site at: http:// commencement to manufacture a new available to the public through— www.epa.gov/waterscience/beaches/. chemical that the Agency has received ‘‘(A) publication in the Federal Register; Copies of the document can also be under TSCA section 5 during this time and obtained by writing, calling, or e- period. This status report, also includes ‘‘(B) electronic media. mailing: Office of Water Resources ‘‘(3) UPDATES.—The Administrator shall a PMN and TME that were inadvertently update the list described in paragraph (1) Center, U.S. Environmental Protection ommitted from a previous report that periodically as new information becomes Agency, Mail Code 4100T, 1200 covered the period from August 4, 2008 available.’’ Pennsylvania Avenue, NW., through August 15, 2008. Washington, DC 20460. (Phone: 202– DATES: Comments identified by the C. How did EPA obtain this 566–1731 or e-mail: center.water- specific PMN number or TME number, information? [email protected]). must be received on or before November EPA provides federal grant funds to F. How do I find more information about 5, 2008. assist coastal and Great Lakes States and my State’s or Territory’s List of Beaches? Territories in the implementation of ADDRESSES: Submit your comments, their beach monitoring and notification The 35 States subject to the BEACH identified by docket identification (ID) programs. In developing these programs, Act amendments to the Clean Water Act number EPA–HQ–OPPT–2008–0721, by States and Territories created lists of provided the information that EPA used one of the following methods: • their coastal recreation waters, to compile the National List of Beaches. Federal eRulemaking Portal: http:// including those waters adjacent to State and Territory contacts are www.regulations.gov. Follow the on-line beaches and other similar points of identified along with each State’s or instructions for submitting comments. • access, and identified whether there is Territory’s list. Mail: Document Control Office (7407M), Office of Pollution Prevention a monitoring program for each beach. G. How will this list change? EPA assisted States through workshops and Toxics (OPPT), Environmental and telephone contact with Regional EPA intends to update this list Protection Agency, 1200 Pennsylvania Beach Coordinators and Headquarters periodically based on information Ave., NW., Washington, DC 20460– personnel. States then submitted their received from States. EPA will publish 0001. • lists to EPA. EPA compiled the notice in the Federal Register of any Hand Delivery: OPPT Document submissions and made the information revisions to the National List of Control Office (DCO), EPA East Bldg., available to the public on May 4, 2004 Beaches. Rm. 6428, 1201 Constitution Ave., NW., (69 FR24597). Dated: September 30, 2008. Washington, DC. Attention: Docket ID Since 2004, coastal and Great Lakes Benjamin H. Grumbles, Number EPA–HQ–OPPT–2008–0721. The DCO is open from 8 a.m. to 4 p.m., States have updated this information as Assistant Administrator for Water. Monday through Friday, excluding legal part of their annual submission of beach [FR Doc. E8–23555 Filed 10–3–08; 8:45 am] monitoring and notification data to EPA. holidays. The telephone number for the BILLING CODE 6560–50–P EPA is now publishing the most current DCO is (202) 564–8930. Such deliveries update to this information based on the are only accepted during the DCO’s States’ beach monitoring and ENVIRONMENTAL PROTECTION normal hours of operation, and special notification data for the 2007 beach AGENCY arrangements should be made for season. deliveries of boxed information. [EPA–HQ–OPPT–2008–0721; FRL–8385–4] Instructions: Direct your comments to D. How will EPA use this National List docket ID number EPA–HQ–OPPT– of Beaches? Certain New Chemicals; Receipt and 2008–0721. EPA’s policy is that all The National List of Beaches provides Status Information comments received will be included in EPA a national baseline of the extent of AGENCY: Environmental Protection the docket without change and may be monitoring of waters adjacent to Agency (EPA). made available on-line at http:// beaches or similar points of access, ACTION: Notice. www.regulations.gov, including any which will allow EPA to measure personal information provided, unless improvements in monitoring and SUMMARY: Section 5 of the Toxic the comment includes information notification at all coastal and Great Lake Substances Control Act (TSCA) requires claimed to be Confidential Business beaches. It will also help EPA determine any person who intends to manufacture Information (CBI) or other information how to improve implementation of the (defined by statute to include import) a whose disclosure is restricted by statute. BEACH Act. The list provides new chemical (i.e., a chemical not on Do not submit information that you information to the public identifying the the TSCA Inventory) to notify EPA and consider to be CBI or otherwise beaches in their State and whether they comply with the statutory provisions protected through regulations.gov or e- are monitored. In 2007, States and pertaining to the manufacture of new mail. The regulations.gov website is an Territories identified a total of 6,247 chemicals. Under sections 5(d)(2) and ‘‘anonymous access’’ system, which beaches, the waters of 3,655 of those 5(d)(3) of TSCA, EPA is required to means EPA will not know your identity beaches were monitored and the waters publish a notice of receipt of a or contact information unless you of 2,592 of those beaches were not premanufacture notice (PMN) or an provide it in the body of your comment. monitored. EPA continues to work with application for a test marketing If you send an e-mail comment directly states to compile additional information exemption (TME), and to publish to EPA without going through

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regulations.gov, your e-mail address Protection Agency, 1200 Pennsylvania your estimate in sufficient detail to will be automatically captured and Ave., NW., Washington, DC 20460– allow for it to be reproduced. included as part of the comment that is 0001; telephone number: (202) 554– vi. Provide specific examples to placed in the docket and made available 1404; e-mail address: TSCA- illustrate your concerns and suggest on the Internet. If you submit an [email protected]. alternatives. electronic comment, EPA recommends SUPPLEMENTARY INFORMATION: that you include your name and other vii. Explain your views as clearly as contact information in the body of your I. General Information possible, avoiding the use of profanity comment and with any disk or CD-ROM or personal threats. A. Does this Action Apply to Me? you submit. If EPA cannot read your viii. Make sure to submit your comment due to technical difficulties This action is directed to the public comments by the comment period and cannot contact you for clarification, in general. As such, the Agency has not deadline identified. attempted to describe the specific EPA may not be able to consider your II. Why is EPA Taking this Action? comment. Electronic files should avoid entities that this action may apply to. the use of special characters, any form Although others may be affected, this Section 5 of TSCA requires any of encryption, and be free of any defects action applies directly to the submitter person who intends to manufacture or viruses. For additional information of the premanufacture notices addressed (defined by statute to include import) a about EPA’s public docket, visit the EPA in the action. If you have any questions new chemical (i.e., a chemical not on Docket Center homepage at http:// regarding the applicability of this action the TSCA Inventory to notify EPA and www.epa.gov/epahome/dockets.htm. to a particular entity, consult the person comply with the statutory provisions Docket: All documents in the docket listed under FOR FURTHER INFORMATION pertaining to the manufacture of new are listed in the docket index available CONTACT. chemicals. Under sections 5(d)(2) and in regulations.gov. To access the B. What Should I Consider as I Prepare 5(d)(3) of TSCA, EPA is required to electronic docket, go to http:// My Comments for EPA? publish a notice of receipt of a PMN or www.regulations.gov, select ‘‘Advanced an application for a TME and to publish Search,’’ then ‘‘Docket Search.’’ Insert 1. Submitting CBI. Do not submit this periodic status reports on the chemicals the docket ID number where indicated information to EPA through under review and the receipt of notices and select the ‘‘Submit’’ button. Follow regulations.gov or e-mail. Clearly mark of commencement to manufacture those the instructions on the regulations.gov the part or all of the information that chemicals. This status report, which website to view the docket index or you claim to be CBI. For CBI covers the period from August 18, 2008 access available documents. Although information in a disk or CD-ROM that through September 12, 2008, consists of listed in the index, some information is you mail to EPA, mark the outside of the the PMNs and TME, both pending or not publicly available, e.g., CBI or other disk or CD-ROM that you mail to EPA, expired, and the notices of information whose disclosure is mark the outside of the disk or CD-ROM commencement to manufacture a new restricted by statute. Certain other as CBI and then identify electronically chemical that the Agency has received material, such as copyrighted material, within the disk or CD-ROM the specific under TSCA section 5 during this time will be publicly available only in hard information that is claimed as CBI. In period. This status report, also includes copy. Publicly available docket addition to one complete version of the a PMN and TME that were inadvertently materials are available electronically at comment that includes information ommitted from a previous report that http://www.regulations.gov, or, if only claimed as CBI, a copy of the comment covered the period from August 4, 2008 available in hard copy, at the OPPT that does not contain the information through August 15, 2008. Docket. The OPPT Docket is located in claimed as CBI must be submitted for the EPA Docket Center (EPA/DC) at Rm. inclusion in the public docket. III. Receipt and Status Report for PMNs 3334, EPA West Bldg., 1301 Information so marked will not be This status report identifies the PMNs Constitution Ave., NW., Washington, disclosed except in accordance with and TME, both pending or expired, and DC. The EPA/DC Public Reading Room procedures set forth in 40 CFR part 2. hours of operation are 8:30 a.m. to 4:30 2. Tips for preparing your comments. the notices of commencement to p.m., Monday through Friday, excluding When submitting comments, remember manufacture a new chemical that the Federal holidays. The telephone number to: Agency has received under TSCA of the EPA/DC Public Reading Room is i. Identify the document by docket ID section 5 during this time period. If you (202) 566–1744, and the telephone number and other identifying are interested in information that is not number for the OPPT Docket is (202) information (subject heading, Federal included in the following tables, you 566–0280. Docket visitors are required Register date and page number). may contact EPA as described in Unit I. to show photographic identification, ii. Follow directions. The Agency may to access additional non-CBI pass through a metal detector, and sign ask you to respond to specific questions information that may be available. the EPA visitor log. All visitor bags are or organize comments by referencing a In Table I of this unit, EPA provides processed through an X-ray machine Code of Federal Regulations (CFR) part the following information (to the extent and subject to search. Visitors will be or section number. that such information is not claimed as provided an EPA/DC badge that must be iii. Explain why you agree or disagree; CBI) on the PMNs received by EPA visible at all times in the building and suggest alternatives and substitute during this period: the EPA case number returned upon departure. language for your requested changes. assigned to the PMN; the date the PMN FOR FURTHER INFORMATION CONTACT: iv. Describe any assumptions and was received by EPA; the projected end Colby Lintner, Regulatory Coordinator, provide any technical information and/ date for EPA’s review of the PMN; the Environmental Assistance Division, or data that you used. submitting manufacturer; the potential Office of Pollution Prevention and v. If you estimate potential costs or uses identified by the manufacturer in Toxics (7408M), Environmental burdens, explain how you arrived at the PMN; and the chemical identity.

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I. 54 PREMANUFACTURE NOTICES RECEIVED FROM: 08/18/08 TO 09/12/08

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–08–0624 07/25/08 10/22/08 Cytec Industrial Inc. (G) Coating resin (G) Alphatic polyurethane P–08–0654 08/18/08 11/15/08 CBI (S) Thixotrope for alkyd resins used (G) Fatty acids, C18-unsaturated, in paint and coating compositions. dimers, polymers with diamines and monoacids. P–08–0655 08/18/08 11/15/08 CBI (S) Thixotrope for alkyd resins used (G) Fatty acids, C18-unsaturated, in paint and coating compositions. dimers, polymers with diamines and monoacids. P–08–0656 08/18/08 11/15/08 CBI (S) Binder in flexographic or pack- (G) Fatty acids, C18-unsaturated, aging gravure printing inks and var- dimers, polymers with diamines and nishes monoacids. P–08–0657 08/18/08 11/15/08 CBI (S) Thixotrope for alkyd resins used (G) Fatty acids, C18-unsaturated, in paint and coating compositions. dimers, polymers with diamines and monoacids. P–08–0658 08/18/08 11/15/08 CBI (S) Thixotrope for alkyd resins used (G) Fatty acids, C18-unsaturated, in paint and coating compositions. dimers, polymers with diamines and monoacids. P–08–0659 08/18/08 11/15/08 Halosource, Inc. (S) Stormwater purifier for construc- (S) Chitosan, 2-hydroxypropanoate tion sites (salt) P–08–0660 08/18/08 11/15/08 Halosource, Inc. (S) Stormwater purifier for construc- (S) Chitosan, acetate (salt) tion sites P–08–0661 08/18/08 11/15/08 CBI (G) Paper manufacture chemical (S) Hexanedioic acid, polymers with amine-contg. hydrolyzed N- ethenylformamide-vinyl acetate polymer, epichlorohydrin and triethylenetetramine, sulfates (salts) P–08–0662 08/18/08 11/15/08 CBI (G) Precursor for paper manufacture (S) Hexanedioic acid, polymer with chemical N1,N2-bis(2-aminoethyl)-1,2- ethanediamine P–08–0663 08/18/08 11/15/08 CBI (G) Colorant for industrial application (G) Mixed dichlorobenzidine and sub- stituted alkylamides P–08–0664 08/19/08 11/16/08 CBI (G) Textile finish (G) Fluorinated acrylic copolymer P–08–0665 08/20/08 11/17/08 CBI (G) Concrete additive (G) Acrylic acid ester polymer with vinyl glycol derivative and cyclic alkene anhydride P–08–0666 08/20/08 11/17/08 CBI (G) Concrete additive (G) Acrylic acid ester polymer with vinyl glycol derivative and cyclic alkene anhydride potassium salt P–08–0667 08/20/08 11/17/08 CBI (G) Concrete additive (G) Acrylic acid ester polymer with vinyl glycol derivative and cyclic alkene anhydridesodum potassium salt P–08–0668 08/20/08 11/17/08 CBI (G) Adhesion promoter (G) Chlorinated polyolefin P–08–0669 08/21/08 11/18/08 CBI (G) Oligomer (G) Urethane acrylate P–08–0670 08/21/08 11/18/08 CBI (G) Oligomer (G) Urethane acrylate P–08–0671 08/21/08 11/18/08 Hi-Tech Color, Inc. (S) Adhesives for industrial material (S) Hexanedioic acid, polymer with 1,4-butanediol, 1,3- diisocyanatomethylbenzene and 1,2-propanediol P–08–0672 08/21/08 11/18/08 CBI (G) Open non-dispersive use (adhe- (G) Polyester polyurethane aqueous sive resin) dispersion P–08–0673 08/22/08 11/19/08 CBI (S) Filler for rubber (G) Functional metal hydroxide P–08–0674 08/22/08 11/19/08 CBI (G) Component in colorants (G) Mixed metal oxides P–08–0677 08/25/08 11/22/08 Incorez Corporation (S) Amine hardener used in the for- (G) Polyamine epoxy adduct mulation of epoxy based paints and coatings P–08–0678 08/25/08 11/22/08 Evonik-Degussa Cor- (S) Extrusion of tubing systems; injec- (G) Polymer of alkanedioic acid and poration tion molded semi-finished articles alkanediamine P–08–0679 08/26/08 11/23/08 CBI (G) Pour point depressant (G) Furandione polymer with ethenylbenzene, alkyl ester P–08–0680 08/26/08 11/23/08 CBI (S) Herbicide safener and plant (S) N-[[4-[(cyclopropylamino)carbonyl] growth regulator for agricultural phenyl]sulfonyl]-2- seed treatment; Incorporated into methoxybenzamide FIFRA registered pesticide P–08–0681 08/26/08 11/23/08 CBI (G) Printing additive (G) Polyester resin P–08–0682 08/27/08 11/24/08 CBI (S) Metal working lubricant (G) Ethoxylated maleated triglyceride polymer

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I. 54 PREMANUFACTURE NOTICES RECEIVED FROM: 08/18/08 TO 09/12/08—Continued

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–08–0683 08/27/08 11/24/08 CBI (S) Metal working lubricant (G) Ethoxylated maleated triglyceride polymer P–08–0684 08/27/08 11/24/08 CBI (S) Metal working lubricant (G) Ethoxylated maleated triglyceride polymer P–08–0686 08/27/08 11/24/08 Incorez Corporation (G) Polyurethane resin for coating (G) Polyurethane prepolymer for coat- ings P–08–0687 08/25/08 11/22/08 CBI (G) Lubricant additive (G) Amines, polyethylenepoly-, reac- tion products with isostearic acid and disubstituted methanal. Alkylamide, N-(2-ethylhexyl)- P–08–0688 08/27/08 11/24/08 CBI (G) This PMN substance aids in the (G) Epoxy-amine adduct polymerization of a polymer and is inextricably bound in the cured polymer once polymerized. P–08–0689 08/27/08 11/24/08 CBI (G) Processing aid (G) Substituted aliphatic amine P–08–0690 08/28/08 11/25/08 CBI (G) Catalyst (G) Mixed metal oxide P–08–0691 08/28/08 11/25/08 CBI (G) Oil-field additive (G) Vinyl acetate copolymer P–08–0692 08/27/08 11/24/08 CBI (G) Oligomer (G) Epoxy acrylates P–08–0693 08/29/08 11/26/08 Cytec Industries Inc. (S) Resin for paints and coatings (G) Substituted carbomonocycles, polymer with substituted glycols and alkyldioic acid P–08–0694 08/29/08 11/26/08 Hexion Specialty (G) Curative to be used with epoxy (G) N-arylamino-phenol-formaldehyde Chemicals, Inc. resin; curative to be used with condensate isocyanates in urethane systems; intermediate for synthesis of epoxy resins P–08–0695 09/02/08 11/30/08 CBI (G) Component in a epoxy-urethane (G) Blocked polyurethane prepolymer structural adhesive P–08–0696 09/03/08 12/01/08 CBI (G) Additive for concrete construction (G) Alkenoic acid, metal salt, polymer with (alkyl (C=1–3) alke- nyl)hydroxypoly (substituted al- kane(C=2–4)diyl), graft P–08–0697 09/03/08 12/01/08 Henkel Corporation (S) An accelerator in industrial adhe- (S) 2,5-furandione, telomer wth sive formulations ethenylbenzene and (1- methylethyl)benzene, 2- phenylhydrazides P–08–0698 09/04/08 12/02/08 Henkel Corporation (S) A polymerizeable component of (S) Cyclohexanol, 4,4′-(1- adhesive formulations for general methylethylidene)bis-, polymer with industrial bonding applications 1,3-diisocyanatomethylbenzene and, .alpha.-hydro-omega.- hydroxypoly(oxy-1,4-butanediyl), 2- hydroxy-1-[4-(2- hydroxyethoxy)phenyl]-2-methyl-1- propanone- and propylene glycol monomethacrylate-blocked P–08–0699 09/04/08 12/02/08 CBI (G) Intermediate (G) Alkoxysilane P–08–0700 09/05/08 12/03/08 CBI (G) Epoxy adduct component in a (G) Epoxy prepolymer structural adhesive P–08–0701 09/08/08 12/06/08 CBI (G) Pigment for plastics coloration - (G) Benzoic acid, 4-chloro-2-[(sub- dispersive use stituted)azo]-, strontium salt (1:1) P–08–0702 09/08/08 12/06/08 Incorez Corporation (G) Polyurethane resin for coating (G) Polyurethane prepolymer P–08–0703 09/08/08 12/06/08 CBI (G) Ink ingredient (G) Dihydroxyalkanoic acid, polymer with polyetherdiol and alicyclic diisocyanate P–08–0704 09/09/08 12/07/08 CBI (G) Site limited intermediate for per- (G) Linear alkyl epoxide sonal care ingredient; site limited intermediate for foam control agents P–08–0705 09/09/08 12/07/08 Orient Corporation of (S) Colorant for industrial inkjet printer (S) Chromium, 1-[2-[5-(1,1- America dimethylpropyl)-2-hydroxy-3- nitrophenyl]diazenyl]-2-naphthalenol 1-[2-[2-hydroxy-4(or 5)- nitrophenyl]diazenyl]-2-naphthalenol ammonium sodium complexes P–08–0706 09/11/08 12/09/08 CBI (S) Curing agent for epoxy resin in (G) Amides, from C18-unsaturated protective coatings fatty acid dimers, aliphatic polyamines, aliphatic polyamine N- benzyl derivatives, and tall-oil fatty acids

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I. 54 PREMANUFACTURE NOTICES RECEIVED FROM: 08/18/08 TO 09/12/08—Continued

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–08–0707 09/11/08 12/09/08 Strategic Marketing (G) Aromatic additive (S) 2H-2,4A-methanonaphthalen- and Management 1(5H)-one, hexahydro-5,5-dimethyl- Associates * P–08–0708 09/11/08 12/09/08 CBI (G) Raw material for electronic parts (G) Phenol, 4,4′-substituted, polymer with 2,2′-[(3,3′,5,5′-tetramethyl[1,1′- biphenyl]-4,4′diyl)bis (oxymethylene)]bis[oxirane] P–08–0709 09/12/08 12/10/08 CBI (G) Additive, open, non-dispersive (G) Alkylacrylates, copolymers with use alkylmethacrylates and modified methacrylates

In Table II of this unit, EPA provides that such information is not claimed as the following information (to the extent CBI) on the TMEs received:

II. 2 TEST MARKETING EXEMPTION NOTICES RECEIVED FROM: 08/18/08 TO 09/12/08

Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date

P–08–0624 07/25/08 10/22/08 Cytec Industrial Inc. (G) Coating resin (G) Alphatic polyurethane T–08–0020 08/29/08 10/12/08 Cytec Industries Inc. (S) Resin for paints and coatings (G) Substituted carbomonocycles, polymer with substituted glycols and alkyldioic acid

In Table III of this unit, EPA provides CBI) on the Notices of Commencement the following information (to the extent to manufacture received: that such information is not claimed as

III. 50 NOTICES OF COMMENCEMENT FROM: 08/18/08 TO 09/12/08

Commencement Case No. Received Date Notice End Date Chemical

P–05–0605 08/21/08 08/11/08 (S) Fatty acids, C16–18 and C18-unsaturated, reaction products with lactic acid and monosodium lactate P–06–0638 09/04/08 08/23/08 (G) Crosslinked cyclic polyester P–06–0828 09/02/08 08/25/08 (G) Polyacrylate terpolymer salt P–07–0388 08/20/08 08/03/08 (G) Polydimethylsiloxane hydroxyalkyl terminated, polymers with diisocyanate and aminoalkyl groups aliphatic amine blocked, acetates P–07–0400 08/26/08 08/07/08 (G) Aliphatic polyurethane resin P–07–0438 08/22/08 08/09/08 (G) Polyester polyol P–07–0538 09/02/08 08/21/08 (G) Organic tallate salt P–08–0040 09/03/08 08/07/08 (G) Polyurethane hybrid P–08–0068 09/09/08 08/21/08 (S) Oils, Schinus Terebinthifolius Extractives and their physically modified de- rivatives. Schinus Terebinthifolius. P–08–0073 09/02/08 08/12/08 (G) Aliphatic polyisocyanate, C16-alcohol and polyalkylene glycol-blocked P–08–0095 08/21/08 08/19/08 (S) Phosphonium, methyltris (2-methylpropyl)-, salt with 4- methylbenzenesulfonic acid (1:1) P–08–0113 09/09/08 08/21/08 (S) Oils, Vanilla tahitensis Extractives and their physically modified derivatives. P–08–0184 09/10/08 09/05/08 (G) Polyacrylate/vinylpyridine block copolymer P–08–0214 09/03/08 08/02/08 (G) Aromatic urethane acrylate polymer P–08–0223 08/28/08 08/16/08 (G) Fluoroalkyl acrylate copolymer P–08–0236 08/21/08 08/19/08 (G) Acrylate copolymer P–08–0253 09/10/08 09/07/08 (G) Unsaturated polyester resin P–08–0264 09/09/08 08/27/08 (G) Polyester P–08–0268 08/18/08 07/17/08 (G) Silicone modified urethane adduct P–08–0272 09/09/08 08/21/08 (S) Oils, Passionflower, Passiflora Edulis Extractives and their physically modi- fied derivatives. Passiflora Edulis. P–08–0276 08/19/08 08/01/08 (G) Substituted-carbopolycyclic-[[heterocycle)-heterocycle- diyl]diimino]bis[substituted-[[sulfocarbocycle]azo]carbocycle]azo]-, sodium salt P–08–0285 09/09/08 08/21/08 (S) Oils, Peach Extractives and their physically modified derivatives. Prunus Persica. P–08–0303 09/09/08 08/21/08 (S) Oils, Siparuna Guianesis Extractives and their physically modified deriva- tives. Siparuna Guianensis. P–08–0306 08/28/08 08/19/08 (G) Polyether urethane block copolymer

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III. 50 NOTICES OF COMMENCEMENT FROM: 08/18/08 TO 09/12/08—Continued

Commencement Case No. Received Date Notice End Date Chemical

P–08–0308 09/04/08 08/26/08 (G) Heteromonocycle carboxylic acid, bromo-(3-chloro-2-pyridinyl)-dihydro-, ethyl ester P–08–0309 09/10/08 09/04/08 (G) Heteromonocycle carboxylic acid, bromo-(3-chloro-2-pyridinyl)-, ethyl ester P–08–0311 09/04/08 08/21/08 (G) Heteromonocycle carboxylic acid, (3-chloro-2-pyridinyl)-dihydro- [(phenylsulfonyl)oxy]-, ethyl ester P–08–0312 09/09/08 08/21/08 (S) Excretions, hyraceum, ext. The ethanol soluble components obtained from the extraction of hyraceum (sticky mass of dung and urine) from procavia carpensis P–08–0329 08/20/08 08/14/08 (G) Polyurethane derivative P–08–0336 09/05/08 07/01/08 (G) Polymer with E-caprolactone, hydroxystearic acid, methyldiethaholamine and dicyclohehylmethane diisocyanate P–08–0341 09/09/08 08/21/08 (S) Oils, Guava, Psidium Guajava Extractives and their physically modified de- rivatives. Psidium Guajava P–08–0342 09/09/08 08/21/08 (S) Oils, Mango Extractives and their physically modified derivatives. Mangifera Indica. P–08–0346 08/28/08 08/05/08 (G) Isocyanic acid, alkylene ester, propylene glycol monomethacrylate-blocked P–08–0356 09/09/08 08/21/08 (S) Oils, Papaya Extractives and their physically modified derivatives. Carica Papaya. P–08–0357 09/03/08 08/26/08 (G) Polyol P–08–0366 09/09/08 08/21/08 (S) Oils, Euterpe Precutoria Extractives and their physically modified deriva- tives. Euterpe Precatoria. P–08–0375 08/28/08 08/01/08 (G) TS-S692P3 and TS-S694P3: Fatty acid dimers, polymers with diols, cyclical diacid, aromatic polyacid; TS-S693P3 and TS-S695P3: Fatty acid dimers, polymers with diols, cyclical diacid, aromatic polyacid, compounds with amine P–08–0379 09/09/08 08/21/08 (S) Oils Amomum tsao-ko Extractives and their physically modified derivatives. Amomum tsao-ko, Zingiberaceae. P–08–0381 09/09/08 08/21/08 (S) Oils, Inula Nervosa Extractives and their physically modified derivatives. Inula Nervosa, Aasteraceae. P–08–0385 08/15/08 07/31/08 (G) Lithium salt of cyclic disulfonic acid P–08–0389 09/09/08 08/21/08 (S) Honey, desaccharided P–08–0390 09/03/08 08/22/08 (G) Acrylate polymer with vinyl ether P–08–0397 09/02/08 08/25/08 (S) 2,4′-dimethylpropiophenone P–08–0402 09/09/08 08/21/08 (S) Oils, Citrus Hystrix Extractives and their physically modified derivatives. Cit- rus Hystrix. P–08–0403 09/09/08 08/21/08 (S) Oils, Kaempferia Galanga Extractives and their physically modified deriva- tives. Kaempferia Galanga. P–08–0408 09/03/08 08/22/08 (S) Oils, Dalbergia Cochinchinensis Extractives and their physically modified derivatives. Dalbergia Cochinchinensis. P–08–0417 09/09/08 08/21/08 (S) Oils Kumquat, Fortunella Margarita Extractives and their physically modified derivatives. Fortunella margarita. P–08–0437 08/25/08 08/19/08 (G) Amine carboxylate P–98–0134 08/20/08 07/23/08 (G) Styrene acrylate P–99–0449 08/26/08 08/05/08 (G) Isocyanate modified polymer

List of Subjects ACTION: Notice of information • Web site: http://www.FDIC.gov/ collections to be submitted to OMB for regulations/laws/federal/notices.html. Environmental protection, Chemicals, review and approval under the • Email: mail to: Premanufacturer notices. Paperwork Reduction Act of 1995. [email protected]. Include the name Dated: September 29, 2008. of the collection in the subject line of Chandler Sirmons, SUMMARY: In accordance with the message. Acting Director, Information Management requirements of the Paperwork • Mail: Herbert J. Messite (202–898– Division, Office of Pollution Prevention and Reduction Act of 1995 (44 U.S.C. 6834), Counsel, Room F–1052, Federal Toxics. chapter 35), the FDIC hereby gives Deposit Insurance Corporation, 550 17th [FR Doc. E8–23551 Filed 10–3–08; 8:45 am] notice that it plans to submit to the Street, NW., Washington, DC 20429. BILLING CODE 6560–50–S Office of Management and Budget • (OMB) a request for OMB review and Hand Delivery: Comments may be renewal the collections of information hand-delivered to the guard station at described below: the rear of the 17th Street Building (located on F Street), on business days FEDERAL DEPOSIT INSURANCE DATES: Comments must be submitted on between 7 a.m. and 5 p.m. CORPORATION or before November 5, 2008. Comments may also be submitted to Agency Information Collection ADDRESSES: Interested parties are the OMB desk officer for the FDIC: Activities: Submission for OMB invited to submit written comments to Office of Information and Regulatory Review; Comment Request the FDIC by any of the following Affairs, Office of Management and methods. All comments should refer to Budget, New Executive Office Building, AGENCY: Federal Deposit Insurance the name of the collection as well as the Room 10235, 725 17th Street, NW., Corporation (FDIC). OMB control number(s): Washington, DC 20503.

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FOR FURTHER INFORMATION CONTACT: (Notification of Performance of Bank ways to enhance the quality, utility, and Herbert J. Messite, at the address or Services) may be used by banks to clarity of the information to be telephone number identified above. satisfy the notification requirement. collected; and (d) ways to minimize the SUPPLEMENTARY INFORMATION: Proposal 4. Title: Summary of Deposits. burden of the information collection on to renew the following currently OMB Number: 3064–0061. respondents, including through the use approved collections of information: Form Number: 8020/05 (7–95). of automated collection techniques or 1. Title: Uniform Application/ Frequency of Response: Annually. other forms of information technology. Uniform Termination for Municipal Affected Public: All insured financial All comments will become a matter of Securities Principal or Representative. institutions. public record. OMB Number: 3064–0022. Estimated Number of Respondents: 6,000. Dated at Washington, DC, this 1st day of Form Number: MSD–4; MSD–5 October, 2008. Average Estimated Time per Frequency of Response: On occasion. Response: 3 hours. Federal Deposit Insurance Corporation. Affected Public: Business or other Total Annual Burden: 18,000 hours. Robert E. Feldman, financial institutions. General Description of Collection: The Executive Secretary. Estimated Number of Respondents: Summary of Deposits annual survey [FR Doc. E8–23495 Filed 10–3–08; 8:45 am] 75. obtains data about the amount of BILLING CODE 6714–01–P Estimated Time per Response: 1 hour. deposits held at each office of all Total Annual Burden: 75 hours. insured banks with branches in the General Description of Collection: An United States. The survey data provides FEDERAL RESERVE SYSTEM insured state nonmember bank which a basis for measuring the competitive serves as a municipal securities dealer impact of bank mergers and has Change in Bank Control Notices; must file Form MSD–4 or MSD–5, as additional use in banking research. Acquisition of Shares of Bank or Bank applicable, to permit an employee to 5. Title: External Audits. Holding Companies become associated or to terminate the OMB Number: 3064–0113. association with the municipal Frequency of Response: Annually The notificants listed below have securities dealer. FDIC uses the form to Affected Public: All insured financial applied under the Change in Bank ensure compliance with the professional institutions with total assets of $500 Control Act (12 U.S.C. 1817(j)) and requirements for municipal securities Million or more, and other insured § 225.41 of the Board’s Regulation Y (12 dealers in accordance with the rules of financial institutions with total assets of CFR 225.41) to acquire a bank or bank the Municipal Securities Rulemaking less than $500 Million that voluntarily holding company. The factors that are Board. choose to comply. considered in acting on the notices are 2. Title: Request for Deregistration for Estimated Number of Respondents: set forth in paragraph 7 of the Act (12 Registered Transfer Agents. 5,205 U.S.C. 1817(j)(7)). OMB Number: 3064–0027. Average Estimated Time per The notices are available for Frequency of Response: On occasion. Response: (a) Financial institutions with immediate inspection at the Federal Affected Public: Business or other assets of $1 Billion or more: 65.05 Reserve Bank indicated. The notices financial institutions. hours; (b) financial institutions with also will be available for inspection at Estimated Number of Respondents: assets of $500 Million, but less than $1 the office of the Board of Governors. 10. Billion: 8.10 hours; (c) financial Interested persons may express their Estimated Time per Response: .42 institutions with total assets less than views in writing to the Reserve Bank hours. $500 Million: 25 minutes. indicated for that notice or to the offices Total Annual Burden: 4.2 hours. Total Annual Burden: 83,324 hours. of the Board of Governors. Comments General Description of Collection: An General Description of Collection: must be received not later than October insured nonmember bank or a FDIC’s regulations at 12 CFR 363 21, 2008. subsidiary of such a bank that functions establish annual independent audit and A. Federal Reserve Bank of Atlanta as a transfer agent may withdraw from reporting requirements for financial (Steve Foley, Vice President) 1000 registration as a transfer agent by filing institutions with total assets of $500 Peachtree Street, N.E., Atlanta, Georgia a written notice of withdrawal with the Million or more. The requirements 30309: FDIC as provided by 12 CFR 341.5. include the submission of an annual 1. Delmo R. Payne and Wilmuth 3. Title: Notification of Performance of report on their financial statements, Payne, both of Hamilton, Alabama, to Bank Services recordkeeping about management acquire additional voting shares of OMB Number: 3064–0029. deliberations regarding external Hometown Bancshares, Inc., and Form Number: FDIC 6120/06. auditing and reports about changes in thereby indirectly acquire additional Frequency of Response: On occasion. auditors. The information collected is voting shares of PeoplesTrust Bank, Affected Public: Business or other used to facilitate early identification of both of Hamilton, Alabama. financial institutions. problems in financial management at 2. Gerald Terrell, Faye Terrell, Donald Estimated Number of Respondents: financial institutions. L. Terrell, and Danny Terrell, all of 400. Hamilton, Alabama; Audrey Garrett and Request for Comment Estimated Time per Response: 1⁄2 William Garrett, both of Birmingham, hour. Comments are invited on: (a) Whether Alabama, to acquire additional voting Total Annual Burden: 200 hours. the collections of information are shares of Hometown Bancshares, Inc., General Description of Collection: necessary for the proper performance of and thereby indirectly acquire Insured state nonmember banks are the FDIC’s functions, including whether additional voting shares of PeoplesTrust required to notify the FDIC, under the information has practical utility; (b) Bank, both of Hamilton, Alabama. section 7 of the Bank Service the accuracy of the estimates of the B. Federal Reserve Bank of Dallas (E. Corporation Act (12 U.S.C. 1867), of the burden of the information collections, Ann Worthy, Vice President) 2200 relationship with a bank service including the validity of the North Pearl Street, Dallas, Texas 75201– corporation. Form FDIC 6120/06 methodology and assumptions used; (c) 2272:

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1. Clyde Ray White, Clydine related to banking and permissible for Board of Governors of the Federal Reserve Covington White, and Jarrah Reed bank holding companies. Unless System, October 1, 2008. White, all of Monroe, Louisiana; Larry otherwise noted, these activities will be Robert deV. Frierson, Nolan White and Virginia Owens White, conducted throughout the United States. Deputy Secretary of the Board. both of Colleyville, Texas; and Patrick Each notice is available for inspection [FR Doc.E8–23519 Filed 10–3–08; 8:45 am] Slade White, Huntsville, Alabama, at the Federal Reserve Bank indicated. BILLING CODE 6210–01–S acting in concert to acquire voting The notice also will be available for shares of Ouachita Bancshares inspection at the offices of the Board of Corporation, and thereby indirectly FEDERAL TRADE COMMISSION acquire voting shares of Ouachita Governors. Interested persons may express their views in writing on the Independent Bank, both of Monroe, Granting of Request for Early question whether the proposal complies Louisiana. Termination of the Waiting Period with the standards of section 4 of the Under the Premerger Notification Board of Governors of the Federal Reserve BHC Act. Additional information on all System, October 1, 2008. Rules bank holding companies may be Robert deV. Frierson, obtained from the National Information Section 7A of the Clayton Act, 15 Deputy Secretary of the Board. Center website at www.ffiec.gov/nic/. U.S.C. 18a, as added by Title II of the [FR Doc. E8–23521 Filed 10–3–08; 8:45 am] Hart-Scott Rodino Antitrust BILLING CODE 6210–01–S Unless otherwise noted, comments regarding the applications must be Improvements Act of 1976, requires received at the Reserve Bank indicated persons contemplating certain mergers or acquisitions to give the Federal Trade FEDERAL RESERVE SYSTEM or the offices of the Board of Governors Commission and the Assistant Attorney not later than October 31, 2008. Notice of Proposals to Engage in General advance notice and to wait A. Federal Reserve Bank of Atlanta Permissible Nonbanking Activities or designated periods before (Steve Foley, Vice President) 1000 to Acquire Companies that are consummation of such plans. Section Engaged in Permissible Nonbanking Peachtree Street, N.E., Atlanta, Georgia 7A(b)(2) of the Act permits the agencies, Activities 30309: in individual cases, to terminate this 1. First Trust Corporation, New waiting period prior to its expiration The companies listed in this notice Orleans, Louisiana, to indirectly acquire and requires that notice of this action be have given notice under section 4 of the 100 percent of the voting shares of published in the Federal Register. Bank Holding Company Act (12 U.S.C. Globe Bancorp, Inc., and thereby The following transactions were 1843) (BHC Act) and Regulation Y (12 indirectly acquire Globe Homestead granted early termination of the waiting CFR Part 225) to engage de novo, or to period provided by law and the Savings Bank, FSA, both of Metairie, acquire or control voting securities or premerger notification rules. The grants Louisiana, and thereby engage in assets of a company, including the were made by the Federal Trade companies listed below, that engages operating a savings association, Commission and the Assistant Attorney either directly or through a subsidiary or pursuant to section 225.28(b)(4)(i) of General for the Antitrust Division of the other company, in a nonbanking activity Regulation Y. Department of Justice. Neither agency that is listed in § 225.28 of Regulation Y intends to take any action with respect (12 CFR 225.28) or that the Board has to these proposed acquisitions during determined by Order to be closely the applicable waiting period.

Trans No. Acquiring Acquired Entities

TRANSACTIONS GRANTED EARLY TERMINATION—09/02/2008

20081619 ...... JANA Offshore Partners, Ltd ...... Convergys Corporation ...... Convergys Corporation. 20081641 ...... GTCR Fund lX/A, L.P ...... TA IX L.P ...... Triumph HealthCare Holdings, Inc. 20081644 ...... Teck Cominco Limited ...... Fording Canadian Coal Trust ...... 1231207 Alberta ULC. 627066 Alberta Ltd. Ardley Coal Limited. Beachpoint Holdings Ltd. Bitmin Resources Inc. Fording Amalco Inc. Fording Coal Limited. 20081647 ...... Tokio Marine Holdings, Inc ...... Philadelphia Consolidated Holding Philadelphia Consolidated Holding Corp. Corp. 20081649 ...... USA Credit Union ...... T & C Federal Credit Union ...... T & C Federal Credit Union. 20081657 ...... Gores Capital Partners, L.P ...... Gores LuxCo I, S.a r.I ...... Gores LuxCo I, S.a r.I. 20081658 ...... CapCom Credit Union...... DFCU Financial Federal Credit DFCU Financial Federal Credit Union. Union. 20081660 ...... Comcast Corporation ...... Pilot Group LP ...... Daily Candy, Inc. 20081661 ...... FMG Acquisition Corp ...... United Insurance Holdings, L.C ...... United Insurance Holdings L.C. 20081670 ...... Deutsche Telekom AG ...... AT&T Inc ...... AT&T Mobility LLC f/k/a. Cingular Wirelesss LLC. AT&T Mobility LLC F/k/a. Dobson Cellular Systems, LLC. T-Mobile USA, Inc.

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Trans No. Acquiring Acquired Entities

TRANSACTIONS GRANTED EARLY TERMINATION—09/04/2008

20081611 ...... ABRY Partners V, L.P ...... Warburg, Pincus Equity Partners, ChartOne, Inc. L.P. 20081662 ...... Bristol-Myers Squibb Company ...... PDL BioPharma, Inc ...... PDL BioPharma, Inc. 20081667 ...... Janus Capital Group, Inc ...... Mac-Per-Wolf Company ...... Perkins, Wolf, McDonnell and Company, LLC. 20081669 ...... Li & Fung Limited ...... Bruce Makowsky and Kathleen Van Van Zeeland, Inc. Zeeland.

TRANSACTIONS GRANTED EARLY TERMINATION—09/05/2008

20081511 ...... ION Geophysical Corporation ...... Donald G. Chamberlain ...... ARAM Systems, Ltd. Canadian Seismic Rentals Inc.

TRANSACTIONS GRANTED EARLY TERMINATION—09/08/2008

20081500 ...... Sisters of Providence—Mother Jo- HOP, Inc ...... HCP, Inc. seph Province. 20081671 ...... AT&T Inc ...... Deutsche Telekom AG ...... AT&T Mobility LLC f/k/a. Cingular Wirelesss LLC. AT&T Mobility LLC F/k/a. Dobson Cellular Systems, LLC. T-Mobile USA, Inc. 20081677 ...... Ameriprise Financial, Inc ...... H&R Block, Inc ...... HRB Financial Corporation. 20081685 ...... Denbury Resources, Inc ...... Wapiti Energy, LLC ...... Wapiti Energy, LLC. Wapiti Gathering, LLC. Wapiti Operating, LLC. 20081686 ...... Voting Trust Relating to Issued Chaparral Energy, Inc ...... Chaparral Energy, Inc. Share Cap. of Magnetar Cap. 20081687 ...... Black Canyon Direct Investment Dr. Richard J. Malouf ...... All Smiles Dental Center, Inc. Fund, L.P. 20081690 ...... Providence Equity Partners VI L.P ... World Triathlon Corporation ...... World Triathlon Corporation. 20081691 ...... Sempra Energy ...... EnergySouth, Inc ...... EnergySouth, Inc. 20081696 ...... Billabong International Limited ...... Robert Kaplan ...... Da Kine Hawaii Corporation. 20081700 ...... Community Health Systems, Inc ...... Empire Health Services ...... Empire Health Services. Inland Empire Hospital Services Association. 20081707 ...... JPMorgan Chase & Co ...... Johnson & Johnson ...... Ethicon, Inc.

TRANSACTIONS GRANTED EARLY TERMINATION—09/09/2008

20081698 ...... Complete Production Services, Inc .. Appalachian Well Services, Inc ...... Appalachian Well Services, Inc. Titan Wireline Services, Inc.

TRANSACTIONS GRANTED EARLY TERMINATION—09/10/2008

20081688 ...... 4 Garages LLC ...... General Electric Company ...... UGP—Tower, LLC. Urban Growth Wabash. Randolph, LLC.

TRANSACTIONS GRANTED EARLY TERMINATION—09/11/2008

20081650 ...... The Goldman Sachs Group, Inc ...... Griffon Corporation ...... Griffon Corporation. 20081654 ...... Lime Rock Partners IV, L.P ...... Industrial Rubber Products, Inc ...... Industrial Rubber Products, Inc.

TRANSACTIONS GRANTED EARLY TERMINATION—09/12/2008

20081632 ...... Humana Inc ...... Covenant Health ...... PHP Companies, Inc. 20081643 ...... Cobham plc ...... Tyco Electronics Ltd ...... AMP Products Pacific Limited. Laser Diode, Inc. M/A–COM Eurotec B.V. M/A–COM, Inc. Tyco Electronics AMP GmbH. Tyco Electronics AMP Korea Limited. Tyco Electronics Corporation India Pvt. Limited. Tyco Electronics France SAS. Tyco Electronics H.K. Limited. Tyco Electronics Ltd. Tyco Electronics Raychem GmbH. Tyco Electronics Raychem SA. Tyco Electronics (Shanghai) Co., Ltd. Tyco Electronics () Co., Ltd. Tyco Electronics Pte Ltd. Tyco Electronics Svenska AB. Tyco Electronics UK Ltd. Tyco Holdings (Bermuda).

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Trans No. Acquiring Acquired Entities

No. 7 Ltd., Branch. 20081682 ...... GeNx36O Capital Partners, L.P ...... GSC Recovery IIA, L.P ...... Precision Partners, Inc. 20081703 ...... AEP Industries Inc ...... Atlantis Plastics, Inc ...... Atlantis Plastic Films, Inc. Linear Films, Inc. 20081711 ...... Ecopetrol S.A ...... Chevron Corporation ...... Union Oil Company of California. 20081718 ...... Fortune Brands, Inc ...... Pernod Ricard SA ...... Cruzan Viril, Ltd. The Absolut Spirits Company, Inc. V&S Vin Spirit AB.

TRANSACTIONS GRANTED EARLY TERMINATION—09/15/2008

20080831 ...... Reed Elsevier PLC ...... ChoicePoint Inc ...... ChoicePoint Inc. 20080832 ...... Reed Elsevier NV ...... ChoicePoint Inc ...... ChoicePoint Inc. 20080987 ...... Fresenius Medical Care AG & Co. Daiichi Sankyo Company, Limited ... Luitpold Pharmaceuticals, Inc. KGaA. 20081648 ...... Kulicke and Sofia Industries ...... Orthodyne Electronics Corporation .. Orthodyne Electronics Corporation. 20081666 ...... JDA Software Group, Inc ...... i2 Technologies, Inc ...... i2 Technologies, Inc.

TRANSACTIONS GRANTED EARLY TERMINATION—09/16/2008

20081683 ...... The Middleby Corporation ...... TurboChef Technologies, Inc ...... TurboChef Technologies, Inc. 20081684 ...... Johnson & Johnson ...... SurgRx, Inc ...... SurgRx, Inc. 20081695 ...... Eli Lilly and Company ...... Monsanto Company ...... Monsanto Company. 20081706 ...... Orkla ASA ...... Benson Holdings, Inc ...... Benson Industries LLC. 20081720 ...... Assurant, Inc ...... General Electric Company ...... General Electric Company. 20081729 ...... Alberto-Culver Company ...... The Procter & Gamble Company ..... Noxell Corporation. 20081735 ...... Arbor Investments II, L.P ...... Bradshaw International, Inc ...... Bradshaw International, Inc. 20081737 ...... J.P. Morgan Chase & Co ...... X-Rite, Incorporated ...... X-Rite, Incorporated. 20081738 ...... The Hanover Insurance Group, Inc .. AIX Holdings, Inc ...... AIX Holdings, Inc. 20081742 ...... Covanta Holding Corporation ...... Ridgewood Electric Power Trust IV .. Indeck Maine Energy, LLC.

TRANSACTIONS GRANTED EARLY TERMINATION—09/18/2008

20081783 ...... Barclays PLC ...... Lehman Brothers Holdings Inc., a LB 745 LLC. debtor-in-possession. Lehman Brothers Inc.

TRANSACTIONS GRANTED EARLY TERMINATION—09/19/2008

20081665 ...... Owens & Minor, Inc ...... Mr. George Burrows ...... The Burrows Company. 20081719 ...... Chesapeake Energy Corporation ..... Cinco County Barnet Shale, LLC ..... DDJET Limited LLP. 20081743 ...... Covanta Holding Corporation ...... Ridgewood Electric Power Trust V .. Indeck Maine Energy, LLC. V20081746 ..... Riverside Capital Appreciation Fund Commercial Markets Holdco, Inc ..... JohnsonDiversey Canada, Inc. V, L.P. JohnsonDiversey, Inc.

FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF HEALTH AND DATES: This notice and the attached Sandra M. Peay, Contact Representative HUMAN SERVICES declaration are effective as of the date of or Renee Hallman, Contact signature of the declaration. Office of the Secretary Representative, Federal Trade FOR FURTHER INFORMATION CONTACT: Commission, Premerger Notification RADM W.C. Vanderwagen, Assistant Office, Bureau of Competition, Room H– Declaration Under the Public Readiness and Emergency Secretary for Preparedness and 303, Washington, DC 20580, (202) 326– Response, Office of the Secretary, Preparedness Act 3100. Department of Health and Human By direction of the Commission. October 1, 2008. Services, 200 Independence Avenue, Donald S. Clark, SW., Washington, DC 20201, Telephone AGENCY: Office of the Secretary (OS), (202) 205–2882 (this is not a toll-free Secretary. Department of Health and Human number). [FR Doc. E8–23330 Filed 10–3–08; 8:45 am] Services (HHS). BILLING CODE 6750–01–M HHS Secretary’s Declaration for ACTION: Notice. Utilization of Public Readiness and Emergency Preparedness Act for SUMMARY: Declaration pursuant to Anthrax Countermeasures section 319F–3 of the Public Health Service Act (42 U.S.C. 247d–6d) to Whereas significant changes in the provide targeted liability protections for nature, regularity and degree of threats anthrax countermeasures based on a to health posed by the use of infectious credible risk that the threat of exposure agents as weapons of biological warfare to Bacillus anthracis and the resulting have generated increased concern for the safety of the general American disease constitutes a public health population particularly following the emergency. deliberate exposure of citizens in the

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United States to Bacillus anthracis (B. considered the desirability of dispense the Covered Countermeasure anthracis) spores in 2001 that encouraging the design, development, following a declaration of an emergency, demonstrated the ease of dissemination, clinical testing or investigation, as defined in section IX below. In infectivity, and mortality; manufacturing, labeling, distribution, accordance with section 319F–3(b)(2)(E) Whereas the Secretary of Homeland formulation, packaging, marketing, of the Act, for governmental program Security has determined that B. promotion, sale, purchase, donation, planners, the immunity specified in anthracis and multi-drug-resistant B. dispensing, prescribing, administration, section 319F–3(a) of the Act shall be in anthracis present a material threat licensing, and use of such effect to extent they obtain Covered against the United States population, countermeasures with respect to the Countermeasures through voluntary sufficient to affect national security; category of disease and population means of distribution, such as (1) Whereas there are covered described in sections II and IV below, Donation; (2) commercial sale; (3) countermeasures to treat, identify, or and have found it desirable to encourage deployment of Covered prevent adverse health consequences or such activities for the covered Countermeasures from Federal death from exposure to B. anthracis; countermeasures; and stockpiles; or (4) deployment of Whereas such countermeasures, Whereas, to encourage the design, donated, purchased, or otherwise including vaccines, antimicrobials/ development, clinical testing or voluntarily obtained Covered antibiotics, and antitoxins for pre- investigation, manufacturing and Countermeasures from State, local, or exposure and post-exposure prevention product formulation, labeling, private stockpiles. For all other covered and treatment, diagnostics to identify distribution, packaging, marketing, persons, including other program such exposure, and additional promotion, sale, purchase, donation, planners, the immunity specified in countermeasures for treatment of dispensing, prescribing, administration, section 319F–3(a) of the Act shall, in adverse events arising from use of these licensing, and use of medical accordance with section 319F–3(b)(2)(E) countermeasures exist or may be the countermeasures with respect to the of the Act, be in effect pursuant to any subject of research and/or development; category of disease and population means of distribution. Whereas such countermeasures may described in sections II and IV below, it This declaration shall subsequently be used and administered in accordance is advisable, in accordance with section with Federal contracts, cooperative refer to the countermeasures identified 319F–3(a) and (b) of the Act, to provide above as ‘‘Covered Countermeasures.’’ agreements, grants, interagency immunity from liability for covered This declaration shall apply to all agreements, and memoranda of persons, as that term is defined at Covered Countermeasures administered understanding, and may also be used section 319F–3(i)(2) of the Act, and to or used during the effective time period and administered at the Regional, State, include as such covered persons such of the declaration. This declaration also and local level in accordance with the other qualified persons as I have shall apply to all Covered public health and medical response of identified in section VI of this the Authority Having Jurisdiction; declaration; Countermeasures (see Appendix I) Whereas, the possibility of Therefore, pursuant to section 319F– administered or used by or on behalf of governmental program planners 3(b) of the Act, I have determined there the Department of Defense. obtaining stockpiles from private sector is a credible risk that the threat of II. Category of Disease (As Required by entities except through voluntary means exposure of B. anthracis and the Section 319F–3(b)(2)(A) of the Act) such as commercial sale, donation, or resulting disease constitutes a public deployment would undermine national health emergency. The category of disease, health preparedness efforts and should be condition, or threat to health for which I. Covered Countermeasures (As discouraged as provided for in section I am recommending the administration Required by Section 319F–3(b)(1) of the 319F–3(b)(2)(E) of the Public Health or use of the Covered Countermeasures Act) Service Act (42 U.S.C. 247d–6d(b)) (‘‘the is anthrax, which may result from Act’’); Covered Countermeasures are defined exposure to B. anthracis. Whereas, immunity under section at section 319F–3(i) of the Act. At this III. Effective Time Period (As Required 319F–3(a) of the Act should be available time, and in accordance with the by Section 319F–3(b)(2)(B) of the Act) to governmental program planners for provisions contained herein, I am distributions of Covered recommending the manufacture, testing, With respect to Covered Countermeasures obtained voluntarily, development, distribution, dispensing; Countermeasures administered and such as by (1) Donation; (2) commercial and, with respect to the category of used in accordance with present or sale; (3) deployment of Covered disease and population described in future Federal contracts, cooperative Countermeasures from Federal sections II and IV below, the agreements, grants, interagency stockpiles; or (4) deployment of administration and usage of anthrax agreements, or memoranda of donated, purchased, or otherwise countermeasures as defined in section understanding, the effective period of voluntarily obtained Covered IX below. The immunity specified in time of this Declaration commences on Countermeasures from State, local, or section 319F–3(a) of the Act shall only signature of the declaration and extends private stockpiles; be in effect with respect to: (1) Present through December 31, 2015. Whereas, the extent of immunity (see Appendix I) or future Federal With respect to Covered under section 319F–3(a) of the Act contracts, cooperative agreements, Countermeasures administered and afforded to a governmental program grants, interagency agreements, or used in accordance with the public planner that obtains covered memoranda of understanding involving health and medical response of the countermeasures except through countermeasures that are used and Authority Having Jurisdiction, the voluntary means is not intended to administered in accordance with this effective period of time of this affect the extent of immunity afforded declaration, and (2) activities authorized Declaration commences on the date of a other covered persons with respect to in accordance with the public health declaration of an emergency and lasts such covered countermeasures. and medical response of the Authority through and includes the final day that Whereas, in accordance with section Having Jurisdiction to prescribe, the emergency declaration is in effect 319F–3(b)(6) of the Act, I have administer, deliver, distribute or including any extensions thereof.

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IV. Population (As Required by Section VI. Qualified Persons (As Required by VIII. Amendments 319F–3(b)(2)(C) of the Act) Section 319F–3(i)(8)(B) of the Act) This declaration has not previously Section 319F–3(a)(4)(A) of the Act With regard to the administration or been amended. Any future amendment confers immunity to manufacturers and use of a Covered Countermeasure, to this declaration will be published in distributors of the Covered Section 319F–3(i)(8)(A) of the Act the Federal Register, pursuant to section 319F–3(b)(4) of the Act. Countermeasure, regardless of the defines the term ‘‘qualified person’’ as a defined population. licensed individual who is authorized to IX. Definitions Section 319F–3(a)(3)(C)(i) of the Act prescribe, administer, or dispense the For the purpose of this declaration, confers immunity to covered persons Covered Countermeasure under the law including any claim for loss brought in who may be a program planner or of the State in which such Covered accordance with section 319F–3 of the qualified persons with respect to the Countermeasure was prescribed, PHS Act against any covered persons Covered Countermeasure only if a administered or dispensed. Additional defined in the Act or this declaration, member of the population specified in persons who are qualified persons the following definitions will be used: the declaration as persons who use the pursuant to section 319F–3(i)(8)(B) are Administration of a Covered Covered Countermeasure or to whom the following: (1) Any person who is Countermeasure: As used in Section such a Covered Countermeasure is authorized to prescribe, administer, 319F–3(a)(2)(B) of the Act includes, but administered, is in or connected to the deliver, distribute or dispense Covered is not limited to, public and private Countermeasures to Department of geographic location specified in this delivery, distribution, and dispensing Defense military personnel and declaration, or the program planner or activities relating to physical supporting civilian-employee and qualified person reasonably could have administration of the Covered contractor personnel, (2) Any person believed that these conditions are met. Countermeasures to patients/recipients, authorized in accordance with the management and operation of delivery The populations specified in this public health and medical emergency systems, and management and operation declaration are all persons who use a response of the Authority Having of distribution and dispensing locations. Covered Countermeasure or to whom a Jurisdiction to prescribe, administer, Anthrax Countermeasure: Any Covered Countermeasure is deliver, distribute or dispense Covered vaccine; antimicrobial/antibiotic, other administered in accordance with this Countermeasures, and their officials, drug or antitoxin; or diagnostic or declaration, including, but not limited agents, employees, contractors and device to identify, prevent or treat to: Department of Defense military volunteers, following a declaration of an anthrax or adverse events from such personnel and supporting civilian- emergency, and (3) Any person countermeasures (1) Licensed under employee and contractor personnel; any authorized to prescribe, administer, or section 351 of the Public Health Service person conducting research and dispense Covered Countermeasures or Act; (2) approved under section 505 or development of Covered who is otherwise authorized under an section 515 of the Federal Food, Drug, Countermeasures directly by the Federal Emergency Use Authorization, and Cosmetic Act (FDCA); (3) cleared government or pursuant to a contract, including, but not limited to under section 510(k) of the FDCA; (4) grant, or cooperative agreement with the Department of Defense military authorized for emergency use under Federal government; any person who personnel and supporting civilian section 564 of the FDCA ; (5) used under receives a Covered Countermeasure employee and contractor personnel. section 505(i) of the FDCA or section from persons authorized in accordance 351(a)(3) of the PHS Act, and 21 CFR with the public health and medical VII. Additional Time Periods of Part 312; or (6) used under section emergency response of the Authority Coverage After Expiration of 520(g) of the FDCA and 21 CFR part Having Jurisdiction to prescribe, Declaration (As Required by Section 812. administer, deliver, distribute, or 319F–3(b)(3)(B) of the Act) Authority Having Jurisdiction: The public agency or its delegate that has dispense the Covered Countermeasure, I have determined that, upon and their officials, agents, employees, legal responsibility and authority for expiration of the time period specified responding to an incident, based on contractors, and volunteers following a in Section III above, an additional declaration of an emergency; any person political or geographical (e.g., city, twelve (12) months is a reasonable county, tribal, State, or Federal who receives a Covered Countermeasure period to allow for manufacturers and from a person authorized to prescribe, boundary lines) or functional (e.g., law other covered persons to take such other enforcement, public health) range or administer or dispense the actions as are appropriate to limit the countermeasure or who is otherwise sphere of authority. administration or use of the Covered Covered persons: As defined at authorized under an Emergency Use Countermeasure, and the liability section 319F–3(i)(2) of the Act include Authorization; any person who receives protection of section 319F–3(a) of the the United States, manufacturers, a Covered Countermeasure as an Act shall extend for that period. Further, distributors, program planners, and investigational new drug in human as to doses shipped by the CDC to the qualified persons. The terms clinical trials being conducted directly DoD pursuant to the DoD/CDC ‘‘manufacturer,’’ ‘‘distributor,’’ by the Federal government or pursuant Interagency Agreement (IAA) dated ‘‘program planner,’’ and ‘‘qualified to a contract, grant, or cooperative March 10, 2008, an additional period of person’’ are further defined at sections agreement with the Federal government. time of liability protection shall extend 319F–3(i)(3), (4), (6), and (8) of the Act. V. Geographic Area (As Required by for as long as the SNS or its successor Declaration of an emergency: A Section 319F–3(b)(2)(D) of the Act) exists and the IAA remains in effect, declaration by any authorized local, plus, if the additional twelve (12) regional, State, or federal official of an Section 319F–3(a) of the Act applies months following the time period in emergency specific to events that to the administration and use of a Section III above has expired, an indicate an immediate need to Covered Countermeasure without additional twelve (12) months upon administer and use anthrax geographic limitation. expiration of the IAA. countermeasures, with the exception of

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a federal declaration in support of an section 564 of the FDCA unless such This first day of October, 2008. emergency use authorization under declaration specifies otherwise. Michael O. Leavitt, Secretary of Health and Human Services.

APPENDIX I—LIST OF U.S. GOVERNMENT CONTRACTS

PL 85–804 Contract Manufacturer Covered countermeasure coverage*

HHSO100200500007C ...... Cangene ...... Anthrax immune globulin—AIG ...... No. HHSO100200500006C ...... HGS ...... Anthrax monoclonal antibody-ABThrax ...... No. HHSO100200600019C ...... Emergent Biodefense Operations ...... BioThrax (Anthrax Vaccine Adsorbed, AVA) ...... Yes. HHSO100200700037C ...... Emergent Biodefense Operations ...... BioThrax (Anthrax Vaccine Adsorbed, AVA) ...... No. W9113M–04–D–0002 ...... BioPort (Emergent Biosolutions) ...... BioThrax (Anthrax Vaccine Adsorbed, AVA) ...... Yes. DAMD 17–97–D–00003 ...... BioPort (Emergent Biosolutions) ...... BioThrax (Anthrax Vaccine Adsorbed, AVA) Ship- Yes. ping. HHSN 272200700035C ...... Elusys ...... Anthrax monoclonal antibody—ETI–204 ...... No. HHSN 272200700033C ...... Pharmathene ...... Anthrax monoclonal antibody—Valortim ...... No. HHSN 272200700034C ...... Emergent BioSolutions ...... Anthrax immune globulin—AIG ...... No. NO1–A1–30052 ...... Avecia (Pharmathene)...... Recombinant protective antigen (rPA) anthrax No. vaccine. V797P–5777x ...... Shering Corp...... Cipro 250mg/5ml; 100ml suspension ...... No. V797P–5977x ...... Cobalt Pharmaceuticals ...... Cipro 500mg tablets ...... No. V797P–5941x ...... Blu Pharmaceuticals ...... Doxycycline 100mg tablets ...... No. V797P–5883x ...... Pfizer, Inc ...... Doxycycline 25mg/5ml suspension 60ml ...... No. V797P–5669x ...... Abraxis Bioscience, Inc ...... Doxycycline 100mg vial IV ...... No. V797–DSNS–8002 ...... Sandoz, Inc ...... Amoxicillin 500mg capsules ...... No. V797–DSNS–8002 ...... Sandoz, Inc ...... Amoxicillin 400mg/5ml; 100ml suspension ...... No. V797BPA0015 ...... Bedford Labs ...... Rifampin 600mg vial IV ...... No. V797P–5396x ...... Hospira ...... Clindamycin 150mg/ml 6ml vial IV ...... No. V797P–5669x ...... Abraxis Bioscience, Inc ...... Vancomycin 1 g vial IV ...... No. V797P–1020x ...... McKesson ...... Penicillin GK 20 million unit vial IV ...... No. V797P–5387x ...... Johnson and Johnson Healthcare ..... Levofloxacin 5mg/ml 150ml bag IV ...... No. * Status of indemnification coverage under P.L. 85–804 (An Act to authorize the making, amendment and modification of contracts to facilitate the national defense.)

[FR Doc. E8–23547 Filed 10–1–08; 4:15 pm] biological agent known to cause Services, 200 Independence Avenue, BILLING CODE 4150–37–P anthrax. The Secretary, HHS, provides SW., Washington, DC 20201, Telephone notice of the determination of the (202) 205–2882 (this is not a toll free Secretary of Homeland Security on number). DEPARTMENT OF HEALTH AND September 23, 2008 that there is a SUPPLEMENTARY INFORMATION: HUMAN SERVICES significant potential for a domestic emergency involving a heightened risk I. Background Office of the Secretary of attack with a specified biological, The CRI, begun in 2004, is a federally chemical, radiological, or nuclear agent Determination and Declaration supported effort to prepare 72 major or agents—in this case, Bacillus U.S. metropolitan areas to effectively Regarding Emergency Use of anthracis, although there is no current Doxycycline Hyclate Tablets respond to a large-scale bioterrorist domestic emergency involving anthrax, event by dispensing antibiotics to their Accompanied by Emergency Use no current heightened risk of an anthrax Information entire identified population within 48 attack, and no credible information hours of the decision to do so. Over the AGENCY: Office of the Secretary (OS), indicating an imminent threat of an past several years, HHS and the USPS HHS. attack involving Bacillus anthracis. The have developed and tested in three U.S. Secretary also provides notice that, on ACTION: Notice. cities—Seattle, Philadelphia and the basis of such determination, he has Boston—the ability of letter carriers to SUMMARY: The Secretary of the declared an emergency justifying the quickly deliver door-to-door a few days’ Department of Health and Human authorization of emergency use of worth of antibiotics to residential Services (HHS) is issuing this notice doxycycline hyclate tablets addresses. This quick-strike capability is pursuant to section 564(b)(4) of the accompanied by emergency use intended to buy time for State and local Federal Food, Drug, and Cosmetic Act information subject to the terms of any public health authorities to set up (FFDCA), 21 U.S.C. 360bbb–3(b)(4), to authorization issued by the Food and points of dispensing for further justify the emergency use of Drug Commissioner under 21 U.S.C. provision of antibiotics across the doxycycline hyclate tablets 360bbb–3(a). community, as needed. accompanied by emergency use DATES: This Notice and referenced HHS Under Section 564 of the FFDCA, the information, contained in emergency declaration are effective as of October 1, Secretary of Homeland Security may kits for eligible United States Postal 2008. determine that there is a domestic Service (USPS) Cities Readiness FOR FURTHER INFORMATION CONTACT: emergency, or a significant potential for Initiative (CRI) participants and their RADM W.C. Vanderwagen, M.D., a domestic emergency, involving a household members in advance of a Assistant Secretary for Preparedness heightened risk of attack with a potential attack involving Bacillus and Response, Office of the Secretary, specified biological chemical, anthracis. Bacillus anthracis is a Department of Health and Human radiological or nuclear agent or agents.

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Based on such a determination, the been exposed to Bacillus anthracis. In information about an imminent threat of Secretary of Health and Human Services an anthrax attack, time is of the essence such an attack—that would almost may declare an emergency that justifies in preventing illness and death by certainly result in a domestic the authorization of a product that is not getting antibiotics to people who may emergency. That is so, among other otherwise approved, licensed or cleared have been exposed. By providing important reasons, because those for commercial use (‘‘unapproved advance protection to letter carriers who exposed to Bacillus anthracis need to product’’) or is not approved, licensed, willingly put themselves at risk by take appropriate antimicrobials rapidly or cleared for a particular use delivering antibiotics in an affected after exposure to avoid contracting (‘‘unapproved use of an approved community, the unique capabilities of anthrax and because of the significant product.’’). Following that declaration, the USPS may be used to get antibiotics challenges to rapidly delivering such the Commissioner of the Food and Drug to those who need them quickly. antimicrobials to those at risk in an Administration (FDA) may issue an The USPS initiative and EUA are one anthrax emergency. part of the Federal Government’s Emergency Use Authorization (EUA). Given his determination that there is The Biomedical Advanced Research strategy to encourage preparedness at all a significant potential for a domestic and Development Authority (BARDA) of levels of government to enable the emergency, the Secretary of Homeland the HHS Office of the Assistant nation to respond effectively in the Security also urged the Secretary of Secretary for Preparedness and event of an anthrax emergency. Response (ASPR) has requested that Health and Human Services to employ II. Determination of the Secretary of FDA issue an EUA for doxycycline all relevant emergency powers under Homeland Security hyclate tablets accompanied by section 564 of the FFDCA to ensure emergency use information for use by On September 23, 2008, pursuant to distribution of pre-need eligible USPS participants in the CRI section 564(b)(1)(A) of the FFDCA, 21 countermeasures that may be effective and their household members. U.S.C. 360bbb–3(b)(1)(A), the Secretary in preventing the contracting of anthrax Doxycyline hyclate tablets are approved of Homeland Security determined that by people in the delivery chain, such as by the FDA for the post-exposure there is a significant potential for a USPS workers; first responders, prophylaxis of anthrax. However, the domestic emergency, involving a including law enforcement; to essential doxycycline hyclate tablets for which heightened risk of attack with a government and non-government BARDA seeks an EUA would be specified biological, chemical, workers; and to the general public. accompanied by emergency use radiological, or nuclear agent or III. Declaration of the Secretary of information that is not included in any agents—in this case, Bacillus anthracis. Health and Human Services of the approved applications for The Secretary of Homeland Security doxyclycline hyclate tablets. For this made this determination in a September On September 23, 2008, the Secretary reason, an EUA is necessary. The 23, 2008 memorandum addressed to the of the Department of Homeland Security September 23, 2008 determination by Secretary of Health and Human determined that there is a significant the Secretary of Homeland Security that Services. In that memorandum, the potential for a domestic emergency, there is a significant potential for a Secretary of Homeland Security stated involving a heightened risk of attack domestic emergency, involving a that there is not currently a domestic with a specified biological, chemical, heightened risk of attack with a emergency involving anthrax, there is radiological, or nuclear agent or specified biological, chemical, not currently a heightened risk of an agents—in this case, Bacillus anthracis. radiological, or nuclear agent or anthrax attack, and his Department has Pursuant to section 564(b) of the Federal agents—in this case, Bacillus anthracis, no credible information indicating an Food, Drug and Cosmetic Act, 21 U.S.C. and the October 1, 2008 declaration by imminent threat of an attack involving 360bbb–3(b), and on the basis of such the Secretary of Health and Human Bacillus anthracis. determination, on October 1, 2008, I Services based on that determination The Secretary of Homeland Security declared an emergency justifying the that there is an emergency justifying the determined that there is a significant authorization of the emergency use of authorization of emergency use of potential for a domestic emergency, doxycycline hyclate tablets doxycycline hyclate tablets involving a heightened risk of attack accompanied by emergency use accompanied by emergency use with Bacillus anthracis, on two bases: information subject to the terms of any information, enables the FDA (1) The Department of Homeland authorization issued under 21 U.S.C. Commissioner to issue an EUA for Security has already found that an 360bbb–3(a). doxycyline hyclate tablet emergency anthrax attack poses a material threat to kits under section 564(a) of the FFDCA, the United States population sufficient Dated: October 1, 2008. 21 U.S.C. 360bbb–3(a). to affect national security, which allows Michael O. Leavitt, With issuance of the EUA, eligible the Secretary to conclude that there is Secretary. letter carriers participating in the CRI a non-negligible possibility that a [FR Doc. E8–23544 Filed 10–1–08; 4:15 pm] may receive the doxycycline hyclate heightened risk of attack will arise. The BILLING CODE 4150–37–P tablet emergency kits, if not medically finding that an anthrax attack poses a contraindicated, for future use by them material threat to the United States and other members of their households population sufficient to affect national DEPARTMENT OF HEALTH AND during an anthrax emergency, subject to security was made on January 20, 2004 HUMAN SERVICES the terms of the authorization. The regarding anthrax, and on September 22, antibiotics and accompanying 2006 regarding multi-drug resistant National Committee on Vital and Health information may help protect these Bacillus anthracis, pursuant to section Statistics: Meeting letter carriers and household members 319F–2(c)(2) of the Public Health against contracting anthrax if, following Service (PHS) Act, 42 U.S.C. 247d– Pursuant to the Federal Advisory an outdoor anthrax attack, the USPS is 6b(c)(2). (2) Were the government to Committee Act, the Department of called upon to deliver the same or determine in the future that there is a Health and Human Services (HHS) similar antibiotics to homes across their heightened risk of an anthrax attack—if, announces the following advisory community where people may have for example, there were credible committee meeting.

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Name: National Committee on Vital and Status: Open. SUPPLEMENTARY INFORMATION: The Health Statistics (NCVHS) Executive Purpose: The NCVHS Standards Improving Head Start for School Subcommittee. Subcommittee will hold a half day meeting Readiness Act of 2007 (Pub. L. 110–134, Time and Date: to plan and discuss upcoming topics for Section 641(c)(2) [42 U.S.C. 9836]) October 14, 2008, 1 p.m.–5 p.m. hearings and recommendations. requires the Secretary to develop a October 15, 2008, 8:30 a.m.–4:30 p.m. Contact Person for More Information: Substantive program information as well as system for designation renewal to Place: Radisson Hotel Reagan National determine if Head Start agencies are Airport, 2020 Jefferson Davis Hwy, Arlington, summaries of meetings and a roster of VA 22202. committee members may be obtained from delivering high-quality and Status: Open. Denise Buenning, lead staff for Standards comprehensive Head Start programs Purpose: The NCVHS Executive Subcommittee, NCVHS, Centers for Medicare that meet the educational, health, Subcommittee will hold a day and a half and Medicaid Services, Office of E-Health nutritional, and social needs of the meeting to review the past year’s Standards and Services, 7500 Security children and families they serve, and accomplishments and conduct strategic Boulevard, Room S2–26–17, Baltimore, meet program and financial planning for the coming year. On the Maryland 21244, telephone (410) 786–6711; management requirements and the afternoon of the first day, the Executive or Marjorie S. Greenberg, Executive program performance standards. The Subcommittee will review their 2008 Secretary, NCVHS, National Center for activities, update operational work plans, Health Statistics, Centers for Disease Control Advisory Committee on Re-Designation and review Committee objectives and and Prevention, 3311 Toledo Road, Room of Head Start Grantees will provide strategic plan for future NCVHS directions. 2402, Hyattsville, Maryland 20782, telephone advice and recommendations on the On the second day the Subcommittee will (301) 458–4245. Further information also is development of a transparent, reliable continue strategic planning for future NCVHS available on the NCVHS home page: http:// and valid system for designation directions, discuss collaborative activities www.ncvhs.hhs.gov/, where an agenda will renewal as required under the statute. with the Board of Scientific Counselors at the be posted when available. The third meeting of the Advisory National Center for Health Statistics, the Should you require reasonable Committee will be held on October 21– plans for updating the 21st Century Health accommodation, please contact the CDC 22, 2008, at the Hotel Palomar Statistics, and the upcoming NCVHS 60th Office of Equal Employment Opportunity on Arlington, which is located at 1121 anniversary. (301) 458–4EEO (4336) as soon as possible. Contact Person for More Information: North 19th Street, in Arlington, Substantive program information as well as Dated: September 30, 2008. Virginia, one block from the Rosslyn summaries of meetings and a roster of James Scanlon, Metro station. The Advisory Committee committee members may be obtained from Deputy Assistant Secretary for Science and will review the results of the data Marjorie S. Greenberg, Executive Secretary, Data Policy, Office of the Assistant Secretary analyses it requested from the Office of NCVHS, National Center for Health Statistics, for Planning and Evaluation. Head Start at its June meeting, discuss Centers for Disease Control and Prevention, [FR Doc. E8–23532 Filed 10–3–08; 8:45 am] recommendations, and review a draft 3311 Toledo Road, Room 2402, Hyattsville, BILLING CODE 4151–05–P report. The meeting will be open to the Maryland 20782, telephone (301) 458–4245. Information also is available on the NCVHS public; however, seating is limited and home page of the HHS Web site: http:// preregistration is encouraged. To pre- www.ncvhs.hhs.gov/, where further DEPARTMENT OF HEALTH AND register, please e-mail information including an agenda will be HUMAN SERVICES [email protected] with posted when available. ‘‘Meeting Registration’’ in the subject Should you require reasonable Secretary’s Advisory Committee on line, or call Tara Nordlander at 703– accommodation, please contact the CDC Re-Designation of Head Start Grantees 243–0495 by 5 p.m. EST, October 17, Office of Equal Employment Opportunity on 2008. Registration must include your (301) 458–4EEO (4336) as soon as possible. AGENCY: U.S. Department of Health and Human Services. name, affiliation, phone number, and Dated: September 29, 2008. days attending. If you require a sign ACTION: James Scanlon, Notice; Federal Advisory language interpreter or other special Committee Act Meetings Deputy Assistant Secretary for Science and assistance, please call Tara Nordlander Data Policy, Office of the Assistant Secretary Announcement. at 703–243–0495 as soon as possible for Planning and Evaluation. SUMMARY: Pursuant to Public Law 92– and no later than October 10, 2008. [FR Doc. E8–23438 Filed 10–3–08; 8:45 am] 463, the Federal Advisory Committee Written comments may be submitted BILLING CODE 4151–05–P Act, as amended (5 U.S.C. Appendix 2), electronically to notice is hereby given of the third [email protected] with meeting of the Secretary’s Advisory ‘‘Public Comment’’ in the subject line. DEPARTMENT OF HEALTH AND HHS recommends that you include your Committee on Re-designation of Head HUMAN SERVICES name, mailing address, and an e-mail Start Grantees, Department of Health address or other contact information in and Human Services (HHS). The National Committee on Vital and Health the body of your comment. This ensures meeting will be held on Tuesday, Statistics: Meeting that you can be identified as the October 21, 2008, from 9 a.m. to 5:30 submitter of the comment, and it allows Pursuant to the Federal Advisory p.m., and on Wednesday, October 22, HHS to contact you if further Committee Act, the Department of 2008, from 9 a.m. to 1 p.m. at the Hotel information on the substance of the Health and Human Services (HHS) Palomar Arlington, 1121 North 19th comment is needed or if your comment announces the following advisory Street, in Arlington, Virginia. The committee meeting. cannot be read because of technical meeting will be open to the public; difficulties. HHS’s policy is that HHS Name: National Committee on Vital and however, seating is limited and will not edit your comment, and any Health Statistics (NCVHS) Standards preregistration is encouraged (see identifying or contact information Subcommittee. below). Time and Date: October 14, 2008 provided in the body of a comment will 8:30 a.m.–12 p.m. FOR FURTHER INFORMATION CONTACT: be included as part of the comment Place: Radisson Hotel Reagan National Colleen Rathgeb, Office of Head Start, e- placed in the official public record. If Airport, 2020 Jefferson Davis Hwy., mail [email protected] or HHS cannot read your comment because Arlington, VA 22202. (202) 205–7378. of technical difficulties and cannot

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contact you for clarification, HHS may Dated: September 26, 2008. information collection. The purpose of not be able to consider your comment. Daniel Schneider, this collection is to obtain data upon Written comments to be available at the Acting Assistant Secretary, Administration which to base the computation for meeting will be accepted up to October for Children and Families. measuring State performance in meeting 15, 2008. [FR Doc. E8–23483 Filed 10–3–08; 8:45 am] the legislative goals of TANF as Documents pertaining to Committee BILLING CODE 4184–01–P specified in section 403(a)(4) of the deliberations will be available upon Social Security Act and 45 CFR part written request after the meeting. 270. Requests should be sent to DEPARTMENT OF HEALTH AND Specifically, the Department of Health [email protected] with HUMAN SERVICES and Human Services (HHS) will use the ‘‘Materials Request’’ in the subject line Administration for Children and data to award the portion of the bonus and should include your name, mailing Families that rewards States for their success in address, and an e-mail address or other contact information. moving TANF recipients from welfare to Proposed Information Collection work. States will not be required to Because of the Advisory Committee’s Activity; Comment Request submit this information unless they full agenda and the timeframe in which elect to compete on a work measure for to cover the agenda topics, there will be Proposed Projects no opportunity for oral presentations the TANF High Performance Bonus Title: State High Performance Bonus awards. from the public at this meeting. The System (HPBS) Transmission File public will be able to submit comments Layouts for HPBS Work Measures. Respondents: Respondents may to [email protected] OMB No.: 0970–0230. include any of the 50 States, the District both before and after the meeting; these Description: This is a proposed of Columbia, , Puerto Rico, and will be included in the public record. reinstatement of a previously approved the Virgin Islands. ANNUAL BURDEN ESTIMATES

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

State High Performance Bonus System (HPBS) Transmission File Layouts for HPBS Work Measures ...... 54 2 16 1,728

Estimated Total Annual Burden information to be collected; and (d) of-Origin Report) is designed to satisfy Hours: 1,728. ways to minimize the burden of the the statutory requirements of the In compliance with the requirements collection of information on Immigration and Nationality Act. of Section 506(c)(2)(A) of the Paperwork respondents, including through the use Section 412(a)(3) of the Act requires the Reduction Act of 1995, the of automated collection techniques or Office of Refugee Resettlement to Administration for Children and other forms of information technology. compile and maintain data on the Families is soliciting public comment Consideration will be given to secondary migration of refugees within on the specific aspects of the comments and suggestions submitted the United States after arrival. In order information collection described above. within 60 days of this publication. to meet this legislative requirement, Copies of the proposed collection of Dated: September 30, 2008. ORR requires each State to submit an information can be obtained and Robert Sargis, comments may be forwarded by writing annual count of the number of refugees to the Administration for Children and Reports Clearance Officer. who were initially resettled in another Families, Office of Administration, [FR Doc. E8–23404 Filed 10–3–08; 8:45 am] State. The State does this by counting Office of Information Services, 370 BILLING CODE 4184–01–P the number of refugees with social L’Enfant Promenade, SW., Washington, security numbers indicating residence DC 20447, Attn: ACF Reports Clearance in another State at the time of arrival in Officer. E-mail address: DEPARTMENT OF HEALTH AND the United States. (The first three digits [email protected]. All requests HUMAN SERVICES of the social security number indicate should be identified by the title of the Administration for Children and the State of residence of the applicant.) information collection. Families Data submitted by the States are The Department specifically requests compiled and analyzed by the ORR comments on: (a) Whether the proposed Proposed Information Collection statistician, who then prepares a collection of information is necessary Activity; Comment Request summary report, which is included in for the proper performance of the ORRs Annual Report to Congress. The Proposed Projects functions of the agency, including primary use of the data is to quantify whether the information shall have Title: Refugee State-of-Origin Report and analyze the refugee secondary practical utility; (b) the accuracy of the (Form ORR–11). services formula allocation. agency’s estimate of the burden of the OMB No.: 0970–0043. proposed collection of information; (c) Description: The information Respondents: State, local and tribal the quality, utility, and clarity of the collection of the ORR–11 (Refugee State- government.

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ANNUAL BURDEN ESTIMATES

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

ORR–11 State-of-Origin Report ...... 50 1 4.33 216.65

Estimated Total Annual Burden CFDA #: 93.592. Legislative Authority: Social Security Hours: 216.65. Legislative Authority: Family Violence Act, Section 439, as amended by the In compliance with the requirements Prevention and Services Act (42 U.S.C. Child and Family Services Improvement of Section 506(c)(2)(A) of the Paperwork 10401 et seq.) Act of 2006 (Pub. L. 109–288). Reduction Act of 1995, the Amount of Award: $145,000. Amount of Award: $85,000. Administration for Children and Project Period: September 30, 2008– Project Period: September 30, 2008– Families is soliciting public comment September 29, 2009. September 29, 2009. on the specific aspects of the SUMMARY: The Administration on SUMMARY: information collection described above. This notice announces that Children, Youth and Families (ACYF), Copies of the proposed collection of the Administration on Children, Youth Family and Youth Services Bureau information can be obtained and and Families, Family and Youth (FYSB), herein announces the awarding comments may be forwarded by writing Services Bureau (FYSB), will award a of a Mentoring Children of Prisoners to the Administration for Children and program expansion supplement award (MCP) replacement grant to Mother Families, Office of Administration, to the Family Violence Prevention Fund Seton House, Inc., in Virginia Beach, Office of Information Services, 370 (FVPF) in , CA to continue VA. A prior grantee recently L’Enfant Promenade, SW., Washington, the provision of technical support relinquished their MCP grant. With the DC 20447, Attn: ACF Reports Clearance through the Family Violence Prevention funds provided, Mother Seton House, Officer. E-mail address: and Services (FVPSA) Discretionary Inc., will continue the provision of [email protected]. All requests Grant Program. FVPF is a leading mentoring services for children of should be identified by the title of the provider of training and technical incarcerated parents in Hampton Roads, information collection. assistance for service providers who VA. The Department specifically requests seek to improve collaboration between FOR FURTHER INFORMATION CONTACT: comments on: (a) Whether the proposed domestic violence and child welfare Curtis O. Porter, Acting Associate collection of information is necessary programs. The supplemental award will Commissioner, Family and Youth for the proper performance of the enable FVPF to plan and implement Services Bureau, 1250 Maryland functions of the agency, including State-level strategies to educate policy Avenue, SW., Washington, DC 20024, whether the information shall have makers and to ensure that State Phone: 202–205–8102. practical utility; (b) the accuracy of the Domestic Violence Coalitions are key agency’s estimate of the burden of the stakeholders in the Child and Family Dated: September 29, 2008. proposed collection of information; (c) Service Review process. Joan E. Ohl, the quality, utility, and clarity of the FOR FURTHER INFORMATION CONTACT: Commissioner, Administration on Children, information to be collected; and (d) Marylouise Kelley, Director, Family Youth and Families. ways to minimize the burden of the Violence Prevention and Services [FR Doc. E8–23481 Filed 10–3–08; 8:45 am] collection of information on Program, 1250 Maryland Avenue, SW., BILLING CODE 4184–01–P respondents, including through the use Washington, DC 20024. Telephone: of automated collection techniques or 202–401–5756. E-mail: other forms of information technology. [email protected]. DEPARTMENT OF HEALTH AND Consideration will be given to HUMAN SERVICES comments and suggestions submitted Dated: September 29, 2008. within 60 days of this publication. Joan E. Ohl, Administration for Children and Commissioner, Administration on Children, Families Dated: October 1, 2008. Youth and Families. Janean Chambers, [FR Doc. E8–23478 Filed 10–3–08; 8:45 am] Administration on Children, Youth and Reports Clearance Officer. BILLING CODE 4184–01–P Families [FR Doc. E8–23499 Filed 10–3–08; 8:45 am] AGENCY BILLING CODE 4184–01–P : Family and Youth Services Bureau, ACYF, ACF, DHHS. DEPARTMENT OF HEALTH AND HUMAN SERVICES ACTION: Notice to award 27 expansion DEPARTMENT OF HEALTH AND supplements. HUMAN SERVICES Administration for Children and Families CFDA #: 93.616. Administration for Children and Legislative Authority: Social Security Families Administration on Children, Youth and Act, Section 439, as amended by the Families Child and Family Services Improvement Administration on Children, Youth and Act of 2006 (Pub. L. 109–288). Families; Supplemental Grant Awards AGENCY: Family and Youth Services Project Period: September 30, 2008– Bureau, ACYF, ACF, DHHS. AGENCY: Family and Youth Services September 29, 2009. Bureau, ACYF, ACF, DHHS. ACTION: Notice to award a replacement Amount of Award: $2,462,128. SUMMARY: The Administration on ACTION: Notice to award supplemental grant. Children, Youth and Families, Family grants. CFDA#: 93.616. and Youth Services Bureau (FYSB),

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herein announces the awarding of 27 awards to grantees that have reach more children of incarcerated program expansion supplemental demonstrated the capacity to make parents who are in need of mentoring. awards in the amount of $2,462,128 in quality matches and currently are The following grantees are receiving Fiscal Year (FY) 2008 funds to grantees making significant process in reaching program expansion supplemental funds under the Mentoring of Children of their match goal. The 27 supplemental for a 12-month project period of Prisoners (MCP) program. The awards will enable MCP grantees to September 30, 2008–September 29, additional funding will supplement 2009:

Grantee organization City, state Amount

Big Brothers Big Sisters of Colorado (Pike’s Peak) ...... Denver, CO ...... $10,000 Big Brothers Big Sisters of Northeastern Arizona ...... Show Low, AZ ...... 105,930 Travis High School Educational Foundation ...... Austin, TX ...... 60,000 Big Brothers Big Sisters of the Heart of Georgia ...... Macon, GA ...... 34,650 Big Brothers Big Sisters of San Diego County, Inc ...... San Diego, CA ...... 66,330 Big Brothers Big Sisters of Ventura County, Inc ...... Ventura, CA ...... 48,216 Clemson University ...... Clemson, GA ...... 56,473 Big Brothers Big Sisters of Eastern Missouri ...... St. Louis, MO ...... 198,000 Mother Seton House, Inc ...... Virginia Beach, VA ...... 27,128 City of Longview ...... Longview, TX ...... 42,575 Break the Barriers ...... Fresno, CA ...... 190,000 Big Brothers Big Sisters of Utah ...... Salt Lake City, UT ...... 99,000 Big Brothers Big Sisters of Massachusetts ...... Atlanta, GA ...... 63,831 Big Brothers Big Sisters of the Capital Region, Inc ...... Albany, NY ...... 76,598 Be-A-Friend Program, Inc., Big Brothers Big Sisters of Erie County ...... Buffalo, NY ...... 198,000 Children’s Home Society ...... Charleston, WV ...... 72,971 United Communities of Southeast Philadelphia ...... Philadelphia, PA ...... 59,400 America on Track ...... Santa Ana, CA ...... 86,879 Big Brothers Big Sisters of Central California ...... Fresno, CA ...... 55,239 Big Brothers Big Sisters of Central Ohio ...... Columbus, OH ...... 150,000 Community Solutions of El Paso, Inc ...... El Paso, TX ...... 99,000 Families Under Urban and Social Attack ...... , TX ...... 74,250 Deep East TX Council of Governments ...... Jasper, TX ...... 53,815 Big Brothers Big Sisters of Southeast Louisiana ...... New Orleans, LA ...... 170,000 Volunteers of America of Greater New Orleans ...... New Orleans, LA ...... 236,093 Serving Children and Adolescents in Need ...... Laredo, TX ...... 53,500 Hour Children, Inc ...... Long Island City, NY ...... 74,250

FOR FURTHER INFORMATION CONTACT: Project Period: September 30, 2008– Violence Prevention and Services Curtis O. Porter, Acting Associate March 31, 2009. Program, 1250 Maryland Avenue, SW., Commissioner, Family and Youth SUMMARY: This notice announces that Washington, DC 20024. Telephone: Services Bureau, 1250 Maryland the Administration on Children, Youth 202–401–5756. E-mail: Avenue, SW., Washington, DC 20024, and Families, Family and Youth [email protected]. Phone: 202–205–8102. Services Bureau (FYSB), will award a Dated: September 29, 2008. Dated: September 29, 2008. program expansion supplement to the Joan E. Ohl, Joan E. Ohl, National Latino Alliance for the Commissioner, Administration on Children, Commissioner, Administration on Children, Elimination of Domestic Violence Youth and Families. Youth and Families. (NLAEDV), in New York, NY. The [FR Doc. E8–23480 Filed 10–3–08; 8:45 am] [FR Doc. E8–23482 Filed 10–3–08; 8:45 am] additional funds will enable the grantee BILLING CODE 4184–01–P BILLING CODE 4184–01–P to continue the provision of technical support through the Family Violence Prevention and Services Discretionary DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND Grant Program. The NLAEDV has HUMAN SERVICES HUMAN SERVICES provided national-level training and has developed guidelines and training tools Administration for Children and Administration for Children and that are culturally proficient for services Families Families to Latino victims and survivors of domestic violence and their families. Office of Refugee Resettlement Administration on Children, Youth and The supplemental award will support Families AGENCY: Office of Refugee Resettlement, the dissemination of products and ACF, DHHS. AGENCY: Family and Youth Services curriculum developed by NLAEDV Bureau, ACYF, ACF, DHHS. through training for State Domestic ACTION: Notice of a Noncompetitive Successor Award to California ACTION: Notice to award supplemental Violence Coalitions and their member grants. programs, presentations at national Department of Public Health. conferences, targeted education and CFDA#: 93.592. outreach efforts, and technical CFDA #: 93.576 Legislative Authority: Family Violence assistance. Legislative Authority: This Program is Prevention and Services Act (42 U.S.C. authorized by section 412(b)(5) of the 10401 et seq.) FOR FURTHER INFORMATION CONTACT: Immigration and Nationality Act (INA), Amount of Award: $145,000. Marylouise Kelley, Director, Family as amended (8 U.S.C. 1522(b)(5)), which

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authorizes the Director to provide for 26132), the agency announced that the Name of Committee: Center for Scientific medical screening and initial medical proposed information collection had Review Special Emphasis Panel; Oral Biology treatment. been submitted to OMB for review and and Physiology. Amount of Award: There are three clearance under 44 U.S.C. 3507. An Date: October 23, 2008. years remaining in the project The Time: 2 p.m. to 4:30 p.m. agency may not conduct or sponsor, and Agenda: To review and evaluate grant remaining funds to be awarded is a person is not required to respond to, applications. $1,425,000. a collection of information unless it Place: National Institutes of Health, 6701 Project Period: July 1, 2006 through displays a currently valid OMB control Rockledge Drive, Bethesda, MD 20892 June 30, 2010. number. OMB has now approved the (Telephone Conference Call). SUMMARY: The purpose of the ORR information collection and has assigned Contact Person: Priscilla B. Chen, PhD, award is to assist California in providing OMB control number 0910–0628. The Scientific Review Officer, Center for medical screenings in accordance with approval expires on August 31, 2011. A Scientific Review, National Institutes of ORR guidance in State Letter 95–37, Health, 6701 Rockledge Drive, Room 4104, copy of the supporting statement for this MSC 7814, Bethesda, MD 20892, (301) 435– 11/21/95, and follow-up activities to information collection is available on newly arriving refugees for conditions of 1787, [email protected]. the Internet at http://www.reginfo.gov/ This notice is being published less than 15 public health concern. California Senate public/do/PRAMain. Bill 162 established a new California days prior to the meeting due to the timing Dated: September 29, 2008. limitations imposed by the review and Department of Public Health to take the funding cycle. place of the California Department of Jeffrey Shuren, Name of Committee: Center for Scientific Associate Commissioner for Policy and Health Services which ceased to exist. Review Special Emphasis Panel Member Planning. California requests that the funds be Conflicts: Animal Models of Memory, awarded to the new California [FR Doc. E8–23606 Filed 10–3–08; 8:45 am] Learning and Impulsivity. Department of Public Health to carry out BILLING CODE 4160–01–S Date: October 24, 2008. the remaining years of the project. Time: 1 p.m. to 3 p.m. FOR FURTHER INFORMATION CONTACT: Agenda: To review and evaluate grant Further information regarding the DEPARTMENT OF HEALTH AND applications. request may be directed to Pam Green- HUMAN SERVICES Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 Smith at 202–401–4531, National Institutes of Health (Telephone Conference Call). [email protected]. Contact Person: Weijia Ni, PhD, Scientific Date: September 30, 2008. Center for Scientific Review; Notice of Review Officer, Center for Scientific Review, David H. Siegel, Closed Meetings National Institutes of Health, 6701 Rockledge Drive, Room 3190, MSC 7848, (for overnight Acting Director, Office of Refugee Pursuant to section 10(d) of the mail use room # and 20817 zip), Bethesda, Resettlement. MD 20892, (301) 435–1507, [email protected]. [FR Doc. E8–23479 Filed 10–3–08; 8:45 am] Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice This notice is being published less than 15 BILLING CODE 4184–01–P is hereby given of the following days prior to the meeting due to the timing limitations imposed by the review and meetings. funding cycle. DEPARTMENT OF HEALTH AND The meetings will be closed to the Name of Committee: Center for Scientific HUMAN SERVICES public in accordance with the Review Special Emphasis Panel; Drug provisions set forth in sections Discovery and Development. Food and Drug Administration 552b(cX4) and 552b(c)(6), Title 5 U.S.C., Date: November 3–4, 2008. [Docket No. FDA–2005–N–0098] (formerly as amended. The grant applications and Time: 8:30 a.m. to 5 p.m. Docket No. 2005N–0349) the discussions could disclose Agenda: To review and evaluate grant confidential trade secrets or commercial applications. Agency Information Collection property such as patentable material, Place: Washington Plaza Hotel, 10 Thomas Circle, NW., Washington, DC 20005. Activities; Announcement of Office of and personal information concerning Contact Person: Kathryn M. Koeller, PhD, Management and Budget Approval; individuals associated with the grant Scientific Review Officer, Center for Survey of Current Manufacturing applications, the disclosure of which Scientific Review, National Institutes of Practices in the Food Industry would constitute a clearly unwarranted Health, 6701 Rockledge Drive, Room 4166, invasion of personal privacy. MSC 7806, Bethesda, MD 20892, 301–435– AGENCY: Food and Drug Administration, 2681, [email protected]. HHS. Name of Committee: Center for Scientific Review Special Emphasis Panel; Molecular Name of Committee: Center for Scientific ACTION: Notice. Neurogenetics SEP. Review Special Emphasis Panel; Small Date: October 23, 2008. Business: Psychopathology and Adult SUMMARY: The Food and Drug Time: 10 a.m. to 11:30 a.m. Disorders. Administration (FDA) is announcing Agenda: To review and evaluate grant Date: November 3, 2008. that a collection of information entitled applications. Time: 11 a.m. to 4 p.m. ‘‘Survey of Current Manufacturing Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant Practices in the Food Industry’’ has been Rockledge Drive, Bethesda, MD 20892 applications. approved by the Office of Management (Telephone Conference Call). Place: National Institutes of Health, 6701 and Budget (OMB) under the Paperwork Contact Person: Paek-Gyu Lee, PhD, Rockledge Drive, Bethesda, MD 20892 Reduction Act of 1995. Scientific Review Officer, Center for (Virtual Meeting). FOR FURTHER INFORMATION CONTACT: Scientific Review, National Institutes of Contact Person: Estina E. Thompson, MPH, Health, 6701 Rockledge Drive, Room 4201, PhD, Scientific Review Officer, Center for Jonna Capezzuto, Office of Information MSC 7812, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of Management (HFA–710), Food and Drug 1277, [email protected]. Health, 6701 Rockledge Drive, Room 3178, Administration, 5600 Fishers Lane, This notice is being published less than 15 MSC 7848, Bethesda, MD 20892, 301–496– Rockville, MD 20857, 301–796–3794. days prior to the meeting due to the timing 5749, [email protected]. SUPPLEMENTARY INFORMATION: In the limitations imposed by the review and Name of Committee: Center for Scientific Federal Register of May 8, 2007 (72 FR funding cycle. Review Special Emphasis Panel; Member

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Conflict: Cardiovascular Epidemiology and Scientific Review, National Institutes of Place: Brookshire Suites, 120 E. Lombard Genetics. Health, 6701 Rockledge Drive, Room 5120, Street, Baltimore, MD 21202. Date: November 3, 2008. MSC 7854, Bethesda, MD 20892, (301) 435– Contact Person: Michael A. Marino, PhD, Time: 11 a.m. to 1:30 p.m. 2392, [email protected]. Scientific Review Officer, Center for Agenda: To review and evaluate grant Name of Committee: Center for Scientific Scientific Review, National Institutes of applications. Review Special Emphasis Panel; Biophysics Health, 6701 Rockledge Drive, Room 2216, Place: National Institutes of Health, 6701 of RNA-Protein Interactions. MSC 7890, Bethesda, MD 20892, (301) 435– Rockledge Drive, Bethesda, MD 20892 Date: November 5–6, 2008. 0601, [email protected]. (Virtual Meeting). Time: 8 a.m. to 8 p.m. Name of Committee: Center for Scientific Contact Person: Fungai F. Chanetsa, PhD, Agenda: To review and evaluate grant Review Special Emphasis Panel; Genetics of Scientific Review Officer, Center for applications. Longevity. Scientific Review, National Institutes of Place: National Institutes of Health, 6701 Date: November 6–7, 2008. Health, 6701 Rockledge Drive, Room 3135, Rockledge Drive, Bethesda, MD 20892 Time: 8 a.m. to 5 p.m. MSC 7770, Bethesda, MD 20892, 301–435– (Virtual Meeting). Agenda: To review and evaluate grant 1262, [email protected]. Contact Person: Arnold Revzin, PhD, applications. Name of Committee: Center for Scientific Scientific Review Officer, Center for Place: National Institutes of Health, 6701 Review Special Emphasis Panel; Topics in Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892 Oncology. Health, 6701 Rockledge Drive, Room 4146, (Virtual Meeting). Date: November 3, 2008. MSC 7806, Bethesda, MD 20892, (301) 435– Contact Person: Michael K. Schmidt, PhD., Time: 3 p.m. to 5:30 p.m. 1153, [email protected]. Scientific Review Officer, Center for Agenda: To review and evaluate grant Name of Committee: Center for Scientific Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 2214, applications. Review Special Emphasis Panel; Neuronal MSC 7890, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, 6701 GPCR and Drug Discovery. 1147, [email protected]. Rockledge Drive, Bethesda, MD 20892 Date: November 5–6, 2008. (Telephone Conference Call). Time: 8 a.m. to 5 p.m. Name of Committee: Center for Scientific Contact Person: Angela Y. Ng, PhD, Agenda: To review and evaluate grant Review Special Emphasis Panel; Chemistry Scientific Review Officer, Center for applications. and Biophysics SBIR/STTR Panel. Scientific Review, National Institutes of Place: National Institutes of Health, 6701 Date: November 6, 2008. Health, 6701 Rockledge Drive, Room 6200, Rockledge Drive, Bethesda, MD 20892 Time: 8:30 a.m. to 6:30 p.m. MSC 7804, (For courier delivery, use MD (Virtual Meeting). Agenda: To review and evaluate grant 20817), Bethesda, MD 20892, 301–435–1715, Contact Person: Carol Hamelink, PhD, applications. [email protected]. Scientific Review Officer, Center for Place: Carlyle Suites Hotel, 1731 New Hampshire Avenue, NW., Washington, DC Name of Committee: Center for Scientific Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5040H, 20009. Review Special Emphasis Panel; Biochemical Contact Person: Vonda K. Smith, PhD., and Biophysical Sciences Fellowship. MSC 7850, Bethesda, MD 20892, (301) 451– 1328, [email protected]. Scientific Review Officer, Center for Date: November 4–5, 2008. Scientific Review, National Institutes of Time: 8 a.m. to 5 p.m. Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 4148, Agenda: To review and evaluate grant Review Special Emphasis Panel; Protein MSC 7806, Bethesda, MD 20892, 301–435– applications. Dynamics in Enzyme Catalysis. 1789, [email protected]. Place: Doubletree Hotel, 8120 Wisconsin Date: November 5–7, 2008. Name of Committee: Center for Scientific Avenue, Bethesda, MD 20814. Time: 10 a.m. to 12:01 p.m. Review Special Emphasis Panel; Small Contact Person: Sergei Ruvinov, PhD, Agenda: To review and evaluate grant Business: Non-HIV Anti-Infective Scientific Review Officer, Center for applications. Therapeutics. Scientific Review, National Institutes of Place: National Institutes of Health, 6701 Date: November 7, 2008. Health, 6701 Rockledge Drive, Room 4158, Rockledge Drive, Bethesda, MD 20892 Time: 8 a.m. to 7 p.m. MSC 7806, Bethesda, MD 20892, 301–435– (Virtual Meeting). Agenda: To review and evaluate grant 1180, [email protected]. Contact Person: James W. Mack, PhD, applications. Name of Committee: Center for Scientific Scientific Review Officer, Center for Place: The Bahia Resort Hotel, 998 W. Review Special Emphasis Panel; Member Scientific Review, National Institutes of Mission Bay Drive, San Diego, CA 92109. Conflict: Sensory II. Health, 6701 Rockledge Drive, Room 4154, Contact Person: Rossana Berti, PhD., Date: November 4–5, 2008. MSC 7806, Bethesda, MD 20892, (301) 435– Scientific Review Officer, Center for Time: 8 a.m. to 5 p.m. 2037, [email protected]. Scientific Review, National Institutes of Agenda: To review and evaluate grant Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 3191, applications. Review Special Emphasis Panel; Small MSC 7846, Bethesda, MD 20892, 301–402– Place: National Institutes of Health, 6701 Business: Respiratory Sciences. 6411, [email protected]. Rockledge Drive, Bethesda, MD 20892 Date: November 5, 2008. Name of Committee: Center for Scientific (Virtual Meeting). Time: 11 a.m. to 3 p.m. Review Special Emphasis Panel; Contact Person: Bernard F. Driscoll, PhD, Agenda: To review and evaluate grant Psychopathology, Developmental Scientific Review Officer, Center for applications. Disabilities, Stress and Aging. Scientific Review, National Institutes of Place: National Institutes of Health, 6701 Date: November 7, 2008. Health, 6701 Rockledge Drive, Room 5184, Rockledge Drive, Bethesda, MD 20892 Time: 8 a.m. to 6 p.m. MSC 7844, Bethesda, MD 20892, (301) 435– (Virtual Meeting). Agenda: To review and evaluate grant 1242, [email protected]. Contact Person: Bonnie L. Burgess-Beusse, applications. Name of Committee: Center for Scientific PhD, Scientific Review Officer, Center for Place: Hotel Palomar, 2121 P Street, NW., Review Special Emphasis Panel; Scientific Review, National Institutes of Washington, DC 20037. Fellowships: Bioengineering and Imaging. Health, 6701 Rockledge Drive, Room 2191C, Contact Person: Estina E. Thompson, PhD., Date: November 5–6, 2008. MSC 7818, Bethesda, MD 20892, (301) 435– Scientific Review Officer, Center for Time: 7 a.m. to 4 p.m. 1783, [email protected]. Scientific Review, National Institutes of Agenda: To review and evaluate grant Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 3178, applications. Review Special Emphasis Panel; Genes, MSC 7848, Bethesda, MD 20892, 301–496– Place: National Institutes of Health, 6701 Genomes, and Genetics Specials. 5749, [email protected]. Rockledge Drive, Bethesda, MD 20892 Date: November 5–6, 2008. Name of Committee: Center for Scientific (Virtual Meeting). Time: 7 p.m. to 5 p.m. Review Special Emphasis Panel; Diabetes, Contact Person: Khalid Masood, PhD, Agenda: To review and evaluate grant Obesity, Nutrition and Reproduction Scientific Review Officer, Center for applications. Sciences.

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Date: November 7, 2008. The meeting will be closed to the The meeting will be closed to the Time: 8 a.m. to 5 p.m. public in accordance with the public in accordance with the Agenda: To review and evaluate grant provisions set forth in sections provisions set forth in section applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(9)(B), Title 5 U.S.C., as Place: Marriott Conference Centers, 5701 Marinelli Road, Bethesda, MD 20852. as amended. The grant applications and amended, because the premature Contact Person: Krish Krishnan, PhD., the discussions could disclose disclosure of these discussions would Scientific Review Officer, Center for confidential trade secrets or commercial be likely to significantly frustrate Scientific Review, National Institutes of property such as patentable material, implementation of recommendations. Health, 6701 Rockledge Drive, Room 6164, and personal information concerning Name of Committee: President’s Cancer MSC 7892, Bethesda, MD 20892, (301) 435– individuals associated with the grant Panel. 1041, [email protected]. applications, the disclosure of which Date: October 21, 2008. (Catalogue of Federal Domestic Assistance would constitute a clearly unwarranted Open: October 21, 2008, 8 a.m.–3:15 p.m. Program Nos. 93.306, Comparative Medicine; invasion of personal privacy. Agenda: Environmental Factors in Cancer. 93.333, Clinical Research, 93.306, 93.333, Place: Omni Severin Hotel, 40 West 93.337, 93.393–93.396, 93.837–93.844, Name of Committee: National Institute of Jackson Place, Indianapolis, IN 46204. 93.846–93.878, 93.892, 93.893, National Child Health and Human Development Closed: October 21, 2008, 4 p.m.–7 p.m. Institutes of Health, HHS) Special Emphasis Panel ‘‘Joint Program’’ Agenda: Discussion of testimony given in Date: October 15, 2008 Dated: September 26, 2008. open session on Environmental Factors in Time: 10 a.m. to 11:30 a.m. Cancer; consideration of thematic concepts Jennifer Spaeth, Agenda: To review and evaluate grant for the 2009/2010 series. Director, Office of Federal Advisory applications. Place: Omni Severin Hotel, 40 West Committee Policy. Place: National Institutes of Health, 6100 Jackson Place, Indianapolis, IN 46204. [FR Doc. E8–23447 Filed 10–3–08; 8:45 am] Executive Boulevard, Room 5B01, Rockville, Contact Person: Abby Sandler, PhD, MD 20852. (Telephone Conference Call) BILLING CODE 4140–01–M Executive Secretary, National Cancer Contact Person: Norman Chang, Ph.D., Institute, National Institutes of Health, Scientific Review Administrator, Division of Building 6116, Room 220, MSC 8349, 6116 Scientific Review, National Institute of Child DEPARTMENT OF HEALTH AND Executive Boulevard, Bethesda, MD 20892, Health and Human Development, NIH, 6100 301/451–9399. HUMAN SERVICES Executive Blvd., Room 5B01, Bethesda, MD 20892, (301) 496–1485, Any interested person may file written National Institutes of Health [email protected]. comments with the committee by forwarding the comments to the Contact Person listed on This notice is being published less than 15 Center for Scientific Review; Amended this notice. The comments should include days prior to the meeting due to the timing the name, address, telephone number and, Notice of Meeting limitations imposed by the review and when applicable, the business or professional funding cycle. Notice is hereby given of a change in affiliation of the interested person. the meeting of the Center for Scientific (Catalogue of Federal Domestic Assistance Information is also available on the Review Special emphasis Panel, October Program Nos. 93.864, Population Research; Institute’s/Center’s home page: 93.865, Research for Mothers and Children; deainfo.nci.nih.gov/advisory/pcp/pcp.htm, 27, 2008, 8 a.m. to October 28, 2008, 5 93.929, Center for Medical Rehabilitation p.m., National Institutes of Health, 6701 where an agenda and any additional Research; 93.209, Contraception and information for the meeting will be posted Rockledge Drive, Bethesda, MD 20892 Infertility Loan Repayment Program, National when available. which was published in the Federal Institutes of Health, HHS) (Catalogue of Federal Domestic Assistance Register on September 25, 2008, 73 FR Dated: September 30, 2008. Program Nos. 93.392, Cancer Construction; 55517–55519. Jennifer Spaeth, 93.393, Cancer Cause and Prevention The meeting will be held November Research; 93.394, Cancer Detection and 12, 2008, 4 p.m. to November 14, 2008, Director, Office of Federal Advisory Committee Policy. Diagnosis Research; 93.395, Cancer 8 p.m. The meeting location remains the Treatment Research; 93.396, Cancer Biology same. The meeting is closed to the [FR Doc. E8–23585 Filed 10–3–08; 8:45 am] Research; 93.397, Cancer Centers Support; public. BILLING CODE 4140–01–P 93.398, Cancer Research Manpower; 93.399, Cancer Control, National Institutes of Health, Dated: September 26, 2008. HHS) Jennifer Spaeth, DEPARTMENT OF HEALTH AND Dated: September 10, 2008. Director, Office of Federal Advisory— HUMAN SERVICES Committee Policy. Jennifer Spaeth, [FR Doc. E8–23449 Filed 10–3–08; 8:45 am] National Institutes of Health Director, Office of Federal Advisory Committee Policy. BILLING CODE 4140–01–M National Cancer Institute; Notice of [FR Doc. E8–23591 Filed 10–3–08; 8:45 am] Meeting BILLING CODE 4140–01–P DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the HUMAN SERVICES Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES National Institutes of Health is hereby given of the meeting of the Eunice Kennedy Shriver National President’s Cancer Panel. National Institutes of Health Institute of Child Health & Human The meeting will be open to the Development; Notice of Closed public as indicated below, with National Cancer Institute; Notice of Meeting attendance limited to space available. Closed Meetings Individuals who plan to attend and Pursuant to section 10(d) of the need special assistance, such as sign Pursuant to section 10(d) of the Federal Advisory Committee Act, as language interpretation or other Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice reasonable accommodations, should amended (5 U.S.C. Appendix 2), notice is hereby given of the following notify the Contact Person listed below is hereby given of the following meeting. in advance of the meeting. meetings.

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The meetings will be closed to the Cancer Control, National Institutes of Health, DEPARTMENT OF HEALTH AND public in accordance with the HHS) HUMAN SERVICES provisions set forth in sections Dated: September 30, 2008. National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Jennifer Spaeth, as amended. The grant applications and the discussions could disclose Director, Office of Federal Advisory National Institute of Environmental Committee Policy. confidential trade secrets or commercial Health Sciences; Notice of Closed property such as patentable material, [FR Doc. E8–23590 Filed 10–3–08; 8:45 am] Meetings BILLING CODE 4140–01–P and personal information concerning Pursuant to section 10(d) of the individuals associated with the grant Federal Advisory Committee Act, as applications, the disclosure of which amended (5 U.S.C. Appendix 2), notice would constitute a clearly unwarranted DEPARTMENT OF HEALTH AND HUMAN SERVICES is hereby given of the following invasion of personal privacy. meetings. Name of Committee: National Cancer National Institutes of Health The meetings will be closed to the Institute Special Emphasis Panel; Multi- public in accordance with the Center Clinical Trials in Gliomas. National Institute on Drug Abuse; provisions set forth in sections Date: November 6, 2008. Notice of Closed Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 12:30 p.m. to 3:30 p.m. as amended. The grant applications and Agenda: To review and evaluate grant applications. Pursuant to section 10(d) of the the discussions could disclose Place: National Institutes of Health, 6116 Federal Advisory Committee Act, as confidential trade secrets or commercial Executive Boulevard, Rockville, MD 20852 amended (5 U.S.C. Appendix 2), notice property such as patentable material, (Telephone Conference Call). is hereby given of the following and personal information concerning Contact Person: Timothy C. Meeker, MD, meeting. individuals associated with the grant PhD, Scientific Review Officer, Resources applications, the disclosure of which and Training Review Branch, Division of The meeting will be closed to the public in accordance with the would constitute a clearly unwarranted Extramural Activities, National Cancer invasion of personal privacy. Institute, 6116 Executive Boulevard, Room provisions set forth in sections 8103, BETHESDA, MD 20892, (301) 594– 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National 1279, [email protected]. as amended. The grant applications and Institute of Environmental Health Name of Committee: National Cancer the discussions could disclose Sciences Special Emphasis Panel; Institute Special Emphasis Panel; SBIR Phase confidential trade secrets or commercial Superfund Basic Research and Training II Bridge Awards to Accelerate the property such as patentable material, Program. Development of New Cancer Therapies and and personal information concerning Date: November 5–7, 2008. Cancer Imaging Technologies toward individuals associated with the grant Time: 8:30 a.m. to 6 p.m. Commercialization (SBIR [R44]). Agenda: To review and evaluate grant Date: November 12–13, 2008. applications, the disclosure of which would constitute a clearly unwarranted applications. Time: 10 a.m. to 4 p.m. Place: Durham Marriott Convention Agenda: To review and evaluate grant invasion of personal privacy. applications. Center, 201 Foster Street, Durham, NC Name of Committee: National Institute on Place: Gaithersburg Hilton, 620 Perry 27701. Parkway, Gaithersburg, MD 20877. Drug Abuse Special Emphasis Panel; Contact Person: Linda K Bass, PHD, Contact Person: Lalita D. Palekar, PhD, MIDARP. Scientific Review Officer, Scientific Scientific Review Officer, Special Review Date: October 10, 2008. Review Branch, Division of Extramural and Logistics Branch, Division of Extramural Time: 11:30 a.m. to 12:30 p.m. Research and Training, Nat’l Institute Activities, National Cancer Institute, 6116 Agenda: To review and evaluate grant Environmental Health Sciences, P.0. Executive Boulevard, Room 7141, Bethesda, applications. Box 12233, MD EC–30, Research MD 20892–7405, 301–496–7575, Place: National Institutes of Health, 6101 Triangle Park, NC 27709, (919) 541– [email protected]. Executive Boulevard, Rockville, MD 20852 1307. Name of Committee: National Cancer (Telephone Conference Call). Name of Committee: National Institute Special Emphasis Panel; Pediatric Contact Person: Nadine Rogers, PhD, Brain Tumor Consortium. Scientific Review Administrator, Office of Institute of Environmental Health Date: November 19, 2008. Extramural Affairs, National Institute on Sciences Special Emphasis Panel; The Time: 8 a.m. to 5 p.m. Drug Abuse, NIH, DHHS, Room 220, MSC NIP Technical Reports Preparation Agenda: To review and evaluate grant 8401, 6101 Executive Boulevard, Bethesda, Support Services. applications. MD 20892–8401, 301–402–2105, Date: November 6, 2008. Place: Marriott Bethesda North Hotel & Time: 8:30 a.m. to 5 p.m. Conference Center, 5701 Marinelli Road, [email protected]. This notice is being published less than 15 Agenda: To review and evaluate Bethesda, MD 20852. contract proposals. Contact Person: C. Michael Kerwin, PhD, days prior to the meeting due to the timing MPH, Scientific Review Officer, Special limitations imposed by the review and Place: Hilton Garden Inn Durham Review and Logistics Branch, Division of funding cycle. Southpoint, 7007 Fayetteville Road, Durham, NC 27713. Extramural Activities, National Cancer (Catalogue of Federal Domestic Assistance Contact Person: RoseAnne M McGee, Institute, NIH, 6116 Executive Boulevard, Program Nos. 93.279, Drug Abuse and Room 8057, Bethesda, MD 20892–8329, 301– Addiction Research Programs, National Associate Scientific Review Officer, 496–7421, [email protected]. Institutes of Health, HHS) Scientific Review Branch, Division of (Catalogue of Federal Domestic Assistance Extramural Research and Training, Nat. Program Nos. 93.392, Cancer Construction; Dated: September 26, 2008. Institute of Environmental Health 93.393, Cancer Cause and Prevention Jennifer Spaeth, Sciences, P.O. Box 12233, MD EC–30, Research; 93.394, Cancer Detection and Director, Office of Federal Advisory Research Triangle Park, NC 27709, (919) Diagnosis Research; 93.395, Cancer Committee Policy. Treatment Research; 93.396, Cancer Biology 541–0752, [email protected]. Research; 93.397, Cancer Centers Support; [FR Doc. E8–23446 Filed 10–3–08; 8:45 am] (Catalogue of Federal Domestic Assistance 93.398, Cancer Research Manpower; 93.399, BILLING CODE 4140–01–M Program Nos. 93.115, Biometry and Risk

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Estimation—Health Risks from Dated: September 26, 2008. (Catalogue of Federal Domestic Assistance Environmental Exposures; 93.142, NIEHS Jennifer Spaeth, Program Nos. 93.242, Mental Health Research Hazardous Waste Worker Health and Safety Director, Office of Federal Advisory Grants; 93.281, Scientist Development Training; 93.143, NIEHS Superfund Committee Policy. Award, Scientist Development Award for Hazardous Substances—Basic Research and Clinicians, and Research Scientist Award; Education; 93.894, Resources and Manpower [FR Doc. E8–23451 Filed 10–3–08; 8:45 am] 93.282, Mental Health National Research Development in the Environmental Health BILLING CODE 4140–01–M Service Awards for Research Training, Sciences; 93.113, Biological Response to National Institutes of Health, HHS) Environmental Health Hazards; 93.114, Dated: September 30, 2008. Applied Toxicological Research and Testing, DEPARTMENT OF HEALTH AND National Institutes of Health, HHS) HUMAN SERVICES Jennifer Spaeth, Director, Office of Federal Advisory Dated: September 26, 2008. National Institutes of Health Committee Policy. Jennifer Spaeth, [FR Doc. E8–23580 Filed 10–3–08; 8:45 am] Director, Office of Federal Advisory National Institute of Mental Health; BILLING CODE 4140–01–P Committee Policy. Notice of Closed Meeting [FR Doc. E8–23450 Filed 10–3–08; 8:45 am] Pursuant to section 10(d) of the BILLING CODE 4140–01–M Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES DEPARTMENT OF HEALTH AND is hereby given of a meeting of the National Institutes of Health HUMAN SERVICES Board of Scientific Counselors, National Institute of Mental Health. National Institute of Mental Health; National Institutes of Health The meeting will be closed to the Amended Notice of Meeting public as indicated below in accordance National Institute of Allergy and with the provisions set forth in section Notice is hereby given of a change in Infectious Diseases; Notice of Closed 552b(c)(6), Title 5 U.S.C., as amended the meeting of the National Institute of Meeting for the review, discussion, and Mental Health Special Emphasis Panel, evaluation of individual intramural October 15, 2008, 10 a.m. to October 15, Pursuant to section 10(d) of the programs and projects conducted by the 2008, 12 p.m., National Institutes of Federal Advisory Committee Act, as National Institute of Mental Health, Health, Neuroscience Center, 6001 amended (5 U.S.C. Appendix 2), notice including consideration of personnel Executive Boulevard, Rockville, MD, is hereby given of the following qualifications and performance, and the 20852 which was published in the meeting. competence of individual investigators, Federal Register on September 26, 2008, The meeting will be closed to the the disclosure of which would 73FR55859. public in accordance with the constitute a clearly unwarranted The meeting date has been changed to provisions set forth in sections invasion of personal privacy. November 4, 2008 and the time has been 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., changed to start at 3 p.m. and end at 5 as amended. The grant applications and Name of Committee: Board of Scientific Counselors, National Institute of Mental p.m. The meeting location remains the the discussions could disclose Health. same. The meeting is closed to the confidential trade secrets or commercial Date: October 27–28, 2008. public. property such as patentable material, Time: October 27, 2008, 7 p.m. to 10 p.m. Dated: September 30, 2008. Agenda: To review and evaluate personal and personal information concerning Jennifer Spaeth, individuals associated with the grant qualifications and performance, and competence of individual investigators. Director, Office of Federal Advisory applications, the disclosure of which Committee Policy. would constitute a clearly unwarranted Place: Hilton Washington/Rockville, 1750 Rockville Pike, Rockville, MD 20852. [FR Doc. E8–23587 Filed 10–3–08; 8:45 am] invasion of personal privacy. Time: October 28, 2008, 8:30 am to 1 p.m. BILLING CODE 4140–01–P Name of Committee: National Agenda: To review and evaluate the Institute of Allergy and Infectious Intramural Laboratories with site visits of the Diseases Special Emphasis Panel; T Cell Unit on Neuroplasticity, the Child Psychiatry DEPARTMENT OF HEALTH AND Co-Stimulation Pathways-PO1. Branch, the Section on Childhood HUMAN SERVICES Neuropsychiatric Disorders, and the Unit on Date: October 29, 2008. Brain Imaging; to evaluate Principal Time: 11 a.m. to 2 p.m. Investigators, Training Fellows and Staff National Institutes of Health Agenda: To review and evaluate grant Scientists and Clinicians. National Institute of Mental Health; applications. Place: National Institutes of Health, Amended Notice of Meeting Place: National Institutes of Health, Neuroscience Center, 6001 Executive 6700B Rockledge Drive, Bethesda, MD Boulevard, Conference Room C, Rockville, Notice is hereby given of a change in MD 20852. 20817 (Telephone Conference Call). Time: October 28, 2008, 1:30 p.m. to 4 p.m. the meeting of the National Institute of Contact Person: Rebecca L. Jorgenson, Agenda: To review and evaluate personal Mental Health Special Emphasis Panel, PhD, Scientific Review Officer, qualifications and performance, and November 15, 2008, 10 am to November Scientific Review Program, DEA/NIAID/ competence of individual investigators. 15, 2008, 12 pm, National Institutes of NIH/DHHS, Room 2217, 6700B Place: National Institutes of Health, Health, Neuroscience Center, 6001 Rockledge Drive, MSC–7616, Bethesda, Neuroscience Center, 6001 Executive Executive Boulevard, Rockville, MD, MD 20892–7616, 301–496–2550, Boulevard, Conference Room C, Rockville, 20852 which was published in the [email protected]. MD 20852. Federal Register on September 26, 2008, Contact Person: Dawn M. Johnson, Ph.D., (Catalogue of Federal Domestic Assistance Executive Secretary, Division of Intramural 73FR55859. Program Nos. 93.855, Allergy, Immunology, Research Programs, National Institute of The meeting date has been changed to and Transplantation Research; 93.856, Mental Health, 10 Center Drive, Building 10, November 14, 2008 and the time has Microbiology and Infectious Diseases Room 4N222, Bethesda, MD 20892, 301–402– been changed to start at 11 a.m. and end Research, National Institutes of Health, HHS) 5234, [email protected]. at 5 p.m. The meeting location remains

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the same. The meeting is closed to the DEPARTMENT OF HOMELAND included in the CBP request for Office public. SECURITY of Management and Budget (OMB) Dated: September 30, 2008. approval. All comments will become a U.S. Customs and Border Protection matter of public record. In this Jennifer Spaeth document CBP is soliciting comments Director, Office of Federal Advisory Proposed Collection; Comment concerning the following information Committee Policy. Request; Complaint Management collection: [FR Doc. E8–23596 Filed 10–3–08; 8:45 am] System Title: Complaint Management System. BILLING CODE 4140–01–P AGENCY: U.S. Customs and Border Form Number: None. Protection, Department of Homeland Abstract: CBP is creating the Security. Complaint Management System (CMS) DEPARTMENT OF HEALTH AND in order to allow anybody who has HUMAN SERVICES ACTION: 60–Day Notice and request for comments; Request for a new collection interacted with CBP, either as a result of National Institutes of Health of information. importing or exporting goods, traveling to or from the U.S., seeking a job, or National Institute of Mental Health; SUMMARY: As part of its continuing effort simply living in an area where CBP Notice of Closed Meeting to reduce paperwork and respondent conducts operations such as border burden, U.S. Customs and Border patrol checkpoints, to file a complaint Pursuant to section 10(d) of the Protection (CBP) invites the general or comment about their CBP experience Federal Advisory Committee Act, as public and other Federal agencies to through an on-line portal. amended (5 U.S.C. Appendix 2), notice comment on an information collection Current Actions: This submission is is hereby given of the following requirement concerning the Complaint being made to establish a new meeting. Management System. This request for information collection. comment is being made pursuant to the Type of Review: New collection of The meeting will be closed to the Paperwork Reduction Act (Pub. L. 104– information. public in accordance with the 13; 44 U.S.C. 3505(c)(2)). Affected Public: Individuals, provisions set forth in sections DATES: Written comments should be Businesses. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., received on or before December 5, 2008 Estimated Number of Respondents: as amended. The grant applications and to be assured of consideration. 3,000. the discussions could disclose ADDRESSES: Direct all written comments Estimated Number of Responses: confidential trade secrets or commercial to U.S. Customs and Border Protection, 3,000. property such as patentable material, Information Services Group, Attn.: Estimated Time Per Response: 23 and personal information concerning Tracey Denning, 1300 Pennsylvania minutes. individuals associated with the grant Avenue, NW., Room 3.2.C, Washington, Estimated Total Annual Burden applications, the disclosure of which DC 20229. Hours: 1,199. would constitute a clearly unwarranted FOR FURTHER INFORMATION CONTACT: invasion of personal privacy. Dated: September 29, 2008. Requests for additional information Tracey Denning, Name of Committee: National Institute of should be directed to U.S. Customs and Agency Clearance Officer, Information Mental Health Special Emphasis Panel; Border Protection, Attn.: Tracey Services Branch. Community Based Participatory Research. Denning, 1300 Pennsylvania Avenue [FR Doc. E8–23578 Filed 10–3–08; 8:45 am] Date: October 31, 2008. NW., Room 3.2C, Washington, DC Time: 1 pm to 4 pm. BILLING CODE 9111–14–P Agenda: To review and evaluate grant 20229, Tel. (202) 344–1429. applications. SUPPLEMENTARY INFORMATION: CBP Place: National Institutes of Health, invites the general public and other DEPARTMENT OF HOUSING AND Neuroscience Center, 6001 Executive Federal agencies to comment on URBAN DEVELOPMENT Boulevard, Rockville, MD 20852 (Telephone proposed and/or continuing information Conference Call). collections pursuant to the Paperwork [Docket No. FR–5187–N–56] Contact Person: Aileen Schulte, Ph.D., Reduction Act of 1995 (Pub. L. 104–13; Moving to Work Demonstration Scientific Review Administrator, Division of 44 U.S.C. 3505(c)(2)). The comments Extramural Activities, National Institute of should address: (a) Whether the AGENCY: Office of the Chief Information Mental Health, NIH, Neuroscience Center, collection of information is necessary Officer, HUD. 6001 Executive Blvd, Room 6140, MSC 9608, for the proper performance of the Bethesda, MD 20892–9608, 301–443–1225, ACTION: Notice. functions of the agency, including [email protected]. whether the information shall have SUMMARY: The proposed information (Catalogue of Federal Domestic Assistance practical utility; (b) the accuracy of the collection requirement described below Program Nos. 93.242, Mental Health Research agency’s estimates of the burden of the has been submitted to the Office of Grants; 93.281, Scientist Development collection of information; (c) ways to Management and Budget (OMB) for Award, Scientist Development Award for enhance the quality, utility, and clarity review, as required by the Paperwork Clinicians, and Research Scientist Award; 93.282, Mental Health National Research of the information to be collected; (d) Reduction Act. The Department is Service Awards for Research Training, ways to minimize the burden including soliciting public comments on the National Institutes of Health, HHS) the use of automated collection subject proposal. techniques or the use of other forms of All PHAs are required to submit Dated: September 30, 2008. information technology; and (e) annual plans, however, PHAs with Jennifer Spaeth, estimates of capital or start-up costs and Moving to Work demonstration Director, Office of Federal Advisory costs of operations, maintenance, and agreements (29 at the time of Committee Policy. purchase of services to provide submission of this request) the annual [FR Doc. E8–23599 Filed 10–3–08; 8:45 am] information. The comments that are MTW plan and annual MTW report are BILLING CODE 4140–01–P submitted will be summarized and submitted in lieu of the standard annual

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and 5 year PHA plans. Revisions are toll-free number. Copies of available other forms of information technology, being made to this 50900 form so that documents submitted to OMB may be e.g., permitting electronic submission of the Department is able to better respond obtained from Ms. Deitzer. responses. to Congressional and other inquiries SUPPLEMENTARY INFORMATION: This This notice also lists the following regarding outcome measures obtained notice informs the public that the information: and promising practices learned Department of Housing and Urban Title of Proposal: Moving to Work throughout the duration of the Development has submitted to OMB a Demonstration. demonstration. request for approval of the Information OMB Approval Number: 2577–0216. DATES: Comments Due Date: November collection described below. This notice Form Numbers: HUD–50900 ‘‘MTW 5, 2008. is soliciting comments from members of Annual Plan and Report Elements.’’ ADDRESSES: Interested persons are the public and affecting agencies Description of the Need for the invited to submit comments regarding concerning the proposed collection of Information and its Proposed Use: All this proposal. Comments should refer to information to: (1) Evaluate whether the PHAs are required to submit annual the proposal by name and/or OMB proposed collection of information is plans, however, PHAs with Moving to approval Number (2577–0216) and necessary for the proper performance of Work demonstration agreements (29 at should be sent to: HUD Desk Officer, the functions of the agency, including the time of submission of this request) Office of Management and Budget, New whether the information will have the annual MTW plan and annual MTW Executive Office Building, Washington, practical utility; (2) Evaluate the report are submitted in lieu of the DC 20503; fax: 202–395–6974. accuracy of the agency’s estimate of the standard annual and 5 year PHA plans. FOR FURTHER INFORMATION CONTACT: burden of the proposed collection of Revisions are being made to this 50900 Lillian Deitzer, Reports Management information; (3) Enhance the quality, form so that the Department is able to Officer, QDAM, Department of Housing utility, and clarity of the information to better respond to Congressional and and Urban Development, 451 Seventh be collected; and (4) Minimize the other inquiries regarding outcome Street, SW., Washington, DC 20410; burden of the collection of information measures obtained and promising e-mail Lillian Deitzer at on those who are to respond; including practices learned throughout the [email protected] or through the use of appropriate duration of the demonstration. telephone (202) 402–8048. This is not a automated collection techniques or Frequency of Submission: Annually.

Number of Annual Hours per Burden respondents respondents x response = hours

Reporting Burden ...... 29 2 60 3,480

Total Estimated Burden Hours: 3,480. proposed new system of records, Seventh Street, SW., Room 2256, Status: Revision of a currently identified as the Financial Data Mart Washington, DC 20410, telephone approved collection. (FDM, A75R) will be used by HUD’s number (202) 402–8073 or Gail B. Dise, Authority: Section 3507 of the Paperwork Chief Financial Office to store financial, Assistant Chief Financial Office for Reduction Act of 1995, 44 U.S.C. 35, as limited personnel, vendor, and Systems, Office of the Chief Financial amended. customer data. Officer, Department of Housing and Dated: September 29, 2008. DATES: Effective Date: This action will Urban Development, 451 Seventh Street, Lillian L. Deitzer, be effective without further notice on SW., Room 3100, Washington, DC 20410, Telephone Number (202) 708– Departmental Paperwork Reduction Act November 5, 2008 unless comments are Officer, Office of the Chief Information received that would result in a contrary 1757. (These are not toll free numbers.) Officer. determination. A telecommunication device for [FR Doc. E8–23459 Filed 10–3–08; 8:45 am] Comments Due Date: November 5, hearing- and speech-impaired individuals (TTY) is available at 1–800– BILLING CODE 4210–67–P 2008. 877–8339 (Federal Information Relay ADDRESSES: Interested persons are Service). invited to submit comments regarding DEPARTMENT OF HOUSING AND this new system of records to the Rules SUPPLEMENTARY INFORMATION: Title 5 URBAN DEVELOPMENT Docket Clerk, Office of General Counsel, U.S.C. 552a(e)(4) and (11) provide that [Docket No. FR–5130–N–29] Department of Housing and Urban the public be afforded a 30-day period Development, 451 Seventh Street, SW., in which to comment on the new record Privacy Act of 1974; Notification of the Room 10276, Washington, DC 20410– system. Establishment of a New System of 0500. Communications should refer to The new system report, as required by Records, Financial Data Mart (FDM, the above docket number and title. 5 U.S.C. 552a(r) of the Privacy Act was A75R), Facsimile (FAX) comments are not submitted to the Committee on AGENCY: Office of the Chief Information acceptable. A copy of each Government Affairs of the United States Officer, HUD. communication submitted will be Senate, the Committee on Government available for public inspection and ACTION: Reform and Oversight of the House of Notification of the Establish of copying between 8 a.m. and 5 p.m. a New Privacy Act System of Records. Representatives, and the Office of weekdays at the above address. Management and Budget (OMB) SUMMARY: HUD proposes to establish a FOR FURTHER INFORMATION CONTACT: pursuant to paragraph 4c of Appendix I new record system to add to its Donna Robinson-Staton, Departmental to OMB Circular No. A–130, Federal inventory of systems of records subject Privacy Act Officer, Office of the Chief Agency Responsibilities for Maintaining to the Privacy Act of 1974 (5 U.S.C. Information Officer, Department of Records about Individuals, dated June 552a), as amended. The purpose of the Housing and Urban Development, 451 25, 1993 (58 FR 36075, July 2, 1993).

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Authority: 5 U.S.C. 552a, 88 Stat. 1896; 42 POLICIES AND PRACTICES FOR STORING, Washington, DC 20410; and (ii) in U.S.C. 3535(d). RETRIEVING, ACCESSING, RETAINING, AND relation to appeals of initial denials, DISPOSING OF RECORDS IN THE SYSTEM: Dated: September 23, 2008. HUD, Departmental Privacy Appeals Lisa Schlosser, STORAGE: Officer, Office of General Counsel, 451 Seventh Street, SW., Washington, DC Chief Information Officer. Hard copy documents are stored in the secure cabinets; electronic files are 20410. HUD/CFO–06 stored on servers RECORD SOURCE CATEGORIES: RETRIEVABLILITY: NAME: Subject individuals; other By social security number; name; individuals; financial institutions, Financial Data Mart (FDM, A75R). address; user-id; deposit account private corporations or firms doing number; routing number. business with HUD; Federal agencies; SYSTEM LOCATION: HUD personnel. SAFEGUARDS EMPLOYED INCLUDE: HUD Headquarters in Washington, Background screening, limited EXEMPTIONS FROM CERTAIN PROVISIONS OF THE DC. authorizations and access, security ACT: None. CATEGORIES OF INDIVIDUALS COVERED BY THE guards; computer records are SYSTEM: maintained in secure areas with access [FR Doc. E8–23470 Filed 10–3–08; 8:45 am] limited to authorized personnel and BILLING CODE 4210–67–P HUD employees. technical restraints employed with regard to accessing the records; access to CATEGORIES OF RECORDS IN THE SYSTEM: automated systems by authorized users DEPARTMENT OF HOUSING AND Financial data, limited personnel by passwords. URBAN DEVELOPMENT data, vendor data, and customer data. RETENTION AND DISPOSAL PROCEDURES: [Docket No. FR–5130–N–28] Are in accordance with GSA AUTHORITY FOR MAINTENANCE OF THE SYSTEM: schedules of retention and disposal. Privacy Act of 1974; Notification of the Sec. 113 of the Budget and HUD Handbook 2225.6 Records Intent To Establish a New Privacy Act Accounting Act of 1950 31 U.S.C. 66a. Disposition Schedule Appendix 14, System of Records, Personal Services (Pub. L. 81–784). HUD Handbook 2228.1 Records Cost Subsystem (PSCS, A75I) Disposition Schedule Management AGENCY: Office of the Chief Information PURPOSE(S): Chapter 9, and HUD Handbook 2228.2 Officer, HUD. General Records. To provide the Department decision ACTION: Notification of the Intent to makers with an online, web enabled SYSTEM MANAGER(S) AND ADDRESS: Establish a New Privacy Act System of data warehouse. FDM is the primary Gail B. Dise, Assistant Chief Financial Records. reporting tool used to generate internal Office for Systems, Office of the Chief SUMMARY: ad-hoc reports, scheduled event driven Financial Officer, Department of HUD proposes to establish a reports, and queries. This system Housing and Urban Development, 451 new record system to add to its supports program area managers, budget Seventh Street, SW., Room 3100, inventory of systems of records subject officers, and management staff by Washington, DC 20410, Telephone to the Privacy Act of 1974 (5 U.S.C. providing centralized, uniformed Number (202) 708–1757. 552a), as amended. The purpose of the financial information, event driven proposed new system of records, reports, and an ad-hoc financial analysis NOTIFICATION PROCEDURES: identified as Personal Services Cost tool. FDM supports essential functions For information assistance, or inquiry Subsystem (PSCS, A75I), is to obtain of the Office of Housing (OH), Office of about existence of records, contact the payroll costs for the Department from Public and Indian Housing (PIH), Office Privacy Act Officer at the appropriate the National Finance Center (NFC). of Community Planning and 451 Seventh Street, SW., Room 4178, DATES: Effective Date: This action will Development (CPD), Policy Washington, DC, in accordance with the be effective without further notice on Development and Research (PDR), and procedures in 24 CFR part 16. November 5, 2008 unless comments are other HUD support offices. There is no received that would result in a contrary RECORD ACCESS PROCEDURES: public access to this system. This determination. system is for internal use only. The Department’s rules for providing Comments Due Date: November 5, access to records to the individual 2008. ROUTINE USES OF RECORDS MAINTAINED IN THE concerned appear in 24 CFR part 16. If ADDRESSES: Interested persons are SYSTEM: additional information or assistance is required, contact the Privacy Act Officer invited to submit comments regarding Including categories of users and the at the Department of Housing and Urban this new system of records to the Rules purposes of such uses: In addition to Development (HUD), 451 Seventh Docket Clerk, Office of General Counsel, those disclosures generally permitted Street, SW., Room 4178, Washington, Department of Housing and Urban under 5 U.S.C. 552a(b) of the Privacy DC 20410. Development, 451 Seventh Street, SW., Act, other routine uses are as follows: Room 10276, Washington, DC 20410– The system is used as a data warehouse. CONTESTING RECORD PROCEDURES: 0500. Communications should refer to It contains personal data about The procedures for requesting the above docket number and title. individuals including names, addresses, amendment or correction of records Facsimile (FAX) comments are not and social security numbers. It is used appears in 24 CFR part 16. If additional acceptable. A copy of each by the Department for analysis, information is needed, contact (i) in communication submitted will be management reports, and interagency relation to contesting contents of available for public inspection and reporting. There are over 400 users with records, the Privacy Act Officer at HUD, copying between 8 a.m. and 5 p.m. customized report capability. 451 Seventh Street, SW., room 4178, weekdays at the above address.

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FOR FURTHER INFORMATION CONTACT: PURPOSE(S): NOTIFICATION PROCEDURE: Donna Robinson-Staton, Departmental The purpose of the system of records For information assistance, or inquiry Privacy Act Officer, Office of the Chief is to obtain payroll cost from NFC. about existence of records, contact the Information Officer, Department of Additionally, PSCS sends the payroll Departmental Privacy Act Officer, Housing and Urban Development, 451 costs to HUDCAPS for accounting of the Department of Housing and Urban Seventh Street, SW., Room 2256, payroll. PSCS is necessary since it sends Development, 451 Seventh Street, SW., Washington DC 20410, telephone HUD’s payroll costs to HUDCAPS and Room 2256, Washington, DC 20410 in number (202) 402–8073 or Gail B. Dise, impacts HUD’s financial reporting to the accordance with the procedures in 24 Assistant Chief Financial Office for Office of Management and Budget CFR part 16. Systems, Office of the Chief Financial (OMB). There is no public access to this Officer, Department of Housing and system. This is for internal use only. RECORD ACCESS PROCEDURES: Urban Development, 451 Seventh Street, Additionally, PSCS converts the NFC The Department’s rules for providing SW., Room 3100, Washington, DC code to HUD organizational codes then access to records to the individual 20410, Telephone Number (202) 708– transits the converted codes and payroll concerned appear in 24 CFR part 16. If 1757. (These are not toll free numbers.) costs to HUD’s Central Accounting and additional information or assistance is A telecommunication device for Program System (HUDCAPS) for required, contact the Departmental hearing- and speech-impaired accounting of the payroll. The system Privacy Act Officer, Department of individuals (TTY) is available at 1–800– has 2 users with READ ONLY Housing and Urban Development, 451 877–8339 (Federal Information Relay privileges. Seventh Street, SW., Room 2256, Service). Washington, DC 20410. ROUTINE USES OF RECORDS MAINTAINED IN THE SUPPLEMENTARY INFORMATION: SYSTEM: CONTESTING RECORD PROCEDURES: Title 5 U.S.C. 552a(e)(4) and (11) Including categories of users and the Procedures for the amendment or provide that the public be afforded a 30- purposes of such uses: In addition to correction of records and for applicants day period in which to comment on the those disclosures generally permitted wanting to appeal initial agency new record system. under 5 U.S.C. 552a(b) of the Privacy determination appear in 24 CFR part 16. The new system report, as required by Act, other routine uses are as follows: If additional information is needed, 5 U.S.C. 552a(r)of the Privacy Act was To HUDCAPS to record accounting of contact: submitted to the Committee on payroll cost. (i) In relation to contesting contents of records, the Departmental Privacy Act Government Affairs of the United States POLICIES AND PRACTICES FOR STORING; Senate, the Committee on Government RETRIEVING, ACCESSING, RETAINING, AND Officer at HUD, 451 Seventh Street, Reform and Oversight of the House of DISPOSING OF RECORDS IN THE SYSTEM: SW., Room 2256, Washington, DC Representatives, and the Office of 20410; and STORAGE: Management and Budget (OMB) (ii) In relation to appeals of initial pursuant to paragraph 4c of Appendix I Hard copy documents are stored in denials, HUD, Departmental Privacy to OMB Circular No. A–130, Federal the secure cabinets; electronic files are Appeals Officer, Office of General Agency Responsibilities for Maintaining stored on servers. Counsel, 451 Seventh Street, SW., Records about Individuals, dated June RETRIEVABILITY: Washington, DC 20410. 25, 1993 (58 FR 36075, July 2, 1993). By Social Security Number; name. RECORD SOURCE CATEGORIES: Authority: 5 U.S.C. 552a, 88 Stat. 1896; 42 Subject individuals; other U.S.C. 3535(d). SAFEGUARDS EMPLOYED INCLUDES: Background screening, limited individuals; financial institutions, Dated: September 23, 2008. authorizations and access, security private corporations or firms doing Lisa Schlosser, guards; computer records are business with HUD; Federal agencies; Chief Information Officer. maintained in secure areas with access HUD personnel. HUD/CFO–05 limited to authorized personnel and EXEMPTIONS FROM CERTAIN PROVISIONS OF THE technical restraints employed with ACT: NAME: regard to accessing the records; access to None. Personal Services Cost Subsystem automated systems by authorized users [FR Doc. E8–23471 Filed 10–3–08; 8:45 am] (PSCS, A75I). by passwords. BILLING CODE 4210–67–P RETENTION AND DISPOSAL: SYSTEM LOCATION: Are in accordance with GSA HUD Headquarters in Washington DC. schedules of retention and disposal. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT CATEGORIES OF INDIVIDUALS COVERED BY THE HUD Handbook 2225.6 Records SYSTEM: Disposition Schedule Appendix 65, HUD Handbook 2228.1 Records [Docket No. FR–5130–N–27] HUD employees. Disposition Schedule Management Privacy Act; Notification of an CATEGORIES OF RECORDS IN THE SYSTEM: Chapter 9, and HUD Handbook 2228.2 Amendment to an Existing Privacy Act General Records Schedule Social Security Numbers (SSNs), System of Records; Inventory Employee Names, Banking Information SYSTEM MANAGER(S) AND ADDRESS: Management System (IMS) (Formerly— (bank routing and deposit account Gail B. Dise, Assistant Chief Financial The Public and Indian Housing number), Employee Payroll Costs. Office for Systems, Office of the Chief Information Center (PIC)) Financial Officer, Department of AGENCY: Office of the Chief Information AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Housing and Urban Development, 451 Officer, HUD. Sec. 113 of the Budget and Seventh Street, SW., Room 3100, ACTION: Notification of an Amendment Accounting Act of 1950 31 U.S.C. 66a. Washington, DC 20410, Telephone to a Privacy Act System of Records. (Pub. L. 81–784). Number (202) 708–1757.

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SUMMARY: The Department of Housing access, updates access, read-only access, notification of its intent to amend this and Urban Development (HUD) and approval access based on the user’s system of records for IMS, HUD/PIH–4. proposes to amend one of its Privacy role and security access level; (2) Title 5 U.S.C. 552a(e)(4) and (11) Act record systems subject to the unauthorized system access is reduced provide that the public be afforded a 30- Privacy Act of 1974 (5 U.S.C. 552a), as by restricting access by job function and day period in which to comment on the amended. The amendment is to reflect by the use of user identifications (User amended system of records, and require changes in the system name, location, IDs) and password and user IDs that are published notice of the existence and new system managers and current utilized to identify the transaction by character of the system of records. updates to the ‘‘Purpose’’ and ‘‘Systems users; (3) inaccurate and incomplete The system report was submitted to Security Measures’’ statements. This data are identified and eliminated with the Office of Management and Budget system is managed and operated by extensive edits; and (4) data corruption/ (OMB), the Senate Committee on HUD’s Office of Public and Indian destruction is handled by limiting user Governmental Affairs, and the House Housing. IMS replaces the former Public IDs that have update rights to the Committee on Government Reform and Indian Housing Information Center production server/databases. pursuant to paragraph 4c of Appendix 1 (PIC) system. The notice for the PIC Data Quality: PHAs enter to OMB Circular No. A–130, ‘‘Federal system was published at 67 FR 20986. management, building and unit Agency Responsibilities for Maintaining This record system supports the inventory details, and family Records About Individuals,’’ July 25, administration of programs for families information into IMS. Family data 1994; 59 FR 37914. receiving housing assistance for those includes the families’ names, social Authority: 5 U.S.C. 552a, 88 Stat. 1896; 42 entities that administer HUD’s Office of security numbers (SSN), and dates of U.S.C. 3535(d). Public and Indian Housing rental birth. The social security number search Dated: September 15, 2008. assistance programs. The entities that feature was established to help HUD administer PIH’s rental assistance maintain data quality and integrity and Lisa Schlosser, programs are the Public Housing to support one of its strategic objectives Chief Information Officer. Authorities (PHAs). Additionally, as to prevent fraud and abuse. This search HUD/PIH–4 part of HUD’s oversight responsibility, feature: (1) Helps to confirm that those the collected data maintained in IMS is families entitled to benefits receive SYSTEM NAME: used to calculate the amount of subsidy benefits; (2) assists in limiting the Inventory Management System (IMS) authorized and disbursed to PHAs and duplication of benefits; and (3) helps to formerly known as the Public and to monitor PHAs’ overall performance prevent submission of false applications Indian Housing (PIH) Information and use of HUD funds. The existing for benefits, thereby ensuring data Center (PIC). scope, objectives, and business quality. SYSTEM LOCATION: processes in place for this program DATES: Effective Date: This action shall IMS system servers are located in remain unchanged. be effective without further notice on Charleston, WV; and access is through System Security Measures: The November 5, 2008 unless comments are the Internet. The servers are maintained availability and data in IMS are received that would result in a contrary by HUD Information Technology important. Much of the data needs to be determination. protected from unanticipated or Comments Due Date: November 5, Services (HITS) contractor, and HUD’s unintentional modification. HUD 2008. information technology partners: restricts the use of the information to Electronic Data Services (EDS) and ADDRESSES: Interested persons are Lockheed Martin. HUD’s oversight responsibility, and invited to submit comments regarding access to the IMS is controlled by using this notice to the Rules Docket Clerk, CATEGORIES OF INDIVIDUALS COVERED BY THE the Web Access Security System Office of General Counsel, Room 10276, SYSTEM: (WASS) security module, which Department of Housing and Urban Families receiving rental housing requires users to use the single sign-on Development, 451 7th Street, SW., assistance via programs administered by security interface. WASS consists of a Washington, DC 20410. the Department of Housing and Urban secure connection component and a Communications should refer to the Development, State Agencies, PHAs. secure systems component. WASS above docket number and title. A copy CATEGORIES OF RECORDS IN THE SYSTEM: provides an overall security umbrella of each communication submitted will for thousands of HUD-wide system be available for public inspection and Categories of records in the system: users. The secure connection copying between 8 a.m. and 5 p.m. Records consist of automated building component of WASS includes online weekdays at the above address. and unit inventory details, family registration forms that are accessible via composition details, income, and rent the World Wide Web and are used by FOR FURTHER INFORMATION CONTACT: data obtained from PHAs. More HUD’s trusted Business Partners to Donna Robinson-Staton, Departmental specifically, the system of records submit requests for the authority to Privacy Act Officer, Department of contains: Identification information access secure systems that reside behind Housing and Urban Development, 451 such as names and social security HUD’s firewall. The data captured by Seventh Street, SW., Room 2256, numbers for individuals 6 years and the secure connection registration page Washington, DC 20410, Telephone older; alien registration information; is used to establish authorized user on Number (202) 402–8073. (This is not a address and tenant unit numbers; the Lightweight Directory Access toll-free number.) A telecommunication financial data such as income, Protocol (LDAP) server. Secure device for hearing- and speech-impaired adjustments to income, tenant family connection provides system level individuals (TTY) is available at 1–800– composition characteristics such as security by validating users against the 877–8339 (Federal Information Relay family size, sex of family members, LDAP server prior to providing users Service). information about the family that would access to HUD’s Secure System SUPPLEMENTARY INFORMATION: Pursuant qualify them for certain adjustments or environment from the internet by: (1) to the Privacy Act of 1974 (5 U.S.C. for admission to a project limited to a The WASS module controls a user’s 552a), as amended, this notice is HUD’s special population (e.g., elderly,

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handicapped, or disabled); relationships increase sharing of information agency with funds provided by HUD for of members of the household to the throughout the Office of Public and the preparation of studies and statistical head of household (e.g., spouse, child); Indian Housing, which improves staff reports directly related to the preferences applicable to the family at awareness of activities related to the management of HUD’s rental assistance admission; income status at admission; administration of HUD-subsidized programs, to support quality control for race and ethnicity of household housing programs. IMS is a flexible, tenant eligibility efforts requiring a members; unit characteristics such as scaleable, Internet-based integrated random sampling of tenant files to number of bedrooms; geographic data system, which enables PHA users and determine the extent of administrative obtained by the PHA. HUD personnel to access a common errors in making rent calculations, database of PHA information via their eligibility determinations, etc., and for AUTHORITY FOR MAINTENANCE OF THE SYSTEM: web browser. IMS aids HUD and entities processing certifications/re- • The U.S. Housing Act of 1937, as that administer HUD’s assisted housing certifications; amended, 42 U.S.C. 1437 et seq; programs in: (a) Increasing the effective 3. To Public Housing Agencies (PHAs) • The Housing Community distribution of rental assistance to to verify the accuracy and completeness Development Act of 1981, Public Law individuals that meet the requirements of tenant data used in determining 97–35, 85 stat., 348,408 requires of Federal rental assistance programs; eligibility and continued eligibility and applicants and residents to provide the (b) Detecting abuses in assisted housing the amount of housing assistance information collected; and programs; (c) Taking administrative or • received and to complete and submit The Housing and Community legal actions to resolve past abuses of Occupancy report, SEMAP certification, Development Act of 1987, 42 U.S.C. assisted housing programs; (d) Deterring PHA contact information, and upload 3543, requires applicants and residents abuses by verifying the employment and Form 50058. Any information shared to provide the SSN(s) of household income of applicants and tenants at the back to the PHAs will pertain only to members at least six (6) years old. time of occupancy and at re-certification • that PHA’s operations, no other PHA’s Title VI of the Civil Rights Act of via the PIH–REAC Enterprise Income operations; 1962 (42 U.S.C. 2000d), and by the Fair Verification (EIV); (e) evaluating the 4. To private owners of assisted Housing Act (42 U.S.C. 3601–19). effectiveness of income discrepancy housing to verify the accuracy and PURPOSE: resolution actions taken by PHAs for completeness of applicant and tenant HUD’s rental assistance programs; (f) An applicant for public housing data used in determining eligibility and Evaluating program effectiveness; (g) completes or a PHA representative continued eligibility and the amount of Improving the reporting rate; (h) housing assistance received; assists in filling out an application that Forecasting budgets; (i) Controlling determines an applicant’s eligibility for 5. To PHAs, owners and management funds; and (j) Updating building and agents, and contract administrators to public housing assistance. The unit data. The Public and Indian following information assists in the identify and resolve discrepancies in Housing’s IMSystem serves as a tenant data; eligibility determination: (1) Names of repository for automated information all persons who will be living in the 6. To the Social Security used when comparing family income Administration and Immigration and unit, their sex, race, date of birth, and data reported, by recipients of Federal relationship to the family head; (2) Naturalization Service to verify alien rental assistance, to income data status and continued eligibility in Present address and telephone number; received from external sources. (3) Family characteristics (e.g., veteran) HUD’s rental assistance programs; and 7. To researchers affiliated with or circumstances (e.g., living in RECORDS IN IMS ARE SUBJECT TO USE IN academic institutions, with not-for- substandard housing) that might qualify AUTHORIZED AND APPROVED COMPUTER profit organizations, or with federal, the family for tenant selection MATCHING PROGRAMS REGULATED UNDER THE PRIVACY ACT OF 1974, AS AMENDED. ROUTINE state or local governments, or to policy preferences) or disability; (4) Names and USES OF RECORDS MAINTAINED IN THE SYSTEM, researchers without individual addresses of current and previous INCLUDING CATEGORIES OF USERS AND identifiers (name, address, social landlords for information concerning PURPOSES OF SUCH USES: security number) for the performance of the family’s suitability as a tenant; (5) In addition to the uses cited in the research and statistical activities on An estimate of the family’s anticipated section of this document titled housing and community development income for the next twelve months and ‘‘Purposes’’, other routine uses may issues the sources of that income; (6) The include: names and addresses of employers, 1. To federal, state, and local agencies BELOW ARE OTHER ROUTINE USES OF RECORDS banks, and any other information the (e.g., state agencies administering the MAINTAINED IN THE SYSTEM AND THE PURPOSES PHA would need to verify income and state’s unemployment compensation OF SUCH USES: deductions, and to verify the family laws, state welfare and food stamp 1. PHA complete and submit composition. A housing official may agencies, U.S. Office of Personnel Occupancy report, SEMAP certification, visit the present home to interview the Management, U.S. Social Security PHA contact information, upload Form applicant and applicant’s family Administration, and the Office of Child 50058. members to see how the present home Support Enforcement Center’s National 2. Field Offices review SEMAP is managed and maintained. Directory of New Hires database to certifications, review, and approve or IMS also allows PHAs to verify the accuracy and completeness of reject occupancy reports, resolve Form electronically submit information to the data provided, to verify eligibility or 50058 errors. HUD that is related to the continued eligibility in HUD’s rental 3. Web Access SubSystem (WASS) administration of HUD’s Public and assistance programs, and to aid in the authenticates user name and password Indian Housing programs. It collects identification of tenant errors, fraud, before user can access Public Indian data for PIH operations, including data and abuse in assisted housing programs Housing (PIH)-IMS. submitted via the Internet from HUD’s through HUD’s tenant income computer 4. Line of Credit Control System/ field offices and HUD’s business matching program; Program Accounting System (LOCCS/ partners, and accurately tracks activities 2. To individuals under contract to PAS) feeds funding data such as grant and processes. IMS also helps to HUD or under contract to another details to the public housing authorities.

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5. PHA scoring data produced by 3. The IMS System maintains record Appeals Officer, Office of General Integrated Asset Subsystem (NASS) of each user’s logons, logoffs, and logoff Counsel, 451 Seventh Street, SW., provides the data to PIH–IMS. exceptions if any. Washington, DC 20410. 6. HUD Central Accounting and 4. For each user, IMS system logs the RECORD SOURCE CATEGORIES: (HUDCAPS) data mart provides number requests for web pages financial management info to PIH, containing privacy data. The number of IMS receives data from field office Housing Inventory, Management page view requests are tracked per page staff, federal government agencies, state reports, and Module 50058. per session. The first and last timestamp and local agencies, private data sources, 7. Voucher management System of access for every privacy page is also owners and management agencies. serves as the source of leased units for recorded per session. Public Housing Agencies (PHAs) voucher funded assistance to PIH–IMS. 5. IMS system archives the user routinely collect personal and income 8. PIH–IMS provides Form 50058 data privileges data when a user is removed data from participants in and applicants on a monthly basis for the Enterprise from the system or when the unmasked for HUD’s public and assisted housing Income Verification system (EIV) for the privacy data viewing privileges are programs. The data collected by PHAs is purpose of computer matching. modified. entered into IMS via the system itself by 9. PIH–IMS also shares census tract 6. Hard copy records are stored in VPN, via PHA-owned software, or via data with the Geo coding Service Center lock file cabinets in rooms to which HUD’s Family Reporting software (FRS) system. access is limited to those personnel who EXEMPTIONS FROM CERTAIN PROVISIONS OF THE 10. PIH–IMS provides information for service the records. ACT: 7. Background screening, limited performance reporting and data that None. assists in the budget formulation for the authorization and access with access Capital Fund. limited to authorize personnel. [FR Doc. E8–23473 Filed 10–3–08; 8:45 am] BILLING CODE 4210–67–P POLICIES AND PRACTICES FOR STORING, RETENTION AND DISPOSAL: RETRIEVING, ACCESSING, RETAINING, AND Electronic records are maintained and DISPOSING OF RECORDS IN THE SYSTEM: destroyed according to the HUD Records DEPARTMENT OF THE INTERIOR STORAGE: Disposition Schedule 2225.6. Records are maintained for a period of three Fish and Wildlife Service Records are stored manually in family years. case files in the PHAs and electronically [FWS–R7–2008–N0093] in office automation equipment. SYSTEM MANAGERS(S) AND ADDRESSES: Records are stored on HUD computer Koyukuk/Nowitna National Wildlife Gary Faeth, Acting IT Division Refuges, Galena, AK servers for field office and public Director for Public and Indian Housing housing agencies’ access via the Internet Information Management, Potomac AGENCY: Fish and Wildlife Service, to: (1) Obtain social security and Center, 550 Twelfth Street, SW., First Interior. supplemental security income data that Floor, Washington, DC 20410, ACTION: Notice of Availability of the are not subject to provisions of 26 U.S.C. Telephone Number, (202) 475–8730 or Draft Revised Comprehensive 6103; and (2) update actions taken in Hitesh Doshi, IMS Information Conservation Plan and Environmental resolving income discrepancies. Technology Manager, Potomac Center, Assessment for Koyukuk, Northern Unit Software in IMS precludes the transfer 550 Twelfth Street, First Floor, SW., Innoko, and Nowitna National Wildlife of any data subject to 26 U.S.C. 6103 to Washington, DC 20410, Telephone Refuges; request for comments. unencrypted media. All of the IMS data Number, (202) 475–8940. is store on HUD’s Servers. The disk and SUMMARY: We, the Fish and Wildlife backup files are maintained by HUD’s NOTIFICATION PROCEDURES: Service (Service), announce the information technology partners— For information, assistance, or inquiry availability of a draft revised Electronic Data Services (EDS) and about the existence of records, contact comprehensive conservation plan (Draft Lockheed Martin. The original (hard the Privacy Act Officer at the CCP) and environmental assessment copy) files are stored in the originating Department of Housing and Urban (EA) for the Koyukuk, Northern Unit PHA. Development, 451 Seventh Street, SW., Innoko, and Nowitna National Wildlife Washington, DC. Written requests must IRRETRIEVABILITY: Refuges (Refuge) is available for public include the full name, Social Security review and comment. In this Draft CCP Records are retrieved by an Number, date of birth, current address, and EA we describe two alternatives, individual’s SSN. and telephone number of the individual including our preferred action, to making the request. SAFEGUARDS: manage the Refuge for the next 15 years. Also available for public review and These are the measures used to CONTESTING RECORD PROCEDURES: comment are draft compatibility protect the records from unauthorized Procedures for the amendment or determinations. access or disclosure: correction of records and for applicants 1. The REAC–IT Web Access Secure wanting to appeal initial agency DATES: Comments on the Draft CCP and SubSystem (WASS) provides audit determination appear in 24 CFR part 16. EA must be received on or before logging for all system access via WASS’s If additional information is needed, December 15, 2008. authentication of all users. Audit contact: ADDRESSES: You may view or obtain logging in WASS includes a keystroke (i) In relation to contesting contents of copies of the Draft CCP and EA by any logger which covers every keystroke of records, the Departmental Privacy Act of the following methods. You may any user with in WASS. Officer at HUD, 451 Seventh Street, request a paper copy, a summary, or a 2. WASS provides authentication SW., Room 2256, Washington, DC CD–ROM containing both. methods that meet NIST requirements. 20410; and Agency Web Site: Download a copy of Every user has a WASS ID and is (ii) In relation to appeals of initial the documents at http://alaska.fws.gov/ authenticated via WASS. denials, HUD, Departmental Privacy nwr/planning/plans.htm.

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E-mail: FW7_Koyukuk/ Refuges. Refuge boundaries encompass Alternative A (the No-Action [email protected]. Please approximately 7.329 million acres of Alternative) is required under NEPA include ‘‘Revised CCP’’ in the subject which approximately 6.044 million and describes continuation of current line of the message. acres (82 percent) are under Service management activities. Alternative A Mail: Robert Lambrecht, Planning jurisdiction. Section 302(3)(B) of serves as a baseline against which to Team Leader, U.S. Fish and Wildlife ANILCA states that the purposes for compare the other alternative. Under Service, P.O. Box 287, Galena, Alaska which the Refuge was established Alternative A, management of the 99741. include: (i) To conserve fish and Refuge would continue to follow In-Person Viewing or Pickup: Call wildlife populations and habitats in direction described in the 1987 CCPs (907) 786–3357 to make an appointment their natural diversity; (ii) to fulfill and records of decision as modified by during regular business hours at the international treaty obligations of the subsequent program-specific plans (e.g., USFWS Regional Office, 1011 E. Tudor United States with respect to fish and fisheries, cultural resources, and fire Road, Anchorage AK 99053 or call (907) wildlife and their habitats; (iii) to management plans). Currently 91 656–1231 to make an appointment provide the opportunity for continued percent of the Refuge is in Minimal during business hours at the Koyukuk/ subsistence use by local residents; and management, 7 percent is designated Nowitna Refuge in Galena, AK. (iv) to ensure water quality and Wilderness, and 2 percent is in Wild FOR FURTHER INFORMATION, CONTACT: necessary water quantity within the River management. Alternative A would Robert Lambrecht at the address above Refuge. CCPs and Environmental Impact continue to protect and maintain the or (907) 656–1231; fax: (907) 656–1708; Statements were completed for the existing wildlife values, natural or fw7_Koyukuk/ Refuge in 1987 following direction in diversity, and ecological integrity of the [email protected]. Section 304(g) of ANILCA. Refuge. Human disturbances to fish and The ANILCA requires us to designate wildlife habitats and populations would SUPPLEMENTARY INFORMATION: areas according to their respective be minimal. Private and commercial Introduction resources and values and to specify uses of the Refuge would not change, programs and uses within the areas and public uses employing existing With this notice, we continue the CCP designated. To meet this requirement, access methods would continue to be process for Koyukuk, Northern Unit the Alaska Region established allowed. Opportunities to pursue Innoko, and Nowitna National Wildlife management categories (Minimal, traditional subsistence activities, and Refuges. We started this process through Moderate, Intensive, Wilderness, and recreational hunting, fishing, and other a notice in the Federal Register (72 FR Wild River). Appropriate activities, wildlife dependent activities, would be 57343; October 9, 2007). public uses, commercial uses, and maintained. Opportunities to pursue Background facilities are identified for each research would be maintained. management category. Three Alternative B (the Proposed Action) The ANILCA (16 U.S.C. 410hh et seq., management categories (Minimal, would generally continue to follow 43 U.S.C. 1602 et seq.) requires Wilderness, and Wild River) apply to management direction described in the development of a CCP for all national the Refuge. 1987 CCPs and records of decision as wildlife refuges in Alaska. The Draft The 1997 Refuge Improvement Act modified by subsequent program- CCP and EA for the Refuge was includes additional direction for specific plans, but some of that developed consistent with Section conservation planning throughout the management direction has been updated 304(g) of ANILCA and the Refuge National Wildlife Refuge System. This by changes in policy since the 1987 Administration Act as amended by the direction has been incorporated into Koyukuk and Northern Unit Innoko and Refuge Improvement Act (16 U.S.C. national planning policy for the Nowitna Refuge CCPs were approved. 668dd et seq.). The purpose of National Wildlife Refuge System, Alternative B identifies these specific developing CCPs is to provide refuge including refuges in Alaska. This draft changes in management direction as managers with a 15-year management revision of the Koyukuk, Northern Unit well as goals and objectives for Refuge strategy for achieving refuge purposes Innoko, and Nowitna CCP/EA meets the management. and contributing to the mission of the requirements of both ANILCA and the National Wildlife Refuge System, Refuge Administration Act as amended Public Meetings consistent with sound principles of fish, by the Refuge Improvement Act. We will continue to involve the wildlife, and habitat management and Issues raised during scoping and public through open houses, meetings conservation; legal mandates; and addressed in the Draft CCP/EA are (1) and comments. We will mail notices of Service policies. Plans define long-term Management of wildlife populations, availability to our Refuge mailing list. goals and objectives toward which especially moose; (2) future off-refuge Public meetings will be held in the refuge management activities are mining, oil, and gas developments; (3) following Refuge area communities: directed and identify which uses may be contaminants and their effects on wild Galena, Hughes, Huslia, Kaltag, compatible with the purposes of the foods and water quality; (4) the effects Koyukuk, Nulato, Ruby, and Tanana. refuge. They identify wildlife- of climate change; (5) maintaining the Details will be announced locally in dependent recreation opportunities wild character of the Refuge and advance of each meeting. available to the public, including wilderness quality; (6) future public use; hunting, fishing, wildlife observation (7) how the fire management program Public Availability of Comments and photography, and environmental can help villages address their Before including your name, address, education and interpretation. hazardous fuel accumulations; and (8) phone number, e-mail address, or other Comprehensive conservation plans are the need for more outreach and better personal identifying information in your updated in accordance with planning communication with the public. comment, you should be aware that direction in Section 304(g) of ANILCA The Draft CCP and EA describe and your entire comment—including your and with NEPA (42 U.S.C. 4321 et seq.). evaluate two alternatives for managing personal identifying information—may Background: In 1980, ANILCA the Refuge for the next 15 years. These be made publicly available at any time. designated the Koyukuk, Northern Unit alternatives follow much of the same While you can ask us in your comment Innoko, and Nowitna National Wildlife general management direction. to withhold your personal identifying

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information from public review, we SUPPLEMENTARY INFORMATION ). We conduct a review of listed species at cannot guarantee that we will be able to request any new information on these least once every 5 years. Section do so. We will make all comments from species that may have a bearing on their 4(c)(2)(B) requires that we determine (1) individual persons part of the official classification as endangered or Whether a species no longer meets the public record. We will handle requests threatened. Based on the results of these definition of threatened or endangered for such comments in accordance with 5-year reviews, we will make and should be removed from the List the Freedom of Information Act, NEPA, recommendations as to whether each of (delisted); (2) whether a species more and Departmental policies and these species is properly classified properly meets the definition of procedures. under the Act. threatened and should be reclassified Dated: September 29, 2008. DATES: To allow us adequate time to from endangered to threatened; or (3) Gary Edwards, conduct these reviews, we must receive whether a species more properly meets your information no later than Acting Regional Director, U.S. Fish and the definition of endangered and should Wildlife Service, Anchorage, Alaska. December 5, 2008. However, we will be reclassified from threatened to continue to accept new information [FR Doc. E8–23526 Filed 10–3–08; 8:45 am] endangered. Using the best scientific about any listed species at any time. BILLING CODE 4310–55–P and commercial data available, we ADDRESSES: For instructions on how to consider a species for delisting if the submit information and review the data substantiate that the species is DEPARTMENT OF THE INTERIOR information that we receive on these neither endangered nor threatened for species, see ‘‘Public Solicitation of New one or more of the following reasons: (1) Fish and Wildlife Service Information.’’ The species is considered extinct; (2) FOR FURTHER INFORMATION CONTACT: For the species is considered to be [FWS–R6–ES–2008–N0187; 60120–1113– species-specific information, contact the 0000; C4] recovered; and/or (3) the original data appropriate person under ‘‘Public available when the species was listed, or Endangered and Threatened Wildlife Solicitation of New Information.’’ the interpretation of such data, were in and Plants; 5-Year Reviews of Three Individuals who are hearing impaired or error (50 CFR 424.11(d)). Any change in Wildlife Species and Eight Plant speech impaired may call the Federal Federal classification requires a separate Species in the Mountain-Prairie Region Relay Service at (800) 877–8337 for TTY rulemaking process. Therefore, we are (telephone typewriter or teletypewriter) requesting submission of any new AGENCY: Fish and Wildlife Service, assistance. information (best scientific and Interior. SUPPLEMENTARY INFORMATION: commercial data) on these species that ACTION: Notice of initiation of review; Why Do We Conduct a 5-Year Review? is relevant to our review under section request for information on 11 species. Under the Act (16 U.S.C. 1531 et seq.), 4(c)(2)(A). SUMMARY: We, the U.S. Fish and we maintain the List of Endangered and Our regulations at 50 CFR 424.21 Wildlife Service (Service) initiate 5-year Threatened Wildlife and Plant Species require that we publish a notice in the reviews of three wildlife species and (List) at 50 CFR 17.11 and 17.12. We Federal Register announcing those eight plant species under the amend the List by publishing final rules species currently under review. This Endangered Species Act of 1973, as in the Federal Register. Section notice announces initiation of our active amended (Act) (see Table 1 under 4(c)(2)(A) of the Act requires that we review of the species in Table 1.

TABLE 1—SUMMARY OF LISTING INFORMATION

Where listed Common name Scientific name Status (current range) Final listing rule

ANIMALS June sucker ...... Chasmistes liorus ...... Endangered ...... Entire (UT) ...... 51 FR 10851; 03/31/1986. Pawnee montane skipper ...... Hesperia leonardus montana ...... Threatened ...... Entire (CO) ...... 52 FR 36176; 09/25/1987. Wyoming toad ...... Bufo hemiophrys baxteri ...... Endangered ...... Entire (WY) ...... 49 FR 1992; 01/17/1984. PLANTS Barneby reed-mustard ...... Schoenocrambe barnebyi ...... Endangered ...... Entire (UT) ...... 57 FR 1403; 01/14/1992. Barneby ridge-cress ...... Lepidium barnebyanum ...... Endangered ...... Entire (UT) ...... 55 FR 39864; 09/28/1990. Blowout Penstemon ...... Penstemon haydenii ...... Endangered ...... Entire (NE, WY) ..... 52 FR 32929; 09/01/1987. Clay-loving wild-buckwheat .... Eriogonum pelinophilum ...... Endangered ...... Entire (CO) ...... 49 FR 28565; 07/13/1984. Clay reed-mustard ...... Schoenocrambe argillacea ...... Threatened ...... Entire (UT) ...... 57 FR 1403; 01/14/1992. Maguire primrose ...... Primula maguirei ...... Threatened ...... Entire (UT) ...... 50 FR 33734; 08/21/1985. North Park phacelia ...... Phacelia formosula ...... Endangered ...... Entire (CO) ...... 47 FR 38540; 09/01/1982. Shrubby reed-mustard ...... Schoenocrambe suffrutescens .... Endangered ...... Entire (UT) ...... 52 FR 37420; 10/06/1987.

What Information Do We Consider in review of each species, such as—(A) Threat status and trends (see five factors Our Review? Species biology, including but not under heading ‘‘How do we determine limited to population trends, whether a species is endangered or In our 5-year review, we consider all distribution, abundance, demographics, threatened?’’); and (E) Other new new information available at the time of and genetics; (B) Habitat conditions, information, data, or corrections, the review. These reviews will generally including but not limited to amount, including but not limited to taxonomic consider the best scientific and distribution, and suitability; (C) or nomenclatural changes, identification commercial data that have become Conservation measures that have been of erroneous information contained in available since the original listing implemented to benefit the species; (D) the List of Endangered and Threatened determination or most recent status

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Wildlife and Plants, and improved appointment, during normal business at http://endangered.fws.gov/ analytical methods. hours. wildlife.html#Species. June sucker: Larry Crist, Utah Field Public Solicitation of New Information Definitions Related to This Notice Supervisor, U.S. Fish and Wildlife We request any new information Service, Attention: June sucker 5-year To help you submit information about concerning the status of the wildlife Review, 2369 West Orton Circle, Suite the species we are reviewing, we species June sucker, Pawnee montane 50, West Valley City, Utah 84119; provide the following definitions: skipper, and Wyoming toad, and of the telephone (801) 975–3330. For species- Species includes any species or plant species Schoenocrambe barnebyi, specific information, contact Marianne subspecies of fish, wildlife, or plant, Lepidium barnebyanum, Penstemon Crawford at (801) 975–3330, extension and any distinct population segment of haydenii, Eriogonum pelinophilum, 134. any species of vertebrate, which Schoenocrambe argillacea, Primula Pawnee montane skipper: Susan interbreeds when mature; maguirei, Phacelia formosula, and Linner, Field Supervisor, Colorado Field Schoenocrambe suffrutescens. See Office, Ecological Services, P.O. Box Endangered species means any ‘‘What Information Do We Consider in 25486, MS–65412, Denver Federal species that is in danger of extinction Our Review?’’ for specific criteria. If you Center, Denver, Colorado 80225; throughout all or a significant portion of submit information, support it with telephone (303) 236–4773. For species- its range; and documentation such as maps, specific information, contact Leslie Threatened species means any species bibliographic references, methods used Ellwood at (303) 236–4747. that is likely to become an endangered to gather and analyze the data, and/or Wyoming toad: Brian Kelly, Wyoming species within the foreseeable future copies of any pertinent publications, Field Supervisor, U.S. Fish and Wildlife throughout all or a significant portion of reports, or letters by knowledgeable Service, Attention: Wyoming toad 5- its range. sources. We specifically request year Review, 5353 Yellowstone Road, How Do We Determine Whether a information regarding data from any Suite 308A, Cheyenne, Wyoming 82009; Species Is Endangered or Threatened? systematic surveys, as well as any telephone (307) 772 2374. For species- studies or analysis of data that may specific information, contact Jan McKee Section 4(a)(1) of the Act establishes show population size or trends; at (307) 772 2374, extension 234. that we determine whether a species is information pertaining to the biology or Lepidium barnebyanum, Primula endangered or threatened based on one ecology of the species; information maguirei, Schoenocrambe barnebyi, or more of the five following factors: (A) regarding the effects of current land Schoenocrambe argillacea, and The present or threatened destruction, management on population distribution Schoenocrambe suffrutescens: Larry modification, or curtailment of its and abundance; information on the Crist, Utah Field Supervisor, U.S. Fish habitat or range; (B) Overutilization for current condition of habitat; and recent and Wildlife Service, Attention: commercial, recreational, scientific, or information regarding conservation Lepidium barnebyanum, Primula educational purposes; (C) Disease or measures that have been implemented maguirei, Schoenocrambe barnebyi, predation; (D) The inadequacy of to benefit the species. Additionally, we Schoenocrambe argillacea, or existing regulatory mechanisms; or (E) specifically request information Schoenocrambe suffrutescens 5-year Other natural or manmade factors regarding the current distribution of Review, 2369 West Orton Circle, Suite affecting its continued existence. populations and evaluation of threats 50, West Valley City, Utah 84119; Section 4(a)(1) of the Act requires that faced by the species in relation to the telephone (801) 975–3330. For species- our determination be made on the basis five listing factors (as defined in section specific information, contact Larry of the best scientific and commercial 4(a)(1) of the Act) and the species’ listed England (801) 975–3330, extension 138. data available. status as judged against the definition of Penstemon haydenii: John Cochnar, threatened or endangered. Assistant Project Leader, U.S. Fish and What Could Happen as a Result of Our Our practice is to make information, Wildlife Service, Attention: Penstemon Review? including names and home addresses of haydenii 5-year Review, 203 West For each species under review, if we respondents, available for public Second Street, Federal Building, Second find new information that indicates a review. Before including your address, Floor, Grand Island, 68801; change in classification may be telephone number, e-mail address, or telephone (308) 382–6468. For species- warranted, we may propose a new rule other personal identifying information specific information, contact Martha that could do one of the following: (a) in your response, you should be aware Tacha at (308) 382–6468, extension 19. Reclassify the species from threatened that your entire submission—including Eriogonum pelinophilum and to endangered (uplist); (b) reclassify the your personal identifying information— Phacelia formosula: Al Pfister, Western species from endangered to threatened may be made publicly available at any Colorado Project Leader, U.S. Fish and (downlist); or (c) remove the species time. While you can ask us in your Wildlife Service, Attention: Eriogonum from the List (delist). If we determine submission to withhold your personal pelinophilum or Phacelia formosula 5- that a change in classification is not identifying information from public year Review, 764 Horizon Drive, necessary, then the species will remain review, we cannot guarantee that we Building B, Grand Junction, CO 81506– on the List under its current status. will be able to do so. 3946; telephone (970) 243–2778. For Mail or hand-deliver information on species-specific information, contact Authority: This document is published under the authority of the Endangered the following species to the U.S. Fish Ellen Mayo at (970) 243–2778, extension Species Act of 1973, as amended (16 U.S.C. and Wildlife Service, Field Supervisor, 14. 1531 et seq.). at the corresponding address below. You also may view information we How Are These Species Currently Dated: July 16, 2008. receive in response to this notice, as Listed? James J. Slack, well as other documentation concerning Table 1 provides current listing Deputy Regional Director, Denver, Colorado. these species that is contained in our information. The List, covering all listed [FR Doc. E8–23232 Filed 10–3–08; 8:45 am] files, at the following locations by species, is available on our Internet site BILLING CODE 4310–55–P

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DEPARTMENT OF THE INTERIOR hours. You may also view the The Fender’s blue butterfly is documents on the Internet at http:// threatened due to few populations, low Fish and Wildlife Service www.fws.gov/oregonfwo/species/. numbers, and habitat fragmentation. [FWS–R1–ES–2008–N00172; 10120–1112– FOR FURTHER INFORMATION CONTACT: For Conserving existing populations and 0000–F2] further information or to receive copies actively maintaining, enhancing, and of the documents on CD ROM, please expanding the size of existing butterfly- Proposed Willamette Valley Native contact Richard Szlemp at (503) 231– occupied habitat patches is essential for Prairie Habitat Programmatic Safe 6179. recovery. In addition, reestablishing Harbor Agreement for the Fender’s habitat connectivity by creating Blue Butterfly in Benton, Lane, Linn, SUPPLEMENTARY INFORMATION: Under a stepping stones of habitat between Marion, Polk, and Yamhill Counties, Safe Harbor Agreement, participating existing butterfly populations will OR landowners voluntarily undertake improve the prospects for individuals to management activities on their property reach other suitable 9 habitats for AGENCY: Fish and Wildlife Service, to enhance, restore, or maintain habitat reproduction, dispersal, and Interior. benefiting species listed under the Act recolonization (71 FR 63874). This ACTION: Notice of availability; receipt of (16 U.S.C. 1531 et seq.). Safe Harbor Agreement is intended to encourage application. Agreements, and the subsequent non-federal landowners to undertake SUMMARY: The U.S. Fish and Wildlife enhancement of survival permits that proactive conservation and restoration Service (Service) proposes to issue itself are issued pursuant to section actions for the Fender’s blue butterfly an enhancement of survival permit 10(a)(1)(A) of the Act, encourage private (and Kincaid’s lupine). pursuant to section 10(a)(1)(A) of the and other non-federal property owners Site-specific plans will be developed Endangered Species Act of 1973, as to implement conservation efforts for for each property to be enrolled. In amended (Act), for a programmatic Safe listed species by assuring that they will addition to the monitoring, one or more Harbor Agreement (Agreement). The not be subjected to increased property of the following on-the-ground activities proposed term of the Agreement is 15 use restrictions as a result of their efforts will be included in the plans: (a) years, and the proposed term of the to attract listed species to their property, Removal of invasive, non-native permit is 25 years. In accordance with or to increase the numbers or herbaceous plants and woody regulation, the Service is completing the distribution of listed species already on vegetation; (b) revegetation with native application process for this proposed their property. Application species; (c) collection of Kincaid’s permit. The requested permit would requirements and issuance criteria for lupine seed and plant material for use authorize the Service to extend enhancement of survival permits in species recovery efforts; (d) incidental take coverage with through Safe Harbor Agreements are reintroduction and augmentation of assurances to eligible landowners who found in 50 CFR 17.22(c). These permits Kincaid’s lupine; and (e) reducing are willing to carry out habitat allow future incidental take of covered threats. Environmental baseline management measures that would species above the mutually agreed upon conditions for the Fender’s blue benefit the federally-listed endangered baseline conditions for those species in butterfly will be established on each Fender’s blue butterfly (Icaricia accordance with the terms of the permit property as lands are enrolled. The programmatic nature of the icarioides fenderi) and the threatened and accompanying agreement. Agreement provides eligible landowners Kincaid’s lupine (Lupinus sulphureus The Service has developed the with a streamlined process for obtaining ssp. kincaidii) by enrolling them under proposed Agreement for the assurances that specified actions taken the Agreement as Cooperators through conservation of the Fender’s blue to benefit the Fender’s blue butterfly issuance of Certificates of Inclusion. The butterfly. The Fender’s blue butterfly will not result in additional regulatory covered area or geographic scope of this was listed as an endangered species by obligations under the Act. Without the Agreement includes the known and the Service in 2000 (65 FR 3875). As of regulatory assurances provided through potential range of the Fender’s blue the time of its listing, it was known to the Agreement and permit, landowners butterfly, which occurs on prairie occupy only 32 sites across 408 acres may otherwise be unwilling or reluctant habitat within Benton, Lane, Linn, (165 hectares). Of the 32 sites found to to engage in activities that would benefit Marion, Polk, and Yamhill counties of support Fender’s blue butterfly, the Fender’s blue butterfly on their Oregon. We request comments from the Kincaid’s lupine (Lupinus sulphureus properties. public on the permit application, ssp. kincaidii) has been documented as A draft Environmental Action proposed Agreement and related co-occurring as a larval host plant at 27 Statement now available for public documents, which are available for of the sites (65 FR 3875). review (see ADDRESSES ) indicates that review (see ADDRESSES below). The geographical area covered by this the proposed Agreement and permit DATES: Comments must be received Agreement includes the known and decision may be eligible for a categorical from interested parties on or before potential range of the Fender’s blue exclusion under the National November 5, 2008. butterfly within the Willamette Valley Environmental Policy Act of 1969 ADDRESSES: You may submit your in Benton, Lane, Linn, Marion, Polk, (NEPA; 42 U.S.C. 4321 et seq.). written comments to: Project Leader, and Yamhill counties of Oregon. The Service will evaluate the permit Fish and Wildlife Service, 2600 S.E. Properties that are eligible for application, associated documents, and 98th Ave., Suite 100, Portland, Oregon enrollment are non-Federal lands where comments submitted thereon to 97266, or facsimile (503) 231–6195. the butterfly occurs or could occur determine whether the permit Include your name and address in your through colonization, translocation, or application meets the requirements of comments and refer to the ‘‘Willamette reintroduction. Activities under the section 10(a) of the Act and the Valley Programmatic Safe Harbor Agreement are also expected to benefit requirements under NEPA. All Agreement.’’ Copies of the draft Kincaid’s lupine, a federally-listed as comments received, including names documents are available for public threatened plant. However, Kincaid’s and addresses, will become part of the inspection, by appointment, at the lupine is not included as a ‘‘covered administrative record and will be above address during normal business species.’’ available for review pursuant to section

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10(c) of the Act. Individual respondents The plat represents the dependent consideration of the protest. We will not may request that we withhold their resurvey of lands held in trust by the officially file the plat until the day after home addresses and telephone numbers United States of America for the Tunica- we accepted or dismissed all protests to the extent allowable by law. If you Biloxi Indian Tribe in Township 2 and they have become final, including wish us to withhold this personal North, Range 3 East of the Louisiana decisions on appeals. Copies of the plat information, you must state this Meridian, Louisiana. The survey was will be made available upon request and prominently at the beginning of your accepted on September 15, 2008. prepayment of the reproduction fees. comment. Anonymous comments will We will place a copy of the plat we Dated: September 16, 2008. not be considered. All submissions from described in the open files. It will be Ronald J. Eberle, organizations or businesses, and from available to the public as a matter of Acting Chief Cadastral Surveyor. individuals identifying themselves as information. If BLM receives a protest representatives or officials of against this survey, as shown on the [FR Doc. E8–23510 Filed 10–3–08; 8:45 am] organizations or businesses, are plat, prior to the date of official filing, BILLING CODE 4310–GJ–P available for public inspection in their we will stay the filing pending our entirety. consideration of the protest. We will not DEPARTMENT OF THE INTERIOR If we determine that all requirements officially file the plat until the day after are met, we will sign the Agreement and we accepted or dismissed all protests National Park Service issue an enhancement of survival permit and they have become final, including under section 10(a)(1)(A) of the Act to decisions on appeals. Copies of the plat Special Resource Study, the Service’s Oregon Fish and Wildlife will be made available upon request and Environmental Impact Statement, Office (OFWO). The OFWO will serve as prepayment of the reproduction fees. Blackstone River Valley, the permit holder, and may extend Dated: September 16, 2008. Massachusetts and Rhode Island coverage to interested, eligible Ronald J. Eberle, AGENCY: landowners for the take of Fender’s blue National Park Service, Acting Chief Cadastral Surveyor. butterfly, incidental to otherwise lawful Department of the Interior. activities in accordance with the terms [FR Doc. E8–23509 Filed 10–3–08; 8:45 am] ACTION: Notice of Intent to Prepare an of the Agreement, Certificates of BILLING CODE 4310–GJ–P Environmental Impact Statement, Inclusion and permit. Please note that Blackstone River Valley Special the Service will not be receiving any Resource Study. DEPARTMENT OF THE INTERIOR assurances as holder of the permit, but SUMMARY: In accordance with section permitted landowners will. This notice Bureau of Land Management 102(2)(c) of the National Environmental is provided pursuant to section 10(c) of Policy Act of 1969, the National Park the Act and NEPA regulations (40 CFR [ES–956–1420–BK–TRST, ES–055523 Group 20, North Carolina] Service (NPS) is preparing an 1506.6). Environmental Impact Statement (EIS) Dated: August 8, 2008. Eastern States: Filing of Plat of Survey for a Special Resource Study (SRS) of David J. Wesley, landscape features and sites that AGENCY: Bureau of Land Management, Deputy Regional Director, U.S. Fish and contribute to the understanding of the Wildlife Service, Region 1, Portland, Oregon. Interior. Blackstone River Valley National [FR Doc. E8–23556 Filed 10–3–08; 8:45 am] ACTION: Notice of Filing of Plat of Heritage Corridor as the birthplace of BILLING CODE 4310–55–P Survey; North Carolina. the Industrial Revolution in the United States. This study was mandated by SUMMARY: The Bureau of Land Public Law 109–338, the ‘‘John H. DEPARTMENT OF THE INTERIOR Management (BLM) will file the plat of Chafee Blackstone River Valley National survey of the lands described below in Heritage Corridor Reauthorization Act of Bureau of Land Management the BLM-Eastern States, Springfield, 2006.’’ Virginia, 30 calendar days from the date The Blackstone River Valley National [ES–956–1420–BK–TRST, ES–055522 Group of publication in the Federal Register. 62, Louisiana] Heritage Corridor encompasses 24 Contact Information: Bureau of Land communities located along the Eastern States: Filing of Plat of Survey Management, 7450 Boston Boulevard, Blackstone River and its tributaries Springfield, Virginia 22153. Attn: spanning from Worcester, MA to AGENCY: Bureau of Land Management, Cadastral Survey. Providence, RI. Within the boundaries Interior. SUPPLEMENTARY INFORMATION: The of the heritage corridor lie ACTION: Notice of Filing of Plat of survey was requested by the Bureau of approximately 400,000 acres of land and Survey; Louisiana. Indian Affairs. over 500,000 people. The waters of the The plat represents the dependent Blackstone River powered the Slater SUMMARY: The Bureau of Land resurvey of a portion of the Cathcart Mill, a National Historic Landmark, in Management (BLM) will file the plat of Tract, lands held in trust by the United Pawtucket, RI, America’s first successful survey of the lands described below in States of America for the Eastern Band textile mill. This creative spark the BLM-Eastern States, Springfield, of the Cherokee Indians in Swain contributed to the nation’s historic Virginia, 30 calendar days from the date County, North Carolina. The survey was evolution as a global industrial and of publication in the Federal Register. accepted on September 10, 2008. technological power. Contact Information: Bureau of Land We will place a copy of the plat we The Blackstone River Valley National Management, 7450 Boston Boulevard, described in the open files. It will be Heritage Corridor was established by Springfield, Virginia 22153. Attn: available to the public as a matter of Public Law 99–647 in November 1986 Cadastral Survey. information. If BLM receives a protest for the purpose of preserving and SUPPLEMENTARY INFORMATION: The against this survey, as shown on the interpreting for educational and survey was requested by the Bureau of plat, prior to the date of official filing, inspirational benefit of present and Indian Affairs. we will stay the filing pending our future generations the unique and

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significant contributions to our national SUMMARY: Pursuant to the National long-term conservation of resources. A heritage of certain historic and cultural Environmental Policy Act of 1969, 42 permanent NPS presence would be lands, waterways and structures within U.S.C. 4332(2)(C), the National Park assured under this alternative, which is the states of Massachusetts and Rhode Service announces the availability of a also the environmentally preferred Island. The heritage corridor was to Final Environmental Impact Statement alternative. provide a management framework to for the Resource Protection Study for DATES: The National Park Service will assist the states of Massachusetts and Curecanti National Recreation Area, execute a Record of Decision (ROD) no Rhode Island and their units of local Colorado. sooner than 30 days following government in the development and Alternatives Evaluated publication by the Environmental implementation of integrated cultural, Protection Agency of the Notice of historical and land resource Alternative 1: No Action (Continuation Availability of the Final Environmental management programs in order to of Existing Conditions) Impact Statement. retain, enhance and interpret the Under Alternative 1, the No Action ADDRESSES: Information will be significant values of the lands, waters Alternative, NPS would continue to available for public inspection online at and structures of the corridor. manage the natural, cultural, and http://parkplanning.nps.gov/cure; in the The purpose of this Special Resource recreational resources of Curecanti office of the Superintendent, Curecanti Study/EIS is to provide Congress with National Recreation Area (NRA), and National Recreation Area, 102 Elk information about the national associated facilities, pursuant to Creek, Gunnison, CO 81230, Tel: (970) significance, suitability, and feasibility Reclamation law, NPS law, the 1965 641–2337; at the Montrose Public Lands of sites and landscape features within Memorandum of Agreement between Center, 2505 South Townsend Avenue, the corridor that are associated with NPS and Reclamation (1965 MOA), and Montrose, CO 81401, Tel: (970) 240– American industrial history for possible other applicable laws and regulations. 5300; and at the following locations: inclusion in the National Park System. Reclamation would continue to manage Colorado State University Library in The study will develop alternative the three dams and reservoirs, power Fort Collins, Crawford Public Library, options for management and plants, access roads, and other related Delta Public Library, Gunnison County interpretation of the sites and landscape facilities, to meet the purposes of the Library (Crested Butte and Gunnison features under consideration. Colorado River Storage Project Act branches), Hotchkiss Public Library, The draft report of the study, with the (CRSP); would continue to manage the Mesa County Library in Grand Junction, draft EIS, is expected to be completed East Portal area to meet the purposes of Montrose Public Library, Paonia Public and available for public review by late the Uncompahgre Project; and would Library, and Western State College 2009. continue to have unrestricted access to Library in Gunnison. ADDRESSES: Additional information their lands and land interests, water and FOR FURTHER INFORMATION CONTACT: about the study/EIS may be obtained water interests, and facilities; pursuant Connie Rudd, Superintendent, online at http://www.nps.gov/blac and to Reclamation law, the 1965 MOA, and Curecanti National Recreation Area, 102 http://parkplanning.nps.gov. Requests other applicable laws and regulations. Elk Creek, Gunnison, CO 81230; Tel: to be added to the project mailing list There would be no significant change in (970) 641–2337 x. 220; E-mail: should be directed to Ellen Carlson, the NRA boundary. However, a [email protected]. Project Manager, at the address below. permanent NPS presence would not be assured under this alternative. Dated: April 9, 2008. FOR FURTHER INFORMATION CONTACT: Rick M. Frost, Ellen Carlson, Project Manager, National Alternative 2: Proposed Action Acting Regional Director, Intermountain Park Service, Northeast Region, 15 State Under Alternative 2, the Proposed Region, National Park Service. Street, Boston, Massachusetts 02109, Action, NPS would manage the same 617–223–5048. Editorial Note: This document was natural, cultural, and recreational received by the Office of the Federal Register Dated: July 14, 2008. resources and facilities as Alternative 1, on September 29, 2008. Michael T. Reynolds, pursuant to Reclamation law, NPS law, [FR Doc. E8–23308 Filed 10–3–08; 8:45 am] Acting Regional Director, Northeast Region, including new legislation establishing BILLING CODE 4310–EX–M National Park Service. the NRA with 10,040 acres of additional [FR Doc. E8–23307 Filed 10–3–08; 8:45 am] agreed-upon neighboring agency lands, BILLING CODE 4312–52–M a revised MOA with Reclamation, and INTERNATIONAL TRADE other applicable laws and regulations. COMMISSION Reclamation would manage their same DEPARTMENT OF THE INTERIOR facilities and areas of responsibility as [Investigation Nos. 701–TA–454 and 731– Alternative 1, and would have TA–1144 (Final)] National Park Service unrestricted access to their lands and land interests, water and water interests, Welded Stainless Steel Pressure Pipe Resource Protection Study, Final and facilities, pursuant to Reclamation From China Environmental Impact Statement, law, the revised NOA, and other Curecanti National Recreation Area, AGENCY: United States International applicable laws and regulations. NPS Colorado Trade Commission. would be authorized to work in ACTION: Scheduling of the final phase of AGENCY: National Park Service, partnership with private landowners countervailing duty and antidumping Department of the Interior. within a Conservation Opportunity Area investigations. of 24,300 acres outside the NRA ACTION: Notice of Availability of the boundary, to implement a variety of SUMMARY: The Commission hereby gives Final Environmental Impact Statement tools, including acquiring interests in notice of the scheduling of the final (EIS) for the Resource Protection Study land from willing landowners, such as phase of countervailing duty (RPS), Curecanti National Recreation fee simple acquisition and conservation investigation No. 701–TA–454 (Final) Area. easements, which would promote the under section 705(b) of the Tariff Act of

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1930 (19 U.S.C. 1671d(b)) (the Act) and result of affirmative preliminary thereafter, pursuant to section 207.22 of the final phase of antidumping determinations by the Department of the Commission’s rules. investigation No. 731–TA–1144 (Final) Commerce that certain benefits which Hearing. The Commission will hold a under section 735(b) of the Act (19 constitute subsidies within the meaning hearing in connection with the final U.S.C. 1673d(b)) to determine whether of section 703 of the Act (19 U.S.C. phase of these investigations beginning an industry in the United States is 1671b) are being provided to at 9:30 a.m. on January 13, 2009, at the materially injured or threatened with manufacturers, producers, or exporters U.S. International Trade Commission material injury, or the establishment of in China of welded stainless steel Building. Requests to appear at the an industry in the United States is pressure pipe, and that such products hearing should be filed in writing with materially retarded, by reason of are being sold in the United States at the Secretary to the Commission on or subsidized and less-than-fair-value less than fair value within the meaning before January 7, 2009. A nonparty who imports from China of welded stainless of section 733 of the Act (19 U.S.C. has testimony that may aid the steel pressure pipe, provided for in 1673b). The investigations were Commission’s deliberations may request subheadings 7306.40.50 and 7306.40.10 requested in a petition filed on January permission to present a short statement of the Harmonized Tariff Schedule of 30, 2008, by Bristol Metals (Bristol, TN), at the hearing. All parties and the United States.1 Felker Brothers Corp. (Marshfield, WI), nonparties desiring to appear at the For further information concerning Marcegaglia USA Inc. (Munhall, PA), hearing and make oral presentations the conduct of this phase of the Outoukumpu Stainless Pipe, Inc. should attend a prehearing conference investigations, hearing procedures, and (Schaumburg, IL), and the United Steel to be held at 9:30 a.m. on January 9, rules of general application, consult the Workers of America (Pittsburgh, PA). 2009, at the U.S. International Trade Commission’s Rules of Practice and Participation in the investigations and Commission Building. Oral testimony Procedure, part 201, subparts A through public service list. Persons, including and written materials to be submitted at E (19 CFR part 201), and part 207, industrial users of the subject the public hearing are governed by subparts A and C (19 CFR part 207). merchandise and, if the merchandise is sections 201.6(b)(2), 201.13(f), and DATES: Effective Date: September 2, sold at the retail level, representative 207.24 of the Commission’s rules. 2008. consumer organizations, wishing to Parties must submit any request to participate in the final phase of these present a portion of their hearing FOR FURTHER INFORMATION CONTACT: investigations as parties must file an testimony in camera no later than 7 Elizabeth Haines (202–205–3200), Office entry of appearance with the Secretary business days prior to the date of the of Investigations, U.S. International to the Commission, as provided in hearing. Trade Commission, 500 E Street, SW., section 201.11 of the Commission’s Written submissions. Each party who Washington, DC 20436. Hearing- rules, no later than 21 days prior to the is an interested party shall submit a impaired persons can obtain hearing date specified in this notice. A prehearing brief to the Commission. information on this matter by contacting party that filed a notice of appearance Prehearing briefs must conform with the the Commission’s TDD terminal on 202– during the preliminary phase of the provisions of section 207.23 of the 205–1810. Persons with mobility investigations need not file an Commission’s rules; the deadline for impairments who will need special additional notice of appearance during filing is January 6, 2009. Parties may assistance in gaining access to the this final phase. The Secretary will also file written testimony in connection Commission should contact the Office maintain a public service list containing with their presentation at the hearing, as of the Secretary at 202–205–2000. the names and addresses of all persons, provided in section 207.24 of the General information concerning the or their representatives, who are parties Commission’s rules, and posthearing Commission may also be obtained by to the investigations. Limited disclosure briefs, which must conform with the accessing its internet server (http:// of business proprietary information provisions of section 207.25 of the www.usitc.gov). The public record for (BPI) under an administrative protective Commission’s rules. The deadline for these investigations may be viewed on order (APO) and BPI service list. filing posthearing briefs is January 23, the Commission’s electronic docket Pursuant to section 207.7(a) of the 2009; witness testimony must be filed (EDIS) at http://edis.usitc.gov. Commission’s rules, the Secretary will no later than three days before the SUPPLEMENTARY INFORMATION: make BPI gathered in the final phase of hearing. In addition, any person who Background. The final phase of these these investigations available to has not entered an appearance as a party investigations is being scheduled as a authorized applicants under the APO to the investigations may submit a issued in the investigations, provided written statement of information 1 For purposes of these investigations, the that the application is made no later pertinent to the subject of the Department of Commerce has defined the subject than 21 days prior to the hearing date investigations, including statements of merchandise as circular welded austenitic stainless support or opposition to the petition, on pressure pipe not greater than 14 inches in outside specified in this notice. Authorized diameter. This merchandise includes, but is not applicants must represent interested or before January 23, 2009. On February limited to, the American Society for Testing and parties, as defined by 19 U.S.C. 1677(9), 11, 2009, the Commission will make Materials (‘‘ASTM’’) A–312 or ASTM A–778 who are parties to the investigations. A available to parties all information on specifications, or comparable domestic or foreign party granted access to BPI in the which they have not had an opportunity specifications. ASTM A–358 products are only included when they are produced to meet ASTM preliminary phase of the investigations to comment. Parties may submit final A–312 or ASTM A–778 specifications, or need not reapply for such access. A comments on this information on or comparable domestic or foreign specifications. separate service list will be maintained before February 13, 2009, but such final Excluded from the scope are: (1) Welded stainless by the Secretary for those parties comments must not contain new factual mechanical tubing, meeting ASTM A–554 or comparable domestic or foreign specifications; (2) authorized to receive BPI under the information and must otherwise comply boiler, heat exchanger, superheater, refining APO. with section 207.30 of the Commission’s furnace, feedwater heater, and condenser tubing, Staff report. The prehearing staff rules. All written submissions must meeting ASTM A–249, ASTM A–688 or comparable report in the final phase of these conform with the provisions of section domestic or foreign specifications; and (3) specialized tubing, meeting ASTM A–269, ASTM investigations will be placed in the 201.8 of the Commission’s rules; any A–270 or comparable domestic or foreign nonpublic record on December 18, 2008, submissions that contain BPI must also specifications. and a public version will be issued conform with the requirements of

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sections 201.6, 207.3, and 207.7 of the and Shell owned and operated the of Justice Web site: http:// Commission’s rules. The Commission’s facility until it sold it to Merit Energy www.usdoj.gov/enrd/ rules do not authorize filing of Company, LLC (‘‘Merit’’) in December Consent_Decrees.html. A copy of the submissions with the Secretary by 2003. The facility includes a natural gas Consent Decree may also be obtained by facsimile or electronic means, except to sweetening unit that is used to separate mail from the Department of Justice the extent permitted by section 201.8 of sulfur-containing compounds from Consent Decree Library, P.O. Box 7611, the Commission’s rules, as amended, 67 natural gas extracted from nearby Washington, DC 20044–7611 or by FR 68036 (November 8, 2002). Even production wells. The facility also has faxing or e-mailing a request to Tonia where electronic filing of a document is two Claus sulfur recovery units that Fleetwood ([email protected]), permitted, certain documents must also recover elemental sulfur from the fax no. (202) 514–0097, phone be filed in paper form, as specified in II concentrated sulfur-containing gases confirmation number (202) 514–1547. In (C) of the Commission’s Handbook on generated by the sweetening unit. requesting a copy from the Consent Electronic Filing Procedures, 67 FR The proposed Consent Decree would Decree Library, please enclose a check 68168, 68173 (November 8, 2002). resolve the claims alleged in the in the amount of $14.50 (58 pages at 25 Additional written submissions to the Complaint in exchange for the cents per page reproduction cost) Commission, including requests Defendants’ commitment to implement payable to the U.S. Treasury. pursuant to section 201.12 of the appropriate injunctive relief, pay a Maureen M. Katz, Commission’s rules, shall not be $500,000 civil penalty, and perform a $1 accepted unless good cause is shown for million Supplemental Environmental Assistant Chief, Environmental Enforcement Project. Among other things, the Section, Environment and Natural Resources accepting such submissions, or unless Division. the submission is pursuant to a specific injunctive relief provisions of the [FR Doc. E8–23423 Filed 10–3–08; 8:45 am] request by a Commissioner or Decree would require Merit to eliminate Commission staff. all routine emission of sulfur dioxide BILLING CODE 4410–15–P In accordance with sections 201.16(c) from the facility by September 1, 2009, either by shutting the facility down or and 207.3 of the Commission’s rules, DEPARTMENT OF JUSTICE each document filed by a party to the by installing and operating a separately- permitted acid gas injection control investigations must be served on all Office of Justice Programs other parties to the investigations (as system. The Decree also would impose identified by either the public or BPI strict limits on emissions from the [OJP (OJJDP) Docket No. 1490] service list), and a certificate of service facility in non-routine situations, such as during any control equipment Meeting of the Federal Advisory must be timely filed. The Secretary will Committee on Juvenile Justice not accept a document for filing without malfunction. Shell and Merit are jointly liable for payment of the $500,000 civil a certificate of service. AGENCY: Office of Juvenile Justice and penalty under the Decree. Finally, the Delinquency Prevention, Office of Authority: These investigations are being Decree would require Merit to perform Justice Programs, Justice. conducted under authority of title VII of the a Supplemental Environmental Project, Tariff Act of 1930; this notice is published at a cost of at least $1 million, that ACTION: Notice of Meeting. pursuant to section 207.21 of the would involve reducing air pollutant Commission’s rules. SUMMARY: The Office of Juvenile Justice emissions from gas-fired compressors at and Delinquency Prevention (OJJDP) is Issued: September 30, 2008. several other gas handing facilities near announcing the fall meeting of the By order of the Commission. the Manistee natural gas processing Federal Advisory Committee on Marilyn R. Abbott, facility. Juvenile Justice (FACJJ), which will be Secretary to the Commission. The Department of Justice will receive comments relating to the Consent held in San Diego, CA October 19–21, [FR Doc. E8–23457 Filed 10–3–08; 8:45 am] 2008. BILLING CODE 7020–02–P Decree for a period of thirty (30) days from the date of this publication. Dates and Locations: The meeting Comments should be addressed to the will be held at the Courtyard Marriot San Diego-Old Town, 2345 Jefferson DEPARTMENT OF JUSTICE Assistant Attorney General, Environment and Natural Resources Street, San Diego, CA 92110 at the Division, and mailed either following times: Sunday, October 19, Notice of Lodging of Consent Decree 2008, 4 to 5:15 p.m,; Monday, October Under the Clean Air Act electronically to pubcomment- [email protected] or in hard copy to 20, 2008, 8:30 a.m. to 12:15 p.m. and Pursuant to 28 CFR 50.7, notice is P.O. Box 7611, U.S. Department of 1:45 to 5:30 p.m; and Tuesday, October hereby given that, on September 30, Justice, Washington, DC 20044–7611. 20, 2008; 8 to 11 a.m.. The meeting is 2008, a proposed Consent Decree in Comments should refer to United States open to the public. On Sunday, October United States v. Merit Energy Company, v. Merit Energy Company, LLC and Shell 19th, there will be a meeting of the LLC and Shell Exploration & Production Exploration & Production Co., Civil FACJJ steering sub-committee from 5:30 Co., Civil Action No. 1:08-cv-917 (W.D. Action No. 1:08-cv-917 (W.D. Mich.) to 8 p.m. that will be open to the public. Mich.) was lodged with the United and D.J. Ref. No. 90–5–2–1–09003. However, the FACJJ sub-committee and States District Court for the Western The Consent Decree may be examined work group meetings scheduled for District of Michigan. The Consent at: (1) The offices of the United States Sunday, October 19, 2008 from 3 to Decree addresses alleged violations of Attorney, 330 Ionia Avenue, NW., Suite 4 p.m. and on Monday, October 20, the Clean Air Act, 42 U.S.C. 7401– 501, Grand Rapids, Michigan; and (2) 2008 from 12:15 p.m. to 1:45 p.m are 7671q, and its implementing regulations the offices of the U.S. Environmental closed to the public. at a natural gas processing facility that Protection Agency, Region 5, 77 West FOR FURTHER INFORMATION CONTACT: is located approximately eight miles Jackson Boulevard, 14th Floor, Chicago, Robin Delany-Shabazz, Designated northeast of Manistee, Michigan. Shell Illinois. During the public comment Federal Official, OJJDP, Robin.Delany- Exploration & Production Co. (‘‘Shell’’) period, the Consent Decree may also be [email protected], or 202–307–9963. constructed the facility in the late 1970s examined on the following Department [Note: This is not a toll-free number.]

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SUPPLEMENTARY INFORMATION: The in Work Groups, Report Outs, Next to be considered as part of the Federal Advisory Committee on Steps, and Close. (Open Session); Committee’s information gathering Juvenile Justice (FACJJ), established 3. Tuesday, April 8, 2008. process. ACRS reviews do not normally pursuant to Section 3(2)A of the Federal • 8 a.m.–11 a.m. Call to Order; encompass matters pertaining to Advisory Committee Act (5 U.S.C. Completion of Discussion of Reports; environmental impacts other than those App.2) will meet to carry out its Presentation and Discussion, related to radiological safety. advisory functions under Section ‘‘Developing DMC Action Plans’’; The ACRS meetings are not 223(f)(2)(C–E) of the Juvenile Justice and Summary and Adjournment. (Open adjudicatory hearings such as those Delinquency Prevention Act of 2002. Session). conducted by the NRC’s Atomic Safety The FACJJ is composed of one For security purposes, members of the and Licensing Board Panel as part of the representative from each state and FACJJ and of the public who wish to Commission’s licensing process. territory. FACJJ duties include: attend, must pre-register online at Reviewing Federal policies regarding http://www.facjj.org no later than General Rules Regarding ACRS Full juvenile justice and delinquency Tuesday, October 14, 2008. Should Committee Meetings prevention; advising the OJJDP problems arise with web registration, An agenda will be published in the Administrator with respect to particular call Daryel Dunston at 240–221–4343. Federal Register for each full functions and aspects of OJJDP; and [Note: these are not toll-free telephone Committee meeting. There may be a advising the President and Congress numbers.] need to make changes to the agenda to with regard to State perspectives on the Written Comments facilitate the conduct of the meeting. operation of OJJDP and Federal The Chairman of the Committee is legislation pertaining to juvenile justice Interested parties may submit written empowered to conduct the meeting in a and delinquency prevention. More comments by Tuesday, October 14, manner that, in his/her judgment, will information, including a member list, 2008, to Robin Delany-Shabazz, facilitate the orderly conduct of may be found at http://www.facjj.org. Designated Federal Official, OJJDP, at business, including making provisions For security purposes, members of the [email protected] or by to continue the discussion of matters public who wish to attend open sessions fax to 202–354–4063.[Note: These are not completed on the scheduled day on should register online at http:// not toll-free numbers.] No oral another day of the same meeting. www.facjj.org. Should problems arise presentations will be permitted, Persons planning to attend the meeting with web registration, call Daryel however, written questions and may contact the Designated Federal Dunston at 240–221–4343. [Note: this is comments from attending members of Officer (DFO) specified in the Federal not a toll-free telephone number.] the public may be invited. Register Notice prior to the meeting to Notification of intent to attend should Dated: September 30, 2008. be advised of any changes to the agenda be sent by October 14, 2008. Note: Photo J. Robert Flores, that may have occurred. identification will be required for Administrator, Office of Juvenile Justice and The following requirements shall admission. Additional identification Delinquency Prevention. apply to public participation in ACRS documents may be required. [FR Doc. E8–23531 Filed 10–3–08; 8:45 am] full Committee meetings: Agenda BILLING CODE 4410–18–P (a) Persons who plan to submit written comments at the meeting should 1. Sunday, October 19, 2008. provide 35 copies to the DFO at the • 3 p.m.–4 p.m. Meetings of Planning NUCLEAR REGULATORY beginning of the meeting. Persons who Sub Committee and Annual Report Sub COMMISSION cannot attend the meeting, but wish to Committee Work Groups (Closed submit written comments regarding the Meetings); Advisory Committee on Reactor agenda items may do so by sending a • 4 p.m.–5:15 p.m. Call to Order of Safeguards; Procedures for Meetings readily reproducible copy addressed to FACJJ, Preview of the Agenda; Remarks the DFO specified in the Federal of OJJDP Administrator, Overview of the Background Register Notice, care of the Advisory 2009 Report Drafts, Small Group This notice describes procedures to be Committee on Reactor Safeguards, U.S. Assignments; and Close. (Open followed with respect to meetings Nuclear Regulatory Commission, Session); conducted by the U.S. Nuclear Washington, DC 20555–0001. • 5:30 p.m.–8 p.m. Meeting of the Regulatory Commission’s (NRC’s) Comments should be limited to items Steering Sub Committee. (Open Advisory Committee on Reactor being considered by the Committee. Meeting); Safeguards (ACRS) pursuant to the Comments should be in the possession 2. Monday, October 20, 2008. Federal Advisory Committee Act of the DFO 5 days prior to the meeting • 8:30 a.m.–12:15 p.m. Call to Order; (FACA). These procedures are set forth to allow time for reproduction and Steering Sub Committee Report Out; so that they may be incorporated by distribution. Discussion of the Summary Report of reference in future notices for (b) Persons desiring to make oral Responses to the FACJJ 2008 Request for individual meetings. statements at the meeting should make Information, Instructions for Review of The ACRS is a statutory group a request to do so to the DFO. If Report Draft Discussion; Review of established by Congress to review and possible, the request should be made 5 Report Draft in Work Groups; and report on nuclear safety matters and days before the meeting, identifying the Statements from Nominees for Officers applications for the licensing of nuclear topic(s) on which oral statements will and Elections. (Open Session); facilities. The Committee’s reports be made and the amount of time needed • 12:15 p.m–1:45 p.m. Working become a part of the public record. for presentation so that orderly Lunch/Sub Committee Meetings (Closed The ACRS meetings are conducted in arrangements can be made. The Session); accordance with FACA; they are Committee will hear oral statements on • 1:45 p.m.–5:30 p.m. Sub Committee normally open to the public and provide topics being reviewed at an appropriate Report Outs; Further Review and opportunities for oral or written time during the meeting as scheduled by Discussion of 2009 Annual Report Draft statements from members of the public the Chairman.

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(c) Information regarding topics to be reading-rm/adams.html or http:// reproduction facilities may not be discussed, changes to the agenda, www.nrc.gov/reading-rm/doc- available at a reasonable cost. whether the meeting has been canceled collections/ (ACRS Mtg schedules/ Accordingly, 50 copies of the materials or rescheduled, and the time allotted to agendas). to be used during the meeting should be present oral statements can be obtained (f) Video teleconferencing service is provided for distribution at such by contacting the DFO. available for observing open sessions of meetings. (d) The use of still, motion picture, ACRS meetings. Those wishing to use this service for observing ACRS Special Provisions When Proprietary and television cameras will be Sessions Are To Be Held permitted at the discretion of the meetings should contact Mr. Theron Chairman and subject to the condition Brown, ACRS Audio Visual Specialist, If it is necessary to hold closed that the use of such equipment will not (301–415–8066) between 7:30 a.m. sessions for the purpose of discussing interfere with the conduct of the and3:45 p.m. Eastern Time at least 10 matters involving proprietary meeting. The DFO will have to be days before the meeting to ensure the information, persons with agreements notified prior to the meeting and will availability of this service. Individuals permitting access to such information authorize the use of such equipment or organizations requesting this service may attend those portions of the ACRS after consultation with the Chairman. will be responsible for telephone line meetings where this material is being The use of such equipment will be charges and for providing the discussed upon confirmation that such restricted as is necessary to protect equipment and facilities that they use to agreements are effective and related to proprietary or privileged information establish the video teleconferencing the material being discussed. link. The availability of video that may be in documents, folders, etc., The DFO should be informed of such teleconferencing services is not in the meeting room. Electronic an agreement at least 5 working days guaranteed. recordings will be permitted only prior to the meeting so that it can be during those portions of the meeting ACRS Subcommittee Meetings confirmed, and a determination can be that are open to the public. In accordance with the revised FACA, made regarding the applicability of the (e) A transcript will be kept for certain the agency is no longer required to agreement to the material that will be open portions of the meeting and will be apply the FACA requirements to discussed during the meeting. The available in the NRC Public Document meetings conducted by the minimum information provided should Room (PDR), One White Flint North, Subcommittees of the NRC Advisory include information regarding the date Room O–1F21, 11555 Rockville Pike, Committees, if the Subcommittee’s of the agreement, the scope of material Rockville, MD 20852–2738. A copy of recommendations would be included in the agreement, the project the certified minutes of the meeting will independently reviewed by its parent or projects involved, and the names and be available at the same location 3 Committee. titles of the persons signing the months following the meeting. Copies The ACRS, however, chose to conduct agreement. Additional information may may be obtained upon payment of its Subcommittee meetings in be requested to identify the specific appropriate reproduction charges. ACRS accordance with the procedures noted agreement involved. A copy of the meeting agenda, transcripts, and letter above for ACRS full Committee executed agreement should be provided reports are available through the PDR at meetings, as appropriate, to facilitate to the DFO prior to the beginning of the [email protected], by calling the PDR at 1– public participation, and to provide a meeting for admittance to the closed 800–394–4209, or from the Publicly forum for stakeholders to express their session. Available Records System (PARS) views on regulatory matters being Meeting Dates for Calendar Year 2009 component of NRC’s document system considered by the ACRS. When (ADAMS) which is accessible from the Subcommittee meetings are held at The ACRS meeting dates for Calendar NRC Web site at http://www.nrc.gov/ locations other than at NRC facilities, Year 2009 are provided below:

Meeting number Dates Days

(No Meeting) ...... January 2009 ...... (No Meeting). 559 ...... February 5–7, 2009 ...... Thursday–Saturday. 560 ...... March 5–7, 2009 ...... Thursday–Saturday. 561 ...... April 2–4, 2009 ...... Thursday–Saturday. 562 ...... May 7–9, 2009 ...... Thursday–Saturday. 563 ...... June 3–5, 2009 ...... Wednesday–Friday. 564 ...... July 8–10, 2009 ...... Wednesday–Friday. (No Meeting) ...... August 2009 ...... (No Meeting). 565 ...... September 10–12, 2009 ...... Thursday–Saturday. 566 ...... October 8–10, 2009 ...... Thursday–Saturday. 567 ...... November 5–7, 2009 ...... Thursday–Saturday. 568 ...... December 3–5, 2009 ...... Thursday–Saturday.

Dated: September 30, 2008. NUCLEAR REGULATORY ACTION: Rescheduling of Public Meeting Annette L. Vietti-Cook, COMMISSION Associated with Notice of Issuance and Secretary of the Commission. Availability of Draft Regulatory Guide [FR Doc. E8–23539 Filed 10–3–08; 8:45 am] Issuance and Availability of Draft (DG) 5026. Regulatory Guide, DG–5026, and BILLING CODE 7590–01–P Cancellation of Public Meeting FOR FURTHER INFORMATION CONTACT: Valerie Barnes, U.S. Nuclear Regulatory AGENCY: Nuclear Regulatory Commission, Washington, DC 20555– Commission.

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0001, telephone: (301) 415–5944 or e- 1. Mail to: Rulemaking, Directives, NUCLEAR REGULATORY mail to [email protected]. and Editing Branch, Office of COMMISSION SUPPLEMENTARY INFORMATION: Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555– Advisory Committee on Reactor I. Introduction 0001. Safeguards (ACRS); Meeting of the The public meeting announced in 73 2. E-mail to: [email protected] ACRS Subcommittee on US–APWR; FR 56618 on September 29, 2008, has 3. Hand-deliver to: Rulemaking, Notice of Meeting been cancelled and will be rescheduled Directives, and Editing Branch, Office of The ACRS Subcommittee on the US– for a later date. The public should go to Administration, U.S. Nuclear Regulatory APWR will hold a meeting on October the U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, 23–24, 2008, Room T–2B3, 11545 Commission’s (NRC’s) NRC’s Web site at Rockville, Maryland 20852, between Rockville Pike, Rockville, Maryland. http://www.nrc.gov/public-involve.html 7:30 a.m. and 4:15 p.m. on Federal and watch for an announcement of the workdays. The meeting will be open to public attendance, with the exception of a rescheduled public meeting. 4. Fax to: Rulemaking, Directives, and Also in 73 FR 56618, the NRC noticed portion that may be closed to protect Editing Branch, Office of the issuance and availability of DG– information that is proprietary to Administration, U.S. Nuclear Regulatory 5026, ‘‘Fatigue Management for Nuclear Mitsubishi Heavy Industries, Ltd., and Commission at (301) 415–5144. Power Plant Personnel,’’ for public its contractors pursuant to 5 U.S.C. comment. This regulatory guide Requests for technical information 552b(c)(4). provides a method that the staff of the about DG–5026 may be directed to Valerie Barnes at (301) 415–5944 or e- The agenda for the subject meeting NRC considers acceptable for complying shall be as follows: with the Commission’s regulations for mail to Valerie Barnes. Comments would be most helpful if Thursday, October 23, 2008—8 a.m.– managing personnel fatigue at nuclear 5 p.m. power plants. received by October 31, 2008. The regulations established by the Comments received after that date will Friday, October 24, 2008—8 a.m.–12 NRC in Title 10, Part 26, of the Code of be considered if it is practical to do so, noon. Federal Regulations (10 CFR Part 26), but the NRC is able to ensure The Subcommittee will review five ‘‘Fitness for Duty Programs,’’ establish consideration only for comments topical reports and a draft Safety requirements for ensuring that received on or before this date. Evaluation Report associated with the personnel are fit to safely and Although a time limit is given, US–APWR Design Certification competently perform their duties. comments and suggestions in Application. The Subcommittee will Subpart I, ‘‘Managing Fatigue,’’ of 10 connection with items for inclusion in hear presentations by and hold CFR Part 26 establishes requirements for guides currently being developed or discussions with representatives of the managing personnel fatigue at nuclear improvements in all published guides NRC staff, Mitsubishi Heavy Industries, power plants. The regulations in are encouraged at any time. Ltd., and other interested persons Subpart I provide a comprehensive and Electronic copies of DG–5026 are regarding this matter. The integrated approach to fatigue available through the NRC’s public Web Subcommittee will gather information, management, taking into account the site under Draft Regulatory Guides in analyze relevant issues and facts, and multiple causes and effects of worker the ‘‘Regulatory Guides’’ collection of formulate proposed positions and fatigue. The Commission recognizes that the NRC’s Electronic Reading Room at actions, as appropriate, for deliberation the potential for excessive fatigue is not http://www.nrc.gov/reading-rm/doc- by the full Committee. solely based on extensive work hours, collections/. Electronic copies are also Members of the public desiring to but also on other causal factors, such as available in ADAMS (http:// provide oral statements and/or written stressful working conditions, sleep www.nrc.gov/reading-rm/adams.html), comments should notify the Designated disorders, accumulation of sleep debt under Accession No. ML081960515. Federal Official, Mr. Neil Coleman, and the disruptions of circadian In addition, regulatory guides are (Telephone: 301–415–7656) five days rhythms associated with shift work. available for inspection at the NRC’s prior to the meeting, if possible, so that These considerations are reflected in the Public Document Room (PDR), which is appropriate arrangements can be made. requirements of the rule in order to located at 11555 Rockville Pike, Electronic recordings will be permitted. ensure that licensees effectively manage Rockville, Maryland. The PDR’s mailing Detailed procedures for the conduct of worker fatigue and provide reasonable address is USNRC PDR, Washington, DC and participation in ACRS meetings assurance that workers are able to safely 20555–0001. The PDR can also be were published in the Federal Register and competently perform their duties. reached by telephone at (301) 415–4737 on September 26, 2007 (72 FR 54695). II. Further Information or (800) 397–4205, by fax at (301) 415– Further information regarding this 3548, and by e-mail to meeting can be obtained by contacting The NRC staff is soliciting comments [email protected]. the Designated Federal Official between on DG–5026. Comments may be Regulatory guides are not 8 a.m. and 5 p.m. (ET). Persons planning accompanied by relevant information or copyrighted, and Commission approval to attend this meeting are urged to supporting data, and should mention is not required to reproduce them. contact the above named individual at DG–5026 in the subject line. Comments least two working days prior to the submitted in writing or in electronic Dated at Rockville, Maryland, this 30th day of September 2008. meeting to be advised of any potential form will be made available to the changes to the agenda. public in their entirety through the For the Nuclear Regulatory Commission. NRC’s Agencywide Documents Access Andrea D. Valentin, Dated: September 29, 2008. and Management System (ADAMS). Chief, Regulatory Guide Development Branch, Girija Shukla, Personal information will not be Division of Engineering, Office of Nuclear Acting Chief, Reactor Safety Branch B, removed from the comments. Comments Regulatory Research. Advisory Committee on Reactor Safeguards. may be submitted by any of the [FR Doc. E8–23514 Filed 10–3–08; 8:45 am] [FR Doc. E8–23537 Filed 10–3–08; 8:45 am] following methods: BILLING CODE 7590–01–P BILLING CODE 7590–01–P

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SECURITIES AND EXCHANGE ADDRESSES: Secretary, U.S. Securities (collectively, with HQCM, the COMMISSION and Exchange Commission, 100 F ‘‘Adviser’’) may serve as investment Street, NE., Washington, DC 20549– adviser or sub-adviser to other [Release No. IC–28426; 812–13392] 1090. Applicants: c/o Hambrecht & registered closed-end management Quist Capital Management LLC, 2 investment companies (together with H&Q Healthcare Investors, et al.; Liberty Square, Ninth Floor, Boston, MA HQH and HQL, the ‘‘Registered Funds’’) Notice of Application 02109, Attention: Daniel R. Omstead, that will engage in investment activities September 30, 2008. PhD. similar to those engaged in by HQH and AGENCY: Securities and Exchange FOR FURTHER INFORMATION CONTACT: Jean HQL. Commission (‘‘Commission’’). E. Minarick, Senior Counsel, at (202) 4. Promere Manager will make investment decisions for Promere Fund, ACTION: Notice of application for an 551–6811, or Janet M. Grossnickle, Assistant Director, at (202) 551–6821 a Delaware limited partnership, that order under rule 17d–1 under the intends to qualify for an exclusion from Investment Company Act of 1940 (Division of Investment Management, Office of Investment Company the definition of an investment (‘‘Act’’) to permit certain joint company under section 3(c)(7) of the Regulation). transactions. Act. Promere General Partner, a SUPPLEMENTARY INFORMATION: The Delaware limited liability company, that APPLICANTS: H&Q Healthcare Investors following is a summary of the is under common control with Promere (‘‘HQH’’); H&Q Life Sciences Investors application. The complete application Manager, is the general partner of (‘‘HQL’’); Hambrecht & Quist Capital may be obtained for a fee at the Promere Fund and will manage the Management LLC on behalf of itself and Commission’s Public Reference Room, business and affairs of Promere Fund. its successors (‘‘HQCM’’); Promere Fund 100 F Street, NE., Washington, DC Promere Fund will seek long-term LP (‘‘Promere Fund’’); Promere 20549–1520 (tel. 202–551–5850). capital appreciation by investing Performance LLC (‘‘Promere General Applicants’ Representations primarily in privately held companies Partner’’); Promere Capital Management in the health care and life sciences LLC on behalf of itself and its successors 1. HQCM, a limited liability company industries. (‘‘Promere Manager’’); Ardance Fund LP organized under the laws of Delaware, 5. Ardance Manager will make (‘‘Ardance Fund’’); Ardance is an investment adviser registered investment decisions for Ardance Fund, Performance LLC (‘‘Ardance General under the Investment Advisers Act of a Delaware limited partnership, that Partner’’); and Ardance Capital 1940 (‘‘Advisers Act’’). Promere intends to qualify for the exclusion from Management LLC on behalf of itself and Manager, a limited liability company the definition of an investment its successors (‘‘Ardance Manager’’).1 organized under the laws of Delaware, company under section 3(c)(1) of the SUMMARY OF APPLICATION: Applicants is an investment adviser exempt from Act. Ardance General Partner, a request an order to permit certain registration under the Advisers Act. Delaware limited liability company, that registered investment companies to Ardance Manager, a limited liability is under common control with Ardance coinvest with certain affiliated entities.2 company organized under the laws of Manager, is the general partner of FILING DATES: The application was filed Delaware, is an investment adviser Ardance Fund and will manage the on May 30, 2007, and amended on July exempt from registration under the business and affairs of Ardance Fund. 25, 2008 and September 30, 2008. Advisers Act. Ardance Fund will seek absolute returns 2. HQH, a Massachusetts business on an annual basis while managing risk HEARING OR NOTIFICATION OF HEARING: An trust, is registered under the Act as a in both rising and falling markets. order granting the application will be diversified closed-end management Ardance Fund’s strategy for achieving issued unless the Commission orders a investment company. HQH’s investment this objective is to invest primarily in a hearing. Interested persons may request objective is long-term capital portfolio of long and short equity a hearing by writing to the appreciation through investment in positions focused on publicly traded Commission’s Secretary and serving companies in the health care industry. companies in the health care industry. applicants with a copy of the request, HQCM serves as HQH’s investment Although Ardance Fund will invest personally or by mail. Hearing requests adviser and manages its day-to-day primarily in publicly traded securities should be received by the Commission operations. and derivatives (e.g., for hedging and by 5:30 p.m. on October 27, 2008 and 3. HQL, a Massachusetts business speculative purposes), it is possible that should be accompanied by proof of trust, is registered under the Act as a Ardance Fund may coinvest with HQH, service on applicants, in the form of an diversified closed-end management HQL and/or Promere Fund in private affidavit or, for lawyers, a certificate of investment company. HQL’s investment placement securities. From time to time, service. Hearing requests should state objective is long-term capital the Adviser, Promere Manager or the nature of the writer’s interest, the appreciation through investment in Ardance Manager may manage other reason for the request, and the issues companies involved in scientific accounts that are not registered contested. Persons who wish to be advances in life sciences (including investment companies in reliance on notified of a hearing may request biotechnology, pharmaceutical, sections 3(c)(1) or 3(c)(7) of the Act notification by writing to the diagnostics, managed health care and (such accounts, together with Promere Commission’s Secretary. medical equipment, hospitals, health Fund and Ardance Fund, the care information technology and ‘‘Unregistered Funds’’). 1 The term ‘‘successor,’’ as applied to HQCM, services, devices and supplies), 6. Applicants seek an order under rule Promere Manager, and Ardance Manager, means an entity that results from a reorganization into agriculture and environmental 17d–1 under the Act to the extent another jurisdiction or a change in the type of management fields. HQCM acts as necessary to permit HQH, HQL, and business organization. HQL’s investment adviser and manages each other Registered Fund that is 2 All existing entities that currently intend to rely the day-to-day operations of HQL. From advised by an Adviser and the on the requested order have been named as applicants. Any other existing or future entity that time to time, HQCM or an entity Unregistered Funds to coinvest in subsequently relies on the order will comply with controlling, controlled by or under private placement transactions in which the terms and conditions of the application. common control with HQCM the Adviser, Promere Manager and/or

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Ardance Manager negotiate terms in affiliated person or a second-tier acquire private placement securities, the addition to price (‘‘private placement affiliated person of each Registered acquisition of which would be securities’’), make follow-on Fund within the meaning of Section consistent with the investment investments in the issuers of private 2(a)(3) of the Act, and the Registered objectives and policies of one or more placement securities (‘‘Follow-On Funds might be deemed to be affiliated Registered Funds, the Adviser will offer Investments’’), and exercise warrants, persons within the meaning of Section to each such Registered Fund the conversion privileges, and other rights 2(a)(3) of the Act. In some opportunity to acquire a pro rata associated with such private placement circumstances, these affiliations might amount (based upon amounts available securities (collectively, the ‘‘Co- prohibit each Registered Fund from for investment by each such Registered investment Transactions’’). The total participating in Co-investment Fund and each participating available capital (‘‘Total Available Transactions pursuant to Section 17(d) Unregistered Fund) of the private Capital’’) of each Registered Fund and and Rule 17d-1. placement securities, up to the entire Unregistered Fund is the amount of total 3. Applicants state that the ability to amount being offered to it. If one assets of each such fund available for participate in Co-investment Registered Fund declines the offer or investment in private placement Transactions will benefit the Registered accepts a portion of the private securities, subject to applicable Funds and their shareholders by placement securities offered to it, but regulatory restrictions and the fund’s increasing the favorable investment one or more other Registered Funds fundamental investment restrictions and opportunities available to them. accepts the private placement securities policies. The Board of Trustees Applicants represent that the Registered offered, that portion of the private (‘‘Board’’) of each Trust has set a limit Funds will be able to (i) have a larger placement securities declined by the on the amount of initial investment of pool of capital available for investment, Registered Fund may be allocated to the each Trust in securities of an issuer in thereby obtaining access to a greater other Registered Funds and private placement transactions (the number and variety of potential Unregistered Funds based on their ‘‘Investment Limit’’), as described in the investments than any Registered Fund amounts available for investment. application. could obtain on its own, and (ii) However, if the pro rata allocation to increase their bargaining power to any Registered Fund exceeds its Applicants’ Legal Analysis negotiate more favorable terms. Investment Limit, then the portion of 1. Section 17(d) of the Act and rule 4. Applicants believe that the terms the allocation that exceeds the 17d–1 under the Act generally prohibit and conditions contained in the Investment Limit may be allocated pro any affiliated person of a registered application ensure that the Co- rata to each other Registered Fund (up investment company, or affiliated investment Transactions are consistent to its Investment Limit) and each person of an affiliated person, when with the protection of each Registered participating Unregistered Fund. In each acting as principal, from effecting any Fund’s investors and with the purposes case in which an amount of private joint transaction in which the company intended by the policy and provisions of placement securities remains available participates unless the transaction is the Act. Specifically, all participants after allocating the private placement approved by the Commission. Rule 17d– will invest at the same time for the same securities to the Registered Funds as 1 under the Act provides that in passing price and with the same terms, described above, the remainder may be upon applications under section 17(d), conditions, class, registration rights, and allocated to the participating the Commission will consider whether any other rights, so that no participant Unregistered Funds. For purposes of the participation of a registered receives terms more favorable than any these conditions, the phrase ‘‘amounts investment company in a joint other participant. In addition, the available for investment’’ is the Total enterprise on the basis proposed is decision to participate in a Co- Available Capital of the Registered Fund consistent with the provisions, policies, investment Transaction must be or Unregistered Fund. and purposes of the Act and the extent approved by a Required Majority (as 2. (a) With respect to each Co- to which the company’s participation is defined below) of the Board of each investment Transaction, for each on a basis different from or less participating Registered Fund to ensure Registered Fund, the Adviser will make advantageous than that of other that the terms of the Co-investment a separate determination whether the participants. Transaction are fair and reasonable, do acquisition of the private placement 2. Section 2(a)(3) of the Act, in not involve overreaching, and are security is appropriate and consistent relevant part, defines an ‘‘affiliated consistent with the investment with the investment objectives and person’’ of another person as (a) Any objectives and policies of the Registered policies of the Registered Fund and, if person directly or indirectly owning, Fund. Co-investment Transactions will so, the appropriate amount that the controlling, or holding with power to be reviewed by a duly appointed Registered Fund should invest. vote, 5% or more of the outstanding committee of the Board (the ‘‘Joint (b) After making the determination voting securities of the other person; (b) Transaction Committee’’) that shall required in (a) above, the Adviser will any person 5% or more of whose consist solely of members of the Board submit written information concerning outstanding voting securities are who are not ‘‘interested persons’’ within the Co-investment Transaction, directly or indirectly owned, controlled, the meaning of section 2(a)(19) of the including the amount proposed to be or held with power to vote by the other Act (the ‘‘Independent Trustees’’) and acquired by the Registered Fund, any person; (c) any person directly or shall have as its members at least a other Registered Funds, and each indirectly controlling, controlled by, or majority of all of the Independent Unregistered Fund to the Joint under common control with the other Trustees. Transactions Committee. A Registered person and (d) any officer, director, Fund’s Joint Transactions Committee partner, copartner, or employee of the Applicants’ Conditions shall consist solely of Independent other person. As described more fully in Applicants agree that any order Trustees and shall have as its members the application, each of the Unregistered granting the requested relief shall be at least a majority of all of the Funds, Promere General Partner, subject to the following conditions: Independent Trustees of such Registered Ardance General Partner and any 1. Each time that an Unregistered Fund. The Adviser will provide Adviser might be deemed to be an Fund or a Registered Fund proposes to information concerning the Total

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Available Capital of the Registered Unregistered Fund, or any affiliated and the amounts to be invested or the Funds and the Unregistered Funds in person thereof, except to the extent warrants, conversion privileges or other order to assist the Joint Transactions permitted under section 17(e) of the Act. rights to be exercised by each Registered Committee with its review of the (d) A Required Majority is the number Fund and Unregistered Fund are Registered Fund’s investments for of a Registered Fund’s Joint disproportionate to their respective compliance with the allocation features Transactions Committee members equal holdings, the Adviser will formulate a set forth in condition 1 above. to at least a majority of all of the recommendation as to the proposed (c) A Registered Fund may participate Independent Trustees of such Registered Follow-On Investment or exercise of in a Co-investment Transaction only if Fund. Each member of a Required warrants, conversion privileges or other the Required Majority (as defined Majority shall have no direct or indirect rights by each Registered Fund and below) determines that: financial interest in the proposed Co- Unregistered Fund and submit the i. The terms of the Co-investment investment Transaction. recommendation to each Registered Transaction, including the 3. A Registered Fund has the right to Fund’s Joint Transactions Committee, consideration to be paid, are reasonable decline to participate in any Co- including an explanation of such and fair to the Registered Fund and its investment Transaction or to invest less disproportionate investments or shareholders and do not involve than the amount proposed. If the exercise of rights. Prior to any such overreaching of the Registered Fund or Adviser determines that a Registered disproportionate Follow-On Investment its shareholders on the part of any Fund should not participate in a Co- or exercise of rights, a Registered Fund person concerned; investment Transaction offered to it must obtain approval by a Required ii. The proposed Co-investment pursuant to condition 1 above, the Majority for the transaction as set forth Transaction is consistent with the Adviser will submit its determination to in condition 2 above. Transactions Registered Fund’s investment objectives the Joint Transactions Committee for pursuant to this condition 5 will be and policies as recited in its Form N– approval by a Required Majority. subject to the other conditions set forth 2 registration statement and its reports 4. Each Registered Fund shall in the application. to shareholders; and participate in a Co-investment 6. Except for transactions covered by iii. The participation by another Transaction only if the terms, condition 5 above, no Unregistered Registered Fund or the Unregistered conditions, price, class of securities Fund or Registered Fund will sell, Fund(s) in the proposed Co-investment being purchased, settlement date, exchange, or otherwise dispose of any Transaction would not disadvantage the registration rights, if any, and other interest in any private placement Registered Fund, and participation by rights are the same for each Registered securities acquired pursuant to the the Registered Fund would not be on a Fund and any Unregistered Fund order, unless each Registered Fund has basis different from or less advantageous participating in the Co-investment the opportunity to dispose of its interest than that of any other Registered Fund Transaction. When more than one at the same time, for the same unit or Unregistered Fund; provided, that if Registered Fund proposes to invest in a consideration, on the same terms and any Unregistered Fund, but not the Co-investment Transaction, the Joint conditions, as such Unregistered Fund Registered Funds, gains the right to Transactions Committee of each or other Registered Fund and in a nominate a director for election to a Registered Fund shall review the Co- proportionate amount (based upon their portfolio company’s board of directors investment Transaction and a Required relative holdings of the private or the right to have a board observer or Majority will make the determinations placement securities). With respect to any similar right to participate in the in condition 2 above, on or about the any such transaction, the Adviser will governance or management of the same time. The grant to any formulate a recommendation as to the portfolio company, such event shall not Unregistered Fund, but not the proposed participation by a Registered be interpreted to prohibit the Required Registered Fund(s), of the right to Fund and submit the recommendation Majority from reaching the conclusions nominate a director for election to a to such Registered Fund’s Joint required by this condition 2(c)(iii), if portfolio company’s board of directors Transactions Committee. The Registered (A) The Required Majority has the or the right to have a board observer or Fund will dispose of such private right to ratify the selection of such any similar right to participate in the placement securities to the extent the director or board observer, if any; and governance or management of the Joint Transactions Committee, upon the (B) The Adviser: portfolio company shall not cause a affirmative vote of a Required Majority, (1) Provides to the Joint Transactions failure of this condition, if conditions determines that the disposition is in the Committee material information 2(c)(iii)(A) and (B) are satisfied. best interest of the Registered Fund, is received by any such person who then 5. Except as described below, no fair and reasonable, and does not serves as a director or participates as a Registered Fund may make a Follow-On involve overreaching of the Registered board observer or exercises any similar Investment or exercise warrants, Fund or its shareholders by any person right to participate in the governance of conversion privileges, or other rights concerned. a portfolio company; and unless such Registered Fund and each 7. The expenses, if any, associated (2) Agrees to provide periodic reports other Registered Fund and Unregistered with acquiring, holding, or disposing of to the Joint Transactions Committee Fund that participated in the original any private placement securities with respect to the material actions of Co-investment Transaction make such (including, without limitation, the such director or the material Follow-On Investment or exercise such expenses of the distribution of any information received by such board warrants, conversion rights, or other private placement securities registered observer or obtained through the rights at the same time and in amounts for sale under the Securities Act of exercise of any similar right to proportionate to their respective 1933), to the extent not payable solely participate in the governance or holdings of the private placement by the Adviser, Promere Manager and management of the portfolio company; securities acquired in such Co- Ardance Manager, as applicable, under and investment Transaction. If a Registered their respective investment management iv. The proposed investment by the Fund participates in a Follow-On agreements with the Registered Fund or Registered Fund will not benefit the Investment or exercises warrants, Unregistered Fund, shall be shared by Adviser, any other Registered Fund, any conversion privileges, or other rights the Registered Funds and the

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Unregistered Funds in proportion to the participants based on the amounts they APPLICANTS: MCG Capital Corporation relative amounts of such private invested or committed, as the case may (‘‘MCG’’), Solutions Capital G.P., LLC, placement securities held or being be, in such transaction. None of the Solutions Capital I, L.P., MCG Capital acquired or disposed of, as the case may Adviser, Promere General Partner, Advisory Services, Inc., MCG Equity be, by the Registered Funds and the Promere Manager, Ardance General Funding I, LLC, MCG Finance I, LLC, Unregistered Funds. Partner, or Ardance Manager will MCG Finance V, LLC, MCG Commercial 8. Each quarter the Adviser will receive additional compensation or Loan Funding Trust, MCG Finance VII, provide to each Registered Fund’s Joint remuneration of any kind as a result of LLC, MCG Commercial Loan Trust Transactions Committee information or in connection with a co-investment 2006–1, MCG Finance VIII, LLC, MCG concerning all investments in private or compensation for its services in Commercial Loan Trust 2006–2, MCG placement securities made by all sponsoring, structuring, or providing Finance IX, LLC, MCG Commercial Registered and Unregistered Funds, managerial assistance to an issuer of Loan Trust 2008–1, MCG IH Holdings, including all investments in which the private placement securities that is not Inc., IH Helicon, Inc., IH NPS Holdings, Registered Fund declined to participate, shared pro rata with the coinvesting LLC, MCG Opportunity Investment so that a Required Majority may Registered Funds and Unregistered Fund I, LLC, Sleep Investors, LLC, TNR determine whether all investments Funds. Investors, LLC, Crystal Media Network, made during the preceding quarter, 11. Each applicant will maintain and Inc., IH Chesapeake Tower, Inc., IH including those in which the Registered preserve all records required to be Dayton Parts, Inc., IH GSD, Inc., IH Fund declined to participate, comply preserved under the Act and the rules Intran Inc., IH MTP, Inc., IH NDS, Inc., with the conditions of the order. In and regulations under the Act IH NEPG, Inc., IH NYL, Inc., IH Orbitel addition, all of the Independent applicable to such applicant. The Holdings, Inc., IH OTM, Inc., IH PBI, Trustees of each Registered Fund will Registered Funds will maintain the Inc., IH Premier, Inc. and IH Quantum, consider at least annually the continued records required by section 57(f)(3) of Inc. appropriateness of Co-investment the Act as if each of the Registered FILING DATES: The application was filed Transactions by the Registered Fund Funds were a business development on September 25, 2007, and amended with the Unregistered Funds and other company and the Co-investment on June 17, 2008, and September 17, Registered Funds, including whether Transactions were approved under 2008. Applicants have agreed to file an engaging in Co-investment Transactions section 57(f). amendment during the notice period, pursuant to the order continues to be in the substance of which is contained in the best interests of the Registered Fund For the Commission, by the Division of this notice. and its shareholders and does not Investment Management, pursuant to delegated authority. involve overreaching on the part of any HEARING OR NOTIFICATION OF HEARING: person concerned. Florence E. Harmon, An order granting the application will 9. No investment will be made by a Acting Secretary. be issued unless the Commission orders Registered Fund in a Co-investment [FR Doc. E8–23491 Filed 10–3–08; 8:45 am] a hearing. Interested persons may Transaction in reliance on the order if BILLING CODE 8011–01–P request a hearing by writing to the the Adviser knows or reasonably should Commission’s Secretary and serving know that an Unregistered Fund or applicants with a copy of the request, another Registered Fund or any SECURITIES AND EXCHANGE personally or by mail. Hearing requests affiliated person of such Unregistered COMMISSION should be received by the Commission Fund or another Registered Fund then by 5:30 p.m. on October 27, 2008, and currently holds a security issued by that [Investment Company Act Release No. should be accompanied by proof of issuer, except for a Follow-On 28427; 812–13428] service on the Applicant, in the form of Investment made pursuant to condition an affidavit or, for lawyers, a certificate 5 of this order. MCG Capital Corporation, et al.; Notice of service. Hearing requests should state 10. Any transaction fee (including of Application the nature of the writer’s interest, the break-up or commitment fees but reason for the request, and the issues excluding brokerage fees contemplated September 30, 2008. contested. Persons who wish to be by section 17(e)(2) of the Act) received AGENCY: Securities and Exchange notified of a hearing may request in connection with a transaction entered Commission (‘‘Commission’’). notification by writing to the into in reliance on the order will be ACTION: Notice of an application for an Commission’s Secretary. distributed to the participants on a pro order under section 6(c) of the ADDRESSES: Secretary, U.S. Securities rata basis based on the amounts they Investment Company Act of 1940 (the and Exchange Commission, 100 F invested or committed, as the case may ‘‘Act’’) for an exemption from sections Street, NE., Washington, DC 20549– be, in such transaction. If any 18(a), 55(a), and 61(a) of the Act. 1090. Applicant, c/o Steven F. Tunney, transaction fee is to be held by the President and Chief Executive Officer, Adviser, Promere General Partner, SUMMARY OF THE APPLICATION: MCG Capital Corporation, 1100 Wilson Promere Manager, Ardance General Applicants request an order to permit: Boulevard, Suite 3000, Arlington, VA Partner or Ardance Manager pending (1) A business development company to 22209. consummation of the transaction, the look to the assets of its wholly-owned fee will be deposited into an account subsidiaries, rather than the business FOR FURTHER INFORMATION CONTACT: maintained by the Adviser, Promere development company’s interest in the Christine Y. Greenlees, Senior Counsel, General Partner, Promere Manager, subsidiaries themselves, in determining at (202) 551–6879, or Marilyn Mann, Ardance General Partner or Ardance whether the business development Branch Chief, at (202) 551–6821 Manager at a bank or banks having the company meets certain requirements for (Division of Investment Management, qualifications prescribed in section business development companies under Office of Investment Company 26(a) of the Act, and the account will the Act, and (2) the business Regulation). earn a competitive rate of interest that development company to adhere to a SUPPLEMENTARY INFORMATION: The also will be divided pro rata among the modified asset coverage requirement. following is a summary of the

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application. The complete application Financing Subsidiaries are structured as Applicants’ Legal Analysis may be obtained for a fee at the Delaware limited liability companies. A. Relief for MCG To Deem Assets Held Commission’s Public Reference Room, Each such current Financing Subsidiary, by its Subsidiaries To Be Owned by 100 F Street, NE., Washington, DC in turn, transfers such loans and/or MCG for Purposes of Determining Its 20549–1520 (tel. 202–551–5850). other investments to a wholly owned Compliance With Section 55(a) of the Applicants’ Representations trust (each, a ‘‘Financing Trust’’) that Act finances the acquisition of such assets 1. MCG, a Delaware corporation, is an through the issuance of debt securities. 1. Section 2(a)(48) of the Act generally internally managed, non-diversified, The current Financing Subsidiaries are defines a BDC to be any closed-end closed-end investment company that excluded from the definition of investment company that operates for has elected to be regulated as a business the purpose of making investments in investment company under section development company (‘‘BDC’’) under securities described in section 55(a)(1) 3(c)(7) of the Act, and the current the Act. MCG is a commercial finance through (3) of the Act and makes Financing Trusts are excluded from the company that provides capital and available significant managerial advisory services to middle-market definition of investment company under assistance with respect to the issuers of companies throughout the United rule 3a–7 under the Act. these securities. Section 55(a) of the Act States. 6. The purpose of the Financing requires a BDC to have at least 70 2. MCG conducts, and expects to Subsidiaries is to provide a legally percent of its assets invested in assets continue to conduct, a portion of its separate entity to hold investments and/ described in sections 55(a)(1) through business through its current and future or to hold the Financing Trust, which, (7) (‘‘Qualifying Assets’’). Qualifying subsidiaries, all of whose equity in turn, hold the investments supporting Assets generally include securities securities are owned or will be owned MCG’s financings. MCG solely controls issued by eligible portfolio companies directly or indirectly by MCG (each, a the operations of each Financing Trust, as defined in section 2(a)(46) of the Act. ‘‘Subsidiary’’). There are three types of including the acquisition and Section 2(a)(46)(B) generally excludes Subsidiaries that currently are active or disposition of assets by each Financing from the definition of an eligible are currently being contemplated: (1) Trust. portfolio company an investment Operating Subsidiaries, (2) financing company, as defined under section 3 of 7. MCG utilizes wholly owned subsidiaries, and (3) blocker the Act, and a company that would be subsidiaries. subsidiaries to hold MCG’s interests in an investment company but for the 3. MCG’s current operating certain of MCG’s portfolio companies exclusion from the definition of subsidiaries are Solutions Capital I, L.P. (the ‘‘Blocker Subsidiaries’’). The investment company in section 3(c) of (the ‘‘SBIC Subsidiary’’) and Solutions Blocker Subsidiaries are excluded from the Act. Capital G.P., LLC (the ‘‘SBIC GP’’). The the definition of investment company 2. Section 6(c) of the Act, in relevant SBIC Subsidiary, a Delaware limited under section 3(c)(7) of the Act. Certain part, permits the Commission to exempt partnership, is a small business of the Blocker Subsidiaries are any transaction or class of transactions investment company (‘‘SBIC’’) licensed structured as Delaware corporations and from any provision of the Act if, and to under the Small Business hold certain investment assets that are the extent that, such exemption is Administration (‘‘SBA’’) to operate structured as pass-through tax entities necessary or appropriate in the public under the Small Business Investment in order to allow MCG to continue to interest and consistent with the Act of 1958 (‘‘SBIA’’). The SBIC qualify as a regulated investment protection of investors and the purposes Subsidiary relies on section 3(c)(7) of company for tax purposes.1 Other fairly intended by the policy and the Act. The SBIC GP, a Delaware Blocker Subsidiaries, organized as provisions of the Act. Applicants limited liability company, is the sole Delaware limited liability companies, request an order pursuant to section 6(c) general partner of the SBIC Subsidiary. hold MCG’s interests in MCG’s portfolio to allow MCG to deem the assets of its MCG is the SBIC GP’s sole member and companies in order to block potential current and future Subsidiaries as its owner. The SBIC GP is the sole general investor-related liability to MCG. own assets for purposes of determining partner of the SBIC Subsidiary, and its compliance with section 55(a). 8. The Blocker Subsidiaries are not 3. Applicants state that each MCG is the sole limited partner of the operating companies and do not have SBIC Subsidiary. Subsidiary will be formed as a limited any employees. The Blocker 4. MCG intends to operate the SBIC liability company (‘‘LLC’’), a Subsidiary through the SBIC GP for the Subsidiaries exist solely for the benefit corporation (‘‘Corporation ‘‘) or a same investment purposes as MCG, and of MCG in order to hold MCG’s interests partnership (‘‘Partnership’’). MCG and/ the SBIC Subsidiary will invest in the in its portfolio companies and do not or one or more other Subsidiaries at all same kinds of securities as MCG. The provide any services to any other times will be the only members of each operations of both the SBIC Subsidiary company. MCG does and will continue Subsidiary that is an LLC and will and the SBIC GP will be consolidated to make available significant managerial collectively hold all of the ownership with those of MCG for financial assistance to the issuers of securities interests in the LLC Subsidiary. No LLC reporting purposes. The assets of the held by the Subsidiaries to the extent Subsidiary will admit any person other SBIC Subsidiary and the SBIC GP are required by section 2(a)(48)(B).2 than MCG or another Subsidiary as a recorded on MCG’s balance sheet, and member, and no LLC Subsidiary will thus are considered assets of MCG for 1 Applicants represent that these Blocker issue interests other than to MCG or U.S. generally accepted accounting Subsidiaries are a lawful method of tax planning another Subsidiary. MCG and/or one or under the Internal Revenue Code and are frequently principles purposes. used by companies seeking to elect to be treated as more other Subsidiaries at all times will 5. From time to time, MCG transfers regulated investment companies. MCG has obtained own and hold all of the outstanding pools of loans and/or other investments an opinion from tax counsel from the firm of equity interests in each Subsidiary that to special purpose entities (the Sutherland Asbill & Brennan LLP confirming the is formed as a Corporation. MCG and/ appropriateness of this structure. ‘‘Financing Subsidiaries’’) for use in 2 For the purposes of Section 2(a)(48)(B), MCG or one or more other Subsidiaries will connection with on-balance sheet will treat securities held by the Subsidiaries as if at all times be the sole limited partner financing transactions. The current they were held directly by MCG. of any Subsidiary that is formed as a

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Partnership and the sole owner of such 18(k) if it was a BDC itself, there is no purposes of the definition of ‘‘asset Subsidiary’s general partner. Applicants policy reason to deny the benefit of that coverage’’ in section 18(h), will be also state that since MCG, directly or exemption to MCG. treated as indebtedness not represented indirectly through another Subsidiary, by senior securities. Applicants’ Conditions owns or would own the entire equity For the Commission, by the Division of interest in any current and future Applicants agree that the order Investment Management, pursuant to Subsidiaries, any activity carried on by granting the requested relief will be delegated authority. them will, in all material respects, have subject to the following conditions: Florence E. Harmon, the same economic effect on MCG’s Relief From Section 55(a) Acting Secretary. stockholders as if carried on directly by [FR Doc. E8–23492 Filed 10–3–08; 8:45 am] MCG. 1. Each Subsidiary will be formed as a limited liability company (‘‘LLC’’), a BILLING CODE 8011–01–P B. Relief for the Company To Adhere to corporation (‘‘Corporation ‘‘) or a a Modified Asset Coverage Requirement partnership (‘‘Partnership’’). MCG and/ SECURITIES AND EXCHANGE 1. Applicants request an exemption or one or more other Subsidiaries at all COMMISSION pursuant to section 6(c)of the Act from times will be the only members of each the provisions of sections 18(a) and Subsidiary that is an LLC and will Sunshine Act Meeting 61(a) of the Act to permit MCG to collectively hold all of the ownership adhere to a modified asset coverage interests in the LLC Subsidiary. No LLC Notice is hereby given, pursuant to requirement. Subsidiary will admit any person other the provisions of the Government in the 2. Section 18(a) of the Act prohibits a than MCG or another Subsidiary as a Sunshine Act, Public Law 94–409, that registered closed-end investment member, and no LLC Subsidiary will the Securities and Exchange company from issuing any class of issue interests other than to MCG or Commission will hold a Closed Meeting senior security or selling any such another Subsidiary. MCG and/or one or on Wednesday, October 1, 2008, at 2 security of which it is the issuer unless more other Subsidiaries at all times will p.m. the company complies with the asset own and hold all of the outstanding Commissioners, Counsels to the coverage requirements set forth in that equity interests in each Subsidiary that Commissioners, the Secretary to the section. Section 61(a) of the Act makes is formed as a Corporation. MCG and/ Commission, and certain staff members section 18 applicable to BDCs, with or one or more other Subsidiaries will who have an interest in the matter will certain modifications. Section 18(k) at all times be the sole limited partner attend the Closed Meeting. exempts an investment company of any Subsidiary that is formed as a The General Counsel of the operating as an SBIC from the asset Partnership and the sole owner of such Commission, or his designee, has coverage requirements for senior Subsidiary’s general partner. certified that, in his opinion, one or securities representing indebtedness 2. The Subsidiaries, and any future more of the exemptions as set forth in that are contained in section 18(a)(1)(A) Subsidiaries, may not acquire any asset 5 U.S.C. 552b(c)(8) and (9) and 17 CFR and (B). if the acquisition would cause MCG to 200.402(a)(8) and (9), permit 3. Applicants state that a question violate section 55(a). consideration of the scheduled matter at exists as to whether MCG must comply 3. No person shall serve or act as the Closed Meeting. with the asset coverage requirements of investment adviser to a Subsidiary Commissioner Aguilar, as duty section 18(a) (as modified by section unless the Board and stockholders of officer, voted to consider the item listed 61(a)) solely on an individual basis or MCG shall have taken the action with for the closed meeting in closed session, whether MCG must also comply with respect thereto also required to be taken and determined that no earlier notice the asset coverage requirements on a by the board of directors of the thereof was possible. consolidated basis because MCG may be Subsidiary and stockholders of the The subject matter of the Closed deemed to be an indirect issuer of any Subsidiary as if the Subsidiary were a Meeting scheduled for Wednesday, class of senior security issued by the BDC. October 1, 2008, will be: Matters Related SBIC Subsidiary. Applicants state that to the Financial Markets. they wish to treat the SBIC Subsidiary Relief From Section 18(a) At times, changes in Commission as if it were a BDC subject to sections 4. MCG will not issue or sell any priorities require alterations in the 18 and 61 of the Act. Applicants state senior security and MCG will not cause scheduling of meeting items. For further that companies operating under the or permit the SBIC Subsidiary to issue information and to ascertain what, if SBIA, such as the SBIC Subsidiary, will or sell any senior security of which any, matters have been added, deleted be subject to the SBA’s substantial MCG or the SBIC Subsidiary is the or postponed, please contact: The Office regulation of permissible leverage in its issuer except to the extent permitted by of the Secretary at (202) 551–5400. capital structure. section 18 (as modified for BDCs by Dated: October 1, 2008. 4. Section 6(c) of the Act, in relevant section 61); provided that immediately Jill M. Peterson, part, permits the Commission to exempt after issuance or sale by any of MCG or Assistant Secretary. any transaction or class of transactions the SBIC Subsidiary of any such senior from any provision of the Act if and to security, MCG individually and on a [FR Doc. E8–23498 Filed 10–3–08; 8:45 am] the extent that such exemption is consolidated basis, shall have the asset BILLING CODE 8011–01–P necessary or appropriate in the public coverage required by section 18(a) (as interest and consistent with the modified by section 61(a)), except that, SECURITIES AND EXCHANGE protection of investors and the purposes in determining whether MCG on a COMMISSION fairly intended by the policy and consolidated basis has the asset provisions of the Act. Applicants state coverage required by section 18(a) (as Sunshine Act Meeting that the requested relief satisfies the modified by section 61(a)), any senior section 6(c) standard. Applicants securities representing indebtedness of FEDERAL REGISTER CITATION OF PREVIOUS contend that, since the SBIC Subsidiary the SBIC Subsidiary shall not be ANNOUNCEMENT: [73 FR 55571, would be entitled to rely on section considered senior securities and, for September 25, 2008].

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STATUS: Closed Meeting. the Commission’s Public Reference ISE Rule 2104 (Types of Orders) to PLACE: 100 F Street, NE., Washington, Room. adopt a ‘‘Post-Closing’’ order. Trading during expanded hours DC. II. Self-Regulatory Organization’s involves potential risks, including the DATE AND TIME OF PREVIOUSLY ANNOUNCED Statement of the Purpose of, and possibility of lower liquidity, higher MEETING: Monday, September 29, 2008 Statutory Basis for, the Proposed Rule volatility, changing prices, unlinked at 2 p.m. Change markets with the possibility of trade- CHANGE IN THE MEETING: Cancellation of In its filing with the Commission, the throughs, and wider spreads. Moreover, Meeting. Exchange included statements The Closed Meeting scheduled for trades executed during these sessions concerning the purpose of, and basis for, Monday, September 29, 2008 was may receive executions at inferior prices the proposed rule change and discussed cancelled. when compared to the high/low of the any comments it received on the For further information please contact day. The Supplementary Material to ISE proposed rule change. The text of these the Office of the Secretary at (202) 551– Rule 2102 presently requires Equity statements may be examined at the 5400. EAMs that submit orders during the Pre- places specified in Item IV below. The Market Session on behalf of non- Dated: October 1, 2008, Exchange has prepared summaries, set members to disclose the risks of Florence E. Harmon, forth in Sections A, B and C below, of participating in such session to their Acting Secretary. the most significant aspects of such customers. The Exchange proposes to [FR Doc. E8–23579 Filed 10–3–08; 8:45 am] statements. expand this customer disclosure BILLING CODE 8011–01–P A. Self-Regulatory Organization’s requirement to also apply to the Post- Statement of the Purpose of, and Market Session. The Exchange proposes to adopt rule Statutory Basis for, the Proposed Rule SECURITIES AND EXCHANGE text governing trading halts in the Pre- Change COMMISSION and Post-Market Sessions. Specifically, [Release No. 34–58685; File No. SR–ISE– 1. Purpose if a security begins trading on the 2008–73] The Exchange proposes to extend its Exchange in the Pre-Market Session and hours of trading for equity securities. subsequently a temporary interruption Self-Regulatory Organizations; Currently, the Exchange has two equity occurs in the calculation or wide International Securities Exchange, trading sessions. The Pre-Market dissemination of the intraday indicative LLC; Notice of Filing and Immediate Session begins at 9 a.m. Eastern Time 5 value (‘‘IIV’’) or the value of the Effectiveness of Proposed Rule and ends when the opening transaction underlying index by a major market data Change To Expand the Trading Hours occurs, as defined in ISE Rule 2106(b). vendor, the Exchange may continue to of the ISE Stock Exchange The Regular Market Session commences trade the derivative securities product for the remainder of the Pre-Market September 30, 2008. upon the opening transaction, as defined in ISE Rule 2106(b), and Session. Pursuant to Section 19(b)(1) of the The Exchange will continue to halt Securities Exchange Act of 1934 concludes simultaneously with the primary listing market in such security, trading during the Regular-Market (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Session in accordance with the notice is hereby given that on which is either 4 p.m. or 4:15 p.m. Eastern Time, depending on the provisions set forth in existing ISE Rule September 24, 2008, the International 8 security.6 2101(a)(2)(iii)(A) and (B). Securities Exchange, LLC (‘‘Exchange’’ The Exchange will halt trading during or ‘‘ISE’’) filed with the Securities and The Exchange is proposing to begin ISE Stock Exchange trading at 8 a.m. the Post-Market Session if the IIV or the Exchange Commission (‘‘Commission’’) value of the underlying index continues the proposed rule change as described Eastern Time and close the market at 5 p.m. Eastern Time. Trading in the Pre- not to be calculated or widely available in Items I and II below, which Items after the close of the Regular-Market have been prepared by the Exchange. Market Session and the transition to the 7 Session. The Exchange may trade The Exchange has filed the proposal Regular-Market Session will remain unchanged, other than starting the Pre- derivative securities products in the pursuant to Section 19(b)(3)(A) of the Post-Market Session only if the listing Act 3 and Rule 19b–4(f)(6) thereunder,4 Market Session one hour earlier. Additionally, the Exchange is market traded such securities until the which renders the proposal effective close of its regular trading session upon filing with the Commission. The proposing to adopt a Post-Market Session, which will begin at the without a halt. Commission is publishing this notice to If the IIV or the value of the conclusion of the Regular-Market solicit comments on the proposed rule underlying index continues not to be Session and close at 5 p.m. Eastern change from interested persons. calculated or widely available as of the Time. To participate in the Post-Market commencement of the Pre-Market I. Self-Regulatory Organization’s session, Equity Electronic Access Session on the next business day, the Statement of the Terms of Substance of Members (‘‘Equity EAMs’’) must mark Exchange will not begin trading the the Proposed Rule Change orders as ‘‘Post-Closing.’’ Accordingly, derivative securities product in the Pre- the Exchange is proposing to amend ISE The Exchange submits this rule filing Market Session that day. If an Rule 2102 (Hours of Business) to to extend its hours of trading for equity interruption in the calculation or wide securities. The text of the proposed rule provide for a Post-Market Session and change is available on the Exchange’s 8 The Exchange is also amending ISE Rule Web site http://www.ise.com, at the 5 See Securities and Exchange Commission 2101(a)(2)(iii)(A) to delete language addressing the principal office of the Exchange, and at Release No. 34–57021 (December 20, 2007), 72 FR halting and subsequent resumption of trading when 74373 (December 31, 2007) (SR–ISE–2007–116) the underlying value of a securities derivative (Notice of filing and immediate effectiveness of product continues not to be calculated or widely 1 15 U.S.C. 78s(b)(1). proposed rule change to open the Exchange’s equity available as of the commencement of trading on the 2 17 CFR 240.19b–4. trading platform at 9:00 a.m.). next business day. The Exchange believes that it is 3 15 U.S.C. 78s(b)(3)(A). 6 See ISE Rule 2106. appropriate to delete this language because it is 4 17 CFR 240.19b–4(f)(6). 7 See supra note 5. being added to proposed Rule 2102(e)(3).

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dissemination of the IIV or the value of EAMs to trade securities during proposed rule change as operative upon the underlying index continues, the extended hours. filing.14 Exchange may resume trading in the At any time within 60 days of the B. Self-Regulatory Organization’s derivative securities product only if filing of the proposed rule change the Statement on Burden on Competition calculation and wide dissemination of Commission may summarily abrogate the IIV or the value of the underlying The proposed rule change does not such rule change if it appears to the index resumes or trading in the impose any burden on competition that Commission that such action is derivative securities product resumes in is not necessary or appropriate in necessary or appropriate in the public the listing market. furtherance of the purposes of the Act. interest, for the protection of investors, The Exchange intends to distribute to C. Self-Regulatory Organization’s or otherwise in furtherance of the its Equity EAMs and make available on Statement on Comments on the purposes of the Act. its Web site at http://www.ise.com a Proposed Rule Change Received From IV. Solicitation of Comments Regulatory Information Circular (‘‘RIC’’) Members, Participants or Others Interested persons are invited to that discloses, among other things: (1) The Exchange has not solicited, and submit written data, views, and The current underlying index value and does not intend to solicit, comments on arguments concerning the foregoing, IIV may not be updated during the Pre- this proposed rule change. The including whether the proposed rule and Post-Market Sessions; (2) lower Exchange has not received any change is consistent with the Act. liquidity in the Pre- and Post-Market unsolicited written comments from Comments may be submitted by any of Sessions may impact pricing; (3) higher members or other interested parties. the following methods: volatility in the Pre- and Post-Market Sessions may impact pricing; (4) wider III. Date of Effectiveness of the Electronic Comments Proposed Rule Change and Timing for spreads may occur in the Pre- and Post- • Use the Commission’s Internet Commission Action Market Session; (5) the circumstances comment form (http://www.sec.gov/ that trigger trading halts; (6) required Because the foregoing proposed rule rules/sro.shtml); or customer disclosures; and (7) suitability change does not: • Send an e-mail to rule- requirements. The RIC will also (i) Significantly affect the protection [email protected]. Please include File highlight that investors may be at a of investors or the public interest; Number SR–ISE–2008–73 on the subject disadvantage to market professionals (ii) Impose any significant burden on line. during the Pre- and Post-Market competition; and Sessions in that they may not have (iii) Become operative for 30 days Paper Comments access to an updated index value or IIV from the date on which it was filed, or • Send paper comments in triplicate that would otherwise be available such shorter time as the Commission to Secretary, Securities and Exchange during the Regular Market Session. The may designate if consistent with the Commission, 100 F Street, NE., Exchange is also amending the protection of investors and the public Washington, DC 20549–1090. Supplementary Material to Rule 2102 to interest, it has become effective All submissions should refer to File require Equity EAMs to disclose pursuant to Section 19(b)(3)(A) of the Number SR–ISE–2008–73. This file additional risks associated with Act 11 and Rule 19b–4(f)(6) number should be included on the extended trading hours in Exchange thereunder.12 subject line if e-mail is used. To help the Traded Funds to customers. ISE has asked the Commission to Commission process and review your Additionally the Exchange is waive the 30-day operative delay. The comments more efficiently, please use proposing to amend Rule 2102(b) to Commission believes that such waiver is only one method. The Commission will precisely define the transition between consistent with the protection of post all comments on the Commission’s the Pre-Market Session and the Regular- investors and the public interest Internet Web site http://www.sec.gov/ Market Session as is described above. because such waiver should benefit rules/sro.shtml. Copies of the investors by allowing ISE, without submission, all subsequent 2. Statutory Basis undue delay, to expand its hours of amendments, all written statements trading, which should add competition The Exchange believes the proposed with respect to the proposed rule in the trading of equity securities and rule change is consistent with the Act change that are filed with the new derivative securities products. In and the rules and regulations under the Commission, and all written addition, proposed ISE Rule 2102 is Act applicable to a national securities communications relating to the closely modeled after similar rules of exchange and, in particular, the proposed rule change between the other national securities exchanges 13 requirements of Section 6(b) of the Act.9 Commission and any person, other than and does not raise any novel or Specifically, the Exchange believes the those that may be withheld from the significant regulatory issues. Therefore, proposed rule change is consistent with public in accordance with the the Commission designates the Section 6(b)(5) of the Act’s 10 provisions of 5 U.S.C. 552, will be requirements that the rules of a national available for inspection and copying in 11 15 U.S.C. 78s(b)(3)(A). the Commission’s Public Reference securities exchange be designed to 12 17 CFR 240.19b–4(f)(6). The Commission notes promote just and equitable principles of that ISE has satisfied the five-day pre-filing notice Room on official business days between trade, to prevent fraudulent and requirement. the hours of 10 a.m. and 3 p.m. Copies manipulative acts and, in general, to 13 See e.g., NYSE Arca Rule 7.34 and Securities of such filing will also be available for protect investors and the public interest. Exchange Act Release No. 54997 (December 21, inspection and copying at the principal 2006), 71 FR 78501 (December 29, 2006) (SR– office of the Exchange. All comments In particular, the proposed rule change NYSEArca–2006–77) (reflecting trading halt will allow the Exchange to provide a procedures for securities trading in extended received will be posted without change; competitive marketplace for Equity hours). See also Securities Exchange Act Release No. 56625 (October 5, 2007), 72 FR 58144 (October 14 For purposes only of waiving the operative date 12, 2007) (SR–NYSEArca–2007–73) (discussing of this proposal, the Commission has considered 9 15 U.S.C. 78f(b). disclosure to be included in regulatory information the rule’s impact on efficiency, competition, and 10 15 U.S.C. 78f(b)(5). bulletin). capital formation. See 15 U.S.C. 78c(f).

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the Commission does not edit personal Quote Traders (‘‘RSQTs’’),7 non-SQT number of contracts traded in a identifying information from ROTs,8 and specialists (collectively, particular option by each Phlx XL submissions. You should submit only ‘‘Phlx XL participants’’) when the Phlx participant within a specified time information that you wish to make XL system determines whether to period established by each Phlx XL available publicly. All submissions engage the Risk Monitor Mechanism (as participant (the ‘‘specified time should refer to File Number SR–ISE– defined more fully below) by calculating period’’). The specified time period 2008–73 and should be submitted on or the Net Offset Specified Engagement commences for an option when a before October 27, 2008. Size (as defined below). transaction occurs in any series in such For the Commission, by the Division of The text of the proposed rule change option. The specified time period may Trading and Markets, pursuant to delegated is available on the Exchange’s Web site not exceed 15 seconds; Phlx XL authority.15 at http://www.phlx.com/regulatory/ participants may, however, set the Florence E. Harmon, reg_rulefilings.aspx. specified time period for less than 15 Acting Secretary. seconds. II. Self-Regulatory Organization’s The system engages the Risk Monitor [FR Doc. E8–23489 Filed 10–3–08; 8:45 am] Statement of the Purpose of, and Mechanism in a particular option when BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule the counting program has determined Change that a Phlx XL participant has traded a SECURITIES AND EXCHANGE In its filing with the Commission, the Specified Engagement Size (as defined COMMISSION Exchange included statements below), as established by such Phlx XL concerning the purpose of and basis for participant, during the specified time [Release No. 34–58691; File No. SR–Phlx– the proposed rule change and discussed period. When such Phlx XL participant 2008–69] any comments it received on the has traded the Specified Engagement Size during the specified time period, Self-Regulatory Organizations; Notice proposed rule change. The text of these the Risk Monitor Mechanism of Filing and Immediate Effectiveness statements may be examined at the automatically removes such Phlx XL of Proposed Rule Change by the places specified in Item IV below. The participant’s quotations from the NASDAQ OMX PHLX, Inc. Relating to Exchange has prepared summaries, set Exchange’s disseminated quotation in the Phlx XL Risk Monitor Mechanism forth in sections A, B, and C below, of the most significant aspects of such all series of the particular option until September 30, 2008. statements. such Phlx XL participant submits a new, Pursuant to Section 19(b)(1) of the revised quotation. A. Self-Regulatory Organization’s Securities Exchange Act of 1934 Statement of the Purpose of, and Specified Engagement Size (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Statutory Basis for, the Proposed Rule notice is hereby given that on Each Phlx XL participant establishes Change September 18, 2008, the NASDAQ OMX a Specified Engagement Size for a 10 PHLX, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed 1. Purpose particular option. When such Phlx XL participant has traded the Specified with the Securities and Exchange The purpose of the proposed rule Commission (‘‘Commission’’) the Engagement Size during the specified change is to provide Phlx XL time period, the Risk Monitor proposed rule change as described in participants with additional protection Items I and II below, which Items have Mechanism automatically removes such from the unreasonable risk associated Phlx XL participant’s quotations from been prepared by Phlx. The Commission with the execution of an excessive is publishing this notice to solicit the Exchange’s disseminated quotation number of contracts resulting from near in all series of the particular option. comments on the proposed rule change simultaneous executions in a single from interested persons. The Specified Engagement Size is option issue. determined as follows: For each series I. Self-Regulatory Organization’s Risk Monitor Mechanism in an option, the counting program Statement of the Terms of Substance of would determine the percentage that the the Proposed Rule Change In January, 2006, the Exchange number of contracts executed in that adopted Rule 1093 and deployed the The Exchange, pursuant to Section series represents relative to the Phlx XL Risk Monitor Mechanism.9 The 19(b)(1) of the Act 3 and Rule 19b–4 disseminated size in that series (the 4 Phlx XL Risk Monitor Mechanism is a ‘‘series percentage’’). The counting thereunder, proposes to amend component of Phlx XL that counts the Exchange Rule 1093, Phlx XL Risk program would then determine the sum of the series percentages in the Monitor Mechanism, to reflect a system generate and submit option quotations change to its fully electronic trading electronically through an electronic interface with 10 A Phlx XL participant could establish the platform for options, Phlx XL.5 The AUTOM via an Exchange approved proprietary Specified Engagement Size as 100% or greater of electronic quoting device in eligible options to system change would eliminate the the number of contracts executed in each series which such SQT is assigned. See Exchange Rule during the specified time period relative to the current size offset of long calls vs. long 1014(b)(ii)(A). disseminated size. For example, a Phlx XL puts and short calls vs. short puts in the 7 An RSQT is an ROT that is a member or member participant could establish the Specified accounts of Exchange Streaming Quote organization with no physical trading floor Engagement Size as 200%, in which case the Risk 6 Traders (‘‘SQTs’’), Remote Streaming presence who has received permission from the Monitor Mechanism would not be engaged until Exchange to generate and submit option quotations 200% of the number of contracts in each series have electronically through AUTOM in eligible options 15 17 CFR 200.30–3(a)(12). been executed during the specified time period to which such RSQT has been assigned. An RSQT 1 15 U.S.C. 78s(b)(1). relative to the disseminated size. A Phlx XL may only submit such quotations electronically participant could also establish the Specified 2 17 CFR 240.19b–4. from off the floor of the Exchange. See Exchange Engagement Size as, for example, 120%, in which 3 15 U.S.C. 78s(b)(1). Rule 1014(b)(ii)(B). case the Risk Monitor Mechanism would not be 4 17 CFR 240.19b–4. 8 A non-SQT ROT is an ROT who is neither an engaged until 120% of the number of contracts in 5 See Securities Exchange Act Release No. 50100 SQT nor an RSQT. See Exchange Rule each series have been executed during the specified (July 27, 2004), 69 FR 44612 (August 3, 2004) (SR– 1014(b)(ii)(C). time period relative to the disseminated size. In any Phlx–2003–59) [sic]. 9 See Securities Exchange Act Release No. 53166 event, however, a Phlx XL participant may not 6 An SQT is a Registered Options Trader (‘‘ROT’’) (January 23, 2006), 71 FR 4625 (January 27, 2006) establish a Specified Engagement Size that is less who has received permission from the Exchange to (SR–Phlx–2006–05). than 100%.

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underlying option issue (the ‘‘issue the number of contracts executed on the option issue during the specified time percentage’’). Once the counting opposite side of the market during the period (the ‘‘Net Offset Specified program determines that the issue specified time period. The purpose of Engagement Size’’). percentage equals or exceeds a this provision is to account for the offset Currently, the Risk Monitor percentage established by the Phlx XL in risk of one option position created by Mechanism is engaged when the Net participant which may not be less than a position in the same option issue on Offset Specified Engagement Size is for 100% (the ‘‘Specified Percentage’’), the the opposite side of the market. Because a number of contracts executed among number of executed contracts in the the risk in such a situation is generally all series during the specified time option issue equals the Specified neutral, the Exchange believes that Phlx Engagement Size. period that represents an issue XL participants should continue percentage that is equal to or greater Offset on the Opposite Side of the executing contracts until the actual risk than the specified percentage. For Market that is created by the Specified example, currently a Phlx XL Currently, the Risk Monitor Engagement Size is realized. The participant that buys calls and also sells Mechanism calculates the number of Specified Engagement Size is thus calls or buys puts in the same option contracts executed on one side of the automatically offset by a number of during the specified time period would market during the specified time period, contracts that are executed on the have a Net Offset Specified Engagement and offsets that number of contracts by opposite side of the market in the same Size as follows:

Sell call/buy Net offset Series Size Buy call put size Percentage

Series 1 ...... 100 60 20 40 40 Series 2 ...... 50 100 80 20 40 Series 3...... 200 150 130 20 10 Series 4 ...... 150 75 60 15 10

Total ...... 500 385 290 95 100

In this example, 675 contracts have short put offset have unintentionally Instead, the two positions, when been executed during the specified time placed them at undue risk respecting combined, result in the aggregate period (buy calls 385 + sell calls/buy market volatility.11 negative volatility of the two positions. puts 290). The Net Offset Specified Specifically, any long option position, Initially, the Exchange intended to Engagement Size for each series is whether a put or call, involves a offset opposite side positions when determined by offsetting the number of positive volatility. Conversely, any short determining the Net Offset Specified contracts executed on the opposite side option position, whether a put or call, Engagement Size because the delta (i.e., of the market for each series during the involves a negative volatility. Therefore, price change of the overlying option as specified time period. The Risk Monitor a Phlx XL participant’s account that a percentage of the price change in the Mechanism is engaged once the Net includes a long call position and a long underlying security) risk of each Offset Specified Engagement Size is put position in the same option will respective position was offset by the executed for a net number of contracts have a total positive volatility among other. The Exchange did not, however, among all series during the specified the two positions. The two positions, consider the aggregate volatility created time period that represents an issue when combined, do not offset one by a long call/long put or short call/ percentage that is equal to or greater another respecting volatility. Instead, short put position. This combination than the specified percentage. the two positions, when combined, results in a total aggregate volatility, and Proposed Amendment to Net Offset result in the aggregate positive volatility such volatility is not offset by the Specified Engagement Size of the two positions. respective positions in the aggregate. Similarly, any short option position, Accordingly, the Exchange proposes As stated above, the Specified whether a put or call, involves a to eliminate the call/put offset provision Engagement Size is automatically offset negative volatility. from the Risk Monitor Mechanism and by the Net Offset Specified Engagement Therefore, a Phlx XL participant’s from the text of Rule 1093 in order to Size. Currently, for example, a Phlx XL account that includes a short call eliminate the undue volatility risk participant that buys calls and also sells position and a short put position in the currently imposed on Phlx XL calls or buys puts in the same option same option will have a total negative participants in this circumstance. The during the specified time period has a volatility among the two positions. The proposed rule change provides that long net Offset Specified Engagement Size two positions, when combined, do not call positions will only be offset by that takes into account all opposite sides offset one another respecting volatility. of the Phlx XL participants, including short call positions (and vice versa), and offset sizes respecting long call vs. long 11 While the sensitivity of an options price long put positions will only be offset by put positions, and short call vs. short relative to change in the price of the underlying short put positions. Eliminating the call/ put positions. security is measured in ‘‘delta’’, the sensitivity of put offset provides greater protection for Long call and long put (and short call an options price relative to change in the volatility Phlx XL participants who seek to of the underlying security is measured in ‘‘vega’’. and short put) offsets ignore volatility A relatively high vega in an options series means minimize their risk exposure when risk associated with options. Since the that the option has a relatively large extrinsic value utilizing the Risk Monitor Mechanism. inception and deployment on the (i.e., time premium of the option), thus affording The Exchange believes that this Exchange of the Risk Monitor more likelihood for the option premium price to protection should result in larger sized deviate significantly, and a relatively low volatility Mechanism, Phlx XL participants have means that the option has a relatively small bids and offers made by Phlx XL experienced situations where the long extrinsic value, thus affording a smaller likelihood participants, thus adding liquidity to the call/long put offset and the short call/ that the option price can change. Exchange’s markets while protecting

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Phlx XL participants from exposure to Commission may summarily abrogate be submitted on or before October 27, undue volatility risk respecting options such rule change if it appears to the 2008. positions. Commission that such action is For the Commission, by the Division of necessary or appropriate in the public 2. Statutory Basis Trading and Markets, pursuant to delegated interest, for the protection of investors, authority.16 The Exchange believes that its or otherwise in the furtherance of the Florence E. Harmon, proposal is consistent with Section 6(b) purposes of the Act. Acting Secretary. of the Act 12 in general, and furthers the [FR Doc. E8–23490 Filed 10–3–08; 8:45 am] objectives of Section 6(b)(5) of the Act 13 IV. Solicitation of Comments in particular, in that it is designed to Interested persons are invited to BILLING CODE 8011–01–P promote just and equitable principles of submit written data, views, and trade, to remove impediments to and arguments concerning the foregoing, SECURITIES AND EXCHANGE perfect the mechanism of a free and including whether the proposed rule COMMISSION open market and a national market change is consistent with the Act. system, and, in general to protect Comments may be submitted by any of [Release No. 34–58684; File No. SR– investors and the public interest, by the following methods: NASDAQ–2008–075] providing Phlx XL participants with Electronic Comments Self-Regulatory Organizations; The additional protection from exposure to NASDAQ Stock Market LLC; Notice of • Use the Commission’s Internet undue market risk through the Risk Filing and Immediate Effectiveness of comment form (http://www.sec.gov/ Monitor Mechanism. Proposed Rule Change Relating to rules/sro.shtml); or The Exchange further believes that the Trading the Two-Character Ticker • Send an e-mail to rule- proposed rule change is consistent with Symbol ‘‘TO’’ the Act because the risk protection [email protected]. Please include File afforded Phlx XL participants by way of Number SR–Phlx–2008–69 on the September 30, 2008. elimination of the long put/call and subject line. Pursuant to Section 19(b)(1) of the short put/call offsets should encourage Paper Comments Securities Exchange Act of 1934 them to quote options series with (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 • greater size, adding liquidity to the Send paper comments in triplicate notice is hereby given that on Exchange’s markets against which to Secretary, Securities and Exchange September 19, 2008, The NASDAQ customers can trade. Commission, 100 F Street, NE., Stock Market LLC (‘‘Nasdaq’’) filed with Washington, DC 20549–1090. B. Self-Regulatory Organization’s the Securities and Exchange Statement on Burden on Competition All submissions should refer to File Commission (‘‘Commission’’) the Number SR–Phlx–2008–69. This file proposed rule change as described in The Exchange does not believe that number should be included on the Items I, II, and III below, which Items the proposed rule change will impose subject line if e-mail is used. To help the have been substantially prepared by any burden on competition not Commission process and review your Nasdaq. Nasdaq filed the proposed rule necessary or appropriate in furtherance comments more efficiently, please use change pursuant to Section 19(b)(3)(A) of the purposes of the Act. only one method. The Commission will of the Act 3 and Rule 19b–4(f)(5) C. Self-Regulatory Organization’s post all comments on the Commission’s thereunder,4 which renders it effective Statement on Comments on the Internet Web site (http://www.sec.gov/ upon filing with the Commission. The Proposed Rule Change Received From rules/sro.shtml). Copies of the Commission is publishing this notice to Members, Participants or Others submission, all subsequent solicit comments on the proposed rule amendments, all written statements change from interested persons. No written comments were either with respect to the proposed rule I. Self-Regulatory Organization’s solicited or received. change that are filed with the Statement of the Terms of Substance of Commission, and all written III. Date of Effectiveness of the the Proposed Rule Change Proposed Rule Change and Timing for communications relating to the Commission Action proposed rule change between the Nasdaq proposes to trade the common Commission and any person, other than stock of Tech/Ops Sevcon, Inc. on Because the proposed rule change those that may be withheld from the Nasdaq using the two-character symbol effects a change in an existing order- public in accordance with the ‘‘TO.’’ entry or trading system that: (i) Does not provisions of 5 U.S.C. 552, will be significantly affect the protection of II. Self-Regulatory Organization’s available for inspection and copying in Statement of the Purpose of, and investors or the public interest; (ii) does the Commission’s Public Reference not impose any significant burden on Statutory Basis for, the Proposed Rule Room, 100 F Street, NE., Washington, Change competition; and (iii) does not have the DC 20549, on official business days effect of limiting the access to or between the hours of 10 a.m. and 3 p.m. In its filing with the Commission, availability of the system, the proposed Copies of such filing also will be Nasdaq included statements concerning rule change has become effective available for inspection and copying at the purpose of, and basis for, the pursuant to Section 19(b)(3)(A) of the the principal office of Phlx. All proposed rule change and discussed any Act 14 and subparagraph (f)(5) of Rule comments it received on the proposed 15 comments received will be posted 19b–4 thereunder. without change; the Commission does rule change. The text of these statements At any time within 60 days of the not edit personal identifying may be examined at the places specified filing of the proposed rule change, the information from submissions. You 16 should submit only information that 17 CFR 200.30–3(a)(12). 12 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). 13 15 U.S.C. 78f(b)(5). you wish to make available publicly. All 2 17 CFR 240.19b–4. 14 15 U.S.C. 78s(b)(3)(A). submissions should refer to File 3 15 U.S.C. 78s(b)(3)(A). 15 17 CFR 240.19b–4(f)(5). Number SR–Phlx–2008–69 and should 4 17 CFR 240.19b–4(f)(5).

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in Item IV below. Nasdaq has prepared CA, and on June 2, 2008, Hawaiian Tech/Ops Sevcon, Inc. on Nasdaq using summaries, set forth in Sections A, B, Holdings, Inc. transferred to Nasdaq the symbol TO on October 1, 2008. and C below, of the most significant from the American Stock Exchange and While this filing relates to the transfer aspects of such statements. maintained its two-character symbol, of this issuer, Nasdaq remains HA 10 Nasdaq states that there have been committed to working with the A. Self-Regulatory Organization’s no trading problems reported to Nasdaq Commission and other markets to Statement of the Purpose of, and as a result of listing securities on establish an equitable and transparent Statutory Basis for, the Proposed Rule Nasdaq with two-character or three- symbol assignment plan.13 Change character symbols. 2. Statutory Basis 1. Purpose Nasdaq now proposes to allow Tech/ Nasdaq believes that the proposed Historically, securities listed on Ops Sevcon, Inc., which currently rule change is consistent with the Nasdaq have traded using four or five trades on another domestic market with provisions of Section 6 of the Act,14 in character symbols.5 In 2005, however, the two-character symbol TO, to transfer general and with Section 6(b)(5) of the Nasdaq announced its intent to allow its common stock to Nasdaq and Act,15 in particular, in that it is designed companies listed on Nasdaq to also use continue using that two-character to prevent fraudulent and manipulative one, two or three character symbols symbol. Nasdaq believes that allowing acts and practices, to promote just and beginning on January 31, 2007.6 This this company to maintain its symbol equitable principles of trade, to remove announcement was designed to provide will reduce investor confusion and impediments to a free and open market market participants and vendors the promote competition among exchanges. and a national market system, and, in time needed to make required changes Specifically, allowing Tech/Ops Sevcon general, to protect investors and the to their own systems that may be to maintain its trading symbol will public interest. As described above, the affected by the change. Since February reduce investor confusion associated proposed rule change will reduce 20, 2007, Nasdaq has had the ability to with its transfer to Nasdaq because investor confusion and encourage accept and distribute Nasdaq-listed investors will continue to be able to competition between national securities securities with one, two or three obtain quotations and execute trades exchanges. character symbols. Nasdaq reminded using the same familiar symbol and will market participants about this change allow the issuer to maintain a symbol B. Self-Regulatory Organization’s again on March 1, 2007, stressing that that has become a part of its identity to Statement on Burden on Competition investors.11 Further, Nasdaq believes ‘‘[a]ll customers should have completed Nasdaq does not believe that the their coding and testing efforts to ensure that permitting Tech/Ops Sevcon to maintain its symbol will enhance proposed rule change will result in any their readiness to support 1-, 2- and 3- burden on competition that is not character NASDAQ-listed issues,’’ 7 and competition among exchanges by removing concerns about investor necessary or appropriate in furtherance on March 22, 2007, Delta Financial of the purposes of the Act, as amended. Corporation transferred to Nasdaq from confusion surrounding its symbol from the American Stock Exchange and the factors a company must consider C. Self-Regulatory Organization’s maintained its three-character symbol, when choosing where to list its equities. Statement on Comments on the DFC.8 Subsequently, the Commission This proposal is also consistent with the Proposed Rule Change Received From approved a rule change to permit any historical practice of allowing Members, Participants or Others company to transfer from another companies to maintain their symbols when they switch among national Written comments were neither exchange to Nasdaq and maintain its 12 solicited nor received. three-character symbols.9 On April 28, securities exchanges. Given the foregoing, Nasdaq believes 2008, CA, Inc. transferred to Nasdaq III. Date of Effectiveness of the that market participants were provided from the New York Stock Exchange and Proposed Rule Change and Timing for adequate notice of this change and are maintained its two-character symbol, Commission Action prepared to accommodate the trading of The foregoing rule change has become this company on Nasdaq using the 5 This includes securities listed on Nasdaq’s effective pursuant to Section 19(b)(3)(A) symbol TO. Further, Nasdaq believes predecessor market, operated as a facility of the of the Act 16 and Rule 19b–4(f)(5) NASD. that any change to the symbol will cause thereunder 17 in that it effects a change 6 See Head Trader Alert 2005–133 (November 14, confusion among investors and market 2005), available at: http://www.nasdaqtrader.com/ participants. As such, Nasdaq proposes to an order-entry or trading system that: TraderNews.aspx?id=hta2005–133 and Vendor to begin trading the common stock of (i) Does not significantly affect the Alert 2005–070 (November 14, 2005), available at: protection of investors or the public http://www.nasdaqtrader.com/ TraderNews.aspx?id=nva2005–070. See also Head 10 See Securities Exchange Act Release Nos. interest; (ii) does not impose any Trader Alert 2006–144 (September 29, 2006), 57696 (April 22, 2008), 73 FR 22987 (April 28, significant burden on competition; and available at: http://www.nasdaqtrader.com/ 2008) (SR–NASDAQ–2008–034 relating to CA) and (iii) does not have the effect of limiting TraderNews.aspx?id=hta2006–144, Head Trader 57875 (May 27, 2008), 73 FR 31524 (June 2, 2008) the access to or availability of the Alert 2006–193 (November 16, 2006), available at: (SR–NASDAQ–2008–047 relating to HA). http://www.nasdaqtrader.com/ 11 A market transfer will still be transparent to system. As such, this proposed rule TraderNews.aspx?id=hta2006–193 and Vendor investors because, under the Commission’s rules, a change is effective upon filing with the Alert 2006–065 (October 4, 2006), available at: company must announce the transfer of its listing Commission. http://www.nasdaqtrader.com/ on a Form 8–K. See Form 8–K, item 3.01(d). In At any time within 60 days of the TraderNews.aspx?id=nva2006–065. addition, the issuer must publish notice of its intent 7 Head Trader Alert 2007–050 (March 1, 2007), to withdraw a class of securities from listing and/ filing of a proposed rule change, the available at: http://www.nasdaqtrader.com/ or registration, along with its reasons for such Commission may summarily abrogate TraderNews.aspx?id=hta2007–050. withdrawal, via a press release and, if it has a such rule change if it appears to the 8 See Securities Exchange Act Release No. 55519 publicly accessible Web site, on that Web site. See (March 26, 2007) 72 FR 15737 (April 2, 2007) (SR– Rule 12d2–2(c)(2)(iii) under the Act, 17 CFR 13 See Securities Exchange Act Release No. 56037 NASDAQ–2007–025). 240.12d2–2(c)(2)(iii). 9 12 (July 10, 2007) 72 FR 39096 (July 17, 2007). See Securities Exchange Act Release No. 56028 See, e.g., Darwin Professional Underwriters, Inc 14 (July 9, 2007), 72 FR 38639 (July 13, 2007) (from NYSE Arca to NYSE keeping the symbol DR), 15 U.S.C. 78(a). (approving SR–NASDAQ–2007–031). Over 30 Fund, Inc. (from NYSE to Amex keeping the 15 15 U.S.C. 78f(b)(5). companies with three-character symbols have listed symbol CH), and iShares NYSE 100 (from NYSE to 16 15 U.S.C. 78s(b)(3)(A). on Nasdaq. NYSE Arca keeping the symbol NY). 17 17 CFR 240.19b–4(f)(5).

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Commission that such action is For the Commission, by the Division of expand the availability of its PO Order necessary or appropriate in the public Trading and Markets, pursuant to delegated type (‘‘PO Plus Proposal’’).5 NYSE 18 interest, for the protection of investors, authority. Arca’s PO Order is a market or limit or otherwise in furtherance of the Florence E. Harmon, order that is to be routed to the primary purposes of the Act. Acting Secretary. market in that security without first [FR Doc. E8–23488 Filed 10–3–08; 8:45 am] attempting to access liquidity on the IV. Solicitation of Comments BILLING CODE 8011–01–P NYSE Arca book. The PO Orders are Interested persons are invited to routed to the primary market through submit written data, views, and NYSE Arca’s routing broker-dealer, Arca arguments concerning the foregoing, SECURITIES AND EXCHANGE Securities, which is an affiliate of NYSE including whether the proposed rule COMMISSION Arca as described more fully below. The change is consistent with the Act. [Release No. 34–58680; File No. SR–NYSE– ‘‘primary market’’ may be the New York Comments may be submitted by any of 2008–76] Stock Exchange LLC (‘‘NYSE’’) or the the following methods: American Stock Exchange LLC Self-Regulatory Organizations; New 6 Electronic Comments (‘‘Amex’’), each of which, as described York Stock Exchange LLC; Order more fully below, also is (or will be) an • Use the Commission’s Internet Granting Accelerated Approval of affiliate of NYSE Arca and Arca comment form (http://www.sec.gov/ Proposed Rule Change, as Modified by Securities. rules/sro.shtml ); or Amendment No. 1 Thereto, Amending Such orders, currently, may only be • Send an e-mail to rule- NYSE Rule 2B To Establish entered until a cut-off time established [email protected]. Please include File Procedures Designed To Manage from time to time by the Exchange.7 In Number SR–NASDAQ–2008–075 on the Potential Informational Advantages its PO Plus Proposal, NYSE Arca subject line. Resulting From the Affiliation Between the Exchange and Archipelago 5 See Securities Exchange Act Release No. 58431 Paper Comments Securities L.L.C. (August 27, 2008), 73 FR 51681 (September 4, • Send paper comments in triplicate 2008). The Commission today is approving NYSE September 29, 2008. Arca’s proposed rule change. See Securities to Secretary, Securities and Exchange Exchange Act Release No. 58681 (September 29, Commission, 100 F Street, NE., I. Introduction 2008) (SR–NYSEArca–2008–90) (‘‘PO Plus Washington, DC 20549–1090. Approval Order’’). On August 20, 2008, the New York On February 13, 2008, NYSE Arca filed a All submissions should refer to File Stock Exchange LLC (‘‘NYSE’’ or proposal to modify its PO Order pursuant to Number SR–NASDAQ–2008–075. This ‘‘Exchange’’), filed with the Securities 19(b)(3)(A), making it effective upon filing with the file number should be included on the and Exchange Commission Commission. See Securities Exchange Act Release subject line if e-mail is used. To help the No. 57377 (February 25, 2008), 73 FR 11177 (‘‘Commission’’), pursuant to Section (February 29, 2008) (SR–NYSEArca–2008–19). The Commission process and review your 19(b)(1) of the Securities Exchange Act Commission abrogated the proposal on April 11, comments more efficiently, please use of 1934 (‘‘Exchange Act’’) 1 and Rule 2008, noting that it has, in the past, expressed only one method. The Commission will 19b–4 thereunder,2 a proposed rule concern about the potential for unfair competition post all comments on the Commission’s and conflicts of interest between an exchange’s self- change amending NYSE Rule 2B to regulatory obligations and its commercial interests Internet Web site (http://www.sec.gov/ establish procedures designed to if an exchange were affiliated with one of its rules/sro.shtml ). Copies of the manage potential informational members, as well as the potential for unfair submission, all subsequent advantages resulting from the affiliation competitive advantage that the affiliated member amendments, all written statements could have by virtues of informational or between the Exchange and Archipelago operational advantages, or the ability to receive with respect to the proposed rule Securities L.L.C. (‘‘Arca Securities’’), an preferential treatment. See Securities Exchange Act change that are filed with the NYSE affiliated member. On September Release No. 57648 (April 11, 2008), 73 FR 20981 Commission, and all written 4, 2008, the proposed rule change was (April 17, 2008) at note 9 and accompanying text. communications relating to the The Commission noted that NYSE Arca’s filing published for comment in the Federal raised this issue by expanding the activities of Arca proposed rule change between the Register.3 The Commission received no Securities in sending orders to its affiliate, the Commission and any person, other than comments on the proposed rule change. NYSE, and therefore should be subject to notice and those that may be withheld from the On September 25, 2008, NYSE filed comment and review pursuant to Sections 19(b)(1) and 19(b)(2) of the Act. See id. at note 10 and public in accordance with the 4 Amendment No. 1. This order approves accompanying text. Further, the Commission stated provisions of 5 U.S.C. 552, will be the proposed rule change, as modified that the issue of whether the routing of PO Orders available for inspection and copying in by Amendment No. 1, on an accelerated by Arca Securities to the NYSE is consistent with the Commission’s Public Reference basis. existing NYSE and NYSE Arca rules should be Room, 100 F Street, NE., Washington, subject to notice and comment pursuant to Sections II. Background 19(b)(1) and 19(b)(2) of the Act. See id. at note 11 DC 20549, on official business days and accompanying text. between the hours of 10 a.m. and 3 p.m. A. NYSE Arca’s PO Plus Proposal 6 Amex will change its name to NYSE Alternext Copies of such filing also will be US in connection with the acquisition of Amex by available for inspection and copying at On August 20, 2008, NYSE Arca, Inc. NYSE Euronext. See Securities Exchange Act the principal office of the Exchange. All (‘‘NYSE Arca’’) filed with the Release No. 58673 (September 29, 2008) (order Commission a proposed rule change to approving a proposed rule change related to the comments received will be posted acquisition of the Amex by NYSE Euronext) (SR– without change; the Commission does Amex–2008–62; SR–NYSE–2008–60) (‘‘NYSE 18 not edit personal identifying 17 CFR 200.30–3(a)(12). Alternext US Order’’). The transaction is expected 1 15 U.S.C. 78s(b)(1). information from submissions. You to close shortly. 2 17 CFR 240.19b–4. 7 See NYSE Arca Equities Rule 7.31(x). Currently, should submit only information that 3 See Securities Exchange Act Release No. 58430 a PO Order entered for participation in the primary you wish to make available publicly. All (August 27, 2008), 73 FR 51678 (‘‘Notice’’). market opening must be entered before 6:28 a.m. submissions should refer to File 4 In Amendment No. 1, NYSE requested that the (Pacific Time), and a PO Order entered for Number SR–NASDAQ–2008–075 and Commission accelerate approval of the proposed participation in the primary market re-opening after rule change. Because Amendment No. 1 is technical a trading halt must be entered after trading was should be submitted on or before in nature, the Commission is not publishing it for halted on NYSE Arca and before the re-opening October 27, 2008. comment. time. See id.

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proposes to modify the PO Order type Securities also operates as a facility of with NYSE’s trading rules, and will so that such orders may be entered at NYSE and similarly provides outbound collect and maintain certain related any time throughout the trading day and routing from NYSE to other market information.18 be immediately routed to the primary, centers,14 subject to the conditions that: • Third, NYSE states that NYSE listing market for execution.8 Further, (1) Arca Securities is operated and Regulation has agreed with NYSE that it the proposal permits an entering party regulated as a facility of the NYSE; (2) will provide a report to NYSE’s CRO, on to designate a PO Order as an the primary regulatory responsibility for a quarterly basis, that: (i) Quantifies all Intermarket Sweep Order (as defined in Arca Securities lies with an unaffiliated alerts (of which NYSE Regulation is Rule 600(b) of Regulation NMS under SRO; and (3) the use of Arca Securities’s aware) that identify Arca Securities as a the Act).9 The expanded PO order is for outbound routing is available only to participant that has potentially violated referred to as a PO Plus order.10 NYSE members and the use of Arca NYSE or Commission rules, and (ii) Securities’s routing functions remains quantifies the number of all B. Arca Securities Routing Function optional.15 investigations that identify Arca NYSE Euronext, a Delaware Currently, the operation of Arca Securities as a participant that has Corporation (‘‘NYSE Euronext’’) Securities as a facility of NYSE and potentially violated NYSE or currently indirectly owns Arca NYSE Arca providing outbound routing Commission rules.19 Securities, a broker-dealer that is a services from those exchanges is subject, • Fourth, NYSE proposes an member of the NYSE. In addition, NYSE respectively, to NYSE and NYSE Arca amendment to Rule 2B that will require Euronext indirectly owns two registered oversight, as well as Commission NYSE Euronext, as the holding securities exchanges—NYSE Arca and oversight. NYSE and NYSE Arca are company owning both NYSE and Arca NYSE—and has entered into an each responsible for ensuring that Arca Securities, to establish and maintain agreement to acquire a third exchange, Securities is operated consistent with procedures and internal controls Amex.11 Thus, Arca Securities is (or Section 6 of the Act and their respective reasonably designed to ensure that Arca will be) an affiliate of each of these rules. In addition, NYSE and NYSE Securities does not develop or exchanges. Arca, respectively, must file with the implement changes to its system, based NYSE Rule 2B prohibits NYSE, or any Commission rule changes and fees on non-public information obtained entity with which it is affiliated, from relating to Arca Securities. regarding planned changes to the NYSE acquiring or maintaining an ownership Recognizing that the Commission has systems as a result of its affiliation with interest in a member, absent prior previously expressed concern regarding NYSE, until such information is Commission approval. Thus, Arca the potential for conflicts of interest in available generally to similarly situated Securities’ affiliation with NYSE would instances where a member firm is members of NYSE, in connection with violate NYSE rules, absent Commission affiliated with an exchange to which it the provision of inbound order routing approval. is routing orders, NYSE proposes to to NYSE.20 The Commission has approved Arca accept inbound orders that its affiliate • Fifth, NYSE proposes that routing Securities’s affiliation with, and Arca Securities routes in its capacity as of PO Plus Orders from Arca Securities operation as a facility of, NYSE Arca for a facility of NYSE Arca, subject to the to NYSE, in Arca Securities’ capacity as the provision of outbound routing from following limitations and conditions: a facility of NYSE Arca, be authorized NYSE Arca to other market centers,12 • First, NYSE states that NYSE and for a pilot period of twelve months.21 13 FINRA have entered into an agreement subject to certain conditions. Arca III. Discussion pursuant to Rule 17d–2 under the Act. 8 A PO Order would have to be a day or Pursuant to this agreement, FINRA is After careful review, the Commission immediate-or-cancel (‘‘IOC’’) order. If the PO Order allocated regulatory responsibilities to finds that the proposed rule change is is not an IOC order it would remain at the venue review Arca Securities’ compliance with consistent with the requirements of the to which it was routed, until executed, cancelled, 16 Act and the rules and regulations or the end of day. Further, under the proposal, PO certain NYSE rules. NYSE, however, Orders entered for participation in the primary retains ultimate responsibility for thereunder applicable to a national market, other than for participation in the primary enforcing its rules with respect to Arca securities exchange.22 In particular, the market opening or primary market re-opening, must Securities. be marked with the modifier PO+. Such orders • Second, NYSE Regulation 17 will NYSE Regulation also performs many of the would be eligible for entry and execution regulatory functions of NYSE Arca pursuant to a throughout the trading day. monitor Arca Securities for compliance regulatory services agreement. See Securities 9 17 CFR 240.600(b). In addition, in its filing Exchange Act Release Nos. 53382 (February 27, NYSE Arca proposes that: (1) The use of certain Securities only provide outbound routing services; 2006), 71 FR 11251 (March 6, 2006) (SR–NYSE– non-public information by Arca Securities be (3) the primary regulatory responsibility for Arca 2005–77) (order approving the combination of the restricted; (2) NYSE Regulation, Inc. (‘‘NYSE Securities would lie with an unaffiliated SRO; and New York Stock Exchange, Inc. and Archipelago Regulation’’) would collect and maintain certain (4) the use of Arca Securities for outbound routing Holdings) (‘‘NYSE/Arca Order) at 11255. information with respect to Arca Securities; and (3) is available only to NYSE Arca members and use 18 Specifically, NYSE Regulation ‘‘will collect and routing by Arca Securities in its capacity as a of Arca Securities routing functions remains maintain the following information of which NYSE facility of NYSE, to NYSE Arca, be authorized for optional. Id. Regulation staff becomes aware—namely, all alerts, a pilot period of 12 months. 14 See Securities Exchange Act Release No. 55590 complaints, investigations and enforcement actions 10 See PO Plus Approval Order, supra note 5. (April 5, 2007), 72 FR 18707 (April 13, 2007) (SR– where Arca Securities (in its capacity as a facility 11 See NYSE Alternext US Order, supra note 6. NYSE–2007–29) (order filed for immediate of NYSE Arca, routing orders to NYSE) is identified 12 Such outbound routing includes the routing of effectiveness to, among other things, establish a as a participant that has potentially violated NYSE PO Orders to the primary market. mechanism to route orders from NYSE to away or applicable SEC rules—in an easily accessible 13 See Securities Exchange Act Release No. 52497 market centers). See also Notice, supra note 3, at manner so as to facilitate any review conducted by (September 22, 2005), 70 FR 56949 (September 29, notes 14 to 16 and accompanying text. the SEC’s Office of Compliance Inspections and 15 Examination.’’ See Notice, supra note 3, at section 2005) (SR–PCX–2005–90) (order approving a Id. II.A.1.c. proposed rule change in connection with the 16 NYSE also states that Arca Securities is subject 19 acquisition of the Pacific Exchange, Inc. (‘‘PCX’’, n/ to independent oversight by FINRA, its Designated See id. k/a NYSE Arca) by Archipelago Holdings, Inc.). Examining Authority, for compliance with financial 20 See proposed NYSE Rule 2B. Arca Securities’ operation as a facility providing responsibility requirements. See Notice, supra note 21 See Notice, supra note 3, at section II.A.1.(e). outbound routing for NYSE Arca was (and 3, at section II.A.1.c. 22 In approving this proposed rule change, the continues to be) subject to the conditions that: (1) 17 NYSE Regulation is a wholly owned subsidiary Commission has considered the proposed rule’s Arca Securities continue to operate and be of the NYSE that performs the regulatory functions impact on efficiency, competition, and capital regulated as a facility of NYSE Arca; (2) Arca of the NYSE pursuant to a delegation agreement. formation. See 15 U.S.C. 78c(f).

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Commission finds that the proposed activities, which are enumerated above. proposed rule change was published for rule change is consistent with Section The Commission believes that these the full 21-day comment period,32 and 6(b)(5) of the Act,23 which requires, conditions mitigate its concerns about the comment period ended on among other things, that the rules of an potential conflicts of interest and unfair September 25, 2008. No comments were exchange be designed to prevent competitive advantage. In particular, the received on the proposal. fraudulent and manipulative acts and Commission believes that FINRA’s Accordingly, the Commission finds practices; to promote just and equitable oversight of Arca Securities,27 combined good cause for approving the proposed principles of trade; to foster cooperation with NYSE Regulation’s monitoring of rule change on an accelerated basis, and coordination with persons engaged Arca Securities’ compliance with pursuant to Section 19(b)(2) of the Act. in regulating, clearing, settling, NYSE’s trading rules and quarterly V. Conclusion processing information with respect to, reporting to NYSE’s CRO, will help to and facilitating transactions in protect the independence of NYSE’s It is therefore ordered, pursuant to securities; to remove impediments to regulatory responsibilities with respect Section 19(b)(2) of the Act,33 that the and perfect the mechanism of a free and to Arca Securities. The Commission also proposed rule change (SR–NYSE–2008– open market and a national market believes that the proposed amendment 76), as modified by Amendment No. 1 system; and, in general, to protect to NYSE Rule 2B 28 is designed to thereto, be, and hereby is, approved on investors and the public interest; and ensure that Arca Securities cannot use an accelerated basis. are not designed to permit unfair any information advantage it may have For the Commission, by the Division of discrimination between customers, because of its affiliation with NYSE. Trading and Markets, pursuant to delegated issuers, brokers, or dealers. Furthermore, the Commission believes authority.34 In the past, the Commission has that NYSE’s proposal to allow Arca Florence E. Harmon, expressed concern that the affiliation of Securities to route PO Plus orders Acting Secretary. an exchange with one of its members inbound to NYSE from NYSE Arca, on [FR Doc. E8–23486 Filed 10–3–08; 8:45 am] raises potential conflicts of interest, and a pilot basis, will provide NYSE and the BILLING CODE 8011–01–P the potential for unfair competitive Commission an opportunity to assess advantage.24 The proposed expansion of the impact of any conflicts of interest of NYSE Arca’s PO Order type, which the allowing an affiliated member of NYSE SECURITIES AND EXCHANGE 25 Commission approved today, will to route orders inbound to NYSE and COMMISSION expand the activities of Arca Securities whether such affiliation provides an in routing orders to the NYSE. Although unfair competitive advantage. [Release No. 34–58681; File No. SR– the Commission continues to be NYSEArca–2008–90] concerned about potential unfair IV. Accelerated Approval competition and conflicts of interest NYSE has asked the Commission to Self-Regulatory Organizations; NYSE between an exchange’s self-regulatory accelerate approval of the proposed rule Arca, Inc.; Order Granting Accelerated obligations and its commercial interest change. NYSE notes that the proposed Approval of Proposed Rule Change, as when the exchange is affiliated with one rule change reflects the Exchange’s Modified by Amendment No. 1 Thereto, of its members, for the reasons efforts to address concerns identified by Amending NYSE Arca Equities Rule discussed below, the Commission the Commission regarding informational 7.31(x) to Change the Permissible believes that it is consistent with the advantages favoring Arca Securities and Order Entry Time and Eligibility of Its Act to permit Arca Securities to provide states in part that ‘‘accelerated approval Primary Only Order and Amending inbound routing to NYSE, subject to the * * * will permit the Exchange to NYSE Arca Equities Rule 14.3 to conditions described above.26 immediately address this issue.’’ 29 The Establish Procedures Designed To NYSE has proposed five conditions Commission finds good cause for Manage Potential Informational applicable to Arca Securities routing approving the proposed rule change Advantages Resulting From the prior to the thirtieth day after the date Affiliation Between the Exchange and 23 15 U.S.C. 78f(b)(5). of publication of notice of filing in the Archipelago Securities L.L.C. 24 See, e.g., Securities Exchange Act Release No. Federal Register.30 The Commission September 29, 2008. 54170 (July 18, 2006), 71 FR 42149 (July 25, 2006) notes that the protections proposed by (SR–NASDAQ–2006–006) (order approving Nasdaq’s proposal to adopt Nasdaq Rule 2140, NYSE, which are designed to address I. Introduction restricting affiliations between Nasdaq and its conflict of interest concerns identified On August 20, 2008, NYSE Arca, Inc., members), and NYSE/Arca Order, supra note 15. by the Commission in connection with (‘‘NYSE Arca’’ or ‘‘Exchange’’), filed 25 See PO Plus Approval Order, supra note 5. the inbound routing of orders to an with the Securities and Exchange 26 See supra notes 16–21 and accompanying text. exchange when the routing broker- See also PO Plus Approval Order, supra note 5 Commission (‘‘Commission’’), pursuant (approving the routing of orders by Arca Securities, dealer is an affiliate of that exchange, to Section 19(b)(1) of the Securities in its capacity as a facility of NYSE, to NYSE Arca) are consistent with those approved by Exchange Act of 1934 (‘‘Exchange 31 and NYSE Alternext US Order, supra note 6 the Commission in another rule filing. Act’’) 1 and Rule 19b–4 thereunder,2 a (including approval of NYSE Alternext US’s The Commission also notes that the affiliation with Arca Securities for purposes of proposed rule change to (i) amend routing orders, in its capacity as a facility of NYSE NYSE Arca Equities Rule 7.31(x) to 27 Arca and NYSE, to NYSE Alternext US). This oversight will be accomplished through the 17d–2 agreement between FINRA and NYSE. change the permissible order entry time This order approves only the routing of orders by See supra note 16 and accompanying text. and eligibility of its Primary Only Order Arca Securities, in its capacity as a facility of NYSE 28 Arca, to NYSE, subject to the conditions discussed See supra note 20 and accompanying text. type (‘‘PO Order’’) and (ii) amend NYSE herein. This approval does not include Arca 29 See Amendment No. 1, supra note 4. Arca Equities Rule 14.3 to establish Securities providing routing of orders from Amex, 30 15 U.S.C. 78s(b)(2). Pursuant to Section 19(b)(2) procedures designed to manage which will be affiliated with NYSE Arca following of the Act, the Commission may not approve any Amex’s acquisition by NYSE Euronext, to NYSE. proposed rule change, or amendment thereto, prior 32 See supra note 3 and accompanying text. Amex does not currently use Arca Securities to to the thirtieth day after the date of publication of 33 route orders to other markets and has not requested notice thereof, unless the Commission finds good 15 U.S.C. 78s(b)(2). approval of such in its filing related to its cause for so doing. 34 17 CFR 200.30–3(a)(12). acquisition by NYSE Euronext. See NYSE Alternext 31 See NYSE Alternext US Order, supra note 6, at 1 15 U.S.C. 78s(b)(1). U.S. Order, supra note 6). section III.D.2. 2 17 CFR 240.19b–4.

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potential information advantages Arca as described more fully below. The Inc. (‘‘NYSE Group’’); 9 and (2) NYSE resulting from the affiliation between ‘‘primary market’’ may be the New York Group, or any entity with which it is the Exchange and Archipelago Stock Exchange LLC (‘‘NYSE’’) or the affiliated, from maintaining an Securities L.L.C. (‘‘Arca Securities’’). On American Stock Exchange LLC ownership interest in a member. Thus, September 4, 2008, the proposed rule (‘‘Amex’’),6 each of which, as described Arca Securities’s affiliation with NYSE change was published for comment in more fully below, also is (or will be) an Arca would violate NYSE Arca rules, the Federal Register.3 The Commission affiliate of NYSE Arca and Arca absent Commission approval. received no comments on the proposed Securities. The Commission has approved Arca rule change. On September 25, 2008, NYSE Arca proposes to modify the PO Securities affiliation with, and operation NYSE Arca filed Amendment No. 1.4 Order type so that such orders may be as a facility of, NYSE Arca for the This order approves the proposed rule entered at any time throughout the provision of outbound routing from change, as modified by Amendment No. trading day and be immediately routed NYSE Arca to other market centers,10 1, on an accelerated basis. to the primary, listing market for subject to certain conditions.11 Arca execution. A PO Order would have to be Securities’s operation as a facility II. Background a day or immediate-or-cancel (‘‘IOC’’) providing outbound routing for NYSE A. PO Plus Proposal order. If the PO Order is not an IOC Arca was (and continues to be) subject NYSE Arca proposes to expand the order it would remain at the venue to to the conditions that: (1) Arca availability of its PO Order type. NYSE which it was routed, until executed, Securities continue to operate and be Arca’s PO Order is a market or limit cancelled, or the end of day. Further, regulated as a facility of NYSE Arca; (2) order that is to be routed to the primary under the proposal, PO Orders entered Arca Securities only provide outbound market in that security without first for participation in the primary market, routing services; (3) the primary attempting to access liquidity on the other than for participation in the regulatory responsibility for Arca NYSE Arca book. Such orders, primary market opening or primary Securities would lie with an unaffiliated currently, may only be entered until a market re-opening, must be marked with SRO; and (4) the use of Arca Securities the modifier PO+. Such orders would be for outbound routing is available only to cut-off time established from time to eligible for entry and execution NYSE Arca members and use of Arca time by the Exchange.5 The orders are throughout the trading day. Finally, the Securities’s routing function remains routed to the primary market through proposal permits an entering party to optional.12 Arca Securities also operates NYSE Arca’s routing broker-dealer, Arca designate a PO Order as an Intermarket as a facility of NYSE and similarly Securities, which is an affiliate of NYSE Sweep Order (as defined in Rule 600(b) provides outbound routing from NYSE of Regulation NMS under the Act).7 to other market centers, subject to 3 See Securities Exchange Act Release No. 58431 (August 27, 2008), 73 FR 51681 (‘‘PO Plus Notice’’). In addition, NYSE Arca proposes that: conditions similar to those listed 13 On February 13, 2008, NYSE Arca filed a (1) The use of certain non-public above. proposal to modify its PO Order pursuant to information by Arca Securities would be Currently, the operation of Arca 19(b)(3)(A), making it effective upon filing with the restricted; (2) NYSE Regulation, Inc. Securities as a facility of NYSE Arca and Commission. See Securities Exchange Act Release (‘‘NYSE Regulation’’) would collect and NYSE providing outbound routing No. 57377 (February 25, 2008), 73 FR 11177 (February 29, 2008) (SR–NYSEArca–2008–19). The maintain certain information with services from those exchanges is subject, Commission abrogated the proposal on April 11, respect to Arca Securities; and (3) respectively, to NYSE Arca and NYSE 2008, noting that it has, in the past, expressed routing by Arca Securities to NYSE oversight, as well as Commission concern about the potential for unfair competition Arca, in Arca Securities’s capacity as a oversight. NYSE Arca and NYSE are and conflicts of interest between an exchange’s self- regulatory obligations and its commercial interests facility of NYSE, be authorized for a each responsible for ensuring that Arca if an exchange were affiliated with one of its pilot period of 12 months. Securities is operated consistent with members, as well as the potential for unfair Section 6 of the Act and their respective B. Arca Securities Routing Function competitive advantage that the affiliated member rules. In addition, NYSE Arca and could have by virtues of informational or NYSE Euronext, a Delaware operational advantages, or the ability to receive NYSE, respectively, must file with the preferential treatment. See Securities Exchange Act Corporation (‘‘NYSE Euronext’’) Commission rule changes and fees Release No. 57648 (April 11, 2008), 73 FR 20981 currently indirectly owns Arca relating to Arca Securities. (April 17, 2008) at note 9 and accompanying text. Securities, a broker-dealer, that is a Recognizing that the Commission has The Commission noted that NYSE Arca’s filing member of NYSE Arca. In addition, previously expressed concern regarding raised this issue by expanding the activities of Arca Securities in sending orders to its affiliate, the NYSE Euronext indirectly owns two the potential for conflicts of interest in NYSE, and therefore should be subject to notice and registered securities exchanges—NYSE instances where a member firm is comment and review pursuant to Sections 19(b)(1) Arca and NYSE—and has entered into affiliated with an exchange to which it and 19(b)(2) of the Act. See id. at note 10 and an agreement to acquire a third is routing orders, NYSE Arca proposes accompanying text. Further, the Commission stated securities exchange—Amex.8 Thus, that the issue of whether the routing of PO Orders by Arca Securities to the NYSE is consistent with Arca Securities is (or will be) an affiliate 9 NYSE is wholly owned by NYSE Group, which existing NYSE and NYSE Arca rules should be of each of these exchanges. is in turn wholly owned by NYSE Euronext. subject to notice and comment and review pursuant NYSE Arca Equities Rule 3.10 10 Such outbound routing includes the routing of to Sections 19(b)(1) and 19(b)(2) of the Act. See id. prohibits: (1) An NYSE Arca member PO Orders to the primary market. 11 at note 11 and accompanying text. from being affiliated with NYSE Group, See Securities Exchange Act Release No. 52497 4 In Amendment No. 1, NYSE Arca requested that (September 22, 2005), 70 FR 56949 (September 29, the Commission accelerate approval of the 2005) (SR–PCX–2005–90) (order approving proposed rule change. Because Amendment No. 1 6 Amex will change its name to NYSE Alternext proposed rule changes in connection with the is technical in nature, the Commission is not US LLC in connection with the acquisition of Amex acquisition of the Pacific Exchange, Inc. (‘‘PCX,’’ publishing it for comment. by NYSE Euronext. See Securities Exchange Act n/k/a NYSE Arca) by Archipelago Holdings, Inc.). 5 See NYSE Arca Equities Rule 7.31(x). Currently, Release No. 58673 (September 29, 2008) (SR– 12 Id. a PO Order entered for participation in the primary Amex–2008–62; SR–NYSE–2008–60) (order 13 See PO Plus Notice, supra note 3, at notes 19– market opening must be entered before 6:28 a.m. approving a proposed rule change related to the 21 and accompanying text. See also Securities (Pacific Time), and a PO Order entered for acquisition of the Amex by NYSE Euronext) Exchange Act Release No. 55590 (April 5, 2007), 72 participation in the primary market re-opening after (‘‘NYSE Alternext US Order’’). The transaction is FR 18707 (April 13, 2007) (SR–NYSE–2007–29) a trading halt must be entered after trading was expected to close shortly. (order filed for immediate effectiveness to among halted on NYSE Arca and before the re-opening 7 17 CFR 240.600(b). other things, establish a mechanism to route orders time. See id. 8 See NYSE Alternext US Order, supra note 6. from NYSE to away market centers).

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to accept inbound orders that its with NYSE Arca, until such information NYSE Arca, on a pilot basis, subject to affiliate, Arca Securities, routes in its is available generally to similarly the conditions described above.23 capacity as a facility of NYSE, subject to situated members of NYSE Arca, in NYSE Arca has proposed five the following limitations and connection with the provision of conditions applicable to Arca Securities conditions: inbound order routing to NYSE Arca.18 routing activities, which are enumerated • First, NYSE Arca states that FINRA • Fifth, NYSE Arca proposes that above. The Commission believes that and NYSE Arca have entered into an routing from Arca Securities to NYSE these conditions mitigate its concerns agreement pursuant to Rule 17d–2 Arca, in Arca Securities’s capacity as a about potential conflicts of interest and under the Act. Pursuant to this facility of NYSE, be authorized for a unfair competitive advantage. In agreement, FINRA is allocated pilot period of twelve months.19 particular, the Commission believes that regulatory responsibilities to review FINRA’s oversight of Arca Securities,24 Arca Securities’ compliance with III. Discussion combined with NYSE Regulation’s certain NYSE Arca rules.14 NYSE Arca, monitoring of Arca Securities’ however, retains ultimate responsibility After careful review, the Commission compliance with NYSE Arca’s trading for enforcing its rules with respect to finds that the proposed rule change is rules and quarterly reporting to NYSE Arca Securities. consistent with the requirements of the Arca’s CRO, will help to protect the • 15 Second, NYSE Regulation will Act and the rules and regulations independence of NYSE Arca’s monitor Arca Securities for compliance thereunder applicable to a national regulatory responsibilities with respect 20 with NYSE Arca’s trading rules, and securities exchange. In particular, the to Arca Securities. The Commission also will collect and maintain certain related Commission finds that the proposed believes that proposed NYSE Arca 16 information. rule change is consistent with Section Equities Rule 14.3(e) 25 is designed to • Third, NYSE Arca states that NYSE 21 6(b)(5) of the Act, which requires, ensure that Arca Securities cannot use Regulation has agreed with NYSE Arca among other things, that the rules of an any information advantage it may have that it will provide a report to NYSE exchange be designed to prevent because of its affiliation with NYSE Arca’s CRO, on a quarterly basis, that: fraudulent and manipulative acts and Arca. Furthermore, the Commission (i) Quantifies all alerts (of which NYSE practices; to promote just and equitable believes that NYSE Arca’s proposal to Regulation is aware) that identify Arca principles of trade; to foster cooperation allow Arca Securities to route orders Securities as a participant that has and coordination with persons engaged inbound to NYSE Arca from NYSE, on potentially violated NYSE Arca or in regulating, clearing, settling, a pilot basis, will provide NYSE Arca Commission rules, and (ii) quantifies processing information with respect to, the number of all investigations that and the Commission an opportunity to and facilitating transactions in assess the impact of any conflicts of identify Arca Securities as a participant securities; to remove impediments to that has potentially violated NYSE Arca interest of allowing an affiliated member 17 and perfect the mechanism of a free and of NYSE Arca to route orders inbound or Commission rules. open market and a national market • Fourth, NYSE Arca proposes new to NYSE Arca and whether such system; and, in general, to protect Rule 14.3(e) that will require NYSE affiliation provides an unfair Euronext, as the holding company investors and the public interest; and competitive advantage. owning both NYSE Arca and Arca are not designed to permit unfair The Commission also finds the Securities, to establish and maintain discrimination between customers, expansion of the PO Order consistent procedures and internal controls issuers, brokers, or dealers. with the Act. The expanded PO Order reasonably designed to ensure that Arca In the past, the Commission has will provide NYSE Arca members Securities does not develop or expressed concern that the affiliation of greater choice in the handling of their implement changes to its system, based an exchange with one of its members orders, and their method of compliance on non-public information obtained raises potential conflicts of interest, and with their obligations under Rule 611 of regarding planned changes to the NYSE the potential for unfair competitive Regulation NMS.26 Arca systems as a result of its affiliation advantage.22 Although the Commission continues to be concerned about 23 See supra notes 14–19 and accompanying text. 14 NYSE Arca also states that Arca Securities is potential unfair competition and See also Securities Exchange Act Release No. 58680 (September 29, 2008) (SR–NYSE–2008–76) subject to independent oversight by FINRA, its conflicts of interest between an Designated Examining Authority, for compliance (approving the expansion of the routing of order by with financial responsibility requirements. See PO exchange’s self-regulatory obligations Arca Securities, in its capacity as a facility of NYSE Plus Notice, supra note 3, at section II.A.1.c. and its commercial interest when the Arca, to NYSE) and NYSE Alternext US Order, 15 NYSE Regulation is a wholly owned subsidiary exchange is affiliated with one of its supra note 6 (including approval of NYSE Alternext US’s affiliation with Arca Securities for purposes of of the NYSE that performs the regulatory functions members, for the reasons discussed of the NYSE pursuant to a delegation agreement. Arca Securities routing orders, in its capacity as a NYSE Regulation also performs many of the below, the Commission believes that it facility of NYSE Arca and NYSE, to NYSE Alternext regulatory functions of NYSE Arca pursuant to a is consistent with the Act to permit Arca US). regulatory services agreement. See Securities Securities to provide inbound routing to This order approves only the routing of orders by Exchange Act Release No. 53382 (February 27, Arca Securities, in its capacity as a facility of the 2006), 71 FR 11251 (March 6, 2006) (SR–NYSE– NYSE, to NYSE Arca, subject to the conditions 2005–77) (‘‘NYSE/Arca Order’’) at 11255. 18 See proposed NYSE Arca Equities Rule 14.3(e). discussed herein. This approval does not include 16 Specifically, NYSE Regulation ‘‘will collect and 19 See PO Plus Notice, supra note 3, at section Arca Securities providing routing of orders from maintain the following information of which NYSE II.A.1.(e). Amex, which will be affiliated with NYSE Arca Regulation staff becomes aware—namely, all alerts, 20 In approving this proposed rule change, the following Amex’s acquisition by NYSE Euronext, to complaints, investigations and enforcement actions Commission has considered the proposed rule’s NYSE Arca. Amex does not currently use Arca where Arca Securities (in its capacity as a facility impact on efficiency, competition, and capital Securities to route orders to other markets and has of NYSE, routing orders to NYSE Arca) is identified formation. See 15 U.S.C. 78c(f). not requested approval of such in its filing related as a participant that has potentially violated NYSE 21 15 U.S.C. 78f(b)(5). to its acquisition by NYSE Euronext. See NYSE Arca or applicable SEC rules—in an easily 22 See, e.g. , Securities Exchange Act Release No. Alternext US Order, supra note 6. accessible manner so as to facilitate any review 54170 (July 18, 2006), 71 FR 42149 (July 25, 2006) 24 This oversight will be accomplished through conducted by the SEC’s Office of Compliance (SR–NASDAQ–2006–006) (order approving the 17d–2 agreement among FINRA and NYSE Inspections and Examination.’’ See PO Plus Notice, Nasdaq’s proposal to adopt Nasdaq Rule 2140, Arca. See supra note 14 and accompanying text. supra note 3, at section II.A.1.c. restricting affiliations between Nasdaq and its 25 See supra note 18 and accompanying text. 17 See id. members), and NYSE/Arca Order, supra note 15. 26 17 CFR 240.611.

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IV. Accelerated Approval SMALL BUSINESS ADMINISTRATION disaster for Public Assistance Only for the State of Florida (FEMA–1785–DR), [Disaster Declaration # 11409 and # 11410] NYSE Arca has asked the Commission dated 08/24/2008. to accelerate approval of the proposed Florida Disaster Number FL–00035 Incident: Tropical Storm Fay. rule change. NYSE Arca states in part Incident Period: 08/18/2008 through that ‘‘accelerated approval * * * will AGENCY: U.S. Small Business 09/12/2008. eliminate certain competitive Administration. DATES: Effective Date: 09/24/2008. disadvantages that exist by permitting ACTION: Amendment 5. Physical Loan Application Deadline the Exchange to immediately offer Date: 10/23/2008. directed orders to its Users.’’ 27 The SUMMARY: This is an amendment of the Economic Injury (EIDL) Loan Commission finds good cause for Presidential declaration of a major Application Deadline Date: 05/25/2009. disaster for the State of Florida (FEMA– approving the proposed rule change ADDRESSES: Submit completed loan prior to the thirtieth day after the date 1785–DR), dated 08/26/2008. applications to: U.S. Small Business Incident: Tropical Storm Fay. of publication of notice of filing in the Administration, Processing and Incident Period: 08/18/2008 through Federal Register.28 The Commission Disbursement Center, 14925 Kingsport 09/12/2008. notes that the protections proposed by Road, Fort Worth, TX 76155. DATES: Effective Date: 09/24/2008. NYSE Arca, which are designed to FOR FURTHER INFORMATION CONTACT: A. Physical Loan Application Deadline address conflict of interest concerns Escobar, Office of Disaster Assistance, Date: 10/27/2008. identified by the Commission in U.S. Small Business Administration, EIDL Loan Application Deadline Date: connection with the inbound routing of 409 3rd Street, SW., Suite 6050, 05/26/2009. orders to an exchange when the routing Washington, DC 20416. ADDRESSES: Submit completed loan broker-dealer is an affiliate of that SUPPLEMENTARY INFORMATION: The notice applications to: U.S. Small Business exchange, are consistent with those of the President’s major disaster Administration, Processing and approved by the Commission in another declaration for Private Non-Profit Disbursement Center, 14925 Kingsport rule filing.29 The Commission also notes organizations in the State of Florida, Road, Fort Worth, TX 76155. that the proposed rule change was dated 08/24/2008, is hereby amended to published for the full 21-day comment FOR FURTHER INFORMATION CONTACT: A. include the following areas as adversely period,30 and the comment period Escobar, Office of Disaster Assistance, affected by the disaster. ended on September 25, 2008. No U.S. Small Business Administration, Primary Counties: Lee. comments were received on the 409 3rd Street, SW., Suite 6050, Washington, DC 20416. All other counties contiguous to the proposal. SUPPLEMENTARY INFORMATION: The notice above named primary county have Accordingly, the Commission finds of the Presidential disaster declaration previously been declared. good cause for approving the proposed for the State of Florida, dated 08/26/ All other information in the original rule change, on an accelerated basis, 2008 is hereby amended to include the declaration remains unchanged. pursuant to Section 19(b)(2) of the Act. following areas as adversely affected by (Catalog of Federal Domestic Assistance V. Conclusion the disaster: Numbers 59002 and 59008) Primary Counties (Physical Damage and Herbert L. Mitchell, It is therefore ordered, pursuant to Economic Injury Loans): Alachua, Associate Administrator for Disaster 31 Section 19(b)(2) of the Act, that the Gadsden, Liberty, Martin. Assistance. proposed rule change (SR–NYSEArca– Contiguous Counties (Economic Injury [FR Doc. E8–23428 Filed 10–3–08; 8:45 am] 2008–90), as modified by Amendment Loans Only): BILLING CODE 8025–01–P No. 1 thereto, be, and hereby is, Florida: Calhoun, Gilchrist, Gulf, approved on an accelerated basis. Jackson. Georgia: Decatur, Seminole. For the Commission, by the Division of SMALL BUSINESS ADMINISTRATION All other information in the original Trading and Markets, pursuant to delegated [Disaster Declaration # 11449 and # 11450] authority.32 declaration remains unchanged. Florence E. Harmon, (Catalog of Federal Domestic Assistance Indiana Disaster Number IN–00026 Numbers 59002 and 59008) Acting Secretary. AGENCY: U.S. Small Business [FR Doc. E8–23487 Filed 10–3–08; 8:45 am] Herbert L. Mitchell, Administration. Associate Administrator for Disaster BILLING CODE 8011–01–P ACTION: Amendment 1. Assistance. [FR Doc. E8–23426 Filed 10–3–08; 8:45 am] SUMMARY: This is an amendment of the BILLING CODE 8025–01–P Presidential declaration of a major disaster for the State of Indiana (

27 FEMA–1795–DR ) , dated 09/23/2008. See Amendment No. 1, supra note 4. SMALL BUSINESS ADMINISTRATION 28 15 U.S.C. 78s(b)(2). Pursuant to Section 19(b)(2) Incident: Severe Storms and Flooding. of the Act, the Commission may not approve any [Disaster Declaration # 11411] Incident Period: 09/12/2008 and proposed rule change, or amendment thereto, prior Continuing. to the thirtieth day after the date of publication of Florida Disaster Number FL–00036 DATES: Effective Date: 09/26/2008. notice thereof, unless the Commission finds good cause for so doing. AGENCY: U.S. Small Business Physical Loan Application Deadline 29 See NYSE Alternext US Order, supra note 6, at Administration. Date: 11/24/2008. EIDL Loan Application Deadline Date: section III.D.2. ACTION: Amendment 6. 30 See supra note 3 and accompanying text. 06/23/2009. 31 15 U.S.C. 78s(b)(2). SUMMARY: This is an amendment of the ADDRESSES: Submit completed loan 32 17 CFR 200.30–3(a)(12). Presidential declaration of a major applications to: U.S. Small Business

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Administration, Processing and SUPPLEMENTARY INFORMATION: The notice Marion, Pearl River, Pike, Stone, Disbursement Center, 14925 Kingsport of the President’s major disaster Walthall, Wilkinson. Road, Fort Worth, TX 76155. declaration for the State of Iowa, dated Contiguous Counties/Parishes FOR FURTHER INFORMATION CONTACT: A. 05/27/2008 is hereby amended to (Economic Injury Loans Only): Escobar, Office of Disaster Assistance, extend the deadline for filing Mississippi: Covington, Greene, U.S. Small Business Administration, applications for physical damages as a Hinds, Jones, Lamar, Perry, Rankin, 409 3rd Street, SW., Suite 6050, result of this disaster to 10/31/2008. Simpson, Warren. Washington, DC 20416. All other information in the original Alabama: Mobile, Washington. SUPPLEMENTARY INFORMATION: The notice declaration remains unchanged. Louisiana: Concordia, East Feliciana, of the Presidential disaster declaration (Catalog of Federal Domestic Assistance St. Helena, St. Tammany, for the State of Indiana, dated 09/23/ Numbers 59002 and 59008) Tangipahoa, Tensas, Washington, 2008 is hereby amended to include the West Feliciana. following areas as adversely affected by Herbert L. Mitchell, The Interest Rates are: the disaster: Associate Administrator for Disaster Assistance. Primary Counties (Physical Damage and Percent Economic Injury Loans): Harrison, [FR Doc. E8–23462 Filed 10–3–08; 8:45 am] BILLING CODE 8025–01–P Other (Including Non-Profit Orga- Jefferson, Jennings. nizations) with Credit Available Contiguous Counties (Economic Injury Elsewhere ...... 5.250 Loans Only): SMALL BUSINESS ADMINISTRATION Businesses and Non-Profit Orga- Indiana: Bartholomew, Clark, nizations without Credit Avail- Crawford, Decatur, Floyd, Jackson, [Disaster Declaration # 11451] able Elsewhere ...... 4.000 Ripley, Scott, , Washington. Mississippi Disaster # MS–00025 The Number Assigned to this Disaster Kentucky: Carroll, Hardin, Jefferson, AGENCY: for Physical Damage and Economic Meade, Trimble. U.S. Small Business Administration. Injury is 11451. All other information in the original ACTION: Notice. (Catalog of Federal Domestic Assistance declaration remains unchanged. Numbers 59002 and 59008) (Catalog of Federal Domestic Assistance SUMMARY: This is a Notice of the Herbert L. Mitchell, Numbers 59002 and 59008) Presidential declaration of a major Associate Administrator for Disaster Herbert L. Mitchell, disaster for Public Assistance Only for Assistance. the State of Mississippi ( FEMA–1794– Associate Administrator for Disaster [FR Doc. E8–23430 Filed 10–3–08; 8:45 am] DR), dated 09/22/2008. Assistance. BILLING CODE 8025–01–P [FR Doc. E8–23432 Filed 10–3–08; 8:45 am] Incident: Hurricane Gustav. Incident Period: 08/28/2008 through BILLING CODE 8025–01–P 09/08/2008. SMALL BUSINESS ADMINISTRATION DATES: Effective Date: 09/22/2008. SMALL BUSINESS ADMINISTRATION Physical Loan Application Deadline [Disaster Declaration # 11458 and # 11459] Date: 11/24/2008. Mississippi Disaster # MS–00024 [Disaster Declaration # 11264 and # 11265] Economic Injury (EIDL) Loan Iowa Disaster Number IA–00015 Application Deadline Date: 06/22/2009. AGENCY: U.S. Small Business ADDRESSES: Submit completed loan Administration. AGENCY: U.S. Small Business applications to: U.S. Small Business ACTION: Notice. Administration. Administration, Processing and ACTION: Amendment 14. Disbursement Center, 14925 Kingsport SUMMARY: This is a Notice of the Road, Fort Worth, TX 76155. Presidential declaration of a major SUMMARY: This is an amendment of the disaster for the State of Mississippi Presidential declaration of a major FOR FURTHER INFORMATION CONTACT: A. Escobar, Office of Disaster Assistance, (FEMA–1794–DR), dated 09/26/2008. disaster for the State of Iowa (FEMA– Incident: Hurricane Gustav. 1763–DR), dated 05/27/2008. U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Incident Period: 08/28/2008 through Incident: Severe Storms, Tornadoes, 09/08/2008. and Flooding. Washington, DC 20416. DATES: Incident Period: 05/25/2008 through SUPPLEMENTARY INFORMATION: Notice is Effective Date: 09/26/2008. 08/13/2008. hereby given that as a result of the Physical Loan Application Deadline Date: 11/25/2008. DATES: Effective Date: 09/25/2008. President’s major disaster declaration on Physical Loan Application Deadline 09/22/2008, Private Non-Profit Economic Injury (EIDL) Loan Date: 10/31/2008. organizations that provide essential Application Deadline Date: 06/26/2009. EIDL Loan Application Deadline Date: services of governmental nature may file ADDRESSES: Submit completed loan 02/27/2009. disaster loan applications at the address applications to: U.S. Small Business ADDRESSES: Submit completed loan listed above or other locally announced Administration, Processing and applications to: U.S. Small Business locations. Disbursement Center, 14925 Kingsport Administration, Processing and The following areas have been Road, Fort Worth, TX 76155. Disbursement Center, 14925 Kingsport determined to be adversely affected by FOR FURTHER INFORMATION CONTACT: A. Road, Fort Worth, TX 76155. the disaster: Escobar, Office of Disaster Assistance, FOR FURTHER INFORMATION CONTACT: A. Primary Counties: Adams, Amite, U.S. Small Business Administration, Escobar, Office of Disaster Assistance, Claiborne, Copiah, Forrest, 409 3rd Street, SW., Suite 6050, U.S. Small Business Administration, Franklin, George, Hancock, Washington, DC 20416. 409 3rd Street, SW., Suite 6050, Harrison, Jackson, Jefferson, SUPPLEMENTARY INFORMATION: Notice is Washington, DC 20416. Jefferson Davis, Lawrence, Lincoln, hereby given that as a result of the

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President’s major disaster declaration on Economic Injury (EIDL) Loan SUMMARY: The SBA is issuing this notice 09/26/2008, applications for disaster Application Deadline Date: 06/25/2009. to announce the location, date, time, loans may be filed at the address listed ADDRESSES: Submit completed loan and agenda for the next meeting of the above or other locally announced applications to: U.S. Small Business Region II Buffalo District Advisory locations. Administration, Processing and Council. The meeting will be open to The following areas have been Disbursement Center, 14925 Kingsport the public. determined to be adversely affected by Road, Fort Worth, TX 76155. DATES: The meeting will be held on the disaster: FOR FURTHER INFORMATION CONTACT: A. October 15, 2008 from approximately Primary Counties (Physical Damage and Escobar, Office of Disaster Assistance, 9:30 a.m. to 11:30 a.m. Eastern Standard Economic Injury Loans): Hancock, U.S. Small Business Administration, Time. Harrison, Washington. 409 3rd Street, SW., Suite 6050, ADDRESSES: The meeting will be held at Contiguous Counties/Parishes Washington, DC 20416. the Buffalo Club, 388 Delaware Avenue, (Economic Injury Loans Only): Buffalo, New York, 14202. Mississippi: Bolivar, Humphreys, SUPPLEMENTARY INFORMATION: Notice is SUPPLEMENTARY INFORMATION: Pursuant Issaquena, Jackson, Pearl River, hereby given that as a result of the to section 10(a)(2) of the Federal Sharkey, Stone, Sunflower. Administrator’s disaster declaration, Arkansas: Chicot. applications for disaster loans may be Advisory Committee Act (5 U.S.C., Louisiana: Saint Tammany. filed at the address listed above or other Appendix 2), SBA announces the meeting of the Region II Buffalo District The Interest Rates are: locally announced locations. The following areas have been Advisory Council. The Region II Buffalo Percent determined to be adversely affected by District Advisory Council is tasked with the disaster: providing information of public interest. For Physical Damage: Primary Counties: Montgomery. The purpose of the meeting is so the Homeowners with Credit Avail- Contiguous Counties: council can provide advice and able Elsewhere ...... 5.750 opinions regarding the effectiveness of Pennsylvania: Berks, Bucks, Chester, Homeowners without Credit and need for SBA programs, particularly Delaware, Lehigh, Philadelphia. Available Elsewhere ...... 2.875 the local districts which members Businesses with Credit Avail- The Interest Rates are: represent. The agenda will include: able Elsewhere ...... 8.000 District office, SBA program, and Other (Including Non-Profit Or- Percent ganizations) With Credit disaster updates, lending activity Available Elsewhere ...... 5.250 Homeowners with Credit Available reports, small business week, event Businesses and Non-Profit Or- Elsewhere ...... 5.750 announcements, and roundtable ganizations Without Credit Homeowners without Credit Avail- discussion on small business issues. Available Elsewhere ...... 4.000 able Elsewhere ...... 2.875 FOR FURTHER INFORMATION CONTACT: The For Economic Injury:. Businesses with Credit Available meeting is open to the public; however, Businesses & Small Agricultural Elsewhere ...... 8.000 advance notice of attendance is Cooperatives Without Credit Businesses & Small Agricultural Available Elsewhere ...... 4.000 Cooperatives without Credit requested. Anyone wishing to attend Available Elsewhere ...... 4.000 and/or make a presentation to the The number assigned to this disaster Other (Including Non-Profit Orga- Region II Buffalo District Advisory for physical damage is 114588 and for nizations) with Credit Available Council must contact Franklin J. economic injury is 114590. Elsewhere ...... 5.250 Sciortino, District Director, Buffalo Businesses and Non-Profit Orga- District Office by October 10, by fax or (Catalog of Federal Domestic Assistance nizations without Credit Avail- e-mail in order to be placed on the Numbers 59002 and 59008) able Elsewhere ...... 4.000 agenda. Franklin J. Sciortino, District Herbert L. Mitchell, Director, Buffalo District Office, U.S. Associate Administrator for Disaster The number assigned to this disaster Small Business Administration, 540 Assistance. for physical damage is 11454 5 and for Niagara Center, 130 S. Elmwood [FR Doc. E8–23463 Filed 10–3–08; 8:45 am] economic injury is 11455 0. The State Avenue, Buffalo, New York 14202; which received an EIDL Declaration # is BILLING CODE 8025–01–P telephone (716) 551–4301 or fax (716) Pennsylvania. 551–4418. (Catalog of Federal Domestic Assistance Additionally, if you need SMALL BUSINESS ADMINISTRATION Numbers 59002 and 59008) accommodations because of a disability or require additional information, please [Disaster Declaration #11454 and #11455] September 25, 2008. Sandy K. Baruah, contact Kelly Lotempio, BDS/PIO, Buffalo District Office, U.S. Small Pennsylvania Disaster #PA–00019 Acting Administrator. Business Administration, 540 Niagara AGENCY: U.S. Small Business [FR Doc. E8–23464 Filed 10–3–08; 8:45 am] Center, 130 S. Elmwood Avenue, Administration. BILLING CODE 8025–01–P Buffalo, New York 14202; telephone ACTION: Notice. (716) 551–4301, [email protected] SMALL BUSINESS ADMINISTRATION or fax (716) 551–4418. SUMMARY: This is a notice of an For more information, please visit our Administrative declaration of a disaster Region II Buffalo District Advisory Web site at http://www.sba.gov/ny/ for the Commonwealth of Pennsylvania buffalo. dated 09/25/2008. Council; Public Meeting Dated: September 29, 2008. Incident: Apartment Building Fire. AGENCY: U.S. Small Business Cherylyn Lebon, Incident Period: 09/19/2008. Administration. DATES: Effective Date: 09/25/2008. SBA Committee Management Officer. ACTION: Notice of open Federal advisory Physical Loan Application Deadline [FR Doc. E8–23460 Filed 10–3–08; 8:45 am] committee meeting. Date: 11/24/2008. BILLING CODE 8025–01–P

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SMALL BUSINESS ADMINISTRATION 312 of the Act and section 107.730, the aggregate more than ten percent of Financings which Constitute Conflicts Invivodata, Inc. Therefore this Emergence Capital Partners SBIC, L.P., of Interest of the Small Business transaction is considered a financing of License No. 09/79–0454; Notice Administration (‘‘SBA’’) Rules and an Associate requiring prior SBA Seeking Exemption Under Section 312 Regulations (13 CFR 107.730). approval. of the Small Business Investment Act, Emergence Capital Partners SBIC, L.P. Conflicts of Interest Notice is hereby given that any proposes to provide equity/debt security interested person may submit written Notice is hereby given that Emergence financing to Kidzui, Inc., 2448 Historic comments on the transaction within Capital Partners SBIC, L.P., 160 Bovet Decatur Road, Suite 105, San Diego, CA fifteen days of the date of this Road, Suite 300, San Mateo, CA 94402, 92106. publication to the Associate The financing is brought within the a Federal Licensee under the Small Administrator for Investment, U.S. purview of § 107.730(a)(1) of the Business Investment Act of 1958, as Small Business Administration, 409 Regulations because Emergence Capital amended (‘‘the Act’’), in connection Third Street, SW., Washington, DC Partners, L.P. and Emergence Capital with the financing of a small concern, 20416. has sought an exemption under Section Associates, L.P., Associates of 312 of the Act and Section 107.730, Emergence Capital Partners SBIC, L.P., Dated: September 23, 2008. Financings which Constitute Conflicts own in the aggregate more than ten A. Joseph Shepard, of Interest of the Small Business percent of Kidzui, Inc. Therefore this Associate Administrator for Investment. Administration (‘‘SBA’’) Rules and transaction is considered a financing of [FR Doc. E8–23466 Filed 10–3–08; 8:45 am] an Associate requiring prior SBA Regulations (13 CFR 107.730). BILLING CODE 8025–01–P Emergence Capital Partners SBIC, L.P. approval. proposes to provide equity/debt security Notice is hereby given that any financing to InQ, Inc., 30501 Agoura interested person may submit written SMALL BUSINESS ADMINISTRATION Road, Suite 203, Agoura Hills, CA comments on the transaction, within fifteen days of the date of this 91301. [License No. 09/79–0454] The financing is brought within the publication, to the Associate Administrator for Investment, U.S. purview of § 107.730(a)(1) of the Emergence Capital Partners SBIC, Small Business Administration, 409 Regulations because Emergence Capital L.P.; Notice Seeking Exemption Under Partners, L.P. and Emergence Capital Third Street, SW., Washington, DC 20416. Section 312 of the Small Business Associates, L.P., both Associates of Investment Act, Conflicts of Interest Emergence Capital Partners SBIC, L.P., Dated: September 22, 2008. own in the aggregate more than ten A. Joseph Shepard, Notice is hereby given that Emergence percent of InQ, Inc. Therefore this Associate Administrator for Investment. Capital Partners SBIC, L.P., 160 Bovet transaction is considered a financing of [FR Doc. E8–23465 Filed 10–3–08; 8:45 am] Road, Suite 300, San Mateo, CA 94402, an Associate requiring prior SBA BILLING CODE 8025–01–P a Federal Licensee under the Small approval. Business Investment Act of 1958, as Notice is hereby given that any amended (‘‘the Act’’), in connection interested person may submit written SMALL BUSINESS ADMINISTRATION with the financing of a small concern, comments on the transaction, within has sought an exemption under section fifteen days of the date of this [License No. 09/79–0454] 312 of the Act and section 107.730, publication, to the Associate Financings which Constitute Conflicts Administrator for Investment, U.S. Emergence Capital Partners SBIC, of Interest of the Small Business Small Business Administration, 409 L.P.; Notice Seeking Exemption Under Administration (‘‘SBA’’) Rules and Third Street, SW., Washington, DC Section 312 of the Small Business Regulations (13 CFR 107.730). 20416. Investment Act, Conflicts of Interest Emergence Capital Partners SBIC, L.P. Dated: September 22, 2008. Notice is hereby given that Horizon proposes to provide equity/debt security A. Joseph Shepard, Ventures Fund II, L.P., 4 Main Street, financing to Bill.com, Inc., 3520 Ash Associate Administrator for Investment. Suite 50, Los Altos, CA 94022, a Federal Street, Palo Alto, CA 94306. [FR Doc. E8–23461 Filed 10–3–08; 8:45 am] Licensee under the Small Business Investment Act of 1958, as amended The financing is brought within the BILLING CODE 8025–01–P (‘‘the Act’’), in connection with the purview of § 107.730(a)(1) of the financing of a small concern, has sought Regulations because Emergence Capital Partners, L.P. and Emergence Capital SMALL BUSINESS ADMINISTRATION an exemption under Section 312 of the Act and Section 107.730, Financings Associates, L.P., both Associates of [License No. 09/79–0454] which Constitute Conflicts of Interest of Emergence Capital Partners SBIC, L.P., the Small Business Administration own more than ten percent of Bill.com, Emergence Capital Partners SBIC, Inc., and therefore this transaction is L.P.; Notice Seeking Exemption Under (‘‘SBA’’) Rules and Regulations (13 CFR 107.730). Horizon Ventures Fund II, L.P. considered a financing of an Associate Section 312 of the Small Business requiring prior SBA approval. Investment Act, Conflicts of Interest proposes to provide equity/debt security financing to Invivodata, Inc., 2100 Notice is hereby given that any Notice is hereby given that Emergence Wharton Street, Suite 505, Pittsburgh, interested person may submit written Capital Partners SBIC, L.P., 160 Bovet PA 15203. comments on the transaction, within Road, Suite 300, San Mateo, CA 94402, The financing is brought within the fifteen days of the date of this a Federal Licensee under the Small purview of § 107.730(a)(1) of the publication, to the Associate Business Investment Act of 1958, as Regulations because Horizon Ventures Administrator for Investment, U.S. amended (‘‘the Act’’), in connection Fund I, L.P. and Horizon Ventures Small Business Administration, 409 with the financing of a small concern, Advisors Fund I, L.P., both Associates of Third Street, SW., Washington, DC has sought an exemption under section Horizon Ventures Fund II, L.P., own in 20416.

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Dated: September 8, 2008. DEPARTMENT OF STATE Asian and Pacific Affairs, Department of A. Joseph Shepard, State; (Outside Member); [Public Notice 6374] Associate Administrator for Investment. Linda Jacobson, Assistant Legal [FR Doc. E8–23468 Filed 10–3–08; 8:45 am] Notice of Intent To Establish the Global Adviser, Office of the Legal Adviser, Department of State; BILLING CODE 8025–01–P AIDS Coordinator’s Expert Panel on Prevention of Mother-to-Child Susan H. Swart, Chief Information Transmission of HIV Officer, Bureau of Information Resource Management, Department of State; SMALL BUSINESS ADMINISTRATION SUMMARY: Pursuant to section 309 of the (Outside Member); United States Global Leadership Against Linda S. Taglialatela, Deputy [License No. 09/79–0454] HIV/AIDS, Tuberculosis, and Malaria Assistant Secretary, Bureau of Human Reauthorization Act of 2008, (‘‘the Resources, Department of State; and Emergence Capital Partners SBIC, Act’’), Public Law 110–293, this is a James E. Tyckoski, Office Director, L.P.; Notice Seeking Exemption Under notice of intent to establish the Global Office of Resource Planning and Budget, Section 312 of the Small Business AIDS Coordinator’s Expert Panel on Bureau of Resource Management, Investment Act, Conflicts of Interest Prevention of Mother-to-Child Department of State. Transmission of HIV. Notice is hereby given that Emergence Dated: September 17, 2008. Purpose: The objectives and scope of Harry K. Thomas, Jr., Capital Partners SBIC, L.P., 160 Bovet activities of the Expert Panel are to Director General of the Foreign Service and Road, Suite 300, San Mateo, CA 94402, provide an objective review of activities a Federal Licensee under the Small Director of Human Resources, Department to prevent mother-to-child transmission of State. Business Investment Act of 1958, as of HIV (human immunodeficiency virus, [FR Doc. E8–23570 Filed 10–3–08; 8:45 am] amended (‘‘the Act’’), in connection the pathogen that causes Acquired BILLING CODE 4710–05–P with the financing of a small concern, Immune Deficiency Syndrome (AIDS)), has sought an exemption under section and to provide a report and 312 of the Act and section 107.730, recommendations to the Global AIDS DEPARTMENT OF TRANSPORTATION Financings which Constitute Conflicts Coordinator and to the appropriate of Interest of the Small Business congressional committees for scale-up of Office of the Secretary Administration (‘‘SBA’’) Rules and prevention of Mother-to-Child Regulations (13 CFR 107.730). transmission prevention services. [DOT–0ST–2008–0296] Membership: The Panel shall consist Emergence Capital Partners SBIC, L.P. Notice of Rights and Protections of not more than fifteen members proposes to provide equity/debt security Available Under the Federal appointed by the Global AIDS financing to PivotLink, Inc., 15325 SE Antidiscrimination and Whistleblower Coordinator. Members of the Panel shall 30th Place, Suite 300, Bellevue, WA Protection Laws 98007. be drawn from governmental and private sector organizations, in AGENCY: Office of the Secretary. The financing is brought within the accordance with the requirements under ACTION: No FEAR Act Notice. purview of § 107.730(a)(1) of the section 309 of the Act. All meetings of Regulations because Emergence Capital this Panel will be announced ahead of SUMMARY: This Notice implements Title Partners, L.P. and Emergence Capital time by notice published in the Federal II of the Notification and Federal Associates, L.P., Associates of Register. Employee Antidiscrimination and Emergence Capital Partners SBIC, L.P., Further information regarding this Retaliation Act of 2002 concerning the own in the aggregate more than ten Panel may be obtained from Rebecca annual obligation of Federal agencies to percent of PivotLink, Inc. Therefore this Hooper, Office of the Global AIDS notify all employees, former employees, transaction is considered a financing of Coordinator, U.S. Department of State, and applicants for Federal employment an Associate requiring prior SBA Washington, DC 20520, (202) 663–2440. of the rights and protections available to approval Dated: September 29, 2008. them under the Federal Notice is hereby given that any Thomas Walsh, Antidiscrimination Laws and Whistleblower Protection Laws. interested person may submit written Deputy U.S. Global AIDS Coordinator, Acting comments on the transaction, within Department of State. FOR FURTHER INFORMATION CONTACT: fifteen days of the date of this [FR Doc. E8–23564 Filed 10–3–08; 8:45 am] Caffin Gordon, Associate Director of Policy and Quality Control Division, S– publication, to the Associate BILLING CODE 4710–10–P Administrator for Investment, U.S. 35, Departmental Office of Civil Rights, Small Business Administration, 409 Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Third Street, SW., Washington, DC DEPARTMENT OF STATE Avenue, SE., Washington, DC 20590, 20416. [Public Notice 6383] 202 366–4648 or (TTY) 202–366–8538. August 29, 2008. Department of State Performance SUPPLEMENTARY INFORMATION: A. Joseph Shepard, Review Board Members Electronic Access Associate Administrator for Investment. [FR Doc. E8–23469 Filed 10–3–08; 8:45 am] In accordance with section 4314(c)(4) You may retrieve this document of 5 United States Code, the Department online through the Federal Document BILLING CODE 8025–01–P of State has appointed the following Management System (FDMS) at: http:// individuals to the Department of State www.regulations.gov. The FDMS is Performance Review Board for career available 24 hours each day, 365 days Senior Executive Service members: each year. Electronic retrieval help and Alexander A. Arvizu, Deputy guidelines are available under the help Assistant Secretary, Bureau of East section of the Web site. An electronic

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copy of this document may be complaint with the U.S. Office of must seek approval from the Special downloaded by using a computer, Special Counsel (OSC) (see contact Counsel to discipline employees for, modem and suitable communications information below). In the alternative among other activities, engaging in software from the Government Printing (or in some cases, in addition), you may prohibited retaliation. Nothing in the No Office’s Electronic Bulletin Board home pursue a discrimination complaint by FEAR Act alters existing laws or permits page at: http://www.nara.gov/fedreg and filing a grievance through your agency’s an agency to take unfounded the Government Printing Office’s Web administrative or negotiated grievance disciplinary action against a Federal page at: http://www.access.gpo.gov/ procedures, if such procedures apply employee or to violate the procedural nara. and are available. rights of a Federal employee who has No Fear Act Notice Whistleblower Protection Laws been accused of discrimination. On May 15, 2002, Congress enacted A Federal employee with authority to Additional Information the ‘‘Notification and Federal Employee take, direct others to take, recommend For further information regarding the Antidiscrimination and Retaliation Act or approve any personnel action must No FEAR Act regulations, refer to 5 CFR of 2002,’’ Public Law 107–174, which is not use that authority to take or fail to 724, as well as the appropriate offices now known as the No FEAR Act. One take, or threaten to take or fail to take, within your agency (e.g., EEO/civil purpose of the Act is to ‘‘require that a personnel action against an employee rights office, human resources office or Federal agencies be accountable for or applicant because of disclosure of legal office). Additional information violations of antidiscrimination and information by that individual that is regarding Federal antidiscrimination, whistleblower protection laws.’’ In reasonably believed to evidence whistleblower protection and retaliation support of this purpose, Congress found violations of law, rule or regulation; laws can be found at the EEOC Web that ‘‘agencies cannot be run effectively gross mismanagement; gross waste of site—http://www.eeoc.gov and the OSC if those agencies practice or tolerate funds; an abuse of authority; or a Web site—http://www.osc.gov. discrimination.’’ The Act also requires substantial and specific danger to public this agency to provide this notice to health or safety, unless disclosure of Existing Rights Unchanged Federal employees, former Federal such information is specifically Pursuant to section 205 of the No employees and applicants for Federal prohibited by law and such information FEAR Act, neither the Act nor this employment to inform you of the rights is specifically required by Executive notice creates, expands or reduces any and protections available to you under order to be kept secret in the interest of rights otherwise available to any Federal antidiscrimination, national defense or the conduct of employee, former employee or applicant whistleblower protection and retaliation foreign affairs. Retaliation against an under the laws of the United States, laws. employee or applicant for making a including the provisions of law Antidiscrimination Laws protected disclosure is prohibited by 5 specified in 5 U.S.C. 2302(d). U.S.C. 2302(b)(8). If you believe that you A Federal agency cannot discriminate Issued in Washington, DC on September have been the victim of whistleblower 29, 2008. against an employee or applicant with retaliation, you may file a written J. Michael Trujillo, respect to the terms, conditions or complaint (Form OSC–11) with the U.S. privileges of employment on the basis of Office of Special Counsel at 1730 M Director, Departmental Office of Civil Rights, United States Department of Transportation. race, color, religion, sex, national origin, Street NW., Suite 218, Washington, DC age, disability, marital status or political 20036–4505 or online through the OSC [FR Doc. E8–23592 Filed 10–3–08; 8:45 am] affiliation. Discrimination on these Web site—http://www.osc.gov. BILLING CODE 4910–9X–P bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), Retaliation for Engaging in Protected 29 U.S.C. 206(d), 29 U.S.C. 631, 29 Activity DEPARTMENT OF TRANSPORTATION U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. A Federal agency cannot retaliate Federal Aviation Administration 2000e–16. against an employee or applicant If you believe that you have been the because that individual exercises his or Notice of Intent To Rule on Request To victim of unlawful discrimination on her rights under any of the Federal Release Airport Land at Nenana the basis of race, color, religion, sex, antidiscrimination or whistleblower Airport, Nenana, AK national origin or disability, you must protections laws listed above. If you contact an Equal Employment believe that you are the victim of AGENCY: Federal Aviation Opportunity (EEO) counselor within 45 retaliation for engaging in protected Administration, Department of calendar days of the alleged activity, you must follow, as Transportation. discriminatory action, or, in the case of appropriate, the procedures described in ACTION: Notice of Request to Release a personnel action, within 45 calendar the Antidiscrimination Laws and Airport Land. days of the effective date of the action, Whistleblower Protection Laws sections before you can file a formal complaint or, if applicable, the administrative or SUMMARY: The Federal Aviation of discrimination with your agency. See, negotiated grievance procedures in Administration (FAA) proposes to rule e.g., 29 CFR 1614. If you believe that order to pursue any legal remedy. and invites public comment on the you have been the victim of unlawful release of approximately 15.61 acres of discrimination on the basis of age, you Disciplinary Actions airport property at Nenana Airport, must either contact an EEO counselor as Under the existing laws, each agency Nenana, Alaska, from all restrictions of noted above or give notice of intent to retains the right, where appropriate, to the surplus property agreement since sue to the Equal Employment discipline a Federal employee who has the parcel of land is not needed for Opportunity Commission (EEOC) within engaged in discriminatory or retaliatory airport purposes. Reuse of the land for 180 days of the alleged discriminatory conduct, up to and including removal. Alaska Rail Road track straightening action. If you are alleging discrimination If OSC has initiated an investigation represents a compatible land use. Sale based on marital status or political under 5 U.S.C. 1214, however, of the property to the Alaska Rail Road affiliation, you may file a written according to 5 U.S.C. 1214(f), agencies at the appraised fair market value will

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be used to pay legal fees incurred during development project. Reuse of the and iron products are not sufficiently recent airport improvements. The property to straighten tracks will be available. This notice provides property is not needed for airport compatible with the airport and the information regarding the FHWA’s purposes and reinvestment of the sale reuse of the sale proceeds will benefit finding that a Buy America waiver is proceeds will benefit the airport and the the airport, thereby serving the interests appropriate for three specific cases. interests of civil aviation. of civil aviation. In accordance with section 130 of DATES: November 5, 2008. Issued in Anchorage, Alaska, on September Division K of the ‘‘Consolidated ADDRESSES: Comments on this 3, 2008. Appropriations Act, 2008’’ (Pub. L. 110– application may be mailed or delivered James W. Lomen, 161), on July 24, 2008, the FHWA in triplicate to the FAA at the following Deputy Division Manager, Airports Division, published on its Web site a notice of address: Federal Aviation Alaska Region. intent to issue a waiver for a Casing Administration, Airports Division, [FR Doc. E8–23563 Filed 10–3–08; 8:45 am] shoe for dual rotary drill rig in Maine Federal Register Comment, 222 West BILLING CODE 4910–13–P 7th Avenue #14, Anchorage, AK 99513. (http://www.fhwa.dot.gov/construction/ In addition, one copy of the comment contracts/waivers.cfm?id=16) and for submitted to the FAA must be mailed or DEPARTMENT OF TRANSPORTATION Self-drill and Grout Dowels and Self- delivered to Mr. Jason P. Maynard, Drill Grout spiles in California (http:// Mayor/Administrator, Nenana Port Federal Highway Administration www.fhwa.dot.gov/construction/ Authority, City of Nenana, P.O. Box 70 contracts/waivers.cfm?id=15). In Nenana, Alaska 99760. Buy America Waiver Notification addition, on July 31, 2008, the FHWA FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Highway published a notice of intent on its Web Stephen W. Powell, Airports Administration (FHWA), DOT. site to issue a waiver (http:// Compliance Officer, Federal Aviation ACTION: Notice. www.fhwa.dot.gov/construction/ Administration, Airports Division, 222 contracts/waivers.cfm?id=17) for 1’’ West 7th Avenue #14, Anchorage, AK SUMMARY: This notice provides Hollow Core Anchors for a Federal-aid 99513, telephone (907) 271–5448 and information regarding the FHWA’s railroad project in Oregon. No FAX (907) 271–2851. For airport- finding that a Buy America waiver is comments were received in response to specific information regarding the appropriate for certain steel products either of these notices. During the 15- release, contact Mr. Jason P. Maynard, used in Federal-aid construction day comment period, the FHWA Mayor/Administrator, at the above projects in Maine, California, and conducted a nationwide review to locate address or telephone (907) 832–5501. Oregon. potential domestic manufacturers. SUPPLEMENTARY INFORMATION: In DATES: The effective date of the waiver Based on all the information available to accordance with the Wendell H. Ford is October 7, 2008. the Agency, including the lack of Aviation Investment and Reform Act for FOR FURTHER INFORMATION CONTACT: For response received to the notices as well the 21st Century (AIR 21), Public Law questions about this notice, please as the Agency’s nationwide review, the 10–181 (Apr. 5, 2000; 114 Stat. 61), this contact Mr. Gerald Yakowenko, FHWA FHWA concludes that there are no notice must be published in the Federal Office of Program Administration, (202) domestic manufacturers for these Register 30 days before the Secretary 366–1562, [email protected]. products and a Buy America waiver is may waive any condition imposed on a For legal questions, please contact Mr. appropriate as provided by 23 CFR federally obligated airport by surplus Michael Harkins, FHWA Office of the 635.410(c)(1). property conveyance deeds. Chief Counsel, (202) 366–4928, The following is a brief overview of [email protected]. Office hours In accordance with the provisions of the request: for the FHWA are from 7:45 a.m. to 4:15 section 117 of the ‘‘SAFETEA–LU The City of Nenana, Alaska requested p.m., e.t., Monday through Friday, Technical Corrections Act of 2008’’ a release from surplus property except Federal holidays. (Pub. L. 110–244, 122 Stat. 1572), the agreement obligations, described in a SUPPLEMENTARY INFORMATION: FHWA is providing this notice as its Quit Claim Deed executed by the finding that a waiver of Buy America General Services Administration (GSA), Electronic Access requirements is appropriate. The FHWA recorded in Book Volume III Page 210 An electronic copy of this document invites public comment on this finding Nenana Recording District for may be downloaded from the Federal for an additional 15 days following the approximately 15.61 acres of airport Register’s home page at: http:// effective date of the finding. Comments land. The property is only a portion of www.archives.gov and the Government may be submitted to the FHWA’s Web the Surplus Property granted and Printing Office’s database at: http:// site via the links above to the Maine, located on the North boundary of the www.access.gpo.gov/Nara. California and Oregon waiver pages airport. The land is presently unused, noted above. unimproved, and does not generate any Background income. Due to its location, the property The FHWA’s Buy America policy in (Authority: 23 U.S.C. 313; Pub. L. 110–161, cannot be used for airport purposes nor 23 CFR 635.410 requires a domestic 23 CFR 635.410) has it generated revenue for the airport. manufacturing process for any steel or Issued on: September 29, 2008. The release will allow the land to be iron products (including protective Thomas J. Madison, Jr., sold to the Alaska Rail Road coatings) that are permanently Corporation, Alaska to realign a section incorporated in a Federal-aid Federal Highway Administrator. of railroad track that passes through the construction project. The regulation also [FR Doc. E8–23571 Filed 10–3–08; 8:45 am] community of Nenana, Alaska. The provides for a waiver of the Buy BILLING CODE 4910–22–P property will be sold at the appraised America requirements when application market value and the sale proceeds will of the requirements would be be used to pay off legal fees incurred in inconsistent with the public interest or the latest airport improvement and when satisfactory quality domestic steel

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DEPARTMENT OF TRANSPORTATION http://www.fhwa.dot.gov/construction/ SUMMARY: This document grants in full contracts/waivers.cfm?id=18 on August the Chrysler LLC, (Chrysler) petition for Federal Highway Administration 12. The FHWA received a comment in exemption of the Dodge Journey vehicle response to Center Pivot Bearing line in accordance with 49 CFR Part Buy America Waiver Notification Assembly which suggested that the 543, Exemption from the Theft AGENCY: Federal Highway Center Pivot Bearing may be available Prevention Standard. This petition is Administration (FHWA), DOT. domestically. Further investigation and granted because the agency has determined that the antitheft device to ACTION: Notice. inquiry revealed that the product is not available domestically. Some comments be placed on the line as standard SUMMARY: This notice provides received in response to stainless steel equipment is likely to be as effective in information regarding the FHWA’s clad rebars suggested that solid stainless reducing and deterring motor vehicle finding that a Buy America waiver is rebar should be used, and that stainless theft as compliance with the parts- appropriate for certain steel products clad rebar may be more expensive than marking requirements of the Theft used in Federal-aid construction solid stainless rebar. Other commenters Prevention Standard (49 CFR Part 541). projects in New York and Rhode Island. disagreed with this position. The Rhode DATES: The exemption granted by this DATES: The effective date of the waiver Island DOT’s waiver request is to notice is effective beginning with the is October 7, 2008. evaluate the stainless clad reinforcing 2010 Model Year (MY). FOR FURTHER INFORMATION CONTACT: For bars under an experimental project. FOR FURTHER INFORMATION CONTACT: Ms. questions about this notice, please During the 15-day comment period, the Carlita Ballard, International Policy, contact Mr. Gerald Yakowenko, FHWA FHWA conducted additional Fuel Economy and Consumer Programs, Office of Program Administration, (202) nationwide review to locate potential NHTSA, 1200 New Jersey Avenue, SE., 366–1562, [email protected]. domestic manufacturers for the Washington, DC 20590. Ms. Ballard’s For legal questions, please contact Mr. products. Based on all the information phone number is (202) 366–0846. Her Michael Harkins, FHWA Office of the available to the Agency including the fax number is (202) 493–2990. Chief Counsel, (202) 366–4928, responses received to the notices as well SUPPLEMENTARY INFORMATION: In a [email protected]. Office hours as the Agency’s nationwide review, the petition dated July 15, 2008, Chrysler for the FHWA are from 7:45 a.m. to 4:15 FHWA concludes that there are no requested an exemption from the parts- p.m., e.t., Monday through Friday, domestic manufacturers for these marking requirements of the theft except Federal holidays. products and a Buy America waiver is prevention standard (49 CFR Part 541) appropriate as provided by 23 CFR SUPPLEMENTARY INFORMATION: for the Dodge Journey vehicle line, 635.410(c)(1). beginning with MY 2010. The petition Electronic Access In accordance with the provisions of requested an exemption from parts- An electronic copy of this document section 117 of the SAFETEA–LU marking requirements pursuant to 49 may be downloaded from the Federal Technical Corrections Act of 2008 (Pub. CFR 543, Exemption from Vehicle Theft Register’s home page at: http:// L. 110–244, 122 Stat.1572), the FHWA Prevention Standard, based on the www.archives.gov and the Government is providing this notice as its finding installation of an antitheft device as Printing Office’s database at: http:// that a waiver of Buy America standard equipment for the entire www.access.gpo.gov/nara. requirements is appropriate. The FHWA vehicle line. invites public comment on this finding Under Section § 543.5(a), a Background for an additional 15 days following the manufacturer may petition NHTSA to The FHWA’s Buy America policy in effective date of the finding. Comments grant exemptions for one of its vehicle 23 CFR 635.410 requires a domestic may be submitted to the FHWA’s Web lines per year. Chrysler has petitioned manufacturing process for any steel or site via the links above to the New York the agency to grant an exemption for its iron products (including protective and Rhode Island waiver pages noted Dodge Journey vehicle line beginning coatings) that are permanently above. with MY 2010. In its petition, Chrysler incorporated in a Federal-aid provided a detailed description and construction project. The regulation also (Authority: 23 U.S.C. 313; Pub. L. 110–161, diagram of the identity, design, and 23 CFR 635.410) provides for a waiver of the Buy location of the components of the America requirements when the Issued on: September 29, 2008. antitheft device for the new vehicle line. application would be inconsistent with Thomas J. Madison, Jr. Chrysler will install the Sentry Key the public interest or when satisfactory Federal Highway Administrator. Immobilizer System (SKIS) antitheft quality domestic steel and iron products [FR Doc. E8–23574 Filed 10–3–08; 8:45 am] device as standard equipment on the are not sufficiently available. This BILLING CODE 4910–22–P vehicle line. The major components of notice provides information regarding the SKIS device consists of a powertrain the FHWA’s finding that a Buy America control module, integrated power waiver is appropriate for two specific DEPARTMENT OF TRANSPORTATION module, sentry key remote entry module cases. (SKREEM), fob with integrated key In accordance with section 130 of National Highway Traffic Safety (FOBIK) and an electromechanical Division K of the ‘‘Consolidated Administration instrument cluster which controls the Appropriations Act, 2008’’ (Pub. L. 110– telltale function only. All of these Petition for Exemption From the 161), the FHWA published on its Web components work collectively to Federal Motor Vehicle Theft Prevention site a notice of intent to issue a waiver perform the immobilizer function. for Center Pivot Bearing Assembly in Standard; CHRYSLER Chrysler stated that the SKIS provides New York http://www.fhwa.dot.gov/ AGENCY: National Highway Traffic passive vehicle protection by preventing construction/contracts/ Safety Administration (NHTSA), the engine from operating unless a valid waivers.cfm?id=14 on July 14, and Department of Transportation (DOT). electronically encoded key is detected stainless steel clad reinforcing bars (for in the ignition lock cylinder. The ACTION: Grant of petition for exemption. experimental research) in Rhode Island immobilizer feature is activated when

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the key is removed from the ignition code that is permanently programmed before an immobilizer was offered as lock cylinder. Once activated, only a into it by the manufacturer, and which standard equipment on the Jeep Grand valid key inserted into the ignition lock must be programmed into the SKREEM Cherokee vehicles was 5.3574, cylinder will disable immobilization to be recognized by the SKIS as a valid significantly above the median theft rate and allow the vehicle to start and key. Chrysler stated that once a Sentry of 3.5826. However, the average theft continue to run. Key has been programmed to a rate for the six model years (1999–2005) The SKREEM/Wireless Ignition Node particular vehicle, it cannot be used on after installation of the standard (WIN), an integral component of the any other vehicle. immobilizer device is 2.5492, SKIS antitheft device contains a radio Chrysler stated that the SKIS device significantly lower than the median. frequency transceiver and does not provide any visable or audible The Jeep Grand Cherokee vehicle line microprocessor that receives signals indication of unauthorized entry but was granted an exemption from the from the Sentry key transponder and that the theft data has indicated a parts-marking requirements beginning communicates to the FOBIK. The decline in theft rates for vehicle lines with MY 2004. Chrysler further stated SKREEM/WIN determines whether a that have been equipped with antitheft that NHTSA’s theft data for the Jeep valid key is present in the ignition devices similar to that which it proposes Grand Cherokee indicates that the switch based on the signal received to install on the Dodge Journey vehicle inclusion of a standard immobilizer from the transponder, and also serves as line. The agency has previously system has resulted in a 52.3% net the receiver for the Tire Pressure concluded that the lack of a visual or average reduction in vehicle thefts. On Monitoring System if the vehicle is audible alarm has not prevented these the basis of the previous comparisons, equipped with one. To avoid any antitheft devices from being effective Chrysler has concluded that the perceived delay when starting the protection against theft. proposed anitheft device is no less vehicle with a valid key and to prevent In addressing the specific content effective than those devices installed on unburned fuel from entering the requirements of 543.6, Chrysler lines for which NHTSA has already exhaust, the engine is permitted to run provided information on the reliability granted full exemption form the parts- for no more than 2 seconds if an invalid and durability of the device. Chrysler marking requirements. key is used. If the response identifies conducted tests based on its own Based on the information Chrysler has the key as invalid, or if no response is specified standards and stated its belief provided about its device, the agency received from the key transponder, the that the device meets the stringent concludes that the antitheft device for SKREEM sends an invalid key message performance standards prescribed. the Dodge Journey vehicle line is likely to the Powertrain Control Module Specifically, Chrysler stated that its to be as effective in reducing and (PCM). The PCM will disable engine device must demonstrate a minimum of deterring motor vehicle theft as operation (after the initial 2-second run) 95 percent reliability with 90 percent compliance with the parts-marking based upon the status of the SKREEM confidence. In addition to the design requirements of the Theft Prevention messages. Chrysler stated that only six and production validation test criteria, Standard (49 CFR 541). The agency consecutive invalid vehicle start Chrysler stated that the SKIS also concludes that the device will provide attempts would be permitted and all undergoes a daily short term durability four of the five types of performance other attempts would be locked out by test. Chrysler also stated that 100% of listed in § 543.6(a)(3): Promoting preventing the fuel injectors from firing its systems undergo a series of three activation; preventing defeat or and disabling the starter. functional tests for durability prior to circumvention of the device by Chrysler stated that it has being shipped from the supplier to the unauthorized persons; preventing incorporated an unauthorized vehicle vehicle assembly plant for installation operation of the vehicle by start telltale light into the device. The in its vehicles. unauthorized entrants; and ensuring the telltale feature operates as a security Chrysler stated that while there is no reliability and durability of the device. indicator in the ElectroMechanical theft data available for the Dodge As required by 49 U.S.C. 33106 and Instrument Cluster (EMIC). The telltale Journey because it’s a new vehicle line 49 CFR Part 543.6(a)(4) and (5), the alerts the owner that an unauthorized introduction, experience with the agency finds that Chrysler has provided vehicle start attempt has been made. Chrysler Pacifica, a similar 5-door, front adequate reasons for its belief that the Upon an unauthorized start attempt, the wheel drive/AWD crossover vehicle antitheft device will reduce and deter telltale will flash on and off when the indicates that the Dodge Journey is theft. This conclusion is based on the ignition switch is turned to the ‘‘ON’’ projected to have a theft rate lower than information Chrysler provided about its position. Besides acting as a security the median theft rate. The average theft antitheft device. indicator, the telltale acts as a diagnostic rate for the Chrysler Pacifica using 3 For the foregoing reasons, the agency indicator. If the SKREEM detects a Model Years (MY’s) data is 1.9677. hereby grants in full Chrysler’s petition system malfunction and/or the SKIS has Chrysler also stated that experience for an exemption for the MY 2010 become inoperative, the security with the Jeep Grand Cherokee, which Dodge Journey vehicle line from the indicator will stay on. If the SKREEM was subject to the parts marking parts-marking requirements of 49 CFR detects an invalid key or if a key requirements and subsequently Part 541. The agency notes that 49 CFR transponder-related fault exists, the equipped with ignition immobilizer Part 541, Appendix A–1, identifies security indicator will flash. systems as standard equipment, indicate those lines that are exempted from the Each ignition key used in the SKIS that even lower theft rates can be Theft Prevention Standard for a given has an integral transponder chip expected from a vehicle equipped with model year. 49 CFR Part 543.7(f) included on the circuit board beneath standard ignition immobilizer systems. contains publication requirements the cover of the integral Remote Keyless Chrysler has offered the SKIS vehicle incident to the disposition of all Part Entry (RKE) transmitter. In addition to immobilizer system as standard 543 petitions. Advanced listing, having to be cut to match the equipment on all Jeep Grand Cherokee including the release of future product mechanical coding of the ignition lock vehicles since MY 1999. Chrysler nameplates, the beginning model year cylinder and programmed for operation indicated that based on NHTSA’s theft for which the petition is granted and a of the RKE system, each new Sentry Key rate data, the average theft rate for Jeep general description of the antitheft has a unique transponder identification Grand Cherokee vehicles (1995–1998) device is necessary in order to notify

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law enforcement agencies of new The line traverses United States Postal A copy of any petition filed with the vehicle lines exempted from the parts- Service Zip Codes 14127, 14025, 14033, Board should be sent to BPRR’s marking requirements of the Theft and 14141. representative: Eric M. Hocky, Thorp Prevention Standard. BPRR has certified that: (1) No local Reed & Armstrong, LLP, One Commerce If Chrysler decides not to use the traffic has moved over the line for at Square, 2005 Market Street, Suite 1910, exemption for this line, it must formally least 2 years; (2) all overhead traffic has Philadelphia, PA 19103. notify the agency. If such a decision is been rerouted; (3) no formal complaint If the verified notice contains false or made, the line must be fully marked as filed by a user of rail service on the line misleading information, the exemption required by 49 CFR Parts 541.5 and (or by a state or local government entity is void ab initio. 541.6 (marking of major component acting on behalf of such user) regarding BPRR has filed a combined parts and replacement parts). cessation of service over the line either environmental and historic report that NHTSA notes that if Chrysler wishes is pending with the Surface addresses the effects, if any, of the in the future to modify the device on Transportation Board or with any U.S. abandonment on the environment and which this exemption is based, the District Court or has been decided in historic resources. SEA will issue an company may have to submit a petition favor of complainant within the 2-year environmental assessment (EA) by to modify the exemption. Part 543.7(d) period; and (4) the requirements at 49 October 10, 2008. Interested persons states that a Part 543 exemption applies CFR 1105.7 (environmental report), 49 may obtain a copy of the EA by writing only to vehicles that belong to a line CFR 1105.8 (historic report), 49 CFR to SEA (Room 1100, Surface exempted under this part and equipped 1105.11 (transmittal letter), 49 CFR Transportation Board, Washington, DC with the anti-theft device on which the 1105.12 (newspaper publication), and 20423–0001) or by calling SEA, at (202) line’s exemption is based. Further, 49 CFR 1152.50(d)(1) (notice to 245–0305. [Assistance for the hearing § 543.9(c)(2) provides for the submission governmental agencies) have been met. impaired is available through the of petitions ‘‘to modify an exemption to As a condition to this exemption, any Federal Information Relay Service permit the use of an antitheft device employee adversely affected by the (FIRS) at 1–800–877–8339.] Comments similar to but differing from the one abandonment shall be protected under on environmental and historic specified in that exemption.’’ Oregon Short Line R. Co.— preservation matters must be filed The agency wishes to minimize the Abandonment—Goshen, 360 I.C.C. 91 within 15 days after the EA becomes administrative burden that Part (1979). To address whether this available to the public. Environmental, historic preservation, 543.9(c)(2) could place on exempted condition adequately protects affected public use, or trail use/rail banking vehicle manufacturers and itself. The employees, a petition for partial conditions will be imposed, where agency did not intend Part 543 to revocation under 49 U.S.C. 10502(d) appropriate, in a subsequent decision. require the submission of a modification must be filed. petition for every change to the Pursuant to the provisions of 49 CFR Provided no formal expression of 1152.29(e)(2), BPRR shall file a notice of components or design of an antitheft intent to file an offer of financial device. The significance of many such consummation with the Board to signify assistance (OFA) has been received, this that it has exercised the authority changes could be de minimis. Therefore, exemption will be effective on NHTSA suggests that if the granted and fully abandoned the line. If November 5, 2008, unless stayed consummation has not been effected by manufacturer contemplates making any pending reconsideration. Petitions to changes the effects of which might be BPRR’s filing of a notice of stay that do not involve environmental consummation by October 6, 2009, and characterized as de minimis, it should issues,1 formal expressions of intent to consult the agency before preparing and there are no legal or regulatory barriers file an OFA under 49 CFR to consummation, the authority to submitting a petition to modify. 2 1152.27(c)(2), and trail use/rail banking abandon will automatically expire. Authority: 49 U.S.C. 33106; delegation of requests under 49 CFR 1152.29 must be Board decisions and notices are authority at 49 CFR 1.50. filed by October 16, 2008. Petitions to available on our Web site at http:// Issued on: September 30, 2008. reopen or requests for public use www.stb.dot.gov. Stephen R. Kratzke, conditions under 49 CFR 1152.28 must be filed by October 27, 2008, with the Decided: September 29, 2008. Associate Administrator for Rulemaking. Surface Transportation Board, 395 E By the Board, David M. Konschnik, [FR Doc. E8–23598 Filed 10–3–08; 8:45 am] Street, SW., Washington, DC 20423– Director, Office of Proceedings. BILLING CODE 4910–59–P 0001.3 Anne K. Quinlan, Acting Secretary. 1 The Board will grant a stay if an informed [FR Doc. E8–23422 Filed 10–3–08; 8:45 am] DEPARTMENT OF TRANSPORTATION decision on environmental issues (whether raised BILLING CODE 4915–01–P by a party or by the Board’s Section of Surface Transportation Board Environmental Analysis (SEA) in its independent investigation) cannot be made before the [STB Docket No. AB–369 (Sub-No. 7X)] exemption’s effective date. See Exemption of Out- DEPARTMENT OF THE TREASURY of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any Buffalo & Pittsburgh Railroad, Inc.— request for a stay should be filed as soon as possible Submission for OMB Review; Abandonment Exemption—in Erie and so that the Board may take appropriate action before the exemption’s effective date. Comment Request Cattaraugus Counties, NY 2 Effective July 18, 2008, the filing fee for an OFA September 30, 2008. Buffalo & Pittsburgh Railroad, Inc. increased to $1,500. See Regulations Governing Fees for Services Performed in Connection with The Department of the Treasury will (BPRR) has filed a verified notice of Licensing and Related Services—2008 update, STB submit the following public information exemption under 49 CFR Part 1152 Ex Parte No. 542 (Sub-No. 15) (STB served June 18, collection requirement(s) to OMB for Subpart F—Exempt Abandonments to 2008). review and clearance under the abandon a 27.6-mile line of railroad 3 On September 22, 2008, the New York State Office of Parks, Recreation and Historic Paperwork Reduction Act of 1995, extending from milepost 8.4 in Orchard Preservation filed a request for the issuance of a Park, in Erie County, NY, to milepost 36 notice of interim trail use and for imposition of a September 26, 2008, BPRR agreed to negotiate for in Ashford, in Cattaraugus County, NY. public use condition for the 27.6-mile rail line. On interim trail use/rail banking.

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Public Law 104–13 on or after the date figured and paid the interest charge on withholding certificates under Treas. of publication of this notice. Copies of a timely basis. Reg. 1.1445–1 to be filed with the IRS the submission(s) may be obtained by Respondents: Businesses or other for- with respect to (1) dispositions of U.S. calling the Treasury Bureau Clearance profit institutions. real property interests that have been Officer listed. Comments regarding this Estimated Total Burden Hours: 17,600 used by foreign persons as a principle information collection should be hours. residence within the prior 5 years and addressed to the OMB reviewer listed OMB Number: 1545–1632. excluded from gross income under and to the Treasury Department Type of Review: Extension. section 121 and (2) dispositions of U.S. Clearance Officer, Department of the Title: REG–118662–98 (Final) New real property interests by foreign Treasury, Room 11000, 1750 Technologies in Retirement Plans. persons in deferred like kind exchanges Pennsylvania Avenue, NW., Description: These regulations that qualify for nonrecognition under Washington, DC 20220. provide that certain notices and section 1031. comments required in connection with DATES: Written comments should be distributions from retirement plans may Respondents: Businesses or other for- received on or before November 5, 2008 be transmitted through electronic profits. to be assured of consideration. media. The regulations also modify the Estimated Total Burden Hours: 600 Internal Revenue Service (IRS) timing requirements for provision of hours. certain distribution-related notices. OMB Number: 1545–0939. Respondents: Businesses or other for- Clearance Officer: Glenn P. Kirkland, Type of Review: Extension. profits. (202) 622–3428, Internal Revenue Title: Interest Charge on DISC-Related Estimated Total Burden Hours: Service, Room 6516, 1111 Constitution Deferred Tax Liability. 477,563 hours. Avenue, NW., Washington, DC 20224. Forms: 8404. OMB Number: 1545–1797. OMB Reviewer: Alexander T. Hunt, Description: Shareholders of Interest Type of Review: Extension. (202) 395–7316, Office of Management Charge Domestic International Sales Title: REG–106876–00 (Final), and Budget, Room 10235, New Corporations (IC–DISCs) use Form 8404 Revision of Income Tax Regulations Executive Office Building, Washington, to figure and report an interest charge under Sections 897, 1445, and 6109 to DC 20503. on their DISC-related deferred tax require use of Taxpayer Identifying liability. The interest charge is required Numbers on Submission under the Celina Elphage, by Internal Revenue Code section 995(f). Section 897 and 1445. Treasury PRA Clearance Officer. IRS uses Form 8404 to determine Description: The collection of [FR Doc. E8–23533 Filed 10–3–08; 8:45 am] whether the shareholder has correctly information relates to applications for BILLING CODE 4830–01–P

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Part II

Securities and Exchange Commission 17 CFR Parts 230, 239, et al. Foreign Issuer Reporting Enhancements; Final Rule

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SECURITIES AND EXCHANGE which pertains to a change in under the Exchange Act by shortening COMMISSION registrant’s certifying accountant; and to the filing deadline from six months to provide disclosure about American four months after the foreign private 17 CFR Parts 230, 239, 240 and 249 Depositary Receipts fees and payments issuer’s fiscal year-end, after a three- [Release Nos. 33–8959; 34–58620; for its first fiscal year ending on or after year transition period; (3) Eliminate an December 15, 2009. International Series Release No. 1310; File • instruction to Item 17 of Form 20–F that No. S7–05–08] A foreign private issuer must begin permits certain foreign private issuers to to comply with the requirement to file RIN 3235–AK03 omit segment data from their U.S. GAAP its Form 20–F annual report on an financial statements; (4) Amend Rule accelerated basis for its first fiscal year 13e–3 under the Exchange Act by Foreign Issuer Reporting ending on or after December 15, 2011. reflecting the new termination of Enhancements A foreign private issuer must begin to comply with the requirements to file reporting and deregistration rules for AGENCY: Securities and Exchange foreign private issuers; 14 (5) Require Commission. transition reports pursuant to the amendments to Rules 13a–10(g)(3) and foreign private issuers that are required ACTION: Final rule. 15d–10(g)(3), and special financial to provide a U.S. GAAP reconciliation to do so pursuant to Item 18 of Form SUMMARY: We are adopting a number of reports pursuant to the amendments to 20–F; and (6) Amend Form 20–F to amendments to our rules relating to Rule 15d–2(a) for its first fiscal year foreign private issuers that are intended ending on or after December 15, 2011. require foreign private issuers to to enhance the information that is In addition, a foreign private issuer disclose information about changes in available to investors. These must begin to comply with the the issuer’s certifying accountant, the amendments are part of a series of requirement to prepare financial fees and charges paid by holders of initiatives that seek to effect changes in statements according to Item 18 of Form American Depositary Receipts our disclosure and other requirements 20–F in the annual report filed for its (‘‘ADRs’’), the payments made by the applicable to foreign private issuers in first fiscal year ending on or after depositary to the foreign issuer whose light of market developments, new December 15, 2011. securities underlie the ADRs, and, for technologies and other matters in a FOR FURTHER INFORMATION CONTACT: listed issuers, the differences in the manner that promotes investor Felicia H. Kung, Senior Special Counsel, foreign private issuer’s corporate protection and cross-border capital Office of International Corporate governance practices and those flows. We are adopting amendments Finance, Division of Corporation applicable to domestic companies under that would enable foreign issuers to test Finance, at (202) 551–3450, or Craig the relevant exchange’s listing rules. Olinger, Deputy Chief Accountant, their eligibility to use the special forms Table of Contents and rules available to foreign private Division of Corporation Finance, at issuers once a year, rather than (202) 551–3400, or Jeffrey J. Minton, I. Summary continuously. We also are adopting Chief Counsel, Office of the Chief A. Proposed Amendments amendments to change the deadline for Accountant, at (202) 551–5300, U.S. B. Principal Comments Received annual reports filed by foreign private Securities and Exchange Commission, C. Summary of Adopted Amendments issuers and to eliminate an option under 100 F Street, NE., Washington, DC II. Discussion of the Amendments which foreign private issuers are 20549–3628. A. Annual Test for Foreign Private Issuer permitted to omit segment data from SUPPLEMENTARY INFORMATION: We are Status their U.S. GAAP financial statements, adopting amendments to Rule 405 1 of B. Accelerating the Reporting Deadline for 2 3 4 Form 20–F Annual Reports and an amendment to the rule Regulation C, Form F–1, Form F–3 5 C. Segment Data Disclosure pertaining to going private transactions and Form F–4 under the Securities Act 6 7 D. Exchange Act Rule 13e–3 to reflect the new termination of of 1933 (‘‘Securities Act’’), Form 20–F E. Requiring Item 18 Reconciliation in reporting and deregistration rules for under the Securities Exchange Act of 1934 (‘‘Exchange Act’’),8 and Exchange Annual Reports and Registration foreign private issuers. In addition, we Statements are adopting amendments that would Act Rules 3b–4,9 13a–10,10 13e–3,11 15d–2,12 and 15d–10.13 The F. Disclosure About Changes in a revise the annual report and registration Registrant’s Certifying Accountant statement forms used by foreign private amendments will: (1) Permit foreign issuers to test their qualification to use G. Annual Disclosure About ADR Fees and issuers to improve certain disclosures Payments provided in these forms. the forms and rules available to foreign private issuers on an annual basis, H. Disclosure About Differences in DATES: Effective Date: December 5, 2008. rather than on the continuous basis that Corporate Governance Practices Compliance Dates: The compliance is currently required; (2) Accelerate the III. Other Matters Considered dates are as follows: IV. Paperwork Reduction Act • filing deadline for annual reports filed A foreign private issuer must begin on Form 20–F by foreign private issuers V. Cost-Benefit Analysis to comply with the requirements to VI. Consideration of Impact on the Economy, Burden on Competition, and Promotion provide information pursuant to Item 1 17 CFR 230.405. 16G of Form 20–F, which pertains to 2 17 CFR 230.400 et seq. of Efficiency, Competition, and Capital corporate governance disclosures, for its 3 17 CFR 239.31. Formation first fiscal year ending on or after 4 17 CFR 239.33. VII. Regulatory Flexibility Act Certification December 15, 2008. 5 17 CFR 239.34. VIII. Statutory Authority and Text of Final • A foreign private issuer must begin 6 15 U.S.C. 77a et seq. Amendments to comply with the amendment to 7 17 CFR 249.220f. 8 15 U.S.C. 78a et seq. eliminate Instruction 3 to Item 17 of 14 Although amending Rule 13e–3 is consistent 9 17 CFR 240.3b–4. with other Commission initiatives that seek to Form 20–F, which permits the omission 10 17 CFR 240.13a–10. address changes in our disclosure and other of segment data in certain 11 17 CFR 240.13e–3. requirements applicable to foreign private issuers, circumstances; to provide disclosure 12 17 CFR 240.15d–2. the amendment also will apply to transactions pursuant to Item 16F of Form 20–F, 13 17 CFR 240.15d–10. effected by domestic issuers.

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I. Summary Reporting Standards (‘‘IFRS’’), as issued independence.27 These by the International Accounting accommodations recognized non-U.S. A. Proposed Amendments Standards Board (‘‘IASB’’), without practices and requirements. In March In February 2008, we published for reconciliation to generally accepted 2007, we also adopted rules that made comment proposed amendments to accounting principles (‘‘GAAP’’) used in it easier for foreign private issuers to rules and forms aimed at enhancing the the United States.21 Those rules are part terminate their reporting obligations and disclosures that foreign private issuers of our efforts to foster a single set of deregister their securities.28 We adopted provide to investors in the U.S. public globally accepted accounting standards. these rules to address concerns that the markets, and improving the accessibility We also incorporated into Form 20–F all burdens and uncertainties associated of our public markets to these issuers.15 of the International Organization of with terminating their registration and The proposed amendments reflect Securities Commission’s reporting obligations under the changes in the nature of the global (‘‘IOSCO’’) 22 International Disclosure Exchange Act could serve as a capital markets, as well as advances in Standards for Cross-Border Offerings disincentive to foreign private issuers technology with respect to the gathering and Initial Listings by Foreign Issuers,23 accessing the U.S. public capital and processing of information, that have which pertain to prospectuses prepared markets.29 In a related release,30 we are occurred since the Commission’s by foreign issuers for public offerings adopting amendments to Exchange Act adoption of Form 20–F almost 30 years and listing of equity securities.24 Rule 12g3–2(b) 31 to expand the ago. When the Commission adopted In addition, the Commission has availability of this exemption from Form 20–F, the form used by foreign sought to facilitate cross-border capital registration under Section 12(g) 32 of the private issuers 16 to register a class of flows. When implementing certain Exchange Act for foreign private issuers, securities under the Exchange Act and provisions of the Sarbanes-Oxley Act of so that a qualified foreign private issuer to file annual reports,17 our objective 2002 (‘‘Sarbanes-Oxley Act’’),25 we also that meets specified conditions can was to elicit disclosures from foreign provided several significant claim the exemption automatically private issuers that were as equal as accommodations to foreign private without regard to the number of its U.S. practicable to that provided by domestic issuers relating to the requirements on shareholders. In another related release, issuers.18 Because of differences in the internal control over financial we are adopting amendments that national laws and accounting reporting 26 and audit committee expand and enhance the utility of the regulations applicable to foreign private cross-border exemptions for business issuers, we provided specified 21 Release No. 33–8879 (Dec. 21, 2007) [73 FR combination transactions.33 These disclosure accommodations in Form 20– 986]. amendments are expected to encourage F.19 However, we indicated that our 22 IOSCO consists of securities regulators from 109 countries (‘‘ordinary’’ members) who are offerors and issuers in cross-border assessment of the appropriate disclosure committed to working together ‘‘to promote high business combinations, and rights requirements for foreign private issuers standards of regulation to maintain just, efficient offerings by foreign private issuers to was part of an ongoing evolutionary and sound markets.’’ IOSCO, General Information permit U.S. security holders to process.20 About IOSCO, at http://www.iosco.org/about/. participate in these transactions in the As noted previously in the Proposing 23 Available at http://www.iosco.org/library/ pubdocs/pdf/IOSCOPD81.pdf. The IOSCO same manner as other holders. Release, there has been a movement Technical Committee recently published the As part of our continuous assessment toward greater international agreement International Disclosure Principles for Cross-Border of our rules pertaining to foreign private on the accounting and other non- Offerings and Listings of Debt Securities by Foreign issuers, we proposed amendments to financial statement disclosures that Issuers (2007), available at http://www.iosco.org/ library/pubdocs/pdf/IOSCOPD242.pdf. These rules and forms last February that should be provided by issuers. The IOSCO Principles apply to prospectuses used by reflected our view that some of the Commission has undertaken a number foreign issuers for offerings and listings of debt disclosure accommodations that we of initiatives that recognize this. For securities. The Commission’s prospectus disclosure provided to foreign private issuers example, we adopted rules last requirements for debt securities offered by foreign private issuers, which are contained in Form 20– almost 30 years ago may no longer be December to permit foreign private F, are also consistent with these IOSCO Principles. appropriate or necessary in light of issuers to file financial statements with 24 Release No. 33–7745 (Sept. 28, 1999) [64 FR global market developments and the Commission that are prepared in 53900]. advancements in technology.34 These accordance with International Financial 25 15 U.S.C. 7201 et seq. proposed rule and form amendments 26 We permitted foreign private issuers to comply with the requirement to include in their annual sought to balance our dual objectives of 15 Release No. 33–8900 (Feb. 29, 2008) [73 FR enhancing the reporting of information 13404] (hereinafter ‘‘Proposing Release’’). reports management’s report on the company’s internal control over financial reporting and the 16 ‘‘Foreign private issuer’’ is defined in Exchange by foreign private issuers, including the auditor’s attestation on a delayed basis compared to Act Rule 3b–4(c). A foreign private issuer is any timeframe within which investors can some domestic issuers. See Release No. 33–8392 foreign issuer other than a foreign government, (Feb. 24, 2004) [69 FR 9722] (extending the original have access to that information, and except for an issuer that (1) has more than 50% of compliance dates for accelerated filers to fiscal improving the accessibility of our public its outstanding voting securities held of record by years ending on or after November 15, 2004, and U.S. residents and (2) any of the following: (i) A markets to these issuers. Among other for companies that are not accelerated filers and for majority of its officers and directors are citizens or things, we proposed amendments that foreign private issuers, to fiscal years ending on or residents of the United States, (ii) more than 50 after July 15, 2005); Release No. 33–8545 (Mar. 2, would permit reporting foreign issuers percent of its assets are located in the United States, 2005) [70 FR 11528] (adopting an additional one- or (iii) its business is principally administered in year extension of the compliance dates for quarterly basis as is required of domestic issuers. the United States. companies that are non-accelerated filers and for Release No. 33–8238 (June 5, 2003) [68 FR 36636]. 17 Form 20–F is the combined registration foreign private issuers filing annual reports on 27 See Release No. 33–8220 (Apr. 9, 2003) [68 FR statement and annual report form for foreign private Forms 20–F or 40–F); Release No. 33–8730A (Aug. 18788]. issuers under the Exchange Act. It also sets forth 9, 2006) [71 FR 47056] (extending for one year the 28 Release No. 34–55540 (Mar. 27, 2007) [72 FR disclosure requirements for registration statements date by which a foreign private issuer that is an filed by foreign private issuers under the Securities 16934]. accelerated filer and that files annual reports on 29 Id. Act. Forms 20–F or 40–F must begin to comply with the 18 30 Release No. 34–58465 (Sept. 5, 2008). See Release No. 34–16371 (Nov. 29, 1979) [44 requirement to provide the auditor’s attestation 31 FR 70132] (hereinafter ‘‘Form 20–F Adopting report on internal control over financial reporting). 17 CFR 240.12g3–2(b). Release’’). Foreign private issuers also are permitted to report 32 15 U.S.C. 78l(g). 19 See id. changes in their internal controls over financial 33 See Release No. 34–58597 (Sept. 19, 2008). 20 See id. reporting on an annual basis, rather than on a 34 See Proposing Release, supra note 15.

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to assess their eligibility to use the investors with useful information, and We also received a wide range of special forms and rules available to would be consistent with the disclosure responses to our proposed amendments foreign private issuers once a year, currently required of domestic issuers. to require foreign private issuers that are rather than on a continuous basis. We With respect to the corporate required to provide a U.S. GAAP also proposed amendments to change governance proposal, commenters noted reconciliation to do so pursuant to Item the deadline for annual reports filed by the usefulness of having all of a foreign 18 of Form 20–F. Although some foreign private issuers and to eliminate private issuer’s corporate governance commenters noted that the proposal to an option under which foreign private information in one location. require Item 18 information would issuers may omit segment data from In addition, we received primarily provide investors with more complete their U.S. GAAP financial statements, positive feedback on our proposed financial information, others expressed and an amendment to the rule amendments to eliminate the option concern about the necessity of the pertaining to going private transactions permitting foreign private issuers to proposed amendments, since many to reflect the new termination of omit segment data from their U.S. GAAP countries are gradually requiring reporting and deregistration rules for financial statements, to reference the footnote disclosures comparable to U.S. foreign private issuers. In addition, we new termination of reporting and GAAP and Regulation S–X. proposed amendments that would deregistration rules applicable to foreign C. Summary of Adopted Amendments revise Form 20–F to improve certain private issuers in Exchange Act Rule disclosures provided in that form. 13e–3, and to require annual disclosure We have carefully considered the comments received regarding the B. Principal Comments Received in Form 20–F about ADR fees and payments. These proposals were proposed amendments and have We received 52 comment letters in supported as providing useful concluded that it is appropriate to adopt response to our proposed rule and form information to investors, and in the case the amendments, substantially as amendments from a variety of market of Rule 13e–3, providing regulatory proposed in the case of most of the participants.35 The respondents consistency with the new deregistration amendments. Some of the amendments included businesses, financial and legal and termination of reporting provisions. have been modified to reflect associations, law firms, accounting suggestions offered by commenters in We received a wide range of firms, depositary banks, financial response to questions posed in the comments on some of the other services providers, and one securities Proposing Release. exchange. The comments received on proposed amendments. In particular, The adopted amendments will: most of the proposed amendments were many commenters opposed the proposal • Permit reporting foreign issuers to supportive, although commenters to accelerate the reporting deadline for assess their eligibility to use the special provided useful suggestions on several Form 20–F annual reports. We had forms and rules available to foreign of the proposals. Almost all of the proposed amendments to accelerate the private issuers once a year on the last comments received on the proposal to filing deadline for Form 20–F annual business day of their second fiscal permit foreign issuers to test their status reports by shortening the filing deadline quarter, rather than on a continuous as foreign private issuers once a year, from 6 months to within 90 days after basis, which is currently required; rather than continuously, were very the foreign private issuer’s fiscal year- • Accelerate the reporting deadline positive. Commenters noted that this end in the case of large accelerated and for annual reports filed on Form 20–F proposal would reduce compliance accelerated filers, and to within 120 by foreign private issuers from six burdens on foreign private issuers, as days after a foreign private issuer’s fiscal months to four months after the issuer’s well as align the testing and transition year-end for all other issuers, after a fiscal year-end, after a three-year requirements for foreign private issuer two-year transition period. Commenters transition period; status with the requirements applicable expressed concern that many foreign • Amend Form 20–F by eliminating to determining accelerated filer and private issuers must prepare financial an instruction to Item 17 of that Form small reporting company status. statements according to local GAAP that permits certain foreign private We also received mainly positive under their home country’s laws and issuers to omit segment data from their comments about the proposed regulations, and would need additional U.S. GAAP financial statements; amendments to require foreign private time to prepare their financial • Amend Exchange Act Rule 13e–3, issuers to disclose in their Form 20–F statements in accordance with U.S. which pertains to going private annual reports changes in and GAAP or IFRS as issued by the IASB, or transactions by reporting issuers or their disagreements with their certifying to reconcile their financial statements to affiliates, to reflect the recently adopted accountant, and significant differences U.S. GAAP for the Form 20–F. deregistration and termination of in the corporate governance practices of Commenters also noted that many reporting rules applicable to foreign listed foreign private issuers compared foreign private issuers need additional private issuers; to the corporate governance practices time to translate information into • Eliminate the availability of the applicable to domestic companies under English for Form 20–F, and to provide limited U.S. GAAP reconciliation option the relevant exchange’s listing the additional non-financial statement that is contained in Item 17 of Form 20– standards. While several commenters disclosures that are required in Form F for foreign private issuers that are only believed the proposed disclosure would 20–F compared to their home country listing a class of securities on a U.S. be more useful if it was made on a more annual reports. Other commenters noted national securities exchange, or only timely basis, commenters generally that the proposed acceleration deadlines registering a class of equity securities noted that the proposal regarding could well result in filing dates that under Section 12(g) of the Exchange disclosure of a change in a registrant’s override annual report filing deadlines Act, and not conducting a public certifying accountant would provide in some issuers’ home countries, and offering. We also are eliminating this that, in any case, foreign private issuers limited reconciliation option for annual 35 These comment letters are available on the provide their home country annual reports filed on Form 20–F, and for Commission’s Internet Web site, located at http:// reports to U.S. investors through the certain non-capital raising offerings, www.sec.gov/comments/s7-05-08/s70508.shtml, and in the Commission’s Public Reference Room in its submission of those reports on Form such as offerings pursuant to Washington, DC headquarters. 6–K. reinvestment plans, offerings upon the

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conversion of securities, or offerings of result in uncertainty for these issuers as information technology fees that would investment grade securities. Thus, all to which reporting and regulatory otherwise result if an issuer changed its foreign private issuers that are required requirements will apply to them within status mid-year. They noted that to provide a U.S. GAAP reconciliation a given period of time, as well as substantial incremental effort is often must do so pursuant to Item 18 of Form increase their compliance burdens.39 required to comply with the 20–F, although required third party This also can result in confusion for Commission’s domestic issuer financial statements could continue to investors if the issuer needs to switch requirements. Commenters also pointed be prepared pursuant to Item 17 of Form between foreign and domestic reporting out that the proposed amendments 20–F; forms within the same fiscal year. would simplify compliance with the • Amend Form 20–F to require We proposed amendments to permit Commission’s regulations because this disclosure in annual reports filed on foreign private issuers to assess their approach would be more consistent that Form about any changes in the status once a year on the last business with our approach to determining registrant’s certifying accountant; day of their second fiscal quarter as a accelerated filer and smaller reporting • Amend Form 20–F to require means of providing greater certainty to company status. One commenter annual disclosure of the fees and other both issuers and investors as to the suggested that the proposal would charges paid by holders of ADRs to status of these foreign issuers within a increase certainty and predictability for depositaries, as well as any payments given period of time. This is the same foreign companies with respect to their made by depositaries to the foreign date used to determine accelerated filer reporting obligations, which should in private issuers whose securities status under Exchange Act Rule 12b–2 40 turn enhance the attractiveness of the underlie the ADRs; and • and smaller reporting company status in U.S. capital markets by removing a Amend Form 20–F to require Item 10(f)(2)(i) 41 of Regulation S–K.42 disincentive to register with the annual disclosure of the significant The vast majority of comments Commission.43 differences in the corporate governance received on the proposed amendments practices of listed foreign private issuers After considering the comments were highly supportive. Commenters received, we are adopting the compared to the corporate governance noted that the proposed amendments practices applicable to domestic amendments as proposed. In addition, would benefit investors by eliminating we are adopting the proposed companies under the relevant confusion in the markets as to an exchange’s listing standards. amendments that would require a issuer’s status if an issuer needs to move foreign private issuer that determines II. Discussion of the Amendments between foreign and domestic reporting that it no longer qualifies as a foreign forms in the same fiscal year. private issuer on the last business day A. Annual Test for Foreign Private Commenters also noted that the Issuer Status of its second fiscal quarter to comply proposed amendments would also with the reporting requirements and use The Commission’s longstanding eliminate uncertainty for issuers, and the forms prescribed for domestic policy of facilitating the access of possibly reduce accounting, audit and companies beginning on the first day of foreign issuers to the U.S. capital the fiscal year following the markets is evidenced by the various the purpose of the exemptions contained in determination date. We proposed this Exchange Act Rule 3a12–3(b), foreign private accommodations to foreign practices amendment to give these issuers six and policies it has provided to foreign issuers need to assess their status at the end of each fiscal quarter. In addition, they must assess their months’ advance notice that they will issuers that qualify as ‘‘foreign private status at the completion of any purchase or sale by 36 need to transition to the domestic forms issuers.’’ For many companies, the the issuer of its equity securities (other than in and applicable reporting requirements. connection with an employee benefit plan or determination of whether they qualify All of the comments that we received on as a foreign private issuer is important compensation arrangement, conversion of outstanding convertible securities, or exercise of this aspect of the proposal were highly because of these accommodations and outstanding options, warrants or rights), any 37 supportive. Under the amendments as exemptions. However, to make sure purchase or sale of assets by the issuer other than adopted, a foreign issuer that does not in the ordinary course of business, and any that it qualifies for these qualify as a foreign private issuer as of accommodations, a foreign private purchase of equity securities of the issuer in a public tender offer or exchange offer by a non- the end of its second fiscal quarter in issuer that has close to 50% of its affiliate. Foreign Private Issuers Relying on Rule 2009 would file a Form 10–K in 2010 for outstanding voting securities held of 3a12–3(b) under the Exchange Act, SEC No-Action its 2009 fiscal year. The issuer would Letter, [1993 Transfer Binder] Fed. Sec. L. Rep. record by U.S. residents may find that also begin complying with the proxy it must monitor on a continuous basis (CCH) ¶ 76,667 (Mar. 30, 1993). This letter will be superseded by the amendments. rules and Section 16, and become the different factors used to assess 39 For example, if a foreign issuer concludes that 38 subject to reporting on Forms 8–K and foreign private issuer status. This can it does not qualify as a foreign private issuer in the 10–Q on the first day of its 2010 fiscal middle of its fiscal year, it may find it difficult to year. 36 See supra note 16 for the definition of ‘‘foreign change its basis of accounting to U.S. GAAP in private issuer.’’ order to comply on a timely basis with the reporting We also are adopting amendments to 37 For example, Exchange Act Rule 3a12–3(b) [17 requirements applicable to domestic issuers under permit a reporting company that CFR 240.3a12–3(b)] exempts foreign private issuers the Exchange Act. These issuers also face the qualifies as a foreign private issuer to from the Commission’s proxy rules [17 CFR challenge of modifying their information and 240.14a–1 et seq.], and from the insider stock processing systems to comply with the domestic avail itself of the foreign private issuer trading reports and short-swing profit recovery reporting and registration regime, as well as the accommodations, including use of the provisions under Section 16 [15 U.S.C. 78p] of the executive compensation disclosure requirements, foreign private issuer forms and Exchange Act. Foreign private issuers also provide proxy rules and Section 16 reporting requirements reporting requirements, beginning on any interim reports on the basis of home country that are applicable to domestic issuers. regulatory and stock exchange practices, rather than 40 17 CFR 240.12b–2. the determination date on which it the quarterly reports that are required of U.S. 41 17 CFR 229.10(f)(2)(i). establishes its eligibility as a foreign issuers, and executive compensation disclosure on 42 17 CFR 229.10 et seq. See also Release No. 33– private issuer. Although the majority of an aggregate basis if the information is reported on 8876 (Dec. 19, 2007) [73 FR 934] (adopting comments received on this aspect of the such a basis in the issuer’s home country. See Item amendments to the disclosure and reporting proposal were positive, one 6.B. of Form 20–F. requirements under the Securities Act and the 38 See note 16 above for a description of the Exchange Act to expand the number of companies factors that foreign issuers must monitor. The that qualify for the scaled disclosure requirements 43 See comment letter by Organization for Commission’s staff has taken the position that, for for smaller reporting companies). International Investment.

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commenter 44 contended that the the market when they switch from approach to MJDS filers, several disclosure provided in domestic forms domestic to foreign private issuer status commenters had additional was important enough to require the in order to provide enhanced recommendations. A few commenters issuer to file on such forms for the transparency to investors. We note that suggested that a registrant that did not balance of the fiscal year. Nonetheless, issuers that lose their foreign private qualify for MJDS status on the testing we are adopting this distinction because issuer status would be required to file date should be permitted to use the we believe the new foreign private quarterly reports on Form 10–Q or MJDS registration statement forms until issuer, who would be eligible to file its current reports on Form 8–K the end of its fiscal year. Some annual report for that fiscal year on immediately, thereby effectively commenters also suggested that MJDS Form 20–F, need not continue to providing prompt notice of their new filers be permitted to test their MJDS provide reports on Form 8–K and 10–Q status because of the change in the status on the last business day of their for the remainder of that fiscal year. An forms used. second fiscal quarter, rather than at the issuer that qualifies as a foreign private In addition to the amendments noted end of the year. Other commenters issuer should be allowed to enter the above, we are adopting amendments argued that the foreign private issuer foreign reporting system immediately requiring a Canadian issuer that files eligibility test should be conducted at and furnish reports on Form 6–K,45 registration statements and Exchange the end of the year in conjunction with especially because it will be subject to Act reports using the multijurisdictional the test for MJDS eligibility, or the reporting requirements of its home disclosure system (‘‘MJDS’’) 47 to test its alternatively, that MJDS filers should be regulator. Any reports that it files with status as a foreign private issuer only as required to test their foreign private its home regulator will be available to of the last business day of its second issuer eligibility status twice a year. the Commission and the public through fiscal quarter. Currently, a Canadian After carefully considering all of these its Form 6–K submission. We note that issuer that is eligible to file a Form 40– comments, we have decided to adopt the approach that we are taking here is F 48 annual report at the end of a fiscal the MJDS-related amendments as consistent with our approach to smaller year is presumed to be eligible to use proposed because we believe this reporting companies.46 Form 40–F, as well as Form 6–K, from approach takes into account the A few commenters supported the date of filing until the end of its next substantial accommodations that have requiring a foreign issuer to notify the fiscal year.49 The amendments would been provided to MJDS filers, including market, either in the form of a press require a Canadian issuer that plans to significant disclosure release and/or via notification on the use the MJDS to test its foreign private accommodations.52 As a result of the issuer’s Web site, when it has issuer status earlier in the year. amendments, the new foreign private determined that it has switched its However, it would continue to have to issuer testing date will provide MJDS status from domestic issuer to foreign test its eligibility to file annual reports filers with advance notice that they may private issuer, or vice versa. Currently, on Form 40–F based on all of the other need to switch to the domestic issuer however, foreign private issuers do not requirements of that Form, such as forms after the end of the fiscal year. provide a notice when they switch from public float, at the end of the fiscal Even if an MJDS filer determines that it domestic issuer to foreign private issuer year.50 The amendments would not no longer qualifies as a foreign private status. Moreover, such a notice change the responsibility of the issuer as of the test date, it will be requirement would be an anomaly in Canadian issuer to check its eligibility permitted to use the Securities Act our regulations. In similar contexts, to use Forms 40–F and 6–K at the end registration statement forms, although such as with respect to accelerated filers of its fiscal year. not the MJDS forms, available to foreign or smaller reporting companies, we do With respect to MJDS filings made private issuers for the remainder of that not require issuers to notify the market pursuant to the Securities Act, a fiscal year. The new date for testing when they have switched status. Canadian issuer must test its ability to foreign private issuer status will provide Therefore, we are not adopting a notice use the MJDS registration statement a substantial accommodation for MJDS requirement, although we note that by forms at the time of filing. As a result filers because, currently, these filers are furnishing a current report on Form 6– of the amendments, a Canadian MJDS required to use the domestic forms as K rather than Form 8–K after it changes filer that does not qualify as a foreign soon as they lose their foreign private status, a foreign issuer in essence will be private issuer on the last day of its issuer status. providing notice that it has switched second fiscal quarter would status. Of course, issuers may immediately not be able use the MJDS B. Accelerating the Reporting Deadline voluntarily provide explicit notice to forms for Securities Act offerings. for Form 20–F Annual Reports However, the issuer would still be able We proposed amendments to the 44 See comment letter from CFA Institute Centre to use the other foreign private issuer filing due date for Form 20–F to reflect for Financial Market Integrity (‘‘CFA Institute’’). registration statement forms, such as technological and other developments 45 Foreign private issuers submit current reports to the Commission on Form 6–K [17 CFR 249.306]. Form F–3, until the end of its fiscal that have occurred in the nearly 30 51 Unlike Form 8–K [17 CFR 249.308], which is the year. years that have elapsed since Form 20– current report form used by domestic issuers, there Although we received many are no specific substantive disclosures that are comments generally supporting this 52 Under the MJDS, eligible Canadian issuers may required by Form 6–K. Instead, foreign private satisfy certain securities registration and reporting issuers furnish under cover of Form 6–K whatever requirements of the Commission by providing 47 17 CFR 239.37 to 17 CFR 239.41 and 17 CFR information that they (i) make or are required to disclosure documents prepared in accordance with 249.240f. make public pursuant to the law of the jurisdiction the requirements of the Canadian securities 48 of their domicile or in which they are incorporated 17 CFR 249.240f. MJDS filers file annual regulatory authorities. The MJDS also allows certain or organized, or (ii) file or are required to file with reports on Form 40–F and current reports on Form cash tender and exchange offers for securities of a stock exchange on which their securities are 6–K. Canadian issuers to proceed in accordance with traded and which was made public by that 49 See Release No. 33–6902 (June 21, 1991) [56 FR Canadian and provincial or territorial tender offer exchange, or (iii) distribute or are required to 30036] (adopting the MJDS system). requirements, instead of in accordance with the distribute to their security holders. These reports 50 See id. Commission’s tender offer requirements. For more are required to be furnished promptly after the 51 Form F–3 permits a foreign private issuer to specific information about the accommodations material contained in the report is made public. incorporate by reference its latest Form 40–F. See provided to MJDS issuers, see Release No. 33–6902, 46 17 CFR 229.10(f)(2)(i). Item 6(a) of Form F–3. supra note 49.

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F was first adopted. Our proposed We received 49 comment letters on the reporting deadline for financial amendments would have accelerated the proposed amendments. Some statements of non-registrants that are the reporting due date for annual reports commenters expressed support for the included in the Form 20–F, especially filed on Form 20–F by foreign private accelerated deadlines as proposed. One those required to be filed pursuant to issuers from six months to 90 days after of these commenters, a professional Rule 3–09 58 of Regulation S–X. the issuer’s fiscal year-end in the case of association of investment We received many more comments large accelerated filers and accelerated professionals,55 urged the Commission expressing concerns about the proposed filers, and to 120 days after the issuer’s to move toward requiring the same due dates. Several commenters noted fiscal year-end for all other issuers, after filing requirements for foreign private that the burdens faced by foreign issuers a two-year transition period. We also issuers as for domestic issuers. This in producing Form 20–F was not related proposed similar conforming commenter noted that the value of to size (i.e., accelerated or non- amendments for transition reports filed information in financial statements accelerated filer), but to whether the on Form 20–F when a foreign private decreases as the gap between the date of issuer needs to produce a second set of issuer changes its fiscal year. the financial statements and the date of full financial statements in accordance In the Proposing Release, we noted their release increases. This commenter with U.S. GAAP, or a reconciliation that technological advances have made also noted that recently the financial from their home country accounts to it easier for companies to process and position of some companies has U.S. GAAP.59 Commenters noted that disseminate information quickly. deteriorated significantly over relatively the proposal could create a burden for Investors also evaluate and react to short periods of time. Outdated many issuers that are still required to information in a shorter timeframe, and financial information may make it more prepare their financial statements in many now expect to receive information likely that investors will misjudge both accordance with local GAAP, especially on a faster basis. Although some the viability of the issuer and the value those from some of the emerging information about foreign private of its securities. Another supportive markets.60 In addition, in certain issuers is available through their commenter, an accounting firm,56 noted jurisdictions, bank issuers are required earnings releases and other that accelerating the deadline for Form to prepare their primary financial announcements, investors currently 20–F would provide investors with statements in accordance with local 61 may not have access to the more timelier and more useful information. It GAAP. We also received comments complete disclosure contained in an also noted that the overwhelming that Industry Guide 3, Statistical issuer’s Form 20–F annual report until majority of foreign private issuers’ home Disclosure by Bank Holding Companies, six months after the end of the issuer’s country securities regulators already calls for additional disclosures, as well fiscal year. Although the longer filing have annual report deadlines of either as the classification and disclosure of due date for these reports was initially three or four months. However, this certain information under different commenter pointed out that although a standards than required in the foreign established as an accommodation to the 62 different disclosure requirements in the 90-day reporting deadline for private issuer’s home country. Commenters also noted that many foreign private issuers’ home accelerated and large accelerated filers foreign private issuers need more time jurisdictions,53 many companies that would be earlier than their home than provided under the proposed operate globally gather and evaluate country deadlines for some issuers, this amendments to translate local financial information on a vastly expedited basis would still be an accommodation information into English for Form 20– compared to almost 30 years ago, when compared to the deadlines of 75 or 60 F; 63 to provide the additional Form 20–F was adopted. As a result, days faced by their same-sized U.S. disclosures of Form 20–F, such as Item such a delayed filing date for these counterparts, respectively. This 5 (Operating and Financial Review and reports is no longer necessary. In the commenter also acknowledged that for foreign private issuers that are still Prospects) and the Commission’s Proposing Release, we also noted that industry guide disclosures; and to foreign private issuers in many required to reconcile home country GAAP to U.S. GAAP, a 90-day reporting satisfy certain requirements of the jurisdictions are expected to file annual Sarbanes-Oxley Act.64 Commenters reports with their home securities deadline could impose additional, significant burdens. As a result, it noted that many foreign private issuers regulator on a faster timetable.54 recommended accelerating the deadline have limited resources, and must use the same staff to comply with both local 53 Form 20–F Adopting Release, supra note 18 for these issuers to within 120 days after (noting that the Commission decided not to adopt the foreign private issuer’s fiscal year- filing requirements and the a filing due date for Form 20–F annual reports of end. Another commenter, a foreign Commission’s filing requirements. As a four months after the registrant’s fiscal year-end in private issuer,57 supported the proposed result of the proposed amendments, the deference to commenters’ concerns about the need amendments and indicated that it staff of these issuers would have to for more time to comply with applicable foreign regulations, which at that time often permitted believed that the amendments would annual reports to be furnished to shareholders more not impose any unreasonable burdens 58 17 CFR 210.3–09. than four months after the issuer’s fiscal year-end). on foreign registrants. However, it also 59 See, e.g., comment letters from American Bar Association (‘‘ABA’’) and Linklaters LLP 54 For example, the European Union’s (‘‘EU’’) expressed concern about accelerating Transparency Directive requires companies listed (‘‘Linklaters’’). on an EU regulated market to file their annual 60 See, e.g., comment letter from Linklaters. financial reports four months after the end of each are required to file their annual reports within three 61 See comment letters from Mitsubishi UFJ financial year at the latest. Directive 2004/109/EC months of the end of their reporting year, provided Financial Group, Inc. (‘‘Mitsubishi’’) and Mizuho. of the European Parliament and of the Council (Dec. that the report is submitted 14 days or more before 62 See comment letter from Institute of 15, 2004). All EU member states were required to the date fixed for convening the general meeting at International Bankers, Mitsubishi, and Paul, Weiss, implement the Transparency Directive by January which the company’s financial statements will be Rifkind, Wharton & Garrison LLP (‘‘Paul Weiss’’). 20, 2007. Canadian issuers are also required to file presented, or within three days of the date when the 63 See, e.g., comment letters from Cleary Gottlieb their annual financial statements within a similar company’s accountant signed his audit opinion, Steen & Hamilton (‘‘Cleary Gottlieb’’), Mitsubishi, timeframe. Under National Instrument 51–102 whichever is earlier. Regulation 7, Israeli Securities Mizuho, and Sociedad Quimica y Minera de Chile Continuous Disclosure Obligations, a reporting Regulations (Periodic and Immediate Reports). S.A. 55 Canadian issuer must file its annual financial See comment letter from CFA Institute. 64 These requirements, which are generally not statements within 90 to 120 days after its most 56 See comment letter from Ernst & Young required in home country reporting, include the recently completed financial year-end, depending (‘‘E&Y’’). Section 302 and 906 officer certifications and the on its status as a ‘‘venture issuer’’. Israeli companies 57 See comment letter from Vodafone. review of internal controls over financial reporting.

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produce financial information for home adopted, all foreign private issuers will annual reports in their home country, country purposes on the same timetable be required to file their annual reports and would be accorded an additional as for Form 20–F, rather than in on Form 20–F within four months after month after their home country due seriatim, as is currently the case. their fiscal year-end, regardless of their dates to prepare the Form 20–F under In addition, commenters indicated size, after a three-year transition the new amendments. We note that, that in some cases the proposed due period.68 As discussed above, based on a review of recent filings, a dates would require foreign private commenters indicated that the size of number of foreign private issuers issuers to file their Form 20–F before the issuer would not affect its ability to already file their annual reports on they are required to file their annual file Form 20–F on an expedited basis. Form 20–F well before the current six- reports in their home country. The Rather, the issue was whether the month deadline. In addition, the new proposed due dates would in effect foreign private issuer was required to due date for Form 20–F will still override domestic filing requirements.65 prepare a second set of full financial provide a substantial accommodation to Commenters noted that when foreign statements in accordance with U.S. many foreign private issuers, since large private issuers complete their annual GAAP, or a reconciliation from their accelerated and accelerated domestic 69 reports for home country filing home country accounts to U.S. GAAP. filers are required to file annual reports purposes, they furnish significant In determining that a four-month due on Form 10–K 72 within 60 days and 75 financial information to the Commission date would be appropriate, we note that days, respectively, of their fiscal year- on Form 6–K, often within 90 days after in the next several years a majority of ends.73 All other domestic issuers are their fiscal year-end. These commenters the foreign private issuers who file required to file annual reports on Form asserted that investors typically make annual reports with the Commission 10–K within 90 days after their fiscal investment decisions based on the fiscal will have incentives to use IFRS as year-end.74 We will continue to monitor year-end financial results disclosed in issued by the IASB as more countries market developments to consider Form 6–K or through the issuer’s press adopt IFRS as their basis of accounting, whether it would be appropriate to releases, rather than through the Form or permit companies to use IFRS as accelerate further the due date for Form 20–F. issued by the IASB as their basis of 20–F annual reports. Several commenters recommended accounting. Our recent rule that the Commission adopt a deadline amendments that allow foreign private The amendments that we are adopting that was linked to the foreign private issuers to file financial statements in today reflect our view that annual issuer’s home country requirements for accordance with IFRS, as issued by the reports that are filed on a faster basis filing annual reports. These commenters IASB, without a U.S. GAAP would not only provide investors with suggested that foreign private issuers be reconciliation should make it easier for more timely access to these filings, but required to file Form 20–F annual many foreign private issuers to prepare also improve the delivery and flow of reports within a specified period after their annual reports on Form 20–F.70 As reliable information to investors and the the issuer’s home country report is indicated in the Proposing Release, we capital markets, thereby helping to filed.66 Others, recognizing that such a did not propose amendments to change improve the efficiency of the markets. deadline would be difficult to the age of financial statement The accelerated deadline for Form 20– implement and confusing to investors, requirements for registration statements F should enable investors in the U.S. recommended that the Commission under the Securities Act or Exchange markets to get annual reports on a more accelerate the due date for Form 20–F Act.71 current basis. As the Commission noted for all foreign private issuers to five The new due date also reflects our when it adopted the accelerated filing months after the issuer’s fiscal year- observation that many foreign private dates for periodic reports filed by end.67 issuers registered with the Commission domestic issuers,75 investors and After carefully considering all of the have a three-month due date for filing analysts evaluate the more extensive comments, as well as the benefits to information provided in periodic investors of timelier annual reports, we 68 We are not adopting a similar acceleration in reports against the incremental are adopting amendments to accelerate the filing deadline for annual reports filed on Form disclosures that are made by an issuer. 40–F, which is used by eligible Canadian issuers the due date for annual reports filed on under the MJDS. Under the MJDS, issuers who file The accelerated due date will enable Form 20–F, but with modifications from annual reports on Form 40–F must comply with the this analysis to take place at an earlier the proposed amendments that respond substantive disclosure requirements and filing time. to some of the concerns that were deadlines established by the relevant Canadian securities regulator. In keeping with the purpose of Although various commenters expressed. Under the amendments as MJDS, which is to facilitate cross-border capital recommended that the Form 20–F flows between the United States and Canada by annual report due date be linked in 65 See, e.g., comment letters from Linklaters streamlining the registration and periodic reporting some manner to the foreign private (noting that the 90-day due date is earlier than the process for cross-border issuers, the Form 40–F annual report due dates required by the EU Member must continue to be filed with the Commission on issuer’s annual report due date in its States, China and Brazil) and Gold Fields Limited the same day that the information is due to be filed home country, we concluded that this (noting that the Johannesburg Stock Exchange with the relevant Canadian securities regulatory would be confusing for investors and requires listed issuers to publish annual financial authority, as set forth in General Instruction D.(3) statements within six months after the end of the of Form 40–F. However, we note that a reporting issuer’s financial year). Canadian issuer that is not a ‘‘venture issuer’’ must 72 17 CFR 249.310. 66 See comment letters from The Royal Bank of file its annual financial statements on or before 90 73 See General Instructions A.(2)(a) and (b) of Scotland Group (recommending a due date two to days after its most recently completed financial Form 10–K. At the time that we first adopted rule three weeks after the annual report deadline in the year-end, while all other Canadian issuers must file and form amendments to accelerate the filing of the issuer’s home jurisdiction), European Issuers their annual financial statements on or before 120 quarterly and annual reports of reporting U.S. (recommending a due date that is one month after days after their most recently completed financial issuers, we noted that those amendments would the due date for annual reports in the issuer’s home year-end. See supra note 54. increase the discrepancy in the due dates for filing country), PetroChina Company Limited 69 See, e.g., comment letters from ABA, E&Y, and annual reports between foreign private issuers and (recommending a due date that is two months after Linklaters. larger seasoned U.S. issuers, and indicated that we the issuer’s annual report due date in its home 70 Release No. 33–8879, supra note 21. would continue to consider this issue. Release No. country). 71 Under Item 8.A.4. of Form 20–F, the last year 33–8128 (Sept. 5, 2002) [67 FR 58480] 67 See, e.g., comment letters from Cleary Gottlieb of audited financial statements may not be older 74 See General Instruction A.(2)(c) of Form 10–K. and Mitsubishi. than 15 months at the time of the offering or listing. 75 See Release No. 33–8128, supra note 73.

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would be difficult to implement.76 We with the new deadline for annual provide a longer transition period for also concluded that a due date that is reports filed on Form 20–F.79 the new amendment. five months after the foreign private C. Segment Data Disclosure D. Exchange Act Rule 13e–3 issuer’s fiscal year-end would not address our concerns about providing Under Item 17 of Form 20–F, foreign We are adopting amendments to 80 more timely information to investors. private issuers that present financial Exchange Act Rule 13e–3, which As discussed previously, we received statements otherwise fully in pertains to going private transactions by several comments about the potential compliance with U.S. GAAP may omit reporting issuers or their affiliates, to burdens placed on foreign private segment data from their financial reflect the recently adopted rules issuers that provide disclosures under statements, and also are permitted to pertaining to the ability of foreign Industry Guide 3, which relates to bank have a qualified U.S. GAAP audit report private issuers to terminate their holding companies. We note that the as a result of this omission. We Exchange Act registration and reporting 81 Commission’s staff will consider what proposed an amendment to Form 20–F obligations. Currently, Rule 13e–3 is accommodations with regard to Industry that would eliminate this narrow triggered when an issuer and/or any of Guide 3 would be appropriate. accommodation. its affiliates are engaged in a specified When we proposed the amendments, transaction or series of transactions 82 we proposed a two-year transition Most of the comments received on that have either a reasonable likelihood period for implementation of the this proposal supported the proposed or a purpose of causing (i) any class of accelerated deadline, but also solicited amendments. However, several equity securities of the issuer that is comments on whether a different commenters suggested permitting a subject to Section 12(g) or Section transition period would be more longer transition period to the new 15(d) 83 of the Exchange Act to be held appropriate. While we received several rules. For example, a few commenters of record by less than 300 persons, or comments supporting a two-year recommended a three-year transition (ii) the securities to be neither listed on transition period, several commenters period, so that the amendment would be any national securities exchange nor noted that a three-year transition period effective for fiscal years on or after authorized to be quoted on an inter- would ease the burden on many foreign December 15, 2011 to align the effective dealer quotation system of any private issuers that will be required to date with the timeframe in which many registered national securities adopt IFRS for home country reporting jurisdictions will mandate IFRS association. purposes in 2011. After considering all reporting. Rule 13e–3 requires any issuer or of the comments received, we have After considering all of the comments affiliate that engages in a Rule 13e–3 decided to provide a three-year and noting that approximately five transaction to file a Schedule 13E–3 84 transition period for implementation of foreign private issuers in the past few disclosing its plan to take the company the accelerated Form 20–F due date. As years have used this accommodation, private, and to make prompt adopted, foreign private issuers will be we have decided to adopt the amendments to reflect certain required to file their annual report on amendment as proposed. Foreign information about the proposed Form 20–F within four months after private issuers will be required to transaction. In the Schedule 13E–3, the their fiscal year-end for fiscal years comply with the amendment beginning filing party must disclose the purposes ending on or after December 15, 2011. with their first fiscal years ending on or for the transaction, whether any Of course, foreign private issuers may after December 15, 2009. The delayed alternative means for accomplishing the file their Form 20–F annual reports compliance date will provide foreign stated purposes were considered, the earlier than the current deadline, as private issuers with sufficient time to reasons for the structure of the numerous issuers now do. establish internal procedures that will transaction and why it was being In addition to these amendments, we enable them to obtain the required undertaken at the time, the effects that are adopting amendments that conform information. We are amending Item 17 the transaction would have on the issuer the deadline for transition reports filed of Form 20–F by removing Instruction 3 and its unaffiliated security holders, on Form 20–F, and for the filing of to that Form, which currently permits whether or not the filing party believes special financial reports 77 pursuant to the omission of segment data from U.S. the transaction is fair to unaffiliated Rule 15d–2 of the Exchange Act. The GAAP financial statements. We believe security holders, and the factors deadlines for these reports were based that an accommodation that permits a considered in determining fairness. Rule on the annual report deadlines for few foreign private issuers to present 13e–3(f) 85 also requires dissemination foreign private issuers.78 We are incomplete and non-compliant U.S. of the information required by Schedule amending the due dates for each of GAAP financial statements is no longer 13E–3 to security holders within these reports so that they are consistent necessary or appropriate, especially specified time periods. given recent international developments When the Commission adopted Rule 76 This difficulty would be especially evident for in financial reporting. For example, in 13e–3, we emphasized that the Rule foreign private issuers that are listed only in the order to file financial statements would be triggered only if a specified United States and are not subject to another transaction has either the reasonable securities regulatory reporting regime. without reconciliation to U.S. GAAP, 77 Under Exchange Act Rule 15d–2, a special foreign private issuers must comply 80 17 CFR 240.13e–3. financial report must be filed if a registrant’s fully with IFRS as issued by the IASB, 81 Release No. 34–55540, supra note 28. Securities Act registration statement did not contain including presentation of segment data. certified financial statements for its last full fiscal 82 A ‘‘Rule 13e–3 transaction’’ is defined as (i) a year preceding the fiscal year in which the Accordingly, we have decided not to purchase of any equity security by the issuer of registration statement became effective. Currently, such security or by an affiliate, (ii) a tender offer, foreign private issuers must file this special 79 We also took this approach when we adopted (iii) a proxy solicitation or information statement financial report by the later of 90 days after the date amendments to accelerate the periodic report filing distribution in connection with a merger or similar on which the registration statement became dates for domestic companies. See Release No. 33– transaction, (iv) the sale of substantially all the effective, or six months after the end of the 8128, supra note 73; Release No. 33–8644 (Dec. 21, assets of an issuer to its affiliate, or (v) a reverse registrant’s latest full fiscal year (consistent with the 2005) [70 FR 76626] (adopting further refinements stock split. 17 CFR 240.13e–3(a)(3)(i). current due date of Form 20–F annual reports). to the acceleration rules). See also Release No. 33– 83 15 U.S.C. 78o(d). 78 See Release No. 33–7026 (Nov. 3, 1993) [58 FR 6823 (Mar. 13, 1989) [54 FR 10306] (conforming the 84 17 CFR 240.13e–100. 60304]. transition report rules to the periodic report rules). 85 17 CFR 240.13e–3(f).

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likelihood or purpose of causing the adoption.89 By substituting a test foreign amendment only seeks to provide termination of reporting obligations private issuers already use to deregister regulatory consistency with the new under the Exchange Act.86 Recently, we a class of securities in place of the ‘‘300 deregistration and termination of adopted amendments to the person’’ test, foreign private issuers will reporting provisions, Rule 13e–3, as deregistration provisions applicable to benefit from simplicity and uniformity amended, will continue to govern share foreign private issuers that would when making decisions to exit the U.S. repurchases made in the ordinary permit them to terminate their reporting reporting system. In addition, adopting course of an issuer’s business only when obligations under the Exchange Act by the proposed amendment will provide such repurchases are executed with the meeting a quantitative benchmark clarity to a Rule that does not purpose or reasonable likelihood of designed to measure relative U.S. distinguish whether the cited effect is causing security holders to lose ‘‘the market interest for their equity triggered when the number of holders of benefits of public ownership,’’ 92 and in securities that does not depend on a record is projected to fall below 300 this case the benefits of U.S. reporting. persons in the United States or head count of the issuers’ U.S. security Accordingly, we are adopting the 87 worldwide. Amending Rule 13e–3 will holders. Although Rule 13e–3 does amendment to Rule 13e–3(a)(3)(ii)(A) 93 eliminate the need to interpret its not reflect the termination of as proposed. Under the amended Rule, registration and reporting provisions indefinite reference to ‘‘held of record by less than 300 persons.’’ the cited effect is deemed to have that were previously applicable to occurred when: A domestic or foreign foreign private issuers, we proposed to We believe that adoption of the proposed amendment to Rule 13e– private issuer becomes eligible under amend the Rule to better reflect the Exchange Act Rule 12g–4 94 to deregister current deregistration provisions. 3(a)(3)(ii)(A) should have a neutral effect on foreign private issuers. As is a class of securities; a foreign private We received several comments on this the case under Rule 13e–3 today, foreign issuer becomes eligible under Exchange proposal supporting our efforts to private issuers will remain eligible Act Rule 12h–6 95 to deregister a class of amend Rule 13e–3 to make it consistent under the amended Rule to voluntarily securities or terminate a reporting with the recently adopted termination of take steps to deregister a class of obligation; or such issuers become reporting and deregistration provisions. securities without implicating Rule 13e– eligible under Exchange Act Rule 12h– However, two commenters expressed 3. We also do not believe share 3 96 or Exchange Act Section 15(d) to concern that the Rule could be triggered repurchases made in the ordinary have a reporting obligation by securities transactions in the course of an issuer’s business are within suspended.97 ordinary course of business, such as the scope of Rule 13e–3, as amended, When a foreign private issuer or share repurchases.88 One commenter when such transactions are not domestic issuer engages in a Rule 13e– also suggested that the disclosures in undertaken with the purpose or Schedule 13E–3 regarding fairness to reasonable likelihood of producing one 3 transaction that would cause the unaffiliated security holders would not of the two going private effects specified termination or suspension of its apply in the context of deregistration of in Rule 13e–3.90 Currently, share registration or reporting obligations a foreign private issuer, especially when repurchases are only required to comply under the Exchange Act, Rule 13e–3 is the applicable corporate law does not with Rule 13e–3 to the extent intended to provide the issuer’s security require such determinations, and undertaken with a purpose or with a holders with one last opportunity to requested an instruction to the Schedule reasonable likelihood of producing one obtain information about the issuer and that would recognize this circumstance. of the two going private effects consider their alternatives. This is We also received two comments identified in Rule 13e–3.91 Because the equally true in the context of a foreign suggesting that the Rule should not private issuer or domestic issuer that apply to a foreign private issuer whose 89 Release No. 34–16075, supra note 86. The Rule plans to complete one of the shares will be traded on a foreign 13e–3 adopting release explained that the Rule was transactions specified in Rule 13e– intended to apply when one of the transactions securities exchange, and hence subject identified in the Rule was undertaken with a 3(a)(3) for purposes of deregistering a to home country and/or foreign purpose of or had a reasonable likelihood of class of securities or terminating or securities exchange reporting terminating the issuer’s reporting obligations and suspending a reporting obligation as it obligations, because its home country consequently depriving security holders of the is for a foreign private issuer or benefits of public ownership. See subsection (a) disclosures will continue to be available under ‘‘Discussion.’’ domestic issuer that has executed one of and furnished to the Commission 90 We understand that a trading market may not the specified Rule 13e–3(a)(3) pursuant to Rule 12g3–2(b). One exist in the U.S. for the shares of a foreign private transactions and is ceasing to file commenter also cited concerns that the issuer. For purposes of the Williams Act, ADRs and reports because the number of its similar instruments that represent an ownership application of the Rule could deter the interest in a class of securities are not considered shareholders falls below 300. entry of foreign private issuers into the a class of securities separate from the foreign U.S. markets. private issuer’s underlying shares. See Release No. Securities of the Senate Comm. on Banking and 33–6894 (May 23, 1991) [56 FR 24420] at Section At this time, we believe that Currency, 90th Cong., 1st Sess. 37 (1967) (‘‘Senate II.D.2. Hearings’’) Hearing on H.R. 14475, S. 510 Before the amending Rule 13e–3 as proposed will 91 17 CFR 240.13e–3(a)(3)(ii). See also Release No. Subcomm. on Commerce and Finance of the House modernize one of the Rule’s two 34–14185 (Nov. 17, 1977) [42 FR 60090]. The Rule Comm. on Interstate and Foreign Commerce 15 specified going private effects and 13e–3 proposing release explains, ‘‘In his testimony (1967) (‘‘House Hearings’’). before Congress on the provision that was to 92 Release No. 34–16075, supra note 86. assure that the Rule operates become Section 13(e)(1), then Commission 93 17 CFR 240.13e–3(a)(3)(ii)(A). consistently with an important policy Chairman Cohen recognized that, while there might 94 purpose expressed at its initial be ‘perfectly legitimate corporate purposes’[ ] for a 17 CFR 240.12g–4. corporation to purchase its own securities, 95 17 CFR 240.12h–6. purchases by a corporation of its own securities can 96 17 CFR 240.12h–3. 86 Release No. 34–16075 (Aug. 2, 1979) [44 FR be used to affect the control of the corporation. The 97 We have made a technical modification to the 46736]. management may cause the corporation to proposed amendments to Rule 13e–3 to make clear 87 Release No. 34–55540, supra note 28. repurchase shares for the purpose of preserving or that the Rule may be triggered when a domestic or 88 See comment letters from Cleary Gottlieb and improving the management’s control position or to foreign private issuer’s Section 15(d) reporting The Hundred Group of Finance Directors counteract the tender offer or other takeover bid.’’ obligations are suspended pursuant to Section 15(d) (‘‘Hundred Group’’). See Hearings on S. 510 Before the Subcomm. on or Exchange Act Rule 12h–3.

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E. Requiring Item 18 Reconciliation in grade securities,99 currently are 20–F.104 Under the amendments, Form Annual Reports and Registration permitted to provide Item 17 financial 20–F and the registration statement Statements statements in their registration forms available to foreign private issuers statements under the Securities Act. To under the Securities Act (Forms F–1, F– We are adopting amendments to ensure that the same type of financial 3 and F–4) will require the disclosure of eliminate the option to provide financial information is provided regardless of financial information according to Item statements according to Item 17 of Form the type of offering that is being made, 18 of Form 20–F for registration 20–F in annual reports and registration we proposed amendments to require statements filed under both the statements filed on that form. Currently, foreign private issuers to file financial Exchange Act and the Securities Act, as a foreign private issuer that is only statements that comply with Item 18 well as for annual reports. listing a class of securities on a national when registering these types of offerings When we proposed the amendments, securities exchange, or only registering under the Securities Act. we did not propose eliminating the a class of securities under Exchange Act Many commenters supported the availability of Item 17 disclosures for Section 12(g), without conducting a proposals as useful to investors. Canadian MJDS filers in light of the public offering of those securities may Commenters noted that the amendments special recognition accorded to MJDS provide financial statements according would help ensure that investors receive filings. We also noted that more to Item 17 of Form 20–F. In addition, the complete financial information countries, including Canada, are foreign private issuers may provide required by U.S. GAAP and Regulation expected to adopt IFRS as their basis of financial statements according to Item 100 S–X. However, several other accounting, or to permit companies to 17 for their annual reports on Form 20– commenters expressed concern about use IFRS as issued by the IASB as their F. Under Item 17, a foreign private the benefits of the amendments in light basis of accounting in the next few issuer must prepare its financial of the potential compliance burdens. years. As a result, we concluded that it statements and schedules in accordance They also asserted that other countries would not be appropriate to eliminate with U.S. GAAP, or IFRS as issued by are gradually requiring footnote the availability of Item 17 in MJDS the IASB. If its financial statements and disclosures comparable in scope to U.S. registration statements. We also schedules are prepared in accordance GAAP and Regulation S–X, such that proposed maintaining the availability of with another basis of accounting, the the proposed amendments are not Item 17 for financial statements of non- issuer must include a reconciliation to necessary.101 registrants that are required to be U.S. GAAP. This reconciliation must After carefully considering all of the included in a foreign or domestic include a narrative discussion of comments, we are adopting the issuer’s registration statement, annual reconciling differences, a reconciliation amendments as proposed. We believe report or other Exchange Act report. of net income for each year and any that a reconciliation that includes the These include significant acquired interim periods presented, a footnote disclosures required by U.S. businesses under Rule 3–05 105 of reconciliation of major balance sheet GAAP and Regulation S–X 102 can Regulation S–X, significant equity captions for each year and any interim provide important additional method investees under Rule 3–09 of periods, and a reconciliation of cash information.103 We also note that the Regulation S–X, and exempt flows for each year and any interim majority of foreign private issuers who guarantors 106 under Rule 3–10(i) 107 of periods.98 In contrast, if a foreign do not prepare financial statements in Regulation S–X. The commenters who private issuer that presents its financial accordance with U.S. GAAP elect to commented on these accommodations statements on a basis other than U.S. provide financial information pursuant supported them, so the amendments as GAAP, or IFRS as issued by the IASB, to Item 18, rather than Item 17, of Form adopted will not apply to MJDS filers or provides financial statements under 99 to the financial statements of non- Item 18 of Form 20–F, it must provide The Commission recently proposed amendments permitting foreign private issuers to registrants. all the information required by U.S. comply with the less extensive U.S. GAAP Several commenters who supported GAAP and Regulation S–X, in addition reconciliation requirements under Item 17 in a to the reconciling information for the registration statement or private offering document the proposed amendments line items specified in Item 17. if the issuer met the proposed new Form F–3 recommended that we establish a transaction eligibility criteria for registering primary compliance date that would provide To eliminate this distinction between offerings of non-convertible securities. The foreign private issuers with a longer proposed eligibility criteria would eliminate the the disclosure provided to the primary transition period before they would be and secondary markets, we proposed current requirement in Form F–3 of an investment grade rating by a nationally recognized statistical required to prepare financial statements amendments to require Item 18 rating agency. Release No. 33–8940 (July 1, 2008) pursuant to Item 18.108 Among other information for foreign private issuers [73 FR 40106]. We requested comment on whether, that are only listing a class of securities if we decided not to eliminate the option of providing Item 17 financial disclosure, we should 104 A foreign private issuer’s latest annual report on an exchange, or only registering a revise the Form F–3 eligibility requirements as filed on Form 20–F and all subsequent Form 20– class of securities under Exchange Act proposed. Id. at Section II.B.2. F annual reports are incorporated by reference into Section 12(g), without conducting a 100 See, e.g., comment letter from the CFA its Form F–3 shelf registration statement. See Item public offering. We also proposed Institute. 6 (Incorporation of Certain Information by amendments to require Item 18 101 See, e.g., comment letter from Cleary Gottlieb. Reference) in Form F–3. General Instruction I.B.1. 102 17 CFR Part 210.1–01 et seq. of Form F–3 requires foreign private issuers to information for foreign private issuers provide financial statements that comply with Item 103 Under Item 17, an issuer is not required to 18 for primary offerings. that file annual reports on Form 20–F. provide the footnote disclosures required by U.S. 105 In addition, foreign private issuers GAAP and Regulation S–X, unless these disclosures 17 CFR 210.3–05. 106 A guarantor that is required to file separate that are making certain non-capital are otherwise required under its home country GAAP. For example, the footnote disclosures financial statements must comply with Item 18. raising offerings, such as offerings related to pension assets, obligations and 107 17 CFR 210.3–10(i). pursuant to reinvestment plans, assumptions, lease commitments, business 108 See comment letters from BDO Seidman, LLP offerings upon the conversion of segments, tax attributes, stock compensation (‘‘BDO’’), Center for Audit Quality (‘‘CAQ’’), securities or offerings of investment awards, financial instruments and derivatives, Deloitte Touche Tohmatsu (‘‘Deloitte’’), E&Y, Grant among many others, are not required under Item 17 Thornton LLP (‘‘Grant Thornton’’), KPMG IFRG unless they are otherwise required by the issuer’s Limited (‘‘KPMG’’), and PricewaterhouseCoopers 98 See Item 17(c)(2) of Form 20–F. home country GAAP. LLP (‘‘PricewaterhouseCoopers’’).

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things, these commenters noted that the company achieve its reporting disclosure pertains to a foreign-based foreign private issuers that provide the objectives, even though that treatment certifying accountant because of home- Item 17 reconciliation in their annual could frustrate reliable reporting.113 country legal requirements, such as reports tend to be smaller companies, Foreign private issuers have not been privacy laws. Other commenters and that these companies would face required to provide this disclosure.114 recommended that we consider significant burdens on their financial However, the issues underlying the mechanisms to require foreign private accounting and reporting systems if they need for this disclosure also apply to issuers to provide the disclosure on a are required to provide the additional foreign private issuers, and the timelier basis than proposed. Item 18 disclosures, as well as comply relationship between issuers and their After considering all of the comments with the accelerated due date for Form auditors in this area would seem to be received, we believe that the 20–F, at the same time. In addition, they as important for investors. Moreover, amendments as proposed achieve an noted that many countries, such as foreign private issuers that are listed on appropriate balance among all of the Canada, will be adopting IFRS in 2011. the New York Stock Exchange (‘‘NYSE’’) views that were expressed. Given the Aligning the compliance date for the are already required by that Exchange to usefulness of the information to adopted amendments with the date on notify the public about a change in their investors, we believe that foreign private which many countries will be adopting auditors,115 although this information is issuers should be required to disclose IFRS would reduce the potential required to be furnished under cover of substantially the same information burdens on these issuers. Form 6–K, which does not have the provided by domestic issuers. Several For the reasons enumerated above, we substantive disclosure requirements of commenters believed the value of the are establishing a compliance date that Form 8–K.116 As a result, we proposed information to investors would be should provide foreign private issuers amendments that would require diminished by the potential time with sufficient time to transition to the substantially the same types of between the change in accountants and Item 18 requirements when preparing disclosures currently provided by the proposed disclosure.118 We their financial statements. A foreign domestic issuers about changes in and recognize that foreign private issuers private issuer that currently prepares its disagreements with their certifying will be disclosing the information on a financial statements according to Item accountant. After reviewing the delayed basis in their annual reports 17 of Form 20–F will not be required to comment letters received on these and registration statements, compared to prepare financial statements pursuant to proposed amendments, most of which the current basis required by domestic Item 18 until it files an annual report for were generally supportive, we are issuers. However, we do not believe it its first fiscal year ending on or after adopting the amendments substantially would be appropriate to adopt a December 15, 2011. The longer as proposed. As discussed below, in separate current report requirement for transition period should reduce the response to a question on this point in foreign private issuers to report this impact of these amendments on many of the Proposing Release, several information because they are already the affected issuers. In addition, because commenters suggested that we extend required to furnish to the Commission foreign private issuers that prepare this disclosure requirement to all on Form 6–K the material information financial statements in accordance with registration statements, not just initial that they provide to their home country IFRS, as issued by the IASB, are not registration statements filed by foreign regulator, to their security holders and required to prepare a reconciliation to private issuers. We have modified the to the public. To the extent that U.S. GAAP, we expect that the number proposal accordingly. information about a change in certifying of companies that will be affected by the The few commenters who expressed accountant is required by the foreign opposition to the proposed amendments will be small. private issuer’s home country, the amendments, either in whole or in part, information would be disclosed in a F. Disclosure About Changes in a expressed concern that foreign private Form 6–K. Introducing an additional Registrant’s Certifying Accountant issuers may be required to disclose more U.S. current report requirement outside information about their former auditors Domestic companies currently report of the traditional Form 6–K reporting in their Form 20–F annual reports than any changes in and disagreements with requirements does not seem appropriate is required under their home country their certifying accountant in a current at this time. In addition, because the law.117 In addition, some commenters report on Form 8–K and in a registration new disclosure requirement may require 109 encouraged the Commission to research statement on Form 10 under the a foreign private issuer to disclose more 110 and evaluate whether compliance with Exchange Act, as well as in their information about its former auditors the proposed requirements would be registration statements filed on Forms than may be required by its home 111 112 frustrated or precluded when the S–1 and S–4 under the Securities country law, permitting foreign private Act. Among other things, this disclosure issuers to prepare and provide the provides information about potential 113 See Release No. 33–6766 (Apr. 7, 1988) (adopting amendments to Form 8–K, Regulation S– disclosure in their annual reports may opinion shopping situations by issuers. K and Schedule 14A [17 CFR 240.14a–101] related help reduce the burdens of reporting ‘‘Opinion shopping’’ generally refers to to disclosure concerning a change in a registrant’s this information. the search for an auditor that is willing certifying accountant). With respect to the concern expressed to support a proposed accounting 114 When we proposed the adoption of Form 20– by some commenters regarding potential F, we proposed a disclosure requirement soliciting treatment that is designed to help a information about changes in the registrant’s conflicts between the proposed certifying accountant. Release No. 34–14128 (Nov. disclosure and home country legal 109 17 CFR 249.210. 2, 1977) [42 FR 58684] (contained in proposed Item requirements, we note that we asked 110 In their annual reports on Form 10–K, 24). The disclosure item was not included in Form commenters to provide details of any domestic issuers do not provide the same type of 20–F. Form 20–F Adopting Release, supra note 18. change of accountant disclosure, since they should 115 Section 204.03 of the NYSE Listed Company restrictions under the foreign issuer’s have reported this information on a more current Manual. home country law or regulations that basis on Form 8–K. However, they do provide the 116 See supra note 45 for a discussion of the disclosures required by Item 304(b) of Regulation differences between Forms 6–K and 8–K. 118 See comment letters from AngloGold Ashanti S–K [17 CFR 229.304(b)]. 117 See comment letters from CAQ, Deloitte, Limited; BDO; CAQ; Deloitte; E&Y; Grant Thornton; 111 17 CFR 239.11. Hundred Group, Linklaters, and Sullivan & Harmony Gold Mining Company Limited and 112 17 CFR 239.25. Cromwell LLP. PricewaterhouseCoopers.

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would prohibit an auditor from are adopting amendments to Forms F– former accountant would be able to reporting to a foreign regulator about 1, F–3 and F–4 that will require Item furnish the issuer with a letter stating disagreements with the issuer. Most of 16F disclosure by all registrants, whether it agrees with the statements the commenters did not provide any including repeat issuers. We are also made by the issuer in response to Item examples of home country law or amending Form F–3 so that Item 16F 16F and, if not, stating the respects in regulations that would prohibit such disclosure will be provided in a which it does not agree, and that the disclosure, but suggested that we registration statement at effectiveness, issuer would be able to file the former conduct further research about possible as well as in a prospectus used in accountant’s letter as an exhibit to the conflicts.119 connection with a shelf offering. annual report or registration statement As adopted, Item 16F of Form 20–F New Item 16F requires substantially that contains this disclosure at the time will elicit the same types of change of the same information required by Item that the annual report or registration accountant disclosures obtained in Item 304 of Regulation S–K, which contains statement is due. Item 304(a)(3) 4.01 (Changes in Registrant’s Certifying the disclosure requirements applicable provides that if the former accountant’s Accountant) of Form 8–K,120 including to domestic issuers. Among other letter is not available at the time that the the disclosure requirements of Item things, Item 16F requires an issuer to report or registration statement is filed, 304(a) of Regulation S–K,121 which are disclose whether an independent then the issuer can file the letter with referenced in Form 8–K, and Item 9 accountant that was previously engaged the Commission within ten business (Changes in and Disagreements with as the principal accountant to audit the days after the filing of the report or Accountants on Accounting and issuer’s financial statements, or a registration statement. Because foreign Financial Disclosure) of Form 10–K,122 significant subsidiary on which the private issuers would be permitted to which refers to the disclosure accountant expressed reliance in its provide the disclosure in their annual requirements of Item 304(b) of report, has resigned, declined to stand reports, we believe that this Regulation S–K. However, because for re-election, or was dismissed. Item accommodation would not be necessary foreign private issuers do not file Forms 16F also requires an issuer to disclose unless the change in accountant 8–K and 10–K and are not otherwise any disagreements or reportable events occurred less than 30 days prior to the subject to Item 304 of Regulation S–K, that occurred within the issuer’s latest filing of the annual report 125 or we are adopting amendments requiring two fiscal years and any interim period registration statement. As adopted, Item them to provide disclosure about preceding the change of accountant. 16F would permit a delayed filing of the changes in and disagreements with their Item 16F(b) solicits disclosure about former accountant’s letter in an annual certifying accountants in their annual whether, during the fiscal year in which report or registration statement only if reports on Form 20–F, as well as in their the change of accountants took place or the change in accountant occurred registration statements filed on Forms during the subsequent year, the issuer within this 30-day timeframe. 20–F, F–1, F–3 and F–4. had similar, material transactions to Foreign private issuers will be We are also adopting amendments to those which led to the disagreements required to comply with the Forms F–1, F–3 and F–4, which are with the former accountants, and amendments beginning with their first used to register public offerings of whether such transactions were fiscal year ending on or after December securities by foreign private issuers accounted for or disclosed in a manner 15, 2009. The delayed compliance date under the Securities Act, to require the different from that which the former should provide these issuers and their new Item 16F disclosure requirement accountants would have concluded was accountants with sufficient time to about the issuer’s changes in and required. If so, Item 16F(b) requires the establish internal procedures that will disagreements with their certifying issuer to disclose the existence and enable them to comply with the new accountant. Although we had not nature of the disagreement or reportable requirements. event, and also to disclose the effect on proposed requiring Item 16F disclosure G. Annual Disclosure About ADR Fees the financial statements if the method for repeat registrants, we solicited and Payments comments on whether this was that would have been required by the We are adopting amendments that disclosure that should be provided in former accountants had been followed. will require foreign private issuers to connection with all registration Although the disclosure requirements contained in Item 16F are substantially disclose information about the fees and statements filed by a foreign private similar to the disclosure requirements other charges paid in connection with issuer under the Securities Act. Some applicable to domestic issuers in Item ADR facilities in their annual reports on commenters supported this approach. 304 of Regulation S–K, as proposed, we Form 20–F.126 We proposed these They noted that this information would have eliminated or modified some of the amendments because we believe that be useful in Securities Act registration due dates described in Item 304(a)(3) of ADR holders can benefit from enhanced statements filed by repeat issuers, Regulation S–K because the disclosure disclosure in this area, especially in especially if the change in accountant or is being made on an annual, rather than light of new depositary fees that are disagreement occurred after the filing of on a current, basis. For example, being charged to ADR holders in the Form 20–F annual report and before although Item 16F would require the connection with sponsored ADR the filing of the next Securities Act 123 issuer to provide a copy of the facilities. These new fees include an registration statement. As a result, we disclosures that it is making in response 125 Under General Instruction C.(b) of Form 20– 119 to Item 16F to the former accountant, it One commenter suggested that South African F, the information provided in a Form 20–F annual law may preclude such disclosures, see comment would not require the issuer to provide the disclosures within the timeframe report should be as of the latest practicable date, letter from Deloitte, but the four South African unless a disclosure item in the Form explicitly issuers that commented on the Proposing Release specified in Item 304(a)(3) of Regulation directs otherwise. As a result, changes in the foreign did not cite specific restrictions under South S–K.124 In addition, we expect that the private issuer’s certifying accountant that occur African law. after the issuer’s fiscal year-end, but before the 120 Item 4.01 of Form 8–K. 124 Item 304(a)(3) of Regulation S–K requires the Form 20–F is filed, would be disclosed in the 121 17 CFR 229.304(a). issuer to provide a copy of the disclosures to the issuer’s Form 20–F annual report. 122 Item 9 of Form 10–K. former accountant no later than the day that the 126 We noted the importance of transparency in 123 See comment letters submitted by CAQ, the disclosures are filed with the Commission. 17 CFR fee disclosures in our 1991 ADR concept release, CFA Institute, and KPMG. 229.304(a)(3). Release No. 33–6894, supra note 90.

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annual fee for general depositary avoid undermining competition among requirements,133 but require these services, a fee that was formerly depositaries.132 issuers to disclose the significant ways 127 prohibited by some exchanges. After considering all of these in which their corporate governance Although ADR fees are disclosed in the comments, we are adopting the practices differ from those followed by 128 ADR itself, ADR holders frequently amendments to Form 20–F as proposed. domestic companies under the relevant purchase their ADRs in bookentry form The amendments to Form 20–F revise exchange’s listing standards. Foreign and do not see the disclosures provided Item 12.D.3. and the Instructions to Item private issuers may provide this in the physical certificate. 12 to solicit disclosure of the fees paid disclosure either in their annual reports, Many commenters on the proposed and/or on their Web sites,134 and many by ADR holders on an annual basis, amendments supported the disclosure foreign private issuers opt to provide including the annual fee for general of the ADR fees paid by ADR holders, this disclosure on their Web sites, rather depositary services. In addition, foreign noting that complete and regular than in their annual reports. disclosure of these fees is important in private issuers will be required to We reiterate, as we stated when we light of their impact on investors. A few, disclose the payments that they have proposed the amendments, that this however, noted that these fees are received from depositaries in disclosure does not imply a preference already disclosed in the deposit connection with their ADR programs. for any particular type of corporate agreement, on the Form F–6 registration Because we believe that the value of the governance regime. Again, we note that statement filed to register the ADRs with information provided would be the disclosure should be useful to the Commission under the Securities diminished if it was provided only on investors by facilitating their ability to Act, as well as in the Form 20–F that is an aggregate basis, issuers must disclose monitor the issuer’s corporate filed to register the deposited securities the information on a per payment basis. governance practices. under the Exchange Act.129 After We believe that information about the The vast majority of comments considering these comments, we have types of payments made by depositaries received on this proposal were concluded these ADR fees are to issuers would be useful to investors supportive. Commenters noted that the significant enough to warrant enhanced because it would enable them to proposed amendment would benefit transparency to investors on an annual understand the purpose of the investors by enabling them to access all basis and will present a minimal payments. The amendments to Item of the corporate governance information additional disclosure burden on foreign 12.D.3. and the Instructions to Item 12 about a foreign private issuer in one private issuers. of Form 20–F will require disclosure of location. They also noted that the We received a variety of comments in these payments in the registration information would provide investors reaction to the proposed disclosure statement on Form 20–F that is filed for with relevant disclosure of any updates requirement regarding payments made the deposited securities, as well as in on a foreign private issuer’s corporate by depositary banks to the foreign the annual report, for sponsored ADR governance practices. private issuers whose securities facilities. After considering these comments, we underlie the ADRs. Some commenters To address the concerns about the are adopting amendments as proposed expressed concern that the disclosure disclosure of incentive payments made to require disclosure of this information would have a detrimental effect on the by depositaries to foreign issuers, a in the Form 20–F annual reports filed by ADR market, would constitute foreign private issuer will not be all foreign private issuers whose commercially sensitive proprietary required to disclose this information securities are listed on a U.S. exchange. information, and would be immaterial until it files its annual report for its first New Item 16G would require foreign to investors.130 Other commenters, fiscal year ending on or after December private issuers to provide a concise however, noted that disclosure of such 15, 2009. This should permit depositary summary in their annual reports of the payments would limit the risk that banks and foreign issuers to make significant ways in which the foreign depositary banks would attempt to appropriate contractual arrangements, private issuer’s corporate governance defray the incentive payments through as necessary, in light of the new practices differ from the corporate 131 governance practices followed by increased charges to ADR holders. disclosure requirements. One commenter suggested that domestic companies under the relevant disclosure of the aggregate amount of H. Disclosure About Differences in exchange’s listing standards. incentive payments made to issuers by Corporate Governance Practices Several commenters expressed the depositaries, rather than detailed view that the new disclosure item We proposed amendments that would should not require disclosure of more disclosure of each payment, would require listed foreign private issuers to disclose in their Form 20–F annual 133 See Section 303A.00 of the NYSE Listed 127 See Release No. 34–53978 (June 13, 2006) [71 Company Manual (noting that foreign private FR 35474] (notice of NYSE rule change to eliminate reports the significant ways in which their corporate governance practices issuers are permitted to follow home country the requirement that certain services be provided practice instead of the applicable corporate without charge to ADR holders). differ from the practices followed by governance provisions of the NYSE Listed Company 128 As a technical matter, an ADR is the physical domestic companies listed on the same Manual, except for the requirements pertaining to certificate that evidences American Depositary exchange. This proposal recognized that audit committees, certain certifications, and certain Shares (‘‘ADS’’), and an ADS is the security that corporate governance disclosures); Section represents an ownership interest in deposited foreign private issuers are subject to 4350(a)(1) of the Nasdaq Manual (noting that securities. However, the terms are often used different legal and regulatory requirements pertaining to audit committees and interchangeably by market participants. requirements in their home audit opinions apply, among other things); and 129 Rule 12a–8 [17 CFR 240.12a–8] exempts jurisdictions, and as a result frequently Section 110 of the Amex Company Guide (stating depositary shares registered on Form F–6 [17 CFR that in evaluating the listing application of a foreign 239.36] under the Securities Act, but not the follow different corporate governance private issuer, ‘‘the Exchange will consider the underlying deposited securities, from the operation practices from domestic companies. laws, customs and practices of the applicant’s of Section 12(a) of the Exchange Act [15 U.S.C. Many U.S. securities exchanges exempt country of domicile, to the extent not contrary to 78l(a)]. listed foreign private issuers from many the federal securities laws’’). 130 See, e.g., comment letters from the ABA, The of their corporate governance 134 See Section 303A.11 of the NYSE Listed Bank of New York Mellon, and Deutsche Bank. Company Manual; Section 4350(a)(1) of the Nasdaq 131 See, e.g., the comment letter from Depositary Manual; and Section 110 of the Amex Company Management Corporation. 132 See id. Guide.

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information than foreign issuers foreign private issuers only provide this statements only with respect to the most currently provide to the exchanges upon information in the registration recently completed fiscal year, unless which their securities are listed.135 statements that they file under the home country law requires more.143 Another commenter proposed Securities Act and the Exchange Act. This commenter suggested that this modifications to the proposed text of We proposed amendments to require approach would avoid the imposition of Item 16G out of concern that the foreign private issuers to provide the unnecessary burdens on foreign private proposed requirement would financial information elicited by Rule issuers, as well as inconsistent inadvertently result in long, boilerplate 3–05 and Article 11 of Regulation S–X disclosure obligations on the issuer, and disclosures.136 Other commenters in their Exchange Act annual reports. would avoid creating a disparity in the supported presentation of the Because foreign private issuers do not information available to investors in the information in a tabular format, while file current reports on Form 8–K, we did issuer’s home country and the United others expressed concern that requiring not propose imposing a requirement States. We are not adopting these a particular type of presentation could that this financial information be amendments at this time, but will encourage a ‘‘tick box’’ approach to presented on a more current basis than continue to consider the proposal in corporate governance.137 In response to annually. We proposed requiring foreign light of the concerns expressed. these comments, we have revised new private issuers to provide financial IV. Paperwork Reduction Act Item 16G to more exactly track the information in their annual reports on analogous disclosure requirements of Form 20–F about highly significant A. Background 138 some of the exchanges, without acquisitions completed during the most The final amendments contain specifying a particular format for the recent fiscal year covered by their ‘‘collection of information’’ presentation of this information. We annual report on that Form. As requirements within the meaning of the expect that the disclosure provided in proposed, the disclosure requirement Paperwork Reduction Act of 1995 response to new Item 16G will be would have been triggered at the 50% (‘‘PRA’’).144 We have submitted the 141 similar, if not the same, as the or greater level of significance, and proposed amendments to the Office of disclosure that foreign private issuers would have required the provision of Management and Budget (‘‘OMB’’) for currently provide in response to the financial statements for three fiscal review in accordance with the PRA.145 corporate governance disclosure years as prescribed by Rule 3– The titles for the affected collections of requirements of the exchange on which 05(b)(2)(iv) of Regulation S–X. information are: their securities are listed. Issuers should We received several comments on this (1) ‘‘Form 20–F’’ (OMB Control No. assess, and in the future re-assess, the proposal. Although many commenters 3235–0288); format that they believe is most supported the proposal, several also (2) ‘‘Form F–1’’ (OMB Control No. appropriate in their circumstances. expressed concern about the timeliness 3235–0258); of the information that would be III. Other Matters Considered (3) ‘‘Form F–3’’ (OMB Control No. provided, since it would be provided in 3235–0256); and At the time that we proposed the the foreign private issuer’s periodic (4) ‘‘Form F–4’’ (OMB Control No. amendments discussed above, we also reports (i.e., its annual report), rather 3235–0325). proposed to amend Item 17(a) of Form than on a current basis. Other Form 20–F sets forth the disclosure 20–F to require foreign private issuers to commenters questioned the value of requirements for annual reports and provide, in certain circumstances, the requiring foreign private issuers to registration statements filed by foreign financial information required by Rule provide historical financial statements private issuers under the Exchange Act, 3–05 and Article 11 139 of Regulation of significant acquirees for three fiscal as well as many of the disclosure S–X. These rules pertain, respectively, years. One commenter recommended requirements for registration statements to the financial statements that must be that foreign private issuers be afforded filed by foreign private issuers under the provided for significant, completed the flexibility to include financial Securities Act. Forms F–1, F–3 and F– acquisitions and the preparation of pro information based on the relevant IFRS 4 were adopted pursuant to the forma financial statements. Although and local auditing standards, and to Securities Act, and set forth the domestic companies must present the omit financial information when it disclosure requirements for registration financial statements of significant cannot be produced without statements filed by foreign private acquired businesses and pro forma unreasonable burden or expense.142 issuers to offer securities to the public. financial information in their Another commenter suggested that we The hours and costs associated with registration statements under both the should defer to home country disclosure preparing, filing and sending these Securities Act and the Exchange Act, as requirements, and require financial forms and complying with these rules well in a Form 8–K current report,140 constitute reporting and cost burdens business acquisition significant at the 20% or imposed by each collection of 135 See, e.g., the comment letters from the ABA, greater level that must be disclosed pursuant to information. An agency may not CAQ, Deloitte, and E&Y. Item 2.01, Item 9.01 of Form 8–K requires the conduct or sponsor, and a person is not 136 See comment letter from Cleary Gottlieb. financial statements of the acquired business to be 137 See, e.g., comment letter from the British filed with the initial report of the acquisition on required to respond to, a collection of Bankers’ Association. Form 8–K, or by amendment no later than 71 information unless it displays a 138 See Section 303A.11 of the NYSE Listed calendar days after the date that the initial report currently valid OMB control number. Company Manual; Section 110 of the Amex on Form 8–K is due. The information collection requirements Company Guide. 141 The significance of an acquired business is related to Forms 20–F, F–1, F–3 and F– 139 measured by the comparison of: (1) The registrant’s 17 CFR 210.11 et seq. 4 are mandatory. There is no mandatory 140 Item 2.01 of Form 8–K requires domestic investment in the acquired business (acquisition issuers to disclose certain information when they or price) to the registrant’s total assets, (2) the acquired retention period for the information one of their majority-owned subsidiaries complete business’ total assets to the total assets of the disclosed, and the information disclosed an acquisition or disposition of a significant amount registrant, or (3) the acquired business’ pre-tax would be made publicly available on of assets, other than in the ordinary course of income to the pre-tax income of the registrant. See business. The Form 8–K filed to report this Rule 1–02(w) [17 CFR 210.1–02] of Regulation acquisition or disposition must be filed within four S–X. 143 See comment letter from the ABA. business days after the event has occurred. See 142 See comment letter from the 144 44 U.S.C. 3501 et seq. General Instruction B.1. of Form 8–K. For a Bar. 145 44 U.S.C. 3507(d) and 5 CFR 1320.11.

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the EDGAR filing system. We have • Outside firms, including legal accelerated due date for Form 20–F based our estimates of the effect that the counsel, accountants and other advisors, annual reports than proposed, and a adopted rule and form amendments incur or will incur 75% of the burden longer transition period for certain would have on those collections of required to produce each Form 20–F, amendments than originally proposed. information primarily on our review of Form F–1, Form F–3, or Form F–4 at an B. Burden and Cost Estimates Related to the most recently completed PRA average cost of $400 per hour.146 submissions for the affected rules and We estimated the average number of the Amendments forms. hours each entity spends completing the 1. Form 20–F The amendments will: (1) Amend forms and the average hourly rate for We estimate that currently foreign Rule 405 of Regulation C under the outside professionals. That estimate private issuers file 942 Form 20–Fs each Securities Act and Exchange Act Rule includes the time and the cost of in- year. We assume that 25% of the burden 3b–4 to permit foreign issuers to test house preparers, reviews by executive required to produce the Form 20–Fs is their qualification to use the forms and officers, in-house counsel, outside borne internally by foreign private rules available to foreign private issuers counsel, independent auditors and issuers, resulting in 614,891 annual on an annual basis, rather than on the members of the audit committee. burden hours borne by foreign private continuous basis that is currently We published a notice requesting issuers out of a total of 2,459,564 annual required; (2) Amend Form 20–F to comment on the collection of burden hours. Thus, we estimate that accelerate the filing deadline for annual information requirements in the 2,611 total burden hours per response reports filed by foreign private issuers Proposing Release and submitted these are currently required to prepare the on Form 20–F, subject to a three-year requirements to OMB for review in Form 20–F. We further assume that 75% transition period; and amend Exchange accordance with the PRA. Although we of the burden to produce the Form 20– Act Rules 13a–10 and 15d–10, which received many comment letters on the Fs is carried by outside professionals pertains to transition reports filed by proposed rule amendments, none retained by foreign private issuers at an foreign private issuers on Form 20–F, specifically addressed the estimated average cost of $400 per hour, for a total and Exchange Act Rule 15d–2, which effects of these proposed amendments cost of $737,868,600. pertains to special financial reports filed on the collection of information by foreign private issuers, to conform The amendment to amend Form 20– requirements. In response to the F to accelerate the filing deadline for the due dates for those reports with the comments received, we have made due date for annual reports filed on annual reports and transitions reports certain modifications to the proposals. filed on that Form will not change the Form 20–F; (3) Amend Form 20–F by We have decided not to adopt the eliminating an instruction to Item 17 of amount of information required to be proposal to require disclosure of included in Exchange Act reports. In that Form, which permits certain foreign significant, completed acquisitions in private issuers to omit segment data connection with this amendment, we the Form 20–F annual report, which are also adopting amendments to from their U.S. GAAP financial will reduce our previous estimates of statements; (4) Amend Rule 13e–3, Exchange Act Rules 13a–10 and 15d–10, the reporting and cost burdens of which pertain to transition reports filed which pertains to going private preparing Form 20–F. As a result of transactions by reporting issuers or their on Form 20–F, and to Exchange Act comments received, we are also Rule 15d–2, which pertains to special affiliate, to reflect the recently adopted adopting a requirement that repeat rules pertaining to the ability of foreign financial reports filed by foreign private registrants, rather than only first-time issuers. Our amendments will conform private issuers to terminate their registrants, provide information about Exchange Act registration and reporting the deadlines for transition reports filed changes in and disagreements with their on Form 20–F and for the special obligations; (5) Amend Form 20–F and certifying accountant in their Securities Forms F–1, F–3 and F–4 to require financial reports filed by foreign private Act registration statements. Because issuers with the new deadline for foreign private issuers that are required such an event occurs very rarely, this to provide a U.S. GAAP reconciliation annual reports filed on Form 20–F. amendment will not significantly affect These amendments also will not change to do so pursuant to Item 18 of Form our estimate of the incremental 20–F; (6) Amend Form 20–F, Forms F– the amount of information required to reporting and cost burdens of this be included in Exchange Act reports. 1, F–3 and F–4 to require foreign private amendment. We are revising our issuers to disclose information about a Therefore, these amendments will estimates for Forms 20–F and Form F– neither increase nor decrease the change in the issuer’s certifying 3 accordingly. Other modifications that accountant; and (7) Amend Form 20–F amount of burden hours necessary to we have made to the proposed prepare annual reports on Form 20–F to require foreign private issuers to amendments do not affect our estimate disclose the fees and charges paid by for the purposes of the PRA. of the incremental burden of the With respect to our amendment to ADR holders, the payments made by the amendments because they will not depositary to the foreign issuer whose require foreign private issuers that are change the amount of information securities underlie the ADRs, and for required to provide a U.S. GAAP required to be included by registrants in listed issuers, the differences in the reconciliation to do so pursuant to Item any of the affected Forms. These foreign private issuer’s corporate 18 of Form 20–F, we estimate that amendments include certain governance practices and those approximately 200 companies that file modifications to Rule 13e–3 to address applicable to domestic companies under Form 20–F will be impacted by the technical concerns, a different the relevant exchange’s listing rules. amendment. We expect that the We have based the annual burden and amendment will cause those foreign 146 In connection with other recent rulemakings, cost estimates of the adopted we have had discussions with several law firms to private issuers to have more burden amendments on the following estimates estimate an hourly rate of $400 as the cost to hours. We estimate that for each of the and assumptions: companies for the services of outside professionals companies affected by the amendment, • A foreign private issuer incurs or retained to assist in the preparation of these there will occur an increase of 2% disclosures. For Securities Act registration will incur 25% of the annual burden statements, we also consider additional reviews of (52.22 hours) in the number of burden required to produce each Form 20–F, the disclosure by underwriter’s counsel and hours required to prepare their Form Form F–1, Form F–3, or Form F–4; and underwriters. 20–F, for a total increase of 10,444 hours

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as a result of this amendment. We impacted by the amendment. The estimate that 1,799 total burden hours expect that 25% of those increased amendment will not cause a significant per response are currently required to burden hours (2,611 hours) will be change in the burden hours for those prepare a registration statement on Form incurred by foreign private issuers. We foreign private issuers because they F–1. We further assume that 75% of the further expect that 75% of these already prepare this information for the burden to produce a Form F–1 is carried increased burden hours (7,833 hours) exchanges on which they are listed. by outside professionals retained by will be incurred by outside firms, at an Our amendment to eliminate an foreign private issuers at an average cost average cost of $400 per hour, for a total instruction to Item 17 of Form 20–F, of $400 per hour, for a total cost of of $3,133,200 in increased costs to the which permits certain foreign private $22,667,400. respondents of the information issuers to omit segment data from their We estimate that currently collection as a result of this amendment. U.S. GAAP financial statements, we approximately 4 companies that file With respect to our amendment to estimate that approximately 5 registration statements on Form F–1 will require disclosure about a change in the companies that file Form 20–F will be be impacted by the amendment to issuer’s certifying accountant in annual currently impacted by the amendment. require foreign private issuers to reports and registration statements filed The amendment will cause those foreign provide disclosure about a change in on Form 20–F, we estimate that private issuers to have more burden their certifying accountant in their approximately 90 companies that file hours. We estimate that for each of the initial registration statements. The Form 20–F will be impacted by the companies affected by the amendment, amendment will cause those foreign amendment. The amendment will cause there will occur an increase of 2% private issuers to have more burden those foreign private issuers to have (52.22 hours) in the number of burden hours. We estimate that each company more burden hours. We estimate that for hours required to prepare their Form affected by the amendment will have a each of the companies affected by the 20–F, for a total increase of 261.1 hours. .75% increase (13.49 hours) in the amendment, there will occur an We expect that 25% of those increased number of burden hours required to increase of .75% (19.58 hours) in the burden hours (65.3 hours) will be prepare their registration statements on number of burden hours required to incurred by foreign private issuers. We Form F–1, for a total increase of 54 prepare their Form 20–F, for a total further expect that 75% of these hours. We expect that 25% of these increase of 1,762.2 hours. We expect increased burden hours (195.83 hours) increased burden hours (13.5 hours) that 25% of those increased burden will be incurred by outside firms, at an will be incurred by foreign private hours (440.55 hours) will be incurred by average cost of $400 per hour, for a total issuers. We further expect that 75% of foreign private issuers. We further of $78,332 in increased costs to the the increased burden hours (40.5 hours) expect that 75% of these increased respondents of the information will be incurred by outside firms, at an burden hours (1,321.65 hours) will be collection as a result of the amendment. average cost of $400 per hour, for a total incurred by outside firms, at an average Because we have decided not to adopt of $16,200 in increased costs to the cost of $400 per hour, for a total of the proposal to amend Form 20–F to respondents of the information $528,660 in increased costs to the require foreign private issuers to collection as a result of the amendment. respondents of the information provide certain financial information in collection as a result of the amendment. their annual reports on that Form about We estimate that none of the Our amendment to require disclosure a significant, completed acquisition that companies that file registration about ADR fees and payments on an is significant at the 50% or greater level, statements on Form F–1 will be annual basis, we estimate that we have reduced the estimated burdens impacted by the amendment to require approximately 442 companies that file and costs associated with preparing foreign private issuers that are required Form 20–F will be impacted by the Form 20–F. to provide a U.S. GAAP reconciliation amendment. The amendment will cause Thus, we estimate that the to do so pursuant to Item 18 of Form those foreign private issuers to have amendments to Form 20–F will increase 20–F. In our experience, the companies more burden hours. We estimate that for the annual burden borne by foreign that use Form F–1 are engaging in each of the companies affected by the private issuers in the preparation of capital raising transactions, so that all amendment, there will occur an Form 20–F from 614,891 hours to registrants have been providing increase of .25% (6.53 hours) in the 618,729.5 hours. We further estimate financial information according to Item number of burden hours required to that the amendments will increase the 18. The amendment will be a technical prepare their Form 20–F, for a total total annual burden associated with change to the Form without any increase of 2,886.26 hours. We expect Form 20–F preparation to 2,474,918 expected impact on the companies that 25% of those increased burden burden hours, which will increase the using that Form for collection of hours (721.57 hours) will be incurred by average number of burden hours per information purposes. foreign private issuers. We further response to 2627. We further estimate Thus, we estimate that the expect that 75% of these increased that the amendments will increase the amendments to Form F–1 will increase burden hours (2,164.71 hours) will be total annual costs attributed to the the annual burden incurred by foreign incurred by outside firms, at an average preparation of Form 20–F by outside private issuers in the preparation of cost of $400 per hour, for a total of firms to $742,475,400. Form F–1 from 18,890 hours to 18,904 $865,884 in increased costs to the hours. We further estimate that the respondents of the information 2. Form F–1 amendments will increase the total collection as a result of the amendment. We estimate that currently foreign annual burden associated with Form F– With respect to our amendment to private issuers file 42 registration 1 preparation to 75,614 burden hours, require annual disclosure about statements on Form F–1 each year. We which will increase the average number differences in a listed foreign private assume that 25% of the burden required of burden hours per response to 1800. issuer’s corporate practices and those to produce a Form F–1 is borne by We further estimate that the applicable to domestic companies under foreign private issuers, resulting in amendments will increase the total the relevant exchange’s listing rule, we 18,890 annual burden hours incurred by annual costs attributed to the estimate that approximately 783 foreign private issuers out of a total of preparation of Form F–1 by outside companies that file Form 20–F will be 75,560 annual burden hours. Thus, we firms to $22,683,600.

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3. Form F–3 hours required to prepare their require foreign private issuers to We estimate that currently foreign registration statements on Form F–3, for provide disclosure about a change in private issuers file 106 registration a total increase of 12.45 hours. We their certifying accountant in their statements on Form F–3 each year. We expect that 25% of these increased initial registration statements. The assume that 25% of the burden required burden hours (3.11 hours) will be amendment will cause those foreign to produce a Form F–3 is borne by incurred by foreign private issuers. We private issuers to have more burden foreign private issuers, resulting in further expect that 75% of the increased hours. We estimate that each company 4,399 annual burden hours incurred by burden hours (9.34 hours) will be affected by the amendment will have a foreign private issuers out of a total of incurred by outside firms, at an average .75% increase (10.81 hours) in the 17,596 annual burden hours. Thus, we cost of $400 per hour, for a total of number of burden hours required to estimate that 166 total burden hours per $3,736 in increased costs to the prepare their registration statements on response are currently required to respondents of the information Form F–1, for a total increase of 54 collection as a result of the amendment. hours. We expect that 25% of these prepare a registration statement on Form Thus, we estimate that the increased burden hours (13.5 hours) F–3. We further assume that 75% of the amendments to Form F–3 will increase will be incurred by foreign private burden to produce a Form F–3 is carried the annual burden incurred by foreign issuers. We further expect that 75% of by outside professionals retained by private issuers in the preparation of the increased burden hours (40.5 hours) foreign private issuers at an average cost Form F–3 from 4,399 hours to 4,418.71 will be incurred by outside firms, at an of $400 per hour, for a total cost of hours. We further estimate that the average cost of $400 per hour, for a total $5,278,800. amendments will increase the total of $16,200 in increased costs to the We estimate that currently annual burden associated with Form F– respondents of the information approximately 20 companies that file 3 preparation to 17,674.85 burden collection as a result of the amendment. registration statements on Form F–3 will hours, which will increase the average Thus, we estimate that the be impacted by the amendment to number of burden hours per response to amendments to Form F–4 will increase require foreign private issuers that are 167. We further estimate that the the annual burden incurred by foreign required to provide a U.S. GAAP amendments will increase the total private issuers in the preparation of reconciliation to do so pursuant to Item annual costs attributed to the Form F–4 from 24,497 hours to 24,511 18 of Form 20–F. The amendment will preparation of Form F–3 by outside hours. We further estimate that the cause those foreign private issuers to firms to $5,302,455. amendments will increase the total have more burden hours. We estimate annual burden associated with Form F– 4. Form F–4 that each company affected by the 4 preparation to 98,042 burden hours, amendment will have a 2% increase We estimate that currently foreign which will decrease the average number (3.32 hours) in the number of burden private issuers file 68 registration of burden hours per response to 1,442. hours required to prepare their statements on Form F–4 each year. We We further estimate that the registration statements on Form F–3, for assume that 25% of the burden required amendments will increase the total a total increase of 66.4 hours. We expect to produce a Form F–4 is borne annual costs attributed to the that 25% of these increased burden internally by foreign private issuers, preparation of Form F–4 by outside hours (16.6 hours) will be incurred by resulting in 24,497 annual burden hours firms to $29,412,600. foreign private issuers. We further incurred by foreign private issuers out expect that 75% of the increased burden of a total of 97,988 annual burden hours. 5. Other Amendments hours (49.8 hours) will be incurred by Thus, we estimate that 1,441 total The amendments to Securities Act outside firms, at an average cost of $400 burden hours per response are currently Rule 405 and Exchange Act Rule 3b–4 per hour, for a total of $19,920 in required to prepare a registration will revise the definition of ‘‘foreign increased costs to the respondents of the statement on Form F–4. We further private issuer’’ to permit foreign issuers information collection as a result of the assume that 75% of the burden to to test their status as ‘‘foreign private amendment. produce a Form F–4 is carried by issuers’’ on the last business day of their In response to comments received, we outside professionals retained by foreign second fiscal quarter, rather than have amended F–3 to require foreign private issuers at an average cost of $400 continuously, as is currently the case. private issuers that are repeat registrants per hour, for a total cost of $29,396,400. Our amendments will not change the to disclose a change in or disagreement We estimate that currently amount of information required to be with their certifying accountant in their approximately none of the companies included in Securities Act registration registration statements filed on Form that file registration statements on Form statements or Exchange Act reports. F–3. As proposed, this amendment F–4 will be impacted by the amendment Therefore, they will neither increase nor would have applied only to registration to require foreign private issuers that are decrease the amount of burden hours statements used in initial public required to provide a U.S. GAAP necessary to prepare documents under offerings, and would not have been reconciliation to do so pursuant to Item either of those Acts for the purposes of reflected in our collection of 18 of Form 20–F. In our experience, the the PRA. information estimates for Form F–3, companies that use Form F–4 have all In addition, we do not expect a since Form F–3 is not available for been providing financial information change in the number of foreign private initial public offerings. We estimate that according to Item 18 because of the issuers who will be required to comply currently approximately 10 companies types of transactions that are registered with Rule 13e–3, or the burden hours that file registration statements on Form on that Form, so the amendment will be required to prepare a Schedule 13E–3. F–3 will be impacted by this a technical change to the Form without With respect to domestic issuers, amendment. The amendment will cause any expected impact on the companies although we do not expect the number those foreign private issuers to have using it. of domestic issuers affected by the more burden hours. We estimate that We estimate that currently amendments to Rule 13e–3 to decrease, each company affected by the approximately 5 companies that file we also expect that the Rule amendment will have a .75% increase registration statements on Form F–4 will amendments will have a negligible (1.245 hours) in the number of burden be impacted by the amendment to effect on these issuers because the

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smaller reporting companies that will be requirements applicable to domestic immediately under the amendments. affected by the amendments could issuers under the Exchange Act, and to This accommodation could encourage voluntarily deregister and thus avoid modify their information and processing more foreign issuers to enter the U.S any requirement to comply with that systems to comply with the domestic markets and to make public offerings, Rule. reporting and registration regime. This and should benefit investors by includes the requirements to comply enhancing their ability to invest in V. Cost-Benefit Analysis with the more extensive executive foreign securities that have been We are adopting amendments to our compensation disclosure requirements registered with the Commission. rules and forms relating to foreign that apply to domestic issuers, as well 2. Expected Costs private issuers that are intended to as the proxy rules and Section 16 enhance the information that is reporting requirements under the Investors could incur costs from the available to investors, promote investor Exchange Act, which do not apply to amendments if foreign issuers that have protection and facilitate cross-border foreign private issuers. Because the been reporting under the domestic capital flows. amendments will provide foreign reporting regime immediately switch issuers with advance notice when their over to the foreign private issuer forms A. Annual Test for Foreign Private status changes, more foreign issuers may once they qualify as foreign private Issuer Status be encouraged to remain in the U.S. issuers. Because foreign private issuers 1. Expected Benefits markets, and investors should benefit have different Exchange Act reporting obligations than domestic issuers and The amendments to the definition of from the increased opportunities to invest in foreign securities in the United file on different forms, some investors ‘‘foreign private issuer’’ contained in may find it confusing if a foreign issuer Securities Act Rule 405 and Exchange States. The amendments should mitigate a that had been reporting under the Act Rule 3b–4 will permit reporting burden on foreign issuers by reducing domestic reporting regime switches foreign issuers to assess their eligibility the amount of time and the resources reporting regimes mid-year. In addition, to use the special forms and rules they expend to determine their status once a foreign issuer switches status available to foreign private issuers once pursuant to the four-factor test set forth from a domestic issuer to a foreign a year on the last business day of their in the definition of ‘‘foreign private private issuer, investors will no longer second fiscal quarter, rather than issuer.’’ In this respect, the amendments have the benefit of the disclosures that continuously, as is currently the case. will be most beneficial to reporting were once provided by the foreign This is the same date used to determine foreign private issuers that have close to issuer on the domestic forms. accelerated filer status under Exchange 50% of their outstanding voting Currently, when a foreign issuer no Act Rule 12b–2 and smaller reporting securities held of record by U.S. longer qualifies as a foreign private company status in Item 10(f)(2)(i) of residents, since they are most at risk of issuer, it must immediately file Regulation S–K. As a result, these no longer qualifying as foreign private quarterly reports on Form 10–Q and adopted amendments should simplify issuers. The current requirement that current reports on Form 8–K. It must compliance with the Commission’s foreign issuers continuously test their also comply with the Commission’s regulations by establishing one date that status can result in confusion for proxy rules and the Section 16 insider is used to ascertain an issuer’s status. investors if a foreign issuer needs to stock trading and short-swing profit Foreign issuers should benefit as a move between foreign and domestic recovery provisions. Under the result of this simplification of their reporting forms in the same fiscal year. amendments, when a foreign issuer compliance requirements, which could For example, investors may be confused determines that it no longer qualifies as make the U.S. markets more attractive to if a foreign issuer determines that it no a foreign issuer, for the six months them as a source of capital and thereby longer qualifies as a foreign private following the test date, the foreign enhance the competitiveness of the U.S. issuer, and then switches from the issuer will be permitted to continue markets compared to other markets. The foreign private issuer forms (Form 6–K relying on the rules applicable to foreign amendments are expected to reduce the and Form 20–F) to the domestic forms private issuers, such as the exemption cost for foreign issuers of monitoring (e.g., quarterly reports on Form 10–Q) in from the proxy rules and Section 16. whether they qualify as foreign private the same fiscal year. In the case of a The foreign issuer will also be allowed issuers, including the time spent by foreign issuer that loses its foreign to use the forms reserved for foreign management in tracking this private issuer status, the amendments private issuers, and to provide current information. If more foreign issuers are will benefit U.S. investors by reports on Form 6–K, rather than encouraged to remain in the U.S. eliminating the confusion that could Exchange Act reports on Forms 10–Q markets and to make public offerings, result if the foreign issuer switched and 8–K. During that period, investors investors should also benefit because forms in the middle of the year. will not have the benefit of the this will enhance their ability to invest However, the amendments may not be additional disclosures that the foreign in the securities of foreign issuers that as helpful in reducing investor issuer would otherwise be required to have been registered with the confusion with respect to foreign private provide. Commission, and that are thus subject to issuers that have been reporting under B. Amendments to Form 20–F the disclosure requirements and the domestic regime and that will now investor protections provided by the be permitted to switch immediately to The amendments will make several federal securities laws. the foreign private issuer reporting changes to annual reports filed on Form Once a foreign issuer determines that regime upon the determination of their 20–F. We are adopting amendments to it no longer qualifies as a foreign private eligibility to do so. accelerate the deadline for annual issuer, the amendments will provide the At the same time, foreign issuers that reports filed on Form 20–F by foreign issuer with at least six months’ advance previously did not qualify as foreign private issuers. We are also adopting notice that it must comply with the private issuers, but that determine that amendments to Form 20–F to require domestic issuer forms and rules. This they will qualify as foreign private certain additional disclosures in annual will provide these issuers with more issuers, will be able to use the foreign reports on that Form. The adopted time to comply with the reporting private issuer rules and forms amendments will require issuers to

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disclose any changes in and reports. Because of the Commission’s 20–F registration statements should disagreements with the registrant’s integrated disclosure system, in which assist investors in determining the fees certifying accountant in their Form 20– approximately the same information is related to their investments in ADRs, F annual reports, as well as in the provided in both the primary and including indirect costs that may be Securities Act registration statements secondary markets, the disclosure imposed on them if the depositary bank filed by registrants with the requirements contained in Form 20–F passes along the cost of its payments to Commission. The amendments will also are often more comprehensive than the foreign issuers to ADR holders. This require disclosure of the fees and other disclosures required by foreign should better enable investors to charges paid by ADR holders to securities regulators. For example, determine whether to invest in the depositaries, and any payments made by although many foreign regulators ADRs of foreign issuers. depositaries to the foreign issuers whose require audited financial statements and Several of the adopted amendments to securities underlie the ADRs. In a form of management’s report in annual Item 17 of Form 20–F may also help addition, we are adopting amendments reports, they do not require disclosure ensure that all foreign private issuers to Form 20–F to require disclosure in about executive compensation, provide the same level of financial the annual report about the significant description about the issuer’s business, information, thereby facilitating a differences in the corporate governance or a Management’s Discussion and readier comparison across all issuers. practices of listed foreign private issuers Analysis.147 These additional This could, as a consequence, increase compared to the corporate governance disclosures are required in the Form 20– the attractiveness of these companies to practices applicable to domestic F annual reports that foreign private investors. For example, the adopted companies under the relevant issuers file with the Commission. amendments will eliminate the exchange’s listing standards. Another Based on a sample of Form 20–F availability of the limited U.S. GAAP adopted amendment will eliminate an annual reports filed with the reconciliation option in Item 17 of Form instruction to Item 17 of Form 20–F that Commission in the past few years, we 20–F for annual reports, registration permits certain foreign private issuers to estimate that approximately one-third of statements on Form 20–F that do not omit segment data from the U.S. GAAP all such filers currently file Form 20–F involve a public offering, and Securities financial statements. annual reports with us within 120 days Act registration statements for certain In addition to these amendments, we after their fiscal year-end. The adopted non-capital raising transactions. are adopting amendments to eliminate amendment to accelerate the due date Currently, most foreign private issuers the availability of the limited U.S. for Form 20–F annual reports will thus that provide U.S. GAAP reconciliation GAAP reconciliation option that is affect a majority of the foreign private disclose financial information according contained in Item 17 of Form 20–F for issuers that file on Form 20–F. As a to Item 18 of Form 20–F. The adopted foreign private issuers that are only result of the accelerated deadline, amendment will require that all foreign listing a class of securities on a U.S. investors may be better able to compare private issuers provide this level of national securities exchange, or only the performance of foreign and domestic disclosure. Another adopted registering a class of equity securities issuers, since information about both amendment will eliminate the under Section 12(g) of the Exchange will be provided on a more instruction to Item 17 of Form 20–F that Act, and not conducting a public contemporaneous basis. permits certain foreign private issuers to offering. The amendments will apply The adopted amendments to require omit segment data from their U.S. GAAP not only to registration statements filed additional disclosure in Form 20–F financial statements. Although we on Form 20–F in the circumstances annual reports should help investors estimate that less than 10 foreign private described above, but also to annual better compare foreign and domestic issuers use this instruction, the reports filed on that Form. Related to issuers. Currently, domestic issuers instruction creates an anomaly whereby this adopted amendment, we are provide disclosure about changes in and an issuer is permitted to provide a adopting amendments to eliminate the disagreements with their certifying qualified U.S. GAAP audit report. Item 17 limited reconciliation option for accountant on a Form 8–K current 2. Expected Costs certain non-capital raising offerings, report. Listed domestic issuers are also such as offerings pursuant to dividend required to comply with the corporate Foreign private issuers could incur reinvestment plans, offerings upon the governance requirements of the U.S. costs from the adopted amendments to Form 20–F, and the related amendments conversion of securities, or offerings of exchange on which their securities are to the Securities Act registration investment grade securities. The listed, although foreign private issuers statements available to foreign private Securities Act registration statement whose securities are listed on the same issuers. In order to comply with the forms available to foreign private issuers exchange are exempt. The adopted adopted accelerated due dates, many (Form F–1, F–3 and F–4) are amended amendments will provide investors with foreign private issuers will likely have accordingly. more comparable information about to implement new systems for preparing foreign private issuers regarding 1. Expected Benefits information during the transition period possible audit opinion shopping and We anticipate that the adopted to the new rules. They could be required corporate governance practices. to prepare annual reports on a dual amendments to Form 20–F and the The adopted amendments to require track, one for the annual report filed related amendments to the Securities disclosure about ADR fees and with their home country regulator and Act registration statement forms payments made by depositaries to the the Form 20–F annual report. According available to foreign private issuers will foreign issuers whose securities to a sample of Form 20–F annual reports provide a significant benefit to U.S. underlie the ADRs will make this filed with us, approximately one-third investors by providing them with information more readily available to of all such filers file their Form 20–F enhanced disclosure that is more similar investors. The placement of this annual reports within 120 days of their to the disclosures provided by domestic disclosure in annual reports and Form issuers, as well as disclosure on an fiscal year-end. The cost of preparing accelerated basis that is more 147 In Form 20–F, this disclosure item is filings on an accelerated basis may comparable to the timeframe within contained in Item 5 (Operating and Financial therefore vary among issuers. In which domestic issuers file annual Review and Prospects). addition, because of the Commission’s

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integrated disclosure system, in which will not be required for issuers that are certain costs associated with the issuers provide approximately the same not listed on a U.S. exchange. requirement to obtain a letter from its disclosures to both the primary and The amendments to eliminate the former accountant stating whether it secondary markets, the disclosures availability of the limited U.S. GAAP agrees with the disclosure provided by required in Form 20–F are more reconciliation contained in Item 17 of the issuer in the document filed with substantial than the information Form 20–F could result in costs for the the Commission. required for annual reports in many affected foreign private issuers because Investors may incur costs to the extent they will now need to collect this foreign jurisdictions. The amendments that the amendments to Form 20–F information and to prepare additional could thus result in increased costs for discourage foreign private issuers from disclosure in their Form 20–F annual foreign private issuers. registering or maintaining their The amendments to provide reports. Some commenters expressed registration with the Commission. If additional disclosures in Form 20–F concern about the potential compliance foreign private issuers deregister or do may also impose additional costs on burdens associated with the amendment not register their securities under the foreign private issuers. With respect to to eliminate the availability of the Item Securities Act or the Exchange Act, the adopted disclosure regarding ADR 17 reconciliation, especially because there may be reduced opportunities for fees and payments made by they believe that other countries are investment by U.S. investors in the depositaries, we note that the gradually requiring footnote disclosures information about ADR fees is provided comparable in scope to U.S. GAAP and securities of foreign issuers. Although in the deposit agreement and form of Regulation S–X. However, based on our each of the adopted amendments will receipt that are attached as exhibits to review of Form 20–F annual report affect a different number of foreign the Form F–6 used to register the ADRs filings made with us for fiscal year 2006, private issuers, for purposes of the under the Securities Act, as well as in we estimate that most foreign private Paperwork Reduction Act, we estimate the Securities Act registration statement issuers already provide financial that these new disclosures will result in related to the offering of the securities information according to Item 18 of an increased paperwork burden of 25 underlying the ADRs. Because the Form 20–F. In addition, we believe that hours for all respondents and information is already required by the a reconciliation that includes the $4,606,800 for Form 20–F. Commission, albeit in filings that most footnote disclosures required by U.S. C. Exchange Act Rule 13e–3 retail investors are not familiar with, we GAAP and Regulation S–X can provide do not believe that the requirement to important additional information to 1. Expected Benefits include this information in the foreign investors. Some commenters also noted private issuer’s annual report on Form that foreign private issuers that provide We believe that the amendment to 20–F will involve significant the Item 17 reconciliation in their Exchange Act Rule 13e–3, which compliance costs. annual reports tend to be smaller pertains to going private transactions by In addition, the information about the companies, and that these companies reporting issuers or their affiliates, to payments made by depositaries to would face significant burdens on their reflect the recently adopted rules foreign private issuers will provide financial accounting and reporting pertaining to the ability of foreign important new information to investors system if they are required to provide private issuers to terminate their about incentives used by depositaries the additional Item 18 disclosures and Exchange Act registration and reporting that may encourage foreign private also comply with the accelerated due obligations will benefit investors. By issuers to sell their securities in ADR date for filing Form 20–F annual reports amending this Rule, the test for form and with a particular depositary at the same time. To reduce the determining when a domestic issuer bank. If foreign issuers are reluctant to potential burdens on these issuers, we undertakes a going private transaction disclose this information, they could be are providing a three-year transaction will also change. The amendment will discouraged from entering the U.S. period before the amendment takes help ensure that Rule 13e–3 covered the markets, or, if they already have effect, which will align the compliance types of transactions that were intended established ADR facilities in the United date for the adopted amendments with when the Commission first adopted the States, from maintaining their ADR the date on which many countries will Rule. Investors will benefit because facilities. This could reduce the be adopting IFRS. more foreign private issuers are opportunities for investors to invest in The amendment to require segment expected to be able to terminate their foreign securities in the United States. data in U.S. GAAP financial statements registration and reporting obligations Foreign private issuers could incur could also result in costs for the affected under the Exchange Act as a result of some costs related to the proposal to foreign private issuers because of the these recently adopted amendments. If include information about differences in need to collect this information and to more foreign private issuers decide to corporate governance practices for listed prepare additional disclosure in their conduct going private transactions to foreign private issuers. However, the Form 20–F annual reports. However, we terminate their registration or reporting U.S. exchanges already require that this note that approximately five foreign obligations, the amendment to Rule information be prepared. For foreign private issuers will be affected by the 13e–3 will require more foreign private private issuers that are listed on U.S. requirement to provide segment data. issuers to comply with that Rule and to exchanges, the amendment will not Foreign private issuers will also incur file a Schedule 13E–3, as required by involve the collection of new costs in connection with the that Rule. Similarly, modernizing Rule information or preparation of new amendment to require disclosure about 13e–3 to apply equally to domestic disclosure, but will simply require that any changes in and disagreements with issuers when a transaction identified in the information also be made available the registrant’s certifying accountant in the Rule results in the issuer becoming in the annual report, where many Form 20–F annual reports and in eligible to terminate or suspend its investors may expect to see it. As a Securities Act registration statements reporting obligations is consistent with result, we believe the compliance costs filed by registrants. In addition to the the policy purpose supporting the of this amendment will be relatively preparation costs of including this Rule’s initial adoption. Investors will small. Corporate governance information in the Form 20–F, the benefit from the additional disclosures information elicited by the amendment foreign private issuer could also incur that will be provided.

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2. Expected Costs rather than disclosure about each which permits certain foreign private Foreign private issuers and domestic payment, would avoid undermining issuers to omit segment data from their issuers may incur additional costs in competition among depositaries. We U.S. GAAP financial statements. connection with the adopted believe that information about the types These amendments will create a more amendment to Rule 13e–3(a)(3)(ii)(A) if of payments made by depositaries to level playing field between foreign Rule 13e–3 is more easily triggered issuers would be useful to investors private issuers and U.S. issuers because because of the reference to the new because it would enable them to they will require disclosures from termination of registration and reporting understand the purpose of the foreign private issuers that are currently requirements that apply to foreign payments, and that the disclosure of required of domestic issuers. Foreign private issuers. These costs will include, that information on an aggregate basis private issuers that file annual reports for example, the cost of preparing, filing would undercut the value of the on Form 20–F will also be required to and disseminating a Schedule 13E–3, as disclosure. Accordingly, we continue to provide these annual reports in a well as any required amendments to believe the new rules will contribute to timeframe that is closer to the annual that Schedule, with the Commission. efficiency, competition and capital report due dates imposed on domestic formation. issuers. As a result, the amendments VI. Consideration of Impact on the The purpose of the amendments to should put foreign private issuers and Economy, Burden on Competition, and Securities Act Rule 405 and Exchange domestic issuers in a more similar Promotion of Efficiency, Competition, Act Rule 3b–4, which will permit position with respect to their and Capital Formation foreign issuers to assess their eligibility compliance obligations under the When engaging in rulemaking that to use the special forms and rules Commission’s regulations, although the requires us to consider or determine available to foreign private issuers once incremental costs of complying with whether an action is necessary or a year, are expected to facilitate capital these amendments may also create a appropriate in the public interest, formation by foreign issuers in the U.S. disincentive for some foreign private Section 2(b) of the Securities Act 148 and capital markets. The adopted issuers to enter the U.S. capital markets. Section 3(f) of the Exchange Act 149 amendments should reduce regulatory The amendments may also facilitate require us to consider whether the compliance burdens for foreign private capital formation by foreign companies action will promote efficiency, issuers that rely on the adopted in the U.S. capital markets by enabling competition and capital formation. amendments because of the reduction in investors to obtain more information When adopting rules under the monitoring costs. Reduced compliance about these companies in a timeframe Exchange Act, Section 23(a)(2) of the burdens are expected to lower the cost that will make the information useful to Exchange Act 150 requires us to consider of raising capital in the Unites States for them and in a manner that will allow for the impact that any new rule will have those issuers. In addition, the greater comparability to domestic on competition. In addition, Section competitiveness of the U.S. markets may issuers. This could affect the allocation 23(a)(2) prohibits us from adopting any be enhanced because the reduced of capital between foreign private rule that will impose a burden on monitoring costs may make the markets issuers and domestic issuers. competition not necessary or more attractive to them. The reduction The amendments to Exchange Act appropriate in furtherance of the in compliance burdens may also Rule 13e–3, which reflect the newly purposes of the Exchange Act. promote efficiency because foreign adopted rules pertaining to the In the Proposing Release, we issuers will no longer need to termination and deregistration of the considered the proposed amendments continuously test their qualification as reporting obligations of foreign private in light of the standards set forth in the foreign private issuers. issuers, could require more foreign above referenced statutory sections. We The amendments to Form 20–F will private issuers and domestic issuers to solicited comment on whether, if accelerate the reporting deadline for comply with that Rule and to file a adopted, the proposed rule amendments annual reports on Form 20–F. The Schedule 13E–3 as a result if more would result in any anti-competitive amendments to Exchange Act Rules issuers decide to conduct going private effect or would promote efficiency, 13a–10 and 15d–10, which pertain to transactions to terminate their competition and capital formation. In transition reports filed on Form 20–F, registration and reporting obligations. addition, we encouraged commenters to and the amendments to Exchange Act This additional compliance obligation provide empirical data or other facts to Rule 15d–2, which pertain to special could create a disincentive for foreign support their views on any anti- financial reports filed by foreign private private issuers to enter the U.S. markets. competitive effects or any burdens on issuers, will conform the due dates for these reports with the new due date for VII. Regulatory Flexibility Act efficiency, competition or capital Certification formation that may result from adoption annual reports on Form 20–F. Several of of the proposed amendments. the adopted amendments to Form 20–F Under Section 605(b) of the We did not receive any empirical data will require more disclosure in the Regulatory Flexibility Act,151 the in this regard concerning the proposed annual reports filed by foreign private Commission certified that the proposed amendments. However, with respect to issuers. The disclosures required will amendments to Rule 405 of Regulation our amendment to require more include information about any changes C, Form F–1, Form F–3, and Form F–4 disclosure about payments made by in and disagreements with the under the Securities Act, and Form 20– depositaries in connection with ADR registrant’s certifying accountant, ADR F, Rule 3b–4, Rule 13a–10, Rule 13e–3 facilities, one commenter suggested that fees and payments made by depositaries and Rule 15d–10 under the Exchange disclosure of the aggregate amount of to the foreign issuers whose securities Act contained in this release, if adopted, incentive payments made by underlie the ADR, and information will not have a significant economic depositaries to foreign private issuers about corporate governance. In addition, impact on a substantial number of small whose securities underlie the ADRs, the amendments will eliminate the entities. It included this certification in availability of the limited U.S. GAAP Part VIII of the Proposing Release. While 148 15 U.S.C. 77b(b). reconciliation option contained in Item the Commission encouraged written 149 15 U.S.C. 78c(f). 17 of Form 20–F, and will eliminate an 150 15 U.S.C. 78w(a)(2). instruction to Item 17 of that Form, 151 5 U.S.C. 605(b).

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comments regarding this certification, 30 days prior to the issuer’s filing of an ‘‘investment grade securities,’’ as no commenters responded to this initial registration statement under defined below, or the only securities to request. either the Act or the Securities be registered are to be offered: Exchange Act of 1934. 1. upon the exercise of outstanding VIII. Statutory Authority and Text of (3) Once an issuer qualifies as a rights granted by the issuer of the Final Amendments foreign private issuer, it will securities to be offered, if such rights are We are adopting amendments to the immediately be able to use the forms granted on a pro rata basis to all existing rules and forms pursuant to the and rules designated for foreign private security holders of the class of securities authority set forth in Sections 6, 7, 10 issuers until it fails to qualify for this to which the rights attach and there is and 19 of the Securities Act, as status at the end of its most recently no standby underwriting in the United amended, and Sections 3, 12, 13, 15, 23 completed second fiscal quarter. An States or similar arrangement; or and 36 of the Exchange Act, as issuer’s determination that it fails to 2. pursuant to a dividend or interest amended. qualify as a foreign private issuer reinvestment plan; or List of Subjects in 17 CFR Parts 230, governs its eligibility to use the forms 3. upon the conversion of outstanding 239, 240 and 249 and rules designated for foreign private convertible securities or upon the issuers beginning on the first day of the exercise of outstanding transferable Reporting and recordkeeping fiscal year following the determination warrants issued by the issuer of the requirements, Securities. date. Once an issuer fails to qualify for securities to be offered, or by an affiliate Text of the Amendments foreign private issuer status, it will of such issuer. remain unqualified unless it meets the (d) For the registrant’s fiscal years ■ For the reasons set out in the requirements for foreign private issuer ending on or after December 15, 2009, preamble, the Commission is amending status as of the last business day of its information required by Item 16F of Title 17, Chapter II of the Code of second fiscal quarter. Form 20–F. Federal Regulations as follows: * * * * * * * * * * PART 230—GENERAL RULES AND PART 239—FORMS PRESCRIBED Item 4A. Material Changes. REGULATIONS, SECURITIES ACT OF UNDER THE SECURITIES ACT OF 1933 * * * * * 1933 Instruction. ■ 3. The authority citation for part 239 ■ 1. The authority citation for Part 230 For the registrant’s fiscal years ending continues to read in part as follows: continues to read in part as follows: before December 15, 2011, financial Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, statements or information required to be Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 77g, 77h, 77j, 77r, 77s, 77z–3, 77sss, 78c, 78d, furnished by this Item shall be 78o(d), 78u–5, 78w(a), 78ll, 78mm, 80a–2(a), 78j, 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), reconciled pursuant to either Item 17 or 80a–3, 80a–8, 80a–9, 80a–10, 80a–13, 80a– 78mm, 80a–8, 80a–24, 80a–28, 80a–29, 80a– Item 18 of Form 20–F, whichever is 24, 80a–26, 80a–29, 80a–30, and 80a–37, 30, and 80a–37, unless otherwise noted. applicable to the primary financial unless otherwise noted. * * * * * statements. For the registrant’s fiscal * * * * * years ending on or after December 15, ■ 2. Section 230.405 is amended by ■ 4. Form F–1 (referenced in § 239.31) 2011, financial statements or revising the definition of ‘‘foreign Part I is amended by: information required to be furnished by private issuer’’ to read as follows: ■ a. Revising paragraph (c) of Item 4; this Item shall be reconciled pursuant to § 230.405 Definition of terms. ■ b. Adding paragraph (d) to Item 4; and Item 18 of Form 20–F. ■ * * * * * c. Revising the Instruction to Item 4A. ■ 5. Form F–3 (referenced in § 239.33) is Foreign private issuer. (1) The term The revisions and addition read as amended by: foreign private issuer means any foreign follows: ■ a. Revising General Instruction I.B.2.; issuer other than a foreign government Note: The text of Form F–1 does not, and ■ b. Revising General Instruction I.B.3.; except an issuer meeting the following the amendments thereto will not, appear in ■ c. Revising General Instruction I.B.4.; conditions as of the last business day of the Code of Federal Regulations.] and its most recently completed second FORM F–1 ■ d. Revising the Instruction to Item 5. fiscal quarter: The revisions read as follows: (i) More than 50 percent of the REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Note: The text of Form F–3 does not, and outstanding voting securities of such the amendments thereto will not, appear in issuer are directly or indirectly owned * * * * * the Code of Federal Regulations. of record by residents of the United PART I States; and FORM F–3 * * * * * (ii) Any of the following: REGISTRATION STATEMENT UNDER (A) The majority of the executive Item 4. Information with Respect to the THE SECURITIES ACT OF 1933 officers or directors are United States Registrant and the Offering. citizens or residents; * * * * * Furnish the following information (B) More than 50 percent of the assets GENERAL INSTRUCTIONS of the issuer are located in the United with respect to the Registrant. States; or * * * * * I. * * * (C) The business of the issuer is (c) For the registrant’s fiscal years * * * * * administered principally in the United ending before December 15, 2011, States. information required by Item 17 of Form B. Transaction Requirements (2) In the case of a new registrant with 20–F may be furnished in lieu of the * * * * * the Commission, the determination of information specified by Item 18 thereof 2. Primary Offerings of Non- whether an issuer is a foreign private if the only securities being registered are convertible Investment Grade Securities. issuer shall be made as of a date within non-convertible securities that are Non-convertible securities to be offered

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for cash if such securities are by the issuer of the securities to be [Note: The text of Form F–4 does not, and ‘‘investment grade securities.’’ A non- offered, or by an affiliate of such issuer. the amendments thereto will not, appear in convertible security is an ‘‘investment In the case of securities registered the Code of Federal Regulations.] grade security’’ if, at the time of sale, at pursuant to this paragraph, the financial FORM F–4 least one nationally recognized statements included in this registration REGISTRATION STATEMENT UNDER statistical rating organization (as that statement may comply with Item 17 or THE SECURITIES ACT OF 1933 term is used in Rule 15c3–1(c)(2)(vi)(F) 18 of Form 20–F for the registrant’s under the Exchange Act (§ 240.15c3– fiscal years ending before December 15, * * * * * 1(c)(2)(vi)(F) of this chapter)) has rated 2011; and for the registrant’s fiscal years Item 11. Incorporation of Certain the security in one of its generic rating ending on or after December 15, 2011, Information by Reference categories that signifies investment the financial statements included in this grade; typically, the four highest rating registration statement must comply with * * * * * categories (within which there may be Item 18 of Form 20–F. The registration Instructions subcategories or gradations indicating of securities to be offered or sold in a 1. For the registrant’s fiscal years relative standing) signify investment standby underwriting in the United ending before December 15, 2011, all grade. For the registrant’s fiscal years States or similar arrangement is not annual reports or registration statements ending before December 15, 2011, in the permitted pursuant to this paragraph. incorporated by reference pursuant to case of securities registered pursuant to See paragraphs B.1., B.2., and B.3. of Item 11 of this Form shall contain this paragraph, the financial statements this Instruction. financial statements that comply with Item 18 of Form 20–F, except that included in this registration statement * * * * * may comply with Item 17 or 18 of Form financial statements of the registrants 20–F. For the registrant’s fiscal years Item 5. Material Changes may comply with Item 17 of Form 20–F if the only securities being ending on or after December 15, 2011, * * * * * registered are investment grade in the case of securities registered Instructions. pursuant to this paragraph, the financial 1. For a registrant’s fiscal years ending securities as defined in the General statements included in this registration before December 15, 2011, financial Instructions to Form F–3. For the statement must comply with Item 18 of statements or information required to be registrant’s fiscal years ending on or Form 20–F. furnished by this Item shall be after December 15, 2011, all annual 3. Transactions Involving Secondary reconciled pursuant to either Item 17 or reports or registration statements Offerings. Outstanding securities to be 18 of Form 20–F, whichever is incorporated by reference pursuant to offered for the account of any person applicable to the primary financial Item 11 of this Form shall contain other than the issuer, including statements. For a registrant’s fiscal years financial statements that comply with securities acquired by standby ending on or after December 15, 2011, Item 18 of Form 20–F. underwriters in connection with the call financial statements or information * * * * * or redemption by the issuer of warrants required to be furnished by this Item or a class of convertible securities. In Item 12. Information With Respect to F– shall be reconciled pursuant to Item 18 3 Registrants the case of such securities, the financial of Form 20–F. statements included in this registration 2. Material changes to be disclosed * * * * * statement may comply with Item 17 or pursuant to Item 5(a) include changes in (b) * * * 18 of Form 20–F for a registrant’s fiscal and disagreements with registrant’s (2) For the registrant’s fiscal years years ending before December 15, 2011; certifying accountant. For the ending before December 15, 2011, and for the registrant’s fiscal years registrant’s fiscal years ending on or include financial statements and ending on or after December 15, 2011, after December 15, 2009, disclosure information as required by Item 18 of the financial statements included in this pursuant to Item 16F of Form 20–F Form 20–F, except that financial registration statement must comply with should be provided as of the date of the statements of the registrant may comply Item 18 of Form 20–F. In addition, Form registration statement or prospectus. with Item 17 of Form 20–F if the only F–3 may be used by affiliates to register securities being registered are * * * * * securities for resale pursuant to the investment grade securities as defined ■ conditions specified in General 6. Form F–4 (referenced in § 239.34) is in the General Instructions to Form F– amended by: 3. For the registrant’s fiscal years ending Instruction C to Form S–8 (§ 239.16b of ■ this chapter). In the case of such a. Revising Instruction 1 to Item 11; on or after December 15, 2011, include ■ b. Revising Item 12(b)(2) introductory securities, the financial statements financial statements and information as text; required by Item 18 of Form 20–F. In included in this registration statement ■ c. In Item 12(b)(3)(vi)(B), removing the must comply with Item 18 of Form 20– addition, provide: period and adding in its place a (3) * * * F (§ 249.220f of this chapter). semicolon; 4. Rights Offerings, Dividend or ■ (vii) For the registrant’s fiscal years d. Revising Item 12(b)(3)(vii); ending before December 15, 2011, Interest Reinvestment Plans, and ■ e. In Item 12(b)(3)(viii), removing the financial statements required by Item 18 Conversions or Warrants. Securities to period and adding in its place ‘‘; and’’ of Form 20–F, except that financial be offered: (a) Upon the exercise of and adding Item 12(b)(3)(ix); outstanding rights granted by the issuer ■ f. Revising Instruction 1 to Item 13; statements of the registrant may comply of the securities to be offered, if such ■ g. Revising Item 14(h); with Item 17 of Form 20–F if the only rights are granted pro rata to all existing ■ h. In Item 14(i), removing the period securities being registered are security holders of the class of securities and adding in its place ‘‘; and’’; investment grade securities as defined to which the rights attach; or (b) ■ i. Adding Item 14(j); and in the General Instructions to Form F– pursuant to a dividend or interest ■ j. In Item 17(b)(5)(ii), removing the 3, and financial information required by reinvestment plan; or (c) upon the period and adding in its place ‘‘; and’’ Rule 3–05 and Article 11 of Regulation conversion of outstanding convertible and adding Item 17(b)(6). S–X with respect to transactions other securities or upon the exercise of The revisions and additions read as than that pursuant to which the outstanding transferable warrants issued follows: securities being registered are to be

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issued. (Schedules required under required by Regulation S–X shall be and rules designated for foreign private Regulation S–X shall be filed as filed as ‘‘Financial Statement issuers until it fails to qualify for this ‘‘Financial Statement Schedules’’ Schedules’’ pursuant to Item 21 of this status at the end of its most recently pursuant to Item 21 of this Form, but Form.); completed second fiscal quarter. An need not be provided with respect to the * * * * * issuer’s determination that it fails to company being acquired if information (j) For the registrant’s fiscal years qualify as a foreign private issuer is being furnished pursuant to Item ending on or after December 15, 2009, governs its eligibility to use the forms 17(a) of this Form.) For the registrant’s Item 16F of Form 20–F, change in and rules designated for foreign private fiscal years ending on or after December registrant’s certifying accountant. issuers beginning on the first day of the 15, 2011, financial statements required * * * * * fiscal year following the determination by Item 18 of Form 20–F, and financial date. Once an issuer fails to qualify for information required by Rule 3–05 and Item 17. Information With Respect to foreign private issuer status, it will Article 11 of Regulation S–X with Foreign Companies Other Than F–3 remain unqualified unless it meets the respect to transactions other than that Companies requirements for foreign private issuer pursuant to which the securities being * * * * * status as of the last business day of its registered are to be issued; (b) * * * second fiscal quarter. * * * * * (6) For the registrant’s fiscal years ■ 9. Section 240.13a–10 is amended by (ix) For the registrant’s fiscal years ending on or after December 15, 2009, revising paragraph (g)(3) to read as ending on or after December 15, 2009, Item 16F of Form 20–F, change in follows: Item 16F of Form 20–F, change in registrant’s certifying accountant. § 240.13a–10 Transition reports. registrant’s certifying accountant. * * * * * * * * * * Item 13. Incorporation of Certain PART 240—GENERAL RULES AND (g) * * * (3) The report for the transition period Information by Reference REGULATIONS, SECURITIES shall be filed on Form 20–F responding EXCHANGE ACT OF 1934 * * * * * to all items to which such issuer is Instructions required to respond when Form 20–F is 1. For the registrant’s fiscal years ■ 7. The authority citation for Part 240 continues to read in part as follows: used as an annual report. The financial ending before December 15, 2011, all statements for the transition period filed annual reports incorporated by Authority: 15 U.S.C. 77c, 77d, 77g, 77j, therewith shall be audited. The report reference pursuant to Item 13 of this 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, shall be filed within the following 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, Form shall contain financial statements period: that comply with Item 18 of Form 20– 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a– (i) Within six months after either the F, except that financial statements of the close of the transition period or the date registrants may comply with Item 17 of 20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, 80b–11, and 7201 et seq.; and 18 U.S.C. 1350, on which the issuer made the Form 20–F if the only securities being unless otherwise noted. determination to change the fiscal registered are investment grade * * * * * closing date, whichever is later, for new securities as defined in the General fiscal years ending before December 15, Instructions to Form F–3. For the ■ 8. Section 240.3b–4 is amended by: ■ a. Revising paragraph (c) introductory 2011; and registrant’s fiscal years ending on or (ii) Within four months after either after December 15, 2011, all annual text; ■ the close of the transition period or the reports incorporated by reference b. Adding paragraphs (d) and (e); and ■ c. Removing the authority citations date on which the issuer made the pursuant to Item 13 of this Form shall following the section. determination to change the fiscal contain financial statements that The revision and addition read as closing date, whichever is later, for new comply with Item 18 of Form 20–F. follows: fiscal years ending on or after December * * * * * 15, 2011. § 240.3b–4 Definition of ‘‘foreign * * * * * Item 14. Information With Respect to government,’’ ‘‘foreign issuer’’ and ‘‘foreign ■ Foreign Registrants Other Than F–3 private issuer’’. 10. Section 240.13e–3 is amended by revising paragraph (a)(3)(ii)(A) to read as Registrants * * * * * follows: * * * * * (c) The term foreign private issuer (h) For the registrant’s fiscal years means any foreign issuer other than a § 240.13e–3 Going private transactions by ending before December 15, 2011, foreign government except for an issuer certain issuers or their affiliates. financial statements required by Item 18 meeting the following conditions as of (a) * * * of Form 20–F, except that financial the last business day of its most recently (3) * * * statements of the registrants may completed second fiscal quarter: (ii) * * * comply with Item 17 of Form 20–F if the * * * * * (A) Causing any class of equity only securities being registered are (d) Notwithstanding paragraph (c) of securities of the issuer which is subject investment grade securities as defined this section, in the case of a new to section 12(g) or section 15(d) of the in the General Instructions to Form F– registrant with the Commission, the Act to become eligible for termination of 1; and for the registrant’s fiscal years determination of whether an issuer is a registration under Rule 12g–4 ending on or after December 15, 2011, foreign private issuer will be made as of (§ 240.12g–4) or Rule 12h–6 (§ 240.12h– financial statements required by Item 18 a date within 30 days prior to the 6), or causing the reporting obligations of Form 20–F. In addition, financial issuer’s filing of an initial registration with respect to such class to become information required by Rule 3–05 and statement under either the Act or the eligible for termination under Rule 12h– Article 11 of Regulation S–X with Securities Act of 1933. 6 (§ 240.12h–6); or suspension under respect to transactions other than that (e) Once an issuer qualifies as a Rule 12h–3 (§ 240.12h–3) or section pursuant to which the securities being foreign private issuer, it will 15(d); or registered are to be issued. (Schedules immediately be able to use the forms * * * * *

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■ 11. Section 240.15d–2 is amended by fiscal years ending on or after December information specified in Item 17 of this revising paragraph (a) and removing the 15, 2011. Form. We encourage you to provide the authority citations following the section * * * * * financial statements and related to read as follows: information specified in Item 18 of this PART 249—FORMS, SECURITIES Form in lieu of Item 17, but the Item 18 § 240.15d–2 Special financial report. EXCHANGE ACT OF 1934 statements and information are not (a) If the registration statement under required. In certain circumstances, the Securities Act of 1933 did not ■ 13. The authority citation for Part 249 Forms F–1, F–3 or F–4 for the contain certified financial statements for continues to read in part as follows: registration of securities under the the registrant’s last full fiscal year (or for Authority: 15 U.S.C. 78a et seq. and 7201 Securities Act require that you provide the life of the registrant if less than a full et seq.; and 18 U.S.C. 1350, unless otherwise the financial statements and related fiscal year) preceding the fiscal year in noted. information specified in Item 18 in your which the registration statement became * * * * * annual report on Form 20–F. Consult effective, the registrant shall, within 90 ■ 14. Form 20–F (referenced in those Securities Act forms for the days after the effective date of the specific requirements and consider the registration statement, file a special § 249.220f) is amended by: ■ a. Revising General Instructions A.(b) potential advantages of complying with report furnishing certified financial Item 18 instead of Item 17 of this Form. statements for such last full fiscal year and E.(c); ■ b. Revising Item 12.D introductory Note that Items 17 and 18 may require or other period, as the case may be, text, Item 12.D.3, and Instruction 1 to you to file financial statements of other meeting the requirements of the form Item 12; entities in certain circumstances. These appropriate for annual reports of the ■ c. Revising Item 12.D to revise the circumstances are described in registrant. If the registrant is a foreign phrase ‘‘American depositary receipts’’ Regulation S–X. private issuer as defined in § 230.405 of to read ‘‘American Depositary Receipts’’ (2) For the issuer’s fiscal years ending this chapter, then the special financial and adding Item 12.D.4; on or after December 15, 2011, an report shall be filed on the appropriate ■ d. Adding Item 16F and Instructions Exchange Act registration statement or form for annual reports of the registrant to Item 16F; annual report filed on this Form must and shall be filed within the following ■ e. Adding Item 16G and an Instruction contain the financial statements and period: to Item 16G; related information specified in Item 18 (1) By the later of 90 days after the ■ f. Revising Instruction 3 to Item 17; of this Form. Note that Items 17 and 18 date on which the registration statement and may require you to file the financial became effective, or six months ■ g. Revising Instruction 1 to Item 18. statements of other entities in certain following the end of the registrant’s full The additions and revisions read as circumstances. These circumstances are fiscal year, for fiscal years ending before follows: described in Regulation S–X. December 15, 2011; and (3) The financial statements must be (2) By the later of 90 days after the [Note: The text of Form 20–F does audited in accordance with U.S. date on which the registration statement not, and the amendments thereto will generally accepted auditing standards, became effective, or four months not, appear in the Code of Federal and the auditor must comply with the following the end of the registrant’s Regulations.] U.S. standards for auditor latest full fiscal year, for fiscal years FORM 20–F independence. If you have any ending on or after December 15, 2011. * * * * * questions about these requirements, * * * * * contact the Office of Chief Accountant GENERAL INSTRUCTIONS ■ 12. Section 240.15d–10 is amended by in the Division of Corporation Finance revising paragraph (g)(3) to read as A. Who May Use Form 20–F and When at (202) 551–3400. follows: It Must Be Filed. * * * * * § 240.15d–10 Transition reports. * * * * * Item 12. Description of Securities Other * * * * * (b) A foreign private issuer must file than Equity Securities. (g) * * * its annual report on this Form within (3) The report for the transition period the following period: * * * * * shall be filed on Form 20–F responding (1) Within six months after the end of D. American Depositary Shares. If you to all items to which such issuer is the fiscal year covered by the report for are registering securities represented by required to respond when Form 20–F is fiscal years ending before December 15, American Depositary Receipts in a used as an annual report. The financial 2011; and sponsored facility, provide the statements for the transition period filed (2) Within four months after the end following information. therewith shall be audited. The report of the fiscal year covered by the report * * * * * shall be filed within the following for fiscal years ending on or after 3. Describe all fees and charges that a period: December 15, 2011. holder of American Depositary Receipts (i) Within six months after either the * * * * * may have to pay, either directly or close of the transition period or the date indirectly. Indicate the type of service, on which the issuer made the E. Which Items to Respond to in the amount of the fees or charges and to determination to change the fiscal Registration Statements and Annual whom the fees or charges are paid. In closing date, whichever is later, for new Reports. particular, provide information about fiscal years ending before December 15, * * * * * any fees or charges in connection with 2011; and (c) Financial Statements. (a) depositing or substituting the (ii) Within four months after either (1) For an issuer’s fiscal years ending underlying shares; (b) receiving or the close of the transition period or the before December 15, 2011, an Exchange distributing dividends; (c) selling or date on which the issuer made the Act registration statement or annual exercising rights; (d) withdrawing an determination to change the fiscal report filed on this Form must contain underlying security; (e) transferring, closing date, whichever is later, for new the financial statements and related splitting or grouping receipts; and (f)

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general depositary services, particularly accountant on any matter of accounting (C)(1) The accountant’s having those charged on an annual basis. principles or practices, financial advised the registrant of the need to Provide information about the statement disclosure, or auditing scope expand significantly the scope of its depositary’s right, if any, to collect fees or procedure, which disagreement(s), if audit, or that information has come to and charges by offsetting them against not resolved to the satisfaction of the the accountant’s attention during the dividends received and deposited former accountant, would have caused time period covered by Item securities. it to make reference to the subject matter 16F(a)(1)(iv), that if further investigated 4. In addition, describe all fees and of the disagreement(s) in connection may: other direct and indirect payments with its report. The disagreements (i) Materially impact the fairness or made by the depositary to the foreign required to be reported in response to reliability of either: a previously issued issuer of the deposited securities. this Item include both those resolved to audit report or the underlying financial Instructions to Item 12: the former accountant’s satisfaction and statements; or the financial statements 1. You do not need to provide the those not resolved to the former issued or to be issued covering the fiscal information called for by this Item if accountant’s satisfaction. Disagreements period(s) subsequent to the date of the you are using the form as an annual contemplated by this Item are those that most recent financial statements report for your fiscal years ending before occur at the decision-making level, i.e., covered by an audit report (including December 15, 2009. For your fiscal years between personnel of the registrant information that may prevent it from ending on or after December 15, 2009, responsible for presentation of its rendering an unqualified audit report on except for Item 12.D.3. and Item 12.D.4., financial statements and personnel of those financial statements); or you do not need to provide the the accounting firm responsible for (ii) Cause it to be unwilling to rely on information called for by this Item if you rendering its report. Also: management’s representations or be are using this form as an annual report. (A) Describe each such disagreement; associated with the registrant’s financial * * * * * (B) State whether any audit or similar statements; and (2) Due to the accountant’s resignation committee of the board of directors, or Item 16F. Change in Registrant’s (due to audit scope limitations or the board of directors, discussed the Certifying Accountant. otherwise) or dismissal, or for any other subject matter of each of such (a)(1) If during the registrant’s two reason, the accountant did not so disagreements with the former expand the scope of its audit or conduct most recent fiscal years or any accountant; and subsequent interim period, an such further investigation; or (C) State whether the registrant has (D)(1) The accountant’s having independent accountant who was authorized the former accountant to previously engaged as the principal advised the registrant that information respond fully to the inquiries of the has come to the accountant’s attention accountant to audit the registrant’s successor accountant concerning the financial statements, or an independent that it has concluded materially impacts subject matter of each of such the fairness or reliability of either (i) a accountant who was previously engaged disagreements and, if not, describe the to audit a significant subsidiary and on previously issued audit report or the nature of any limitation thereon and the underlying financial statements, or (ii) whom the principal accountant reason therefor. expressed reliance in its report, has the financial statements issued or to be (v) Provide the information required resigned (or indicated it has declined to issued covering the fiscal period(s) by paragraph (a)(1)(iv) of this Item for stand for re-election after the subsequent to the date of the most each of the kinds of events (even though completion of the current audit) or was recent financial statements covered by the registrant and the former accountant dismissed, then the registrant shall: an audit report (including information did not express a difference of opinion (i) State whether the former that, unless resolved to the accountant’s regarding the event) listed in paragraphs accountant resigned, declined to stand satisfaction, would prevent it from (a)(1)(v) (A) through (D) of this Item, for re-election or was dismissed and the rendering an unqualified audit report on that occurred within the registrant’s two date thereof. those financial statements); and (ii) State whether the principal most recent fiscal years and any (2) Due to the accountant’s accountant’s report on the financial subsequent interim period preceding the resignation, dismissal or declination to statements for either of the past two former accountant’s resignation, stand for re-election, or for any other years contained an adverse opinion or a declination to stand for re-election, or reason, the issue has not been resolved disclaimer of opinion, or was qualified dismissal (‘‘reportable events’’). If the to the accountant’s satisfaction prior to or modified as to uncertainty, audit event led to a disagreement or difference its resignation, dismissal or declination scope, or accounting principles; and of opinion, then the event should be to stand for re-election. also describe the nature of each such reported as a disagreement under (2) If during the registrant’s two most adverse opinion, disclaimer of opinion, paragraph (a)(1)(iv) of this Item and recent fiscal years or any subsequent modification, or qualification. need not be repeated under this interim period, a new independent (iii) State whether the decision to paragraph. accountant has been engaged as either change accountants was recommended (A) The accountant’s having advised the principal accountant to audit the or approved by: the registrant that the internal controls registrant’s financial statements, or as an (A) Any audit or similar committee of necessary for the registrant to develop independent accountant to audit a the board of directors, if the issuer has reliable financial statements do not significant subsidiary and on whom the such a committee; or exist; principal accountant is expected to (B) The board of directors, if the (B) The accountant’s having advised express reliance in its report, then the issuer has no such committee. the registrant that information has come registrant shall identify the newly (iv) State whether during the to the accountant’s attention that has led engaged accountant and indicate the registrant’s two most recent fiscal years it to no longer be able to rely on date of such accountant’s engagement. and any subsequent interim period management’s representations, or that In addition, if during the registrant’s preceding such resignation, declination has made it unwilling to be associated two most recent fiscal years, and any or dismissal there were any with the financial statements prepared subsequent interim period prior to disagreements with the former by management; engaging that accountant, the registrant

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(or someone on its behalf) consulted the filing of the annual report or registration 3. The information required by newly engaged accountant regarding: statement and the former accountant’s paragraph (a) of this Item need not be (i) Either: The application of letter is unavailable at the time of the provided for a company being acquired accounting principles to a specified filing, then the registrant shall request by the registrant in a transaction being transaction, either completed or the former accountant to provide the registered on Form F–4 that is not proposed; or the type of audit opinion letter as promptly as possible so that the subject to the filing requirements of that might be rendered on the registrant can file the letter with the either Section 13(a) or 15(d) of the registrant’s financial statements, and Commission within ten business days Exchange Act. either a written report was provided to after the filing of the annual report or 4. The term ‘‘disagreements’’ as used the registrant or oral advice was registration statement. In either case, the in this Item shall be interpreted broadly provided that the new accountant former accountant may provide the to include any difference of opinion concluded was an important factor registrant with an interim letter concerning any matter of accounting considered by the registrant in reaching highlighting specific areas of concern principles or practices, financial a decision as to the accounting, auditing and indicating that a more detailed statement disclosure, or auditing scope or financial reporting issue; or letter will be forthcoming. If not filed or procedure which (if not resolved to (ii) Any matter that was either the with the annual report or registration the satisfaction of the former subject of a disagreement (as defined in statement containing the registrant’s accountant) would have caused it to Item 16F(a)(1)(iv) and the related disclosure under this Item 16F(a), then make reference to the subject matter of instructions to this Item) or a reportable the interim letter, if any, shall be filed the disagreement in connection with its event (as described in Item 16F(a)(1)(v), by the registrant by amendment report. It is not necessary for there to then the registrant shall: promptly. have been an argument to have had a (A) So state and identify the issues (b) If: (1) In connection with a change disagreement, merely a difference of that were the subjects of those in accountants subject to paragraph (a) opinion. For purposes of this Item, consultations; of this Item 16F, there was any however, the term ‘‘disagreements’’ does (B) Briefly describe the views of the disagreement of the type described in newly engaged accountant as expressed not include initial differences of paragraph (a)(1)(iv) or any reportable opinion based on incomplete facts or orally or in writing to the registrant on event as described in paragraph (a)(1)(v) each such issue and, if written views preliminary information that were later of this Item; resolved to the former accountant’s were received by the registrant, file (2) During the fiscal year in which the satisfaction by, and providing the them as an exhibit to the annual report change in accountants took place or registrant and the accountant do not requiring compliance with this Item during the subsequent fiscal year, there continue to have a difference of opinion 16F(a); have been any transactions or events upon, obtaining additional relevant facts (C) State whether the former similar to those which involved such or information. accountant was consulted by the disagreement or reportable event; and registrant regarding any such issues, and (3) Such transactions or events were 5. In determining whether any if so, provide a summary of the former material and were accounted for or disagreement or reportable event has accountant’s views; and disclosed in a manner different from occurred, an oral communication from (D) Request the newly engaged that which the former accountants the engagement partner or another accountant to review the disclosure apparently would have concluded was person responsible for rendering the required by this Item 16F(a) before it is required, the registrant shall state the accounting firm’s opinion (or his/her filed with the Commission and provide existence and nature of the designee) will generally suffice as the the new accountant the opportunity to disagreement or reportable event and accountant advising the registrant of a furnish the registrant with a letter also state the effect on the financial reportable event or as a statement of a addressed to the Commission containing statements if the method had been disagreement at the ‘‘decision-making any new information, clarification of the followed which the former accountants level’’ within the accounting firm and registrant’s expression of its views, or apparently would have concluded was require disclosure under this Item. the respects in which it does not agree required. These disclosures need not be 6. The term ‘‘board of directors’’ as with the statements made by the made if the method asserted by the used in this Item 16F has the meaning registrant in response to Item 16F(a). former accountants ceases to be set forth in § 240.10A–3(e)(2). The registrant shall file any such letter generally accepted because of Item 16G. Corporate Governance as an exhibit to the annual report authoritative standards or containing the disclosure required by interpretations subsequently issued. If the registrant’s securities are listed this Item. Instructions to Item 16F: on a national securities exchange, (3) The registrant shall provide the 1. Item 16F applies to all annual provide a concise summary of any former accountant with a copy of the reports and registration statements filed significant ways in which its corporate disclosures it is making in response to on Form 20–F for the issuer’s fiscal governance practices differ from those this Item 16F(a). The registrant shall years ending on or after December 15, followed by domestic companies under request the former accountant to furnish 2009. the listing standards of that exchange. the registrant with a letter addressed to 2. The disclosure called for by Instruction to Item 16G: the Commission stating whether it paragraph (a) of this Item need not be A registrant must provide the agrees with the statements made by the provided if it has been previously information required in Item 16G registrant in response to this Item 16F(a) reported, as that term is defined in Rule beginning with the annual report that its and, if not, stating the respects in which 12b–2 under the Exchange Act files for its first fiscal year ending on or it does not agree. The registrant shall (§ 240.12b–2 of this chapter). The after December 15, 2008. Item 16G only file the former accountant’s letter as an disclosure called for by paragraph (b) of applies to annual reports, and not to exhibit to the annual report or this Item must be furnished, where registration statements on Form 20–F. registration statement containing this required, notwithstanding any prior Registrants should provide a brief and disclosure. If the change in accountants disclosure about accountant changes or general discussion, rather than a occurred less than 30 days prior to the disagreements. detailed, item-by-item analysis.

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Item 17. Financial Statements financial statements will be considered instructions to Item 17 also apply to this * * * * * to comply with this Item, even if the Item, except Instruction 3 to Item 17, auditor’s report is qualified for which does not apply. For all fiscal Instructions: noncompliance with SFAS No. 131. years ending on or after December 15, * * * * * Such report and financial statements, 2009, all of the instructions to Item 17 3. For its fiscal years ending before however, must comply with all other also apply to this Item. December 15, 2009, if the registrant applicable requirements. * * * * * presents its financial statements * * * * * Dated: September 23, 2008. according to generally accepted accounting principles in the United Item 18. Financial Statements By the Commission. States except for SFAS No. 131 and if * * * * * Florence E. Harmon, it furnishes the information relating to Instruction to Item 18: Acting Secretary. categories of activity required by Items 1. For fiscal years ending before [FR Doc.E8–22760 Filed 10–3–08; 8:45 am] 4.B.1. and 4.B.2. of this Form, then such December 15, 2009, all of the BILLING CODE 8011–01–P

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Part III

Department of Housing and Urban Development Notice of Allocations, Application Procedures, Regulatory Waivers Granted to and Alternative Requirements for Emergency Assistance for Redevelopment of Abandoned and Foreclosed Homes Grantees Under the Housing and Economic Recovery Act, 2008; Notice

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DEPARTMENT OF HOUSING AND of abandoned and foreclosed homes and Except as described in this notice, URBAN DEVELOPMENT residential properties, and provides statutory and regulatory provisions under a rule of construction that, unless governing the CDBG program, including [Docket No. FR–5255–N–01] HERA states otherwise, the grants are to those at 24 CFR part 570 subpart I for Notice of Allocations, Application be considered Community Development states or, for CDBG entitlement Procedures, Regulatory Waivers Block Grant (CDBG) funds. The grant communities, including those at 24 CFR Granted to and Alternative program under Title III is commonly part 570 subparts A, C, D, J, K, and O, Requirements for Emergency referred to as the Neighborhood as appropriate, shall apply to the use of Assistance for Redevelopment of Stabilization Program (NSP). When these funds. (The State of Hawaii will be Abandoned and Foreclosed Homes referring to a provision of the allocated funds and will be subject to Grantees Under the Housing and appropriations statute itself, this notice part 570, subpart I, as modified by this Economic Recovery Act, 2008 will refer to HERA; when referring to notice.) Other sections of the notice will the grants, grantees, assisted activities, provide further details of the changes, AGENCY: Office of the Secretary, HUD. and implementation rules, this notice the majority of which deal with ACTION: Notice of allocation method, will use the term NSP. adjustments necessitated by HERA waivers granted, alternative HERA authorizes the Secretary to provisions, simplifying program rules to requirements applied, and statutory specify alternative requirements to any expedite administration, or relate to the program requirements. provision under Title I of the Housing ability of state grantees to act directly and Community Development Act of instead of solely through distribution to SUMMARY: This notice advises the public 1974, as amended, (the HCD Act) except local governments. In a separate of the allocation formula and allocation for requirements related to fair housing, guidance issuance, HUD also will amounts, the list of grantees, alternative nondiscrimination, labor standards, and provide a simplified ‘‘crosswalk’’ of requirements, and the waivers of the environment (including lead-based NSP and State CDBG requirements for regulations granted to grantees under paint), in accordance with the terms of state grantee administrators. Title III of Division B of the Housing section 2301 of HERA and for the sole and Economic Recovery Act of 2008, for purpose of expediting the use of grant Table of Contents the purpose of assisting in the funds. (Current and former disaster I. Allocations redevelopment of abandoned and recovery CDBG grantees should note A. Formula: Allocation foreclosed homes under the Emergency that this authority is substantially and B. Formula: Reallocation Assistance for Redevelopment of significantly more limited from that II. Alternative Requirements and Regulatory Abandoned and Foreclosed Homes generally provided with disaster Waivers heading, referred to throughout this recovery CDBG supplemental A. Definitions for purposes of the CDBG notice as the Neighborhood appropriations; therefore, waivers under Neighborhood Stabilization Program Stabilization Program (NSP). As the NSP are much more limited. For B. Pre-Grant Process described in the SUPPLEMENTARY example, HUD does not have authority 1. General INFORMATION section of this notice, HUD to provide alternative requirements for 2. Contents of an NSP Action Plan is authorized by statute to specify the National Affordable Housing Act Substantial Amendment alternative requirements and make (NAHA) or for the Uniform Relocation 3. Continued Affordability regulatory waivers for this purpose. This Assistance Real Property Acquisition 4. Citizen Participation Alternative notice also notes statutory issues Policies Act of 1970 (URA). Unless this Requirement 5. Joint Requests affecting program design and notice describes how HERA has superseded one of their provisions, 6. Effect of Existing Cooperation implementation. Agreements Governing Joint Programs these statutes will apply as in the CDBG DATES: Effective Date: September 29, and Urban Counties program. Such regulatory relief as HUD 2008. C. Reimbursement for Pre-Award Costs deemed necessary and was authorized D. Grant Conditions FOR FURTHER INFORMATION CONTACT: to provide under 24 CFR 5.110 and E. Income Eligibility Requirement Changes Stanley Gimont, Director, Office of 91.600 to permit implementation of the F. State Distribution to Entitlement Block Grant Assistance, Department of NSP is provided in this notice.) Communities and Indian Tribes Housing and Urban Development, 451 The Secretary finds that the following G. State’s Direct Action Seventh Street, SW., Room 7286, alternative requirements are necessary H. Eligibility and Allowable Costs Washington, DC 20410, telephone to expedite the use of these funds for I. Rehabilitation Standards number 202–708–3587. Persons with their required purposes. J. Sale of Homes hearing or speech impairments may Under the requirements of HERA, the K. Acquisition and Relocation access this number via TTY by calling Secretary must provide Congress written L. Note on Eminent Domain the Federal Information Relay Service at notice of its intent to exercise the M. Timeliness of Use and Expenditure of 800–877–8339. FAX inquiries may be authority to specify alternative NSP Funds sent to Mr. Gimont at 202–401–2044. requirements not less than 10 business N. Alternative Requirement for Program (Except for the ‘‘800’’ number, these days before such exercise of authority is Income (Revenue) Generated by telephone numbers are not toll-free.) to occur. Under the HUD Reform Act, Activities Assisted With Grant Funds O. Reporting SUPPLEMENTARY INFORMATION: regulatory waivers must be justified and published in the Federal Register. The P. Note That FHA Properties Are Eligible Authority To Provide Alternative Department is also using this notice to for NSP Acquisition and Redevelopment Q. Purchase Discount Requirements and Grant Regulatory provide grantees information about Waivers R. Removal of Annual Requirements other ways in which the requirements S. Affirmatively Furthering Fair Housing Title III of Division B of the Housing for this grant vary from regular CDBG T. Certifications and Economic Recovery Act, 2008 program rules. Compiling this U. Note on Statutory Limitation on (HERA) (Pub. L. 110–289, approved July information in a single notice creates a Distribution of Funds 30, 2008) appropriates $3.92 billion for helpful resource for grant administrators V. Information Collection Approval Note emergency assistance for redevelopment and HUD field staff. W. Duration of Funding

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I. Allocations some of the statutory items applicable to fit the requirements of HERA and the the grants. This background narrative is use of the DRGR. A. Formula: Allocation followed by the NSP requirement(s). The waivers, alternative requirements, HERA provides $3.92 billion of funds HUD’s resources for implementing and statutory changes apply only to the that are generally to be construed as HERA are limited and have other calls grant funds appropriated under HERA CDBG program funds for the upon them (for managing the regular and not to the use of regular formula communities and in the amounts listed CDBG and HOME Investment allocations of CDBG funds, even if they in Attachment A to this notice. Partnership programs (HOME) and the are used in conjunction with NSP funds Attachment A also includes a New York, Gulf Coast, and Midwest for a project. They provide expedited description of the allocation formula disaster recovery grants), and the program implementation and used to determine the grant amounts, as Department wants to target the use of its implement statutory requirements required by HERA. resources toward achieving NSP unique to this appropriation. B. Formula: Reallocation program performance, and preventing and eliminating fraud, waste, and A. Definitions for Purposes of the CDBG 1.a. To expedite the use of NSP funds, misuse of program funds. Because no Neighborhood Stabilization Program the Department is specifying alternative funds were available specifically for Background requirements to 42 U.S.C. 5306(c). If a tracking the use of NSP grants, HUD is unit of general local government applying an existing system, Certain terms are used in HERA that receiving an allocation of NSP funds unmodified. This all militates toward are not used in the regular CDBG under this notice (as designated in keeping standards simple or familiar, program, or the terms are used Attachment A) fails to submit a wherever possible. Therefore, differently in HERA and the HCD Act. substantially complete application for throughout this notice, where HUD had In the interest of speed and clarity of its grant allocation by December 1, 2008, any choice of a standard to use to administration, HUD is defining these or submits an application for less than measure compliance, HUD selected the terms in this notice for all grantees, the total allocation amount, HUD will simplest one to administer, giving a including states. For the same reason, simultaneously notify the jurisdiction of preference to a standard already in HUD is also defining eligible fund uses the cancellation of all or part of its common use. for all grantees, including states. States allocation amount and proceed to Each grantee eligible for an NSP grant may define other program terms under reallocate the funds to the state in already receives annual CDBG the authority of 24 CFR 570.481(a), and which the jurisdiction is located. allocations, has carried out needs will be given maximum feasible b. If a state or insular area receiving hearings, has a consolidated plan, an deference in accordance with 24 CFR an allocation of funds under this notice annual action plan, a citizen 570.480(c) in matters related to the fails to submit a substantially complete participation plan, a monitoring plan, administration of their NSP programs. application for its allocation by an analysis of impediments to fair Requirement December 1, 2008, or submits an housing choice, and has made CDBG application for less than the total certifications. The consolidated plan Abandoned. A home is abandoned allocation amount, HUD will already discusses housing needs related when mortgage or tax foreclosure simultaneously notify the state or to up to four major grant programs: proceedings have been initiated for that insular area of the reduction in its CDBG, HOME, Emergency Shelter property, no mortgage or tax payments allocation amount and proceed to Grants (ESG), and Housing have been made by the property owner reallocate the funds to the 10 highest- Opportunities for Persons With AIDS for at least 90 days, AND the property need states based on original rankings of (HOPWA). A grantee’s annual action has been vacant for at least 90 days. need. plan describes the activities budgeted Blighted structure. A structure is 2. If any jurisdiction, state, insular, or under each of those annual programs. blighted when it exhibits objectively local area fails to meet the requirement HUD is treating a grantee’s use of its determinable signs of deterioration to use its grant within 18 months of NSP grant to be a substantial sufficient to constitute a threat to receipt of the amounts, as required, amendment to its current approved human health, safety, and public HUD, on the first business day after that consolidated plan and annual action welfare. deadline, will simultaneously notify the plan. The NSP grant is a special CDBG CDBG funds. CDBG funds means, in grantee and restrict the amount of allocation to address the problem of addition to the definition at 24 CFR unused funds in the grantee’s line of abandoned and foreclosed homes. 570.3, grant funds distributed under this credit. HUD will allow the grantee 30 HERA establishes the need, targets the notice. days to submit information to HUD geographic areas, and limits the eligible Current market appraised value. The regarding any additional ‘‘use’’ of funds uses of NSP funds. Treating the NSP as current market appraised value means not already recorded in the Disaster a substantial amendment will expedite the value of a foreclosed upon home or Recovery Grant Reporting system the distribution of NSP funds, while residential property that is established (DRGR). Then HUD will proceed to ensuring citizen participation on the through an appraisal made in recapture the unused funds. HUD will specific use of the funds. HUD is conformity with the appraisal reallocate these unused funds in waiving the consolidated plan requirements of the URA at 49 CFR accordance with 42 U.S.C. 5306(c)(4). regulations on the certification of 24.103 and completed within 60 days consistency with the consolidated plan prior to an offer made for the property II. Alternative Requirements and to mean the NSP funds will be used to by a grantee, subrecipient, developer, or Regulatory Waivers meet the congressionally identified individual homebuyer. This section of the notice briefly needs of abandoned and foreclosed Foreclosed. A property ‘‘has been provides a justification for alternative homes in the targeted areas set forth in foreclosed upon’’ at the point that, requirements, where additional the grantee’s substantial amendment. In under state or local law, the mortgage or explanation is necessary, and describes addition, HUD is waiving the tax foreclosure is complete. HUD the necessary basis for each regulatory consolidated plan regulations to the generally will not consider a foreclosure waiver. This section also highlights extent necessary to adjust reporting to to be complete until after the title for the

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property has been transferred from the amendments for NSP funds, in grant. (Grantees choosing this option former homeowner under some type of accordance with this notice. (Insular should consider the Consolidated Plan foreclosure proceeding or transfer in areas should follow the requirements for and citizen participation implications of lieu of foreclosure, in accordance with entitlement communities.) this approach. The lead entity’s state or local law. To receive NSP funding, each CDBG substantial amendment will cover any Land bank. A land bank is a grantee listed in Attachment A must participating members. The citizen governmental or nongovernmental submit an action plan substantial participation process must include nonprofit entity established, at least in amendment to HUD in accordance with citizens of all jurisdictions participating part, to assemble, temporarily manage, this notice by December 1, 2008. in the joint NSP program, not just those and dispose of vacant land for the HUD encourages each grantee to carry of the lead entity.) purpose of stabilizing neighborhoods out its NSP activities in the context of Given the rule of construction in and encouraging re-use or a comprehensive plan for the HERA that NSP funds generally are redevelopment of urban property. For community’s vision of how it can make construed as CDBG program funds, the purposes of the NSP program, a land its neighborhoods not only more stable, subject to CDBG program requirements, bank will operate in a specific, defined but also more sustainable, competitive, HUD generally is treating NSP funds as geographic area. It will purchase and integrated into the overall a special allocation of Fiscal Year (FY) properties that have been abandoned or metropolitan fabric, including access to 2008 CDBG funding. This has important foreclosed upon and maintain, transit, affordable housing, employers, consequences for local governments assemble, facilitate redevelopment of, and services. presently participating in an existing market, and dispose of the land-banked HUD encourages each local urban county program, and for properties. If the land bank is a jurisdiction receiving an allocation to metropolitan cities that have joint governmental entity, it may also carefully consider its administrative agreements with urban counties. HUD maintain abandoned or foreclosed capacity to use the funds within the will consider any existing cooperation property that it does not own, provided statutory deadline versus the capacity of agreements between a local government it charges the owner of the property the the state administrator. HUD expects and an urban county governing FY2008 full cost of the service or places a lien that after such consideration, some CDBG funding (for purposes of either an on the property for the full cost of the jurisdictions may choose to apply for urban county or a joint program) to service. less than the full amount, which will automatically cover NSP funding as Revenue for the purposes of section allow the balance of their grants to pass well. These cooperation agreements will 2301(d)(4). Revenue has the same to the NSP administrator at the state continue to apply to the use of NSP meaning as program income, as defined level. funds for the duration of the NSP grant, Another way jurisdictions may at 24 CFR 570.500(a) with the just as cooperation agreements covering cooperate to carry out their grant modifications in this notice. regular CDBG Entitlement program programs is through a joint request to Subrecipient. Subrecipient shall have funds continue to apply to any use of HUD. HUD is providing regulatory the same meaning as at the first the funds appropriated during the 3- waivers and alternative requirements to sentence of 24 CFR 570.500(c). This year period covered by the agreements. allow joint requests among entitlement includes any nonprofit organization For example, a local government communities and to allow joint requests (including a unit of general local presently has a cooperation agreement between an entitlement community and government) that a state awards funds covering a joint program or participation a state. Any two or more contiguous in an urban county for federal FYs 2007, to. entitlement communities (metropolitan Use for the purposes of section 2008 and 2009. The local government cities or urban counties) that are in the 2301(c)(1). Funds are used when they may choose to discontinue its same metropolitan area and that are participation with the county at the end are obligated by a state, unit of general eligible to receive an NSP grant may local government, or any subrecipient of the applicable qualification period for instead make a joint request to HUD to purposes of regular CDBG entitlement thereof, for a specific NSP activity; for implement a joint NSP program. A example, for acquisition of a specific funding. However, the county will still jurisdiction need not have a joint be responsible for any NSP projects property. Funds are obligated for an agreement with an urban county under activity when orders are placed, funded in that community, and for any the regular CDBG entitlement program NSP funding the local government contracts are awarded, services are to request a joint program for NSP received, and similar transactions have receives from the county, until those funding. Similarly, any entitlement funds are expended and the funded occurred that require payment by the community eligible to receive an NSP state, unit of general local government, activities are completed. grant may instead make a request for a A third method of cooperating is also or subrecipient during the same or a joint NSP program with its state. An available. A jurisdiction may choose to future period. Note that funds are not NSP joint request under a cooperation apply for its entire grant, and then enter obligated for an activity when agreement results in a single combined into a subrecipient agreement with subawards (e.g., grants to subrecipients grant and a single action plan another jurisdiction or nonprofit entity or to units of local government) are substantial amendment. Potential to administer the grant. In this manner, made. requestors should contact HUD as soon for example, all of the grantees B. Pre-Grant Process as possible (as far as possible in advance operating in a single metropolitan area of publishing a proposed NSP could designate the same land-bank Background substantial amendment) for technical entity (or the state housing finance With this notice, HUD is establishing guidance. The requestors will specify agency) as a subrecipient for some or all the NSP allocation formula, including which jurisdiction will receive the of their NSP activities. reallocation provisions, and announcing funds and administer the combined Each grantee will have until the distribution of funds. CDBG grantees grant on behalf of the requestors; in the December 1, 2008, to complete and receiving NSP allocations may case of a joint request between a local submit a substantial amendment to its immediately begin to prepare and government jurisdiction and a state, the annual action plan. A grantee that submit action plan substantial state will administer the combined wishes to initially submit its action plan

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amendment to HUD electronically in the CDBG funds are not used in entitlement Annual Action Plan required for the DRGR system rather than via paper may areas, State CDBG staffs may not be CDBG program under part 91 are: do so by contacting its local field office aware of limited English proficient a. General information about needs, for the DRGR submission directions. (LEP) speaking populations in those distribution, use of funds, and Paper submissions to HUD also will be metropolitan jurisdictions. definitions: allowed, although each grantee must set HUD will review each grantee i. Summary needs data identifying the up its action plan in DRGR prior to the submission for completeness and geographic areas of greatest need in the deadline for the first required consistency with the requirements of grantee’s jurisdiction. (A state must performance report after receiving a this notice and will disapprove include the needs of the entire state and grant. incomplete and inconsistent action plan not just the areas not receiving an NSP HUD is using DRGR for the NSP amendments. HUD will allow revision allocation. To include the needs of an because no other application and and resubmission of a disapproved entitlement community, the state may reporting system was sufficiently action plan in accordance with 24 CFR either incorporate an entitlement flexible to deal with the alternative 91.500 so long as any such resubmission jurisdiction’s consolidated plan and requirements. The emergency nature of is received by HUD 45 days or less NSP needs by reference and hyperlink this legislation and corresponding following the date of first disapproval on the Internet, or state the needs for statutory time frames do not give HUD and in no case later than the close of that jurisdiction in the state’s own plan); sufficient time to develop a new system business February 13, 2009. ii. A narrative describing how the distribution and uses of the grantee’s or modify an existing system to In combination, the notice alternative NSP funds will meet the requirements perfectly fit NSP. requirements provide the following of Section 2301(c)(2) of HERA that HUD encourages grantees, during expedited steps for NSP grants: funds be distributed to the areas of development of their action plan • Proposed action plan amendment greatest need, including those with the amendments, to contact HUD field published via the usual methods and on offices for guidance in complying with greatest percentage of home the Internet for no less than 15 calendar these requirements, or if they have any foreclosures, with the highest days of public comment; questions regarding meeting grant percentage of homes financed by a • Final action plan amendment requirements. subprime mortgage related loan, and Normally, in the CDBG program, a posted on the Internet and submitted to identified by the grantee as likely to face grantee takes at least 30 days soliciting HUD by December 1, 2008 (grant a significant rise in the rate of home comment from its citizens before it application includes Standard Form 424 foreclosures. The grantee’s narrative (SF–424) and certifications); submits an annual action plan to HUD, • must address the three need categories which then has 45 days to accept or HUD expedites review, in the NSP statute, but the grantee may • reject the plan. To expedite the process HUD accepts the plan and prepares also consider other need categories; and to ensure that the NSP grants are a cover letter, grant agreement, and iii. For the purposes of the NSP, the awarded in a timely manner, while grant conditions; narratives will include: • preserving reasonable citizen Grant agreement signed by HUD (A) A definition of ‘‘blighted participation, HUD is waiving the and immediately transmitted to the structure’’ in the context of state or local requirement that the grantee follow its grantee; law; citizen participation plan for this • Grantee signs and returns the grant (B) A definition of ‘‘affordable rents;’’ substantial amendment. HUD is agreements; (C) A description of how the grantee shortening the minimum time for • HUD establishes the line of credit will ensure continued affordability for citizen comments and requiring the and the grantee requests and receives NSP-assisted housing; and substantial amendment materials to be voice response system (VRS) access; (D) A description of housing posted on the grantee’s official website • After completing the environmental rehabilitation standards that will apply as the materials are developed, review(s) pursuant to 24 CFR part 58 to NSP-assisted activities. published, and submitted to HUD. and, as applicable, receiving from HUD b. Information by activity describing Each grantee must use its NSP funds or the state an approved Request for how the grantee will use the funds, within 18 months of receipt. A grantee Release of Funds and certification, the identifying: i. The eligible use of funds under will be deemed by HUD to have grantee may draw-down funds from the line of credit. NSP; received its NSP grant at the time HUD ii. The eligible CDBG activity or The action plan substantial signs its NSP grant agreement (or activities; amendment thereof, in the case of a amendment and citizen participation iii. The areas of greatest need state that later receives reallocated grant alternative requirement will permit an addressed by the activity or activities; funds). expedited grant-making process, but one iv. The expected benefit to income- Grantees are cautioned that, despite that still provides for public notice, qualified persons or households or the expedited application and plan appraisal, examination, and comment areas; process, they are still responsible for on the activities proposed for the use of v. Appropriate performance measures ensuring that all citizens have equal NSP grant funds. for the activity (e.g., units of housing to access to information about the Requirement be acquired, rehabilitated, or programs. Among other things, this demolished for the income levels means that each grantee must ensure 1. General note. Except as described represented in DRGR, which are that program information is available in in this notice, statutory and regulatory currently 50 percent of area median the appropriate languages for the provisions governing the CDBG program income and below, 51 to 80 percent, and geographic area served by the for states and entitlement communities, 81 to 120 percent); jurisdiction. This will be a particular as applicable, shall apply to the use of vi. Amount of funds budgeted for the issue for those states that this notice is these funds. activity; allowing to make grants throughout the 2. Contents of an NSP Action Plan vii. The name and location of the state, including into regular CDBG substantial amendment. The elements in entity that will carry out the activity; entitlement areas. Because regular State the NSP substantial amendment to the and

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viii. The expected start and end dates a mortgage loan from a lender who funds allocated for that grantee. HUD is of the activity. agrees to comply with the bank providing alternative requirements to 42 c. A Description of the general terms regulators’ guidance for non-traditional U.S.C. 5304(a)(2) and waiving 91.105(k) under which assistance will be mortgages (see, Statement on Subprime and 91.115(i) to the extent necessary to provided, including: Mortgage Lending issued by the Office allow the grantee to provide no fewer i. If the activity includes acquisition of the Comptroller of the Currency, than 15 calendar days for citizen of real property, the discount required Board of Governors of the Federal comment (rather than 30 days) for its for acquisition of foreclosed-upon Reserve System, Federal Deposit initial NSP submission, and to require properties; Insurance Corporation, Department of that, at the time of submission to HUD, ii. Range of interest rates (if any); the Treasury, and National Credit Union each grantee post its approved action iii. Duration or term of assistance; Administration, available at http:// plan amendment and any subsequent iv. Tenure of beneficiaries (e.g., rental www.fdic.gov/regulations/laws/rules/ NSP amendments on its official website or homeownership); and 5000–5160.html). Grantees must design along with a summary of citizen v. If the activity produces housing, NSP programs to comply with this comments received within the 15-day how the design of the activity will requirement and must document comment period. After HUD processes ensure continued affordability; and compliance in the records, for each and approves the plan amendment and vi. If the funds used for the activity homebuyer. Grantees are cautioned both HUD and the grantee have signed are to count toward the requirement at against providing or permitting the grant agreement, HUD will establish section 2301(f)(3)(A)(ii) to provide homebuyers to obtain subprime the grantee’s line of credit in the amount benefit to low-income persons (earning mortgages for whom such mortgages are of funds included in the Action Plan 50 percent or less of area median inappropriate, including homebuyers amendment, up to the allocation income). who qualify for traditional mortgage amount. d. Information on how to contact loans. 5. Joint requests. To expedite the use grantee program administrators, so that c. If NSP funds assist a property that of funds, HUD is providing an citizens and other interested parties was previously assisted with HOME alternative requirement to 42 U.S.C. know who to contact for additional funds, but on which the affordability 5304(i) and is waiving 24 CFR 570.308 information. restrictions were terminated through to the extent necessary to allow for 3. Continued affordability. Grantees foreclosure or transfer in lieu of additional joint programs described shall ensure, to the maximum extent foreclosure pursuant to 24 CFR part 92, below. practicable and for the longest feasible the grantee must revive the HOME a. Entitlement Community Joint term, that the sale, rental, or affordability restrictions for the greater Agreements. Two or more contiguous redevelopment of abandoned and of the remaining period of HOME entitlement communities (metropolitan foreclosed-upon homes and residential affordability or the continuing cities or urban counties) that are eligible properties under this section remain affordability requirements of this notice. to receive a NSP allocation and are affordable to individuals or families 4. Citizen participation alternative located in the same metropolitan area whose incomes do not exceed 120 requirement. HUD is providing an may enter into joint agreements. All percent of area median income or, for alternative requirement to 42 U.S.C. members to the joint agreement must be units originally assisted with funds 5304(a)(2) and (3), to expedite eligible to receive NSP funds, and one under the requirements of section distribution of grant funds and to unit of general local government must 2301(f)(3)(A)(ii), remain affordable to provide for expedited citizen be designated as the lead entity. The individuals and families whose incomes participation for the NSP substantial lead entity must execute the NSP grant do not exceed 50 percent of area median amendment. Provisions of 24 CFR agreement with HUD. Consistent with income. 570.302 and 570.486 and those of 24 24 CFR 570.308, the lead entity must a. In its NSP action plan substantial CFR 91.105(k) and 91.115(i), with assume responsibility for administering amendment, a grantee will define respect to following the citizen the NSP grant on behalf of all members, ‘‘affordable rents’’ and the continued participation plan, are waived to the in compliance with applicable program affordability standards and enforcement extent necessary to allow requirements. The substantial mechanisms that it will apply for each implementation of the requirements amendment to the lead entity’s action (or all) of its NSP activities. HUD will below. plan will include all participating consider any grantee adopting the a. To receive its grant allocation, a entitlement communities. HOME program standards at 24 CFR grantee must submit to HUD for b. Joint agreements with a state. Any 92.252(a), (c), (e), and (f), and 92.254 to approval an NSP application by entitlement community that is eligible be in minimal compliance with this December 1, 2008. This submission will to receive an NSP allocation may enter standard and expects any other include a signed standard federal form into a joint agreement with its state. The standards proposed and applied by a SF–424, signed certifications, and a state shall be the lead entity and must grantee to be enforceable and longer in substantial action plan amendment assume responsibility for administering duration. (Note that HERA’s continued meeting the requirements of paragraph b the NSP grant on behalf of the affordability standard is longer than that below. (24 CFR 91.505 is waived to the entitlement community, in compliance required of subrecipients and extent necessary to require submission with applicable program requirements. participating units of general local of the substantial amendment to HUD The substantial amendment to the government under 24 CFR 570.503 and for approval in accordance with this state’s action plan will include any 570.501(b).) notice.) participating entitlement community. b. The grantee must require each NSP- b. Each grantee must prepare and 6. Effect of existing cooperation assisted homebuyer to receive and submit its annual Action Plan agreements governing joint programs complete at least 8 hours of homebuyer amendment to HUD in accordance with and urban counties. Any cooperation counseling from a HUD-approved the consolidated plan procedures for a agreement between a unit of general housing counseling agency before substantial amendment under the local government and a county, obtaining a mortgage loan. The grantee annual CDBG program as modified by concerning either a joint program or must ensure that the homebuyer obtains this notice or HUD will reallocate the participation in an urban county under

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24 CFR 570.307 or 570.308, and D. Grant Conditions or below 120 percent of area median governing CDBG funds appropriated for income (LMMA); For NSP grantees that HUD • federal FY 2008, will be considered to determines are high risk in accordance Creates or retains jobs for persons incorporate and apply to NSP funding. with 24 CFR 85.12(a), HUD will apply whose household incomes are at or Any such cooperation agreements will additional grant conditions in below 120 percent of median income continue to apply to the use of NSP (LMMJ); or accordance with 24 CFR 85.12(b). • funds until the NSP funds are expended Serves a limited clientele whose and the NSP grant is closed out. E. Income Eligibility Requirement incomes are at or below 120 percent of Grantees should note that certain Changes area median income (LMMC). HUD will use the parenthetical terms provisions in existing cooperation Background above to refer to NSP national objectives agreements that govern FY2008 CDBG The NSP program includes two low- in program implementation, to avoid funding may be inconsistent with parts and moderate-income requirements at confusion with the regular HCD Act of HERA and this notice. For instance, section 2301(f)(3)(A) that supersede definitions. set minimum and/or maximum existing CDBG income qualification Land banks are not allowed in the allocation amounts may conflict with requirements. Under the heading ‘‘Low regular CDBG program because of the priority distributions to areas of greatest and Moderate Income Requirement,’’ very high risk that the delay between need identified in the grantee’s action HERA states that: ‘‘All of the funds acquiring property and meeting a plan substantial amendment. appropriated or otherwise made national objective can be excessively Conforming amendments should be available under this section shall be long, attenuating the intended CDBG made to existing cooperation used with respect to individuals and program benefits by delaying benefit far agreements, as necessary, to comply families whose income does not exceed beyond the annual or even the 5-year with HERA and this notice. 120 percent of area median income.’’ consolidated plan cycles. In the regular This provision does two main things. CDBG program (and in the NSP other C. Reimbursement for Pre-Award Costs First, for the purposes of the NSP, it than in an eligible land-bank use), a Background effectively supersedes the overall property acquisition activity is benefit provisions of the HCD Act and dependent on the national objective met NSP allocatees will need to move the CDBG regulations, which allow up by the subsequent reuse of the property forward rapidly to prepare the NSP to 30 percent of a grant to be used for in order to demonstrate program substantial amendment and to activities that meet a national objective compliance. Given this, the HERA undertake other administrative actions, other than the low- and moderate- direction that assistance to land banks is including environmental reviews, as income one. Thus, NSP allows the use an eligible use of NSP funds requires an soon as allocations are known. of only the low- and moderate-income alternative requirement and policy Therefore, HUD is granting permission national objective. Activities may not clarification. to states and entitlement jurisdictions qualify under NSP using the ‘‘prevent or For grantees choosing to assist land receiving a direct allocation of NSP eliminate slums and blight’’ or ‘‘address banks or demolition of structures with funds (see Attachment A) to incur pre- urgent community development needs’’ NSP funds, the change to the income award costs as if each was a new grantee objectives. qualification level for low-, moderate-, preparing to receive its first allocation of Second, this provision also redefines and middle-income areas will likely CDBG funds. and supersedes the definition of ‘‘low- include most of the neighborhoods and moderate-income,’’ effectively where property stabilization is required. Requirement allowing households whose incomes If an assisted land bank is not merely exceed 80 percent of area median acquiring properties, but is also carrying 24 CFR 570.200(h) is waived to the income but do not exceed 120 percent out other activities intended to arrest extent necessary to grant permission to of area median income to qualify as if neighborhood decline, such as entitlement jurisdictions receiving a their incomes did not exceed the maintenance, demolition, and direct NSP allocation under this notice published low- and moderate-income facilitating redevelopment of the to incur pre-award costs as if each was levels of the regular CDBG program. To properties, HUD will, for NSP-assisted a new grantee preparing to receive its prevent confusion, HUD will refer to activities only, accept that the first allocation of CDBG funds. this new income group as ‘‘middle acquisition and management activities Similarly, in accordance with OMB income,’’ and keep the regular CDBG of the land bank may provide sufficient Circular A–87, Attachment B, paragraph definitions of ‘‘low-income’’ and benefit to an area generally (as described 31, HUD is allowing states to incur pre- ‘‘moderate income’’ in use. Further, in 24 CFR 570.208(a)(1) and award costs as if each was a new grantee HUD will characterize aggregated 570.483(b)(1)) to meet a national preparing to receive its first allocation of households whose incomes do not objective (LMMA) prior to final CDBG funds. As a new grantee, an NSP exceed 120 percent of median income as disposition of the banked property. allocatee will be allowed to incur costs ‘‘low-, moderate-, and middle-income HUD notes that the grantee must necessary to develop the NSP households,’’ abbreviated as LMMH. For determine the actual service area substantial action plan amendment and the purposes of NSP CDBG only, an benefiting from a land bank’s activities, undertake other administrative actions activity may meet the HERA low- and in accordance with the regulations. necessary to receive its first grant, prior moderate-income national objective if However, HUD does not believe the to the costs being included in the final the assisted activity: benefits of just holding property are plan, provided that the other conditions • Provides or improves permanent sufficient to stabilize most of 24 CFR 570.200(h) are met. (For units residential structures that will be neighborhoods or that this is the best of general local government (including occupied by a household whose income use of limited NSP funds absent a re-use entitlements not receiving a direct NSP is at or below 120 percent of area plan. Therefore, HUD is requiring that a allocation under this notice) applying to median income (abbreviated as LMMH); land bank may not hold a property for the state, 24 CFR 570.489(b) applies • Serves an area in which at least 51 more than 10 years without obligating unmodified.) percent of the residents have incomes at the property for a specific, eligible

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redevelopment of that property in superseded and 24 CFR 570.208(a) and receiving a direct formula allocation of accordance with NSP requirements. 570.483 are waived to the extent funds from HUD under the regular Note that if a state provides funds to necessary to allow the following CDBG program or this notice. an entitlement community, the alternative requirements: Requirement entitlement community must apply the a. For purposes of NSP only, the term area median income levels applicable to ‘‘low- and moderate-income person’’ as Alternative requirement for its regular CDBG program geography it appears throughout the CDBG distribution to CDBG metropolitan and not the ‘‘balance of state’’ levels. regulations at 24 CFR part 570 shall be cities, urban counties, and Tribes. In Other than the change in the defined as a member of a low-, accordance with the direction of HERA applicable low- and moderate-income moderate-, and middle-income that grantees distribute funds to the qualification level from 80 percent to household, and the term ‘‘low- and areas of greatest need, HUD is providing 120 percent, the area benefit, housing, moderate-income household’’ as it an alternative requirement to 42 U.S.C. jobs, and limited clientele benefit appears throughout the CDBG 5302(a)(7) (definition of requirements at 570.208(a) and regulations shall be defined as a ‘‘nonentitlement area’’) and waiving 570.483(b) remain unchanged, as does household having an income equal to or provisions of 24 CFR part 570, including the required documentation. less than 120 percent of area median 24 CFR 570.480(a), that would prohibit The other NSP low- and moderate- income, measured as 2.4 times the states electing to receive CDBG funds income related provision states that: current Section 8 income limit for from distributing such funds to units of ‘‘not less than 25 percent of the funds households below 50 percent of median general local government in entitlement appropriated or otherwise made income, adjusted for family size. A state communities or to Tribes. The available under this section shall be choosing to carry out an activity directly appropriations law supersedes the used for the purchase and must apply the requirements of 24 CFR statutory distribution prohibition at 42 redevelopment of abandoned or 570.208(a) to determine whether the U.S.C. 5306(d)(1) and (2)(A). foreclosed homes or residential activity has met the low-, moderate-, Alternatively, the state is required to properties that will be used to house and middle-income (LMMI) national distribute funds without regard to a individuals or families whose incomes objective and must maintain the local government status under any other do not exceed 50 percent of area median documentation required at 24 CFR CDBG program and must use funds in income.’’ 570.506 to demonstrate compliance to entitlement jurisdictions if they are HUD advises grantees to take note of HUD. identified as areas of greatest need, this new threshold as they design NSP b. The national objectives related to regardless of whether the entitlement activities. This provision does not have prevention and elimination of slums receives its own NSP allocation. a parallel in the regular CDBG program. and blight and addressing urgent G. State’s Direct Action Grantees must document that an amount community development needs (24 CFR equal to at least 25 percent of a grantee’s 570.208(b) and (c) and 570.483(c) and Background NSP grant (initial allocation plus any (d)) are not applicable to NSP-assisted In the State CDBG program, states reallocations) has been budgeted in the activities. receiving CDBG funds may not directly initial approved action plan substantial c. Each grantee whose plan includes use the funds for activities, but must amendment for activities that will assisting rental housing shall develop distribute them to units of general local provide housing for income-qualified and make public its definition of government, which then use the funds individuals or families. Prior to and at affordable rents for NSP-assisted rental for program activities. States may still grant closeout, HUD will review projects. use this ‘‘method of distribution’’ grantees for compliance with this d. An NSP-assisted property may not program model under NSP, but HUD provision by determining whether at be held in a land bank for more than 10 reminds the states of the 18-month least 25 percent of grant funds have years without obligating the property for ‘‘use’’ requirement. HUD also notes the been expended for housing for a specific, eligible redevelopment of that language of section 2301(c) that says, in individual households whose incomes property in accordance with NSP part, that: do not exceed 50 percent of area median requirements. income. Any State * * * that receives amounts F. State Distribution to Entitlement pursuant to this section shall * * * use such Requirements Communities and Indian Tribes amounts to purchase and redevelop * * *. 1. Overall benefit supersession and This clearly speaks to the states using alternative requirement. The Background funds directly for projects and requirements at 42 U.S.C. 5301(c), 42 This notice includes an alternative supersedes the HCD Act direction for U.S.C. 5304(b)(3)(A), 24 CFR 570.484 requirement to the HCD Act and a states to only distribute funds to (for states), and 24 CFR 570.200(a)(3) regulatory waiver allowing distribution nonentitlement areas. Direct use of that 70 percent of funds are for activities of funds by a state to CDBG regular funds by a state may also result in more that benefit low- and moderate-income entitlement communities and Tribes. expeditious use of NSP funds. persons are superseded and replaced by This is consistent with the provision of Therefore, a state receiving NSP funds section 2301(f)(3)(A) of HERA. One HERA that specifically sets distribution may carry out NSP activities directly for hundred percent of NSP funds must be priorities for areas with the greatest some or all of its assisted grant used to benefit individuals and need, including ‘‘metropolitan areas, activities, just as CDBG entitlement households whose income does not metropolitan cities, urban areas, rural communities do under 24 CFR exceed 120 percent of area median areas, low- and moderate-income areas 570.200(f), including, but not limited to, income. NSP shall refer to such * * *’’ Therefore, states receiving carrying out activities using its own households as ‘‘low-, moderate-, and allocations under this notice may employees, procuring contractors, middle-income.’’ distribute funds to or within any private developers, and providing loans 2. National objectives supersession jurisdiction within the state that is and grants through nonprofit and alternative requirements. The among those with the greatest need, subrecipients (including local requirements at 42 U.S.C 5301(c) are even if the jurisdiction is among those governments and other public

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nonprofits such as regional or local statutes, regulations, waivers and long-established CDBG rules and planning or development authorities alternative requirements, and other controls. The table in the requirements and public housing authorities). federal requirements, the content of paragraph below shows the eligible uses For those activities a state chooses to records maintained by the state shall be under NSP and the corresponding carry out directly, HUD strongly advises sufficient to: (1) Enable HUD to make eligible activities from the regulations the state to adopt the recordkeeping the applicable determinations described for the regular CDBG entitlement required for an entitlement community at 24 CFR 570.493; (2) make compliance program that HUD has determined best at 570.506 and the subrecipient determinations for activities carried out correspond to those uses. If a grantee agreement provisions at 570.503. Also, directly by the state; and (3) show how creates a program design that includes in such cases, as an alternative activities funded are consistent with the a CDBG-eligible activity that is not requirement to 42 U.S.C. 5304(i), the descriptions of activities proposed for shown in the table to support an NSP- state may retain and re-use program funding in the action plan. For fair eligible use, the Department is income as if it were an entitlement housing and equal opportunity providing an alternative requirement to community. purposes, and as applicable, such 42 U.S.C. 5305(a) that HUD may allow HUD is granting regulatory waivers of records shall include data on the racial, a grantee an additional eligible-activity State CDBG regulations to conform the ethnic, and gender characteristics of category if HUD finds the activity to be applicable management, real property persons who are applicants for, in compliance with the NSP statute. As change of use, and recordkeeping rules participants in, or beneficiaries of the under the regular CDBG program, when a state chooses to carry out program. grantees may fund costs, such as activities as if it were an entitlement 4. State compliance with certifications reasonable developer’s fees, related to community. for state grantees acting directly. This is NSP-assisted housing rehabilitation or Requirements a conforming change related to the construction activities. NSP funds may waiver to allow a state to act directly. be used to redevelop acquired property 1. Responsibility for state review and Because a state grantee under this for nonresidential uses, such as a public handling of noncompliance. This appropriation may carry out activities park, commercial use, or mixed change conforms NSP requirements directly, HUD is applying the residential and commercial use. with the waiver allowing the state to regulations at 24 CFR 570.480(c) with The annual entitlement CDBG carry out activities directly. 24 CFR respect to the basis for HUD program allows up to 20 percent of any 570.492 is waived and the following determining whether the state has failed grant amount plus program income may alternative requirement applies: The to carry out its certifications, so that be used for general administration and state shall make reviews and audits, such basis shall be that the state has planning costs. The State CDBG including on-site reviews of any program is also subject to the 20 percent subrecipients, designated public failed to carry out its certifications in compliance with applicable program limitation, but within that cap up to 3 agencies, and units of general local percent may be used by the state for government as may be necessary or requirements. 5. Clarifying note on the process for state administrative cost and technical appropriate to meet the requirements of environmental release of funds when a assistance to potential local government 42 U.S.C. 5304(e)(2), as amended, as State carries out activities directly. program grant recipients, with the modified by this notice. In the case of Usually, a state distributes CDBG funds remainder available to be granted to noncompliance with these to units of local government and takes local government recipients for their requirements, the state shall take such on HUD’s role in receiving administrative costs. Because some of actions as may be appropriate to prevent environmental certifications from the the costs usually allocated under these a continuance of the deficiency, mitigate grant recipients and approving releases caps are not applicable to NSP grants any adverse effects or consequences, of funds. For this grant, HUD will allow (for example, the costs of completing the and prevent a recurrence. The state shall a state grantee to also carry out activities entire consolidated plan process), these establish remedies for noncompliance directly instead of distributing them to amounts seem excessive to HUD in the by any designated public agencies or other governments. According to the context of the NSP program. On the units of general local governments and environmental regulations at 24 CFR other hand, HUD wants to encourage for its subrecipients. and support expeditious, appropriate, 2. Change of use of real property for 58.4, when a state carries out activities directly, the state must submit the and compliant use of grant funds, and state grantees acting directly. This to prevent fraud, waste, and abuse of waiver conforms the change of use of certification and request for release of funds to HUD for approval. funds. Therefore, HUD is providing an real property rule to the waiver allowing alternative requirement that an amount a state to carry out activities directly. H. Eligibility and Allowable Costs of up to 10 percent of an NSP grant For purposes of this program, in 24 CFR provided to a jurisdiction and of up to Background 570.489(j), (j)(1), and the last sentence of 10 percent of program income earned (j)(2), ‘‘unit of general local Most of the activities eligible under may be used for general administration government’’ shall be read as ‘‘unit of NSP represent a subset of the eligible and planning activities as those are general local government or state.’’ activities under 42 U.S.C. 5305(a). Due defined at 24 CFR 570.205 and 206. For 3. Recordkeeping for a state grantee to limitations in the reporting system, all grantees, including states, the 10 acting directly. Recognizing that the DRGR, the NSP-eligible uses must be percent limitation applies to the grant as state may carry out activities directly, 24 correlated with CDBG-eligible activities. a whole. CFR 570.490(b) is waived in such a case The alternative to this approach, using The regulatory and statutory and the following alternative provision a paper-based action plan and reporting requirements for state match for shall apply: State records. The state process using NSP-eligible uses only program administration at 24 CFR shall establish and maintain such would be much slower to implement. 570.489 (a)(i) are superseded by the records as may be necessary to facilitate This correlation also reduces statutory direction at section 2301(e)(2) review and audit by HUD of the state’s implementation risks, because it will that no matching funds shall be required administration of NSP funds under 24 ensure that the NSP grants are for a state or unit of general local CFR 570.493. Consistent with applicable administered largely in accordance with government to receive a grant.

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Requirements 3.a. Certain CDBG-eligible activities below) or with permission granted, in correlate to specific NSP-eligible uses writing, by HUD upon a written request 1. Use of grant funds must constitute and vice versa. 42 U.S.C. 5305(a) and 24 by the grantee that demonstrates that the an eligible use under HERA. CFR 570.201–207 and 482(a) through (d) proposed activity constitutes an eligible 2. In addition to being an eligible NSP are superseded to the extent necessary use under NSP. All NSP grantees, use of funds, each activity funded under to allow the eligible uses described including states, will use the NSP this notice must also be CDBG-eligible under section 2301(c)(3) of HERA in categories and CDBG entitlement under 42 U.S.C. 5305(a) and meet a accordance with this paragraph regulations listed below. CDBG national objective. (including the table and subparagraphs

NSP-eligible uses Correlated eligible activities from the CDBG entitlement regulations

(A) Establish financing mechanisms for purchase and redevelopment of • As part of an activity delivery cost for an eligible activity as defined in foreclosed upon homes and residential properties, including such 24 CFR 570.206. mechanisms as soft-seconds, loan loss reserves, and shared-equity • Also, the eligible activities listed below to the extent financing mech- loans for low- and moderate-income homebuyers. anisms are used to carry them out. (B) Purchase and rehabilitate homes and residential properties that • 24 CFR 570.201(a) Acquisition have been abandoned or foreclosed upon, in order to sell, rent, or (b) Disposition, redevelop such homes and properties. (i) Relocation, and (n) Direct homeownership assistance (as modified below); • 570.202 eligible rehabilitation and preservation activities for homes and other residential properties (HUD notes that rehabilitation may include counseling for those seeking to take part in the activity). (C) Establish land banks for homes that have been foreclosed upon .... 24 CFR 570.201(a) Acquisition and (b) Disposition. (D) Demolish blighted structures ...... • 24 CFR 570.201(d) Clearance for blighted structures only. (E) Redevelop demolished or vacant properties ...... • 24 CFR 570.201(a) Acquisition, (b) Disposition, (c) Public facilities and improvements, (e) Public services for housing counseling, but only to the extent that counseling beneficiaries are limited to prospective purchasers or ten- ants of the redeveloped properties, (i) Relocation, and (n) Direct homeownership assistance (as modified below). • 204 Community based development organizations.

b. HUD will not consider requests to NSP funds under this 10 percent neighborhoods in the short-term, but to allow foreclosure prevention activities, limitation to provide technical strategically incorporate modern, green or to allow demolition of structures that assistance to local governments and building and energy-efficiency are not blighted, or to allow purchase of nonprofit program participants.) improvements in all NSP activities to residential properties and homes that provide for long-term affordability and I. Rehabilitation Standards have not been abandoned or foreclosed increased sustainability and upon as provided in HERA and defined Background attractiveness of housing and in this notice. HUD does not have the HERA provides that any NSP-assisted neighborhoods. authority to permit uses or activities not rehabilitation of a foreclosed-upon authorized by HERA. J. Sale of Homes home or residential property shall be to c. New construction of housing is Background eligible as part of eligible-use (E) to the extent necessary to comply with redevelop demolished or vacant applicable laws, codes, and other Section 2301(d)(2) of HERA directs properties. requirements relating to housing safety, that, if an abandoned or foreclosed-upon d. 24 CFR 570.201(n) is waived and quality, and habitability, in order to sell, home or residential property is an alternative requirement provided for rent, or redevelop such homes and purchased, redeveloped, or otherwise 42 U.S.C. 5305(a) to the extent necessary properties. This imposes a requirement sold to an individual as a primary to allow provision of NSP-assisted that does not exist in the CDBG residence, then such sale shall be in an homeownership assistance to persons program. This means that each grantee amount equal to or less than the cost to whose income does not exceed 120 must describe or reference in its NSP acquire and redevelop or rehabilitate percent of median income. action plan amendment what such home or property up to a decent, 4. Alternative requirement for the rehabilitation standards it will apply for safe, and habitable condition. (Sales and limitation on planning and NSP-assisted rehabilitation. HUD will closing costs are eligible NSP administrative costs. 24 CFR 570.200(g) monitor to ensure the standards are redevelopment or rehabilitation costs.) and 570.489(a)(3) are waived to the implemented. Note that the maximum sales price for extent necessary to allow each grantee HERA defines rehabilitation to a property is determined by aggregating under this notice to expend no more include improvements to increase the all costs of acquisition, rehabilitation, than 10 percent of its grant amount, plus energy efficiency or conservation of and redevelopment (including related 10 percent of the amount of program such homes and properties or to provide activity delivery costs, which generally income received by the grantee, for a renewable energy source or sources for may include, among other items, costs activities eligible under 24 CFR 570.205 such homes and properties. Such related to the sale of the property). or 206. The requirements at 24 CFR improvements are also eligible under Requirements 570.489 are waived to the extent that the regular CDBG program. HUD they require a state match for general strongly encourages grantees to use NSP 1. In its records, each grantee must administrative costs. (States may use funds not only to stabilize maintain sufficient documentation

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about the purchase and sale amounts of acquisitions. While the URA and its and involuntary property acquisition each property and the sources and uses regulations do not require appraisals for activities, even for vacant and of funds for each activity so that HUD such acquisitions, the URA acquisition abandoned property. HUD reminds can determine whether the grantee is in policies do not prohibit acquiring grantees to be aware of the requirement compliance with this requirement. A agencies from obtaining appraisals. to have and follow a residential grantee will be expected to provide this Appendix A, 49 CFR 24.101(b)(2) antidisplacement and relocation plan documentation individually for each acknowledges that acquiring agencies for the CDBG and HOME programs. This activity. may still obtain an appraisal to support requirement is not waived for those 2. In determining the sales price their determination of fair market value. programs and continues to apply to limitation, HUD will not consider the Section 2301(d)(1) of HERA requires an activities assisted with regular CDBG costs of boarding up, lawn mowing, appraisal for purposes of determining and HOME funds. the statutory purchase discount. This simply maintaining the property in a Requirements static condition, or, in the absence of appraisal requirement applies to any NSP-assisted rehabilitation or NSP-assisted acquisition of a foreclosed- 1. The one-for-one replacement redevelopment of the property, the costs upon home or residential property requirements at 24 CFR 570.488, of completing a sales transaction or (including voluntary acquisitions). 570.606(c), and 42.375 are waived for other disposition to be redevelopment One-for-One Replacement. HUD is low- and moderate-income dwelling or rehabilitation costs. These costs may providing an alternative requirement to units demolished or converted in not be included by the grantee in the the one-for-one replacement connection with an activity assisted determination of the sales price for an requirements set forth in 42 U.S.C. with NSP funds. As an alternative NSP-assisted property. 5304(d)(2), as implemented at 24 CFR requirement to 42 U.S.C. 3. For reporting purposes only, for a 42.375. The Department anticipates a 5304(d)(2)(A)(i) and (ii), each grantee housing program involving multiple large number of requests from grantees planning to demolish or convert any single-family structures under the for whom the requirements will be low- and moderate-income dwelling management of a single entity, HUD will onerous given the pressing rush to units as a result of NSP-assisted permit reporting the aggregation of implement NSP, and several of the activities must identify all of the activity delivery costs across the total major housing markets affected by the following information in its NSP portfolio of projects until completion of foreclosure crisis have a surplus of substantial amendment: the program or closeout of the grant abandoned and foreclosed-upon (a) The number of low- and moderate- with HUD, whichever comes earlier. residential properties. The additional income dwelling units reasonably expected workload of reviewing requests under to be demolished or converted as a direct K. Acquisition and Relocation 42 U.S.C. 5304(d)(3) and 24 CFR result of NSP-assisted activities; (b) The number of NSP affordable housing Background 42.375(d) could cause a substantial backlog at HUD and delay NSP program units (made available to low-, moderate-, and Acquisition of Foreclosed-Upon operations. Therefore, the alternative middle-income households) reasonably Properties. HUD notes that section expected to be produced, by activity and requirement is that an NSP grantee will income level as provided for in DRGR, by 2301(d)(1) of HERA conflicts with not be required to meet the section 301(3) of the URA (42 U.S.C. each NSP activity providing such housing requirements of 42 U.S.C. 5304(d), as (including a proposed time schedule for 4651) and related regulatory implemented at 24 CFR 42.375, to commencement and completion); and requirements at 49 CFR 24.102(d). As provide one-for-one replacement of low- (c) The number of dwelling units discussed further, section 2301(d)(1) of and moderate-income dwelling units reasonably expected to be made available for HERA requires that any acquisition of a demolished or converted in connection households whose income does not exceed foreclosed-upon home or residential with activities assisted with NSP funds. 50 percent of area median income. property under NSP be at a discount Alternatively, each grantee must submit The grantee must also report on actual from the current market-appraised value the information described below performance for demolitions and of the home or property and that such relating to its demolition and production, as required elsewhere in discount shall ensure that purchasers conversion activities in its action plan this notice. are paying below-market value for the substantial amendment. The grantee L. Note on Eminent Domain home or property. Section 301(3) of the will report to HUD and citizens (via URA, as implemented at 49 CFR prominent posting of the DRGR reports Although section 2303 of HERA 24.102(d), provides that an offer of just on the grantee’s official Internet site) on appears to allow some use of eminent compensation shall not be less than the progress related to these measures until domain for public purposes, HUD agency’s approved appraisal of the fair the closeout of its grant with HUD. cautions grantees that section 2301(d)(1) market value of such property. These As noted earlier, HUD does not have may effectively ensure that all NSP- URA acquisition policies apply to any the authority to waive or specify assisted property acquisitions must be acquisition of real property for a alternative requirements to the URA’s voluntary acquisitions as the term is federally funded project, except for acquisition policies or relocation defined by the URA and its acquisitions described in 49 CFR provisions. Those requirements that do implementing regulations. Section 24.101(b)(1) through (5) (commonly not conflict with HERA continue to 2301(d)(1) directs that any purchase of referred to as ‘‘voluntary acquisitions’’). apply. HUD is not specifying alternative a foreclosed-upon home or residential As the more recent and specific requirements to the relocation property under NSP be at a discount statutory provision, section 2301(d)(1) assistance provisions at 42 U.S.C. from the current market appraised value of HERA prevails over section 301 of the 5304(d). Guidance on meeting these of the home or property and that such URA for purposes of NSP-assisted requirements is available on the HUD discount shall ensure that purchasers acquisitions of foreclosed-upon homes Web site and through local HUD field are paying below-market value for the or residential properties. offices. HUD urges grantees to consider home or property. However, the Fifth NSP Appraisal Requirements. As URA requirements in designing their Amendment to the U.S. Constitution noted above, section 301 of the URA programs and to remember that there are provides that private property shall not does not apply to voluntary URA obligations related to voluntary be taken for public use without just

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compensation. The Supreme Court has (expenditures) and unliquidated or subrecipient on or after July 30, 2013, ruled that a jurisdiction must pay fair obligations for approved activities that, that is generated by activities carried out market value for the purchase of in the aggregate, are at least equal to the pursuant to Section 2301(c)(3)(B) and property through eminent domain. A NSP allocation. (The DRGR system (E) (e.g., proceeds from the sale of rental grantee contemplating using NSP funds collects information on expenditures housing by a state, unit of general local to assist an acquisition involving an and obligations.) government, or subrecipient) and is not eminent domain action is advised to 2. Timely expenditure of NSP funds. authorized to be retained as described consult appropriate legal counsel before The timely distribution or expenditure below must be remitted to HUD for taking action. requirements of sections 24 CFR deposit in the Treasury. Any program 570.494 and 570.902 are waived to the income received by a state, unit of M. Timeliness of Use and Expenditure extent necessary to allow the following general local government, or of NSP Funds alternative requirement: All NSP subrecipient on or after July 30, 2013, Background grantees must expend on eligible NSP that is generated by activities carried out One of the most critical NSP activities an amount equal to or greater pursuant to Section 2301(c)(3)(B) and provisions is the HERA requirement at than the initial allocation of NSP funds (E) and that is in excess of the cost to section 2301(c)(1) that any grantee within 4 years of receipt of those funds acquire and redevelop or rehabilitate an receiving a grant: or HUD will recapture and reallocate the abandoned or foreclosed-upon home or amount of funds not expended. residential property may be retained if * * * shall, not later than 18 months after HUD approves a request to use the N. Alternative Requirement for Program the receipt of such amounts, use such funds for other NSP purposes. Note that amounts to purchase and redevelop Income (Revenue) Generated by no profit can be earned on the sale of abandoned and foreclosed homes and Activities Assisted With Grant Funds residential properties. an abandoned or foreclosed-upon home Requirement or residential property to an individual HUD has defined the term ‘‘use’’ in as a primary residence; as provided this notice to include obligation of Revenue received by a state, unit of general local government, or under Section 2301(c)(3), the sale must funds. be in an amount equal to or less than the A further complication is that HERA subrecipient (as defined at 24 CFR cost to acquire and redevelop or clearly expects grantees to earn program 570.500(c)) that is directly generated rehabilitate the home or property up to income under this grant program. As from the use of CDBG funds (which a decent, safe, and habitable condition. provided under 24 CFR 85.21 for term includes NSP grant funds) entitlements, grantees and subrecipients constitutes CDBG program income. To Example: A unit of general local shall disburse program income before ensure consistency of treatment of such government acquires a foreclosed-upon requesting additional cash withdrawals revenue, the definition of program multi-family residential property for $100,000, spends $100,000 to redevelop the from the U.S. Treasury. States are income at 24 CFR 570.500(a) shall be applied to amounts received by states, property, and sells the property for $225,000. governed similarly by 24 CFR 489(e)(3) If the sale occurs on or after July 30, 2013, and 31 CFR part 205. This requirement units of general local government, and the amount to be remitted to HUD by the is reflected in the regulations governing subrecipients. However, Section state or unit of general government is use of program income by States and 2301(d)(4) imposes certain limitations $200,000 if HUD authorizes the profit of units of general local government under and requirements that necessitate an $25,000 to be used for other NSP purposes, the CDBG program. This means that a alternative requirement to govern the or $225,000 if HUD does not authorize such grantee that successfully and quickly use of program income generated by use. activities carried out pursuant to deploys its program and generates c. Revenue received by a private Section 2301(c). The limitations and program income may obligate, draw individual or other entity that is not a requirements are based on the NSP down, and expend an amount equal to subrecipient. its NSP allocation amount, and still activity that generated the program i. Any revenue generated by activities have funds remaining in its line of income and on the date the income is carried out pursuant to Section credit, possibly subject to recapture at received. In addition, Section 2301(d)(4) 2301(c)(3)(B) and (E) that is in excess of the 18-month deadline. requires any revenue from the sale, On consideration, the Department rental, redevelopment, rehabilitation or the cost to acquire and redevelop chose to implement the use test based any other eligible use of NSP funds to (including reasonable development fees) on whether the state or unit of general be provided to and used by the state or or rehabilitate an abandoned or local government has expended or unit of local general government. This foreclosed-upon home or residential obligated the NSP grant funds and includes revenue received by a private property must be provided to the state program income in an aggregate amount individual or other entity that is not a or unit of general local government and at least equal to the NSP allocation. subrecipient. treated as program income. The HUD is also imposing a deadline for 1. Program income generated by disposition of the program income by expending NSP grant funds because the activities carried out pursuant to the state or unit of general local intent of these grants clearly is to Section 2301(c)(3)(B) and (E). government is governed by a. and b. quickly address an emergency situation a. Program income received before above. in areas of the greatest need. July 30, 2013, may be retained by the ii. Any revenue that is generated by state or unit of general local government activities carried out pursuant to Requirements if it is treated as additional CDBG funds Section 2301(c)(3)(B) and (E) and is 1. Timely use of NSP funds. At the and used in accordance with the received on or after July 30, 2013, shall end of the statutory 18-month use requirements of Section 2301. be provided to the State or unit of period, which begins when the NSP b. Program income received on or general local government and treated as grantee receives its funds from HUD, the after July 30, 2013—Return to the program income. The disposition of the state or unit of general local government Treasury. program income by the state or unit of NSP grantee’s accounting records and Any program income received by a general local government is governed by DRGR information must reflect outlays state, unit of general local government, b. above.

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Example: A unit of general local promptly if a grantee lags in prescribes, no later than 30 days government uses NSP funds to make a loan implementation and risks recapture of following the end of each quarter, (or grant) to a developer to finance the its grant funds. For NSP only, HUD is beginning 30 days after the completion acquisition and rehabilitation of a foreclosed- waiving the annual reporting of the first full calendar quarter after upon multi-family residential property. The requirements of the consolidated plan to grant award and continuing until the developer uses $200,000 in NSP funds (loan or grant) from the unit of general local allow HUD to collect more regular end of the 15th month after initial government to pay the total costs of information on various aspects of the receipt of grant funds. In addition to this acquisition and rehabilitation (including uses of funds and of the activities quarterly performance reporting, each reasonable development fees) and funded with these grants. HUD will use grantee will report monthly on its NSP subsequently sells the property for $225,000. the reports to exercise oversight for obligations and expenditures beginning The developer is required to provide compliance with the requirements of 30 days after the end of the 15th month $225,000 to the unit of general local this notice and for prevention of fraud, following receipt of funds, and government. (If the NSP funding was a loan, waste, and abuse of funds. continuing until reported total the sale proceeds would be used to repay the The regular CDBG performance obligations are equal to or greater than NSP loan.) If the sale occurs on or after July measurement requirements will not the total NSP grant. After HUD has 30, 2013, the unit of general local government must remit $225,000 to HUD for apply to the NSP funds. To the extent accepted a report from a grantee deposit in the United States Treasury, unless feasible, HUD will configure DRGR showing such obligation of funds, the HUD approves a request to use $25,000 of performance measures to fit the NSP monthly reporting requirement will end that amount for other NSP purposes. If in this activities and will provide additional and quarterly reports will continue until same example, the developer received guidance on NSP performance all NSP funds (including program $100,000 of NSP funding and used $100,000 measures. income) have been expended and those of its own funds for eligible costs, the To collect these data elements and to expenditures are included in a report to revenue to be provided to the local meet its reporting requirements, HUD is HUD, or until HUD issues other government would be $125,000. requiring each grantee to report on its instructions pursuant to paragraph b.ii. 2. Program income generated by NSP funds to HUD using the online below. Each report will include activities carried out pursuant to DRGR system, which uses a information about the uses of funds, Section 2301(c)(3)(A), (C) and (E). streamlined, Internet-based format. HUD including, but not limited to, the project Program income received may be will use grantee reports to monitor for name, activity, location, national retained by the State or unit of general anomalies or performance problems that objective, funds budgeted and local government if it is treated as suggest fraud, waste, and abuse of expended, the funding source and total additional CDBG funds and used in funds; to reconcile budgets, obligations, amount of any non-NSP funds, numbers accordance with the requirements of fund draws, and expenditures; to of properties and housing units, Section 2301. Revenue received by a calculate applicable administrative and beginning and ending dates of activities, private individual or other entity that is public service limitations and the and numbers of low- and moderate- not a subrecipient must be returned to overall percent of benefit to LMMI income persons or households the State or unit of general local persons; and as a basis for risk analysis benefiting. Reports must be submitted government. in determining a monitoring plan. using HUD’s web-based DRGR system 3. Cash management. Substantially all The grantee must post the NSP report and, at the time of submission, be program income must be disbursed for on a Web site for its citizens when it posted prominently on the grantee’s eligible NSP activities before additional submits the report to HUD (DRGR official Web site. cash withdrawals are made from the generates a version of the report that the ii. During the winter of 2008–2009, U.S. Treasury. grantee can download, save, and post). HUD is undertaking a major enhancement of DRGR, initiated as part 4. Agreements with subrecipients and Requirements other entities. States and units of of a series of improvements designed to general local governments must 1. Performance report alternative prevent fraud, waste, and abuse of funds incorporate in subrecipient agreements requirement. The Secretary may specify in the Gulf Coast CDBG disaster such provisions as are necessary to the form and timing of reports provided recovery programs, whose grantees are ensure compliance with the by the grantee under both 42 U.S.C. reporting on the uses of more than $19 requirements of this paragraph, 5304(e) (the HCD Act) and 42 U.S.C. billion of CDBG disaster recovery funds including the requirement that program 12708 (NAHA). Therefore, the through DRGR. Prior to roll-out of the income described in N.1.(b) be remitted consolidated plan regulation at 24 CFR enhancement, NSP grantees will use the to HUD for deposit in the Treasury. 91.520 is waived and the alternative Voice Response System (VRS) to access States, units of general local reporting form and timing for the NSP the line of credit and will prepare and government, and subrecipients must funds is that: submit action plans and performance a. Each grantee must enter its NSP incorporate in agreements with private reports through DRGR. After this Action Plan amendment into HUD’s individuals and other entities that are enhancement is complete, grantees also web-based DRGR system in sufficient not subrecipients such provisions as are will be able to access their lines of detail to meet the NSP action plan necessary to ensure compliance with the credit through DRGR. At that time, HUD content requirements of this notice and requirements governing disposition of will issue updated guidance on all to serve as the basis for acceptable revenue generated by activities carried DRGR reporting and require most performance reports. (Because DRGR out pursuant to Section 2301(c). activity data to be updated on a was not specifically redesigned for the transactional basis. O. Reporting NSP, HUD field staff will provide grantees with specific technical P. Note That FHA Properties Are Background assistance on where in DRGR the Eligible for NSP Acquisition and HUD is requiring regular reporting on required NSP narrative and data Redevelopment each NSP grant in the DRGR system to elements must be placed.) The Department notes that it is an ensure the Department gets sufficient b.i. Each grantee must submit a eligible use of CDBG grant funds to management information to follow-up quarterly performance report, as HUD acquire and redevelop FHA foreclosed

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properties. The Department strongly individual property is determined. If the NSP-eligible use and benefit to income- urges every community to consider and state, unit of general local government, qualified persons. include such properties under their NSP or subrecipient determines the discount 3. The address, appraised value, programs because the nature and through use of a methodology that purchase offer amount, and discount location of many of these homes will incorporates the factors discussed above amount of each property purchase must make them very compatible with the (keeping in mind that the discount must be documented in the grantee’s program eligible uses of grant funds, the areas of be at least 5 percent), then the minimum records. greatest need, and the income eligibility average discount for the NSP portfolio is R. Removal of Annual Requirements thresholds and limits. Furthermore, in 10 percent. If not, the minimum average many areas, FHA foreclosed properties discount is 15 percent. Recipients and Requirement will be available for purchase at below- subrecipients are cautioned that a Throughout 24 CFR parts 91 and 570, market value to meet HERA purchase discount negotiated with the all references to ‘‘annual’’ requirements requirements. FHA provides quick seller on an individual property that is such as submission of plans and reports access to location, condition, and sales below the minimum average discount are waived to the extent necessary to price information; FHA may also offer requirement must be offset by a allow the provisions of this notice to expedited closing time frames. These purchase discount that is above the apply to NSP funds, with no recurring factors may help expedite NSP fund use. minimum average discount. annual requirements other than those HUD will provide technical assistance Requirements related to civil rights and fair housing on its Web site regarding how these certifications and requirements. programs can effectively interact. 1.a. Individual purchase transaction. Grantees may also contact their local Each foreclosed-upon home or S. Affirmatively Furthering Fair Housing HUD FHA field office for further residential property shall be purchased Nothing in this notice may be information. at a discount of at least 5 percent from construed as affecting each grantee’s Q. Purchase Discount the current market-appraised value of responsibility to carry out its the home or property. certification to affirmatively further fair Background b. Purchase transactions in the housing. HUD encourages each grantee Section 2301(d)(1) limits the purchase aggregate. Except as set forth below, the to review its analysis of impediments to price of a foreclosed home, as follows: average purchase discount for all fair housing choice to determine properties purchased with NSP funds whether an update is necessary because Any purchase of a foreclosed upon home or residential property under this section during the 18-month use period shall be of current market conditions or other shall be at a discount from the current market at least 15 percent. The average factors. purchase discount shall be at least 10 appraised value of the home or property, T. Certifications taking into account its current condition, and percent if the state, unit of general local such discount shall ensure that purchasers government, or subrecipient determines Background are paying below-market value for the home the maximum reasonable discount for or property. HUD is substituting alternative each purchase transaction through use certifications. The alternative To ensure that uncertainty over the of a methodology that results in a certifications are tailored to NSP grants meaning of this section does not delay discount equivalent to the total carrying and remove certifications and references program implementation, HUD is costs that would be incurred by the that are appropriate only to the annual defining ‘‘current market appraised seller if the property were not CDBG formula program. value’’ in this notice. For mortgagee purchased with NSP funds (provided foreclosed properties, HUD is requiring the discount is at least 5 percent). Such Requirements that grantees seek to obtain the methodology shall provide for an Certifications for states and for ‘‘maximum reasonable discount’’ from analysis of the estimated holding period entitlement communities, alternative the mortgagee, taking into consideration for the property and the nature and requirement. Although the NSP is being likely ‘‘carrying costs’’ of the mortgagee amount of the carrying costs of holding implemented as a substantial if it were to not sell the property to the the property for this period. Such amendment to the current annual action grantee or subrecipient. These likely carrying costs shall include, but not be plan, HUD is requiring submission of carrying costs are different from market limited to: Taxes, insurance, this alternative set of certifications as a to market, and the ‘‘maximum maintenance, marketing, overhead, and conforming change, reflecting reasonable discount’’ is likely to be interest. The procedures to implement alternative requirements and waivers higher in markets where homes are such methodology shall be in writing under this notice. Each jurisdiction will taking many months to more than a year and applied consistently to all submit the following certifications: to sell as compared to markets with purchases. The analysis for each 1. Affirmatively furthering fair shorter average time to sell a property. purchase transaction shall be housing. The jurisdiction certifies that it In recognition of the need for flexibility documented in the grantee’s program will affirmatively further fair housing, in administering the purchase discount records. which means that it will conduct an requirement, HUD has adopted an 2. An NSP recipient may not provide analysis to identify impediments to fair approach that requires a minimum NSP funds to another party to finance housing choice within the jurisdiction, discount of 5 percent for each an acquisition of tax foreclosed (or any take appropriate actions to overcome the residential property purchased with other) properties from itself, other than effects of any impediments identified NSP funds and a minimum average to pay necessary and reasonable costs through that analysis, and maintain discount for all properties acquired with related to the appraisal and transfer of records reflecting the analysis and NSP funds over the 18-month HERA use title. A property conveyed in this actions in this regard. period. The minimum average discount manner to a subrecipient, homebuyer, 2. Anti-lobbying. The jurisdiction for the ‘‘portfolio’’ of properties developer, or jurisdiction will be NSP- must submit a certification with regard acquired with NSP funds depends upon assisted and subject to all program to compliance with restrictions on how the purchase discount for an requirements, such as requirements for lobbying required by 24 CFR part 87,

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together with disclosure forms, if funds are used to pay the proportion of 3520). OMB approval is under OMB required by that part. a fee or assessment attributable to the control number 2506–0165. In 3. Authority of jurisdiction. The capital costs of public improvements accordance with the Paperwork jurisdiction certifies that the (assisted in part with NSP funds) Reduction Act, HUD may not conduct or consolidated plan is authorized under financed from other revenue sources, an sponsor and a person is not required to state and local law (as applicable) and assessment or charge may be made respond to, a collection of information, that the jurisdiction possesses the legal against the property with respect to the unless the collection displays a valid authority to carry out the programs for public improvements financed by a control number. which it is seeking funding, in source other than CDBG funds. In W. Duration of Funding accordance with applicable HUD addition, with respect to properties regulations and other program owned and occupied by moderate- The appropriation accounting requirements. income (but not low-income) families, provisions in 31 U.S.C. 1551–1557, 4. Consistency with plan. The an assessment or charge may be made added by section 1405 of the National jurisdiction certifies that the housing against the property with respect to the Defense Authorization Act for Fiscal activities to be undertaken with NSP public improvements financed by a Year 1991 (Pub. L. 101–510), limit the funds are consistent with its source other than NSP funds if the availability of certain appropriations for consolidated plan. jurisdiction certifies that it lacks NSP or expenditure. Such a limitation may not 5. Acquisition and relocation. The CDBG funds to cover the assessment. be waived. The appropriations acts for jurisdiction certifies that it will comply 11. Excessive force. The jurisdiction NSP grants direct that these funds be with the acquisition and relocation certifies that it has adopted and is available until expended. However, the requirements of the Uniform Relocation enforcing: Department is imposing a shorter Assistance and Real Property a. A policy prohibiting the use of deadline on the expenditure of NSP Acquisition Policies Act of 1970, as excessive force by law enforcement funds in this notice. amended (42 U.S.C. 4601), and agencies within its jurisdiction against Catalog of Federal Domestic Assistance implementing regulations at 49 CFR part any individuals engaged in nonviolent 24, except as those provisions are civil rights demonstrations; and The Catalog of Federal Domestic modified by the notice for the NSP b. A policy of enforcing applicable Assistance numbers for grants made program published by HUD. state and local laws against physically under NSP are as follows: 14.218; 6. Section 3. The jurisdiction certifies barring entrance to, or exit from, a 14.225; and 14.228. that it will comply with section 3 of the facility or location that is the subject of Finding of No Significant Impact Housing and Urban Development Act of such nonviolent civil rights 1968 (12 U.S.C. 1701u), and demonstrations within its jurisdiction. A Finding of No Significant Impact implementing regulations at 24 CFR part 12. Compliance with anti- with respect to the environment has 135. discrimination laws. The jurisdiction been made in accordance with HUD 7. Citizen participation. The certifies that the NSP grant will be regulations at 24 CFR part 50, which jurisdiction certifies that it is in full conducted and administered in implement section 102(2)(C) of the compliance and following a detailed conformity with Title VI of the Civil National Environmental Policy Act of citizen participation plan that satisfies Rights Act of 1964 (42 U.S.C. 2000d), 1969 (42 U.S.C. 4332(C)(2)). The the requirements of Sections 24 CFR the Fair Housing Act (42 U.S.C. 3601– Finding of No Significant Impact is 91.105 or 91.115, as modified by NSP 3619), and implementing regulations. available for public inspection between requirements. 13. Compliance with lead-based paint 8 a.m. and 5 p.m. weekdays in the 8. Following a plan. The jurisdiction procedures. The jurisdiction certifies Office of the Rules Docket Clerk, Office certifies it is following a current that its activities concerning lead-based of General Counsel, Department of consolidated plan (or Comprehensive paint will comply with the requirements Housing and Urban Development, 451 Housing Affordability Strategy) that has of part 35, subparts A, B, J, K, and R of Seventh Street, SW., Room 10276, been approved by HUD. this title. Washington, DC 20410–0500. 9. Use of funds. The jurisdiction 14. Compliance with laws. The Establishment of Formula certifies that it will comply with Title III jurisdiction certifies that it will comply of Division B of the Housing and with applicable laws. I hereby establish the funding formula Economic Recovery Act of 2008 by set out in Attachment A to this notice. U. Note on Statutory Limitation on using all of its grant funds within 18 Dated: September 29, 2008. Distribution of Funds months of receipt of the grant. Steven C. Preston, 10. The jurisdiction certifies: Section 2304 of HERA states that none Secretary. a. that all of the NSP funds made of the funds made available under this available to it will be used with respect Title or title IV shall be distributed to an Attachment A to individuals and families whose organization that has been indicted for HERA calls for allocating funds ‘‘to incomes do not exceed 120 percent of a violation under federal law relating to States and units of general local area median income; and an election for federal office; or an government with the greatest need, as b. The jurisdiction will not attempt to organization that employs applicable such need is determined in the recover any capital costs of public individuals. Section 2304 defines discretion of the Secretary based on— improvements assisted with CDBG applicable individuals. (A) The number and percentage of funds, including Section 108 loan home foreclosures in each State or unit V. Information Collection Approval guaranteed funds, by assessing any of general local government; amount against properties owned and Note (B) The number and percentage of occupied by persons of low- and HUD has approval from the Office of homes financed by a subprime mortgage moderate-income, including any fee Management and Budget (OMB) for related loan in each State or unit of charged or assessment made as a information collection requirements in general local government; and condition of obtaining access to such accordance with the Paperwork (C) The number and percentage of public improvements. However, if NSP Reduction Act of 1995 (44 U.S.C. 3501– homes in default or delinquency in each

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State or unit of general local Association National Delinquency Survey increased with data from the government.’’ Survey (MBA–NDS). Because the MBA– Home Mortgage Disclosure Act to It further directs that ‘‘each State shall NDS may have uneven coverage from capture the proportion of total receive not less than 0.5 percent of state-to-state in respect to the total mortgages made within a state made to funds’’. The allocation formula operates number of mortgages reported, the total investors between 2004 and 2006. The as follows. In this formula, the primary count of mortgages is calculated as the first step of the allocation is to make a data on foreclosure rates, subprime loan number of owner-occupied mortgages ‘‘statewide’’ allocation using the rates, and rates of loans delinquent or in from the 2006 American Community following formula: default come from the Mortgage Bankers

Statewide Allocation = $3.92 billion*

(State’s number of foreclosure starts in last 6 quarters)* (lPercent of all loans in state to enter foreclosure last 6 quarters) {[070 . * + National numbeer of foreclosure starts in last 6 quarters Perccent of all loans in nation to enter foreclosure last 6 quuarters

(State’s number of subprime loans)* (Percent of all loans in state subbprime) 015.* + National nnumber of subprime loans Percent of all loans in nation subprime

(Statee’s number of loans in default (90+ days delinquent)* (Percent of all loans in sttate in default) 010.* + Natioonal number of loans in default Percent of all loans in nation in default

(State’s number of loans 60 to 89 days delinquent)* (Percent of all loans in state 60 to 89 days delinquent)] * 005.* NNational number of loans 60 to 89 days delinquent National percent of all loans 60 to 89 days delinquent

(lPct of all addresses in state vacant in Census Tracts where more thhan 40% of the 2004 to 2006 loans were high costs) } Pct of all addresses in nation vacant in Census Tracts where morre than 40% of the 2004 to 2006 loans were high cost

This formula allocates 70 percent of aggregated by HUD to the Census Tract allocation, their grant is rolled up into the funds based on the number and level. The residential vacancy the state government grant. percent of foreclosures, 15 percent for adjustment factor reflects a state’s Note that HUD has determined that subprime loans, 10 percent for loans in vacancy rate relative to the national HERA’s direction that a minimum of default (delinquent 90 days or longer), average and cannot increase or decrease $19.6 million be allocated to the state and 5 percent for loans delinquent 60 to a state’s proportional share of the means that a minimum grant must be 90 days. The higher weight on allocation based on foreclosures, provided to each state government of foreclosures is based on the emphasis subprime loans, and delinquencies and $19.6 million. As a result, this approach the statute places on targeting foreclosed defaults by more than 10 percent. provides state governments with homes. The percentage adjustments, the Finally, if a statewide allocation is proportionally more funding than their rate of a problem in a state relative to less than $19.6 million, the statewide estimated need. As such, state the national rate of a problem, are grant is increased to $19.6 million. governments should use their best restricted such that a state’s allocation Because this approach will result in a judgment to serve both those areas not based on its proportional share of a total allocation in excess of receiving a direct grant and those areas problem cannot be increased or appropriation, all grant amounts above that do receive a direct grant, making decreased by more than 30 percent. $19.6 million are reduced pro-rata to sure that the total of all funds in the state are going proportionally more to Because HERA specifically indicates make the total allocation equal to the total appropriation. those places (as prescribed by HERA): that the funds are needed for the • ‘‘With the greatest percentage of From each statewide allocation, a ‘‘redevelopment of abandoned and home foreclosures; foreclosed upon homes and residential substate allocation is made as follows: • • With the highest percentage of properties’’, HUD has included a Each state government is allocated homes financed by a subprime mortgage variable to proxy where abandonment of $19.6 million. related loan; and homes due to foreclosure is more likely, • If the statewide allocation is more • Identified by the State or unit of specifically each state’s rate of vacant than $19.6 million, the remaining funds general local government as likely to residential addresses in neighborhoods are allocated to FY 2008 CDBG face a significant rise in the rate of home with a high proportion (more than 40 entitlement cities, urban counties, and foreclosures.’’ percent) of loans in 2004 to 2006 that non-entitlement balance of state For the amount of funds above each were high cost. Information on vacant proportional to relative need. state’s $19.6 million, the remaining addresses is based on United States • If a local government receives less funds are allocated among the Postal Service data as of June 30, 2008 than $2 million under this sub- entitlement communities and non-

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entitlement balances using the following formula:

Local Allocation = (Statewide allocation − $19,600,000)*

[(LLocal estimate number of foreclosure starts in last 6 quarrters)* State total number of foreclosure starts in last 6 quarters

(Local vacancy rate in Census Tracts with more thhan 40% of the loans High-cost)] State vacancy rate in Censsus Tracts with more than 40% of the loans High-cost

Where the residential vacancy rate communities and they are good foreclosures from the model will equal adjustment cannot increase or reduced a predictors of foreclosure risk, they are the total foreclosure starts in the state local jurisdiction’s allocation by more used in a model to calculate the from the Mortgage Bankers Association than 30 percent and the estimated estimated number of foreclosures in National Delinquency Survey. number of foreclosures is calculated each jurisdiction within a state. The As noted above, for entitlement cities based on a predicted foreclosure rate formula used is as follows: and urban counties that would receive times the estimated number of Predicted Foreclosure Rate = ¥2.211 an NSP allocation of less than $2 mortgages in a community. HUD ¥(0.131* Percent change in MSA million, the funds are allocated to the analysis shows that 75 percent of the OFHEO current price relative to the state grantee. The District of Columbia variance between states on foreclosure maximum in past 8 years) and the four Insular Areas receive direct rates can be explained by three variables +(0.152* Percent of total loans made allocations and are not subject to the available from public data: between 2004 and 2006 that are minimum grant threshold. • Office of Federal Housing high cost) Because this funding is one-time Enterprise Oversight (OFHEO) data on +(0.392*Percent unemployed in the funding and the eligible activities under change in home values as of June 2008 place our county in June 2008). the program are different enough from compared to peak home value since This predicted foreclosure rate is then the regular program, HUD believes that 2000. multiplied times the estimated number a grantee must receive a minimum • Percent of all loans made between of mortgages within a jurisdiction amount of $2 million to have adequate 2004 and 2006 that are high cost as (number of HMDA loans made between staffing to properly administer the reported in the Home Mortgage 2004 and 2006 times the ratio of ACS program effectively. In addition, fewer Disclosure Act (HMDA). 2006 data on total mortgages in state / grants will allow HUD staff to more • Unemployment rate as of June 2008 HMDA loans in state). This ‘‘estimated effectively monitor grantees to ensure (from Bureau of Labor Statistics). number of mortgages in the proper implementation of the program Because these three variables are jurisdiction’’ is further adjusted such and reduce the risk for fraud, waste, and publicly available for all CDBG eligible that the estimated number of abuse.

NSP grant State Grantee name amount

AK ...... ALASKA STATE PROGRAM ...... $19,600,000 AL ...... ALABAMA STATE PROGRAM ...... 37,033,031 AL ...... BIRMINGHAM ...... 2,580,214 AL ...... JEFFERSON COUNTY ...... 2,237,876 AR ...... ARKANSAS STATE PROGRAM ...... 19,600,000 AZ ...... PHOENIX ...... 39,478,096 AZ ...... ARIZONA STATE PROGRAM ...... 38,370,206 AZ ...... MARICOPA COUNTY ...... 9,974,267 AZ ...... MESA ...... 9,659,665 AZ ...... TUCSON ...... 7,286,911 AZ ...... GLENDALE ...... 6,184,112 AZ ...... PIMA COUNTY ...... 3,086,867 AZ ...... AVONDALE CITY ...... 2,466,039 AZ ...... CHANDLER ...... 2,415,100 AZ ...... SURPRISE TOWN ...... 2,197,786 CA ...... CALIFORNIA STATE PROGRAM ...... 145,071,506 CA ...... RIVERSIDE COUNTY ...... 48,567,786 CA ...... LOS ANGELES ...... 32,860,870 CA ...... SAN BERNARDINO COUNTY ...... 22,758,188 CA ...... SACRAMENTO COUNTY ...... 18,605,460 CA ...... LOS ANGELES COUNTY ...... 16,847,672 CA ...... SACRAMENTO ...... 13,264,829 CA ...... STOCKTON ...... 12,146,038 CA ...... MORENO VALLEY ...... 11,390,116 CA ...... KERN COUNTY ...... 11,211,385 CA ...... FRESNO ...... 10,969,169

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NSP grant State Grantee name amount

CA ...... STANISLAUS COUNTY ...... 9,744,482 CA ...... SAN DIEGO ...... 9,442,370 CA ...... SAN JOAQUIN COUNTY ...... 9,030,385 CA ...... BAKERSFIELD ...... 8,982,836 CA ...... SAN BERNARDINO ...... 8,408,558 CA ...... OAKLAND ...... 8,250,668 CA ...... MODESTO ...... 8,109,274 CA ...... PALMDALE ...... 7,434,301 CA ...... FRESNO COUNTY ...... 7,037,465 CA ...... LANCASTER ...... 6,983,533 CA ...... RIVERSIDE ...... 6,581,916 CA ...... CONTRA COSTA COUNTY ...... 6,019,051 CA ...... FONTANA ...... 5,953,309 CA ...... SANTA ANA ...... 5,795,151 CA ...... SAN JOSE ...... 5,628,283 CA ...... RIALTO ...... 5,461,574 CA ...... VICTORVILLE ...... 5,311,363 CA ...... SAN DIEGO COUNTY ...... 5,144,152 CA ...... LONG BEACH ...... 5,070,310 CA ...... HESPERIA ...... 4,590,719 CA ...... ANTIOCH ...... 4,049,228 CA ...... CORONA ...... 3,602,842 CA ...... POMONA ...... 3,530,825 CA ...... RICHMOND ...... 3,346,105 CA ...... ORANGE COUNTY ...... 3,285,926 CA ...... COMPTON ...... 3,242,817 CA ...... APPLE VALLEY ...... 3,064,836 CA ...... HEMET ...... 2,888,473 CA ...... CHULA VISTA ...... 2,830,072 CA ...... ONTARIO ...... 2,738,309 CA ...... VALLEJO ...... 2,657,861 CA ...... ANAHEIM ...... 2,653,455 CA ...... ELK GROVE ...... 2,389,651 CA ...... VISALIA ...... 2,388,331 CA ...... RANCHO CUCAMONGA ...... 2,133,397 CA ...... ALAMEDA COUNTY ...... 2,126,927 CO ...... COLORADO STATE PROGRAM ...... 34,013,566 CO ...... DENVER ...... 6,060,170 CO ...... ADAMS COUNTY ...... 4,600,211 CO ...... AURORA ...... 4,474,097 CO ...... COLORADO SPRINGS ...... 3,904,989 CT ...... CONNECTICUT STATE PROG ...... 25,043,385 DC ...... WASHINGTON ...... 2,836,384 DE ...... DELAWARE STATE PROGRAM ...... 19,600,000 FL ...... FLORIDA STATE PROGRAM ...... 91,141,478 FL ...... MIAMI-DADE COUNTY ...... 62,207,200 FL ...... ORANGE COUNTY ...... 27,901,773 FL ...... PALM BEACH COUNTY ...... 27,700,340 FL ...... JACKSONVILLE-DUVAL ...... 26,175,317 FL ...... PASCO COUNTY ...... 19,495,805 FL ...... HILLSBOROUGH COUNTY ...... 19,132,978 FL ...... LEE COUNTY ...... 18,243,867 FL ...... BROWARD COUNTY ...... 17,767,589 FL ...... POLK COUNTY ...... 14,586,258 FL ...... TAMPA ...... 13,600,915 FL ...... PORT ST LUCIE ...... 13,523,132 FL ...... MIAMI ...... 12,063,702 FL ...... ST PETERSBURG ...... 9,498,962 FL ...... MIRAMAR ...... 9,312,658 FL ...... PINELLAS COUNTY ...... 8,063,759 FL ...... HOLLYWOOD ...... 7,534,603 FL ...... COLLIER COUNTY ...... 7,306,755 FL ...... SARASOTA COUNTY ...... 7,140,861 FL ...... CAPE CORAL ...... 7,065,484 FL ...... SEMINOLE COUNTY ...... 7,019,514 FL ...... MIAMI GARDENS CITY ...... 6,866,119 FL ...... ORLANDO ...... 6,730,263 FL ...... DELTONA ...... 6,635,909 FL ...... MARION COUNTY ...... 6,324,055 FL ...... HIALEAH ...... 5,385,046 FL ...... MANATEE COUNTY ...... 5,283,122 FL ...... BREVARD COUNTY ...... 5,269,667 FL ...... VOLUSIA COUNTY ...... 5,222,831

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NSP grant State Grantee name amount

FL ...... PALM BAY ...... 5,208,104 FL ...... TAMARAC ...... 4,772,218 FL ...... ESCAMBIA COUNTY ...... 4,565,918 FL ...... PEMBROKE PINES ...... 4,398,575 FL ...... POMPANO BEACH ...... 4,366,157 FL ...... WEST PALM BEACH ...... 4,349,546 FL ...... LAUDERHILL ...... 4,293,288 FL ...... FT LAUDERDALE ...... 3,700,096 FL ...... SUNRISE ...... 3,494,986 FL ...... CORAL SPRINGS ...... 3,378,142 FL ...... LAKE COUNTY ...... 3,136,967 FL ...... BOYNTON BEACH ...... 2,963,311 FL ...... HOMESTEAD CITY ...... 2,887,010 FL ...... NORTH MIAMI ...... 2,847,089 FL ...... KISSIMMEE ...... 2,371,749 FL ...... FT MYERS ...... 2,297,318 FL ...... MARGATE ...... 2,106,555 FL ...... PLANTATION ...... 2,016,309 FL ...... LAKELAND ...... 2,005,781 FL ...... DEERFIELD BEACH ...... 2,005,699 GA ...... GEORGIA STATE PROGRAM ...... 77,085,125 GA ...... DE KALB COUNTY ...... 18,545,013 GA ...... ATLANTA ...... 12,316,082 GA ...... GWINNETT COUNTY ...... 10,507,827 GA ...... FULTON COUNTY ...... 10,333,410 GA ...... CLAYTON COUNTY ...... 9,732,126 GA ...... COBB COUNTY ...... 6,889,134 GA ...... COLUMBUS-MUSCOGEE ...... 3,117,039 GA ...... AUGUSTA ...... 2,473,064 GA ...... SAVANNAH ...... 2,038,631 HI ...... HAWAII STATE PROGRAM ...... 19,600,000 IA ...... IOWA STATE PROGRAM ...... 21,607,197 ID ...... IDAHO STATE PROGRAM ...... 19,600,000 IL ...... CHICAGO ...... 55,238,017 IL ...... ILLINOIS STATE PROGRAM ...... 53,113,044 IL ...... COOK COUNTY ...... 28,156,321 IL ...... DU PAGE COUNTY ...... 5,176,438 IL ...... WILL COUNTY ...... 5,160,424 IL ...... LAKE COUNTY ...... 4,600,800 IL ...... JOLIET ...... 3,531,810 IL ...... MCCHENRY COUNTY ...... 3,085,695 IL ...... AURORA ...... 3,083,568 IL ...... KANE COUNTY ...... 2,576,369 IL ...... ROCKFORD ...... 2,287,004 IL ...... ST CLAIR COUNTY ...... 2,262,015 IL ...... ELGIN ...... 2,159,623 IL ...... CICERO ...... 2,078,351 IN ...... INDIANA STATE PROGRAM ...... 83,757,048 IN ...... INDIANAPOLIS ...... 29,051,059 IN ...... FORT WAYNE ...... 7,063,956 IN ...... LAKE COUNTY ...... 5,738,024 IN ...... SOUTH BEND ...... 4,098,521 IN ...... HAMMOND ...... 3,860,473 IN ...... GARY ...... 3,836,758 IN ...... EVANSVILLE ...... 3,605,204 IN ...... HAMILTON COUNTY ...... 2,343,868 IN ...... ELKHART ...... 2,251,346 IN ...... KOKOMO ...... 2,181,088 IN ...... ANDERSON ...... 2,141,795 IN ...... MUNCIE ...... 2,007,356 KS ...... KANSAS STATE PROGRAM ...... 20,970,242 KY ...... KENTUCKY STATE PROGRAM ...... 37,408,788 KY ...... LOUISVILLE ...... 6,973,721 LA ...... LOUISIANA STATE PROGRAM ...... 34,183,994 LA ...... BATON ROUGE ...... 2,308,848 LA ...... NEW ORLEANS ...... 2,302,208 MA ...... MASSACHUSETTS STATE PROG ...... 43,466,030 MA ...... BOSTON ...... 4,230,191 MA ...... SPRINGFIELD ...... 2,566,272 MA ...... WORCESTER ...... 2,390,858 MA ...... BROCKTON ...... 2,152,979 MD ...... MARYLAND STATE PROGRAM ...... 28,778,469 MD ...... PRINCE GEORGES COUNTY ...... 10,883,234

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NSP grant State Grantee name amount

MD ...... BALTIMORE ...... 4,112,239 MD ...... BALTIMORE COUNTY ...... 2,596,880 ME ...... MAINE STATE PROGRAM ...... 19,600,000 MI ...... MICHIGAN STATE PROGRAM ...... 98,653,915 MI ...... DETROIT ...... 47,137,690 MI ...... WAYNE COUNTY ...... 25,909,153 MI ...... OAKLAND COUNTY ...... 17,383,776 MI ...... MACOMB COUNTY ...... 9,765,375 MI ...... GENESEE COUNTY ...... 7,506,343 MI ...... GRAND RAPIDS ...... 6,187,686 MI ...... LANSING ...... 5,992,160 MI ...... WARREN ...... 5,829,447 MI ...... FLINT ...... 4,224,621 MI ...... KENT COUNTY ...... 3,912,796 MI ...... PONTIAC ...... 3,542,002 MI ...... SOUTHFIELD ...... 3,241,457 MI ...... REDFORD ...... 3,041,364 MI ...... WASHTENAW COUNTY ...... 3,024,719 MI ...... TAYLOR ...... 2,495,056 MI ...... STERLING HEIGHTS ...... 2,454,961 MI ...... DEARBORN ...... 2,436,246 MI ...... LINCOLN PARK ...... 2,417,688 MI ...... CANTON TWP ...... 2,182,988 MI ...... CLINTON TWP ...... 2,147,608 MI ...... WESTLAND ...... 2,061,722 MI ...... WATERFORD TOWNSHIP ...... 2,014,489 MN ...... MINNESOTA STATE PROGRAM ...... 38,849,929 MN ...... MINNEAPOLIS ...... 5,601,967 MN ...... ST PAUL ...... 4,302,249 MN ...... HENNEPIN COUNTY ...... 3,885,729 MN ...... DAKOTA COUNTY ...... 2,765,991 MN ...... ANOKA COUNTY ...... 2,377,310 MO ...... MISSOURI STATE PROGRAM ...... 42,664,187 MO ...... ST LOUIS COUNTY ...... 9,338,562 MO ...... KANSAS CITY ...... 7,323,734 MO ...... ST LOUIS ...... 5,532,792 MS ...... MISSISSIPPI STATE PROG ...... 43,151,914 MS ...... JACKSON ...... 3,116,049 MT ...... MONTANA STATE PROGRAM ...... 19,600,000 NC ...... NORTH CAROLINA STA PROG ...... 52,303,004 NC ...... CHARLOTTE ...... 5,431,777 ND ...... NORTH DAKOTA STATE PROG ...... 19,600,000 NE ...... NEBRASKA STATE PROGRAM ...... 19,600,000 NH ...... NEW HAMPSHIRE STATE PROG ...... 19,600,000 NJ ...... NEW JERSEY STATE PROGRAM ...... 51,470,620 NJ ...... NEWARK ...... 3,406,849 NJ ...... UNION COUNTY ...... 2,601,755 NJ ...... PATERSON ...... 2,266,641 NJ ...... JERSEY CITY ...... 2,153,431 NJ ...... BERGEN COUNTY ...... 2,096,194 NM ...... NEW MEXICO STATE PROGRAM ...... 19,600,000 NV ...... NEVADA STATE PROGRAM ...... 24,287,240 NV ...... CLARK COUNTY ...... 22,829,062 NV ...... LAS VEGAS ...... 14,775,270 NV ...... NORTH LAS VEGAS ...... 6,837,736 NV ...... HENDERSON ...... 3,205,044 NY ...... NEW YORK STATE PROGRAM ...... 54,556,464 NY ...... NEW YORK CITY ...... 24,257,740 NY ...... NASSAU COUNTY ...... 7,767,916 NY ...... SUFFOLK COUNTY ...... 5,681,443 NY ...... ISLIP TOWN ...... 3,720,392 NY ...... BABYLON TOWN ...... 2,170,909 NY ...... ORANGE COUNTY ...... 2,163,744 OH ...... OHIO STATE PROGRAM ...... 116,859,223 OH ...... COLUMBUS ...... 22,845,495 OH ...... CLEVELAND ...... 16,143,120 OH ...... TOLEDO ...... 12,270,706 OH ...... CUYAHOGA COUNTY ...... 11,212,447 OH ...... AKRON ...... 8,583,492 OH ...... CINCINNATI ...... 8,361,592 OH ...... HAMILTON COUNTY ...... 7,970,490 OH ...... MONTGOMERY COUNTY ...... 5,988,000 OH ...... DAYTON ...... 5,582,902

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NSP grant State Grantee name amount

OH ...... FRANKLIN COUNTY ...... 5,439,664 OH ...... BUTLER COUNTY ...... 4,213,742 OH ...... STARK COUNTY ...... 4,181,673 OH ...... SUMMIT COUNTY ...... 3,767,144 OH ...... CANTON ...... 3,678,562 OH ...... LAKE COUNTY ...... 3,402,859 OH ...... LORAIN ...... 3,031,480 OH ...... YOUNGSTOWN ...... 2,708,206 OH ...... EUCLID ...... 2,580,464 OH ...... ELYRIA ...... 2,468,215 OH ...... HAMILTON CITY ...... 2,385,315 OH ...... SPRINGFIELD ...... 2,270,009 OH ...... MIDDLETOWN ...... 2,144,379 OK ...... OKLAHOMA STATE PROGRAM ...... 29,969,459 OK ...... OKLAHOMA CITY ...... 2,882,282 OR ...... OREGON STATE PROGRAM ...... 19,600,000 PA ...... PENNSYLVANIA STATE PROG ...... 59,631,318 PA ...... PHILADELPHIA ...... 16,832,873 PA ...... ALLEGHENY COUNTY ...... 5,524,950 PA ...... ALLENTOWN ...... 2,113,456 PA ...... YORK COUNTY ...... 2,017,253 PA ...... PITTSBURGH ...... 2,002,958 PR ...... PUERTO RICO STATE PROG ...... 19,600,000 RI ...... RHODE ISLAND STATE PROG ...... 19,600,000 SC ...... SOUTH CAROLINA STA PROG ...... 44,673,692 SC ...... GREENVILLE COUNTY ...... 2,262,856 SC ...... RICHLAND COUNTY ...... 2,221,859 SD ...... SOUTH DAKOTA STATE PROG ...... 19,600,000 TN ...... TENNESSEE STATE PROGRAM ...... 49,360,421 TN ...... MEMPHIS ...... 11,506,415 TN ...... NASHVILLE-DAVIDSON ...... 4,051,398 TN ...... SHELBY COUNTY ...... 2,752,708 TN ...... KNOXVILLE ...... 2,735,980 TN ...... CHATTANOOGA ...... 2,113,727 TX ...... TEXAS STATE PROGRAM ...... 101,996,848 TX ...... HARRIS COUNTY ...... 14,898,027 TX ...... HOUSTON ...... 13,542,193 TX ...... SAN ANTONIO ...... 8,635,899 TX ...... DALLAS ...... 7,932,555 TX ...... FORT WORTH ...... 6,307,433 TX ...... DALLAS COUNTY ...... 4,405,482 TX ...... TARRANT COUNTY ...... 3,293,388 TX ...... EL PASO ...... 3,032,465 TX ...... HIDALGO COUNTY ...... 2,867,057 TX ...... FORT BEND COUNTY ...... 2,796,177 TX ...... GRAND PRAIRIE ...... 2,267,290 TX ...... MESQUITE ...... 2,083,933 TX ...... ARLINGTON ...... 2,044,254 TX ...... GARLAND ...... 2,040,196 UT ...... UTAH STATE PROGRAM ...... 19,600,000 VA ...... VIRGINIA STATE PROGRAM ...... 38,749,931 VA ...... PRINCE WILLIAM COUNTY ...... 4,134,612 VA ...... FAIRFAX COUNTY ...... 2,807,300 VT ...... VERMONT STATE PROGRAM ...... 19,600,000 WA ...... WASHINGTON STATE PROGRAM ...... 28,159,293 WI ...... WISCONSIN STATE PROGRAM ...... 38,779,123 WI ...... ...... 9,197,465 WV ...... WEST VIRGINIA STATE PROG ...... 19,600,000 WY ...... WYOMING STATE PROGRAM ...... 19,600,000 XX ...... INSULAR AREAS ...... 1,144,289

[FR Doc. E8–23476 Filed 10–3–08; 8:45 am] BILLING CODE 4210–67–P

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Part IV

Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources; Proposed Rule

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ENVIRONMENTAL PROTECTION Standards for Hazardous Air Pollutants Publicly available docket materials are AGENCY for Chemical Manufacturing Area available either electronically in http:// Sources Docket, Environmental www.regulations.gov or in hard copy at 40 CFR Part 63 Protection Agency, EPA Docket Center, the National Emission Standards for [EPA–HQ–OAR–2008–0334; FRL–8720–8] Mailcode: 2822T, 1200 Pennsylvania Hazardous Air Pollutants for Chemical Ave., NW., Washington, DC 20460. Manufacturing Area Sources Docket at RIN 2060–AM19 Please include a total of two copies. We the EPA Docket and Information Center, request that a separate copy also be sent EPA West, Room 3334, 1301 National Emission Standards for to the contact person identified below Constitution Ave., NW., Washington, Hazardous Air Pollutants for Chemical (see FOR FURTHER INFORMATION CONTACT). DC. The Public Reading Room is open Manufacturing Area Sources • Hand Delivery: In person or by from 8:30 a.m. to 4:30 p.m., Monday AGENCY: Environmental Protection courier, deliver comments to: EPA through Friday, excluding legal Agency (EPA). Docket Center, Public Reading Room, holidays. The telephone number for the EPA West Building, Room 3334, 1301 Public Reading Room is (202) 566–1744, ACTION: Proposed rule. Constitution Ave., NW., Washington, and the telephone number for the Air SUMMARY: EPA is proposing national DC 20004. Such deliveries are only Docket is (202) 566–1742. emissions standards for hazardous air accepted during the Docket’s normal FOR FURTHER INFORMATION CONTACT: Mr. pollutants for nine area source hours of operation, and special Randy McDonald, Office of Air Quality categories in the chemical arrangements should be made for Planning and Standards, Sector Policies manufacturing sector: Agricultural deliveries of boxed information. and Programs Division, Coatings and Chemicals and Pesticides Instructions: Direct your comments to Chemicals Group (E143–01), Manufacturing, Cyclic Crude and Docket ID No. EPA–HQ–OAR–2008– Environmental Protection Agency, Intermediate Production, Industrial 0334. EPA’s policy is that all comments Research Triangle Park, North Carolina Inorganic Chemical Manufacturing, received will be included in the public 27711, telephone number: (919) 541– Industrial Organic Chemical docket without change and may be 5402; fax number: (919) 541–0246; e- Manufacturing, Inorganic Pigments made available online at http:// mail address: [email protected]. www.regulations.gov, including any Manufacturing, Miscellaneous Organic SUPPLEMENTARY INFORMATION: Outline. personal information provided, unless Chemical Manufacturing, Plastic The information in this preamble is the comment includes information Materials and Resins Manufacturing, organized as follows: Pharmaceutical Production, and claimed to be confidential business information (CBI) or other information I. General Information Synthetic Rubber Manufacturing. The A. Does this action apply to me? proposed standards and associated whose disclosure is restricted by statute. Do not submit information that you B. What should I consider as I prepare my requirements for the nine area source comments to EPA? consider to be CBI or otherwise categories are combined in one subpart. C. Where can I get a copy of this protected through www.regulations.gov, The proposed emissions standards for document? or e-mail. The www.regulations.gov Web new and existing sources are based on D. When would a public hearing occur? site is an ‘‘anonymous access’’ system, II. Background Information for the Proposed EPA’s determination regarding the which means EPA will not know your Area Source Standards generally available control technology identity or contact information unless A. What is the statutory authority and or management practices for the nine you provide it in the body of your regulatory approach for the proposed area source categories. EPA is co- comment. If you send an e-mail standards? proposing an alternative to the B. What area source categories are affected comment directly to EPA without going requirements for process vents emitting by the proposed standards? through www.regulations.gov, your C. How did we gather information for this metal hazardous air pollutants. The e-mail address will be automatically alternative would set a higher size proposed standard? captured and included as part of the D. What are the production processes, threshold for large metal hazardous air comment that is placed in the public emission points, and available controls? pollutant process vents. docket and made available on the III. Summary of the Proposed Standards DATES: Comments must be received on Internet. If you submit an electronic A. Do the proposed standards apply to my or before November 5, 2008, unless a comment, EPA recommends that you source? B. When must I comply with the proposed public hearing is requested by October include your name and other contact 16, 2008. If a hearing is requested on the standards? information in the body of your C. What are the proposed emissions proposed rule, written comments must comment and with any disk or CD–ROM standards? be received by November 20, 2008. you submit. If EPA cannot read your D. What are the initial and continuous Under the Paperwork Reduction Act, comment due to technical difficulties compliance requirements? comments on the information collection and cannot contact you for clarification, E. What are the notification, recordkeeping, provisions must be received by the EPA may not be able to consider your and reporting requirements? Office of Management and Budget comment. Electronic files should avoid IV. Rationale for This Proposed Rule (OMB) on or before November 5, 2008. A. How did we subcategorize emission the use of special characters, any form sources? ADDRESSES: Submit your comments, of encryption, and be free of any defects B. How did we determine GACT? identified by Docket ID No. EPA–HQ– or viruses. C. How did we select compliance OAR–2008–0334, by one of the Docket: All documents in the docket requirements? following methods: are listed in the www.regulations.gov D. Why did we decide to exempt these area • http://www.regulations.gov: Follow index. Although listed in the index, source categories from title V permitting the on-line instructions for submitting some information is not publicly requirements? available, e.g., CBI or other information V. Impacts of the Proposed Standards comments. A. What are the air impacts? • E-mail: [email protected]. whose disclosure is restricted by statute. • B. What are the cost impacts? Fax: (202) 566–9744. Certain other material, such as C. What are the economic impacts? • Mail: U.S. Postal Service: send copyrighted material, will be publicly D. What are the non-air health, comments to: National Emission available only in hard copy form. environmental, and energy impacts?

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VI. Statutory and Executive Order Reviews I. General Information standards are applicable to a chemical A. Executive Order 12866: Regulatory manufacturing area source, the A. Does this action apply to me? Planning and Review standards apply to all organic HAP B. Paperwork Reduction Act C. Regulatory Flexibility Act The regulated categories and entities emissions and all metal HAP emissions D. Unfunded Mandates Reform Act potentially affected by this proposed from all chemical manufacturing E. Executive Order 13132: Federalism action are shown in the table below. operations at the area source. The F. Executive Order 13175 This proposed rule applies to chemical proposed standards do not apply to G. Executive Order 13045: Protection of manufacturing operations at any of nine hydrogen halide and halogen HAP (i.e., Children from Environmental Health and Safety Risks chemical manufacturing area source hydrogen chloride, chlorine, and 1 H. Executive Order 13211: Actions categories that process, use, produce, or hydrogen fluoride) at affected sources, Concerning Regulations That generate any of the following hazardous except when these HAP are generated in Significantly Affect Energy Supply, air pollutants (HAP): 1,3-butadiene; 1,3- combustion-based emission control Distribution, or Use dichloropropene; acetaldehyde; devices that are used to meet the I. National Technology Transfer chloroform; ethylene dichloride; proposed standards for organic HAP. Advancement Act J. Executive Order 12898: Federal Actions methylene chloride; hexachlorobenzene; For additional information about to Address Environmental Justice in hydrazine; quinoline; or compounds of applicability provisions, see section Minority Populations and Low-Income arsenic, cadmium, chromium, lead, III.A of this preamble. Populations manganese, or nickel. If the proposed

Industry category NAICS Examples of regulated entities code 1

Chemical manufac- 325 Chemical manufacturing area sources that process, use, or produce any of the HAP subject to this subpart ex- turing. cept for: (1) Production operations classified in NAICS 325222, 325314, or 325413; (2) production operations subject to standards for other listed area source categories 2 in NAICS 325; (3) certain fabricating operations; (4) manufacture of photographic film, paper, and plate where material is coated or contains chemicals (only the manufacture of the photographic chemicals would be regulated); and (5) manufacture of radioactive ele- ments or isotopes, radium chloride, radium luminous compounds, strontium, and uranium. 1 North American Industry Classification System. 2 All of the other source categories in NAICS 325 for which other standards apply are: Acrylic Fibers/Modacrylic Fibers Production, Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium Compounds, Polyvinyl Chloride and Copolymers Production, Paint and Allied Coatings, and Mercury Cell Chlor-Alkali Manufacturing.

Area sources in NAICS 325 not information that you claim to be CBI. exchange in various areas of air specifically identified in the chart above For CBI information in a disk or CD– pollution control. are affected by this action. To determine ROM that you mail to EPA, mark the D. When would a public hearing occur? whether your chemical manufacturing outside of the disk or CD–ROM as CBI area source would be regulated by this and then identify electronically within If anyone contacts EPA requesting to action, you should examine the the disk or CD–ROM the specific speak at a public hearing concerning the applicability criteria in 40 CFR 63.11494 information that is claimed as CBI. In proposed rule by October 16, 2008, we of subpart VVVVVV (NESHAP for addition to one complete version of the will hold a public hearing on October Chemical Manufacturing Area Sources). comment that includes information 21, 2008. If you are interested in If you have any questions regarding the claimed as CBI, a copy of the comment attending the public hearing, contact applicability of this action to a that does not contain the information Ms. Janet Eck at (919) 541–7946 to particular entity, consult either the air claimed as CBI must be submitted for verify that a hearing will be held. If a permit authority for the entity or your inclusion in the public docket. public hearing is held, it will be held at EPA regional representative as listed in Information so marked will not be 10 a.m. at the EPA’s Environmental 40 CFR 63.13 of subpart A (General disclosed except in accordance with Research Center Auditorium, Research Provisions). procedures set forth in 40 CFR part 2. Triangle Park, NC, or an alternate site B. What should I consider as I prepare C. Where can I get a copy of this nearby. my comments to EPA? document? II. Background Information for the Do not submit information containing In addition to being available in the Proposed Area Source Standards CBI to EPA through docket, an electronic copy of this A. What is the statutory authority and www.regulations.gov or e-mail. Send or proposed action will also be available regulatory approach for the proposed deliver information identified as CBI on the Worldwide Web (WWW) through standards? only to the following address: Roberto the Technology Transfer Network Morales, OAQPS Document Control (TTN). Following signature, a copy of Section 112(d) of the Clean Air Act Officer (C404–02), Office of Air Quality this proposed action will be posted on (CAA) requires EPA to establish Planning and Standards, Environmental the TTN’s policy and guidance page for national emission standards for Protection Agency, Research Triangle newly proposed or promulgated rules at hazardous air pollutants (NESHAP) for Park, North Carolina 27711, Attention the following address: http:// both major and area sources of HAP that Docket ID EPA–HQ–OAR–2008–0334. www.epa.gov/ttn/oarpg/. The TTN are listed for regulation under CAA Clearly mark the part or all of the provides information and technology section 112(c). A major source emits or

1 The affected source is the chemical all process equipment and activities that process, racks, cooling tower systems, wastewater systems, manufacturing operations at area sources in one of use, produce, or generate any of the HAP listed in and equipment associated with the production of the nine source categories subject to this proposed Table 1 of this subpart. Chemical manufacturing chemicals at an area source subject to the proposed rule. Chemical manufacturing operations include operations also includes all storage tanks, transfer rule.

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has the potential to emit 10 tons per to area sources. In appropriate anhydrous ammonia, nitric acid, year (tpy) or more of any single HAP or circumstances, we may also consider ammonium nitrate, ammonium sulfate, 25 tpy or more of any combination of technologies and practices at area and urea, phosphoric acid, superphosphates, HAP. An area source is a stationary major sources in similar categories to ammonium phosphates, and calcium source that is not a major source. determine whether such technologies metaphosphates. The source category Section 112(k)(3)(B) of the CAA calls and practices could be considered also includes the formulation and for EPA to identify at least 30 HAP that, generally available for the area source preparation of ready-to-use agricultural as a result of emissions of area sources, category at issue. Finally, as we have and household pest control chemicals pose the greatest threat to public health already noted, in determining GACT for from technical chemicals or in the largest number of urban areas. a particular area source category, we concentrates, the production of EPA implemented this provision in consider the costs and economic concentrates which require further 1999 in the Integrated Urban Air Toxics impacts of available control processing before use as agricultural Strategy (64 FR 38715, July 19, 1999). technologies and management practices pesticides, and the manufacturing or Specifically, in the Strategy, EPA on that category. formulating of other agricultural identified 30 HAP that pose the greatest We are proposing these national chemicals such as minor or trace potential health threat in urban areas, emission standards in response to a elements and soil conditioners. and these HAP are referred to as the ‘‘30 court-ordered deadline that requires Organic Chemical Production. The urban HAP.’’ Section 112(c)(3) requires EPA to issue standards for 10 area cyclic crude and intermediate EPA to list sufficient categories or source categories listed pursuant to production, industrial organic chemical subcategories of area sources to ensure section 112(c)(3) and (k) by December manufacturing, and miscellaneous that area sources representing 90 15, 2008 (Sierra Club v. Johnson, no. organic chemical manufacturing source percent of the emissions of the 30 urban 01–1537, D.D.C., March 2006). As part categories are discussed collectively HAP are subject to regulation. We of our effort to meet this deadline, we because there is considerable overlap in implemented these requirements are proposing in this action the the NAICS codes that apply to these through the Integrated Urban Air Toxics NESHAP for the nine area source source categories. These source Strategy (64 FR 38715, July 19, 1999). A categories that are described in section categories are designated by NAICS primary goal of the Strategy is to II.B of this preamble. Another codes 32511 (petrochemical achieve a 75 percent reduction in cancer rulemaking will include standards for manufacturing), 325132 (synthetic incidence attributable to HAP emitted the remaining source category that is organic dye and pigment from stationary sources. due in December 2008. manufacturing), 32519 (other basic organic chemical manufacturing), Under CAA section 112(d)(5), we may B. What area source categories are 325221 (cellulosic organic fiber elect to promulgate standards or affected by the proposed standards? requirements for area sources ‘‘which manufacturing), and 3256 (soap, provide for the use of generally This proposed NESHAP affects cleaning compound, and toilet available control technologies or chemical manufacturing operations at preparation manufacturing). The source management practices by such sources nine area source categories: (1) category also includes organic gases to reduce emissions of hazardous air Agricultural Chemicals and Pesticides designated by NAICS code 325120 pollutants.’’ Additional information on Manufacturing; (2) Cyclic Crude and (industrial gas manufacturing), and it Intermediate Production; (3) Industrial generally available control technologies includes production of chemicals such Inorganic Chemical Manufacturing; (4) or management practices (GACT) is as explosives and photographic Industrial Organic Chemical found in the Senate report on the chemicals designated by NAICS code Manufacturing; (5) Inorganic Pigments legislation (Senate report Number 101– 3259 (other chemical product and Manufacturing; (6) Miscellaneous 228, December 20, 1989), which preparation manufacturing). Organic Chemical Manufacturing; (7) describes GACT as: Raw materials for this industry Plastic Materials and Resins include, for example, refined petroleum * * * methods, practices and techniques Manufacturing; (8) Pharmaceutical chemicals, coal tars, and wood. The which are commercially available and Production; and (9) Synthetic Rubber industry manufactures a wide variety of appropriate for application by the sources in Manufacturing. The inclusion of each of final products as well as numerous the category considering economic impacts these source categories on the section and the technical capabilities of the firms to chemicals that are used as feedstocks to operate and maintain the emissions control 112(c)(3) area source category list is produce these final products and systems. based on 1990 emissions data, as EPA products in other chemical used 1990 as the baseline year for that manufacturing source categories. Consistent with the legislative history, listing. In this preamble and proposed Examples of types of products include we can consider costs and economic rule we refer to the nine source solvents, organic dyes and pigments, impacts in determining GACT, which is categories collectively as chemical plasticizers, alcohols, detergents, and particularly important when developing manufacturing area sources. flavorings. regulations for source categories, like Descriptions of the nine source Industrial Inorganic Chemical this one, that have many small categories are as follows: Manufacturing. The industrial inorganic businesses. Agricultural Chemicals and Pesticides chemical manufacturing source category Determining what constitutes GACT Manufacturing. The agricultural includes manufacturing of inorganic involves considering the control chemicals and pesticides manufacturing gases that are designated by NAICS code technologies and management practices source category is designated by NAICS 325120 (industrial gas manufacturing), that are generally available to the area codes 325311 (nitrogenous fertilizer manufacturing of inorganic dyes that are sources in the source category. We also manufacturing), 325312 (phosphatic designated by NAICS code 325131 consider the standards applicable to fertilizer manufacturing), and 325320 (inorganic dye and pigment major sources in the same industrial (pesticide and other agricultural manufacturing), and most sector to determine if the control chemical manufacturing). Products of manufacturing designated by NAICS technologies and management practices this industry include nitrogenous and code 32518 (other basic inorganic are transferable and generally available phosphatic fertilizer materials including chemical manufacturing). Exceptions to

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production designated by NAICS code polymerization or copolymerization. For that, collectively, the chemical 32518 include carbon black and this source category, an elastomer is manufacturing area sources emit about mercury cell chlor-alkali production, defined as a rubber-like material capable 450 tpy of the chemical manufacturing which are separate source categories. of vulcanization, such as copolymers of organic urban HAP (including 0.4 tpy of Inorganic Pigment Manufacturing. butadiene and styrene, copolymers of hydrazine) and 51 tpy of the chemical Inorganic pigments are part of NAICS butadiene and acrylonitrile, manufacturing metal urban HAP. Total code 325131 (Inorganic Dye and polybutadienes, chloroprene rubbers, organic and metal HAP emissions from Pigment Manufacturing). The majority and isobutylene-isoprene copolymers. the 450 chemical manufacturing area of inorganic pigments are oxides, We listed Cyclic Crude and sources that emit any of the chemical sulfides, oxide hydroxides, silicates, Intermediate Production, Industrial manufacturing urban HAP are estimated sulfates, or carbonates that normally Inorganic Chemical Manufacturing, to be about 1,450 tons/yr. consist of single component particles. Industrial Organic Chemical The inorganic pigment manufacturing Manufacturing, Plastic Materials and C. How did we gather information for processes can generally be divided Resins Manufacturing, and Synthetic this proposed standard? between those that use partial Rubber Manufacturing as area source We gathered information for this combustion and those that use pure categories under CAA section 112(c)(3) proposed rule from the 2002 NEI, the pyrolysis. Inorganic pigments generally as part of the 1999 Integrated Urban 2002 and 2004 TRI; company Web sites, are used to impart colors to a variety of Strategy (64 FR 38721, July 19, 1999). published literature, and current State compounds. They may also impart On June 26, 2002, we amended the area and Federal regulations. properties of rust inhibition, rigidity, source category list by adding source We developed an initial list of area and abrasion resistance. Inorganic categories, including Agricultural sources in these categories based on pigments are generally insoluble and Chemicals and Pesticides facilities in the 2002 NEI database that remain unchanged physically and Manufacturing, Miscellaneous Organic were designated as area sources and chemically when mixed with a carrier. Chemical Manufacturing, and classified with any of the SIC codes for Pigment manufacturers supply Pharmaceutical Production (67 FR chemical manufacturing. We added inorganic colors in a variety of forms 43112, 43113). On November 22, 2002, facilities classified as major sources in including powders, pastes, granules, we added Inorganic Pigments the NEI database to the list of area slurries, and suspensions. Pigments are Manufacturing to the area source sources if reported emissions were used in the manufacture of paints and category list (67 FR 70427, 70428). stains, printing inks, plastics, synthetic much less than major source threshold, These nine area source categories and no other information was available textiles, paper, cosmetics, contact encompass nearly all of the chemical lenses, soaps, detergents, wax, modeling to confirm the facility as a major source. manufacturing industry described in We also reviewed the TRI database and clay, chalks, crayons, artists’ colors, NAICS 325. concrete, masonry products, and we identified facilities classified with The urban HAP that must be regulated any of the chemical manufacturing ceramics. at chemical manufacturing area sources Pharmaceutical Production. The standard industrial classification (SIC) to achieve the section 112(c)(3) pharmaceutical manufacturing source codes that had emissions less than half requirement to regulate 90 percent of category consists of chemical the major source thresholds and added urban HAP are: production operations that produce these facilities to the list of area sources if they were not also listed in the NEI drugs and medication. These operations • 1,3-butadiene • methylene chlo- include chemical synthesis (deriving a database. We also removed facilities ride from the list based on information from drug’s active ingredient) and chemical • 1,3- • hexachlorobenzene formulation (producing a drug in its dichloropropene permits, company Web sites, and other final form). The source category is • acetaldehyde • hydrazine available resources that showed a designated by NAICS codes 325411 • chloroform • quinoline facility was closed, did not manufacture (medicinal and botanical • ethylene dichlo- • HAP metals: com- chemicals, or is a major source already manufacturing), 325412 (pharmaceutical ride pounds of arsenic, subject to MACT standards. preparation manufacturing), and 325414 cadmium, chro- Emission records in the NEI database mium, lead, man- were determined to be applicable to (biological product, except diagnostic, ganese, and nickel manufacturing). chemical manufacturing operations if Plastic Materials and Resins These urban HAP are hereafter the source classification code (SCC) was Manufacturing. This source category is collectively referred to as the ‘‘chemical specific to one of the chemical designated by NAICS code 325211 manufacturing urban HAP’’. The organic manufacturing industries (e.g., (plastics material and resin HAP and hydrazine, which is controlled pharmaceuticals manufacturing). We manufacturing). Examples of products in the same manner as the organic HAP, considered other records to be in this source category include epoxy are hereafter referred to as the applicable if the SIC code or the NEI resins, nylon resins, phenolic resins, ‘‘chemical manufacturing organic urban database MACT code was applicable for polyesters, polyethylene resins, and HAP’’. The metal HAP are hereafter the chemical manufacturing industry, styrene resins. The source category does referred to as the ‘‘chemical and the SCC was not clearly for non- not include polyvinyl chloride and manufacturing metal urban HAP.’’ chemical manufacturing operations copolymers production, which is a Based on information in the National such as external combustion or solvent separate source category. Emissions Inventory (NEI), the Toxics cold cleaners. Synthetic Rubber Manufacturing. The Release Inventory (TRI), and other We found that many of the records in synthetic rubber manufacturing source supplemental information, we estimate the NEI could not be readily assigned to category is designated by NAICS code that about 1,700 facilities are chemical one of the six types of emission points 325212 (synthetic rubber manufacturing area sources. subject to the proposed rule. Therefore, manufacturing). Facilities in this source Approximately 450 of these area sources to estimate emissions by emission point category manufacture synthetic rubber emit at least one of the chemical we used only the total organic HAP or vulcanizable elastomers by manufacturing urban HAP. We estimate emissions and total metal HAP

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emissions (and corresponding urban emissions may be in either vapor or potential controls are described in the HAP fractions) for each facility. We then particulate form depending on the following sections. disaggregated the total organic HAP temperature of the unit operation. They Continuous process vents. A emissions per facility to process vents, are not emitted from other emission continuous process vent is defined as storage tanks, equipment leaks, and points because emissions from other the point of discharge to the atmosphere wastewater systems assuming the emission points depend largely on (or the point of entry into a control average distribution for major sources evaporation of the pollutant. As metal- device, if any) of a gas stream that meets also applies to area sources. We based compounds have very low vapor three conditions: (1) It contains organic estimated organic HAP emissions from pressures, they are unlikely to be HAP, (2) some or all of the gas stream transfer operations and cooling towers emitted in significant amounts from originates from a unit operation that separately. other emission points. operates continuously, and (3) the gas Although emissions from transfer We reviewed State and other Federal stream flow is continuous. Typical operations may have been included in regulations that apply to the area and controls include add-on control devices the NEI data, information from major major sources in the source categories such as thermal incinerators, sources indicates that these emissions for information to establish condensers, and carbon adsorbers. are small relative to emissions from the subcategories and control requirements Batch process vents. A batch process other emission points. Furthermore, for some of the emission points. For vent is defined as a point of discharge many chemical manufacturing facilities example, the new source performance from a single unit operation or from a do not ship liquids containing organic standards (NSPS) for volatile organic common header that connects multiple HAP by rail or tank truck. Therefore, we liquid storage vessels in 40 CFR part 60, unit operations through which an determined it was simpler to estimate subpart Kb apply to storage tanks at organic HAP-containing gas stream is, or emissions from transfer operations some area sources. Similarly, a has the potential to be, released to the separately. To estimate these emissions, regulation established by the Texas atmosphere. Specifically excluded from we assumed half of the area sources that Commission on Environmental Quality the proposed definition of a batch emit organic HAP have transfer which requires monitoring of process vent are continuous process operations and used the model transfer recirculating water in cooling tower vents and any other emission points that racks that were developed for facilities systems, also applies to some area are subject to other standards in the that are subject to the National Emission sources. We also reviewed standards for proposed rule (e.g., a storage tank or Standards for Organic Hazardous Air other source categories that would be wastewater treatment unit), gas streams Pollutants From the Synthetic Organic appropriate for and transferable to routed to a fuel gas system, and certain Chemical Manufacturing Industry operations at chemical manufacturing elephant trunk systems. Typical (SOCMI) for Process Vents, Storage area sources as well. For example, we controls include add-on control devices Vessels, Transfer Operations, and determined that management practices such as thermal incinerators, Wastewater, commonly known as the applicable to gasoline loading racks at condensers, and carbon adsorbers. ‘‘hazardous organic NESHAP’’ (HON) in gasoline distribution area sources are Metal HAP process vents. A metal 40 CFR part 63, subpart G. Because the equally feasible for transfer operations HAP process vent is defined as the point estimated emissions are so small, the at chemical manufacturing area sources. of discharge to the atmosphere (or inlet impact of adding them to the NEI to a control device, if any) of a metal D. What are the production processes, emissions estimate of nationwide HAP-containing gas stream from any emission points, and available controls? emissions from the source category is unit operation in chemical negligible. The chemical manufacturing industry manufacturing operations at an affected Few NEI records were clearly for produces a wide variety of chemicals source. If both metal HAP and organic cooling towers, and most of those using processes that involve numerous HAP are emitted, a metal HAP process focused on chlorine emissions, types of unit operations. Example vent may also be a continuous process presumably from the use of biocides. operations include reaction, mixing, vent or batch process vent. Typical Organic HAP emissions from cooling fermentation, extraction, distillation, controls include add-on control devices towers occur only as a result of a crystallization, washing, filtering, that control particulate matter (PM), malfunction in heat exchange drying, grinding, and calcining. such as fabric filters and electrostatic equipment that allows process fluid to Pollutants are emitted from these precipitators. leak into the recirculating cooling water operations through process vents. Storage tank. A storage tank is a tank and then volatilize as the contaminated Process vent emissions are generated or other vessel that is used to store water falls through the cooling tower. from a variety of activities including organic or inorganic HAP that are used Because the emissions are the result of equipment vessel purges with air or in or produced by the chemical malfunctions, we assumed that they are nitrogen, vapor displacement due to manufacturing operations, except for the not included in the NEI. Most area filling a vessel with liquid, gas following: Vessels permanently attached sources also are not monitoring cooling evolution from reactions, applying a to motor vehicles, pressure vessels, tower systems for leaks. However, if vacuum to a vessel, heating the contents vessels storing organic liquids that operation at area sources is similar to of a vessel, depressurizing a vessel, and contain HAP only as impurities, operation at major sources, it is likely drying a solid product. The proposed wastewater storage tanks, and process that cooling tower systems are a rule would regulate three types of tanks. Primary uses of storage tanks are significant source of organic HAP process vents: Continuous process to store raw materials, products, and emissions. Therefore, we estimated vents; batch process vents; and metal wastes. Bottoms receivers and surge emissions from cooling tower systems HAP process vents. Pollutants are also control vessels are also considered to be based on typical recirculation rates for emitted from five other types of storage tanks. Emissions from storage cooling towers at chemical equipment that are associated with or tanks occur as a result of vapor manufacturing sources and assumed support a process: Storage tanks, cooling displacement when the tank is being leak frequencies and concentrations. tower systems, equipment leaks, transfer filled and as a result of vapor expansion We assumed metal HAP are emitted operations, and wastewater systems. due to diurnal temperature changes. only from process vents. These Each of the types of emission points and Numerous controls are available for

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storage tanks. These include the use of vapors through a closed-vent system to area source of HAP and has chemical internal or external floating roofs, vapor a control device is another option. manufacturing operations that process, balancing to the tank truck or other Wastewater systems. Wastewater is use, produce, or generate any of the 15 vessel from which the storage tank is defined as water that contains at least chemical manufacturing urban HAP. filled, and routing emissions through a one of the 76 organic HAP listed in Chemical manufacturing operations closed-vent system to a control device Table 9 of 40 CFR part 63, subpart G, would be defined as the facility-wide such as a thermal incinerator. and is discarded from a chemical collection of chemical manufacturing Cooling tower systems. Cooling towers manufacturing process or control processing equipment and associated are used to cool warm water from heat device, except for the following: (1) storage tanks, cooling tower systems, exchangers that is then recirculated to Stormwater from segregated sewers; (2) transfer operations, and wastewater the heat exchangers. Process fluid that water from fire-fighting and deluge systems. The chemical manufacturing leaks into the recirculating water in the systems, including testing of such operations are the affected source. heat exchanger may be volatilized and systems; (3) spills; (4) water from safety The nine chemical manufacturing emitted to the atmosphere in the cooling showers; (5) samples of a size not area source categories include most of tower. Controls generally involve a greater than reasonably necessary for the the source categories that are classified monitoring program to identify elevated method of analysis that is used; (6) under NAICS 325. The proposed rule, levels of organic compounds or a equipment leaks; (7) wastewater drips therefore, specifies applicability based surrogate for the organic compounds in from procedures such as disconnecting on all chemical manufacturing the recirculating water. When a leak is hoses after cleaning lines; and (8) operations that are used to produce detected, the defect in the heat noncontact cooling water. Wastewater chemicals classified under NAICS 325 exchanger must be repaired to eliminate includes both process wastewater and except as described below. We believe the leak and the emissions. maintenance wastewater. Process this approach is more straightforward Equipment Leaks. Equipment leaks wastewater is wastewater which, during than listing all of the processes or occur from pumps, the packing around manufacturing or processing, comes into NAICS codes that are subject because it valve stems in valves, flanges and direct contact with or results from the is a more concise list, it ensures that no connectors that are not tight, pressure production or use of any raw material, processes are inadvertently left off the relief valves, open-ended lines, and intermediate product, finished product, list, and it automatically applies to new sampling connections. For pumps, by-product, or waste product. processes developed in the future. valves, and connectors, controls consist Maintenance wastewater is wastewater Manufacturing operations classified by of leak detection and repair (LDAR) that is generated by the draining of NAICS codes 325222, 325314, and programs in which the equipment is process fluid from components in a 325413 are not subject to this proposal inspected on a specified schedule. The chemical manufacturing process into an because these operations were not inspections may be either sensory-based individual drain system prior to or included in the listing of source or instrument-based. The programs also during maintenance activities. A categories as part of the Urban Strategy. define a leak differently, but all require wastewater system is the equipment in The proposal does not apply to mercury repair of detected leaks. Controls for which the wastewater is conveyed and cell chlor-alkali plants, chemical other types of equipment usually treated. Aerobic biological treatment to preparations, paint and allied products, involve the use of certain types of degrade the organic compounds is the polyvinyl chloride and copolymers equipment. For example, open-ended most common type of treatment. Other production, carbon black, chemical lines must be capped, and pressure types of treatment that remove organics manufacturing: chromium compounds, relief devices must be equipped with include anaerobic biological treatment, and acrylic and modacrylic fibers rupture disks or connected to a closed- incineration of the wastewater, and production, because those area source vent system that routes releases to a steam or air stripping followed by categories are subject to other section control device such as a flare. condensation or other techniques to 112(d) NESHAP. In addition, specific Transfer operations. Transfer manufacturing processes or chemical operations are defined as the loading recover or destroy the stripped compounds. Controls also include some processes that are not subject to the into tank trucks and rail cars of organic proposed rule include: form of emission suppression liquids that contain one or more organic (1) Manufacture of radioactive techniques between the discharge from HAP, as defined in Section 112(b) of the elements or isotopes, radium chloride, CAA, from a loading rack (also known the process and the treatment unit. radium luminous compounds, as a transfer rack) at an affected source. Examples of emission suppression strontium, and uranium; A loading rack is the system used to fill include water seals on individual (2) Manufacture of photographic film, tank trucks and rail cars at a single drains, covers on junction boxes and paper, and plate where the material is geographic site and includes the holding or treatment tanks, and closed coated with or contains chemicals; associated pumps, meters, shutoff sewer lines. Some regulations also (3) Fabricating operations (such as valves, relief valves, and other piping prohibit the discharge of multi-phase spinning or compressing a solid and valves. One widely used emission wastewater streams; these streams must polymer into its end use); compounding control technique is submerged loading, be separated into a water layer and one operations (in which blending, melting, which consists of either filling through or more organic layers by gravity and resolidifying of a solid polymer a drop tube that extends from the top of separation techniques, and only the product occur for the purpose of the vessel being loaded to within a few water phase may be discharged to the incorporating additives, colorants, or inches of the bottom of the vessel or by wastewater system. stabilizers); extrusion and drawing bottom loading through a built-in fill III. Summary of the Proposed operations (converting an already connection near the bottom of the Standards produced solid polymer into a different vessel. Another available control is shape by melting or mixing the polymer vapor balancing, which routes displaced A. Do the proposed standards apply to and then forcing it or pulling it through vapors from the tank truck or railcar my source? an orifice to create an extruded product) back to the storage tank from which it This proposed NESHAP applies to are generally not subject to this is being loaded. Routing displaced each existing or new facility that is an proposal. Such operations are subject if

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they involve processing with a HAP which provide for the use of GACT or FFFF) require control of hydrogen solvent or if an intended purpose of the management practices ‘‘to reduce halide and halogen HAP when a operation is to remove residual HAP emissions of hazardous air pollutants.’’ combustion device is used to control monomer; This provision does not limit the halogenated vent streams. The proposed (4) Research and development Agency’s authority to regulating only standards apply to hydrogen halide and facilities as defined in section 112(c)(7) those urban HAP emissions for which halogen HAP (i.e., hydrogen chloride, of the CAA; the category is needed to achieve the 90 chlorine, and hydrogen fluoride), but (5) Quality assurance/quality control percent requirement in section only when they are generated in a laboratories; 112(c)(3). combustion device that is used to meet (6) Boilers and incinerators (not used We are proposing to apply the a proposed standard. The proposed to comply with emission standards in standards in this manner for several controls for the chemical manufacturing the proposed rule), chillers and other reasons. The management practices urban HAP generally would achieve refrigerator systems, and other proposed in the rule are equally little or no co-control of the hydrogen equipment and activities that are not effective at controlling emissions of halide and halogen HAP. Simply directly involved (i.e., they operate HAP other than the chemical converting one HAP to another does not within a closed system and materials are manufacturing urban HAP and there is protect human health or the not combined with process fluids) in the little, if any, additional cost for environment. Therefore, these by- processing of raw materials or the implementing those management products of combustion are also subject manufacturing of a product or practices for all emissions sources (e.g., to proposed standards. intermediates used in production of the for process vents the annual cost of the product are not considered chemical management practices is less than $300/ B. When must I comply with the manufacturing operations. The above yr). In addition, where add-on controls proposed standards? operations are not covered by this rule are required under this rule, those Some facilities will have to design, because they were not part of the controls will reduce not only emissions purchase, and install add-on control inventory on which we based the listing of the chemical manufacturing HAP, but equipment to meet the proposed for the nine area source categories at also emissions of the organic and metal requirements. We are therefore issue in this rule. HAP that are not chemical proposing that owners or operators of To be subject to the proposed manufacturing urban HAP. Applying existing sources comply with all the standards, the chemical manufacturing the proposed standards only to the requirements of the area source operations also must process, use, chemical manufacturing urban HAP NESHAP by 3 years after the date of produce, or generate any of the 15 would require the facility to speciate publication of the final rule in the chemical manufacturing urban HAP. If HAP as opposed to measuring total HAP Federal Register. A new affected source the proposed standards are applicable to when demonstrating compliance. would be required to comply by the date a chemical manufacturing area source, Furthermore, many facilities route of publication of the final rule in the the proposed standards apply to all emissions from process vessels to Federal Register or upon initial startup, organic HAP emissions and all metal common vents and it would not be whichever is later. HAP emissions from chemical practical to control only urban HAP Area sources subject to the rule would manufacturing operations at the area emissions from those vents. We are also not be required to obtain a title V source. We are proposing that the proposing to apply the standard to all operating permit. Our reasons for standards for each type of emission HAP because many of the area sources exempting chemical manufacturing area point apply to all of the emission points emit a significant amount of HAP in sources from the requirement to obtain of that type in an affected source, addition to the chemical manufacturing a title V permit are discussed in section including those that do not emit a urban HAP (for example, the nationwide IV.D of this preamble. chemical manufacturing urban HAP ratio of total organic HAP to chemical (e.g., an area source may have two manufacturing organic HAP at affected C. What are the proposed emissions storage tanks, one containing methanol sources is more than 3:1), and all HAP standards? and the other containing methylene are hazardous to human health and the We are proposing management chloride, and, under the proposed rule, environment. practices as GACT for all process vents, both would be part of the affected We have determined that sources will storage tanks, equipment leaks, transfer source and subject to the storage tank not have to install different controls or operations, and cooling tower systems. standards). implement different management For specified subcategories, we are We recognize that standards limited practices to implement the proposed proposing management practices and to the emission points that emit the standards for all HAP and, as part of the emissions limitations or other chemical manufacturing urban HAP at GACT analysis, we have found that the requirements as GACT for continuous the nine area source categories would be costs of applying the proposed process vents, batch process vents, sufficient to satisfy the requirement in standards to all HAP are reasonable. For metal HAP process vents, cooling tower section 112(c)(3) and (k)(3)(B), that EPA all of these reasons, we propose to apply systems, and storage tanks. We are regulate sufficient source categories to these standards to all chemical proposing emission standards that account for 90 percent of the urban HAP manufacturing operations at the consist of two treatment requirements emissions. However, section 112 of the chemical manufacturing area source. We for one subcategory of wastewater CAA does not prohibit the Agency from request comment on the environmental, streams, and we are proposing a single regulating other HAP emitted from area cost, and economic impacts of this treatment requirement for a second sources listed pursuant to section approach. subcategory of wastewater streams. All 112(c)(3). Section 112(d)(5) states that Controlling halogenated HAP of the proposed standards are the same for area sources listed pursuant to emissions by burning in a combustion for new and existing affected sources. section 112(c), the Administrator may, device, as the proposed rule provides, in lieu of section 112(d)(2) ‘‘MACT’’ will generate hydrogen halide and 1. Continuous Process Vents standards, promulgate standards or halogen HAP. Several NESHAP (40 CFR As explained in section IV.A, we requirements ‘‘applicable to sources’’ part 63, subparts G, GGG, MMM, and distinguished continuous process vents

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based on a total resource effectiveness compliance using a continuous In addition to the management (TRE) index value of 1, which we emission monitoring system (CEMS). practices applicable to both believe is a reasonable proxy for the size For a combustion device, the proposed subcategories, we are proposing for the of the vent. Specifically, we created two rule requires that organic HAP subcategory of batch process vents with subcategories for continuous process emissions be reduced to an outlet total uncontrolled organic HAP vents: Those continuous process vents concentration of 20 ppmv measured as emissions equal to or greater than with a TRE value less than or equal to total organic compounds (TOC), and 19,000 lb/yr that the owner or operator one and those with a TRE greater than hydrogen halide or halogen HAP either: (1) Reduce the collective one. The TRE is a measure of HAP generated in the combustion device be uncontrolled organic HAP emissions emissions and control costs and is reduced to an outlet concentration of 20 (including hydrazine) from the sum of normalized to a value of 1.0 for a cost- ppmv or less. For a noncombustion all batch process vents within the effectiveness of $3,000 per ton of HAP device, organic HAP would be reduced chemical manufacturing operations by reduction. Facilities would determine to an outlet concentration of 50 ppmv or 90 percent by weight or greater or to 20 the TRE index value either at the point less measured as total organic HAP. In ppmv or less; (2) route emissions from of discharge to the atmosphere or after the MON, this alternative is allowed for batch process vents containing at least the last recovery device using both continuous process vents and 90 percent of the uncontrolled total procedures specified in 40 CFR 63.115 batch process vents and is equivalent to organic HAP through a closed vent of the HON. the 98 percent control requirement in system to a flare (except for halogenated We are proposing that owners and the MON. The same alternative standard vent streams); or (3) comply with operators implement management is in the NESHAP for pharmaceuticals combinations of the requirements in practices for all continuous process production and pesticide active items 1 and 2 for different groups of vents. The management practices ingredient production (40 CFR part 63, batch process vents. As an alternative, consist of requirements to check the subparts GGG and MMM). the proposed rule allows an owner or integrity of the process equipment once operator to comply with the alternative per quarter, to repair process equipment 2. Batch Process Vents standard as described in section III.C.1 as necessary to eliminate leaks, and to As explained in section IV.A, we of this preamble. These alternatives operate the process equipment with all considered the different sizes and types provide equivalent levels of emission openings or access points covered or of batch process vents in chemical control. with closure mechanisms in the closed manufacturing operations and Facilities would estimate the sum of position, except as necessary for established subcategories based on the typical uncontrolled organic HAP operator access. If a leak is detected, the annual emissions to reflect the emissions for all emission episodes owner or operator would be required to combined factors. Specifically, we using equations and other procedures repair it within 15 calendar days of created two subcategories for batch specified in 40 CFR part 63, subpart FFFF and the National Emission detection, unless a reasonable process vents: Those batch process justification for delay exists and is Standards for Pharmaceuticals vents that emit 19,000 lb/yr or greater of documented. The owner or operator Production (40 CFR part 63, subpart organic HAP and those that emit less must provide notification of a delay in GGG). The proposed rule includes 3 than 19,000 lb/yr of organic HAP. repair in the semiannual report. These alternatives to the requirement to Facilities would determine annual management practices are the only estimate batch process vent emissions emissions using test data or procedures proposed emission requirements for the from each process. First, although actual in subparts GGG and FFFF of part 63 or subcategory of continuous process vents emissions may vary from one batch to estimating emissions based on the with a TRE value greater than 1. another for a given process, the emissions for the worst-case batch For the subcategory of continuous proposed rule allows the owner or process vents with a TRE value less than process. operator to estimate emissions for a or equal to 1, we are proposing that the We are proposing that owners and typical batch and assume those owner or operator reduce emissions of operators implement management emissions apply to each batch. Second, organic HAP (including hydrazine) by practices for all batch process vents. The as an alternative to estimating emissions 95 percent by weight or greater or to 20 management practices consist of for a standard batch of each process, the parts per million by volume (ppmv) or requirements to check the integrity of proposed rule allows the owner or less. Because flares achieve greater than the process equipment once per quarter, operator to determine emissions only for 95 percent reduction, the owner or to repair process equipment as a typical batch in the process that has operator may reduce emissions of necessary to eliminate leaks, and to the highest emissions and assume that organic HAP by routing emissions operate the process equipment with all those emissions apply to batches in all through a closed vent system to a flare. openings or access points covered or other processes. Process knowledge, However, the proposed rule does not with closure mechanisms in the closed engineering assessment, or test data may allow a flare to be used to control position, except as necessary for be used to identify the worst case halogenated emission streams. As an operator access. If a leak is detected, the process. Third, if an owner or operator alternative to demonstrating compliance owner or operator would be required to can demonstrate that organic HAP usage with the standards specified above, the repair it within 15 calendar days of is less than 19,000 lb/yr and this is the proposed rule allows an owner or detection, unless a reasonable only HAP in the process, then HAP operator to comply with the alternative justification for delay exists and is emissions also must be less than 19,000 standard in 40 CFR part 63, subpart documented. The owner or operator lb/yr. Thus, the proposed rule does not FFFF (i.e., the miscellaneous organic must provide notification of a delay in require an owner or operator to estimate NESHAP [MON]). Under the alternative repair in the semiannual report. These emissions if this condition is met. standard, an owner or operator would management practices are the only be required to route the process vent proposed emission requirements for the 3. Metal HAP Process Vents streams through a closed vent system to subcategory of batch process vents As explained in section IV.A, we a control device that meets a specified emitting less than 19,000 lb/yr of considered the different sizes and types outlet concentration and demonstrate organic HAP. of metal HAP process vents in chemical

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manufacturing operations and storage tanks are those that meet the size inspection results. If a leak is detected, established subcategories based on and maximum true vapor pressure the owner or operator would be required annual emissions of metal HAP to (MTVP) thresholds for control in the to repair it (or remove the leaking heat reflect the combined factors. NSPS for volatile organic liquid storage exchanger from service) within 45 Specifically, we created two vessels in 40 CFR part 60, subpart Kb, calendar days of detection, unless a subcategories for metal HAP process and small storage tanks are those that do reasonable justification for delay exists vents based on a threshold level of not meet the subpart Kb thresholds. and is documented. The owner or emissions: Those metal HAP process We are proposing that owners and operator must provide notification of a vents that emit above the threshold as operators implement management delay in repair in the semiannual report. one subcategory and below the practices for all storage tanks that store For the subcategory of large cooling threshold as a second subcategory. We organic HAP. The management practices tower systems, those with recirculating are co-proposing alternative process consist of requirements to check the water rates of 8,000 gal/min or greater, vent thresholds of 100 lb/yr and 400 lb/ integrity of the storage tanks once per we are proposing that the owner or yr of metal HAP. Facilities would quarter, to repair tanks as necessary to operator monitor the recirculating determine the mass metal HAP eliminate leaks, and to operate the tanks cooling water using a surrogate emissions rate by using process with all openings or access points indicator of heat exchange system leaks knowledge, engineering assessments, or covered or with closure mechanisms in as required in § 63.104(c) and (d) of the test data. the closed position, except as necessary HON (40 CFR part 63, subpart F). These We are proposing that owners and for operator access. If a leak is detected, provisions would require the owner or operators implement management the owner or operator would be required operator to prepare and operate in practices for all metal HAP process to repair it within 15 calendar days of accordance with a monitoring plan that vents. The management practices detection, unless a reasonable documents the procedures that will be consist of requirements to check the justification for delay exists and is used to detect leaks of process fluids integrity of the process equipment once documented. The owner or operator into the cooling water. The types of per quarter, to repair process equipment must provide notification of a delay in information to include in the plan as necessary to eliminate leaks, and to repair in the semiannual report. These would include a description of the operate the process equipment with all management practices are the only parameter(s) to be monitored, rationale openings or access points covered or proposed emission requirements for the for why the selected parameter(s) will with closure mechanisms in the closed subcategory of small storage tanks. reliably indicate a leak, and the level position, except as necessary for In addition to the management that indicates a leak. When a leak is operator access. If a leak is detected, the practices applicable to both detected, the owner or operator would owner or operator would be required to subcategories, we propose that for the be required to repair it (or remove the repair it within 15 calendar days of subcategory of large storage tanks that leaking heat exchanger from service) detection, unless a reasonable owners and operators comply with the justification for delay exists and is control requirements in subpart Kb. The within 45 calendar days of detection, documented. The owner or operator control options in 40 CFR part 60, unless delay of repair is allowed. Delay must provide notification of a delay in subpart Kb are to operate and maintain of repair would be allowed until the repair in the semiannual report. These a fixed roof in combination with an next shutdown if the owner or operator management practices are the only internal floating roof, use an external documents that emissions from proposed emission requirements for the floating roof, or to route emissions shutdown for repair would cause greater subcategory of metal HAP process vents through a closed vent system to a emissions than estimated emissions emitting below the threshold (less than control device that reduces organic HAP from allowing the system to continue 100 lb/yr or 400 lb/yr of metal HAP). emissions by 95 percent or greater. leaking until the scheduled shutdown. In addition to the management 5. Cooling Tower Systems 6. Equipment Leaks practices applicable to both subcategories, we are proposing for the We are proposing that owners and We are proposing that each owner or subcategory with total uncontrolled operators implement management operator implement management metal HAP emissions from metal HAP practices for all cooling tower systems practices for equipment leaks. The process vents equal to or greater the in which recirculating water is used in management practices consist of threshold (100 lb/yr or 400 lb/yr of heat exchangers to cool process fluid quarterly leak inspections of all metal HAP) that the owner or operator that contains organic HAP. We are equipment in organic HAP service. The reduce uncontrolled emissions of metal proposing a management practice for a term ‘‘equipment’’ applies to each HAP by 95 percent by weight or greater. subcategory of small cooling tower pump, compressor, agitator, pressure To determine whether the percent systems and an emission limit for a relief device, sampling connection reduction requirement applies, the subcategory of large cooling tower system, open ended valve or line, owner or operator would be required to systems. connector, and instrumentation system determine and sum the emissions from For the subcategory of small cooling in chemical manufacturing operations. all of the metal HAP process vents. The tower systems, those with recirculating To be in organic HAP service, the proposed rule allows the use of process water flow rates less than 8,000 gal/min, equipment must either contain or knowledge, engineering assessment, or we are proposing that the owner or contact a fluid (liquid or gas) that test data to determine the mass emission operator inspect the cooling water contains one or more of the organic HAP rate. system quarterly for hydrocarbon odor, listed in or pursuant to section 112 of discolored water, or other evidence of the CAA. Leak detection methods using 4. Storage Tanks hydrocarbons in the cooling water. In sight, sound, and smell may be used. As explained in section IV.A, we addition, the owner or operator would Under the proposed rule, repair or considered the different sizes of storage be required to prepare and operate in replacement of leaking equipment is tanks and subcategorized on that basis. accordance with an operating and required within 15 days after detection, Specifically, we created two maintenance plan that describes actions or the reason for any delay of repair subcategories for storage tanks: Large to be taken in response to different must be documented. The owner or

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operator must provide notification of a hazardous waste. Also, liquid waste Whenever a performance test is delay in repair in the semiannual report. from the process that consists only of required, the owner or operator may organic compounds may not be sent to choose to submit the results of a prior 7. Transfer Operations the wastewater system if any of the performance test to demonstrate initial We are proposing that each owner or organic compounds in the wastewater compliance provided the prior test operator of an affected source stream are partially soluble HAP. meets specified criteria. For example, implement management practices for all the test must have been conducted transfer operations that involve transfer D. What are the initial and continuous within the past 5 years using the of material that contains organic HAP. compliance requirements? methods and procedures specified in We are proposing that each owner or 1. Continuous Process Vents the rule. Moreover, the owner or operator implement management operator must demonstrate either that practices to minimize evaporation, clean To demonstrate compliance with the no process changes have been made up spills, and implement submerged management practices for continuous since the test or that the results of the loading. The proposed rule defines process vents, the owner or operator test with or without adjustments, submerged loading as the use of a would conduct quarterly inspections reliably demonstrate compliance with submerged fill pipe that discharges no during process operation to determine the applicable emission standard more than 12 inches from the bottom of the integrity of the process vessels, despite process changes. Provisions are the cargo tank. identify and repair within 15 days any included in the proposed rule for leaks, and ensure that covers are in 8. Wastewater Systems submitting prior written notification of place or closure mechanisms are in the intent to use the previous data. We developed two subcategories of closed position during process wastewater streams based on differences operation. 2. Batch Process Vents in the concentration of partially soluble The proposed rule incorporates by To demonstrate compliance with the HAP in the wastewater stream. One reference the initial and continuous management practices for batch process subcategory consists of wastewater compliance requirements in 40 CFR part vents, the owner or operator would streams with partially soluble HAP 63 subparts SS and FFFF for control conduct quarterly inspections during concentrations less than 10,000 parts devices, recovery devices, and closed- process operation to determine the per million by weight (ppmw), and the vent systems used to meet the emission integrity of the process vessels, identify other consists of wastewater streams limit for continuous process vents. and repair within 15 days any leaks, and with concentrations equal to or greater These procedures are summarized ensure that covers are in place or than 10,000 ppmw. Partially soluble below. closure mechanisms are in the closed HAP are a subset of all organic HAP. For each non-flare control device used position during process operation. They are less soluble in water than other to meet the percent reduction or outlet The proposed rule incorporates by organic HAP, and they are more easily concentration emission limit for organic reference the initial and continuous separated from water. A list of partially HAP emissions from continuous process compliance requirements in 40 CFR part soluble HAP that matches a list of vents, the owner or operator would be 63 subparts SS and FFFF for control partially soluble HAP in the MON is required to conduct a performance test devices and closed-vent systems used to included in Table 3 of the proposed to demonstrate initial compliance. The meet an emission limit for batch process rule. The proposed rule requires an performance test would be conducted vents. These procedures are owner or operator to use any of the under representative operating summarized below. procedures in 40 CFR 63.144(b) of the For each non-flare control device used conditions. To demonstrate continuous HON to determine the partially soluble to meet the percent reduction or outlet compliance, the owner or operator HAP concentration in each wastewater concentration emission limit for batch would monitor applicable operating stream. Several options are allowed. For process vents, the owner or operator parameters for the selected control example, the owner or operator may would conduct either a performance test device (including hydrogen halide and calculate the concentration based on or a design evaluation to demonstrate halogen HAP control devices if control knowledge of the wastewater, using initial compliance. The performance test of a halogenated organic HAP is bench-scale or pilot-scale test data that or design evaluation would be achieved using a combustion device). is demonstrated to be representative of conducted under worst-case conditions the actual wastewater, or by testing For each flare, the owner or operator according to 40 CFR 63.1257(b)(8). The samples of the actual wastewater would conduct a flare compliance results of a previous performance test stream. assessment to demonstrate initial may be used under the same conditions For both subcategories we are compliance, and continuously monitor described in section III.D.1 of this proposing that the owner or operator applicable operating parameters to preamble for a previous performance treat the wastewater onsite or discharge demonstrate continuous compliance. test of continuous process vents. To it to an offsite facility for treatment. In Continuous monitoring of applicable demonstrate continuous compliance, addition, for the subcategory of operating parameters is required if a the owner or operator would wastewater streams with partially recovery device is used to maintain the continuously monitor applicable soluble HAP concentrations equal to or TRE index value at a level greater than operating parameters for the selected greater than 10,000 ppmw, we are 1.0 and less than or equal to 4.0. control device (including hydrogen proposing that the owner or operator The owner or operator would inspect halide and halogen HAP control devices separate the stream into a water phase for and repair leaks in each closed-vent if a halogenated organic HAP is and one or more organic phases using a system that is used to convey a gas controlled using a combustion device). decanter or other equipment that stream from a continuous process vent For each flare, the owner or operator operates on the principle of gravity to either a final recovery device or would conduct a flare compliance separation. The water phase would then control device. Monitoring of bypass assessment to demonstrate initial have to be treated as described above. lines to identify periods when emissions compliance, and continuously monitor The separated organic liquid may be are diverted from a control device or applicable operating parameters to sent back to the process or discarded as recovery device would also be required. demonstrate continuous compliance.

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The owner or operator would inspect control device. The same requirements cooling tower systems with for and repair leaks in each closed-vent would apply to the owner or operator of recirculation rates equal to or greater system that is used to convey a gas an existing affected source using any than 8,000 gal/min (i.e., monitor for stream from a batch process vent to a type of control device for PM. The surrogate indicators of leaks), the control device. Monitoring of bypass proposed rule specifies that the proposed rule requires the owner or lines to identify periods when emissions monitoring plan would list the operator to develop a site-specific are diverted from a control device operating parameters that will be monitoring plan. The plan would would also be required. monitored to maintain continuous include a description of the parameter compliance with the emission limit, the or condition to be monitored and 3. Metal HAP Process Vents operating limit for each parameter, and explain how the monitoring will To demonstrate compliance with the an operation and maintenance plan for reliably indicate the presence of leaks. management practices for metal HAP the control device and continuous To demonstrate continuous compliance, process vents, the owner or operator monitoring system. A preventive the owner or operator would conduct would conduct quarterly inspections maintenance schedule consistent with monitoring at least every calendar during process operation to determine the manufacturer’s instructions for quarter and fix leaks within 45 days of the integrity of the process vessels, routine and long-term maintenance detection, unless the owner or operator identify and repair within 15 days any would be required as part of the meets specified conditions under which leaks, and ensure that covers are in operation and maintenance plan for the delay of repair is allowed. The plan place or closure mechanisms are in the control device. would not need to be submitted to the closed position during process Administrator for approval, but the 4. Storage Tanks operation. proposed rule requires that the plan be The proposed rule incorporates by To demonstrate compliance with the revised any time a leak is identified by reference the requirements of the management practices, the owner or means other than those in the plan and NESHAP for Chemical Manufacturing operator would conduct quarterly could not be detected by the procedures Area Sources: Chromium Compounds inspections to determine the integrity of described in the plan. Except for the (40 CFR part 63, subpart NNNNNN), the tank, identify and repair within 15 monitoring frequency in the first six concerning the procedures to days any leaks, and ensure that any months after the compliance date, the demonstrate initial and continuous openings or access points are covered or initial and continuous compliance compliance with the percent reduction closed. requirements in the proposed rule are option for metal HAP process vents at To demonstrate compliance with a the same as the provisions of § 63.104(c) new affected sources. A modified floating roof or control device standard through (e) of the HON (40 CFR part 63, version of these requirements would for storage tanks, the proposed rule subpart F). apply to existing affected sources as requires the owner or operator to summarized below. comply with procedures specified in 40 6. Equipment Leaks A performance test would be required CFR part 63, subpart Kb. For example, To demonstrate compliance with the for both new and existing affected floating roofs must meet design requirement to conduct quarterly sources to demonstrate initial specifications, and the owner or inspections for equipment leaks, the compliance. Although subpart operator would be required to conduct owner or operator would be required to NNNNNN requires only outlet testing, inspections, measure seal gaps, and document the date and results of each this proposed rule specifies that the repair defects. For a control device, the inspection in a log book. The number testing must be conducted at both the owner or operator would be required to and location of any leaks, the date of inlet and outlet of the control device to demonstrate that the control device will repair, and reasons for any delay of determine the percent reduction. The achieve the required control efficiency repair beyond 15 calendar days after results of a previous performance test during maximum loading conditions. detection of the leak also would be may be used under the same conditions The operating plan must also describe recorded in the log. described in section III.D.1 of this the parameter or parameters to be preamble for a previous performance monitored to demonstrate continuous 7. Transfer Operations test of continuous process vents. compliance. To demonstrate compliance with To demonstrate continuous standards for transfer operations, the compliance with an emission limit, the 5. Cooling Tower Systems owner or operator would document that owner or operator of a new affected To demonstrate initial compliance the transfer rack is designed to use top source that uses a fabric filter to control with management practices for cooling loading with a drop tube that extends to metal HAP emissions would install, tower systems with recirculation rates within 12 inches of the bottom of the operate, and maintain a bag leak less than 8,000 gal/min (i.e., inspect the vessel being loaded and/or that it can detection system in accordance with a cooling water quarterly for evidence of fill tank trucks and railcars by bottom site-specific monitoring plan. The hydrocarbons in the cooling water), the loading. Alternatively, the owner or proposed rule specifies that the owner or operator would be required to operator would document that monitoring plan must describe the prepare an operating and maintenance emissions from transfer operations are operation, maintenance, quality plan that describes actions to be taken controlled by vapor balancing back to assurance, recordkeeping, and in response to different inspection the storage tank from which the tank corrective action procedures to be results. If a leak is identified, the owner truck or railcar is loaded or that followed. or operator is required to fix it within emissions are routed through a closed- The owner or operator of a new 45 days. Records documenting the vent system to a control device. affected source using any other type of occurrence of each inspection, the control device for PM, would findings, and any actions taken in 8. Wastewater Systems demonstrate continuous compliance response to those findings would Compliance with the standard with an emission limit by developing demonstrate ongoing compliance. requiring treatment of process and and operating in accordance with a site- To demonstrate initial compliance maintenance wastewater is a specific monitoring plan for that type of with the management practices for requirement to provide notice of any

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deviation from this requirement in the management practice, emissions control process vents based on the emissions for semiannual compliance reports. For requirement or other standard. These the worst case process. wastewater streams that contain recordkeeping requirements are Each owner or operator of metal HAP partially soluble HAP at concentrations specified either directly in 40 CFR part process vents would be required to keep equal to or greater than 10,000 ppmw, 63, subpart VVVVVV, in the General records of the initial calculation of the owner or operator would be required Provisions to 40 CFR part 63, or other estimated metal HAP annual emissions to maintain records to demonstrate that rules in which provisions have been from all metal process vents. The owner the organic and water phases have been incorporated by reference. These other or operator of each affected source that separated before discharging the water rules include 40 CFR part 63 subpart F is subject to the emission limit for metal phase for treatment and document the (cooling towers), subpart G HAP emissions would be required to disposition of the organic phase. (wastewater), subpart SS (continuous keep a current copy of the monitoring process vents, batch process vents, and plan. If a fabric filter is used to meet the E. What are the notification, closed vent systems), subpart GGG emission limit for metal HAP emissions recordkeeping, and reporting (alternative standard), subpart FFFF at a new affected source, the owner or requirements? (alternative standard), and subpart operator would be required to keep 1. Notifications and Reports NNNNNN (metal HAP process vents). In records of the bag leak detection system output, adjustments to the bag leak The owner or operator would be addition, the proposed rule incorporates by reference the recordkeeping detection system, and information required to comply with all of the related to alarms and corrective action. NESHAP General Provisions (40 CFR requirements in 40 CFR part 60, subpart Kb (storage tanks). If a control device other than a fabric part 63, subpart A), for notifications; filter is used at a new affected source to startup, shutdown, and malfunction Records for management practices applicable for all process vents must be meet the emission limit for metal HAP (SSM) plans and reports; and reporting. emissions, then the owner or operator If performance tests are required under maintained. Specifically, the owner or operator must keep records of the dates would be required to record the proposed rule, then the notification continuously monitored operating and reporting requirements for and the results of each inspection and the dates of equipment repairs. parameters in accordance with the site- performance tests in the General specific monitoring plan. The proposed The owner or operator would be Provisions would also apply. We have rule also requires the owner of an required to keep records of each identified in Table 4 to the proposed existing source that is subject to the calculation that shows the TRE for a NESHAP the General Provisions of 40 emission limit for metal HAP to keep continuous process vent is greater than CFR part 63 applicable to affected records of continuously monitored 1.0. This requirement would apply to sources. An additional notification for operating parameters in accordance both initial calculations and the use of a previous performance test with the site-specific monitoring plan. to demonstrate compliance with the calculations after process or operational If an owner or operator is required to applicable emission limit for batch changes. Records of either continuously control a large storage tank in process vents, continuous process vents, monitored parameter data or CEMS data accordance with 40 CFR part 60, subpart or metal HAP process vents would also (if complying with the alternative Kb, the owner or operator would keep be required. standard) would be required for a records related to the size of the tank Each owner or operator would be control device or a recovery device if a and/or type of material stored for each required to submit a notification of recovery device is used to maintain the storage tank. In addition, if an internal compliance status report, as required by TRE between 1.0 and 4.0. floating roof is installed to meet the § 63.9(h) of the General Provisions. Each owner and operator of batch standard, the owner or operator would Reporting requirements incorporated by process vents would be required to keep maintain records of each inspection of reference may specify additional a record of the initial calculation of the roof and seals. If an external floating information to include in the either the total annual emissions from roof is used to meet the standard, the notification of compliance status report. batch process vents or the total annual owner or operator would maintain Finally, the proposed rule requires the HAP usage that is used to determine the records of seal gap measurements. If owner or operator to include in the applicable subcategory. If emissions are emissions are routed through a closed notification of compliance status report calculated, the proposed rule requires vent system to a non-flare control certifications of compliance with rule the owner or operator to keep records of device, the owner or operator would requirements. the initial estimates of typical emissions maintain records of monitored operating Semiannual compliance reports, as per batch for each process and to track parameters. If the control device is a required by § 63.10(e)(3) of subpart A, the number of batches of each process flare, records of all periods during would be required only for semiannual operated per month. If the applicable which the flare pilot flame is absent reporting periods when a deviation from subcategory is determined based on would be required. For large and small any of the requirements in the rule HAP usage, then the proposed rule storage tanks, records for management occurred; the delay of repair provisions requires the owner or operator to track practices must be maintained. were invoked for heat exchangers in a the HAP usage per month. Other Specifically, the owner or operator must cooling tower system; there is a delay of information that the owner or operator keep records of the dates and the results repair for an equipment leak, process would be required to record includes: of each inspection and the dates of vessel leak, storage tank leak, or leak (1) Revised estimates of the collective equipment repairs. from a small cooling tower; or any emissions from all batch process vents To comply with the surrogate process changes occurred and in the chemical manufacturing indicator monitoring standard for large compliance certifications were operations if process changes occur (or cooling towers, the proposed rule reevaluated. revised estimates of the HAP usage, if requires the owner or operator to keep applicable); and (2) the information and records of the monitoring data and 2. Recordkeeping procedures used to identify the worst- information related to the detection and The proposed rule requires records to case process if the owner or operator repair of leaks. Maintaining a copy of demonstrate compliance with each elects to estimate emissions for all batch the monitoring plan would also be

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required. For small cooling towers, rate, HAP heating value, and emission subcategories based on size, class or facilities must inspect the cooling tower stream flow rate into a single criterion type. water for evidence of the presence of that is easier to use than all of the Batch Process Vents. We determined hydrocarbons and record in a log book individual parameters. We determined after review of information for batch the date and results of each quarterly from our review of the MON database process vents that many of the facilities inspection, including description of that continuous process vents with low with the highest organic HAP emissions leak; reasons for any delay of repair; and TRE values tend to have both higher are emitting methylene chloride. Many the date each leak is repaired. emission stream flow rates and higher of these facilities are also emitting other Each owner or operator with emission rates than continuous process HAP such as methanol, hexane, and equipment in organic HAP service vents with higher TREs. Increased flow toluene. All of these HAP are typically would be required to record in a log from a vent generally corresponds with used as solvents. In addition, as part of book the date and results of each increased size of the unit operation and various NESHAP rulemakings (40 CFR quarterly inspection, including the increased production rate. For these part 63, subparts GGG, MMM, and number of leaks and their locations; reasons, we think that the TRE value FFFF), we determined that processes reasons for any delay of repair beyond provides a reasonable estimate of the using HAP as solvents generally have 15 days; and the date each leak is size of continuous process units at emissions much higher than other repaired. chemical manufacturing area sources. processes that use HAP as a reactant or Each owner or operator would be After determining that the TRE value generate HAP as a byproduct of required to keep records identifying all provides a reasonable indicator of size, reaction. This is the case because wastewater streams with total partially we reviewed the data to determine the process vent emissions are proportional soluble HAP concentrations greater than appropriate TRE value to propose to to HAP concentration in the vent 10,000 ppmw and the disposition of all distinguish large and small continuous stream, and the high vapor pressure organic phases generated in decanters or process vents. We evaluated the impacts solvents result in a high concentration other separation equipment. of requiring all continuous process of HAP in the gas phase. The high- All facilities must keep records of any vents to operate add-on controls such as volume use of solvents also results in deviations from the requirements in the flares or condensers. We also considered higher emissions because of rule, and these records must be the impacts of requiring controls for displacement losses. included in the compliance report for continuous process vents with different Another factor that affects the the semiannual period in which the TRE values. We concluded that the emissions level is the production rate. deviation occurred. control cost increased at a significantly For chemicals manufactured using batch Typically, records would be retained higher rate than the emissions processes, production rate is measured for at least 5 years, but records of storage reductions the higher the TRE value. We by number of batches. The proposed tank dimensions and capacity would be also considered the TRE values at which rule references standard equations for retained for the life of the affected the various MACT and NSPS determine calculating HAP emissions from unit source. In addition, monitoring plans, applicability. This is relevant to the size operations typically used in batch operating and maintenance plans, and of the continuous process vents because chemical processing. The annual other plans would be updated as MACT standards apply to major sources emissions from manufacturing a necessary and kept for as long as they and NSPS standards may consider size chemical using batch processes is equal are still current. in determining applicability. We then to the emissions from a standard batch considered the costs of control for the cycle multiplied by the number of IV. Rationale for This Proposed Rule different TRE values in other standards. batches run in a year. Based on this analysis, we have A. How did we subcategorize emission For example, we determined that the determined that operations where sources? HON TRE value of 1 has a cost- effectiveness of approximately $3000/ solvent use constitutes the primary As part of the development of these ton of HAP removed and that the MON source of HAP emissions and the proposed standards, we considered TRE value of 1.9 has a cost-effectiveness number of batches at affected facilities whether there were differences in of $7400/ton of HAP removed. In light is high, there are higher organic HAP processes, sizes, or other factors of the relative emissions reductions and emissions. We have concluded that affecting emissions that would warrant costs for the various thresholds, we these factors relating to the type of subcategorization. Under section determined that the TRE value of 1 was operation (high solvent use) and size of 112(d)(1) of the CAA, EPA ‘‘may appropriate threshold to distinguish operation (based on number of batches) distinguish among classes, types, and between large and small continuous provide a reasonable basis for sizes within a source category or process vents at chemical subcategorization. We considered subcategory in establishing such manufacturing area source. whether we should combine these standards * * *.’’ We explain below in For all the reasons above, we are factors into a formula for defining the detail our proposed subcategorizations proposing to develop two subcategories subcategories, but given the various for six of the eight types of emission for continuous process vents based on variables at issue, we determined such points at chemical manufacturing area differences in TRE values. We are an approach was too complex. As an sources. We are proposing a single proposing this because TRE value alternative, we evaluated the sources in subcategory for both equipment leaks provides a reasonable basis on which to the category and determined that annual and transfer operations. differentiate the size of continuous emissions rate provides a means of Continuous Process Vents. In process vents. One subcategory is for considering the factors discussed above. numerous previous NSPS and NESHAP continuous process vents with a TRE Also, as discussed above in regard to (40 CFR part 60 subparts III, NNN, and value less than or equal to 1.0, and the continuous process vents, we RRR, and 40 CFR part 63 subpart G) other is for continuous process vents considered the relative emissions rulemakings we have used the TRE with a TRE value greater than 1.0. We reductions and costs for the area sources equal to 1.0 as a basis for distinguishing solicit comments on whether additional in the category in determining the continuous process vents. The TRE characteristics of continuous process appropriate emissions level at which to combines the effect of HAP emission vents would support alternative subcategorize the batch process vents.

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Specifically, we propose that facilities vents based on either an emission level towers are those with a design with organic HAP emissions greater of 100 lb/yr or an emission level of 400 recirculation rate less than 8,000 gal/ than 19,000 lb/yr from batch process lb/yr. We think that at either level the min. Therefore, we are proposing two vents tend to have both high solvent use proposed subcategorization accounts for subcategories for cooling tower systems and a large number of batches. We are the purpose for which the metal HAP based on the size of the cooling towers therefore proposing two subcategories emissions are present in the metal HAP and using the threshold in the Texas based on the difference in annual process vents, the size of the facilities requirement as the basis for emissions, one subcategory is for batch that incorporate metal HAP into the differentiating among large and small process vents with emissions equal to or product, the size of facilities that do not cooling towers. We solicit comment on greater than 19,000 lb/yr, and the other incorporate metal into the final product, our proposed subcategorization and is for batch process vents with and the facilities that do not incorporate whether there are other means to emissions less than 19,000 lb/yr. We the metal HAP into the product but use differentiate among cooling towers that solicit comments on our proposed raw materials or fuels that have high would support alternative subcategories subcategorization and whether metal HAP content. By considering all based on size, type or class. additional characteristics of batch these factors in our subcategorization Wastewater systems. In our review of process vents would support alternative determination and also the relative information for wastewater systems, we subcategories based on size, class or emissions reductions and cost of determined that the reported type. controls, we believe that we have solubilities, the concentration at which Metal HAP Process Vents. In our developed a reasonable basis on which the solute no longer dissolves in water, review of data for metal HAP process to subcategorize metal HAP process of many of the chemical manufacturing vents, we determined that the level of vents. We solicit comments, along with organic urban HAP are approximately metal HAP emissions from the vents is supporting documentation, on the co- 10,000 ppmw. Thus, wastewater streams a function of the purpose for which the proposed subcategories based on either with concentrations above this level metal HAP is present in the process. 100 lb/yr or 400 lb/yr and whether would separate into organic and water Specifically, emissions varied according additional characteristics of metal HAP phases if allowed to settle. The to whether the metal HAPs were process vents would support alternative pharmaceuticals production MACT intended to be incorporated into the subcategories based on size, class or standard, 40 CFR part 63, subpart GGG product of the chemical manufacturing type. prohibits the discharge of multi-phase process. For products that incorporate Storage tanks. In our review for wastewater streams to wastewater the metal HAP (e.g., manganese dioxide, storage tanks we determined that the treatment systems, and this and other inorganic pigments, catalysts), NSPS for volatile organic liquid storage MACT standards prohibit the discharge emissions of metal HAP are generally vessels in 40 CFR part 60, subpart Kb of streams that contain organic HAP at larger; conversely, the metal HAP applies to storage tanks at area sources. concentrations greater than 10,000 emissions tend to be smaller when the The NSPS applies to storage tanks that ppmw without meeting the maximum metal HAP is present because it is from are larger than 40,000 gallons and store control standards in the rule. Because impurities introduced with raw liquid with an MTVP greater than 0.75 organic HAP in wastewater may exist as materials or products of combustion. pounds per square inch absolute (psia). a separate phase we consider this type However, we have identified some vents It also applies to storage tanks that have of wastewater stream different than an that emit larger amounts of metal HAP, a capacity greater than 20,000 gallons aqueous stream. We are proposing two even though the metal HAP is not and store liquid with a MTVP greater subcategories based on the 10,000 incorporated into the final product. than 4.0 psia. We determined that tanks ppmw concentration of organic HAP, These facilities are likely to emit more meeting the applicability criteria in which is the level the organic HAP metal HAP because of the large size of subpart Kb are large storage tanks and generally ceases to dissolve in water. the facility or because the facility is tanks not meeting those applicability We solicit comment on our proposed using raw materials and/or fuel with thresholds are small tanks. Therefore, subcategorization and whether there are higher levels of metal HAP impurities. we are proposing two subcategories for other means to differentiate among For these reasons, we are not storage tanks, one for large storage wastewater systems that would support subcategorizing metal HAP process tanks, which are those that exceed the alternative subcategories based on size, vents solely on the basis of whether or NSPS capacity and MTVP limits in type or class. not the processes are the type that subpart Kb, and one for small storage B. How did we determine GACT? incorporate metal HAP into the final tanks, which are those that do not product, as that would not account for exceed those limits. We solicit comment As provided in CAA section 112(d)(5), the facilities that do not incorporate the on our subcategorization determination we are proposing standards representing metal HAP into the product, but that are and whether there are other means to GACT for eight types of emission points large facilities and thus have higher differentiate among storage tanks that at nine area source chemical metal HAP emissions, or those that use would support alternative subcategories manufacturing source categories. As raw materials and fuel that have a based on size, type or class. noted in section II of this preamble, the higher metal HAP content. We Cooling towers. In our review of statute allows EPA to establish determined that it was appropriate to information for cooling tower systems standards for area sources listed base the subcategory on the amount of we determined that certain counties in pursuant to section 112(c) based on emissions of metal HAP from the the State of Texas require continuous GACT. The statute does not set any process vents as a proxy for the type and monitoring of the total strippable VOC condition precedent for issuing size of the vent. In determining the concentration and water flow at the standards under section 112(d)(5) other appropriate emissions level, we inlet of each cooling tower with a design than that the area source category or considered relative emissions recirculation rate greater than or equal subcategory at issue must be one that reductions and costs to the affected area to 8,000 gal/min. This recirculation rate EPA listed pursuant to section 112(c), sources. is representative of typical large size which is the case here. We are co-proposing two cooling towers for the chemical The information used to determine subcategories for metal HAP process manufacturing industry. Smaller cooling the proposed GACT standards is derived

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from existing regulations that apply to that represent current industry practice; of the emission points at chemical some chemical manufacturing area and information regarding control manufacturing area sources. Table 1 of sources, facilities in other area source technologies used at chemical this preamble summarizes the proposed categories, and chemical manufacturing manufacturing major sources. We also GACT standard for each subcategory major sources; permits and other considered costs and economic impacts and emission point. We request sources of information about control in determining GACT. comment on all of the proposed GACT technologies and management practices We explain below in detail our determinations. proposed GACT determinations for each

TABLE 1—SUMMARY OF PROPOSED GACT FOR CHEMICAL MANUFACTURING AREA SOURCES

Emission point Subcategory Proposed GACT

Continuous process vents ... TRE ≤1.0 and TRE >1.0 ...... Management practices. TRE ≤1.0 ...... Use control device that reduces organic HAP by ≥95 percent. Batch process vents ...... Organic HAP emissions from all batch process vents Management practices. <19,000 lb/yr and ≥19,000 lb/yr. Organic HAP emissions from all batch process vents Use control device that reduces organic HAP by ≥90 ≥19,000 lb/yr. percent. Metal HAP process vents .... All metal HAP emissions ...... Management practices. Metal HAP emissions ≥100 (or 400) lb/yr ...... Use control device that reduces metal HAP emissions by ≥95 percent. Storage tanks ...... Tank size or MTVP of stored material less than thresh- Management practices. olds for control in 40 CFR part 60, subpart Kb or tank size and MTVP at or above thresholds. Both tank size and MTVP of stored material at or Control in accordance with 40 CFR part 63, subpart Kb. above thresholds in 40 CFR part 60, subpart Kb. Cooling tower systems ...... Cooling water recirculation rate <8,000 gal/min ...... Management practices. Cooling water recirculation rate ≥8,000 gal/min ...... Surrogate monitoring for leaks. Equipment leaks ...... All ...... Quarterly inspections for leaks and repair of equipment found to be leaking. Transfer operations ...... All ...... Submerged loading and other management practices. Wastewater systems...... Wastewater streams with PSHAP concentrations Treatment. <10,000 ppmw and ≥10,000 ppmw. Wastewater streams with PSHAP concentrations Use gravity separation device to separate organic and ≥10,000 ppmw. water layers, and treat the water layer.

1. GACT for Organic HAP Process Vents require a 90 percent reduction from organic process vents. In separate certain large process vents at sections below, we discuss our In evaluating GACT options, we pharmaceutical production facilities. evaluation of GACT for continuous and found that several facilities have The pesticide active ingredient batch process vents. That discussion incorporated Federally enforceable production NESHAP (40 CFR part 63, includes an evaluation of the costs provisions in their operating permits in subpart MMM) requires a 90 percent associated with different percent order to obtain synthetic minor status reduction from most process vents. emission reduction requirements. for HAP emissions. Many of these Numerous MACT rules require 98 In addition to emission limit facilities are reducing organic HAP percent reductions of organic HAP from requirements, we found that several emissions from process vents by routing process vents. Some MACT standards States require pharmaceutical facilities emissions to air pollution control specify an intermediate emission limit to enclose certain types of equipment, devices such as combustion devices, based on reducing emissions by 95 except when operator access is needed condensers, and carbon adsorbers. percent. Although not a regulation, the for sampling, maintenance, or These types of control devices are Alternative Control Techniques inspections. We also understand that generally available technology because Document for Batch Processes (see some facilities inspect process they are being used by many facilities in docket EPA–HQ–OAR–2008–0334) equipment to check for leaks. We have the nine source categories at issue to identifies 90 percent reduction as an no reason to believe that it would be control organic HAP emissions. These appropriate reduction for a range of infeasible for all chemical controls are also used to reduce process vent characteristics. manufacturing area sources to operate emissions from process vents in A reduction of at least 98 percent is equipment only when closed and processes at other similar area sources. typically achievable using combustion conduct periodic checks for leaks. Furthermore, such controls would be devices such as thermal incinerators. A Therefore we evaluated the cost of the required for some of these processes if thermal incinerator would more than following management practices: (1) they were operated at major sources meet a 90 percent reduction Cover all process tanks and mixing where the emission characteristics requirement, and for some emission vessels during operation, (2) maintain exceed the thresholds for control in the streams it is less costly than other types covers in the closed position on all applicable MACT standards. of control devices. A 90 percent or 95 openings and access points in other Moreover, various federal and state percent reduction, however, can also be process vessels, (3) conduct quarterly regulations require organic HAP met using other types of control devices inspections to check for leaks from the emission reductions from process vents such as condensers. The above process vessels and determine the between approximately 90 percent and discussion focuses on the types of add- integrity of the process vessels and 98 percent. For example, several states on controls that are available for use on ensure that covers are being used as

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specified in items 1 and 2, and (4) repair reasonable. We have determined that facilities with batch process vent within 15 days any leaks in the process controls to meet a more stringent 98 emissions equal to or greater than equipment. These management percent reduction emission limit do not 19,000 lb/yr we are proposing that practices could be implemented by represent GACT because the costs were GACT consists of both management facilities with both batch process vent determined to be unreasonable. For the practices as described above and a 90 subcategories and both continuous subcategory of facilities with TRE index percent reduction emission limit process vent subcategories. Costs to values greater than 1.0, we are because the costs for both of these implement such management practices proposing that GACT consists only of options were determined to be are estimated to be approximately $280/ the management practices described reasonable. We are proposing that a yr for each affected facility. above because the cost of other more stringent 98 percent reduction Continuous process vents. As part of generally available controls to reduce emission limit does not represent GACT our GACT analysis for the two emissions were determined to be because the costs were determined to be subcategories of continuous process unreasonable. unreasonable. For the subcategory of vents, we evaluated the costs of using Batch process vents. As part of our facilities with batch process vent add-on control devices to achieve a 95 GACT analysis for the two subcategories emissions less than 19,000 lb/yr, we are percent reduction of organic HAP of batch process vents, we evaluated the proposing that GACT consists only of emissions from continuous process costs to use add-on control devices to management practices because the costs vents. We estimated that two facilities reduce organic HAP emissions from of other available controls to reduce in the subcategory with a TRE index batch process vents by 90 percent. We emissions were determined to be value less than or equal to 1.0 are not estimated that four facilities in the unreasonable. already achieving reduction comparable subcategory with emissions equal to or to this emission limit. Based on a range greater than 19,000 lb/yr are not already 2. GACT for Metal HAP Process Vents of emission stream characteristics, a using controls that achieve this The metal HAP emissions tend to be condenser and a thermal incinerator reduction. We estimated that the flow of PM emissions, and many processes emit were each determined to be the least the emission streams at these facilities other PM along with the HAP metals costly control device for one facility. would be relatively low and the HAP compounds. As part of our GACT The average cost-effectiveness of control concentration relatively high so that analysis we determined that the same was estimated at about $3,000/ton of condensers would be the least costly management practices described in HAP removed, which is consistent with control device. The cost-effectiveness of section IV.B.1 for organic process vents cost-effectiveness for standards based on control would be about $2,300/ton of are equally feasible and available for a TRE of 1. Because this cost is HAP removed. Because this cost is both subcategories of metal HAP process reasonable, we also evaluated the cost of reasonable, we also evaluated the cost of vents. We also estimated that the costs a 98 percent reduction option. However, a 98 percent reduction option. To meet are the same as for organic process vents sources already implementing controls the 98 percent control level, a facility ($280/yr per facility). may need to install combustion devices would likely need to install a Fabric filters and other types of to achieve 98 percent emissions combustion device. Because we could control devices are widely used to reduction. We could not estimate the not estimate the types of controls at control PM emissions, including PM number of these controlled sources and sources or the number of sources that containing metal compounds. Such baseline emissions, but the incremental would have to install completely new controls are generally available, and cost-effectiveness for implementing controls to meet this standard, we reductions are at least 95 percent. Over controls to meet 98 percent relative to estimated the incremental cost of a 98 90 percent of the PM emissions from installing controls to meet the 95 percent control level relative to a 90 area sources are in the form of fine percent reduction option is nearly percent control level. That incremental particulate matter, and EPA studies $90,000/ton. cost-effectiveness is estimated at nearly have found that fine particles continue We also evaluated the impacts of a 95 $100,000/ton. to be a significant source of health risks percent reduction emission limit for We also examined the cost of a 90 in many urban areas. facilities in the subcategory with TRE percent reduction emission limit for As part of our GACT analysis, we index values greater than 1.0. The mix facilities in the subcategory with evaluated the costs of using add-on of control devices used would be the estimated uncontrolled emissions from control devices and achieving a 95 same as for facilities in the other batch process vents less than 19,000 lb/ percent metal HAP emission reduction subcategory, but the average cost- yr. We estimated that this subcategory for the subcategory with uncontrolled effectiveness of this option would be includes 107 facilities with emission metal HAP emissions of 100 lb/yr or about $30,000/ton of HAP removed. streams that span a range of flows and greater and 400 lb/yr and greater. We Because this cost is unreasonable, we concentrations. Condensers would be estimated that 55 facilities are in the did not evaluate the cost of a more the least costly control device for some subcategory defined as 100 lb/yr or stringent 98 percent reduction option facilities, and incinerators would be the greater and 30 facilities are affected for this subcategory. least costly control device for other when the subcategory is defined as 400 Based on the generally available facilities. The average cost-effectiveness lb/yr or greater. Table 2 of this preamble controls and management practices and of control for these facilities is estimated summarizes the impacts of the co- the estimated costs, we are proposing at about $25,000/ton of HAP removed. proposed requirements. The cost- that GACT be different for the two Because this cost is unreasonable, we effectiveness of control to the 95 percent subcategories. For the subcategory of did not evaluate the cost of a more reduction of emissions would be about facilities with TRE index values less stringent 98 percent reduction option $70,000/ton of HAP metal compounds than or equal to 1.0, we are proposing for this subcategory. removed and $5,000/ton of PM if the that GACT consists of both management Based on the generally available subcategory is defined as 100 lb/yr or practices as described above and controls and management practices and greater. The cost-effectiveness would be controls to meet a 95 percent reduction the estimated costs, we are proposing about $40,000/ton of HAP metal emission limit because the costs for both that GACT be different for the two compounds removed and $3,000/ton of of these options were determined to be subcategories. For the subcategory of PM if the subcategory is defined as 400

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lb/yr or greater. The costs for both co- sources and mobile sources. We believe percent reduction because the use of proposals are considered acceptable and that these area and mobile source rules add-on control devices is the most are in line with the cost-effectiveness for provide a reasonable benchmark for PM effective control technique available. PM in other rules, including rules that cost-effectiveness. We did not consider require control of PM from other area a control option more stringent than 95

TABLE 2—IMPACTS OF CONTROL OPTIONS FOR METAL HAP PROCESS VENTS

Emission Cost effectiveness Total annual reduction (tpy) (1,000 $/ton HAP [PM]) Uncontrolled emissions cutoff for control, lb/yr Total capital cost cost (1,000$) (1,000$/yr) Relative to HAP PM baseline Incremental

400 ...... 0.7 1.7 41 570 41 [2.9] 100 ...... 1.3 3.0 44 610 69 [4.9] 430 [31]

We also evaluated the cost of using 95 percent. The number of storage tanks unreasonable. We have no reason to the same types of control devices to at area sources that exceed the subpart believe that the results would be achieve a 95 percent metal HAP Kb size and MTVP thresholds and are different for area sources. emission reduction at facilities in the not already subject to these NSPS is In addition to emission limits like subcategory with uncontrolled metal estimated to be 5. In this rule, we refer those in subpart Kb, we also considered HAP emissions less than 100 lb/yr. We to these storage tanks as large tanks. The generally available management estimated that 119 facilities are in this average annual cost for complying with practices for storage tanks. We subcategory, and the cost-effectiveness the above-noted requirements is understand that it is common practice of control would be about $7 million/ estimated at $3,000/yr, and the average for facilities to periodically inspect ton of HAP metal compounds removed cost-effectiveness is estimated to be storage tanks to ensure that the structure and $0.5 million/ton of PM removed. $2,800/ton of HAP controlled. We did is sound and liquid is not leaking from These costs are considered not consider control levels of 98 the tank. In addition, good operating unacceptable. percent. The costs for the control practice dictates that all openings and Based on the generally available required in subpart Kb are based on access points on storage tanks will be controls and management practices and floating roof control technology. With covered or closure mechanisms will be the estimated costs, we are proposing the low emissions from storage tanks in the closed position when liquid is in that GACT be different for the two relative to process vents, the the tank, except when operator access is subcategories. For the subcategory of incremental cost-effectiveness between needed. During inspections for leaks, facilities with uncontrolled HAP metal 95 and 98 percent would be worse than operators can also check that all covers emissions equal to or greater than the for process vents and very unreasonable and closure mechanisms are in place. threshold (100 lb/yr or 400 lb/yr), we when comparing the cost of floating The owner or operator would also be are proposing GACT to be both roofs to the cost of combustion control. required to repair within 15 days any management practices as described leaks in the process equipment. The cost above and a 95 percent reduction As part of the GACT analysis, we also of these management practices per emission limit because the costs for both considered applying the subpart Kb facility is estimated at $280/yr. of these options were judged to be standards to the small tank subcategory In conclusion, for the subcategory of acceptable. For the subcategory of of storage tanks (i.e., those that do not large storage tanks (i.e., those that facilities with uncontrolled HAP metal meet the subpart Kb size and MTVP exceed the size and MTVP thresholds in emissions less than the threshold (100 thresholds for control). Floating roofs subpart Kb), we are proposing GACT to lb/yr or 400 lb/yr), we are proposing are not available for small or horizontal be: (1) Management practices consisting that GACT consists only of management tanks, therefore, floating roofs are not of quarterly inspections for leaks and practices because the cost of other generally available for such tanks. The repairing leak within 15 days, generally available controls to reduce cost of requiring add on controls for minimizing and promptly cleaning up emissions were determined to be storage tanks is considered spills, and ensuring that all openings unreasonable. unreasonable for storage tanks that do and access points are closed for all not meet the size and MTVP thresholds. storage tanks; and (2) each storage tank 3. GACT for Storage Tanks We reached the same conclusion in the must be equipped with an internal or Chemical manufacturing area sources rulemaking analyses for all of the external floating roof, or the displaced that constructed, reconstructed, or NESHAP for major sources in various vapors must be routed to a control modified certain storage tanks since chemical manufacturing source device that reduces emissions by at least 1984 have been subject to the NSPS for categories. For example, the cost- 95 percent. Costs for these control storage vessels in 40 CFR part 60, effectiveness of MON standards for techniques were determined to be subpart Kb. The NSPS requires that each small tanks (10,000 gallons) storing reasonable, but costs for more stringent storage tank that has a capacity greater material with a MTVP of 1 psia, was controls were determined to be than 20,000 gallons and is used to store estimated at approximately $8,000/ton unreasonable. For the subcategory of volatile organic liquid that has a MTVP of HAP removed. The size and MTVP small storage tanks (i.e., those that do greater than 4.0 psia (or greater than thresholds vary in the NESHAP as a not meet the size and MTVP thresholds 0.75 psia for tanks larger than 40,000 result of industry-specific MACT floor in subpart Kb), we are proposing GACT gallons) be equipped with an internal or determinations, but in each case the to be the same management practices external floating roof, or that the costs to apply controls to storage tanks that are part of GACT for the large displaced vapors be routed to a control that do not meet the subpart Kb storage tank subcategory. These costs device that reduces emissions by at least thresholds were determined to be were determined to be reasonable.

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However, as noted above, we concluded parameter(s) or condition to be other rules at either area sources or that the costs for meeting the storage monitored reliably indicates a leak, and major sources. tank controls required by subpart Kb specifies the level that constitutes a 5. GACT for Equipment Leaks were unreasonable. leak. Alternatively, if the owner or operator elects to monitor directly for We concluded that most chemical 4. GACT for Cooling Tower Systems HAP or VOC, the HON specifies manufacturing area sources conduct In evaluating GACT options, we sampling and analysis procedures, periodic sensory-based inspections to found permits for three petroleum including the sampling locations and identify and repair leaks as part of refineries (1 in California, 1 in Indiana, frequency, and a statistical procedure routine or preventive maintenance and 1 in Illinois) that are required to for determining whether the data programs. Based on permits and other conduct daily or weekly visual indicate the presence of a leak. When a available information, we determined inspections for evidence of leak is found by either method, the HON that some facilities have obtained hydrocarbons in cooling tower requires that the owner or operator synthetic minor status for HAP and may recirculating water. Determination of identify and fix the source of the leak be implementing leak detection and other parameters such as the chlorine within 45 days after detection, unless repair programs based on instrument content and/or total dissolved solids is conditions for delay of repair are met. monitoring consistent with NESHAP for also required periodically. Required Most of the MACT rules for other major sources (e.g., equipment leak actions in response to finding chemical manufacturing source standards in 40 CFR part 63, subparts H, hydrocarbons in the water vary among categories issued after the HON U, GGG, JJJ, MMM, and FFFF). the four facilities. One facility is incorporate by reference the HON’s The prevalence of sensory-based required to take remedial action to cooling tower system requirements. inspection programs makes them a correct the problem. The second facility viable potential option for GACT. If, as Although the HON applies only to is required to conduct VOC sampling believed, a large percentage of facilities major sources, there are no technical and estimate the VOC emissions; if are already being inspected for reasons why the procedures could not emissions are estimated to exceed 5 equipment leaks, the costs associated be applied at area sources as well. tons/yr, then the facility must apply for with this option would be small. The Therefore, we evaluated the costs of a cooling tower permit. The third costs are estimated to be about $1,100/ applying the surrogate and direct facility must develop and operate in yr/facility for a sensory-based quarterly monitoring options to both accordance with a site-specific checklist inspection and repair program. of steps to take if the inspection subcategories of cooling towers at We also considered a more stringent parameters indicate the presence of a chemical manufacturing area sources. option that would achieve reductions leak. Although the three facilities are For cooling towers in the subcategory comparable to the leak detection and petroleum refineries, the inspection with cooling water flow rates equal to or repair program in 40 CFR part 63, procedures that they conduct are greater than 8,000 gal/min, we estimated subpart FFFF. Requirements include management practices that could be the average cost of the surrogate periodic instrument-based monitoring of implemented by chemical monitoring option to be about $1,600/yr pumps, valves, and in some cases, manufacturing area sources. Therefore, per facility, and the cost-effectiveness is connectors, to detect leaks of organic we are proposing the following estimated at $1,100/ton of HAP compounds above specified management practices for small cooling removed. For cooling towers in the concentrations. Monitoring frequencies tower systems at sources affected by this subcategory with cooling water flow vary depending on the type of proposed rule: (1) Development of a rates less than 8,000 gal/min, the cost- equipment and the percentage of site-specific plan that describes the effectiveness is estimated at $13,000/ton equipment found to be leaking, but the characteristics that the owner or of HAP removed. requirements are similar in each rule. operator will consider evidence of Based on the information regarding These rules also require the use of process fluid leaks into the cooling available monitoring methods and certain equipment or management water and the actions to be taken in estimated costs, we are proposing that practices for other types of equipment. response to finding such conditions; (2) GACT be different for the two We estimated that annual costs for quarterly inspections in accordance subcategories. Costs to implement model facilities range from about with the plan for evidence of leaks; and monitoring consistent with HON $36,000/yr to $72,000/yr. In addition, (3) keeping a log documenting the requirements was determined to be we anticipate that most of the processes inspection dates, findings, and actions unreasonable for the subcategory of at area sources are batch processes. In taken. We estimated the cost of this cooling towers with cooling water flow the analysis for the MON, we option at $800/yr per facility. rates less than 8,000 gal/min. Therefore, determined the cost-effectiveness of the We also reviewed State and Federal we are proposing that GACT for this MACT floor for batch processes (i.e., an rules for emission standards that apply subcategory is management practices as LDAR program only slightly different to cooling tower systems at area sources described above for small cooling tower than the final standard) at about or that would be technically feasible for systems. For cooling towers systems in $11,000/ton of HAP removed. Given area sources. On the Federal side, the subcategory with cooling water flow that area sources likely have fewer SOCMI sources that are subject to the rates equal to or greater than 8,000 gal/ components and lower emissions than HON must monitor either surrogate min, we estimated that the cost of major source, we expect the cost- indicators of a leak or monitor the water quarterly surrogate monitoring is effectiveness to implement an LDAR for one or more HAP or VOC that, if reasonable, and therefore we are program like that in the MON would be present, would indicate a leak. In the proposing surrogate monitoring as higher than $11,000/yr. This cost is HON, if surrogate indicators are to be GACT. We request comment on this unreasonable. Therefore, we are monitored, the owner or operator must decision and rationale for alternative proposing that GACT for equipment prepare a monitoring plan that approaches. We are also interested in leaks at all chemical manufacturing area documents the procedures to be used, emission and cost data for cooling sources is a program to conduct defines the parameter(s) or condition to towers that are implementing the quarterly sensory-based inspections for be monitored, explains why the monitoring requirements in the HON or leaks and repair equipment found to be

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leaking. As explained above, while the evaporation losses and the use of and are not currently implementing cost-effectiveness cannot be determined, submerged loading. separation techniques as specified in the actual cost is reasonable. Option 2. We estimated the average 7. GACT for Wastewater Systems cost-effectiveness for these area sources 6. GACT for Transfer Operations Chemical manufacturing facilities to implement Option 2 at $1,600/ton of Management practices to minimize typically discharge wastewater to some HAP removed. This approach may emissions from transfer operations are form of water treatment because overstate the costs if the recovered commonly implemented. These treatment is needed to meet applicable organic material can be reused in the procedures include minimizing spills, effluent limitations. Biological process or as fuel. Option 2 is not cleaning up spills promptly, covering treatment, either onsite or offsite, is the applicable for the subcategory of open containers when not in use, and most common form of treatment. Other streams with PSHAP concentrations minimizing discharges to open waste types of treatment include steam below 10,000 ppmw; gravity separation collection systems. We estimate the stripping and treatment onsite or offsite techniques would have no effect on average costs to implement these as a hazardous waste. All of the MACT streams in this subcategory because they management practices at $620/yr per standards for the different chemical are already a single phase. facility. manufacturing source categories require Costs for Option 3 were estimated In background documentation for the treatment of wastewater streams that assuming an owner or operator would HON, we noted that as of 1991 meet certain flow and HAP either treat the wastewater onsite using approximately 97 percent of the SOCMI concentration levels. These standards steam stripping or collect the facilities have, in addition to require either the use of a treatment unit wastewater for treatment offsite as a implementing the management practices that meets specified design criteria or hazardous waste, whichever is least set forth above, already converted that achieves specified destruction costly. The average cost-effectiveness for efficiencies for the HAP in the vehicles and, where necessary, loading the estimated 20 facilities with wastewater. They also typically require racks for submerged fill or bottom wastewater streams in the subcategory the use of covers and other techniques loading. Thus, submerged loading is of streams with PSHAP concentrations to suppress emissions from the another available management practice equal to or greater than 10,000 ppmw is wastewater conveyance system and for transfer operations. Assuming the $16,000/ton of HAP removed. We treatment units. Some of the MACT 1991 findings are still valid for area estimated that at least 24 area sources standards also prohibit the discharge of sources, we estimate that three area are in the subcategory with PSHAP multi-phase wastewater streams to sources would need to install concentrations less than 10,000 ppmw. wastewater treatment systems. equipment to comply with a standard The estimated average cost-effectiveness Decanters and other equipment that that requires submerged loading, and we for these area sources to meet Option 3 separate organic materials and water is $110,000/ton of HAP removed. estimate the costs to be less than $2,000/ mixtures into separate streams are Based on the information regarding yr per facility. widely available and used to meet this available controls and estimated costs, We also considered vapor balancing requirement. Although information we are proposing that GACT be different as GACT. Several MACT rules allow about the number of area sources for the two subcategories. All three vapor balancing as an alternative to implementing controls like those control options are technically feasible demonstrating compliance with a required in the MACT standards is not at area sources; therefore, we selected percent reduction emissions limit. As available, the technology used to meet GACT based on the most effective part of the GACT analysis we evaluated these standards is as applicable at an method or combination of methods that the costs for facilities to implement area source as at a major source. has acceptable costs. For both vapor balancing. If all facilities could Based on the information regarding subcategories, we are proposing that implement vapor balancing, we available controls, we developed three GACT consists of some form of estimated the costs to be approximately options for evaluation as GACT for the treatment (e.g., whatever is needed to $12,000/yr per facility, and the two subcategories of wastewater meet effluent limitations) because this estimated cost-effectiveness to be streams: (1) Discharge the wastewater control is typically already being approximately $130,000/ton of HAP stream to a treatment process, (2) use implemented by area sources and removed. However, vapor balancing gravity separation techniques to therefore the costs are reasonable. For uses process equipment and may not be separate organic and water layers (and the subcategory of wastewater streams feasible for all affected facilities. To then discharge only the water phase to with PSHAP concentrations equal to or achieve a comparable level of emissions wastewater treatment), and (3) treat the greater than 10,000 ppmw, we are control, these facilities would have to wastewater stream using controls that proposing that GACT also consists of route displaced vapors from the tank meet MACT requirements (specifically the use of gravity separation techniques trucks and railcars to an air pollution the HON requirements). As part of the to separate the wastewater into organic control device. If a new control device analysis, we evaluated the costs of each and water layers before the water layer must be installed, the costs may be option. Because facilities typically is discharged to treatment because the considerably greater than for vapor implement some form of treatment for cost of this control technique is balancing. As a result, the cost- all wastewater streams (i.e., both reasonable. We are proposing that effectiveness of a control option based subcategories), we assumed that area controls needed to meet more stringent on vapor balancing or equivalent control sources would incur no additional costs emission limits like those required by is likely to be greater than $130,000/ton to meet Option 1. the HON do not represent GACT for of HAP removed. Costs for Option 2 consist of the cost either subcategory because the costs are Because the cost of vapor balancing for a decanter and the cost to dispose of unreasonable. was determined to be unreasonable, we the organic layer as a hazardous waste. are proposing that GACT for transfer We estimated that 20 area sources have C. How did we select compliance operations at all chemical wastewater streams in the subcategory requirements? manufacturing area sources consists of of streams with PSHAP concentrations For new and existing sources, we are management practices to minimize equal to or greater than 10,000 ppmw proposing to apply the testing;

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monitoring; operation and maintenance; subcategories that are subject to soluble HAP concentrations greater than and notification, reporting, and emission reduction limits. 10,000 ppmw and the disposition of all recordkeeping requirements in the We have reviewed the testing, organic phases generated in decanters or NESHAP General Provisions (40 CFR monitoring, recordkeeping and other separation equipment. We have part 63, subpart A) to ensure reporting requirements for metal process determined that these requirements are compliance with this proposed rule. We vents in subpart NNNNNN of part 63 sufficient to assure compliance with the are proposing management practices for (standards for chromium compound proposed standards for wastewater. manufacturing). We are proposing to all emission sources except wastewater D. Why did we decide to exempt these and emission limits for all emission require the testing and reporting requirements for chromium compound area source categories from title V sources except equipment leaks and permitting requirements? transfer operations. We propose that the manufacturing in 40 CFR part 63, requirements in the General Provisions subpart NNNNNN for the subcategory of We are proposing exemption from and the additional requirements area sources (both new and existing) title V permitting requirements for discussed below are sufficient to ensure that emit more than 100 lb/yr of metal affected sources in the Agricultural compliance with the proposed HAP. We are also proposing to require Chemicals and Pesticides emissions limits and management the monitoring requirements in subpart Manufacturing, Cyclic Crude and practices. NNNNNN for new area sources that Intermediate Production, Industrial Initial compliance certification emit more than 100 lb/yr of metal HAP. Inorganic Chemical Manufacturing, followed by quarterly inspections is For existing sources, however, we have Industrial Organic Chemical required for all management practices determined that monitoring of control Manufacturing, Inorganic Pigments proposed in this notice. We have device parameters is needed to Manufacturing, Miscellaneous Organic Chemical Manufacturing, Plastic determined that monitoring in the form demonstrate compliance with the 95 Materials and Resins Manufacturing, of recordkeeping is sufficient to ensure percent reduction emission limit. Pharmaceutical Production, and compliance with the requirements of the Therefore, we are proposing that each Synthetic Rubber Manufacturing area proposed rule. Records of inspections existing source develop a site-specific source categories for the reasons that document the date of each monitoring plan to identify the described below. inspection, the results of each operating parameters that will be monitored and the operating limit for Section 502(a) of the CAA provides inspection, and the actions taken as a that the Administrator may exempt an result of findings during the inspections each parameter. We are also proposing that existing sources keep records of the area source category from title V if he are required. These compliance determines that compliance with title V requirements are similar the equipment collected monitoring data. We have reviewed the inspection, requirements is ‘‘impracticable, leak inspection requirements in 40 CFR monitoring, recordkeeping, and infeasible, or unnecessarily part 63, subparts R and HHHHH and are reporting requirements in the NSPS for burdensome’’ on an area source sufficient to verify that the inspections volatile organic liquid storage tanks (40 category. See CAA section 502(a). In have been conducted at the required CFR part 60, subpart Kb), and we December 2005, in a national frequency and that the leaking believe that these requirements are rulemaking, EPA interpreted the term equipment has been identified and sufficient to assure compliance with the ‘‘unnecessarily burdensome’’ in CAA promptly repaired. emission standards proposed in this section 502 and developed a four-factor For cooling towers and transfer rule for large storage tanks (i.e., the balancing test for determining whether operations the management practices subcategory of storage tanks that exceed title V is unnecessarily burdensome for have additional requirements. The the capacity and MTVP thresholds in 40 a particular area source category, such management practices for cooling tower CFR part 60, subpart Kb). Therefore, we that an exemption from title V is systems requires the owner or operator are proposing to incorporate the appropriate. See 70 FR 75320, December to develop an inspection plan inspection, monitoring, recordkeeping, 19, 2005 (‘‘Exemption Rule’’). describing corrective actions to be taken and reporting requirements of 40 CFR The four factors that EPA identified in if the presence of a leak is indicated. part 60, subpart Kb into this rule to the Exemption Rule for determining The management practices for transfer apply to the large storage tank whether title V is ‘‘unnecessarily operation require submerged loading. subcategory. burdensome’’ on a particular area source The proposed compliance We have reviewed the testing, category include: (1) Whether title V requirements associated with the monitoring, recordkeeping, and would result in significant emission limits in the proposed rule are reporting requirements for cooling improvements to the compliance addressed below. We have reviewed the towers in 40 CFR part 63, subpart F. We requirements, including monitoring, testing, monitoring, recordkeeping and have determined that these recordkeeping, and reporting, that are reporting requirements for batch process requirements are sufficient to assure proposed for an area source category (70 vents and continuous process vents in compliance with the proposed surrogate FR 75323); (2) whether title V subparts SS and FFFF of 40 CFR this monitoring standards for the cooling permitting would impose significant part 63. We believe that these tower emission sources in this rule. burdens on the area source category and requirements are sufficient to ensure Therefore, we are incorporating by whether the burdens would be compliance with the proposed reference the testing, monitoring, aggravated by any difficulty the sources emissions limits for continuous and recordkeeping, and reporting may have in obtaining assistance from batch process vents for the nine area requirements of subpart F and applying permitting agencies (70 FR 75324); (3) source categories at issue in this those requirements to the subcategory of whether the costs of title V permitting proposed rule. We have, therefore, area sources that are subject to the for the area source category would be incorporated the subpart SS and subpart surrogate monitoring standards for justified, taking into consideration any FFFF testing, monitoring, cooling towers in this proposed rule. potential gains in compliance likely to recordkeeping, and reporting Each owner or operator would be occur for such sources (70 FR 75325); requirements into this rule for those required to keep records identifying all and (4) whether there are continuous and batch process vent wastewater streams with total partially implementation and enforcement

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programs in place that are sufficient to semi-annual reporting to assure V would not significantly improve those assure compliance with the NESHAP for compliance with these requirements. compliance requirements. the area source category, without relying The monitoring component of the first For the second factor, we determine on title V permits (70 FR 75326). factor favors title V exemption. For the whether title V permitting would In discussing these factors in the management practices, this proposed impose a significant burden on the area Exemption Rule, we further explained standard provides monitoring in the sources in the categories and whether that we considered on ‘‘a case-by-case form of recordkeeping that would assure that burden would be aggravated by any basis the extent to which one or more compliance with the requirements of the difficulty the source may have in of the four factors supported title V proposed rule. Monitoring by means obtaining assistance from the permitting exemptions for a given source category, other than recordkeeping for the agency. Subjecting any source to title V and then we assessed whether management practices is not practical or permitting imposes certain burdens and considered together those factors appropriate. Records are required to costs that do not exist outside of the title demonstrated that compliance with title ensure that the management practices V program. EPA estimated that the V requirements would be ’unnecessarily are followed. The proposed rule average cost of obtaining and complying burdensome’ on the category, consistent requires the owner or operator to record with a title V permit was $38,500 per with section 502(a) of the Act.’’ See 70 the date and results of inspections, as source for a 5-year permit period, FR 75323. Thus, in the Exemption Rule, well as any actions taken in response to including fees. See Information we explained that not all of the four findings of the inspections. The records Collection Request for Part 70 Operating factors must weigh in favor of are required to be maintained as Permit Regulations, January 2000, EPA exemption for EPA to determine that checklists, logbooks and/or inspection ICR Number 1587.05. EPA does not title V is unnecessarily burdensome for forms. The rule also requires emission have specific estimates for the burdens a particular area source category. limit requirements for some and costs of permitting these types of Instead, the factors are to be considered subcategories. Monitoring of control chemical manufacturing area sources; in combination, and EPA determines device or recovery device operating however, there are certain activities whether the factors, taken together, parameters using CPMS or periodic associated with the part 70 and 71 rules. support an exemption from title V for a monitoring is required to assure These activities are mandatory and particular source category. compliance with these emission limits. impose burdens on any facility subject In the Exemption Rule, in addition to As part of the first factor, in addition to title V. They include reading and determining whether compliance with to monitoring, we have considered the understanding permit program guidance title V requirements would be extent to which title V could potentially and regulations; obtaining and unnecessarily burdensome on an area enhance compliance for area sources understanding permit application forms; source category, we considered, covered by this proposed rule through answering follow-up questions from consistent with the guidance provided recordkeeping or reporting permitting authorities after the by the legislative history of section requirements. We have considered the application is submitted; reviewing and 502(a), whether exempting the area various title V recordkeeping and understanding the permit; collecting source categories would adversely affect reporting requirements, including records; preparing and submitting public health, welfare or the requirements for a 6-month monitoring monitoring reports on a 6-month or environment. See 70 FR 15254–15255, report, deviation reports, and an annual more frequent basis; preparing and March 25, 2005. As explained below, we certification in 40 CFR 70.6 and 71.6. submitting prompt deviation reports, as propose that title V permitting is For any chemical manufacturing area defined by the State, which may include unreasonably burdensome for the area source, this proposed NESHAP requires a combination of written, verbal, and source categories at issue in this an Initial Notification and a Notification other communications methods; proposed rule. We have also determined of Compliance Status. This proposed collecting information, preparing, and that the proposed exemptions from title rule also requires facilities to certify submitting the annual compliance V would not adversely affect public compliance with the emission limits certification; preparing applications for health, welfare and the environment. and management practices. In addition, permit revisions every 5 years; and, as Our rationale for this decision follows facilities must maintain records needed, preparing and submitting here. showing compliance with the required applications for permit revisions. In In considering the exemption from emission limits, management practices addition, although not required by the title V requirements for sources in the and deviation requirements. The permit rules, many sources obtain the categories affected by this proposed information required in the deviation contractual services of consultants to rule, we first compared the title V reports is similar to the information that help them understand and meet the monitoring, recordkeeping, and must be provided in the deviation permitting program’s requirements. The reporting requirements (factor one) to reports required under 40 CFR 70.6(a)(3) ICR for part 70 provides additional the requirements in the proposed and 40 CFR 71.6(a)(3). In addition to information on the overall burdens and NESHAP for the area source categories. documenting all deviations, sources are costs, as well as the relative burdens of The proposed rule requires required to include in the semi-annual each activity described here. Also, for a implementation of certain management report any delay in repair of any leak or more comprehensive list of practices, which are practices that are any process change that required a requirements imposed on part 70 currently used at most facilities, for performance test or recalculation of sources (hence, burden on sources), see most subcategories and add on controls emissions. the requirements of 40 CFR 70.3, 70.5, and other requirements, in addition to We acknowledge that title V might 70.6, and 70.7. management practices for other impose additional compliance In assessing the second factor for subcategories of sources. The proposed requirements on these categories, but we facilities affected by this proposal, we rule requires direct monitoring of have determined that the monitoring, found that many of the facilities that emissions or control device parameters, recordkeeping and reporting would be affected by this proposed rule both continuous and periodic, requirements of the proposed NESHAP are small entities. These small sources recordkeeping that also may serve as are sufficient to assure compliance with lack the technical resources that would monitoring, and deviation and other the provisions of the NESHAP, and title be needed to comply with permitting

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requirements and the financial and 114. Also, States and EPA often substantive air quality control resources that would be needed to hire conduct voluntary compliance requirements on sources, but instead the necessary staff or outside assistance, outreach, and education requires that certain procedural consultants. As discussed above, title V programs (compliance assistance measures be followed, particularly with permitting would impose significant programs), which are not required by respect to determining compliance with costs on these area sources, and, statute. We determined that these applicable requirements. As stated in accordingly, we conclude that title V is additional programs will supplement our consideration of factor one for this a significant burden for sources in these and enhance the success of compliance category, title V would not lead to categories. Furthermore, given the with these proposed standards. We significant improvements in the number of sources in the categories, it believe that the statutory requirements compliance requirements applicable to would likely be difficult for them to for implementation and enforcement of existing or new area sources. obtain sufficient assistance from the this NESHAP by the delegated States Furthermore, we explained in the permitting authority. Thus, we conclude and EPA and the additional assistance Exemption Rule that requiring permits that factor two supports title V programs described above together are for the large number of area sources exemption for these categories. sufficient to assure compliance with could, at least in the first few years of The third factor, which is closely these proposed standards without implementation, potentially adversely related to the second factor, is whether relying on title V permitting. affect public health, welfare, or the the costs of title V permitting for these In light of all the information environment by shifting State agency area sources would be justified, taking presented here, we believe that there are resources away from assuring into consideration any potential gains in implementation and enforcement compliance for major sources with compliance likely to occur for such programs in place that are sufficient to existing permits to issuing new permits sources. We explained above under the assure compliance with the proposed for these area sources, potentially second factor that the costs of standards without relying on title V reducing overall air program compliance with title V would impose permitting. effectiveness. Based on the above a significant burden on many of the Balancing the four factors for these analysis, we conclude that title V approximately 450 facilities affected by area source categories strongly supports exemptions for these area sources will the proposed rule. We also concluded in the proposed finding that title V is not adversely affect public health, considering the first factor that, while unnecessarily burdensome. While title welfare, or the environment for all of the title V might impose additional V might add additional compliance reasons explained above. requirements, the monitoring, requirements if imposed, we believe For the reasons stated here, we are recordkeeping and reporting that there would not be significant proposing to exempt these area source requirements in the proposed NESHAP improvements to the compliance categories from title V permitting assure compliance with the emission requirements in this proposed rule requirements. standards imposed in the NESHAP. In because the proposed rule requirements addition, below in our consideration of are specifically designed to assure V. Impacts of the Proposed Standards the fourth factor, we find that there are compliance with the emission standards A. What are the air impacts? adequate implementation and imposed on these area source categories. enforcement programs in place to assure We further maintain that the economic We estimate that the proposed compliance with the NESHAP. Because and non-economic costs of compliance standard will reduce organic HAP the costs, both economic and non- with title V would impose a significant emissions by 211 tpy and metal HAP economic, of compliance with title V are burden on the sources. We determined emissions by 44 tpy from the baseline high, and the potential for gains in that the high relative costs would not be level, for an overall HAP emission compliance is low, title V permitting is justified given that there is likely to be reduction of 255 tpy from the baseline. not justified for this source category. little or no potential gain in compliance Table 3 of this preamble summarizes the Accordingly, the third factor supports if title V were required. And, finally, estimated HAP reductions under the title V exemptions for these area source there are adequate implementation and proposed standards for each type of categories. enforcement programs in place to assure emission point. The fourth factor we considered in compliance with these proposed determining if title V is unnecessarily standards. Thus, we propose that title V TABLE 3—ESTIMATED NATIONWIDE burdensome is whether there are permitting is ‘‘unnecessarily HAP EMISSION REDUCTIONS implementation and enforcement burdensome’’ for these area source programs in place that are sufficient to categories. HAP emis- Urban HAP assure compliance with the NESHAP In addition to evaluating whether Emission point sion reduc- emission re- without relying on title V permits. EPA compliance with title V requirements is tion (tpy) duction (tpy) has implemented regulations that ‘‘unnecessarily burdensome’’, EPA also Batch process provide States the opportunity to take considered, consistent with guidance vents ...... 45 14 delegation of area source NESHAP, and provided by the legislative history of Continuous we believe that States delegated section 502(a), whether exempting these process programs are sufficient to assure area source categories from title V vents ...... 30 9 compliance with this NESHAP. See 40 requirements would adversely affect Metal HAP CFR part 63, subpart E (States must have public health, welfare, or the process adequate programs to enforce the environment. Exemption of these area vents (100 section 112 regulations and provide source categories from title V lb/yr)* ...... 44 41 Storage tanks 5 5 assurances that they will enforce all requirements would not adversely affect Cooling tower NESHAP before EPA will delegate the public health, welfare, or the systems ...... 78 24 program). environment because the level of Transfer oper- We also noted that EPA retains control would remain the same if a ations ...... 1 0 .2 authority to enforce this NESHAP permit were required. The title V permit Wastewater anytime under CAA sections 112, 113 program does not impose new systems ...... 51 16

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TABLE 3—ESTIMATED NATIONWIDE pollutants would be generated from the of performance test, notification of HAP EMISSION REDUCTIONS—Con- combustion of natural gas in compliance status report, performance tinued combustion control devices and from tests, recordkeeping, and semiannual the combustion of coal to generate compliance reports. HAP emis- Urban HAP electricity. We estimate that controlling The annual burden for this Emission point sion reduc- emission re- metal HAP emissions would generate an information collection averaged over the tion (tpy) duction (tpy) additional 620 tpy of solid waste, first 3 years of this ICR is estimated to including about 44 tpy of HAP metals. total 11,488 labor hours per year at a Total ...... 255 110 An estimated 8 tpy of organic material cost of $0.87 million for the 450 existing * With a metal HAP subcategory of 400 lb/ would be recovered from wastewater area sources and 27 estimated new yr, the emission reductions would be 41 tons using gravity separation techniques. sources. Capital/startup costs for per year HAP and 37 tons per year urban performance tests and monitoring HAP. The electricity, criteria pollutant, and solid waste impacts from controlling equipment are estimated at $102,800, B. What are the cost impacts? HAP metals would be lower under the and operation and maintenance costs for the monitoring equipment are estimated The total capital cost of the proposed co-proposed alternative that sets a higher size threshold between at $11,900/yr. Burden is defined at 5 standard is estimated at $2.9 million. CFR 1320.3(b). The total annualized cost of the subcategories of metal HAP process vents. Overall, if the proposed rule An agency may not conduct or proposed standards, including the sponsor, and a person is not required to annualized cost of capital equipment, is includes this co-proposed alternative, we estimate that an additional 150 respond to, a collection of information estimated at $3.9 million/yr. For the co- unless it displays a currently valid OMB proposed threshold of 400 lb/yr the total megawatt-hours of electricity would be needed, an additional 1.4 tpy of criteria control number. The OMB control capital cost is estimated at $2.3 million numbers for EPA’s regulations in 40 and the total annualized cost is pollutants would be generated, and an additional 580 tpy of solid waste would CFR part 63 are listed in 40 CFR part 9. estimated at $2.6 million/yr. Additional To comment on the Agency’s need for information on our impact estimates on be generated (including 41 tpy of HAP metal and 8 tpy of organic material from this information, the accuracy of the the sources is available in the docket. provided burden estimates, and any wastewater controls). (See Docket Number EPA–HQ–OAR– suggested methods for minimizing 2008–0334.) VI. Statutory and Executive Order respondent burden, EPA has established C. What are the economic impacts? Reviews a public docket for this rule, which includes this ICR, under Docket ID A. Executive Order 12866: Regulatory The proposed standard is estimated to number EPA–HQ–OAR–2008–0334. Planning and Review impact a total of 450 existing area Submit any comments related to the ICR source facilities and 27 new sources in Under Executive Order 12866 (58 FR to EPA and OMB. See ADDRESSES the next 3 years. Few of these facilities 51735, October 4, 1993), this action is a section at the beginning of this notice are small entities. Our analyses indicate ‘‘significant regulatory action’’ because for where to submit comments to EPA. that the proposed rule will not impose it may raise novel legal or policy issues. Send comments to OMB at the Office of a significant adverse impact on any Accordingly, EPA submitted this action Information and Regulatory Affairs, facilities, large or small. The average to OMB for review under Executive Office of Management and Budget, 725 cost for each chemical manufacturing Order 12866, and any changes made in 17th Street, NW, Washington, DC 20503, industry is projected to be less than 0.07 response to OMB recommendations Attention: Desk Office for EPA. Since percent of average sales. In addition, the have been documented in the docket for OMB is required to make a decision average costs in each industry are this action. concerning the ICR between 30 and 60 projected to be less than 0.2 percent of B. Paperwork Reduction Act days after October 6, 2008, a comment average sales for the smallest facilities to OMB is best assured of having its full within each industry (i.e., facilities with The information collection effect if OMB receives it by November 50 to 99 employees). requirements in this proposed rule have 5, 2008. The final rule will respond to been submitted for approval to OMB D. What are the non-air health, any OMB or public comments on the under the Paperwork Reduction Act, 44 environmental, and energy impacts? information collection requirements U.S.C. 3501, et seq. The Information contained in this proposal. The secondary impacts would include Collection Request (ICR) document energy impacts associated with direct prepared by EPA has been assigned EPA C. Regulatory Flexibility Act operation of combustion control ICR number 2323.01. The Regulatory Flexibility Act (RFA) devices, energy impacts associated with The recordkeeping and reporting generally requires an agency to prepare the generation of electricity to operate requirements in the proposed rule are a regulatory flexibility analysis of any control devices, and solid waste based on the information collection rule subject to notice and comment generated as a result of the metal HAP requirements in the part 63 General rulemaking requirements under the emissions collected. Organic materials Provisions (40 CFR part 63, subpart A). Administrative Procedure Act or any that are recovered from wastewater All information submitted to EPA other statute unless the agency certifies using gravity separation techniques pursuant to the information collection that the rule would not have a would also be a solid waste if the requirements for which a claim of significant economic impact on a material could not be reused in a confidentiality is made is safeguarded substantial number of small entities. process or as fuel. according to CAA section 114(c) and the Small entities include small businesses, We estimate that an additional 220 Agency’s implementing regulations at small not-for-profit enterprises, and megawatt-hour/yr of electricity and 40 CFR part 2, subpart B. small governmental jurisdictions. 260,000 standard cubic feet per year The proposed information collection For the purposes of assessing the (scf/yr) of natural gas would be needed requirements consist of an initial impacts of the proposed area source to operate control devices. We estimate notification of applicability, notification NESHAP on small entities, small entity that an additional 2.1 tpy of criteria for use of previous test data, notification is defined as: (1) A small business that

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meets the Small Business any State, local, tribal governments or G. Executive Order 13045: Protection of Administration size standards for small the private sector. Children From Environmental Health businesses found at 13 CFR 121.201 This action is also not subject to the and Safety Risks (less than 500, 750, or 1,000 employees requirements of section 203 of UMRA EPA interprets Executive Order 13045 depending on the category); (2) a small because it contains no regulatory (62 FR 19885, April 23, 1997) as governmental jurisdiction that is a requirements that might significantly or applying to those regulatory actions that government of a city, county, town, uniquely affect small governments. The concern health or safety risks, such that school district, or special district with a proposed rules contain no requirements the analysis required under section 5– population of less than 50,000; and (3) that apply to such governments, and 501 of the Order has the potential to a small organization that is any not-for- impose no obligations upon them. influence the regulation. This action is profit enterprise which is independently E. Executive Order 13132: Federalism not subject to Executive Order 13045 owned and operated and is not Executive Order 13132 (64 FR 43255, because it is based solely on technology dominant in its field. performance. After considering the economic August 10, 1999) requires EPA to impacts of the proposed rules on small develop an accountable process to H. Executive Order 13211: Actions entities, I certify that this action will not ensure ‘‘meaningful and timely input by Concerning Regulations That have a significant economic impact on State and local officials in the Significantly Affect Energy Supply, a substantial number of small entities. development of regulatory policies that Distribution, or Use An economic impacts analysis was have federalism implications.’’ ‘‘Policies This action is not a ‘‘significant performed to compare the control costs that have federalism implications’’ are energy action’’ as defined in Executive associated with producing a product at defined in the Executive Order to Order 13211 (66 FR 28355 (May 22, facilities in the various chemical include regulations that have 2001)), because it is not likely to have manufacturing industries to the average ‘‘substantial direct effects on the States, a significant adverse effect on the value of shipments from such facilities. on the relationship between the national supply, distribution, or use of energy. In all industries, the average costs are government and the States, or on the Further, we have concluded that this projected to be less than 0.07 percent of distribution of power and proposed rule is not likely to have any average sales. For the smallest facilities responsibilities among the various adverse energy impacts. in each industry (those with 50 to 99 levels of government.’’ The proposed rule does not have I. National Technology Transfer employees), the average costs are all federalism implications. It will not have Advancement Act projected to be less than 0.2 percent of substantial direct effects on the States, average sales. Thus, any price increases Section 12(d) of the National on the relationship between the national or loss of profit would be quite small. Technology Transfer and Advancement government and the States, or on the Act of 1995 (NTTAA), Public Law 104– Although this proposed rule will not distribution of power and 113 (15 U.S.C. 272 note) directs EPA to have a significant economic impact on responsibilities among the various use voluntary consensus standards a substantial number of small entities, levels of government, as specified in (VCS) in its regulatory activities unless EPA nonetheless has tried to minimize Executive Order 13132. This action to do so would be inconsistent with the impact of this rule on all facilities, imposes requirements on owners and applicable law or otherwise impractical. including small entities. Most facilities operators of specified area sources and VCS are technical standards (e.g., are in subcategories for which the not State and local governments. Thus, materials specifications, test methods, proposed standards represent practices Executive Order 13132 does not apply sampling procedures, and business and controls that are common in the to the proposed rule. practices) that are developed or adopted industry. The standards also include In the spirit of Executive Order 13132, by VCS bodies. NTTAA directs EPA to only the minimal amount of and consistent with EPA policy to provide Congress, through OMB, recordkeeping and reporting needed to promote communications between EPA explanations when the Agency decides demonstrate and verify compliance. For and State and local government, EPA not to use available and applicable VCS. example, compliance reports are specifically solicits comments on the The rulemaking involves technical required only for semiannual reporting proposed rule from State and local standards. Therefore, EPA conducted a periods in which a deviation occurred, officials. search to identify potentially applicable the owner or operator invoked delay of VCS. However, we identified no such F. Executive Order 13175 repair provisions for a cooling tower standards, and none were brought to our system, or a process change was made This action does not have tribal attention in comments. Therefore, EPA that potentially changed the conditions implications, as specified in Executive has decided to use Methods 5, 5D, and on which a subcategory determination Order 13175 (65 FR 67249, November 9, 29. was made. 2000). This action would not have EPA welcomes comments on this We continue to be interested in the substantial direct effects on tribal aspect of the proposed rulemaking and, potential impacts of the proposed rule governments, on the relationship specifically, invites the public to on small entities and welcome between the Federal government and identify potentially applicable VCS and comments on issues related to such Indian tribes, or on the distribution of to explain why such standards should impacts. power and responsibilities between the be used in this regulation. Federal government and Indian tribes. Under 40 CFR 63.7(f) and 40 CFR D. Unfunded Mandates Reform Act The action imposes requirements on 63.8(f) of subpart A of the General This action contains no Federal owners and operators of specified area Provisions, a source may apply to EPA mandates under the provisions of Title sources and not tribal governments. for permission to use alternative test II of the Unfunded Mandates Reform Thus, Executive Order 13175 does not methods or alternative monitoring Act of 1995 (UMRA), 2 U.S.C. 1531– apply to this action. requirements in place of any required 1538 for State, local, and tribal EPA specifically solicits additional testing methods, performance governments or the private sector. This comment on this proposed action from specifications, or procedures in the final action imposes no enforceable duty on tribal officials. rule and amendments.

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J. Executive Order 12898: Federal 63.11496 What are the standards and connector, and instrumentation system Actions to Address Environmental compliance requirements for process associated with the production of such Justice in Minority Populations and vents? materials. Low-Income Populations 63.11497 What are the standards and (c) This subpart does not apply to the compliance requirements for storage operations specified in paragraphs (c)(1) tanks? Executive Order 12898 (59 FR 7629, through (5) of this section. February 16, 1994) establishes Federal 63.11498 What are the standards and compliance requirements for equipment (1) The following chemical executive policy on environmental manufacturing area source categories justice. Its main provision directs leaks? 63.11499 What are the standards and listed pursuant to CAA section 112(c)(3) Federal agencies, to the greatest extent compliance requirements for transfer or 112(k)(3)(B)(ii) that are subject to or practicable and permitted by law, to operations? will be subject to area source standards make environmental justice part of their 63.11500 What are the standards and under this part: mission by identifying and addressing, compliance requirements for wastewater (i) Manufacture of Paint and Allied as appropriate, disproportionately high systems and cooling tower systems? Products and adverse human health or 63.11501 What are the notification, (ii) Manufacture of Chemical environmental effects of their programs, recordkeeping, and reporting Preparations policies, and activities on minority requirements? (iii) Mercury Cell Chlor-Alkali Plants populations and low-income Other Requirements and Information subject to subpart IIIII of this part. populations in the United States. 63.11502 What definitions apply to this (iv) Manufacture of polyvinyl chloride EPA has determined that this action subpart? resins subject to subpart DDDDDD of will not have disproportionately high 63.11503 Who implements and enforces this part. and adverse human health or this subpart? (v) Manufacture of acrylic and modacrylic fibers and filaments subject environmental effects on minority or Tables to Subpart VVVVVV of Part 63 low-income populations because it to subpart LLLLLL of this part. Table 1 to Subpart VVVVVV of Part 63– increases the level of environmental (vi) Manufacture of carbon black Hazardous Air Pollutants Used to subject to subpart MMMMMM of this protection for all affected populations Determine Applicability of Chemical part. without having any disproportionately Manufacturing Operations (vii) Manufacture of chromium high and adverse human health or Table 2 to Subpart VVVVVV of Part 63– compounds subject to subpart environmental effects on any Emission Limits, Management Practices, and Compliance Requirements NNNNNN of this part. population, including any minority or (2) The following chemical low-income population. The proposed Table 3 to subpart VVVVVV of Part 63– Partially Soluble HAP manufacturing processes or chemical rule establishes national standards for products described in NAICS code 325: each area source category. Table 4 to Subpart VVVVVV of Part 63– Applicability of General Provisions to (i) Manufacture of radioactive List of Subjects in 40 CFR Part 63 Subpart VVVVVV elements or isotopes, radium chloride, radium luminous compounds, Environmental protection, Air Applicability and Compliance Dates strontium, uranium. pollution control, Hazardous § 63.11494 What are the applicability (ii) Manufacture of photographic film, substances, Reporting and requirements and compliance dates? paper, and plate where the material is recordkeeping requirements. (a) Except as specified in paragraph coated with or contains chemicals. This Dated: September 19, 2008. (c) of this section, you are subject to this subpart does apply to the manufacture of photographic chemicals. Stephen L. Johnson, subpart if you own or operate chemical (iii) Fabricating operations (such as Administrator. manufacturing operations that process, spinning or compressing a solid use, produce, or generate any of the polymer into its end use); compounding For the reasons stated in the HAP listed in Table 1 to this subpart preamble, title 40, chapter I, part 63 of operations (in which blending, melting, (Table 1 HAP) and are located at an area and resolidification of a solid polymer the Code of Federal Regulations is source of HAP emissions. Feedstocks proposed to be amended as follows: product occur for the purpose of and products that contain Table 1 HAP incorporating additives, colorants, or PART 63—[AMENDED] are defined to be materials that contain stabilizers); and extrusion and drawing greater than 0.1 percent for carcinogens, operations (converting an already 1. The authority citation for part 63 as defined by OSHA at 29 CFR produced solid polymer into a different continues to read as follows: 1910.1200(d)(4), and greater than 1.0 shape by melting or mixing the polymer Authority: 42 U.S.C. 7401, et seq. percent for noncarcinogens. To and then forcing it or pulling it through determine the Table 1 HAP content of an orifice to create an extruded 2. Part 63 is amended by adding feedstocks you may rely on formulation product). An operation is subject if it subpart VVVVVV to read as follows: data provided by the manufacturer or involves processing with HAP solvent supplier, such as the Material Safety or if an intended purpose of the Subpart VVVVVV—National Emission Data Sheet for the material. Standards for Hazardous Air Pollutants operation is to remove residual HAP (b) Chemical manufacturing monomer. for Chemical Manufacturing Area operations include all process Source Categories (iv) Manufacture of chemicals equipment and activities involved in the classified in NAICS code 325222, Applicability and Compliance Dates production of materials described by 325314, or 325413. NAICS code 325. Chemical (3) Research and development Sec. manufacturing operations also include facilities, as defined in CAA section 63.11494 What are the applicability each storage tank, transfer rack, cooling requirements and compliance dates? 112(c)(7). tower system, wastewater system, (4) Quality assurance/quality control Standards and Compliance Requirements pump, compressor, agitator, pressure laboratories. 63.11495 What are the management relief device, sampling connection (5) Boilers and incinerators not used practices and other requirements? system, open-ended valve or line, valve, to comply with the emission standards

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in §§ 63.11495 through 63.11500, inspections at least quarterly to storage tank is sound and free of leaks. chillers and other refrigeration systems, demonstrate compliance with these You must repair any leak within 15 and other equipment and activities that requirements and to determine if calendar days after detection of the leak, are not directly involved (i.e., they process equipment is sound and free of or document the reason for any delay of operate within a closed system and leaks. You must repair any leak within repair. You must keep records of the materials are not combined with process 15 calendar days after detection of the dates and results of each inspection and fluids) in the processing of raw leak, or document the reason for any the date each leaking tank is removed materials or the manufacturing of a delay of repair. You must keep records from service or repaired. You must also product or intermediates used in the of the dates and results of each comply with § 63.11497 and Item 4 in production of the product. inspection and the dates of equipment Table 2 to this subpart, as applicable. (d) This subpart applies to each new repairs. You must also comply with (e) For all equipment in organic HAP or existing affected source. The affected § 63.11496(a) and Item 1 in Table 2 to service, as defined in § 63.11502, you source is the chemical manufacturing this subpart, as applicable. must comply with § 63.11498. operations located at a facility that (b) If you have an affected source with (f) For all transfer operations at an meets the criteria specified in continuous process vents, all process affected source, you must not allow any paragraphs (a) and (b) of this section. equipment in which organic HAP is transferred material that contains (1) An affected source is existing if used to process material must be organic HAP to be handled in a manner you commenced construction or covered when in use, and closure that would result in vapor releases to reconstruction of the affected source mechanisms on other openings and the atmosphere for extended periods of before October 6, 2008. access points in process equipment time. Measures to be taken include, but (2) An affected source is new if you must be in the closed position during are not limited to, the actions specified commenced construction or operation, except when operator access in paragraphs (f)(1) through (5) of this reconstruction of the affected source on is necessary. You must conduct section. or after October 6, 2008. inspections at least quarterly to (1) Minimize spills of material (e) You are exempt from the demonstrate compliance with these containing HAP. obligation to obtain a permit under 40 requirements and to determine if (2) Clean up spills of materials CFR part 70 or 40 CFR part 71, provided process equipment is sound and free of containing HAP as expeditiously as you are not otherwise required by law leaks. You must repair any leak within practicable. (3) Cover all open containers of liquid to obtain a permit under 40 CFR 70.3(a) 15 calendar days after detection of the containing HAP when not in use. or 40 CFR 71.3(a). Notwithstanding the leak, or document the reason for any delay of repair. You must keep records (4) Minimize the amount of HAP- previous sentence, you must continue to containing material sent to wastewater comply with the provisions of this of the dates and results of each inspection and the dates of equipment collection systems. subpart. (5) Use a submerged fill pipe that (f) If you own or operate an existing repairs. You must also comply with § 63.11496(b) and Item 2 in Table 2 to discharges no more than 12 inches from affected source, you must achieve the bottom of the cargo tank. compliance with the applicable this subpart, as applicable. (c) If you have an affected source with (g) For each cooling tower system at provisions in this subpart no later than metal HAP process vents, all process an affected source, you must comply 3 years after the date of publication of equipment in which metal HAP is with paragraph (g)(1) or (2) of this the final rule in the Federal Register. present during the process must be section, as applicable. (g) If you startup a new affected covered when in use, and closure (1) For each cooling tower system source on or before the date of mechanisms on other openings and with a water recirculation rate less than publication of the final rule in the access points in process equipment 8,000 gallons per minute (gal/min) that Federal Register, you must achieve must be in the closed position during serves heat exchangers with process compliance with the applicable operation, except when operator access fluid that contains any HAP listed in provisions of this subpart no later than is necessary. You must conduct Table 4 to 40 CFR part 63, subpart F, the date of publication of the final rule inspections at least quarterly to you must develop and operate in in the Federal Register. determine compliance with these accordance with a cooling tower system (h) If you startup a new affected requirements and to determine if the inspection plan. The plan must describe source after the date of publication of process equipment is sound and free of the inspections to be performed that the final rule in the Federal Register, leaks. You must repair any leak within will provide evidence of hydrocarbons you must achieve compliance with the 15 calendar days after detection of the in the recirculating water. Among other provisions in this subpart upon startup leak, or document the reason for any things, inspections may include checks of your affected source. delay of repair. You must keep records for visible floating hydrocarbon on the Standards and Compliance of the dates and results of each water, hydrocarbon odor, discolored Requirements inspection and the dates of equipment water, and/or chemical addition rates. repairs. You must also comply with The plan must also describe corrective § 63.11495 What are the management § 63.11496(f) and Item 3 in Table 2 to actions to be taken in response to practices and other requirements? this subpart, as applicable. inspection results that indicate the (a) If you have an affected source with (d) All openings and access points in presence of a leak. You must repair any batch process vents, all process storage tanks that are used to store leak within 45 calendar days after equipment in which organic HAP is liquid that contains organic HAP at an detection of the leak, or document the used to process material must be affected source must be covered, and the reason for any delay of repair. You must covered when in use, and closure covers must be in the closed position, conduct inspections at least once per mechanisms on other openings and except when operator access is quarter. You must maintain a log or access points in process equipment necessary. You must conduct checklist to document the dates and must be in the closed position during inspections at least quarterly to results of inspections and the dates and operation, except when operator access determine compliance with these types of corrective actions taken after is necessary. You must conduct requirements and to determine if the detecting leaks.

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(2) For each cooling tower with a Also, you must reevaluate your total § 63.982(e) and the requirements water recirculation rate greater than or emissions from batch process vents specified therein. equal to 8,000 gal/min that serves heat prior to making any process changes (c) Combined streams. If you combine exchangers with process fluid that that affect emissions. If projected organic HAP emissions from batch contains any HAP listed in Table 4 to emissions increase to 19,000 lb/yr or process vents and continuous process 40 CFR part 63, subpart F, you must more, you must comply with one of the vents, you must comply with the most comply with the emission standards and compliance options for batch process stringent standard in Table 2 of this other requirements specified in vents in Item 1 in Table 2 to this subpart subpart that applies to any portion of § 63.11500(b) and Item 5 in Table 2 to before operating under the new the combined stream. The TRE index this subpart. operating conditions. You must value for continuous process vents and (h) You must comply with the maintain records documenting the the annual emissions from batch process applicable standards in § 63.11500(a) results of all updated emissions vents shall be determined for the and Items 7 and 8 in Table 2 to this calculations. individual streams before they are subpart, as applicable, for all (4) As an alternative to determining combined in order to determine the wastewater streams that contain HAP the HAP emissions, you may elect to most stringent applicable requirements. listed in Table 3 to this subpart. demonstrate that the amount of organic (d) Combustion of halogenated HAP used in chemical manufacturing streams. If you use a combustion device § 63.11496 What are the standards and operations is less than 19,000 lb/yr. You to comply with the emission limits for compliance requirements for process must provide data and rationale in your organic HAP from batch process vents vents? notification of compliance status report or continuous process vents, you must (a) Organic HAP emissions from batch explaining why the organic HAP usage use a halogen reduction device to meet process vents. You must comply with will be less than 19,000 lb/yr. You must the emission limit in either paragraph the requirements in paragraphs (a)(1) keep monthly records of the organic (d)(1) or (2) of this section in accordance through (4) of this section for organic HAP usage. with § 63.994 of subpart SS of this part HAP emissions from your batch process (b) Organic HAP emissions from and the requirements referenced vents. If uncontrolled organic HAP continuous process vents. You must therein. emissions from all batch process vents comply with the requirements in (1) Reduce overall emissions of are equal to or greater than 19,000 lb/ paragraphs (b)(1) through (3) of this hydrogen halide and halogen HAP after yr, you must also comply with the section for organic HAP emissions from the combustion device by greater than emission limits and other requirements your continuous process vents. If the or equal to 95 percent, to less than or in Item 1 in Table 2 to this subpart. TRE index value for a continuous equal to 0.45 kilograms per hour (kg/hr), (1) You must determine the sum of process vent is less than or equal to 1.0, or to a concentration less than or equal organic HAP emissions from all of your you must also comply with the emission to 20 parts per million by volume batch process vents using test data or limits and other requirements in Item 2 (ppmv). the procedures in § 63.1257(d)(2)(i) and in Table 2 to this subpart. (2) Reduce the halogen atom mass (ii) of subpart GGG of this part and (1) You must determine the TRE emission rate before the combustion § 63.2460(b)(1) through (5) of subpart index value according to the procedures device to less than or equal to 0.45 kg/ FFFF of this part. Emissions for a in § 63.115(d) of subpart G of this part, hr or to a concentration less than or standard batch in a process may be used except as specified in paragraphs equal to 20 ppmv. to represent emissions from each batch (b)(1)(i) through (iii) of this section. (e) Alternative standard for organic in that process. You must maintain (i) You are not required to calculate HAP. Exceptions to the requirements for records of the calculations. Calculations the TRE index value if you control the alternative standard requirements are not required if you comply with emissions in accordance with Item 2 in specified in Table 2 to this subpart and § 63.2460(b)(5) of subpart FFFF of this Table 2 to this subpart. § 63.2505 of subpart FFFF of this part part. References in § 63.2460(b) of (ii) The reference to § 63.113(a) in are specified in paragraphs (e)(1) subpart FFFF to Group 1 batch process § 63.115(d) of subpart G of this part is through (4) of this section. vents within a process means vents that not applicable for the purposes of this (1) When § 63.2505 of subpart FFFF must meet the emission standards for paragraph. refers to Tables 1 and 2 to subpart FFFF batch process vents in Table 2 to this (iii) The term ‘‘Group 1’’ vent in and §§ 63.2455 and 63.2460, it means subpart. § 63.115(d) of subpart G of this part Table 2 to this subpart and § 63.11496(a) (2) As an alternative to calculating means a continuous process vent with a and (b). actual emissions for each process, you TRE index value less than 1.0. (2) Section 63.2505(a)(2) of subpart may elect to estimate emissions for each (2) If the current TRE index value is FFFF does not apply. process based on the emissions for the greater than 1, you must recalculate the (3) When § 63.2505(b) of subpart FFFF worst-case process. The worst-case TRE index value before you make any references § 63.2445 it means process means the process at the process or operational change that § 63.11494. affected source with the highest organic affects parameters in the calculation. If (4) The requirements for hydrogen HAP emissions per batch. Process the recalculated TRE is less than or halide and halogen HAP apply only to knowledge, engineering assessment, or equal to 1.0, then you must comply with hydrogen halide and halogen HAP test data may be used to identify the one of the compliance options for generated in a combustion device that is worst-case process. You must keep continuous process vents in Item 2 to used to comply with the alternative records of the information and Table 2 to this subpart before operating standard. procedures used to identify the worst- under the new operating conditions. (f) Emissions from metal HAP process case process. You must maintain records of all TRE vents. You must comply with the (3) If your current estimate is that calculations. requirements in paragraphs (f)(1) emissions from batch process vents are (3) If a recovery device is used to through (3) of this section for metal HAP less than 19,000 lb/yr, then you must maintain the TRE index value at a level emissions from your metal HAP process keep a record of the number of batches greater than 1.0 and less than or equal vents. If the uncontrolled metal HAP of each process operated per month. to 4.0, you must comply with with emissions from your metal HAP process

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vents is equal to or greater than [100 lb/ either HAP metals or total PM is equal HAP are listed in Table 3 to this yr or 400 lb/yr], then you must also to or greater than 95 percent. subpart. comply with the emission limits and (iv) If you comply with the (1) Determine concentrations. You other requirements in Item 3 in Table 2 monitoring requirements in must determine the total concentration to this subpart. § 63.11410(h) of subpart NNNNNN of of partially soluble HAP in each (1) You must determine and sum the this part, then you must keep records of wastewater stream using the procedures emissions from all of the metal HAP operating parameters that you monitor in § 63.144(b) of subpart G of this part, process vents, except you are not to demonstrate continuous compliance. except as specified in paragraphs required to determine the emissions if (v) The requirement in § 63.11410(h) (a)(1)(i) through (v) of this section. Also, you control metal HAP process vents in of subpart NNNNNN of this part to you must reevaluate the concentration accordance with Item 3 in Table 2 to submit the monitoring plan to EPA or of partially soluble HAP if you make this subpart. To determine the mass the delegated authority for approval any process or operational change that emission rate you may use process does not apply. For an existing source, affects the concentration of partially knowledge, engineering assessment, or the requirement to prepare a monitoring soluble HAP in a wastewater stream. test data. You must keep records of the plan applies to fabric filter controls as (i) References in § 63.144(b) of subpart emissions calculations. well as other types of controls. You G to Table 9 compounds mean the (2) If your current estimate is that must maintain the plan onsite and make compounds listed in Table 3 to this metal HAP emissions are less than [100 it available on request. subpart. lb/yr or 400 lb/yr], then you must keep (ii) References in § 63.144(b) of records of either the number of batches § 63.11497 What are requirements for storage tanks? subpart G to Table 8 compounds do not operated per month or the process apply. operating hours, whichever is consistent You must comply with the emission limits and other requirements in Item 4 (iii) References in § 63.144(b) of with the basis used in the initial subpart G to Group 2 wastewater estimate of emissions per year. Also, in Table 2 to this subpart for organic HAP emissions from your storage tanks. streams mean streams determined to you must reevaluate your total have total partially soluble HAP emissions before you make any process § 63.11498 What are the requirements for concentrations below 10,000 ppmw. or operational change that affects equipment leaks? (iv) References in § 63.144(b) of emissions of metal HAP. If emissions (a) You must perform quarterly leak subpart G to flow weighted total annual will increase to [100 lb/yr or 400 lb/yr] inspections of all equipment in organic average concentration mean flow or more, then you must comply with HAP service. For these inspections, weighted average concentration per one of the compliance options for metal detection methods incorporating sight, chemical manufacturing process (i.e., HAP process vents in Item 3 in Table 2 sound, and smell are acceptable. each process in a flexible operation unit to this subpart before operating under is evaluated separately). If the the new operating conditions. You must (b) You must repair or replace leaking concentrations in a specific stream vary keep records of all recalculated equipment within 15 calendar days after over the period of discharge but are emissions determinations. detection of the leak, or document the reason for any delay of repair. always less than 10,000 ppmw, then you (3) If you have an existing source, you (c) You must record the following may elect to determine the maximum must comply with the performance concentration only and maintain testing and monitoring requirements in information in a log book: (1) The date and results of each records containing sufficient § 63.11410(h) through (j)(1) of subpart information to document why the NNNNNN of this part, except as inspection, including the number and location of any liquid or vapor leak. determined concentration is the specified in paragraphs (f)(3)(i) through maximum for that wastewater stream. (v) of this section. If you have a new (2) The date of repair and the reason (v) Section 63.144(b)(2) of subpart G source, you must comply with the for any delay of repair beyond 15 does not apply. performance testing, monitoring, and calendar days. (2) [Reserved]. recordkeeping requirements in § 63.11499 What are the requirements for § 63.11410(f) through (j)(1) of subpart transfer operations? (b) If the water recirculation rate in NNNNNN of this part, except as your cooling tower system is equal to or You may comply with the emission greater than 8,000 gal/min, then you specified in paragraphs (f)(3)(i) through standards in Item 6 in Table 2 to this (v) of this section. must comply with the requirements subpart for organic HAP emissions from specified in Item 5 in Table 2 to this (i) When § 63.11410(i) of subpart your transfer operations in lieu of NNNNNN references an emissions limit subpart and in paragraphs (b)(1) through submerged loading requirement in (3) of this section for organic HAP in § 63.11409(b), it means Table 2 to this § 63.11495(f)(5). subpart. emissions from your cooling tower (ii) For each performance test, § 63.11500 What are the requirements for system. sampling must be conducted at both the wastewater systems and cooling tower (1) Monitoring shall be no less inlet and outlet of the control device, systems? frequent than quarterly. and the test must be conducted under (a) You must comply with the (2) The reference in § 63.104(f)(2) of representative process operating requirements in paragraph (a)(1) of this subpart F to ‘‘the next semi-annual conditions. section and in Item 7 in Table 2 to this periodic report required by § 63.152(c)’’ (iii) As an alternative to conducting a subpart for all wastewater streams. If the means the next semi-annual compliance performance test using Method 5 or 5D partially soluble HAP concentration in a report required by § 63.11501(f). to determine the concentration of wastewater stream is equal to or greater (3) The reference in § 63.104(f)(1) of particulate matter, you may use Method than 10,000 parts per million by weight subpart F to record retention 29 in 40 CFR part 60, Appendix A–8 to (ppmw), then you must also comply requirements in § 63.103(c)(1) does not determine the concentration of HAP with the emission standards in Item 8 in apply. Records must be retained as metals. You have demonstrated initial Table 2 to this subpart for that specified in §§ 63.10(b)(1) and compliance if the overall reduction of wastewater stream. Partially soluble 63.11501(d).

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§ 63.11501 What are my notification, for transfer operations’’ and, if tower with a recirculation rate greater recordkeeping, and reporting applicable, ‘‘This facility complies with than or equal to 8,000 gal/min. requirements? the requirements in § 63.11499 for (3) You must provide information on (a) General Provisions. You must meet transfer operations.’’ the date of the equipment leak or the the requirements of the General (5) This certification of compliance, leak in the process vessel, storage tank, Provisions in 40 CFR part 63, subpart A, signed by a responsible official, for the or cooling vessel with a recirculation as shown in Table 4 to this subpart. cooling tower standards in § 63.11495 rate less than 8000 gal./min. was (b) Notification of compliance status. and § 63.11500: ‘‘This facility complies identified, the date the leak was Your notification of compliance status with the management practices in repaired, and the reason for the delay in required by § 63.9(h) must include the § 63.11495 for cooling tower systems’’ or repair. following additional information as ‘‘This facility complies with the (4) You must report each process applicable: requirements in § 63.11500 for cooling change that affects a compliance (1) This certification of compliance, tower systems.’’ determination and submit a new signed by a responsible official, for the (6) This certification of compliance, certification of compliance with the process vent standards in § 63.11495 signed by a responsible official, for the applicable requirements in accordance and § 63.11496: wastewater standards in § 63.11500: with the procedures specified in (i) ‘‘This facility complies with the ‘‘This facility complies with the paragraph (b) of this section. management practices in § 63.11495 for requirements in § 63.11500 to treat each batch process vents’’ and, if applicable, wastewater stream’’ and, if applicable, § 63.11502 What definitions apply to this ‘‘This facility complies with the subpart? ‘‘This facility complies with the requirements in § 63.11496(a) for requirements in § 63.11500 for each Terms used in this subpart have the organic HAP emissions from batch stream that contains partially soluble meaning given them in the Clean Air process vents by routing emissions from HAP at a concentration equal to or Act, § 63.2, subpart SS (§ 63.981), 40 a sufficient number of vents through a greater than 10,000 ppmw.’’ CFR 60.111b, subpart F (§ 63.101), closed-vent system to any combination (7) This certification of compliance, subpart G (§ 63.111), subpart FFFF of control devices.’’ (§ 63.2550), and in this section as (ii) ‘‘This facility complies with the signed by a responsible official, for the requirement to prepare a startup, follows: management practices in § 63.11495 for Batch process vent means the point of continuous process vents’’ and, if shutdown, and malfunction plan: ‘‘This facility has prepared a startup, discharge from a unit operation in applicable, ‘‘This facility complies with chemical manufacturing operations of a the requirements in § 63.11496(b) for shutdown, and malfunction plan in accordance with the requirements of 40 gas stream that contains organic HAP organic HAP emissions from continuous and flows intermittently. process vents by venting emissions CFR 63.6(e)(3).’’ Continuous process vent means the through a closed vent system to any (c) Recordkeeping. You must maintain point of discharge from a unit operation combination of control devices.’’ files of all information required by this in chemical manufacturing operations of (iii) ‘‘This facility complies with the subpart for at least 5 years following the a gas stream that originates as a management practices in § 63.11495 for date of each occurrence according to the continuous flow from a continuous metal HAP process vents’’ and, if requirements in § 63.10(b)(1) of subpart operation and contains organic HAP. applicable, ‘‘This facility complies with A. If you are subject, you must comply the requirements in § 63.11496(f) for with the recordkeeping requirements of Deviation means any instance in metal HAP process vents by venting § 63.10(b)(2) of subpart A and the which an affected source subject to this metal HAP emissions through a closed requirements specified for subpart SS subpart, or an owner or operator of such vent system to a control device (process vents), 40 CFR part 60, subpart a source: according to the requirements in Kb (storage tanks), and subpart F (1) Fails to meet any requirement or § 63.11496(f).’’ (cooling tower systems) as specified in obligation established by this subpart, (2) This certification of compliance, this subpart. including but not limited to any signed by a responsible official, for the (d) Semiannual compliance reports. emissions limitation or management storage tank standards in § 63.11495 and You must submit a semiannual practice; § 63.11497: ‘‘This facility complies with compliance report as required by (2) Fails to meet any term or condition the management practices in § 63.11495 § 63.10(e)(3) only for semiannual that is adopted to implement an for storage tanks’’ and, if applicable, reporting periods during which a applicable requirement in this subpart ‘‘This facility complies with the deviation occurred, you invoked the and that is included in the operating requirements in § 63.11497 for storage delay of repair provisions for cooling permit for any affected source required tanks by operating and maintaining a tower systems, you do not repair an to obtain such a permit; or floating roof or closed vent system and equipment leak or a leak in any process (3) Fails to meet any emissions control device in accordance with 40 vessel or any storage tank within 15 limitation or management practice in CFR 60.112b.’’ days or any cooling tower with a this subpart during startup, shutdown, (3) This certification of compliance, recirculation rate less than 8000 gal/min or malfunction, regardless of whether or signed by a responsible official, for the within 45 days, or you implemented a not such failure is permitted by this equipment leak standards in § 63.11498: process change. Your report must subpart. ‘‘This facility complies with the include the information specified in Equipment means each pump, requirements for equipment leaks in paragraphs (d)(1) through (3) of this compressor, agitator, pressure relief § 63.11498 for all equipment that section, if applicable. device, sampling connection system, contains or contacts organic HAP.’’ (1) You must clearly identify any open-ended valve or line, valve, (4) This certification, signed by a deviation from the requirements of this connector, and instrumentation systems responsible official, for the transfer subpart. that contains or contacts organic HAP as operation standards in § 63.11495 and (2) You must include the information defined in section 112 of the CAA. § 63.11499: ‘‘This facility complies with specified in § 63.104(f)(2) of subpart F In organic HAP service means that a the management practices in § 63.11495 for each delay of repair of each cooling piece of equipment either contains or

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contacts a fluid (liquid or gas) that subpart. The following are not to 40 CFR subpart E, then that Agency contains one or more organic HAP. considered storage tanks for the has the authority to implement and Metal HAP means the compounds purposes of this subpart. enforce this subpart. You should contact containing metals listed as HAP in (1) Vessels permanently attached to your U.S. EPA Regional Office to find section 112 of the CAA. motor vehicles such as trucks, railcars, out if this subpart is delegated to a State, Metal HAP process vent means the barges, or ships; local, or tribal agency within your State. point of discharge to the atmosphere (or (2) Pressure vessels designed to (b) In delegating implementation and inlet to a control device, if any) of a operate in excess of 204.9 kilopascals enforcement authority of this subpart to metal HAP-containing gas stream from and without emissions to the a State, local, or tribal agency under 40 any unit operation in chemical atmosphere; and CFR part 63, subpart E, the approval manufacturing operations at an affected (3) Process vessels. authorities contained in paragraphs source. Total organic HAP means all of the (b)(1) through (4) of this section are Organic HAP means any organic HAP organic HAP as defined in section 112 retained by the Administrator of the listed in section 112 of the CAA. For the of the CAA. U.S. EPA and are not transferred to the purposes of requirements in this subpart Transfer operations means all loading State, local, or tribal agency. VVVVVV, hydrazine is to be considered into tank trucks and rail cars of liquid (1) Approval of an alternative non- an organic HAP. containing organic HAP from a transfer Recovery device means an individual opacity emissions standard under rack. A transfer rack is the system used § 63.6(g). unit of equipment used for the purpose to fill tank trucks and railcars at a single (2) Approval of a major change to a of recovering chemicals from gas geographic site. Transfer operations do test method under § 63.7(e)(2)(ii) and (f). streams for fuel value (i.e., net positive not include the loading to other types of A ‘‘major change to test method’’ is heating value), use, reuse, or for sale for containers such as cans, drums, and defined in § 63.90. fuel value, use, or reuse. Examples of totes. equipment that may be recovery devices Wastewater means water that is (3) Approval of a major change to include absorbers, carbon adsorbers, discarded from an affected source and monitoring under § 63.8(f). A ‘‘major condensers, oil-water separators or that contains any HAP listed in Table 9 change to monitoring’’ is defined in organic-water separators, or organic to 40 CFR part 63, subpart G. § 63.90. removal devices such as decanters, Wastewater means both process (4) Approval of a major change to strippers, or thin-film evaporation units. wastewater and maintenance recordkeeping/reporting under Responsible official means wastewater. § 63.10(f). A ‘‘major change to responsible official as defined in 40 CFR recordkeeping/reporting’’ is defined in 70.2. § 63.11503 Who implements and enforces § 63.90. Storage tank means a tank or other this subpart? Tables to Subpart VVVVVV of Part 63 vessel that is used to store liquids that (a) This subpart can be implemented contain organic HAP that are used in or and enforced by the U.S. EPA or a As required in § 63.11494(a), chemical produced by chemical manufacturing delegated authority such as a State, manufacturing operations that process, operations. Surge control vessels and local, or tribal agency. If the U.S. EPA use, or produce the HAP shown in the bottoms receivers are considered to be Administrator has delegated authority to following table are subject to subpart storage tanks for the purposes of this a State, local, or tribal agency pursuant VVVVVV.

TABLE 1 TO SUBPART VVVVVV OF PART 63—HAZARDOUS AIR POLLUTANTS USED TO DETERMINE APPLICABILITY OF CHEMICAL MANUFACTURING OPERATIONS

Type of HAP Chemical name CAS No.

1. Organic compounds ...... a. 1,3-butadiene ...... 106990 b. 1,3-dichloropropene ...... 542756 c. Acetaldehyde ...... 75070 d. Chloroform ...... 67663 e. Ethylene dichloride ...... 107062 f. Hexachlorobenzene ...... 118741 g. Methylene chloride ...... 75092 h. Quinoline ...... 91225 2. Metal compounds ...... a. Arsenic compounds ...... b. Cadmium compounds ...... c. Chromium compounds ...... d. Lead compounds ...... e. Manganese compounds ...... f. Nickel compounds ...... 3. Others ...... a. Hydrazine ...... 302012

As required in §§ 63.11495, 63.11496, process vents, storage tanks, cooling wastewater as shown in the following 63.11497, 63.11499, and 63.11500, you towers, transfer operations, and table. must comply with the requirements for

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TABLE 2 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS, MANAGEMENT PRACTICES, AND OTHER COMPLIANCE REQUIREMENTS

For . . . You must . . . And you must . . .

1. Batch process vents ...... a. If total organic HAP emissions are equal to i. Comply with the requirements of § 63.982(c) or greater than 19,000 lb/yr, reduce collec- and the requirements referenced therein, tive uncontrolled total organic HAP emis- and sions from the sum of all batch process ii. Comply with subpart SS including excep- vents by 90 percent by weight or greater or tions and alternatives to requirements in to <20 ppmv by routing emissions from a subpart SS as specified in §§ 63.2450(g) sufficient number of the batch process vents through (i), (k), (l), (m)(3), (p), (q), and through a closed vent system to any com- § 63.2460(c), except that references to bination of control devices (except a flare); emission limits in Table 2 of subpart FFFF or mean the emission limits in item 1.a. of this Table, and references to reporting require- ments in § 63.2520 mean § 63.11501 of this subpart, and iii. If you combust a halogenated vent stream, comply with the requirements for halogen scrubbers in § 63.11496(d). b. Route emissions from batch process vents Comply with the requirements of § 63.982(b) containing at least 90 percent of the uncon- and the requirements referenced therein. trolled total organic HAP through a closed- vent system to a flare (except that a flare may not be used to control halogenated vent streams), or c. Comply with the alternative standard speci- Not applicable. fied in § 63.2505, except as specified in § 63.11496(e), or d. Comply with combinations of the require- Comply with the additional requirements spec- ments in items a., b., and c. of this Table ified above for items a., b., and c., as appli- for different groups of batch process vents. cable. 2. Each continuous process vent with a TRE a. Reduce emissions of organic HAP by 95 i. Comply with the requirements of § 63.982(c) ≤1.0. percent by weight or greater by routing and the requirements referenced therein, emissions through a closed vent system to and any combination of control devices (except ii. Comply with exceptions and alternatives to a flare); or requirements in subpart SS as specified in § 63.2450(g) through (i), (k), (l), (m)(3), (p), and (q), except that references to emission limits in Table 1 of subpart FFFF mean the emission limits in item 2.a. of this Table, and references to reporting requirements in § 63.2520 mean § 63.11501 of this subpart. iii. If you combust a halogenated vent stream, comply with the requirements for halogen scrubbers in § 63.11496(d). b. Reduce emissions of total organic HAP by Comply with the requirements of § 63.982(b) routing emissions through a closed-vent and the requirements referenced therein. system to a flare (except that a flare may not be used to control halogenated vent streams), or c. Comply with the alternative standard speci- Not applicable. fied in § 63.2505, except as specified in § 63.11496(e). 3. Metal process vents ...... a. If total metal HAP emissions are equal to or Comply with § 63.11496(f). greater than [100 lb/yr or 400 lb/yr], reduce uncontrolled emissions of metal HAP emis- sions by 95 percent by weight or greater by routing emissions from all metal process vents through a closed-vent system to a control device. 4. Each storage tank ...... a. Operate and maintain a floating roof or i. Comply with the applicable inspection and closed-vent system and control device in testing requirements in 40 CFR 60.113b(a), accordance with 40 CFR 60.112b. (b), or (c) for the selected control option, and ii. Comply with the applicable recordkeeping and reporting requirements in 40 CFR 60.115b and 40 CFR 60.116b for the se- lected control option.

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TABLE 2 TO SUBPART VVVVVV OF PART 63—EMISSION LIMITS, MANAGEMENT PRACTICES, AND OTHER COMPLIANCE REQUIREMENTS—Continued

For . . . You must . . . And you must . . .

5. Each cooling tower system with a recircula- a. Comply with the requirements of i. Repair each leak in accordance with tion rate ≥8,000 gal/min. § 63.104(c), except as specified in § 63.104(d) and (e), and § 63.11500(b), or ii. Keep records and submit reports in accord- b. Operate in accordance with § 63.104(a) ...... ance with § 63.104(f), except as specified in § 63.11500(b). Keep records documenting compliance with the specified operating conditions. 6. Transfer operations ...... a. Control total organic HAP emissions from Not applicable. all transfer operations using any combina- tion of submerged loading, vapor balancing, and routing displaced vapors through a closed-vent system to a control device. 7. Wastewater stream ...... a. Discharge to onsite or offsite treatment ...... Maintain records identifying each wastewater stream and documenting the type of treat- ment that it receives. 8. Wastewater stream containing partially solu- a. Use a decanter or other equipment based i. For the water phase: comply with the re- ble HAP at a concentration ≥10,000 ppmw. on the operating principle of gravity separa- quirements in item 7 of this table, and tion to separate the water phase from the ii. For the organic phase(s): Recycle to a organic phase(s). process, use as fuel, or dispose as haz- ardous waste, and iii. Keep records of the wastewater streams subject to this requirement and the disposi- tion of the organic phase(s).

TABLE 3 TO SUBPART VVVVVV OF PART 63—PARTIALLY SOLUBLE HAP As required in § 63.11500(a), you must comply with emission limits for wastewater streams that contain the partially soluble HAP listed in the following table.

Partially soluble HAP name CAS No.

1. 1,1,1-Trichloroethane (methyl chloroform) ...... 71556 2. 1,1,2,2-Tetrachloroethane ...... 79345 3. 1,1,2-Trichloroethane ...... 79005 4. 1,1-Dichloroethylene (vinylidene chloride) ...... 75354 5. 1,2-Dibromoethane ...... 106934 6. 1,2-Dichloroethane (ethylene dichloride) ...... 107062 7. 1,2-Dichloropropane ...... 78875 8. 1,3-Dichloropropene ...... 542756 9. 2,4,5-Trichlorophenol ...... 95954 10. 1,4-Dichlorobenzene ...... 106467 11. 2-Nitropropane ...... 79469 12. 4-Methyl-2-pentanone (MIBK) ...... 108101 13. Acetaldehyde ...... 75070 14. Acrolein ...... 107028 15. Acrylonitrile ...... 107131 16. Allyl chloride ...... 107051 17. Benzene ...... 71432 18. Benzyl chloride ...... 100447 19. Biphenyl ...... 92524 20. Bromoform (tribromomethane) ...... 75252 21. Bromomethane ...... 74839 22. Butadiene ...... 106990 23. Carbon disulfide ...... 75150 24. Chlorobenzene ...... 108907 25. Chloroethane (ethyl chloride) ...... 75003 26. Chloroform ...... 67663 27. Chloromethane ...... 74873 28. Chloroprene ...... 126998 29. Cumene ...... 98828 30. Dichloroethyl ether ...... 111444 31. Dinitrophenol ...... 51285 32. Epichlorohydrin ...... 106898 33. Ethyl acrylate ...... 140885 34. Ethylbenzene ...... 100414 35. Ethylene oxide ...... 75218 36. Ethylidene dichloride ...... 75343 37. Hexachlorobenzene ...... 118741 38. Hexachlorobutadiene ...... 87683 39. Hexachloroethane ...... 67721 40. Methyl methacrylate ...... 80626

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TABLE 3 TO SUBPART VVVVVV OF PART 63—PARTIALLY SOLUBLE HAP—Continued As required in § 63.11500(a), you must comply with emission limits for wastewater streams that contain the partially soluble HAP listed in the following table.

Partially soluble HAP name CAS No.

41. Methyl-t-butyl ether ...... 1634044 42. Methylene chloride ...... 75092 43. N-hexane ...... 110543 44. N,N-dimethylaniline ...... 121697 45. Naphthalene ...... 91203 46. Phosgene ...... 75445 47. Propionaldehyde ...... 123386 48. Propylene oxide ...... 75569 49. Styrene ...... 100425 50. Tetrachloroethylene (perchloroethylene) ...... 127184 51. Tetrachloromethane (carbon tetrachloride) ...... 56235 52. Toluene ...... 108883 53. Trichlorobenzene (1,2,4-) ...... 120821 54. Trichloroethylene ...... 79016 55. Trimethylpentane ...... 540841 56. Vinyl acetate ...... 108054 57. Vinyl chloride ...... 75014 58. Xylene (m) ...... 108383 59. Xylene (o) ...... 95476 60. Xylene (p) ...... 106423

TABLE 4 TO SUBPART VVVVVV OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART VVVVVV As required in § 63.11501(a), you must comply with the requirements of the NESHAP General Provisions (40 CFR part 63, subpart A) as shown in the following table.

Applies to Citation Subject Subpart Explanation VVVVVV?

63.1(a)(1), (a)(2), (a)(3), (a)(4), (a)(6), Applicability ...... Yes. (a)(10)–(a)(12), (b)(1), (b)(3), (c)(1), (c)(2), (c)(5), (e). 63.1(a)(5), (a)(7)–(a)(9), (b)(2), (c)(3), Reserved ...... No. (c)(4), (d). 63.2 ...... Definitions ...... Yes. 63.3 ...... Units and Abbreviations ...... Yes. 63.4 ...... Prohibited Activities and Circumvention .. Yes. 63.5 ...... Preconstruction Review and Notification Yes. Requirements. 63.6(a), (b)(1)–(b)(5), (b)(7), (c)(1), (c)(2), Compliance with Standards and Mainte- Yes. (c)(5), (e)(1), (e)(3)(i), (e)(3)(iii)– nance Requirements. (e)(3)(ix), (f) (g), (i), (j). 63.6(b)(6), (c)(3), (c)(4), (d), (e)(2), Reserved ...... No. (e)(3)(ii), (h)(3), (h)(5)(iv). 63.6(h)(1)–(h)(4), (h)(5)(i)–(h)(5)(iii), ...... No ...... Subpart VVVVVV does not include opac- (h)(6)–(h)(9). ity or visible emissions standards or require a continuous opacity moni- toring system. 63.7 ...... Performance Testing Requirements ...... Yes. 63.8(a)(1), (a)(2), (a)(4), (b), (c)(1)–(c)(3), Monitoring Requirements ...... Yes. (f)(1)–(5). 63.8(a)(3) ...... Reserved ...... No. 63.8(c)(4) ...... No ...... Continuous parameter monitoring system (CPMS) requirements in 40 CFR part 63, subparts SS and FFFF are ref- erenced from § 63.11495. 63.8(c)(5) ...... No ...... Subpart VVVVVV does not require con- tinuous opacity monitoring systems (COMS). 63.8(c)(6)–(c)(8), (d), (e), (f)(6) ...... Yes ...... Requirements apply only if you use a continuous emission monitoring sys- tem (CEMS) to demonstrate compli- ance with the alternative standard in § 63.11495(e).

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TABLE 4 TO SUBPART VVVVVV OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART VVVVVV— Continued As required in § 63.11501(a), you must comply with the requirements of the NESHAP General Provisions (40 CFR part 63, subpart A) as shown in the following table.

Applies to Citation Subject Subpart Explanation VVVVVV?

63.8(g)(1)–(g)(4) ...... Yes ...... Data reduction requirements apply only if you use CEMS to demonstrate compli- ance with alternative standard in § 63.11495(d). COMS requirements do not apply. Requirement in § 63.8(g)(2) does not apply because data reduction for CEMS are specified in 40 CFR part 63, subpart FFFF. 63.8(g)(5) ...... No ...... Data reduction requirements for CEMS are specified in 40 CFR part 63, sub- part FFFF as referenced from § 63.11496. CPMS requirements are specified in 40 CFR part 63, subparts SS and FFFF as referenced from § 63.11496. 63.9(a), (b)(1), (b)(2), (b)(4), (b)(5), (c), Notification Requirements ...... Yes. (d), (e), (i), (j). 63.9(b)(3), (h)(4) ...... Reserved ...... No. 63.9(f) ...... No ...... Subpart VVVVVV does not contain opac- ity or VE limits. 63.9(g) ...... Yes ...... Additional notification requirement ap- plies only if you use CEMS to dem- onstrate compliance with alternative standard in § 63.11495(d). 63.9(h)(1)–(h)(3), (h)(5)–(h)(6) ...... Yes ...... Except Subpart VVVVVV does not con- tain opacity or VE limits. 63.10(a) ...... Recordkeeping Requirements ...... Yes. 63.10(b)(1) ...... Yes. 63.10(b)(2)(i)–(b)(2)(v) ...... Yes. 63.10(b)(2)(vi), (x), (xi), (xiii) ...... Yes ...... Apply only if you use CEMS to dem- onstrate compliance with alternative standard in § 63.11495(e). 63.10(b)(2)(vii)–(b)(2)(ix), (b)(2)(xii), ...... Yes. (b)(2)(xiv). 63.10(b)(3) ...... Yes. 63.10(c)(1), (c)(5)–(c)(6), (c)(13)–(c)(14) ...... Yes ...... Apply only if you use CEMS to dem- onstrate compliance with alternative standard in § 63.11496(d). 63.10(c)(7)–(c)(8), (c)(10)–(c)(12), (c)(15) ...... Yes. 63.10(c)(2)–(c)(4), (c)(9) ...... Reserved ...... No. 63.10(d)(1), (d)(2), (d)(4), (e)(1), (e)(2), (f) Reporting Requirements ...... Yes. 63.10(d)(3) ...... No ...... Subpart VVVVVV does not include opac- ity or VE limits. 63.10(d)(5) ...... Yes. (e)(1)–(e)(2) ...... Yes ...... Apply only if you use CEMS to dem- onstrate compliance with alternative standard in § 63.11496(d). 63.10(e)(3) ...... Yes. 63.10(e)(4) ...... No ...... Subpart VVVVVV does not include opac- ity or VE limits. 63.11 ...... Control Device Requirements ...... Yes. 63.12 ...... State Authorities and Delegations ...... Yes. 63.13 ...... Addresses ...... Yes. 63.14 ...... Incorporations by Reference ...... Yes. 63.15 ...... Availability of Information and Confiden- Yes. tiality. 63.16 ...... Performance Track Provisions ...... Yes.

[FR Doc. E8–22518 Filed 10–3–08; 8:45 am] BILLING CODE 6560–50–P

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Part V

Environmental Protection Agency 40 CFR Parts 262, 264, et al. Revisions to: The Requirements for Transboundary Shipments of Wastes Between OECD Countries, the Requirements for Export Shipments of Spent Lead-Acid Batteries, the Requirements on Submitting Exception Reports for Export Shipments of Hazardous Wastes, and the Requirements for Imports of Hazardous Wastes; Proposed Rule

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ENVIRONMENTAL PROTECTION would be submitted by the U.S. http://www.regulations.gov Web site is AGENCY receiving facility to EPA along with the an ‘‘anonymous access’’ system, which RCRA hazardous waste manifest within means EPA will not know your identity 40 CFR Parts 262, 264, 265, 266, and thirty days of import shipment delivery. or contact information unless you 271 Finally, separate from this proposed provide it in the body of your comment. [EPA–HQ–RCRA–2005–0018; FRL–8720–3] rule, EPA is publishing in http:// If you send an e-mail comment directly www.epa.gov/epawaste/hazard/ to EPA without going through http:// RIN 2050–AE93 international/oecd-slab-rule.htm a draft www.regulations.gov, your e-mail guidance document on how U.S. address will be automatically captured Revisions to: The Requirements for receiving facilities may request EPA to and included as part of the comment Transboundary Shipments of Wastes identify them as pre-approved facilities that is placed in the public docket and Between OECD Countries, the to receive hazardous waste from OECD made available on the Internet. If you Requirements for Export Shipments of Member countries. submit an electronic comment, EPA Spent Lead-Acid Batteries, the DATES: Comments must be received on recommends that you include your Requirements on Submitting or before December 5, 2008. Under the name and other contact information in Exception Reports for Export Paperwork Reduction Act, comments on the body of your comment and with any Shipments of Hazardous Wastes, and the information collection provisions disk or CD–ROM you submit. If EPA the Requirements for Imports of must be received by OMB on or before cannot read your comment due to Hazardous Wastes November 5, 2008. technical difficulties and cannot contact AGENCY: Environmental Protection ADDRESSES: Submit your comments, you for clarification, EPA may not be Agency. identified by Docket ID No. EPA–HQ– able to consider your comment. Electronic files should avoid the use of ACTION: Proposed rule. RCRA–2005–0018, by one of the following methods: special characters, any form of SUMMARY: This rule proposes to amend • http://www.regulations.gov: Follow encryption, and be free of any defects or certain existing regulations promulgated the on-line instructions for submitting viruses. under the hazardous waste provisions of comments. Docket: All documents in the docket the Resource Conservation and • E-mail: [email protected], are listed in the http:// Recovery Act (RCRA) regarding the Attention Docket No. EPA–HQ–RCRA– www.regulations.gov index. Although export and import of hazardous wastes 2005–0018. listed in the index, some information is from and into the United States. • Fax: (202) 566–9744, Attention not publicly available, e.g., CBI or other Specifically, we are proposing to Docket No. EPA–HQ–RCRA–2005–0018. information whose disclosure is modify: The requirements to implement • Mail: RCRA Docket No. EPA–HQ– restricted by statute. Certain other the OECD framework concerning the RCRA–2005–0018, Environmental material, such as copyrighted material, transboundary movement of hazardous Protection Agency, Mail Code: 2822T, will be publicly available only in hard waste among countries belonging to the 1200 Pennsylvania Avenue, NW., copy. Publicly available docket Organization for Economic Cooperation Washington, DC 20460. Please include a materials are available either and Development (OECD), including total of 2 copies. In addition, please electronically in http:// reducing the number of control levels, mail a copy of your comments on the www.regulations.gov or in hard copy at exempting qualifying shipments sent for information collection provisions to the the RCRA Docket, EPA/DC, EPA West, laboratory analyses from certain Office of Information and Regulatory Room 3334, 1301 Constitution Avenue, paperwork requirements, requiring Affairs, Office of Management and NW., Washington, DC. The Public recovery facilities to submit a certificate Budget (OMB), Attn: Desk Officer for Reading Room is open from 8:30 a.m. to of recovery, adding provisions for the EPA, 725 17th St. NW., Washington, DC 4:30 p.m., Monday through Friday, return or re-export of wastes subject to 20503. excluding legal holidays. The telephone the Amber control procedures, and • Hand Delivery: RCRA Docket No. number for the Public Reading Room is clarifying certain existing provisions EPA–HQ–RCRA–2005–0018, EPA West (202) 566–1744 and the telephone that were identified as potentially Building, Room 3334, 1301 Constitution number for the RCRA Docket is (202) ambiguous to the regulated community; Ave., NW., Washington DC 20004. Such 566–0270. the regulations regarding the deliveries are only accepted during the FOR FURTHER INFORMATION CONTACT: management of spent lead-acid batteries Docket’s normal hours of operation, and Laura Coughlan, Hazardous Waste being reclaimed to require appropriate special arrangements should be made Identification Division, Office of Solid notice and consent for those batteries for deliveries of boxed information. Waste (5304P), Environmental intended for reclamation in a foreign Instructions: Direct your comments to Protection Agency, 1200 Pennsylvania country; the exception reporting Docket ID No. EPA–HQ–RCRA–2005– Avenue, NW., Washington, DC 20460; requirements for hazardous waste 0018. EPA’s policy is that all comments telephone number: (703) 308–0005; fax exports to specify that all exception received will be included in the public number: (703) 308–0514; e-mail: reports submitted to EPA be sent to the docket without change and may be [email protected]. Office of Enforcement and Compliance made available online at http:// SUPPLEMENTARY INFORMATION: The Assurance’s Office of Federal Activities www.regulations.gov, including any information presented in this preamble in Washington, DC rather than to the personal information provided, unless is organized as follows: Administrator; and the hazardous waste the comment includes information import requirements such that U.S. claimed to be Confidential Business I. General Information importers would give the initial Information (CBI) or other information A. List of Acronyms Used in This Proposed Rule transporter a copy of the EPA-provided whose disclosure is restricted by statute. B. What are the statutory authorities for documentation confirming EPA’s Do not submit information that you this proposed rule? consent to the import when they consider to be CBI or otherwise C. Does this proposed rule apply to me? provide the RCRA hazardous waste protected through http:// D. What is the purpose of this proposed manifest, and that the documentation www.regulations.gov or e-mail. The rule?

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II. Background I. National Technology Transfer Acronym Meaning A. OECD Revisions Advancement Act B. SLAB Revisions J. Executive Order 12898: Federal Actions SBREFA .. Small Business Regulatory En- C. Exception Report Revisions for Exports to Address Environmental Justice in forcement Fairness Act Under Subparts E and H of 40 CFR Part Minority Populations and Low-Income TRI ...... Toxics Release Inventory 262 Populations UMRA ...... Unfunded Mandates Reform Act D. Import Revisions III. Summary of This Proposed Rule and I. General Information B. What are the statutory authorities for Changes A. List of Acronyms Used in This A. Changes to 40 CFR Part 262, Subpart E this proposed rule? B. Changes to 40 CFR 262.60(e), Subpart F Proposed Rule C. Changes to 40 CFR Part 262, Subpart H The authority to propose this rule is D. Changes to 40 CFR 264.12(a)(2) and 40 Acronym Meaning found in sections 1006, 1007, 2002(a), CFR 265.12(a)(2) 3001–3010, 3013–3015, and 3017 of the E. Changes to 40 CFR 264.71(a)(3) and 40 BCI ...... Battery Council International Solid Waste Disposal Act, as amended CBI ...... Confidential Business Informa- CFR 265.71(a)(3) by the Resource Conservation and F. Changes to 40 CFR 266.80(a) tion CERCLA .. Comprehensive Environmental Recovery Act (RCRA), and as amended G. Changes to 40 CFR 271.1 by the Hazardous and Solid Waste IV. Costs and Benefits of the Proposed Rule Response, Compensation, and A. Introduction Liability Act Amendments, 42 U.S.C. 6905, 6906, B. Analytical Scope CFR ...... Code of Federal Regulations 6912, 6921–6930, 6934–6936, and 6938. EPA ...... U.S. Environmental Protection C. Cost Impacts C. Does this proposed rule apply to me? D. Benefits Agency V. State Authorization FR ...... Federal Register 1. OECD Revisions A. Applicability of Rules in Authorized HSWA ...... Hazardous and Solid Waste States Amendments The OECD revisions in this proposed B. Effect on State Authorization LAB ...... Lead-Acid Battery rule affect all persons who export or VI. Statutory and Executive Order Reviews NAICS ...... North American Industrial Classi- import hazardous waste, export or A. Executive Order 12866: Regulatory fication System NTTAA ..... National Technology Transfer import universal waste, or export spent Planning and Review lead-acid batteries (SLABs) destined for B. Paperwork Reduction Act and Advancement Act C. Regulatory Flexibility Act NAFTA ..... North American Free Trade recovery operations in countries D. Unfunded Mandates Reform Act of 1995 Agreement belonging to the Organization for E. Executive Order 13132: Federalism OECD ...... Organization for Economic Co- Economic Cooperation and F. Executive Order 13175: Consultation operation and Development Development (OECD), except for Mexico and Coordination with Indian Tribal OMB ...... Office of Management and and Canada. Any transboundary Governments Budget movement of hazardous wastes between G. Executive Order 13045: Protection of OSWER ... Office of Solid Waste and Emer- the United States and either Mexico or gency Response Children from Environmental Health Canada will continue to be regulated by Risks and Safety Risks RCRA ...... Resource Conservation and Re- H. Executive Order 13211: Actions covery Act their respective bilateral agreements and Concerning Regulations that RFA ...... Regulatory Flexibility Act applicable regulations. Potentially Significantly Affect Energy Supply, SIC ...... Standard Industrial Classification affected entities may include, but are Distribution, or Use SLAB ...... Spent Lead-Acid Battery not limited to:

Industry sector NAICS SIC

Utilities ...... 221100 4939 Petroleum and Coal Products Manufacturing ...... 324 29 Chemical Manufacturing ...... 325100 28 Primary Metal Manufacturing ...... 331 33 Fabricated Metal Product Manufacturing ...... 332 34 Machinery Manufacturing ...... 333 35 Computer and Electronic Product Manufacturing ...... 334110 357 Electrical Equipment, Appliance, and Component Manufacturing ...... 335 36 Transportation Equipment Manufacturing ...... 336 37 Miscellaneous Manufacturing ...... 339900 39 Scrap and Waste Materials ...... 423930 5093 Materials Recovery Facilities ...... 562920 4953

2. SLAB Revisions SLABs for reclamation in any foreign The SLAB revisions in this proposed country. Potentially affected entities rule affect all persons who export may include, but are not limited to:

Industry sector NAICS SIC

Hazardous Waste Collectors ...... 562112 4212 Recyclable Material Hauling, Long-Distance ...... 484230 4213 Batteries, automotive, merchant wholesalers ...... 423120 5013 Lead-acid storage batteries, manufacturing ...... 335911 3691 Automotive Parts, Accessories, and Tire Stores ...... 441310 5013 Tire Dealers ...... 441320 5014 All other General Merchandise Stores ...... 452990 5399 New Car Dealers ...... 441110 5511

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Industry sector NAICS SIC

Recyclable Material Wholesaler ...... 423930 5093 Other Waste Collection ...... 562119 4212 Recyclable Material Collection Services, Solid Waste Collection ...... 562111 4212 Marinas ...... 713930 4493 General Freight Trucking, Long-Distance, TL ...... 484121 4213 General Freight Trucking, Long-Distance, LTL ...... 484122 4213 Specialized Freight Trucking ...... 484200 4213 Freight Carriers (except air couriers), Air Scheduled ...... 481112 4512 Freight Charter Services, Air ...... 481212 4522 Freight Railways, Line-Haul ...... 482111 4011 Freight Transportation, Deep Sea, to and from Domestic Ports ...... 483113 4424 Freight Transportation, Deep Sea, to or from Foreign Ports ...... 483111 4412

3. Exception Report Revisions for of this proposed rule affect all persons Exports Under Subparts E and H of 40 who export hazardous waste, universal CFR Part 262 waste, or SLABs to any foreign country. The exception report change to 40 Potentially affected entities may CFR part 262, subpart E and subpart H include, but are not limited to:

Industry sector NAICS SIC

Utilities ...... 221100 4939 Petroleum and Coal Products Manufacturing ...... 324 29 Chemical Manufacturing ...... 325100 28 Primary Metal Manufacturing ...... 331 33 Fabricated Metal Product Manufacturing ...... 332 34 Machinery Manufacturing ...... 333 35 Computer and Electronic Product Manufacturing ...... 334110 357 Electrical Equipment, Appliance, and Component Manufacturing ...... 335 36 Transportation Equipment Manufacturing ...... 336 37 Miscellaneous Manufacturing ...... 339 39 Scrap and Waste Materials ...... 423930 5093

4. Import Revisions that must comply with 40 CFR part 262, includes those hazardous waste import subpart F, and all facilities receiving shipments originating in OECD The import revisions in this proposed imported hazardous waste from a countries, as well as in non-OECD rule affect all persons importing foreign country that must comply with countries. Potentially affected entities hazardous waste from a foreign country either 264.71(a)(3) or 265.71(a)(3). This may include, but are not limited to:

Industry sector NAICS SIC

Hazardous Waste Collectors ...... 562112 4212 Recyclable Material Hauling, Long-Distance ...... 484230 4213 Recyclable Material Wholesaler ...... 423930 5093 Other Waste Collection ...... 562119 4212 Recyclable Material Collection Services, Solid Waste Collection ...... 562111 4212 General Freight Trucking, Long-Distance, TL ...... 484121 4213 Scrap and Waste Materials ...... 423930 5093 Materials Recovery Facilities ...... 562920 4953

The lists of potentially affected D. What is the purpose of this proposed consistency and harmonization between entities in the above tables may not be rule? the OECD and the Basel Convention,1 exhaustive. The Agency’s aim is to which in turn, promotes economic 1. OECD Revisions provide a guide for readers regarding those entities that potentially could be This proposed rule is intended to affected by this action. However, this 1 The Basel Convention on the Control of implement the OECD’s ‘‘Decision of the Transboundary Movements of Hazardous Wastes action may affect other entities not Council C(2001)107/FINAL, Concerning and their Disposal is a comprehensive global listed in these tables. If you have the Control of Transboundary environmental agreement on hazardous and other questions regarding the applicability of Movements of Wastes Destined for wastes. The Convention has 170 Member countries, this proposed rule to a particular entity, Recovery Operations, as amended by also known as Parties, and aims to protect human consult the person listed in the C(2004)20’’ (hereinafter referred to as health and the environment against the adverse effects resulting from the generation, management, preceding section entitled FOR FURTHER the Amended 2001 OECD Decision), transboundary movements and disposal of INFORMATION CONTACT. which amended the OECD Decision hazardous and other wastes. More information on (1992) on the same subject. The purpose the Basel Convention may be found at http:// of these revisions was to encourage www.basel.int.

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efficiency and the recovery of waste in Convention has developed two guidance families; (2) increases in uncontrolled an environmentally sound manner. documents 23 to assist governments, releases of lead-laden slag to soil, The Amended 2001 OECD Decision transporters, and recyclers to achieve surface water and ground water sources; was supported by the United States and environmentally sound management of and (3) lead air-emissions from lead imposes legally binding commitments SLABs. Indeed, the Basel Convention smelting without the proper air- on the United States pursuant to considers transboundary movement of emissions controls. Articles 5(a) and 6 of the OECD SLABs to be ‘‘illegal traffic’’ if it occurs EPA would like to focus on the use of Convention. By consenting to the without prior notification. Similar preventative measures to decrease the Decision, the United States Government guidance was developed by the proportionate risks to human health and has agreed to promulgate regulations Commission for Environmental the global environment. There are necessary to ensure that the United Cooperation 4 (CEC) for use by North inherent human health and States can uphold the agreement. American countries to promote sound environmental hazards associated with Further, this proposed rule clarifies management of SLABs.5 A 1996 OECD a significant amount of SLABs being certain regulations to articulate more Ministerial Declaration on risk exported across borders without the explicitly EPA’s original intent in those reduction from lead called on Member knowledge and consent of receiving regulations and to eliminate any countries to take domestic and countries and/or SLABs being exported confusion on the part of the regulated international action to reduce human to countries with substandard smelting community. exposure to lead from a variety of infrastructures. Amending the current 6 2. SLAB Revisions sources. Further, the Report of the RCRA hazardous waste regulations to Special Rapporteur of the U.N. include the notification and consent EPA also proposes to amend the Commission on Human Rights 7 requirements would help ensure that RCRA hazardous waste regulations for expressed concerns that ‘‘the United SLABs are exported to countries with SLABs specified in 40 CFR part 266, States system does not impose export the capacity to handle them in an subpart G by requiring notification and regulations on SLABs destined for environmentally sound manner and to consent for the export of SLABs in order recycling,’’ and suggests that ‘‘the aid countries with tracking the to ensure that SLABs are sent to recycling of lead-acid batteries is one of movements and life-cycle management reclamation facilities in countries that the greatest potential sources of risk, of SLABs inside their borders. EPA can manage them in an environmentally especially for exposed workers in the believes that the notification and sound manner. The notification and informal sector in many developing consent approach is an effective way of consent requirements are intended to: countries.’’ preventing the export of SLABs to (1) Reduce potential risk to human For economic and efficiency reasons, countries and to facilities that do not health and the environment, including some highly industrialized countries have the capability of safely managing potential risk from the transboundary may ship their SLABs to less the SLABs by providing the receiving movement of pollution from other industrialized countries for SLAB country with the necessary information countries to the U.S., and (2) harmonize breaking, draining, component about the proposed shipment and the notice and consent procedures with separation, slag generation and lead requiring its consent before the export international practice (see II.B.4) and refining. Human health and can proceed. In addition, by providing with the RCRA universal waste environmental risk issues can arise the receiving country with this regulations for the export of SLABs, when these recycling processes are information, they can monitor and track resulting in a more uniform practice for performed with insufficient human the export and the facility’s notification and consent for SLABs. health or environmental safety controls. management of the SLABs for safe Notification of potential exports of The results could include: (1) management. The purpose of the hazardous waste destined for recovery Significant increases in elevated blood notification and consent requirements in another country is a key component lead levels in facility workers and their for SLABs destined for reclamation in of multilateral environmental systems this proposed rule is consistent with the for appropriate governmental oversight 2 Basel Convention Training Manual: National purpose of the notification and consent to ensure proper management of the Management Plans for Used Lead Acid Batteries, requirements in RCRA section 3017. waste. The notification mechanism SBC No. 2004/5, 2004. Congress, in enacting section 3017, allows for all concerned countries (i.e., 3 Technical Guidelines for the Environmentally Sound Management of Waste Lead-acid Batteries, considered it important to require exporting, importing, and transit) to SBC No. 2003/9, 2003. notification and consent for exports of determine whether the hazardous waste 4 The Commission for Environmental Cooperation hazardous wastes. The legislative can be handled safely based on the is an international organization created by Canada, history for section 3017 indicates that requirements of their waste management Mexico and the United States under the North American Agreement on Environmental Congress felt that prior notification of an systems. Specifically, the importing Cooperation (NAAEC). The CEC was established to export to the receiving country would country has the opportunity to confirm address regional environmental concerns, help allow that country to make an informed that the particular facility that is prevent potential trade and environmental conflicts, decision as to whether it would accept designated to receive the waste is and to promote the effective enforcement of environmental law. The Agreement complements the waste and, if so, how it would safely qualified to manage it in a safe and the environmental provisions of the North manage that waste. Congress noted that environmentally sound manner, and has American Free Trade Agreement (NAFTA). problems, such as harm to human all appropriate approvals, permits, or 5 Practices and Options for Environmentally health and the environment arise when licenses. Furthermore, the notice and Sound Management of Spent Lead-acid Batteries wastes are sent to countries that do not within North America, Commission for consent process is the fundamental tool Environmental Cooperation, December 2007. want to receive them, or lack sufficient that is employed in transboundary 6 The Global Pursuit of the Sound Management of information to manage them properly. waste arrangements to provide business Chemicals, The World Bank, February 2004. EPA believes that the potential certainty for legitimate trade. 7 Adverse effects of the illicit movement and reduction in risk to human health and Risks to human health and the dumping of toxic and dangerous products and the environment with this proposed wastes on the enjoyment of human rights, U.N. environment derived from improper Commission on Human Rights, Economic and modification will outweigh the SLAB recycling techniques are of major Social Council, E/CN.4/2003/56/Add.1, 10 January incremental increase in burden to SLAB concern internationally. The Basel 2003, p. 17. exporters. Moreover, because the

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notification and consent requirements shipments, it has been difficult for EPA transboundary movements of wastes are intended to ensure that the receiving to match an individual manifest for a destined for recovery operations country has the necessary advance hazardous waste import shipment with between OECD Member countries. The knowledge of a proposed shipment of the related notice of intent to export 1992 Decision provided a framework for SLABs to a facility in that country, the from a foreign country for which EPA OECD Member countries to control the country can properly consent (or object) has provided consent. One major reason transboundary movement of recoverable to this shipment based on its knowledge for this difficulty is because a given wastes in an environmentally sound and of the capabilities of the particular destination facility in the U.S. could be economically efficient manner. receiving the same hazardous waste facility and its ability to manage the 3. Why did EPA establish the existing from the same foreign exporter under batteries in a safe and environmentally regulations in 40 CFR part 262, subpart more than one notice. Adding this sound manner. H? requirement will enable EPA to better 3. Exception Report Revisions for match the individual import shipments Due to the legally binding nature of Exports Under Subparts E and H of 40 against the related notice from the the 1992 Decision, the United States, as CFR Part 262 foreign exporting country for which an OECD Member country, was required EPA proposes to amend the exception EPA has provided consent, and facilitate to implement the terms of the decision reporting requirements in 40 CFR part our oversight of such imports. in accordance with Articles 5(a) and 6 of the OECD Convention. (A copy of the 262, subparts E and H, to specify that all II. Background exception reports be submitted to the OECD Convention is included in the Office of Enforcement and Compliance A. OECD Revisions docket to this proposed rule.) In order to implement the specific provisions of Assurance’s Office of Federal Activities 1. What is the OECD? in Washington, DC rather than to the the 1992 Decision, EPA published a Administrator.8 The Agency proposes The OECD is an international final rule in the Federal Register this change because it believes that a organization established in 1960 to entitled, ‘‘Imports and Exports of more specific address should assist in assist Member countries in achieving Hazardous Waste: Implementation of proper delivery of the exception report sustainable economic growth, OECD Council Decision C(92)39 to the appropriate EPA office. The more employment, and an increased standard Concerning the Control of Transfrontier general requirement in the existing of living, while simultaneously ensuring Movements of Wastes Destined for regulation to send this report to the the protection of human health and the Recovery Operations’’ (61 FR 16289, ‘‘Administrator’’ may have not provided environment. OECD Member countries April 12, 1996)(hereafter referred to as sufficiently specific instruction for those are concerned with a host of EPA’s OECD rule). These regulations exporters trying to notify EPA of international socio-economic and appear primarily in 40 CFR part 262, returned shipments, which could political issues, including subpart H. environmental issues. To address these reduce EPA’s ability to provide 4. What OECD Decisions form the basis issues, the OECD Council may negotiate oversight on such exports. Directing that of the revisions in this proposed rule? Council Decisions, which are all exception reports submitted to EPA On June 14, 2001, the OECD Council pursuant to the requirements in 40 CFR international agreements that create binding commitments on the United amended the 1992 Decision by passing part 262, subparts E and H, be sent to States under the terms of the OECD ‘‘Revision of Decision C(92)30/FINAL a specific address should ensure better Convention, unless otherwise provided on the Control of Transboundary oversight of (1) return shipments into in the Articles of the 1960 Convention. Movement of Wastes Destined for the U.S. and (2) compliance with the One such Council Decision addresses Recovery Operations’’ (hereafter referred exception report requirements without the transboundary movement of waste, to as the 2001 OECD Decision). The goal additional regulatory burden. which is the subject of this proposed of the 2001 OECD Decision was to 4. Import Revisions rule. There are currently thirty OECD harmonize the procedures and Member countries: Australia, Austria, requirements of the OECD with those of Finally, EPA proposes to amend the the Basel Convention and to eliminate import requirements specified in 40 Belgium, Canada, the , Denmark, Finland, France, Germany, duplicative activities between the two CFR part 262, subpart F. This change international organizations as much as would require that the U.S. importer Greece, , , Ireland, Italy, Japan, Luxembourg, Mexico, the practical. These changes include provide the transporter with a copy of significant revisions to the original documentation provided by EPA, Netherlands, , Norway, , Portugal, the Slovak Republic, established framework (such as confirming EPA’s consent to the reducing the levels of control from a hazardous waste import under a specific South Korea, Spain, Sweden, Switzerland, Turkey, the United three-tiered system to a two-tiered notice. This documentation would then system), while also adding entirely new accompany each RCRA hazardous waste Kingdom, and the United States. The OECD country Web site for each provisions (for example, the new manifested import shipment and be certificate of recovery requirement). submitted by the receiving facility in the Member country may be found at http://www.oecd.org/infobycountry/. Subsequent to the 2001 OECD Decision, U.S. to EPA along with the RCRA an addendum, C(2001)107/ADD1 hazardous waste manifest in accordance 2. What OECD Decision formed the (hereafter referred to as the 2001 OECD with §§ 264.71(a)(3) and 265.71(a)(3). basis for the existing regulations in 40 Addendum), which consists of revised While EPA currently requires that CFR part 262, subpart H? versions of the notification and receiving facilities in the U.S. submit a On March 30, 1992, the OECD movement documents and the copy of the hazardous waste manifest to Council adopted the ‘‘Decision of the instructions to complete them, was EPA to document individual import Council C(92)39/FINAL Concerning the adopted by the OECD Council on Control of Transfrontier Movements of February 28, 2002. The addendum was 8 The Office of Enforcement and Compliance Assurance is the office within EPA that implements Wastes Destined for Recovery’’ incorporated into the 2001 OECD the notice and consent scheme for hazardous waste (hereinafter referred to as the 1992 Decision as section C of Appendix 8, transboundary shipments. Decision), which applied to the and the combined version was issued in

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May 2002 as C(2001)107/FINAL. requirements analogous to Part 273. able to make a ‘‘good cause’’ finding Finally, on March 30, 2004, the OECD This determination was set forth in under the Administrative Procedure Act Council adopted C(2004)20 (hereafter § 262.89(a), and additional discussion (APA) (5 U.S.C. 553(b)(3)(B)) to make referred to as the 2004 OECD on how this provision impacts these future amendments without prior Amendment), which updated the OECD transboundary movements of wastes notice and comment because the waste lists, entitled ‘‘Appendix 3: List of subject to RCRA exemptions, exclusions purpose of § 262.89(d) is solely Wastes Subject to the Green Control and recycling provisions can be found informational—to provide an up-to-date Procedure’’ (hereafter referred to as the in the April 12, 1996, preamble to the reference of the OECD list. Public Green list) and ‘‘Appendix 4: List of original OECD rule (61 FR 16290– comment on such updates is Wastes Subject to the Amber Control 16316). unnecessary, as EPA would have no Procedure’’ (hereafter referred to as the discretion to modify the OECD list. As 6. How does EPA propose to implement Amber List). To the extent possible, the discussed above, U.S. national future OECD revisions? Green and Amber Lists were revised procedures, rather than the OECD list, based on the amendments made to (a) Changes to OECD Member Country ultimately determine the applicability of Annexes II, VIII, and IX of the Basel List Subpart H, recognizing that the OECD Convention in November 2003. The Qualified countries may be invited to list will be relevant for exports to other OECD Council decisions are collectively accede to the OECD Convention as new OECD members. referred to as the Amended 2001 OECD Members. The OECD Convention Decision. B. SLAB Revisions defines qualified countries as those that 5. How does EPA propose to revise the have demonstrated the basic values 1. What are SLABs? existing regulations to implement the shared by all Members: An open market Lead-acid batteries are secondary, wet latest OECD Decisions? economy, democratic pluralism, and cell batteries that contain liquid and can This rule proposes to amend EPA’s respect for human rights. Any decision be recharged for many uses. They are OECD rule to reflect the procedural and to invite a new country to become a the most widely used rechargeable substantive amendments in the 2001 Member of the OECD must be batteries in the world and are mainly OECD Decision, the applicable changes unanimous, although abstentions may used as starting, lighting, and ignition to the new notification and movement be allowed. Thus, no new Member may (SLI) power batteries found in documents presented in the 2001 OECD be admitted over the objection of the automobiles and other vehicles. A Addendum, and the changes to the United States (or any other Member). rechargeable SLAB is spent if it no OECD waste lists as presented in the In order to accommodate changes in longer performs effectively and cannot 2004 OECD Amendment, collectively OECD membership as quickly as be recharged. Battery failure is most referred to as the Amended 2001 OECD possible, EPA intends to publish in the commonly attributed to water loss and Decision. This proposed rule also seeks Federal Register any future grid corrosion during normal use. to clarify certain existing regulatory amendments to the list of OECD SLABs are considered both solid and provisions that have been identified as Member countries set forth in hazardous wastes under Subtitle C of potentially ambiguous to the regulated § 262.58(a)(1), as the OECD adds new RCRA, because they are classified as community. Member countries or otherwise amends spent materials that exhibit the toxicity As noted previously, OECD Council its list in the future. EPA intends to characteristic for lead, and the Decisions are international agreements publish notices of these future corrosivity characteristic for the sulfuric that create binding commitments on the amendments to § 262.58(a)(1) as a final acid electrolyte in the battery. United States, unless otherwise rule without prior notice and Lead-acid batteries are typically provided in the Articles to the 1960 opportunity for comment. EPA believes composed of an outside plastic casing Convention. Therefore, by consenting to that the Agency would be able to make and six inner cells containing lead strips the Amended 2001 OECD Decision, the a ‘‘good cause’’ finding under the and positive and negative lead United States Government has agreed to Administrative Procedure Act (APA) (5 terminals. Each cell is made up of two establish legal measures necessary to U.S.C. 553(b)(3)(B)) to make these future lead frameworks, the positive plate ensure that the United States can amendments without prior notice and being lead dioxide and the negative uphold the agreement. EPA believes that comment. EPA believes notice and an plate being spongy lead (a metallic lead RCRA contains adequate authority to opportunity for comment on future in a high-surface-area porous structure). promulgate the requirements of the amendments to § 262.58(a)(1) to reflect Each cell is filled with sulfuric acid as Amended 2001 OECD Decision. the updates to the OECD list of Member the electrolyte. When the battery is in It is important to recognize that the countries would be unnecessary, use, the spongy lead, sulphuric acid, OECD Decision allows a Member because the United States, as an OECD and lead dioxide react to produce an country to determine if a waste on an Member country, is legally obligated to electrical current. Both electrodes are OECD list is hazardous based on its implement OECD Decisions with converted to lead sulfate, a process ‘‘national procedures.’’ EPA has respect to all OECD Member countries. which is reversed during recharge. determined that a waste is hazardous under U.S. ‘‘national procedures’’—and (b) Changes to OECD Waste List 2. How are SLABs currently managed? therefore subject to the OECD provisions The OECD waste list is incorporated Currently, SLABs are either reclaimed of Subpart H—if the waste meets the by reference and cited in § 262.89(d). If for their lead value or disposed of. The following requirements under RCRA: (a) the OECD amends its waste list in the Battery Council International (BCI) Meets the Federal definition of future by decision of the OECD Council reported a 99.2 percent domestic SLAB hazardous waste in 40 CFR 261.3; and (with the concurrence of the United reclamation rate for the years 1999– (b) is subject to either the Federal States), EPA intends to publish notices 2003, making lead-acid batteries one of hazardous waste manifesting of these amendments in the Federal the most recycled consumer products. requirements in 40 CFR 262, or to the Register as a final rule without prior When a SLAB is collected, it is sent to universal waste management standards notice and an opportunity for comment. a reclaimer where the SLABs are of 40 CFR part 273, or to State EPA believes that the Agency would be cracked through various means, such as

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a hammermill in order to separate out tons of SLABs were exported in 2006 regulations, which could include the the lead, battery casing, plate separators, based on more recent data from the part 273 universal waste rules. and sulfuric acid components into International Trade Commission, However, in all instances, SLABs that recycling streams and disposal streams. Environment Canada, and Secretaria de are disposed of must be managed at a Specifically, the lead plates, lead oxide Medio Ambiente y Recursos Naturales RCRA Subtitle C disposal facility and paste and other lead parts are cleaned (SEMARNAT). Such a large increase in are subject to the Land Disposal and then melted together in smelting exports may be in large part due to Restriction requirements of 40 CFR part furnaces to produce lead ingots along recent increases in the domestic and 268. with residual lead dross and slag. The international price of lead. The universal waste regulations, residual lead dross and slag may be According to the annual ‘‘Mineral promulgated on May 11, 1995, were reclaimed further or disposed of in a Commodity Summaries’’ published by created to provide a streamlined set of landfill. Used sulphuric acid can be (1) the U.S. Geological Survey (USGS), the management regulations governing the Sent for acid regeneration, where the average price of lead for North collection and management of certain acid is cleaned for re-use as electrolyte American producers increased by 77% widely generated hazardous wastes, in the battery manufacturing process, (2) from 43.7 cents/pound in 1999 to 77.8 such as spent batteries. For the purposes neutralized and released into a public cents/pound in 2006. The average price of the universal waste regulations, the sewer system once it meets Clean Water as reported on the Metal definition of ‘‘battery’’ includes SLABs. Act standards, or (3) converted into Exchange increased by 154% during While SLABs managed as universal sodium sulfate, an odorless white those same years from 22.8 cents/pound waste may be drained of sulphuric acid, powder that’s used in laundry detergent, to 58.0 cents/pound. In addition, while the battery casings must be intact. glass and textile manufacturing. If it is export shipments destined for locations SLABs that have partially or wholly a plastic-cased battery, the plastic is in many countries are subject to duties crushed casings cannot be managed as either cleaned and recycled as new or tariffs on any exported SLABs, universal waste. battery casings or disposed of at a Canadian and Mexican importers are A universal waste handler is required landfill. If the battery casing is made of allowed, under the conditions of the to ensure that the SLABs do not spill or rubber or other materials, it can be used North American Free Trade Agreement leak and that they are stored in a as a fuel at the smelter. Other materials (NAFTA), to import SLABs without the structurally sound container. In from batteries are either recycled or usual surcharge. Indeed, data show that addition, depending upon the amount of disposed of in a landfill. Canada and Mexico are the major SLABs that are accumulated, a battery Lead is a highly toxic heavy metal destination countries to which U.S. handler may be required to track naturally occurring in the environment. SLABs have been exported in recent shipments of the SLABs sent off-site for For this reason, proper management of years. For example, in 2006 U.S. SLAB reclamation or other management. lead and lead-containing products is exports to Mexico and Canada were Universal waste handlers are not essential to the protection of human estimated to be 199,000 metric tons and allowed to treat their waste; however, health and the environment. In the U.S., 66,000 metric tons, respectively (based they can conduct certain activities (e.g., the Occupational Safety and Health on data from Mexican and Canadian sorting, regeneration 10, etc.) provided Administration (OSHA) has developed government sources). Comparing this the battery casings remain intact. standards to address and minimize information to data from the U.S. Other general provisions to which all International Trade Commission, it is workplace exposure to lead (29 CFR universal waste handlers are subject § 1910.1025). These standards establish estimated that only 1.8% of SLAB include labeling/marking, accumulation permissible exposure limits; exposure exports are destined for countries other time limits, employee training, and monitoring, respiratory protection and than Mexico or Canada. (See the EPA response to releases of hazardous waste. safety procedures; and proper warning Cost Assessment 9 prepared in support Off-site shipments of universal wastes and sign-age requirements for facilities of this proposed action.) do not require a hazardous waste processing lead. Proper ventilation, 3. How are SLABs currently regulated in manifest, provided they are sent to training and safety procedures also are the United States? another universal waste handler or a necessary. In less developed countries, specified destination facility, and are these precautions may be overlooked, Under the current Federal hazardous shipped by an authorized universal leading to dangerous conditions. (See waste regulations established pursuant ‘‘A Study of the Lead-Acid Battery to RCRA, SLABs are hazardous wastes waste transporter. Industry and Spent Lead-Acid Battery if the batteries exhibit one or more of (b) SLABs Sent for Reclamation Within Exports,’’ June 2003, a copy of which is the characteristics of hazardous waste the United States included in the RCRA docket provided in 40 CFR 261, subpart C (e.g., When reclaimed, SLABs are exempt established for this proposed rule.) corrosivity (D001), or toxicity for lead Recent data show that the primary (D008)). SLABs typically exhibit the from most of the RCRA Subtitle C factors influencing decisions to export toxicity characteristic for lead and, hazardous waste regulations, but are SLABs from the United States include therefore, are defined as hazardous subject to the regulations in part 266, the price of scrap lead, worldwide wastes. subpart G. (See 40 CFR § 261.6(a)(2)(iv).) supply and demand for lead, and the Alternatively, they can also be managed (a) SLABs Sent for Disposal Within the as a universal waste and subject to the relative price of virgin lead compared to United States the price of scrap lead. BCI estimates universal waste regulations in 40 CFR that in 1995, approximately 1,078,674 If a generator disposes, rather than part 273. Thus, generators that send tons of recoverable lead was available reclaims, SLABs, the SLABs would need SLABs off-site for reclamation may from batteries consumed domestically. to be managed in compliance with the choose to manage their SLABs either as BCI also reports that, based on Subtitle C hazardous waste management a universal waste, in accordance with Department of Commerce data, 10 approximately 104,614 tons of battery 9 Cost Assessment for the Proposed Rule on Regeneration under 40 CFR part 266, subpart G, Exports and Imports of Hazardous Waste Destined includes only replacing drained electrolyte fluids scrap lead were exported in 1995. In for Recovery Among OECD Countries and Exports and replacing ‘‘bad’’ battery cells. (See 48 FR at contrast, approximately 269,171 metric of Spent Lead-Acid Batteries from the U.S. 14496.)

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the management standards in 40 CFR crushed, as subject to the Amber control SLABs to a foreign destination other part 273, or in accordance with the procedures. than to those OECD countries specified management standards in 40 CFR part Currently, under the RCRA hazardous in 40 CFR 262.58(a)(1) would not be 266, subpart G. waste regulations, SLABs can be able to accept a shipment if the Under the provisions of 40 CFR part managed either in accordance with the transporter knew the shipment does not 266, subpart G, persons who generate, special regulations under 40 CFR part conform to the EPA Acknowledgment of collect, transport, or store SLABs for 266, subpart G or in accordance with the Consent, and would have to ensure that: direct regeneration or reclamation are universal waste regulations, as (a) a copy of the EPA Acknowledgment exempt from the bulk of the RCRA discussed above. Under part 266, of Consent accompanies the SLAB hazardous waste regulations (40 CFR subpart G, SLABs that are destined for export shipment; and (b) the shipment parts 262 through 266, 270, 124 and the reclamation are currently exempt from is delivered to the facility designated by EPA notification and identification the RCRA export requirements in 40 the person initiating the SLAB export number requirements). However, 40 CFR part 262, subpart E and subpart H shipment. CFR part 266, subpart G imposes certain (including the notice and consent For SLABs destined for reclamation in requirements on reclaimers of SLABs requirements). OECD countries specified in 40 CFR who do not store prior to reclamation, On the other hand, under the 262.58(a)(1), exporters and transporters and on facilities that store SLABs universal waste regulations, exporters of would be subject to the requirements of destined for reclamation, but do not SLABs for reclamation are subject to the 40 CFR part 262, subpart H, the conduct any reclamation. In addition, export requirements in 40 CFR part 273 requirements governing hazardous owners or operators of facilities that (including the notice and consent waste shipments to OECD countries. both store and reclaim SLABs are requirements) or, if the SLABs will be exported to an OECD Member country C. Exception Report Revisions for required to comply with the EPA Exports Under Subparts E and H of 40 notification and identification number for recovery, the export requirements (including notice and consent) in 40 CFR Part 262 requirements and all applicable CFR part 262, subpart H, apply. In EPA proposes to replace ‘‘EPA hazardous waste management facility addition, even in situations where U.S. Administrator’’ with ‘‘the Office of provisions in parts 264/265, 270, and exporters are not subject to the notice Enforcement and Compliance 124, and are subject to 40 CFR parts 261, and consent requirements, U.S. Assurance, Office of Federal Activities, § 262.11, and applicable provisions exporters may still be required to notify International Compliance Assurance under part 268. the importing OECD Member country of Division (2254A), Environmental 4. What international agreements apply their intention to export batteries, Protection Agency, 1200 Pennsylvania to the export of SLABs? pursuant to contracts with foreign Avenue, NW., Washington, DC 20460’’ consignees. This is because SLABs, in both § 262.55 and in § 262.87(b). There are two major international identified by the Amended 2001 OECD By providing a specific address for the agreements that expressly address the Decision as wastes subject to Amber submission of all exception reports export of SLABs: (1) The Basel control procedures, are generally required by 40 CFR part 262, subparts Convention on the Control of considered to be hazardous waste under E and H, EPA can ensure better Transboundary Movements of the national procedures of the importing oversight of (1) return shipments to the Hazardous Wastes and Their Disposal Member countries. U.S. and (2) compliance with the (Basel Convention); and (2) the exception reporting requirements Amended 2001 OECD Decision (see 5. How does EPA propose to revise the without any additional regulatory II.A.4 for more information). This SLAB regulations under 40 CFR part burden for U.S. exporters. In this proposal would harmonize the EPA 266, subpart G? proposed rule, EPA is making very clear SLAB export requirements with both of EPA proposes to amend the SLAB that submission of these export these international agreements. regulations under 40 CFR part 266, exception reports must be to the same As noted in footnote 1, the Basel subpart G, to require that exporters and specific EPA address that receives all Convention is a multilateral transporters handling SLABs destined export notifications and export annual international agreement governing the for reclamation in a foreign country to reports, and with no substitution for transboundary movements of hazardous comply with the same requirements comparable State agencies. States that wastes. Among other things, the Basel specified in the universal waste are interested in receiving a parallel Convention includes a requirement for regulations under 40 CFR part 273. copy of the exception report will still be notice and written consent for Specifically, an exporter who sends the able to require the submission of a copy transboundary movements of hazardous SLABs to a foreign destination other to their State Director in addition to waste between trading countries. SLABs than to those OECD countries specified sending it to the above federal address. are covered under the Basel Convention in 40 CFR 262.58(a)(1) would have to: as a hazardous waste and are thus (a) Comply with the requirements D. Import Revisions subject to the notice and consent applicable to a primary exporter in 40 EPA proposes to amend the import requirements of the Basel Convention. CFR 262.53, 262.56(a) (1) through (4), requirements specified in § 262.60(e) to The United States is a signatory to the (6), 262.56(b) and 262.57; (b) export require that the U.S. importer provide Convention, but has not yet ratified it such SLABs only upon consent of the the transporter with a copy of the and is therefore not legally bound to its receiving country and in conformance documentation confirming EPA’s requirements. with the EPA Acknowledgement of consent to the hazardous waste import, The Amended 2001 OECD Decision Consent as defined in subpart E of 40 specified under a notice submitted by regulates the transboundary movements CFR part 262 of this chapter; and (c) the competent authority of the country of hazardous wastes (e.g. wastes subject provide a copy of the EPA of export. This documentation must to Amber control procedures) destined Acknowledgment of Consent for the accompany each RCRA hazardous waste for recovery within OECD Member shipment to the transporter transporting shipment and be submitted by the U.S. countries. The Amended 2001 OECD the shipment for export. In addition, a receiving facility to EPA along with the Decision lists SLABs, whether whole or transporter transporting a shipment of RCRA hazardous waste manifest as

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required under §§ 264.71(a)(3) and Assurance’s Office of Federal Activities (c) ‘‘Amber-list controls’’ to ‘‘Amber 265.71(a)(3). in Washington, DC, rather than to the control procedures’’; While EPA currently requires that Administrator. In addition, the proposal (d) ‘‘Notifier’’ to ‘‘exporter’’; and U.S. receiving facilities submit a copy of also updates § 262.58(a) to reflect that (e) ‘‘Consignee’’ to ‘‘importer.’’ 11 the hazardous waste manifest to EPA to export shipments of SLABs being 2. The Number of Different Levels of document individual hazardous waste managed under 40 CFR part 266, Control Is Reduced From Three (Green, import shipments, it has proved subpart G that are destined for recovery Amber, and Red) to Two (Green and difficult to match individual hazardous in one of the OECD Member countries Amber) and the Waste Lists Have Been waste import shipments against a given listed in § 262.58(a)(1) are subject to the Updated approved notice of intent to export from requirements of subpart H. Finally, the a foreign country. In part, this is because proposal adds language in § 262.58(b) of The 2001 OECD Decision replaced the a given destination facility in the United subpart E to clarify that hazardous waste OECD three-tier waste list (Green, States could be receiving the same exports subject to subpart E and Amber, Red) system with a two-tiered hazardous waste from the same foreign hazardous waste imports subject to system (Green and Amber) to conform to exporter under more than one approved subpart F are not subject to subpart H the Basel Convention waste lists more notice. Adding this requirement will in order to reduce confusion for U.S. closely. Further, the revised OECD enable EPA to match the submitted exporters and importers. waste lists, as provided by the 2004 RCRA hazardous waste manifests for OECD Amendment, better correspond to individual import shipments against the B. Changes to 40 CFR 262.60(e), Subpart those of the Basel Convention. approved import notice that typically F Accordingly, we are proposing to make covers the twelve months of imports. This proposed rule includes the these same conforming changes to EPA’s Being able to do so will enable EPA to requirement that a U.S. importer OECD rule. determine when any import shipments provide the transporter a copy of the Wastes subject to the Green control claiming coverage under that specific documentation confirming EPA’s procedures are those wastes listed in notice would or would not be in consent to the import of hazardous Parts I and II of Appendix 3 to the accordance with the terms of the waste when the importer provides the Amended 2001 OECD Decision. Part I approved notice, thus improving our transporter with an additional copy of contains wastes listed in Annex IX of oversight of such imports. the manifest. the Basel Convention, to which the EPA currently responds to specific OECD has made and noted adjustments, notices of intent to export hazardous C. Changes to 40 CFR Part 262, Subpart as appropriate. Part II contains waste from a foreign country into the H additional wastes subject to the Green United States with either a written All but the last three changes listed control procedures, which the OECD response (e.g., written consent or below are necessary to conform to the has assessed as not posing any risk to objection) or a tacit consent. Tacit revisions in the Amended 2001 OECD human health or the environment under consents are allowable for imports Decision. These changes range from its risk criteria. subject to EPA’s OECD regulations, as substantive revisions and amendments Wastes subject to the Amber control specified in 40 CFR part 262, subpart H. to changes in terminology to simple procedures are those wastes listed in For such imports, the exporting country editorial changes. Collectively, these Parts I and II of Appendix 4 to the may assume tacit consent to the changes serve to implement the Amended 2001 OECD Decision. Part I proposed shipments by EPA if no Amended 2001 OECD Decision, as well contains wastes listed in Annexes II and written response from EPA has been as clarify certain sections that were VIII of the Basel Convention, to which received by the exporting country thirty previously ambiguous to the regulated the OECD has made and noted working days from the date EPA sends community. Changes to 40 CFR part adjustments, as appropriate. Part II the exporting country a letter 262, subpart H include: contains additional wastes subject to the acknowledging receipt of the notice. Amber control procedures, which the Because EPA’s consents are currently 1. Changes in Terminology OECD has assessed as posing a risk to either tacit or sent in writing only to the In the Amended 2001 OECD Decision, human health or the environment under competent authority of the exporting the OECD Council updated several its risk criteria. Further, all wastes country, EPA will need to provide or terms and definitions used in the 1992 formerly appearing on the Red list otherwise make available to U.S. Decision. EPA believes that these would be subject to the Amber control importers documentation confirming changes do not result in substantive procedures. the Agency’s consent. EPA is changes to the intent of the U.S. importers and exporters of considering and soliciting comments on requirements, but merely bring them in hazardous waste subject to the subpart what would provide adequate line with current terminology used in H requirements of 40 CFR part 262 documentation of the Agency’s written practice and in other international should be aware that wastes listed in or tacit consent to a specific notice, and agreements. To limit any unnecessary Part I of both the new OECD Amber and how best to provide that information to confusion between the U.S. regulations Green waste lists have not retained their U.S. importers. and those of other OECD Member OECD waste codes. Consequently, the relevant Basel waste codes should be III. Summary of This Proposed Rule countries and to promote consistency used instead. However, wastes listed in and Changes with the Amended 2001 OECD Decision, this proposed rule adopts Part II of both the new OECD Amber and A. Changes to 40 CFR Part 262, Subpart these changes in terminology. Thus, Green waste lists do retain their original E EPA proposes to change the following OECD waste codes, as listed in the 1992 This proposed rule amends the terminology: Decision. This two-part system is exception reporting requirements in (a) ‘‘Transfrontier’’ to ‘‘transboundary’’; 11 The change from ‘‘consignee’’ to ‘‘importer’’ is § 262.55 to specify that all exception only being made in 40 CFR part 262 subpart H, and reports be submitted to the Office of (b) ‘‘Tracking document’’ to does not affect the use of consignee in 40 CFR part Enforcement and Compliance ‘‘movement document’’; 262 subpart E.

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necessary to ensure that wastes not yet (e.g., the existing controls normally to the contract.13 This proposed rule explicitly listed under the Basel applied in commercial transactions). also requires, as does the Amended Convention will continue to have the The Amended 2001 OECD Decision 2001 OECD Decision, that the recovery same level of control applied to them provides that the amount of waste facility send the certificate of recovery when destined for recovery under the qualifying for this exemption shall not as soon as possible, but no later than Amended 2001 OECD Decision. be more than the minimum quantity thirty (30) days after the completion of Both the Green waste list and the reasonably needed to perform the recovery and no later than one (1) Amber waste list are cited in § 262.89. calendar year following the receipt of This rule proposes to amend § 262.89(d) analyses adequately in each particular waste by the recovery facility. Finally, to incorporate by reference the most case, but can never exceed twenty-five this proposed rule requires that the current OECD waste lists from the kilograms (25 kg /55 lbs). Analytical Amended 2001 OECD Decision. Further, samples also must be appropriately recovery facility must send copies of the the elimination of the Red list allows for packaged and labeled and must be certificate of recovery to the exporter the consolidation of the provisions carried out under the terms of all and competent authorities of the currently found in § 262.89(b) and (c), applicable international transport countries of export and import by mail, which appears in the new proposed agreements. Furthermore, any e-mail followed by mail, or fax followed § 262.89(b). transboundary movement of such by mail. This proposed rule samples through non-OECD Member incorporates the certificate of recovery 3. References to Unlisted Wastes Have countries shall be subject to provisions of the Amended 2001 OECD Been Eliminated in Favor of ‘‘Wastes international law and to all applicable Decision in § 262.83(e). Not Covered in Appendices 3 and 4 of national laws and regulations. Thus, the the OECD Decision’’ The Amended 2001 OECD Decision proposed rule allows for waste samples states that the completion of block 18 of Section 262.83(d) currently addresses that are sent for laboratory analyses to the OECD movement document, and the the general notification requirements for be exempt from the Amber control submission of signed copies to the unlisted wastes. This rule first proposes procedures provided they meet the same exporter and relevant competent to renumber this section to § 262.83(c) conditions as set forth in the Amended authorities, fulfils the certificate of since the current § 262.83(c) addresses 2001 OECD Decision. ‘‘red-list wastes’’ and is no longer recovery requirement. Although the Information on exemptions and any OECD movement document is needed. This proposal also replaces the other national requirements concerning term ‘‘unlisted wastes’’ with ‘‘wastes not recommended, the Amended 2001 movements of waste for laboratory OECD Decision does not require covered in Appendices 3 and 4 of the analyses is available to the public via a 12 recovery facilities to use it. OECD Decision, ’’ so that wastes not Web site with information compiled by on these lists are not automatically the OECD Environment Directorate, While some recovery facilities may subject to the Amber control which can be accessed at http:// not be subject to the import and other procedures. Rather, ‘‘wastes not covered www.oecd.org/env/waste/. requirements because they are not in Appendices 3 and 4 of the OECD handling RCRA hazardous waste, these U.S. exporters should also be aware Decision’’ will be subject to the entities should be aware that the that even if their shipments qualify for domestic rules and regulations of the competent authorities of the exporting countries of concern. the laboratory analyses exemption, some Member countries may elect to apply Member countries may still impose the 4. Transboundary Movements May Now the Amber control procedures to such conditions outlined in the OECD Qualify for a Laboratory Analysis shipments, requiring the exporter of a Council Decisions before the Exemption waste sample for laboratory analyses to transactions can be completed. Thus, if The 1992 Decision and EPA’s OECD inform the competent authorities of the waste is considered non-hazardous rule did not include a provision that such a movement. U.S. exporters should in the United States, EPA would not would exempt waste samples destined check with the competent authorities of require a certificate of recovery from a for laboratory analyses. The Amended each country to find out if they require facility. However, the competent 2001 OECD Decision, however, would the Amber control procedures for a authority of the country of export may allow Member countries to decide sample that would qualify for the require a certificate of recovery, and through their domestic laws and laboratory analyses exemption. may require that the exporter include regulations that waste samples normally such a requirement in the contract subject to the Amber control procedures 5. Recovery Facilities Must Submit a between the exporter and importer. will only be subject to the Green control Certificate of Recovery procedures if such samples are destined This proposed rule would implement 13 Under both the 1992 Decision and the for laboratory analyses to assess its the Amended 2001 OECD Decision’s Amended 2001 OECD Decision, transboundary physical or chemical characteristics, or movements of wastes subject to the Amber control requirement that a duly authorized procedures may only occur under the terms of a to determine its suitability for recovery representative of the recovery facility operations. Therefore, we are proposing valid written contract, or chain of contracts, or submit a certificate of recovery to all equivalent arrangements between facilities that if the waste sample is destined for interested parties (e.g., exporter, country controlled by the same legal entity, starting with the laboratory analyses and meets certain of export, country of import), ensuring exporter and terminating at the recovery facility. specified conditions, then the waste is The contracts must: (a) Clearly identify the recovery of the waste has been subject to the Green control procedures generator of each type of waste, each person who completed. A valid certificate of shall have legal control of the wastes and the recovery is defined as a written and recovery facility; (b) provide that relevant 12 Section 262.81(j) in the proposed revisions to the regulatory text in 40 CFR part 262, subpart H dated statement that affirms that the requirements of the OECD Decisions are taken into defines ‘‘OECD Decision’’ as ‘‘Decision of the waste materials were recovered and that account and binding on all parties; and (c) specify Council C(2001)107/FINAL, Concerning the Control any residuals generated from the which party to the contract shall assume responsibility for ensuring alternative management of Transboundary Movements of Wastes Destined recovery operation have been disposed for Recovery Operations, as Amended by of the wastes including, if necessary, the return of C(2004)20’’ for the purposes of the subpart. of in the manner agreed to by the parties the wastes.

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6. Amendments to Notification 8. New Procedures for the Pretreatment mail, e-mail followed by mail, or by fax Requirements of Hazardous Wastes at R12/R13 followed by mail. Recovery Facilities The control procedures applied to The Amended 2001 OECD Decision transboundary movements of hazardous introduced a series of notification The Amended 2001 OECD Decision imposed new requirements for R12 and waste from an R12/R13 recovery facility requirements that require EPA to make R13 recovery facilities, which we are to a subsequent R1–R11 recovery facility conforming amendments to its OECD proposing to incorporate in this vary depending on whether these regulations. Specifically, this proposed proposal. R12 and R13 recovery facilities are located within the same rule would amend § 262.83(e) (which facilities are transfer and storage Member country or in a different would be renumbered as § 262.83(d)) by facilities, respectively, that do not Member country. When the subsequent R1–R11 incorporating several new items that recover the wastes themselves. Because recovery facility is located within the must be included in the notification, hazardous wastes destined for recovery same country, we are proposing that the including: may have to undergo treatment before a R12/R13 recovery facility must obtain (a) Exporter and importing recovery R1–R11 14 recovery facility actually from the subsequent R1–R11 recovery facility e-mail address; recovers them, the OECD considers R12 facility a certification that the ‘‘final’’ and R13 facilities as ‘‘intermediate or (b) E-mail address for importer (if recovery of the hazardous waste at that temporary operations.’’ The primary different from the importing recovery facility has been completed within one reason for the new requirements is to facility); (1) calendar year following the delivery ensure that the subsequent R1–R11 of the hazardous waste to the R1–R11 (c) Address, telephone, fax, and e- recovery operation receives the waste facility. The format of the certification mail of intended transporter(s); and completes its recovery in an of recovery is not fixed, but it must, at (d) Means of transport envisioned; environmentally sound manner. a minimum, identify the code number of and When the notification document lists the notification document and serial (e) Specification of the type of an R12/R13 recovery facility, we are proposing that the exporter must number of the movement documents to recovery operation(s) that will be used. indicate in the same notification which it pertains. The R12/R13 recovery facility must then transmit the 7. Amendments to Procedures for document the recovery facility or certification document prepared by the Exports to Pre-Approved Facilities facilities where the subsequent R1–R11 recovery operation takes place or may R1–R11 recovery facility to the Under the Amended 2001 OECD take place. competent authorities of the countries of Decision, a pre-approved recovery The R12/R13 recovery facility shall import and export as soon as possible, facility (also known as a pre-consented certify the receipt of the hazardous but no later than one (1) calendar year recovery facility) is one that has been waste by sending a copy of the duly following the delivery of the hazardous identified in advance by the competent completed movement document within waste to the R1–R11 recovery facility. authority having jurisdiction over that three (3) working days of the receipt of When the subsequent R1–R11 facility facility as acceptable for receiving such wastes to the exporter and all is not located in the same Member hazardous waste imports. For these competent authorities concerned. In country as the R12/R13 facility, we are facilities, the competent authority must addition, the R12/R13 recovery facility proposing that a new notification must be made for the transboundary inform the OECD secretariat that the must retain the original movement movement of hazardous waste by the facility is pre-approved, and the waste document for three (3) years. Similarly, R12/R13 recovery facility. The types that are acceptable for recovery. the R12/R13 recovery facility has to applicable procedures differ, however, This allows for simplified and certify the completion of the R12/R13 depending upon the country where the accelerated notification procedures. Pre- recovery operation by submitting a final recovery operation occurs. In approval may be granted for a specific certificate of recovery as soon as particular, if the final R1–R11 recovery time frame and may be revoked at any possible, but no later than thirty (30) facility is located in the initial country time by the relevant competent days after the completion of the R12/ of export, then the normal Amber authority. R13 recovery operation at that facility and no later than one (1) calendar year control procedures shall apply. In this The Amended 2001 OECD Decision following the receipt of the waste by the case, the R12/R13 facility must submit established a consideration period for R12/R13 recovery facility. The R12/R13 a new notification document to its objection to transboundary movements recovery facility must send the competent authority and obtain consent to pre-approved facilities and certificate of recovery to the exporter from its competent authority and from lengthened the allowable coverage and to the competent authorities of the the initial country of export to the period for notifications. Specifically, the countries of export and import by either export of the hazardous waste back to Decision established a consideration that country for final recovery. If, period of seven (7) working days during 14 Recovery operations R1 through R11 are however, the final R1–R11 recovery which time relevant competent defined as the following: R1, use as a fuel (other facility is located in a country different authorities may object to transboundary than in direct incineration) or other means to from the initial country of export, then movements of waste to pre-approved generate energy; R2, solvent reclamation/ the Amber control procedures shall also regeneration; R3, recycling/reclamation of organic facilities. The Decision also established substances which are not used as solvents; R4, apply, but the movement will in effect that the allowable coverage period for recycling/reclamation of metals and metal be treated as a ‘‘re-export’’ of waste to general notifications may extend up to compounds; R5, recycling/reclamation of other a third country. In this case, not only is three (3) years. Today’s proposed rule inorganic materials; R6, regeneration of acids or a new notification document required, bases; R7, recovery of components used for amends the current regulations to pollution abatement; R8, recovery of components but the competent authority of the incorporate these changes in used from catalysts; R9, used oil re-refining or other initial country of export must also be § 262.83(b)(2)(ii) to reflect the seven (7) reuses of previously used oil; R10, land treatment notified of the transboundary day consideration period and in resulting in benefit to agriculture or ecological movement, and consent must be improvement; and, R11, uses of residual materials § 262.83(b)(2)(i) to reflect the allowable obtained from any of the operations numbered R1– obtained from the original country of coverage period for notifications. R10. export and the new countries of import,

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export, and transit. For example, if a the mixture still exhibits one or more of countries are to cooperate in resolving hazardous waste is exported from the the RCRA hazardous waste the incident by making all necessary United States to a R12/R13 facility in characteristics and, thus, be subject to arrangements to ensure the best France, and then will be sent to a the Amber control procedures. alternative management of the subsequent R1–R11 recovery facility in Conversely, if the resulting mixture no hazardous waste. If alternative Germany, the R12/R13 facility in France longer exhibits one or more of the RCRA arrangements cannot be made to recover must submit a notification to and obtain hazardous characteristics, it will instead these wastes in an environmentally consent from France (the new country of be considered a Green waste, and be sound manner in the country of import, export), the United States (the original subject to the Green control procedures. the hazardous waste must be returned to country of export) and Germany (the Because other OECD Member the country of export or re-exported to new country of import for final countries may require that the mixtures a third country. recovery). listed above (that the U.S. sometimes This proposed rule incorporates all of considers subject to the Green control (a) Return of Hazardous Waste to these requirements in § 262.82(f). procedures) be subject to Amber control Country of Export procedures, the proposed rule includes Under the Amended 2001 OECD 9. New Provisions Regarding Mixtures notes stating that other OECD Member Decision, the return of the hazardous of Hazardous Wastes countries may subject such mixtures to waste to the country of export is to take The Amended 2001 OECD Decision the Amber control procedures. In such place within ninety (90) days from the contains controls and provisions related cases, U.S. importers and exporters time when the country of export was to the mixture of hazardous waste. should be prepared to follow the Amber informed of the incident, or such other Specifically, the Amended 2001 OECD control procedures within those OECD period of time to which all concerned Decision defines a mixture of hazardous Member countries. countries agree. The competent waste as one that results from the Finally, the Amended 2001 OECD authorities of both countries of export intentional or unintentional mixing of Decision requires that notification for a and transit (if applicable) are to be two or more different hazardous wastes. transboundary movement of a mixture informed about the return of the However, under the Amended 2001 of hazardous wastes falling under the hazardous waste and the reasons for its OECD Decision, a single shipment of Amber control procedures should be return. These authorities are prohibited hazardous wastes, consisting of two or made by the person performing the from opposing or preventing the return more wastes, where each is separated, is mixing activity (the generator of the of the hazardous waste to the country of not considered a mixture of hazardous mixture) or any other person acting as export, so long as the movement waste. an exporter in place of the person complies with the requirements set out The Amended 2001 OECD Decision performing the mixing activity. In the by the country of export’s domestic law. also provides that: notification, relevant information on If the waste is returned through a new • A mixture of two or more Green each fraction of the waste, including its country of transit, the competent wastes should be subject to the Green code numbers, has to be given in order authority of that country is to be control procedures. However, the of importance. This proposed rule notified and consent obtained in regulated community should be aware would impose these requirements. accordance with the normal Amber that some OECD Member countries may 10. New Provisions Regarding the control procedures. require, by domestic law, that mixtures Return and Re-Export of Hazardous of different Green wastes be subject to (b) Re-Export of Hazardous Waste From Wastes Subject to the Amber Control the Amber control procedures. the Country of Import to a Third • A mixture consisting of a Green Procedures Country waste and more than a ‘‘de minimis’’ This proposed rule proposes to adopt Under the Amended 2001 OECD amount of Amber waste is subject to the the Amended 2001 OECD Decision’s Decision, the re-export from the country Amber control procedures. In the more precise provisions (than the earlier of import to a third country is absence of internationally accepted 1992 Decision) on measures to be taken considered a new transboundary criteria, the term ‘‘de minimis’’ should in case a transboundary movement of movement of hazardous waste. As a be defined according to national hazardous waste that is subject to the result, the Amber control procedures are regulations and procedures. Amber control procedures cannot be applicable. The initial importer becomes • A mixture containing two or more completed as intended (e.g., not in the new exporter and, consequently, Amber wastes is subject to the Amber accordance with the notification, assumes all responsibilities as an control procedures. consents given by the competent exporter. In addition, the notification In this proposed rule, EPA has revised authorities, or the terms of the contract). must also include the competent the text in § 262.82(a) to clarify that only There may be a number of reasons for authority of the initial country of export those wastes and waste mixtures this non-completion, for example, an who, in accordance with the Amber considered hazardous under U.S. accident during the transport of the control procedures, may object to the re- national regulations will be subject to waste, improper notification, or any export if the movement does not comply the Amber control procedures within illegal action taken by someone with the requirements set out by its the United States. This is consistent involved with the movement of the domestic law. with longstanding EPA policy, and hazardous waste. should minimize confusion for the The Amended 2001 OECD Decision (c) Return of Hazardous Waste From regulated community. For example, provides that if this uncompleted Country of Transit to Country of Export under the existing RCRA hazardous movement of hazardous waste (hereafter If the incident takes place in the waste regulations, any mixture of an referred to as the ‘‘incident’’), takes country of transit, the exporter should Amber waste that exhibits one or more place in the country of import, the make arrangements so that the of the hazardous characteristics of competent authority of that country hazardous waste still can be recovered ignitability, corrosivity, reactivity, or shall immediately inform the competent in an environmentally sound manner in toxicity under RCRA with a Green waste authority of the country of export. The the recovery facility of the importing shall be considered an Amber waste if competent authorities of the concerned country to where it was originally

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destined. The competent authority of in Washington, DC rather than the • Provide a copy of the EPA the country of transit is to immediately Administrator. Acknowledgment of Consent for the inform the competent authorities of the shipment to the transporter transporting D. Changes to 40 CFR 264.12(a)(2) and countries of export and import and any the shipment for export. 40 CFR 265.12(a)(2) other countries of transit. If the exporter The transporter of SLABs being sent is unable to arrange for the recovery of This proposed rule also amends to a foreign country for reclamation the hazardous waste in an §§ 264.12(a)(2) and 265.12(a)(2) by, would need to comply with the environmentally sound manner at the among other things, requiring owners or applicable requirements in 40 CFR part recovery facility to where it was operators of recovery facilities to submit 262, subpart H when the shipments are originally destined, the hazardous waste a certificate of recovery as soon as destined to one of the OECD Member should be returned, adhering to possible after the recovery is completed, countries listed in § 262.58(a)(1). For subsection (a) above, to the country of but no later than thirty (30) days after export shipments of SLABs not destined export within ninety (90) days from the the completion of recovery and no later for one of the OECD Member countries time when the country of export was than one (1) calendar year following the listed in § 262.58(a)(1), the transporter informed of the incident or such other receipt of the hazardous waste. would not be able to accept a shipment if the transporter knows the shipment period of time as the concerned E. Changes to 40 CFR 264.71(a)(3) and countries agree. The competent does not conform to the EPA 40 CFR 265.71(a)(3) authorities of the country of export and Acknowledgment of Consent, and the countries of transit are to be This proposed rule also amends would have to ensure that: informed of the return, but they are §§ 264.71(a)(3) and 265.71(a)(3) by • A copy of the EPA prohibited from opposing or preventing requiring owners or operators of Acknowledgment of Consent the return of the hazardous wastes to the facilities receiving imported hazardous accompanies the shipment; and • country of export, so long as the wastes to submit to EPA the written The shipment is delivered to the movement complies with the documentation of EPA’s consent to the foreign facility designated by the person requirements set out by the country of import along with a copy of the RCRA initiating the shipment. export’s domestic law. This proposal hazardous waste manifest for the EPA proposes to amend the table sets forth these re-export and return shipment that they are currently located at 40 CFR 266.80 in order to provisions of the Amended 2001 OECD required to submit to EPA within thirty ensure greater protection of human Decision in §§ 262.82(c), 262.82(d), and (30) days of shipment delivery. This health and the environment through 262.82(e). will enable EPA to match the individual notification, tracking, and management shipment manifest to the consent for an of SLABs. In addition to harmonizing 11. SLABs Are Now Covered by EPA’s annual notice from a foreign exporter. the RCRA hazardous waste regulations OECD Rule for SLABs with the notification and F. Changes to 40 CFR 266.80(a) This proposed rule updates consent requirements in the RCRA § 262.80(a) to reflect that export The existing regulations at 40 CFR universal waste rules, today’s proposed shipments of SLABs being managed part 266, subpart G, ‘‘Spent Lead-Acid rule would harmonize the export under 40 CFR part 266, subpart G that Batteries Being Reclaimed,’’ exempt requirements for SLABs with the are destined for recovery in one of the exporters of SLABs destined for Amended 2001 OECD Decision and the OECD countries listed in § 262.58(a)(1) reclamation from the export Basel Convention. (Note that the are subject to 40 CFR part 262, subpart requirements of 40 CFR part 262. EPA exemption from the manifest H. proposes to amend the table located at requirements for exporters and 40 CFR 266.80 by including two transporters of SLABs for reclamation 12. Technical Corrections to EPA’s additional rows to the current table. will continue to remain in effect.) OECD Rule These additional rows will effectively The table located at 40 CFR 266.80 This proposed rule makes several require that exporters and transporters describes the various kinds of SLAB technical corrections to EPA’s current of SLABs being sent to a foreign country handlers and their respective legal OECD rule, including corrections to for reclamation will need to meet the requirements. Some SLAB handlers may capitalization, syntax, and punctuation universal waste requirements find that more than one description errors. In these changes, EPA is not concerning the export of SLABs for located in the table applies to their making any substantive revisions, but is reclamation. SLAB management activities. It is the seeking to eliminate any confusion on Specifically, exporters would need to SLAB handler’s responsibility to read the part of the regulated community by either comply with the requirements in all seven descriptions and carefully striving for consistency both within the 40 CFR part 262, subpart H when the consider any and all requirements regulations and with the terms of the shipments are destined to one of the which may apply. Amended 2001 OECD Decision. Some OECD Member countries listed in 1. Export Shipments of SLABs to OECD prevalent examples of these types of § 262.58(a)(1), or with the following Member Countries revisions include changing ‘‘Subpart’’ to requirements when the shipments are ‘‘subpart,’’ ‘‘OECD member’’ to ‘‘OECD destined for any country not listed in We are proposing that exporters and Member,’’ and ‘‘thirty days’’ to ‘‘thirty § 262.58(a)(1): transporters of SLABs destined for (30) days.’’ • Comply with the requirements reclamation in one of the OECD Member applicable to a primary exporter in 40 countries listed in § 262.58(a)(1) would 13. Change to the Submittal Address for CFR 262.53, 262.56(a)(1) through (4), have to comply with all applicable Exception Reports (6), and (b) and 262.57; sections of 40 CFR part 262, subpart H This proposed rule amends the • Export such SLABs only upon for wastes subject to the Amber control exception reporting requirements in consent of the receiving country and in procedures. For a complete listing of the § 262.87(b) to specify that all exception conformance with the EPA proposed requirements, exporters and reports are to be submitted to the Office Acknowledgement of Consent as transporters should consult the of Enforcement and Compliance defined in subpart E of 40 CFR part 262 regulatory text for 40 CFR part 262, Assurance’s Office of Federal Activities of this chapter; and subpart H in this proposal. In addition

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to the proposed changes to subpart H Receipt (seven days for shipments going destination of all SLABs exported discussed in earlier sections, the to pre-approved facilities) to object or during the previous calendar year. applicable Amber control procedures consent explicitly to the proposed Reports are due by March 1st of every include, but are not limited to, the shipment. Any explicit objection or year. following: consent by the country of import or (d) Exception Reporting transit will be sent simultaneously to (a) Notification of Intent To Export U.S. EPA, the exporter, and any other Under § 262.87(b), any person Exporters of SLABs destined for interested country (e.g., of import or exporting SLABs who meets the reclamation would be required to transit). If no objections are submitted definition of primary exporter in comply with the Amber control within the thirty day (30) period (seven § 262.51 or who initiates the movement procedures in § 262.83. Under the days for shipments going to pre- documentation under § 262.84 must file Amber control procedures, an exporter approved facilities), under the an exception report with the Office of must submit a complete notification of provisions of the Amended 2001 OECD Enforcement and Compliance its intent to export to EPA at least 45 Decision, tacit (or implied) consent is Assurance, Office of Federal Activities, days before the export is scheduled to assumed and the movement of the International Compliance Assurance leave the United States (or at least ten hazardous wastes may commence. Division (2254A), Environmental days if the shipment is going to a pre- Protection Agency, 1200 Pennsylvania approved facility in the country of (b) Shipment Tracking Avenue, NW., Washington, DC 20460, if import). The notification can cover Under § 262.84, export shipments of any of the following occurs: export activities spanning a period of up SLABs must be accompanied by a • He has not received a copy of the to and including 12 months (or up to movement document from the initiation RCRA hazardous waste manifest signed three years if the shipment is going to of the shipment until it reaches the final by the transporter and noting the date a pre-approved facility in the country of recovery facility. Exporters must and point of departure of the waste from import). provide the initial transporter with the the United States, within forty-five (45) A complete notification includes, but movement document. Transporters are days from the date it was accepted by is not limited to: prohibited from accepting a shipment of the initial transporter; • Contact information and EPA ID SLABs without such a movement • Within ninety (90) days from the number (if applicable) for the exporter; document, and are required to ensure • date the waste was accepted by the Point of departure from country of that the movement document initial transporter, the exporter has not export; accompanies the shipment from the • received written confirmation from the A waste description and quantity of initiation of the shipment until it recovery facility that the hazardous the hazardous waste being exported; reaches the final recovery facility. The waste was received; • The RCRA waste code(s) (if movement document must include all • The waste is returned to the United applicable), United Nations number, the information from the notification States. and OECD waste code for the hazardous and the following: waste (SLABs are classified as Amber • Date movement commenced; (e) Recordkeeping waste A1160 under the Amended 2001 • Name (if not the exporter), address, Under § 262.87(c), any person OECD Decision); telephone and fax numbers, and e-mail exporting SLABs who meets the • Planned mode(s) of transportation; of person originating the movement • Contact information for all intended definition of primary exporter in document (Note that this person is § 262.51 or who initiates the movement transporters; equivalent to the primary exporter • Contact information and the OECD documentation under § 262.84 must under 40 CFR part 262, subpart E); keep the following records: recovery operation code(s) (e.g., R1– • Company name and EPA ID number • A copy of each notification of intent R13) for both the importer and the final (if applicable) of all transporters; to export and all written consents recovery facility (if different sites); • Identification (license, registered obtained from the competent authorities • The requested period of name or registration number) of means of countries concerned (e.g., export, exportation; of transport, including types of • transit, and import) for a period of at A list of all transit countries, along packaging envisaged; with points of entry and departure, • Any special precautions to be taken least three (3) years from the date the through which the hazardous waste will by transporter(s) during transportation; hazardous waste was accepted by the be sent, and • Certification/declaration signed by initial transporter; • • A certification by the exporter that the exporter that no objection to the A copy of each annual report for a a contract or chain of contracts or shipment has been lodged; and period of at least three (3) years from the equivalent arrangements among all • Appropriate signatures for each due date of the report; parties to the proposed shipment are in custody transfer (e.g., transporter, • A copy of any exception reports and place and are legally enforceable in all importer, and owner or operator of the a copy of each confirmation of delivery concerned countries. recovery facility). (i.e., movement documentation) sent by If the notification is complete, EPA the recovery facility to the exporter for will forward it to the importing country (c) Annual Reporting at least three (3) years from the date the and any transit country(ies). Within Under § 262.87(a), any person hazardous waste was accepted by the three working days of receiving the exporting SLABs who meets the initial transporter or received by the notification, the importing country must definition of primary exporter in recovery facility, whichever is send either an Acknowledgement of § 262.51 or who initiates the movement applicable; and Receipt or a list of items that the documentation under § 262.84 will have • A copy of each confirmation of notification lacks directly to U.S. EPA, to submit to the Office of Enforcement recovery sent by the recovery facility to to the exporter, and to any countries of and Compliance Assurance’s Office of the exporter for at least three (3) years transit. The countries of import and Federal Activities in Washington, DC, from the date that the recovery facility transit have thirty (30) days from the an annual report summarizing the types, completed the processing of the SLAB date on the Acknowledgement of quantities, frequency, and ultimate shipment.

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2. Export Shipments of SLABs to (b) Shipment Documentation and G. Changes to 40 CFR 271.1 Countries Not Listed in § 262.58(a)(1) Tracking This proposed rule amends Table 1 (a) Notification of Intent To Export We are proposing that exporters of and Table 2 of § 271.1 by adding SLABs must provide a copy of the EPA We are proposing that exporters of references to the revisions which amend Acknowledgment of Consent for the SLABs destined for reclamation in 40 CFR part 262, subpart E to reflect that SLAB shipment to the transporter countries not listed in § 262.58(a)(1) subpart E implements the Hazardous transporting the shipment for export. would be required to comply with the and Solid Waste Amendments of 1984. Transporters are prohibited from primary exporter notification accepting a SLAB export shipment if the IV. Costs and Benefits of the Proposed requirements in § 262.53, and export the transporter knows the shipment does Rule SLABs only upon consent of the not conform to the EPA receiving country and in conformance A. Introduction Acknowledgment of Consent. In with the EPA Acknowledgement of addition the transporter must ensure The value of any regulatory action is Consent, as defined in 40 CFR part 262, that: traditionally measured by the net subpart E. Specifically, the exporter • A copy of the EPA change in social welfare that it would have to submit a complete Acknowledgment of Consent generates. The Agency’s economic notification of its intent to export to accompanies the SLAB export assessment conducted in support of this EPA at least 60 days before the export shipment; and proposed action evaluates costs, cost is scheduled to leave the United States. • The SLAB export shipment is savings, benefits, and other impacts, The notification can cover export delivered to the facility designated by such as environmental justice, activities spanning a period of up to and the person initiating the shipment. children’s health, unfunded mandates, including 12 months. This complete Unlike SLAB export shipments that regulatory takings, and small entity notification contains: must comply with 40 CFR part 262, impacts. To conduct this analysis, we • Contact information and EPA ID subpart H, SLAB export shipments developed and implemented a number (if applicable) for the primary destined for countries not listed in methodology for examining impacts, exporter; and followed appropriate guidelines • § 252.58(a)(1) do not have any shipment A description and quantity of the tracking documentation requirements or and procedures for examining equity SLABs to be exported; exception reporting requirements considerations, children’s health, and • The RCRA waste code(s) (if because SLAB shipments are exempt other impacts. applicable), U.S. DOT proper shipping from the RCRA hazardous waste B. Analytical Scope name, hazard class, and United Nations manifest requirements. number as identified in 49 CFR parts This analysis assesses the proposed 171 through 177; (c) Annual Reporting integration of various OECD Council • Planned mode(s) of transportation We are proposing that exporters of Decisions into existing U.S. regulations and type(s) of containers; SLABs must follow the requirements governing shipments (export/import/ • A description of the manner in applicable to a primary exporter transit) of hazardous wastes destined for which the SLABs will be treated, stored, detailed in § 262.56 ‘‘Annual reports’’ recovery between the U.S. and other or disposed of (including recovery) in (a)(1) through (4), (6), and (b). OECD Member countries. In addition, the receiving country; Specifically, exporters will have to file we assess the newly proposed export • The planned frequency and time with the EPA Administrator an annual regulations for SLABs to OECD and non- period of exportation; report summarizing the types, OECD countries. Also incorporated into • A list of all transit countries quantities, frequency, and ultimate the analysis is the proposed through which the SLABs will be sent, destination of all SLABs exported requirements that importers of and a description of the approximate during the previous calendar year. hazardous waste subject to 40 CFR part length of time the hazardous waste will Reports are due by March 1st of every 262, subpart F, provide to the initial remain in each country and the nature year. transporter documentation necessary to of its handling while there; confirm EPA’s consent to the import to (d) Recordkeeping • All points of entry to and departure accompany such manifested import from each foreign country through Under § 262.57, we are proposing that shipments, and that the receiving which the SLABs will pass; and exporters of SLABs must keep the facility submit to EPA a copy of that • The name and site address of the following records: documentation when it submits to EPA • consignee 15 and any alternate A copy of each notification of intent the RCRA hazardous waste manifest for consignee. to export for at least three years from the the import shipment. Finally, this action If after proper notification, the date the SLAB export shipment was proposes a revision to the current receiving country consents to the receipt accepted by the initial transporter; language in §§ 262.55 and 262.87(b) that • of the hazardous waste, EPA will A copy of each EPA will require exception reports to be forward an EPA Acknowledgment of Acknowledgment of Consent for at least submitted directly to the Director, Consent to the exporter. If, on the other three years from the date the SLAB International Compliance and hand, the receiving country objects to export shipment was accepted by the Assurance Division (ICAD), of the Office the receipt of the hazardous waste or initial transporter; of Enforcement and Compliance • withdraws a prior consent, EPA will A copy of each confirmation of Assurance (OECA), EPA Headquarters, notify the exporter in writing. EPA will delivery of the SLAB shipment from the rather than to the EPA Administrator. also notify the exporter of any responses consignee for at least three years from There is no discernable cost impact from transit countries. the date the SLAB export shipment was associated with this proposed accepted by the initial transporter; and requirement for exception reports to be • submitted directly to the Director. 15 As noted previously, this is equivalent to A copy of each annual report for at ‘‘importer’’ in the proposed revisions to 40 CFR part least three years from the due date of the First, we assess all potential cost 262, subpart H. report. impacts (positive and negative) of the

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proposed revisions to the OECD rule, The total incremental annual cost after • Helping to improve market including: the first year of implementation (i.e., efficiency by allowing exporters to ship • Exemptions for wastes destined for excluding reading the rules) is estimated wastes more quickly and store for laboratory analyses, to be $404,000. shorter periods of time. • The requirement to provide a The combined total cost of the • Encouraging the environmentally certificate of recovery, proposed rule (OECD portion, plus sound recovery of hazardous wastes, • Information collection requirements SLAB portion, plus import consent thereby reducing the risks associated associated with exchange and documentation portion) is estimated at with treatment and disposal. accumulation recovery operations, and $919,000 for the first year. • Providing for the improved ability • The notification requirements Approximately 92.5% of this total is to acquire information regarding the related to the return of wastes. attributable to the SLAB portion of the quantities of SLABs exported from the Next, we assess all potential cost proposal, followed by the EPA import U.S. and the destination facilities to impacts (positive and negative) of the consent documentation requirements which the SLABs are exported. proposed revisions to the SLAB representing about 5.9% of the total. regulations, including: The OECD portion accounts for about V. State Authorization • Notification requirements for SLAB 1.6% of the total first year cost of the A. Applicability of Rules in Authorized exporters, proposal. After the first year, the total States • The renotification requirements incremental cost of the proposed Under section 3006 of RCRA, EPA associated with any changes to the rulemaking, omitting the cost of reading may authorize qualified States to original SLAB export notification, the rules, is estimated at $468,000. • The annual reporting requirements, Cost estimates presented in this administer their own hazardous waste • Additional reporting requirements section are based on our estimates for programs in lieu of the federal program (if requested by EPA), and the number of potentially affected within the State. Following • SLAB exporter recordkeeping importers, exporters, and transporters. authorization, EPA retains enforcement requirements. Numerous data sources were used in the authority under sections 3008, 3013, Finally, we analyze the proposed derivation of these estimates, including: and 7003 of RCRA, although authorized requirements that importers of RCRAInfo, the Waste International States have primary enforcement hazardous waste subject to 40 CFR part Tracking System (WITS), industry responsibility. The standards and 262, subpart F, provide to the initial consultations, the Biennial Report, the requirements for State authorization are transporter documentation necessary to International Trade Commission (ITC), found at 40 CFR part 271. confirm EPA’s consent to the import to Environment Canada, and Prior to enactment of the Hazardous accompany such manifested import SEMARNAT 16 data. A full explanation and Solid Waste Amendments of 1984 shipments, and that the receiving of the data sources, analytical (HSWA), a State with final RCRA facility submit to EPA a copy of that methodology, assumptions, and authorization administered its documentation when it submits to EPA limitations associated with the findings hazardous waste program entirely in the RCRA hazardous waste manifest for presented above is presented in our Cost lieu of EPA administering the federal the import shipment. Assessment 17 document prepared in program in that State. The federal We also include an estimate for support of this proposed action. This requirements no longer applied in the potentially affected entities to read the document is available in the docket. authorized State, and EPA could not regulation, which is, by default, a Interested stakeholders are encouraged issue permits for any facilities in that necessary requirement for to read and comment on the analysis State, since only the State was understanding the regulation. Cost and findings presented in this authorized to issue RCRA permits. impacts associated with reading the document. When new, more stringent federal regulation are assessed for exporters, requirements were promulgated, the importers, and transporters. D. Benefits State was obligated to enact equivalent We have prepared a qualitative authorities within specified time frames. C. Cost Impacts assessment of the benefits anticipated However, the new federal requirements The total incremental cost for the from this action. Overall, this action is did not take effect in an authorized State OECD portion of the proposed rule expected to result in improved until the State adopted the federal during the first year of implementation regulatory efficiency of the affected requirements as State law. (i.e., including reading the rule) is materials, while ensuring improved data In contrast, under RCRA section estimated to be $14,472. This is a net collection and enhanced enforcement 3006(g) (42 U.S.C. 6926(g)), which was impact estimate that includes a total net capabilities. Specific benefits include added by HSWA, new requirements and incremental cost increase to the the following: prohibitions imposed under HSWA regulated community of $13,634, and a • The U.S. would meet its legal authority take effect in authorized States total net cost increase to EPA of $838. obligations to implement the Amended at the same time that they take effect in The total incremental annual net cost 2001 OECD Decision. unauthorized States. EPA is directed by for the OECD portion after the first year • Increased regulatory efficiency by the statute to implement these of implementation (i.e., excluding implementing provisions in the requirements and prohibitions in reading the rules) is estimated to be Amended 2001 OECD Decision that authorized States, including the $9,678. were meant to clarify the scope of issuance of permits, until the State is The total incremental cost for the control and make the control procedures granted authorization to do so. While SLAB portion of the proposed rule more precise. States must still adopt HSWA related during the first year of implementation provisions as State law to retain final (i.e., including reading the rule) is 16 Secretarı´a de Medio Ambiente y Recursos authorization, EPA implements the estimated at $851,000. The first year Naturales (SEMARNAT). HSWA provisions in authorized States 17 Cost Assessment for the Proposed Rule on total incremental cost is expected to be Exports and Imports of Hazardous Waste Destined until the States do so. about $780,000 for the affected U.S. for Recovery Among OECD Countries and Exports Authorized States are required to industry and about $71,000 for EPA. of Spent Lead-Acid Batteries from the U.S. modify their programs only when EPA

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enacts federal requirements that are EPA submitted this action to the Office receipt of waste; U.S. facilities that more stringent or broader in scope than of Management and Budget (OMB) for exchange or accumulate the waste existing federal requirements. RCRA review under EO 12866. Any changes shipments (e.g., R12/R13 facilities) section 3009 allows the States to impose made in response to OMB’s before final recovery at another facility standards more stringent than those in recommendations have been (e.g., R1–R11 facilities) will have to the federal program (see also 40 CFR documented in the docket for this prepare and provide a certificate of 271.1). Therefore, authorized States action. recovery for R12/R13 recovery may, but are not required to, adopt This rule, as proposed, is projected to operations, and provide and maintain a federal regulations, both HSWA and result in a net increase in costs to copy of the certificate of recovery for the non-HSWA, that are considered less certain importers, exporters, and subsequent R1–R11 recovery operations; stringent than previous federal transporters of affected hazardous U.S. recovery facilities that cannot regulations. wastes. Increased costs are also complete the intended recovery and projected for the federal government. must re-export or otherwise return the B. Effect on State Authorization The total net cost of this proposal is hazardous waste shipment will have to Because of the Federal government’s estimated to be $919,000 during the first submit new notification documents and special role in matters of foreign policy, year following rule implementation. comply with the associated Amber EPA cannot authorize States to Exporters are projected to account for control procedures; and U.S. exporters administer Federal import/export approximately 68 percent of this total. will have to keep records of the functions in any section of the RCRA Benefits of this action include the U.S. additional certifications of recovery and hazardous waste regulations. This meeting its legal obligations to any R12/R13 certifications they receive promotes national coordination, implement the Amended 2001 OECD from recovery facilities in other OECD uniformity and the expeditious Decision, increased regulatory countries. transmission of information between the efficiency, reduced risks associated with • Under the proposed SLAB United States and foreign countries. the treatment and disposal of hazardous revisions: SLAB exporters will have to: Although States do not receive wastes, and improved data collection. Comply with the full subpart H authorization to administer the Federal The total net cost estimate for this requirements if going to countries listed government’s functions in subparts E or proposal is significantly below the $100 in § 262.58(a)(1) (e.g., submitting F, in accordance with 271.10, the State million threshold 18 established under notices, originating a movement program must include requirements part 3(f)(1) of the Order. Thus, this document for each shipment, keeping respecting international shipments proposal is not considered to be an records of all confirmations of receipt equivalent to those at subparts E and F. economically significant action. and recovery they receive, submitting States are also not authorized to However, in an effort to comply with exception reports and annual reports, administer the Federal government’s the spirit of the Order, we have and recordkeeping); and comply with functions in subpart H, but in this case, prepared an economic assessment 19 in portions of the subpart E requirements States are not required to adopt those support of this proposed rule. The if going elsewhere (e.g., submitting provisions. However, EPA would RCRA docket established for today’s notices, providing a copy of EPA’s encourage States to incorporate all the rulemaking maintains a copy of this Acknowledgement of Consent for each import and export related requirements document for public review. Interested shipment, submitting annual reports persons are encouraged to read and and recordkeeping). into their regulations for the • convenience of the regulated comment on this document. Under the proposed import documentation revisions: U.S. receiving community and for completeness, B. Paperwork Reduction Act particularly where a State has already facilities will have to submit to EPA incorporated 40 CFR part 262, subparts The information collection copies of documentation confirming E, F and H, the import manifest requirements in this proposed rule have EPA’s consent to the import each time submittal requirements in 264.71(a)(3) been submitted for approval to the they submit to EPA a copy of the RCRA and 265.71(a)(3), or the domestic Office of Management and Budget hazardous waste manifest for each management provisions for SLABs in 40 (OMB) under the Paperwork Reduction hazardous waste import shipment within thirty (30) days of shipment CFR part 266, subpart G. If or when a Act, 44 U.S.C. 3501 et seq. The delivery. State chooses to adopt these import/ Information Collection Request (ICR) document prepared by EPA has been All affected sources will have to export provisions, when final, care retain records of this paperwork for a should be taken not to replace Federal assigned EPA ICR number 2308.01. The proposal requires that the period of three years, which is or international references with State consistent with the RCRA hazardous terms. Moreover, if finalized, the affected sources submit the following: • Under the proposed OECD waste requirements of §§ 262.53, 262.56, provisions of today’s notice would take revisions: U.S. recovery facilities will 262.57, 262.83, 262.87, 264.71 and effect in all States upon the effective have to submit a certificate of recovery 265.71. The collection of the requested date of the final rule. to the foreign exporter, and to the information is mandatory, as it is VI. Statutory and Executive Order competent authority of the country of needed by EPA as a part of its overall Reviews export and EPA, as soon as possible, but compliance and enforcement program no later than thirty (30) days after the for the protection of human health and A. Executive Order 12866: Regulatory completion of recovery and no later the environment. Planning and Review than one (1) calendar year following The estimated annual public reporting Under Executive Order (EO) 12866 burden for the new paperwork (58 FR 51735, October 4, 1993), this 18 This $100 million threshold applies to both requirements in the proposed rule is action is a ‘‘significant regulatory costs, and cost savings. approximately 4.62 hours/year per action.’’ This action may raise novel 19 Cost Assessment for the Proposed Rule on respondent under the proposed OECD Exports and Imports of Hazardous Waste Destined legal or policy issues [3(f)(4)] arising out for Recovery Among OECD Countries and Exports revisions; 20.73 hours/year per of legal mandates, although it is not of Spent Lead-Acid Batteries from the U.S. (Cost respondent under the proposed SLAB economically significant. Accordingly, Assessment). revisions; and 9.15 hours/year per

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respondent under the proposed import CFR 121.201; (2) a small governmental determination. This analysis is consent documentation. The annual jurisdiction that is a government of a incorporated into the Cost Assessment, public recordkeeping burden is city, county, town, school district or which is available in the docket estimated to average 10.20 hours/year special district with a population of less established for this proposal. We per respondent under the proposed than 50,000; and (3) a small continue to be interested in the OECD revisions, and 0.25 hours/year organization that is any not-for-profit potential impacts of the proposed rule per respondent under the proposed enterprise which is independently on small entities and welcome SLAB revisions. The total annual public owned and operated and is not comments on issues related to such burden is estimated to be 15,077 hours dominant in its field. impacts. and $840,500 during the first year of After considering the economic D. Unfunded Mandates Reform Act of implementation, and 9,024 hours and impacts of today’s proposed rule on 1995 $389,600 after the first year. The capital small entities, I certify that this action and start-up plus total operation and will not have a significant economic Title II of the Unfunded Mandates maintenance costs are expected to be impact on a substantial number of small Reform Act of 1995 (UMRA), Public negligible. Burden is defined at 5 CFR entities. In determining whether a rule Law 104–4, establishes requirements for 1320.3(b). has a significant economic impact on a Federal agencies to assess the effects of An agency may not conduct or substantial number of small entities, the their regulatory actions on State, local, sponsor, and a person is not required to impact of concern is any significant and tribal governments and the private respond to, a collection of information adverse economic impact on small sector. Under section 202 of the UMRA, unless it displays a currently valid OMB entities. The primary purpose of the EPA generally must prepare a written control number. The OMB control regulatory flexibility analyses is to statement, including a cost-benefit numbers for EPA’s regulations in 40 identify and address regulatory analysis, for proposed and final rules CFR are listed in 40 CFR part 9. alternatives ‘‘which minimize any with ‘‘Federal mandates’’ that may To comment on the Agency’s need for significant economic impact of the rule result in expenditures to State, local, this information, the accuracy of the on small entities,’’ (5 U.S.C. 603 and and tribal governments, in the aggregate, provided burden estimates, and any 604). Thus, an agency may certify that or to the private sector, of $100 million suggested methods for minimizing a rule will not have a significant or more in any one year. Before respondent burden, EPA has established economic impact on a substantial promulgating an EPA rule for which a a public docket for this rule, which number of small entities if the rule written statement is needed, section 205 includes this ICR, under Docket ID relieves regulatory burden, or otherwise of the UMRA generally requires EPA to number EPA–HQ–RCRA–2005–0018. has a positive economic effect on all of identify and consider a reasonable Submit any comments related to the ICR the small entities subject to the rule. number of regulatory alternatives and to EPA and OMB. See ADDRESSES We have determined that a substantial adopt the least costly, most cost- section at the beginning of this notice number of potentially affected small effective or least burdensome alternative for where to submit comments to EPA. businesses (importers, exporters, and that achieves the objectives of the rule. Send comments to OMB at the Office of transporters) will not experience The provisions of section 205 do not Information and Regulatory Affairs, significant negative economic impacts. apply when they are inconsistent with Office of Management and Budget, 725 For the purpose of our impact analyses, applicable law. Moreover, section 205 17th Street, NW., Washington, DC small business is defined either by the allows EPA to adopt an alternative other 20503, Attention: Desk Office for EPA. number of employees or by the dollar than the least costly, most cost-effective Since OMB is required to make a amount of sales. The level at which a or least burdensome alternative if the decision concerning the ICR between 30 business is considered small is Administrator publishes with the final and 60 days after October 6, 2008, a determined for each North American rule an explanation why that alternative comment to OMB is best assured of Industrial Classification System was not adopted. Before EPA establishes having its full effect if OMB receives it (NAICS) code by the Small Business any regulatory requirements that may by November 5, 2008. The final rule will Administration. No small governmental significantly or uniquely affect small respond to any OMB or public jurisdiction or small not-for-profit governments, including tribal comments on the information collection organizations are expected to be affected governments, it must have developed requirements contained in this proposal. by this action, as proposed. under section 203 of the UMRA a small While a significant number of government agency plan. The plan must C. Regulatory Flexibility Act exporters may be small businesses, the provide for notifying potentially The Regulatory Flexibility Act (RFA) results of our analysis indicate that the affected small governments, enabling generally requires an agency to prepare cost to individual small entities in each officials of affected small governments a regulatory flexibility analysis of any potentially affected sector (as identified to have meaningful and timely input in rule subject to notice and comment by NAICS codes) is likely to be the development of EPA regulatory rulemaking requirements under the insignificant. Our analysis specifically proposals with significant Federal Administrative Procedure Act or any examined the potentially impacted intergovernmental mandates, and other statute unless the agency certifies small companies with fewer than 20 informing, educating, and advising that the rule will not have a significant employees. The average annual gross small governments on compliance with economic impact on a substantial sales of these companies were found to the regulatory requirements. number of small entities. Small entities range from $0.4 million to $4.1 million, This proposal contains no Federal include small businesses, small depending upon NAICS sector. The mandates (under the regulatory organizations, and small governmental annual compliance costs for these provisions of Title II of the UMRA) for jurisdictions. companies, as a percentage of average State, local, or tribal governments, or the For purposes of assessing the impacts annual gross sales, was found to range private sector, in large part because the of today’s rule on small entities, small from 0.01 percent to 0.08 percent. UMRA does not apply to rules that are entity is defined as: (1) A small business The reader is encouraged to review necessary for the national security or the as defined by the Small Business our regulatory flexibility screening ratification or implementation of Administration’s (SBA) regulations at 13 analysis prepared in support of this international treaty obligations (e.g., the

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Amended 2001 OECD Decision). In any regulatory policies that have tribal I. National Technology Transfer event, EPA has determined that this implications.’’ This proposed rule does Advancement Act rule, as proposed, does not contain a not have tribal implications, as specified Federal mandate that may result in in Executive Order 13175. No Tribal Section 12(d) of the National expenditures of $100 million or more governments are known to own or Technology Transfer and Advancement for State, local, and tribal governments, operate businesses that may be affected Act of 1995 (‘‘NTTAA’’), Public Law in the aggregate, or the private sector in by this proposal. Thus, Executive Order 104–113, 12(d) (15 U.S.C. 272 note) any one year. The total cost impacts of 13175 does not apply to this proposed directs EPA to use voluntary consensus this proposed action are estimated to be rule. EPA specifically solicits additional standards in its regulatory activities $919,000 during the first year, and comment on our determination under unless to do so would be inconsistent approximately $468,000 per year this Order and on this proposed rule with applicable law or otherwise thereafter. from tribal officials. impractical. Voluntary consensus Finally, EPA has determined that this standards are technical standards (e.g., rule contains no regulatory G. Executive Order 13045: Protection of materials specifications, test methods, requirements that might significantly or Children From Environmental Health sampling procedures, and business uniquely affect small governments. Risks and Safety Risks practices) that are developed or adopted Small governments are not affected by by voluntary consensus standards Executive Order 13045, entitled this action, as proposed. bodies. The NTTAA directs EPA to ‘‘Protection of Children from provide Congress, through OMB, E. Executive Order 13132: Federalism Environmental Health Risks and Safety explanations when the Agency decides Executive Order 13132, entitled Risks’’ (62 FR 19885, April 23, 1997), not to use available and applicable ‘‘Federalism’’ (64 FR 43255, August 10, applies to any rule that: (1) Is voluntary consensus standards. 1999), requires EPA to develop an determined to be ‘‘economically significant’’ as defined under Executive This proposed rulemaking does not accountable process to ensure involve technical standards. Therefore, ‘‘meaningful and timely input by State Order 12866, and (2) concerns an environmental health or safety risk that EPA is not considering the use of any and local officials in the development of voluntary consensus standards. regulatory policies that have federalism EPA has reason to believe may have a implications.’’ ‘‘Policies that have disproportionate effect on children. If J. Executive Order 12898: Federal federalism implications’’ is defined in the regulatory action meets both criteria, Actions To Address Environmental the Executive Order to include the Agency must evaluate the Justice in Minority Populations and regulations that have ‘‘substantial direct environmental health or safety effects of Low-Income Populations effects on the States, on the relationship the planned rule on children, and between the national government and explain why the planned regulation is Executive Order (EO) 12898 (59 FR the States, or on the distribution of preferable to other potentially effective 7629 (Feb. 16, 1994)) establishes federal power and responsibilities among the and reasonably feasible alternatives executive policy on environmental various levels of government.’’ considered by the Agency. justice. Its main provision directs This proposed rule does not have This proposed rule is not subject to federal agencies, to the greatest extent federalism implications. It will not have the Executive Order because it is not practicable and permitted by law, to substantial direct effects on the States, economically significant as defined in make environmental justice part of their on the relationship between the national Executive Order 12866, and because the mission by identifying and addressing, government and the States, or on the Agency does not have reason to believe as appropriate, disproportionately high distribution of power and the environmental health or safety risks and adverse human health or responsibilities among the various addressed by this action present a environmental effects of their programs, levels of government, as specified in disproportionate risk to children policies, and activities on minority Executive Order 13132. This proposed residing in the United States. populations and low-income rule does not have Federalism populations in the United States. implications because the State and local H. Executive Order 13211: Actions EPA has determined that this governments do not administer the Concerning Regulations That proposed rule will not have export and import requirements under Significantly Affect Energy Supply, disproportionately high and/or adverse RCRA. Thus, Executive Order 13132 Distribution, or Use human health or environmental effects does not apply to this rule. This proposed rule is not a on minority or low-income populations In the spirit of Executive Order 13132, ‘‘significant energy action’’ as defined in because it does not directly affect the and consistent with EPA policy to Executive Order 13211, ‘‘Actions level of protection provided to human promote communications between EPA Concerning Regulations That health or the environment. This and State and local governments, EPA Significantly Affect Energy Supply, proposal is designed to improve specifically solicits comment on this Distribution, or Use’’ (66 FR 28355 (May regulatory efficiency and improve proposed rule from State and local 22, 2001)) because it is not likely to information collection, in part by officials. have a significant adverse effect on the implementing technical corrections and F. Executive Order 13175: Consultation supply, distribution, or use of energy. clarifications to the existing regulations. and Coordination With Indian Tribal This rule, as proposed, will not List of Subjects Governments seriously disrupt energy supply, 40 CFR Part 262 Executive Order 13175, entitled distribution patterns, prices, imports or ‘‘Consultation and Coordination with exports. In fact, this proposed rule is Environmental protection, Exports, Indian Tribal Governments’’ (65 FR designed to improve regulatory Hazardous materials transportation, 67249, November 9, 2000), requires EPA efficiency and improve information Hazardous waste, Imports, International to develop an accountable process to collection, in part by implementing organizations, Labeling, Packaging and ensure ‘‘meaningful and timely input by technical corrections and clarifications containers, Recycling, Reporting and tribal officials in the development of to the existing regulations. recordkeeping requirements.

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40 CFR Part 264 standards of 40 CFR part 266, subpart G Subpart H—Transboundary Environmental protection, Hazardous or subject to State requirements Movements of Hazardous Waste for waste, Imports, Packaging and analogous to 40 CFR part 266, subpart Recovery Within the OECD G, to or from designated Member containers, Reporting and recordkeeping § 262.80 Applicability. requirements. countries of the Organization for Economic Cooperation and (a) The requirements of this subpart 40 CFR Part 265 Development (OECD) as defined in apply to imports and exports of wastes Environmental protection, Hazardous paragraph (a)(1) of this section for that are considered hazardous under waste, Imports, Packaging and purposes of recovery is subject to U.S. national procedures and are containers, Reporting and recordkeeping subpart H of this part. The requirements destined for recovery operations in the requirements. of subparts E and F of this part do not countries listed in § 262.58(a)(1). A apply to such exports and imports. waste is considered hazardous under 40 CFR Part 266 (1) For the purposes of subpart H, the U.S. national procedures if it meets the Environmental protection, Exports, designated OECD Member countries Federal definition of hazardous waste in Spent Lead-Acid Batteries, Recycling, consist of Australia, Austria, Belgium, 40 CFR 261.3 and it is subject to either Waste treatment and disposal. the Czech Republic, Denmark, Finland, the Federal manifesting requirements at 40 CFR part 262, subpart B, to the 40 CFR Part 271 France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, universal waste management standards Environmental protection, Luxembourg, the Netherlands, New of 40 CFR part 273 or to State Administrative practice and procedure, Zealand, Norway, Poland, Portugal, the requirements analogous to 40 CFR part Hazardous materials transportation, Slovak Republic, South Korea, Spain, 273, or for exports only, if the waste is Hazardous waste, Intergovernmental Sweden, Switzerland, Turkey, the subject to 40 CFR part 266, subpart G or relations, Penalties, Reporting and United Kingdom, and the United States. to State requirements analogous to 40 recordkeeping requirements. CFR part 266, subpart G. (2) For the purposes of subpart H of Dated: September 19, 2008. (b) Any person (exporter, importer, or this part, Canada and Mexico are recovery facility operator) who mixes Stephen L. Johnson, considered OECD Member countries Administrator. two or more wastes (including only for the purpose of transit. hazardous and non-hazardous wastes) For the reasons stated in the (b) Any person who exports or otherwise subjects two or more preamble, title 40, chapter 1 of the Code hazardous waste to or imports wastes (including hazardous and non- of Federal Regulations is proposed to be hazardous waste from: A designated hazardous wastes) to physical or amended as follows. OECD Member country for purposes chemical transformation operations, and other than recovery (e.g., incineration, PART 262—STANDARDS APPLICABLE thereby creates a new hazardous waste, disposal), Mexico (for any purpose), or TO GENERATORS OF HAZARDOUS becomes a generator and assumes all Canada (for any purpose) remains WASTE subsequent generator duties under subject to the requirements of subparts RCRA and any exporter duties, if 1. The authority citation for part 262 E and F of this part, and is not subject applicable, under this subpart. continues to read as follows: to the requirements of subpart H of this § 262.81 Definitions. Authority: 42 U.S.C. 6906, 6912, 6922– part. 6925, 6937, and 6938. 4. Section 262.60(e) is revised to read The following definitions apply to this subpart. 2. 262.55 is amended by revising the as follows: * * * * * (a) Competent authority means the introductory text to read as follows: regulatory authority or authorities of § 262.55 Exception reports. (e) The importer must provide the concerned countries having jurisdiction transporter with an additional copy of In lieu of the requirements of over transboundary movements of the manifest and documentation wastes destined for recovery operations. § 262.42, a primary exporter must file an confirming EPA’s consent to the import exception report with the Office of (b) Countries concerned means the of hazardous waste to be submitted by OECD Member countries of export or Enforcement and Compliance the receiving facility to U.S. EPA in Assurance, Office of Federal Activities, import and any OECD Member accordance with § 264.71(a)(3) and countries of transit. International Compliance Assurance § 265.71(a)(3) of this chapter. Division (2254A), Environmental (c) Country of export means any Protection Agency, 1200 Pennsylvania 5. Subpart H is revised to read as designated OECD Member country Avenue, NW., Washington, DC 20460, if follows: listed in § 262.58(a)(1) from which a any of the following occurs: Subpart H—Transboundary Movements of transboundary movement of hazardous * * * * * Hazardous Waste for Recovery Within the wastes is planned to be initiated or is 3. Section 262.58 is revised to read as OECD initiated. follows: Sec. (d) Country of import means any 262.80 Applicability. designated OECD Member country § 262.58 International agreements. 262.81 Definitions. listed in § 262.58(a)(1) to which a (a) Any person who exports or 262.82 General conditions. transboundary movement of hazardous imports hazardous waste subject to the 262.83 Notification and consent. wastes is planned or takes place for the Federal manifest requirements of part 262.84 Movement document. purpose of submitting the wastes to 262, or subject to the universal waste 262.85 Contracts. recovery operations therein. 262.86 Provisions relating to recognized management standards of 40 CFR part traders. (e) Country of transit means any 273, or subject to State requirements 262.87 Reporting and recordkeeping. designated OECD Member country analogous to 40 CFR part 273, or exports 262.88 Pre-approval for U.S. recovery listed in § 262.58(a)(1) and (a)(2) other spent lead-acid batteries subject to the facilities [Reserved]. than the country of export or country of spent lead-acid battery management 262.89 OECD waste lists. import across which a transboundary

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movement of hazardous wastes is R7 Recovery of components used for Amber control procedures shift as planned or takes place. pollution abatement provided: (f) Exporter means the person under R8 Recovery of components used from (A) For U.S. exports, the United States the jurisdiction of the country of export catalysts shall issue an acknowledgement of who has, or will have at the time the R9 Used oil re-refining or other reuses receipt and assume other planned transboundary movement of previously used oil responsibilities of the competent commences, possession or other forms R10 Land treatment resulting in authority of the country of import. of legal control of the wastes and who benefit to agriculture or ecological (B) For U.S. imports, the U.S. recovery proposes transboundary movement of improvement facility/importer and the United States the hazardous wastes for the ultimate R11 Uses of residual materials shall assume the obligations associated purpose of submitting them to recovery obtained from any of the operations with the Amber control procedures that operations. When the United States numbered R1–R10 normally apply to the exporter and (U.S.) is the country of export, exporter R12 Exchange of wastes for country of export, respectively. is interpreted to mean a person submission to any of the operations (iii) Amber wastes that are not domiciled in the United States. numbered R1–R11 considered hazardous under U.S. (g) Importer means the person to R13 Accumulation of material national procedures as defined in whom possession or other form of legal intended for any operation § 262.80(a), but are considered control of the waste is assigned at the numbered R1–R12 hazardous by an OECD Member country time the waste is received in the country (n) Transboundary movement means are subject to the Amber control of import. any movement of wastes from an area procedures in the OECD Member (h) OECD area means all land or under the national jurisdiction of one country that considers the waste marine areas under the national OECD Member country to an area under hazardous. All responsibilities of the jurisdiction of any OECD Member the national jurisdiction of another U.S. importer/exporter shift to the country listed in § 262.58. When the OECD Member country. importer/exporter of the OECD Member regulations refer to shipments to or from § 262.82 General conditions. country that considers the waste an OECD Member country, this means hazardous unless the parties make other (a) Scope. The level of control for OECD area. arrangements through contracts. exports and imports of waste is (i) OECD means the Organization for indicated by assignment of the waste to Note to paragraph (a)(2): Some wastes Economic Cooperation and either a list of wastes subject to the subject to the Amber control procedures are Development. Green control procedures or a list of not listed or otherwise identified as (j) OECD Decision means the OECD hazardous under RCRA, and therefore are not wastes subject to the Amber control ‘‘Decision of the Council C(2001)107/ subject to the Amber control procedures of procedures and by the national FINAL, Concerning the Control of this subpart. Regardless of the status of the procedures of the United States, as Transboundary Movements of Wastes waste under RCRA, however, other Federal defined in § 262.80(a). The two lists Destined for Recovery Operations, as environmental statutes (e.g., the Toxic correspond to Appendices 3 and 4, Substances Control Act) restrict certain waste Amended by C(2004)20.’’ respectively, of the OECD Decision and imports or exports. Such restrictions (k) Recognized trader means a person have been incorporated by reference in continue to apply with regard to this subpart. who, with appropriate authorization of § 262.89(d). countries concerned, acts in the role of (3) Procedures for mixtures of wastes. (1) Listed wastes subject to the Green principal to purchase and subsequently (i) A Green waste that is mixed with control procedures. one or more other Green wastes such sell wastes; this person has legal control (i) Green wastes that are not of such wastes from time of purchase to that the resulting mixture is not considered hazardous under U.S. considered hazardous under U.S. time of sale; such a person may act to national procedures as defined in arrange and facilitate transboundary national procedures as defined in § 262.80(a) are subject to existing § 262.80(a) shall be subject to the Green movements of wastes destined for controls normally applied to recovery operations. control procedures, provided the commercial transactions. composition of this mixture does not (l) Recovery facility means a facility (ii) Green wastes that are considered which, under applicable domestic law, impair its environmentally sound hazardous under U.S. national recovery. is operating or is authorized to operate procedures as defined in § 262.80(a) are in the country of import to receive subject to the Amber control procedures Note to paragraph (a)(3)(i): The regulated wastes and to perform recovery set forth in this subpart. community should note that some OECD Member countries may require, by domestic operations on them. (2) Listed wastes subject to the Amber (m) Recovery operations means law, that mixtures of different Green wastes control procedures. be subject to the Amber control procedures. activities leading to resource recovery, (i) Amber wastes that are considered recycling, reclamation, direct re-use or hazardous under U.S. national (ii) A Green waste that is mixed with alternative uses, which include: procedures as defined in § 262.80(a) are one or more Amber wastes, in any R1 Use as a fuel (other than in direct subject to the Amber control procedures amount, de minimis or otherwise, or a incineration) or other means to set forth in this subpart. mixture of two or more Amber wastes, generate energy (ii) Amber wastes that are considered such that the resulting waste mixture is R2 Solvent reclamation/regeneration hazardous under U.S. national considered hazardous under U.S. R3 Recycling/reclamation of organic procedures as defined in § 262.80(a), are national procedures as defined in substances which are not used as subject to the Amber control procedures § 262.80(a) are subject to the Amber solvents in the United States, even if they are control procedures, provided the R4 Recycling/reclamation of metals imported to or exported from a composition of this mixture does not and metal compounds designated OECD Member country impair its environmentally sound R5 Recycling/reclamation of other listed in § 262.58(a)(1) that does not recovery. inorganic materials consider the waste to be hazardous. In Note to paragraph (a)(3)(ii): The regulated R6 Regeneration of acids or bases such an event, the responsibilities of the community should note that some OECD

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Member countries may require, by domestic (ii) The transboundary movement may period of time as the concerned Member law, that a mixture of a Green waste and commence if no objection has been countries agree. The U.S. exporter must more than a de minimis amount of an Amber lodged after the thirty (30) day period submit an exception report to EPA in waste or a mixture of two or more Amber has passed or immediately after written accordance with § 262.87(b). wastes be subject to the Amber control consent is received from all relevant procedures. (e) Duty to return wastes subject to the OECD importing and transit countries. Amber control procedures from a (4) Wastes not yet assigned to an (2) In the case of re-export of Amber country of transit. When a OECD waste list are eligible for wastes to a country other than those transboundary movement of wastes transboundary movements, as follows: listed in § 262.58(a)(1), notification to subject to the Amber control procedures (i) If such wastes are considered and consent of the competent does not comply with the requirements hazardous under U.S. national authorities of the original OECD of the notification and movement procedures as defined in § 262.80(a), Member country of export and any documents or otherwise constitutes such wastes are subject to the Amber OECD Member countries of transit is illegal shipment, and if alternative control procedures. required as specified in paragraph (c)(1) arrangements cannot be made to recover (ii) If such wastes are not considered of this section, in addition to these wastes in an environmentally hazardous under U.S. national compliance with all international sound manner, the waste must be procedures as defined in § 262.80(a), agreements and arrangements to which returned to the country of export. The such wastes are subject to the Green the first importing OECD Member following provisions apply as control procedures. country is a party and all applicable appropriate: (b) General conditions applicable to regulatory requirements for exports from (1) Return from the United States (as transboundary movements of hazardous the first country of import. country of transit) to the country of waste: (1) The waste must be destined (d) Duty to return or re-export wastes export: The U.S. transporter must for recovery operations at a facility that, subject to the Amber control procedures. inform EPA at the specified address in under applicable domestic law, is When a transboundary movement of § 262.83(b)(1)(i) of the need to return the wastes subject to the Amber control operating or is authorized to operate in shipment. EPA will then inform the procedures cannot be completed in the importing country; competent authority of the country of accordance with the terms of the (2) The transboundary movement export, citing the reason(s) for returning contract or the consent(s) and must be in compliance with applicable the waste. The U.S. transporter must alternative arrangements cannot be international transport agreements; and complete the return within ninety (90) made to recover the waste in an days from the time EPA informs the Note to paragraph (b)(2): These environmentally sound manner in the country of export of the need to return international agreements include, but are not country of import, the waste must be limited to, the Chicago Convention (1944), the waste, unless informed in writing by returned to the country of export or re- ADR (1957), ADNR (1970), MARPOL EPA of another timeframe agreed to by Convention (1973/1978), SOLAS Convention exported to a third country. The provisions of paragraph (c) of this the concerned Member countries. (1974), IMDG Code (1985), COTIF (1985), and (2) Return from the country of transit RID (1985). section apply to any shipments to be re- exported to a third country. The to the United States (as country of (3) Any transit of waste through a following provisions apply to shipments export): The U.S. exporter must provide non-OECD Member country must be to be returned to the country of export for the return of the hazardous waste conducted in compliance with all as appropriate: shipment within ninety (90) days from applicable international and national (1) Return from the United States to the time the competent authority of the laws and regulations. the country of export: The U.S. importer country of transit informs EPA of the (c) Provisions relating to re-export for must inform EPA at the specified need to return the waste or such other recovery to a third country: (1) Re- address in § 262.83(b)(1)(i) of the need period of time as the concerned Member export of wastes subject to the Amber to return the shipment. EPA will then countries agree. The U.S. exporter must control procedures from the United inform the competent authorities of the submit an exception report to EPA in States, as the country of import, to a countries of export and transit, citing accordance with § 262.87(b). third country listed in § 262.58(a)(1) the reason(s) for returning the waste. (f) Requirements for wastes destined may occur only after an exporter in the The U.S. importer must complete the for and received by R12 and R13 United States provides notification to return within ninety (90) days from the facilities. The transboundary movement and obtains consent from the competent time EPA informs the country of export of wastes destined for R12 and R13 authorities in the third country, the of the need to return the waste, unless operations must comply with all Amber original country of export, and new informed in writing by EPA of another control procedures for notification and transit countries. The notification must timeframe agreed to by the concerned consent as set forth in § 262.83 and for comply with the notice and consent Member countries. If the return the movement document as set forth in procedures in § 262.83 for all countries shipment will cross any new transit § 262.84. Additional responsibilities of concerned and the original country of country, the return shipment may only R12/R13 facilities include: export. The competent authorities of the occur after EPA provides notification to (1) Indicating in the notification original country of export, as well as the and obtains consent from the competent document the foreseen recovery facility competent authorities of all other authority of the new country of transit, or facilities where the subsequent R1– countries concerned have thirty (30) and provides a copy of that consent to R11 recovery operation takes place or days to object to the proposed the U.S. importer. may take place. movement. (2) Return from the country of import (2) Within three (3) days of the receipt (i) The thirty (30) day period begins to the United States: The U.S. exporter of the wastes by the R12/R13 recovery once the competent authorities of both must provide for the return of the facility or facilities, the facility(ies) shall the initial country of export and new hazardous waste shipment within return a signed copy of the movement country of import issue ninety (90) days from the time the document to the exporter and to the Acknowledgements of Receipt of the country of import informs EPA of the competent authorities of the countries of notification. need to return the waste or such other export and import. The facility(ies) shall

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retain the original of the movement § 262.83 Notification and consent. renewal of all consents is required for document for three (3) years. (a) Applicability. Consent must be exports after that date. (3) As soon as possible, but no later obtained from the competent authorities (iii) Written consent. If the competent than thirty (30) days after the of the relevant OECD countries of authorities of all the relevant OECD importing and transit countries provide completion of the R12/R13 recovery import and transit prior to exporting written consent in a period less than operation and no later than one (1) hazardous waste destined for recovery thirty (30) days, the transboundary calendar year following the receipt of operations subject to this subpart. movement may commence immediately the waste, the R12 or R13 facility(ies) Hazardous wastes subject to the Amber control procedures are subject to the after all necessary consents are received. shall send a certificate of recovery to the Written consent expires for each foreign exporter and to the competent requirements of paragraph (b) of this section; and wastes not identified on relevant OECD importing and transit authority of the country of export and to country one (1) calendar year after the the Office of Enforcement and any list are subject to the requirements of paragraph (c) of this section. date of that country’s consent unless Compliance Assurance, Office of otherwise specified; renotification and Federal Activities, International (b) Amber wastes. Exports of hazardous wastes from the United States renewal of each expired consent is Compliance Assurance Division required for exports after that date. (2254A), Environmental Protection as described in § 262.80(a) that are subject to the Amber control procedures (2) Transboundary movements to Agency, 1200 Pennsylvania Avenue, facilities pre-approved by the competent are prohibited unless the notification NW., Washington, DC 20460, by mail, authorities of the importing countries to and consent requirements of paragraph e-mail without digital signature accept specific wastes for recovery: followed by mail, or fax followed by (b)(1) or paragraph (b)(2) of this section (i) Notification. The exporter must mail. are met. provide EPA a notification that contains (1) Transactions requiring specific all the information identified in (4) When an R12/R13 recovery facility consent: delivers wastes for recovery to an R1– paragraph (d) of this section in English, (i) Notification. At least forty-five (45) at least ten (10) days in advance of R11 recovery facility located in the days prior to commencement of each country of import, it shall obtain as soon commencing shipment to a pre- transboundary movement, the exporter approved facility. The notification must as possible, but no later than one (1) must provide written notification in calendar year following delivery of the indicate that the recovery facility is pre- English of the proposed transboundary approved, and may apply to a single waste, a certification from the R1–R11 movement to the Office of Enforcement facility that recovery of the wastes at specific shipment or to multiple and Compliance Assurance, Office of shipments as described in paragraph that facility has been completed. The Federal Activities, International R12/R13 facility must promptly transmit (b)(1)(i) of this section. This information Compliance Assurance Division must be sent to the Office of the applicable certification to the (2254A), Environmental Protection Enforcement and Compliance competent authorities of the countries of Agency, 1200 Pennsylvania Avenue, Assurance, Office of Federal Activities, import and export, identifying the NW., Washington, DC 20460, with the International Compliance Assurance transboundary movements to which the words ‘‘Attention: OECD Export Division (2254A), Environmental certification pertain. Notification’’ prominently displayed on Protection Agency, 1200 Pennsylvania (5) When an R12/R13 recovery facility the envelope. This notification must Avenue, NW., Washington, DC 20460, delivers wastes for recovery to an R1– include all of the information identified with the words ‘‘OECD Export R11 recovery facility located: in paragraph (d) of this section. In cases Notification—Pre-approved Facility’’ (i) in the initial country of export, where wastes having similar physical prominently displayed on the envelope. Amber control procedures apply, and chemical characteristics, the same General notifications that cover multiple including a new notification; United Nations classification, the same shipments as described in paragraph RCRA waste codes, and are to be sent (b)(1)(i) of this section may cover a (ii) in a third country other than the periodically to the same recovery period of up to three (3) years. Even initial country of export, Amber control facility by the same exporter, the when a general notification is used for procedures apply, with the additional exporter may submit one general multiple shipments, each shipment still provision that the competent authority notification of intent to export these must be accompanied by its own of the initial country of export shall also wastes in multiple shipments during a movement document pursuant to be notified of the transboundary period of up to one (1) year. Even when § 262.84. movement. a general notification is used for (ii) Exports to pre-approved facilities (g) Laboratory analysis exemption. multiple shipments, each shipment still may take place after the elapse of seven The transboundary movement of an must be accompanied by its own (7) working days from the issuance of an Amber waste is exempt from the Amber movement document pursuant to Acknowledgement of Receipt of the control procedures if it is in certain § 262.84. notification by the competent authority quantities and destined for laboratory (ii) Tacit consent. If no objection has of the country of import unless the analysis to assess its physical or been lodged by any concerned country exporter has received information chemical characteristics, or to determine (i.e., exporting, importing, or transit) to indicating that the competent authority its suitability for recovery operations. a notification provided pursuant to of any concerned country objects to the The quantity of such waste shall be paragraph (b)(1)(i) of this section within shipment. determined by the minimum quantity thirty (30) days after the date of issuance (c) Wastes not covered in Appendices reasonably needed to perform the of the Acknowledgement of Receipt of 3 and 4 of the OECD Decision. Wastes analysis in each particular case notification by the competent authority destined for recovery operations, that adequately, but in no case exceed of the country of import, the have not been assigned to Appendices 3 twenty-five kilograms (25 kg). Waste transboundary movement may or 4 of the OECD Decision, but which destined for laboratory analysis must commence. Tacit consent expires one are considered hazardous under U.S. still be appropriately packaged and (1) calendar year after the close of the national procedures as defined in labeled. thirty (30) day period; renotification and § 262.80(a), are subject to the

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notification and consent requirements knowledge. I also certify that legally- (1) Date movement commenced; established for the Amber control enforceable written contractual (2) Name (if not exporter), address, procedures in accordance with obligations have been entered into, and telephone and fax numbers, and e-mail paragraph (b) of this section. Wastes that any applicable insurance or other of primary exporter; destined for recovery operations, that financial guarantees are or shall be in (3) Company name and EPA ID have not been assigned to Appendices 3 force covering the transboundary number of all transporters; or 4 of the OECD Decision, and are not movement. (4) Identification (license, registered considered hazardous under U.S. Name: lllllllllllllll name or registration number) of means national procedures as defined by Signature: lllllllllllll of transport, including types of § 262.80(a) are subject to the Green packaging envisaged; Date: llllllllllllllll control procedures. (5) Any special precautions to be (d) Notifications submitted under this Note to Paragraph (d)(14): The United taken by transporter(s); section must include the information States does not currently require financial (6) Certification/declaration signed by specified in paragraphs (d)(1) through assurance for these waste shipments. the exporter that no objection to the (d)(14) of this section: However, U.S. exporters may be asked by shipment has been lodged as follows: (1) Serial number or other accepted other governments to provide and certify to I certify that the above information is identifier of the notification document; such assurance as a condition of obtaining consent to a proposed movement. complete and correct to the best of my (2) Exporter name and EPA knowledge. I also certify that legally- identification number (if applicable), (e) Certificate of Recovery. As soon as enforceable written contractual address, telephone and fax numbers, possible, but no later than thirty (30) obligations have been entered into, that and e-mail address; days after the completion of recovery any applicable insurance or other (3) Importing recovery facility name, and no later than one (1) calendar year financial guarantees are or shall be in address, telephone and fax numbers, e- following receipt of the waste, the U.S. force covering the transboundary mail address, and technologies recovery facility shall send a certificate movement, and that: employed; of recovery to the exporter and to the 1. All necessary consents have been (4) Importer name (if not the owner or competent authorities of the countries of received; OR operator of the recovery facility), export and import by mail, e-mail 2. The shipment is directed to a address, telephone and fax numbers, without a digital signature followed by recovery facility within the OECD area and e-mail address; whether the mail, or fax followed by mail. and no objection has been received from importer will engage in waste exchange § 262.84 Movement document. any of the countries concerned within or storage, meeting the definition of R12 the thirty (30) day tacit consent period; or R13 recovery operations in (a) All U.S. parties subject to the contract provisions of § 262.85 must OR § 262.81(m), prior to delivering the 3. The shipment is directed to a waste to the final recovery facility and ensure that a movement document meeting the conditions of paragraph (b) recovery facility pre-authorized for that identification of recovery operations to type of waste within the OECD area; be employed at the final recovery of this section accompanies each transboundary movement of wastes such an authorization has not been facility; revoked, and no objection has been (5) Intended transporter(s) and/or subject to the Amber control procedures from the initiation of the shipment until received from any of the countries their agent(s); address, telephone, fax, concerned. and e-mail address; it reaches the final recovery facility, (6) Country of export and relevant including cases in which the waste is (Delete sentences that are not competent authority, and point of stored and/or sorted by the importer applicable) departure; prior to shipment to the final recovery Name: lllllllllllllll (7) Countries of transit and relevant facility, except as provided in Signature: lllllllllllll paragraphs (a)(1) and (2) of this section. competent authorities and points of Date: llllllllllllllll entry and departure; (1) For shipments of hazardous waste (8) Country of import and relevant within the United States solely by water (7) Appropriate signatures for each competent authority, and point of entry; (bulk shipments only), the generator custody transfer (e.g., transporter, (9) Statement of whether the must forward the movement document importer, and owner or operator of the notification is a single notification or a with the manifest to the last water (bulk recovery facility). general notification. If general, include shipment) transporter to handle the (c) Exporters also must comply with period of validity requested; waste in the United States if exported by the special manifest requirements of 40 (10) Date(s) foreseen for water (in accordance with the manifest CFR 262.54(a), (b), (c), (e), and (i) and commencement of transboundary routing procedures at § 262.23(c)). importers must comply with the import movement(s); (2) For rail shipments of hazardous requirements of 40 CFR part 262, (11) Means of transport envisaged; waste within the United States which subpart F. (12) Designation of waste type(s) from originate at the site of generation, the (d) Each U.S. person that has physical the appropriate list (Part I or II of generator must forward the movement custody of the waste from the time the Appendix 3 or 4) of the OECD Decision, document with the manifest (in movement commences until it arrives at description(s) of each waste type, accordance with the routing procedures the recovery facility must sign the estimated total quantity of each, RCRA for the manifest in § 262.23(d)) to the movement document (e.g., transporter, waste code, and the United Nations next non-rail transporter, if any, or the importer, and owner or operator of the number for each waste type; last rail transporter to handle the waste recovery facility). (13) Specification of the recovery in the United States if exported by rail. (e) Within three (3) working days of operation(s) according to § 262.81(m). (b) The movement document must the receipt of imports subject to this (14) Certification/Declaration signed include all information required under subpart, the owner or operator of the by the exporter that states: § 262.83 (for notification), as well as the U.S. recovery facility must send signed I certify that the above information is following paragraphs (b)(1) through copies of the movement document to complete and correct to the best of my (b)(7) of this section: the exporter, to the Office of

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Enforcement and Compliance arranging the return of wastes and, as and must be so authorized in Assurance, Office of Federal Activities, the case may be, shall provide the accordance with all applicable Federal International Compliance Assurance notification for re-export. laws. Division (2254A), Environmental (d) Contracts must specify that the (b) A recognized trader acting as an Protection Agency, 1200 Pennsylvania importer will provide the notification exporter or importer for transboundary Avenue, NW., Washington, DC 20460, required in § 262.82(c) prior to the re- shipments of waste must comply with and to the competent authorities of the export of controlled wastes to a third all the requirements of this subpart countries of export and transit. If the country. associated with being an exporter or concerned U.S. recovery facility is a (e) Contracts or equivalent importer. R12/R13 recovery facility under arrangements must include provisions § 262.87 Reporting and recordkeeping. § 262.81(m), the facility shall retain the for financial guarantees, if required by original of the movement document for the competent authorities of any (a) Annual reports. For all waste three (3) years. concerned country, in accordance with movements subject to this subpart, applicable national or international law persons (e.g., exporters, recognized § 262.85 Contracts. requirements. traders) who meet the definition of (a) Transboundary movements of primary exporter in § 262.51 or who Note to Paragraph (e): Financial guarantees initiate the movement documentation hazardous wastes subject to the Amber so required are intended to provide for control procedures are prohibited unless alternate recycling, disposal or other means under § 262.84 shall file an annual they occur under the terms of a valid of sound management of the wastes in cases report with the Office of Enforcement written contract, chain of contracts, or where arrangements for the shipment and the and Compliance Assurance, Office of equivalent arrangements (when the recovery operations cannot be carried out as Federal Activities, International movement occurs between parties foreseen. The United States does not require Compliance Assurance Division controlled by the same corporate or such financial guarantees at this time; (2254A), Environmental Protection legal entity). Such contracts or however, some OECD Member countries do. Agency, 1200 Pennsylvania Avenue, equivalent arrangements must be It is the responsibility of the exporter to NW., Washington, DC 20460, no later ascertain and comply with such than March 1 of each year summarizing executed by the exporter and the owner requirements; in some cases, transporters or or operator of the recovery facility, and importers may refuse to enter into the the types, quantities, frequency, and must specify responsibilities for each. necessary contracts absent specific references ultimate destination of all such Contracts or equivalent arrangements or certifications to financial guarantees. hazardous waste exported during the previous calendar year. (If the primary are valid for the purposes of this section (f) Contracts or equivalent exporter or the person who initiates the only if persons assuming obligations arrangements must contain provisions movement documentation under under the contracts or equivalent requiring each contracting party to § 262.84 is required to file an annual arrangements have appropriate legal comply with all applicable requirements report for waste exports that are not status to conduct the operations of this subpart. covered under this subpart, he may specified in the contract or equivalent (g) Upon request by EPA, U.S. include all export information in one arrangements. exporters, importers, or recovery report provided the following (b) Contracts or equivalent facilities must submit to EPA copies of information on exports of waste arrangements must specify the name contracts, chain of contracts, or destined for recovery within the and EPA ID number, where available, of equivalent arrangements (when the designated OECD Member countries is paragraph (b)(1) through (b)(4) of this movement occurs between parties contained in a separate section.) Such section: controlled by the same corporate or (1) The generator of each type of reports shall include all of the following legal entity). Information contained in waste; paragraphs (a)(1) through (a)(6) of this the contracts or equivalent arrangements (2) Each person who will have section specified as follows: for which a claim of confidentiality is physical custody of the wastes; (1) The EPA identification number, asserted in accordance with 40 CFR (3) Each person who will have legal name, and mailing and site address of 2.203(b) will be treated as confidential control of the wastes; and the exporter filing the report; (4) The recovery facility. and will be disclosed by EPA only as (2) The calendar year covered by the (c) Contracts or equivalent provided in 40 CFR 260.2. report; arrangements must specify which party Note to Paragraph (g): Although the United (3) The name and site address of each to the contract will assume States does not require routine submission of final recovery facility; responsibility for alternate management contracts at this time, the OECD Decision (4) By final recovery facility, for each of the wastes if their disposition cannot allows Member countries to impose such hazardous waste exported, a description be carried out as described in the requirements. When other OECD Member of the hazardous waste, the EPA notification of intent to export. In such countries require submission of partial or hazardous waste number (from 40 CFR complete copies of the contract as a cases, contracts must specify that: condition to granting consent to proposed part 261, subpart C or D), designation of (1) The person having actual movements, EPA will request the required waste type(s) and applicable waste possession or physical control over the information; absent submission of such code(s) from the appropriate OECD wastes will immediately inform the information, some OECD Member countries waste list (Appendices 3 or 4 of the exporter and the competent authorities may deny consent for the proposed OECD Decision), DOT hazard class, the of countries of export and import and, movement. name and U.S. EPA identification if the wastes are located in a country of number (where applicable) for each transit, the competent authorities of that § 262.86 Provisions relating to recognized transporter used, the total amount of country; and traders. hazardous waste shipped pursuant to (2) The person specified in the (a) A recognized trader who takes this subpart, and number of shipments contract will assume responsibility for physical custody of a waste and pursuant to each notification; the adequate management of the wastes conducts recovery operations (including (5) In even numbered years, for each in compliance with applicable laws and storage prior to recovery) is acting as the hazardous waste exported, except for regulations including, if necessary, owner or operator of a recovery facility hazardous waste produced by exporters

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of greater than 100kg but less than (i) A copy of each notification of and Appendix 4, respectively, of the 1000kg in a calendar month, and except intent to export and all written consents OECD Decision. These lists are for hazardous waste for which obtained from the competent authorities incorporated by reference. These information was already provided of countries concerned for a period of at incorporations by reference were pursuant to § 262.41: least three (3) years from the date the approved by the Director of the Federal (i) A description of the efforts hazardous waste was accepted by the Register in accordance with 5 U.S.C. undertaken during the year to reduce initial transporter; 552(a) and 1 CFR part 51 on [date of the volume and toxicity of the waste (ii) A copy of each annual report for approval for incorporation by reference]. generated; and a period of at least three (3) years from These materials are incorporated as they (ii) A description of the changes in the due date of the report; exist on the date of the approval and a volume and toxicity of the waste (iii) A copy of any exception reports notice of any change in these materials actually achieved during the year in and a copy of each confirmation of will be published in the Federal comparison to previous years to the delivery (i.e., movement Register. The materials are available for extent such information is available for documentation) sent by the recovery inspection at: the U.S. Environmental years prior to 1984; and facility to the exporter for at least three Protection Agency, Docket Center Public (6) A certification signed by the (3) years from the date the hazardous Reading Room, EPA West, Room 3334, person acting as primary exporter or waste was accepted by the initial 1301 Constitution Avenue, NW., initiator of the movement transporter or received by the recovery Washington, DC 20004 (Docket # EPA– documentation under § 262.84 that facility, whichever is applicable; and HQ–RCRA–2005–0018) or at the states: (iv) A copy of each confirmation of National Archives and Records I certify under penalty of law that I recovery sent by the recovery facility to Administration (NARA), and may be have personally examined and am the exporter for at least three (3) years obtained from the Organization for familiar with the information submitted from the date that the recovery facility Economic Cooperation and in this and all attached documents, and completed processing the waste Development, Environment Directorate, that based on my inquiry of those shipment. 2 rue Andre´ Pascal, F–75775 Paris individuals immediately responsible for (2) The periods of retention referred to Cedex 16, France. For information on obtaining the information, I believe that in this section are extended the availability of this material at the submitted information is true, automatically during the course of any NARA, call 202–741–6030, or go to: accurate, and complete. I am aware that unresolved enforcement action http://www.archives.gov/federal- there are significant penalties for regarding the regulated activity or as register/cfr/ibr-locations.html. submitting false information including requested by the Administrator. the possibility of fine and PART 264—STANDARDS FOR imprisonment. § 262.88 Pre-approval for U.S. recovery OWNERS AND OPERATORS OF (b) Exception reports. Any person facilities [Reserved] HAZARDOUS WASTE TREATMENT, who meets the definition of primary STORAGE, AND DISPOSAL § 262.89 OECD waste lists. exporter in § 262.51 or who initiates the FACILITIES movement documentation under (a) General. For the purposes of this § 262.84 must file an exception report in subpart, a waste is considered 6. The authority citation for part 264 lieu of the requirements of § 262.42 (if hazardous under U.S. national continues to read as follows: applicable) with the Office of procedures, and hence subject to this Authority: 42 U.S.C. 6905, 6912(a), 6924, Enforcement and Compliance subpart, if the waste: and 6925. Assurance, Office of Federal Activities, (1) Meets the Federal definition of 7. Section 264.12(a)(2) is revised to International Compliance Assurance hazardous waste in 40 CFR 261.3; and read as follows: Division (2254A), Environmental (2) Is subject to either the Federal Protection Agency, 1200 Pennsylvania RCRA manifesting requirements at 40 § 264.12 Required notices. Avenue, NW., Washington, DC 20460, if CFR part 262, subpart B, to the universal (a)(1) * * * any of the following occurs: waste management standards of 40 CFR (2) The owner or operator of a (1) He has not received a copy of the part 273, to State requirements recovery facility that has arranged to RCRA hazardous waste manifest (if analogous to 40 CFR part 273, to the receive hazardous waste subject to 40 applicable) signed by the transporter export requirements in the spent lead- CFR part 262, subpart H must provide identifying the point of departure of the acid battery management standards of a copy of the movement document waste from the United States, within 40 CFR part 266, subpart G, or to State bearing all required signatures to the forty-five (45) days from the date it was requirements analogous to the export foreign exporter; to the Office of accepted by the initial transporter; requirements in 40 CFR part 266, Enforcement and Compliance (2) Within ninety (90) days from the subpart G. Assurance, Office of Federal Activities, date the waste was accepted by the (b) If a waste is hazardous under International Compliance Assurance initial transporter, the exporter has not paragraph (a) of this section, it is subject Division (2254A), Environmental received written confirmation from the to the Amber control procedures, Protection Agency, 1200 Pennsylvania recovery facility that the hazardous regardless of whether it appears in Avenue. NW., Washington, DC 20460; waste was received; Appendix 4 of the OECD Decision. and to the competent authorities of all (3) The waste is returned to the (c) The appropriate control other countries concerned within three United States. procedures for hazardous wastes and (3) working days of receipt of the (c) Recordkeeping. (1) Persons who hazardous waste mixtures are addressed shipment. The original of the signed meet the definition of primary exporter in § 262.82. movement document must be in § 262.51 or who initiate the (d) The OECD waste lists, entitled maintained at the facility for at least movement documentation under ‘‘List of Wastes Subject to the Green three (3) years. In addition, such owner § 262.84 shall keep the following Control Procedure’’ and ‘‘List of Wastes or operator shall, as soon as possible, records paragraphs (c)(1)(i) through Subject to the Amber Control but no later than thirty (30) days after (c)(1)(iv) of this section: Procedure,’’ are set forth in Appendix 3 the completion of recovery and no later

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than one (1) calendar year following the Authority: 42 U.S.C. 6905, 6906, 6912, followed by mail, or fax followed by receipt of the hazardous waste, send a 6922, 6923, 6924, 6925, 6935, 6936, and mail. certificate of recovery to the foreign 6937. * * * * * exporter and to the competent authority 10. Section 265.12(a)(2) is revised to 11. Section 265.71(a)(3) is revised to of the country of export and to EPA’s read as follows: read as follows: Office of Enforcement and Compliance Assurance at the above address by mail, § 265.12 Required notices. § 265.71 Use of manifest system. e-mail without a digital signature (a)(1) * * * followed by mail, or fax followed by (a)(1) * * * (3) If a facility receives hazardous mail. (2) The owner or operator of a waste imported from a foreign source, * * * * * recovery facility that has arranged to the receiving facility must mail a copy 8. Section 264.71(a)(3) is revised to receive hazardous waste subject to 40 of the manifest and documentation read as follows: CFR part 262, subpart H must provide confirming EPA’s consent to the import a copy of the movement document of hazardous waste to the following § 264.71 Use of manifest system. bearing all required signatures to the address within thirty (30) days of (a)(1) * * * foreign exporter; to the Office of delivery: Office of Enforcement and (3) If a facility receives hazardous Enforcement and Compliance Compliance Assurance, Office of waste imported from a foreign source, Assurance, Office of Federal Activities, Federal Activities, International the receiving facility must mail a copy International Compliance Assurance Compliance Assurance Division of the manifest and documentation Division (2254A), Environmental (2254A), Environmental Protection confirming EPA’s consent to the import Protection Agency, 1200 Pennsylvania Agency, 1200 Pennsylvania Avenue, of hazardous waste to the following Avenue, NW., Washington, DC 20460; NW., Washington, DC 20460 address within thirty (30) days of and to the competent authorities of all * * * * * delivery: Office of Enforcement and other countries concerned within three Compliance Assurance, Office of (3) working days of receipt of the PART 266—STANDARDS FOR THE Federal Activities, International shipment. The original of the signed MANAGEMENT OF SPECIFIC Compliance Assurance Division movement document must be HAZARDOUS WASTES AND SPECIFIC (2254A), Environmental Protection maintained at the facility for at least TYPES OF HAZARDOUS WASTE Agency, 1200 Pennsylvania Avenue, three (3) years. In addition, such owner MANAGEMENT FACILITIES NW., Washington, DC 20460. or operator shall, as soon as possible, but no later than thirty (30) days after 12. The authority citation for part 266 * * * * * the completion of recovery and no later is revised to read as follows: PART 265—INTERIM STATUS than one (1) calendar year following the Authority: 42 U.S.C. 1006, 2002(a), 3001– STANDARDS FOR OWNERS AND receipt of the hazardous waste, send a 3009, 3014, 3017, 6905, 6906, 6912, 6921, 6922, 6924–6927, 6934, and 6937. OPERATORS OF HAZARDOUS WASTE certificate of recovery to the foreign TREATMENT, STORAGE, AND exporter and to the competent authority 13. In § 266.80(a) the table is revised DISPOSAL FACILITIES of the country of export and to EPA’s to read as follows: Office of Enforcement and Compliance 9. The authority citation for part 265 Assurance at the above address by mail, § 266.80 Applicability and requirements. continues to read as follows: e-mail without a digital signature (a) * * *

If your batteries * * * And if you * * * Then you * * * And you * * *

(1) Will be reclaimed through re- ...... Are exempt from 40 CFR parts Are subject to 40 CFR parts 261 generation (such as by electro- 262 (except for § 262.11), 263, and § 262.11 of this chapter. lyte replacement). 264, 265, 266, 268, 270, 124 of this chapter, and the notification requirements at section 3010 of RCRA. (2) Will be reclaimed other than Generate, collect, and/or transport Are exempt from 40 CFR parts Are subject to 40 CFR parts 261 through regeneration. these batteries. 262 (except for § 262.11), 263, and § 262.11, and applicable 264, 265, 266, 270, 124 of this provisions under part 268. chapter, and the notification re- quirements at section 3010 of RCRA. (3) Will be reclaimed other than Store these batteries but you Are exempt from 40 CFR parts Are subject to 40 CFR parts 261, through regeneration. aren’t the reclaimer. 262 (except for § 262.11), 263, § 262.11, and applicable provi- 264, 265, 266, 270, 124 of this sions under part 268. chapter, and the notification re- quirements at section 3010 of RCRA. (4) Will be reclaimed other than Store these batteries before you Must comply with 40 CFR Are subject to 40 CFR parts 261, through regeneration. reclaim them. 266.80(b) and as appropriate § 262.11, and applicable provi- other regulatory provisions de- sions under part 268. scribed in 266.80(b). (5) Will be reclaimed other than Don’t store these batteries before Are exempt from 40 CFR parts Are subject to 40 CFR parts 261, through regeneration. you reclaim them. 262 (except for § 262.11), 263, § 262.11, and applicable provi- 264, 265, 266, 270, 124 of this sions under part 268. chapter, and the notification re- quirements at section 3010 of RCRA.

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If your batteries * * * And if you * * * Then you * * * And you * * *

(6) Will be reclaimed through re- Export these batteries for rec- Are exempt from 40 CFR parts Are subject to 40 CFR part 261 generation or any other means. lamation in a foreign country. 263, 264, 265, 266, 268, 270, and § 262.11, and either must 124 of this chapter, and the no- comply with 40 CFR part 262, tification requirements at sec- subpart H (if shipping to one of tion 3010 of RCRA. You are the OECD countries specified in also exempt from part 262, ex- 40 CFR 262.58(a)(1)), or must: cept for 262.11, and except for (a) Comply with the requirements the applicable requirements in applicable to a primary exporter either:. in 40 CFR 262.53, 262.56(a)(1) (1) 40 CFR part 262 subpart H; or through (4), (6), and (b) and (2) 262.53 ‘‘Notification of Intent 262.57; and to Export, 262.56(a)(1) through (b) Export these batteries only (4), (6), and (b) ‘‘Annual Re- upon consent of the receiving ports,’’ and 262.57 ‘‘Record- country and in conformance keeping’’. with the EPA Acknowledgement of Consent as defined in sub- part E of part 262 of this chap- ter; and (c) Provide a copy of the EPA Ac- knowledgment of Consent for the shipment to the transporter transporting the shipment for export. (7) Will be reclaimed through re- Transport these batteries in the Are exempt from 40 CFR parts Must comply with applicable re- generation or any other means. U.S. to export them for rec- 263, 264, 265, 266, 268, 270, quirements in 40 CFR part 262, lamation in a foreign country. 124 of this chapter, and the no- subpart H (if shipping to one of tification requirements at sec- the OECD countries specified in tion 3010 of RCRA. 40 CFR 262.58(a)(1)), or must comply with the following: (a) You may not accept a ship- ment if you know the shipment does not conform to the EPA Acknowledgment of Consent; (b) You must ensure that a copy of the EPA Acknowledgment of Consent accompanies the ship- ment; and (c) You must ensure that the ship- ment is delivered to the facility designated by the person initi- ating the shipment.

* * * * * Authority: 42 U.S.C. 6905, 6912(a), and § 271.1 Purpose and scope. 6926. * * * * * PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE 15. Section 271.1(j) is amended by (j) * * * HAZARDOUS WASTE PROGRAMS adding the following entries to Table 1 and Table 2 in chronological order by 14. The authority citation for part 271 date of publication in the Federal continues to read as follows: Register, to read as follows:

TABLE 1—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

******* [Insert date of publication of final Exports of hazardous waste ...... [Insert FR page numbers] ...... [Insert date of X months from date rule in the Federal Register of publication of final rule]. (FR)].

* * * * *

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TABLE 2—SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register reference

******* [Insert date X days after of publication of Exports of hazardous waste ...... 3017(a) [Insert Federal Register reference for final rule in the Federal Register (FR)]. publication of final rule].

* * * * * [FR Doc. E8–22536 Filed 10–3–08; 8:45 am] BILLING CODE 6560–50–P

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Part VI

Board of Directors of the HOPE for Homeowners Program 24 CFR Part 4001 HOPE for Homeowners Program: Program Regulations; Final Rule

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BOARD OF DIRECTORS OF THE HOPE Department of Housing and Urban This Final Rule FOR HOMEOWNERS PROGRAM Development (HUD) acting through the Section 257(c)(1) of the NHA requires FHA to insure such refinanced eligible the Board to establish requirements and 24 CFR Part 4001 mortgages commencing no earlier than standards for the Program, and prescribe [Docket No. B–2009–F–01] October 1, 2008, and such authority such regulations and provide such expires September 30, 2011. RIN 2580–AA00 guidance as may be necessary or Under the Program, new mortgages appropriate to implement such HOPE for Homeowners Program: are offered by FHA-approved requirements and standards.1 In Program Regulations mortgagees to mortgagors who are at risk addition to this broad direction to of losing their homes to foreclosure. The establish requirements and standards for AGENCY: Board of Directors of the HOPE new FHA-insured mortgage refinances the Program, section 257 also outlines for Homeowners Program. the borrower’s existing mortgage at a specific areas for which the Board is ACTION: Final rule. significant write-down. Eligible charged with establishing standards and borrowers must be unable to afford their policies for the Program. SUMMARY: This final rule sets forth the existing mortgage payments, must This final rule provides the core core requirements for the HOPE for occupy the residence that is the security requirements that the Board has Homeowners Program that have been for the refinanced mortgage as their determined are necessary and established by the Board of Directors primary residence, and may not have appropriate for the implementation and (Board) of the HOPE for Homeowners any present ownership interest in effective administration of the Program. Program (Program). A new section 257 Consistent with section 257 of the NHA, of the National Housing Act (NHA) another residence. Investors and investor properties are not eligible for however, the Board may establish provides the authority for this Program standards and policies through means and oversight requirements to be the FHA-insured refinanced mortgages. Under the Program, participating other than codified regulations. More performed by the Board. Specifically, detailed provisions implementing these section 257(c)(1) of the NHA requires mortgagors share their new equity and future appreciation with FHA. core requirements may be issued by the the Board to prescribe such regulations Board or FHA through orders, a Federal as may be necessary or appropriate to Additionally, participation in this Program is voluntary. No mortgagees, Register notice, or through FHA implement the Program. The Board has mortgagee letters (or similar determined that the regulations set forth servicers, or investors are compelled to participate. administrative issuances). Because this in this rule are necessary and is a temporary program designed to appropriate for the implementation and Section 257 of the NHA prohibits the address the immediate needs of effective administration of the Program. new mortgage loan insured by FHA homeowners faced with the looming DATES: Effective Date: October 6, 2008. from exceeding 90 percent of the threat of foreclosure, the regulations FOR FURTHER INFORMATION CONTACT: appraised value of the property that is adopted by the Board are limited to the Emmanuel Yeow, Secretary of the Board security for the mortgage, or 132 percent basic requirements of the Program. The of Directors of the HOPE for of the dollar amount limitation in effect Board’s objective is to adopt regulations Homeowners Program, Department of for 2007 under section 305(a)(2) of the that address the core features of the Housing and Urban Development, 451 Federal Home Loan Mortgage Program, include necessary safety 7th Street, SW., Room 9110, Corporation Act (12 U.S.C. 1454(a)(2)) measures to avoid fraud, waste, and Washington, DC 20410–8000, telephone for a property of applicable size. In abuse, and leave FHA with sufficient 202–708–3600 (this is not a toll-free addition, section 257 also provides that flexibility to issue such guidance or number). Persons with hearing- or the term of the FHA-insured refinanced processing requirements to make this a speech-impairments may access this mortgage shall have a maturity of not Program that is able effectively to assist number through TTY by calling the toll- less than 30 years, and must bear a distressed homeowners avoid free Federal Information Relay Service single rate of interest that is fixed for the foreclosure. at 800–877–8339. entire term of the mortgage. Section 257 The regulations in this part present directs that a mortgagor participating in SUPPLEMENTARY INFORMATION: the purpose, the authority delegated to the Program may not grant a new FHA, and reference to FHA Background subordinate lien on the mortgaged requirements that are applicable to the The HOPE for Homeowners Act of property during the first 5 years of the Program.2 The regulations define the 2008, located in Title IV of division A term of the mortgage insured under the of the Housing and Economic Recovery Program, except as the Board may 1 The Board is composed of the Secretary of HUD, Act of 2008 (HERA), (Pub. L. 110–289, determine is necessary to ensure the the Secretary of Treasury, the Chairman of the Board of Governors of the Federal Reserve System, 122 Stat. 2654, approved July 30, 2008), maintenance of property standards, and subject to the requirements that any new and the Chairperson of the Board of Directors of the amended Title II of the NHA to add a Federal Deposit Insurance Corporation, or their new section 257. New section 257 (12 outstanding liens (1) do not reduce the respective designees. Section 257(t) of the NHA also U.S.C. 1701z–22) establishes within the value of FHA’s equity in the mortgagor’s provides that the Board may ‘‘prescribe, amend, and repeal such bylaws as may be necessary for carrying Federal Housing Administration (FHA), home; and (2) when combined with the mortgagor’s existing mortgage out the functions of the Board.’’ Consistent with the Program, a temporary FHA program, this provision, the Board adopted bylaws regarding that offers homeowners and existing indebtedness, do not exceed 95 percent its organization, staffing, and operational mortgage loan holders (or servicers of the home’s appraised value at the procedures. These bylaws were published in the time of the new subordinate lien. Federal Register on September 4, 2008 (73 FR acting on their behalf) insurance on the 51621) and provide that the Board’s principal place refinancing of loans for distressed The fundamental principle behind the of business is 451 7th Street, SW., Washington, DC mortgagors to support long term HOPE for Homeowners Act and this 20410–0500. sustainable homeownership, including Program is that providing new equity for 2 Section 4(b) of the Department of Housing and Urban Development Act, 42 U.S.C. 3533(b), among other things, allowing distressed homeowners may be an provides that the Federal Housing Commissioner homeowners to avoid foreclosure. effective way to help homeowners avoid shall head a Federal Housing Administration within Section 257 of the NHA authorizes the foreclosures. HUD and shall have such duties and powers as may

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key Program terms, and address the The third factor is the extent to which In establishing the maximum following Program areas: underwriting the principal and accrued interest owed payments allowable to a subordinate standards, representations of the on the mortgages that are senior to the mortgage holder, the Board took into mortgagee whose mortgagor will particular subordinate mortgage exceed account information received from participate in the Program, mortgagor the property’s current appraised value. market participants concerning the price representations, certain prohibitions This factor is taken into account as well received in the market currently for imposed on FHA, FHA equity sharing in the matrix for appreciation sharing delinquent subordinate mortgages. The with the borrower, FHA appreciation because the amount a subordinate Board expects that the majority of sharing with the borrower, the mortgage holder may receive is based in subordinate mortgages offered to the prohibition on subordinate liens during part on the amount of principal and Program will be delinquent. The the first five years of the mortgagor’s interest, calculated at the pre-default information provided by market Program mortgage, and applicable contract rate, owed on those mortgages participants indicates that delinquent hearing procedures. The Board has that are more senior than the subordinate mortgages currently trade at determined that regulations addressing subordinate mortgage in question. substantially below their par values, these areas are necessary for immediate The Board gave very careful with market values within the ranges implementation and long-term established by the Board. Moreover, the consideration to these three factors by administration of the Program. information provided suggests that examining several models developed to subordinate mortgages that are even 30 The payment to FHA of the equity implement this authority. The initial days delinquent are very likely to created in the property as a result of the models were very intricate and concern refinancing of the eligible mortgage is default and yield no recovery value to was raised that adopting any of them designed to avoid any windfall to the holder of the subordinate mortgage. would cause confusion in the mortgage mortgagors that would arise as the result Indeed, it is common practice for marketplace, and discourage of the refinancing. The same windfall holders to write-down the value of subordinate mortgage holders and avoidance concept also applies to the delinquent subordinate mortgages in servicers from participating in the requirement that property appreciation portfolios and in securitized pools to program. The Board also considered the be shared between the homeowner and zero once the loans are 180 days past potential for the existing senior FHA, the latter which is authorized to due. mortgage holder, who will receive share any appreciation funds with proceeds from the refinancing that are In establishing the maximum amounts subordinate mortgage holders. likely to exceed the holder’s potential that a subordinate mortgage holder may Section 257(e)(4)(B) requires that, at a recovery in a foreclosure, to compensate receive through receipt of an interest in minimum, the Board take into a subordinate mortgage holder to the future appreciation of the property, consideration three factors in participate in the Program. The Board the Board also took into consideration determining the amount of appreciation encourages lenders to pursue such that subordinate mortgage holders a subordinate mortgage lien holder may arrangements. receiving compensation in the form of receive. The first factor is the status or future appreciation rights, may require relative priority of the subordinate liens. The following matrix provides the additional compensation to participate This factor is addressed in the payout mechanism for determining the future in the Program to reflect the time value allocation set forth in the rule. After sale appreciation payment a subordinate lien of money and uncertainty about the or disposition of the property, HUD’s 50 holder is eligible to receive. The Board extent and timing of property percent appreciation interest is paid to considers a number of benefits to be appreciation. A certificate entitling the prior mortgage lien holders in order of present with this approach. It provides holder to receive a portion of future the seniority in which their mortgage an incentive to action by subordinate appreciation on a property may be liens were held, to the extent of HUD’s lien holders; reduces administrative worth little or nothing if the property share. Mortgage lien holders that were costs; is simple to calculate and easy to experiences little or no appreciation. in 2nd position behind the 1st mortgage understand; and voids competing Moreover, appreciation rights are will be paid first, then 3rd mortgage lien appraisals. exercised upon sale or other disposition holders, and when the claims of all of the property, the timing of which is prior lien holders have been satisfied, APPRECIATION SHARING PAYOUT determined by the homeowner, rather HUD will retain the balance, if any. MATRIX than the claim holder. As a result, if The second factor is the outstanding homeowners that have a mortgage principal and accrued but unpaid Percent of un- insured under the Program sell quickly, interest of the existing senior mortgage paid principal and interest appreciation rights will have less value. and subordinate mortgages. Since the Subordinate lien holder that lien holder Since homeowners participating in the total balances may not accurately reflect is eligible to Program have an incentive to sell the the amount the mortgagee potentially receive* property to escape the shared could recover in a foreclosure, the Board appreciation requirement, claim holders determined that these balances should Cumulative CLTV >135% ..... 9% ≤ may discount the value of shared be compared to the appraised value of Cumulative CLTV 135% ..... 12% appreciation rights. Accounting for the property. Therefore, this factor is * Appreciation payment to a subordinate lien these factors is inherently imprecise; expressed in the matrix described below holder will depend on actual appreciation at nonetheless, using models based in part as a cumulative combined loan-to-value the time of sale of the property and will be lim- on option-pricing concepts, the Board ited by the amount of future appreciation HUD (CLTV). receives. Payment will be made according to believes that providing the holder of a the subordinate lien holder’s position of priority subordinate mortgage the right to be prescribed by the Secretary of HUD. The in relation to the property at the time the Pro- receive a maximum of 9 to 12 percent Secretary of HUD has delegated to the FHA gram mortgage is originated, and will be of the unpaid principal and interest on Commissioner the power and authority to carry out based upon principal and interest on the date all FHA mortgage insurance programs, including of origination of the Program mortgage, cal- the subordinate mortgage out of the authority to issue rules or regulations to carry out culated at the pre-default contract rate of future appreciation, if any, on the these programs. interest. property should likely provide the

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holder about the same risk-adjusted exceed $100M. It is possible that there the Congressional Review Act (CRA) (5 compensation as the holder would will be more participants than 10,000, U.S.C. 801 et seq.). Generally, a major receive from a current cash payment or less, in which case the net benefits rule under the CRA has a 60-day equal to the approximate current market increase or decrease, as the case may be. delayed effective date and is required to value of a delinquent subordinate lien of There are other factors important in be submitted to Congress in accordance the same amount and CLTV. determining the aggregate impact on the with the requirements of the CRA. economy. The net benefit to the lender Section 808 of the CRA allows a rule to Findings and Certifications was estimated to be $10,000 but, as the become effective sooner than otherwise Administrative Procedure Act economic analysis discusses, it may be provided by the CRA, if the agency, for higher. A higher net benefit to the senior This final rule is being issued and good cause, finds that notice and public lien holder would increase the expected will become effective without a public procedure are impracticable, benefit of preventing a foreclosure. comment period. Section 553(a) of the unnecessary, or contrary to the public There are also economic benefits to the Administrative Procedure Act (5 U.S.C. interest. This finding and a brief community from preventing foreclosure. 551 et seq.) (APA) provides that advance statement of the reasons for the finding HUD anticipates that the net economic notice and public comment procedures must be incorporated in the rule. (See 5 benefits will exceed the costs based on do not apply to a matter relating to U.S.C. 808(2)). As stated in this initial analysis. preamble under the section that agency management or personnel or to The docket file for this rule, which public property, loans, grants, benefits addresses APA requirements, this rule is includes the economic analysis, is exempt from the notice and comment or contracts (see 5 U.S.C. 553(a)). This available for public inspection in the final rule establishes regulations for a procedures of the APA. As also Regulations Division, Office of General discussed in connection with the APA new mortgage insurance program under Counsel, Department of Housing and the supervision of the Board and is requirements, this Program is a Urban Development, 451 7th Street, voluntary and temporary measure therefore exempt from notice and SW., Room 10276, Washington, DC comment rulemaking as provided in 5 designed to prevent eligible borrowers 20410–0500. Due to security measures whose mortgages are at risk of U.S.C. 553(a). at the HUD Headquarters building, an This final rule will become effective foreclosure from losing their homes. advance appointment to review the upon publication in the Federal Some of these borrowers are facing public comments must be scheduled by Register. Section 553(d) of the APA foreclosure now or may in the very near calling the Regulations Division at 202– provides that substantive rules, such as future, making the need for 402–3055 (this is not a toll-free this rule, shall be made effective not less implementation of the Program number). Individuals with speech or than 30 days after publication unless, immediate. A 60-day delay in the hearing impairments may access this among other things, an agency finds effective date of this rule would number via TTY by calling the Federal good cause to provide an earlier therefore be contrary to the public Information Relay Service at (800) 877– effective date. Good cause exists for interest. Thus, good cause exists to 8339. these regulations to be immediately make this rule effective as close as effective. This is a voluntary and Federalism possible to October 1, 2008, which is the date on which the HERA provides for temporary program designed to address Executive Order 13132 (entitled the immediate needs of homeowners the Program to begin. The Board will ‘‘Federalism’’) prohibits an agency from submit this rule and other required facing foreclosure, and HERA provides publishing any rule that has federalism for this Program to begin October 1, information to Congress as required by implications if the rule either imposes the CRA. 2008, in order that homeowners can substantial direct compliance costs on take advantage of the mortgage relief state and local governments and is not List of Subjects in 24 CFR Part 4001 offered by this Program. The immediate required by statute, or the rule preempts Administrative procedures, Practice effective date of this rule is consistent state law, unless the agency meets the and procedure, Mortgage insurance, with the statutory authority. The consultation and funding requirements Reporting and recordkeeping objective for expedient action by the of section 6 of the Executive Order. This requirements. Board to have this Program commence rule does not have federalism ■ For the reasons set forth in the at the beginning of the new Federal implications and does not impose preamble, the Board of Directors of the fiscal year is motivated by the high level substantial direct compliance costs on Hope for Homeowners Program of at-risk borrowers and weak state and local governments nor establishes a new Chapter XXIV conditions in the housing market. preempts state law within the meaning consisting of part 4001 in Title 24 of the of the Executive Order. Executive Order 12866, Regulatory Code of Federal Regulations to read as Planning and Review Unfunded Mandates Reform Act follows: The Office of Management and Budget Title II of the Unfunded Mandates CHAPTER XXIV—BOARD OF DIRECTORS (OMB) reviewed this rule under Reform Act of 1995 (2 U.S.C. 1531– OF THE HOPE FOR HOMEOWNERS Executive Order 12866, Regulatory 1538) (UMRA) establishes requirements PROGRAM Planning and Review. OMB determined for federal agencies to assess the effects that this rule is an economically of their regulatory actions on state, PART 4001—HOPE FOR significant regulatory action as defined local, and tribal governments and the HOMEOWNERS PROGRAM in section 3(f) of the Order. Accordingly, private sector. This rule will not impose Subpart A—HOPE for Homeowners an economic analysis was prepared for any federal mandates on any state, local, Program—General Requirements this rule. or tribal governments or the private This Program has the potential to Sec sector within the meaning of UMRA. 4001.01 Purpose of program. have significant economic benefits. The Congressional Review Act 4001.03 Requirements and delegated major unknown is participation. If authority. 10,000 participate in the Program, the OMB has determined that this rule 4001.05 Approval of mortgagees. aggregate net benefit of the Program may constitutes a ‘‘major rule’’ as defined in 4001.07 Definitions.

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Subpart B—Eligibility Requirements and Directors may adopt and issue servicing an eligible mortgage to be Underwriting Procedures additional requirements, standards and refinanced and insured under section 4001.102 Cross-reference. policies through non-codified 257 of the National Housing Act is not 4001.104 Eligible mortgages. regulations, including through order, required to be an approved mortgagee as 4001.106 Eligible mortgagors. Federal Register notice, or other required in paragraph (a) of this section, 4001.108 Eligible properties. statement, such as a mortgagee letter, to unless it seeks to be the originator of the 4001.110 Underwriting. be issued and implemented by FHA. refinanced mortgage to be insured by 4001.112 Income verification. 4001.114 Appraisal. (b) Basic Program parameters. (1) FHA. FHA is authorized to insure eligible 4001.116 Representations and prohibitions. § 4001.07 Definitions. 4001.118 Equity sharing. refinanced mortgages under the Program 4001.120 Appreciation sharing. commencing no earlier than October 1, As used in this part and in the 4001.122 Fees and closing costs. 2008. The authority to insure additional Program, the following definitions mortgages under the Program expires apply. Subpart C—Rights and Obligations under Act means the National Housing Act the Contract of Insurance September 30, 2011. (2) Under this Program, an eligible (12 U.S.C. 1701 et seq. ). 4001.201 Cross-reference. Allowable closing costs mean charges, 4001.203 Calculation of upfront and annual mortgagor may obtain a refinancing of his or her existing mortgage(s) with a fees and discounts that the mortgagee mortgage insurance premiums for may collect from the mortgagor as Program mortgages. new mortgage loan insured by FHA, subject to conditions and restrictions provided in 24 CFR 203.27(a). Subpart D—Servicing responsibilities specified in section 257 of the National Board means the Board of Directors 4001.301 Cross-reference. Housing Act and requirements for the HOPE for Homeowners Program, 4001.303 Prohibition on subordinate liens established by the Board. which is comprised of the Secretary of during first five years. (c) Delegated authority. HUD is HUD, the Secretary of the Treasury, the Subpart E—Enforcement statutorily charged with administering, Chairman of the Board of Governors of the Federal Reserve System (Federal Mortgagor False Information through FHA, the Program. In carrying out the Program requirements Reserve Board), and the Chairperson of 4001.401 Notice of false information from established by the Board, FHA is the Board of Directors of the Federal mortgagor-procedure. directed to issue such interim guidance Deposit Insurance Corporation or the Appraiser Independence and mortgagee letters as FHA designees of each such individual. Capital improvements means a repair, determines necessary or appropriate, 4001.403 Prohibitions on interested parties renovation, or addition to a property in insured mortgage transaction. within the parameters of the that significantly enhances the value of requirements, standards and policies Mortgagees the property, but does not include adopted by the Board. In addition to expenses for interior decor, landscape 4001.405 Mortgagees. FHA’s statutory charge, the Board of maintenance, or normal maintenance or Appendix A to Part 4001—Calculation of Directors authorizes FHA to address Future Appreciation Payment. replacement expenses. unique or case-by-case situations as may Contract of insurance means the be encountered by FHA in carrying out Authority: 12 U.S.C. 1701z–22. agreement by which FHA provides the Program, and to take such action as mortgage insurance to a mortgagee. Subpart A—HOPE for Homeowners may be necessary to implement the Default and delinquency fees means Program—General Requirements Board’s requirements. This delegated late charges contained in a mortgage/ implementing authority includes, but is security instrument for the late or non- § 4001.01 Purpose of program. not limited to, specifying application receipt of payments from mortgagors The HOPE for Homeowners Program forms, mortgage application procedures, after the date upon which payment is is a temporary program authorized by certifications or other assurances, and due, including charges imposed by the section 257 of the National Housing Act, other information collection mortgagee for the return of payments on established within the Federal Housing requirements, subject to such rules, the mortgage due to non-sufficient Administration (FHA) of the standards and policies as the Board may funds. Department of Housing and Urban adopt. Direct financial benefit, as used in Development (HUD) that offers (d) Other applicable requirements. section 257(e)(1)(A)(ii)(II) of the Act, homeowners and existing loan holders Except as may be otherwise provided by consists of the greater of two factors: (or servicers acting on their behalf) FHA the Board, the provisions and (1) The amount of initial equity the insurance on refinanced loans for requirements in the FHA regulations in mortgagor has in the property at the distressed borrowers to support long- 24 CFR part 203, which are generally closing for the Program mortgage as term sustainable homeownership by, applicable to all FHA-insured single determined under § 4001.118; and among other things, allowing family mortgage insurance programs, (2) The total amount that the existing homeowners to avoid foreclosure. The also apply with respect to the insurance senior mortgage and all existing HOPE for Homeowners Program is of a refinanced eligible mortgage under subordinate mortgages on the property administered by HUD through FHA. the Program. have been written down. Disposition means any transaction § 4001.03 Requirements and delegated § 4001.05 Approval of mortgagees. that results in whole or partial transfer authority. (a) Eligibility. In order for a mortgage of title of a property other than— (a) Core requirements. This subpart to be eligible for insurance under this (1) A sale of the property; or establishes the core requirements for the part, the mortgagee originating the (2) Any transaction or transfer HOPE for Homeowners Program that mortgage loan and seeking mortgage specified in 12 U.S.C. § 1701j-3(d)(1) have been adopted by the Board of insurance under this part shall have through (8). Directors (Board) for the HOPE for been approved by the Secretary Eligible Mortgage means a mortgage as Homeowners Program (Program). In pursuant to 24 CFR part 202. defined in § 4001.104. addition to the core requirements, (b) Mortgagee whose loan is to be Existing senior mortgage means an codified in this subpart, the Board of refinanced. A mortgagee holding or eligible mortgage that has superior

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priority and is being refinanced by a annual costs for items listed in Mortgage Insurance Fund’’ shall be mortgage insured under section 257 of paragraph (2)(i) of this definition. deemed to be to the Home Ownership the Act. Preservation Entity Fund, and any Existing subordinate mortgage means Subpart B—Eligibility Requirements references to ‘‘the Commissioner’’ shall a mortgage that is subordinate in and Underwriting Procedures be deemed to be to the Board or the priority to an eligible mortgage which is § 4001.102 Cross-reference. Commissioner (as the context may being refinanced by a mortgage insured require). (a) All of the provisions of 24 CFR under section 257 of the Act. (c) If there is any conflict in the part 203, subpart A, concerning FHA means the Federal Housing application of any requirement of 24 eligibility requirements of mortgages Administration. CFR part 203, subpart A, to this part the covering one-family dwellings under HOPE for Homeowners Program (or provisions of this part shall control. section 203 of the National Housing Act Program) means the program (12 U.S.C. 1709) apply to mortgages on established under section 257 of the § 4001.104 Eligible mortgages. one-family dwellings to be insured Act. A mortgage eligible to be refinanced under section 257 of the National HUD means the Department of under section 257 of the Act must: Housing Act (12 U.S.C. 1701z–22), Housing and Urban Development. (a) Have been originated on or before Intentionally defaulted for purposes except the following provisions: 203.7 January 1, 2008; of section 257(e)(1)(A) of the Act means Commitment Process; 203.10 Informed (b) Be secured by a property owned consumer choice for prospective FHA the mortgagor: and occupied by the mortgagor as his or (1) Knowingly failed to make payment mortgagors; 203.12 Mortgage insurance her primary residence, and be the only on the mortgage or debt; on proposed or new subdivisions; residence in which the mortgagor has (2) Had available funds at the time 203.14 Builder’s warranty; 203.16 any present ownership interest; and payment on the mortgage or debt was Certificate and contract regarding use of (c) Meet such other requirements as due that could pay the mortgage or debt dwelling for transient or hotel purposes; the Board may adopt. 203.18 Maximum mortgage amounts; without undue hardship; and § 4001.106 Eligible mortgagors. (3) The debt was not subject to a bona 203.18a Solar-energy system; 203.18b fide dispute. Increased mortgage amount; 203.18c In order for a mortgagor to be eligible Mortgage has the same meaning as One-time or up-front MIP excluded from to refinance his or her existing provided in 24 CFR 203.17(a)(1). limitations on maximum mortgage mortgages under section 257 of the Act, Mortgagee has the same meaning as amounts; 203.18d Minimum principal the mortgagor must: provided in 24 CFR 203.251(f). loan amount; 203.19 Mortgagor’s (a) Have had, on March 1, 2008, a Mortgagor has the same meaning as minimum investment; 203.20 Agreed monthly total mortgage payment of provided in 24 CFR 203.251(e). interest rate; 203.29 Eligible mortgage in more than 31 percent of the mortgagor’s Premium pricing means the price for Alaska, Guam, Hawaii or the Virgin monthly gross income; the sale of a mortgage loan with an Islands; 203.32 Mortgage lien; 203.37a (b) Not have an ownership interest in above market rate of interest. Sale of property; 203.42 Rental any other residential property; Prepayment penalties mean such properties; 203.43 Eligibility of (c) Not have been convicted of fraud amounts as defined in 12 CFR miscellaneous types of mortgages; under federal or state law in the past 10 226.32(d)(6) of the Federal Reserve 203.43a Eligibility of mortgages covering years; (d) Certify that the mortgagor has not Board’s Regulation Z (Truth in housing in certain neighborhoods; intentionally defaulted on any mortgage Lending). 203.43d Eligibility of mortgages in Primary residence means the dwelling certain communities; 203.43e Eligibility or debt and has not knowingly, or where the mortgagor maintains his or of mortgages covering houses in willfully and with actual knowledge, her permanent place of abode and federally impacted areas; 203.43g furnished material information know to typically spends the majority of the Eligibility of mortgages in certain be false for purposes of obtaining any calendar year. A mortgagor can only communities; 203.43h Eligibility of Program mortgage; and (e) Meet such other requirements as have one primary residence. mortgages on Indian land insured the Board may adopt. Program mortgage means the pursuant to section 248 of the National mortgage into which the existing senior Housing Act; 203.43i Eligibility of § 4001.108 Eligible properties. mortgage is refinanced. mortgages on Hawaiian Home Lands (a) A mortgage may be insured under Secretary means the Secretary of insured pursuant to section 247 of the the Program only if the property that is Housing and Urban Development. National Housing Act; 203.43j Eligibility to be the security for the mortgage is a Total monthly mortgage payment of mortgages on Allegany Reservation of one-family residence. means the sum of: Seneca Nation Indians; 203.44 (b) The following property types are (1) Principal and interest, as Eligibility of advances; 203.45 Eligibility eligible to secure a mortgage insured determined on a fully indexed and fully of graduated payment mortgages; 203.47 under the Program: amortized basis; and Eligibility of growing equity mortgages; (1) Detached and semi-detached (2) Escrowed amounts. (i) The 203.49 Eligibility of adjustable rate dwellings; monthly required amount collected by mortgages; 203.50 Eligibility of (2) A condominium unit; or on behalf of the mortgagee for real rehabilitation loans; 203.51 (3) A cooperative unit; or estate taxes, premiums for required Applicability; and 203.200–203.209 (4) A manufactured home that is hazard and mortgage insurance, Insured Ten-Year Protection Plans permanently affixed to realty and is homeowners’ association dues, ground (Plan). treated as realty under applicable state rent, special assessments, water and (b) For the purposes of this subpart, law except state taxation law. sewer charges and other similar charges all references in 24 CFR part 203, required by the note or security subpart A, to section 203 of the Act § 4001.110 Underwriting. instrument; or shall be construed to refer to section 257 A mortgage may be insured under the (ii) For mortgages not subject to of the Act. Any references in 24 CFR Program only if the following conditions escrow deposits, 1⁄12 of the estimated part 203, subpart A, to the ‘‘Mutual are met:

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(a) Debt-to-income thresholds. Except (f) Limit on origination fees. (2) The mortgagor shall provide any as provided in paragraph (c) of this Mortgagees may charge and collect from other certifications that FHA may section: mortgagors allowable closing costs. otherwise require. (1) Payment-to-income. The total (3) A mortgagor obligated under a § 4001.112 Income verification. monthly mortgage payment of the Program mortgage shall agree in writing, mortgagor under the Program mortgage The mortgagee shall use FHA’s on a form approved by the Board, to be does not exceed 31 percent of the procedures to verify the mortgagor’s liable to pay to FHA any Direct mortgagor’s monthly gross income; and income and shall comply with the Financial Benefit achieved from the (2) Debt-to-income. The sum of the following additional requirements: reduction of indebtedness on the (a) The mortgagee shall document and total monthly mortgage payment under existing senior and subordinate verify the income of the mortgagor by the Program mortgage and all monthly mortgages that are being refinanced obtaining a transcript of the borrower’s recurring expenses of the mortgagor under the Program if he or she makes a Federal income tax returns or a copy of does not exceed 43 percent of the false statement or other the borrower’s Federal income tax mortgagor’s monthly gross income. misrepresentation in the certifications returns obtained directly from the (b) Past credit performance. The and documentation required for Internal Revenue Service for the most mortgagor must have made at least six Program eligibility, including but not recent two years; and limited to the certifications required full payments on the existing senior (b) The mortgagee shall document and under section 257(e)(1)(A)(i) of the Act. mortgage being refinanced under the verify the mortgagor’s income in any Program. (c) Mortgagee in violation of Program case in which the mortgagor has not requirements. (1) If the mortgagee holds (c) Trial modifications. For any filed a Federal income tax return. mortgagor who is unable to meet the a Program mortgage that it originated requirements of paragraph (a) of this § 4001.114 Appraisal. and/or underwrote, and FHA finds that section, a mortgage loan may (a) The property shall be appraised by the mortgagee violated the Program nevertheless be presented for insurance an appraiser on the FHA Appraiser requirements, FHA is prohibited from by FHA under the Program if: Roster. paying FHA insurance benefits to that (1) The mortgagor, using existing (b) An appraisal of a property to be mortgagee. income, has made full and timely security for a Program mortgage shall be (2) If the mortgagee no longer holds mortgage payments on the existing conducted in accordance with Uniform the Program mortgage that it originated senior mortgage pursuant to the terms of Standards of Professional Appraisal and/or underwrote, FHA will pay the the trial modification: Practice (USPAP) but dated no more insurance claim to the mortgagee (i) For the three consecutive months than 90 days from the date on which the presently holding the Program mortgage before submission of the application for mortgage transaction is closed, except as (if all other requirements of the contract the mortgage to be insured under the otherwise provided by the Board. for mortgage insurance are met and the Program; and (c) The mortgagee must inform the present holder did not participate in the (ii) In an amount that is at least 90 appraiser that copies of the appraisal violation of Program requirements) and percent of the estimated total monthly may be shared with holders and shall seek indemnification from the mortgage payment to be paid by the servicers of existing subordinate non-holding mortgagee. (d) FHA insurance. A mortgage is mortgagor on the Program mortgage. mortgages. eligible for insurance if the mortgagee (2) The total monthly mortgage § 4001.116 Representations and submits a complete case binder within payment of the mortgagor under the prohibitions. 120 days from the date of closing of the Program mortgage does not exceed 38 (a) Underwriting and appraisal mortgage, or such other time as the percent of the mortgagor’s monthly standards. In order for the Program Board may prescribe. The binder shall income; and mortgage to be eligible for insurance include evidence acceptable to the (3) The sum of the total monthly under the Program, the underwriter and Board that the mortgage is current. mortgage payment under the Program the mortgagee must provide (e) Mortgagor failure to make first mortgage and all monthly recurring certifications, in a format approved by mortgage payment. FHA shall not pay a expenses of the mortgagor does not the FHA, that the mortgage is in mortgage insurance claim to any exceed 50 percent of the mortgagor’s compliance with the underwriting and mortgagee if the first total monthly monthly gross income. the appraisal standards set forth in this mortgage payment is not made within (d) Non-occupant co-borrowers. A part, and that it meets all requirements the time frame established in paragraph mortgage loan may be insured by the applicable to the Program. FHA may (d) of this section. The mortgagee shall FHA under the Program, even if one of require additional certifications by the not, directly or indirectly, make all or a the mortgagors on the loan (i.e. , a co- mortgagee to ensure compliance with part of the first total monthly mortgage signer) does not reside at the residence such additional standards as the FHA payment on behalf of the mortgagor. The securing the loan, provided that the deems necessary given the specific mortgagee is prohibited from escrowing non-resident mortgagor relinquishes all mortgage transaction presented. funds at closing for all or part of the first interests in the property that is to be (b) Mortgagor’s liability for total monthly mortgage payment. security for the mortgage before an repayment. (1) The mortgagor shall application is submitted for FHA provide a certification to FHA that the § 4001.118 Equity sharing. insurance under the Program. mortgagor has not: (a) Initial Equity. For purposes of (e) Amount of new mortgage payment. (i) Intentionally defaulted on the section 257(k)(1) of the Act, the initial The mortgagor’s total monthly payment mortgagor’s existing mortgage(s), or any equity created as a direct result of the on the mortgage to be insured under the other debt; or origination of a Program mortgage on a Program must not be greater than the (ii) Knowingly or willfully and with property, as calculated by the Program mortgagor’s aggregate total monthly actual knowledge furnished material mortgage lender, shall equal: mortgage payment under the information known to be false for the (1) The appraised value of the mortgagor’s existing senior mortgage purpose of obtaining the mortgagor’s property that was used at the time of and all existing subordinate mortgages. existing mortgage(s). origination of the Program mortgage to

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underwrite the mortgage and to additional standards and policies that mortgages shall either forgive or waive determine compliance with the the Board may establish, if: all prepayment penalties and maximum loan-to-value ratio at (1) The existing subordinate mortgage delinquency and default fees. origination established by section was originated on or before January 1, (b) Allowable closing costs incurred 257(e)(2)(B) of the Act; less 2008; in connection with the refinancing and (2) The original principal amount of (2) The amount of the unpaid insurance of a mortgage under the the Program mortgage on the property. principal and interest on such existing Program can be paid from the following (b) FHA’s interest. Upon the sale or subordinate mortgage on the date of sources: disposition of a property or Program origination of the Program mortgage is at (1) The mortgagor’s assets; mortgage refinancing, FHA shall least $2,500; and (2) The mortgagee holding or calculate and be entitled to receive the (3) Each person holding such existing servicing the existing senior and portion of the initial equity (as defined subordinate mortgage agrees, in subordinate mortgage or the mortgagee by paragraph (a) of this section) set forth connection with the origination of the originating the Program mortgage; in section 257(k)(1) of the Act, subject Program mortgage, to fully release: (3) Premium pricing by the mortgagee to such standards and policies as the (i) The mortgagor(s) from any providing the Program mortgage; Board may establish. indebtedness under the existing (4) Financed as part of the Program subordinate mortgage; and mortgage provided that the mortgage § 4001.120 Appreciation sharing. (ii) The holder’s mortgage lien on the amount is adjusted accordingly, and the (a) Calculation of appreciation. For property. loan-to-value ratio does not exceed 90 purposes of section 257(k)(2) of the Act, (d) Shared appreciation interest of percent (including the up-front the amount of the appreciation in value subordinate mortgage holders. premium required under (1) In general. The eligible holder(s) of of a property securing a Program § 4001.203(a)(1)); mortgage that occurs between the date an existing subordinate mortgage on a (5) A Federal, state, county or parish, the mortgage was insured under section property securing a Program mortgage or municipal program; or 257 of the Act and the date of any shall be eligible to receive, subject to (6) Such other sources as the Board subsequent sale or disposition of the paragraph (c)(3) of this section, an may permit. property shall be equal to the following, interest in FHA’s interest in the as such amounts of appreciation may be appreciation in the value of such Subpart C—Rights and Obligations established to the satisfaction of FHA: property up to the amount set forth in Under the Contract of Insurance (1) The gross proceeds from the sale the Appendix to this part. § 4001.201 Cross-reference. or disposition of the property (2) Form. The interest of an eligible (calculated at the pre-default rate of holder of an existing subordinate (a) All of the provisions of 24 CFR interest); less mortgage under paragraph (d) of this part 203, subpart B, covering mortgages (2) The amount of closing costs, as section is evidenced in a shared insured under section 203 of the Act adopted by the Board, incurred by the appreciation certificate or other shall apply to mortgages insured under mortgagor(s) in connection with such documentation to be issued by, or on section 257 of the Act, except the sale or disposition, if any; less behalf of, HUD. following sections: 203.256 Insurance of (3) Seventy-five percent, as may be (3) Multiple subordinate liens. If there open-end advances; 203.259a Scope; modified by the Board, of the actual is more than one eligible existing 203.260 Amount of insurance premium; expenditures for Capital Improvements subordinate mortgage on a property 203.261 Calculation of periodic MIP made by the mortgagor(s) after the date securing a Program mortgage, the (periodic MIP); 203.270 Open-end of origination of the Program mortgage; interests of such eligible existing insurance charges; 203.280 One-time of and less subordinate mortgages under paragraph Up-front MIP; 203.281 Calculation of (4) The appraised value of the (d)(1) of this section shall have priority one-time MIP; 203.283 Refund of one- property that was used at the time of among each other in the same order of time MIP; 203.284 Calculation of up- origination of the Program mortgage to priority that existed among the existing front and annual MIP on or after July 1, underwrite that mortgage and determine subordinate mortgages on the date of 1991; 203.285 Fifteen year mortgages: compliance with the maximum loan-to- origination of the Program mortgage. calculation of up-front and annual MIP (4) Distribution of appreciation value ratio at origination established by on or after December 26, 1992; 203.415– interest to subordinate mortgage section 257(e)(2)(B) of the Act. 203.417 Certificate of Claim; 203.420– holders. Upon the sale or disposition of (b) HUD’s interest in appreciation. 203.427 Mutual Mortgage Insurance a property securing a Program mortgage Upon sale or disposition of a property Fund and Distributive Shares; 203.436 other than sale or disposition related to securing a Program mortgage, FHA shall Claim procedures—graduated payment a default, any proceeds due to FHA as be entitled to receive an amount equal mortgages; 203.438 Mortgages on Indian a result of the appreciation in value of to 50 percent of the appreciation in land insured pursuant to section 248 of the property (as calculated in value of the property calculated in the National Housing Act; 203.439 accordance with paragraph (a) of this accordance with paragraph (a) of this Mortgages on Hawaiian home lands section) shall be distributed: section. (i) First to the holders of any shared insured pursuant to section 247 of the (c) Eligibility of subordinate mortgage appreciation certificate or other National Housing Act; 203.439a holders to receive a portion of documentation issued by HUD with Mortgages on property in Allegheny appreciation in value. The persons or respect to the property, if any, in Reservation of Seneca Nation of Indians entities that hold, on the date of accordance with paragraphs (d)(1), authorized by section 203(q) of the origination of a Program mortgage, an (d)(2), and (d)(3) of this section; and National Housing Act; and 203.440– existing subordinate mortgage on the (ii) The remaining amounts, if any, 203.495 Rehabilitation Loans. property shall be eligible to receive a will be retained by FHA. (b) For the purposes of this subpart, portion of FHA’s interest in the all references in 24 CFR part 203, appreciation in value of the property, as § 4001.122 Fees and closing costs. subpart B, to section 203 of the Act shall determined in accordance with the (a) The holder or servicer of the be construed to refer to section 257 of provisions of this section and such existing senior and subordinate the Act. Any references in 24 CFR part

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203, subpart B, to the ‘‘Mutual Mortgage Commissioner’’ shall be deemed to be to Subpart E—Enforcement Insurance Fund’’ shall be deemed to be the Board or the Commissioner (as the to the Home Ownership Preservation context may require). Mortgagor False Information Entity Fund, and any references to ‘‘the (c) If there is any conflict in the § 4001.401 Notice of false information from Commissioner’’ shall be deemed to be to application of any requirement of 24 mortgagor-procedure. CFR part 203, subpart C, to this part the Board or the Commissioner (as the (a) If FHA finds that the mortgagor has 4001, the provisions of part 4001 shall context may require). made a false certification or provided control. (c) If there is any conflict in the false information via any means, application of any requirement of 24 § 4001.303 Prohibition on subordinate including but not limited to false CFR part 203, subpart B, to this part liens during first five years. documentation, FHA shall inform the 4001, the provisions of part 4001 shall (a) Prohibition on subordinate liens mortgagor, in writing or any other control. during first five years. Except as acceptable format, of such fact. § 4001.203 Calculation of upfront and provided in paragraph (b) of this (b) The notice shall be sent to the annual mortgage insurance premiums for section, a mortgagor shall not, during mortgagor’s last known address by both Program mortgages. the first 5 years of the term of the certified and ordinary mail. The notice (a) Applicable premiums. Any mortgagor’s Program mortgage, incur shall state with specificity the mortgage presented for endorsement any debt, take any action, or fail to take misrepresentation or false statement under section 257 on or after October 1, any action that would have the direct made by the mortgagor. The notice shall 2008, and prior to September 30, 2011, result of causing a lien to be placed on include a request for repayment of the shall be subject to the following the property securing the Program Direct Financial Benefit that the requirements: mortgage if such lien would be mortgagor is deemed to have received, (1) Upfront premium. FHA shall subordinate to the Program mortgage. as determined by FHA, by the establish and collect a single premium (b) Property preservation exception. refinancing of the eligible mortgage and payment equal to 3 percent of the Paragraph (a) of this section shall not subordinate mortgages. This does not amount of the original insured principal prevent a mortgagor on the Program preclude HUD or the United States from obligation of the Program mortgage. mortgage from incurring new mortgage bringing any other action that they may (2) Annual premium. In addition to debt secured by a lien on the property be authorized to bring. the premium under paragraph (a)(1) of securing the Program mortgage that is (c) The mortgagor may request a this section, FHA shall establish and subordinate to the Program mortgage if: hearing before a Hearing Officer. The (1) The proceeds of the new mortgage collect an annual premium payment in hearing will be conducted in accordance debt are necessary to ensure the an amount equal to 1.5 percent of the with the provisions of 24 CFR part 26, maintenance of property standards, amount of the remaining insured subpart A, except as modified by this including health and safety standards; section. Requests for a hearing must be principal balance of the Program (2) Repair or remediation of the mortgage. made within 45 days from the date of condition would preserve or increase the false information notice. (b) Proceeds for payment of the the property’s value; upfront premium. The up-front (3) The cost of the proposed repair or Appraiser Independence premium shall be paid with proceeds remediation is reasonable for the from the Program mortgage through a § 4001.403 Prohibitions on interested geographic market area; parties in insured mortgage transaction. reduction of the amount of indebtedness (4) The results of the repair or (a) A mortgage lender, mortgage that existed on the eligible mortgage remediation are not primarily cosmetic; prior to its being refinanced. (5) The repair or remediation does not broker, mortgage banker, real estate represent routine maintenance; broker, appraisal management company Subpart D—Servicing Responsibilities (6) The new mortgage debt is closed- or employee thereof, and any person with an interest in a real estate § 4001.301 Cross-reference. end credit, as defined in § 226.2 of the Federal Reserve Board’s Regulation Z transaction involving an appraisal (a) All of the provisions of 24 CFR (12 CFR 226.2); and conducted as part of the process for part 203, subpart C, covering mortgages (7) The sum of the unpaid principal insuring a mortgage under section 257 insured under section 203 of the Act balance and accrued and unpaid interest of the Act shall not improperly shall apply to mortgages insured under on the Program mortgage and the influence or attempt to improperly section 257 of the Act, except as follows: original principal balance of the new influence through any means, including 203.664 Processing defaulted mortgages mortgage debt: but not limited to coercion, extortion, on property located on Indian land; (i) Does not exceed 95 percent of the collusion, compensation, instruction, 203.665 Processing defaulted mortgages estimated appraised value of the inducement, intimidation, nonpayment on property located on Hawaiian home property securing the Program mortgage for services rendered, or bribery, the lands; 203.666 Processing defaulted after completion of the proposed repair development, reporting, result or review mortgages on property in Allegany or remediation; and of a real estate appraisal sought in Reservation of Seneca Nation of Indians; (ii) Is less than: connection with the origination, and 203–670–203.681 Occupied (A) The estimated appraised value of processing and closing of the mortgage Conveyance. the property securing the Program for insurance. (b) For the purposes of this subpart, mortgage after completion of the (b) HUD may, pursuant to its all references in 24 CFR part 203, proposed repair or remediation; less authority under section 536(a) of the subpart C, to section 203 of the Act shall (B) FHA’s proportionate share of the Act, bring an action to impose a civil be construed to refer to section 257 of initial equity created upon origination money penalty for a violation of the Act. Any references in 24 CFR part of the Program mortgage as determined paragraph (a) of this section. 203, subpart C, to the ‘‘Mutual Mortgage pursuant to the schedule set forth in (c) The authority to bring a civil Insurance Fund’’ shall be deemed to be section 257(k)(1) of the Act as if a sale money penalty under this section shall to the Home Ownership Preservation of the property had occurred on the date not preclude HUD from bringing any Entity Fund, and any references to ‘‘the of origination of the new mortgage debt. other action that HUD may be

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authorized to bring for a violation of (c) The mortgagee may request a Percent of un- paragraph (a) of this section. hearing before a Hearing Officer. The paid principal hearing will be conducted in accordance Subordinate lien holder’s and interest Mortgagees CLTV that lien holder with the provisions of 24 CFR part 26, is eligible to § 4001.405 Mortgagees. subpart A, except as modified by this receive (a) FHA is authorized by the Board to section. Requests for a hearing must be ≤ engage in monitoring activities to ensure made within 45 days from the date of Cumulative CLTV 135% ..... 12% mortgagee compliance with the the false information notice. Note: Appreciation payment to a subordi- requirements of this Program. The nate lien holder will depend on actual appre- Mortgagee Review Board at HUD is Appendix A to Part 4001—Calculation ciation at the time of sale of the property and of Future Appreciation Payment will be limited by the amount of future appre- authorized by the Board to impose ciation HUD receives. Payment will be made sanctions and civil money penalties according to the subordinate lien holder’s posi- Percent of un- tion of priority in relation to the property at the against mortgagees that violate program paid principal requirements under this part. The time the H4H mortgage is originated, and will Subordinate lien holder’s and interest be based upon principal and interest on the authority of the Mortgagee Review CLTV that lien holder date of origination of the Program mortgage, Board to impose sanctions and civil is eligible to calculated at the pre-default contract rate of penalties shall not preclude HUD from receive interest. bringing any other action that HUD may Cumulative CLTV >135% ..... 9% be authorized to bring. Dated at Washington, DC, this 30th day of (b) Nonpayment of mortgage September, 2008. insurance claims for reasons established By order of the Board of Directors of the in § 4001.16 shall not preclude the HOPE for Homeowners Program. Mortgagee Review Board or HUD from Margaret E. Burns, bringing any action against the Executive Director of the Board. mortgagee that the Mortgagee Review [FR Doc. E8–23612 Filed 10–3–08; 8:45 am] Board or HUD are authorized to bring. BILLING CODE 4210–AA–P

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Part VII

The President Proclamation 8297—National Breast Cancer Awareness Month, 2008 Proclamation 8298—National Disability Employment Awareness Month, 2008 Proclamation 8299—National Domestic Violence Awareness Month, 2008

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Federal Register Presidential Documents Vol. 73, No. 194

Monday, October 6, 2008

Title 3— Proclamation 8297 of October 1, 2008

The President National Breast Cancer Awareness Month, 2008

By the President of the United States of America

A Proclamation During National Breast Cancer Awareness Month, we underscore our commit- ment to fighting and preventing this devastating disease. Breast cancer is one of the most common types of cancer among women, and we must strengthen our support of those who are living with this disease while continuing to work toward a cure. Breast cancer can be attributed to many factors, including age, genetics, obesity, and family history. Women who exercise regularly, maintain healthy diets, and have yearly visits with their doctors are less likely to get breast cancer. Various screening measures such as mammograms, regular breast self-exams, and clinical breast exams can help detect cancer before it has a chance to spread. Early detection allows for early intervention, helps make treatment more effective, and gives hope to patients and saves lives. America leads the world in medical research, and my Administration will continue to support efforts to treat and cure breast cancer. Since 2005, the Cancer Genome Atlas has studied the genetic sources of all types of cancer, and last year, I signed the ‘‘National Breast and Cervical Cancer Early Detection Program Reauthorization Act of 2007,’’ which will help millions of low-income and uninsured women get the screenings they need to detect cancer early. First Lady Laura Bush has encouraged women around the world to take charge of their health and emphasized the importance of screenings and early detection. In partnership with Federal agencies, State health agencies, and other medical professionals, my Administration has taken action to improve our Nation’s healthcare system and helped promote the prevention, detection, and treatment of breast cancer. This month, we honor those currently battling the disease and all who have survived the fight against breast cancer. We are inspired by their strength and determination. We recognize and applaud the hard-working caregivers and researchers who are dedicated to providing comfort and assist- ance to those with breast cancer and to treating and curing this disease. We also remember those lost to breast cancer and extend our thoughts and prayers to their families. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim October 2008 as National Breast Cancer Awareness Month. I call upon Government officials, businesses, communities, health care professionals, educators, volunteers, and the people of the United States to continue our Nation’s strong commit- ment to preventing, treating, and ultimately curing breast cancer.

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

[FR Doc. E8–23724 Filed 10–3–08; 8:45 am] Billing code 3195–W9–P

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Federal Register Presidential Documents Vol. 73, No. 194

Monday, October 6, 2008

Title 3— Proclamation 8298 of October 1, 2008

The President National Disability Employment Awareness Month, 2008

By the President of the United States of America

A Proclamation During National Disability Employment Awareness Month, we reaffirm our commitment to ensuring that our Nation’s promise extends to all our citizens. Millions of Americans live with disabilities, and many other Americans will become disabled at some point in their lives. To integrate people with disabilities more fully into every aspect of life, our country is working to advance greater freedoms at work, in schools, and throughout communities. By expanding employment opportunities and fighting false perceptions that hinder people living with disabilities from joining the workforce, we can uphold America’s moral values, strengthen our economy, and make America a more hopeful place. More than 7 years ago, my Administration announced the New Freedom Initiative, which expanded upon the landmark reforms of the Americans with Disabilities Act. Since then, the Initiative has increased access for people with disabilities through technology, provided additional educational opportunities for youth, and integrated more Americans into the workforce. My Administration remains committed to empowering all people to reach their full educational, social, and professional goals. To learn more about the Federal Government’s disability-related programs, please visit DisabilityInfo.gov. To recognize the contributions of Americans with disabilities and to encour- age all citizens to ensure equal opportunity in the workforce, the Congress has designated October of each year (36 U.S.C. 121) as ‘‘National Disability Employment Awareness Month.’’ NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, do hereby proclaim October 2008 as National Disability Employ- ment Awareness Month. I call upon Government officials, labor leaders, employers, and the people of the United States to observe this month with appropriate programs, ceremonies, and activities.

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

[FR Doc. E8–23728 Filed 10–3–08; 8:45 am] Billing code 3195–W9–P

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Federal Register Presidential Documents Vol. 73, No. 194

Monday, October 6, 2008

Title 3— Proclamation 8299 of October 1, 2008

The President National Domestic Violence Awareness Month, 2008

By the President of the United States of America

A Proclamation Our Nation has a moral obligation to work to prevent domestic violence and address its brutal and destructive effects. During National Domestic Violence Awareness Month, we underscore our commitment to helping indi- viduals across our country who face such devastating violence. My Administration remains dedicated to eradicating domestic violence and helping victims find the compassion, comfort, and healing they need. In 2003, I announced the creation of the Family Justice Center Initiative to help local communities provide comprehensive services at one location for victims of domestic violence. In 2006, I was proud to sign legislation that reauthorized the Violence Against Women Act to improve criminal justice responses to domestic violence, sexual assault, and stalking. The Department of Justice’s Domestic Violence Transitional Housing Assistance Program also offers victims of violence counseling and transitional housing services so they can escape the cycle of abuse. During this month, we rededicate ourselves to protecting vulnerable members of our society and ensuring domestic abusers are punished to the full extent of the law. We encourage victims of domestic violence and their families to seek assistance through Family Justice Centers and the National Domestic Violence Hotline at 1–800–799–SAFE. Together, we can help heal hearts and build a culture in which all Americans can pursue their dreams and realize the great promise of our Nation. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim October 2008, as National Domestic Violence Awareness Month. I urge all Americans to reach out to victims of domestic violence and take action to make ending domestic violence a national priority.

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

[FR Doc. E8–23730 Filed 10–3–08; 8:45 am] Billing code 3195–W9–P

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Reader Aids Federal Register Vol. 73, No. 194 Monday, October 6, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

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. 738...... 57495 Presidential Documents 3 CFR 740...... 57495 Executive orders and proclamations 741–6000 Proclamations: 742...... 57495, 58033 The United States Government Manual 741–6000 8294...... 57223 744...... 57495, 58033 8295...... 57233 Other Services 746...... 57495 8296...... 57475 748...... 57495 Electronic and on-line services (voice) 741–6020 8297...... 58429 750...... 57495 Privacy Act Compilation 741–6064 8298...... 58431 762...... 56964, 57495 Public Laws Update Service (numbers, dates, etc.) 741–6043 8299...... 58433 770...... 57495 TTY for the deaf-and-hard-of-hearing 741–6086 Executive Orders: 772...... 57495 12962 (amended by 774 ...... 56964, 57495, 58033 13474) ...... 57229 Proposed Rules: ELECTRONIC RESEARCH 13474...... 57229 740...... 57554 World Wide Web 772...... 57554 5 CFR Full text of the daily Federal Register, CFR and other publications 16 CFR 295...... 58019 is located at: http://www.gpoaccess.gov/nara/index.html Proposed Rules: Federal Register information and research tools, including Public 7 CFR 1500...... 58063 Inspection List, indexes, and links to GPO Access are located at: 984...... 57485 17 CFR http://www.archives.gov/federallregister 8 CFR 143...... 57512 E-mail 190...... 57235 100...... 58023 229...... 57237 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 212...... 58023 an open e-mail service that provides subscribers with a digital 230...... 58300 form of the Federal Register Table of Contents. The digital form 10 CFR 239...... 58300 240...... 58300 of the Federal Register Table of Contents includes HTML and 50...... 57235 PDF links to the full text of each document. 249...... 58300 Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select 35...... 58063 18 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 35...... 57515 (or change settings); then follow the instructions. 12 CFR 131...... 57515 PENS (Public Law Electronic Notification Service) is an e-mail 204...... 57488 154...... 57515 service that notifies subscribers of recently enacted laws. 263...... 58031 157...... 57515 740...... 56935 250...... 57515 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 792...... 56936 281...... 57515 and select Join or leave the list (or change settings); then follow 284...... 57515 the instructions. Proposed Rules: 701...... 57013 300...... 57515 FEDREGTOC-L and PENS are mailing lists only. We cannot 742...... 57013 341...... 57515 respond to specific inquiries. 344...... 57515 Reference questions. Send questions and comments about the 13 CFR 346...... 57515 Federal Register system to: [email protected] 121...... 56940 347...... 57515 124...... 57490 348...... 57515 The Federal Register staff cannot interpret specific documents or 375...... 57515 regulations. 125...... 56940 127...... 56940 385...... 57515 134...... 56940 Proposed Rules: FEDERAL REGISTER PAGES AND DATE, OCTOBER Proposed Rules: 806...... 57271 56935–57234...... 1 121...... 57014 22 CFR 125...... 57014 57235–57474...... 2 127...... 57014 126...... 58041 57475–58018...... 3 134...... 57014 24 CFR 58019–58434...... 6 14 CFR 4001...... 58418 33...... 57235 27 CFR 39 ...... 56956, 56958, 56960, 447...... 57239 58032 478...... 57239 Proposed Rules: 479...... 57239 91...... 57270 555...... 57239 15 CFR 29 CFR 730...... 56964 403...... 57412 732...... 56964, 57495 734...... 56964, 57495 30 CFR 736...... 56964 950...... 57538

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32 CFR 180...... 56995 Proposed Rules: 172...... 57001, 57008 403...... 58085 Proposed Rules: Proposed Rules: 173...... 57001 8360...... 57564 553...... 57017 50...... 58080 175...... 57001 51...... 58080 47 CFR 176...... 57001 33 CFR 52...... 57272, 58084 178...... 57001 63...... 58352 0...... 57543 100...... 57242 25...... 56999 179...... 57001 110...... 57244 80...... 57274 180...... 57040 73 ...... 56999, 57268, 57551, 180...... 57001 Proposed Rules: 262...... 58388 57552 Proposed Rules: 117...... 58070 264...... 58388 Proposed Rules: 109...... 57281 36 CFR 265...... 58388 27...... 57750 571...... 57297 266...... 58388 73...... 57280 1228...... 57245 271...... 58388 90...... 57750 50 CFR 37 CFR 400...... 57567 42 CFR 222...... 57010 48 CFR Proposed Rules: 34...... 58047 223...... 57010 201...... 58073 411...... 57541 Proposed Rules: 622...... 58058, 58059 385...... 57033 412...... 57541 501...... 57580 679 ...... 57011, 57553, 58061 413...... 56998, 57541 515...... 57580 697...... 58059 40 CFR 422...... 57541 552...... 57580 50...... 58042 441...... 57854 Proposed Rules: 52...... 56970, 57246 489...... 57541 49 CFR 17...... 57314 62...... 56981 1...... 57268 226...... 57583 80...... 57248 43 CFR 89...... 57268 679...... 57585 81...... 56983 11...... 57259 171...... 57001 697...... 58099

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REMINDERS Admission into the United Interagency Cooperation under Pesticide Tolerances: The items in this list were States for Certain the Endangered Species Tebuconazole; comments editorially compiled as an aid Nonimmigrant Aliens Act; comments due by 10- due by 10-14-08; to Federal Register users. Infected with HIV; published 14-08; published 9-12-08 published 8-13-08 [FR E8- Inclusion or exclusion from 10-6-08 [FR E8-21414] 18625] this list has no legal HOUSING AND URBAN DEFENSE DEPARTMENT Tribenuron Methyl; significance. DEVELOPMENT Defense Acquisition comments due by 10-14- DEPARTMENT Regulations System 08; published 8-13-08 [FR E8-18189] Home Equity Conversion Defense Federal Acquisition RULES GOING INTO Revision of Source Category Mortgages: Regulation Supplement: EFFECT OCTOBER 6, List for Standards Under Determination of Maximum 2008 Competition Requirements Section 112(k) of the Clean Claim Amount; and for Purchases from Air Act, etc.: Eligibility for Discounted AGRICULTURE Federal Prison Industries Ferroalloys Production Mortgage Insurance DEPARTMENT (DFARS Case 2008- Facilities; comments due Premium for Certain Agricultural Marketing D015); comments due by by 10-15-08; published 9- Refinanced HECM Loans; Service 10-14-08; published 8-12- 15-08 [FR E8-21509] published 9-4-08 Walnuts Grown in California; 08 [FR E8-18506] Thifensulfuron Methyl; Increased Assessment Rate; PERSONNEL MANAGEMENT U.S.-International Atomic Pesticide Tolerances; published 10-3-08 OFFICE Energy Agency Additional comments due by 10-14-08; AGRICULTURE Testimony by OPM Employees Protocol; comments due published 8-13-08 [FR E8- DEPARTMENT Relating to Official by 10-17-08; published 8- 18457] Federal Crop Insurance Information and Production 18-08 [FR E8-19097] Underground Storage Tank Corporation of Official Records in Legal ENVIRONMENTAL Program: Common Crop Insurance Proceedings; published 10- PROTECTION AGENCY Approved State Program for Regulations: 6-08 Approval and Promulgation of Hawaii; comments due by Dry Pea Crop Provisions; TRANSPORTATION Air Quality Implementation 10-17-08; published 9-17- published 9-4-08 DEPARTMENT Plans: 08 [FR E8-21497] BOARD OF DIRECTORS OF Federal Aviation Louisiana; comments due by Withdrawals of Federal THE HOPE FOR Administration 10-16-08; published 9-16- Antidegradation Policy: HOMEOWNERS PROGRAM Airworthiness Directives: 08 [FR E8-21196] All Waters of the United States within the HOPE for Homeowners Rolls-Royce Deutschland Ltd Michigan; PSD Regulations; Program: comments due by 10-16- Commonwealth of & Co KG (RRD) Dart 528, Pennsylvania; comments Program Regulations; 529, 532, 535, 542, and 08; published 9-16-08 [FR published 10-6-08 E8-21620] due by 10-15-08; 552 Series Turboprop published 9-15-08 [FR E8- Approval and Promulgation of COMMERCE DEPARTMENT Engines; Correction; 21464] Industry and Security published 10-6-08 Implementation Plans and FEDERAL Bureau Operating Permits Program: COMMUNICATIONS Revisions to the Export Missouri; comments due by COMMENTS DUE NEXT COMMISSION Administration Regulations 10-15-08; published 9-15- Television Broadcasting based upon a Systematic WEEK 08 [FR E8-21183] Services: Review of the CCL; Approval and Promulgation of Atlantic City, NJ; comments published 10-6-08 AGRICULTURE Implementation Plans: DEPARTMENT due by 10-14-08; ENVIRONMENTAL Alabama; Volatile Organic published 9-12-08 [FR E8- Rural Utilities Service PROTECTION AGENCY Compounds and Open 21206] Approval and Promulgation of Interconnection of Distributed Burning; comments due Bryan, TX; comments due Air Quality Implementation Resources; comments due by 10-15-08; published 9- by 10-14-08; published 9- Plans: by 10-14-08; published 8- 15-08 [FR E8-21312] 12-08 [FR E8-21211] Colorado; published 8-7-08 13-08 [FR E8-18800] Florida; Removal of FEDERAL TRADE Maryland; NOx and SO2 COMMERCE DEPARTMENT Gasoline Vapor Recovery COMMISSION Emissions Limitations for Foreign-Trade Zones Board from Southeast Florida Prohibitions on Market Fifteen Coal-Fired Electric Applications for Subzones: Areas; comments due by Manipulation and False Generating Units; 10-16-08; published 9-16- Information in Subtitle B of published 9-4-08 Foreign Trade Zone 77 - 08 [FR E8-21303] Memphis, TN; Black and Title VIII of the Energy FEDERAL Environmental Statements; Decker Corp., etc.; Independence and Security COMMUNICATIONS Notice of Intent: comments due by 10-14- Act (of 2007); comments COMMISSION 08; published 8-14-08 [FR Coastal Nonpoint Pollution due by 10-17-08; published Radio Broadcasting Services: E8-18849] Control Programs; States 9-16-08 [FR E8-21605] Noyack and Water Mill, NY; and Territories— COMMERCE DEPARTMENT GENERAL SERVICES published 9-9-08 Florida and South ADMINISTRATION National Oceanic and HEALTH AND HUMAN Carolina; Open for General Services Acquisition Atmospheric Administration SERVICES DEPARTMENT comments until further Regulation: Centers for Disease Control Fisheries in the Western notice; published 2-11- GSAR Case 2008G515; and Prevention Pacific: 08 [FR 08-00596] Rewrite of GSAR Part Medical Examination of Aliens; Pelagic Fisheries; Squid Jig Flubendiamide; Pesticide 549, Termination of Revisions to Medical Fisheries; comments due Tolerances; comments due Contracts; comments due Screening Process; by 10-14-08; published 8- by 10-14-08; published 8- by 10-14-08; published 8- published 10-6-08 28-08 [FR E8-20004] 13-08 [FR E8-18324] 13-08 [FR E8-18722] HOMELAND SECURITY Fisheries in Western Pacific: National Oil and Hazardous HEALTH AND HUMAN DEPARTMENT Crustacean Fisheries; Substances Pollution SERVICES DEPARTMENT U.S. Customs and Border Deepwater Shrimp; Contingency Plan; National Food and Drug Protection comments due by 10-14- Priorities List; comments Administration Issuance of a Visa and 08; published 8-14-08 [FR due by 10-15-08; published General and Plastic Surgery Authorization for Temporary E8-18854] 9-15-08 [FR E8-21306] Devices:

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Reclassification of the due by 10-14-08; Airplanes; comments due (2007R-311P); comments Absorbable Hemostatic published 9-18-08 [FR E8- by 10-17-08; published 9- due by 10-14-08; published Device; Reopening of 21878] 17-08 [FR E8-21701] 8-12-08 [FR E8-18536] Comment Period; Interagency Cooperation under McDonnell Douglas Model Proposed Establishment of the comments due by 10-14- the Endangered Species DC-9-30, DC-9-40, and Lake Chelan Viticultural 08; published 9-11-08 [FR Act; comments due by 10- DC-9-50 Series Airplanes Area (2007R-103P); E8-21200] 14-08; published 9-12-08 et al.; comments due by comments due by 10-14-08; HOMELAND SECURITY [FR E8-21414] 10-14-08; published 8-29- published 8-12-08 [FR E8- DEPARTMENT LABOR DEPARTMENT 08 [FR E8-20082] 18534] Coast Guard Veterans Employment and Pilatus Aircraft Ltd. Model Proposed Establishment of the Safety Zone; Captain of the Training Service PC 6 Series Airplanes; Upper Mississippi River comments due by 10-17- Valley Viticultural Area Port Zone Jacksonville; Priority of Service for Covered Offshore Cape Canaveral, 08; published 9-17-08 [FR (2007R-055P); comments Persons; comments due by E8-21691] due by 10-14-08; published FL; comments due by 10- 10-14-08; published 8-15-08 PZL Swidnik S. A. Model 8-12-08 [FR E8-18535] 17-08; published 8-18-08 [FR E8-18869] [FR E8-18996] W-3A Helicopters; NUCLEAR REGULATORY Safety Zones: comments due by 10-14- COMMISSION 08; published 8-15-08 [FR LIST OF PUBLIC LAWS Fireworks Display, Potomac When Licensees Depart From E8-18805] River, National Harbor, a License Condition or This is a continuing list of MD; comments due by TRANSPORTATION Technical Specification in an public bills from the current 10-16-08; published 9-16- DEPARTMENT Emergency; Clarified session of Congress which 08 [FR E8-21551] National Highway Traffic Requirements; comments have become Federal laws. It Safety Administration St. Croix Coral Reef Swim, due by 10-14-08; published may be used in conjunction Buck Island Channel, 8-15-08 [FR E8-18918] Federal Motor Vehicle Safety with ‘‘P L U S’’ (Public Laws USVI; comments due by Standards: Update Service) on 202–741– POSTAL REGULATORY 10-16-08; published 9-16- Lamps, Reflective Devices, 6043. This list is also COMMISSION 08 [FR E8-21555] and Associated available online at http:// HOMELAND SECURITY Periodic Reporting Rules; Equipment; comments due www.archives.gov/federal- DEPARTMENT comments due by 10-16-08; by 10-14-08; published 8- register/laws.html. published 9-15-08 [FR E8- 28-08 [FR E8-19837] Federal Emergency 21060] The text of laws is not Management Agency TREASURY DEPARTMENT published in the Federal Proposed Flood Elevation SOCIAL SECURITY Internal Revenue Service Register but may be ordered ADMINISTRATION Determinations; comments Determining the Amount of in ‘‘slip law’’ (individual due by 10-14-08; published Revised Medical Criteria for Taxes Paid for Purposes of pamphlet) form from the 7-14-08 [FR E8-15982] Evaluating Hearing Loss; Section 901; comments due Superintendent of Documents, comments due by 10-14-08; HOUSING AND URBAN by 10-14-08; published 7- U.S. Government Printing published 8-13-08 [FR E8- DEVELOPMENT 16-08 [FR E8-16331] Office, Washington, DC 20402 18718] (phone, 202–512–1808). The DEPARTMENT Employer Comparable text will also be made TRANSPORTATION Contributions to Health Public Access to HUD available on the Internet from DEPARTMENT Savings Accounts and Records under the Freedom GPO Access at http:// Federal Aviation Requirement of Return for of Information Act and www.gpoaccess.gov/plaws/ Administration Filing of the Excise Tax; Production of Material or index.html. Some laws may comments due by 10-14-08; Provision of Testimony by Airworthiness Directives: not yet be available. HUD Employees: Airbus Model A300-600 published 7-16-08 [FR E8- Revisions to Policies and Airplanes; comments due 16175] H.R. 5551/P.L. 110–335 Practices regarding by 10-17-08; published 9- Postponement of Certain Tax- To amend title 11, District of Subpoenas and Other 17-08 [FR E8-21724] related Deadlines by Columbia Official Code, to Reason of Presidentially Demands for Testimony; Airbus Model A330 implement the increase Declared Disaster or comments due by 10-14- Airplanes, and Model provided under the District of Terroristic or Military 08; published 8-12-08 [FR A340 200 and A340-300 Columbia Appropriations Act, Actions; comments due by E8-18282] Series Airplanes; 2008, in the amount of funds 10-14-08; published 7-15-08 INTERIOR DEPARTMENT comments due by 10-17- made available for the [FR E8-15939] Fish and Wildlife Service 08; published 9-17-08 [FR compensation of attorneys TREASURY DEPARTMENT representing indigent Endangered and Threatened E8-21727] defendants in the District of Wildlife and Plants: Boeing Model 777 Terrorism Risk Insurance Program; Recoupment Columbia courts, and for other Frosted Flatwoods Airplanes; comments due Provisions; comments due purposes. (Oct. 2, 2008; 122 Salamander and by 10-14-08; published 8- by 10-17-08; published 9- Stat. 3724) Reticulated Flat; 29-08 [FR E8-20087] 17-08 [FR E8-21699] H.R. 5893/P.L. 110–336 comments due by 10-14- Bombardier-Rotax GmbH 08; published 8-13-08 [FR 914 F Series Terrorism Risk Insurance Library of Congress Sound E8-17894] Reciprocating Engines; Program; Terrorism Risk Recording and Film Insurance Program Preservation Programs Endangered and Threatened comments due by 10-14- Reauthorization Act Reauthorization Act of 2008 Wildlife and Plants; 08; published 9-12-08 [FR Implementation; comments (Oct. 2, 2008; 122 Stat. 3726) Proposed Endangered E8-21282] due by 10-16-08; published Status: Bombardier Model CL 600 S. 996/P.L. 110–337 9-16-08 [FR E8-21578] Reticulated Flatwoods 2B19 (Regional Jet Series To amend title 49, United Salamander; Proposed 100 & 440) Airplanes; TREASURY DEPARTMENT States Code, to expand Designation of Critical comments due by 10-17- Alcohol and Tobacco Tax passenger facility fee eligibility Habitat for Frosted 08; published 9-17-08 [FR and Trade Bureau for certain noise compatibility Flatwoods Salamander E8-21730] Proposed Establishment of the projects. (Oct. 2, 2008; 122 and Reticulated Flatwoods Diamond Aircraft Industries Happy Canyon of Santa Stat. 3729) Salamander; comments GmbH Model DA 42 Barbara Viticultural Area Last List October 2, 2008

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enacted public laws. To PENS cannot respond to subscribe, go to http:// specific inquiries sent to this Public Laws Electronic listserv.gsa.gov/archives/ address. Notification Service publaws-l.html (PENS) Note: This service is strictly for E-mail notification of new PENS is a free electronic mail laws. The text of laws is not notification service of newly available through this service.

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CFR CHECKLIST Title Stock Number Price Revision Date 900–End ...... (869–064–00038–6) ...... 53.00 Jan. 1, 2008 This checklist, prepared by the Office of the Federal Register, is 13 ...... (869–064–00039–4) ...... 58.00 Jan. 1, 2008 published weekly. It is arranged in the order of CFR titles, stock 14 Parts: numbers, prices, and revision dates. 1–59 ...... (869–064–00040–8) ...... 66.00 Jan. 1, 2008 An asterisk (*) precedes each entry that has been issued since last 60–139 ...... (869–064–00041–6) ...... 61.00 Jan. 1, 2008 week and which is now available for sale at the Government Printing 140–199 ...... (869–064–00042–4) ...... 33.00 Jan. 1, 2008 Office. 200–1199 ...... (869–064–00043–2) ...... 53.00 Jan. 1, 2008 A checklist of current CFR volumes comprising a complete CFR set, 1200–End ...... (869–064–00044–1) ...... 48.00 Jan. 1, 2008 also appears in the latest issue of the LSA (List of CFR Sections 15 Parts: Affected), which is revised monthly. 0–299 ...... (869–064–00045–9) ...... 43.00 Jan. 1, 2008 The CFR is available free on-line through the Government Printing 300–799 ...... (869–064–00046–7) ...... 63.00 Jan. 1, 2008 Office’s GPO Access Service at http://www.gpoaccess.gov/cfr/ 800–End ...... (869–064–00047–5) ...... 45.00 Jan. 1, 2008 index.html. For information about GPO Access call the GPO User 16 Parts: Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 0–999 ...... (869–064–00048–3) ...... 53.00 Jan. 1, 2008 The annual rate for subscription to all revised paper volumes is 1000–End ...... (869–064–00049–1) ...... 63.00 Jan. 1, 2008 $1499.00 domestic, $599.60 additional for foreign mailing. 17 Parts: Mail orders to the Superintendent of Documents, Attn: New Orders, 1–199 ...... (869–064–00051–3) ...... 53.00 Apr. 1, 2008 P.O. Box 371954, Pittsburgh, PA 15250–7954. All orders must be 200–239 ...... (869–064–00052–1) ...... 63.00 Apr. 1, 2008 accompanied by remittance (check, money order, GPO Deposit 240–End ...... (869–064–00053–0) ...... 65.00 Apr. 1, 2008 Account, VISA, Master Card, or Discover). Charge orders may be telephoned to the GPO Order Desk, Monday through Friday, at (202) 18 Parts: 512–1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your 1–399 ...... (869–064–00054–8) ...... 65.00 Apr. 1, 2008 charge orders to (202) 512-2250. 400–End ...... (869–064–00055–6) ...... 29.00 Apr. 1, 2008 Title Stock Number Price Revision Date 19 Parts: 1–140 ...... (869–064–00056–4) ...... 64.00 Apr. 1, 2008 1 ...... (869–064–00001–7) ...... 5.00 4 Jan. 1, 2008 141–199 ...... (869–064–00057–2) ...... 61.00 Apr. 1, 2008 2 ...... (869–064–00002–5) ...... 8.00 Jan. 1, 2008 200–End ...... (869–064–00058–1) ...... 34.00 Apr. 1, 2008 3 (2006 Compilation 20 Parts: and Parts 100 and 1–399 ...... (869–064–00059–9) ...... 53.00 Apr. 1, 2008 102) ...... (869–064–00003–3) ...... 35.00 1 Jan. 1, 2008 400–499 ...... (869–064–00060–2) ...... 67.00 Apr. 1, 2008 4 ...... (869–064–00004–1) ...... 13.00 Jan. 1, 2008 500–End ...... (869–064–00061–1) ...... 66.00 Apr. 1, 2008 5 Parts: 21 Parts: 1–699 ...... (869–064–00005–0) ...... 63.00 Jan. 1, 2008 1–99 ...... (869–064–00062–9) ...... 43.00 Apr. 1, 2008 700–1199 ...... (869–064–00006–8) ...... 53.00 Jan. 1, 2008 100–169 ...... (869–064–00063–7) ...... 52.00 Apr. 1, 2008 1200–End ...... (869–064–00007–6) ...... 64.00 Jan. 1, 2008 170–199 ...... (869–064–00064–5) ...... 53.00 Apr. 1, 2008 200–299 ...... (869–064–00065–3) ...... 20.00 Apr. 1, 2008 6 ...... (869–064–00008–4) ...... 13.50 Jan. 1, 2008 300–499 ...... (869–064–00066–1) ...... 33.00 Apr. 1, 2008 7 Parts: 500–599 ...... (869–064–00067–0) ...... 50.00 Apr. 1, 2008 1–26 ...... (869–064–00009–2) ...... 47.00 Jan. 1, 2008 600–799 ...... (869–064–00068–8) ...... 20.00 Apr. 1, 2008 27–52 ...... (869–064–00010–6) ...... 52.00 Jan. 1, 2008 800–1299 ...... (869–064–00069–6) ...... 63.00 Apr. 1, 2008 53–209 ...... (869–064–00011–4) ...... 40.00 Jan. 1, 2008 1300–End ...... (869–064–00070–0) ...... 28.00 Apr. 1, 2008 210–299 ...... (869–064–00012–2) ...... 65.00 Jan. 1, 2008 22 Parts: 300–399 ...... (869–064–00013–1) ...... 49.00 Jan. 1, 2008 1–299 ...... (869–064–00071–8) ...... 66.00 Apr. 1, 2008 400–699 ...... (869–064–00014–9) ...... 45.00 Jan. 1, 2008 300–End ...... (869–064–00072–6) ...... 48.00 Apr. 1, 2008 700–899 ...... (869–064–00015–7) ...... 46.00 Jan. 1, 2008 900–999 ...... (869–064–00016–5) ...... 63.00 Jan. 1, 2008 23 ...... (869–064–00073–4) ...... 48.00 Apr. 1, 2008 1000–1199 ...... (869–064–00017–3) ...... 22.00 Jan. 1, 2008 24 Parts: 1200–1599 ...... (869–064–00018–1) ...... 64.00 Jan. 1, 2008 0–199 ...... (869–064–00074–2) ...... 63.00 Apr. 1, 2008 1600–1899 ...... (869–064–00019–0) ...... 67.00 Jan. 1, 2008 200–499 ...... (869–064–00075–1) ...... 53.00 Apr. 1, 2008 1900–1939 ...... (869–064–00020–3) ...... 31.00 Jan. 1, 2008 500–699 ...... (869–064–00076–9) ...... 33.00 Apr. 1, 2008 1940–1949 ...... (869–064–00021–1) ...... 50.00 Jan. 1, 2008 700–1699 ...... (869–064–00077–7) ...... 64.00 Apr. 1, 2008 1950–1999 ...... (869–064–00022–0) ...... 49.00 Jan. 1, 2008 1700–End ...... (869–064–00078–5) ...... 33.00 Apr. 1, 2008 2000–End ...... (869–064–00023–8) ...... 53.00 Jan. 1, 2008 25 ...... (869–064–00079–3) ...... 67.00 Apr. 1, 2008 8 ...... (869–064–00024–6) ...... 66.00 Jan. 1, 2008 26 Parts: 9 Parts: §§ 1.0–1–1.60 ...... (869–064–00080–7) ...... 52.00 Apr. 1, 2008 1–199 ...... (869–064–00025–4) ...... 64.00 Jan. 1, 2008 §§ 1.61–1.169 ...... (869–064–00081–5) ...... 66.00 Apr. 1, 2008 200–End ...... (869–064–00026–2) ...... 61.00 Jan. 1, 2008 §§ 1.170–1.300 ...... (869–064–00082–3) ...... 63.00 Apr. 1, 2008 10 Parts: §§ 1.301–1.400 ...... (869–064–00083–1) ...... 50.00 Apr. 1, 2008 1–50 ...... (869–064–00027–1) ...... 64.00 Jan. 1, 2008 §§ 1.401–1.440 ...... (869–064–00084–0) ...... 59.00 Apr. 1, 2008 51–199 ...... (869–064–00028–9) ...... 61.00 Jan. 1, 2008 §§ 1.441–1.500 ...... (869–064–00085–8) ...... 61.00 Apr. 1, 2008 200–499 ...... (869–064–00029–7) ...... 46.00 Jan. 1, 2008 §§ 1.501–1.640 ...... (869–064–00086–6) ...... 52.00 Apr. 1, 2008 500–End ...... (869–064–00030–1) ...... 65.00 Jan. 1, 2008 §§ 1.641–1.850 ...... (869–064–00087–4) ...... 64.00 Apr. 1, 2008 §§ 1.851–1.907 ...... (869–064–00088–2) ...... 64.00 Apr. 1, 2008 11 ...... (869–064–00031–9) 44.00 Jan. 1, 2008 §§ 1.908–1.1000 ...... (869–064–00089–1) ...... 63.00 Apr. 1, 2008 12 Parts: §§ 1.1001–1.1400 ...... (869–064–00090–4) ...... 64.00 Apr. 1, 2008 1–199 ...... (869–064–00032–7) ...... 37.00 Jan. 1, 2008 §§ 1.1401–1.1550 ...... (869–064–00091–2) ...... 61.00 Apr. 1, 2008 200–219 ...... (869–064–00033–5) ...... 40.00 Jan. 1, 2008 §§ 1.1551–End ...... (869–064–00092–1) ...... 53.00 Apr. 1, 2008 220–299 ...... (869–064–00034–3) ...... 64.00 Jan. 1, 2008 2–29 ...... (869–064–00093–9) ...... 63.00 Apr. 1, 2008 300–499 ...... (869–064–00035–1) ...... 47.00 Jan. 1, 2008 30–39 ...... (869–064–00094–7) ...... 44.00 Apr. 1, 2008 500–599 ...... (869–064–00036–0) ...... 42.00 Jan. 1, 2008 40–49 ...... (869–064–00095–5) ...... 31.00 6Apr. 1, 2008 600–899 ...... (869–064–00037–8) ...... 59.00 Jan. 1, 2008 50–299 ...... (869–064–00096–3) ...... 45.00 Apr. 1, 2008

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Title Stock Number Price Revision Date Title Stock Number Price Revision Date 300–499 ...... (869–064–00097–1) ...... 64.00 Apr. 1, 2008 63 (63.1440–63.6175) .... (869–064–00150–1) ...... 35.00 July 1, 2008 500–599 ...... (869–064–00098–0) ...... 12.00 5 Apr. 1, 2008 63 (63.6580–63.8830) .... (869–062–00151–7) ...... 32.00 July 1, 2007 600–End ...... (869–064–00099–8) ...... 20.00 Apr. 1, 2008 63 (63.8980–End) ...... (869–064–00152–8) ...... 38.00 July 1, 2008 27 Parts: 64–71 ...... (869–064–00153–6) ...... 32.00 July 1, 2008 1–39 ...... (869–064–00100–5) ...... 35.00 Apr. 1, 2008 72–80 ...... (869–062–00154–1) ...... 62.00 July 1, 2007 40–399 ...... (869–064–00101–3) ...... 67.00 Apr. 1, 2008 81–84 ...... (869–064–00155–2) ...... 53.00 July 1, 2008 400–End ...... (869–064–00102–1) ...... 21.00 Apr. 1, 2008 85–86 (85–86.599–99) .... (869–064–00156–1) ...... 64.00 July 1, 2008 86 (86.600–1–End) ...... (869–064–00157–9) ...... 53.00 July 1, 2008 28 Parts: ...... 87–99 ...... (869–062–00158–4) ...... 60.00 July 1, 2007 0–42 ...... (869–064–00103–0) ...... 64.00 July 1, 2008 100–135 ...... (869–064–00159–5) ...... 48.00 July 1, 2008 43–End ...... (869–064–00104–8) ...... 63.00 July 1, 2008 136–149 ...... (869–062–00160–6) ...... 61.00 July 1, 2007 29 Parts: 150–189 ...... (869–062–00161–4) ...... 50.00 July 1, 2007 0–99 ...... (869–062–00105–3) ...... 50.00 7July 1, 2007 190–259 ...... (869–064–00162–5) ...... 42.00 July 1, 2008 100–499 ...... (869–062–00106–1) ...... 23.00 July 1, 2007 260–265 ...... (869–064–00163–3) ...... 53.00 July 1, 2008 500–899 ...... (869–062–00107–0) ...... 61.00 7July 1, 2007 266–299 ...... (869–062–00164–9) ...... 50.00 July 1, 2007 900–1899 ...... (869–064–00108–1) ...... 39.00 July 1, 2008 300–399 ...... (869–064–00165–0) ...... 45.00 July 1, 2008 1900–1910 (§§ 1900 to 400–424 ...... (869–062–00166–5) ...... 56.00 7July 1, 2007 1910.999) ...... (869–062–00109–6) ...... 61.00 July 1, 2007 425–699 ...... (869–062–00167–3) ...... 61.00 July 1, 2007 1910 (§§ 1910.1000 to 700–789 ...... (869–062–00168–1) ...... 61.00 July 1, 2007 end) ...... (869–062–00110–0) ...... 46.00 July 1, 2007 790–End ...... (869–062–00169–0) ...... 61.00 July 1, 2007 1911–1925 ...... (869–062–00111–8) ...... 30.00 July 1, 2007 41 Chapters: 1926 ...... (869–064–00112–9) ...... 53.00 July 1, 2008 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 1927–End ...... (869–062–00113–4) ...... 62.00 July 1, 2007 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 30 Parts: 3–6 ...... 14.00 3 July 1, 1984 *1–199 ...... (869–064–00114–5) ...... 60.00 July 1, 2008 7 ...... 6.00 3 July 1, 1984 200–699 ...... (869–064–00115–8) ...... 49.00 July 1, 2008 8 ...... 4.50 3 July 1, 1984 700–End ...... (869–062–00116–9) ...... 58.00 July 1, 2007 9 ...... 13.00 3 July 1, 1984 10–17 ...... 9.50 3 July 1, 1984 31 Parts: 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 *0–199 ...... (869–064–00117–0) ...... 44.00 July 1, 2008 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 200–499 ...... (869–064–00118–8) ...... 49.00 July 1, 2008 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 500–End ...... (869–064–00119–6) ...... 65.00 July 1, 2008 19–100 ...... 13.00 3 July 1, 1984 32 Parts: 1–100 ...... (869–064–00170–6) ...... 27.00 July 1, 2008 1–39, Vol. I ...... 15.00 2 July 1, 1984 101 ...... (869–062–00171–1) ...... 21.00 July 1, 2007 1–39, Vol. II ...... 19.00 2 July 1, 1984 102–200 ...... (869–064–00172–2) ...... 56.00 July 1, 2008 1–39, Vol. III ...... 18.00 2 July 1, 1984 *201–End ...... (869–064–00173–1) ...... 27.00 July 1, 2008 ...... 1–190 (869–064–00120–0) 64.00 July 1, 2008 42 Parts: 191–399 ...... (869–064–00121–8) ...... 66.00 July 1, 2008 1–399 ...... (869–062–00174–6) ...... 61.00 Oct. 1, 2007 400–629 ...... (869–064–00122–6) ...... 53.00 July 1, 2008 400–413 ...... (869–062–00175–4) ...... 32.00 Oct. 1, 2007 630–699 ...... (869–064–00123–4) ...... 40.00 July 1, 2008 414–429 ...... (869–062–00176–2) ...... 32.00 Oct. 1, 2007 700–799 ...... (869–064–00124–2) ...... 49.00 July 1, 2008 430–End ...... (869–062–00177–1) ...... 64.00 Oct. 1, 2007 800–End ...... (869–064–00125–1) ...... 50.00 July 1, 2008 43 Parts: 33 Parts: 1–999 ...... (869–062–00178–9) ...... 56.00 Oct. 1, 2007 1–124 ...... (869–064–00126–9) ...... 60.00 July 1, 2008 1000–end ...... (869–062–00179–7) ...... 62.00 Oct. 1, 2007 125–199 ...... (869–062–00127–4) ...... 61.00 July 1, 2007 200–End ...... (869–062–00128–2) ...... 57.00 July 1, 2007 44 ...... (869–062–00180–1) ...... 50.00 Oct. 1, 2007 34 Parts: 45 Parts: 1–299 ...... (869–064–00129–3) ...... 53.00 July 1, 2008 1–199 ...... (869–062–00181–9) ...... 60.00 Oct. 1, 2007 300–399 ...... (869–064–00130–7) ...... 43.00 July 1, 2008 200–499 ...... (869–060–00182–7) ...... 34.00 9Oct. 1, 2007 400–End & 35 ...... (869–062–00131–2) ...... 61.00 July 1, 2007 500–1199 ...... (869–062–00183–5) ...... 56.00 Oct. 1, 2007 1200–End ...... (869–062–00184–3) ...... 61.00 Oct. 1, 2007 36 Parts: 1–199 ...... (869–062–00132–1) ...... 37.00 July 1, 2007 46 Parts: 200–299 ...... (869–062–00133–9) ...... 37.00 July 1, 2007 1–40 ...... (869–062–00185–1) ...... 46.00 Oct. 1, 2007 300–End ...... (869–064–00134–0) ...... 64.00 July 1, 2008 41–69 ...... (869–062–00186–0) ...... 39.00 Oct. 1, 2007 70–89 ...... (869–062–00187–8) ...... 14.00 Oct. 1, 2007 *37 ...... (869–064–00135–8) ...... 61.00 July 1, 2008 90–139 ...... (869–062–00188–6) ...... 44.00 Oct. 1, 2007 38 Parts: 140–155 ...... (869–062–00189–4) ...... 25.00 Oct. 1, 2007 0–17 ...... (869–062–00136–3) ...... 60.00 July 1, 2007 156–165 ...... (869–062–00190–8) ...... 34.00 Oct. 1, 2007 18–End ...... (869–062–00137–1) ...... 62.00 July 1, 2007 166–199 ...... (869–062–00191–6) ...... 46.00 Oct. 1, 2007 ...... 39 ...... (869–064–00138–2) ...... 45.00 July 1, 2008 200–499 (869–062–00192–4) 40.00 Oct. 1, 2007 500–End ...... (869–062–00193–2) ...... 25.00 Oct. 1, 2007 40 Parts: 47 Parts: 1–49 ...... (869–062–00139–8) ...... 60.00 July 1, 2007 ...... 50–51 ...... (869–064–00140–4) ...... 48.00 July 1, 2008 0–19 (869–062–00194–1) 61.00 Oct. 1, 2007 ...... 52 (52.01–52.1018) ...... (869–064–00141–2) ...... 61.00 July 1, 2008 20–39 (869–062–00195–9) 46.00 Oct. 1, 2007 ...... *52 (52.1019–End) ...... (869–064–00142–1) ...... 67.00 July 1, 2008 40–69 (869–062–00196–7) 40.00 Oct. 1, 2007 ...... 53–59 ...... (869–064–00143–9) ...... 34.00 July 1, 2008 70–79 (869–062–00197–5) 61.00 Oct. 1, 2007 ...... 60 (60.1–End) ...... (869–062–00144–4) ...... 58.00 July 1, 2007 80–End (869–062–00198–3) 61.00 Oct. 1, 2007 60 (Apps) ...... (869–062–00145–2) ...... 57.00 July 1, 2007 48 Chapters: 61–62 ...... (869–064–00146–3) ...... 48.00 July 1, 2008 1 (Parts 1–51) ...... (869–062–00199–1) ...... 63.00 Oct. 1, 2007 63 (63.1–63.599) ...... (869–064–00147–1) ...... 61.00 July 1, 2008 1 (Parts 52–99) ...... (869–062–00200–9) ...... 49.00 Oct. 1, 2007 63 (63.600–63.1199) ...... (869–062–00148–7) ...... 50.00 July 1, 2007 2 (Parts 201–299) ...... (869–062–00201–7) ...... 50.00 Oct. 1, 2007 63 (63.1200–63.1439) .... (869–064–00149–8) ...... 53.00 July 1, 2008 3–6 ...... (869–062–00202–5) ...... 34.00 Oct. 1, 2007

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Title Stock Number Price Revision Date 7–14 ...... (869–062–00203–3) ...... 56.00 Oct. 1, 2007 15–28 ...... (869–062–00204–1) ...... 47.00 Oct. 1, 2007 29–End ...... (869–062–00205–0) ...... 47.00 Oct. 1, 2007 49 Parts: 1–99 ...... (869–062–00206–8) ...... 60.00 Oct. 1, 2007 100–185 ...... (869–062–00207–6) ...... 63.00 Oct. 1, 2007 186–199 ...... (869–062–00208–4) ...... 23.00 Oct. 1, 2007 200–299 ...... (869–062–00208–1) ...... 32.00 Oct. 1, 2007 300–399 ...... (869–062–00210–6) ...... 32.00 Oct. 1, 2007 400–599 ...... (869–062–00210–3) ...... 64.00 Oct. 1, 2007 600–999 ...... (869–062–00212–2) ...... 19.00 Oct. 1, 2007 1000–1199 ...... (869–062–00213–1) ...... 28.00 Oct. 1, 2007 1200–End ...... (869–062–00214–9) ...... 34.00 Oct. 1, 2007 50 Parts: 1–16 ...... (869–062–00215–7) ...... 11.00 Oct. 1, 2007 17.1–17.95(b) ...... (869–062–00216–5) ...... 32.00 Oct. 1, 2007 17.95(c)–end ...... (869–062–00217–3) ...... 32.00 Oct. 1, 2007 17.96–17.99(h) ...... (869–062–00218–1) ...... 61.00 Oct. 1, 2007 17.99(i)–end and 17.100–end ...... (869–062–00219–0) ...... 47.00 8 Oct. 1, 2007 18–199 ...... (869–062–00226–3) ...... 50.00 Oct. 1, 2007 200–599 ...... (869–062–00221–1) ...... 45.00 Oct. 1, 2007 600–659 ...... (869–062–00222–0) ...... 31.00 Oct. 1, 2007 660–End ...... (869–062–00223–8) ...... 31.00 Oct. 1, 2007 CFR Index and Findings Aids ...... (869–064–00050–5) ...... 65.00 Jan. 1, 2008 Complete 2008 CFR set ...... 1,499.00 2008 Microfiche CFR Edition: Subscription (mailed as issued) ...... 406.00 2008 Individual copies ...... 4.00 2008 Complete set (one-time mailing) ...... 332.00 2007 Complete set (one-time mailing) ...... 332.00 2006 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period January 1, 2005, through January 1, 2006. The CFR volume issued as of January 1, 2005 should be retained. 5 No amendments to this volume were promulgated during the period April 1, 2000, through April 1, 2007. The CFR volume issued as of April 1, 2000 should be retained. 6 No amendments to this volume were promulgated during the period April 1, 2006 through April 1, 2007. The CFR volume issued as of April 1, 2006 should be retained. 7 No amendments to this volume were promulgated during the period July 1, 2006, through July 1, 2007. The CFR volume issued as of July 1, 2006 should be retained. 8 No amendments to this volume were promulgated during the period October 1, 2005, through October 1, 2007. The CFR volume issued as of October 1, 2005 should be retained. 9 No amendments to this volume were promulgated during the period October 1, 2006, through October 1, 2007. The CFR volume issued as of October 1, 2006 should be retained.

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